■1: 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE 

ENCYCLOPEDIA 


OF 


UNITED  STATES  SUPREME 
COURT  REPORTS 


BEING  A 


Complete  Encyclopedia  of  All  the  Case  Law  of  the  Federal 
Supreme  Court  up  to  and  including  Volume  206  U.  S, 
Supreme   Court   Reports  (Book   51    Lawyers'   Edition) 


UNDER    THE    KPTTORIAL    SUPERVTSTON    OE 

THOAIAS  JOPIXSON  MICHIR 


:i-> 


Volume  I 


THE    MICHIE   COMPANY.  LAW   PUBLISHERS 

CHARLOTTESVILLE,  VA. 

1908 


T 

V.  / 


Copyright  1908 

BY 
Tnt     MiCHEE    CoMPANi' 


TABLES  Cr  TITLES  AND  WOnDS  A?JD  PHRASES. 


& 


I.  TITLES. 


Ilalics  in.^icatc  cross-references. 


Abandoned  and  Captured  Property,  l. 

Abandonment  and  Total  Losf,  11. 

Abatement,   11. 

Abatement,   Revival    and   Sl":;vival,   12. 

Abbreviations,  47. 

Abduction  and  Kipn  \   ping,  4S. 

Abiding  the  Event,  i.). 

Abode,  49. 

Abolition,  49. 

Abridgment,  49. 

Absconding,  50. 

Absent  Defendants,  ',0. 

Absentees,  50. 

Abstract  of  Title,  50. 

Abuse  of  Process,  50. 

Abutting  Owners,  50. 

Academics,  50. 

Accession,  Accretion  and   Reuction,  51. 

Accessories,  37. 

Accident  in  Equity,  57. 

Accident  Insurance,  58. 

Accommodation  Paper,  &2. 

AccoMPUcEs  AND  Accessories,  63. 

Accord  and  Satisfaction,  69. 

Account  Render  or  Stated,  69. 

Accounts  and  Accounting,  70. 

Accretion,  74. 

Accumulations,   75. 

Accusations,  75. 

Acknowledgments,  75. 

Acquit,  95. 

Action  on  the  Case,  95. 

Actions,  96. 

Acts  of  Bankruptcy.  113. 

Acts  of  Congress,  115. 

Actual  Controversy,  116. 

Actuaries,  116. 

Additional  Allozvance  of  Costs.  116. 

Additional  Security  on  Appeal.  116. 

Additional  Servitude,  116. 

Address,  116. 

Adequate  Remedy  at  Law,  116. 

Adjoining  Landowners,  117. 

Adjournments,  118. 

Administration  of  Estates,  118. 


Administrators,  118. 

Admiralty,  119. 

Admissions  in  Evidence,  194. 

Adoption  of  Children,  194. 

Adulteration,  194. 

Adultery,  Fornication  and  Lewdness,  1C5. 

Advancements,  198. 

Adverse  Possession,  199. 

Advertisements,   199. 

Advice  of  Counsel,  199. 

Affidavit  of  Merits,  199. 

/  KFIDAVITS,    200. 

Affinity,  203. 

Affirmance,  203. 

Affirmation,  203. 

Affray,  203. 

Affreightment,  203. 

After-Acquired  Property.  203. 

After-Acquired  Title,  203. 

Afterborn  Children,  203. 

/4g^,  204. 

^^CTJCji,  204. 

Aggravation,  204. 

Aggregation,  204. 

Aggrieved  Party,  204. 

Agistment,   304. 

Agreed  Case,  2C4. 

Agriculture,  209. 

.(^jrfr/-  fl/iti  Abettor,  209. 

Aider  by   I'erdict.  209. 

/^/flf  Societies,  209. 

/4//-,  209. 

Alabama.   209. 

Alaska,  209. 

Alcoholic  Liquors,  209. 

Alcoholism,  209. 

Aldermen,  209. 

/i//«j   Writs,  209. 

^//■fc/,  209. 

Alienation  in  Mortmain,  209. 

Alienation  of  Affections,  209. 

Aliens,  210. 

Alimony,  256. 

Allegata  and  Probata,  258. 

Alleys.  259. 


l\' 


TABLE  OF  TITLES. 


Allocatur,  259. 

Alteration  of  Instruments,  231. 

Alteration  of  Records,  27:2. 

Alternative  Judgment.  272. 

Alternative    IVrit.   272. 

Ambassadors  and  Consii.s.  273. 

A)iibiguity.  287. 

Amendments,  288. 

Amicus  Curiae.  312. 

Amnesty,  312. 

Amotion,  312. 

Amount  in  Controversy.  312. 

Amusements.  :;13. 

Ancestor,  313. 

Anchored   Vessels,  313. 

Ancient  Documents,  313. 


Ancient  Lights.  31.5. 

Ancillary  Administration,  31 J. 

Ancillary  Jurisdiction,  315. 

Anguish,   315. 

Animals,  316. 

Animus  Manendi,  328. 

Annexation  of  Territory,  328. 

Annuity,  329. 

Annulment  of  Marriage,  330. 

Another  Sui7  Pending,  330. 

/iwjwcri-,  330. 

Antenuptial   Contracts  and  Settlements,  330. 

Anti-Trust  Laws,  330. 

Apaches,  332. 

Apothecaries,  332. 

Appeal  and  Ekuor,  333. 


II.  WORDS  AXD  niRASES. 


Italics  indicate   cross-references. 


Abandonmknt,  1L 
AnET,  48. 
Abeyance,  4S. 
Abiding,  48. 
About,  49. 
Abro.\d,  50. 
Absence — Absbnt,  50, 
Absinthe,  SO. 
.■Absolutely,  .50. 
Absolute  Title,  50. 

.^B?TRACT,   50. 

.■\bstractiox.  50. 
.Accept — Acceptance,  50. 
Accident — Accidentally.  57. 
Accrue,  74. 
Acid,  75. 
Acknowledge,  75. 
Acquainted.  05. 
Acquiescence,  05. 
.Across,  95. 
Act,  95. 

.Act  of  God,  115. 
.Act  of  Law,  115. 
.Actual,  115. 
.ACUERDO.   116. 
.Addicted,  116. 
.Ademption,  116. 
.Adjacent,  116. 
.Adjourned  Session,  117. 
.Adjudication,  118. 
.Advance.  108. 
.Adverse  Interest,  199. 
Adverse  Party,  199. 


Affect,  190. 

Affection,  ]99. 

Aforesaid,  203. 

After,  203. 

Agreed,  204. 

.Agreement,  208. 

.Aid,  209. 

Am  and  Comfort,  209. 

.Aiding  and  Assisting  Treason,  209. 

.\lcalde,  209. 

Alienate — Alienation,  209. 

All,  256. 

.\llegiance,  258. 

.\lL0T,  259. 

.Allow— Allowance,  259. 

.\LLU\^ON,  260. 

.\long,  260. 

.'.mericans,  311. 

.Amicable  Action,  311. 

.Amity,  312. 

Among,  3 IS. 

.Amount  o?  Taxes,  312, 

.Anarchist,  313. 

.\narchy,  313. 

/nd,  315. 

-And  Also,  315. 

■  NHYDRID,    315. 
.'  >^TICHRESIS,    330. 
.'  NTICIPATE,    330. 

.\ny,  330. 

.Any  One  Year,  332. 
.Apex,  332. 
App.vrEL,  332. 


Encyclopedia  of  United  States  Supreme 

Court  Reports. 


ABANDONED    AND   CAPTURED    PROPERTY. 

BY    J.     N.     CLAYBROOK. 

I.  Nature,  Object  and  Construction  of  Statute,  2. 

A.  Nature  and  Object  of  Statute,  2,  , 

B.  Construction  df  Statute,  2. 

n.  Collection  and  Sale  of  Property,  2. 

A.  Powers  of  Secretary  of  Treasury,  2.    ■ 

B.  Property  Embraced   within   Statute,   2. 

1.  Nature  and  Kind  of.  Property,  2. 

2.  ^^'hat  Constitutes  Capture,  3. 

C.  Contracts  for  Collection,  4. 

1.  \\ho  ]\Iay  Make,  4. 

2.  Necessity  of  \\'riting,  4. 

D.  Allowance  to  Collecting  Agent,  4. 

E.  Presumption  as  to  Payment  of  Proceeds  of  Sale  into  Treasury,  4. 

F.  Liability  of  Government  for  Acts  of  Agent,  5. 

G.  Liability  of  Captors  or  Agents  to  Owner,  5. 

H.  Approval  of  Accounts  of  Agent  Engaged  in  Collection  and  Sale,  5. 

III.   Recovery    of    Proceeds     by    Loyal    Owners    after    Suppression    of 
War,  5. 

A.  Right  to  Recover,  5. 

1.  Who  May  Sue,  5. 

a.  As  Dependent  on  Title  or  Ownership,  5. 

b.  Right  of  Aliens  to  Recover,  7. 

c.  Right  of  Corporation  Created  by  Rebel  State  during  War  to 

Recover,  7. 

2.  Loyalty  of  Claimant,  7. 

a.  Necessity   for  Claimant  to  Have  Been  Loyal  d'lring  War,  7. 

b.  Loyalty  of  Person  fronj  Whom  Title  Derived.  7. 

c.  What  Constitutes   Disloyalty.  8. 

d.  Pardon  as  Dispensing  with  Proof  of  Loyalty,  8. 

3.  Title  Acquired  Contrary  to  Law.  9. 

4.  Waiver  of  Right  by  Failure  to  Plead  Claim  as  Set-Off.  10. 

B.  Proceedings  to  Recover,  10. 

1.  Jurisdiction,  10. 

2.  Time  of  Bringing  Action,  10. 

3.  Counterclaim,  10. 

4.  Competency  of  Witnesses,   11. 

5.  Judgment.    11. 

6.  Appeal,  11. 

CROSS  REFERENCES. 

See  the  titles  Aliens;  Confederate  States;  Limitation  oe  Actions;  Par- 
don; Principal  and  Agent;  Public  Officers;  Statutes;  Treason;  War. 


2  ABANDONED  AND  CAPTURED  PROPERTY. 

I.   Nature,  Object  and  Construction  of  Statute. 

A.  Nature  and  Object  of  Statute. — The  abandoned  and  captured  property 
act  authorized  the  secretary  of  the  treasury  to  appoint  special  agents  to  receive 
and  collect  all  abandoned  or  captured  property  in  insurrectionary  states,  the 
property  to  be  sold  and  the  proceeds  paid  into  the  treasury,  books  of  account  to 
be  kept  showing  from  whom  the  property  was  received,  the  cost  of  transportation, 
and  the  proceeds  of  the  sale,  and  further  provided  that  persons  claiming  to  be  the 
owners  of  such  property  might  within  tv/o  years  after  the  suppression  of  the 
rebellion  recover  the  proceeds  thereof,  in  a  proceeding  instituted  in  the  court  of 
claims,  on  proof  of  ownership  of  the  property,  and  that  they  had  never  given  any 
aid   or   comfort   to   the  rebellion. ^ 

B.  Construction  of  Statute. — The  abandoned  and  captured  property  act 
is  remedial  in  its  nature  and  requires  such  a  liberal  construction  as  will  give  effect 
to  the  beneficient  intention  of  congress. 2 

■  11.    Collection  and  Sale  of  Property. 

I  A.  Powers  of  Secretary  of  Treasury. — The  entire  administration  of  the 
system  devised  by  congress  for  the  collection  of  adandoned  and  captured  prop- 
erty, within  the  insurrectionary  districts,  and  its  sale  thereafter,  was  committed 
to  the  secretary  of  the  treasury,  and  upon  him  alone  was  imposed  the  responsi- 
bility, in  the  first  instance,  of  making  rules  and  regulations  for  the  "proper  and 
economical  execution"  of  the  statutes  in  question,  through  agents  whom  he  should 
designate.^ 

B.  Property  Embraced  within  Statute — 1.  Nature  and  Kind  of  Prop- 
erty.— The   abandoned   and   captured   property  act   applied  to   private   property 


1.  Nature  and  purpose  of  abandoned  and 
captured  property  act. — United  States  v. 
Anderson,  9  Wall.  56,  65,  19  L.  Ed.  615; 
Briggs    V.    United    States,    143    U.    S.    346, 

357,  36  L.  Ed.  180;  United  States  v.  John- 
ston, 124  U.  S.  236,  250,  31  L-  Ed.  389, 
United  States  v.  Klein,  13  Wall.  128,  20 
L  Ed.  519;  New  Orleans,  etc.,  Mail  Co.  ■y. 
Flanders,  12  Wall.  130,  132,  20  L.  Ed.  249; 
Mrs.  Alexander's  Cotton,  2  Wall.  404.  17  L. 
Ed.  915;  Spratt  v.  United  States,  20  Wall. 
459,  22  L.  Ed.  371;  Haycraft  v.  United 
States,  22  Wall.  81,  22  L.  Ed.  738;  Lamar 
V.  McCuIloch,  115  U.  S.  163,  182,  29  L.  Ed. 
366;  United  States  v.  Padelford,  9  Wall. 
531,  53^  19  L.  Ed.  788;  United  States  v. 
Crnsell,  14  Wall.  1,  20  L.  Ed.  8^1;  Lamar 
V  Browne,  92  U.  S.  187.  193,  23  L.  Ed.  650; 
Briggs    V.    United    States,    143    U.    S.    346, 

358,  36  L.  Ed.  180.  186;  Young  v.  United 
States,  97  U.  S.  39,  24  L.  Ed.  992;  Austin 
V.  United  States,  155  U.  S.  417,  424,  39 
L.   Ed.  206. 

"During  the  progress  of  the  war  it  was 
expected  that  our  forces  in  the  field  would 
capture  property,  and,  as  the  enemy  re- 
treated, that  property  would  remain  in 
the  country  without  apparent  ownership, 
which  should  be  collected  and  disposed  of. 
In  this  condition  of  things  congress  acted. 
While  providing  for  the  disposition  of 
this  captured  and  abandoned  property,  con- 
gress recognized  the  status  of  the  loyal 
southern  people,  and  distinguished  be- 
tween property  owned  by  them,  and  the 
property  of  the  disloyal.  It  was  not  re- 
quired to  do  this,  for  all  the  property  ob- 
tained in  this  manner  could,  by  proper  pro- 
ceedings,   have    been    appropriated    to    the 


necessities  of  the  war.  But  congress  did 
not  think  proper  to  do  this.  In  a  spirit 
of  liberality  it  constituted  the  government 
a  trustee  for  so  much  of  this  property 
as  belonged  to  the  faithful  southern  peo- 
ple, and  while  directing  that  all  of  it  should 
be  sold  and  its  proceeds  paid  into  the 
treasury,  gave  to  this  class  of  persons  an 
opportunity,  at  any  time  within  two  years 
after  the  suppression  of  the  rebellion,  to 
bring  their  suit  in  the  court  of  claims,  and 
establish  their  right  to  the  proceeds  of 
that  portion  of  it  which  they  owned,  re- 
quiring from  them  nothing  but  proof  of 
loyalty  and  ownership."  United  States  v. 
Anderson,   9    Wall.    56,   65,   19    L.    Ed.    615. 

By  the  seizure  the  government  consti- 
tuted itself  a  trustee  for  those  who  were 
entitled  or  whom  it  should  thereafter 
recognize  as  entitled.  United  States  v. 
Klein,  13  Wall.  128,  20  L.  Ed.  519;  United 
States  V.  Padelford,  9  Wall.  531,  19  L.  Ed. 
788;  Austin  v.  United  States,  155  U.  S. 
417,  424,  39  L.   Ed.  206. 

The  general  policy  of  the  act  was  to 
preserve,  for  loyal  owners  obliged  by  cir- 
cumstances to  remain  in  rebel  states,  all 
property  or  its  proceeds  which  had  come 
to  the  possession  or  the  government  or 
its  officers.  Mrs.  Alexander's  Cotton,  2 
Wall.  404,   17  L.    Ed.  915. 

2.  Construction  of  act. — United  States  z;. ' 
Anderson,  9  Wall.  56,  19  L.  Ed.  615;  United 
States  V.  Padelford,  9  Wall.  531.  538,  19  L. 
Ed.   788.     See,   generally,   the  title   STAT- 
UTES. 

3.  Powers  of  secretary  of  treasury. — ■ 
United  States  v.  Johnston,  124  U.  S.  236, 
250,   31    L.    Ed.    389. 


ABANDONED  AND  CAPTURED  PROPERTY.  3 

taken  by  a  treasury  agent  as  abandoned  or  captured/  property  captured  and 
sold  by  the  military  authorities,  the  proceeds  of  which  were  paid  into  the  treas- 
ury,-'5  and  to  property  seized  by  the  naval  forces  upon  land,**  or  inland  watersJ 
But  the  act  does  not  apply  to  property  which  has  been  used  in  waging  or  carry- 
ing on  war  against  the  United  States.^  Cotton  in  the  southern  rebel  districts  was 
held  to  be  subject  to  capture  during  the  war.^ 

2.    What  Constitutes  Capture.— Captured  property  is  that  which  is  seized 


4.  Private  property  taken  by  treasury 
agent  as  abandoned  or  captured. — Lamar 
V.  McCulloch,  115  U.  S.  163,  186,  29  L. 
Ed.  366. 

5.  Property  captured  and  sold  and  pro- 
ceeds paid  into  treasury. — United  States 
V.    Pugh,   99    U.    S.   265,   25    L.    Ed.    322. 

The  act  of  March  12,  1863  (12  Stat. 
S20),  relative  to  abandoned  and  captured 
property,  as  extended  by  the  act  of  July 
2,  1864  (13  Stat.  375),  authorizes  the  re- 
covery in  the  court  of  claims  of  the  pro- 
ceeds of  property  captured  and,  without 
judicial  condemnation,  sold  by  the  military 
authorities  after  July  17.  1862,  and  before 
March  12,  1863,  if  such  proceeds  were  ac- 
counted for  and  credited  by  the  secretary 
ef  the  treasury  to  the  abandoned  and  cap- 
tured property  fund.  United  States  v. 
Pugh,  99  U.   S.  265,  25  L.  Ed.   322. 

The  capture  of  movable  property  on 
land  changes  the  ownership  of  it  without 
adjudication.  Lamar  v.  Browne,  92  U.  S. 
187,  23  L.   Ed.  650. 

6.  Seizure  by  naval  force  on  land. — Mrs. 
Alexander's  Cotton,  2  Wall.  404.  17  L.  Ed. 
915. 

Property  captured  on  land  by  the  of- 
ficers and  crews  of  a  naval  force  of  the 
United  States,  is  not  "maritime  prize;" 
even  though,  like  cotton,  it  may  have 
been  a  proper  subject  of  capture  generally, 
as  an  element  of  strength  to  the  enemy. 
Under  the  act  of  congress  of  March  12th, 
1863,  such  property  captured  during  the 
rebellion  should  be  turned  over  to  the 
treasury  department,  by  it  to  be  sold, 
and  the  proceeds  deposited  in  the  national 
treasury,  so  that  any  person  asserting 
ownership  of  it  may  prefer  his  claim  in 
the  court  of  claims  under  the  said  act; 
and  on  making  proof  to  the  satisfaction 
of  that  tribunal  that  he  has  never  given  aid 
or  comfort  to  the  rebellion,  have  a  return  of 
the  net  proceeds  decreed  to  him.  Mrs. 
Alexander's  Cotton,  3  Wall.  404.  17  L. 
Ed.  915. 

7.  Seizure  by  naval  force  on  inland 
waters. — ^^Irs.  Alexander's  Cotton.  2  Wall. 
404,  ^22,  17  L.  Ed.  915;  The  Cotton  Plant, 
10   Wall.    577,    19   L.    Ed.    983. 

Congress  probably  anticipated,  espe- 
cially in  view  of  the  state  of  the  war  when 
the  act  was  passed,  that  most  of  the  cap- 
tures on  the  rivers  would  be  made  by  the 
army,  and  thought  it  unwise  to  continue 
two  modes  for  the  disposition  of  the  prop- 
erty taken.  The  Cotton  Plant,  10  Wall. 
577.  582,  19  L.  Ed.  983. 

What  are  captures  on  inland  waters. — 
A  capture  made  within  the  state  of  North 


Carolina  on  the  Roanoke  River,  130  miles 
from  its  mouth,  by  a  naval  force  detached 
from  two  steamers  that  had  proceeded  up 
the  river,  one  about  80  miles  and  the 
other  about  100,  where  they  stopped  in 
consequence  of  the  crookedness  of  the 
stream  and  apprehensions  of  low  water, 
held  to  be  a  capture  upon  "inland  waters" 
of  the  United  States,  as  that  phrase  is 
used  in  the  act  of  congress  of  July  2,  1864 
(13  Stat,  at  Large  377),  and  therefore  not 
to  be  regarded  as  maritime  prize.  The 
Cotton  Plant,  10  Wall.  577,   19  L.  Ed.  983. 

8.  Property  used  in  war  against  United 
States. — Slawson  c'.  United  States,  16  Wall 
310,  21   L.   Ed.  356. 

Under  the  proviso  to  the  first  section 
of  the  abandoned  and  captured  property 
act,  excluding  from  its  benefits  property 
which  "has  been  used  in  waging  or  carry- 
ing on  war  against  the  United  States," 
the  court  of  claims  was  held  to  have 
rightly  dismissed  a  petition  asking  for  the 
proceeds  of  a  vessel  which  had  been  so 
used  at  Charleston,  S.  C,  though  on  the 
evacuation  of  that  place  by  the  rebels, 
the  quartermaster's  department  of  the 
navy,  in  ignorance  of  how  the  boat  had 
been  used,  chartered  her  and  took  her  into 
the  service  of  the  government,  and  kept 
her  in  such  service  for  twelve  months, 
when  disregarding  the  claims  of  her  owner 
it  turned  her  over  to  the  treasury  depart- 
ment for  sale  as  captured  property.  Slaw- 
son V.  United  States,  16  Wall.  310,  21  L. 
Ed.    356. 

9.  Right  to  seize  cotton. — Cotton  in  the 
southern  rebel  districts — constituting  as  it 
did  the  chief  reliance  of  the  rebels  for 
means  to  purchase  munitions  of  war,  an 
element  of  strength  to  the  rebellion — was 
a  proper  subject  of  capture  by  the  govern- 
rnent  during  the  rebellion  on  general  prin- 
ciples of  public  law  relating  to  war,  though 
private  property;  and  the  legislation  of 
congress  during  the  rebellion  authorized 
such  captures.  Mrs.  Alexander's  Cotton, 
2  Wall.  404,  17  L.  Ed.  915;  United  States 
V.  Padelford,  9  Wall.  531,  540.  19  L.  Ed. 
788;  Haycroft  v.  United  States,  22  Wall. 
81,  22  L.  Ed.  738;  Lamar  v.  Browne,  93 
U.  S.  187,  194,  23  L.  Ed.  650;  Young  v. 
United.  States,  97  U.  S.   39.   24  L.   Ed.  992. 

Cotton  owned  by  a  Bridish  subject,  al- 
though he  never  came  to  this  country,  was, 
if  found  during  the  rebellion  within  the 
confederate  territory,  a  legitimate  subject 
of  capture  by  the  forces  of  the  United 
States,  and  the  title  thereto  was  trans- 
ferred  to   the   government   as   soon   as   the 


4  ABANDONED  AND  CAPTURED  PROPERTY. 

or  taken  from  hostile  possession  of  a  military  or  naval  force. i*^  Property  can- 
not be  considered  as  captured  before  actual  seizure. ^^  Rights  of  possession  in 
private  property  are  not  disturbed  by  the  capture  of  a  district  of  country,  or  of 
a  city  or  town,  until  the  captor  signifies  by  some  declaration  or  act,  and,  gener- 
ally, by  actual  seizure,  his  determination  to  regard  a  particular  description  of 
property  as  not  entitled  to  the  immunity  usually  conceded  in  conformity  with  the 
humane  maxims  of  public  law.^- 

C.  Contracts  for  Collection — 1.  Who  May  Make. — The  regulations  of  the 
treasury  department  for  the  collection  of  abandoned  and  captured  property  giv- 
ing a  supervising  special  agent  power  to  make  contracts  for  the  collection  and 
delivery  of  such  property  did  not  give  an  assistant  special  agent  authority  to 
make  such  a  contract. ^-^ 

2.  Necessity  of  Writing. — The  regulations  of  the  treasury  department  for 
the  collection  of  abandoned  and  captured  property  provided  that  supervising  spe- 
cial agents  might  enter  into  contracts  in  writing  for  the  collection  and  delivery  of 
such  property,  and  an  oral  contract  was  not  binding  upon  the  government,  i"* 

D.  Allowance  to  Collecting  Agent. — Supervising  special  agents  for  the  col- 
lection and  delivery  of  abandoned  and  captured  property  could  not  allow  an  as- 
sistant special  agent  more  than  twenty-five  per  cent,  of  the  value  of  the  property. 
They  could  recommend  an  allowance  of  more  than  that  amount,  but  this  must 
have  been  approved  by  the  secretary  of  war.^^ 

E.  Presumption  as  to  Payment  of  Proceeds  of  Sale  into  Treasury. — 
Where   the  property  has  been  collected  and   sold,  it   will   be  presumed  that  the 


proper'iy  was  reduced  to  firm  possession. 
Young  V.  United  States,  97  U.  S.  39,  24 
L.    Ed.    992. 

Notwithstanding  active  hostilities  had 
ceased  in  Georgia,  cotton,  although  private 
property,  seized  there  by  the  military 
forces  of  the  United  States,  in  obedience 
to  an  order  of  the  commanding  general, 
during  their  occupation  and  actual  gov- 
ernment of  that  state,  was  taken  from  hos- 
tile possession  within  the  meaning  of  that 
term,  and  was,  without  regard  to  the 
status  of  the  owner,  a  legitimate  subject 
of  capture.  Lamar  v.  Browne,  92  U.  S. 
187,  23  L.  Ed.  6.50. 

10.  Captured  property  defined. — United 
States  V.  Padelford,  9  Wall.  .531,  540,  19 
L.  Ed.  788,  dissenting  opinion  of  Field, 
J.,  in  Lamar  v.  Browne,  92  U.  S.  187,  23 
L.  Ed.  650. 

As  early  as  the  3d  of  July,  1863,  the 
secretary  of  the  treasury  in  a  circular  let- 
ter of  instructions  addressed  to  the  su- 
pervising special  agents  of  the  department, 
charged  with  the  duty  of  collecting  aban- 
doned and  captured  property  under  the 
act  of  March  12th,  1863,  defined  captured 
property  as  property  "which  had  been 
seized  or  taken  from  hostile  possession  by 
the  military  and  naval  forces  of  the  United 
States."  This  definition  must  be  taken  as 
the  interpretation  practically  given  to  the 
act  by  the  department  of  the  government 
charged  with  its  execution.  United  States 
V.  Padelford,  9  Wall.  531.  540,  19  L.  Ed.  788. 

Property  is  captured  on  land  when 
seized  or  taken  from  hostile  possession  by 
military  forces  under  orders  from  a  com- 
manding officer.  Lamar  v.  Browne,  92 
U.  S.  187,  193,  23  L.  Ed.  650;  United  States 


V.    Padelford,   9   Wall.    531,   540,    19   L.    Ed. 
788. 

11.  Seizure  necessary  to  constitute  cap- 
ture.—United  States  V.  Padelford,  9  Wall. 
531,  5^0,  19  L.  Ed.  788. 

12.  Seizure  of  town,  district  or  country 
not  a  capture  of  property  there  s-tnate. — 
United  States  v.  Padelford.  9  Wall.  531, 
19  L.  Ed.  788. 

Taking  possession  of  a  city  by  the  na- 
tional forces  was  not,  of  itself,  and  without 
some  actual  seizure  of  it  in  obedience  to 
the  orders  of  the  commanding  general,  a 
capture,  within  the  meaning  of  the  act, 
of  the  cotton  which  happened  to  be  in  the 
city  at  the  time  of  the  entry  of  the  forces. 
United  States  v.  Padelford,  9  Wall.  531,. 
19  L.  Ed.  788. 

13.  Power  of  assistant  agent  to  con- 
tract for  collection  of  property.— Camp  v. 
United  States,  113  U.  S.  648,  28  L.  Ed. 
1081. 

An  assistant  special  agent  of  the  treas- 
ury department  has  no  authority  to  bind 
the  United  States  by  contract,  to  repay 
the  expenses  of  transporting,  repm'ring, 
etc.,  abandoned  or  captured  cotton.  White- 
side V.  United  States,  93  U.  S.  247,  23  L. 
Ed.  882. 

The  supervising  special  agent  could  not 
ratify  a  contract  which  he  had  no  power 
to  make.  Whiteside  v.  United  States,  93 
U.   S.  247.  253,  23   L.   Ed.  882. 

14.  Writing  necessary. — Camp  v.  United 
States,  113  U.  S.  648,  28  L.  Ed.  1081; 
Whiteside  v.  United  States,  93  U.  S.  247. 
23  L.  Ed.  882. 

15.  Allowance  to  collecting  agents. — 
Whiteside  v.  United  States,  93  U.  S.  247» 
250,  23  L.   Ed.  882. 


ABANDONED  AND  CAPTURED  PROPERTY.  5 

agents  paid  the  proceeds  into  the  treasury  as  required  by  the  statute. ^^ 

F.  Liability  of  Government  for  Acts  of  Agent. — The  government  was  not 
bound  by  the  act  or  declaration  of  an  agent  engaged  in  the  collection  of  abandoned 
and  captured  property  unless  it  manifestly  appears  that  he  acted  within  the  scope 
of  his  authority,  or  was  employed  in  his  capacity  as  a  public  agent  to  do  the  act  or 
make  the  declaration. ^'^ 

G.  Liability  of  Captors  or  Ag^ents  to  Owner. — Neither  the  captors,  nor 
the  special  agents  of  the  treasury  to  whom  they  delivered  the  captured  property, 
are  liable  to  the  owner  thereof  in  an  action  at  law  for  anything  by  them  done 
within  the  scope  of  their  delegated  powers.  Acting  for  the  government,  they  are 
protected  by  its  authoriy:  he  must  look  to  it,  and  not  to  them,  for  indemnity. ^^ 

H.  Approval  of  Accounts  of  Assents  EngaQfed  in  Collection  and  Sale. — 
The  approval  bv  the  secretary  of  the  treasury  of  an  account  of  expenses  in  re- 
lation to  the  collection  and  sale  of  any  particular  lot  of  captured  and  abandoned 
property  should  be  deemed  conclusive  evidence  that  such  expenses  were  proper 
and  necessary,  unless  it  appeared  that  the  allowance  of  such  expenses  was  pro- 
cured by  fraud,  or  that  the  expenses  were  incurred  in  violation  of  some  positive 
statute,  or  of  public  policy.^'' 

III.   Recovery  of  Proceeds  by  Loyal  Owners  after  Suppression  of  War. 

A.  Ri^ht  to  Eecover — 1.  Who  May  Sue; — a.  As  Dependent  on  Title  or 
Ownership. — It  is  only  he  who  can  claim  as  an  owner  of  the  property  captured 
or  abandoned  and  can  prove  such  ownership,  who  is  permitted  to  sue  and  re- 
cover.^^  And  the  ownership  required  in  order  to  entitle  a  person  to  claim  is 
that  existing  at  the  time  of  the  capture. ^i     An  executory  contract  for  the  sale  of 


16.  Presumption  of  payment  into  treas- 
ury.—United  vStates  V.  Crusell,  14  Wall.  1, 
20  L.  Fd.  821.  See,  eenerally.  the  titles 
PRESUMPTIONS  AND  BURDEN  OF 
PROOF;  PUBLIC  OFFICERS. 

In  United  States  v.  Crusell,  14  Wall.  1, 
20  L.  Ed.  821,  a  judprment  of  the 
court  of  claims  giving  a  loyal  owner  the 
proceeds  of  cotton  seized  under  the  aban- 
doned and  captured  property  act  was  af- 
firmed, the  case  tending  generally,  though 
not  in  the  most  specific  manner,  to  show 
that  the  cotton  had  been  sold  and  its  pro- 
ceeds paid  into  the  treasury,  and  an  op- 
posite conclusion  being  irreconcilable  with 
the  presumption  that  the  military  and 
fiscal  officers  of  the  United  States  had 
done  their  official  duty. 

17.  Liability  of  government  for  acts  of 
agent. — Whiteside  f.  United  States,  93  U. 
S.  247,  23   L.   Ed.  882. 

18.  Liability  of  captors  or  government 
agents  to  owner. — Lamar  v.  Browne,  92  U. 
S.  187,  23  L.  Ed.  6.50. 

19.  Effect  of  approval  of  agent's  account 
by  secretary. — United  States  v.  Johnston, 
124  U  S.  236,  2.50.  31  L.  Ed.  389.  See,  gen- 
erally, the  title  PRINCIPAL  AND 
AGENT. 

"It  would  be  an  exceedingly  dangerous 
doctrine  that  settled  accounts  where  the 
United  States  had  acted  on  the  settlement 
and  paid  the  balance  found  due  on  the 
basis  of  that  settlement,  could  be  opened 
or  set  aside,  merely  because  some  of  the 
prescribed  steps  in  the  accounting  which 
it  was  the  duty  of  a  head  of  a  department 
to   see  had  been  taken,  had  been  in  fact 


omitted;  or,  if  they  could  be  so  opened  and 
set  aside  on  account  of  technical  irregu- 
larities in  the  allowance  of  expenses  years 
afterwards,  when  the  remedy  of  the  party 
against  the  United  States  is  barred  by  the 
statute  of  limitations,  and  the  remedies 
of  the  United  States  on  the  other  side  are 
intact,  owing  to  its  not  being  subject  to 
any  act  of  limitation."  United  States  v. 
Johnston,  124  U.  S.  236,  254,  31  L.  Ed.  389. 

Prior  to  the  joint  resolution  of  March  31, 
18C8,  the  secretary  of  the  treasury  settled 
accounts  with  agents  who  had  collected 
abandoned  and  captured  property,  and  that 
act,  which  provided  that  in  the  future  such 
money  should  be  actually  paid  into  the 
treasury,  did  not  intend  to  disturb  settle- 
ments previously  made  by  the  secretary. 
United  States  v.  Johnston,  124  U.  S.  236, 
252.  31    L.   Ed.  389. 

Approval  cf  accounts  procured  by  fraud. 
— The  approval  bv  the  secretary  of  the 
treasury  of  an  agent's  account  of  expenses 
in  the  collection  and  sale  of  captured  and 
abandoned  property  would  not  be  con- 
clusive, if  it  appeared  either  that  such  ap- 
proval was  procured  by  fraud,  or  that  such 
expenses  were  incurred  in  violation  of 
some  nnsitive  statute,  or  in  contravention 
of  public  policy.  United  States  v.  John- 
ston, 124  U.  S.  "236,  253,  31   L.   Ed.  389. 

20.  Owner. — United  States  v.  Gilb's,  95 
U.  S.  407,  24  L.  Ed.  503;  Carroll  v.  United 
States,  13  Wall.  151.  20  L.  Ed.  565;  Elgee 
Cotton  Cases,  22  Wall.  180,  22  L.  Ed. 
863. 

21.  Ownership  must  hnve  existed  at 
time   of   capture. — United   States   v.    Gillis, 


ABANDONED  AND  CAPTURED  PROPERTY. 


the  property  made  before  its  capture,  does  not  deprive  the  original  owner  of  the 
rio-ht  to  claim  nor  confer  a  right  to  claim  upon  the  prospective  purchasers,22 
And  the  personal  representative  of  a  deceased  person  in  whose  possession  the 
property  was  at  the  time  of  the  capture  is  the  owner  within  the  meaning  of  the 
statute. -2  But  neither  the  assignee  for  the  claim  of  the  proceeds  of  captured  or 
abandoned  property,^*  nor  a  factor  who  has  made  advances  on  the  property,  there 
beino-  another  person  who  has  the  legal  interest  in  the  proceeds,^^  is  to  be  regarded 


95  U.  S.  407,  24  L.  Ed.  503;  Carroll  v. 
United  States,  13  Wall.  151,  20  L.  Ed.  565; 
Elgee  Cotton  Cases,  22  Wall.  180,  22  L. 
Ed.  863. 

22.  Effect  of  executory  contract  for  sale 
of  property.— Elgee  Cotton  Cases,  22  Wall. 
180,  22  L.  Ed.  863. 

On  the  31st  of  July,  1863,  during  the  late 
rebellion,  E.  and  C,  owning  certain  crops 
of  cotton  in  Wilkinson  County,  Mississippi, 
executed  a  paper  thus:  "We  have,  this 
31st  of  July,  1863,  sold  unto  Mr.  L.  our 
crops  of  cotton,  now  lying  in  the  county 
aforesaid,  numbering  about  2100  bales,  at 
the  price  of  ten  cents  per  pound,  currency, 
the  said  cotton  to  be  delivered  at  the  land- 
ing of  Fort  Adams,  and  to  be  paid  for 
when  weighed.  Mr.  L.  agreeing  to  furnish 
at  his  cost  the  bagging,  rope,  and  twine 
necessary  to  bale  the  cotton  unginned,  and 
we  do  acknowledge  to  have  received,  in 
order  to  confirm  this  contract,  the  sum  of 
thirty  dollars.  This  cotton  mhII  be  re- 
ceived and  shipped  by  the  house  of  D.  & 
Co.,  New  Orleans,  and  from  this  date  is  at 
the  risk  of  Mr.  L,.  This  cotton  is  said  to 
have  weighed  an  average  of  500  lbs.  when 
baled."  At  the  time  of  making  the  con- 
tract, the  cotton  baled  was  stored  under 
a  covering  of  boards,  and  a  small  part  of 
the  cotton  (about  twenty  bales)  not  baled, 
was  in  the  gin  house  on  the  Buffalo  Bayou, 
about  ten  miles  from  the  ]\Iississjppi  River, 
at  a  place  known  as  "The  Rocks,"  or  "Fel- 
ter's  Plantation,"  then  without  the  federal 
military  lines;  and  G.  and  L.  were  to- 
gether there.  Immediately  after  the  sale 
L.  employed  a  person,  living  near  where 
the  cotton  was  stored,  to  watch  and  take 
care  of  the  same,  and  paid  him  therefor, 
and  this  person  continued  his  care  of  it 
till  it  was  taken  possession  of  in  the  name 
of  the  United  States.  Held,  that  the  paper 
of  the  31st  of  July,  1863,  was  executory 
only  and  had  not  divested  E.  and  C.  of 
their  property  in  the  cotton;  no  money  but 
the  thirty  dollars  having  been  paid,  and 
nothing  else  done  in  execution  of  the  con- 
tract; and  that  in  a  suit  for  the  proceeds 
of  it  under  the  captured  and  abandoned 
property  act,  which  gives  to  the  "owner"  a 
right  to  recover,  under  certain  circum- 
stances, property  captured  or  abandoned 
during  the  late  civil  war,  they  alone  could 
sue.  Elgee  Cotton  Cases,  22  Wall.  180, 
22  L.   Ed.  863. 

The  same  E.  and  C.  (or  rather  E.  alone, 
who  had  now  become  sole  owner  of  the 
cotton)  subsequently  to  the  above  quoted 
contract  with  L.,  made  another  contract 
with  N.   (he  not  having  notice  of  the  first 


contract),  by  which  E.  contracted  for  the 
sale  to  N.  "for  so  much  of  the  2100  bales 
as  N.  should  get  out  in  safety  to  a  market, 
for  the  price  of  £15  per  bale,  to  be  paid  at 
Liverpool.  The  risk  of  the  cotton  to  be 
on  the  vendors."  Held,  equally,  but  as  a 
matter  even  more  plain  than  in  the  former 
case,  that  no  property  passed  by  the  con- 
tract; no  cotton  ever  having  been  got  out. 
Held,  further,  that  this  was  not  altered  by 
a  letter  in  these  words  from  the  owners 
of  the  cotton:  "It  having  been  agreed  on 
between  you  and  myself  that  I  sell  to  you 
all  the  cotton  of  E.  and  C.  now  baled  and 
under  shed,  for  the  price  £15  per  bale,  to 
be  paid  in  Liverpool.  The  risk  of  the  cot- 
ton to  be  on  the  vendors."  Held,  equally, 
but  as  a  matter  even  mor^;  plain  than  in  the 
former  case,  that  no  property  passed  by 
the  contract;  no  cotton  ever  having  been 
got  out.  Held,  further,  that  this  was  not 
altered  by  a  letter  in  these  words  from  the 
owners  of  the  cotton:  "It  having  been 
agreed  on  between  you  and  myself  that  I 
sell  to  you  all  the  cotton  of  E.  and  C.  now 
baled  and  under  shed,  for  the  price  of  £15 
sterling  per  bale,  payable  in  Liverpool, 
you  will  cause  the  same  to  be  placed  to 
my  credit  with  J.  A.  J.  &  Co.,  of  Liver- 
pool." Elgee  Cotton  Cases,  22  Wall.  180, 
22  L.  Ed.  863.  See,  generally,  the  title 
SALES. 

23.  Personal  representatives  of  deceased 
owner. — Carroll  v.  United  States,  13  Wall. 
151,  20  L.  Ed.  565;  United  States  v.  Vil- 
lalonga,  23  Wall.  35,  45,  23  L.  Ed.  64. 
See,  generally,  the  titles  EXECUTORS 
AND  ADMINISTRATORS. 

24.  Assignee. — United  States  v.  Gillis,  95 
U.  S.  407,  24  L.  Ed.  .-.03.  See,  generally,  the 
title  ASSIGNMENTS. 

Claims  for  the  proceeds  of  captured  and 
abandoned  property  cannot  be  assigned 
so  as  to  give  the  assignee  a  standing  in  the 
court  of  claims.  United  States  v.  Gillis, 
95  U.  S.  407,  24  L.  Ed.  503. 

25.  Factor  who  has  made  advances  on 
property. — United  States  <•'.  Villalonga,  23 
Wall.  35,  23  L.  Ed.  64.  See.  also.  Glover  t;. 
United  States,  164  U.  S.  294,  301,  41  L.  Ed. 
440.  See  the  title  FACTORS  AND 
COMMISSION  MERCHANTS. 

Plainly  it  was  the  intention  of  congress, 
manifested  in  the  statute,  that  no  person 
should  be  permitted  to  recover  out  of  the 
treasury  any  of  the  proceeds  of  sale  of  the 
property  captured  or  abandoned,  except 
those  who  had  given  no  aid  or  comfort  to 
the  rebellion.  But  if  a  factor  who  has 
made  advances,  no  matter  how  small,  may 
recover  the  entire  proceeds  of  a  consign- 


ABANDONED  AND  CAPTURED  PROPERTY. 


as  the  owner  so  as  to  be  entitled  to  maintain  an  action  in  the  court  of  claims 
for   the   proceeds   of   abandoned    and    captured    properly. 

b.  Right  of  Aliens  to  Recover. — Citizens  or  subjects  of  foreign  governments 
whose  government  accords  to  our  citizens  the  right  to  prosecute  claims  against 
such  governments  in  their  courts,  are  entitled  to  prosecute  claims  against  the 
government  of  the  United  States,  and  since  citizens  of  the  Uniled  States  may 
prosecute  claims  against  the  government  of  Great  Britain  by  petition  of  right, 
subjects  of  Great  Britain  are  entitled  to  sue  in  the  court  of  claims  under  the  aban- 
doned   and   captured   property   act.^*^ 

c.  Right  of  Corporation  Created  by  Rebel  State  duying  War  to  Recover. — Cor- 
porations created  by  the  legislature  of  a  rebel  state  while  the  state  was  in  armed 
rebellion  against  the  government  of  the  United  States,  if  the  acts  of  incorpora- 
tion had  no  relation  to  anything  else  than  the  domestic  concerns  of  the  state, 
and  they  were  neither  in  their  apparent  purpose  nor  in  their  operation  hostile  to 
the  imion  or  in  conflict  with  the  constitution,  may  in  proper  cases  sue  under  the 
captured   and  abandoned  property  act.-" 

2.  Loyalty  of  Claimant. — a.  Necessity  for  Claimant  to  Have  Been  Loyal 
during  War. — In  order  for  a  person  to  be  entitled  to  claim  the  proceeds  of  prop- 
erty seized  under  the  abandoned  and  captured  property  act,  it  is  necessary  that  he 
prove  that  he  did  not  give  aid  or  comfort  to  the  rebellion. ^^  And  this  rule  is  ap- 
plicable as  well  to  aliens  as  to  citizens. ^9 

b.  Loyalty  of  Person  from  Whom  Title  Derived. — The  claimant  is  not  re- 
quired to  show  the  loyalty  of  the  person  from  whom  he  derived  title.-^^ 


ment  made  to  him,  not  only  what  he  has 
advanced,  but  the  share  of  his  principal, 
the  intention  of  the  law  may  be  wholly 
defeated.  He  inay  have  received  consign- 
ments from  persons  most  active  in  promot- 
ing the  rebellion,  and  he  may  have  ad- 
vanced only  one  dollar  on  each  bale  of 
cotton  consigned.  If,  now,  he  can  re- 
cover the  entire  net  proceeds  of  the  sale 
of  such  cotton  paid  into  the  treasury,  his 
consignors,  through  him,  using  him  as  a 
cover,  escape  entirely  from  the  operation 
of  the  provision  of  the  statute — that  no  one 
shall  have  a  standing  in  the  court  of 
claims  who  has  given  aid  and  comfort  to 
the  rebellion.  A  construction  of  the  law 
which  admits  of  such  a  consequence  cannot 
be  correct.  The  intention  of  congress  is 
not  thus  to  be  evaded."  United  States  z'. 
Villalonga,   23   Wall.   35.   44,  23   L.    Ed.   64. 

If  a  factor  could  claim,  a  debtor  could 
defeat  a  set-off  by  consigning  to  factor 
and  getting  him  to  sue,  and  thus  defeat 
the  act  of  March  3,  1863,  amending  the  act 
establishing  the  court  of  claims,  providing 
for  set-ofT  and  counterclaim  in  such  pro- 
ceedings. United  States  z'.  Villalonga,  23 
Wall.  35,  23  L.  Ed.   64. 

26.  Citizens  of  foreign  government. — 
United  States  Z'.  O'Keefe,  11  Wall.  178, 
20  L.  Ed.  131;  Carlisle  z:  United  States,  16 
Wall.  147,  148,  21  L.  Ed.  426;  Young  r. 
United  States,  97  U.  S.  39,  24  L.   Ed.  992. 

By  the  proceeding  known  as  a  "petition 
of  right,"  the  government  of  Great  Brit- 
ain accords  to  citizens  of  the  United  States 
the  right  to  prosecute  against  that  gov- 
ernment in  its  courts,  and  therefore 
British  subjects,  if  otherwise  entitled,  may, 
under  the  act  of  congress  of  July  27th, 
1868.  prosecute  claims  a.2:ainst  the  United 
States  in   the  court  of  claims.     Carlisle  v. 


United    States,    16    Wall.    147.    148,    21    L- 
Ed.   426.     See   the   title   ALIENS. 

27.  Corporations  created  by  rebel  state 
during  war. — United  States  z'.  Insurance 
Cos.,  22   Wall.  99,  22   L.   Ed.   816. 

28.  Claimant  must  not  have  given  aid  to 
rebellion. — United  States  z:  Anderson,  9 
Wall.  56,  65,  19  L.  Ed.  615;  United  States 
z:  Padelford,  9  Wall.  531,  19  L.  Ed.  788; 
Carrol  v.  United  States,  13  Wall.  151,  20 
L.  Ed.  565;  Sprott  v.  United  States,  20 
Wall.  459,  22  L.  Ed.  371;  Carlisle  z\  United 
States,  16  Wall.  147,  21  L.  Ed.  426;  Mrs. 
Alexander's  Cotton,  2  Wall.  404,  17  L.  Ed. 
915;  Haycraft  v.  United  States,  22  Wall.  81. 
22  L.  Ed.  738;  Elgee  Cotton  Cases.  22 
Wall.  180,  22  L.  Ed.  863;  United  States  v. 
Gillis,   95   U.    S.    407,   417,   24    L.    Ed.    503. 

29.  Necessity  for  aliens  not  to  have 
given  aid  or  comfort  to  r;bellion. — Car- 
lisle v.  United  States.  16  Wall.  147,  148, 
21  L.  Ed.  426:  Young  z'.  United  States, 
97  U.   S.   39.  24   L.    Ed.   992. 

Aliens  domiciled  in  the  United  States 
owe  a  local  and  temporary  allegiance  to 
the  government  of  the  United  States:  they 
are  bound  to  obey  all  the  laws  of  th*' 
country,  not  immediately  relating  to  citi- 
zenship, during  their  residence  in  it,  and 
are  equally  amenable  with  citizens  for  any 
infraction  of  those  laws.  Those  aliens 
who,  being  domiciled  in  the  country  prior 
to  the  rebellion,  gave  aid  and  comfort  to 
the  rebellion,  were,  therefore,  subject  to 
be  prosecuted  for  violation  of  the  laws  of 
the  United  States  against  treason  and  for 
giving  aid  and  comfort  to  the  rebellion. 
Carlisle  v.  United  States,  16  Wall.  147. 
148,  21  L.  Ed.  426.  See,  generally,  the  title 
ALIENS. 

30.  Effect  of  disloyalty  of  person  from 
whom  title  derived. — United  States  v.  An- 


8 


ABANDONED  AND  CAPTURED  PROPERTY. 


c.  What  Constitutes  Disloyalty. — Proof  of  an  involuntary  act  in  aid  of  the 
rebellion  is  not  sufBcient  to  defeat  the  claimant.^i  Acting  as  surety  on  the  bonds 
of  ofificers  in  the  confederate  army,^^  furnishing  munitions  of  war  and  supplies 
to,^-^  or  purchasing  property  from,  the  confederate  government,  with  knowledge 
that  the  purchase  price  is  to  be  used  in  sustaining  the  rebellion,^*  or  selling  to  the 
government  of  the  Confederate  States  an  article  to  be  used  in  the  manufacture 
of  o-unpowder,^^  or  any  act  which  would  render  a  party  liable  to  punishment  for 
treason,3*5  are  sufficient  to  bar  a  person  from  the  right  of  claiming  under  the 
abandoned  and  captured  property  act.  But  the  fact  that  a  loyal  citizen  who  left 
the  enemy's  country  at  the  beginning  of  the  war,  carried  on  business  in  the 
enemy's  country  during  the  war,  through  an  agent,  does  not  prevent  his  re- 
covering.3^ 

d.  Pardon  as  Dispensing  zmth  Proof  of  Loyaity. — A  pardon  granted  to  per- 


derson,  9  Wall.  56,  19  L.  Ed.  615;  Carroll 
V.  United  States,  13  Wall.  151,  20  L.  Ed. 
565. 

Purchaser  need  not  prove  loyalty  of 
seller.— Under  the  act  of  March  12th,  1863, 
commonly  called  the  "abandoned  or  cap- 
tured property  act,"  it  is  not  necessary 
that  a  party  preferring  his  claim  in  the 
court  of  claims  for  the  proceeds  of  prop- 
erty taken  and  sold  under  it,  to  prove,  in 
addition  to  his  own  loyalty,  the  loyalty 
of  the  persons  from  whom  he  bought  the 
property  taken  and  sold;  the  property 
having  been  purchased  by  him  in  good 
faith,  and  without  intent  to  defraud  the 
aovernment  or  any  one  else.  United 
States  V.  Anderson,  9  Wall.  56,  19  L.  Ed. 
615. 

Administrator  may  claim,  though  de- 
cedent was  disloyal. — In  a  claim  by  an  ad- 
ministrator of  a  deceased  person,  against 
the  United  States,  under  the  abandoned 
and  captured  property  act  of  March  12th, 
1863,  which  makes  proof  that  the  owner 
never  gave  aid  or  comfort  to  the  rebellion, 
a  condition  precedent  to  recovery,  it  is 
no  bar  that  the  decedent  gave  such  aid 
or  comfort,  the  property  having  been 
taken  after  the  decedent's  death,  and  from 
the  administrator,  and  not  from  him.  The 
owner,  within  the  sense  of  the  statute, 
was  the  administratrix.  Carroll  v.  United 
States,  13  Wall.  151,  20  L.  Ed.  565. 

31.  Involuntary  aid  to  rebellion.— 
Claimants  under  the  captured  and  aban- 
doned property  act,  of  March  12th,  1863, 
are  not  deprived  of  the  benefits  of  that 
act  because  of  aid  and  comfort  not  voUm- 
tarily  given  by  them  to  the  rebellion. 
United  States  v.  Padelford,  9  Wall.  531, 
19  L.   Ed.   788. 

32.  Acting  as  surety  on  bond  of  con- 
federate officials. — Voluntarily  executing 
as  surety,  through  motives  of  personal 
friendship  to  the  principals,  the  official 
bonds  of  persons  acting  as  quartermasters 
or  as  assistant  commissaries  in  the  rebel 
army,  was  giving  aid  and  comfort  to  the 
rebellion;  although  the  principals,  by  their 
appointment  to  the  ofifices  named,  es- 
caped active  military  service,  and  were 
enabled  to  remain  at  home  in  the  dis- 
charge of  their  ofhces  respectively.   United 


States    V.    Padelford,    9    Wall.    531,    19    L. 
Ed.    788. 

33.  Furnishing  munitions  of  war  and 
supplies.- — Young  v.  United  States,  97  U. 
S.   39,   24   L.    Ed.   992. 

34.  Purchasing  property  from  confed- 
erate government. — A  purchaser  of  cotton 
from  the  Confederate  States,  who  knew 
that  the  money  he  paid  for  it  went  to 
sustain  the  rebellion,  cannot  in  the  court 
of  claims  recover  the  proceeds,  when  it 
has  been  captured  and  sold,  under  the 
captured  and  abandoned  property  act.  The 
moral  turpitude  of  the  transaction  forbids 
that  in  a  court  of  law  he  should  be  per- 
mitted to  establish  his  title  by  proof  of 
such  a  transaction.  Sprott  v.  United 
States.  20  Wall.  459.  22  L.  Ed.  371.  See, 
also,  Baldv  v.  Hunter,  171  U.  S.  388,  398, 
43  L.  Ed.  208. 

35.  Persons  manufacturing  and  selling 
saltpetre  to  Confederate  States  for  use  in 
making  powder. — Persons  engaged  in 
manufacturing  saltpetre  in  Alabama,  and 
in  selling  that  article  to  the  Confederate 
States,  knowing  that  it  was  to  be  used 
by  them  in  the  manufacture  of  gunpowder 
for  the  prosecution  of  the  war  of 
the  rebellion,  thus  gave  aid  and 
comfort  to  the  rebellion  and  are  not  en- 
titled to  claim  under  the  abandoned  and 
captured  property  act.  Carlisle  v.  United 
States,   16  Wall.   147.   21   L.   Ed.   426. 

"He  who  being  bound  by  his  allegiance 
to  a  government,  sells  goods  to  the  agent 
of  an  armed  combination  to  overthrow 
that  government,  knowing  that  the  pur- 
chaser buys  them  for  that  treasonable 
purpose,  is  himself  guilty  of  treason  or  a 
misprision  thereof."  Carlisle  v.  United 
States,  16  Wall.  147,  21  L.  Ed.  426,  cit- 
ing and  approving  Hanauer  v.  Doane,  12 
Wall.  342.  20  L.  Ed.  439.  See,  generally, 
the  title  TREASON. 

36.  Doing  other  treasonable  acts. — 
Young  v.  United  States,  97  U.  S.  39.  24  L. 
Ed.  992. 

37.  Carrying  on  business  in  enemy's 
country  by  agent. — United  States  v.  Quig- 
ley,  103  U.  S.  595,  596,  26  L.  Ed.  524. 
See.  also,  Carson  t'.  Dunham,  121  U.  S. 
421,    430,    30    L.    Ed.    992. 

In  1860,  the  claimant,  a  native  of  Geor- 


ABAXDOXED  AND  CAPTURED  PROPERTY. 


sous  who  participated  in  the  rebelHon.  gives  them  the  right  to  prosecute  a  claim 
under  the  abandoned  and  captured  property  act,^^  ^nd  this  right  is  not  affected 
by  the  repeal  of  the  statute  under  which  ihe  pardon  was  granted. ^9  An  act  pro- 
viding that  a  pardon  shall  not  operate  to  give  the  persons  pardoned  the  right  to 
claim  in  the  court  of  claims  is  unconstitutional.""^ 

3.    Title  Acquired  Contrary  to  Law. — Where  a  person  claimed  property 


gia.  was  domiciled  at  Dalton  in  that  state, 
and  doing  business  as  a  merchant.  About 
the  time  the  state  seceded  he  left  his 
home  and  his  business  and  went  to  Indi- 
ana, where  he  remained  until  the  end  of 
the  war.  Before  leaving  he  appointed  an 
agent  to  manage  for  him,-  while  he  was 
gone.  This  agent,  in  1864,  bought  for 
him,  with  moneys  collected  or  acquired  on 
his  account,  cotton  which  was  afterwards 
captured  by  the  military  forces  of  the 
United  States  at  Savannah,  and  the  pro- 
ceeds paid  into  the  treasury  under  the 
abandoned  and  captured  property  act.  It 
was  held,  that  if  the  claimant  had  re- 
mained in  Georgia  he  could  have  re- 
covered, and  that  his  right  to  recover  was 
not  lost  by  his  going  to  another  state  in  or- 
der to  avoid  being  implicated  in  a  rebel- 
lion against  his  government,  and  that  the 
conduct  of  buiness  by  his  agent  during 
his  absence  did  not  render  him  guilty  of 
trad'ng  across  the  lines  with  the  enemy. 
United  States  v.  Quiglev,  103  U.  S.  595, 
596,    26    L.    Ed.    524. 

38.  E£Fect  of  pardon. — Pargoud  v. 
United  States,  13  Wall.  156,  20  L.  Ed.  646; 
Armstrong  v.  United  States,  13  Wall.  154, 
20  L.  Ed.  614;  Carlisle  z:  United  States, 
16  Wall.  147,  148.  21  L.  Ed.  426;  United 
States  r.  Klein.  13  Wall.  128,  20  L.  Ed. 
519;  United  States  v.  Padelforcf,  9  Wall. 
531.  19  L.  Ed.  788.  See,  generally,  the 
title   PARDON. 

Pardon  to  persons  taking  oath  of  al- 
legiance.— Bj'  virtue  of  the  act  of  July 
17th,  1862.  authorizing  the  president  to 
offer  pardon  on  such  conditions  as  he 
might  think  advisable,  and  the  procla- 
mation of  December  8th,  1863,  which 
proinised  a  restoration  of  all  rights  of 
property,  except  as  to  slaves,  on  condition 
that  the  prescribed  oath  be  taken  and  kept 
inviolate,  the  persons  who  had  faithfully 
accepted  the  conditions  offered  became 
entitled  to  the  proceeds  of  their  prop- 
erty thus  paid  into  the  treasury,  on  appli- 
cation within  two  years  from  the  close 
of  the  war.  United  States  v.  Klein,  13 
Wall.    128,    20    L.    Ed.    519. 

Where  prior  to  seizure,  an  owner  of 
cotton,  who,  though  opposed  to  the  rebel- 
lion, had  given  aid  and  comfort  to  it,  but 
was  not  within  any  of  the  classes  ex- 
cepted by  the  president's  proclamation  of 
December  8th,  1863,  and  in  regard  to 
whose  property  in  the  cotton  no  rights 
of  third  persons  had  intervened — took  the 
oath  prescribed  by  that  act  and  kept  it. 
Held,  after  a  seizure  and  sale  of  the  cot- 
ton by  the  government,  that  he  was  en- 
titled   to    the    net    proceeds    as    given    to 


loyal  owners  under  the  abandoned  and 
captured  property  act.  Having  been 
p:ird(-.ned,  his  offense,  in  exi;cuuiiy  i..o 
bonds,  could  not  be  imputed  to  him.  Uni- 
ted States  V.  Padelford,  9  Wall.  531,  19 
L.  Ed.  ^SS. 

General  proclamation  granting  pardon 
and  amnesty. — The  president's  proclama- 
tion of  the  25th  of  December,  1868,  grant- 
ing "unconditionally  and  without  reserva- 
tion to  all  and  every  person  who  directly 
or  indirectly  participated  in  the  late  in- 
surrection or  rebellion,  a  full  pardon  and 
amnesty  for  the  offense  of  treason  against 
the  United  States,  etc.,  with  restoration  of 
all  rights,  privileges,  and  immunities  un- 
der the  constitution,  and  the  laws  which 
have  been  made  in  pursuance  thereof,"^ 
granted  pardon  unconditionally  and  with- 
out reserve;  and  enables  persons  other- 
wise entitled  to  recover  from  the  UnUed 
States,  the  proceeds  of  captured  and  aban- 
doned property,  under  the  abandoned  and 
captured  property  act,  to  recover  it  though 
no  proof  be  made,  as  was  required  by  that 
act,  that  the  claimant  never  gave  any  aid 
or  comfort  to  the  rebellion.  Armstrong  v. 
United  States,  13  Wall.  164,  20  L.  Ed. 
614;  Pargoud  v.  United  States,  13  Wall. 
156,  20  L.  Ed.  646;  Carlisle  V.  United 
States,  16  Wall.   147,   148,  21   L.   Ed.  423. 

The  proclamation  of  the  president  of  the 
United  States,  dated  December  35th,  1888, 
includes  aliens  domiciled  in  the  country 
who  gave  aid  and  comfort  to  the  rebellion. 
Carlisle  v.  United  States,  16  Wall,  147, 
148,  21  L.  Ed.  426.  For  a  contrary  hold- 
ing, see  Young  v.  United  States,  07  U. 
S.   39,   24   L.    Ed.   992. 

The  proclamation  is  a  public  act,  of 
which  all  courts  of  the  United  States  are 
bound  to  take  notice,  and  to  which  all 
courts  are  bound  to  give  effect.  Arm-- 
strong  V.  United  States,  13  Wall.  154,  30 
L.   Ed.  614. 

S9.  Repeal  of  statute  authcrizing  psr- 
don.— United  States  v.  Klein.  13  Wall.  128, 
20   L.    Ed.    519. 

The  repeal,  by  an  act  of  21st  of  January, 
1867  (after  the  war  had  closed),  of  the 
act  of  17th  of  July,  1862,  authorizing  the 
executive  to  offer  pardon,  did  not  alter  the 
operation  of  the  pardon,  or  the  obliga- 
tion of  congress  to  give  full  effect  to  it  if 
necessary  by  legislation.  United  States 
V.    Klein,    13    Wall.      138,   20   L.    Ed.    519. 

40.  Act  providing  that  pardon  shall  not 
give  right  to  claim  unconstitutionsl. — ■ 
United  States  v.  Klein,  13  Wall.  128,  20 
L.  Ed.  519. 

The  proviso  in  the  appropriation  af't  of 
July   12,    1870    (16    Stat.    235),    which    is   Jfl 


10 


ABANDONED  AND  CAPTURED  PROPERTY. 


seized  by  the  treasury  agents  under  a  contract  in  violatiori  of  the  laws  of  the  United 
States  forbidding  commercial  intercourse  between  persons  respectively  residing 
in  places  occupied  by  the  national  forces,  within  districts  the  inhabitants  whereof 
were  declared   to  be  in  insurrection,  it  was  held,  that  he  could  not  recover^^ 

4.  Waiver  op  Right  by  Failure  to  Plead  Claim  as  Set-Ofe. — One  hav- 
ino-  a  claim  against  the  government  for  the  proceeds  of  abandoned  and  captured 
property,  must,  when  sued  by  the  government,  interpose  such  claim  by  way  of 
set-ofif,  otherwise  it  will  be  deemed   to  have  been  waived.* ^ 

B.  Proceedings  to  Recover — 1.  Jurisdiction. — A  court  of  claims  has 
jurisdiction  to  hear  and  determine  all  claims  for  the  proceeds  of  property  taken 
bv  agents  of  the  treasury  department  as  abandoned  or  captured  property j-*-"^  and 
such" jurisdiction  is  exclusive,  precluding  the  owner  from  suit  at  common  law  or 
any  other  mode  of  redress  whatever  in  any  other  court.** 

2.  Time  oe  Bringing  Action. — An  action  in  the  court  of  claims  for  the  pro- 
ceeds of  property  sold  under  the  abandoned  and  captured  property  act  must  have 
been  brought  within  two  years  after  the  suppression  of  the  rebellion.*^ 

3.  Counterclaim. — When  the  government  means  to  set  up  any  counterclaim 


substance  that  an  acceptance  of  a  pardon 
without  a  disclaimer  shall  be  conclusive 
evidence  of  the  acts  pardoned,  but  shall 
be  null  and  void  as  evidence  of  rights  con- 
ferred in  the  court  of  claims  and  in  the 
supreme  court,  is  unconstitutional  and 
yoid  as  invading  the  powers  both  of  the 
judiciary  and  executive  departments  of  the 
government.  United  States  v.  Klein,  13 
Wall.   128,   20   L.    Ed.   510. 

41.  Title  acquired  contrary  to  law. — 
Walker  v.  United  States,  106  U.  S.  413, 
27    L.    Ed.    166. 

42.  Waiver  of  claim  by  failure  to  plead 
it  as  set-cff. — During  the  rebellion  the 
United  States  took  possession  of  A's  house 
in  a  rebel  town  as  "captured  and  aban- 
doned property,"  rented  it  from  1863  to 
1865,  and  received  rents,  $7,0O«,  which 
were  in  the  federal  treasury.  After  the 
suppression  of  the  rebellion,  A  having 
returned  home,  the  government  sued  him, 
and  in  March  1867,  got  judgment  and  is- 
sued execution  against  him,  he  not  plead- 
ing as  a  set-off  the  $7,000  received  by  the 
United  States.  In  May,  1869,  he  applied 
to  the  court  to  satisfy  the  judgment,  and 
moved  also  for  a  writ  of  audita  querela; 
assigning  as  a  reason  for  not  having 
pleaded  a  set-ofif,  that  he  did  not  know 
until  just  before  he  filed  his  petition  and 
made  his  present  motion,  that  the  money 
was  in  the  treasury  of  the  United  States. 
Held,  that  the  petition  and  motion  were 
rightly  denied;  for  that  if  A  had  a  claim 
on  the  United  States,  he  was  in  fault  in  not 
having  discovered  and  pleaded  it.  Avery 
V.  United  States,  12  Wall.  304,  20  L.  Ed. 
405.  See,  eenerallv.  the  titfe  SET-OEF, 
RECOUPMENT  AND  COUNTER- 
CLAIM. 

43.  Jurisdiction. — Lamar  v.  McCulloch, 
115  U  S.  163,  186.  29  L.  Ed.  366.  See  the 
titles  COURTS;  JURISDICTION. 

44.  Jurisdiction  of  court  of  claims  ex- 
dusive.— Section  3,  Act  of  July  27.  1868, 
ch.  276,  15  Stat.  243;  Rev.  Stat.,  §  1059; 
Lamar  v.   McCulloch,   115  U.   S.   163,   186, 


29  L.   Ed.  366;  Haycraft  v.  United  States, 
22   Wall.   81.   22    L.   Ed.   738. 

If  property  is  taken  in  good  faith  as 
captured  and  abandoned,  that  is  a  good 
defense  to  an  action  of  trover  brought  by 
the  owner  in  a  court  other  than  the  court 
of  claims,  whether  it  was  wrongfully 
taken  or  not.  Lamar  v.  McCulloch,  115 
U.   S.   163,  29    L.   Ed.  366. 

In  New  Orleans,  etc.,  Mail  Co.  v. 
Flanders,  12  Wall.  130,  20  L.  Ed.  249,  it 
was  held,  that  the  circuit  court  of  the 
LTnited  States  had  no  jurisdiction  under 
the  act  of  March  12th,  1863,  commonly 
known  as  the  abandoned  and  captured 
property  act,  where  both  parties  were 
citizens  ©f  the  same  state.  See.  generally, 
the  titles  COURTS;  JURISDICTION. 
45.  Time  of  bringing  action. — United 
States  V.  Anderson.  9  Wall.  56,  19  L.  Ed. 
615;  Haycraft  v.  United  States,  22  Wall. 
81,  96,  22  L.  Ed.  738;  Ex  parte  Zellner.  9 
Wall.  244,  248.  19  L.  Ed.  665.  See,  gen- 
erally, the  title  LIMITATION  OF  AC- 
TIONS. 

When  rebellion  deemed  to  have  been 
suppressed. — As  respects  rights  intended 
to  be  secured  by  the  abandoned  or  cap- 
tured property  act,  "the  suppression  of  the 
rebellion"  is  to  be  regarded  as  having 
taken  place  on  the  20th  of  August,  1866, 
on  which  day  the  president  by  procla- 
mation declared  it  suppressed  in  Texas 
"and  throughout  the  whole  of  the  United 
States  of  America,"  that  same  date  being 
apparently  adopted  by  congress  in  a  stat- 
ute continuing  a  certain  rate  of  pay  to 
soldiers  in  the  army  "for  three  years  after 
the  close  of  the  rebellion,  as  announced 
by  the  president  of  the  United  States,  by 
proclamation  bearing  date  August  20th, 
1866."  United  States  v.  Anderson,  9  Wall. 
56,   19  L.   Ed.  615. 

As  to  when  war  of  rebellion  was  deemed 
to  have  been  suppressed,  in  general,  see, 
generally,   the  title   WAR. 

Right  of  person  aiding  in  rebellion,  par- 


ABATEMENT.  \\ 

to  the  claim  of  a  party  suing  in  the  court  of  claims,  under  the  captured  and  aban- 
doned property  act,  it  must  plead  its  claim  by  way  of  set-off  or  counterclaim  to 
the    suit,    or    move    for    a    new    trial. '^^ 

4.  Competency  oe  Witnesses.- — The  vendors  of  the  property  taken  and  sold 
are  competent  witnesses,  on  a  claim  preferred  by  the  owners  in  the  court  of 
daims,  in  supporting  such  claim,  if  they  themselves  never  had  any  title,  claim,  or 
right  against  the  government,  and  are  not  interested  in  the  suit.'*'^ 

5.  Judgment. — Under  the  captured  or  abandoned  property  act,  the  court  of 
claims  may  render  judgment  not  only  generally  for  the  claimant,  but  for  a  spe- 
cific smn  as  due  to  him.^^ 

6.  Appeal. — Where,  in  a  suit  arising  under  the  abandoned  and  captured  prop- 
erty acts,  no  direct  proof  is  given  that  the  proceeds  of  the  sale  of  the  property 
was  paid  into  the  treasury,  if  the  circumstantial  facts  which  are  established  by 
the  evidence  are  set  forth  in  the  finding  of  the  court  of  claims,  which  it  sends  up 
as  that  upon  which  alone  its  judgment  was  rendered,  and  they  are,  in  the  absence 
of  anything  to  the  contrary,  the  legal  equivalent  of  a  direct  finding  that  such  pro- 
ceeds were  so  paid,  the  supreme  court  will  not  on  that  account  reverse  the  judg- 
ment.*^ 

ABANDONMENT.— See,  also,  the  titles  Marine  Insurance;  Mines  and 
Minerals;  Prize;  Trademarks,  Tradenames  and  Unfair  Competition.  As 
to  abandonment  of  rights,  see  tlie  title  Waiver.  As  a  ground  for  divorce,  see  the 
tkie  Divorce.     See  note   1. 

ABANDONMENT  AND  TOTAL  LOSS.— See  the  title  Marine  Insurance. 

ABATEMENT. — As  to  abatement  of  nuisances,  see  the  title  Nuisances.  As 
to  abatement  of  legacies,  see  the  title  Wills.  As  to  abatement  of  suits  and  ac- 
tions, see  the  title  Abatement,  Revival  and  Survival.  As  to  abatement  of 
attachment,  see  the  title  Attachment  and  Garnishment.  As  to  abatement  of 
appeals,  see  the  title  Appeal  and  Error.  As  to  abatement  of  purchase  money, 
see  the  titles  Sales;    Vendor  and  Purcha.ser. 

doned   after   two   years   from   suppression  been  made,  set  up  and  deduct  at  the  treas- 

thereof,   to   sue. — A    person   who   did   give  ury    the    counterclaim    when    the    amount 

aid  and  comfort  to  the  rebellion,  and  who  awarded    by    the    decree    of    the    court    is 

was    not    pardoned    until    two    years    from  asked  for  there.     United  States  v.  O'Grady 

the  suppression  of  the  rebellion  could  not,  22  Wall.  641,  22  L.   Ed.  772.     See  the  title 

on    then     preferring  his  petition,  obtain  the  SET-OFF,      RECOUPMENT     AND 

benefit   of   the    act,   even    though    in    cases  COUNTERCLAIM. 

generally   the   limitation  af  actions   in   the  47.    Witnesses. — United  States  v.  Ander- 

said  court  is  one  of  six  years.     The  ques-  son,   9   Wall.   .56,   19   L.    Ed    615      See   the 

tion  is   not  one  of  limitation  but  of  juris-  title    WITNESSES. 

diction.      And    the    inability    of   an    unpar-  48.    Judgment. — United  States  v.  Ander- 
doned  rebel  to  sue  in  the  court  of  claims  son,   9   Wall.   56,   19  L.   Ed.   615.   See,   gen- 
does  not  control  the  operation  of  the  stat-  erallv,   the   title  JUDGMENTS  AND  DE 
ute.     Haycraft  v.  Utiited  States,  22  Wall.  CREES. 
81,  28  L.   'PA.  738.  49.   Appeal.— United   States   v.    Pu^xh    9a 

46.       Counterclaim. — United      States      v.  U.   S.   265,   25   L.   Ed.   322      See    o^enerallv 

O'Grady.  22  Wall.  641.  22  L.  Ed.  772   (hold-  the   title   APPEAL   ANE)   ERROR, 

ing  that  a  claim  for  taxes  on  cotton  should  1.  Abandonment. — In   Gavlor  v.  Wilder 

be   set  up   by  way  of  counterclaim   to   the  10  How.  501.  it  is  said:     "When  an  inven- 

proceedings    in    the    court    of    claims).  tion   is   abandoned,   it   is   said   to  be   given 

It  cannot,  after  judgment  has  been  given  up  to  the  public,   and  this  is  the  sense  in 

for  the  amcnint  claimed  by  the  petitioner,  which    the    term   abandonment   is    used    in 

irrespective     of     such     counterclaim,    and  the     patent     law."      See,     also      the     title 

without  any  motion  for  a  new  trial  having  PATENTS.                         '             ' 


ABATEMEMT,  REVIVAL  AND  SURVIVAL 

BY   J.    N.    CLAYBROOK. 

I.    Grounds  of  Abatement,  15. 

A.  Nonresidence  of  Parties,  15. 

B.  Another  Suit  Pending,  15. 

1.  Statement  of  Rule,  15. 
2.  Essentials  of  Defense,  16. 

a.  Necessity  for  Pending  Proceeding  to  Be  a  Suit,  16. 

b.  Identity  of  Suits  or  Actions,  16. 

(1)  Test  of  Identity,  16. 

(2)  Identity  of  Parties,  17. 

(3)  Identity  of  Causes  of  Action,  17. 

(4)  Identity  of  Relief  Sought,  17. 

'  c.  Necessity    for    Action     to    Be    Pending    in    Courts    of    Same 

State,  18. 

(1)  In  General.  18. 

(2)  Action    in  State    Court  as    Barring    Action    in    Federal 

Court,  18. 

(a)  In  General,  18. 

(b)  Attachment,   18. 

(3)  Action  in   State  Court  as  Barring  Action  in   Court  of 

District  of  Columbia,  18. 

d.  Efifect  of  Pendency  of  Another  Action  in  Same  Court,  19. 

e.  Eflfect  of  Pendency  of  Appeal  from  First  Suit,  19. 
3.  Whicb  of  the  Two  Suits  May  Be  Abated,   19. 

C.  Effect  of  Death  of  Party,  20. 

1.  As  Dependent  on  Nature  of  Proceedings,  20. 

a.  Actions  at  Law,  20. 

( 1 )  Common-Law  Rule,  20. 

(2)  Statutory   ^Modification   of   Common-Law   Rule,  20. 

b.  Proceedings  in  Equity,  20. 

c.  Proceedings  in  Admiralty,  21. 

2.  \Miat  Law  Governs,  21. 

3.  Causes  of  Action  Which   Survive  or  Abate,  21. 

a.  Dependent  on   Substance  Not  Form  of  Action,  21. 

b.  Causes  of  Action  Founded  on  Contract,  22. 

c.  Causes  of  Action  Founded  on  Tort,  22. 

(1)  In  General,   22. 

(2)  Tests  of  Survivorship,  22. 

(a)  Nature  of  Plea  Required,  22. 

(b)  Benefit  to  Estate  of  Tortfeasor,  22. 

(c)  Election    to    Sue  in     Tort    Rather    than    Contract 

Conclusive  on  Question  of  Abatement,  22. 

(3)  Waste,  22. 

(4)  Trover   and   Conversion,   23. 

(5)  Misfeasance  of  Sheriff  or  Jailer,  23. 

(6)  Taking  or  Injuring  Goods  or  Propertv,  23. 

d.  Statutory  Liability  of  Stockholders,  23. 

4.  Actions  or   Proceedings  Which   Survive  cr   Abate,  23. 

a.  Actions  on  Penal  Statutes,  23. 

b.  Suits  for  Infringement  of  Patent,  23. 

c.  Recovery  Back  of  Taxes,  24. 
^                    d.  Fraud  and  Deceit,  24. 

(12) 


ABATEMEXr,  REJ'IW-iL  AXD  SURVWAL.  13 

e.  Personal  Injuries.  24. 

f.  Death  by  Wrongful  Act.  24. 

g.  Real  Actions,  24. 
h.  Discovery,  25. 

'  5.  Effect  of  Death  of  One  of  Several  Plaintiffs  or  Defendants.  25, 

6.  Death  of  Plaintiff  before  Filing  of  Petition.  25. 

7.  Death  after  Hearing  and  before  Jtidgment,  25. 

8.  Death  after  Interlocutory  Judgment,  26. 

9.  Death  Pending  Appeal  or  Error,  26. 

10.  Death  after  Termination  of  Suit.  26. 

11.  Death  of  Accused  in  Criminal  Case.  26. 

D.  Termination,  Change  or  Transfer  of  Interest,  26. 

1.  Termination  of  Official  Authority,  26. 

a.  Actions  or  Suits  by  Officers,  26. 

b.  Actions  or  Suits  against  Officers  or  Boards.  26. 

(1)  Suits  Involving  Personal  Delinquencv  of  Officer,  26. 

(2)  Suits  Involving  Continuing  Duty  of  Office  or  Board,  27, 

2.  Removal  of  Executor,  28. 

3.  Dissolution  of  Corporation,  29. 

4.  Assignment  of  Interest  by  Party  Pending  Suit,  29. 

E.  Insolvencv  of  Estate    of  Decedent  as    Abating    Suits    against    Repre- 

sentative, 29. 

F.  Statute  Legalizing  Nuisance  as  Abating  Suit  for  Abatement,  30. 

G.  Grounds  for  Plea  in  Abatement,  30. 

n.   Raising  and  Waiving  Grounds  of  Abatement,  30. 

A.  Raisino^  Groii'^''1s  of  Abatement.  30. 
1.  Dilatory  Plea,  30. 

a.   Pleas  in    ^^^atement,  30. 

(1)  In  Civil  Cases.  30. 

(a)  Nature  of  Plea.  30. 

(b)  Grounds  for  Plea.  30. 

aa.  Incapacity  of  Plaintiff  to  Maintain  Action,  30, 
bb.  Nonjoinder  of  Parties.  31. 
(aa)    Plaintiffs.   31. 
(bb)   Defendants.  31. 

aaa.  In  General.  31. 

bbb.    loint    Oblisfors,    31. 

ccc.  Joint  and   Several   Obligors.  31. 
cc.   ^Hsjoinder  of  Parties — Real  Actions.  31. 
dd.  Objections  to  Service  of  Process,  32 
ee.  Misnomer  of  Parties,  32. 
ff.  \^ariance,  32. 
gg.  Another   Suit   Pending,  33. 
hh.  Premature  Suit.  33. 

(c)  Time  of   Filine.  33. 

(d)  Form  and   '^"'"ri^ cation,  33 
aa.  Form.  33. 

bJ).  \"erif'cation.  33. 

(e)  Construction.  34. 
(i)  Evidence.  34. 

(g)   Review  of  Der-'sion  on  Plea.  34. 

(2)  In  Criminal  Cases.  34. 

(a)  Grounds  for  Plea.  34. 

aa.  Constitution  of  Grand   lur-w  34. 
bb.   Swearinor  of  C-rnnd   jurv.  34. 

(b)  Time  of  Filing.  34. 


14  ABATEMENT,  REVIVAL  AND  SURVIVAL. 

(c)  Form  and  Sufficiency,  34. 

(d)  Trial  or  Hearing,  35. 
b.  Pleas  to  Jurisdiction,  Z^. 

(1)  Grounds  for  Plea,  35. 

(a)  In  General,  35. 

(b)  Want  of   Diversity  of  Citizenship  of   Parties,  35. 
aa.  Rule  under  Judiciary  Act,  35. 

(aa)       Diversity      of      Citizenship      Properly 
Averred   in   Declaration  or   Bill,   35. 

(bb)   Diversity    of    Citizenship    Not    Properly 
Averred   in  Declaration  or  Bill,   36. 
bb.  Rule  under  Act  of  1875,  36. 

(c)  Adequate  Remedy  at  Law,  36. 

(2)  Time  of  Filing,  36. 

(3).  Form  and   Sufficiency,  o7. 

(a)  In  General,  37. 

(b)  Necessity  for  Plea  to  Give  Better  Writ,  Z?. 

(c)  Objection  That   Parties  Are  Not  Citizens  of  Dif- 

ferent States,  Z7. 

(4)  Waiver  of  Objection,  Z7. 

(5)  Burden  of  Proof,  Z7 . 

(6)  Appeal  and  Error,  Z7. 

2.  Answer,  38. 

3.  Pleas   Puis  Darrein  Continuance,  38. 

a.  Definition  and   Nature,  38. 

b.  Grounds   for  Plea,  38. 

c.  Efifect  of  Plea,  39. 

d.  Etifect  of  Refusal  to  Permit  Plea  to  Be  Filed,  39. 

e.  Judgment  on  Plea,  39. 

B.  Waiver  of  Grounds  of  Abatement,  39. 

1.  Appearance,  39. 

2.  Pleading  in  Bar,  39. 

a.  In  General,  39. 

b.  Objections  to  Capacity  of  Plaintifif  to  Sue,  40. 

c.  Misnomer  of   Parties,   40. 

d.  Misjoinder  of  Parties,  40. 

e.  Variance  or  Defects  in  Writ,  40. 

f.  Objections    to    Jurisdiction,    40. 

g.  In  Criminal  Cases,  41. 

3.  Removal  of  Cause  and   Proceedings  Subsequent  to  Removal,  41. 

4.  Going    to    Trial    on    Merits,    41. 

III.  Revival  or  Continviance  of  Suits  or  Actions,  42. 

A.  Necessity  of  Proceedings  to  Revive,  42. 

B.  Necessity  for  Suit  to  Be  Pending,  42. 

C.  Time  of'  Revival,  42. 

D.  Who  May  Revive,  43. 

1.  Successor  in  Interest,  43. 

2.  Assignee,  43. 

3.  Survivor,  43. 

4.  Personal  Representative,  43. 

a.  Right  to  Revive,  43. 

b.  Necessity  for    Representative   to    Be    Citizen    of  or  Domiciled 

within  State,  44. 

c.  Proof  of    Representative    Character  as    Prerequisite    to    Re 

vival,  44. 


\4BATEMEST,  RBJIVAL  AND  SURJ'Il'AL.  15 

E.  Against  Whom  Action  Alay  Be  Revived,  44. 

1.  Personal   Representatives,  44. 

2.  Successor,  45. 

3.  Survivor,  45. 

4.  Heirs  and  Terre  Tenants,  45. 

F.  Proceedings  to  Revive  or  Continue,  45. 

1.  x^ctions  at  Law,  45. 

a.  Mode  of  Proceeding,  45. 

(1)  State   Procedure   as   Governing  in   Federal   Courts,  45. 

(2)  Suggestion   of   Death  and   Substitution  of   Parties,'  45. 
(aj   Efifect  of   Suggestion  of  Death  and  Order  of  Re- 
vival, 45. 

(b)   Bringing  in  Parties,  46. 
aa.  By  Motion,  46. 
bb.  By  Scire  Facias,  46. 

cc.  Effect  of  Want  of  Service  of  Process  on   De- 
cedent, 46. 
dd.  Right   of   Opposite   Party   to   Continuance,   46. 

b.  Review  of  Order  of  Revival.  46. 
2.  Suits  in  Equity,  46. 

a.  Bill  of  Revivor,  46. 

(1)  Necessity,  46. 

(2)  Nature  of  Bill.  46. 

b.  Answer,  47. 

c.  Review  of  Decree  of  Revival.  47. 

G.  Effect  of  Removal,  47. 

H.  Proceedings  Subsequent  to  Revival.  47. 

CROSS   REFERENCES. 

See  the  titles  Answers:  Assignments;  Bankruptcy  and  Insolvency; 
Courts;  Demurrers;  Ejectment;  Executors  and  Administrators;  Grand 
Jury;  Husband  and  Wife;  Jurisdiction;  Mandamus;  Par'iies;  PlE.^ding  ; 
Real  Actions;  Removal  of  Causes;  Scire  Facias;  Summons  and  Process; 
United   States   Courts;   Variance. 

Effect  of  statutes  of  jeofails  as  preventing  abatement  for  formal  defects,  see 
the  title  Amendments.  As  to  review  of  judgment  on  pleas  in  abatement,  see 
the  title  Appeal  and  Error.  As  to  effect  of  death  of  party  pending  appeal  or 
error,  and  revival  of  such  proceedings,  see  the  title  Appeal  and  Error.  Ap- 
pearance as  waiving  matters  in  abatement,  see  the  title  Appearances.  As  to 
pendency  of  bankruptcy  proceedings  as  barring  actions  against  debtor  to  recover 
debt,  see  the  title  Bankruptcy  and  Insolvency.  As  to  actions  for  death  by 
WTongful  act,  see  the  title  Death  hy  Wrongful  Act.  As  to  former  adjudica- 
tion, see  the  title  Former  Adjudication  or  Res  Adjudicta.  As  to  judgments 
and  decrees,  see  the  title  Judgments  and  Decrees.  As  to  abatement  of  nui- 
sances, see  the  title  Nuisances.     As  to  abatement  of  legacies,  see  the  title  Wills. 

I.     Grounds  of  Abatement. 

A.  Nonresidence  of  Parties. — If  the  marshal  returns  that  the  defendant  is 
not  an  inhabitant  of  the  district  in  which  the  bill  is  brought,  the  suit  must  abate 
as  to   such   defendant.^ 

B.  Another  Suit  Pending — 1.  Statement  of  Rule. — The  principle  is  well 
settled,  that  where  two  or  more  tribunals  have  a  concurrent  jurisdiction  over 
the  same  subject  matter  and  the  parties,  a  suit  commenced  in  any  one  of  them 
may    be  pleaded    in    abatement    to    an  action  for  the  same  cause  in  any  other. 2 

1.  Nonresidence  of  parties. — Barton  v.  Bacon.  10  How.  .")6.  13  L.  Ed.  326;  Renner 
Pftit.  7  Cranch  194.  3  L.  Ed.  313.  r.    Marshall.    1    Wheat.    215,    4    L.    Ed.    74; 

2.  Another     suit     pending. — Shelby     v.       Piquignot     v.      Pennsylvania     R.     Co.,     16 


16 


ABATEMENT,  REVIVAL  AND  SURVIVAL. 


This  rule  has  been  held  to  apply  to  suits  in  equity  as  well  as  to  actions  at  law.^ 
2.  Essentials  of  Defense — a.  Necessity  for  Pending  Proceeding  to  Be  a 
Suit. — In  order  for  a  proceeding  in  one  court  to  bar  a  proceeding  in  another  be- 
tween the  same  parties  for  the  same  cause  of  action,  it  is  essential  that  the  first 
proceeding  be  a  suit  or  action.-* 

b.  Identity  of  Suits  or  Actions — (1)  Test  of  Identity. — When  in  courts  of 
concurrent  jurisdiction,  the  pendency  of  a  suit  in  one  is  relied  on  to  defeat  a 
second  suit  in  the  other,  the  identity  of  the  parties,  of  the  case  made,  and  of  the 
relief  souo-ht,  should  be  such  that  if  the  first  suit  had  been  decided  it  could  be 
pleaded  in  bar  as  a  former  adjudication.^ 


How.  104,  14  L.  Ed.  863;  The  Haytian  Re- 
public, 154  U.  S.  118,  124.  38  L.  Ed.  930; 
Watson  V.  Jones,  13  Wall.  679,  20 
L  Ed.  666;  Stanton  v.  Embrey.  93 
U  S.  56,  23  L.  Ed.  983;  Gordon 
r-  Gilfoil.  99  U.  S.  168,  25  L.  Ed.  383; 
Cook  V.  Burnley,  11  Wall  659,  20  L.  Ed. 
29;  Insurance  Co.  v.  Brune,  96  U.  S.  588, 
24  L.  Ed.  737;  Fleitas  v.  Cockrem,  101  U. 
S  301,  25  L.  Ed.  954;  Wallace  v.  McCon- 
nell,  13  Pet.  136,  151,  10  L.  Ed.  95;  Mem- 
phis V.  Dean,  8  Wall.  64,  19  L.  Ed.  326; 
Buck  V.  Colbath,  3  Wall.  334.  18  L.  Ed. 
257;  Stephens  v.  Monongahela  Nat.  Bank, 
111  U.  S.  197.  198.  28  L.  Ed.  399:  Provi- 
dence, etc..  Steamship  Co.  v.  Hill  Mfg. 
Co..  109  U.  S.  578,  595,  27  L.  Ed.  1038. 
Hunt  V.  New  York  Cotton  Exchange,  205 
U.  S.  322.  51  L.  Ed.  821;  dissenting  opin- 
ion of  Miller,  J.,  in  Riggs  v.  Johnson 
County,   6    Wall.    166,   205,    18    L-    Ed.    768. 

At  law,  the  pendency  of  a  former  ac- 
tion between  the  same  parties  for  the 
■^ame  cause  is  pleadable  in  abatement  to 
a  second  action,  because  the  latter  is  re- 
■-arded  as  vexatious.  Insurance  Co.  v. 
Brune,  96  U.  S.  592,  24  L.  Ed.  737;  Buck- 
ner  v.   Finley,   2  Pet.   586,   7   L.   Ed.   528. 

The  plea  of  another  action  pending  is  a 
•^lea  in  abatement. — Stephens  7'.  Monon- 
rahela  Nat.  Bank,  111  U.  S.  197,  28  L. 
Ed.  399;  Piquignot  v.  Pennsylvania  R. 
Co.,  16  How.  104,  14  L.  Ed.  863;  Mutual 
Life  Ins.  Co.  v.  Harris,  97  U.  S.  331,  335, 
''4  L.  Ed.  959;  Providence,  etc..  Steam- 
ship Co.  V.  Hill,  Mfg.  Co.,  109  U.  S.  578, 
595,  27  L.  Ed.  1038;  Memphis  v.  Dean, 
8  Wall.  64,   19   L.   Ed.   326. 

A  judgment  in  an  action  to  enforce  a 
vendor's  lien  for  a  second  installment  of 
the  purchase  price  of  land,  is  not  rendered 
void  merely  because  of  the  pendency  of 
an  appeal  from  a  judgment  in  an  action 
to  enforce  the  first  installment.  March- 
and  V.  Frellsen,  105  U.  S.  423,  26  L.  Ed. 
1057  See,  senerallv.  the  title  JUDG- 
MENTS AND  DECREES. 

3.  Application  of  rule  in  equity  pro- 
ceedings.— Mutual  Life  Ins.  Co.  v.  Brune, 
96   U.    S.    588,   24   L.    Ed.   737. 

4.  Necessity  for  pending  proceeding 
to  be  a  suit. — Shelby  v.  Bacon,  10  How. 
56,  13   L.    Ed.  326. 

By  a  statute  of  Pennsylvania,  passed  in 
1836,  "assignees  for  the  benefit  of  cred- 
itors   and    other    trustees"    were    directed 


to  record  the  assignment,  file  an  inven- 
tory of  the  property  conveyed,  which 
should  be  sworn  to,  have  it  appraised,  and 
give  bond  for  the  faithful  performance  of 
the  trust,  all  of  which  proceedings  were 
to  be  had  in  one  of  the  state  courts.  That 
court  was  vested  with  the  power  of  cit- 
ing the  assignees  before  it,  at  the  in- 
stance of  a  creditor  who  alleged  that  the 
trust  was  not  faithfully  executed.  The 
assignees  of  the  bank  of  the  United  States 
chartered  by  Pennsylvania,  recorded  the 
assitrnment  as  directed,  and  filed  accounts 
of  their  receipts  and  disbursements  in  the 
prescribed  court,  which  were  sanctioned 
by  that  court.  A  citizen  of  the  state  of 
Kentucky  afterwards  filed  a  bill  in  the 
circuit  court  of  the  United  States  for  the 
eastern  district  of  Pennsylvania,  against 
these  assignees,  who  pleaded  to  the  ju- 
risdiction of  the  court.  Held,  the  pro- 
ceedings in  the  state  court  cannot  be  con- 
sidered as  a  suit.  The  statute  was  not 
complied  with,  and  even  if  it  had  been, 
the  circuit  court  would  still  have  had  iu- 
risdiction  over  the  matter.  Shelby  v.  Ba- 
con,  10   How.   56,   13    L.   Ed.  326. 

Where  a  suit  was  brought  in  the  United 
States  court  by  citizens  of  another  state 
against  a  citizen  of  Mississippi,  who  ap- 
peared to  the  suit,  pleaded  and  then  died, 
after  which  the  suit  was  revived  against 
his  administrators,  and  judgment  obtained 
against  them,  the  following  proceeding 
of  the  probate  court  afford  no  bar  to  the 
recovery  of  the  claim:  A  declaration  by 
the  probate  court  that  the  estate  was  in- 
solvent, and  a  reference  of  the  matter 
to  a  commissioner  in  insolvency;  a  publi- 
cation notifying  the  creditors  of  the  es- 
tate to  appear  and  file  their  claims,  or  be 
forever  barred  of  their  demands;  a  report 
by  the  commissioner,  leaving  out 
the  claim  in  question,  which  report  was 
confirmed  by  the  court;  and,  in  such  case 
where  the  estate  turned  out  not  to  be  in- 
solvent, but  a  fund  remained  in  hand  for 
distributees,  the  creditors  can  recover  by 
a  bill  in  chancery  against  the  administra- 
tors, notwithstanding  the  proceedings  in 
the  probate  court.  Union  Bank  v.  Vai- 
den,   18    How.    502,   503.   15    L.    Ed.   472 

As  to  what  constitutes  a  suit  or  action 
in   general,   see   the   title   .\CTlONS. 

5.  Test  of  identity. — Watson  z'.  Jones, 
13  Wall.  679.  20  L.  Ed.  666;  Hunt  ?'.  New 
York    Cotton    Exchange.    205    U.    S.    322, 


ABATBME.\'r,  klillVAL  AND  SURVIVAL.  17 

(2)  Identity  of  Parties. — There  must  be  the  same  parties,  or,  at  least,  such  as 
represent  the  same  interest.^ 

(3)  Identity  of  Cav.ses  of  Action. — Not  only  identity  of  relief,  but  identity  of 
cause  of  action,  is  essential  to  the  plea  of  pending  suitJ 

(4)  Identity  of  Relief  Sought. — It  is  essemial  to  the  plea  of  another  suit  pend- 
ing that  the  relief  sought  in  both  be  identical.s  The  relief  sought  must  be 
founded  on  the  same  facls,  and  the  title,  or  essential  basis  of  it  must  be  the  same.» 


339,   51   L.    Ed.    821;   The   Haytian    Repub- 
lic,  154  U.    S.   118,   124,  38   L.    Ed.   930. 

In  The  Haytian  Republic,  154  U.  S.  118, 
124,  38  L.  Ed.  930,  it  was  held,  that  the 
true  test  of  the  sufficiency  of  a  plea 
"other  suit  pending"  in  another  forum  is 
the  legal  efficacy  of  the  first  suit,  when 
finally  disposed  of,  as  "the  thing  ad- 
judged," regarding  the  matters  at  issue 
in  the  second  sirit.  Cfting  Watson  v. 
Jones,  13  Wall.  679.  20  L.  Ed.  6C6.  See, 
generally,  the  title  FORMER  AD- 
JUDICATION OR  RES  ADJUDICATA. 

6.  Identity  cf  parties. — The  Haytian 
Repi'blic,  154  U.  S.  118.  128.  38  L.  Ed. 
930;  Watson  v.  Jones,  13  WaH.  679.  30  L. 
Ed.  66fi;  Buck  v.  Colbath.  3  Wall.  334.335, 
18  L.  Ed.  257;  Hunt  v.  New  York  Cotton 
Exchange,  205  U.  S.  322,  339,  51  L.  Ed. 
821;  Memphis  v.  Dean,  8  Wall.  fi4,  19  L. 
Ed.  326;  Cook  v.  Burnlev.  11  Wall.  659, 
20  L.  Ed.  29. 

A  question  which  is  pending  in  one  court 
of  competent  jurisdiction  cannot  be 
raised  and  agitated  in  another  by  adding 
a  new  party  and  raising  a  new  question 
as  to  him  along  with  the  old  one  as  to 
the  former  party.  The  old  question  is  in 
the  hands  of  the  court  first  possessed  of 
it,  and  is  to  be  decided  by  such  court. 
The  new  one  should  be  by  suit  in  any 
proper  court,  against  the  new  party. 
Memphis  v.  Dean,  8  Wall.  64,  19  L.  Ed. 
326. 

A  suit  pending  in  a  state  court  between 
parties  not  the  same  as  in  a  suit  here 
cannot  be  pleaded  in  abatement  after  a 
plea  to  the  merits;  nor  where  it  is  in- 
sufficient in  law.  Cook  v.  Burnley,  11 
Wall.    659,   20    L.    Ed.    29. 

A  suit  against  a  telegraph  company  to 
enjoin  them  from  refusing  to  furnish 
complainant  with  quotations  of  the  cotton 
exchange,  to  which  suit  the  exchange  is 
Hot  made  a  party,  is  no  bar  to  a  suit 
by  the  exchange  against  the  complainant 
to  enjoin  him  from  receiving  and  using 
its  quotations.  Hunt  v.  New  York  Cotton 
Exchange,  205  U.  S.  322,  323.  51  L.  Ed. 
821. 

7.  Identity  of  causes  of  action. — The 
Haytian  Republic,  154  U.  S.  118,  128,  38 
L.  Ed.  930;  Wat-^on  v.  Jones,  13  Wall.  679, 
20  L.  Ed.  666:  Buck  r.  Colbath,  3  Wall. 
334,  18  L.  Ed.  257:  Hunt  v.  New  York 
Cotton  Exchange,  205  J.  S.  322,  339,  51 
L.    Ed.    821. 

The  rule  among  courts  of  concurrent 
jurisdiction,  that  one  wliich  first  obtains 
jurisdiction    of    a    case    has    the    exclusive 

1  U  S  Enc— 2 


right  to  decide  every  question  arising  in 
the  case,  is  subject  to  some  limitations, 
and  is  confined  to  suits  between  the  same 
parties,  or  privies,  seeking  the  same  re- 
lief or  remedy,  and  to  such  questions  or 
propositions  as  arise  ordinarily  and  prop- 
erly in  the  progress  of  the  suit  first 
brought:  and  does  not  extend  to  all  mat- 
ters whicli  may  by  possibility  become  in- 
volved in  it.  Buck  v.  Colbath,  3  Wall. 
334,  335,   18   L.   Ed.  257. 

Action  on  contract  and  to  enforce  mari- 
time lien. — It  is  no  objectixjn  to  the  as- 
sertion in  the  admiralty  of  a  maritime  lien 
against  a  vessel  for  necessary  repairs  and 
supplies  to  her  in  a  foreign  port  that  the 
libellant  has  brought  a  common-law  ac- 
tion for  the  value  of  the  repairs  and  sup- 
plies; the  action  not  being  yet  determined. 
The  Kalorama,  10  Wall.  304.  19  L.  Ed.  941. 

8.  Identity  of  relief  sought. — Watson  v. 
Jones,  13  Wall.  679,  20  L.  Ed.  666;  Buck 
V.  Colbath.  3  Wall.  334,  18  L.  Ed.  257; 
Hunt  V.  New  York  Cotton  Exchange,  205 
U.    S.    322,    339,    51    L.    Ed.    821. 

9.  Relief  sought  must  be  founded  en 
same  facts. — The  Haytian  Reprblic,  154 
U.  S.  118,  124.  3^8  L.  Ed.  930;  Watson  v. 
Jones.   13  Wall.  679,  20  L.   Ed.   666. 

Pendency  of  suit  in  equity  as  barrng 
action  at  law. — An  exception,  that  a  ?''it 
in  equity  is  pending  in  which  the  plaintiffs 
asked  for  a  decree  for  the  same  money, 
is  no  ground  for  abatement  of  an  action 
at  law,  as  the  result  of  the  action  may  be 
necessary  for  the  perfecting  of  a  decree 
in  that  suit.  Kittredge  v.  Race,  92  U. 
S.    116,   23   L.   Ed.   488."^ 

Right  of  mortgagee  to  pursue  several 
remedies  simultaneously. — A  par-.y  naving 
notes  secured  by  a  morteage  on  real  es- 
tate. ma}\  unless  restrained  by  statute, 
sue  in  a  court  of  chancery  to  foreclose  his 
mortgage,  and  in  a  court  of  law  to  re- 
cover a  judgment  on  his  notes,  and  in  an- 
other court  of  law  in  an  action  of  eject- 
ment to  get  possession  of  the  land.  Here 
in  all  suits  the  onlv  question  at  issue  may 
be  the  existence  of  the  debt  mentioned  in 
the  notes  ?ind  mortgage;  but  as  the  relief 
sought  is  difiFerent,  and  the  mode  of  pro- 
ceeding is  different,  the  jurisdiction  of 
neither  court  is  affected  by  the  proceeding 
in  the  other.  And  this  is  true,  notwith- 
standing the  common  object  of  all  the 
suits  m-iy  be  the  collection  of  the  debt. 
The  true  eflfect  of  the  rule  in  these  cases 
is,  that  the  court  of  chancery  cannot  ren- 
der a  judgment  for  the  debt,  nor  judgment 
of  ejectment,  but  can  only  proceed  in  its 


1. 


ABATEMENT,  REVIVAL  AND  SURVIVAL. 


c.   Necessity  for  Action  to  Be  Pending  in  Courts  of  Same  Sfate — (1)  In  Gen- 
eral.  In  order  for  the  plea  of  another  suit  pending  to  be  available,  the  former 

action  must  be  in  a  domestic  court;  that  is,  in  a  court  of  the  state  in  which  the 
second  action  has  been  brougiit.i<^  The  plea  of  a  former  suit  pending  in  equity 
for  the  same  cause  in  a  foreign  jurisdiction  will  not  abate  an  action  at  law  in  a 
domestic  tribunal,  or  authorize  an  injunction  against  prosecuting  such  action.^^ 

(2)  Action  in  State  Court  as  Barring  Action  in  Federal  Court — (a)  In  Gen- 
eral.  As  a  general  rule,  the  pendency  of  a  prior  suit  in  a  state  court  is  not  a  bar 

to  a  suit  in  a  circuit  court  of  the  United  States  by  the  same  plaintiff  against  the 
same  defendant  for  the  same  cause  of  action. ^^ 

(b)  Attachmen-t. — An  attachment  pending  in  a  state  court,  prior  to  the  com- 
mencement of  a  suit  in  the  court  of  the  United  States,  may  be  pleaded  in  abate-' 
ment.13  But  the  attachment  must  have  preceded  the  commencement  of  the  suit 
ill  which  the  plea  is  made.^^ 

(3)  Action  in  State  Court  as  Barring  Action  in  Court  of  Di^ritt  of  Columbia. 
.. The  pendency  of  a  prior  suit  in  a  state  court  is  not  a  bar  to  a  suit  in  the  su- 


•t)wn  mode,  to  foreclose  the  equity  of  re- 
•demption  by  sale  or  otherwise.  The  first 
■court  of  law  cannot  foreclose  or  give  a 
judgment  of  ejectment,  but  can  render  a 
judgment  for  the  payment  of  the  debt; 
and  the  third  court  can  give  the  relief  by 
ejectment,  but  neither  of  the  others.  And 
the  judgment  of  each  court  in  the  matter 
properly  before  it  is  binding  and  con- 
clusive on  sll  the  other  courts.  Buck  v. 
Colbath.  3  Wall.  345,  18  L.  Ed.  257;  Wat- 
son V.  Jones,  13  Wall.  679.  20  L.  Ed.  666. 
See  the  title  ^lORTGAGES  AND 
DEEDS  OF  TRUST. 

Libel  of  vessel  for  forfeiture  for  distinct 
offenses. — A  libel  for  the  forfeiture  of  a 
vessel  for  an  offense  against  the  revenue 
laws  by  smuggling  opium,  and  for  viola- 
tion of  the  Chinese  exclusion  act,  was  filed 
in  the  district  court  of  Oregon.  The 
vessel  was  released  on  stipulation,  and 
subsequently  a  libel  against  it  was  filed  in 
the  district  court  of  Washington  for  for- 
feiture for  offenses  similar  to  those  set 
up  in  the  first  libel,  but  alleged  to  have 
been  committed  before.  It  was  held  that 
th?t  first  suit  was  nrt  a  bar  to  the  second. 
The  Haytian  Republic,  154  U.  S.  118,  124, 
38  L.  Ed.  930.  See,  also.  The  Oregon,  158 
U.    S.    186,   210,    39    L.    Ed.    943. 

"Of  course,  whilst  concluding  that  the 
separate  causes  of  the  action  here  under 
consideration  need  not  have  been  joined 
in  one  suit,  and  that  the  suit  in  Washing- 
ton was  no  bar  to  the  suit  in  Oregon,  we 
must  not  be  considered  as  intimating  that 
there  could  be  more  than  one  forfeiture 
of  the  vessel.  The  distinct  charges  give 
rise  to  distinct  causes  of  action,  but  the 
forfeiture  for  either  would  have  consum- 
mated the  proceedings."  The  Havtian  Re- 
public,  l.'^4   U.   S.    118.   38   L.   Ed.  '930. 

10.  Actions  must  be  pending  in  same 
state. — Mutual  Life  Ins.  Co.  v.  Brune,  96 
U.  S.  588,  592,  24  L.  Ed.  737. 

11.  Pendency  of  suit  in  foreign  jurisdic- 
tion.— Mutual  Life  Ins.  Co.  v.  Brune,  96 
U.   S.   588,  24   L.   Ed.   737. 

A  bill  in  equity  pending  in  a  foreign 
jurisdiction  has  no  effect  when  pleaded  to 


another  bill  in  equity  in  a  domestic  forum. 
Mutual  Life  Ins.  Co.  v.  Brone,  96  U.  S. 
588,    24    L.    Ed.    737. 

12.  Action  in  state  court  as  barring  ac- 
tion in  federal  court. — Stanton  v.  Embry, 
93  U.  S.  548,  23  L.  Ed.  983;  Gordon  v. 
Gilfoil,  99  U.  S.  168,  25  L.  Ed.  383;  Hunt 
V.  New  York  Cotton  Exchange,  205  U.  S. 
322,  339,  51  L.  Ed.  821;  Mutual  Life  Ins. 
Co.  V.  Brune.  96  U.  S.  588,  24  L.  Ed.  737; 
The  Kalorama,  10  Wall.  204,  19  L.  Ed. 
941,  944.  See,  also,  Bryar  v.  Campbell, 
177   U.    S.    ni9.   44    L.    Ed.   926. 

13.  Attachment  in  state  court  as  barring 
action  in  federal  court. — Wallace  v.  Me- 
Connell,  13  Pet.  135,  136,  10  L.  Ed.  95; 
Wab.ish  R.  Co.  v.  Tourville,  179  U.  S. 
322,  327,  45  L.  Ed.  210;  Mattingly  v.  Boyd, 
20  How.  128,  131.  15  L.  Ed.  845.  See, 
generally,  the  title  ATTACHMENT 
AND   GARNISHMENT. 

The  attachment  of  the  debt,  in  such 
case,  in  the  hands  of  the  defendant,  would 
fix  it  there  in  favor  of  the  attaching  cred- 
itors, and  the  defendant  cannot  after- 
wards pay  it  over  to  the  plaintiff. 
The  attaching  creditor,  in  such  a  case,  ac- 
quires a  lien  on  the  debt,  binding  on  the 
defendant,  which  the  courts  of  all  other 
governments,  if  they  recognize  such  pro- 
ceedings at  all,  will  not  fail  to  regard. 
The  rule  must  be  reciprocal;  and  when 
the  suit  in  one  court  is  commenced  prior 
to  proceedings  under  attachment  in  an- 
other court,  such  proceedings  cannot  ar- 
rest the  suit.  Wallace  v.  McConnell,  13 
Pet.   135,   136,   10  L.   Ed.  95. 

14.  Attachment  must  precede  suit  in 
V7hich  defense  pleaded. — Wabash  R.  Co. 
V.  Tourville,  179  U.  S.  322,  327,  45  L.  Ed. 
210;  Wallace  v.  McConnell,  13  Pet.  135, 
136,  10  L.  Ed.  95;  Mattingly  v.  Boyd,  20 
How.    128,    131,   15    L.    Ed.  845. 

An  attachment  commenced,  and  con- 
ducted to  a  conclusion,  before  the  institu- 
tion of  a  suit  against  the  debtor  in  a 
court  of  the  United  States,  may  be  set 
up  as  a  defense  to  the  suit;  and  the  de- 
fendant will  be  protected  pro  tanto,  un- 
der  a   recovery   had   by   virtue   of   the    at- 


ABAiBMES'T,  REVIVAL  AND  SURVIVAL. 


19 


preme  court  of  the  District  of  Columbia,  by  the  same  plaintiff  against  the  same 
defendant  for  the  same  cause  of  action. ^^ 

d:  Effect  of  Pendency  of  Another  Action  in  Same  Court. — Where  a  statute 
authorizes  an  exception  of  Hs  pendens  only  where  the  former  suit  is  pending  "be- 
fore another  court  of  competent  jurisdiction,"  such  an  exception,  where  the  for- 
mer suit  is  pending  in  the  same  court,  is  withki  the  equity  of  that  article. i« 
Where  the  defendant  files  such  an  exception,  the  plaintiff  may  be  compelled  to 
elect  whether  he  will  submit  to  judgment  on  the  exception,  or  discontinue  the 
former  suit  and  pay  the  costs  thereof. i" 

e.  Effect  of  Pendency  of  Appeal  from  First  Suit. — Proceedings  in  an  appellate 
court  are  part  of  the  proceedings  in  the  first  court,  and  orders  made  by  it  to  be 
enforced  by  the  court  of  primary  jurisdiction  are,  while  unexecuted,  a  part  of 
the  case  in  the  first  suit,  which  may  be  relied  on  as  lis  pendens  in  reference  to 
the  second  suit.^* 

3.  Which  of  the  Two  Suits  May  Be  Abated. — While  a  subsequent  suit 
may  be  abated,  by  an  allegation  of  the  pendency  of  a  prior  suit,  the  converse  of 
the  proposition  is,  in  personal  actions,  never  true.^^  There  are,  however,  cer- 
tain special  proceedings  which  have  the  effect  of  superseding  prior  actions  or 
suits.  For  instance,  the  pendency  of  proceedings  in  bankruptcy  may  be  pleaded 
in  abatement  of  actions  by  creditors  for  the  recovery  of  any  debts  provable,^^ 


tachment;  and  may  plead  such  recovery 
in  bar.  Wallace  v.  McConnell,  13  Pet. 
135,     136,    10    L.    Ed.    95. 

15.  Action  in  state  court  as  barring  ac- 
tion in  District  of  Columbia. — ^Stanton  v.  • 
Embry,    93    U.    S.    548.    23    L.    Ed.    983. 

16.  Effect  of  pendency  of  another  ac- 
tion in  same  coart. — Fleitas  v.  Cockrem, 
161  U.  S.  301,  25  L.  Ed.  954  (construing 
§   335   of   Code  of   Practice   of   Louisiana). 

17.  Election  by  plaintiff  having  two 
suits  in  same  court. — Fleitas  f.  Cockrem, 
101    U.    S.    301,    25    L.    Ed.    954. 

"Sirce  the  exception  in  the  case  of  suit 
pending  in  the  same  court  is  not  within 
the  words  of  the  Code,  but  rests  upon  its 
equity,  and  since  in  such  cases  both  suits 
are  under  the  control  of  the  court  in 
which  the  exception  is  made,  we  think 
the  court  might  well  e.xercise  the  discre- 
tion which  was  done  in  the  present  case, 
in  compelling  the  plaintiffs  to  elect 
whether  they  would  submit  to  judgment 
on  the  exception,  or  discontinue  the  first 
suit  and  pay  the  costs  thereof."  Fleitas 
V.  Cockrem,  101  U.  S.  301,  303,  25  L.  Ed. 
954. 

18.  Effect  of  pendency  of  appeal  from 
first  suit— Watson  v.  Jones,  13  Wall.  679, 
20    L.     Ed.    666. 

An  unexecuted  order  of  this  kind,  made 
by  a  state  court  to  restore  possession  to 
the  parties  who  had  been  deprived  of  it 
by  a  decree  which  had  been  reversed,  can- 
not be  interfered  with  by  another  court 
\>y  way  of  injunction,  especially  by  a 
court  of  the  United  States,  by  reason  of 
the  act  of  congress  of  March  2d,  1793. 
Watson  V.  Jones,  13  Wall.  679,  20  L.  Ed. 
€66. 

But  the  nature  and  character  of  the 
possession  so  decreed  to  be  delivered 
may  be  inquired  into  by  another  court, 
and  if  it  was  of  a  fiduciary  character,  and 


the  trust  was  not  involved  in  the  first 
suit,  a  second  suit  may  be  sustained  in 
any  court  of  competent  jurisdiction,  to 
declare,  define  and  protect  the  trust, 
though  the  first  suit  may  be  still  pending. 
Watson  V.  Jones,  13  Wall.  679,  680,  20  L. 
Ed.    666. 

19.  The  suit  last  instituted  abates. — 
Renner  v.  Marshall,  1  Wheat.  215,  218, 
4  L.  Ed.  74;  Wallace  v.  McConnell,  13 
Pet.  135,  136,  10  L.  Ed.  95;  Beaston  v. 
Farmers'  Bank,  12  Pet.  102,  9  L.  Ed.  1017. 
Providence,  etc..  Steamship  Co.  v.  Hill 
Mfg.  Co.,  109  U.  S.  578,  595,  27  L.  Ed. 
1038. 

The  commencement  of  another  suit, 
for  the  same  cause  of  action,  in  the  court 
of  another  state  since  the  last  continu- 
ance, cannot  be  pleaded  in  abatement  of 
the  original  action.  Renner  z\  Marshall, 
1    Wheat.    215,   4    L.    Ed.    74. 

When  a  suit  in  one  court  is  commenced 
prior  to  proceedings  under  attachment  in 
another  court,  such  proceedings  cannot 
arrest  the  suit.  W^allace  v.  McConnell, 
13  Pet.  135.  136,  10  L.  Ed.'  95,  citing 
Beaston  v.  Farmers'  Bank,  12  Pet.  102, 
9    L.    Ed.    1017. 

The  jurisdiction  of  the  district  court 
of  the  United  States  for  the  district  of 
Alabama,  and  the  right  of  a  plaintiff  to 
prosecute  his  suit,  having  attached  by 
the  commencement  of  the  suit  in  the 
district  court,  that  right  cannot  be  taken 
away  or  arrested  by  any  proceedings  in 
another  court.  An  attachment  of  the 
debt  by  the  process  of  a  state  court,  after 
the  commencement  of  the  suit  in  a  court 
of  the  United  States,  cannot  affect  the 
right  of  the  plaintiff  to  recover  in  the 
suit.  Wallace  v.  McConnell,  13  Pet.  135, 
136,    10    L.    Ed.    95. 

20.  Bankruptcy  proceedings  as  super- 
seding   actions    against    bankrupt. — Aben- 


20 


ABATEMENT,  REVIVAL  AND  SURVIVAL. 


and  proceedings  to  limit  the  liability  of  shipowners  supersede  all  actions  for  loss 
or  damage   in  other  courts. 21 

C.  Effect  of  Death  of  Party— 1.  As  Dependent  on  Nature  of  Proceed- 

jNGs a.  Actions  at  Law — (1)  Common-Law  Rule. — By  the  rule  of  the  common 

law,  actio  personalis  moritur  cum  persona,  the  death  of  the  sole  plaintiff  or  of 
the  sole  defendant  before  final  judgment  abated  any  personal  a-tion,  except  that, 
if  the  death  occurred  in  vacation  after  verdict,  jivdgment  might  be  entered  as  of 
the  preceding  term. 22  But  even  at  the  common  law,  if  the  cause  of  action  sur- 
vived, death  of  a  partv  did  not  finally  conclude  the  ca-se,  as  in  such  case  a  new' 
action  might  be  brought.^^ 

(2)  Sta-tuforv  Modification  of  Common-Lazv  Rule. — The  common-law  rule 
has  been  modified  in  England  and  in  this  country  by  various  statutes,  wi!h  the 
object  of  avoiding  the  necessity  of  bringing  a  new  action  when  the  cause  of  ac- 
tion survives  to  the  personal  representative. ^^^  By  §  955  of  the  Revised  Statutes 
ef  the  United  States,  brought  forward  from  the  judiciary  act  of  September  24, 
1789,  c.  20,  §  31,  1  Stat.  730,  90,  it  is  provided  that  "wlien  either  of  the  parties, 
whether  plaintiff  or  petitioner  or  defendant,  in  any  suit  in  any  court  of  the 
United  States,  dies  before  final  judgment,  the  executor  or  administrator  of  such 
deceased  party  may,  in  case  the  cause  of  action  survives  by  law,  prosecute  or  de- 
fend any  such  suit  to  final  judgment. "^^ 

b.  Proceedings  in  Equity. — In  courts  of  equity,  an  abatement  of  the  suit,  by 
the  death  of  the  party,  has  always  been  held  to  have  a  very  different  effect  from 
the  effect  which  it  has  at  law  ;  for  such  abatement  amounts  to  a  mere  suspension, 
and  not  to  a  determination,  of  the  suit ;  it  may  again  be  put  in  motion,  by  a  bill 


droth  v.  Van  Dolsen,  131  U.  S.  66,  33  L. 
EH.  57.  See,  o-enerallv,  the  title  BANK- 
RUPTCY   AND    INSOLVENCY. 

The  pendency  of  proceedings  in  bank- 
ruptcy against  a  firm  cannot  be  pleaded 
in  abatement  in  an  action  against  a  spe- 
cial partner  of  the  firm.  Abendroth  r.  Van 
Dolsen.  131   U.   S.   66.   33   L.    Ed.    57. 

21.  Proceeding  to  limit  liability  of  ship- 
owners.— Providence,  etc.,  Steamship  Co. 
V.  Hill  Mfg.  Co.,  109  U.  S.  578,  587,  27 
Iv.  Ed.  1038.  Generally,  as  to  proceedings 
to  limit  liability  of  shipowners,  see  the 
title    SHIPS    AND    SHIPPING. 

The  institution  of  proceedings  in  the 
district  court  of  the  United  States,  un- 
der the  act  of  1851,  for  procuring  a  de- 
cree of  limited  liability  of  the  owners  of 
a  ship  for  the  losses  and  injuries  to  goods 
on  board  of  the  vessel  being  properly 
pleaded,  supersedes  the  prosecution  of 
claims  for  the  same  losses  and  injuries 
in  other  courts,  and  no  injunction  from 
the  district  court  is  necessary  to  accom- 
plish the  result.  Providence,  etc..  Steam- 
ship Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  578, 
587,    27   L.    Ed.    1038. 

22.  Common-law  rule. — Martin  ta  Balti- 
more, etc.,  R,  Co.,  151  U.  S.  673,  697,  38 
L.  Ed.  311:  Green  v.  Watkins,  6  Wheat. 
260,  5  L.  Ed.  256;  In  re  Connaway,  178 
U.  S.  421,  430,  44  L.  Ed.  1134;  Clarke  v. 
Mathewson,  12  Pet.  164,  9  L.  Ed.  1041; 
Stewart  v.  Baltimore,  etc.,  R.  Co.,  168 
U.  S.  445.  448.  42  L.  Ed.  537;  Baltimore, 
etc.,  R.  Co.  V.  Joy.  173  U.  S.  227,  43  L.  Ed. 
677;  Ransom  7'.  Williams,  2  Wall.  317,  17 
L.  Ed.  803;  Macker  v.  Thomas,  7  Wheat, 
530,  531,  5  L.  Ed.  515;  McCoul  v.  Le- 
kamp,   2   Wheat.   Ill,  4   L.   Ed.   196. 


At  common  law,  all  actions  abated  by 
the  death  of  parties  before  judgment.  In 
re  Connaway,  178  U.  S.  421,  430,  44  L.  Ed. 
1134. 

At  common  law,  in  real  and  personal 
actions,  the  death  of  either  party,  before 
judgment,  abated  the  action,  l^ln'^ker  v. 
Thomas,  7  Wheat.  5.30,  5  L.  Ed.  515; 
Green  v.  Watkins,  6  Wheat.  260,  5  L.  Ed. 
256. 

23.  Right  to  bring  new  action. — Mar- 
tin V.  Baltimore,  etc.,  R.  Co.,  151  U.  S. 
673,    697,     38     L.     Ed.     311. 

24.  Right  to  revive  where  cause  of  ac- 
tion survives. — Baltimore,  etc.,  R.  Co.  v. 
Joy,  173  U.  S.  226,  43  L.  Ed.  677;  Martin 
V.  Baltimore,  etc.,  R.  Co.,  151  U.  S.  673, 
38    L.     Ed.    311. 

Right  to  revive  dependent  on  cause  of 
action  surviving. — The  personal  repre- 
sentatives of  a  deceased  party  to  a  suit 
cannot  prose^^ute  or  defend  the  suit  after 
his  death,  unless  the  cause  of  action,  on 
account  of  which  the  suit  was  brought, 
is  one  that  survives  by  law.  Rev.  Stat., 
§  955.  Schreiber  v.  Sharpless,  110  U.  S, 
76,    80,     28    L.     Ed.    65. 

25.  Statutory  provisions. — Baltimore^ 
etc.,  R.  Co.  V.  Joy,  173  U.  S.  226,  228,  43  L. 
Ed.  677;  Martin  v.  Baltimore,  etc.,  R. 
Co.,   151   U.    S.   673,    38   L.    Ed.   311. 

It  requires  the  aid  of  some  statutory 
provision,  like  that  of  the  31st  section 
of  the  judiciary  act  of  1789  (Rev.  Stat., 
§  995)  to  enable  the  suit  to  be  prosecuted 
by,  or  against,  the  personal  representa- 
tive or  heirs  of  the  deceased,  where  the 
cause  of  action  survives.  Green  v.  Wat- 
kins,  6   Wheat.   260,  5   L.   Ed.   256. 


ABATEMENT,  REVIVAL  AND  SURVIVAL. 


21 


cf  revivor,  and  the  proceeding's  being  revived,  the  court  proceeds  to  its  deter- 
mination as  on  an  original  bill.^^ 

c.  Proceedings  in  Admiralty. — As  a  proceeding  in  admiralty  is  one  in  rem 
against  the  property  rather  than  against  any  particular  party,  death  of  one  of 
the  parties  to  a  decree  in  admiralty,  does  not  prevent  its  enforcement. ^'^ 

2.  What  Law  Govkrns. — As  a  general  rule,  whether  a  pending  action  mav  be 
revived  upon  the  death  of  either  parly  and  proceed  to  judgment  depends  pri- 
marily upon  laws  of  jurisdiction  in  which  the  action  was  commenced. ^s  But  if 
an  action  be  brought  in  a  federal  court,  and  is  based  upon  some  act  of  congress 
or  arises  under  some  rule  of  general  law  recognized  in  the  courts  of  the  Union, 
the  question  of  revivor  will  depend  upon  the  statutes  of  the  United  States  relat- 
ing to  that  subject.-^ 

3.  Causes  of  Action  Which  Survive  or  Abate. — a.  Dependent  on  Sub- 
stance Not  Form  of  Action. — The  right  to  proceed  against  the  representatives  of 
a  deceased  person  depends  not  on  forms  and  modes  of  proceedings  in  a  suit,  but 
on  the  nature  of  the  cause  of  action  for  which  the  suit  is  brought.  Whether  an 
action  survives  depends  on  the  substance  of  the  cause  of  action,  not  on  the  forms 
of  proceedings  to  enforce  it.^*' 


26.  Proceedings  in  equity. — Clarke  v. 
Mathewson.  13  Pet.  164,  0  L.  Ed.  1041. 
See,  also,  Illinois  Central  R.  Co.  v.  Tur- 
ville,    110    U.    S.    301,    28    L.    Ed.    1.54. 

27.  Proceedings  in  admiralty. — Penhal- 
low  V.  Doane,  3  Dall.  54,  100,  1  L.  Ed. 
507. 

28.  What    law    governs — In    general. — 

Baltimore,  etc.,  R.  Co.  v.  Joy,  173  U.  S. 
226,  229,  43  L.  Ed.  677;  Patton  v.  Brady, 
184  U.  S.  608,  612,  46  L.  Ed.  713;  United 
States  V.  Daniel,  6  How.  11,  12  L.  Ed. 
823:  Schreiber  v.  Sharpless,  110  U.  S.  76, 
S8  L.  Ed.  65;  Martin  v.  Baltimore,  etc., 
R.  Co.,  151  U.  S.  673,  38  L.  Ed.  311. 
See.  e-enerally,  the  title  CONFLICT  OF 
LAWS. 

In  an  action  in  federal  courts  for  per- 
sonal injuries  the  question  whether  the 
administrator  has  a  right  of  action  de- 
pends upon  the  law  of  the  state  where  the 
action  was  brought  and  the  adminis- 
trator appointed.  Rev.  Stat.,  §  721;  Mar- 
fin  V.  Baltimore,  etc.,  R.  Co.,  151  U.  S. 
673,  692.  38  L  Ed.  311;  Hcnshaw  v.  Mil- 
ler.   17    How.    212,    15    L    Ed.    222. 

The  question  of  the  revivor  of  actions 
brought  in  the  courts  of  Ohio  for  per- 
sonal injuries  is  governed  by  the  lawc 
of  that  state,  rather  than  by  the  law  of 
the  state  in  which  the  iniuries  occurred. 
Baltimore,  etc..  R.  Co.  ?;.  "joy,  173  U.  S. 
226,    231,    43    L.    Ed.    677. 

"Congress  has  not,  speaking  generally, 
attempted  to  prescribe  the  causes  which 
survive  the  death  of  either  party.  Sec- 
tion 955.  Rev.  Stat.,  provides  that — when 
either  of  the  parties,  whether  plaintiff,  or 
petitioner,  or  defendant,  in  any  suit  in 
any  court  of  the  United  vStates,  dies  be- 
fore final  judgment,  the  executor  or  ad- 
ministrator of  such  deceased  party  may, 
in  case  the  cause  of  action  survives  hv 
law,  prosecute  or  defend  any  such  suit 
to  final  judgment.  This  does  not  define 
the    causes    which    survive.      In    the    ab- 


sence of  some  special  legislation, 
the  question  in  each  case  must  be 
settled  by  the  common  law  or  the  law  of 
the  state  in  which  the  cause  of  action 
arose.  United  States  v.  Daniel.  6  How. 
11,  12  L.  Ed.  323;  Henshaw  v.  Miller,  17 
How.  212,  15  L.  Ed.  222;  Schreiber  v. 
Sharpless,  110  U.  S.  76.  28  L.  Ed.  65;  Mar- 
tin V.  Baltimore,  etc.,  R.  Co.,  151  U.  S. 
673.  38  L.  Ed.  311;  Baltimore,  etc..  R.  Co. 
V.  Joy,  173  U.  S.  226,  229.  43  L  Ed.  677," 
Patton  V.  Brady,  184  U.  S.  608,  612.  46  L 
Ed.    713. 

29.  Action  based  on  act  of  congress  or 
arising  under  general  law. — Baltimore, 
etc..  R.  Co.  V.  Joy,  173  U.  S.  226,  229, 
43  L    Ed.  677. 

Thus  where  the  right  in  question  is  an 
action  for  a  penalty  under  a  statute  of 
the  United  _  States,  the  question  whether 
it  surAHves  is  governed  by  the  laws  of  the 
United  States.  Schre'ber  v.  Sharnless, 
110  U.  S.  76.  2S  L.  Ed.  65;  Martin  v.  Balti- 
more, etc.,  R.  Co.,  151  U.  S.  673,  38  L. 
Ed.   311. 

30.  Dependent  on  substance  not  form 
of  acHon. — Patton  v.  Brady,  1S4  U.  S. 
608.  615.  46  L  Ed.  713;  In  re  Connawav, 
178  U.  S.  421,  426,  44  L.  Ed.  li:?4;  Afartin 
V.  Baltimore,  etc.,  R.  Co.,  151  U.  S.  673, 
38  L.  Ed.  311;  Schreiber  v.  Sharpless,  110 
U.  S.  76,  28  L.  Ed.  65.  See,  po<=t,  "Nature 
of  Plea  Required,"   I,   C.  3,  c.   (2),   Ca). 

An  action  for  breach  of  promise  of 
marriage,  though  in  form  ex  contractu, 
is  in  substance  ex  delicto,  and  is  not 
subject  to  rules  governing  actions  ex  con- 
tractu. Hen=haw  v.  Miller,  17  How.  212, 
219.   15   L.    Ed.   222. 

An  action  on  an  imnlied  promise  for 
money  had  and  received  is  in  substance 
an  action  ex  coTitractu.  and  survives,  al- 
though the  declaration  contains  langtiage 
annrooriate  to  an  act'on  s'^nn'^'-'nT  in  tort. 
Patton  V.  Brady,  184  U.  S.  608,  615,  46 
L.    Ed.    713. 


22 


ABATEMENT,  REVIVAL  AND  SURVIVAL. 


b.  Causes  of  Action  Founded  on  Contract.— Qd^nsts  of  action  founded  on  con- 
tract generally  survive.^i  ,,^     ,     ^  ;       A.^U  1 

c  Causes  of  Action  Founded  on  Tort—{\)  In  General— Kt  the  common  law, 
causes  of  action  for  damages  for  injuries  to  person  or  property  died  with  the 

(2)  Tests  of  Survivorship— {2.)  Nature  of  Plea  Required.— At  the  common 
law,  no  cause  of  action  survives  where  the  plea  of  the  defendant  must  be  "not 

^(b)  Benefit  to  Estate  of  Tort  Feasor.— At  common  law  where,  by  means 
of  a  tort  or  oflfense,  property  is  acquired  which  benefits  the  deceased,  an  action 
for  the  value  of  the  property  survives  against  the  executor.34  But  if  the  deceased 
or  person  charged  secures  no  benefit  to  himself  at  the  expense  of  the  sufiferer 
by  a  tort  or  offense,  the  cause  of  action  does  not  survive  against  the  representa- 
tives of  the  deceased.35  ^  ,  ■  ^  •  , 
(c)  Election  to  Sue  in  Tort  Rather  than  Contract  Conclusive  on  Question  of 
Abatement.— Where  the  plaintiff  elects  to  go  into  court  on  an  action  sounding 
in  tort,  he  must  abide  by  his  election  and  cannot  be  permitted  to  transform  his 
action  'thereafter  into  one  of  contract  in  order  to  prevent  abatement.^e 

(3)  Waste. An  action  of  waste  does  not  lie  against  an  executor  or  adminis- 

trator.^'^ 


31.  Causes  of  action  founded  on  con- 
tract.— Martin  v.  Baltimore,  etc.,  R.  Co., 
151   U.    S.   673,    38   L.    Ed.    311. 

Action  on  implied  promise. — An  action 
of  assumpsit  on  an  implied  promise  to 
recover  back  taxes  illegally  assessed  sur- 
vives upon  the  death  of  the  defendant. 
Patton  V.  Brady,  184  U.  S.  608,  612,  46  L. 
Ed.    713.  •         .  . 

Breach  of  promise  of  marriage. — Al- 
though an  action  for  breach  of  promise 
of  marriage  is  in  form  ex  contractu,  yet 
since  the  cause  of  action  is  in  its  nature 
personal,  it  is  well  settled  at  common  law 
that  the  executor  of  the  person  to  whom 
the  promise  is  made  cannot  sue  thereon. 
Henshaw  v.  Miller,  17  How.  219,  15  L. 
Ed.    222. 

32.  Causes  of  action  founded  on  tort — 
In  s^eneral. — Martin  v.  Baltimore,  etc., 
R.  Co.,  151  U.  S.  673,  38  L.  Ed.  311;  Hen- 
shaw V.  Miller,  17  How.  212,  15  L.  Ed. 
222;  Macker  v.  Thomas,  7  Wheat.  530, 
5  L.  Ed.  515;  Green  v.  Watkins,  6  Wheat. 
260,  5  L.  Ed.  256;  United  States  v.  Dan- 
iel, 6  How.  13,  12  L.  Ed.  323;  Irongate 
Bank  v.  Brady,  184  U.  S.  665,  667,  46  L. 
Ed.    739. 

The  maxim  of  the  common  law  is  "ac- 
tio personalis  moritur  cum  persona,"  and, 
in  England,  it  has  been  expounded  to  ex- 
clude all  torts  when  the  action  is  in  form 
ex  delicto,  for  the  recovery  of  damages, 
and  the  plea  not  guilty,  and  in  case  of 
injury  to  the  person,  whether  by  assault, 
battery,  false  imprisonment,  slander,  or 
otherwise,  if  either  party  who  received 
or  committed  the  injury  die,  no  action 
can  be  supported  either  by  or  against  the 
executors  or  other  personal  representa- 
tives. Henshaw  r.  Miller,  17  How.  212, 
219,    15    L.    Ed.    222. 

"All  private  criminal  injuries  or 
wrongs,  as  well  as  all  public  crimes,  are 
buried  with  the  offender."  United  States 
V.   Daniel,   6    How.    11,    14,   12   L.    Ed.  323. 


33.  Nature  of  plea  required. — United 
States  V.  Daniel.  6  How.  11,  13,  12  L.  Ed. 
323.  See  ante,  "Dependent  on  Substance 
Not    Form   of   Action,"    I,   C,   3,   a. 

34.  Estate  of  tort  feasor  benefited. — 
United  States  v.  Daniel,  6  How.  11.  13,  12 
L.  Ed.  323;  Patton  v.  Brady,  184  U.  S. 
608,  614,  46  L.  Ed.  713;  Irongate  Bank 
V.  Brady.  184  U.  S.  655,  667,  46  L.  Ed.  739. 

35.  Estate  of  tort  feasor  not  benefited. 
— United  States  v.  Daniel,  6  How.  11, 
13,  12  L.  Ed.  232;  Patton  v.  Brady,  184 
U.  S.  608,  614,  46  L.  Ed.  713;  Irongate 
Bank  v.  Brady,  184  U.  S.  665,  667,  46  L- 
Ed.    739. 

A  tort  by  which  the  estate  of  the  de- 
fendant was  not  increased  and  the  es- 
tate of  the  plaintiff  damaged  only  as  an 
indirect  consequence  of  the  alleged 
wrongful  act  of  the  defendant,  does  not, 
either  at  common  law  or  by  the  stat- 
utes of  Virginia,  survive  the  death  of  the 
wrongdoer.  Irongate  Bank  v.  Brady,  184 
U.    S.    665,    667,  -46    L.    Ed.    739. 

36.  Election  to  sue  in  tort  rather  than 
contract  conclusive  on  question  of  abate- 
ment.— Irongate  Bank  v.  Brady,  184  U. 
S.    665,    667,    46    L.    Ed.    739. 

A  party  cannot  avail  himself  of  the 
large  amount  claimed  on  account  of  a 
tort  in  order  to  vest  jurisdiction  in  the 
circuit  court,  and  then  on  the  death  of 
the  alleged  wrongdoer,  prevent  an  abate- 
ment of  the  action,  which  would  neces- 
sarily take  place  if  the  action  was  only 
for  a  tort,  by  reason  of  an  averment  of 
facts  from  which  a  contract  to  pay  a 
small  sum,  one  below  the  jurisdiction  of 
the  court,  might  be  implied.  In  other 
words,  he  cannot  call  it  tort  to  acquire 
jurisdiction,  and  contract  to  prevent 
abatement.  Irongate  Bank  v.  Brady,  184 
U.    S.    665,    667,   46    L.    Ed.    739. 

37.  Waste. — United  States  v.  Daniel,  6 
How.  11,  13,  12  L.  Ed.  323.  See  the  title 
WASTE. 


ABATEMENT,  REVIVAL  AND  SURVIVAL. 


23 


(4)  Trover  and  Com'ersion. — No  action  will  lie  against  an  executor  upon  a 
trover  and  conversion  by  his  testator,  though  a  different  form  of  action  might  lie 
for  the  same  cause.^^ 

(5 J  Misfeasance  of  Sheriff  or  Jailer. — An  action  against  a  marshal  for  darn- 
ages  sustained  by  a  false  return  does  not  survive  against  his  personal  representa- 
tives,-^" nor  will  an  action  lie  against  the  executor  of  a  jailer  for  an  escape.*® 

(6)  Taking  or  Injuring  Goods  or  Property. — Under  statutes  providing  that 
an  action  may  be  maintained  by  or  against  personal  representatives  for  taking 
or  carrying  away  any  goods  or  for  the  waste  or  destruction  of  or  damage  to  any 
esiate  of  or  by  the  decedent,  an  action  may  be  maintained  against  the  personal 
representatives  of  a  decedent  by  whose  wrongful  act  the  estate  of  the  plaintiff 
has  suffered  a  money  damage,  although  no  goods  or  property  be  taken  or  carried 
away.^^ 

d.  Statutory  Liability  of  Stockholders. — The  individual  liability  of  a  stock- 
holder in  a  national  bank  survives  against  his  personal  representatives.^- 

4.  Actions  or  Proceedings  Which  Survive  or  Abate — a.  Actions  on  Penal 
Statutes. — x'\t  common  law,  actions  on  penal  statutes  do  not  survive,  and  there  is 
no  act  of  congress  which  establishes  any  other  rule  in  respect  to  actions  on  the 
penal   statutes   of   the   United    States^^ 

b.    Suits  for  Infringement  of  Patent. — A  suit  for  the  infringement  of  a  patent 


38.  Trover  and  conversion. — United 
States  V.  Daniel,  6  How.  11,  13,  12  L.  Ed. 
323.  See  the  title  TROVER  AND  CON- 
VERSION. 

39.  Action  against  marshal  for  false 
return. — United  States  v.  Daniel,  6  How. 
11,  12  L.  Ed.  323:  Patton  v.  Brady,  184  U. 
S.    608,    614,    46    L.    Ed.    713. 

An  action  against  one  who  had  in  his 
lifetime  been  marshal  of  a  district,  to  re- 
cover damages  which  the  plaintiffs  had 
sustained  by  reason  of  false  returns  made 
on  certain  executions  by  one  of  defend- 
ant's deputies,  did  not  survive  where  the 
decedent  had  received  no  benefit  and  had 
not  increased  his  estate  by  means  of  the 
wrongful  act.  United  States  v.  Daniel,  6 
How.  11,  12  L.  Ed.  323;  Patton  v.  Brady, 
184  U.   S.  608,   614,  46  L.  Ed.  713. 

The  provision  in  the  10th  section  of 
the  North  Carolina  statute,  "to  prevent 
the  abatement  of  suits  in  certain  cases," 
which  declares  that  an  action  of  trespass 
on  the  case,  etc.,  shall  not  abate  by  the 
death  of  either  party,  does  not  affect  the 
above  question.  United  States  v.  Daniel, 
6  How.  11,  14,  12  L.  Ed.  323.  See  the 
title  EXECUTIONS. 

40.  Action  for  escape. — United  States 
V.  Daniel,  6  How.  11.  13,  12  L.  Ed.  323. 
See    the    title    ESCAPE. 

41.  Taking  or  injuring  goods  or  prop- 
erty.—Patton  v.  Brady.  184  U.  S.  608,  612, 
46  L.  Ed.  713  (construing  §  2655,  Va. 
Code    of    1887). 

The  term  "goods"  is  broad  enough  to 
include  money,  for  it  would  be  strange 
that  a  cause  of  action  for  taking  and 
carrying  away  a  thousand  pieces  of  silver 
should  survive  the  death  of  the  defend- 
ant, while  a  like  action  for  taking  and 
carrying  away  a  thoitsand  dollars  in 
money  should  not.  Patton  v.  Brady,  184 
U.    S.    608,    612,    46    L.    Ed.    713. 


An  action  against  the  personal  repre- 
sentatives of  a  decedent,  where  the  es- 
tate of  plaintiff  was  reduced  to  the 
amount  of  three  thousand  dollars  and 
over,  by  the  action  of  decedent,  is  a  direct 
damage  within  the  rule  laid  down  by  the 
court  of  appeals  of  Virginia  in  Mum- 
power  V.  Bristol,  94  Va.  737,  in  which  the 
court  held,  that:  "The  damages  allowed 
to  be  recovered  by  or  against  a  personal 
representative  by  §  2655  of  the  Code  are 
direct  damages  to-  property,  and  not  those 
which  are  merely  consequent  upon  a 
wrongful  act  to  the  person  only."  Pat- 
ton V.  Brady,  184  U.  S.  608,  613,  46  L. 
Ed.    713. 

42.  Liability  of  stockholder  in  national 
bank. — Richmond  z\  Irons,  121  U.  S.  27, 
30  L.  Ed.  864;  Whitman  v.  Oxford  Nat. 
Bank.  176  U.  S.  559,  565,  44  L.  Ed.  587; 
Matteson  v.  Dent,  176  U.  S.  521,  44  L. 
Ed.  571.  See,  generally,  the  titles 
BANKS  AND  BANKING;  STOCK 
AND    STOCKHOLDERS. 

43.  Actions  on  penal  statutes. — Schrei- 
ber  V.  Sharpless,  110  U.  S.  76,  80,  28  L. 
Ed.  65;  Martin  v.  Baltimore,  etc.,  R  Co 
151  U.  S.  673,  38  L.  Ed.  311:  In  re  Con- 
naway,  178  U.  S.  421,  426,  44  L.  Ed.  1134. 
Patton  V.  Brady,  184  U.  S.  608,  615,  46 
L.    Ed.    713. 

Effect  of  state  statute  permitting  suits 
on  penal  statutes  after  death  of  offender. 
— ^^As  the  nature  of  penalties  and  for- 
feitures imposed  by  acts  of  congress  can- 
not be  changed  by  state  laws,  it  follows 
that  state  statute  allowing  suits  on  state 
penal  statutes  to  be  prosecuted  after  the 
death  of  the  offender,  can  have  no  effect 
on  suits  in  the  courts  of  the  United  States 
for  the  recovery  of  penalties  imposed  by 
an  act  of  congress.  Schreiber  z\  Sharp- 
less,   110  U.   S.   76,   80,   28   L.    Ed.   65. 


24 


ABATEMENT,  REVIVAL  AND  SURVIVAL. 


does  not  abate  by  the  death  of  the  plaintiff  but  may  be  further  prosecuted  in  the 
name  of  legal  representatives  of  the  decedent.** 

c  Recovery  Back  of  Taxes. — An  action  against  a  collector  of  niternal  revenue 
to  recover  a  tax  paid  to  him  under  protest  by  the  plaintiff,  upon  the  ground  that 
the  act  of  conoress  under  which  the  tax  is  levied  is  invalid,  is  in  substance  an  ac- 
tion on  an  implied  promise,  for  which  assumpsit  is  the  appropriate  remedy,  and 
survives  upon  the  death  of  the  defendant  and  may  be  revived  against  his  personal 
representatives.*^ 

d  Fraud  and  Deceit. — An  action  for  fraud  or  decit  does  not  survive  against 
the  personal  representatives  of  the  defendant.*^  This  rule  has  been  held  to  ap- 
ply to  an  action  against  one  who  fraudulently  represents  another  to  be  worthy  of 

credit.*''' 

e.  Personal  Injuries. — At  common  law,  an  action  for  personal  injuries  abated 
by  the  death  of  the  plaintiff  pending  the  action,* ^  but  statutes  in  some  states  per- 
mit a  revival  of  the  action  in  such  case,*^  and  the  right  to  revive  in  such  case  is 
not  lost  by  a  removal  of  the  case  to  a  federal  court .•'''^  But  it  has  been  held, 
that  statutes  authorizing  the  personal  representative  to  bring  an  action  after_  the 
death  of  a  person  injured,  have  no  tendency  to  show  an  intention  of  the  legisla- 
ture that  the  representative  may  prosecute  a  common-law  action  brought  by  that 
person  in  his  lifetime.^ ^ 

/.  Death  by  Wrongful  Act.— See,  generally,  the  title  Death  by  Wrong- 
ful Act. 

•0-.  Real  Actions. — At  common  law,  real  actions  abate  by  the  death  of  the  an- 
cestor, without  having  appeared  to  the  suit,  and  they  cannot  be  revived  and  pros- 
ecuted  against  the  heirs    of   the    original    defendant.^2     And   this   rule   is   not 


44.  Suit   for   infringement    of   patent. — 

Illinois  Central  R.  Co.  v.  Turrill,  110  U. 
S  301.  28  L.  Ed.  154.  See  the  title  PAT- 
ENTS. 

45.  Recovery  back  of  taxes. — Patton 
V.  Bradv.  184  U.  S.  608,  46  L.  Ed.  713; 
Iron  Gate  Bank  v.  Brady.  184  U.  S.  665, 
667,  46  L.  Ed.  739.  See  the  titles  REVE- 
NUE  LAWS:   TAXATION. 

46.  Fraud  and  deceit. — Henshaw  v.  Mil- 
ler,   17    How.    212,    15    L.    Ed.   222. 

47.  Fraudulent  representation  that  per- 
son is  worthy  of  credit. — Where  an  ac- 
tion on  the  case  was  brought  in  Vir- 
ginia, against  a  person  to  recover  dam- 
ages for  fraudulently  recommending  a 
third  party  as  worthy  of  credit,  wherebA^ 
loss  was  incurred;  and  after  issue  joined 
upon  the  plea  of  not  guilty,  the  defend- 
ant died,  the  action  did  not  survive 
a^rainst  the  executor,  but  abated.  Hen- 
shaw V.  Miller,  17  How.  212,  15  L.  Ed. 
222.  See  the  title  FRAUD  AND  DE- 
CEIT. 

48.  Action  for  personal  injuries  abated 
at  common  law. — Martin  t.  Baltimore, 
etc..  R.  Co.,  151  U.  S.  673,  38  L.  Ed.  311; 
Baltimore,  etc.,  R.  Co.  v.  Joy,  173  U.  S. 
226.   229.   43    L.    Ed.   677. 

49.  Statutes  permitting  revival  of  ac- 
tions for  personal  injuries. — Baltimore, 
etc..  R.  Co.  V.  Joy,  173  U.  S.  226,  229, 
43    L.    Ed.   677. 

In  Ohio. — An  action  pending  in  the  cir- 
cuit court  of  the  United  States  sitting  in 
Ohio,  brought  by  the  injured  person  as 
plaintiflF  to  recover  damages  for  injuries 
sustained  by  the  negligence  of  the  de- 
fendant in  Indiana,  does  not   finally  abate 


upon  the  death  of  the  plaintiff  in  view  of 
the  fact  that,  had  no  suit  been  brought 
at  all,  the  cause  of  action  would  have 
abated  both  in  Indiana  and  Ohio,  and 
that,  even  if  suit  had  been  brought  in 
Indiana,  the  action  would  have  abated  in 
that  state.  Baltimore,  etc.,  R.  Co.  v.  Joy. 
173   U.   S.   226.  228.  43   L.   Ed.   677. 

In  West  Virginia,  an  action  for  per- 
sonal injuries  abates  by  the  death  of  the 
plaintiff  pending  the  action.  Martin  v. 
Baltimore,  etc.,  R.  Co.,  151  U.  S.  673, 
38    L.    Ed.    311. 

50.  Effect  of  removal  of  case  to  federal 
court. — A  right  given  by  the  statute  of 
a  state  to  revive  a  pending  action  for 
personal  injuries  in  the  name  of  the  per- 
sonal representative  of  a  deceased  plain- 
tiff is  not  lost  upon  the  removal  of  the 
case  into  a  federal  court.  Baltimore,  etc., 
R.  Co.  V.  Toy,  173  U.  S.  226.  229,  43  L. 
Ed.  677.  In  re  Connaway,  178  U.  S.  421, 
44    L.    Ed.    1134. 

51.  Effect  of  statute  authorizing  ac- 
tion for  death. — Martin  v.  Baltimore,  etc., 
R.  Co.,  151  U.  S.  673,  696,  38  L.  Ed.  311. 
See  the  title  DEATH  BY  WRONGFUL 
ACT. 

52.  Real  actions  abate  at  common  law. 
— -I^Tacker  7'.  Thomas.  7  Wheat.  5^0,  5 
L.  Ed.  515:  Green  v.  Watkins,  6  Wheat. 
260.    5    L.    Ed.    256. 

If  the  heirs  be  made  parties,  by  order 
of  the  court  in  which  the  suit  is  brought, 
and  judgment  is  entered  against  them, 
by  default,  for  want  of  a  plea,  upon  a 
summons  and  count  a.gainst  the  original 
defendant,  they  may  sue  out  a  writ  of  er- 
ror,   and    reverse    the    judgment.      Macker 


ABATEMENT,  REI'IVAL  AND  SURVIVAL. 


25 


changed  by  the  31st  section  of  the  judiciary  act  of  1789,  ch.  20,  which  is  clearly 
confined  to  personal  actions,  power  to  prosecute  or  defend  being  given  to  the 
executor  or  administrator  of  the  deceased  party,  and  not  to  the  heir  or  devisee.^^ 
h.  Discovery. — After  an  answer  and  discovery,  the  rule  is,  that  a  suit  brought 
rnerely  for  discovery,  cannot  be  revived;  the  object  is  obtained,  and  the  plain- 
tiff has  no  motive  for  reviving  it.^-* 

5.  Effect  of  Death  of  One  of  Several  Plaintiffs  or  Defendants. — If 
there  are  two  or  more  plaintiffs  or  defendants,  in  a  suit  where  the  cause  of  ac- 
tion survives  to  the  surviving  plaintiff,  or  against  the  surviving  defendant,  and 
one  or  more  of  them  dies,  the  writ  or  action  is  not  thereby  abated,  but,  the  death 
being  suggested  upon  the  record,  the  action  may  proceed  at  the  suit  of  the  sur- 
viving plaintiff  or  against  the  surviving  defendant/'^  Thus  in  a  suit  by  tenants 
in  common  for  an  indivisible  thing,  such  as  a  slave,  a  right  of  action  survives  to 
one  upon  the  death  of  the  other. s*^ 

6.  Death  of  Plaintiff  before  Filing  of  Petition. — If  the  plaintiff'  dies 
before  the  filing  of  the  petition,  subsequent  proceedings  in  the  action  are  of  no 
effect,  and  a  decree  rendered  therein  is  void.^'^ 

7.  Death  after  Hearing  and  before  Judgment. — Where  the  delay  n] 
rendering  a  judgment  or  a  decree  arises  from  the  act  of  the  court,  that  is,  where  the 
delay  has  been  caused  either  for  its  convenience,  by  the  multiplicity  or  press  of 
business,  the  intricacy  of  the  questions  involved,  or  of  any  other  cause  not  at- 
tributable to  the  laches  of  the  parties,  the  judgment  or  the  decree  may  be  entered 
retrospectively,  as  of  a  time  when  it  should  or  might  have  been  entered  up.  In 
such  cases,  upon  the  maxim  actus  curiae  neminem  gravabit — which  has  been  ^\-e]\ 
said  to  be  founded  in  right  and  good  sense,  and  to  afford  a  safe  and  certain 
guide  for  the  administration  of  justice — it  is  the  duty  of  the  court  to  see  that  the 
parties  shall  not  suffer  by  the  delay.^^ 


V.  Thomas.  7  Wheat.  530,  5  L.  Ed.  515. 
See  the  titles  EJECTMENT;  REAL  AC- 
TIONS. 

53.  Effect  of  judiciary  act  on  real  ac- 
tions.— Macker  v.  Thomas,  7  Wheat.  530, 
5    L.    Ed.    515. 

Such  a  suit  having  abated  by  the  death 
of  the  defendant,  it  is  out  of  court  and 
a  new  summons  and  count  against  the 
heirs  is  necessary.  Macker  v.  Thomas,  7 
Wheat.   530,  5  L.   Ed.  515. 

54.  Discovery. — Horsburg  v.  Baker,  1 
Pet.  232,  7  L.  Ed.  125.  See  the  title  DIS- 
COVERY. 

55.  Effect  of  death  of  one  of  several 
plaintiffs  or  defendants. — Rev.  Stat.,  § 
955;  Martin  v.  Baltimore,  etc.,  R.  Co.,  151 
U.  S.  673,  691,  38  L.  Ed.  311;  In  re 
Connaway,  178  U.  S.  431,  435,  44  L.  Ed. 
1134.  Shelby  v.  Guy,  11  Wheat.  361,  6 
L.    Ed.    495. 

Even  at  common  law,  the  death  of  one 
of  several  joint  defendants  did  not  abate 
the  action,  if  the  cause  of  action  sur- 
vived against  the  other.  In  re  Conna- 
way, 178  U.   S.  421.  435,  44  L.   Ed.  1134. 

56.  Death  of  one  of  several  tenants  in 
common  suing  for  indivisible  thing. — 
Shelby  v.  Guy,  11  Wheat.  361,  365,  6  L. 
Ed.  495.  See,  generally,  the  title  JOINT 
TENANTS  AND  TENANTS  IN  COM- 
MON. 

"It  is  true,  that  tenants  in  common 
must  ordinarily  ioin  in  an  action,  and 
that  the  laws  of  Virginia  produce  a  sever- 
ance upon  the  death  of  a  joint  tenant,  so 


that  the  right  of  survivorship  is  abolished. 
But  it  is  also  true,  that  in  suits  for  an 
indivisible  thing,  a  right  of  action  sur- 
vives to  a  tenant  in  common;  and  this, 
from  the  necessity  of  the  case,  as  we 
conceive  the  authorities  sufficiently  main- 
tain. (Co.  Litt.  198a:  Bro.  Abr.  tit.  Ten- 
ant in  Common,  pi.  18.)"  Shelby  v.  Guy. 
11    Wheat.    361,    365,    6    L.    Ed.    495. 

57.  Death  of  plaintiflF  before  filing  of 
petition. — Harter  v.  Twohig,  158  U  S, 
448,  39  L.   Ed.   1049. 

58.  Death  after  hearing  and  before 
judgment  in  general. — Mitchell  v.  Over- 
man. 103  U.  S.  62,  64,  26  L.  Ed.  369.  See, 
also.  United  States  Bank  v.  Weisiger, 
3  Pet.  481,  7  L.  Ed.  441.  See 
the  title  JUDGMENTS  AND  DE- 
CREES. 

A  judgment  rendered  after  a  defendant's 
death,  without  the  plaintiff's  fault,  is  not 
void.  The  irregularity  or  error  may  be 
cured  by  entering  it  nunc  pro  tunc  of  a 
date  prior  to  the  defendant's  death;  and 
even  this  has  been  held  not  necessary  in 
a  collateral  proceeding.  New  Orleans  v. 
Gaines,  138  U.  S.  595,  612,  34  L.   Ed.  1102. 

Where  a  judgment  rendered  upon  a 
verdict  in  favor  of  the  plaintiff  is  erro- 
neously set  aside,  the  subsequent  final 
judgment  for  the  defendant  must  be  re- 
versed, and  the  former  judgment  for  the 
plaintiff  affirmed  as  of  the  date  when 
it  was  rendered,  in  order  to  prevent  the 
action  from  being  abated  by  the  subse- 
quent  death  of  the   plaintiff.     Coughlin  v. 


26 


ABATEMENT,  REVU^-iL  AND  SURl'IVAL, 


8.  De;ath  after  Interlocutory  Judgment. — In  Virginia,  if  the  defendant 
die  after  interlocnlory  judgment  and  a  writ  of  inquiry  awarded,  his  a  '.nunis- 
trator,  upon  scire  facias,  can  only  plead  what  his  intestate  could  have  pleaded/'^ 

9.  Death  Pending  Appeal  or  Error.— See  the  title  Appeal  and  Error. 

10.  Death  after  Termination  of  Suit. — It  is  a  general  rule  that  the  death 
of  a  party  to  a  suit  after  judgment  and  before  execution  abates  the  suit.^*^  But 
the  general  rule  does  not  apply  where  land  has  been  sold  upon  execution  and  no 
deed  delivered,*'^  and  after  a  decree  of  foreclosure  of  a  mortgage  and  a  salt,  and 
the  death  of  the  defendant  after  the  decree,  it  is  not  necessary  to  revive  the  pro- 
ceedings against  the  heirs  of  the  deceased  party,  before  the  sale  of  the  property 
can  be  made.*^- 

11.  Death  of  Accused  in  Criminal  Case. — A  criminal  case  is  abated  by  the 
death  of  the  accused. "^^ 

D.  Termination,  Change  or  Transfer  of  Interest — 1.  Termination  of 
Official  Authority — a.  Action  or  Suits  by  Officers — Action  by  Foreign  Sov- 
ereigiir. — A  change  in  the  person  of  a  foreign  sovereign,  pending  a  suit  brought 
in  hi^  name  in  the  United  States  courts  for  an  injury  to  a  public  ship  of  war, 
does  not  abate  the  suit,  but  the  change,  if  necessary,  may  be  suggested  on  the 
record.^^ 

b.  Actions  or  Suits  against  Officers  or  Boards — (1)  Suits  Involving  Personal 
Delinquency  of  Officer. — A  suit  against  an  individual  in  his  official  capacity  for 
a  personal  delinquency  abates  by  his  death  or  retirement   from  office.^^ 


District  of  Columbia,  106  U.  S.  7,  11,  27 
L.   Ed.   74. 

Death  while  court  has  case  under  ad- 
visment. — Where  a  party  was  alive 
■wrhen  a  cause  was  argued  and  submitted 
and  was  entitled  at  that  time,  or  at  the 
term  of  submission,  to  claim  its  final 
disposition,  but  a  decree  was  not  then 
entered  because  the  case,  after  argument, 
was  taken  under  advisement,  the  delay 
was  altogether  the  act  of  the  court  and 
its  duty,  where  the  party  died  before  en- 
try of  a  decree,  was  to  order  a  decree 
nunc  pro  tunc,  so  as  to  avoid  entering  an 
erroneous  decree.  Mitchell  v.  Overman, 
103  U.   S.   62,  65,  26   L.   Ed.   369. 

In  an  action  for  divorce  and  alimony, 
the  wife's  rights  to  alimony  and  costs 
are  not  impaired  by  the  husband's  death, 
pending  a  delay  in  entering  judgment 
while  the  court  has  held  the  case  under 
advisement,  and  may  be  preserved  by  en- 
tering judgment  nunc  pro  tunc,  as  of  the 
day  when  it  was  argued.  Bell  v.  Bell, 
181  U.   S.   175,   178.  45   L.    Ed.  804. 

Death  of  one  of  several  defendants 
during  term. — If  one  of  two  defendants 
die  after  the  commencement-  of  the  term, 
judgment  may  be  entered  against  both  de- 
fendants, on  a  day  prior  to  the  death,  nunc 
pro  tunc.  McNutt  v.  Bland,  2  How.  28, 
11   L.   Ed.   159. 

58.  Death  after  interlocutory  judg- 
ment.— McKnight  v.  Craig,  6  Cranch  183, 
3    L.    Ed.    193. 

60.  Death  after  judgment  and  before 
execution. — Insley  v.  United  States,  150 
U.  S.  512,  516.  37  L.  Ed.  1163;  Ranson  v. 
Williams,  2  Wall.  313.  317,  17  L.  Ed.  803; 
See    the    title    EXECUTIONS. 

If  there  was   but  one  defendant,  and  he 


died  after  judgment,  no  execution  could 
issue  unless  it  was  tested  before-  the 
death  occurred.  Ransom  v.  Williams,  2 
Wall.   313,   317,   17   L.    Ed.  803. 

Where  plaintifiF  sued  for  lands  which 
he  claimed  as  his  own  and  which  a  city  had 
sold  to  the  defendants,  and  obtained 
judgment,  and  an  order  for  an  account- 
ing of  rents  and  profits,  and  pending  a 
subsequent  suit  by  the  plaintiff  against 
the  city  for  the  rents,  profits,  etc.,  some 
of  the  defendants  in  the  first  suit  died, 
the  fact  that  there  was  no  revivor  of  the 
case  does  not  affect  the  rights  of  the 
plaintiff  in  his  suit  against  the  city.  New 
Orleans  v.  Gaines,  138  U.  S.  595,  597, 
34   L.    Ed.    1102. 

61.  Land  sold  on  execution  and  no 
deed  delivered. — Inslev  v.  United  States, 
150    U.    S.    512.    516,    37'  L.    Ed.    1163. 

62.  Death  after  decree  of  foreclosure  and 
before  sale. — Whiting  !■.  United  States 
Bank,  13  Pet.  6,  10  L.  Ed.  33.  See  the 
title  MORTGAGES  AND  DEEDS  OF 
TRUST. 

63.  Death  of  accused  in  criminal  case. 
— List  V.  Pennsylvania,  131  U.  S.  396; 
Menken  v.  Atlanta,  131  U.  S.  405,  9  Sup. 
Ct.  Rep.  794.  (Death  pending  writ  of 
error.) 

64.  Action  by  foreign  sovereign. — The 
Sapphire,   11   Wall.  164,  20  L.   Ed.   127. 

If  an  injury  to  any  party  could  be 
shown  to  arise  from  a  continuation  of 
the  proceedings  after  a  change  in  the 
person  of  the  soverign,  the  court  in  its 
discretion  would  take  order  to  prevent 
such  a  result.  The  Sapphire.  11  Wall. 
164,    20    L.    Ed.    127._ 

65.  Suits  involving  personal  delin- 
quency of  officer. — United  States  v.   Bout- 


ABATBMBXT,  REVIVAL  AND  SURVIVAL. 


27 


(2)  Suits  Involving  Continuing  Duty  of  Office  or  Board. — Where  there  is  a 
continuing  duty  irrespective  of  the  incumbent,  and  the  proceeding  is  undertaken 
to  enforce  an  obligation  of  the  corporation  or  municipality  to  which  the  office  is 
attached,  a  suit  against  a  public  official,  does  not  abate  by  his  death  or  retirement 
from  office. ^^ 


well.  17  Wall.  604,  21  L.  Ed.  721;  United 
States  z:  Lochren,  164  U.  S.  701,  41  L. 
Ed.  319;  Bernardin  v.  Butterworth,  169 
U.  S.  600,  42  L.  Ed.  873;  Commissioners 
V.  Sellew,  99  U.  S.  624.  25  L.  Ed.  333; 
United  States  v.  Schurz,  102  U.  S.  407, 
26  L.  Ed.  219;  Warner  Valley  Stock  Co. 
V.  Smith,  165  U.  S.  28,  41  L.  Ed.  621; 
Secretary  v.  McGarrahan,  9  Wall.  298, 
19.  L.  Ed.  579;  United  States  f.  Chandler, 
122  U.  S.  643;  Murphy  v.  Utter,  186  U. 
S.  95,  46  L.  Ed.  1070.  Thompson  v. 
United  States,  103  U.  S.  480.  484,  26  L.  Ed. 
6«1;  Smith  v.  Reytiolds,  166  U.  S.  717,  41 
L.   Ed.    1186. 

In  the  absence  of  statutory  provision 
t©  the  contrary,  a  mandamus  against  an 
officer  of  the  government  abates  on  his 
death  or  retirement  from  office.  His  suc- 
cessor in  office  cannot  be  brought  in  by 
way  of  amendment  of  the  proceeding  or 
on  an  order  for  the  substitution  of  par- 
ties. United  States  v.  Boutwell,  17  Wall. 
604,    21    L.    Ed.    721. 

"That  a  petition  for  a  writ  of  manda- 
mus to  a  public  officer  of  the  United 
States  abates  b)'  his  resignation  of  his  of- 
fice has  been  determined  by  a  series  of  uni- 
form decisions  of  this  court,  and  has  for 
years  been  considered  as  so  well  settled 
that  in  some  of  the  cases  no  opinion  has 
been  filed  and  no  official  report  Dublished." 
Warner  Valley  Stock  Co.  2\  Smith,  165 
U.  S.  28,  31,  41  L.  Ed.  621;  Secretary  z: 
McGarrahan,  9  Wall.  298.  19  L.  Ed.  579; 
United  States  z:  Boutwell,  17  Wall.  604, 
21  L.  Ed.  721 ;  Commissioners  z'.  Sellew, 
99  U.  S.  624,  25  L.  Ed.  333;  United  States 
v.  Schurz.  102  U.  S.  407.  26  L.  Ed.  219; 
Thompson  v.  United  States.  103  U.  S. 
480,  26  L.  Ed.  52];  United  States  z:  Chan- 
dler, 122  U.  S.  643;  United  States  v.  La- 
ment,. 155  U.  S.  303,  39  L.  Ed.  160; 
United  States  r.  Lochren,  164  U.  S.  701, 
41  L.  Ed.  319.  See  the  title  MANDA- 
MUS. 

Secretary  of  treasury. — A  mandamus 
against  the  secretary  of  the  treasury 
abates  on  his  death  or  retirement  from 
office,  and  his  successor  cannot  be 
brought  in  by  way  of  amendment  or  or- 
der of  substitution.  United  States  v. 
Boutwell,  17  Wall.  604,  21   L.   Ed.  721. 

Secretary  of  interior. — Where,  upon  an 
application  for  a  writ  of  mandamus 
against  a  person  as  secretary  of  the  in- 
terior, it  appears  that  such  person  has 
resigned  some  months  before  the  deci- 
sion of  the  court  is  announced,  the  suit 
abates  by  his  resignation,  because  he  no 
longer  possesses  the  power  to  execute 
the  commands  of  the  writ,  and  his  suc- 
cessor  cannot   Le   adjudged   in    default,    as 


the  judgment  was  rendered  against  him 
withotit  notice  or  opportunity  to  be  heard. 
Secretary  v.  McGarrahan,  9  Wall.  298, 
19    L.    Ed.    579. 

Secretary  of  interior  and  commis- 
sioner  of  land  office. — In  Warner  Valley 
Stock  Co.  7'.  Smith,  165  U.  S.  28,  41  L. 
Ed.  621,  a  bill  in  equity  against  the  sec- 
retary of  the  interior  and  the  commis- 
sioner of  the  general  land  office,  by  their 
personal  names,  to  restrain  them  from 
exercising  jurisdiction  with  respect  to 
the  disposition  of  certain  public  lands, 
and  to  compel  the  secretary  to  issue  pat- 
ents therefor  to  the  plaintiff,  was  held  to 
abate,  as  to  the  secretary,  upon  his  resig- 
nation from  office,  and  could  not  after- 
wards be  maintained  against  the  commis- 
sioner alone.  Murphy  z'.  Utter.  186  U.  S, 
95,  101,  46  L.  Ed.  1070.  See,  also.  Smith 
V.  Reynolds,  166  U.  S.  717,  41  L.  Ed. 
1186. 

Secretary  of  rmvy. — A  writ  of  error 
for  the  review  of  a  judgment  of  the  su- 
preme court  of  the  District  of  Columbia 
refusing  a  mandamus  against  a  certain 
person  as  secretary  of  the  navy,  to  re- 
quire of  him  the  performance  of  certain 
alleged  official  duties,  abates  where  such 
person  ceases  to  be  secretary  pending  the 
writ.  United  States  v.  Chandler,  122  U. 
S.    643. 

Commissioner  of  patents. — In  United 
States  ex  rel.  Bernardin  v.  Butterworth, 
169  U.  S.  600,  42  L.  Ed.  873,  it  was  held. 
that  a  suit  to  compel  the  commissioner 
of  patents  to  issue  a  patent  abates  by  the 
death  of  the  commissioner,  and  cannot 
be  revived  so  as  to  bring  in  his  successor, 
although  the  latter  gives  his  consent. 
Murphy  v.  Utter,  186  U.  S.  95,  101,  46  L. 
Ed.    1070. 

State  official. — An  action  against  the  au- 
ditor general  of  a  state  to  remove  a 
cloud  upon  the  plaintiffs  title  to  certain 
land  which  had  been  sold  for  taxes,  upon 
the  ground  that  the  tax  laws  of  the  state 
under  which  they  were  sold  were  uncon- 
stitutional, cannot  be  maintained  after 
the  retirement  of  the  officer  from  office. 
Chandler  v.  Dix,  194  U.  S.  590,  48  L.  Ed, 
1129. 

66.  Suits  involving  continuing  duty  of 
office  or  board. — Thompson  v.  United 
States.  103  U.  S.  480.  483,  26  L.  Ed.  521; 
Commissioners  -'.  Sellew,  99  U.  S.  624, 
25.  L.  Ed.  333;  Murphy  v.  Utter,  186  U. 
S.  95,  10],  46  L.  Ed.  1070;  Warner  Valley 
Stock  Co.  V.  Smith,  165  U.  S.  28,  33,  41 
L.  Ed.  621:  Smith  z'.  Reynolds,  166  U, 
S.   717,   41    L.    Ed.    1186. 

"The  cases  in  which  it  has  been  held, 
by    this    court,    that    an    abatement    takea 


28 


ABATEMENT,  REVIVAL  AND  SURVIVAL. 


2.  Removal  of  Executor. — Where  a  decree  is  passed  by  the  court  below 
against  an  executor,  being  the  defendant  in  a  chancery  suit,  and  before  an  appeal 
is  prayed,  the  executor  is  removed  by  a  court  of  competent  jurisdiction,  and  an 
administrator  de  bonis  non,  with  the  will  annexed,  is  appointed,  all  further  pro- 
ceedings, either  by  execution  or  appeal,  are  irregular,  until  the  administrator 
be  made  a  party  to  the  suit.^^ 


place  by  the  expiration  of  the  term  of 
office,  have  been  those  of  officers  of  the 
government,  whose  alleged  delinquency 
was  personal,  and  did  not  involve  any 
charge  against  the  government  whose 
officers  they  were.  A  proceeding  against 
the  government  would  not  lie."  Thomp- 
son V.  United  States,  103  U.  S.  480.  484, 
26  L.  Ed.  521;  Secretary  v.  McGarrahan, 
9  Wall.  298,  19  L.  Ed.  579;  United  States 
V.  Boutwell,  17  Wall.  604,  21  L.  Ed.  721; 
Warner  Valley  Stock  Co.  v.  Smith,  165 
U.   S.  28,  33,  41   L.   Ed.  621. 

"The  case  of  a  public  officer  of  the 
United  States  differs  in  this  respect  from 
that  of  a  municipal  board,  which  is  a 
continuing  corporation  (although  its  in- 
dividual members  may  be  changed)  and 
to  which  in  its  corporate  capacity  a  writ 
of  mandamus  may  be  directed.  As  was 
said,  in  Board  of  Commissioners  v.  Sel- 
lew,  99  U.  S.  624,  627,  25  L.  Ed.  333,  by 
Chief  Justice  Waite:  'One  of  the  ob- 
jects creating  such  corporations,  capable 
of  suing  and  being  sued,  and  having 
perpetual  succession,  is  that  the  very  in- 
convenience which  manifested  itself  in 
United  States  v.  Boutwell,  17  Wall.  604, 
21  L.  Ed.  721,  may  be  avoided.'  "  Warner 
Valley  Stock  Co.  v.  Smith.  165  U.  S.  28, 
33,   41    L.    Ed.   621. 

Territorial  board  of  loan  commis- 
sioners.— Where  a  petition  for  mandamus 
was  filed  against  the  board  of  loan  com- 
missioners, a  board  organized  for  the  pur- 
pose of  refunding  the  territorial  indebted- 
ness of  the  territory  of  Arizona  and  the 
members  of  the  board  were  changed  after 
the  filing  of  the  petition  and  before 
the  issuance  of  the  writ,  the  proceedings 
did  not  abate  by  reason  of  such  changes, 
the  board  being  treated  as  a  continuing 
body,  and  the  members  composing  it 
compelled  to  obey  the  mandate.  Mur- 
phy V.  Utter,  186  U.  S.  95,  46  L.   Ed.  1070. 

Township  clerk. — In  Thompson  v. 
United  States,  103  U.  S.  480,  26  L.  Ed. 
521,  there  was  a  petition  for  a  mandamus 
to  compel  the  clerk  of  a  township  to  cer- 
tify a  judgment  obtained  by  the  relator 
against  the  township,  to  the  supervisor, 
in  order  that  the  amount  thereof  might 
be  placed  upon  the  tax  roll.  It  was  held, 
that  the  proceeding  did  not  abate  by  the 
resignation  of  the  clerk  upon  the  ap- 
pointment of  his  successor.  Murphy  v. 
Utter,    186   U.    S.   95,    102,    46   L.    Ed.    1070. 

"A  proceeding  instituted  against  a 
townshin  clerk,  ns  a  step  in  the  enforce- 
ment of  a  township  duty  to  levy  the 
amount  of  a  judgment  against  it.  ought 
not  to  abate  by  the  expiration  of  the  par- 


ticular clerk's  term  of  office,  but  ought 
to  proceed  to  final  judgment,  so  as  to 
compel  his  successor  in  office  to 
do  the  duty  required  of  him  in  or- 
der to  obtain  satisfaction  from  the 
township.  The  whole  proceeding  is 
really  and  in  substance  a  proceeding 
against  the  township,  as  much  as  if  it 
were  named,  and  is  in  the  nature  and 
place  of  an  execution.  If  the  resigna- 
tion of  the  officer  should  involve  an 
abatement,  we  would  always  have  the 
unseemly  spectacle  of  constant  resigna- 
tions and  reappointments  to  avoid  the  ef- 
fect of  the  suit.  Where  the  proceeding  is 
in  substance,  as  it  is  here,  a  proceeding 
against  the  corporation  itself,  there  is 
no  sense  or  reason  in  allowing  it  to 
abate  by  the  change  of  individuals  in  the 
office.  The  writ  might  be  directed  to  the 
township  clerk  by  his  official  designation, 
and  will  not  be  deprived  of  its  efficacy  by 
inserting  his  individual  name."  Thomp- 
son V.  United  States,  103  U.  S.  480.  484,  36 
L.    Ed.    521. 

County  commissioners. — An  applica- 
tion for  a  mandamus  against  a  board  of 
county  commissioners  and  its  individual 
members  to  compel  them  to  levy  a  tax 
to  pay  a  judgment  will  He,  though  the 
terms  of  the  members  had  expired.  Board 
of  Commissioners  v.  Sellew,  99  U.  S.  624, 
25  L.  Ed.  333,  cited  in  Murphy  v.  Utter. 
186  U.   S.  95,   101.   46  L.   Ed.   1070. 

Levee  board. — Where  an  act  abolishing 
the  offices  of  commissioners  who  pre- 
viously constituted  a  corporation  known 
as  the  levee  board,  did  not  dissolve  or  ex- 
tinguish the  corporation,  but  merely  sub- 
stituted the  state  treasurer  and  the  auditor 
of  accounts  as  the  members  of  that  cor- 
poration, it  was  held,  that  the  suit  might 
be  prosecuted  against  the  levee  board  as 
a  corporation,  notwithstanding  the  change 
in  its  members.  Hemingwaj^  v.  Stansell. 
106   U.    S.    399,   402,   27    L.    Ed.   245. 

Territorial  judge. — Upon  an  application 
for  mandamus  to  a  territorial  judge  to 
compel  him  to  perform  a  certain  act, 
where  the  judge  goes  out  of  office  pend- 
ing an  appeal,  and  his  successor  consents 
to  the  continuance  of  the  action  against 
him,  the  action  may  be  revived  against 
the  successor.  Caledonia  Coal  Co.  v. 
Baker.    196   U.    S.    432.    49    L.    Ed.    540. 

67.      Removal    of    executor Taylor   v. 

Savage,  1  How.  282,  11  L.  Ed.  133;  Tavlor 
V.  Savage,  2  How.  393,  394,  11  L.   Ed.  313. 

If  an  execution  be  issued  before  the 
proper  parties  are  thus  made,  it  is  un- 
authorized, and  void;  and  no  right  of  prop- 
erty will  pass  by  a  sale  under  it.     Taylor 


ABATEMENr,  REVIVAL  AND  SURVIVAL. 


29 


3.  Dissolution  of  CoRpf)RATiON. — Where  a  corporation  is  dissolved,  pending 
suits  against  it  are  thereby  abated.*''^ 

4.  Assignment  of  Interest  by  Party  Pending  Suit. — Where  the  original 
plaintiff  assigns  his  interest  in  the  cause  of  action  pending  suit,  his  assignee  may 
be  substituted  as  plaintiff,*'"  and  an  assignment  by  a  defendant  of  his  interest  in 
the  subject  matter  of  a  pending  suit  does  not  necessarily  defeat  the  suit ;  the  as- 
signee is  bound  by  what  is  done  against  the  assignor ;  and  may  either  come  in 
and  assume  the  burden  of  the  litigation  in  his  own  name,  or  act  in  the  name  of 
his  assignor  J" 

E.  Insolvency  of  Estate  of  Decedent  as  Abating  Suits  against  Rep- 
resentative.-— It  has  been  held,  that  a  state  statute  providing  that  no  suit  or 
action  shall  be  prosecuted  or  sustained  against  any  personal  representative  after 
the  estate  of  the  deceased  has  been  represented  as  insolvent,  does  not  abate  a 
suit  brought  by  a  citizen  of  another  state  in  the  federal  court  against  the  per- 
sonal representative  of  a  decedent  whose  estate  has  been  judicially  declared  to 
be  insolvent.^  ^ 


V.  Savage.  1  How.  282,  11  L.  Ed.  132; 
Taylor  v.  Savage,  2  How.  393.  394,  11  L- 
Ed.   313. 

The  administrator  cannot  obtain  redress 
by  application  to  this  court,  but  /nust  first 
be  made  a  party  in  the  court  beiow.  This 
may  be  done  at  the  instance  of  either  side. 
Taylor  v.  Savage,  1  How.  282,  11  L.  Ed. 
132;  Taylor  v.  Savage,  2  How.  393.  394, 
11    L.    Ed.    313. 

After  he  is  thus  made  a  party,  he  may 
stay  proceedings  by  giving  bond,  or  the 
complainants  may  enforce  the  decree,  if 
the  bond  be  not  filed  in  time.  Taylor 
V.  Savage,  1  How.  282.  11  L-  Ed.  132; 
Taylor  v.  Savage,  2  How.  393,  394.  11  L. 
Ed.    313. 

68.  Dissolution  of  corporation. — First 
National  Bank  v.  Colby,  21  Wall.  609, 
615.  22  L.  Ed.  687;  Pendleton  v.  Russell, 
144  U.  S.  640,  645,  36  L.  Ed.  574.  See. 
also.  Gray  v.  National  Steamship  Co..  115 
U.   S.    116,    117,   29   L.    Ed.   309. 

With  the  forfeiture  of  its  rights,  privi- 
leges, and  franchises,  a  corporation  is  nec- 
essarily dissolved.  Its  existence  as  a  legal 
entity  is  thereupon  ended;  it  is  then  a 
defunct  institution,  and  judgment  can  no 
more  be  rendered  against  it  in  a  suit 
previously  commenced  than  judgment 
could  be  rendered  against  a  dead  man  dy- 
ing pendente  lite.  This  is  the  rule  with 
respect  to  all  corporations  whose  char- 
tered existence  has  come  to  an  end,  either 
by  lapse  of  time  or  decree  of  forfeiture, 
unless,  by  statute,  pending  suits  be  al- 
lowed to  proceed  to  judgment  notwith- 
standing such  dissolution.  The  prolonga- 
tion of  the  corporate  life  for  this  specific 
purpose  as  much  requires  special  legisla- 
tive enactment  as  does  the  original 
creation  of  the  corporation.  First 
National  Bank  v.  Colby,  21  Wall.  609,  615, 
22   L.   Ed.   687. 

Where  a  corporation  is  dissolved  and 
its  franchises,  rights  and  privileges  for- 
feited in  a  proceeding  brought  by  the  state 
for  that  purpose,  a  suit  pending  against  it 


is  abated.  Pendleton  v.  Russell,  144  U. 
S.   640,  645,  36   L.   Ed.   574. 

Where  a  suit  is  brought  against  a  cor- 
poration in  a  circuit  court  of  the  United 
States,  and  a  judgment  recovered  and  an 
appeal  taken  to  the  supreme  court,  and 
a  mortgage  given  by  the  corporation  to 
indemnify  the  sureties  on  a  supersedeas 
bond,  and,  pending  the  appeal,  the  cor- 
poration is  dissolved  by  a  decree  of  the 
supreme  court  of  another  state  and  a  re- 
ceiver appointed  for  it,  and  the  receiver 
employs  counsel,  carries  the  case  into 
the  supreme  court  of  the  United  States 
and  a  judgment  of  reversal  is  rendered 
upon  the  record  as  it  stands  in  that  court 
without  the  substitution  of  the  receiver, 
the  mere  fact  that  he  sends  the  remittitur 
from  the  supreme  court  of  the  United 
States  to  the  circuit  court  and  has  it  filed 
there  does  not  make  him  a  party  to  the 
new  trial,  and  a  judgment  rendered  in  the 
second  trial  is  invalid.  Pendleton  v.  Rus- 
sell,   144    U.    S.    640.    64"^     3fi    T       -^ ■^      -~i 

A  suit  against  a  national  bank  to  en- 
force the  collection  of  a  demand,  is 
abated  by  a  decree  of  a  district  court  of 
the  United  States  dissolving  the  corpora- 
tion and  forfeiting  its  rights  and  fran- 
chises, rendered  upon  an  information 
against  the  bank  filed  by  the  comptroller 
of  the  currency.  First  National  Bank  v. 
Colby,  21  Wall.  609,  22  L.   Ed.  687. 

69.  Assignment  of  interest  by  plaintiff. 
— Amadeo  v.  Northern  Assurance  Co.,  201 
U.  S.  194,  50  L.  Ed.  722.  See.  also,  Piatt  t'. 
Jerome,  19  How.  384,  15  L.  Ed.  623.  See 
the  title  ASSIGNMENTS. 

70.  Assignment  of  interest  by  defend- 
ant.— Ex  parte  South,  etc.,  R.  Co.,  95  U. 
S.  221.  24  L.  Ed.  355.  See,  also,  Piatt  v. 
Jerome,  19  How.  384,  15  L.  Ed.  623.  See 
the   title   ASSIGNMENTS. 

71.  Insolvency  of  estate  as  abating  suits 
against  representatives. — Suvdam  v.  Broad- 
nax.    14   Pet.    67.    10    L.    Ed. '357. 

The  plaintiffs,  merchants  of  New  York, 
instituted    a    suit    in    the    circuit    court    of 


30 


ABATEMENT,  REVIVAL  AND  SURVIVAL. 


F.  Statute   Legalizing   Nuisance  as  Abating   Suit  for  Abatement. — 

A  suit  for  the  abatement  of  a  nuisance  is  abated  by  the  enactment  of  a  statute, 
pending  the  suit,  legahzing  the  nuisancers 

G.  Grounds  for  Plea  in  Abatement. — See  post,  "Raising  and  Waiving 
Grounds  of  Abatement,"  II. 

II.    Raising  and  Waiving  Grounds  of  Abatement. 

A.  Raising  Grounds  of  Abatement — 1.  Dilatory  Plea — a.  Pleas  in  Abate- 
fnent — (1)  In  Civil  Cases — (a)  Nature  of  Plea. — Pleas  to  the  person,  like  pleas 
to  the  jurisdiction,  do  not  necessarily  dispute  the  validity  of  the  rights,  which 
are  made  the  subject  of  the  suit,  but  object  to  the  plaintiff's  ability  to  sue,  or  the 
defendant's  liability  to  be  sued  respecting  them.  They  object  to  the  plaintiff 
that  he  is  by  law  disabled  to  sue  in  a  court  of  justice,  or  that  he  cannot  institute 
a  suit  alone,  or  that  he  is  not  the  person  he  pretends  to  be,  or  that  he  does  not 
sustain  the  character  he  assumes.^^ 

(b)  Grounds  for  Plea — aa.  Incapacity  of  Plaintiff  to  Maintain  Action. — Ob- 
jections as  to  capacity  of  the  plaintiff  to  sue  must  be  by  plea  in  abatement,  and 
such  an  objection  is  not  available  under  the  general  issue.'^*  This  rule  has  been 
held  to  apply  to  an  objection  for  want  of  corporate  capacity  of  plaintiff.'^^  to 
an  objection  for  want  of  authority  of  a  person  suing  as  executor  or  adminis- 
trator,'«  to  an  objection  setting  up  the  marriage  of  a  female  plaintiff  pending  the 


Alabama,  against  the  administrators  of 
the  maker  of  a  note,  dated  in  New  York, 
and  payable  in  New  York.  The  act  of  the 
assembly  of  Alabama  provides,  that  the 
estate  of  a  deceased  person  which  is  de- 
clared to  be  insolvent,  shall  be  distributed 
by  the  executors  or  administrators,  ac- 
cording to  the  provisions  of  the  statute, 
among  the  creditors;  and  that  no  suit  or 
action  shall  be  commenced  or  sustained 
against  any  executor  or  administrator, 
after  the  estate  of  the  deceased  has  been 
represented  as  insolvent,  except  in  cer- 
tain cases  not  of  the  description  of  that 
on  which  this  suit  was  instituted.  Held, 
that  the  insolvency  of  the  estate,  judicially 
declared  under  the  statute  of  Alabama, 
was  not  sufficient  in  law  to  abate  a  suit 
instituted  in  the  circuit  court  of  the  United 
States,  by  a  citizen  of  another  state, 
against  the  representatives  of  a  citizen  of 
Alabama.  Suydam  v.  Broadnax,  14  Pet. 
67,  10  L.  Ed.  357. 

The  11th  section  of  the  act  to  establish 
the  judicial  courts  of  the  United  States, 
carries  out  the  constitutional  right  of  a 
citizen  of  one  state  to  sue  a  citizen  of  an- 
other state  in  the  circuit  courts  of  the 
United  States;  and  gives  to  the  circuit 
courts  "original  cognizance,  concurrent 
with  the  courts  of  the  several  states,  of 
all  suits  of  a  civil  nature,  at  common  law 
and  in  equity."  It  was  certainly  intended 
to  give  to  suitors,  having  a  right  to  sue  in 
the  circuit  court,  remedies  coextensive 
with  that  right;  these  remedies  would  not 
be  so,  if  any  proceedings,  under  an  act  of 
state  legislation,  to  which  the  plaintiff 
was  not  a  party,  exempting  a  person  of 
such  state  from  suit,  could  be  pleaded  to 
abate  a  suit  in  the  circuit  court.  Suydam 
V.    Broadnax,    14    Pet.    67,    10    L.    Ed.    357. 


,See    the    title    EXECUTORS    AND    AD- 
MINISTRATORS. 

72.  Statute  legalizing  nuisance  as  abat- 
ing suit  for  abatement. — Clinton  Bridge,  10 
Wall.  454.  19  L.   Ed.  969. 

A  suit  in  chancery  praying  an  injunc- 
tion against  the  building  of  a  bridge  over 
a  river  dividing  two  states  upon  the 
ground  that  it  is  a  nuisance  is  abated  by 
an  act  of  congress  providing  that  it  shall 
be  a  lawful  structure,  and  shall  be  rec- 
ognized and  known  as  a  post  route,  al- 
though issue  has  been  made  up  and  proofs 
taken  and  the  case  ready  for  trial.  Clin- 
ton  Bridge,  10  Wall.  454,  19  L.   Ed.  969. 

73.  Nature  of  dilatory  plea. — Memphis 
V.  Dean,  8  Wall.  64,  74.  19   L.  Ed.  326. 

Where  a  plea  in  answer  is  but  notice 
of  special  matter  by  way  of  abatement  of 
the  amount  claimed  and  so  goes  to  but 
part  of  the  cause  of  action,  it  cannot  be 
relied  on  as  a  plea  in  bar.  United  States 
V.   Dashiell,  4  Wall.   182,   18   L.   Ed.   319. 

74.  Incapacity  of  plaintiff  to  maintain 
action. — Philadelphia,  etc.,  R.  Co.  v.  Quig- 
ley.  21  How.  202,  16  L.  Ed.  73;  Conard  v. 
Atlantic  Ins.  Co.,  1  Pet.  386,  7  L.  Ed.  189; 
Wickliffe  v.  Owing-s,  17  How.  47,  15  L. 
Ed.  44;  Evans  v.  Gee,  11  Pet.  80,  9  L.  Ed. 
G39;  Society,  etc.,  v.  Pawlet,  4  Pet.  480,  7 
L.    Ed.    927. 

75.  Want  of  corporate  capacity  of 
plaintiff. — Society,  etc.,  v.  Pawlet,  4  Pet. 
480,  7  L.  Ed.  927;  Conard  v.  Atlantic  Ins. 
Co.,  1  Pet.  386,  387,  7  L.  Ed.  189. 

76.  Want  of  authority  of  person  suing 
as  executor  or  administrator. — Childress 
V.  Emory.  8  Wheat.  642,  5  L.  Ed.  705; 
Noonan  v.  Bradley,  9  Wall.  394,  19  L-  Ed. 
757. 


ABATBMBNT,  REVIVAL  AND  SURVIVAL. 


31 


suit,"  and  to  an  objection  that  plaintiffs  suing  as  husband  and  wife  are  not  mar- 
ried.'^^ 

bb.  Nmijoindcr  of  Parties— (aa)  Plaintiffs.— It  has  been  held,  that  a  suit 
for  salvage  cannot  be  abated  on  the  objection  of  claimants  that  others  as  well  as 
the  libellants  are  entitled  to  share  in  the  compensation.'^* 

(bb)  Defendants — aaa.  In  General. — Nonjoinder  of  a  defendant  in  an  action 
ex  contractu  can  be  taken  advantage  of  only  by  a  plea  in  abatement.*'*' 

bbb.  Joint  Obligors. — Generally  speaking,  all  joint  obligors,  and  other  persons 
bound  by  covenants,  contract  or  quasi  contract,  ought  to  be  made  parties  to  the 
suit;  and  the  plaintiff  may  be  compelled  to  join  them  all,  by  a  plea  in  abatement 
for  nonjoinder.  But  such  an  objection  can  only  be  taken  advantage  of  by  a  plea 
in  abatement;  for  if  one  party  only  is  sued,  it  is  not  matter  in  bar  of  the  suit,  or 
in  arrest  of  judgment,  upon  the  finding  of  the  jury,  or  of  variance  in  evidence 
upon  the  trial.^^ 

ccc.  Joint  and  Several  Obligors. — On  a  joint  and  several  bond,  the  plaintiff 
may  sue  one  or  all  of  the  obligors,  and  cannot  sue  an  intermediate  number,  and 
if  he  does,  the  objection  may  be  taken  by  plea  in  abatement,  but  is  waived  by 
pleading  to  the  meriis.^^ 

cc.  Misjoinder  of  Parties — Real  Actions. — At  common  law,  a  writ  of  right 
will  not  lie,  except  against  the  tenant  of  the  freehold  demanded,  and  if  there  be 
several  tenants,  claiming  several  parcels  of  land,  by  distinct  titles,  they  cannot 
lawfully  be  joined  in  one  writ;  and  if  they  are,  they  may  plead  in  abatement  of 


77.  Marriage  of  female  plaintiff  a 
ground  for  plea  in  abatement. — Chirac  v. 
Reinicker,  11  Wheat.  280,  303,  6  L.  Ed. 
47  4;  McCoul  V.  LeKamp.  2  Wheat.  111.  4 
L.    Ed.    196. 

A  brought  an  action  of  assumpsit  in  the 
circuit  court,  and  after  issue  joined,  the 
plaintiff  died  and  the  suit  was  revived  by 
scire  facias  in  the  name  of  his  adminis- 
tratrix; while  the  suit  was  still  depending, 
the  administratrix  intermarried  with  B, 
which  marriage  was  pleaded  puis  darrein 
continuance.  Held,  that  the  scire  facias 
was  thereupon  abated,  and  a  new  scire 
facias  might  be  issued  to  revive  the  origi- 
nal suit,  in  the  name  of  B  and  wife,  as 
the  personal  representative  of  A,  in  order 
to  enable  her  to  prosecute  the  suit,  until 
a  final  judgment  under  the  judiciary  act 
of  1789,  §  31.  McCoul  V.  LeKamp,  2 
Wheat.    Ill,    4    L.    Ed.    19G. 

78.  Objection  that  persons  suing  as 
husband  and  wife  are  not  married. — The 
defense  that  the  plaintiffs  suing  as  hus- 
band and  wife  are  not  married  goes  to 
the  form  of  the  writ,  rather  than  to  the 
cause  of  the  action,  and  it  should,  there- 
fore, be  pleaded  in  abatement,  and  not  in 
bar.  Northwestern  'Union  Packet  Co.  v. 
Clough,   20   Wall.    528.   538.  22   L.    Ed.   406. 

79.  Nonjoinder  of  plaintiffs. — The 
Camanche,  8  Wall.  448,  19  L.  Ed.  397. 

The  remedy  of  such  others  is  to  be- 
come parties  to  the  suit,  or  to  make  a 
claim  against  the  proceeds,  if  any,  in  the 
registry  of  the  court.  The  Camanche.  8 
Wall.  4^8,  19  L.   Ed.   397. 

80.  Nonjoinder  of  defendants. — Metcalf 
V.  Williams,  104  U.  S.  93,  95,  26  L.  Ed. 
665.  See,  also.  Kittredge  z'.  Race,  92  U.  S. 
116,    119.   23    L.    Ed.   488. 

81.  Nonjoinder  of  joint  obligors. — Gil- 
man   V.   Rives,   10   Pet.    298,    9    L.    Ed.   432; 


Barton   v.    Petit,    7    Cranch    194,    201.    3    L,. 
Ed.   313. 

Raising  objection  by  demurrer  or  mo- 
tion in  arrest  of  judgment. — If  it  should 
appear  upon  the  face  of  the  declaration, 
or  other  pleading  of  the  plaintiff,  that  an- 
other jointly  sealed  the  bond  with  the 
defendant,  and  that  both  are  still  living, 
the  court  will  arrest  the  judgment,  and 
the  objection  may  be  taken  by  demurrer; 
because  the  plaintiff  himself  shows,  that 
another  ought  to  be  joined;  and  it  would 
be  absurd  to  compel  defendant  to  plead 
the  facts,  which  are  already  admitted. 
Oilman  v.  Rives,  10  Pet.  298,  300,  9  L.  Ed. 
432. 

And  in  cases  of  recognizance  and  judg- 
ments, and  other  matters  of  record,  such 
as  bonds  to  the  crown,  if,  it  appears  by 
the  declaration,  or  other  pleadings,  that 
there  is  another  joint  debtor,  who  is  not 
sued,  although  it  is  not  averted  that  he 
is  living,  the  objection  need  not  be  pleaded 
in  abatement,  but  it  may  be  taken  ad- 
vantage of,  upon  the  demurrer,  or  in  ar- 
rest of  judgment.  Oilman  v.  Rives,  10 
Pet.  298,  300,  9  L.  Ed.  432. 

82.  Nonjoinder  of  joint  and  several 
obligors. — Minor  v.  Mechanics'  Bank,  1 
Pet.  46.  47.  7  L.  Ed.  47;  Barry  v.  Foyles, 
1  Pet.  309,  311.  7  L.  Ed.  157. 

The  principle  is,  that  a  contract  made 
by  copartners  is  several  as  well  as  joint, 
and  the  assumpsit  is  made  by  all  and  by 
each;  it  is  obligatory  on  all,  and  on  each 
of  the  partners.  If,  therefore,  the  de- 
fendant fails  to  avail  himself  of  the  vari- 
ance in  abatement,  when  the  form  of  his 
plea  obliges  him  to  give  the  plaintiff  a 
proper  action;  the  policy  of  the  law  does 
not  permit  him  to  avail  himself  of  it.  at 
the  time  of  trial.  Barry  v.  Foyles,  1  Pet. 
309.  311,  7  L.  Ed.  157. 


32 


ABATEMENT,  REVIVAL  AND  SURVIVAL. 


the  writ.  If  the  demandant  demands  against  any  tenant  more  land  than  he 
holds,  he  may  plead  non  tenure  as  to  the  parcel  not  holden  ;  but  the  writ  will 
abate'  only  as   to   the   parcel   whereof  non   tenure   is   pleaded,   and   admitted   or 

proved. ^'^  ^  ,  ....  . 

dd.  Objections  to  Service  of  Process. — It  seems  that  an  objection  for  want  of 
service  of  process  may  be  pleaded  in  abatement.s^ 

ee.  Misnomer  of  Parties. — Misnomer,  or  mere  mistake  in  the  name  of  a  plain- 
tiff, which  does  not  affect  his  capacity  to  sue  in  the  right  name,  is  pleadable  in 
abatement  only,  and  is  waived  by  pleading  to  the  merits.^^  If  a  mistake  be 
made  in  the  name  of  a  defendant,  and  he  fails  to  plead  it  in  abatement,  the  judg- 
ment binds  him,  though  called  by  a  wrong  name.^"''  The  objection  cannot  be 
raised  after  judgment  or  assigned  for  error  in  the  supreme  court.^^^ 

ff.    Variance. Variance  between  the  writ  and  declaration  is  matter  pleadable 

in  ai)atement  only.^^  It  cannot  be  taken  advantage  of  by  general  demurrer  to 
the  declaratiodi,*^  or  by  motion  in  arrest  of  judgment,^*  nor  can  it  be  assigned  for 
error.*^ 


83.    Misjoinder  of  parties — Real  actions. 

—Green  v.  Liter.  8  Cranch  329,  3  L.  Ed. 
545. 

The  act  of  Virginia,  of  1786,  reforming 
the  method  of  proceeding  in  writs  of 
right,  did  not  vary  the  rights,  or  legal 
predicament,  of  the  parties,  as  they  ex- 
isted at  the  common  law.  It  did  not, 
therefore,  change  the  nature  and  effect  of 
the  pleadings;  and  notwithstanding  that 
act.  the  tenant  may  still  have  the  benefit 
of  the  ordinary  pleas  in  abatement.  Green 
V.   Liter,    8   Cranch   229,   3   L.   Ed.    54.5. 

Waiver  of  objection. — In  a  writ  of 
right,  brought  under  the  statute  of  Ken- 
tucky, where  the  demandant  described  his 
land  by  metes  and  bounds,  and  counted 
against  the  tenants  jointly,  it  was  held, 
that  this  was  matter  pleadable  in  abate- 
ment only,  and  that  by  pleading  in  bar, 
the  tenants  admitted  their  joint  seisin,  and 
lost  the  opportunity  of  pleading  a  sev- 
eral tenancv.  Liter  v.  Green.  2  Wheat. 
306,   4  L.   Ed.   246. 

84.  Objections  to  service  of  process. — 
Fitzgerald,  etc..  Construction  Co.  v.  Fitz- 
gerald. 137  U.  S.  98.  34  L.  Ed.  608.  See 
the  title  SUMMONS  AND  PROCESS. 

85.  Misnomer  of  parties. — Baltimore, 
etc.,  R.  Co.  V.  Fifth  Baptist  Church,  137 
U.   S.  568,  572,  34  L.  Ed.   784. 

Where  an  action  was  brought  by  "The 
Fifth  Baptist  Church  of  Washington,  D. 
C,  by  its  trustees."  and  the  corporate 
name  of  the  church  was  Fifth  Baptist 
Church  of  Washington,  D.  C,  it  was  held, 
that  the  words  "by  its  trustees"  even  if 
taken  as  part  of  plaintiff's  name,  only 
showed  mistake  in  that  name,  and  objec- 
tion, in  order  to  be  available,  was  required 
to  be  taken  bv  plea  in  abatement.  Balti- 
more, etc.,  R.  Co.  V.  Fifth  Baptist  Church, 
137  U.  S.  568.  34  L.   Ed.  784. 

86.  Effect  of  judgment  recovered  against 
defendant  in  wrong  name. — Lafavette  Ins. 
Co.  7'.  French,  18  How.  404,  409,  15  L. 
Ed.  451. 

If  the  judgment  was  recovered  in  Ohio 
against  the  company  by  an  erroneous 
name,  but  the  suit  upon  the  judgment  was 


brought  in  Indiana  against  the  company 
using  its  chartered  name  correctly,  ac- 
companied with  an  averment  that  it  was 
the  same  company,  this  mistake  is  no 
ground  of  error;  it  could  only  be  taken 
advantage  of  by  a  plea  in  abatement,  in 
the  suit  in  which  the  first  judgment  was 
recovered.  Lafayette  Ins.  Co.  v.  French, 
18  How.  404,  15  L.   Ed.  451. 

87.  Objection  cannot  be  raised  after 
judgment  or  assigned  for  error. — Where 
the  plaintiff  was  denominated  in  the  pe- 
tition and  writ  "J.  J.  Sigg,"  the  omission 
of  his  Christian  name  at  full  length  was 
alleged  as  error.  The  court  said  that  he 
might  have  had  no  Christian  name  and 
have  assumed  the  letters  "J.  J."  as  dis- 
tinguishing him  from  other  persons  of  the 
name  of  Sigg,  and  that  in  any  event  the 
objection  could  not  be  taken  after  judg- 
ment or  assigned  as  error  in  the  supreme 
court.  Breedlove  v.  Nicolet,  7  Pet.  413, 
8  L.  Ed.  731. 

88.  Variance  to  be  pleaded  in  abate- 
ment.— Duvall  V.  Craig,  2  Wheat.  45.  4 
L.  Ed.  180;  McKenna  v.  Fisk,  1  How.  240, 
247,  11  L.  Ed.  117;  Chirac  v.  Rheinicker, 
11  Wheat.  280,  302,  6  L.  Ed.  474;  Smith 
V.  Clapp,  15  Pet.  125.  128,  10  L.  Ed.  684. 

If  in  any  case,  a  variance  between  the 
writ  and  declaration  can  be  taken  ad- 
vantage of  by  the  defendant,  in  the  court 
below,  it  seems  to  be  an  established  rule, 
that  it  cannot  be  done,  except  upon  oyer 
of  the  original  writ,  granted  in  some 
proper  stage  of  the  cause.  Chirac  v. 
Rheinicker.  11  Wheat.  280,  302,  6  L.  Ed. 
474.     See  the  title  VARIANCE. 

89.  Variance  not  ground  for  demurrer. 
—Duvall  V.  Craig.  2  Wheat.  45,  4  L.  Ed. 
180;  Smith  v.  Clapp,  15  Pet.  125,  128.  10 
L.  Ed.  684;  McKenna  v.  Fisk,  1  How. 
240,    247.    11    L.    Ed.    117. 

90.  Motion  in  arrest  of  judgment. — • 
Smith  V.  Clapp,  15  Pet.  125,  128,  10  L. 
Ed.   684. 

91.  Variance  not  assignable  for  error. 
—Smith  V.  Clapp,  15  Pet.  125,  128,  10  L. 
Ed.   684. 


ABATEMEXT,  REVIVAL  AND  SURVIVAL.  Z2> 

gg.  Another  Suit  Pending. — See  ante,  "Another  Suit  Pending,"  I,  B. 

lib.  Premature  Smt. — If  a  suit  be  brought  against  a  seizing  officer,  for  a  sup- 
posed trespass,  while  the  suit  for  the  forfeiture  is  depending,  the  fact  of  such 
pendency  may  be  pleaded  in  abatement,  or  as  a  temporary  bar  of  the  action. '^^ 

(c)  Time  of  Filing. — A  plea  in  abatement  must  be  filed  at  an  early  stage  in 
the  proceeding,'*^  it  cannot  be  united  with  pleas  to  the  merits, ^^  nor  filed  there- 
after.^^  But  after  the  defendants  have  put  in  a  plea  in  bar,  they  may  move  the 
court  for  leave  to  withdraw  the  plea,  and  to  plead  in  abatement."'^ 

(d)  Form  and  Verification — aa.  Form. — That  a  plea  in  abatement  is  not  ar- 
tistically drawn  is  not  a  sufficient  reason  for  reversing  the  judgment  of  the  court 
below  rendered  for  the  defendant  on  such  plea.**" 

bb.  Verification. — In  Pennsylvania,  it  was  held  in  an  early  case,  that  a  plea  in 
abatement  setting  up  that  the  plaintiff  is  a  feme  covert  and  therefore  incapable 
of  maintaining  an  action  should  be  verified  by  affidavit,  otherwise  it  would  be 
stricken  out.^ 


92.  Pendency  of  action  for  forfeiture  as 
abating    action     for    wrongful     seizure. — 

Gelston  v.  Hovt,  3  Wheat.  247.  4  L.  Ed. 
380.  See  the  titles  PREMATURE  SUIT; 
REVENUE  LAWS. 

93.  At  early  stage  of  proceeding. — Rapp 
V.   Elliott.  :^   Dall.   184.   1   L.   Ed.   341. 

94.  Pies  not  to  be  joined  with  pleas  in 
bar. — Sheppard  v.  Graves,  14  How.  505,  14 
L.  Ed.  518:  Spencer  v.  Lapsley,  20  How. 
264.  15  L.  Ed.  902;  Kern  z'.  Huidekoper, 
103  U.  S.  485,  494.  26  L.  Ed.  354;  Bailey 
V.  Dozier,  6  How.  23,  12  L.  Ed.  328. 

The  refusal  of  the  court  below  to  allow 
a  plea  in  abatement  to  be  filed  in  con- 
nection with  pleas  in  bar  is  not  subject  to 
the  review  by  the  supreme  court.  Spencer 
V.  Lapsley.  20  How.  264,  15  L.  Ed.  902; 
Breedlove  v.  Nicolet,  7  Pet.  413,  8  L.  Ed. 
731. 

Where  after  issue  joined  the  defend- 
ants filed  a  plea  that  the  firm,  the  plain- 
tiffs in  the  suit,  consisted  of  other  per- 
sons in  addition  to  those  named  in  the 
writ  and  petition,  who  were  not  citizens 
of  the  state  with  those  named,  and  the 
court  after  receiving  the  plea  directed  that 
it  be  taken  from  the  files,  it  was  held,  that 
this  was  a  proceed'ng  in  the  discretion 
of  the  court,  and  not  assignable  as  error. 
Breedlove  v.  Nicolet,  7  Pet.  413,  8  L.  Ed. 
731. 

95.  Pleading  in  abatement  after  plea  in 
bar. — Sheppard  v.  Graves,  14  How.  505, 
14  L.  Ed.  518;  Spencer  v.  Lapsley,  20  How. 
264,  267,  15  L.  Ed.  902;  Bailey  V.  Dozier, 
6   How.   23.    12    L.    Ed.   328. 

And  if  after  pleas  in  abatement,  a  de- 
fense be  interposed,  going  to  the  merits 
of  the  controversy,  the  grounds  alleged 
in  abatement  become  thereby  immaterial 
and  are  waived.  Sheppard  v.  Graves,  14 
How.   505,   14   L.   Ed.   518. 

As  a  plea  in  abatement  pleaded,  with- 
out an  affidavit,  five  years  after  pleas  in 
bar  had  been  filed,  and  which  were  still 
undisposed  of,  and  filed,  its  connection 
with  other  matter,  in  bar,  is  contrary  to 
the  rule  and  practice  of  the  courts,  and 
should  be  disallowed.  Spencer  v.  Laps- 
ley,  20  How.  264,  267.  15  L.  Ed.  902;  Shep- 
1  U  S  Enc— 3 


pard   V.    Graves,    14    How.    505,    14    L.    Ed. 
518;    Bailey  v.    Dozier.   6    How.    23,   12    L.' 
Ed.   328.     See  post.  "Pleading  in  Bar,"  11, 
B,    2. 

On  day  set  for  trial. — Where  the  de- 
fendant filed  a  peremptory  exception 
after  the  case  was  at  issue,  and  on  the 
day  set  for  trial  before  a  jury,  praying 
that  the  suit  be  dismissed  because  a  part- 
ner with  the  plaintiiif  in  the  transaction 
was  the  foundation  of  the  suit  was  not 
made  a  party  plaintiff  in  the  case,  it  was 
held  that  the  exception  came  too  late. 
Burbank  v.  Bigelow,  154  U.  S.  558,  ap- 
proving Breedlove  v.  Nicolet,  7  Pet.  413,  8 
L.    Ed.    731. 

98.  Withdrawal  of  plea  in  bar. — Eberly 
V.  Moore,  24  How.   147.   16  L.  Ed.  612. 

Asking  leave  to  plead  to  the  jurisdic- 
tion is  in  eflFect  a  withdrawal  of  a  former 
plea  to  the  merits,  for  after  a  plea  in  bar 
the  defendant  cannot  plead  to  the  juris- 
diction of  the  court,  for  by  pleading  in 
bar  he  submits  to  the  jurisdiction.  Kern 
V.  Huidekoper,  103  U.  S.  485,  494,  26  L. 
Ed.  354. 

97.  Form  of  plea. — Eberly  v.  Moore,  24 
How.   147.  148,  16  L.   Ed.  612. 

An  action  was  brought  in  the  circuit 
court  of  Mississippi,  against  the  Com- 
mercial and  Railroad  Bank  of  Vicksburg, 
Mississippi,  by  parties  who  were  citizens 
of  the  state  of  Louisiana;  the  defendants 
pleaded  in  abatement,  by  attorney,  that 
they  were  an  aggregate  corporation,  and 
that  two  of  the  stockholders  resided  in 
the  state  of  Mississippi;  the  affidavit  to 
the  plea  was  sworn  to  by  the  cashier  of 
the  bank,  before  the  "deputy  clerk;"  it  was 
not  entitled  as  of  any  term  of  the  court; 
the  plaintiffs  demurred  to  the  plea.  Held, 
that  the  appearance  of  the  defendants  in 
the  circuit  court,  by  attorney,  was 
proper;  and  that  if  any  exceptions  existed 
to  this  form  of  the  plea,  they  should  have 
been  urged  to  the  receiving  of  it,  when 
it  was  offered,  and  were  not  causes  of  de- 
murrer. Commercial,  etc..  Bank  v,  Slo- 
comb,  14  Pet.  60.  10  L.  Ed.  .T^4. 

1.  Verification. — Rapp  v,  Elliot,  3  Dall. 
(Pa.)    184,    1    L.    Ed.    341. 


34 


ABATEMENT^ REVIVAL  AND  SURVIVAL. 


(e)  Construction. — Pleas  in  bar  are  not  to  receive  a  narrow  and  merely  tech- 
nical construction,  but  are  to  be  construed  according  to  their  entire  subject  mat- 
ter. In  this  respect  there  is  a  difference  between  pleas  in  bar  and  pleas  in  abate-' 
ment.- 

(f)  Evidence. — Where  a  plea  in  abatement  is  relied  upon,  the  burden  of 
proof  rests  upon  the  defendant.^ 

(g)  Reznezv  of  Decision  on  Plea. — As  to  whether  a  judgment  on  a  plea  in 
abatement  is  final  so  as  to  permit  review,  see  the  title  Appeai,  and  Error. 

(2)  In  Criminal  Cases — (a)  Grounds  for  Plea — aa.  Constitution  of  Grand 
Jury. — When  th€  defendant  has  had  no  opportunity  to  challenge  the  grand  jury 
^which  found  the  indictment  against  him,  the  objection  to  the  constitution  of  the 
grand  jury  may  be  taken  by  plea  in  abatement  as  well  as  by  motion  to  quash  the 
indictment.* 

bb.  Szvcaring  of  Grand  Jury. — Objection  that  the  grand  jury  were  improp- 
erly sworn  may  be  taken  by  plea  in  abatement.'' 

(b)  Time  of  Filing. — A  plea  in  abatement  in  a  criminal  case  must  be  filed  at 
an  early  stage  of  the  proceedings.^ 

(c)  Form  and  Sufficiency. — A  plea  in  abatement  must  be  pleaded  with  exact- 
jjessJ    A  plea  in  abatement  is  fatally  defective  where,  although  it  is  stated  that  the 


^.  Construction  of  plea. — Withers  v. 
Greene.  9  How.  211.  214,  13  L.  Ed.  109. 

3.  Evidence. — De  Sobry  z'.  Nicholson,  3 
Wall.  420,  423,  18  L.  Ed.  263;  Sheppard  v. 
Graves,   14  How.   505,   14  L.    Ed.   518. 

On  an  issue  of  fact  raised  by  a  plea  in 
abatement,  where  the  defendant  holds  the 
affirmative  of  the  issue,  and  where  the 
evidence  (introduced  by  the  defendant 
himself)  is  all  in  favor  of  the  plaintiff, 
positive  and  uncontradicted,  the  court 
properly  instructs  the  jury  when  it  directs 
them,  as  matter  of  law,  to  iind  the  issue 
for  the  plaintiff.  Grand  Chute  v.  Winegar, 
15  Wall.   355,  21   L.    Ed.   170. 

4.  Objections  to  constitution  of  grand 
jury.— Carter  v.  Texas.  177  U.  S.  442,  477, 
44  L.  Ed.  839;  United  States  v.  Gale,  109 
U.  S.  65,  27  L.  Ed.  857;  Agnew  v.  United 
States,  165  U.   S.   36,  41   L.    Ed.   624.  _ 

The  proper  mode  of  taking  objection  to 
the  personnel  of  the  grand  jury  when  the 
matter  does  not  appear  of  record,  is  by 
plea  in  abatement.  United  States  v.  Gale, 
109   U.   S.   65,   69,  27   L.    Ed.   857. 

An  objection  to  an  indictment  because 
of  the  disqualification  of  some  of  the 
jurors  is  properly  made  by  plea  in  abate- 
ment filed  before  the  arraignment  of  the 
accused.  Crowley  r.  United  States,  194 
U.   S.   461,  48   L.   Ed.    1075. 

5.  Objection  to  swearing  of  grand  jury. 
— Bram  v.  United  States,  168  U.  S.  532, 
567.  42  L.    Ed.  568. 

Where  by  plea  and  supplemental  plea 
in  abatement,  and  by  motion  to  quash,  de- 
fendant, preliminary  to  the  trial,  attacked 
the  sufficiency  of  tlie  indictment,  because 
one  of  the  grand  jurors  was  permitted  to 
affirm  and  the  indictment  failed  to  state 
that  such  juror  was  "conscientiously 
scrupulous"  of  being  sworn,  and  because 
the  indictment  recited  that  it  was  pre- 
sented upon  the  "oath"  of  the  jurors, 
when,  in  fact,  it  was  presented  upon  the 
oath  and   affirmation  of  the  jurors,  and  at 


the  hearing  of  the  pleas  in  abatement,  it 
appeared  that  when  the  grand  jurors  were 
impaneled  one  of  them,  upon  being  called 
to  be  sworn,  stated  that  he  affirmed,  and 
declined  to  take  an  oath,  and  after  his  fel- 
lows had  been  regularly  sworn  he  was 
formally  affirmed  to  the  same  duties  speci- 
fied in  the  oath  administered  to  the  others, 
it  was  held,  that  the  objection  was  with- 
out merit.  Bram  v.  United  States,  168  U. 
S.   532,    567,  42    L.    Ed.    568. 

An  objection  that  neither  in  the  indict- 
ment nor  in  the  proof  at  the  hearing  of 
the  pleas  in  abatement  was  it  affirmatively 
stated  or  shown  that  the  grand  juror,  be- 
fore being  permitted  to  affirm,  was  proven 
to  have  possessed  conscientious  scruples 
against  taking  an  oath,  is  immaterial.  The 
mode  of  ascertaining  the  existence  or  non- 
existence of  such  conscientious  scruples 
was  committed  to  the  discretion  of  the 
officer  who  affirmed  the  juror,  and  such 
affirmation  conclusively  established  that 
the  officer  had  properly  exercised  his  dis- 
cretion. Bram  v.  United  States,  168  U.  S. 
532,   568.   42   L.    Ed.   568. 

6.  At  early  stage  of  proceeding. — 
Agnew  V.  United  States,  165  U.  S.  36,  44. 
41   L.   Ed.   624. 

An  original  venire  was  issued  Novem- 
ber 18,  and  the  second  venire  issued  De- 
cember 2,  1895.  The  court  opened  De- 
cember 3,  1895,  and  an  indictment  was' 
returned  December  12.  The  defendant 
did  not  file  his  plea  in  abatement  until 
December  17.  The  plea  did  not  allege 
want  of  knowledge  of  threatened  prosecu- 
tion on  the  part  of  defendant,  nor  want  of 
cpportunitj'  to  present  his  objection 
earlier,  nor  assign  any  ground  whj^  excep- 
tion was  not  taken  or  objection  made  be- 
fore. Held,  that  it  was  filed  too  late. 
Agnew  V.  United  States,  165  U.  S.  36,  44, 
41    L.    Ed.   624. 

7.  Plea  to  be  exact. — .^enew  z'.  United 
States,  165  U.   S.  3G,  41   L.   Ed.  624. 


ABATEMEXT,  REVIVAL  AXD  SURVIVAL. 


35 


<lrawing  of  the  grand  jury  "tended  to  his  injury  and  prejudice,"  no  grounds 
Mliatever  are  assigned  for  such  a  conclusion,  and  none  appear  on  the  record.^ 

(d)  Trial  or  Hearing. — If  the  defendant  is  entitled  to  a  jury  trial  on  his  plea 
in  abatement  he  must  object  in  the  lower  court  to  a  refusal  to  allow  such  trial, 
otherwise  the  objection  is  waived.^ 

b.  Plea^  to  Jurisdiction — (1)  Grounds  of  Pica — (a)  In  General. — When 
the  objection  goes  to  the  power  of  the  court  over  the  parties,  or  the  subject  mat- 
ter, the  defendant  need  not  plead  in  abatement,  for  he  cannot  give  the  plaintitT 
■3   better  writ  or  bill.^*^' 

(b)  Want  of  Diversity  of  Citizenship  of  Parties — aa.  Rule  under  Judiciary 
Act — (aa)  Diversity  of  Citizenship  Properly  Averred  in  Declaration  or  Bill. — 
Under  the  jiKliciary  act  of  1789,  an  issue  that  tlie  parties  were  not  citizens  of 
different  states,  and  were,  therefore,  not  entitled  to  sue  in  the  federal  courts, 
could  only  be  made  by  plea  in  abatement,  when  the  pleadings  properly  averred 
that  the  parties  were  citizens  of  different  states. ^^ 


8.  Objection  on  ground  of  improper 
drawing  of  grand  jury. — Agnew  v.  United 
States,  165  U.  S.  36.  44,  41   L.  Ed.  624. 

9.  Objection  for  failure  to  allow  jury 
trial  on  plea. — BoUn  v.  Nebraska.  176  U. 
S.    8,3.    44    L.    Ed.    382. 

An  objection  based  upon  the  ground 
that  the  defendant  in  a  criminal  case  was 
refused  a  jury  trial  on  his  plea  in  abate- 
ment, and  was  thus  denied  due  process  of 
law.  cannot  be  raised  for  the  first  time  in 
the  supreme  court  of  the  United  States, 
DO  objection  having  been  made  upon  tlve 
ground  until  final  judgment  by  the  su- 
preme court  of  the  state.  Bolln  v.  Ne- 
braska,  176   U.   S.   83,  44  L.   Ed.  382. 

10.  When  defendant  cannot  give  better 
writ, — Rhode  Island  v.  Massachusetts.  12 
Pet.   657.   719,  9   L.   Ed.   1233. 

Where  no  inferior  court  can  have  juris- 
diction of  a  case  in  law  or  equity,  the 
ground  of  the  objection  is  not  taken  by 
plea  in  abatement,  as  an  exception  of  the 
given  case,  from  the  otherwise  general 
jurisdiction  of  the  court;  appearance  does 
not  cure  the  defect  of  judicial  power,  and 
it  may  be  relied  on  by  plea,  answer,  de- 
murrer, or  at  the  trial  or  hearing,  unless 
it  goes  to  the  manner  of  bringing  the  de- 
fendant into  court,  which  is  waived  by 
submission  to  the  process.  Rhode  Island 
V.  Massachusetts.  12  Pet.  657.  719,  9  L. 
Ed.    1233. 

11.  Diversity  cf  citizenship  averred  in 
declaration  or  bill. — Steigleder  v.  Mc- 
Questen.  198  U.  S.  141,  142,  49  L.  Ed.  986; 
Morris  v.  Gilmer,  129  U.  S.  315.  32  L.  Ed. 
690;  Little  v.  Giles,  118  U.  S.  596,  30  L.  Ed. 
269;  Farmington  v.  Pillsbury.  114  U.  S. 
13S.  29  L.  Ed.  114;  Williams  v.  Nottawa, 
104  U.  S.  209,  26  L.  Ed.  719;  Susquehanna, 
etc..  Coal  Co.  f.  Blatchford.  11  Wall.  172, 
20  L.  Ed.  179;  Scott  v.  Sandford,  19  How. 
30:'..  402,  15  L.  Ed.  691:  Jones  v.  League, 
18  How.  76,  15  L.  Ed.  263;  Evans  v.  Gee, 
11  Pet.  80,  9  L.  Ed.  639:  Clarke  v.  Mathew- 
son.  12  Pet.  164,  9  L.  Ed.  1041;  Whyte  v. 
Gibbes,  20  How.  541,  542.  15  L.  Ed.  1016; 
W'ashington  Bridee  Co.  v.  Stewart,  3 
How.   413,   11    L.    Ed.     058;    Breedlove     v. 


Nicolet,  7  Pet.  413,  432,  8  L.  Ed.  731; 
Sheppard  v.  Groves,  14  How.  505,  14  L. 
Ed.  518;  Carter  v.  Bennett,  15  How.  353, 
357.  14  L.  Ed.  727;  Wickliffe  v.  Owings, 
17  How.  47.  51,  15  L.  Ed.  44;  De  Sobry  v. 
Nicholson,  3  Wall.  420,  423,  18  L.  Ed.  263; 
Smith  V.  Kcrnochen,  7  How.  198,  216,  12 
L.  Ed.  666;  Jackson  v.  Ashton,  8  Pet.  148, 
8  L.  Ed.  898;  Bingham  v.  Cabot,  3  Dall. 
382,  1  L.  Ed.  646;  Pollard  v.  Dwight,  4 
Cranch  421,  2  L.  Ed.  666;  Barry  v.  Foyles, 
1  Pet.  309,  311,  7  L.  Ed.  157;  Lexington 
V.  Butler,  14  Wall.  282,  20  L.  Ed.  809; 
Ciaflin  V.  Commonwealth  Ins.  Co..  110  U. 
S.  81,  28  L.  Ed.  76;  Charlotte  Nat.  Bank 
V.  Morgan,  132  U.  S.  141,  33  L.  Ed.  282; 
Fitzgerald,  etc.,  Construction  Co.  v.  Fitz- 
gerald, 137  U.  S.  98,  34  L.  Ed.  608;  St 
Louis,  etc..  R.  Co.  v.  McBride,  141  U.  S. 
127.  35   L.   Ed.   659. 

Generally,  as  to  jurisdiction  of  federal 
courts  in  cases  of  diverse  citizenship,  see 
the  titles  COURTS;  JURISDICTION; 
REMOVAL     OF     CAUSES. 

If  it  is  intended  to  deny  the  jurisdic- 
tion of  the  court,  on  account  of  the  citi- 
zenship of  the  parties  to  the  action,  that 
being  averred  on  the  record,  a  plea  to  the 
jurisdiction  should  be  filed,  and  such  evi- 
dence is  inadmissible  under  the  general 
issue.  Evans  v.  Gee,  11  Pet.  80,  83,  9  L. 
Ed.    639. 

Where  a  bill  in  chancery  avers  that  the 
defendant  is  a  citizen  of  another  state, 
this  averment  can  only  be 'impugned  in  a 
special  plea  to  the  jurisdiction  of  the 
court.  The  answer  is  not  the  proper 
place  for  it.  under  the  33d  rule  of  equity 
practice  established  by  this  court.  Wick- 
liffe  V.  Owings.  17  How.  47,  15  L.  Ed.  44. 

W'here  the  defendant  appeared  to  a  bill 
in  chancery,  and  defended  the  suit,  and  no 
want  of  jurisdiction  appeared  in  the 
record,  and  then  the  complainant  died,  an 
objection  that  the  defendants  were  citi- 
zens of  another  state  comes  too  late  when 
made  to  a  bill  of  revivor,  which  is  only 
a  continuance  of  the  suit.  Whyte  z'. 
Gibbes.  20  How.  541,  15  L.  Ed.  1016: 
Washington  Bridge  Co.  v.  Stewart,  3 
How.  413,  11  L.   Ed.  658. 


>6 


ABATEMENT,  REVIJ\^L  AND  SURriJ'AL. 


(bb)    Dkrrsitv  of  Citicemhip  Not  Properly  Averred  in  Declaration  or  P-'J. 

If  the  declaration  or  bill  does  not  contain  proper  averments  showing  that  the 

parties  are  citizens  of  different  states,  the  defect  may  be  taken  advantage  of  by 
demurrer,  or  without  demurrer  on  motion,  at  any  stage  of  the  proceedings. i- 

bb.  Rule  under  Act  of  1875. — It  is  now  made  the  duty  of  the  circuit  court,  at 
any  time  in  the  progress  of  a  cause,  to  dismiss  the  suit,  if  it  appears  that  it  does 
not  involve  a  dispute  or  controversy  properly  within  the  jurisdiction  of  the  court, 
or  that  the  parties  were  improperly  or  collusively  made  or  joined,  either  as  plain- 
tiffs or  defendants,  for  the  purpose  of  creating  a  case  cognizable  or  removable 
under  the  act  of  congress. ^-^ 

(c)   Adeqiiate  Remedy  at  Lazv.—See  the  title  Equity. 

(2)  Time  of  Filing. — Pleas  in  abatement  because  of  want  of  jurisdiction 
.•should  be  filed  at  an  early  stage  of  the  proceeding,  and  should  not  be  filed  in 
connection  with  pleas  in  bar,!^  or  during  the  trial, i^"  and  an  objection  for  want 
of  jurisdiction  cannot  be  raised  for  the  first  time  in  the  supren.e  court. ^^     x\nd 


12.  Diversity  of  citizenship  not  properly 
averred  in  declaration  or  bill. — Susque- 
hanna, etc.,  Coal  Co.  i'.  Blatchlurd,  11 
Willi.  172,  20  L.  Ed.  179;  Scott  v.  Sand- 
ford,  19  How.  393,  394,  15  L.  Ed.  G91; 
Capron  v.  Van  Noorden,  2  Cranch  12G,  2 
L.   Ed.  229. 

When  the  citizenship  of  the  parties  is 
averred  in  the  bill  of  complaint,  and  it 
thus  appears  that  some  of  the  plaintiffs 
are  disqualified  by  their  citizenship  from 
maintaining  the  suit,  the  defect  may  be 
taken  advantage  of  by  demurrer,  or  with- 
out demurrer,  on  motion,  at  any  stage  of 
the  proceedings.  A  plea  in  abatement  is 
required  only  when  the  citizenship  averred 
is  such  as  to  support  the  jurisdiction  of 
the  court  and  the  defendant  desires  to 
controvert  the  averment.  Susquehanna, 
etc..  Coal  Co.  v.  Blatchford,  11  Wall.  172, 
20  L.  Ed.   179. 

Where  the  objection  to  the  citizenship 
of  the  plaintiff  is  apparent  on  the  record, 
as  he  himself,  in  making  out  his  case, 
states  that  he  is  of  African  descent,  was 
born  a  slave,  and  claims  that  he  and  his 
family  became  entitled  to  freedom  by  be- 
ing taken,  by  their  owner,  to  reside  in  a 
territory  where  slavery  is  prohibited  by 
act  of  congress — and  that,  in  addition  to 
this  claim,  he  himself  became  entitled  to 
freedom  by  being  taken  to  Rock  Island, 
in  the  state  of  Illinois — and  being  free 
when  h€  was  brought  back  to  Missouri, 
he  was  by  the  laws  of  that  state  a  citizen, 
if  the  facts  he  states  do  not  give  him  or 
his  family  a  right  to  freedom,  the  plain- 
tiff is  still  a  slave,  and  not  entitled  to  sue 
as  a  "citizen"  without  any  reference  to 
the  plea  in  abatement.  Scott  z\  Sandford, 
19  How.   393.  394,  15  L.   Ed.   691. 

Where  it  is  apparent  upon  the  record 
that  the  court  below  erred  in  its  judg- 
ment on  a  plea  in  abatement,  filed  upon 
the  ground  that  the  plaintiff  is  not  a  citi- 
zen, and  also  erred  in  giving  judgment  for 
the  defendant,  when  the  exception  shows 
that  the  phiintiff  was  not  a  citizen  of  the 
United  States,  and  the  circuit  court  had 
no  jurisdiction,  either,  in  the  case  stated 
in    the   plea   in   abatement,    or   in   the    one 


stated  in  the  exception,  its  judgment  in 
favor  of  the  defendant  will  be  reversed. 
Scott  7'.  Sandford.  19  How.  393.  396,  15 
L.   Ed.   691. 

13.  Rule  under  act  of  1875.— Steigleder 
7-.  McQue-ten,  198  U.  S.  141,  142,  49  L. 
Ed.  986';  Sheppard  v.  Graves,  14  How.  505, 
14  L.  Ed.  518;  Williams  v.  Nottawa,  104 
U.  S.  '209,  26  L.  Ed.  719;  Farmington  v. 
Pillsbury,  114  U.  S.  138,  29  L.  Ed.  114; 
Little  r.  Giles,  118  U.  S.  596,  30  L.  Ed. 
269;  Morris  v.  Gilmer,  129  U.  S.  315,  32 
L.   Ed.  690. 

15.  Not  to  be  joined  with  pleas  in  bar. 
— Sheppard  v.  Graves,  14  How.  505,  509, 
14    L.    Ed.    518. 

It  has  ever  been  received  as  a  canon  of 
pleading,  that  matters  which  appertain 
solely  to  the  jurisdiction  of  a  court,  should 
never  be  blended  with  questions  which 
enter  essential!}'  into  the  subject  matter 
of  the  controversy;  and  that  all  defenses 
involving  inquiries  into  that  subject  mat- 
ter imply  and  admit  the  authority  of  the 
court  to  adjudicate  upon  them.  Hence 
it  is,  that  pleas  to  the  jurisdiction  are 
deemed  inconsistent  with  those  which  ap- 
pertain to  the  merits  of  a  cause.  Shep- 
pard V.  Graves.  14  How.  505,  509,  14  E. 
Ed.    518. 

16.  During  trial. — It  is  within  the  dis- 
cretion oi  the  court  to  refuse  to  ,i!l'^w  a 
plea  to  be  filed,  during  the  trial,  setting^ 
up  that  tlie  C'irrt  •-  ^^•■t'"  "t  ji  i  '■  t'  n 
because  of  want  of  diversity  of  citizen- 
ship of  parties.  Mexican  Central  i<.  Co. 
r.   Pinl-nov.   149  U.   S.  194.  37   L.    Ed.   699. 

17.  Objection  cannot  be  made  for  first 
time  in  supreme  court. — Bnrbank  z'.  Bise- 
low,  ]5-t  U.  S.  558.  See  the  titles  AP- 
PEAL AXD  ERROR;  EXCEPTIONS 
AND  OBJECTIONS. 

The  objection  in  an  action  at  law  that 
the  matter  of  plaintiff's  demand  is  one  nf 
equitable  cognizance  in  the  federal  courts 
cannot  prevail,  where  no  objection  was 
raised  in  the  court  below  at  an)'  stage  of 
the  proceedings,  and  it  cannot  be  per- 
mitted to  a  defendant  to  go  to  trial 
before  a  jury  on  the  facts  of  a 
case     involving    fraud,    and     let      it     oro- 


ABATBMBX'i^  REl'Il'AL  AXD  SURJAVAL.  37 

a  plea  to  the  jurisdiction  comes  too  late  after  a  mandate  has  gone  down  from  the 
supreme  court  to  the  court  below. ^^ 

(3)  Form  and  Sufficiency — (a)  In  General. — A  plea  to  the  jurisdiction, 
though  not  a  precise,  distinct,  or  a  form.al  plea,  which  denies  the  truth  of  the 
averment  of  the  citizenship  of  the  plaintiffs,  as  they  had  affirmed  it  to  be  in  the 
petition  is  sufficient. i'''  But  where  a  court  has  acquired  jurisdiction  over  the 
sulject  matter  of  a  suit  by  attachment,  a  defendant  wishing  to  object  to  the 
jurisdiction  over  the  person  must  make  a  separate  objection  upon  that  ground, 
and  cannot  join  it  with  an  objection  to  the  jurisdiction  over  the  subject  matter.^" 

(b)  Necessity  for  Plea  to  Give  Better  Writ. — If  a  plea  in  abatement  is  put  in, 
it  must  not  only  make  out  the  exception,  but  point  to  the  particular  court  to 
which  the  case  belongs.  A  plaintiff  in  law  or  equity,  is  not  to  be  driven  from 
court  to  court  by  such  pleas ;  if  a  defendant  seeks  to  quash  a  writ,  or  dismiss  a 
bill  for  such  cause,  he  must  give  the  plaintiff  a  better  one,  and  shall  never  put  in 
a  second  plea  to  the  jurisdiction  of  that  court,  to  which  he  has  driven  the  plain- 
tiff by  his  plea. 21 

(c)  Objection  That  Parties  Are  Not  Citizens  of  Different  States. — A  plea  to 
the  jurisdiction  of  the  circuit  court  upon  the  ground  that  the  parties  are  not  citi- 
zens of  different  states  must  show  that  the  parties  were  citizens  of  the  same  state, 
at  the  time  the  ^ction  was  brought,  and  not  merely  at  the  time  of  the  plea  pleaded; 
the  jurisdiction  depends  upon  the  state  of  things  at  the  time  of  the  action  brought; 
and  after  it  is  once  vested,  it  cannot  be  ousted  by  a  subsequent  change  of  resi- 
dence of  either  of  the  parties. 22 

(4)  Waiver  of  Objection. — See  post,  "Waiver  of  Grounds  of  Abatement," 
II.  B. 

(5)  Burden  of  Proof. — Where  a  plea  is  filed  to  the  jurisdiction  of  the  court, 
upon  the  ground  that  the  plaintiff  is  a  resident  of  the  same  state  with  the  defend- 
ant, it  is  incumbent  on  the  defendant  to  prove  the  allegation. 23 

(6)  Appeal  and  Error. — A  writ  of  mandamus  cannot  be  used  to  bring  up  for 
review  a  judgment  of  the  circuit  court  on  a  plea  to  the  jurisdiction. 2^     A  judg- 

ceed  to   judgment   on   the  verdict   without  same,    a    promissory    note,    payable,    after 

F.ny  attempt  to  assert   the   equitable   char-  its   date,    to   the    order   of   A   and    B.      Al- 

acter  of  the  suit,  and  then  raise  that  ques-  though  the  note  was  made  payable  to  the 

tion    for    the    first    time    in     the      supreme  order  of  A  and   B,   B   was   in  no  wise   in- 

court.      Burbank    v.    Bigelow,    154    U.    S.  terested    in    it,    as    the    payee    thereof;    A 

558.    559.  was  a  citizen  of  Ohio,  and  B  a   citizen  of 

18.  After  return  of  mandate  to  lower  the  state  of  Louisiana.  In  a  suit  by  A 
court. — Whyte  v.  Gibbes,  20  How.  541,  15  against  B  on  the  note  it  was  held  that  an 
L.   Ed.   1016.  objection  to  the  jurisdiction  of  the  United 

19.  Form  and  sufficiency  of  plea  in  gen-  States  court  by  plea  in  abatement  on  the 
eral. — Elicrly  v.  Moore,  24  How.  147,  158,  ground,  that  the  note  was  given  to  A  and 
IG   L.    Ed.   612.                                                    _  B  and  as  B  was  a  citizen  of  Louisiana,  the 

"We  may  say  as  Lord   Denman  said,  in  suit  was  interdicted  by  the  prohibition  of 

Horner  v.  Keppel.  10  A.  and  E.  17:  'Where  the  judiciary  act,   which  declared  that  the 

a  plea  is   clearly  frivolous   on  the   face  of  courts  of  the  United  States  shall  not  have 

it.    that    is    a    good    ground   for    setting   it  cognizance    of    a    suit    in    favor   of   an    as- 

aside;  but  the   plea  here   is   not  quite  bad  signee   of  a   chose  in  action,  unless  a  suit 

enough  to  warrant  that  remedy.'  "   Eberly  should  have  been  prosecuted  in  said  court. 

r.  Moore.  24  How.  147.  158.  16  L.  Ed.  612.  for  the   same,   if  no  assignment  had   been 

20.  Objections  to  service  of  process. —  made,  except  in  cases  of  foreign  bills  of 
Fitzgerald,  etc..  Construction  Co.  v.  Fitz-  exchange,  could  not  be  sustained,  since  B 
gerald.   137  U.   S.   98,  34  L.   Ed.   608.  never   had   any   interest,   as   payee,   in   the 

21.  Necessity  for  plea  to  give  better  note.  McMicken  v.  Webb,  11  Pet.  25,  9 
writ. — Rhode    Island   v.    Massachusetts,    12       L.   Ed.  618. 

Pet.   657.   719.  9   L.   Ed.   1233.  Generally,    as    to   federal   jurisdiction   in 

22.  Objection  that  parties  are  not  citi-  case  of  diverse  citizenship  of  parties,  see 
zens  of  different  states.— Mullen  v.  Tor-  the  titles  COURTS:  JURISDICTION, 
ranee,  9  Wheat.  537,  6  L.  Ed.  154.  23.       Burden      of     proof. — Sheppard     v. 

A  and    B   were   in   partnership,   as   mer-  Graves.   14  How.   505,   14   L.   Ed.   518. 
chants,  in  the  state  of  Louisiana,  and  upon  24.     Review    by    mandamus. — Ex    parte 

dissolution  of  the  connection,  B  purchased  Baltimore,  etc.,  R.  Co..  lOS  U.  S.  566.  567. 

the    stock   giving   A,    in   payment    for    the  27  L.  Ed.  812;   Ex  parte  Des  Moines,  etc.. 


38 


ABATEMENT,  REl'lVAL  AND  SUtilirAL. 


ment  overruling  a  plea  in  abatement  is  open  to  review  on  proceedings  in  error 
brou"-ht  by  the  plaintiff, ^^  and  no  assignment  of  error  is  required  in  order  for  the 
supreme  court  to  review  a  judgment  overruling  the  plea.-*^ 

2.  Answer. — Matters  in  abatement  cannot  be  taken  advantage  of  by  averments 
in  the  answer,  even  under  the  23rd  rule  of  the  supreme  court  regulating  proceed- 
ings in  equity.-^ 

3.  Pleas  Puis  Darrein  Continuance — a.  Definition  and  Nature. — When 
matter  of  defense  has  arisen,  after  the  commencement  of  a  suit,  it  cannot  be 
pleaded  in  bar  of  the  action,  generally,  but  must,  when  it  lias  arisen  after  issue 
joined,  be  pleaded  puis  darrein  continuance. ^s 

b.  Grounds  for  Pica. — Matters  arising  after  the  institution  of  the  action,  such 
as  revocation  of  the  plaintilT's  letters  testamentary,-"  the  termination  of  the  de- 
fendant's official  authority,'^"  that  the  defendant  has  paid  the  claim  sued  upon  on 


R.  Co.,  103  U.  S.  794,  36  L.  Ed.  461.  See 
the  titles  APPEAL  AND  ERROR; 
MANDAMUS. 

25.  Review  on  error  brought  by  plain- 
tiff.—Scott  V.  Sandford,  19  How.  393,  15 
L.   Ed.   691. 

When  a  plea  to  the  jurisdiction,  in  abate- 
ment, is  overruled  by  the  court  upon  de- 
murrer, and  the  defendant  pleads  in  bar, 
and  upon  these  pleas  the  final  judgment 
of  the  court  is  in  his  favor — if  the  plain- 
tiflf  brings  a  writ  of  error,  the  judgment 
of  the  court  upon  the  plea  in  abatement 
is  before  the  supreme  court,  although  it 
was  in  favor  of  the  plaintiff — and  if  the 
court  erred  in  overruling  it,  the  judgment 
must  be  reversed,  and  a  mandate  issued 
to  the  circuit  court  to  dismiss  the  case 
for  want  of  jurisdiction.  Scott  v.  Sand- 
ford,    19    How.    393.    15    L.    Ed.    691. 

26.  Assignment  of  error. — Pennsyl- 
vania R.  Co.  V.  St.  Louis  R.  Co..  116  U. 
S.   472,  29    L.    Ed.   696. 

Where  a  pfea  to  the  jurisdiction  on  the 
ground  that  parties  were  not  citizens  of 
different  states  was  overruled  by  the  cir- 
etiit  court,  but  no  error  was  assigned  on 
the  ruling  and  no  reference  made  to  it  in 
the  argument  on  appeal,  the  court  of  its 
own  motion  gave  counsel  time  to  file 
printed  arguments  on  that  question. 
Pennsylvania  R.  Co.  v.  St.  Louis  R.  Co., 
116  U.  S.  472,  29  L.  Ed.  696. 

As  to  assignments  of  error,  see  the 
title  APPEAL  AND    ERROR. 

27.  Raising  objections  in  abatement  by 
answer. — Livingston  v.  Story,  11  Pet.  351, 
352,  9   L.   Ed.   746. 

The  23d  rule  of  the  supreme  court,  for 
the  regulation  of  equity  practice  in  the 
circuit  courts,  is  understood  by  the  su- 
preme court  to  apply  to  matters  applicable 
to  the  merits,  and  not  to  mere  pleas  to 
the  jurisdiction,  and  especially,  to  those 
founded  on  any  personal  disability,  or 
personal  character  of  the  party  suing;  or 
to  any  pleas,  merely  in  abatement.  The 
lule  does  not  allow  a  defendant,  instead 
of  filing  a  formal  demurrer  or  a  plea,  to 
insist  on  any  special  matter  in  his  an- 
swer; and  have  also  the  benefit  thereof, 
as  if  he  had  pleaded  the  same  matter,  or 
had  demurred  to  the  bill;  in  this  respect, 


the  rule  is  merely  affirmative  of  the  gen- 
eral rule  of  the  court  of  chancery;  in 
which,  matters  in  abatement,  and  to  the 
jurisdiction,  being  preliminary  in  their 
nature,  must  be  taken  advantage  of  by  a 
plea,  and  cannot  be  taken  advantage  of 
in  a  general  answer;  which  necessarily  ad- 
mits the  right  and  capacity  of  the  party 
to  sue.  Livingston  v.  Story,  11  Pet.  351, 
352,   9   L.    Ed.   746. 

28.  Definition  and  nature  of  plea. — 
Yeaton  v.  Lynn,  5  Pet.  224,  8  L.  Ed.  105; 
Thompson  v.  United  States,  103  U.  S.  480, 
483,    26    L.    Ed.   521. 

If  any  matter  of  defense  has  arisen, 
after  an  issue  in  fact,  it  may  be  pleaded 
by  the  defendant,  puis  darrein  continu- 
ance; as,  that  the  plaintiff  has  given  him 
a  release,  or,  in  an  action  by  an  adminis- 
trator, that  the  plaintiff's  letters  of  ad- 
ministration have  been  revoked.  Yeaton 
V.   Lynn,   5  Pet.  224,  8  L.   Ed.  105. 

Where  a  plea  differs  from  a  technical 
plea  of  puis  darrein  continuance,  only  in 
the  circumstance,  that  the  satisfaction  is 
alleged  to  have  been  after  the  commence- 
ment of  the  suit,  instead  of  after  the  last 
continuance  of  the  suit,  it  in  principle  is 
the  same,  since  each  of  them  requires  the 
same  commencement  and  conclusion;  that 
is,  instead  of  actio  non,  generally,  each 
must  be  pleaded  with  the  prayer  of  ac- 
tion non  ulterius  habere,  etc.;  and  the 
judgment  must  follow  the  prayer,  and  is 
repugnant  to,  and  incompatible  with,  that 
of  a  general  judgment  upon  matters  be- 
fore the  suit  brought.  L^nited  States 
Bank  v.  Carneal.  2  Pet.  540.  548,  7  L.  Ed. 
513. 

29.  Revocation  of  letters  testamen- 
tary.— Where  the  plaintiff  was  executor, 
when  the  suit  was  brought,  and  when  is- 
sue was  joined,  and  could  then  rightfully 
maintain  the  action,  the  revocation  of  let- 
ters testamentary  should  be  brought  be- 
fore the  court  by  a  plea,  since  the  last 
continuance,  and  if  it  is  not  done  the  de- 
fendant must  be  considered  as  waiving 
this  defense,  and  resting  his  cause  on  the 
general  issue.  Yeaton  v.  Lynn,  5  Pet.  224, 
8.L.   Ed.  105. 

30.  Termination  of  official  authority. — . 
Where    in    a    proceeding     in      mandamus 


ABATEMBXr,  REJIVAL  AND  SURJ'IVAL. 


39 


process  from  a  state  court,^^  or  that  the  defendant,  in  a  real  action,  has  acquired 
title  since  the  institution  of  the  suit,-'^  should  be  pleaded  by  a  plea  puis  darrein 
continuance. 

c.  Effect  of  Plea  — A  plea  puis  darrein  continuance  waives  all  prior  pleas,  and 
amounts  to  an  admission  of  the  cause  of  the  action  set  up  in  the  plaintiff's  declara- 
tion.^'^ 

d.  Effect  of  Refusal  to  Penult  Plea  to  Be  Filed. — A  defendant  who  is  not  per- 
mitted to  plead  puis  darrein  continuance,  the  satisfaction  of  the  penalty  of  a  bond 
upon  which  he  is  sued,  is  entitled  to  relief  in  equity.^"* 

e.  JudcjDient  on  Plea. — If  matter  in  abatement  be  pleaded  puis  darrein  con- 
tinuance, the  judgment,  if  against  the  defendant,  is  peremptory. '^^ 

B.  Waiver  of  Grounds  of  Abatement — 1.  Appearance. — Appearance  as 
waiving  matters  in  abatement  is  treated  elsewhere  in  this  work.^^ 

2.  Pleading  in  Bar — a.  In  General. — In  the  proper  order  of  pleading  which 
is  obligatory,  a  plea  in  bar  waives  all  pleas,  and  the  right  to  plead,  in  abatement.^^ 


against  a  township  clerk,  the  defendant 
desires  to  set  up  that  his  successor  has 
been  appointed  since  the  issue  was  mads 
up  in  the  case,  it  should  be  set  up  by  a 
plea  puis  darrein  continuance,  or  its 
equivalent.  Thompson  z'.  United  States, 
103  U.   S.  480,   483,  26  L.   Ed.   ,521. 

31.  Payment  of  claim  on  process  from 
state  court. — Humphreys  v.  Leggett,  9 
How.  297,   313,   13  L.   Ed.    145. 

Where  a  surety  has  been  compelled  to 
pay  the  whole  amount  of  his  bond  by 
process  from  the  state  courts,  before  ar- 
other  judgment  is  obtained  against  him, 
but  after  the  institution  of  the  suit,  this 
would  be  a  good  defense  to  the  action  if 
pleaded  puis  darrein  continuance.  Hum- 
phreys V.  Leggett.  9  How.  297,  313,  13  L. 
Ed.    14.5. 

32.  Acquisition  of  title  by  defendant  in 
real  action  pending  suit. — Hardy  f.  John- 
son, 1  Wall.  371,   17  L.  Ed.   .502. 

According  to  the  system  of  pleading  and 
practice  in  common-law  cases  which  pre- 
vails in  the  courts  of  California,  and 
which  has  been  adopted  by  the  circuit 
court  of  the  United  States  in  that  state, 
a  title  acquired  by  the  defendant  in  eject- 
ment after  issue  joined  in  the  action  can 
only  be  set  up  by  a  supplemental  answer 
in  the  nature  of  a  plea  puis  darrein  con- 
tinuance. Hardy  v.  Johnson,  1  Wall.  371, 
17   L.   Ed.   .-.02. 

33.  Waiver  of  prior  pleas. — Crawford 
V.  Burke,  195  U.  S.  176,  185,  49  L.  Ed.  147; 
Wallace  v.  McConnell,  13  Pet.  135,  137, 
10  L.  Ed.  95;  Yeaton  v.  Lynn,  5  Pet.  224, 
8  L.  Ed.  105;  Renner  v.  Marshall,  1 
Wheat.    215,   218,   4    L.    Ed.    74. 

The  effect  of  a  plea  puis  darrein  con- 
tinuance is  that  on  the  record,  the  cause 
of  action  is  admitted,  to  the  same  extent 
as  if  no  other  defense  had  been  urged 
than  that  contained  in  this  plea.  Wallace 
V.  McConnell.  13  t>et.  135,  152,  10  L. 
Ed.   95. 

A  plea  puis  darrein  continuance  is  al- 
ways pleaded  by  way  of  substitution  for 
the  former  plea,   on   which   no  proceeding 


is  afterwards   had.     United   States   Bank  z/, 
Carneal,   2   Pet.   540,   548,   7   L.   Ed.   513. 

An  action  was  instituted  on  a  promis- 
sory note  against  the  maker,  by  which 
the  latter  promised  to  pay,  at  the  office 
of  discount  and  deposit  of  the  bank  of 
the  United  States,  at  Nashville  three  years 
after  date,  $4,080.  In  the  declaration, 
which  set  out  the  note  according  to  its 
terms,  and  alleged  the  promise  to  pay, 
according  to  the  tenor  of  the  note,  there 
was  no  averment  that  the  note  was  pre- 
sented at  the  bank,  or  demand  of  pay- 
ment made  there;  the  defendant  pleaded 
payment  and  satisfaction  of  the  note,  and 
issue  was  joined  thereon.  Afterwards, 
at  the  succeeding  term,  the  defendant  in- 
terposed a  plea  of  puis  darrein  continu- 
ance, stating,  that  $4,204,  part  of  the 
amount  of  the  note,  had  been  attached  by 
B.  &  W.  in  a  state  court  of  .Alabama,  un- 
der the  attachment  law  of  the  state,  and 
a  judgment  had  been  obtained  against  him 
for  $4,204,  and  costs,  with  a  stay  of  pro- 
ceedings until  the  further  proceedings  in 
the  case,  which  remained  undetermined. 
The  plaintiff  demurred  to  this  plea,  and 
the  circuit  court  sustained  the  demurrer; 
and  judgment  was  given  for  the  plain- 
tiff for  $679,  the  residue  of  the  note  be- 
yond the  amount  attached,  and  a  final 
judgment  for  the  whole  amount  of  the 
note.  Held,  that  there  was  no  error  in 
the  judgment  of  the  circuit  court.  Wal- 
lace V.  McConnell.  13  Pet.  135,  136.  10  L. 
Ed.  95. 

34.  Effect  of  refusal  to  permit  plea  to 
be  filed. — Leggett  v.  Humphreys,  21  How. 
66.    67.    16    L.    Ed.    50. 

35.  Judgment  on  plea. — Renner  z'.  Mar- 
shall,   1   Wheat.  215,  4   L.    Ed.   74. 

36.  Appearance  as  waiver  of  matters  in 
abatement. — As  to  appearance  as  waiving 
matters  in  abatement,  see  the  title  AP- 
PEARANCES. 

37.  Pleading  in  bar  in  general. — Balti- 
more, etc.,  R.  Co.  V.  Harris,  12  Wall.  65, 
84,  20  L.  Ed.  354;  Young  v.  Martin,  S 
Wall.  354,  19  L.  Ed.  418;  .\urora  City  v. 
West.  7  Wall.  82.  92.  10  I^.  Ed.  42;  Clear- 


40 


ABATEMEXT,  REJ'IJ'AL  AXD  SURJ'IVAL. 


b.  Objections  to  Capacity  of  Plaintiffs  to  Sue. — Pleading  to  the  merits,  has 
been  held  by  this  court  to  be  an  admission  of  the  capacity  of  the  plaintiffs  to  sue ; 
the  general  issue  admits,  not  only  the  competency  of  the  plaintitTs  to  sue,  but  to 
sue  in  the  particular  action  which  they  bring.'-"  1  his  rule  has  been  held  to  apply  to 
want  of  corporate  capacity  on  the  part  of  the  plaintiff,-^''  and  to  the  want  of  au- 
thority on  the  part  of  a  person  suing  as  personal  representative.^" 

c.  Misnomer  of  Parties. — A  misnomer  of  parties  is  waived  by  pleading  to  the 

merits.'*^ 

d.  Misjoinder  of  Parties. — A  failure  to  sue  one  or  all  of  several  joint  and 
several  obligors,  suit  being  brought  against  an  intermediate  number,  if  not  taken 
advantage  of,  by  plea  in  abatement,  is  waived,  by  pleading  to  the  merits.-*^ 

e.  Variance  or  Defects  in  Writ. — To  allow  a  defendant,  after  the  general  is- 
sue has  been  pleaded,  to  avail  himself  of  any  defect  or  mistake  in  the  writ,  or 
variance  or  repugnancy  between  the  count  and  the  writ,  would  be,  not  to  try  the 
cause  at  issue,  but  would  have  the  effect  to  take  it  from  the  jury  and  to  place  it 
before  the  court,  upon  a  point  of  pleading  which  has  not  been  pleaded,  and  which 
is  unconnected  with  the  merits  of  the  cause.^^ 

f.  Objections  to  Jurisdiction. — Formerly  if  a  plea  to  the  jurisdiction  and  a  plea 
in  bar  were  put  in  and  upon  this  state  of  the  pleading  the  cause  went  on  to  trial, 
the  plea  to  the  jurisdiction  was  considered  as  waived.-*^     But  under  the  act  of 


M^ater  v.  Meredith,  1  Wall.  25,  42.  17  L- 
Ed.  604;  Fitzgerald,  etc..  Construction 
Co.  V.  Fitzgerald,  137  U.  S.  98,  105.  34  L. 
Ed.  608;  Bell  v.  Mobile,  etc..  R.  Co.,  4 
Wall.  598. 

If  a  plea  in  abatement  be  filed  with  the 
general  issue,  the  latter  waives  the  former. 
De  Sobry  v.  Nicholson,  3  Wall.  420,  423, 
18  L.  Ed.  263;  Bailey  v.  Dozier,  6  How. 
23,  30,  12  L.  Ed.  328;  Sheppard  v.  Graves, 
14   How.  505,   14  L.   Ed.  518. 

Effect  of  withdrawal  of  plea  in  bar. — 
Where  the  defendant  appeared,  and 
pleaded  to  the  action,  and  at  the  trial 
withdrew  his  plea,  it  was  held  that  the 
court  could  take  no  notice  of  any  matter 
of  abatement  in  the  writ  or  declaration. 
Smith  V.  Clapp,  15  Pet.  125.  128,  10  L.  Ed. 
684. 

38.  Pleading  in  bar  as  waiver  of  objec- 
tion for  incapacity  of  plaintiff. — Society, 
etc.,  ■:■.  Pawlet,  4  Pet.  480,  7  L.  Ed.  927; 
Yeaton  r.  Lynn,  5  Pet.  224,  8  L.  Ed.  105; 
Philadelphia,  etc.,  R.  Co.  v.  Quigley,  21 
How.  202,  214,  16  L.  Ed.  73;  Conard  v. 
Atlantic  Ins.  Co.,  1  Pet.  386,  7  L.  Ed.  189; 
Evans  c'.  Gee,  11  Pet.  80,  9  L.  Ed.  639; 
Wickliffe  z'.  Owings,  17  How.  47,  15  L. 
Ed.   44. 

39.  Plea  to  merits  as  admitting  cor- 
porate capacity. — Conard  z\  Atlantic  Ins. 
Co.,  1  Pet.  386.  387.  7   L.  Ed.   189. 

Ejectment  to  recover  a  lot  of  land,  be- 
ing the  first  division  lot  laid  out  to  the 
right  of  the  Society  in  the  Town  of  Paw- 
let.  The  plaintiffs  were  described  in  the 
writ  as  "The  Society  for  the  Propagation 
of  the  Gospel  in  Foreign  parts,  a  corpora- 
tion duly  established  in  England,  within 
the  dominions  of  the  king  of  the  United 
Kingdom  of  Great  Britain  and  Ireland, 
the  members  of  which  societj'  are  aliens, 
and  subjects  of  the  said  king;"  the  de- 
fendants pleaded  the  general  issue  of  not 


guilty.  The  general  issue  admits  the  com- 
petency of  the  plaintiffs  to  sue,  in  the  cor- 
porate capacity  in  which  they  have  sued. 
Society,  etc..  z''  Pawlet,  4  Pet.  480,  7  L.  Ed. 
927. 

40.  Plea  to  merits  as  admitting  repre- 
sentative capacity. — In  an  action  by  a 
plaintiff  as  administrator,  a  plea  to  the 
merits  admits  the  representative  character 
of  the  plaintiff  to  the  extent  stated  in  the 
declaration,  and  if  that  statement  is  con- 
sistent with  the  grant  of  letters  within 
the  state,  it  also  admits  his  right  to  sue 
in  that  capacity;  but  such  a  plea  admits 
nothing  more  than  the  title  stated  in  the 
declaration.  Noonan  v.  Bradley,  9  Wall. 
394,    19   L.    Ed.   757. 

When  a  suit  is  brought  by  an  adminis- 
trator, during  the  minority  of  the  executor, 
his  powers  as  administrator  are  de- 
termined, when  the  e.xecutor  has  at- 
tained his  full  age;  and  the  fact  that  he 
has  not  attained  his  full  age  must  be 
averred  in  the  declaration;  but  if  this 
averment  be  omitted,  and  the  defendant 
pleads  in  bar,  he  admits  the  ability  of  the 
plaintiff  to  sue,  and  the  judgment  is  not 
void.  Yeaton  v.  Lynn,  5  Pet.  224,  8  L.  Ed. 
105. 

41.  Misnomer  of  parties. — Baltimore, 
etc.,  R.  Co.  V.  Fifth  Baptist  Church,  137 
U.  S.  568,  572,  34  L.  Ed.  784;  Lafayette 
Ins.  Co.  V.  French,  18  How.  404,  409,  15 
L.  Ed.  451. 

42.  Misjoinder  of  parties. — Minor  v. 
Mechanics'  Bank,  1  Pet.  46,  47,  7  L.  Ed. 
47;  Barry  z:  Foyles,  1  Pet.  309,  311.  7  L. 
Ed.    157. 

43.  Variance  or  defects  in  writ. — Mc- 
Kenna  v.  Fish.  1  Flow.  240,  247,  11  L.  Ed. 
117. 

44.  Objections  to  jurisdiction. — Bailey 
r.  Dozier,  6  How.  23,  12  L.  Ed.  328;  Smith 
V.  Kernochen,  7  How.  198.  216,  12    L.   Ed. 


ABATEMENT,  REJIVAL  AND  SURJ'IVAL. 


41 


1875,  the  court  will  dismiss  the  suit  at  any  time  where  it  appears  that  it  does  not 
involve  a  controversy  within  its  jurisdiction. ■*•'' 

g.  In  Criminal  Cases. — By  pleading  not  guilty  to  the  indictment,  and  going 
to  trial  without  making  any  objection  to  the  mode  of  selecting  the  grand  jury, 
such  objection  is  waived. ^^^ 

3.  Rkmoval  of  Cause,  and  Proceedings  Subsequent  to  Removal. — A  de- 
fendant, by  filing  a  petition  in  a  state  court  for  removal  of  the  cause  to  the 
United  States  court,  in  general  terms,  unaccompanied  by  a  plea  in  abatement,  and 
without  specifying  or  restricting  the  purpose  of  his  appearance,  does  not  thereby 
waive  objection  to  the  jurisdiction  of  the  court  for  want  of  sufficient  service  of 
the  summons.-*"  And  where  the  case  has  been  properly  removed,  and  the  state 
court  thereafter  asserts  jurisdiction  and  proceeds  to  adjudicate  the  case,  against 
the  protest  of  the  party  removing  it,  such  party  does  waive  his  right  to  object  to 
the  jurisdiction  of  the  state  court  by  appearing  and  contesting  the  suit.*^ 

4.  Going  to  Trial  on  Merits. — Going  to  trial  on  merits  without  objecting 
is  a  waiver  of  matters  pleadable  in  abatement.-*''     This  rule  has  been  applied  to 


666;  Rhode  Island  v.  Massachusetts.  12 
Pet.  657,  719,  9  L.  Ed.  1233;  St.  Louis, 
etc.,  R.  Co.  V.  McBride,  141  U.  S.  127,  35 
L.  Ed.  659;  Texas,  etc.,  R.  Co.  v.  Saund- 
ers. 151  U.  S.  105,  38   L.  Ed.  90. 

A  party  against  whose  property  a  for- 
eign attachment  has  issued  in  a  circuit 
court  of  the  United  States,  although  the 
circuit  court  had  no  right  to  issue  such  an 
attachment,,  having  appeared  to  the  suit, 
and  pleaded  to  issue,  cannot  afterwards 
deny  the  jurisdiction  of  the  court;  the 
party  has,  as  a  personal  privilege,  a  right 
to  refuse  to  appear;  but  it  is  also  compe- 
tent to  him  to  waive  the  objection.  To- 
land  V.  Sprague,  12  Pt.  300.  9  L.  Ed.  1093. 

An  objection  to  jurisdiction,  on  the 
ground  of  exemption  from  the  process  of 
the  court  in  which  the  suit  is  brought,  or 
the  manner  in  which  a  defendant  is 
brought  into  it.  is  waived,  by  appearance 
and  pleading  to  issue;  but  when  the  ob- 
jection goes  to  the  power  of  the  court 
over  the  parties,  or  the  subject  matter, 
the  defendant  need  not.  for  he  cannot, 
give  the  plaintiff  a  better  writ  or  bill. 
Rhode  Island  z>.  Massachusetts,  12  Pet. 
657,   9   L.   Ed.    1233. 

45.  Rule  under  act  of  1875. — See  ante, 
'•Rule  under  Act  of  1875."  II.  A,  1,  b,  (l), 
(b),  bb. 

A  defendant  does  not  preclude  himself 
from  raising  a  question  of  jurisdiction,  by 
inviting  the  action  of  the  court  upon  a 
plea  of  former  adjudication  and  by  wait- 
ing until  the  court  has  ruled  upon  that 
plea.  Morris  v.  Gilmer,  129  U.  S.  315,  326, 
32  L.   Ed.  690. 

46.  In  criminal  cases. — United  States 
7,'.   Gale.   109   U.   S.  65,   67,  27  L.   Ed.  857. 

47.  Petition  for  removal  as  waiver  of 
matters  in  abatement. — National  .A.ccident 
Society  z:  Spiro.  164  U.  S.  281,  41  L.  Ed. 
t35;  Wabash  Western  Railway  v.  Brow, 
164  U.  S.  271,  41  L.  Ed.  431;  Fitzgerald, 
etc..  Construction  Co.  r.  Fitzgerald,  137 
U.  S.  98,  105.  34  L.  Ed.  608;  Goldev  T'. 
Morning  News,  156  U.  S.  518,  523,  39  L- 
Ed.   517. 


The  theory  that  a  defendant,  by  filing 
in  the  state  court  a  petition  for  removal 
into  the  circuit  court  of  the  United  States, 
necessarily  waives  the  right  to  insist  that 
for  any  reason  the  state  court  had  not 
acquired  jurisdiction  of  bis  person,  is  in- 
consistent with  the  terrris,  as  well  as  with 
the  spirit,  of  the  existing  act  of  congress 
regulating  removals  from  a  court  of  a 
state  into  the  circuit  court  of  the  United 
States.  Goldey  z>.  Morning  News,  156  U. 
S.  518,  523,  39  L.  Ed.  517. '  See,  eenerally, 
the  title  REMOVAL  OF  CAUSES. 

48.  Participation  in  trial  in  state  court 
after  removal. — When  a  case  has  been 
properly  removed  from  a  state  into  a 
United  States  court,  and  the  state  court 
still  goes  on  to  adjudicate  the  case, 
against  the  resistance  of  the  party  at 
whose  instance  the  removal  was  made, 
such  action  on  its  part  is  a  usurpation, 
and  the  fact  that  such  a  party  has,  after 
the  removal,  contested  the  suit,  does  not, 
after  judgment  again,st  him,  constitute  a 
waiver  on  his  part  of  the  question  of  the 
jurisdiction  of  the  state  court  to  try  the 
case.  Kern  ?'.  Huidekoper,  103  U.  S.  485, 
492.  26  L.  Ed.  354;  Home  Life  Ins.  Co. 
V.  Dunn,  19  Wall.  214,  22  L.  Ed.  68;  Re- 
moval Cases.  100  U.  S.  457,  25  L.  Ed.  593; 
New  Orleans,  etc.,  Co.  v.  Mississippi,  102 
U.   S.  135,  26  L.   Ed.  96. 

By  the  proceedings  for  the  removal  of 
a  case,  jurisdiction  over  it  was  transferred 
to  the  United  States  circuit  court,  and 
the  filing  by  the  plaintiffs  below  of  a  rep- 
lication in  the  state  court,  after  such  re- 
moval, and  the  prosecution  of  the  action 
to  a  final  hearing  in  that  court,  did  not 
reinvest  the  state  court  with  jurisdiction 
of  the  cause,  nor  amount  to  a  waiver  of 
any  rights  resulting  to  the  plaintififs  from 
the  removal.  Kern  t.  Huidekoper.  103  U. 
S.  485.  493.  26  L.  Fd.  354.  See.  eenerally. 
the  title  REMOVAL  OF  CAUSES. 

49.  Going  to  trial  on  merits  as  waiver 
of  grounds  of  abatement. — Conard  v.  At- 
lantic   Ins.    Co.,   1    Pet.   386.   387,    7    L.    Ed. 


42 


AB  AT  EM  EXT,  REJ^U'AL  AXD  SURJ'IVAL. 


the  objections  for  the  plaintiffs  want  of  capacity  to  swe,^"'  to  objections  for  non- 
joinder or  misjoinder  of  parties, ^^  and  to  objections  for  want  of  service  of 
process.-^ - 

III.  Revival  or  Continuance  of  Suits  or  Actions. 

A.  Necessity  of  Proceedings  to  Eevive. — In  order  to  continue  a  suit  ox- 
action  by  or  against  the  personal  representatives  of  a  deceased  party,  the  proper 
course  of  proceedings  to  effect  the  revival  of  the  suit  or  action  must  be  fol- 
lowed.^^ 

B.  Necessity  for  Suit  to  Be  Pending. — In  order  to  permit  a  revival,  the 
fuit  or  action  must  be  actually  pending  at  the  time  the  proceedings  to  revive  are 
had,  and,  for  this  purpose,  a  suit  is  deemed  to  be  pending  from  the  moment  of 
its   commencement.^^ 

0.  Time  of  Revival. — In  order  to  revive  a  proceeding  upon  the  death  of  a 
party,  the  steps  necessary  to  effect  the  revival  must  be  taken  in  proper  time, 
otherwise  the  right  to  revive  is  lost.^^ 


189;   Bell  v.   Mobile,  etc.,   R.    Co.,  4  Wall. 
598. 

As  an  objection  to  the  institution  of  the 
suit  against  the  defendants  in  three  dis- 
tinct capacities,  even  if  it  would  have  been 
valid,  not  having  been  taken  in  the  court 
below  at  any  stage  in  the  case,  cannot  be 
taken  in  the  supreme  court.  Kittredge  v. 
Race,  92  U.  S.  116.  23   L.   Ed.  488. 

50.  Want  of  capacity  of  plaintiff  to  sue. 
— Conard  v.  Atlantic  Ins.  Co..  1  Pet.  386, 
387,  7  L.  Ed.  189;  Bell  v.  Mobile,  etc.,  R. 
Co..  4  Wall.  598;  Yeaton  v.  Lynn,  5  Pet. 
224,'  8  L.   Ed.   105. 

51.  Nonjoinder  or  misjoinder  of  par- 
ties.— Burbank  v.  Bigelow,  154  U.  S.  558, 
23  L.  Ed.  542;  Smith  v.  Kernochen, 
7  How.  198,  216,  12  L.  Ed.  666; 
D'Wolf  V.  Rabaud.  1  Pet.  474,  7  L. 
Ed.  227;  Evans  v.  Gee.  11  Pet.  80,  9  L.  Ed. 
639;  Simms  v.  Hundley,  6  How.  1.  12  L. 
Ed.   319. 

A  question  of  joinder  of  parties  should 
be  taken  in  limine,  and  if  it  is  not  taken 
at  all  in  the  court  below,  it  cannot  be 
taken  for  the  first  time  in  the  supreme 
court,  even  if  it  would  have  been  valid  in 
the  court  below  at  any  stage  in  the  cause. 
Kittredge  v.  Race.  92  U.  S.  116,  119,  23 
L.    Ed.    488. 

62.  Want  of  service  of  process. — In  a 
proceeding  in  rem  the  defendant  having 
denied  the  power  of  the  court  to  proceed 
at  all,  and  upon  decision  against  it  having 
joined  issue  and  gone  to  trial  on  the 
merits,  as  jurisdiction  existed  over  the 
subject  matter,  it  was  properly  maintained 
over  the  person,  even  though  the  service 
on  the  person  might  have  been  set  aside. 
Fitzgerald,  etc.,  Construction  Co.  v.  Fitz- 
gerald,  137  U.   S.   98,   34  L.   Ed.  608. 

53.  Necessity  for  proceedings  to  re- 
vive.— Dolan  V.  Jennings.  139  U.  S.  385, 
Zb  L.  Ed.  217;  Bigler  v.  Waller,  14  Wall. 
297,  307.  20  L.  Ed.  891;  Macker  v.  Thomas. 
7  Wheat.  530,  5   L.  Ed.  515. 

Where  a  suit  by  two  parties  was  prose- 
cuted to  a  final  decree,  and  one  died,  and 
an    appeal    was    taken    by    the    defendant. 


and  it  did  not  appear  that  any  order  was 
procured  directed  to  the  proper  repre- 
sentatives of  the  estate  of  one  of 
the  plaintiffs,  or  notifying  them  of 
the  appeal,  nor  that  they  had  vol- 
untarily appeared,  and  so  far  as  dis- 
closed by  the  record,  the  cause  of  ac- 
tion did  not  on  the  death  of  one  of  the 
complainants  survive  to  the  other,  and 
there  was  no  severance  between  the  sur- 
viving complainant  and  the  legal  repre- 
sentatives of  the  other,  it  was  held,  that 
the  proper  course  of  proceeding  had  been 
wholly  disregarded.  Dolan  v.  Jennings, 
139  U.   S.  385,  35  L.   Ed.  217. 

Generally,  as  to  effect  of  death  of  party 
pending  appeal  or  proceedings  in  error, 
see  the  title  APPEAL  AND  ERROR. 

A  decree  cannot  be  rendered  against 
heirs  unless  they  are  made  parties  on 
death  of  the  defendant.  Bigler  v.  Waller, 
14    Wall.    297.    307.    20    L.    Ed.    891. 

54.  When  suit  is  deemed  to  be  pending. 
—In  re  Connaway,  178  U.  S.  421,  427,  44 
L.    Ed.   1134. 

Under  |1  955  of  the  Revised  Statutes 
providing  *:hat  an  executor  or  administra- 
tor of  plaintiff  or  petitioner  or  defendant 
in  any  suit  in  any  court  of  the  United 
States  may  be  made  a  party  by  scire  facias 
served  from  the  office  of  the  clerk  of  the 
court  where  the  suit  is  pending,  the  suit 
is  deemed  to  be  pending  from  the  mo- 
ment of  its  commencement.  In  re  Con- 
nawav,  178  U.  S.  421,  427,  44   L.  Ed.   1134. 

Under  §  405  of  the  California  Code  of 
Civil  Procedure  the  filing  of  the  com- 
plaint is  the  commencement  of  the  action, 
and  a  suit  is  deemed  to  be  pending  within 
the  above  rule  frrim  that  time.  In  re 
Connaway,  178  U.  S.  421,  427,  44  L.  Ed. 
1134. 

55.  Time  of  revival. — Dolan  v.  Jennings, 
139  U.  S.  385,  35  L.  Ed.  217;  Horsburg  v. 
Baker,  1  Pet.  232,  7  L-  Ed.  125;  Barri- 
beau  V.  Brant,  17  How.  43,  15  L.  Ed.  34. 

After  an  answer  and  discovery,  the  rule 
is,  that  a  suit  brought  merely  for  dis- 
covery,   cannot   be    revived;   the    object   is 


ABATEMENT,  REVIVAL  AND  SURVIVAL. 


43 


D.  Who  May  Revive— 1.  Successor  in  Interest.— The  only  persons  who, 
upon  principles  of  law  and  the  rules  of  the  supreme  court,  can  he  permitted  to 
appear  in  the  stead  of  a  deceased  plaintiff  are  those  who,  upon  his  death,  suc- 
ceed to  the  interest  he  then  had,  and  upon  whom  his  estate  then  devolves.^^ 
A  person  having  no  interest  in  the  matter  in  controversy  is  not  entitled  to  re- 
vive the  suit.'^' 

2.  Assignee. — Where  an  original  party  has  assigned  the  cause  of  action,  his 
assignee  may  be  substituted. •"''^ 

3.  Survivor. — If  one  of  several  joint  obligees  be  dead,  a  suggestion  of  that 
fact  is  sufficient  to  show  a  right  to  sue  in  the  names  of  the  survivors.^'^ 

4.  Personae  Representative — a.  Right  to  Revive. — When  the  plaintiff,  or 
petitioner,  in  any  suit  in  any  court  of  the  United  States,  dies  before  final  judg- 
ment, the  executor  or  administrator  of  such  deceased  party  may,  in  case  the 
cause  of  action   survives  by   law,  prosecute  any  such  suit  to  final  judgment.^*^ 


obtained,  and  the  plaintiff  has  no  motive 
for  reviving  it.  Horsburg  v.  Baker.  1 
Pet.  232.  7  L.  Ed.  125. 

Where  more  than  four  years  elapsed 
after  a  final  decree,  it  was  held  too  late 
for  the  supreme  court  on  appeal  to  ob- 
tain jurisdiction  over  the  legal  represent- 
atives of  one  of  the  complainants  who 
died  after  final  decree.  Dolan  z'.  Jennings. 
139   U.   S.   385,    35   L.    Ed.  217. 

Where  the  death  of  a  party  complainant 
was  suggested  at  December  term,  1851,  of 
this  court,  and  his  legal  representatives 
did  not  appear  by  the  tenth  day  of  this 
term,  the  bill  must,  as  to  him,  be  en- 
tered, abated  under  the  61st  rule  of  this 
court.  Barribeau  v.  Brant,  17  How.  43, 
15   L.    Ed.    34. 

As  to  revival  of  proceedings  on  appeal 
or  writ  of  error,  see  the  title  APPEAL 
AND   ERROR. 

56.  Successors  in  interest. — Barribeau  v. 
Brant.  17  How.  43.  45.  15  L.  Ed.  34;  Terry 
V.  Sharon.  131  U.   S.  40,  46.  33   L.  Ed.   94. 

Libel  for  prize  money  filed  by  admiral 
for  himself  and  others. — Where  a  libel  in 
prize  was  filed  by  an  admiral  in  his  own 
behalf  and  in  behalf  of  all  the  officers  and 
enlisted  men  of  the  navy  taking  part  in 
an  engagement,  and  the  admiral  dies 
pending  the  suit,  the  personal  representa- 
tives of  the  deceased  need  not  come  in 
but  any  one  interested  in  the  proceedings 
may  be  substituted.  United  States  v. 
Sampson,  187  U.  S.  436,  47  L.  Ed.  248.  See 
the  title  PRIZE. 

57.  Person  without  interest  in  matter  in 
controversy. — Terrv  v.  Sharon,  131  U.  S. 
40,   46,   33    L.    Ed.   94. 

The  idea  cannot  be  sustained  that  when 
a  judgment  or  decree  is  rendered  against 
a  defendant,  and  it  remains  wholly  unex- 
ecuted, anybody,  without  any  right,  au- 
thority, or  interest  in  the  matter,  can  come 
in,  and,  by  filing  a  bill  of  revivor,  or  by 
making  a  motion,  liave  himself  substituted 
for  the  plaintiff  who  has  deceased,  with 
all  the  rights  which  that  plaintiff  would 
have  had  to  enforce  the  judgment  or  de- 
cree. Two  questions  must  always  pre- 
sent themselves  in  such  a  case,  or  at  least 
may    be    presented;    the    one    is,    whether 


the  decree  is  in  condition  that  any  further 
action  can  be  had,  or  any  right  asserted 
under  it  by  those  who  succeed  the  plain- 
tiff as  heirs,  devisees,  executors  or  other- 
wise; and  the  other  is,  whether  the  party 
who  thus  asserts  the  right  to  the  benefit 
of  the  decree  is  entitled  to  such  right,  and 
is  by  law  the  person  who  can  claim  its 
enforcement,  or  should  in  any  action  or 
matter  arising  out  of  the  decree,  repre- 
sent the  rights  of  the  original  plaintiff. 
Terry  v.  Sharon,  131  U.  S."  40,  46.  33  L 
Ed.    94. 

Railroad  company  deriving  title  by  pur- 
chase at  foreclosure  sale. — A  railroad 
company  which  derived  its  title  from  the 
foreclosure  of  a  mortgage  of  another  rail- 
road is  not  entitled  to  revive  a  suit  in 
equity  originally  instituted  by  stockhold- 
ers of  the  latter  company,  the  suit  having 
been  instituted  before  it  acquired  title, 
Keokuk,  etc.,  P.  Co.  v.  Scotland  Countv, 
152  TJ.  S.  318,  38  L.  Ed.  457;  Keokuk,  etc.. 
R.  Co.  V.  Missouri,  152  U.  S.  301,  38  L 
Ed.   450. 

58.  Assignee. — Amadoe  v.  Northern 
Assur.  Co.,  201  U.  S.  194,  50  L.  Ed.  722; 
Ex  parte  South,  etc..  R.  Co.,  95  U.  S. 
221,   24    L.    Ed.    355. 

59.  Survivor. — Farni  v.  Tesson,  1  Black 
309,  17  L.   Ed.  67. 

60.  Right  of  personal  representative  to 
revive.— Rev.  Stat..  §  955;  Patton  v.  Brady, 
184  U.  S.  608.  612,  46  L.  Ed.  713;  Martin 
V.  Baltimore,  etc.,  R.  Co.,  151  U.  S.  673, 
691,  38  L.  Ed.  311;  McCoul  v.  LeKamp, 
2  Wheat.  Ill,  4  L.  Ed.  196;  Clarke  z: 
Mathewson,  12  Pet.  164,  9  L.  Ed.  1041; 
Mandeville  v.  Riggs,  2  Pet.  482,  7  L.  Ed. 
493;  Hemingway  v.  Stan^ell.  106  U.  S. 
399.  402,  27  L.  Ed.  245;  Richards  v.  Mary- 
land Ins.  Co.,  8  Cranch  84,  93,  3  L.  Ed. 
496;  Green  v.  Watkins,  6  Wheat.  260,  5 
L.  Ed.  256;  Macker  v.  Thomas.  7  Wheat. 
530,  5  L.  Ed.  515;  In  re  Connawav,  178 
U.  S.  421,  434,  44  L.  Ed.  1134;  Griffith  ?. 
Frazier,  8  Cranch  8,  3  L.  Ed.  471;  Taylo" 
V.  Savage.  1  How.  282,  11  L.  Ed.  132; 
Taylor  v.  Savage,  2  How.  393,  394.  11  L. 
Ed.   313. 

Executor   of   assignee    in   bankruptcy. — 
Upon   the  death   of  an  assignee  under  th: 


44 


ABATEMENT,  REJ'H'AL  AXD  SURVIVAL. 


b.  Necessity  for  Representative  to  Be  Citizen  of,  or  Domiciled  zvithin,  State. 
—In  the  31st  section  of  the  judiciary  act  of  1789  (Rev.  Stat.,  §  995),  congress 
manifestly  treats  the  revivor  of  a  suit,  by  the  representative  of  the  deceased  party, 
as  a  matter  of  right,  and  as  a  mere  continuance  of  the  original  suit ;  without  any 
distinction  as  to  the  citizenship  of  the  representative,  whether  he  belongs  to  the 
same  state  where  the  cause  is  pending  or  to  another  state.^^  And  a  court  which 
has  once  acquired  jurisdiction  of  a  suit  does  not  lose  it  by  a  change  of  domicile 
of  the  parties,  and  may,  when  the  suit  is  of  a  nature  that  survives,  bring  m  the 
representatives  or  successors  of  a  party  who  has  died  or  ceased  to  exist,  without 
regard  to  their  domicile.^- 

c  Proof  of  Representative  Character  as  Prerequisite  to  Revival. — Unques- 
tionably, an  executor  must  show  himself  to  be  executor,  vmless  the  fact  be  admit- 
ted by  the  parties ;  and  the  defendant  may  insist  on  the  production  of  his  letters 
testamentary,  before  he  shall  be  permitted  to  prosecute. *^-^  But  if  the  order  for 
his  admission,  as  a  party,  be  made,  it  is  too  late  to  contest  the  fact  of  his  being 
an  executor.^^ 

E.  Against  Whom  Action  May  Be  Revived. — 1.  Person^\l  ReprEsentativks. 
• — \Mien  a  defendant,  in  any  suit  in  any  court  of  the  United  States,  dies  before 
final  judgment,  the  executor  or  administrator  of  such  deceased  party  may,  in 
case  the  cause  of  action  survives  by  law,  defend  any  such  suit  to  final  judgment, 
and  upon  scire  facias  judgment  may  be  rendered  against  him.^^     The  fact  that 


bankrupt  law  of  the  United  States,  the 
right  of  action,  for  a  debt  due  to  the  bank- 
rupt, vested  in  the  executor  of  the  as- 
signee.     Richards    v.    Maryland    Ins.    Co., 

8  Cranch   84,   3    L.   Ed.   496. 
Representative    of    receiver. — Where    a 

receiver  who  was  a  party  to  a  cause  died 
after  the  case  had  been  carried  to  the 
circuit  court  of  appeals  and  before  it  was 
finally  decided  and  his  receivership  had  in 
fact  terminated  before  that  time,  it  was 
held  that  the  case  might  be  revived  in  the 
name  of  his  executor.  Cake  v.  Mohun, 
Ifi-t   U.    S.   :^tl.   41    L.    Ed.   447. 

Rivival  by  substitution  of  personal  rep- 
resentative a  substitute  for  journey's  ac- 
count.— The  mode  of  continuing  a  suit 
in  the  name  of  the  executor  or  adminis- 
trator, provided  for  by  statute,  is  a  com- 
plete substitute  for  the  continuance  by 
iourney's  account.  But  even  at  common 
law,  such  a  continuance  or  connection 
of  suit  was  allowed  in  no  case  of  vol- 
imtary  abandonment,  and  if  the  benefit  of 
it  was  intended  to  be  asserted,  it  was 
necessary  to  claim  it,  in  the  form  of  re- 
newing the  action.  Richards  v.  IVIary- 
land  Ins.  Co.,  8  Cranch  84,  93,  3  L.  Ed. 
496. 

61.  Representatives  need  not  be  citi- 
zens.— Clarke   v.   Mathewson,   12   Pet.    164, 

9  L.    Ed.    1041. 

A  bill  was  filed  by  W.,  a  citizen  of 
Connecticut.  against  M.  and  others, 
citizens  of  Rhode  Island,  in  the  circuit 
court  of  the  United  States  for  the  district 
of  Rhode  Island;  an  answer  was  put  in  to 
the  bill,  and  the  cause  was  referred  to  a 
master  for  an  account;  pending  these  pro- 
ceedings, the  complainant  died;  and  ad- 
ministration of  his  eflFccts  was  granted  to 
C,  a  citizen  of  Rhode  Island,  who  filed 
a  bill  of  revivor  in  the  circuit  court.     The 


laws  of  Rhode  Island  do  not  permit  a 
person  residing  out  of  the  state  to  take 
out  administration  of  the  efifects  of  a  de- 
ceased person  within  the  state;  and  make 
such  administration  indispensable  to  the 
prosecution  and  defense  of  any  suit  in  the 
state,  in  right  of  the  estate  of  the  de- 
ceased. Held,  that  the  bill  of  revivor  was 
in  no  just  sense  an  original  suit  but  was 
a  mere  continuation  of  the  original  suit; 
the  parties  to  the  original  suit  were 
citizens  of  diflferent  states;  and  the  juris- 
diction of  the  court  completely  attached 
to  the  controversy;  having  so  attached, 
it  could  not  be  divested  by  any  subsequent 
proceedings;  and  the  circuit  court  of 
Rhode  Island  had  rightful  authority  to 
proceed  to  its  final  determination.  Clarke 
f.   Mathewson,   12  Pet.   164.  9   L.    Ed.   1041. 

62.  Change  of  domicile,  by  representa- 
tive.— Hemingwav  v.  Stansell,  106  U.  S. 
399,   402.   27    L.    Ed.   24.5. 

63.  Proof  of  representative  character  as 
prerequisite  to  revival. — Wilson  v.  Cod- 
mnn.   3    Cranch    193.   207.   2    L.    Ed.   408. 

64.  Admission  of  representative  as  party 
without  proof  of  official  character. — Wil- 
son V.  Codman,  3  Cranch  193,  207,  2  L. 
Ed.    408. 

65.  Revival  against  personal  representa- 
tives.—T?ev.  Stat.,  §  995;  Martin  v.  Balti- 
more, etc.,  R.  Co.,  151  U.  S.  673,  691.  38 
L.  Ed.  311;  Green  v.  Watkins.  6  Wheat. 
260.  5  L.  Ed.  256;  In  re  Connawav,  178 
U.  S.  421,  435.  44  L.  Ed.  1134;  Macker  v. 
Thomas.  7  Wheat.  530,  5  L.  Ed.  515;  Pat- 
ton  V.  Brady.  184  U.  S.  608,  612.  46  L.  Ed. 
713;  McCoul  v.  LeKamp,  2  Wheat.  Ill, 
4  L.  Ed.  196;  Clarke  v.  Mathewson.  12 
Pet.  164,  9  L.  Ed.  1041;  Mandeville  v. 
Piggs,  2  Pet.  482.  7  L.  Ed.  493;  Heming- 
way V.  Stansell.  106  U.  S.  399.  402.  27 
L.    Ed.    245;    Richards    v.    Maryland    Ins. 


ABATEMENT,  REVU'AL  AXD  SURVIVAL. 


45 


the  personal  representative  of  the  defendant  is  not  a  citizen  of  or  domiciled  in 
the  state,  wherein  the  cause  of  action  is  pending  does  not  affect  the  right  to  re- 
vive the  suit  against  him.*^^' 

2.  Successor. — An  action  may  be  revived  against  the  successor  of  the  person 
against  whom  it  was  originally  brought,  where  it  involves  a  question  with  re- 
spect to  which  the  successor  occupies  the  same  position  as  that  occupied  by  the 
original  defendant.**^ 

3.  Survivor. — Where  one  of  two  defendants  dies  before  the  commeneeinent 
of  the  term,  upon  the  suggestion  of  his  death  entered  of  record,  the  cause  of  ac- 
tion surviving,  the  judgment  may  be  entered  against  the  surviving  defendant.*'* 

4.  Heirs  and  TerrE  Tenants. — The  law  is  well  settled,  that  where  a  de- 
fendant in  ejectment  dies,  the  judgment  must  be  revived  against  both  his  heirs 
and  the  terre  tenants.*^^ 

F.  Proceeding's  to  Revive  or  Continue — 1.  Actions  at  Law — a.  Mode  of 
Proceeding — (1)  State  Procedure  as  Governing  in  Federal  Courts. — If  a  cause 
of  action  survives,  the  practice,  pleadings,  and  forms  and  modes  of  proceeding 
in  the  courts  of  the  state  may  be  resorted  to  in  the  courts  of  the  United  States 
for  the  purpose  of  keeping  the  suit  alive  and  bringing  in  the  proper  parties.'''^ 

2.  Suggestion  of  Death  and  Sukstitution  of  Parties. — a.  Effect  of  Sug- 
gestion of  Death  and  Order  of  Revival. — Where  the  death  of  a  sole  plaintiff  is 
suggested,  both  parties  being  present,  and  the  court  makes  the  order,  without  ob- 
jection, that  his  successors  in  interest  be  made  plaintiffs  in  the  case,  the  sugges- 
tion, made  without  objection,  and  the  order  of  the  court  thereon,  settle  prima 
facie,  for  the  purposes  of  the  case,  the  fact  of  the  death  of  the  original  plaintiff.'^  ^ 


Co.,  8  Cranch  84.  93,  3  L.  Ed.  496; 
Grififith  v.  Frazier,  8  Cranch  8,  3  L.  Ed. 
471;  Taylor  v.  Savage,  1  How.  282,  11 
L.  Ed.  132;  Taylor  v.  Savage.  2  How. 
393,  394.  11  L.  Ed.  313;  Wilson  v.  Codman, 
3    Cranch    193,    207,    2    L.    Ed.    408. 

Upon  the  death  of  some  of  the  parties 
to  the  bill,  who  have  been  served  with 
process,  a  suit  ought  to  be  revived 
against  their  personal  representatives,  if 
they  can  be  brought  before  the  court; 
unless  some  good  reason,  such  as  absohite 
insolvency,  could  be  assigned  to  justify 
the  omission.  Mandeville  v.  Riggs.  2  Pet. 
482.    7    L.    Ed.    493. 

Upon  the  death  of  the  administrator,  a 
suit  pending  against  him  for  property 
which  afterwards  goe»  to  the  administra- 
tor de  bonis  non,  may  be  revived  against 
the  latter,  instead  of  the  administrator  of 
the  first  administrator.  De  Valengin  v. 
Duflfy,    14    Pet.    282,    10    L.    Ed.    4.57. 

66.  Effect  of  nonresidence  of  representa- 
tive.— Clarke  v.  Mathewson,  12  Pet.  Ifi4. 
9  L.  Ed.  1041;  Hemingway  v.  Stansell. 
106    U.    S.    399,    402,    27    L.    Ed.    24.5. 

67.  Successor. — Hemingway  v.  Stansell, 
106  U.  S.  399,  27  L.  Ed.  245;  Caledonia 
Coal  Co.  V.  Baker,  196  U.  S.  432.  49  L.  Ed. 
540. 

A  proceeding  in  mandamus  to  compel 
a  territorial  judge  to  perform  a  certain 
act,  may  be  revived  against  his  successor, 
where  the  former  dies  pending  an  appeal, 
and  the  latter  consents  to  the  revival. 
Caledonia  Coal  Co.  v.  Baker.  196  U.  S. 
432.    49    L.    Ed.    540. 

Where  a  board  of  levee  commissioners 
is    abolished    and    two    state    officers    are 


designated  by  statute,  as  an  ex  officio 
levee  board,  a  suit  pending  against  the 
former  may  be  revived  against  the  latter, 
although  both  of  the  officers  constituting 
the  board  reside  out  of  the  district.  Plem- 
ingway  v.  Stansell,  106  U.  S.  399,  27  L. 
Ed.    245. 

68.  Survivor. — AlcXutt  v.  Bland.  2  How. 
9,  28,   11    L.   Ed.   159. 

69.  Revival  of  ejectment  against  heirs 
and  terre  tenants. — Walden  v.  Craig.  14 
Pet.   147,   10   L.   Ed.  393. 

70.  State  procedure  as  governing  in 
federal  courts. — Rev.  Stat.  §  914;  Martin 
V.  Baltimore,  etc.,  R.  Co.,  151  U.  S.  673, 
692,  38  L.  Ed.  311;  Schreiber  v.  Sharpless, 
110  U.  S.  76,  28  L.  Ed.  65;  In  re  Conna- 
way.   178  U.  S.   421,  426,  44  L.  Ed.   1134. 

The  mode  of  bringing  in  the  representa- 
tive, if  the  cause  of  action  siirvives,  is 
governed  by  the  law  of  the  state,  except 
so  far  as  congress  has  regulated  the  sub- 
ject. In  re  Connaway,  178  U.  S.  421, 
426,  44  L.  Ed.  1134;  Martin  v.  Baltimore, 
etc.,  R.  Co.,  151  U.  S.  673,  38  L.  Ed.  311. 

71.  Effect  of  suggestion  of  death  and 
order  of  revival. — Stebbins  v.  Duncan,  108 
U.    S.    32,    38,    27    L.    Ed.    641. 

"It  certainly  cannot  be  the  fair  con- 
struction of  the  statute  that  a  party  may 
stand  by  and  see  the  suggestion  of  the 
death  of  the  opposing  party  entered  of 
record  and  his  heir  or  devisee  substituted 
in  his  stead,  and  upon  final  trial  require 
further  proof  of  the  death,  at  least  with- 
out some  notice  of  his  purpose  to  raise 
that  particular  issue.  The  death  of  the 
plaintiff,  after  the  order  of  the  court,  may 
be     considered     as     settled     between     the 


46 


ABATEMBXT,  REJ'IVAL  AND  SURVIVAL. 


(b)     Bringing  in   Parties— ^sl.    By   Motion.— The   executor   may   be   made   a 

party  on  motion.'' ^  ,,,••, 

bb.  By  Scire  Facias.— Scire  facias  may  also  be  employed  to  brmg  m  the  per- 
sonal representatives  of  a  deceased  party. ''^ 

cc.  Effect  of  Want  of  Serine e  of^  Process  on  Decedent. — The  representative  of 
a  deceased  party  may  be  brought  in  by  the  same  procedure,  whether  the  death 
of  a  party  occur  before  or  after  service.'^ 

dd.  Right  of  Opposite  Party  to  Continuance. — Upon  the  death  of  a  plaintiff, 
and  appearance  of  his  executor,  the  defendant  is  not  entitled  to  a  continuance.'^^ 

b.  Reviezv  of  Order  of  Retm/al. — A  plaintiff  may  assign  for  error  the  order  of 
the  court  reviving  the  suit,  even  though  they  failed  in  that  court  to  appear  and 
except  to  the  opinion  of  the  court  in  relation  to  the  order.'<^ 

2.  Suits  in  Equity — a.  Bill  of  Revivor — (1)  Necessity. — When  in  the  prog- 
ress of  a  suit  in  equity,  the  proceedings  are  suspended  for  the  want  of  proper 
parties,  it  is  necessary  to  file  a  bill  of  revivor.^" 

(2)  Nature  of  Bill. — A  bill  of  revivor  is  not  the  commencement  of  a  new 
suit,  but  is  the  mere  continuance  of  the  old  suit.'^ 


parties  for  that  case,  unless  some  motion 
is  made  or  issue  raised  on  the  part  of  the 
defendant,  by  which  the  fact  of  the  death 
is  controverted:"  Stebbins  v.  Duncan,  108 
U.  S.  32.  38,  27  L.   Ed.   641. 

72.  Bringing  in  executor  by  motion. — 
Wilson  V.  Codman,  3  Cranch  193,  206.  2 
L.    Ed.    408. 

73.  Bringing  in  executor  by  scire  facias. 
—Wilson  V.  Codman,  3  Cranch  193,  206, 
2    L.    Ed.    408. 

The  statute  (Rev.  Stat.,  §  995),  de- 
termines- when  the  representative  of  a 
deceased  party  may  be  brought  into  an 
action,  and  that  scire  facias  is  the  pro- 
.cedure  whereby  he  may  be  brought  in. 
It  is  a  process  of  notice  to  the  executor 
or  administrator  to  come  in.  and  if  he 
should  not  come  in,  gives  jurisdiction  to 
the  court  to  "render  judgment  against  the 
estate  of  the  deceased  party,  in  the  same 
manner  as  if  the  executor  or  administra- 
tor had  voluntarily  made  himself  a  party." 
Green  v.  Watkins.  6  Wheat.  260.  5  L.  Ed. 
256;  Macker  v.  Thomas,  7  Wheat.  530. 
5  L.  Ed.  515;  In  re  Connaway,  178  U.  S. 
421.  434.  44  L-  Ed.  1134;  Wilson  v.  Cod- 
man. 3  Cranch  193,  206,  2   L.   Ed.  408. 

74.  Effect  of  want  of  service  of  process 
on  decedent. — In  re  Connawa}'-,  178  U.  S. 
421,  431,  44  L.  Ed.  1134. 

75.  Rieb.t  of  opposite  party  to  continu- 
ance.— Wilson  V.  Codman.  3  Cranch  193, 
2    L.    Ed.    408. 

"It  is  contended,  on  the  part  of  the 
defendant,  that  on  the  suggestion  of  the 
death  of  either  plaintiff  or  defendant,  a 
scire  facias  ought  to  issue,  in  order  to 
bring  in  his  representative;  or.  if  a  scire 
facias  should  not  be  required,  yet,  that 
the  opposite  party  should  have  the  same 
time  to  plead  and  make  a  proper  de- 
fense, as  if  such  process  had  been  actually 
sued.  The  words  of  the  act  of  congress 
do  not  seem  to  countenance  this  opinion. 
They  contemplate  the  coming  in  of  the 
executor,  as  a  voluntarj^  act.  and  give  the 


scire  facias  to  bring  him  in,  if  it  shall 
be  necessary,  and  to  enable  the  court  'to 
render  such  judgment  against  the  estate 
of  the  deceased  party,'  'as  if  the  execu- 
tor or  administrator  had  voluntarily  made 
himself  a  party  to  the  suit.'  From  the 
language  of  the  act.  this  may  be  done 
instanter.  The  opinion  that  it  is  to  be 
done,  on  motion,  and  that  the  party  may 
immediately  proceed  to  trial,  derives 
strength  from  the  provision  that  the  ex- 
ecutor or  administrator,  so  becoming  a 
party,  may  have  one  continuance.  This 
provision  shows  that  the  legislature  sup- 
posed the  circumstances  of  making  the 
executor  a  party  to  the  suit,  to  be  no 
cause  of  delay.  But  as  the  executor  might 
require  time  to  inform  himself  of  the 
proper  defense,  one  continuance  was  al- 
lowed him  for  that  purpose.  The  same 
reason  not  extending  to  the  other  party, 
the  same  indulgence  is  not  extended  to 
him."  Wilson  v.  Codman.  3  Cranch  193, 
206.  2  L.  Ed.  408.  See  the  title  CON- 
TINUANCES. 

76.  Review  of  ordpr  of  revival. — Macker 
V.  Thomas,  7  Wheat.  530,  533.  5  L.  Ed. 
515.  See  the  title  APPEAL  AND  ER- 
ROR. 

An  exception  to  the  opinion  of  the 
court  is  only  necessary,  when  the  alleged 
error  could  not  otherwise  appear  upon  the 
record,  and  in  such  case  the  error  is  in 
ordering  the  suit  to  be  revived  and 
prosecuted  against  the  heirs  of  the  origi- 
nal defendant,  and  proceeding  to  render 
judgment  against  them,  upon  a  summons 
and  count  against  the  original  defend- 
ant, all  of  which  appear  upon  the  face  of 
the  record.  Macker  v.  Thomas,  7  Wheat. 
530,    533,    5    L.    Ed.    515. 

77.  Necessity  of  bill  of  revivor. — 
Kennedy  v.  Georgia  State  Bank,  8  Flow. 
586,   609,   12   L.    Ed.   1209. 

78.  Nature  of  bill  of  reviver. — Clarke  v. 
Mnthewson,   12   Pet.   164,   9    L.   Ed.   1041. 

A   bill    seeking   to   revive    a    suit   bj'^   in- 


ABBREVIATIOXS. 


47 


b.  Ansiver. — New  defenses,  i.  e.,  defenses  not  made  in  an  answer  to  the  origi- 
nal bill,  cannot  be  first  set  up  in  an  answer  to  a  bill  of  revivor.  Such  bill  puts 
in  issue  nothing  but  the  cliaracttr  of  the  new  parly  brought  in."^  A  portion  af 
the  answer  to  a  bill  or  revivor  entirely  impertinent  to  the  will  is  not  entitled  to 
any  weight  as  evidence,  and  no  formal  replication  is  required  to  avoid  its  effect 
as  evidence.^" 

c.  Review  of  Decree  of  Revival. — A  decree  reviving  a  suit  in  equity  is  a  final 
decree  and  appealable.'*^  but  on  appeal  from  a  decree  reviving  a  suit  in  equity, 
the  supreme  court  v/ill  not  go  into  the  merits. *- 

G.  Effect  of  Removal. — A  right  to  revive  a  case  given  by  state  statute  is 
not  lost  by  a  removal  of  the  case  to  the  federal  court. ^•' 

H.  Proceedings  Subsequent  to  Revival. — Where  the  new  parties  to  a 
proceeding  in  chancery  are  th.c  legal  representatives  of  an  original  party,  and  the 
proceedings  have  been  revived  in  their  names,  by  the  order  of  the  court,  on  a 
bill  of  revivor,  the  representatives  take  the  place  of  those  whom  they  represent, 
and  the  suit  proceeds  in  the  new  form,  unafifected  by  the  change  of  name,  and 
the  settled  practice  is  to  use  all  the  testimony  which  might  have  been  used,  if  no 
abatement  had  occurred.^*  The  representative  can  only  plead  what  his  intestate 
could  have  pleaded. ^^  And  the  judgment  is  to  be  rendered  against  the  persons 
substituted  as  parties  and  not  against  the  deceased  eo  nomine. ^^^ 

•  ABBREVIATIONS. — See  the  titles  Indictments,   Informations  and  Pru- 
sEntments;   Judici.al   Xotice  ;   Names;   Parol   Evidence. 


trodi'cing  the  heirs  of  a  party  before  the 
court,  is,  to  that  extent,  a  bill  of  revivor. 
Wliit'ng  V.  United  States  Bank.  13  Pet. 
6.   ]t)    L.    Ed.    33. 

7C'.  Contents  of  answer  to  bill  of 
reviver. — Fretz  v.  Stover,  22  Wall.  198,  22 
L.  Ed.  769.     See  the  title  ANSWERS. 

SO.  Anev/er  as  evidence. — Gunnell  v. 
Bird.  10  Wall.  304,  308,  19  L.  Ed.  913.  See 
the    title    EQUITY. 

81.  Decree  of  revivor  a  final  decree. — 
Terrv  f.  Sharon,  131  U.  S.  40.  33  L.  Ed. 
94.  "  See  the  title  APPEAL  AND 
ERROR. 

82.  Hearing  on  merits  on  appeal  from 
decree  of  revivor. — Terry  z\  Sharon,  131 
U.  S.  40,  33  L.  Ed.  94.  See,  generally, 
the    title    APPEAL    AND    ERROR. 

83.  Effect  of  removal. — Baltimore,  etc., 
R.  Co.  V.  Joy.  173  U.  S.  226,  43  L.  Ed. 
677;  Tn  re  Connaway,  178  U.  S.  421,  44 
L.  Ed.  1134.  See,  generally,  the  title  RE- 
MOVAL OF   CAUSES. 

84.  Evidence  subsequent  to  revival. — 
Vattier  v.  Hinde,  7  Pet.  252.  2.)3.  8  L.  Ed. 
675;  Green  v.  Watkins,  6  Wheat.  260,  5 
L.  Ed.  256;  Osborn  v.  United  States,  9 
Wheat.  739,  832.  6  L.  Ed.  204. 

If  an  ancestor  die,  pending  a  suit,  and 
the  proceedings  be  revived  against  his 
heii^,  or  if  a  suit  be  revived  against  an 
executor  or  administrator,  the  answer  of 
the  deceased  person,  or  any  other  evi- 
dence, establishing  any  fact  against  him, 
might  be  read  also  against  the  person  who 
succeeds  to  him.  Osborn  v.  United 
States,  9  Wheat.  739,  832,  6   L.    Ed.  204. 


85.  Defenses     available. — McKnight     v. 

Craig.   G   Cranch   183.    187.   3    L.   Ed.    193. 

86.  Against  whom  judgment  rendered. 
— Montgom-ery  v.  Sawyer,  100  U.  S.  571, 
25  L.  Ed.  692;  Greenleaf  v.  Queen,  1  Pet. 
135.  138,  7  L.   Ed.  85. 

Where  a  bill  had  been  filed  against  a 
trustee  of  real  estate,  and  after  his  death, 
administration  had  been  granted  to  A; 
who,  on  the  petition  of  creditors,  in- 
terested in  the  trust,  was  also  appointed 
by  the  court,  the  substituted  trustee,  and 
the  court  went  on  to  decree,  that  A.,  as 
trustee,  should  e.xe^rute  certain  convey- 
ances; the  decree  was  held  to  be  invalid; 
the  course  of  proceeding,  being  rather  to 
make  the  decree  against  A.,  in  the  char- 
acter of  administrator.  because  he 
claimed,  as  administrator,  under  a  title 
derived  from  the  original  trustee,  and  was 
the  person  designated  by  law  to  repre- 
sent him;  or  that  a  supplemental  bill,  in 
the  nature  of  a  bill  of  revivor,  should  have 
been  filed  against  the  substituted  trustee; 
in  which  all  the  proceedings  should  have 
been  stated,  and  he  required  to  answer 
the  charges  contained  in  the  original  and 
supplemental  bill.  Greenleaf  v.  Queen,  1 
Pet.  135,  138.  7  L.  Ed.  85. 

lu'  Louisiana,  if  a  person  dies  pending 
suit  against  him,  and  the  proceedings  are 
continued  by  his  heirs  becoming  parties, 
the  judgment  should  be  against  his  suc- 
cession or  them;  if,  without  reference  to 
the  revival  of  the  suit,  it  be  entered  only 
against  the  deceased  eo  nomine,  and  be 
so  recorded,  it  is.  as  a  judicial  mortgage, 
void  against  third  persons.  Montgomery 
V.   Sawyer,    100   U.    S.    571,   25   L.    Ed.   692. 


ABDUCTION  AND  KIDNAPPIMG. 

CROSS   REFERENCES. 

See  the  title  Extradition. 

As  to  abduction  and  kidnapping  slaves,  see  the  title  Slaves. 

Definition. — In  the  treaty  with  Mexico,  kidnapping  is  thus  defined:     "The 
taking  and  carrying  away  of  a  free  person  by  force  or  deception."^ 

ABET.— Se^  note  2. 
ABEYANCE.— See  note  3. 
ABIDING.— See  note  4. 


L  Benso-n  v.  McMahon.  127  U.  S.  457, 
32  L.  Ed.  234, 

2.  Abet.— See,  also,  the  title  ACCOM- 
PLICES  AND    ACCESSORIES. 

In  United  States  v.  Gooding.  12  Wheat. 
476,  6  L.  Ed.  693,  it  is  said:  "In  the  present 
indictment,  the  ofiFense  is  in  the  third  and 
fourth  counts  laid,  by  aiding  and  abet- 
ting, in  the  very  terms  of  the  act  of  con- 
gress. If  the  crime,  therefore,  could  be 
supposed  to  be  of  an  accessorial  nature, 
:t  is  truly  alleged,  according  to  the  fact, 
and  not  merely  according  to  the  intend- 
ment of  law.  We  do  not  consider  that 
the  term.?  'aid'  and  abet,  used  in  this  statute, 
are  used  as  technical  phrases  belonging 
to  the  common  law,  because  the  offense 
is  not  made  a  felony,  and  therefore,  the 
words  require  no  such  interpretation. 
The  statute  punishes  them  as  substantive 
offenses,  and  not  as  accessorial,  and  the 
words  are,  therefore,  to  be  understood  as 
in  the  common  parlance,  and  import  as- 
sistance, co-operation  and  encourage- 
ment." Th's  case  arose  upon  the  con- 
struction of  a  statute  against  the  slave 
trade. 

In  Hicks  v.  United  States,  150  U.  S. 
442,  455,  ?,1  L.  Ed.  1137.  Brewer,  J.,  dis- 
senting said:  "Does  not  the  word  abet 
imply  an  intent  that  the  party  shall  do 
that  which  he  is  abetted  to  do?  Bouvier 
(vol.  1,  p.  39)  says:  'To  abet  another  to 
commit  a  murder  is  to  command,  procure, 
or  counsel  him  to  commit  it.'  We  are 
not  dealing  with  the  mock  scenes  and 
shows  of  the  stage,  but  with  real  life,  and 
in  that  who  does  not  understand  that  the 
significance  of  the  word  abet  is  as 
Bouvier  defines  it.  and  carries  with  it  the 
intent  that  the  party  shall  do  that  which 
he  is  commanded,  counselled  or  en- 
courasred    to    do?"' 

3.  Abeyance. — In  Tllinnis  Cent.  R.  Co. 
V.  Bosworth.  l.-JS  U.  S.  9?,  100,  .-^3  T..  Ed. 
550,  it  is  said:  "Blackstone  says:  'Some- 
times the  fee  mav  be  in  abeyance,  that  is 
(as  the  word  signifies)  in  expectation, 
remembrance  and  contemplation  of  law; 
there  being  no  person  in  esse  in  whom 
it  can  vest  and  abide;  thous-h  the  law 
considers    it    as    always    potentially    exist- 

( 


ing,  and  ready  to  vest  when  a  proper 
owner  appears.  Thus,  in  a  grant  to  John 
for  life,  and  afterwards  to  the  heirs  of 
Richard,  the  inheritance  is  plainly  neither 
granted  to  John  nor  Richard,  nor  can  it 
vest  in  the  heirs  of  Richard  till  his  death, 
nam  nemo  est  h?eres  viventis;  it  remains, 
therefore,  in  waiting  or  abeyance  during 
the  life  of  Richard.'  2  Bl.  Com.  107." 
See,  also,  the  titles  ESTATES;  RE- 
MMNDERS,  REVERSIONS  AND  EX- 
ECUTORY  INTERESTS. 

In  Wallach  v.  'Van  Riswick.  92  U.  S. 
202,  212,  23  L.  Ed.  473,  it  is  said:  "It  is 
a  maxim  of  the  common  law,  that  a  fee 
cannot  be  in  abeyance.  It  rests  upon  rea- 
sons that  now  have  no  existence,  and  it 
is  not  now  of  universal  application.  But 
if  it  were,  being  a  common-law  maxim, 
it  must  yield  to  statutory  provisions  in- 
consistent   with    it." 

4.  Abiding. — The  ordinance  of  the  lOth 
of  July,  1776,  declares  "that  all  persons 
abiding  within  the  state  of  New  York,  and 
deriving  protection  from  the  laws  of  the 
same,  owe  allegiance  to  the  said  laws,  and 
are  members  of  the  state."  In  Inglis  v. 
Sailor's  Snug  Harbor,  3  Pet.  99,  165,  7  L. 
Ed.  617,  Story,  J.,  dissenting  said:  "By 
abiding,  in  the  ordinance,  is  meant,  not 
merelv  present  inhabitants,  but  present 
inhabitancy,  coupled  with  an  intention  of 
permanent  residence.  This  is  apparent, 
from  the  next  clause  of  ordinance,  where 
it  is  declared,  'that  all  persons  passing 
through,  visiting,  or  making  a  temporary 
stav  in  the  state,  being  entitled  to  the 
protection  of  the  laws,  during  the  time 
of  such  passage,  visitation  or  temporary 
stay,  owe.  during  the  same,  allegiance 
thereto.'  Their  'temporary  stay'  is  mani- 
festly used  in  contradiction  to  abiding, 
and  shows  that  the  latter  means  perma- 
nent intentional  residence."  See,  gener- 
allv.  the  title  ALIENS.  _  ' 

Abiding  conviction. — The  trial  court 
instructed  the  jury  that  if  they  had  ;in 
abiding  conviction  of  the  defendant's  guilt, 
such  as  they  would  be  willing  to  act  upon 
in  the  UT^st  weightv  and  important  mat- 
ters relating  to  their  own  afifairs,  they 
imd     no    reasonable    doubt.       Mr.    Justice 

!8) 


ABRIDGMENT. 


49 


ABIDING  THE  EVENT. — See  the  titles  Admiralty;  Appeal  and  Error; 
Attorney  and  Client;  Bail  and  Recognizance;  Costs;  Payment  into 
Court  ;  Stipulations.  As  to  another  suit  pending,  see  the  title  Abatement, 
Revival    and  Survival,  ante,  p.   12. 

ABODE.— See  the  title  Domicile. 

ABOLITION.— See  the  title   Slaves. 

ABOUT. — See,  also,  the  titles  Sales  ;  Vendor  and  Purchaser.  And  see 
More  or  Less.  The  mention  of  the  quantity,  accompanied  by  the  qualificatlou 
of  '"about"  or  "more  or  less"  is  regarded  as  a  mere  estimate  of  the  probable 
amoimt,  as  to  which  good  faith  is  all  that  is  required  of  the  party  making  it.^ 
But  the  words  about,  more  or  less,  do  not  justify  a  quantity  marerially  and  de- 
signedly greater  or  less  than  that  contracted  for.^  In  ascertaining  a  place  to  be 
found  by  its  distance  from  another  place,  the  vague  words  about  or  nearly  have 
been   discarded.^ 

ABRIDGMENT.— See   the  title   Copyright. 


Field  said:  "The  word  'abiding'  here  has 
the  signification  of  settled  and  fixed,  a 
conviction  which  may  follow  a  careful 
examination  and  comparison  of  the  whole 
evidence.  It  is  difficult  to  conceive  what 
amount  of  conviction  would  leave  the 
mind  of  a  jaror  free  from  a  reasonable 
doubt,  if  it  be  not  one  which  is  so  settled 
and  fixed  as  to  control  his  action  in  the 
more  weighty  and  important  matters  re- 
lating to  his  own  affairs."'  Hopt  v.  Utah. 
120  U.  S.  430,  439,  30  L.  Ed.  708.  See, 
also,   the   title    REASONABLE   DOUBT. 

1.  Norrington  v.  Wright,  115  U.  S.  188, 
204,   29   L.    Ed.    366. 

In  Pine  River  Logging,  etc..  Co.  v. 
United  States.  186  U.  S.  279,_  288,  46  L. 
Ed.  1164,  it  is  said:  "There  is  no  doubt 
whatever  of  the  general  proposition  that 
where  the  words  about,  or  'more  or  less' 
are  used  as  estimates  of  an  otherwise 
designated  quantity,  and  the  object  of 
the  parties  is  the  sale  or  purchase  of  a 
particular  lot.  as  a  pile  of  wood  or  coal, 
or  the  cargo  of  a  particular  ship, 
or  a  certain  parcel  of  land,  the 
words  'more  or  less,'  used  in  con- 
nection with  the  estimated  quantity, 
are  susceptible  of  a  broad  construction, 
and  the  contract  would  be  interpreted  as 
applying  to  the  particular  lot  or  parcel, 
provided  it  be  sufficiently  otherwise 
identified." 

An  agreement  was  for  the  transporta- 
tion of  a  certain  quantity  of  stores  "sup- 
posed to  amount  to  about  3.700  barrels." 
It  was  held,  that  3.105  barrels  fulfilled 
this  agreement.  Robinson  v.  Noble,  8  Pet. 
181,   196,  8   L.   Ed.  910. 

Where  a  contract  is  made  to  sell  or 
furnish  certain  goods  identified  by  refer- 
ence to  independent  circumstances,  such 
as  an  entire  lot  deposited  in  a  certain 
warehouse,  or  all  that  may  be  manu- 
factured by  the  vendor  in  a  certain  estab- 
lishment, or  that  may  be  shipped  by  his 
agent  or  correspondent  in  certain  vessels, 
and  the  quantity  is  named,  with  the 
qualification   of   about   or   "more    or   less," 

1  U  S  Enc— 4 


or  words  of  like  rmport,  the  contract  ap- 
plies to  the  specific  lot,  and  the  naming 
of  the  quantity  is  regarded  not  as  in  the 
nature  of  a  warranty,  but  only  as  an  esti- 
mate of  the  probable  amount,  in  reference 
to  which  good  faith  is  all  that  is  required 
of  the  party  making  it.  Brawley  v. 
United  States.  96  U.  S.  168,  24  L.  Ed.  622. 

2.  Quantity  materially  greater  or  less. — 
Pine  River  Logging,  etc..  Co.  v.  United 
States,  186  U.  S.  279,  46  L.  Ed.  1164. 

In  Moore  v.  United  States,  196  U.  S. 
157,  168,  49  L.  Ed.  428,  it  is  said:  "The 
only  question  can  be,  is  366  tons  less  than 
5,000  tons,  about  5,000  tons?  We  think 
not.  The  difference  is  too  great.  We 
said  in  Brawley  v.  United  States,  96  U. 
S.  168.  172,  24  L.  Ed.  622,  that  in  engage- 
ments to  furnish  goods  to  a  certain 
amount,  the  quantity  specified  is  material 
and  governs  the  contract.  'The  addition 
of  the  qualifying  words  about  "more  or 
less,"  and  tiic  like,  in  such  cases,  is  only 
for  the  purpose  of  providing  against  ac- 
cidental variations  arising  from  slight  and 
unimportant  excesses  or  deficiencies  in 
number,  measure  or  weight.'  "  See,  also, 
the  titles  SALES;  VENDOR  AND  PUR- 
CHASER. 

3.  Boundaries. — See,  generally,  the  titles 
BOUNDARIES;    PUBLIC    LANDS. 

Where  an  entry  upon  public  lands  is 
to  begin  at  a  designated  point  abcut 
seven  miles  from  another  well-known 
point,  and  the  former  cannot  be  found, 
about  seven  miles  may  be  taken  to  mean 
seven  miles.  Bodley  v.  Taylor,  5  Cranch 
191,  224,  3  L.   Ed.  75. 

In  Johnson  v.  Pannel,  2  Wheat.  207,  ?A1, 
4  L.  Ed.  221.  it  is  said:  "And  in  ascer- 
taining a  place  to  be  found  by  its  dis- 
tance from  another  place,  the  vagtie 
words  about  or  'nearly,'  and  the  like,  arc 
to  be  discarded,  if  there  are  no  other 
words  rendering  it  necessary  to  retain 
them;  and  the  distance  mentioned  is  to 
be  taken  positively."  To  the  same  effect, 
see  Shipp  v.  Miller,  2  Whea't.  316,  323,  4 
L.    Ed.    248. 


50 


A  CCEP  T—A  CCEP  TANCB. 


ABROAD. — See  note   1.  ^  t> 

ABSCONDING.— See   the   titles   Attachment   and   Garnishment;   Bank- 

ABSENCE— ABSENT.— See,  also,   the  title   Limitation  of  Actions.     See 

"^ABSENT   DEFENDANTS.— See   the   title     Ai-tachment    and     Garnish- 
ment. .         .  ,.  J   ,, 

ABSENTEES. As  to  right  of  absentees  to  notice  of  proceedings,  and  the 

manner  of  acquiring  jurisdiction    over,  see  the  titles  ■  Constitutional     Law; 
Jurisdiction;    Summons  and  Process. 

ABSINTHE.— Absinthe,  according  to  the  Century  Dictionary,  is  "the  com- 
mon name  of  a  highly  aromatic  liqueur  of  an  opaline  green  color  and  bitter 
taste,"  and  is  prepared  by  "steeping  in  alcohol  or  strong  spirit  bitter  herbs," 
the  chief  of  them  being  wormwood.-^ 

ABSOLUTELY.— See  Necessary. 

ABSOLUTE  TITLE.— See  note  4. 

ABSTRACT.— See  note  5. 

ABSTRACTION.— See  note  6. 

ABSTRACT  OF  TITLE. — As  to  liability  of  examiners  of  titles,  see  the  title 
Attorney  and  Client. 

ABUSE  OF  PROCESS.— See  the  title  Summons  and  Process. 

ABUTTING  OWNERS.— See  the  titles  Adjoining  Landowners;  Bridges; 
Eminent  Domain;  Municipal  Corporations;  Special  Assessments;  Street 
Railroads:  Streets  and  Highways;  Telegraphs  and  Telephones. 

ACADEMIES.— See  the  titles  Colleges  and  Universities  ;    Schools. 

ACCEPT — ACCEPTANCE. — See  note  7.  See  the  titles  Bills,  Notes  and 
Checks;  Contracts. 


1.  Abroad. — In  United  States  v.  Hutch- 
ins,  151  U.  S.  542,  544.  38  L.  Ed.  264,  it  is 
said:  "An  officer  is  to  be  understood  as 
travelling  abroad  when  he  goes  to  a 
foreign  port  or  place  under  orders  to 
proceed  to  that  place,  or  from  one 
foreign  port  to  another,  or  frqpi  a  foreign 
port  to  a  home  port."'  See,  also,  the  title 
ARMY  AND  NAVY. 

2.  Absence — Absent. — An  Ohio  statute 
provided  that  in  case  of  the  absence  of 
th«  county  judge,  the  county  clerk  should 
supply  his  place.  In  Lynde  v.  County  of 
Winnebago,  16  Wall.  6.  14,  21  L.  Ed.  272. 
it  is  said:  "The  absence  spoken  of  is 
doubtless  absence  from   the    county   seat." 

In  Bingham  v.  Cabbot,  3  Dall.  19,  36,  1 
L,.  Ed.  491,  it  is  said:  "We  are  perfectly 
clear  in  the  opinion,  that  although  the 
district  judge  was  on  the  bench,  yet,  if 
he  did  not  sit  in  the  cause,  he  was  absent, 
in  contemplation  of  law." 

Absent  from  duty  with  leave. — See  the 
title  ARMY  AND  NAVY.  And  see 
United  States  v.  Williamson,  23  Wall.  411, 
414,   23   L.    Ed.   89. 

3.  Erhardt  v.  Steinhardt,  153  U.  S.  177, 
182,  38  L.  Ed.  678.  See,  also,  the  title 
REVENUE  LAWS. 

4.  Absolute  title. — In  Johnson  v.  Mc- 
intosh, 8  Wheat.  543,  588,  5  L.  Ed.  681,  it 
is  said:  "An  absolute  title  to  lands  can- 
not exist,  at  the  same  time,  in  different 
yiersons,  or  in  different  governments. 
.Vn   absolute,    must   be    an    exclusive    title, 


or    at     least    a     title    which    excludes     all 
others    not    compatible    with    it." 

5.  Abstract.— Section  5209.  Revised 
Statutes,  i.-  as  follows:  "Every  president, 
director,  cashier,  teller,  clerk,  or  agent  of 
any  association,  who  embezzles,  abstracts, 
or  willfully  misapplies  any  of  the  moneys, 
funds,  or  credits  of  the  association,"  etc. 
In  construing  this  provision  the  court  in 
United  States  v.  Northway.  120  U.  S.  327, 
334,  30  L.  Ed.  664.  said:  "It  is  true  that 
the  word  'abstract,'  as  used  in  this  statute, 
is  not  a  word  of  settled  technical  meaning 
like  the  word  'embezzle'  as  used  in  stat- 
utes defining  the  ofTense  of  embezzle- 
ment, and  the  words  'steal,  take  and  carry 
awaJ^'  as  used  to  define  the  offense  of 
larceny  at  common  law.  It  is  a  word, 
however,  of  simple,  popular  meaning, 
without  ambiguity.  It  means  to  take  or 
withdraw  from,  so  that  to  abstract  the 
funds  of  the  bank,  or  a  portion  of  them, 
is  to  take  and  withdraw  from  the  posses- 
sion and  control  of  the  bank  the  moneys 
and  funds  alleged  to  be  so  abstracted. 
This,  of  course,  does  not  embrace  every 
element  of  that  which  under  this  section 
of  the  statute  is  made  the  ofifense  -of 
criminallv  abstracting  the  funds  of  the 
bank."  See.  als-.  th(>  titles  BANKS  AND 
BANKING;    EMBEZZLEMENT. 

6.  Abstraction. — See  dissenting  opinion 
of  Daniel.  J.,  in  Marsliall  v.  Baltimore, 
etc..  R.   Co..   16   How.  314.  340.  14  L.  Ed.  953. 

7.  Accept  and  receive — Statute  of 
frauds. — In  Gar  field  v.  Paris,  96  U.  S.  557, 


ACCESSION,  ACCRETION  AND  RELICTION. 

BY    H.    W.    WESTER. 

I.   Definitions  and  Distinctions,  51. 
II,    Property  Rights,  52. 

A.  Accretion  and  Reliction,  52. 

1.  Gradual  Accretions,  52. 

a.  Statement  of  the  Rule,  52. 

b.  Reason  for  the  Rule,  S2>. 

c.  Nature  of  the  Right.   5Z. 

d.  Application  of  the  Rule,   53. 

(1)  Applicable  Alike   to   Public  and   Private   Rights,   53. 

(2)  As  Applicable  to  the  Formation  of  Islands,  53. 

(3)  Land    Formed   on    Submerged    Site   of   Previously   Ex- 

isting  Land.    54. 

(4)  As  Affected  by   Character  of  the   Stream   or   Body  of 

Water.  54. 

(5)  Accretions   on    Streets  and    Highways,    55. 

(6)  Accretions    Formed   by   Artificial   Agencies,    55. 

2.  Sudden  Accretions,   55. 

B.  Avulsion,   55. 

C.  Accession.  56. 

III.    Determination  of  Property  Rights,   56. 

A.  Ownership  of    Shore.    56. 

L  Necessity   for   Establishing.    56. 

2.  As  of  What  Time  Ownership  Must  Be  Established,  56. 

B.  Contiguity  of  Estate  to  the  Water,  56. 

C.  Rule   for   Apportioning  Accretions,   56. 

D.  What  Law  Governs,  57. 

E.  Evidence.  57. 

F.  Questions  of  Law  and  Fact.  57. 

CROSS    REFERENCES. 

As  to  the  rights  of  owners  of  land  bordering  on  the  water,  see  the  titles 
Lakes  and  Ponds;  Navigable  Waters;  Waters  and  Watercourses.  As  to 
accretion  or  avulsion  as  affecting  boundaries,   see  the  title  Boundaries. 

I.    Definitions  and  Distinctions. 

Alluvion. — Alluvion  means  an  addition  to  riparian  land,  gradually  and  im- 
perceptibly made,  through  causes  either  natural  or  artificial,  by  the  water  to 
which  the  land  is  contiguous. ^     It  matters  not  whether  the  addition  be  on  streams 

563.    23    L.    Ed.    821.   it    is    said:      "'Accept  Co.,    134    U.    S.    178,    191,    33    I^.    Ed.    877; 

and    receive'    are    the    words    of    the    stat-  Nebraska  v.   Iowa,   143  U.   S.   359,   368,   36 

ute   in   question:   but   the    law   is   well   set-  L.    Ed.    186. 

tied,     that     an     acceptance     sufficient     to  "The    Civil    Code    of   Louisiana   declares 

satisfy    the    statute    may    be    constructive.  that     the     accretions     which     are     formed 

the  rule  being:  that  the  question  is  for  the  successively     and     imperceptibly     to     any 

jury    whether    the    circmstances    proved.  soil    situated   on   the   shores   of  any   creek 

of   acting   or   forbearins     to   act.   do   or   do  or    run.    are    called    alluvion."      Saulet    v. 

not   amourt    to    an    acceptance   within    the  Shepherd,    4    Wall.    502,    18    L.    Ed.    442. 

statute."      Sec.    also,    the    title    I'RAUDS,  "The    Code    Napoleon    declares:      'Accu- 

ST.A.TUTE   O^'  mulations    and    increase    of    mud    formed 

1.    Definitions    of    alluvion. — County    of  successively     and     imperceptibly     on    the 

St.    Clair    T'.    Lovingston,    2:!    Wall.    46,   23  soil  bordering  on  a  river  or  other  stream 

L.    Ed.   59;   Jefferis   v.    East   Omaha    Land  is    denominated   "alluvion."'"      County   of 

(51) 


52 


ACCESSION,  ACCRETION  AND  RELICTION. 


which  do  overflow  their  banks  or  those  that  do  not.     In  each  case  it  is  alluvion.* 
Reliction. — Reliction  is  the  increase  of  the  land  surface  caused  by  the  waters 
gradually  receding  below  the  usual  water  marks. ^ 

Avulsion. — Avulsion  is  that  process  by  which  the  violence  of  a  stream  sep- 
arates a  considerable  portion  from  one  piece  of  land  and  joins  it  to  another,  but 
in  such  manner  that  it  can  still  be  identified.-* 

Accession. — Accession  is  the  right  to  all  which  one's  own  property  pro- 
duces, whether  that  property  be  movable  or  immovable ;  and  the  right  to  that 
which  is  united  to  it  by  accession,  either  naturally  or  artificially.^ 

II.     Property  Rights. 

A.  Accretion  and  Reliction — 1.  Gradual  Accretions — a.  Statement  of  the 
Rule. — The  rule  is  well  settled  that  a  person,  whose  land  lying  contiguous  to  a 
stream  or  body  of  water  increases  by  alluvial  formations  or  the  gradual  reces- 
sion of  the  waters  from  the  usual  water  marks,  is  entitled  to  such  increase  as  far 
out  as  the  middle  thread  of  the  stream,^  and  is  independent  of  the  law  governing 


St.  Clair  V.  Lovingston,  23  Wall.  46,  66, 
23    L.    Ed.    59. 

Blackstone  defines  alluvion  as  the  wash- 
ing up  of  land  and  earth  so  as  in  time  to 
make  terra  firma.  County  of  St.  Clair  v. 
Lovingston,  23  Wall.  46.  66,  23   L.   Ed.  59. 

"Bracton  says,  Book  11,  c.  2:  'Alluvion 
is  a  latent  increase,  and  that  is  said  to  be 
added  by  alluvion,  whatever  is  so  added 
by  degrees,  that  it  cannot  be  perceived  at 
what  moment  of  time  it  is  added;  for  al- 
though you  fix  your  eyesight  upon  it  for 
a  whole  day,  the  infirmity  of  sight  can- 
not appreciate  such  subtle  increments,  as 
may  be  seen  in  the  case  of  a  gourd,  and 
such  like.'  "  Jefiferis  v.  East  Omaha 
Land  Co.,  134  U.  S.  178.  192,  33  L.  Ed. 
877. 

"In  the  Roman  law,  it  was  said  in  the 
Institutes  of  Gains,  Book  II,  §  70:  'Al- 
luvion is  an  addition  of  soil  to  land  by  a 
river,  so  gradual  that  in  short  periods  the 
change  is  imperceptible;  or,  to  use  the 
common  expression,  a  latent  addition.' 
Justinian  says.  Institutes,  Book  II,  title  1, 
§  20:  'That  is  added  by  alluvion,  which 
is  added  so  gradually  that  no  one  can 
perceive  how  much  is  added  at  anv  one 
moment  of  time.'  "  JefTeris  v.  East  Omaha 
Land  Co.,  134  U.  S.  178.  192,  33  L.  Ed. 
877. 

Distinguished  from  reliction  and  avul- 
sion.— Alluvion  is  different  from  relic- 
tion, and  is  the  opposite  of  avulsion. 
County  of  St.  Clair  v.  Lovingston.  23 
Wall.    46.    68,   23    L.    Ed.    59. 

Test  of  what  is  gradual  and  impercepti- 
ble.— The  test  of  what  is  gradual  and 
imperceptible  is  that,  though  the  wit- 
nesses may  from  time  to  time  see  that 
progress  has  been  made,  they  could  not 
perceive  it  while  the  process  was  going 
on.  County  of  St.  Clair  v.  Lovingston, 
S3  Wall.  46,  23  L.  Ed.  59;  Jefferis  v. 
East  Omaha  Land  Co.,  34  U.S.  178,  191, 
33  L.  Ed.  877;  Nebraska  v.  Iowa,  143  U. 
S.  859,  368.  36  L.  Ed.  186;  St.  Louis  v. 
Rvt?:,  138   U.  S.  9.?.^,  251,   34  L.   Ed.   941. 

A  bill   stated   that   the   land   in    question 


was  formed  b\-  imperceptible  degrees, 
and  that  the  process,  begun  in  1853  and 
continued  until  1870,  resulting  in  the  pro- 
duction by  accretion  of  the  tract  of  40 
acres  and  more,  "went  on  so  slowly  that 
it  could  not  be  observed  in  its  progress, 
but  at  intervals  of  not  less  than  three  or 
more  months  it  could  be  discerned  by 
the  eye  that  additions  greater  or  less 
had  been  made  to  the  shore."  The  fact, 
as  thus  stated,  is,  that  the  land  was 
formed  by  imperceptible  degrees,  within 
the  meaning  of  the  rule  of  law  on  the 
subject,  and  it  is  not  capable  of  any 
construction  which  would  result  in  the 
conclusion  that  the  land  was  not  formed 
by  imperceptible  degrees.  Jefiferis  v. 
East  Omaha  Land  Co.,  134  U.  S.  178, 
192,    33    L.    Ed.    877. 

2.  As  affected  by  nature  of  stream.^ 
Countv  of  St.  Clair  v.  Lovingston.  23 
Wall.  '46,  23  L.  Ed.  59;  Jefferis  v.  East 
Omaha  Land  Co.,  134  U.  S.  178,  191.  33 
L.    Ed.    877. 

3.  Reliction. — Countv  of  St.  Clair  v. 
Lovingston.  23  Wall.  46,  66,  23   L.   Ed.  59. 

4.  Avulsion. — Nebraska  v.  Iowa.  143  U.. 
S.  359,  366,  36  L.  Ed.  186;  Missouri  v. 
Nebraska.   196  U.  S.  23,  35,  49  L.   Ed.  372. 

5.  Accession. — Black's  Law  Dictionary, 
title  "Accession,"  2  Kent  360;  2  Bl. 
Comm.    404. 

6.  General  rule  as  to  property  rights, 
in  accretion. — County  of  St.  Clair  v.  Lov- 
ingston, 23  Wall.  46.  64,  23  L.  Ed.  59; 
New  Orleans  v.  United  States.  10  Pet. 
662,  9  L.  Ed.  573;  Handly  v.  Anthony,  5 
Wheat.  374.  5  L.  Ed.  113;  Jones  v. 
Johnston,  18  How.  150,  156,  15  L.  Ed. 
320;  Jones  r.  Soulard,  24  How.  41.  16 
L.  Ed.  604;  Banks  v.  Ogden.  2  Wall.  57. 
67.  17  L.  Ed.  821;  Schools  v.  Risley,  10 
Wall.  91,  110.  19  L.  Ed.  850;  Barney  v. 
Keokuk,  94  U.  S.  324,  24  L.  Ed.  224; 
St.  Louis  V.  Rutz.  138  U.  S.  226,  245,  34 
L.  Ed.  941;  Shively  v.  Bowlby.  152  U.  S. 
1,  35,  38  L.  Ed.  331;  Live  Stock  Co.  v. 
Springer,   185   U.  S.  47,  54,   46  L.   "^d.   800. 

Only    to    the    middle    of    the    stream 

St.     Louis    V.    Rutz,     13S    U.    S.    226,    250,. 


ACCESSION,  ACCRETION  AND  RELICTION 


53 


the  title  to  the  soil  covered  by  the  water." 

b.  Reason  for  the  Rule. — By  some  jurists  the  rule  has  been  vindicated  on  the 
principle  of  natural  justice,  that  he  who  sustains  the  burden  of  losses  and  of 
repairs,  imposed  by  the  contiguity  of  waters,  ought  to  receive  whatever  benefits 
they  may  bring  by  accretion  f  by  others,  it  is  derived  from  the  principle  of  public 
policy,  that  it  is  the  interest  of  the  community  that  all  land  should  have  an  owner, 
and  most  convenient,  that  insensible  additions  to  the  shore  should  follow  the 
title  to  the  shore  itself:"  and  by  still  others  the  maxim,  de  minimis  non  curat  lex, 
i?  held  to  be  applicable. ^^ 

c.  Nature  of  the  Right. — The  riparian  right  alluvion  is  a  vested  right.  It  is 
an  inh.erent  and  essential  attribute  of  the  original  property.  The  title  to  the  in- 
crement rests  in  the  law  of  nature.  It  is  the  same  with  that  of  the  owner  of  a 
tree  to  its  fruits,  and  of  the  owner  of  flocks  and  herds  to  their  natural  increase. 
The  right  is  a  natural,  not  a  civil  one.^^ 

d.  Application  of  the  Rule — (1)  Applicable  Alike  to  Public  and  Prk'ate 
Rights. — This  rule  is  no  less  just,  when  applied  to  public  than  to  private  rights. l^ 

(2)  As  Applicable  to  the  Formation  of  Islands. — It  is  laid  down  by  all  the 
authorities,  that,  if  an  island  or  dry  land  forms  upon  that  part  of  the  bed  of  a 


34  L.  Ed.  941;  Shively  v.  Bowlby,  152 
U.    S.    1.   35,    38    L.    Ed.    331. 

"As  the  law  of  Illinois  confers  upon 
the  owner  of  land  in  that  state  which  is 
bounded  by,  or  fronts  on.  the  Mississippi 
River,  the  title  in  fee  to  the  bed  of  the 
river  to  the  middle  thereof,  or  so  far  as 
the  boundary  of  the  state  extends,  such 
riparian  owner  is  entitled  to  all  islands 
in  the  river  which  are  formed  on  the  bed 
of  the  river  east  of  the  middle  of  its 
width.  That  being'  so,  it  is  impossible 
for  the  owner  of  an  island  which  is 
situated  on  the  west  side  of  the  middle 
of  the  river,  and  in  the  state  of  Missouri, 
to  extend  his  ownership,  by  mere  accre- 
tion, to  land  situated  in  the  state  of 
Illinois,  the  title  in  fee  to  which  is  vested 
by  the  law  of  Illinois  in  the  riparian 
owner  of  the  land  in  that  state."  St. 
Louis  V.  Rutz,  138  U.  S.  226,  250,  34  L. 
Ed.    941. 

Effect  of  act  reserving  school  lands. — 
The  act  of  June  13,  1812.  reserving  cer- 
tain lands  for  the  benefit  of  the  public 
schools  of  St.  Louis,  does  not  reserve 
lands  made  by  accretion  to  lots  on  the 
river  which  were  inhabited,  cuhivated. 
and  possessed  hx  persons  at  the  time  of 
the  cession  of  December,  1803,  and  till 
the  alreadv  mentioned  act  of  June  13, 
1812.  Schools  V.  Risley,  10  Wall.  91, 
110,  19  L.  Ed.  850.  See  the  title 
SCHOOLS. 

7.  Ownership  of  underlying  soil  not 
considered. — Shively  v.  Bowlby,  152  U. 
S.    1.    35.   38    L.    Ed.   331. 

8.  "Qui  sentit  onus  sentire  debet  et  com- 
modum"  lies  at  the  foundation  of  the 
rule.  County  of  St.  Clair  t'.  Lovingston, 
23  Wall.  46,  69,  23  L.  Ed.  59;  New  Or- 
leans V.  United  States.  10  Pet.  662.  9  L. 
Ed.  573;  Jones  v.  Soulard,  24  How.  41,  16 
L.  Ed.  604;  Banks  v.  Ogden,  2  Wall.  57, 
17  L.  Ed.  821;  Saulet  v.  Shepherd.  4  Wall. 
502.  18  L.  Ed.  442:  Schools  v.  Risley.  10 
Wall.  91,  110.  19  L.  Ed.  850;  Jefferis  v. 
East  Omaha  Land   Co.,  134  U.  S.  178,  33   L. 


Ed.  877;  Nebraska  z'.  Towa.  143  U.  S.  359, 
360,  36  L.Ed.  186;  Missouri  7'.  Nebraska, 
196  U.    S.   23,   35,   49   L.    Ed.   372. 

Mr.  Justice  Swayne,  in  County  of  St. 
Clair  v.  Lovingston,  23  Wall.  46.  23  L. 
Ed.  59.  in  delivering  the  opinion,  spoke 
of  the  rule  as  resting  in  the  law  of  na- 
ture. Shively  v.  Bowlby,  152  U.  S.  1,  36, 
38   L.    Ed.  331. 

9.  Public  policy. — Banks  v.  Ogden,  3 
Wall.  57,  67,  17  L.  Ed.  821;  Jefferis  v. 
East  Omaha  Land  Co.,  134  U.  S.  178.  33 
L.   Ed.   877. 

10.  De  minimis  non  curat  lex. — County 
of  St.  Clair  v.  Lovingston.  23  \\'all.  46,  67, 
23  L.  Ed.  59;  Jefferis  v.  East  Omaha 
Land  Co.,  134  U.  S.  178,  192,  33  L.  Ed. 
877. 

11.  Nature  of  the  right. — County  of  St. 
Clair  V.  Lovingston.  23  Wall.  46,  69,  23 
L.    Ed.   59. 

12.  Rule  applicable  to  public  as  well  as 
private  rights. — New  Orleans  v.  United 
States,  10  Pet.  662,  9  L.  Ed.  573;  Handly 
V.  Anthony.  5  Wheat.  374,  5  L.  Ed.  113; 
Jones  V.  Soulard.  24  How.  41,  16  L.  Ed. 
604;  St.  Louis  v.  Rutz,  138  U.  S.  226,  251, 
34  L.  Ed.  941;  Shively  v.  Bowlby,  152  U. 
S.  1.  35,  38  L.  Ed.  331;  Missouri  v.  Ne- 
braska. 196   U.    S.   23,  35,  49  L.    Ed.   372. 

Thus  the  rule  was  held  applicable  in 
New  Orleans  v.  United  States,  10  Pet. 
662,  9  L.  Ed.  573,  in  which  case  a  conflict 
arose  between  the  city  of  New  Orleans 
and  the  federal  government  as  to  a  strip 
of  land  lying  along  the  Mississippi  River, 
which  strip  of  land  had  been  used  for  the 
convenience    of    the    public. 

The  eastern  line  of  the  city  of  St.  Louis, 
as  it  was  incorporated  in  1809.  is  as  fol- 
lows: From  the  Sugar  Loaf  due  east  to 
the  Mississippi;  "from  thence,  by  the 
Mississippi,  to  the  place  first  mentioned." 
This  last  call  made  the  city  a  riparian 
proprietor  upon  the  Mississippi,  and.  as 
such,  it  was  entitled  to  all  accretions  as 
far  out  as  the  middle  thread  of  the  stream. 
Jones   V.    Soulard,   24   How.   41,   16   L.   Ed. 


54 


ACCESSION,  ACCRETION  AND  RELICTION. 


river  which  is  owned  in  fee  by  the  riparian  proprietor,  the  same  is  the  property 
of  such  riparian  proprietor.  He  retains  the  title  to  the  land  previously  owned 
by  him  with  the  new  deposits   thereon.  ^-^ 

(3)  Land  Formed  on  Submerged  Site  of  Previously  Existing  Land.— When 
land  is  formed  again  on  the  place  where  the  land  had  been  washed  away,  it  be- 
comes the  property  of  the  original  owner. ^^  and  this  would  be  true  ahhough  the 
land  thus  ncwlv  formed  extends  a  short  distance  into  the  old  bed  of  the  river  be- 
yond the  former  shore  line,  such  additional  formation  belongs  to  the  original 
owner  as  a  deposit  on  that  part  of  the  bed  of  the  river  which  was  owned  by  him 
in  fee,  and  not  to  the  state  or  to  any  third  party.  Otherwise,  he  would  be  cut 
off  without  his   fault   from  the  river   front  and   from  his   riparian  rights. i^ 

(4)  As  Affected  by  Character  of  the  Stream  or  Body  of  Water. — The  rule  i'-^ 
equally  applicable  to"  lands  bounded  by  tide  waters  or  by  fresh  waters  ;i"  by 
streams  that  do  and  by  those  that  do  not  overflow  their  banks,  where  dykes  and 
other  defenses  are,  and  where  they  are  not,  necessary  to  keep  the  water  within 
its  proper  limits  ;i'  regardless  of  tlie  rapidity  of  the  current  and  the  character  of 
the  soil  through  which  it  flows, i^  or  the  size  of  the  stream.i» 


604,  cited  in   Shively  v.  Bowlby,   152  U.  S. 
1.  35,  38  L.   Ed.  331. 

In  several  cases  the  rule  has  been  ap- 
plied in  settling  the  disputed  boundary  be- 
tween two  states  of  the  Union.  See  Mis- 
souri V.  Nebraska,  196  U.  S.  23.  49  L.  Ed. 
372;  Handly  v.  Anthony,  5  Wheat.  374,  5 
L.  Ed.  113.  See.  generally,  the  title 
BOUNDARIES. 

J3.  Islands.— St.  Louis  v.  Rutz,  138  U. 
S.  226,  245,  34  L.  Ed.  941.  See  the  title 
ISLANDS. 

In  St.  Louis  V.  Rutz,  138  U.  S.  226,  251, 
34  L.  Ed.  941,  th€  court  said:  "We  must 
not  be  understood  as  implying,  that  if  an 
island  in  the  Mississippi  River  remains 
stable  in  position,  while  the  main  channel 
of  the  river  changes  from  one  side  of  the 
island  to  the  other,  the  title  to  the  island 
would  change,  because  it  might  be  at  one 
time  on  one  side  and  at  another  time  on 
the  other  side  of  the  boundary  between 
two  states.  The  right"  of  accretion  to  an 
island  in  the  river  cannot  be  so  extended 
lengthwise  of  the  river  as  to  exclude  ri- 
parian proprietors  above  or  below  such 
island  from  access  to  the  river,  as  such 
riparian  proprietors.  Mulry  v.  Norton, 
100  N.  Y.  424,  A^.  437.  It  appears  from 
the  map,  'Exhibit  B,'  that  the  so-called 
Arsenal  Island  extended  as  far  down  the 
river  as  is  shown  on  that  map,  which  was 
rrade  from  surveys  in  1873  and  1884;  and 
if  the  plaintiff  thereby  has  lost  such 
newly-formed  land  arni  been  deprived  of 
access  to  the  river  m  front  of  his  surveys, 
then  all  the  rrparian  proprietors  down  the 
river,  as  far  as  the  bars  have  formed  or 
may  form  hereafter  in  front  of  their  land, 
must  lose  their  titles  and  surrender  them 
to  the  city  of  St.  Louis,  as  a  part  of  Ar- 
senal Island.  Such  rapid  changes  in  these 
alluvial  formations  cannot  transfer  title 
from   one  proprietor   to   another." 

"Arsenal  Island  was  the  subject  of  the 
case  of  Carrick  v.  Lamar.  116  U.  S.  423. 
29  L-  Ed.  677,  and  in  the  opinion  in  that 
case  is  described  as  'a  mere  moving  mass 
of  alluvial  deposits.'     To   such   a  movable 


island,  traveling  for  more  than  a  mile  and 
from  one  state  to  another,  the  law  of  ti- 
tle by  accretion  can  have  no  application, 
for  its  progress  is  not  imperceptible,  in 
a  legal  sense."'  St.  Louis  v.  Rutz,  138  U. 
S.   226.  251.  34   L.    Ed.   941. 

14.  Land  formed  on  submerged  site. — 
St.  Louis  V.  Rutz.  1.38  U.  S.  226.  246.  34 
L.    Ed.    941. 

"Dry  land  which  should  again  form  on 
the  site  where  .\rsenal  Island  existed 
when  it  was  surveyed  in  1863  would  be 
the  property  of  the  city  of  St.  Louis."  St. 
Louis  v.  Rutz,  138  U.  S.  226,  249,  34  L. 
Ed.   941. 

15.  Newly-formed  land  extending  into  old 
river  bed. — St.  Louis  v.  Rutz,  138  U.  S. 
226,    24(5,   34    L.    Ed.   941. 

16.  Equally  applicable  to  tide  or  fresh 
waters. — Shively  v.  Bowlby.  152  V.  S.  1, 
35,  38  L.   Ed.  331. 

17.  As  afiected  by  height  of  banks.— 
County  of  St.  Clair  :•.  Lovingston.  23  Wall. 
46.   69,  23    L.   Ed.   .'9. 

18.  As  affected  by  rapidity  of  current 
and  nature  of  soil. — Jefferis  v.  East  Omalia 
Land  Co..  134  U.  S.  178,  190,  33  L.  Ed. 
877;  Nebra.ska  v.  Iowa,  143  U.  S.  359,  367, 
36  L.  Ed.  186;  Missouri  7'.  Nebraska,  196 
U.   S.   23,  36,  49   L.   Ed.  372. 

Although  the  changes  on  the  Missouri 
River  are  greater  and  more  rapid  than  on 
the  Mississippi,  the  difference  does  not 
constitute  such  a  difference  in  principle 
as  to  render  inapplicable  to  the  Missouri 
River  the  general  rule  of  law.  Jefferis  ;:■. 
East  Omaha  Land  Co.,  134  U.  S.  178,  190. 
33  L.  Ed.  877;  Nebraska  v.  Iowa.  143  U. 
S.  359,  367,  36  L.  Ed.  186;  Missouri  v. 
Nebraska,   196  U.  S.  33,  36.  49  L.   Ed.  372. 

"The  very  fact  of  the  great  changes  in 
result,  caused  by  imperceptible  accretion, 
in  the  case  of  the  Missouri  River,  makes 
even  more  imperative  the  application  to 
that  river  of  the  law  of  accretion."  Jef- 
feris T'.  East  Omaha  Land  Co..  134  U  S. 
178,   191,  33   L.   Ed.   877. 

19.  As  affected  by  the  size  of  the  stream. 
— Jefferis    v.    East  Omaha  Land  Co.,  134  U. 


ACCESSION,  ACCRBTIOX  AND  RELICTION. 


OD 


(5)  Accretions  on  Streets  or  Highivays. — Accretion  by  alluvion  upon  a  street 
bounded  on  one  side  by  a  body  of  water  will  belong  to  him,  in  whom  the  fee  of 
the  half  next  the  water  is  vested  subject  to  the  public  easement. 2"  A  street  or 
tow  path  or  passway  or  other  open  space  permanently  established  for  public 
use  between  the  river  and  the  nearest  row  of  lots  or  blocks  in  a  town,  when  it 
was  first  laid  out,  or  established,  or  founded,  would  prevent  the  owners  of  such 
lots  or  blocks  from  being  riparian  proprietors  of  the  land  between  such  lots  or 
blocks  and  the  river. -^  But  this  would  not  be  true  of  a  passageway  or  tow  path 
kept  up  at  the  risk  and  charge  of  the  proprietor  of  the  lots,  and  following  the 
changes  of  ihe  river  as  it  receded  or  encroached,  and  if  the  inclosure  of  the  pro- 
prietor was  advanced  or  set  in  with  such  recession  or  encroachment. -^ 

(6)  Accretions  Formed  by  Artificial  Agencies. — The  fact  that  the  accretion 
may  have  been  caused  wholly  by  obstructions  placed  in  the  river  above,  will 
have  no  effect  on  the  ownership  of  the  alluvion.  The  proximate  cause  was  the 
deposits  made  by  the  water.  The  law  looks  no  further.  Whether  the  flow  of 
the  water  was  natural  or  affected  by  artificial  means  is  immaterial. ^3 

2.  Sudden  Accretions. — By  the  common  law  sudden  accretions  produced  by 
unusual  floods  on  navigable  waters  belong  to  the  crown ;  but  as  the  only  waters 
recognized  in  England  as  navigable  were  tidewaters,  the  rule  was  often  expressed 
as  applicable  to  tidewaters  only,  although  the  reason  of  the  rule  would  equally 
apply  to  navigable  waters  above  the  flow  of  the  tide  ;  that  reason  being,  that  the 
public  authorities  ought  to  have  entire  control  of  the  great  passageways  of  com- 
merce and  navigation,  to  be  exercised  for  the  public  advantage  and  convenience. 2* 

B.  Avulsion. — When  the  violence  of  the  stream  separates  a  considerable 
part  from  one  piece  of  land  and  joins  it  to  another,  but  in  such  manner  that  it 
can  still  be  identified,  the  property  of  the  soil  so  removed  naturally  continues 
vested  in  its  former  owner. ^^ 


S.  178,  190,  33  L.  Ed.  877;  Nebraska  z: 
Iowa.  143  U.  S.  359,  367,  36  L-  Ed.  186; 
Shively  v.  Bowlby.  152  U.  S.  1,  35,  38  L. 
Ed.  331;  Jones  v.  Soulard.  24  How.  41,  16 
L.    Ed.   604. 

Applicable  to  the  Mississippi. — Shively 
V.  Bowlby,  152  U.  S.  1,  35,  38  L.  Ed.  331; 
Nebraska  v.  Iowa,  143  U.  S.  359,  367,  36 
L.  Ed.  186;  Jefferis  v.  East  Omaha  Land 
Co.,  134  U.   S.   178,  190,  33    L.   Ed.   877. 

"In  Jones  v.  Soulard,  24  How.  41,  it 
was  held,  that  a  riparian  proprietor  on 
the  Mississippi  River  at  St.  Louis  was  en- 
titled, as  such,  to  all  accretions  as  far  out 
as  the  middle  thread  of  the  stream:  and 
that  the  rule,  well  established  as  to  fresh 
water  rivers  generally,  was  not  varied  by 
the  circumstance  that  the  Mississippi  at 
St.  Louis  is  a  great  and  public  water- 
course. The  court  said  that  from  the 
days  of  Sir  Matthew  Hale  all  grants  of 
land  bounded  by  fresh  water  rivers,  where 
the  expressions  designating  the  water  line 
were  general,  conferred  the  proprietor- 
ship on  the  grantee  to  the  middle  thread 
of  the  stream,  and  entitled  him  to  the  ac- 
cretions; that  the  land  to  which  the  ac- 
cretion attached  in  that  case  was  an  irreg- 
ular piece  of  79  acres,  and  had  nothing 
peculiar  in  it  to  form  an  exemption  from 
the  rule;  that  the  rule  applied  to  such  a 
public  watercourse  as  the  Mississippi  was 
at  the  city  of  St.  Louis;  and  that  the  doc- 
trine that,  on  rivers  where  the  tide  ebbs 
and  flows,  grants  of  land  are  bounded  by 
ordinary    highwater   mark,    had    no    appli- 


cation to  the  case,  nor  did  the  size  of  the 
river  alter  the  rule."  Jeflferis  v.  East 
Omaha  Land  Co.,  134  U.  S.  178,  190,  33 
L.    Ed.   877. 

20.  Accretion  on  streets. — Banks  v.  Og- 
den,  2  Wall.  57.  17  L.  Ed.  821.  See  the  ti- 
tle  STREETS   AND    HIGHWAYS. 

21.  Street  or  passway  permanently  es- 
tablished.— Schools  V.  Risley,  10  Wall.  91, 
110,    19   L.    Ed.   850. 

22.  Temporary  street  or  passway.^ 
Schools  V.  Risley.  10  Wall.  91,  110.  19  L. 
Ed.    850. 

23.  Accretions  formed  by  artificial  agen- 
cies.— County  of  St.  Clair  v.  Lovingston, 
23  Wall.  46,  66,  23  L.  Ed.  59.  See,  also, 
Watkins  v.  Holman,  16  Pet.  25,  10  L.  Ed. 
873. 

24.  Sudden  accretions. — Barney  v.  Ke- 
okuk, 94  U.  S.  324,  537,  24  L.   Ed.  224. 

25.  Avulsion. — Nebraska  r.  Iowa,  143  U. 
S.  359,  361,  36  L-  Ed.  186;  Missouri  v. 
Nebraska.  196  U.  S.  23,  35,  49  L.  Ed.  372; 
St.  Louis  V.  Rutz.  138  U.  S.  226,  245  34 
L.   Ed.   941. 

There  can  be  no  identification  unless 
there  is  a  sudden  change  and  that  is  the 
very  opposite  of  an  imperceptible  accre- 
tion. Jefferis  v.  East  Omaha  Land  Co., 
134  U.   S.   178,   194,   33   L.   Ed.  877. 

In  1877  the  river  above  Omaha,  which 
had  pursued  a  course  in  the  nature  of  an 
oxbow,  suddenly  cut  through  the  neck  of 
the  bow  and  made  for  itself  a  new  chan- 
nel. This  does  not  come  within  the  law 
of  accretion,  but  of  that  of  avulsion.     By 


56  ACCESSIOX,  ACCRETIOX  AXD  RELICTION. 

C.    Accession. Property  rights  in  accessions  will  be  treated  under  the  specific 

titles  in  which  the  question  may  arise. ^^ 

III.    Determination  of  Property  Rights. 

A.  Ownership  of  Shore — 1.  Necessity  for  Establishing. — Before  the 
proprietor  can  set  up  his  claim  to  accretions  and  the  like,  he  must  first  show  that  he 
owns  the  shore;  and  if  he  fail  first  to  establish  his  ownership,  judicial  inquiry 
respecting  his  rights  in  or  under  the  waters  adjoining  are  abstractions  and  use- 
less."" 

2.  As  oif  What  Time  Ownership  Must  Be  Established. — The  right  which 
the  owner  of  the  water  lot  has  to  the  accretions  in  front  of  it  depends  on  its  con- 
dition at  the  date  of  the  deed  which  conveyed  him  the  legal  title,  and  cannot  be 
carried  back  by  relation  to  the  date  of  a  title  bond  previously  assigned  to  him, 
?.nd  under  which  he  procured  the  deed.^s  Any  past  accretions  belonged  to  the 
owner,  and  whoever  sets  up  a  title  to  them  must  show  a  deed  of  the  same  as  in 
the  case  of  any  other  description  of  land  -r^  any  alluvial  accretions  since  the  deed 
belonging  to  the  proprietor  as  owner  of  the  adjoining  land.^o 

B.  Contiguity  of  Estate  to  the  Water. — The  right  to  the  alluvion  depends 
upon  the  fact  of  the  contiguity  of  the  estate  to  the  waler.^^ 

C.  Rule  for  Apportioning  Accretions. — The  rule  for  apportioning  the  newly 
formed  land  along  the  water  line  is  to  measure  the  whole  extent  of  the  ancient 
bank  or  line  of  the  river,  and  compute  how  many  rods,  yards,  or  feet  each  ripa- 
rian proprietor  owned  on  the  river  line ;  then,  supposing  the  former  line,  for  in- 
stance, to  amount  to  200  rods,  to  divide  the  newly  formed  bank  or  river  line  into 
200  equal  parts,  and  appropriate  to  each  proprietor  as  many  portions  of  this  new 
river  line  as  he  owned  rods  on  the  old.  When,  to  complete  the  division,  lines 
are  to  be  drawn  from  the  points  at  which  the  proprietors  respectively  bounded 
on  the  old,  to  the  points  thus  determined,  as  the  points  of  division  on  the  newly 
formed  shore.  The  new  lines  thus  formed,  it  is  obvious,  will  be  either  parallel,  or 
divergent,  or  convergent,  according  as  the  new  shore  line  of  the  river  equals,  or 
exceeds,  or  falls  short  of  the  old.^'^  This  rule  may  require  modification,  perhaps, 
under  particular  circumstances.  For  instance,  in  applying  the  rule  to  the  an- 
cient margin  of  the  river,  to  ascertain  the  extent  of  each  proprietor's  title  on  that 
margin,  the  general  line  ought  to  be  taken,  and  not  the  actual  length  of  the  line 
on  that  margin,  if  it  happens  to  be  elongated  by  deep  indenlations  or  sharp  pro- 

this  selection  of  a  new  channel  the  bound-  28.     As    of    what    time    ownership    must 

ary  was  not  changed,   and  it  remained  as  be     established. — Johnston      v.      Jones.      1 

ii   was    prior   to    the   avulsion,    the    centre  Black,  209,   17   L.   Ed.   117. 

line   of  the   old   channel;   and   that,  unless  29.    Jones    v.    Johnston.    18     How.    150, 

the  waters   of  the   river   returned   to  their  1.56,  15  L.  Ed.  320. 

former   bed,   became   a   fixed   and   unvary-  30.    Jones    v.    Johnston,     18    How.     150, 

ing    boundary,   no    matter    what    might    be  156,   15   L.   Ed.   320. 

the  changes  of  the  river  in  its  new  chan-  31.    Contiguity  of  estate  to  the  water. — 

nel.     Missouri  f.   Nebraska.   196  U.   S.   23,  Jefiferis  v.   East   Omaha   Land   Co.,   134  U. 

36.   49  L.  Ed.  372-  S.  178,   190,  33  L.   Ed.  877;   Saulet  z:  Shep- 

Avulsion    as    affecting    boundaries. — See  herd,  4  Wall.  502,  508.  18  L.  Ed.  442;  Live 

the    title    BOUNDARIES.  Stock    Co.    v.    Springer.    185    U.    S.    47.    54, 

26.  Accession. — See     the     titles     ANL  46  L.  Ed.  800;  Johnston  v.  Jones,  1  Black 
MALS;      BAILMENTS:     CONFUSION  209.  223.  17  L.   Ed.   117. 

OF     GOODS;     FIXTURES;     SLAVES;  Thus  where  the  accretion   was  made  to 

WHARVES.  a    strip    of    land    which    bordered    on    the 

As    to    where    the     value     of     property  river,  the   accretion  belongs  to  such   strip 

wrongfully    held    is    increased    by    labor,  and    not    to    the    larger    parcel    behind    it, 

see      the      title      TROVER     AND    CON-  from    which    the    strip,     when     sold,      was 

VERSION.  separated.     Jefiferis   v.   East   Omaha    Land 

As  to   reclamation   of   swamp   and   over-  Co..    134    U.    S.    178,    190.    33    L.    Ed.    877; 

flowed   lands   held   by   the   public,   see   the  Saulet  v.  Shepherd,  4  Wall.  502,  18  L    Ed. 

titles      LEVEES;       NAVIGABLE  442. 

WATERS:    PUBLIC    LANDS.  32.    Rule  for  apportioning  accretions.— 

27.  Necessity    f-r    establishmg    owner-  lohnston    v.    Jones.    1    Black    209.    223.    17 
ship.— Bates   v.   Illinois   Central    R.   Co..    1  L.    Ed.    117;    Jones  v.   Johnston,    18    How. 

.  Black,  204,  208,  17  L.  Ed.  158.  1.50.   15    L.   Ed.   320. 


ACCTDExr  IX  BQvrrY.  1.7 

jections.     In  such  case,  it   should  be  reduced  by  an  equitable  and  judicious  es- 
timate to  the  general  available  line  of  the  land  upon  the  river.'^-^ 

D.  What  Law  Governs.— The  title  to  land  acquired  by  accretion  is  a  title 
acquired  under  the  operation  of  the  law  of  the  state,  which  each  state  determines 
for  itself."-*  Likewise  the  question  as  to  whether  the  general  rules  relating  to 
accretion  by  the  gradual  and  imperceptible  operation  of  na:ural  causes  attaches 
to  land  reclaimed  by  artificial  means  from  the  bed  of  a  river,  is  a  question  which 
each  state  decides  for  itself.^'' 

E.  Evidence — Deeds. — W  here  a  lot  was  conveyed  as  having  a  water  front, 
and  reconveyed  to  the  original  owner  as  having  no  such  front,  and  afterwards 
conveyed  by  such  original  owner  to  a  third  party,  deed  from  the  first  purchaser 
to  such  third  party  made  after  suit  brought  cannot  be  given  in  evidence  to  sliow 
the  right  of  the  plaintiff  to  a  water  front,  and  consequently  a  title  in  alluvium.-^*^ 

Maps  as  Evidence. — The  admissibility  of  a  map  as  evidence  would  depend 
on  a  proper  foundation  being  laid  for  it.-"' 

Calculations  Founded  upon  Unreliable  Maps. — A  calculation  founded 
upon   a   map   not   itself   original   and  reliable   evidence,   is   clearly   inadmissible.^^ 

Character  of  Soil  and  Timber. — In  determining  the  question  as  to  whether 
land  has  been  formed  bv  accretion,  the  character  of  the  soil  and  timber  may  be 
looked  to.39 

Evidence  to  Show  Nonexistence  of  Contiguous  Water. — It  is  competent 
to  show  that  there  was  not,  at  the  time  of,  nor  since  the  survey  of  the  land  in 
question  any  body  of  water  bordering  on  such  land,  and  to  contend  that  under 
such  a  state  of  facts,  there  could  be  no  accretion  by  reliction.*"^ 

F.  Questions  of  Law  and  Fact. — The  inquiry  as  to  whom  accretions  belong 
is  a  question  of  law.-*^ 

ACCESSORIES. — v^ee  the  title   Accomplices  and  Accessories. 

ACCIDENT— ACCIDENTALLY.— See  the  titles  Accident  Insurance; 
Carriers  ;  ^Marine  Insurance.  And  see  Inevitable  Accident.  Accident- 
ally means  happening  by  chance,  unexpectedly  taking  place,  not  according  to 
the  usual  course  of  things,  or  not  as  expected.^ 

ACCIDENT  IN  EQUITY.— See  the  title  Mistake  and  Accident. 

33.  Johnston  v.  Jones,  1  Black  209,  223,  It  is  easy  to  distinguish  them  on  account 
17  L.   Ed.   117.  of  the  difference   in  their  soil  and  timber. 

34.  What  law  governs. — Barney  v.  It  has  been  found,  by  observation  and 
Keokuk,  94  U.  S.  324,  24  L.  Ed.  224;  St.  experience,  that  primitive  soil  produces 
Louis  V.  Rutz,  138  U.  S.  226,  2.50,  34  L.  trees  chiefly  of  the  hardwood  varieties, 
Ed.  941;  Joy  v.  St.  Louis,  201  U.  S.  332,  while  the  timber  growing  on  land  of 
343,  50  L.  Ed.  776;  St.  Anthony  Falls,  secondary  formation — the  effect  of  accre- 
etc,  Co.  V.  Board  of  Water  Commission-  tions — is  principally  cottonwood.  Mis- 
ers, 168  U.  S.  349.  3.59,  42  L.  Ed.  947.  See,  souri  v.  Kentucky,  11  Wall.  395,  408,  20 
generally,   on   this   point,   the    titles    CON-  L.   Ed.   116. 

FLICT      OF       LAWS;       NAVIGABLE  40.     Evidence   to   show   nonexistence    of 

WATERS;    WATERS    AND     WATER-  contiguous    water.— Live     Stock     Co.      v. 

COURSES.  Springer,   185   U.   S.  47,   54.  46   L.   Ed.   800. 

35.  Barney  v.  Keokuk.  94  U.  S.  324,  41.  County  of  St.  Clair  v.  Lovingston, 
337,   24    L.    Ed.    224.  23    Wall.    46.    62,   23    L.    Ed.    59. 

36.  Deeds. — Johnston  v.  Jones,  1  Black  1.  Accidently. — United  States  Mut.  Ac- 
209,   17   L.    Ed.   117.                                                        cident   A^s'n   v.    Barry.   131   U.   S.   100,   121, 

As   to   documentarv   evidence,    see,   gen-  33  L.  Ed.  60. 
erally,  the   title   DOCUMENTARY    EVI-  Accident.— In    Viterbo    v.     Friedlander, 

DENCE.  120  U.  S.  707,  728,  30  L.  Ed.  776,  it  is  said: 

37.  Maps  as  evidence. — Johnston  v.  "It  cannot  be  doubted,  therefore,  that  the 
Jones.   1    Black   209,   225.   17   L.    Ed.   117.  words   'unforeseen  event,  and  accident,  as 

_  38.    Calculations     founded     upon     unre-  used  in  the   articles  now  under  considera- 

liable   maps. — Johnston   v.  Jones,    1    Black  tion     have     the     meaning     of     'fortuitous 

209.  225,   17   L.   Ed.   117.  event'    or    'irresistible    force.'"      The    stat- 

39.     Character    of     soil     and     timber. —  ute      under     construction      was      that      of 

Islands   formed  by  accretions  are,  in  river  Louisiana     providing     for     abatement     of 

phraseology,    called     made      land,      while  rent    in    case    of    loss    by    accident.      See, 

those    produced    by     the      other      process  generally,    the    title     LANDLORD    AND 

necessarily    are    of    primitive    formation.  TENANT. 


ACCIDENT  INSURAf^'CZ. 

BY  T.   B.   BENSON. 

I.  TLo  Policy,  58. 

A.  Construction,  58. 

B.  Accidents  and  Injuries  Included,  58. 

1.  Arising  from  External,  Violent  and  Accidental  Means,  58. 

2.  Injuries  Sustained  in  Traveling^  59. 
'  C.  Accidents  and  Injuries  Excluded,  59. 

1.  Suicide,  59. 

2.  Injuries   Intentionally  Inflicted.  60. 

3.  Bodily  Infirmities  and  Diseases,  60. 

4.  Dueling.  Fighting  or  Other  Breach  of  Law,  60. 

5.  Exposure  to  Unnecessary  Danger,  60. 

II.  Notice  and  Preliminary  Proof  of  Accident  and  Injury,  61. 

III.  Proximate  Cause,  61. 

IV.  Evidence,  61. 

V.   Presumptions  and  Burden  of  Proof,  61. 

CROSS    REFERENCES. 

See  the  titles  Akbitration  and  Award;  Benevolent  and  Beneficial  As- 
sociations;   Insurance;   Life  Insurance;   Verdict. 

I.    The  Policy. 

A.  Construction. — The  contract  must  receive  the  construction  which  the 
language  used  fairly  warrants. ^ 

Construed  by  Court  or  Jury. — The  language  of  the  policy  is  to  be  con- 
strued by  the  court,  so  far  as  it  involves  matters  of  law,  and  by  the  jury  aided  by 
the  court  when  it  involves  law  and  fact,  and  in  neither  view  of  it  is  the  opinion 
of  ordinary  people  in  view  of  the  state  of  things  where  the  deceased  resided,  or 
their  understanding  of  its  language  in  view  of  the  circumstances  of  the  case,  any 
souHd  criterion  by  which   the   judgment  of   the  jury  should  be   formed. ^ 

B.  Accidents  and  Injuries  Included — 1.  Arising  from  External,  Violent 
and  Accidental  Means — What  Injuries  Are  Accidental. — The  term  "acci- 
dental" contained  in  the  policy  is  used  in  its  ordinary,  popular  sense,  as  meaning 
"happening  by  chance;  unexpectedly  taking  place;  not  according  to  the  usual 
course  of  things ;  or  not  as  expected."  If  a  result  is  such  as  follows  from  ordi- 
nary means,  voluntarily  employed,  in  a  not  unusual  or  unexpected  way,  it  cannot 
be  called  a  result  efifected  by  accidental  means ;  but  if,  in  the  act  which  precedes 
the  injury,  something  unforeseen,  unexpected,  unusual,  occurs  which  produces 
the  injury,  then  the  injury  has  resulted  through  accidental  means.^ 

1.  Ripley  v.  Railway  Passengers'  and  accidental  means."  the  jury  was  at 
Assur.  Co.,  16  Wall.  336,  338,  21  L.  Ed.  liberty  to  find  that  the  injury  causing 
469.  death    resulted    from    an    accident,    where, 

2.  Travelers'  Ins.  Co.  v.  Seaver,  19  after  two  companions  of  the  deceased 
Wall.    531,   543,   22   L.   Ed.   155.  had  jumped  from  a  platform  and  alighted 

3.  United  States  Mutual  Accident  As-  safely,  the  deceased  jumped  and  soon  ap- 
sociation  v.  Barry,  131  U.  S.  100,  121,  33  peared  ill,  vomited  and  died  in  nine  days. 
L.    Ed.    60.  United    States    Mutual    Accident    Associa- 

Injury  arising  from  jumping  from  plat-  tion   v.    Barry,   131   U.   S.    100,   121,    33    L. 

form. — In    a    suit    on    a   policy    stipulating  Ed.    60. 

to  pay  $5,000  to  the  insured's  widow  in  Injury  arising  from  lifting  heavy  bur- 
case  of  his  death,  from  sustaining  "bodily  den. — "In  Martin  v.  Travellers'  Ins.  Co., 
injuries   effected  through  external,  violent  l    Foster    &  "Fin.     505,     the      policy      was 

(58) 


ACCIDEXT  IXSURAKCE. 


59 


2.  Injuries  Sustained  in  Traveling — Public  and  Private  Conveyances 
Distinguished. — Public  conveyances  naturally  suggests  a  vessel  or  vehicle  em- 
ployed in  the  general  conveyance  of  passengers.  Private  conveyances  suggests  a 
vehicle  belonging  to  a  private  individual.-* 

Traveling  Does  Not  Include  Walking.— Walking  is  not  a  means  of  travel- 
ing by  either  public  or  private  conveyance. ^ 

C.  Accidents  and  Injuries  Excluded — 1.  Suicide. — A  state  legislature  may 
provide  that  suicide  shall  not  be  a  defense.^ 

Suicide  within  Meaning  of  Policy.— If  one  whose  life  is  insured  inten- 
tionally kills  himself  when  his  reasoning  faculties  are  so  far  impaired  by  insanity 
that  he  is  unable  to  understand  the  moral  character  of  his  act,  even  if  he  does  un- 
derstand its  physical  nature,  consequence,  and  effect,  it  is  not  a  "suicide,"  or 
"self-destruction,"  or  "dying  by  his  own  hand,"  within  the  meaning  of  those 
words  in  a  clause  excepting  such  risks  out  of  the  policy,  and  containing  no  fur- 
ther words  expressly  extending  the  exemption  to  such  a  case ;"  but  such  killing 


against  any  bodily  injury  resulting  from 
any  accident  or  violence,  'provided  that 
the  injury  should  be  occasioned  by  any 
external  or  material  cause  operating  on 
the  person  of  the  insured.'  In  the  course 
of  his  business  he  lifted  a  heavy  burden 
and  injured  his  spine.  It  was  objected 
that  he  did  not  sustain  bodily  injury  by 
reason  of  an  accident.  The  plaintiff  re- 
covered." United  States  Mutual  Accident 
Association  v.  Barry,  131  U.  S.  100.  121, 
33    L.    Ed.    60. 

Suicide  while  insane. — See  post,  "Sui- 
cide."   I.    C.    1. 

The  death  of  the  assured  not  having 
been  the  effect  of  any  cause  specified  in 
the  proviso  of  the  policy,  and  not  com- 
ing within  any  warranty  in  the  applica- 
tion, the  question  recurs  whether  it  is 
within  the  general  words  of  the  leading 
sentence  of  the  policy  by  which  he  is  de- 
clared to  be  insured  "against  bodily  in- 
juries effected  through  external,  acci- 
dental and  violent  means."  This  sen- 
tence does  not,  like  the  proviso,  speak  of 
what  the  injury  is  "caused  by;"  but  it 
looks  only  to  the  "means"  by  which  it  is 
effected.  No  one  doubts  that  hanging  is 
a  violent  means  of  death.  As  it  affects 
the  body  from  without,  it  is  external,  just 
as  suffocation  by  drowning  has  been  held 
to  be.  And,  according  to  the  decisions 
as  to  suicide  under  policies  of  life  insur- 
ance, it  cannot,  when  done  by  an  insane 
person,  be  held  to  be  other  than  acci- 
dental. Accident  Ins.  Co.  v.  Crandal,  120 
U.   S.    527.   .533,   30   L.    Ed.    740. 

4.  Riplev  V.  Railway  Passengers' 
Assur.  Co.,"  16  Wall.  336. '338,  21  L.  Ed. 
469. 

5.  A  person  took  out  an  accident  policy 
of  insurance  on  his  life  while  "traveling 
by  public  or  private  conveyance."  Hav- 
ing performed  a  part  of  his  journey  by 
steamer,  which  brought  him  to  a  certain 
village,  he  walked  thence  home  about 
eight  miles.  Held,  that  whil^  thus  walk- 
ing, he  was  not  traveling  by  either  pub- 
lic or  private  conveyance.  Ripley  z\  Rail- 
way Passengers'  Assur.  Co.,  16  Wall.  336, 
21    L.    Ed.    469. 


6.  Whitfield  V.  .Etna  Life  Ins.  Co.,  205 
U.  S.  489,  496,  51  L.  Ed.  895.  See  the 
title    INSURANCE. 

7.  Mutual  Life  Insurance  Company  v. 
Terry,  15  Wall.  580,  21  L.  Ed.  236;  Bige- 
low  V.  Berkshire  Life  Ins.  Co.,  93  U.  S. 
284,  23  L.  Ed.  918;  Charter  Oak  Life  Ins. 
Co.  V.  Rodel,  95  U.  S.  232,  24  L.  Ed.  433; 
Manhattan  Life  Ins.  Co.  v.  Broughton, 
109  U.  S.  121.  27  L.  Ed.  878;  Connecticut 
Mut.  Life  Ins.  Co.  v.  Lathrop.  11  U.  S. 
612,  28  L.  Ed.  536;  Accident  Ins.  Co.  v. 
Crandal,  120  U.  S.  527,  30  L.  Ed.  740; 
Connecticut  Mut.  Life  Ins.  Co.  v.  Akens, 
150   U.   S.    468,    473.   37   L.    Ed.    1148. 

In  a  policy  of  insurance  covering 
"bodily  injuries,  effected  through  ex- 
ternal, accidental  and  violent  means,"  but 
providing  that,  "this  insurance  shall  not 
extend  to  death  or  disability  which  may 
have  been  caused  wholly  or  in  part  by 
bodily  infirmities  or  disease,  or  by  sui- 
cide, or  self-inflicted  injuries,"  hanging 
one's  self  while  insane  will  not  defeat  a 
recovery.  Accident  Ins.  Co.  v.  Crandal, 
120  U.   S.  527.  30   L.   Ed.  740. 

A  provision,  not  containing  the  words 
"sane  or  insane,"  does  not  include  a  self- 
killing  by  an  insane  person,  whether  his 
unsoundness  of  mind  is  such  as  to  pre- 
vent him  from  understanding  the  phys- 
ical nature  and  consequences  of  his  act, 
or  only  such  as  to  prevent  him  while 
foreseeing  and  premeditating  its  physical 
consequences,  from  understanding  its 
moral  nature  and  aspect.  Accident  Ins. 
Co.  V.  Crandal.  120  U.  S.  527,  531, 
30  L.  Ed.  740;  Mutual  Life  Ins. 
Co.  V.  Terry.  15  Wall.  580,  21  L.  Ed. 
236;  Bigelow  v.  Berkshire  Life  Ins.  Co., 
93  U.  S.  284,  23  L.  Ed.  918;  Charter  Oak 
Life  Ins.  Co.  v.  Rodel,  95  U.  S.  232,  24 
L.  Ed.  433;  Manhattan  Life  Ins.  Co.  v. 
Broughton.    109   U.    S.    121.   27   L.    Ed.   878. 

Same  rules  apply  to  suicide  and  self- 
inflicted  injuries. — "There  can  be  no 
doubt  that  the  assured  did  not  die  'by 
suicide,'  within  the  meaning  of  this 
policy;  and  the  same  reasons  are  con- 
clusive against  holding  that  he  died  by 
'self-inflicted      injuries.'        If      self-killing. 


60 


ACCIDENT  IXSURAKCE. 


falls  within  a  proviso  against  death  or  injury  resulting  from  suicide,  feloniously 
or  otherwise,  while  sane  or  insane.^ 

2.  Injuries  Intentionally  Inflicted. — There  can  be  no  recovery  where 
the  insured  was  murdered,  if  the  policy  contained  a  proviso  against  "intentional 
injuries,  inflicted  by  the  insured  or  any  other  person. "" 

Consent  of  Insured. — The  injury  need  not  be  inflicted  with  the  knowledge 
or  consent  of  the  insured.^" 

3.  Bodily  Infirmities  and  Diseases. — A  clause  which  provides  that  the  in- 
surance shall  not  extend  to  "death  or  disability  which  may  have  been  caused 
Avliolly  or  in  part  by  bodily  infirmities  or  disease,"  does  not  include  a  hanging 
one's  self  while  insane.'^i 

4.  Dueling,  Fighting  or  Other  Breach  of  Law. — Engaging  in  violation 
of  law  by  horse  racing  for  money,  is  within  the  condition  against  "dueling,  fight- 
in"  or  other  breach  of  the  law."^^ 

5.  Exposure  to  Unnecessary  Danger. — A  condition  against  assured's  will- 
fully "exposing  himself  to  any  unnecessary  peril,"  embraces  horse  racing.^-^ 


'suicide,'  'dying  by  his  own  hand,'  can- 
not be  predicated  of  an  insane  person,  no 
more  can  'self-inflicted  injuries,'  for  in 
either  case  it  is  not  his  act."  Accident 
Ins.  Co.  7'.  Crandal.  120  U.  S.  527,  532, 
30    L.    Ed.    740. 

8.  In  an  action  upon  a  policy  of  insur- 
ance covering  "bodily  injuries,  effected 
through  external,  violent  and  accidental 
means,"  with  a  proviso  against  recovery 
where  the  death  or  injury  was  the  re- 
sult of  "suicide  (felonious  or  otherwise, 
sane  or  insane)."  No  valid  claim  can  be 
made  under  the  policy,  if  the  insured, 
cither  intentionally  or  when  insane,  in- 
flicted upon  himself  the  injuries  which 
rau=ed  his  death."  Travelers'  Ins.  Co.  v. 
McConkey,  127  U.  S.  661,  668,  32  L.  Ed. 
308. 

9.  "The  policy  expressly  provides  that 
no  claim  shall  be  made  under  it  where 
the  death  of  the  insured  was  caused  by 
'intentional  injuries,  inflicted  by  the  in- 
sured or  any  other  person.'  If  he  was 
murdered,  then  his  death  was  caused  by 
intentional  injuries  inflicted  by  another 
person.  Nevertheless  the  instructions  to 
the  jury  were  so  worded  as  to  convey  the 
idea  that  if  the  insured  was  murdered,  the 
plaintiff  was  entitled  to  recover;  in  other 
words,  even  if  death  was  caused  wholly 
bv  intentional  injuries  inflicted  upon  the 
insured  by  another  person,  the  means 
used  were  'accidental'  as  to  him.  and 
therefore  the  company  was  liable.  This 
was  error."  Travelers'  Ins.  Co.  v.  Mc- 
Conkey,  127  U.  S.   661,   667,  32   L.   Ed.   308. 

10.  Travelers'  Ins.  Co.  v.  McConkey, 
127   U.    S.    661,    667,   32    L.    Ed.    308. 

11.  "The  words  'bodily  infirmities  or 
disease'  do  not  include  insanity.  Al- 
though, as  suggested  by  Mr.  Justice  Hunt 
in  Mutual  Life  Ins.  Co.  v.  Terrv,  15  Wall. 
580.  589,  21  L.  Ed.  236,  insanity  or  un- 
soundness of  mind  often,  if  not  always, 
is  accompanied  by,  or  results  from,  dis- 
ease of  the  body,  still,  in  the  common 
speech  of  mankind,  mental  are  distin- 
guished from  bodily  diseases.  In  the 
phrase   'bodily    infirmities   or    disease,'    the 


word  'bodily'  grammatically  applies  to 
'disease,'  as  well  as  to  'infirmities;'  and 
it  cannot  but  be  so  applied,  without  dis- 
regarding the  fundamental  rule  of  in- 
terpretation, that  policies  of  insurance 
are  to  be  construed  most  strongly  against 
the  insurers  who  frame  them.  The  pre- 
fix of  'bodily'  hardly  affects  the  meaning 
of  'infirmities,'  and  it  is  difficult  to  con- 
jecture any  purpose  in  inserting  it  in  this 
proviso,  other  than  to  exclude  mental  dis- 
ease from  the  enumeration  of  the  causes 
of  death  or  disability  to  which  the  in- 
surance does  not  extend."  Accident  Ins. 
Co.  V.  Crandal,  120  U.  S.  527,  532,  30  L. 
Ed.    740. 

12.  Where  two  persons  were  driving 
sulkies  in  competition  alongside  of  each 
other  at  a  horse  race  for  money — which 
sort  of  race  was  made  illegal  by  statute — 
and  on  a  collision  ensuing,  one  jumped 
to  the  ground  from  his  sulky,  and  was 
clear  from  the  sulky,  harness,  and  reins, 
on  his  feet  and  uninjured,  and  instantly 
spoke  to  his  horse  to  stop,  and  then 
started  forward  to  get  hold  of  the  reins, 
which  were  hanging  across  the  axle  tree; 
and  when  ahold  of,  or  attempting  to  get 
hold  of  them,  was  killed  by  getting 
tangled  in  them,  falling  down  and  being 
dragged  against  a  stone;  held,  on  a  suit 
upon  a  policj'  of  insurance  on  the  life  of 
the  person  killed,  which  made  it  a  con- 
dition of  paying  the  sum  assured  that 
the  contract  should  not  extend  to  a  case 
of  death  caused  bv  "dueling,  fighting,  or 
other  breach  of  the  law  on  the  part  of 
the  assured,"  that  this  death  was  within 
the  condition.  Travelers'  Ins.  Co.  v. 
Seaver.   19  Wall.   531,   22   L.    Ed.   155. 

Provision  is  wise  and  prudent. — "The 
company  in  protecting  themselves  again»t 
accident  or  death  caused  by  a  violation 
of  law.  acted  upon  a  wise  and  prudent 
estimate  of  the  dangers  to  the  person 
generally  connected  with  such  violations." 
Travelers'  Ins.  Co.  v.  Seaver,  19  Wall.  531, 
541.    22    L.    Ed.   155. 

13.  Travelers'  Ins.  Co.  v.  Seaver,  19 
Wall.    531.   22    L.    Ed.    155. 


ACCIDENT  INSURANCE. 


61 


II.    Notice  and  Preliminary  Proof  of  Accident  and  Injury. 

See  the  title  Insurance. 

III.    Proximate  Cause. 

The  law  of  insurance  attributes  an  injury  or  loss  to  its  proximate  cause  only.^* 

IV.     Evidence. 

In  the  construction  of  a  provision  in  a  policy  excepting  the  insurer's  liability^ 
evidence  of  how  people  living  in  the  same  community  with  the  insured  under- 
stood such  provisions  is  inadmissible. ^-^ 

Direct  and  Positive  Proof  of  Death. — The  requirement,  of  direct  and  posi- 
tive proof,  does  not  make  it  necessary  to  establish  the  fact  and  attendant  circum- 
stances of  death  by  persons  who  were  actually  present  when  the  insured  received 
the  injuries  which  caused  his  death. ^^ 


14.  Accident  Ins.  Co.  v.  Crandal.  120 
U.  S.  527.  532.  30  L.  Ed.  740;  Scheffer  v. 
Washington  City,  etc.,  R.  Co.,  105  U.  S. 
249,    252,    26    L.    Ed.    1070. 

The  court  correctly  instructed  the 
jury  that  they  must  weigh  and  give  due 
consideration  to  all  the  testimony,  and 
that  if  the  deceased  received  an  internal 
injury  which  caused  his  death,  that  such 
injury  was  the  proximate  cause  of 
death.  United  States  Mutual  Accident 
Association  v.  Barry,  131  U.  S.  100,  120, 
33   L.   Ed.   60. 

Violation  of  law  proximate  cause  of 
injury. — Where  two  persons  were  driv- 
ing sulkies  in  competition  alongside  of 
each  other  at  a  horse  race  for  money — ■ 
which  sort  of  race  was  made  illegal  by 
statute — and  on  a  collision  ensuing,  one 
jumped  to  the  ground  from  his  sulky,  and 
was  clear  from  the  sulky,  harness,  and 
reins,  on  his  feet  and  uninjured,  and  in- 
stantly spoke  to  his  horse  to  stop,  and 
then  started  forward  to  get  hold  of  the 
reins,  which  were  hanging  across  the 
axletree;  and  when  ahold  of,  or  attempt- 
ing to  get  hold  of  them,  was  killed  by 
getting  tangled  in  them,  falling  down  and 
being  dragged  against  a  stone;  held,  that 
the  leap  from  the  sulky  and  securing  the 
reins,  and  the  subsequent  fall  and  injury, 
were  so  close  and  immediate  in  their  re- 
lation to  the  racing,  and  all  so  mani- 
festly part  of  one  continuous  transaction, 
that  it  could  not  be  said  that  there  was 
a  new  and  controlling  influence  to  which 
the  disaster  should  be  attributed.  Travel- 
ers' Ins.  Co.  V.  Seaver.  19  Wall.  531,  22 
L.    Ed.    155. 

"Both  parties  appeal  to  the  case  of 
Louisiana  Mut.  Ins.  Co.  v.  Tweed,  7 
Wall.  44.  19  L.  Ed.  65.  where  it  is  said 
that  when  a  new  force  or  cause  of  the  in- 
jury intervenes  between  the  original 
cause  and  the  accident,  the  former  is  the 
proximate  cause.  But  we  do  not  think 
this  new  force  or  cause  is  sufficiently 
made  out  by  this  verdict.  The  leap  from 
the  sulky  and  securing  th'^  reins,  and  the 
subsequent  fall  and  injury  to  Seaver  are 
so  close  and  immediate  in  their  relation 
to   his   racing,   and   all   so   manifestly   part 


of  one  continuous  transaction,  that  we 
cannot,  as  this  finding  presents  it.  say 
there  was  a  new  and  controlling  in- 
fluence to  which  the  disaster  should  be 
attributed.  If  he  had  been  landed  safely 
from  his  sulky  and.  after  being  assured 
of  his  position,  had,  with  full  knowledge 
of  what  he  was  doing,  gone  to  catch  the 
animal,  his  death  in  that  pursuit  when 
the  race  was  lost  might  have  been  too 
remote  to  bring  the  case  within  the  ex- 
ception. But  as  the  finding  presents  it,, 
we  cannot  say  that  the  accident  was  not 
caused  by  the  race  which  was  itself  a 
violation  of  the  law,  and  which  might 
still  have  gone  on  had  he  caught  his 
mare  in  time."  Travelers'  Ins.  Co.  v. 
Seaver,    19   Wall.   531,   542,   22   L.   Ed.    155. 

15.  Where  the  insured  was  killed  in  a 
horse  race  on  a  suit  for  insurance  money 
on  a  policy  containing  a  condition  against 
willful  exposure  to  unnecessary  danger 
and  peril,  and  where  the  language  of  the 
condition  was  the  matter  referred  to  by 
the  court,  it  was  error  to  tell  the  jury 
that  they  were  to  consider  "how  ordinary 
people  in  the  part  of  the  country  where 
the  insured  reside,  m  view  of  the  state 
of  things  then  existine^the  frequency  of 
such  races,  apH  *h^  way  in  which  such 
matches  are  asually  regulated — would 
naturally  understand  such  language,, 
whether  as  precluding  such  driving  or 
not."  Travelers'  Ins.  Co.  v.  Seaver,  19 
Wall.    531.   22    L.    Ed.    155. 

"The  jury  should  have  been  left  to  de- 
cide for  themselves,  under  all  the  facts 
before  them  attending  the  death  of  the 
insured,  whether  it  was  caused  by  his 
willful  exposure  to  an  unnecessary  dan- 
ger or  peril.  Such  light  as  the  court  as 
a  matter  of  law  could  give  them,  on  the 
subject  of  the  willfulness  of  his  conduct, 
or  the  presence  or  absence  of  any  neces- 
sity or  the  character  of  the  necessity 
which  would  justify  him,  might  be  proper, 
but  this  general  reference  to  what  or- 
dinarily people  in  a  particular  locality 
might  think  about  it,  was  clearly  not  so."" 
Travelers'  Ins.  Co.  v.  Seaver.  19  Wall. 
531.    544.   22    L.    Ed.    155. 

16.  "The   two   principal   facts   to    be   es- 


62 


ACCOMMODATION  PAPER. 


Declarations  of  Insured.— The  declarations  of  an  insured  made  contempo- 
raneously or  nearly  so,  with  the  event  which  it  is  alleged  caused  his  death,  from 
a  part  of  the  res  gestae  and  are  admissible  in  evidence. i' 

V.  Presumptions  and  Burden  of  Proof. 

Presumption. The  jury  should  not  presume,   from  the  mere   fact  of  death, 

that  the  insured  was  murdered. ^^  ,        ,   .     .^,^ 

Burden  of  Proof. — The  burden  of  proof  is  upon  the  plamtiti,  to  show,  from 
all  the  evidence,  that  the  death  of  the  insured  was  caused  by  external  violence  and 
accidental   means. ^^ 

ACCOMMODATION  PAPER.— See  the  title  Bills,  Notes  and  Checks. 


tablished  were  external  violence  and  ac- 
cidental means,  producing  death.  The 
first  was  established  when  it  appeared 
that  death  ensued  from  a  pistol  shot 
through  the  heart  of  the  insured.  The 
evidence  on  that  point  was  direct  and 
positive;  as  much  so,  within  the  meaning 
of  the  policy,  as  if  it  had  come  from  one 
who  saw  the  pistol  fired;  and  the  proof, 
on  this  point,  is  none  the  less  direct  and 
positive,  because  supplemented  or 
strengthened  by  evidence  of  a  circum- 
stantial character."  Travelers'  Tns.  Co.  v. 
McConkey,  127  U.  S.  661,  66G.  32  U  Ed. 
308. 

"The  condition  that  direct  and  positive 
proof  must  be  made  of  death  having  been 
caused  by  external,  violent,  and  acciden- 
tal means,  did  not  deprive  the  plaintiff, 
when  making  such  proof,  of  the  benefit 
of  the  rules  of  law  established  for  the 
guidance  of  courts  and  juries  in  the  in- 
vestigation   and    determination    of    facts." 


Travelers'    Ins.    Co.   t'.    McConkey,   127   U. 
S.   661,   667,    32    L.    Ed.    308. 

17.  Travelers'  Ins.  Co.  v.  Mosley,  8 
Wall.  397,  19  L.  Ed.  437.  See  the 
titles  HEARSAY  EVIDENCE;  RES 
GEST.€. 

18.  "The  facts  were  all  before  the  jury 
as  to  the  movements  of  the  insured  on 
the  evening  of  his  death,  and  as  to  the 
condition  of  his  body  and  clothes  when 
he  was  found  dead,  at  a  late  hour  of  the 
night,  upon  the  floor  of  his  office.  While 
it  was  not  to  be  presumed,  as  a  matter 
of  law,  that  the  deceased  took  his  own 
life,  or  that  he  was  murdered,  the  jury 
were  at  liberty  to  draw  such  inferences 
in  respect  to  the  cause  of  death  as,  un- 
der the  settled  rules  of  evidence,  the 
facts  and  circumstances  justified." 
Trjivelers'  Ins.  Co.  v.  McConkey.  127  U. 
S.   661.  667.  32   L.   Ed.   308. 

19.  Travelers'  Ins.  Co.  v.  McConkey, 
127    U.    S.    661,    668,    32    L.    Ed.    308. 


ACCOMPLICES  AND  ACCESSORIES. 

BY    H.   W.    WESTER. 

I.  Who  Are  Accomplices  and  Accessories,  63. 

II.  Aiders  and  Abettors,  63. 

III.  Indictment,  65. 

IV.  Instructions,  65. 

V.   Accomplices  as  Witnesses,  66. 

A.  Competency.  66. 

B.  Credibility,  67. 

C.  Equitable  Right  to  Pardon,  68. 
VI.   Evidence,  69. 

CROSS    REFERENCES. 

See  the  tildes  Conspiracy;  Consolidation  of  Actions;  Criminal  Law; 
Homicide;  Res  Gest.?;  ;  Separate  Trial. 

A.s  to  the  admissions  or  confessions  of  one  accompHce  as  evidence  against  the 
others,  see  the  titles  Confessions;  Declarations  and  Admissions. 

I.    Who  Are  Accomplices  and  Accessories, 

One  does  not  become  an  accomplice  by  not  disclosing  a  homicide  until  some 
time  afterward.^  The  purchaser,  receiver,  or  concealer  of  stolen  property  is  an 
acces.sory  after  the  fact.- 

II.   Aiders  and  Abettors. 

Liable  as  Principals. — It  is  a  well-known  and  familiar  principle  of  criminal 
jurisprudence,  that  he  who  commands,  or  procures  a  crime  to  be  done,  if  it  be 
done,  is  guilty  of  the  crime,  and  the  act  is  his  act.-"^     "This  is  so  true,  that  even 


1.  Bird  V.  United  States,  187  U.  S.  118, 
13S.    47    L.   Ed.    100. 

2.  Accessory  after  the  fact. — Stockwell 
V.  United  States.  13  Wall.  .531,  559,  20 
L.  Ed.  491,  dissenting  opinion  of  Field, 
J.  See  the  title  RECEIVING  STOLEN 
GOODS. 

3.  Liable  as  principals. — United  States 
V.  Gooding,  12  Wheat.  460.  6  L.  Ed.  693; 
Coffin  c'.  United  States.  162  U.  S.  664,  669. 
40    L.    Ed.    1109. 

Violation  of  slave  trade  act. — See  the 
title    SLAVES. 

Upon  an  indictment  under  the  slave 
trade  act  of  the  20th  of  April,  1818,  ch. 
373,  against  the  owner  of  the  ship,  it 
was  not  necessary  that  there  should  be 
any  principal  offender  to  whom  the  de- 
fendant miglit  be  aiding  and  abetting; 
these  terms  in  the  statute  did  not  refer 
to  the  relatiifn  of  principal  and  accessory 
in  cases  of  felony;  both  the  actor,  and 
he  who  aids  and  abets  the  act.  are  con- 
sidered as  principals.  "The  terms  'aid' 
and  'abet,'  used  in  this  statute,  are  not 
used  as  technical  phrases  belonging  to 
the  common  law,  because  the  offense  is 
not  made  a  felony,  and  therefore,  the 
words  require  no  such  interpretation.  The 
statute   punishes    them   as    substantive    of- 


fenses, and  not  as  accessorial,  and  the 
words  are,  therefore,  to  be  understood 
as  in  the  common  parlance,  and  import 
assistance,  co-operation  and  encourage- 
ment." United  States  v.  Gooding,  12 
Wheat.   460.   476,   6   L.    Ed.   693. 

If  done  by  others,  under  the  com- 
mand and  direction  of  the  owner  of  the 
ship,  with  his  approbation  and  for  his 
benefit,  it  is  just  as  much,  in  contempla- 
tion of  law,  his  own  act,  as  if  done  by 
himself.  To  this  extent,  at  least,  the 
maxim  may  be  safely  applied,  qui  facit 
per  alium,  facit  per  se.  And  it  cannot 
be  material,  whether  it  be  done  in  his 
absence  from,  or  his  presence  in.  the 
scene.  Especially,  there  can  be  no  doubt, 
that  the  principle  ought  to  be  applied  with 
increased  force,  where  the  owner  resides 
at  the  same  port  or  neighborhood,  and 
superintends  the  course  of  the  opera- 
tions, even  if  he  does  not  see  them. 
United  States  v.  Gooding.  12  Wheat.  460, 
6   L.    Ed.    693.  « 

Embezzlement  from  national  bank. — 
See,  generally,  the  title  BANKS  AND 
BANKING. 

To  constitute  an  aider  and  abettor  un- 
der §  5209,  it  is  not  necessary  that  the 
accused  be  an  officer  of  the  bank.    Coffin 


(63) 


64 


ACCOMPLICES  AND  ACCESSORIES. 


the  agent  may  be  innocent,  when  the  procurer  or  principal  may  be  convicted  of 
guilt,  as  in  the  case  of  infants  or  idiots,  employed  to  administer  poison. "^  Even 
in  the  highest  crimes,  those  who  are  present,  aiding  and  commanding,  or  abetting, 
are  deemed  principals  -J'  and  if  absent,  those  who  aid  and  command,  or  abet  in 
treason  are  deemed  principals.*^  "In  cases  of  misdemeanors,  all  those  who  are 
concerned  in  aiding  and  abetting,  as  well  as  in  perpetrating  the  act,  are  princi- 
pals."" Under  such  circumstances,  there  is  no  room  for  the  question  of  actual 
constructive  presence  or  absence;  for  whether  present  or  absent,  all  are  princi- 
pals.    They  may  be  indicted  and  punished  accordingly.^ 

Presence  without  Participation. — In  some  instances  where  an  accomplice  is 
present  for  the  purpose  of  aiding  and  abetting  in  a  murder,  but  refrains  from  so 
aiding  and  abetting  because  it  turned  out  not  to  be  necessary  for  the  accomplish- 
ment of  the  common  purpose,  he  is  equally  guilty  as  if  he  had  actively  partici- 
pated by  words  or  acts  of  encouragement. " 

Criminal  Intent. — The  acts  or  words  of  encouragement  and  abetting  must 
have  been  used  by  the  accused  with  the  intention  of  encouraging  and  abetting.^*^ 

Order  of  Superior. — The  fact  that  the  accused  was  acting  under  orders  of 
one  superior  in  authority  would  not  excuse  him  if  there  were  proof  of  guilty 
knowledge  or  participation  on  his  part;^^  but  if  adequate  proof  to  that  effect  is 


V.  United  States,  t62  U.  S.  664,  669,  40 
L.  Ed.  1109.  "It  is  evident  that  no  mat- 
ter how  active  the  co-operation  of  third 
persons  may  have  been  in  the  wrongful 
act  of  a  bank  officer  or  agent,  such  third 
person  is  required  to  be  charged  as  an 
aider  and  abettor  in  the  offense  and 
prosecuted  as  such.  The  primary  object 
of  the  statute  was  to  protect  the  bank 
from  the  acts  of  its  own  servants.  As 
between  officers  and  agents  of  the  bank 
and  third  persons  co-operating  to  de- 
fraud the  bank,  the  statute  contemplates 
that  a  bank  officer  shall  be  treated  as  a 
principal    offender." 

"It  is  clear  that  the  statute  has  been 
violated  if  the  one  charged  with  aiding 
and  abetting  is  shown  to  have  actually 
aided  and  abetted  the  ofificer  of  the  bank 
in  misapplying  its  funds,  no  matter  whom 
the  accused  may  have  ultimately  intended 
to  benefit  by  his  misconduct,  provided,  of 
course,  there  existed  the  intent  to  de- 
fraud enumerated  in  the  act  of  congress." 
Coffin  V.  United  States,  162  U.  S.  664,  667, 
40  L.   Ed.  1109. 

"It  is  wholly  immaterial  that  the  prin- 
cipal offender  should  have  had  several 
intents,  provided  the  principal  and  the 
aider  and  abettor  were  both  actuated  by 
the  criminal  intent  specified  in  the  stat- 
ute." Coffin  V.  United  States.  162  U.  S. 
664,    686,    40    L.    Ed.    1109. 

The  mere  consent  of  the  defendants  to 
the  unlawful  and  criminal  acts  would  not 
be  sufficient  to  sustain  a  verdict  of  guilty. 
The  consent  or  participation  is  required 
to  be  such  *as  contributed  to  the  execu- 
tion of  the  unlawful  and  criminal  acts 
charged  in  the  indictment.  Coffin  v. 
United  States.  162  U.  S.  664.  682,  40  L. 
Ed.   1109. 

4.  Where  agent  is  innocent. — United 
States  V.  Gooding,  12  Wheat.  460,  6  L.  Ed 
693. 


5.  High    crimes — Presence    of   accused. 

— United    States    v.    Gooding,    12    Wheat. 
'  460,  6  L.  Ed.  693;   Boyd  v.  tjnited  States, 
142    U.    S.    450,    35    L.    Ed.    1076. 

6.  Treason — Accused     absent. — United 

States    V.    Gooding.    12    Wheat.    460,    6    L- 
Ed.    693. 

7.  Misdemeanors. — United  States  v. 
Gooding,  12  Wheat.  460.  6  L.  Ed.  693; 
United  States  v.  Mills,  7  Pet.  138,  8  L. 
Ed.    636. 

8.  Question  of  actual  or  constructive 
presence  immaterial. — United  States  r. 
Gooding,  12  Wheat.  460,  477.  6  L.  Ed. 
693. 

9.  Presence  without  participation.— 
Thus,  if  there  had  been  evidence  suffi- 
cient to  show  that  there  had  been  a 
previous  conspiracy  between  R.  and  H. 
to  waylay  and  kill  C.,  H.,  if  present  at 
the  time  of  the  killing,  would  be  guilty, 
even  if  it  was  found  unnecessary  for  him 
to  act.  Hicks  v.  United  States.  150  U. 
S.    442,   450,   37    L.    Ed.    1137. 

10.  Criminal  intent. — Hicks  v.  United 
States,   150  U.   S.   442,  37   L.    Ed.   1137. 

An  instruction  is  erroneous  which  omits 
to  charge  the  jury  that  the  acts  or  words 
of  encouragement  and  abetting  must 
have  been  used  by  the  accused  wi*h  the 
intention  of  encouraging  and  abetting, 
nor  would  such  error  be  cured  by  the 
court  afterwards  saying:  "If  the  de- 
liberate and  intentional  use  of  words  has 
the  effect  to  encourage  one  man  to  kill 
another,  he  who  uttered  these,  words  is 
presumed  by  the  law  to  have  intended 
that  effect,  and  is  responsible  therefor." 
Hicks  V.  United  States.  150  U.  S.  442.  449, 
37   L.   Ed.   1137. 

11.  Order  of  superior — No  defense. — 
Wilborg  V.  United  States.  163  U.  ^  632. 
41    L.    Ed.    289.    See.    generally,    the    titles 


ACCOMPLICES  AND  ACCESSORIES.  65 

not  shown  the  jury  should  find  the  defendant  not  guilty. ^^ 

Trial  before  Principal  Offender. — "The  trial  or  conviction  of  an  actor  is 
not  indispensable  to  furnish  a  right  to  try  the  person  who  aids  or  abets  the  act ; 
since  each,  in  the  eye  of  the  law,  is  deemed  guilty  as  a  principal. "^^ 

III.    Indictment. 

Averment  of  Particular  Acts. — It  is  not  necessary  that  the  particular  act  by 
which   the   aiding  and   abetting  was   consummated   be   specifically   set  out.^* 

"If  the  party  be  only  constructively  a  principal,  as  an  absent  and  distant 
coadjutor  or  leader,  it  may  be  necessary  to  aver  the  fact  accordingly."^^ 

Treason. — In  prosecution  for  aiding  and  commanding,  or  abetting  acts  of 
treason,  from  considerations  peculiar  to  the  offense,  it  may  be  necessary  to  lay 
the  overtacts  precisely  according  to  the  facts,  notwithstanding  the  accused  he 
deemed  principals. ^^ 

Embezzlement. — It  is  not  necessary,  in  charging  the  defendant  with  aiding 
and  abetting  the  cashier  of  a  bank  with  the  misapplication  of  its  funds,  to  charge 
that  the  defendant  then  and  there  knew  that  such  person  was  cashier.  Where 
the  acts  charged  against  the  cashier  could  only  be  committed  by  him  by  virtue 
of  his  official  relation  to  the  bank,  the  acts  charged  against  the  defendant  like- 
wise could  only  be  committed  by  him  in  his  official  capacity,  both  being  alleged  to 
be  officers  of  the  same  corporation.  The  knowledge  that  each  had  of  the  official 
relation  of  the  other  is  necessarily  implied  in  the  coexistence  of  this  official 
relation  on  the  part  of  both  towards  the  same  corporation.^'''  An  indictment 
charging  a  violation  of  the  statute  relating  to  embezzlement  from  national 
banks  is  not  defective  in  that  in  none  of  the  counts  is  it  asserted  that  the  accused 
were  oificers  of  the  bank  or  occupied  any  specific  relation  to  the  bank  which  made 
aiding  and  abetting  possible. ^'^ 

Robbinaf  the  Mails. — An  indictment  founded  on  the  statute  for  ad\ising,  pro- 
curing and  assisting  a  mail  carrier  to  rob  the  mail,  ought  to  set  forth  or  aver 
that  the  said  carrier  did  in  fact  commit  the  offense  of  robbing  the  mail,  but  it  is 
not  necessary  that  there  be  a  distinct  substantive  averment  of  that  fact.^^  The 
offense  being  secondary  in  its  character  it  must  sufficiently  appear  upon  the  in- 
dictment, that  the  offense  alleged  against  the  chief  actor  had  been  committed. 2*^ 

IV.  Instructions. 
In  the  prosecution  of  accomplices  and  accessories,  the  general  rules  relative  to 

MASTER      AND       SERVANT;      MILI-  principal.— United    States    v.    Gooding.    12 

TARY    LAW;    PUBLIC    OFFICERS.  Wheat.    460,    6    L.    Ed.    693. 

Two  men  who  were  the  mates  of  a  16.  Treason. — United  States  v.  Good- 
vessel  proceeded  on  a  voyage  assisting  ing,  12  Wheat.  460,  6  L.  Ed.  693.  See 
an    unlawful    military    expedition    or    en-  the    title   TREASON. 

terprise,  under  the   captain's  orders.    This  17.      Embezzlement— Knowledge    as     to 

would    not    excuse    them    if     there     were  identity     of     cashier.— United      States      v. 

proof  of  guilty  knowledge  or  participation  Northway.    120   U    S     .327.   333    30   L     Ed. 

on    their    part    when    they    left    the    port.  664.     See  the  title  BANKS  AND  BANK- 

Wiborg   V.    United    States,    163    U.    S.   632,  j^q 

660,    41    L.    Ed.    289.  \o        t-     u        1             .      » 

12.    Failure   to    show   criminal   intent.-  ^^:  ,  Embezzlement-Averment     as      to 

Wiborg   z.    United    States.    163    U.    S.    632.        °?^^;^J    If'.         1«o^T^''c"?A~.^°?"  t:"^' 
41    L     Ed     •''89  Lnited    States.    162    U.    S.    664,    40    L.    Ed. 

13.'   Triaf  before     principal     offender.-  'T'.q^?^"t;- J'  ^Vi"'*^'^.-^^'''^'^  ^^\y-.  ^^• 

United   States  r.   Gooding.  12   Wheat.   460.  Jf     39    L.    Ed     481.    distinguishing   United 

476     6    L     Ed     693  States    v.    Northway,    120    U.    S.    327,    333, 

14.  Averment     of      particular      acts.—  ^^   ^-    ^^-   '^*^*- 

United   States  7'.   Gooding,   12  Wheat.  460,  19-     Robbing    the    mails— Averment    as 

6  L.   Ed.   693;   United   States   v.   Simmons,  to     office     of     carrier.— United     States     v. 

96  U.  S.  360,  363.  24  L.   Ed.  819;   Coffin  v.  Mills.    7    Pet.    138.   8    L.    Ed.   636.      See    the 

United   States,   156   U.    S.   432,   448.   39    L.  title    POSTAL    LAWS. 

Ed.    481,    distinguishing    Evans    7'.    United  20.  Robbing  the  mails — Averment  as  to 

States,  1.53  U.   S.   584.  38  L.   Ed.  831.  commitment   of   offense— United    States  w. 

15.  Where  party  is  only  a  constructive  Mills,  7  Pet.   138,  8   L.   Ed.   636. 

1  U  S  Enc— 5 


66 


ACCOMPLICES  AND  ACCESSORIES. 


instructions   are   applicable  ;2i    the   instruction   must  be   founded   on   evidence  ;22 
the  defendant  cannot  complain  of  an  instruction  which  it  not  prejudicial.23 

V.    Accomplices  as  Witnesses. 

A.  Competency. — "Accomplices  in  guilt,  not  previously  convicted  of  an  in- 
famous crime,  when  separately  tried  are  competent  witnesses  for  or  against 
each  other. "2^'  Where  two  persons  are  jointly  indicted  for  an  offense  committed 
ac^ainst  the  United  States  and  are  tried  separately,  it  is  not  competent  for  the 
person  first  tried  to  call  the  other  as  a  witness  in  his  behalf. ^^  A  different  rule 
o-enerallv  prevails  where  such  witness  is  introduced  by  the  prosecution. ^e  "Such 
offenders  everywhere  are  competent  witnesses  if  they  see  fit  voluntarily  to  appear 


21.  See    the    title    INSTRUCTIONS. 

22.  Must    be    founded     on     evidence. — 

Bird  V.  United  States,  187  U.  S.  118.  132, 
47  L.  Ed.  100;  Hicks  V.  United  States. 
150  U.   S.    442,   450,   37   L.    Ed.    1137. 

23.  Harmless  error. — Dunbar  v.  United 
States,   156   U.    S.    185,   200,   39    L.   Ed.   390. 

"Of  course  the  defendant  cannot  com- 
plain of  an  instruction  that  no  conviction 
can  be  had  on  any  count  supported  by 
only  the  uncorroborated  testimony  of  an 
accomplice."  Dunbar  v.  United  States, 
156  U.  S.  185.  200.  39  L.  Ed.  390.  See  the 
title   APPEAL  AND   ERROR. 

24.  Accomplices  separately  tried. — 
Whiskey  Cases,  99  U.  S.  594,  25  L.  Ed. 
399. 

25.  Jointly  indicted  and  separately  tried. 
—United  States  v.  Reid.  12  How.  361,  13 
L.    Ed.    1023. 

Two  persons  were  jointly  indicted  for 
a  murder  committed  upon  the  high  seas, 
and  tried  separately;  the  person  first 
tried  attempted  to  call  the  other  as  a 
witness  in  his  behalf.  The  trial  took 
place  in  Virginia,  and  the  evidence  would 
have  been  competent  under  a  1-aw  of  Vir- 
ginia passed  in  1849.  But  the  34th  sec- 
tion of  the  Judiciary  Act  of  1789.  declar- 
ing that  the  laws  of  the  several  states 
shall  be  regarded  as  rules  of  decision  in 
trials  at  common  law  in  the  courts  of  the 
United  States,  meant  only  to  include  civil 
cases  at  common  law,  and  not  criminal 
offenses  against  the  United  States.  The 
law  by  which  the  admissibility  of  testi- 
mony in  criminal  cases  must  be  de- 
termined, is  the  law  of  the  state,  as  it 
was  when  the  courts  of  the  United  States 
were  estnblished  by  the  Judiciary  Act  of 
1789.  United  States  v.  Reid.  12  How. 
361.   13   L.   Ed.   1023. 

26.  United  States  v.  Reid,  12  How.  361, 
13    L.    Ed.    1023. 

In  Benson  v.  United  States,  146  U.  S. 
325.  36  L.  Ed.  991,  it  was  held,  that  when 
two  parties  were  indicted  jointly  and 
tried  separately,  one  might  be  called  as 
a  witness  by  the  government  against  the 
other. 

"Most  of  the  authors  on  evidence  evi- 
dently adopt  the  view  that  the  testimony 
is  admissible  when  offered  by  the  state. 
Although  but  little  authority  is  adduced 
to  support  their  statements,  and  the  doc- 


trine is  not  very  clearly  or  positively 
stated  in  some  instances,  still  such  a 
general  concurrence  of  favorable  expres- 
sion has  much  weight  upon  the  question. 
It  goes  far  to  show  the  common  opinion 
and  practice.  Hawkins'  P.  C,  book  2, 
c.  46,  §  90;  1  Hale's  P.  C.  305;  2  Starkie's 
Ev.  11;  Roscoe's  Cr.  Ev.,  9th.  Ed.,  130, 
140;  2  Russell's  Crimes,  957.  Mr.  Whar- 
ton says:  'An  accomplice  is  a  competent 
witness  for  the  prosecution,  although  his 
expectation  of  pardon  depends  upon  the 
defendant's  conviction,  and  although  he 
is  a  codefendant,  provided  in  the  latter 
case  his  trial  is  severed  from  that  of  the 
defendant  against  whom  he  is  offered.' 
Whart.  Cr.  Ev.,  8th.  Ed.,  §  439.  Mr. 
Greenleaf  states  the  same  rule.  He  says: 
'The  usual  course  is,  to  leave  out  of  the 
indictment  those  who  are  called  as  wit- 
nesses, but  it  makes  no  difiference  as  to 
the  admissibility  of  an  accomplice, 
whether  he  is  indicted  or  not,  if  he  has 
not  been  put  on  his  trial  at  the  same  time 
with  his  companions  in  guilt.  1  Greenl. 
Ev..  §  379.' "  Benson  zk  United  States. 
146  U.    S.    325,   334,   36    L.    Ed.   991. 

In  Benson  v.  United  States,  146  U.  S. 
325.  334.  36  L.  Ed.  991.  the  court  said: 
"But  it  is  said  that  this  court  has  already 
practically  decided  this  question  in  the 
case  of  United  States  v.  Reid,  12  How. 
361,  13  L.  Ed.  1023.  The  precise  ques- 
tion in  that  case  was  as  to  the  right  of  the 
defendant  to  call  his  codefendant,  and 
not  that  of  the  government  to  call  the 
codefendant,  and  a  distinction  has  been 
recognized  between  the  two  cases.  It  is 
true  that  the  reasons  given  for  the  ex- 
clusion of  the  witness  in  one  are  largely 
the  same  as  those  given  for  his  exclusion 
in  the  other,  to  wit,  interest  and  being 
party  to  the  record;  but  public  policy  is 
also  urared  in  favor  of  the  exclusion  of 
one  defendant  as  a  witness  for  his  co- 
defendant,  for  each  would  try  to  swear 
the  other  out  of  the  charge.  And  as  the 
distinction  prevailed,  whether  founded  on 
satisfactory  reasons  or  not,  it  is  sufficient 
to  justify  us  in  holding  that  that  case  is 
not  decisive  of  this.  Further,  the  stress 
in  that  case  was  not  on  this  question.  The 
defendant  was  indicted  and  tried  in  the 
circuit  court  of  the  United  States  for  the 
district   of   Virginia.      A   statute   had   been 


ACCOMPLICES  AXD  ACCESSORIES. 


67 


and  testify."2'  Offenders  of  the  kind  are  not  admitted  to  testify  as  of  course,  and 
sufficient  authority  exists  for  saying  that  in  the  practice  of  the  EngHsh  court  it  is 
usual  that  a  motion  to  the  court  is  made  for  the  purpose,  and  that  the  court,  in 
view  of  all  the  circumstances,  will  admit  or  disallow  the  evidence  as  will  best  pro- 
mote the  ends  of  public  justice.  Good  reasons  exist  to  suppose  that  the  same 
course  is  pursued  in  the  courts  of  some  of  the  states,  where  the  English  practice 
seems  to  have  been  adopted  without  much  modification. ^s  But  the  course  of 
proceeding  in  the  courts  of  many  of  the  states  is  quite  different  from  that  just 
described,  the  rule  being  that  the  court  will  not  advise  the  attorney  general  how 
he  shall  conduct  a  criminal  prosecution.  Consequently,  it  is  regarded  as  the 
province  of  the  public  prosecutor  and  not  of  the  court  to  determine  whether  or 
not  an  accomplice,  who  is  willipg  to  criminate  himself  and  his  associates  in  guilt, 
shall  be  called  and  examined  for  the  state. -^ 

B.  Credibility. — No  conviction   should  be   had  on   the  uncorroborated  testi- 
mony of  an  accomplice.^^' 

C.  Equitable  Right  to  Pardon — General  Statement. — "Where  the  case  is 

usage   and   practice   of    the    courts    allow." 
Whiskey    Cases,    99    U.    S.    594.    604,    25    L. 


passed  in  that  state,  in  terms  permitting 
-a  codefendant  when  not  jointly  tried  to 
testify  in  favor  of  the  one  on  trial,  and 
tJsat  statute  was  invoked  as  securing  the 
competency  of  the  witness,  and  the  ques- 
tion which  was  discussed  was  whether 
the  existing  statute  law  of  Virginia  con- 
trolled, and  it  was  held,  that  it  did  not, 
and  that  the  question  was  to  be  de- 
termined by  the  common  law  as  it  stood 
in  Virginia  at  the  date  of  the  Judiciary 
Act  of  1789.  It  was  assumed  both  in 
this  court  and  in  the  circuit  court,  .3 
Hughes  509,  o.39.  540.  that  by  that  law 
the  codefendant  was  incompetent.  It 
was  not  affirmed  that  such  was  the  rule 
m  the  mother  country  or  in  the  other 
states  of  the  Union.  We  do  not  feel 
ourselves,  therefore,  precluded  by  that 
case  from  examining  this  question  in  the 
light  of  general  authority  and  sound  rea- 
son." 

27.  Voluntary  appearance. — Whiskej' 
Cases,  99  U.  S.   594,  :.'.'-.  L.    Ed.   399. 

28.  Manner  of  determining  compe- 
tency.— Whiskey  Cases.  99  U.  S.  594.  25 
L.    Ed.    .399. 

29.  Whiskey  Cases,  99  U.  S.  594,  603. 
^5  L.   Ed.   399'. 

"Of  all  others,  the  prosecutor  is  best 
qualified  to  determine  that  question,  as 
he  alone  is  supposed  to  know  what  other 
evidence  can  be  adduced  to  prove  the 
criminal  charge.  Applications  of  the  kind 
are  not  always  to  be  granted,  and  in  or- 
der to  acquire  the  information  necessary 
to  determine  the  question,  the  public 
prosecutor  will  grant  the  accomplice  an 
interview,  with  the  understanding  that 
any  communications  he  may  make  to  the 
prosecutor  will  be  strictly  confidential. 
Interviews  for  the  purpose  mentioned  are 
for  mutual  explanation,  and  do  not  abso- 
lutely commit  either  party;  but  if  the  ac- 
complice is  subsequently  called  and  ex- 
amined, he  is  equally  entitled  to  a 
recommendation  for  executive  clemency. 
Promise  of  pardon  is  never  given  in  such 
an  interview,  nor  any  inducement  held 
out    beyond    what    the     before-mentioned 


Ed.    399. 
80.   Uncorroborated  testimony. — Reagan 

V.  United  States.  157  U.  S.  301.  311,  39 
L.  Ed.  709;  Grimm  v.  United  States.  155 
U.    S.    604.   39    L.    Ed.   550. 

On  behalf  of  the  defendant  it  is  the 
duty  of  the  court  to  caution  the  jury  not 
to  convict  upon  the  uncorroborated  testi- 
mony of  an  accomplice.  Indeed,  accord- 
ing to  some  authorities,  it  should  per- 
emptorily instruct  that  no  verdict  of 
guilty  can  be  founded  on  such  un- 
corroborated testimony,  and  this  because 
the  inducements  to  falsehood  on  the  part 
of  an  accomplice  are  so  great.  Reagan 
r.  United  States.  157  U.  S.  301,  311,  39 
L.    Ed.    709. 

"An  ofificial,  suspecting  that  the  defend- 
ant was  engaged  in  a  business  offensive 
to  good  morals,  sought  information  di- 
rectly from  him.  and  the  defendant, 
responding  thereto,  violated  a  law  of  the 
United  States  by  using  the  mails  to  con- 
vey such  information,  and  he  cannot 
plead  in  defense  that  he  would  not  have 
violated  the  law  if  inquiry  bad  not  beea 
made  of  him  by  such  government  official. 
The  authorities  in  support  of  this  propo- 
sition are  many  and  well  considered, 
.^mong  others  reference  may  be  made  to 
cases  of  Bates  v.  United  States,  10  Fed, 
Rep.  92.  and  the  authorities  collected  in 
a  note  of  Mr.  Wharton,  on  page  97; 
United  States  v.  Moore.  19  Fed.  Rep.  39; 
United  States  v.  Wight.  38  Fed.  Rep! 
106,  in  which  the  opinion  was  delivered 
by  Mr.  Justice  Brown,  then  district 
judge,  and  concurred  in  by  Mr.  Justice 
Jackson,  then  circuit  judge; "United  States 
V.  Dorsey.  40  Fed.  Rep.  752;  Common- 
wealth 7'.  Baker.  155  Mass.  287.  in  which 
the  court  held,  that  one  who  goes  to  a 
house  alleged  to  be  kept  for  illegal  gam- 
ing, and  engages  in  such  gaming  himself 
for  the  express  purpose  of  appearing  as 
a  witness  for  the  government  against  the 
proprietor,  is  not  an  accomplice,  and  the 
case    is    not    subject   to    the    rule    that    no 


68 


ACCOMPLICES  AND  ACCESSORIES. 


not  within  any  statute,  the  general  rule  is  that  if  an  accomplice,  when  examined 
as  a  witness  by  the, public  prosecutor,  discloses  fully  and  fairly  the  guilt  of  him- 
self and  his  associates,  he  will  not  be  prosecuted  for  the  offense  disclosed  ;3i  but 
it  is  equally  clear  that  he  cannot  by  law  plead  such  facts  in  bar  of  any  indictment 
against  him,32  ^or  avail  himself  of  it  upon  his  trial,^^  for  it  is  merely  an  equitable 
title  to  the  mercy  of  the  executive,^*  and  can  only  come  before  the  court  by  way 
of  application  to  put  off  the  trial  in  order  to  give  the  prisoner  time  to  apply  to 
the  executive  for  the  protection  which  immemorial  usage  concedes  that  he  is 
entitled  to  at  the  hands  of  the  executive.^s 

Origin  of  the  Custom. — Beyond  doubt,  some  of  the  elements  of  the  usage 
had  their  origin  in  the  ancient  and  obsolute  practice  called  approvement.-'*' 

Abolition  of  Ancient  Custom. — But  great  inconvenience  arose  from  the 
practice  of  approvement,  in  consequence  of  which  the  present  mode  of  proceed- 
ing was  adopted  in  analogy  to  that  law.-'^'^ 

Failure  to  Comply  with  Conditions. — Accomplices  having  refused  to  com- 
ply with   the  conditions   annexed   to   his   equitable   right,  refusing  to  testify,  or 


conviction  should  be  had  on  the  uncor- 
roborated testimony  of  an  accomplice.", 
Grimm  v.  United  States,  156  U.  S.  604,  39 
L.    Ed.    550. 

31.  Immunity. — Whiskey  Cases.  99  U. 
S.  594,  2'-,  L.  Kd.  399.  See,  generally,  the 
title  PARDON. 

?2.  Plea  of  turning  state's  evidence  as  a 
defense. — Ex  parte  Wells.  IS  How.  307, 
15  L.  Ed.  421;  Whiskev  Cases,  99  U.  S. 
694.    25    L.    Ed.    399. 

33.  Immunity  during  trial. — Ex  parte 
Wells,  18  How.  307,  15  L.  Ed.  421; 
Whiskey  Cases,  99  U.  S.  594.  25  L.  Ed. 
399. 

34.  Merely  an  equitable  right. — Whiskey 
Cases,    99    U.    S.    .'■)94,    25    L.    Kd.    399. 

35.  Application  to  postpone  trial. — 
Whiskev  Cases.  99  U.  S.  594,  25  L.  Ed. 
399;  Ex  parte  Wells,  18  How.  307,  15  L. 
Ed.    421. 

36.  Approvement. — Whiskey  Cases,  99 
U.   S.   594,  25   L.   Ed.  399. 

The  doctrine  of  approvement  may  be 
briefly  explained  as  follows:  "When  a 
person  indicted  of  treason  or  felony  was 
arraigned,  he  might  confess  the  charge 
before  the  plea  pleaded,  and  appeal,  or 
accuse  another  as  his  accomplice  of  the 
same  crime,  in  order  to  obtain  his  pardon. 
Such  approvement  was  only  allowed  in 
capital  offenses,  and  was  equivalent  to 
indictment,  as  the  appellee  was  equally 
required  to  answer  to  the  charge;  and  if 
proved  guilty,  the  judgment  of  the  law 
■was  against  him,  and  the  approver,  so 
called,  was  entitled  to  his  pardon  ex 
debito  justitise.  On  the  other  hand,  if  the 
appellee  was  acquitted,  the  judgment  was 
that  the  approver  should  be  condemned. 
4  Bla.  Com.  330."  Whiskey  Cases,  99  U. 
S.    594,   599.    25   L.    Ed.    399. 

37.  Approvement  superseded. — Whiskey 
Cases,  99  U.   S.   594,  600,   25   L.   Ed.   399. 

"Centuries  have  elapsed  since  the 
judicial  usage  referred  to  was  substituted 
for  the  ancient  practice  of  approvement, 
and  experience  shoM^s  that  throughout 
that  whole  period  it  has  proved,  both  here 
and     in    the     country     where     it     had     its 


origin,  to  be  a  proper  and  satisfactory 
protection  to  the  accomplice  in  all  cases 
where  he  acts  in  good  faith,  and  testifies 
fairlv  and  fully  to  the  whole  truth. '^ 
Whiskey  Cases,  99  U.  S.  594.  25  L.  Ed.  399. 

Proceeding. — Prosecutors  in  such  a 
case  should  explain  to  the  accomplice 
that  he  is  not  obliged  to  criminate  him- 
self, and  inform  him  just  what  he  may 
reasonably  expect  in  case  he  acts  in  good 
faith,  and  testifies  fully  and  fairly  as  to 
his  own  acts  in  the  case,  and  those  of  his 
associates.  When  he  fulfills  those  con- 
ditions he  is  equitably  entitled  to  a  par- 
don, and  the  prosecutor,  and  the  court  if 
need  be,  when  fully  informed  of  the  facts, 
will  join  in  such  a  recommendation. 
Whiskey  Cases.  99  U.  S.  594,  604,  25  L. 
Ed.    399. 

Duty  of  prosecutor. — Modifications  of 
the  practice  doubtless  exist  in  jurisdic- 
tions where  the  power  of  pardon  does 
not  exist  prior  to  conviction;  but  every 
embarrassment  of  that  sort  may  be  re- 
moved by  the  prosecutor,  as  in  the  ab- 
sence of  any  legislatiA^e  prohibition  he 
may  nol.  pros,  the  indictment  if  pending, 
or  advise  the  prisoner  to  plead  guilty,  he, 
the  prisoner,  reserving  the  right  to  re- 
tract his  plea  and  plead  over  to  the 
merits  if  his  application  for  pardon  shall 
be  unsuccessful.  Whiskey  Cases,  99  U. 
S.    594,   604.    25   L.    Ed.    399. 

Where  power  to  pardon  exists  before 
conviction, — Where  the  power  of  pardon 
exists  before  conviction  as  well  as  after, 
no  such  difficulties  can  arise,  as  the 
prisoner,  if  an  attempt  is  made  to  put 
him  to  trial  in  spite  of  his  equitable 
right  to  pardon,  may  move  that  the  trial 
he  postponed,  and  may  support  his  mo- 
tion by  his  own  affidavit,  when  the  court 
may  properly  insist  to  be  informed  of 
all  the  circumstances;  Power  under  such 
circumstances  is  vested  in  the  court  in  a 
proper  case  to  put  off  the  trial  as  long  as 
mav  be  necessary,  in  order  that  the  case 
of  the  prisoner  may  be  presented  to  the 
executive  for  decision.  Whiskey  Cases^ 
99    U.    S.    594,    604,   25   L.    Ed.    399. 


ACCOUNT  RENirm  OR  STATED. 


w 


testifying  falsely  are  to  be  tried  and  may  be  convicted  upon  their  own  confes- 
sion.^^ 

VI.     Evidence. 

In  a  prosecution  for  aiding  and  abetting  the  proof  of  the  command  or  pro- 
curement, may  be  direct  or  indirect,  positive  or  circumstantial ;  but  this  is  matter 
for  the  consideration  of  the  jury,  and  not  of  legal  competency.^^ 

ACCORD  AND  SATISFACTION, 

CROSS    REFERENCES. 

See  the  titles  Accounts  and  Accounting;  Arbitration  and  Award;  Com- 
promise; Contracts;  Judgments  and  Decrees;  Limitation  of  Actions 
AND  Adverse  Possession;  Novation;  Payment;  ReeEase;  Rescission,  Can- 
cellation  AND  Reformation  ;  Tendei^. 

As  to  plea  of  accord  and  satisfaction  to  action  on  appeal  bond,  see  the  title 
Appeal  and  Error.  As  to  satisfaction  of  judgments,  see  the  title  Judgments 
and  Decrees. 

Definition. — An  agreement  between  two  persons,  one  of  whom  has  a  right  of 
action  against  the  other,  that  the  latter  should  do  or  give,  and  the  former  accept, 
something  in  satisfaction  of  the  right  of  action  different  from,  and  usually  less 
than,  what  might  be  legally  enforced ;  when  the  agreement  is  executed,  and  satis- 
faction has  been  made,  it  is  called  "accord  and  satisfaction."^ 

Setting  Aside  for  Mistake. — An  accord  and  satisfaction  may  be  set  aside 
if   the   parties    were   mutually   mistaken. ^ 

Plea  of  Accord  and  Satisfaction. — It  has  been  held,  that  accord  cannot  be 
set  up  as  a  defense  in  the  same  plea  with  other  defenses.^ 

ACCOUNT  RENDER  OR  STATED.— See  the  title  Accounts  and  Ac- 
counting. 


38.  Failure   to   comply   with   conditions. 

—Whiskey    Cases,    99    U.    S-    594.    605,    25 
L.    Ed.    399. 

39.  Evidence. — United  States  v.  Good- 
ing,  12  Wheat.   460.   6   L.    Ed.   693. 

1.    Black's    Law    Diet.    16. 

The  new  agreement  must  be  completely 
carried  out  before  it  amounts  to  an  ac- 
cord and  satisfaction.  Memphis  v. 
Brown.   20   Wall.   289,   22   L.    Ed.   264. 

The  discharge  of  a  contract  in  a  differ- 
ent thing  from  that  for  which  the  con- 
tract provides,  necessarily  is  an  accord 
and  satisfaction.  Sheeby  v.  Mandeville. 
6  Cranch  250,  253,  263,  3  L.  Ed.  215;  Very 
V.  Levy,  13  How.  345,  357,  14  L.  Ed.  173; 
San  Juan  v.  St.  John's  Gas  Co.,  195  U. 
S.   510,   521,  49   L.   Ed.  299. 

A  note,  given  and  received  for  and  in 
discharge  of  an  open  account,  operates  as 
an  accord  and  satisfaction  as  to  the  ac- 
count. Sheehy  v.  Mandeville,  6  Cranch 
250,  252,   3  L.   Ed.   215. 

The  holder  of  treasury  notes,  payable 
three  years  after  date,  which  were  issued 
under  the  authority  of  an  act  of  July  17, 
1861  (12  Stat.  259),  demanded  payment  in 
gold  of  the  principal  and  interest  due 
thereon.  The  secretary  of  the  treasury 
refused  payment  in  that  medium,  but 
oflfered  it  in  legal  tender  notes.  The 
holder,    under    protest,    received     the    of- 


fered payment  in  full  discharge  of  ttie 
notes,  surrendered  them  to  be  canceled, 
and  brought  an  action  against  the  United 
States  to  recover  the  difference  in  the 
market  value  of  gold  and  of  legal  tender 
notes  at  the  date  of  such  payment.  Held, 
that  by  accepting  the  medium  offered, 
and  surrendering  the  treasury  notes,  the 
holder  waived  all  claim,  independently 
of  the  question  whether  or  not  that 
medium  was  a  legal  tender  in  payment  of 
them.  San  Juan  v.  St.  John's  Gas  Co., 
195  U.  S.  510,  521,  49  L-  Ed.  299;  Savage 
V.  United  States,  92  U.  S.  382,  23  L.  Ed. 
660. 

2.  Horn  v.  Detroit  Dry  Dock  Co..  150 
U.  S.  610,  37  L.   Ed.   1199. 

Pleading  mistake. — "While  an  accord 
and  satisfaction  may  be  set  aside,  if  it 
is  shown  that  the  parties  to  the  trans- 
action were  mutually  mistaken  in  regard 
to  the  material  facts,  such  mistake  must 
be  set  up  by  proper  pleading.  It  is  not 
available  where  it  is  neither  averred  in 
the  bill,  nor  referred  to  in  a  plea  in  bar 
and  a  general  replication  thereto,  which 
merely  puts  in  issue  the  truth  of  the 
plea."  Horn  v.  Detroit  Dry  Dock  Co., 
150  U.  S.  610,  37  L.  Ed.  1199.  See  the 
titles  MISTAKE  AND  ACCIDENT; 
RESCISSION.  CANCELLATION  AND 
REFOT^MATION. 

3.  The    plea    of    the     state    of    Massa- 


ACCOUNTS  AND  ACCOUNTING. 

BY    H.    W.    WESTER. 

I.   Action  of  Account,  70. 
n.   Account  Stated,  71. 

A.  What  Constitutes.  71. 

B.  Conclusiveness,  72. 

C.  Questions  of  Law  and  Fact,  72. 

D.  fmpeacbment — Grounds,   72. 

ni.   Jurisdiction,  12>. 
IV.    Pleading  and  Practice,  74. 
V.  Evidence,  74. 

CROSS    REFERENCES. 

See  the  titles  Appeal  and  Error;  Army  and  Navy;  Attorney  and  Client; 
Banks  AND  Banking;  Corporations;  Creditors'  Suits ;  Documentary  Evi- 
dence; Joint  Tenants  and  Tenants  in  Common;  Laches;  Landlord  and 
Tenant;  Limitation  oe  Actions  and  Adverse  Possession;  Mines  and  Min- 
erals; Municipal  Corporations;  Officers  and  Agents  oe  Private  Corpo- 
rations; Payment;  Postal  Laws;  Public  Lands;  Restraint  of  Trade; 
Schools;  Set-Off,  Recoupment  and  Counterclaim;  Stock  and  Stock- 
holders; Trees  and  Timber;  Trusts  and  Trustees. 

As  to  the  illegality  of  the  transaction  as  a  defense  to  an  action  on  account,  see 
tiie  title  Illegal  Contracts.  As  to  interest  on  account,  see  the  title  Interest. 
As  to  the  mode  by  which  a  court  of  chancery  ascertains  the  amount  due,  see  the 
titles  Issues  to  Jury;  Reference.  As  to  a  promissory  note  given  and  re- 
ceived for  and  in  discharge  of  an  open  account  as  constituting  a  bar  to  an  action 
on  the  open  account,  see  the  title  Payment.  As  to  accounts  between  partners, 
see  the  title  Partnership.  As  to  accounting  in  patent  right  cases,  see  the  title 
Patents.  As  to  accounting  between  states,  see  the  title  State.  As  to  account- 
ing by  trustees,  see  the  title  Trusts  and  Trustees.  A.s  to  accounting  by  executors 
and  administrators,  see  the  title  Executors  and  Administrators.  As  to  treas- 
ury statements,  .see  the  title  United  States.  As  to  department  accounts,  see 
the  title  United  States. 

I.    Action  of  Account. 

The  action  of  account  is  almost  obsolete.^ 

ch'osetts,  in  a  suit  against  her  by  the  that  time,  in  bar  to  the  whole  bill  of  the 
state  of  Rhode  Island  for  the  settlement  complainant.  The  court  held,  that  this 
of  a  boundary,  after  setting  forth  various  plea  was  twofold:  1.  An  accord  and 
proceedings  which  preceded  and  followed  compromise  of  a  disputed  right;  2. 
the  execution  of  certain  agreements  with  Prescription,  or  an  unmolested  posses- 
Rhode  Island,  conducing  to  show  the  sion  from  the  time  of  the  agreement, 
obligatory  and  conclusive  eflfect  of  those  These  two  defenses  are  entirely  distinct 
agreements  upon  both  states,  as  an  ac-  and  separate,  and  depend  upon  different 
cord  and  compromise  of  a  disputed  right,  principles;  here  are  two  defenses  in  the 
proceeded  to  aver,  that  Massachusetts  same  plea,  contrary  to  the  established 
had  occupied  and  exercised  jurisdiction  rules  of  pleading;  the  accord  and  com- 
and  sovereignty,  according  to  the  agree-  promise,  and  the  title  by  prescription 
ment,  to  the  present  time;  and  then  set  united  in  this  plea,  render  it  multifarious; 
up  as  a  defense,  that  the  state  of  and  it  ought  to  be  overruled  on  this  ac- 
Massachusetts  had  occupied  and  exercised  count.  Rhode  Island  v.  Massachusetts, 
jurisdiction  over  the  territory  from  that  14  Pet.  210,  10  L.  Ed.  423.  See  the  title' 
time  up  to  the  present;  the  defendants  MULTIFARIOUSNESS. 
then  pleaded  the  agreements  of  1701  and  1.  Action  of  account  almost  obsolete. 
1718,     and     unmolested     possession     from  — Ivinson   v.    Hutton,    98   U.    S.    79,   25    l! 

(70) 


ACCOUNTS  AND  ACCOUNTING. 


71 


II.      Account  Stated. 

A.  V/hat  Constitutes. — An  account  rendered  becomes  an  account  stated,  un- 
less objected  to  within  a  reasonable  time. 2  And  where  a  party  to  a  stated  ac- 
count, who  is  under  a  duty,  from  the  usages  of  business  or  otherwise,  to  examine 
it  within  a  reasonable  time  after  having  an  opportunity  to  do  so,  and  give  timely 
notice  of  his  objections  thereto,  neglects  altogether  to  make  such  examination 
himself,  or  to  have  it  made,  in  good  faith,  by  another  for  him;  by  reason  of 
which  negligence,  the  other  party,  relying  upon  the  account  as  having  been  ac- 
quiesced in  or  approved,  has  failed  to  take  steps  for  his  protection  which  he  could 
and  would  have  taken  had  such  notice  been  given  the  former  may  be  estopped  by 
his  conduct  from  questioning  its  conclusiveness.^  Or  if  certain  items  in  an  ac- 
count under  such  circumstances  are  objected  to  within  a  reasonable  time,  and 
others  not,  the  latter  are  to  be  regarded  as  covered  by  such  an  admission.-*  The 
mere  rendering  an  account,  however,  does  not  make  it  a  stated  account;  but  if 
the  other  party  receives  it,  admits  the  correctness  of  the  items,  claims  the  bal- 
ance, or  offers  to  pay  it,  as  it  may  be  in  his  favor  or  against  him,  then  it  becomes 
a  stated  account.^  A  statement  which  is  only  partial,  made  up  from  imperfect 
sources,  the  correctness  of  which  is  disputed  by  the  defendant,  does  not  con-- 
stitute  such  an  account  stated  as  to  conclude  the  defendant." 

Demand  Founded  on  Executed  Contract. — A  demand  cannot  be  regarded 
as  an  open  account  where  there  is  a  contract  which  is  the  foundation  of  the  claim 
and  which,  though  not  fulfilled  according  to  its  letter,  either  as  to  the  time  or 
place  of  delivery,  yet  with  the  qualifications  which  the  law  under  such  circum- 
stances  imposes,  determines   the  respective  liabilities   of  the  parties.'^ 

Bank  Book. — As  to  whether  a  bank  book,  balanced  and  returned  constitutes 
an  account  stated,  see  the  title  Banks  and  Banking. 

An  Account  Closed,  by  the  cessation  of  dealings  between  the  parties,  is  not 
an  account  stated.^ 

Submission. — In  order   to  constitute  an  account  stated  between  individuals 


Ed.   66;   James   v.    Browne,   1    Dall.   339,   1 
L.    Ed.    165. 

"The  action  of  account  has,  we  know, 
been  almost  disused  in  England  for  a 
century  past;  but  this  is  owing  to  the 
greater  facility  of  obtaining  settlements 
in  the  court  of  chancery,  by  a  reference 
to  the  masters;  and  there  are  many  cases 
in  the  books  which  point  out  the  ex- 
pediency and  propriety  of  the  interfer- 
ence of  that  court."  James  v.  Browne.  1 
Dall.    339,    340,    1    L.    Ed.    16.5. 

2.  Account  rendered. — Wiggins  v.  Burk- 
ham,  10  Wall.  129.  19  L.  Ed.  884;  Free- 
land  V.  Heron.  7  Cranch  147,  3  L.  Ed. 
297;  Standard  Oil  Co.  v.  Van  Etten,  107 
U.    S.   32.5.   27    L.    Ed.    319. 

3.  Failure  to  object. — Leather  Manu- 
facturers' Bank  v.  Morgan,  117  U.  S.  96, 
107,    29    L.    Ed.    811. 

"The  principle  which  lies  at  the  founda- 
tion of  evidence  of  this  kind  is,  that  the 
silence  of  the  party  to  whom  the  account 
is  sent  warrants  the  inference  of  an  ad- 
mission of  its  correctness.  This  inference 
is  more  or  less  strong  according  to  the 
circumstances  of  the  case.  It  may  be  re- 
pelled by  showing  facts  which  are  in- 
consistent with  it,  as  that  the  party  was 
absent  from  home,  suffering  from  illness, 
or  expected  shortly  to  see  the  other 
party,  and  intended,  and  preferred,  to 
make    his    objections    in    person.       Other 


cn-cumstances  of  a  like  character  may  be 
readily  imagined.  As  regards  merchants 
residmg  in  different  countries.  Judge 
Story  says:  "Several  opportunities  of 
wntmg  must  have  occurred.'"  Wiggins 
V.  Burkham.  10  Wall.  129,  131  19  L  Ed 
884. 

Reasonable  time— Foreign  merchants. 
—  .^n  account  current,  sent  by  a  foreign 
merchant  to  a  merchant  in  this  country, 
and  not  objected  to  for  two  years,  is 
deemed  an  account  stated.  Freeland  v. 
Heron,    7    Cranch     147,   3    L.    Ed.    297. 

Reasonable  time— Merchants  at  home. 
— Between  merchants  at  home,  an  ac- 
count presented,  and  remaining  unob- 
jected to,  after  the  lapse  of  several  posts, 
is  treated,  under  ordinary  circumstances^ 
as  being,  by  acquiescence,  a  stated  ac- 
count. Wiggins  V.  Burkham,  10  Wall 
129,    19    L.     Ed.    884. 

4.  Wiggins  v.  Burkham,  10  Wall  129 
19    L.    Ed.    884. 

5.  Toland  v.  Sprague.  12  Pet.  300.  9 
L.    Ed.    1093. 

6.  Sturm  v.  Boker.  150  U.  S  312  37  L 
Ed.    1093.  ' 

7.  Demand  founded  on  executed  con- 
tract.—New  Orleans,  etc.,  R.  Co.  v 
Lindsay,    4    Wall.    650,    18    L.    Ed.    328. 

8.  Account  closed. — Mandeville  v.  Wil- 
son,   5    Cranch     15,   3    L.    Ed.    23. 


72 


ACCOUNTS  AND  ACCOUNTING. 


the  statement  of  tlie  account  must  be  adopted  by  one  party  and  submitted  as  cor- 
rect to  the  other. ^ 

B.  Conclusiveness. — Where  an  account  is  settled  by  parties  themselves, 
and  where  there  is  no  unfairness,  and  where  all  the  facts  are  equally  well  known 
to  both  sides,  their  adjustment  is  final  and  conclusive. ^^  So  that  if  an  account 
stated  be  pleaded  in  bar  to  a  biU  in  equity,  such  plea  will  be  sustained,  except  so 
far  as  the  complainant  can  show  it  to  be  erroneous.  ^^  But  a  settled  account  is 
only  prima  facie  evidence  of  its  correctness,  at  law  or  in  equity;  it  may  be  im- 
peached by  proof  of  fraud,  or  omission  or  mistake;  and  if  it  be  confined  to  par- 
ticular items  of  account,  concludes  nothing  as  to  other  items  not  stated  in  it.^^ 

C.  Questions  of  Law  and  Fact. — What  is  to  be  regarded  as 
a  reasonable  time  for  the  objection  to  an  account  rendered,  when  the 
facts  are  clear,  is  a  matter  of  law.i'^  Where  the  proofs  are  conflicting,  it  is 
a  mixed  one  of  law  and  fact ;  and  in  such  cases  the  court  should  instruct  the  jury 
upon  the  several  hypotheses  of  fact  insisted  on  by  the  parties. i"* 

D.  Impeachment — Grounds. — An  account  rendered  which  has  become  an 
account   stated,  is  open  to  correction   for  mistake. ^^ 

Release. — If  the  accounts  between  the  parties  are  impeached,  and  a  release 
has  been  obtained,  executed  by  one  of  the  parties,  in  a  case  depending  before  a 
court  of  chancery,  the  release  will  not  prevent  the  court  from  looking  into  the 
settlements ;  and  the  release  in  such  a  case  is  entitled  to  no  greater  force  in  a 
court  of  equity,  than  the  settlement  of  the  account  on  which  it  was  given. ^^ 


9.  Submission. — Nutt  v.  United  States, 
12.5  U.   S.  650.  655,  31   L.  Ed.   821. 

10.  Final  and  conclusive. — Hager  v. 
Thompson.  1  Black  80,  17  L.  Ed.  41; 
Chappedelaine  v.  Dechenaux.  4  Cranch 
306.  2  L.  Ed.  629;  Goodwin  v.  Fox,  129 
U.  S.  601.  632.  32  L.  Ed.  805;  Cooper  v. 
Coates,  21  Wall.  105,  111,  22  L.  Ed.  481; 
Leather  Manufacturers'  Bank  v.  Morgan, 
117  U.  S.  96,  107,  29  L.  Ed.  811;  Roberts 
V.  Benjamin,  124  U.  S.  64,  73,  31  L.  Ed. 
334. 

11.  Bar  to  bill  in  equity. — Chappede- 
laine V.  Dechenaux,  4  Cranch  306,  2  L. 
Ed.    629. 

12.  Account  settled  only  prima  facie 
evidence. — Perkins  v.  Hart.  11  Wheat. 
237,  6  L.  Ed.  463.  distinguished  in  Hager 
V.  Thompson,  1  Black  80.  93.  17  L.  Ed. 
41;  Standard  Oil  Co.  v.  Van  Etten.  107 
U.  S.  325,  334,  27  L.  Ed.  319.  See  post, 
"Impeachment,"     II,     D. 

If  palpable  errors  be  shown,  errors 
which  cannot  be  misunderstood,  the  set- 
tlement must  so  far  be  considered  as 
made  upon  absolute  mistake  or  imposi- 
tion, and  ought  not  to  be  obligatory  on 
the  injured  party  or  his  representatives, 
because  such  items  cannot  be  supposed 
to  have  received  his  assent.  Chappede- 
laine V.  Dechenaux,  4  Cranch  306,  2  L. 
Ed.   629. 

Fraud.— Perkins  v.  Hart.  11  Wheat. 
237,  6  L.  Ed.  463;  Hager  v.  Thompson,  1 
Black  80,  17  L.  Ed.  41.  See  the  title 
FRAUD   AND   DECEIT. 

13.  Reasonable  time — Question  of  law. 
— Standard  Oil  Co.  v.  Van  Etten,  107  U. 
S.  325.  334,  27  L.  Ed.  319;  Wiggins  v. 
Burkham,    10    Wall.    129.    19    L.    Ed.    884. 

Where  the  items  of  an  account  stated 
were    not    disputed,    but    were    admitted. 


and  payment  of  the  same  demanded,  it 
was  not  taking  the  question  of  fact, 
whether  the  account  was  a  stated  account, 
from  the  jury,  for  the  court  to  instruct 
the  jury,  that  the  account  was  a  stated 
account.  Toland  v.  Sprague,  12  Pet.  300, 
9    L.    Ed.    1093. 

14.  Mixed  questions. — Wiggins  v.  Burk- 
ham,  10   Wall.    129,    19    L.    Ed.   884. 

15.  Mistake.— Perkins  v.  Hart,  11  Wheat. 
237,  256,  6  L.  Ed.  463;  Wiggins  v.  Burk- 
ham. 10  Wall.  129,  132.  19  L.  Ed.  884; 
Leather  Manufacturers'  Bank  v.  Morgan. 
117  U.  S.  96,  107.  29  L.  Ed.  811;  Standard 
Oil  Co.  V.  Van  Etten.  107  U.  S.  325.  331, 
27  L.  Ed.  319;  Nixdorfif  v.  Smith,  16  Pet. 
132,  10  L.  Ed.  913;  Chappedelaine  v. 
Dechenaux,  4  Cranch  306,  2  L.  Ed.  629; 
Hager  2;.Thompson,  1  Black  80.  17  L.  Ed. 
41.  See  the  titles  MISTAKE  AND  AC- 
CIDENT; RESCISSION,  CANCELLA- 
TION   AND    REFORMATION. 

16.  Release.— Kelsey  v.  Hobby,  16  Pet. 
269.  10  L.  Ed.  961.  See  the  title  RE- 
LEASE. 

If  a  release  is  executed,  and  a  settle- 
ment is  made,  of  a  particular  item  in  an 
account  for  which  suit  has  been  brought, 
and  in  which  the  party  has  been  arrested, 
the  settlement  having  been  confined  to 
the  claim  for  the  damages  for  which  the 
suit  was  brought,  the  mere  circumstance 
of  the  defendant  being  detained  by  the 
process  issued  to  recover  the  amount 
claimed,  would  be  no  objection  to  the 
validity  of  the  agreement  and  release. 
But  if.  while  under  detention,  for  want  of 
special  bail,  a  lease  was  obtained  of  other 
matters  than  those  embraced  in  the  suit, 
and  much  more  important  in  amount,  and 
which  had  been  insisted  on  for  years,  in 
the  suit  previousl}''  instituted,  then  in  the 


ACCOUNTS  AND  ACCOUNTING. 


73 


Admissibility  of  Evidence. — Whatever  naturally  and  logically  tends  to  estab- 
lish a  mistake  is  competent  evidence.^" 

Weight  and  Sufficiency  of  Evidence. — After  long  delay,  and  after  long 
apparent  acquiescence  in  the  correctness  of  the  settlement,  the  evidence  ought  to 
be  very  clear  that  a  mistake  was  in  fact  made,  in  order  to  justify  unravelling 
what  was  done.^'' 

Presumptions  and  Burden  of  Proof. — The  practice  of  opening  accounts, 
which  the  parties  who  could  best  understand  them  have  themselves  adjusted  or 
by  their  silence  acquiesced  in,  is  not  encouraged,  and  the  whole  labor  of  proof  lies 
upon  the  party  objecting  to  the  account,  and  errors,  which  he  does  not  plainly 
establish,  cannot  be  supposed  to  exist. ^'^ 

III.    Jurisdiction. 

A  court  of  chancery  has  jurisdiction  in  matters  of  account, ^^  and  it  cannot  be 
doubted,  that  this  jurisdiction  is  often  beneficially  exercised ;  but  a  court  of 
equity  may  not  take  cognizance  of  every  action,  for  goods,  wares  and  merchandise 
sold  and  delivered,  or  of  money  advanced  where  partial  payments  have  been 
made,  or  of  every  contract,  express  or  implied,  consisting  of  various  items,  on 
which  different  sums  of  money  have  become  due  and  different  payments  have 
been  made.  Although  the  line  may  not  be  drawn  with  absolute  precision,  yet  it 
may  be  safely  affirmed,  that  a  court  of  chancery  cannot  draw  to  itself  every 
transaction  between  individuals  in  which  an  account  between  parties  is  to  be  ad- 
justed. In  all  cases  in  which  an  action  of  account  would  be  the  proper  remedy  at 
law, 2^  and  in  all  cases  where  a  trustee  is  a  party, 22  the  jurisdiction  of  a  court  of 
equity  is  undoubted ;  it  is  the  appropriate  tribunal.  But  in  transactions  not  of 
this  peculiar  character,  great  complexity  ought  to  exist  in  the  accounts, 22  or  some 


course  of  proceeding;  neither  the  circum- 
stances under  which  the  release  was 
taken,  and  the  account  connected  with  it 
settled,  nor  the  contents  of  the  papers, 
entitle  them  to  any  consideration  in  a 
court  of  equity.  Kelsey  v.  Hobby,  16 
Pet.    269,    10    L.    Kd.    961. 

17.  Admissibility  of  evidence. — Standard 
Oil  Co.  V.  Van  Etten.  107  U.  S.  .325,  331. 
27    L.    Ed.    319. 

18.  Weight  and  sufficiency  of  evidence. — 
Willett  z'.  Fister,  18  Wall.  91,  P:;.  21  L.  Ed. 
804;  Bisphamz'.  Price,  1.5  How.  162,  176.14 
L.  Ed.  644;  Chappedelaine  7'.  Dechenaux.  4 
Cranch   306.    2   L.    Ed.    629. 

No  practice  could  be  more  dangerous 
than  that  of  opening  accounts  which  the 
l«arties  themselves  have  adjusted,  on  sug- 
gestion supported  by  doubtful  or  by  only 
probable  testimony.  Chappedelaine  z'. 
Dechenaux.    4    Cranch    306,    2    L.    Ed.    629. 

19.  Evidence — Burden  of  proof. — Bisp- 
ham  V.  Price,  15  How.  162,  176,  14  L.  Ed. 
644;  Freeland  z'.  Heron,  7  Cranch  147,  3 
L.   Ed.  297. 

The  whole  labor  of  proof  lies  upon 
the  party  objecting  to  the  account,  and  er- 
rors which  he  does  not  plainly  establish 
cannot  be  supposed  to  exist.  Chappede- 
laine V.  Dechenaux,  4  Cranch  306,  2  L.  Ed. 
629. 

"When  the  account  is  admitted  in  evi- 
dence as  a  stated  one,  the  burden  of  show- 
ing its  incorrectness  is  thrown  upon  the 
other  party.  He  may  prove  fraud,  omis- 
sion, or  mistake,  and  in  these  respects  he 


is  in  nowise  concluded  by  the  admission 
implied  from  his  silence  after  it  was 
rendered."  Wiggins  v.  Burkham.  10 
Wall.  129.  132,  19  L.  Ed.  884;  Perkins  v. 
Hart,   11   Wheat.   237.  256.  6   L.   Ed.   463. 

20.  Equity  jurisdiction. — Fowle  v.  Law- 
rason,  5  Pet.  495,  8  L.  Ed.  204;  Ivinson 
V.  Hutton,  98  U.  S.  79,  25  L.  Ed.  66;  Tyler 
V.  Savage,  143  U.  S.  79,  95.  36  L.  Ed.  82; 
Root  v.  Lake  Shore,  etc.,  R.  Co.,  105  U. 
S.  189,  26  L.  Ed.  975;  Western  Union  Tel. 
Co.  V.  Western,  etc.,  R.  Co.,  91  U.  S.  283. 
291,  23  L.  Ed.  350;  Claggett  v.  Kilbourne, 
1  .Black  346,  17  L.  Ed.  213;  Pendleton  v. 
Wambersie,  4  Cranch  73,  2  L.  Ed.  554; 
Grant  v.  Poillon,  20  How.  162,  169,  15  L. 
Ed.  871;  Ward  v.  Thompson,  22  How. 
330,    333.    16    L.    Ed.    249. 

"  'There  cannot  be  any  real  doubt  that 
the  remedy  in  equity,  in  cases  of  account, 
is  generally  more  complete  and  adequate 
than  it  is  or  can  be  at  law.'  1  Story's  Eq. 
Jur..  §  450."  Kilbourn  v.  Sunderland,  130 
U.  S.  505,  515,  32  L.  Ed.  1005;  United 
States  z'.  Old  Settlers,  148  U.  S.  427,  465. 
37    L.    Ed.    509. 

21.  Concurrent  jurisdiction. — Fowle  v. 
Lawrason,  5  Pet.  495.  8  L.  Ed.  204; 
Stearns  v.  Page,  7  How.  819,  828,  12  L. 
Ed.     928. 

22.  Trustee  a  party. — See  the  title 
TRUSTS   AND   TRUSTEES. 

23.  Complicated  accounts. — Fowle  v. 
Lawrason,  5  Pet.  495,  8  L.  Ed.  204;  Kirby 
V.  Lake  Shore,  etc.,  R.  Co..  120  U.  S.  130, 
30   L.   Ed.   569;   Dubourg  De   St.   Colombe 


74 


ACCRUE. 


difficulty  at  law  should  interpose, ^^  some  discovery  should  be  required, 25  in  order  ■ 
to  induce  a  court  of  chancery  to  exercise  jurisdiction.     When  to  these  considera- 
tions is  added  the  charge  against  the  defendants  of  actual  concealed  fraud,  the 
rio-ht  of  the  plaintiff  to  invoke  the  jurisdiction  of  equity  cannot  well  be  doubted. ^^^ 

IV.    Pleading  and  Practice. 

Prayer  for  General  Relief. — Where  the  bill  states  a  case  proper  for  an  ac- 
count, one  may  be  ordered  under  the  prayer  for  general  relief.-^ 

When  a  decree,  by  its  terms,  limits  the  accounting  to  the  date  of  service 
of  process  in  the  suit,  an  accounting  will  not  be  granted  where  the  property  for 
which  the  account  was  asked  was  received,  if  received  at  all,  after  such  service. 2** 

A  motion  made  on  the  foot  of  a  decree  against  a  defendant  to  compel  an 
account  will  be  denied  where  the  original  decree,  which  charged  all  those  defend- 
ants against  whom  proofs  existed,  did  not  charge  the  one  sought  to  be  charged 
in  the  motion,  and  where  the  proofs  on  the  motion  were  no  other  than  the  proofs 
at  the  original  hearing.^^ 

V.    Evidence. 

"Where  an  allowance  is  asked  which  is  clearly  excessive  and  exorbitant,  it  is 
for  the  party  claiming  to  be  entitled  to  establish  just  what  is  the  amount  he  is 
properly  entitled  to,  and  it  is  not  made  the  duty  of  the  court  or  its  officers  to 
arbitrarily  guess  at  the  amount. "•^'^ 

ACCRETION. — See  the  title  Accession,  Accretion  and  Reliction,  ante, 
p.  51. 

ACCRUE.— See   note    1. 


V.  United  States,  7  Pet.  625.  8  L.  Ed.  807; 
Kilbourn  v.  Sunderland,  130  U.  S.  505, 
515.  32  L.  Ed.  1005;  Parkersburg  v. 
Brown,  lOfi  U.  S.  487,  27  L.  Ed.  238. 

24.  Inadequate  remedy  at  law. — Fowle 
V.  Lawrason,  5  Pet.  495,  8  L.  Ed.  204; 
French  v.  Hay,  23  Wall.  231,  22  L.  Ed. 
799;  Root  v.  Lake  Shore,  etc.,  R.  Co., 
105    U.    S.    189,    26    L.    Ed.    975. 

Thus  after  an  arbitrament  and  award, 
an  action  was  in.stituted  at  law  upon  the 
award,  and  the  court  being  of  opinion  the 
award  was  void  for  informality,  judgment 
was  given  for  the  defendant;  a  bill  was 
then  filed  by  the  plaintiff,  on  the  equity 
side  of  the  circuit  court  for  the  county 
of  Alexandria,  to  establish  the  settlement 
of  complicated  accounts  between  the  par- 
ties, which  was  made  b)'^  the  arbitrators; 
and  if  that  could  not  be  done,  for  a  set- 
tlement of  them  under  the  authority  of 
a  court  of  chancery.  This  is  not  a  case 
proper  for  the  jurisdiction  of  a  court  of 
chancery.  Fowle  v.  Lawrason,  5  Pet.  495, 
8    L.    Ed.    204. 

25.  Discovery. — Fowle  v.  Lawrason,  5 
Pet.  495,  8  L.  Ed.  204;  French  v.  Hay,  22 
Wall.  231,  22  L.  Ed.  799.  See  the  title 
DISCOVERY. 

In  1859  A.  lent  to  B.,  who  was  largely 
interested  in  an  embarrassed  railroad, 
$5,000  to  buy  certain  judgments  against 
the  road,  and  B.  having  bought,  in  1859 
and  the  early  part  of  1860,  judgments  to 
the  amount  of  $31,000,  assigned  the  whole 
of  them  to  A.,  absolutely.     Subsequently, 


that  is  to  say  in  .A.ugust,  1860,  A.  made  a 
transfer  (so  called)  of  them  to  B..  "upon 
B.'s  payment  of  $5,000,  with  interest 
from  this  date;"  and  gave  to  B.  a  power 
of  attorney  of  the  same  date,  authorizing 
him  "for  me  and  in  my  name"  to  dispose 
of  them  as  he  might  see  proper.  Held, 
that  a  bill  making  such  an  allegation  and 
such  a  claim  was  demurrable;  the  bill  not 
being  one  of  discovery,  and  the  complain- 
ant having  complete  remedy  at  law. 
French  v.  Hay,  22  Wall.  231,  22  L.  Ed. 
799. 

26.  Fraud.— Kirby  z-.  Lake  Shore,  etc.. 
R.    Co.,   120  U.   S.   130,   134,   .30  L.   Ed.   569. 

27.  Prayer  for  general  relief. — Watts  v. 
Waddle,  fi  Pet.  3S9.  8  L.  Ed.  437;  Stevens 
z'.  Gladding,  17  How.  447,  455,  15  L.  Ed. 
155,  citing  English  v.  Foxall,  2  Pet.  595, 
612,  7  L.  Ed.  531;  Walden  v.  Bodley,  14 
Pet.  156,  10  L.  Ed.  398;  Hobson  v.  Mc- 
Arthur,  16  Pet.  182,  195,  10  L.  Ed.  930; 
Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9 
How.   390,   405,   13    L.    Ed.    187. 

28.  Texas  v.  White,  10  Wall.  127,  19  L. 
Ed.  971. 

29.  Texas  v.  White.  10  Wall.  127,  19  L. 
Ed.   971. 

30.  Evidence. — Spalding  v.  Mason,  161 
U.   S.   375,  394,  40   L.   Ed.  738. 

1.  Accrue. — A  statute  of  limitations 
provided  that  the  people  of  the  state  could 
not  sue  any  person  for  any  real  property 
by  reason  of  the  right  or  title  of  the 
people  to  the  same  unless  such  right  or 
title     should     have     accrued     within     ten 


ACKNOWLEDGE. 


75 


ACCUMULATIONS.— See  the  title   Perpetuities. 

ACCUSATION. — See  the  title  Indictments,  Informations  and  Present- 
ments. 

ACID.— See  note   1. 

ACKNOWLEDGE. — See  the  titles  Acknowledgments;  Limitation  op 
Actions  and  Adverse  Possession. 


years  before  any  action  should  be  com- 
menced. It  was  held,  that  the  terms  "shall 
have  accrued"  were  used  in  the  sense  of 
shall  have  existed  within  the  period  des- 
ignated. Weber  v.  State  Harbor  Com- 
missioners. 18  Wall.  57,  68,  21  L.  Ed. 
798.  See,  also,  the  title  LIMITATION 
OF  ACTIONS. 

In  Rice  v.  United  States,  122  U.  S.  611, 
617,  30  L.  Ed.  793,  it  is  said:  "A  claim 
first  accrues,  within  the  meaning  of  the 
statute,  when  a  suit  may  first  be  brought 
upon  it,  and  from  that  day  the  six  years' 
limitation   begins    to   run." 

In  Amy  v.  Dubupue,  98  U.  S.  470,  476, 
25  L.  Ed.  228,  it  is  said:  "Such  a  con- 
struction of  the  statute  would  defeat  its 
manifest  purpose,  which  was  to  prevent 
the  institution  of  actions  founded  upon 
written  contracts  after  the  expiration  of 
ten  years,  without  suit  from  the  time 
'their  causes  accrue;'  that  is.  from  the 
time  the  right  to  sue  for  a  breach  at- 
taches." 

Accrued. — In  United  States  v.  Morris, 
10  Wheat.  246,  300.  6  L.  Ed.  314,  it  is 
said:      "The    words    are,    'shall    prefer    his 


petition  to  the  judge  of  the  district,  in 
which  such  fine,  penalty,  forfeiture  or 
disability  shall  have  accrued.'  That  this. 
word  accrued  meant  something  more  than 
the  term  incurred,  used  in  the  previous 
part  of  the  section,  is  obvious,  from  this 
consideration,  that  an  oiTense  might  be 
committed  in  one  district,  and  the  of- 
fender prosecuted  in  another;  but  it  never 
was  imagined,  that  the  suit  for  remission, 
could  be  going  on  in  the  district  where 
the  penalty  was  incurred,  in  one  sense  of 
the  term,  and  the  prosecution  in  another. 
The  term  accrued,  therefore,  has  been 
universally  held  to  be  here  used  with  re- 
lation to  the  seizure,  information  or  suit 
for  the   penalty." 

1.  Acid. — In  Lutz  v.  Magone.  153  U.  S> 
105,  108,  38  L.  Ed.  651,  it  is  said:  "An 
acid  is  described  by  Webster  primarily 
as  'a  sour  substance.'  and  chemically  as 
'one  of  a  class  of  compounds,  generally, 
but  not  always,  distinguished  by  their 
sour  taste,  solubility  in  water,  and  red- 
dening of  vegetable  blue  or  violet  col- 
ors.' "  See,  generallv.  the  title  REV- 
ENUE  LAWS. 


ACKNOWLEDGMENTS. 

BY   JAMES  F.    MINOR. 

I.   Definitions  and  Distinctions,  77 . 

II.   Necessity  for  Acknowledgment,  77. 

A.  In  General,  77 . 

1.  Of  Deed,  77. 

2.  Of   Power   of   Attorney,   77 . 

3.  Of  Instrument  Executed  by  Married  \\'oman,  78. 

B.  For  Recordation,  79. 

C.  For  Admission  in  Evidence,  80. 

III.   Act  of  Taking  and  Certifying  Acknowledgment,  Whether  Judicial 
or  Ministerial,  80. 

IV.   Requisites  Essential  to  Valid  Acknowledgment,  81. 

A.  Complete  Instrument,  81. 

B.  By  Whom  Taken,  81. 

1.  When  Taken  in  the  State,  81. 

a.  In  General,  81. 

b.  Officer  Whose  Authority  Has  Been  Revoked,  81. 

c.  Clerks  of  Court,  81. 

d.  Mayor,  Justice  or  Judge,  82. 

2.  When  Taken  in  Another  State,  82. 

C.  Mode  of  Making,  83. 

1.  By  Married  Woman,  83. 

2.  By  Corporation,  84. 

3.  In  Representative  Capacity,  84. 

V.  Certificate  of  Acknowledgment,  84. 

A.  Purpose  and  Necessity.  84. 

B.  Requisites  Essential  to  Valid  Certificate,  84. 

1.  Designation  of  Officer's  Official  Authority,  84. 

2.  Proof  of  Officer's  Authority,  85. 

3.  Venue,  86. 

4.  Contents  of  Body  of  Certificate.  86. 

a.  In  General,  86. 

b.  Identification   of   Grantor   as    Person   Acknowledging,   87. 

c.  Instruments  Executed  by  Husband  and  Wife,  88. 

(1)  In  General,  88. 

(2)  Certificate  of   Separate  Examination  and   Acknowledg- 

ment, 89. 

(3)  Explanation  of  Contents  to  Wife,  90. 

VI.  Effect,    Correction,    or  Reformation    of  Defective  Certificatje    of 

Acknowledgment,  90. 

A.  Efifect  of  Invalid  Acknowledgment,  90. 

B.  Reformation  by  Officer  or  Court,  90. 

C.  By  Legislative  Enactment,  91. 

1.  Constitutionality,  91. 

2.  Construction,  91. 

Vn.   Conclusiveness  of  Acknowledgment,  93. 

A.  Presumption  in  Favor  of  Validity,  93. 

B.  Conclusiveness  of  Certificate.  93. 

C.  Presumption  as  to  Venue,  94. 

(76) 


A  CKX  O  ]  I  'LED  CM  EX  TS. 


'7? 


vm. 


D.  Evidence,  94. 

1.  Competency,  94. 

2.  \\'eight  and  Sufficiency.  94. 

Fees,  95. 


CROSS    REFERENCES. 
See  the  titles  Affidavits;    Chattel   Mortgages  and  Conditional  Sales; 
Deeds  ;    Mortgages  and  Deeds  of  Trust  ;    Notary  Public  ;    Recording  Acts. 

I.    Definitions  and  Distinctions. 

The  acknowledgment,  and  the  proof  authorizing  the  admission  of  a  deed  to 
record,  are  provisions  which  the  law  makes  for  the  security  of  creditors  and  pur- 
chasers.^     But  the  acknowledgment  of  a  deed  is  not  the  making  thereof.^ 

II.     Necessity   for   Acknowledgment. 

A.  In  General — 1.  Of  Deed. — The  acknowledgment  of  a  deed  is  not  the 
making  thereof.  The  instrument  is  a  deed  before  acknowledgment,  although 
the  latter  formality  may  be  necessary  to  make  it  operative.^  The  general  rule 
is  that  an  acknowledgment  is  not  essential  to  the  validity  of  a  deed  as  between 
the   parties.'* 

2.  Of  Power  of  Attorney. — Semble,  that  a  power  of  attorney  to  convey 
lands  must  be  duly  acknowledged  like  a  deed,  if  that  is  required  to  be  acknowl- 
edged.^ 


1.  Provisions  for  security  of  creditors 
and  purchasers. — Sicard  v.  Davis,  6  Pet. 
124.   8   L.    Ed.   342. 

2.  Acknowledgment  not  execution. — 
Wood  V.  Owings.  1  Cranch  239,  2  L. 
Ed.  94. 

3.  For  what  purpose  necessary. — ^Wood 
V.  Owings,  1  Cranch  239,  2  L.  Ed.  94; 
Sicard  z'.    Davis,   6   Pet.   124,   8   L.   Ed.   342. 

4.  Not  essential  to  validity  between  par- 
ties.— Mackall  v.  Casilear,  137  U.  S.  556. 
564,  34  L.  Ed.  776;  Elwood  v.  Flannigan, 
104  U.  S.  562,  566,  26  L.  Ed.  842;  Hepburn 
V.  Dubois,  12  Pet.  345.  9  L.  Ed.  1111;  Steb- 
bins  v.  Duncan,  108  U.  S.  32,  44,  27  L.  Ed. 
641. 

The  acknowledgment  and  the  proof 
which  may  authorize  the  admission 
of  a  deed  to  record  and  the  recording 
thereof,  are  provisions  which  the  law 
makes  for  the  security  of  creditors  and 
purchasers;  they  are  essential  to  the  va- 
lidity of  the  deed,  as  to  persons  of  that 
description,  not  as  to  the  grantor;  his  es- 
tate passes  out  of  him  and  vests  in  the 
grantee,  so  far  as  respects  himself,  as  en- 
tirely, if  the  deed  be  in  writing,  sealed 
and  delivered,  as  '-d  it  be  also  acknowl- 
edged, or  settled  and  proved  by  three  sub- 
scribing witnesses  and  recorded  in  the 
proper  court.  In  a  suit  between  them, 
such  a  deed  is  completely  executed,  and 
would  be  conclusive  although  never  ad- 
mitted to  record,  nor  attested  by  any  sub- 
scribing witness;  proof  of  sealing  and  de- 
livering would  alone  be  required;  and  the 
acknowledgment  of  the  fact  by  the  party, 
would  be  sufficient  proof  of  it.  Sicard  z\ 
Davtfi,  6  Pet.  124,  8  L.  Ed.  342.  See  post, 
"Purpose  a«d  Necessity,"  V,  A.     See,  gen- 


erally, the  titles  DEEDS;  RECORDING 
ACTS. 

By  the  statutes  of  Illinois  in  force  in 
1835,  a  deed  signed  and  sealed  by  the 
party  making  the  same  was  sufficient  for 
the  conveyance  of  any  land  in  that  state, 
without  acknowledgment.  Rev.  Laws, 
1833,  p.  129,  §1.  Elwood  v.  Flannigan, 
104  U.  S.  562,  566.  26  L.  Ed.  842;  Steb- 
bins  V.  Duncan,  108  U.  S.  32,  44,  27  L.  Ed. 
641. 

In  District  of  Columbia. — Qusre, 
whether  in  the  District  of  Columbia  a 
deed  is  operative,  even  as  between  the 
parties,  notwithstanding  delivery,  unless 
it  be  acknowledged  and  recorded.  Mack- 
all  V.  Casilear,  137  U.  S.  556,  564,  34  L.  Ed. 
776. 

In  Tennessee. — In  Tennessee,  the  fee 
in  lands  does  not  pass  unless  the  convey- 
ance is  proved,  or  duly  acknowledged  and 
registered.  McEwen  v.  Bulkley,  24  How. 
242,   16   L.   Ed.   672. 

5.  Power  of  attorney  must  be  acknowl- 
edged.— Clark  V.  Graham,  6  Wheat.  577,  5 
L.  Ed.  334.  See  post,  "Of  Instrument  Ex- 
ecuted by  Married  Woman,"  II,  A,  3.  See, 
generally,  the  titles  POWERS;  PRIN- 
CIPAL AND   AGENT. 

In  Texas,  in  1832,  a  letter  power  of  at- 
torney, being  neither  acknowledged,  wit- 
nessed, certified  to,  nor  written  on  sealed 
paper,  nor  proved  before  a  notary,  and 
no  summons  even  served  on  the  donor  to 
appear  before  an  official  for  the  purpose 
of  rendering  it  an  authentic  or  judicial 
act.  was  nevertheless  valid,  the  want  of 
the  formalities  referred  to  merely  affect- 
ing the  mode  of  authenticating  the  in- 
strument.    If  it  is  passed  before  a  notary 


78 


ACKNO  WLEDGMENTS. 


3.  Of  Instrument  Executed  by  Married  Woman. — The  deed  of  a  feme 
covert,  conveying  her  interest  in  lands  which  she  owns  in  fee,  did  not  formerly 
pass  her  interest,  by  force  of  its  execution  and  delivery,  as  in  the  common  case 
of  a  deed  by  a  person  under  no  legal  incapacity;  in  such  cases,  an  acknowledg- 
ment gives  no  additional  effect  between  the  parties  to  tlie  deed;  it  operates  only 
as  to  third  persons,  under  the  provisions  of  recording  and  kindred  laws.  The 
law  presumed  a  feme  covert  to  act  under  the  coercion  of  her  husband,  unless  be- 
fore a  court  of  record,  a  judge,  or  some  commissioner,  in  England,  by  a  separate 
acknowledgment,  out  of  the  presence  of  her  husband,  or,  in  these  states,  before 
some  court,  or  judicial  officer  authorized  to  take  and  certify  such  acknowledg- 
ment, the  contrary  appeared.^ 


public  and  witnesses,  and  is  certified  as  a 
testimonio,  it  is  called  an  authentic  in- 
strument and  proves  itself.  If  not  thus 
authenticated,  it  must  be  proved  to  have 
been  executed  by  the  party  to  be  charged 
with  it.  Williams  v.  Conger,  125  U.  S. 
397,  421,  31   L.   Ed.   778. 

By  married  woman. — See  post,  "Of  In- 
strument Executed  by  Married  Woman," 
II.  A.  3. 

6.  Formalities  required  and  effect  of 
noncompliance. — Hepburn  z\  Dubois.  12 
Pet.  345,  9  L.  Ed.  1111;  Holladay  v.  Daily, 
19  Wall.  606,  609,  22  L.  Ed.  187;  Drury 
v.  Foster.  2  Wall.  24,  17  L.  Ed.  780;  • 
Mexia  v.  Oliver,  148  U.  S.  664,  673.  37  L. 
Ed.  G02.  Elliott  "c-.  Peirsol,  1  Pet.  328, 
7  L.  Ed.  164;  Hitz  v.  Jenks,  123  U.  S.  297, 
303,  31  L.  Ed.   156. 

"In  most  of  the  states  a  married  woman 
cannot,  in  the  absence  of  statutory  au- 
thority, execute,  either  alone  or  in  con- 
nection with  her  husband,  a  valid  power 
of  attorney  to  convey  her  interest  in 
real  property.  She  can  pass  her  interest 
only  by  uniting  personally  in  a  convey- 
ance with  her  husband,  and  acknowledg- 
'iag,  upon  a  separate  examination  apart 
from  him.  before  a  public  officer,  that  she 
executes  the  conveyance  freely,  without 
any  fear  of  him,  or  compulsion  from  him. 
The  private  examination  is  required  to 
protect  her  from  the  coercion  or  undue 
influence  of  her  husband,  and  her  ac- 
knowledgment is  therefore  considered  as 
an  essential  preliminary  to  the  validity  of 
any  transfer  by  her.  The  private  exami- 
nation is  in  its  nature  personal;  it  is  a 
matter  in  which  she  cannot  be  repre- 
sented by  another.  A  privy  acknowledg- 
ment by  attorney,  as  observed  by  Bishop, 
would  seem  to  involve  a  contradiction, 
snd  certainly  would  in  a  great  degree  de- 
feat the  object  which  her  personal  ex- 
amination was  intended  to  secure."  Hol- 
laday V.  Daily,  19  Wall.  606,  609,  22  L. 
Ed.    187. 

It  took  the  place  of  alienation  by  means 
of  fine  in  a  court  of  record  in  England, 
though  differing  in  some  of  its  effects, 
owing  to  the  diversity  in  the  nature  of 
the  two  proceedings.  Hitz  v.  Jenks,  123 
U.  S.  "97,  301,  31  L.  Ed.  156,  per  Gray,  J. 
See.  also.  Elliott  v.  Peirsol,  1  Pet.  328,  7 
L.    Ed.    164. 

The    object   of   a   statute,    requiring   the 


separate  examination  of  the  wife  to  be 
taken  by  a  judicial  officer  or  rwtary  pub- 
lic, to  be  certified  by  him  in  a  particular 
form,  and  to  be  recorded  in  the  registry 
of  deeds,  was  twofold — not  only  to  pro- 
tect the  wife  by  making  it  the  duty  of 
such  an  officer  to  ascertain  and  to  certify 
that  she  has  not  executed  the  deed  by 
compulsion  of  her  husband  or  in  igno- 
rance of  its  contents;  but  also  to  facilitate 
the  convej'ance  of  the  estates  of  married 
women,  and  to  secure  and  perpetuate  evi- 
dence, upon  which  innocent  grantees  as 
well  as  subsequent  purchasers  may  rely, 
that  the  requirements  of  the  statute, 
necessary  to  give  validity  to  the  deed, 
had  been  complied  with.  Hitz  v.  Jenks, 
123  U.  S.  297,  303.  31  L.  Ed.  156.  See 
post,  "By  Married  Woman,"  IV,  C,  1; 
"Certificate  of  Separate  Examination  and 
.Acknowledgment,"   V,   B,   4,   c,    (2). 

It  is  a  fatal  objection  to  a  power  of 
attorney  by  a  husband  and  wife,  that 
there  was  no  separate  examination  of  the 
wife  nor  any  acknowledgment  by  her.  but 
only  proof  by  oath  of  a  subscribing  wit- 
ness. Its  subsequent  due  acknowledg- 
ment after  privy  examination,  did  not 
cure  defect  as  to  acts  done  thereunder 
before.  Dubois  v.  Hepburn,  10  Pet.  1,  20. 
9  L.   Ed.  325. 

Exception  to  rule. — It  appearing  in  evi- 
dence in  Lloyd  v.  Taylor.  1  Dall.  17,  1 
L.  Ed.  18,  that  it  had  been  the  constant 
usage  of  the  province,  formerly,  for  femes 
covert  to  convey  their  estates  in  this 
manner,  without  an  acknowledgment  or 
separate  examination;  and  that  there 
were  a  great  number  of  valuable  estates 
held  under  such  titles,  which  it  would  be 
dangerous  to  impeach,  at  this  time  of 
day,  the  court  gave  a  charge  to  the  jury 
in  favor  of  the  defendants,  founded  on 
the  maxim  "communis  error  facit  jus," 
that  such  deed  without  acknowledgment 
or  separate  examination  was  good. 

In  Texas. — By  the  laws  of  Texas  the 
interest  of  a  married  woman  in  her  sepa- 
rate estate  cannot  be  divested,  except  by 
the  conveyance  of  herself  and  husband, 
and  after  her  orivy  examination  before 
the  proper  officer.  Hollinsrsworth  v. 
Flint.  101  U.  S.  591.  596.  25  L.^Ed.  1028. 

A  deed  or  power  of  attorney,  signed  by 
the  wife  alone,  is  not  such  an  instrument 
as  the  statute  makes  effective  to  pass  her 


ACKNO  WLEDGMENTS. 


79 


B.    For    Recordation. — Acknowledgment    is   one   mode   of   authenticating   a 
writing  for  recordation,  proof  by  witnesses  being  the  other,  and  one  or  the  other 


estate.  The  decisions  under  similar  stat- 
utes have  been  uniform  in  holding  the 
separate  conveyance  of  the  wife  invalid, 
notwithstanding  it  may  have  been  clearly 
shown  that  she  acted  with  her  husband's 
assent.  The  statute  does  not  attempt  to 
provide  for  either  conveyances  or  powers 
of  attorney  from  the  wife  to  the  husband, 
and  it  would  be  a  departure  from  the 
policy  of  the  law.  wholly  unauthorized 
by  an-ything  in  the  Texas  statute,  to  al- 
Jow  the  husband,  by  means  simply  of  a 
general  power  of  attorney  from  the  wife, 
to  dispose  of  her  separate  estate  at  his 
will.  Mexia  v.  Oliver,  148  U.  S.  664.  673. 
37   L.    Ed.   602. 

In  Illinois,  previous  to  March  27,  1869, 
an  acknowledgment  by  a  married  woman 
before  a  qualified  officer  was  essential  to 
the  valid  execution  of  her  conveyance  of 
real  property.  But  on  that  date  an  act 
was  passed,  the  first  section  of  which  re- 
moved the  necessity.  111.  Sess.  Laws  of 
1869,  359.  Knight  v.  Paxton,  124  U.  S. 
552,    555.   31    L.    Ed.    518. 

After  the  passage  of  this  act  the  execu- 
tion of  a  conveyance  of  real  property  by 
a  married  woman  joining  with  her  hus- 
band was  sufficiently  authenticated  by  her 
signature.  It  would  seem  that  her  ac- 
knowledgment of  its  execution  before  an 
officer  authorized  to  take  acknowledge 
ments  was  only  required  to  render  it  ad- 
missible as  evidence  without  further 
proof,  or  to  release  her  homestead  right 
it!  the  property.  For  its  validity  as  a 
transfer  of  the  grantor's  interest,  except 
as  to  the  homestead  rights  therein,  the 
acknowledgment  was  unnecessary.  Knight 
V.  Paxton,  124  U.  S.  552,  556.  31  L.  Ed. 
518. 

In  Minnesota. — -"By  the  laws  of  Min- 
nesota, an  acknowledgment  of  the  execu- 
tion of  a  deed  before  the  proper  officers, 
privately  and  apart  from  her  husband,  by 
a  feme  covert,  is  an  essential  prerequisite 
to  the  conveyance  of  her  real  estate  or 
any  interest  therein.  And  she  is  disabled 
from  executing  or  acknowledging  a  deed 
by  procuration,  as  she  cannot  make  a 
power  of  attorney.  These  disabilities  ex- 
ist by  statute  and  the  common  law  for 
her  protection,  in  consideration  of  her 
dependent  condition,  and  to  guard  her 
against  undue  influence  and  restraint." 
Drury  v.  Foster.  2  Wall.  24,  33,  17  L.  Ed. 
780. 

A  paper,  executed,  under  seal,  for  the 
husband's  benefit,  by  husband  and  wife, 
acknowledged  in  separate  form  by  the 
wife,  and  meant  to  be  a  mortgage  of  her 
separate  lands,  but  with  blanks  left  for 
the  insertion  of  the  mortsasree's  name 
and  the  sum  borrowed,  and  to  be  filled  up 
by  the  husband,  is  no  deed  as  respects 
the  wife,  when  afterwards  filled  up  by 
the    husband    and    given    to    a    lender    of 


money,  though  one  bona  fide  and  with- 
out knowledge  of  the  mode  of  execution. 
The  mortgagee,  on  cross  bill  to  a  bill  of 
foreclosure,  was  directed  to  cancel  her 
name.  Drury  v.  Foster,  2  Wall.  24,  17 
L.    Ed.    780. 

"To  permit  an  estoppel  to  operate 
against  her  would  be  a  virtual  repeal  of 
the  statute  that  extends  to  her  this  pro- 
tection, and  also  a  denial  of  the  dis- 
ability of  the  common  law  that  forbids 
the  conveyance  of  her  real  estate  by  pro- 
curation. It  would  introduce  into  the  law 
an  entirely  new  system  of  conveyances  of 
the  real  property  of  feme  coverts." 
Drury  v.  Foster,  2  Wall.  24,  34,  17  L.  Ed. 
780. 

In  Virginia  and  Ohio. — By  the  law  of 
Virginia  the  acknowledgment  and  the 
recording  of  conveyances  by  husband  and 
wife  of  lands  in  that  commonwealth,  in 
the  mode  prescribed  by  her  laws,  was 
formerly  essential  to  pass  the  estate  of 
the  wife  in  such  lands.  Sev.^all  v.  Hay- 
maker. 127  U.  S.  719,  728,  32   L.   Ed.  299. 

Until  the  husband  acknowledged  it,  and 
thereby,  in  the  only  way  prescribed  by 
statute,  gave  his  assent  to  her  conveying 
away  her  interest,  the  deed  was  inefifec- 
tual  for  any  purpose.  While  it  may  not 
have  been  necessary  that  they  should  ac- 
knowledge the  deed  at  the  same  time,  or 
upon  the  same  occasion,  or  before  the 
same  officer,  the  statute  of  Virginia,  upon 
anj^  fair  interpretation  of  its  words,  and 
having  regard  to  the  policy  which  induced 
its  enactment,  must  be  held  to  have  re- 
quired that  the  acknowledgment  of  the 
husband  should  occur  in  the  lifetime  of 
the  wife,  while  she  was  capable  of  asking 
his  consent  to  the  conveyance  of  her 
lands.  But  that  assent  was  of  no  avail 
after  the  death  of  the  wife  before  the 
husband  had,  by  acknowledgment  of  the 
deed,  signified  his  willingness  to  have  her 
convey.  Sewall  v.  Haymaker.  127  U.  S. 
719,  728,  32  L.  Ed.  299.  But  see  now  Va. 
Code    (1904).    Ch.   111. 

In  Sewall  v.  Haymaker,  127  U.  S.  719, 
730,  32  L.  Ed.  299.  it  was  said:  "Upon 
examining  the  statutes  of  Ohio — the  con- 
trolling provisions  of  which  have  been 
referred  to — and.  also,  the  decisions  of 
the  supreme  court  of  that  state  to  which 
our  attention  has  been  called,  we  find 
nothing  to  justify  us  in  holding  that  '  a 
deed  for  land,  acknowledged  bv  the  wife, 
but  not  acknowledged  by  the  husband  in 
the  lifetime  of  the  wife,  will  pass  her 
estate  in  the  lands  conveyed.  In  Ludlow 
r.  O'Neil.  29  O.  St.  181.  it  was  held— 
usine  the  language  of  the  syllabus — that 
'under  the  statute  of  February  22,  1831.  it 
is  not  indispensable  to  the  validitv  of  a 
deed  executed  by  husband  and  wife  that 
they  should  acknowledge  it  before  the 
same    officer    or    at    the    same    time    and 


80 


ACKNOWLEDGMENTS. 


is  necessary  to  record  an  instrument  so  as  to  be  valid  against  creditors  and  sub- 
sequent purchasers.'^ 

C.  For  Admission  in  Evidence. — As  a  general  rule  a  deed,  to  be  admissible 
in  evidence  without  further  proof,  must  have  been  duly  acknowledged  by  the 
grantor  before  the  proper  officer ;  when  so  certified  to,  it  is  admissible.^ 

III.    Act   of   Taking   and   Certifying   Acknowledgment,    whether   Judi- 
cial or  Ministerial. 

The  privy  examination  of  a  married  woman  and  the  taking  of  her  acknowledg- 
ment to  a  deed,  are  judicial  or  quasi  judicial  acts.^ 


place,  or  that  their  acknowledgments 
should  be  certified  by  a  single  certificate.' 
Yet,  'the  acknowledgment  of  the  wife  is 
not  binding-  upon  her  until  the  deed  is 
executed  and  acknowledged  by  the  hus- 
band.' 'The  husband,'  the  court  said,  'can 
render  the  wife  every  needed  protection 
by  himself  refusing  to  sign  and  acknowl- 
edge the  deed.  If  she  acknowledge  it 
before  the  husband,  it  is  presented  to  him 
with  the  wife's  signature  and  acknowl- 
edgment, and  he  has  only  to  refuse  to 
acknowledge.'  We  are  of  opinion  that 
equally  under  the  Ohio  and  Virginia  stat- 
utes, a  deed  by  the  husband  and  wife  con- 
veying the  latter's  land  is  inoperative  to 
pass  her  title  unless  the  husband — she 
having  duly  acknowledged  the  deed — 
should,  in  her  lifetime,  and  by  an  ac- 
knowledgment in  the  form  prescribed  by 
law,  signify  his  assent  to  such  convey- 
ance." 

7.  Mode  of  authentication. — See.  gen- 
erally, the  title  RECORDING  ACTS. 
So  held  of  a  chattel  mortgage.  Hodgson 
V.  Butts.  3  Cranch  140,  2  L.  Ed.  391; 
Sicard  v.  Davis,  6  Pet.  124,  8  L.  Ed.  342; 
So  with  a  deed.  Blackell  v.  Patton,  7 
Cranch  471,  3  L.  Ed.  408;  Findlay  v. 
Hinde,   1    Pet.   241,  7    L.   Ed.   128. 

The  acknowledgment,  and  the  proof 
which  may  authorize  the  admission  of  a 
deed  to  record  and  the  recording  thereof, 
are  provisions  which  the  law  makes  for 
the  security  of  creditors  and  purchasers; 
they  are  essential  to  the  validity  of  the 
deed  as  to  such,  not  as  to  the  grantor. 
Sicard  v.    Davis,  6   Pet.    124,   8   L.   Ed.   342. 

In  Illinois. — Although  a  deed  was  de- 
fectively acknowledged  for  record,  but 
was  admitted  to  record  nevertheless,  and 
the  signature  to  the  acknowledgment  of 
the  deed,  by  one  of  the  justices  of  the 
peace  before  whom  the  acknowledgment 
was  taken,  and  his  signature  to  the  jurat 
of  an  oath  of  identity  indorsed  on  the 
deed,  subscribed  and  sworn  to  before 
him  by  grantor,  were  proven  bj'^  compe- 
tent testimony,  the  record  was  effectual, 
under  Illinois  law.  to  aflfect  subsequent 
grrchnsers  with  notice.  Stebbins  v.  Dun- 
ean,   108  U.  S.  32,  45.  27  L.   Ed.  641. 

Although,  in  Illinois  in  183.5  (Rev. 
Law;,  1833,  p.  129,  §  1).  an  acknowledg- 
pwnt  was  unnecessary  to  make  a  deed 
valid  to  cenvey  land,  to  entitle  it  to 
record,  however,  an  acknowledgment  was 


required  before  one  of  certain  designated 
ofiicers.  Elwood  v.  Flannigan,  104  U.  S. 
562,   566,   26    L.    Ed.    842. 

In  Massachusetts,  a  deed  conveying  an 
estate  of  freehold  in  land  must  be  ac- 
knowledged before  the  proper  magistrate, 
so  as  to  be  recorded.  United  States  v. 
Crosby.    7    Cranch    115,    3    L.    Ed.    287. 

8.  Acknowledgment  necessary. — Knight 
V.  Paxton,  124  U.  S.  552.  556,  31  L.  Ed. 
518;  Hollingsworth  v.  Flint,  101  U.  S. 
591.  25  L.  Ed.  1028;  Houghton  v.  Jones, 
1    Wall.    702,    17    L.    Ed.    503. 

In  California. — By  the  law  of  Cali- 
fornia, deeds  conveying  real  property  may 
be  read  in  evidence  in  any  action  when 
verified  by  certificates  of  acknowledg- 
ment, or  proof  of  their  execution  by  the 
grantors  before  a  notary  public.  Hough- 
ton ?'.  Jones.  ]   Wall.  702,  17  L.  Ed.  503. 

In  Illinois,  after  the  act  of  March  27, 
1869,  the  acknowledgment  of  a  married 
woman  of  her  execution  of  a  deed  for 
land  before  the  officer  authorized  to  take 
acknowledgments,  was  still  required  to 
render  it  admissible  as  evidence  without 
further  proof.  Knight  v.  Paxton,  124  U. 
S.    552.    556.   31    L.    Ed.    518. 

In  Texas. — Where  a  deed  executed  by 
a  man  and  wife,  in  a  conveyance  of  her 
property,  in  Texas,  was  not  acknowledged 
until  long  after  it  was  executed,  it  was 
inadmissible  in  evidence  to  support  the 
title  of  a  plainlifif  in  a  suit  begun  before 
such  acknowledgment.  It  could  not  pass 
the  wife's  title  until  such  acknowledg- 
ment after  privy  examination  before  the 
proper  officer.  Hollingsworth  v.  Flint, 
101   U.   S.   591,   25    L.    Ed.    1028. 

9.  Judicial  or  quasi  judicial  act. — Hitz 
V.  Jenks,  123  U.  S.  297,  303,  31  L.  Ed.  156; 
Drury  v.  Foster,  2  Wall.  24.  34,  17  L.  Ed. 
780. 

"The  duty  of  examining  the  wife  privily 
and  apart  from  her  husband,  of  explain- 
ing the  deed  to  her  fully,  and  of  ascer- 
taining that  she  executed  it  of  her  own 
free  will,  without  coercion  or  undue  in- 
fluence of  his,  is  a  duty  imposed  by  law 
upon  the  officer,  involving  the  e.xercise 
of  judgment  and  discretion,  and  thus  a 
judicial  or  quasi  judicial  act.  The  magis- 
trate is  required  to  ascertain  a  particular 
state  of  facts,  and.  having  ascertained  it, 
to  certify  it  for  record,  for  the  bene^'t  of 
the  parties  to  the  deed,  and  of  all  others 
who   may  thereafter   acqtrire   rights   under 


ACKNOWLEDGMENTS. 


81 


IV.    Requisites  Essential  to  Valid  Acknowledgment. 

A.  Complete  Instrument. — A  deed  must  be  complete,  without  blanks  to  be 
filled    in,    before    it    can    be   validly   acknowledged.^*^ 

B.  By  Whom  Taken — 1.  Whkn  Taken  in  the  State — a.  In  General. — 
The  grantee  cannot  take  the  acknowledgment  of  a  conveyance  to  himself. ^^  Bv 
§  441,  Revised  statutes  of  the  District  of  Columbia,  acknowledgments  of  deed's 
may  be  made  before  any  judge  of  a  court  of  record  and  of  law,  or  any  chan- 
cellor of  a  state,  or  a  judge  of  a  court  of  the  United  States  or  a  justice  of  the 
peace,  or  a  notary  public,  or  a  commissioner  of  the  circuit  court  of  the  district.^^ 
And  in  Dakota  it  was  enacted  by  the  legislature,  in  1873,  that  proof  or  acknowl- 
edgment of  an  instrument  might  be  made,  within  or  without  the  territory  and 
within  the  United  States,  before  any  public  officer  having  an  official  seal,  includ- 
ing  notaries    public.  ^^ 

b.  Officer  Whose  Authority  Has  Been  Revoked. — The  acknowledgment  of  a 
mortgage  taken  by  an  officer  whose  authority  had  been  revoked  by  the  Declaration 
of  Independence,  was  held  valid  to  authorize  its  recordation  against  a  judgment 
creditor  and  purchaser  with  notice  of  the  mortgage. ^^ 

c.  Clerks  of  Court. — Certain  old  statutes  of  Kentucky  were  construed,  in  an 
early  case,  to  give  clerks  of  court  authority  to  take  the  acknowledgments  and 
privy  examinations  of  married  women,  in  all  cases  of  deeds  by  them  and  their 
husbands. ^^ 


it.  And  the  statute  expressly  provides 
that  upon  the  recording  of  the  certificate 
'the  deed  shall  be  as  effectual  in  law  as 
if  she  had  been  an  unmarried  woman.' " 
Hitz  V.  Jenks.  123  U.  S.  297,  303,  31  L. 
Ed.    1.56. 

See,  however,  Rlliott  v.  Peirsol,  1  Pet. 
328.  341,  7  L.  Ed.  164,  where  it  is  held, 
that  an  officer  (clerk  in  this  case),  in 
certifyins:  the  acknowledgment,  acts 
ministerially,  and  not  judiciall3^  in  the 
matter.  Tliis  was  the  acknowledgment 
and  privy  examination  of  a  married 
woman  also.  See,  post,  "Conclusiveness 
of  Certificate."  VIT,  B. 

10.  Complete  instrument  essential. — 
Drury  v.  Foster.  2  Wall.  24,  34.  17  L- 
Ed.    780. 

There  can  be  no  acknowledgment  of  a 
deed  within  the  requisitions  of  the  statute 
until  the  blanks  were  filled  and  the  instru- 
ment complete.  Till  then  there  was  no 
deed  to  be  acknowledged.  The  acts  of 
the  feme  covert  and  of  the  officers  in  ac- 
knowledging a  blank  mortgage  were 
nullities,  and  the  form  of  acknowledgment 
annexed  as  much  waste  paper  as  the 
blank  mortgage  itself,  at  the  time  of 
signing.  Drury  z'.  Foster.  2  Wall.  24, 
34,    17    L.    Ed.    780. 

11.  Grantee  incompetent. — Mackall  v. 
CasileaT.  137  U.  S.  .5.56,  564,  34  L.  Ed.  776; 
Phelps  V.  Harris,  101  U.  S.  370,  375,  25  L. 
Ed.  855. 

The  fact  that  a  grantee  cannot  take 
the  acknowledgment  of  a  conveyance  to 
himself  is  immaterial  in  this  case.  The 
execution  of  this  deed  to  grantee  was  ex- 
pressly averred  by  complainant  and  its 
delivery  conceded,  but  he  alleged  that  it 
was  given  to  secure  notes  for  the  pur- 
pose of  borrowing  money  for  himself  and 

1  U  S  Enc— 6 


his  father,  and  that  this  was  not  done. 
There  is  no  prayer  for  specific  relief  in 
relation  to  it.  nor  are  the  averments  such 
a.-i  would  entitle  complainant  to  resort  to 
the  prayer  for  general  relief,  to  set  it 
aside,  by  reason  of/the  want  of  acknowl- 
edgment, if  that  were  a  proper  ground; 
and.  if  void  upon  its  face,  as  now  con- 
tended, the  interference  of  a  court  of 
equity  would  seem  to  be  unnecessary. 
Mackall  v.  Casilear.  137  U.  S.  556,  564,  34 
L.   Ed.   776. 

12.  In  District  of  Columbia. — Hitz  v. 
Jenks.  123  U.   S.  297.  300,  31   L.   Ed.  156. 

13.  In  Dakota.— Smith  v.  Gale.  144  U. 
S.   509.   522,   36   L.    Ed.   521. 

14.  Effect  of  revocation  of  officer's  au- 
thority.— Parker  z:  Wood,  1  Dall.  436,  1 
L.    Ed.    '>12. 

15.  Clerks  of  court  generally. — Elliott 
V.  Peirsol,  1   Pet.  328.  3.39.   7  L.   Ed.   164. 

Clerks  of  court  in  Kentucky. — The  first 
section  of  the  Kentucky  statute  of  1796 
(1  Litt.  Laws,  p.  569),  authorizes  clerks 
of  the  county  courts,  general  court,  and 
court  of  appeals,  to  take,  in  their  offices, 
the  acknowledgment  or  proof  of  the  ex- 
ecution of  deeds,  and  to  record  them, 
upon  acknowledgments,  or  proofs  so 
taken  bv  themselves;  but  did  not  au- 
thorize them  to  take  the  acknowledgment 
and  orivy  examination  of  feme  covert. 
But  bv  a  subseouent  statute,  clerks  are 
authorized  to  take,  in  their  offices,  the 
'"acknowledo'ment  of  all  deeds,  according 
to  law."  And  the  act  of  1810  (4  Litt. 
Kv.  Laws.  165),  which  authorizes  the 
clerk  of  one  county  to  take  and  certify 
the  acknowledgment  of  a  deed,  to  be  re- 
corded by  the  clerk  of  another  county, 
where  the  land  lies,  etc.,  declares,  that 
"if  the  due  acknowledgment,  or  privy  ex- 


82 


ACKNOWLEDGMENTS. 


d.  Mayor,  Justice  or  Judge.— The  mayor  of  a  city  has  been  held  in  Virginia  _a 
proper  officer  to  take  the  acknowledgment  of  a  feme  covert  to  a  deed.^^  And  in 
Pennsylvania,  Kentucky  and  Illinois,  the  same  has  been,  held  of  a  justice  of  the 
peace.i'^     And  in  Pennsylvania  also  of  a  justice  of  the  supreme  court. ^^ 

2.  When  Taken  in  Another  State. — Provision  is  made  in  an  act  of  the  legis- 
lature of  Illinois  for  the  record  of  all  deeds  to  lands  in  that  slate  which  had 
been  executed  without  the  state  and  within  the  United  States,  and  have  been  ac- 
knowled^^ed  or  proved  in  conformity  to  the  laws  of  the  state  where  executed. ^^ 
And  this  seems  to  be  the  general  rule  where  due  proof  of  such  acknowledg- 
ment is  made,  as  required  by  statute,  if  any  such  statute  exists.20 


amination  of  the  wife,  etc.,  shall  have 
been  taken,  etc.,  by  the  clerk  receiving 
the  acknowledgment  of  the  deed.  etc..  and 
that  being  duly  certified  with  the  deed, 
and  recorded,  shall  transfer  such  wife's 
estate,  etc.,"  as  fully  as  if  the  examina- 
tion had  been  made  by  the  court,  or  the 
clerk  in  whose  office  the  deed  shall  be 
recorded.  It  is  by  construction  of  these 
last-recited  laws,  that  the  clerks  are  held, 
in  Kentucky,  to  be  authorized  to  take  the 
acknowledgments  and  privy  examination 
of  femes  covert,  in  all  cases  of  deeds 
made  by  them  and  their  husbands.  El- 
liott V.  Peirsol,  1  Pet.  338,  339,  7  L.  Ed. 
164. 

16.  Mayor  or  justice  in  Virginia. — In- 
asmuch as,  in  affirmative  statutes,  such 
parts  of  the  prior  as  may  be  incorporated 
into  the  subsequent  statute,  as  consistent 
with  it,  must  be  considered  in  force,  and 
if  a  subsequent  statute  be  not  repugnant 
in  all  its  provisions  to  a  prior  one,  yet 
if  the  later  statute  clearly  intended  to 
prescribe  the  only  rules  which  should 
govern,  it  repeals  the  prior  one;  under 
the  application  of  these  rules,  the  law  of 
Virginia,  passed  in  1776,  authorizing  the 
mayor  of  a  city  to  take  the  acknowledg- 
ment of  a  feme  covert  to  a  deed,  was  not 
repealed  by  the  act  of  1785,  or  that  of 
1796.  Daviess  v.  Fairbairn.  3  How.  636, 
11    L.    Ed.    760. 

17.  Justice  of  the  peace. — McKeen  v. 
Delancy,  5  Cranch  22,  3  L.  Ed.  25;  El- 
liott Z!.  Peirsol,  1  Pet.  328,  339,  7  L.  Ed. 
164;  Elwood  v.  Flannigan,  104  U.  S.  562, 
566,    26    L.    Ed.    842. 

Justice  of  the  peace  in  Kentucky. — "The 
fourth  section  of  the  Kentucky  statute  of 
1796  (see  1  Litt.  Laws,  p.  569)  provides 
for  the  privy  examination  and  acknowl- 
edgment of  femes  covert  in  open  court; 
and  where  they  cannot  conveniently  at- 
tend, authorizes  a  commission  to  issue  to 
two  justices,  to  take  and  certify  the  ac- 
knowledgment and  privy  examination; 
and  declares,  that  'in  either  case,  the  said 
writing,  acknowledged  by  the  husband, 
and  proved  by  witnesses  to  be  his  act, 
and  recorded  together  with  such  privy 
examination  and  acknowledgment,  etc., 
shall  not  only  be  sufficient  to  convey  or 
release  any  right  of  dower,  etc.,  but  be 
as  effectual  for  everv  other  purpose,  as  if 
she  were  an  unmarried  woman.'  "  Elliott 
V.  Peirsol,  1   Pet.  328,  339,  7  L.   Ed.   164. 


Justice  of  the  peace  in  Illinois. — A  jus- 
tice of  the  peace  was  one  of  the  officers 
designated  in  Illinois,  in  1835,  to  take  ac- 
knowledgments. Elwood  V.  Flannigan, 
104   U.    S.   562,   566,   26   L.    Ed.   842. 

18.  Justice  of  the  supreme  court  in 
Pennsylvania. — Under  the  act  of  Penn- 
sj'lvania  of  1715,  which  requires  a  deed 
to  be  acknowledged  before  a  justice  of 
the  peace  of  the  county  where  the  lands 
lie,  it  had  been  the  long-established  prac- 
tice, before  the  year  of  1775,  to  acknowl- 
edge deeds  before  a  justice  of  the  supreme 
court  of  the  province  of  Pennsylvania; 
and  although  the  act  of  1715  does  not  au- 
thorize such  a  practice,  yet.  as  it  has  pre- 
vailed, it  is  to  be  considered  as  a  correct 
exposition  of  the  statute.  McKeen  v. 
Delancy,  5  Cranch  22,  3  L.  Ed.  25.  See. 
also,  Davey  v.  Turner.  1  Dall.  11,  1  L. 
Ed.    15. 

"Were  this  act  of  1715  now,  for  the 
first  time,  to  be  construed,  the  opinion  of 
this  court  would  certainly  be,  that  the 
deed  was  not  regularly  proved.  A  jus- 
tice of  the  supreme  court  would  not  be 
deemed  a  justice  of  the  county,  and  the 
decision  would  be,  that  the  deed  was  not 
properljf  proved,  and  therefore,  not  le- 
gally recorded.  But,  in  construing  the 
statutes  of  a  state  on  which  land  titles 
depend,  infinite  mischief  would  ensue, 
should  this  court  observe  a  different  rule 
from  that  which  has  been  long  established 
in  the  state;  and  in  this  case,  the  court 
cannot  doubt,  that  the  courts  of  Penn- 
sylvania consider  a  justice  of  the  supreme 
court  as  within  the  description  of  the  act." 
McKeen  zj.  Delancy,  5  Cranch  22,  30.  3  L. 
Ed.  25. 

19.  When  taken  in  another  state  ac- 
cording to  its  laws. — Secrist  v.  Green,  3 
Wall.  744,  18  L.  Ed.  153;  Little  v.  Hern- 
don,    10   Wall.    26,    19    L.    Ed.   878. 

20.  General  rule. — Smith  v.  Gale,  144 
U.  S.  509,  521,  36  L.  Ed.  521;  Secrist  v. 
Green,  3  Wall.  744,  750,  18  L.  Ed.  153; 
Elwood  z'.  Flannigan,  104  U.  S.  562,  26 
L.  Ed.  842;  Carpenter  v.  Dexter,  8  Wall. 
513.  19  L.  Ed.  426;  Little  r.  Herndon,  10 
Wall.  26.  19  L.  Ed.  878;  McEwen  v. 
Buckley.  24  How.  242,  247.  16  L.  Ed.  672. 
As  to  proof  of  authority,  see  post, 
"Proof   of   Officer's    Aiitliority,"'   V,    C. 

A  deed  for  lands  in  Illinois,  executed  in 
Virginia  and  acknowledged  in  conformity 
with    its    laws    at    the    time    of    execution, 


A  CKNOl  I'LBDGMBN  TS. 


83 


C.  Mode  of  Making — 1.  By  Married  Woman. — A  deed  for  a  wife's  maiden 
lands,  executed  by  herself  and  husband,  acknowledged  by  both  before  a  justice 
of  the  common  pleas  court,  the  acknowledgment  setting  out  that  the 
wife,  being  examined  secretly  and  apart  from  her  husband,  did  declare  that  she 
executed  the  deed  with  her  full,  free  and  voluntary  consent,  the  acknowledg- 
ment and  examination  being  indorsed  by  the  justice  on  the  deed,  was  held  in  1764, 
under  the  practice  and  usage  of  the  province  of  Pennsylvania,  as  good  and  valid^ 
though  not  according  to  the  common  law  of  England. ^i 


may  be  lawfully  recorded  in  Illinois,  and 
Tcad  in  evidence  without  further  proof  of 
execution.  Little  -r.  Herndon,  10  Wall. 
26,    19    L.    Ed.    878. 

The  only  officers  authorized  by  the 
laws  of  Illinois,  in  1818,  to  take  acknowl- 
edgments or  proof,  without  the  state,  of 
deeds  of  land  in  the  state,  were  "mayors, 
chief  magistrate.s.  or  officers  of  the  cities, 
towns,  or  places,"  where  the  deeds  were 
executed.  But  this  want  of  authority  of 
the  JAJstice  of  the  peace  was  remedied  by 
a  statute  passed  on  the  23d  of  February, 
1847.  Carpenter  v.  Dexter,  8  Wall.  513, 
5^5,    19    L.    Ed.    426. 

Justice  of  the  peace  under  Illinois  laws. 
— A  justice  of  th€  peace  was  not  au- 
thorized, by  the  laws  of  Illinois,  in  1818, 
to  take  the  acknowledgment  or  proof, 
without  the  state,  of  deeds  of  land  situ- 
ated within  the  state;  but  this  want  of 
authority  was  remedied  by  a  statute 
passed  on  the  22d  of  February,  1847.  Car- 
penter V.  Dexter.  8  Wall.  513,  19  L.  Ed. 
426. 

Master  in  chancery  under  Illinois  laws. 
- — An  acknowledgment,  on  the  day  of  its 
<Iat«,  before  a  master  of  chancery,  in  New 
York,  of  a  deed  executed  March  3d, 
1818 — probate  being  made  by  a  subscrib- 
ing witness  personall}'  known  to  the 
master,  of  the  identity  of  the  party  pro- 
fessing to  grant  with  the  party  present- 
ing himself  to  acknowledge,  and  the 
record  of  acknowledgment  certifying  that 
the  grantor  ''consented  that  the  deed 
might  be  recorded  where  necessary" — 
was  a  sufficient  acknowledgment  of  the 
•deed,  by  the  laws  of  New  York  regulat- 
ing the  subject,  at  the  date  when  the  deed 
was  made.  Secrist  r.  Green,  3  Wall.  744, 
18    L.    Ed.    153. 

Having  been  so,  and  conveying  land  in 
Illinois,  such  deed  was  entitled  to  be  re- 
corded in  Illinois,  the  laws  of  that  state 
allowing  deeds  for  lands  in  the  state,  ex- 
ecuted out  of  it  but  within  the  United 
States,  to  be  recorded  when  acknowledged 
or  proved  in  conformity  with  the  law  of 
the  state  where  executed;  and  when  so 
recorded,  it  was  properly  read  without 
other  proof  of  execution.  Secrist  v. 
Green.   3   Wall.   744.   18   L.   Ed.   153. 

Grantee  incompetent. — Mackall  v.  Casi- 
lear.  137  U.  S.  556,  564,  34  L.  Ed.  776; 
Phelos  r.  Harris,  101  U.  S.  370.  375.  25 
1^.  Ed.  855.  See  ante,  "In  General."  IV, 
B,  1.   a. 

Clerk  of  court  under  Tennessee  laws. — 
By    the    laws    of    Tennessee    anterior    to 


1856,  a  d-eed  for  lands  lying  in  Tennessee 
could  not  be  acknowledged  or  proven  in 
another  state  before  the  clerk  of  a  court. 
In  1856,  a  law  was  passed  allowing  this 
to  be  done.  This  statute  was  prospec- 
tive. McEwen  v.  Bulkley,  24  How  242. 
16   L.    Ed.    672. 

And  where  a  deed  was  acknowledged 
in  1839,  before  the  clerk  of  a  court  in  an- 
other state,  a  copy  of  it  from  the  record 
was  improperly  allowed  to  be  read  in 
evidence  to  the  jury.  McEwen  v.  Bulk- 
ley,  24   How.  242,   16   L.   Ed.   672. 

The  circumstance  that  the  law  of  1856 
was  called  an  amendment  of  the  prior 
law  does  not  change  this  view  of  the  sub- 
ject. McEwen  v.  Bulkley,  24  How  242 
16    L.    Ed.    672. 

Clerk  of  United  States  district  court 
under  Virginia  laws. — In  the  case  of  a 
deed  rnade  by  a  grantor  nonresident  of  Vir- 
ginia, it  is  sufficient  to  allow  a  proper 
record  of  it  under  the  Virginia  statute  of 
December  8th,  1792,  that  there  be  a  cer- 
tificate of  the  clerk  oi  a  district  court  of 
the  United  States  that  the  grantor  per- 
sonally appeared  in  court  and  acknowl- 
edged the  instrument  to  be  his  free  act 
and  deed;  this  being  accompanied  by  a 
certificate  of  even  date,  by  the  judge  of 
the  same  court,  that  the  clerk  was  then 
the  officer  that  he  professed  to  be.  Shutte 
7'.  Thompson.  15  Wall.  151,  21   L.   Ed.  123. 

21.  Execution  by  married  woman.^ 
Davey  v.  Turner,  1  Dall.  11,  l  L.  Ed.  15; 
Lloyd  7'.  Taylor,  1  Dall.  17,  1  L.  Ed.  is'. 
See  ante,  "Of  Instrument  Executed  by 
Married  Woman."  II,  A,  3;  post,  "Instru- 
ments Executed  by  Husband  and  Wife  " 
V,   B,   4,   c. 

"In  the  case  of  Davey  v.  Turner,  1 
Dall.  11,  1  L.  Ed.  15,  tried  in  this  court, 
September.  1764  (ante.  p.  11),  it  was 
ruled,  tlvat  an  acknowledgment  of  the 
deed,  on  a  private  examination  before 
a  justice  of  peace,  was  sufficient,  under  a 
long  usage,  to  sanctify  her  deed,  though 
not  strictly  agreeable  to  law."  Lloyd  '^v 
Taylor.  1   Dall.  17,   1   L.  Ed.  18. 

It  seems  that,  where  the  wife  had  de- 
clared that  she  executed  the  deed  with 
her  free  consent,  it  must  be  taken  that  the 
magistrate  taking  her  acknowledgment  did 
his  duty  in  making  her  acquainted  with 
the  contents,  there  being  no  statutory 
provision  on  the  subject,  only  a  common 
usage.  Davey  v.  Turner,  1  Dall.  11,  ]  L 
Ed.   15. 

"By  the  laws  of  Maryland,  to  enable  a 
married    woman    to    execute    a    valid    deed 


84 


ACKNO  WLEDGMENTS. 


2.  By  Corporation. — Where  there  is  no  statutory  provision  as  to  the  execu- 
tion or  acknowledgment  of  deeds  by  a  corporation,  in  such  cases,  its  officer  affix- 
ing its  seal  is  the  party  executing  the  deed,  within  the  meaning  of  the  statutes 
requiring  deeds  to  be  acknowledged  by  the  grantor. -^ 

3.  In  Representative  Capacity. — A  deed  executed  and  acknowledged  by  a 
guardian  for  his  ward,  and  acknowledged  by  him  "to  be  his  act  and  deed,  as 
guardian  aforesaid,  and  thereby  the  act  and  deed  of"  the  ward,  is  a  good  execu- 
tion and  acknowledgment. 2^ 

V.     Certificate    of   Acknowledgment. 

A.  Purpose  and  Necessity. — The  privy  examination  and  acknowledgment 
of  a  deed,  by  a  feme  covert,  so  as  to  pass  her  estate,  cannot  be  legally  proved  by 
parol    testimony. 2^ 

B.  Requisites  Essential  to  Valid  Certificate. — 1.  Designation  of  Of- 
ficer's Official  Authority. — The  statement  by  an  officer  in  his  certificate,  of 
his  official  character,  which  authorizes  the  holder  thereof  to  take  acknowledg- 
ments, necessarily  includes  a  statement  of  his  official  authority.-^ 


for  realty,  the  separate  exarttination  and 
other  solemnities,  required  by  law,  are  in- 
dispensable." Rhea  v.  Rhenner,  1  Pet. 
105,   7   L.    Ed.    72. 

Separate  acknowledgment.  — •  Separate 
acknowledgment  was  formerly  provided 
for  in  probably  all  the  statutes  of  the 
various  states  relating  to  the  subject  of 
the  conveyance  by  married  women  of  any 
interest  they  may  have  in  real  estate.  It 
has  been  said  to  be  the  most  important 
and  essential  element  in  the  method  em- 
ployed to  transfer  such  estates.  Williams 
r.  Paine.  169  U.  S.  55.  64.  42  L.  Ed.  658; 
Holladay  v.  Daily,  19  Wall.  606,  609,  22 
L.  Ed.  187.  See  ante.  "Of  Instrument 
Executed  by  Married  Woman,"  II.  A,  3; 
post,  "Instruments  Executed  by  Husband 
and   Wife,"  V.   B,  4,  c. 

By  §  450,  Rev.  Stat.,  of  District  of  Co- 
lumbia, the  officer  taking  the  acknowl- 
edgment of  a  married  woman  to  a  deed 
for  land  or  interest  therein,  merely  re- 
linquishing her  dower  or  as  a  party  with 
her  husband,  is  required  to  examine  her 
privily  and  apart  from  the  husband,  and 
to  explain  the  deed  to  her  full}'.  Hitz  v. 
Jenks.  123   U.  S.  297.  31   L.   Ed.   156. 

22.  By  corporation  in  Tennessee. — This 
is  the  case  in  Tennessee.  Kelly  v.  Cal- 
houn, 95  U.  S.  710,  24  L.  Ed.  544.  See 
the  title  CORPORATIONS. 

23.  Acknowledgment  in  representative 
capacity. — Van  Ness  v.  United  States 
Bank,  13  Pet.  17,  10  L.  Ed.  38. 

"It  rs  argued,  that  it  should  have  been 
signed  'Marcia  Burnes,  by  her  guardian, 
W.  M.  Duncanson,'  and  in  like  manner  ac- 
knowledged 'as  her  act  and  deed.'  This 
is  a  case,  where  no  question  arises  as  to 
the  manner  of  executing  an  authority  given 
by  private  persons,  as  to  which  the  case 
of  the  Lessee  of  Clarke  v.  Courtney,  5 
Pet.  319,  350,8  L.  Ed.  140,  may  justly  ap- 
ply. But  this  is  the  case  where  an  au- 
thority is  to  be  exercised  under  the  de- 
cree of  a  court  of  chancery,  and,  there- 
fore,   where     a    liberal    construction     may 


and  ought  to  prevail.  These  two  forms 
of  signature  and  acknowledgment  mean 
precisely  the  same  thing;  and  as  this 
deed  substantially  conforms,  in  the  man- 
ner of  its  execution,  to  the  directions  con- 
tained in  the  decree,  we  consider  it  to  be 
valid  and  effectual  to  convey  the  property 
therein  mentioned."  Van  Ness  v.  United 
States  Bank.  13  Pet.  17,  20,  10  L.  Ed.  38. 
A  deed  acknowledged  by  an  attorney  in 
fact  for  a  party  thereto,  where  the  ac- 
knowledgment states  that  it  was  acknowl- 
edged subsequently  to  its  execution  and 
under  a  power  dated  prior  to  the  date  of 
the  actual  p-^wer,  though  both  wc-e  sub- 
sequent to  the  deed,  is  not  well  acknowl- 
edged. Dubois  :■.  Hepburn,  10  Pet.  1,  20, 
9    L.    Ed.    .'^25. 

24.  Purpose  and  necessity  of  certificate. 
—Elliott  c'.  Peirsol,  1  Pet.  328,  338,  7  L. 
Ed.    164. 

What  the  law  requires  to  be  done,  and 
appear  on  record,  can  only  be  done,  and 
made  to  appear  by  the  record  itself,  or 
an  exemplification  of  it;  it  is  perfectly 
immaterial,  whether  there  be  an  acknowl- 
edgment or  privy  examination  in  form,  or 
not,  if  there  be  no  record  made  of  the 
privy  examination;  for.  by  the  express 
provisions  of  the  law,  it  is  not  the  fact  of 
privy  examination  only,  but  the  record- 
ing of  the  fact,  which  make  the  deed  ef- 
fectual to  pass  the  estate  of  a  feme  cov- 
ert. Elliott  V.  Peirsol,  1  Pet.  328,  7  L. 
Ed.  164.  See  ante,  "Necessity  for  Ac- 
knowledgment," TI;  post,  "Evidence," 
VII.    D.' 

25.  Designation  of  official  character 
sufficient. — Elwood  v.  Flannigan,  104  U. 
S.    562.    568,    26    L.    Ed.    842. 

A  deed  was  signed  and  sealed  by  the 
grantor,  and  was  attested  by  two  wit- 
nesses, having  indorsed  upon  it  a  certifi- 
cate of.  acknowledgment  signed  by  Titus 
B.  Willard,  which  set  forth  that  he  was 
one  of  the  justices  of  the  peace  of  Ber- 
rien County,  and  that  Ash-kum.  who  was 
named   in   the   deed   as   grantor,   came   be- 


ACKNO IVLEDGMENTS. 


85 


2.  Proof  of  Officer's  Authority. — Unless  the  statute  of  a  state  requires  evi- 
dence of  official  character  to  accompany  the  official  act  which  it  authorizes,  none 
is  necessary.  And  where  one  slate  recognizes  acts  done  in  pursuance  of  the  laws 
of  another  state,  its  courts  will  take  judicial  cognizance  of  those  laws,  so  far  as 
it  may  be  necessary  to  determine  the  validity  of  the  acts  alleged  to  be  in  conform- 
ity with  them.2«     But  the  requirements  of  the  laws  of  the  state  where  the  cer- 


fore  him  and  acknowledged  its  execution. 
It  is  true  the  certificate  does  not  state 
that  the  officer  was  one  who  by  law  could 
take  the  acknowledgment  of  deeds,  but  it 
does  state  what  the  office  was,  and  as 
the  statute  makes  it  the  official  duty  of 
one  holding  such  an  office  to  take  the  ac- 
knowledgment of  deeds,  the  statement  of 
his  official  character  necessarily  included 
a  statement  of  his  official  authorit3^  El- 
wood  V.  Flannigan,  104  U.  S.  562,  568,  26 
L.    Ed.   842. 

But  not  essential. — The  acts  of  the  as- 
sembly of  Maryland,  prescribing  the  mode 
in  which  deeds  should  be  acknowledged 
for  the  conveyance  of  real  property,  were 
adopted  by  congress,  in  the  act  assuming 
jurisdiction  in  the  District  of  Columbia, 
together  with  the  other  laws  of  Mary- 
land then  in  force.  The  acts  of  the  as- 
sembly of  Maryland  relating  to  the  ac- 
knowledgment of  deeds,  do  not  require 
that  justices  of  the  peace,  or  other  offi- 
cers who  have  authority  to  take  acknowl- 
edgments, shall  describe  in  their  certifi- 
cates their  official  character;  whenever  it 
is  established  by  proof,  that  the  acknowl- 
edgment was  made  before  persons  au- 
thorized to  take  it,  it  must  be  presumed 
to  have  been  taken  by  them  in  their  offi- 
cial capacity.  Van  Ness  v.  United  States 
Bank,   1.3   Pet.   17,   10  L.   Ed.  38. 

26.  Necessity  of  proof  of  officer's  au- 
thority.— Carpenter  v.  Dexter.  8  Wall.  .^13, 
19  L.  Ed.  426;  Elwood  v.  Flannigan.  104 
U.  S.  562,  26  L.  Ed.  842:  Secrist  v.  Green, 
3  Wall.  744,  750,  18  L.  Ed.  153.  See  ante, 
"When  Taken  in  Another  State,"  IV,  B,  2. 

Thus,  where  a  statute  of  Illinois  pro- 
vided that  deeds  of  land  within  the  state, 
which  had  been,  or  might  thereafter,  be 
executed  without  the  state  and  within  the 
United  States,  and  which  had  been,  or 
might  be  acknowledged  or  proved,  in  con- 
formity with  the  laws  of  the  state  where 
executed,  were  admissible  to  record  in  the 
counties  of  Illinois,  in  which  the  prop- 
erty was  situated;  and  a  deed  executed  in 
New  York  was  acknowledged  before  a 
judge  of  a  court  of  record  of  that  state — 
an  officer  authorized  by  the  laws  of  New 
York  to  take  the  acknowledgment  and 
proof  of  deeds;  and  the  certificate  of  this 
judge  was  not  accompanied  by  any  evi- 
dence of  his  official  character,  or  that  his 
certificate  was  in  conformity  with  the 
laws  of  that  state;  held,  that  no  such  cer- 
tificate of  conformity  was  necessary  for 
the  reasons  given  above.  Carpenter  v. 
Dexter.   8  Wall.   513.    19   L.   Ed.   426. 

By  the  statutes  of  Illinois  in  force  when 
the  deed  in  question  was  executed,  a  deed 


signed  and  sealed  by  the  party  making  the 
same  was  sufficient  for  the  conveyance  of 
any  lands  in  that  state.  Rev.  Laws,  1833, 
p.  129,  §  1.  To  entitle  such  a  deed  to 
record,  however,  an  acknowledgment  was 
required  before  one  of  certain  designated 
officers,  among  which  were  justices  of  the 
peace.  If  the  justice  resided  out  of  the 
state,  it  was  required  that  there  be  added 
to  the  deed  a  certificate  of  the  proper 
clerk,  "setting  forth  that  the  person  be- 
fore whom  such  *  *  *  acknowledgment 
was  made  was  a  justice  of  the  peace  at 
the  time  of  making  the  same."  Id.,  p.  138, 
§  1.  Later  statutes  made  a  deed  executed 
in  another  state  entitled  to  record  when 
executed  and  acknowledged  or  proved  ac- 
cording to  law  there,  and  the  same  certi- 
fied to  by  the  clerk  of  a  court  of  record 
there.  Elwood  v.  Flannigan,  104  U.  S. 
562,    566,    26    L.    Ed.    842. 

Although  the  deed  was  not  acknowl- 
edged in  conformity  to  Illinois  laws,  and 
so  as  to  be  entitled  to  record  when  it  was 
recorded  in  Illinois,  yet,  under  the  later 
statutes,  upon  loss  of  the  original  a  cer- 
tified copy  from  the  Illinois  records  of 
the  deed  and  certificate'  of  acknowledg- 
ment, when  accompanied  by  the  neces- 
sary certificates  of  due  execution  and  au- 
thority subsequently  made  by  the  proper 
officers,  is  competent  evidence  in  Illinois. 
The  laws  of  Illinois,  therefore,  requiring 
the  certificate  of  a  clerk  in  certain  cases 
as  to  the  official  character  of  a  justice  of 
the  peace,  are  unimportant.  If  in  Michi- 
gan such  a  certificate  was  not  necessary 
to  complete  the  execution  of  the  deed, 
none  was  required  in  Illinois.  Certainly 
a  deed  may  be  said  to  be  fully  executed 
when  all  has  been  done  that  is  necessary 
to  entitle  it  to  record,  and  for  that  pur- 
pose in  Michigan  the  evidence  of  an  ac- 
knowledgment was  complete  when  the  of- 
ficer before  whom  it  was  taken  signed  a 
certificate  to  that  effect  indorsed  on  the 
deed.  No  provision  was  made  for  any 
authentication  of  his  official  character. 
His  certificate,  made  as  it  must  neces- 
sarily be,  under  the  obligations  of  his 
official  oath,  was  deemed  sufficient.  El- 
wood V.  Flannigan,  104  U.  S.  562,  568,  26 
L.    Ed.    842. 

It  being  objected  that  there  was  no 
proof  that  the  officer  taking  the  acknowl- 
edgment was  at  the  time  in  fact  a  justice 
of  the  peace,  the  laws  of  Michigan  re- 
quired no  other  evidence  of  that  fact  to 
entitle  a  deed  to  record  than  the  certifi- 
cate of  the  officer  himself.  That  was 
given  in  this  case,  and  in  addition  it  was 
shown   that  he  was   acting  as  a  justice   of 


86 


ACKNO  WLEDGMENTS. 


tificate  is  to  be  used,  must  be  complied  with.^' 

3.  Venue. It  will  be  presumed,  that  a  commissioner  of  deeds,  in  New  York, 

whose  authority  to  act  is  limited  only  to  his  county,  exercised  his  office  within  the 
territorial  limits  for  which  he  was  appointed,  although  the  only  venue  given  to 
his  certificate  of  acknowledgment  be  "state  of  New  ^^ork."  if  such  were  not 
the  presumption,  the  defect  in  this  particular  held  to  be  supplied  in  this  case  by 
reference  to  the  deed  and  the  previous  certificate  of  acknowledgment  by  the 
same  person;  in  the  first  of  which  the  grantor  designated  the  county  in  which  he 
had  affixed  his  hand  and  seal  to  the  instrument,  and  in  the  second  of  which  the 
county  is  given  in  its  venue. ^^ 

4.  Contents  of  Body  oe  Certieicate — a.  In  General. —  The  certificate  of 
acknowledgment  ought  not  to  be  left  in  uncertainty.  It  is  ex  parte  proof  of  the 
deed ;  and  it  ought  to  appear,  with  all  reasonable  certainty,  that  the  requisites  of 
the  law  had  been  complied  with.^^  In  aid  of  the  certificate  of  acknowledgment, 
or  proof  of  a  deed,  reference  may  be  had  to  the  instrument  itself,  or  to  any  part 


the  peace  at  the  time.  This  made  it  un- 
necessary to  consider  whether  the  cer- 
tificate of  the  secretary  of  state,  of  the 
fact  of  his  appointment,  was  competent 
evidence.  The  law  did  not  require  a  copy 
of  his  commission,  or  proof  of  his  having 
taken  the  official  oath.  It  was  sufficient 
that  he  was  acting  under  color  of  right. 
That  fact  was  clearly  shown.  Elwood  v. 
Flannigan,  104  U.  S.  562,  569.  26  L.  Ed. 
842. 

Master  in  chancery. — Where  it  was  in- 
sisted that  there  should  have  been  some 
proof  of  the  official  character  of  the  mas- 
ter in  chancery  certifying  an  acknowledg- 
ment, where  neither  the  legislatures  of 
New  York  or  Illinois,  the  states  con- 
cerned, saw  fit  to  require  any  .such  proof, 
therefore  none  was  necessary  in  Illinois. 
Secrist  v.  Green,  3  Wall.  744,  750,  18  L. 
Ed.    15?.. 

27.  Statutory  requirements  must  be  ob- 
served.—Smith  V.  Gale,  144  U.  S.  509.  521, 
36  L.  Ed.  521.  See  ante,  "When  Taken 
in  Another  State,"  IV,  B,  2;  "Construc- 
tion," VI,   C.  2. 

Instruments  executed  in  Minnesota 
were  acknowledged  before  a  notary  pub- 
lic of  Ramsey  county  in  that  state,  who 
certified  to  the  same  under  his  official 
seal,  and  to  this  acknowledgment  was  ap- 
pended a  certificate  of  the  secretary  of 
state  of  Minnesota,  to  the  effect  that  the 
notary  taking  the  acknowledgment  had 
been  duly  appointed  and  qualified,  etc.; 
that  full  faith  and  credit  were  due  to  his 
official  acts;  and  that  his  signature  was 
genuine,  and  the  instrument  executed  and 
acknowledged  in  accordance  with  the 
laws  of  the  state.  Indorsed  upon  these 
instruments  was  the  certificate  of  the 
register  of  deeds  of  Minnehaha  county, 
Dakota,  that  they  had  been  filed  for 
record  in  August,  1871.  Objection  was 
made  to  the  admission  of  these  convey- 
ances upon  the  ground  that,  having  been 
executed  without  the  state,  the  certificate 
of  the  officer  taking  the  acknowledgment 
ought  to  have  been  "accompanied  by  a  cer- 
tificate under  the  name  and  ofilcial  seal 
of    the    clerk,    register,    recorder    or    pro- 


thonotary  of  the  county  in  which  such 
officer  resides  *  *  *  specifying  that  such 
officer  was  at  the  time  of  taking  the  proof 
or  acknowledgment  duly  authorized," 
etc.,  as  required  by  §  528  of  the  Civil 
Code  (Dakota)  of  1865-66.  Under  this 
statute,  the  certificate  of  the  secretary  of 
state  was  insufficient  and  immaterial. 
Smith  V.  Gale,  144  U.  S.  509,  521.  36  L. 
Ed.    521. 

But  this  want  of  a  proper  additional 
certificate  was  cured  by  the  curative  act 
of  1872-3  (Laws,  pp.  63,  64).  §  5.  Smith 
V.  Gale,  144  U.  S.  509,  521.  36  L.  Ed.  521. 
See   post,   "Construction,"   VI,   C,   2. 

In  Virginia. — In  Shutte  v.  Thompson, 
15  Wall.  151,  21  L.  Ed.  123.  a  deed  was 
held  sufficiently  proved  for  record  in  Vir- 
ginia where  acknowledged  outside  Vir- 
ginia, when  the  certificate  of  the  United 
States  district  clerk  was  accompanied  by 
a  certificate  of  even  date,  bj'  the  judge  of 
the  same  court,  that  the  clerk  was  then 
the   officer   he   professed   to   be. 

28.  Presumption  as  to  venue. — Carpen- 
ter V.   Dexter,  8  Wall.   513.   19   L.   Ed.   426. 

29.  Certainty  required. — Hinde  v.  Long- 
worth,  11  Wheat.  199,  207.  6  L.  Ed.  454. 

In  Tennessee. — The  formula  prescribed 
by  the  laws  of  Tennessee  for  the  acknowl- 
edgment of  deeds  is:  "Personally  ap- 
peared before  me  *  *  *  the  within  named 
bargainor,  with  whom  I  am  personally 
acquainted,  and  who  acknowledged  that 
he  executed  the  within  instrument  for  the 
purposes  therein  contained."  If  the  ac- 
knowledgment be  taken  without  the  state, 
by  one  of  the  officers  designated  in  § 
2043,  Tenn.  Code,  the  same  formula  must 
be  followed.  Kelly  v.  Calhoun,  95  U.  S. 
710,    712,   24    L.    Ed.    544. 

The  certificate  of  probate  of  a  deed  in 
Tennessee  did  not  say  that  the  witness 
swore  that  the  grantor  acknowledged  it 
on  the  day  of  its  date.  But  as  the  cer- 
tificate said  that  the  grantor  acknowl- 
edged it  for  the  purposes  therein  con- 
tained, the  probate  is  covered  by  an  act 
passed  in  1846.  Lea  v.  Polk  County  Cop- 
per   Co.,   21    How.    493,    16   L.    Ed.    203. 


ACKXOIVLBDGMEXTS. 


87 


of  it.3o  Semble,  that,  where  the  officer  in  eiTect  only  certified  that  he  was  told 
by  an  interpreter  that  an  Indian  woman  made  the  acknowledgment,  no  power 
having  been  given  him  to  swear  an  interpreter  for  such  a  purpose,  the  acknowl- 
edgment was  invalid.^  1 

b.  Identification  of  Grantor  as  Person  Ackno-u'ledging. — A  statutory  require- 
ment that  the  certificate  shall  state  or  show  that  the  person  acknowledging  the  in- 
strument was  personally  known  or  proven  to  be  the  person  executing  same,  is 
one  of  substance,  but  a  substantial  compliance  therewith  is  sufficient.-^^  jf  \\^q 
officer  taking  the  acknowledgment  was  satisfied  of  such  identity,  and  so  certified, 


30.  Reference  to  instrument. — Carpen- 
ter V.   Dexter.  8  Wall.   513,   19   L.   Ed.   426. 

Presumption  in  favor  of  validity,  see 
post,  "Presumption  in  Favor  of  Validity," 
VII.  A. 

31.  Certificate  on  information  of  in- 
terpreter insufficient. — Elwood  v.  Flanni- 
gan,   104  U.   S.   562.   569,  26   L.   Ed.   842. 

32.  Substantial  compliance  with  statute 
sufficient. — Schley  z\  Pullman  Car  Co., 
120  U.  S.  575,  585,  .30  L.  Ed.  789;  Kelly  v. 
Calhoun.  95  U.  S.  710.  712,  24  L.  Ed.  544; 
Carpenter  v.  Dexter,  8  Wall.  513,  19  L. 
Ed.  426;  Elwood  z\  Flannigan,  104  U.  S. 
562,  568,  26   L.  Ed.  842. 

"It  was  said  in  Lindley  v.  Smith,  46 
III.  523.  527,  that  the  requirement  that  the 
certificate  should  show  that  the  person 
acknowledging  it  was  personally  known 
to  the  officer  to  be  the  person  whose 
name  is  subscribed  to  the  deed,  or  was 
proved  to  be  such,  by  a  credible  witness, 
was  one  of  substance  and  salutary  in  its 
operation,  and  was  not  dispensed  with  by 
the  act  of  1853;  and  that  "it  is  the  ac- 
knowledgment of  the  feme  covert  which 
is  the  operative  act  to  pass  her  title.'  " 
Schley  z:  Pullman  Car  Co..  120  U.  S. 
575.    585,    ?.0    L.    Ed.    789. 

Where  the  officer's  certificate  states 
that  "personally  came  Christina  Lynn  and 
William  Lynn,  her  husband,  known  to  me 
to  be  the  persons  who  executed  the  fore- 
going instrument,  and  acknowledged  the 
same  to  be  their  free  act  and  deed,"  this 
is.  in  substance,  a  statement  that  they 
came  before  the  officer  and  were  person- 
ally known  to  him  to  be  the  real  persons 
who  in  fact  subscribed  and  acknowledged 
the  deed.  Schley  7'.  Pullman  Car  Co..  120 
U.    S.    575,    585,    30    L.    Ed.    789. 

The  formula  prescribed  by  the  laws  of 
Tennessee  for  the  acknowledgment  of 
deeds  is  "Personally  appeared  before  me 
*  *  *  the  within  named  bargainor,  with 
whom  I  am  personally  acquainted,  and 
who  acknowledged  that  he  executed  the 
within  instrument  for  the  purposes  therein 
contained."  Held,  that  a  certificate  of  an 
officer  taking  the  acknowledgment  of  the 
grantor  in  a  deed  of  trust,  in  which  the 
officer  certifies  that  said  grantor  is  "per- 
sonally known"  to  him,  is  a  compliance 
with  the  statute.  Kelly  v.  Calhoun.  95  U. 
S.    710.   24   L.    Ed.    544. 

In  this  formula,  both  the  phrases  'per- 
sonally appeared'  and  'with  whom  I  am 
personally    acquainted'   are   found.      It   has 


been  held,  by  the  supreme  court  of  the 
state,  that  the  latter  means  more  than  the 
former,  and  that  personal  knowledge  is 
indispensable.  But  it  has  been  also  held, 
that  a  substantial  compliance  with  the 
statute  is  all  that  is  required.  And  such 
is  the  rule  laid  down  by  this  court. 
Kelly  V.  Calhoun,  95  U.  S.  710,  712,  24  L. 
Ed.  544;  Carpenter  z:  Dexter,  8  Wall  513. 
19    L.    Ed.    426. 

To  be  "personally  acquainted  with"  and 
to  "know  personally"  are,  in  such  a  cer- 
tificate, equivalent  phrases.  Kelly  v.  Cal- 
houn,  95   U.    S.    710,   24    L.    Ed.    544. 

Implication  of  knowledge  from  facts 
certified. — It  being  objected  that  the  cer- 
tificate of  a  Michigan  officer  did  not  state 
that  the  person  acknowledging  was  per- 
sonally known  to  the  officer,  there  is  noth- 
ing in  the  Michigan  statute  which  re- 
quires any  such  statement,  though  there 
is  in  Illinois.  It  is  enough  in  Michigan 
if  the  officer  certifies  to  the  fact  of  an 
acknowledgment  by  the  proper  party. 
That  has  been  done  in  this  case.  The 
statement  is  that  Ash-kum.  an  Indian 
chief,  came  before  the  officer  and  made 
the  necessary  acknowledgment.  This  im- 
plies that  the  grantor  was  in  some  way 
known  to  the  officer,  and  that  the  ac- 
knowledgment was  in  fact  made.  The 
making  of  the  certificate  was  an  official 
act,  done  under  the  sanction  of  an  offi- 
cial oath,  and  is  presumptively  true.  The 
laws  of  Michigan  did  not  require  the  of- 
ficer to  state  in  his  certificate  the  evi- 
dence by  which  the  identity  of  the  per- 
son was  established  in  his  mind.  It  was 
enough  that  he  certified  to  the  fact.  El- 
wood V.  ^lannigan.  104  U.  S.  562  568  '>6 
L.    Ed.    842. 

■"The  fact  that  the  grantor  was  in  this 
case  an  Indian  is  unimportant.  The  duty 
of  the  officer  was  precisely  the  same  in 
respect  to  him  as  it  was  to  other  men. 
The  officer  must,  in  his  case  as  in  othersj 
be  satisfied  of  the  identity  of  the  person,' 
as  well  as  of  the  fact  of  an  acknowledg- 
ment. That  being  dene,  it  was  his  duty 
to  make  the  certificate."  Elwood  v  Flan- 
nigan.  104  U.   S.   562.  569,   26   L.   Ed.   S42. 

"When  the  officer,  being  a  subscribing 
witness  himself  with  Wooster,  certifies 
that  'Wooster,  one  of  the  subscribing 
witnesses.'  came  before  him  and  was 
known  to  him.  he  does,  in  fact,  certify 
that  he  knew  Wooster  to  be  a  subscrib- 
ing witness   as  plainly  as  if  he  had  added 


A  CKN  O IV  LED  G  M  EN  1 S. 


the  evidence  by  which  he  readied  that  conclusion  cannot  be  inquired  into.-^^ 
c.  Instruments  Executed  by  Husband  and  Wife — (1)  In  General. — The  cer- 
tificate must  show,  with  all  reasonable  certainty,  that  the  requisites  of  law  have 
been  complied  with.  It  is  ex  parte  proof  of  the  deed  and  should  not  be  left  in 
uncertainty.^^ 


those  words.  There  is  here  a  compliance, 
in  substance  if  not  in  form,  with  the  stat- 
ute, and  that  is  all  which  is  required." 
Carpenter  v.  Dexter,  8  Wall.  513,  529.  19 
L.    Ed.   426. 

Omission  supplied  by  reference  to  at- 
testation clause. — Thus,  where  a  law  of 
Illinois,  in  force  in  1847,  provided  that  no 
officer  should  take  the  acknowledgment 
of  any  person,  unless  such  person  should 
be  personally  known  to  him  to  be  the 
real  person  who  executed  the  deed,  and 
in  whose  name  such  acknowledgment  was 
proposed  to  be  made,  or  should  be  proved 
to  be  such  by  a  credible  witness,  and  that 
such  personal  knowledge  or  proof  should 
be  stated  in  the  certificate;  and  the  cer- 
tificate of  the  officer  following  imme- 
diately after  the  attestation  clause  of  the 
deed,  stated  that  the  "above  named 
grantor,  who  has  signed,  sealed,  and  de- 
livered the  above  instrument  in  writing, 
personally  appeared"  before  the  officer, 
and  acknowledged  the  same  to  be  his 
free  act  and  deed,  but  omitted  to  state 
that  the  person  making  the  acknowledg- 
ment was  personally  known  to  the  of- 
ficer to  be  the  person  who  executed  the 
deed;  held,  that  the  omission  was  sup- 
plied by  reference  to  the  attestation 
clause,  which  declared  that  the  instru- 
ment was  "signed,  sealed,  and  delivered," 
in  presence  of  the  subscribing  witnesses, 
of  whom  the  officer  taking  the  acknowl- 
edgment was  one.  Carpenter  v.  Dexter, 
8  Wall.   513,   la  L.   Ed.   426. 

"The  law  of  Illinois  in  force  in  1818 
did  not  require  the  officer  taking  the  ac- 
knowledgment of  a  deed  to  certify,  from 
his  personal  knowledge,  to  the  identity  of 
the  party  making  the  acknowledgment 
with  the  grantor.  It  did  not  require  the 
acknowledgment  to  be  certified  in  any 
particular  form,  except  in  case  of  a  mar- 
ried woman.  A  certificate,  without  de- 
claring such  identity,  or  even  personal 
knowledge  of  the  parties  making  the  ac- 
knowledgment, was  held,  by  the  supreme 
court  of  that  state,  to  be  as  full  and  exact 
as  was  contemplated  by  the  law  of  1819, 
a  law  which  was  identical  in  terms,  so 
far  as  it  relates  to  the  point  under  con- 
sideration, with  the  law  in  force  in  1818. 
except  that  the  word  'territory'  was 
changed  to  that  of  'state.'  "  Carpenter  v. 
Dexter,  8  Wall.   513.  526,   19  L.   Ed.   436. 

33.    Source   of  knowledge   not   inquired 

into.— Culbertson  v.  Whitbeck  Co.,  127  U. 
S.  326.  330,  32  L.  Ed.  134;  Elwood  v. 
Flannigan,  104  U.  S.  562,  568,  26  L.  Ed. 
842. 

If   the    grantor    was    not   known    to   the 


officer  taking  the  acknowledgment,  the 
New  York  law  required  (in  1818)  that 
the  deed  should  be  proved  by  satisfactory 
evidence,  and  that  the  substance  of  the 
evidence,  with  the  names  of  the 
witnesses,  should  be  incorporated  in 
the  certificate  of  acknowledgment.  All 
this  was  done  in  the  case  of  this  deed. 
Secrist  v.  Green,  3  Wall.  744,  750,  18  L. 
Ed.    153. 

Where  the  acknowledgment  was  taken 
in  the  state  of  New  Jersey,  before  R.,  a 
master  in  chancery  and  notary  public, 
who  says  in  his  certificate  that  the  par- 
ties, naming  them,  personally  appeared 
before  him,  "who.  I  am  satisfied,  are  the 
grantors  in  the  within  deed  of  convey- 
ance," and  this  language  is  the  defect 
complained  of  by  defendant,  this  is  suffi- 
cient evidence  that  the  parties  who  ap- 
peared before  him  were  the  grantors  in 
the  deed.  If  he  was  satisfied  of  that  fact 
the  court  cannot  now  inquire  into  the 
evidence  by  which  he  reached  that  con- 
clusion. But  any  difficulty  on  this  sub- 
ject is  removed  by  the  certificate  of  the 
clerk  of  the  county  in  that  state,  that  said 
R.  was  a  master  in  chancery  and  a  no- 
tary public  in  and  for  said  county,  and 
"that  the  annexed  instrument  (meaning 
the  deed)  is  executed  and  the  proof  of 
acknowledgment  thereto  taken  in  accord- 
ance with  the  laws  of  said  state  of  New 
Jersey."  This  official  statement  that  the 
acknowledgment  was  made  according  to 
the  laws  of  the  state  is,  we  think,  suffi- 
cient to  make  it  valid,  because  the  law 
of  Michigan  provides  (Howell's  Statutes, 
§  5660),  where  such  acknowledgments  are 
taken  out  of  the  state,  that  the  clerk  cer- 
tifying to  the  official  character  of  the  of- 
fice shall  also  state  "that  the  deed  is  ex- 
ectited  and  acknowledged  according  to 
the  laws  of  such  state."  Culbertson  v. 
Witbeck  Co.,  127  U.  S.  326.  330.  32  L.  Ed. 
134. 

34.  Compliance  with  requisites  of  law 
necessary. — Hinde  v.  Longworth,  11 
Wheat.    199,   207,  6  L.   Ed.  454. 

Where  the  certificate  of  acknowledg- 
ment of  a  deed  of  land  in  Ohio,  is  as 
follows:  "Hamilton  ss:  Personally,  be- 
fore me,  Thomas  Gibson,  one  of  the  jus- 
tices of  the  court  of  common  pleas  for 
said    county,    the    above    named    Thomas 

Doyle,  and  Doyle,  his  wife,  who  being 

examined  separate  and  apart,  acknowl- 
edged the  foregoing  deed  to  be  her  hand 
and  seal,  free  act  and  deed,  for  the  uses 
and  purposes  mentioned;"  quaere,  whether 
this  can  be  taken  for  the  acknowledgment 
of  Thomas  Doyle.  He  alone  signed  the 
deed.     His   wife  is   not  named  as   a  party 


ACKNOJVLEDGMENTS. 


89 


(2)  Certificate  of  Separate  Examination  and  Acknozvledgment. — Where  a 
statute  requires  a  private  examination  of  the  wife,  to  ascertain  that  she  acts  freely, 
and  not  by  compulsion  of  her  husband,  but  prescribes  no  precise  form  of  words 
to  be  used  in  the  certificate,  it  is  sufficient  if  the  words  of  the  acknowledgment 
have  the  same  meaning,  and  are  in  substance  the  same,  with  those  used  in  the 
statute,  the  state  court  not  having  held  the  contrary.^^  But  it  is  essential  that 
the  fact  of  such  privy  examination,  when  required  by  statute,  should  be  certified 
to.     It  cannot  be  shown  by  parol  evidence. ^*^ 


in  any  manner,  except  in  the  conclusion. 
Hinde  v.  Longworth,  11  Wheat.  199,  207. 
6  L.   Ed.  454. 

The  certificate  is  insufficient,  unless  it 
contains  enough  to  show,  with  all  rea- 
sonable certaint}',  that,  in  point  of  fact, 
Thomas  Doyle  did  appear  before  the  of- 
ficer and  acknowledge  the  deed,  and  this, 
it  seems,  it  does  not  show.  It  does  not 
even  state  expressly,  that  Thomas  Doyle 
appeared  before  the  officer;  but  if  that  is 
to  be  inferred,  the  purpose  for  which  he 
appeared  is  not  stated,  so  that  nothing 
can  be  inferred  from  the  mere  fact  of 
appearance.  It  does  not  set  forth  that 
he,  in  point  of  fact,  did  acknowledge  the 
deed,  or  did  any  one  act  that  might  by 
possibility  be  construed  into  an  acknowl- 
edgment. The  certificate  does  state  that 
the  wife  did  acknowledge  the  deed,  which, 
if  true,  necessarily  implies,  that  she  ap- 
peared before  the  magistrate,  although 
that  fact  is  not  stated.  The  form  of  the 
certificate  is  adapted  to  the  acknowledg- 
ment of  the  wife.  Hinde  v.  Longworth, 
11  Wheat.  199,  207,  6  L.   Ed.  454. 

In  Illinois. — Within  the  meaning  of  the 
act  of  1S47.  and  according  to  the  tendency 
of  the  decisions  of  the  supreme  court  of 
the  state  of  Illinois,  the  wife  joins  with 
her  husband  in  the  execution  of  a  con- 
veyance of  her  estate  of  inheritance  where 
her  name  alone  appears  in  the  granting 
clause,  but  the  deed  is  signed  by  both 
herself  and  husband,  is  acknowledged  by 
both,  and  is  certified  as  required  by  law. 
Such  conveyance,  so  signed,  acknowl- 
edged, and  certified,  of  the  wife's  land, 
seems  to  be  as  efifectual,  under  the  local 
law,  to  invest  the  grantee  with  the  title 
and  interest  of  both  husband  and  wife  as 
if  his  name  had  also  appeared  in  the 
granting  clause.  Schley  v.  Pullman  Car 
Co.,    120   U.    S.    .^7.5.    .-)83.    30   L.    Ed.    789. 

35.  Substantial  compliance  with  stat- 
ute sufficient. — Dundas  v.  Hitchcock.  12 
How.  257,  13  L.  Ed.  978;  Deery  v.  Cray, 
5  Wall.   795,   18    L.    Ed.   653. 

Where  one  of  the  objections  to  the  ac- 
knowledgment of  the  wife  is,  that  she 
acknowledges  to  have  signed  and  sealed 
"the  said  indenture  of  mortgaere,"  and  not 
that  part  of  it  called  the  "relinquishment 
of  dower,"  this  objection  is  hypercritical. 
"Haret  in  litera."  It  is  founded  on  the 
untenable  assumption,  that  the  several 
covenants  signed  by  the  husband  and 
wife  do  not  constitute  one  assurance  or 
deed    of    mortgage.      The    same    criticism 


would  annul  the  acknowledgment  of  the 
husband,  which  is,  "that  he  executed  the 
foregoing  indenture,"  whereas  the  deed 
signed  by  him  is  a  deed  poll  and  not  an 
indenture.  Surely  no  court  would  de- 
clare his  acknowledgment  invalid  for  this 
slight  misnomer.  It  would,  certainly,  be 
no  great  latitude  of  construction,  even  if 
they  were  separate  and  distinct  instru- 
ments, to  refer  the  acknowledgment  of 
the  wife  to  that  one  which  contains  her 
own  grant  or  release,  and  which  she  has 
signed  and  sealed.  Dundas  v.  Hitchcock, 
12  How.  257.  268,  13   L.  Ed.  978. 

A  certificate  by  the  proper  officers,  that 
a  feme  covert  being  "privately  examined, 
apart  from  and  out  of  the  hearing  of  her 
husband,"  acknowledged,  etc.,  was  a  suf- 
ficient compliance  with  the  Maryland 
statute  of  1807,  which  required  the  ex- 
amination to  be  "out  of  the  presence"  of 
the  husband.  The  expressions  are  equiv- 
alent. Deery  v.  Cray,  5  Wall.  795,  18  L. 
Ed.    653. 

36.  Fact  must  be  certified  to. — Miller 
V.  Texas,  etc..  R.  Co..  132  U.  S.  662,  690, 
33  L.  Ed.  487:  Elliott  v.  Peirsol,  1  Pet. 
328,  340,  7  L.  Ed.  164;  Hitz  v.  Jenks,  123 
U.   S.  297,  303.  31   L.  Ed.  156. 

Where  a  deed  was  acknowledged  be- 
fore a  notary  public,  and  a  certificate  of 
said  acknowledgment  was  made  in  due 
form,  with  one  exception,  that  it  contains 
no  statement  that  the  wife  was  privily  ex- 
amined by  the  officer  apart  from  her  hus- 
band, this  is  necessary  in  order  to  vali- 
date a  convevance  of  the  wife's  separate 
property  in  Texas,  and  its  absence  can- 
not be  supplied  by  showing  that  she  was 
actually  privilv  examined.  See,  to  the 
same  effect.  Elliott  v.  Peirsol,  1  Pet.  328, 
340,  7  L.  Ed.  164;  Hitz  v.  Jenks,  123  U. 
S.  297.  303.  31  L.  Ed.  156.  This  seems  to 
be  a  fatal  defect.  Miller  v.  Texas,  etc., 
R.  Co.,  132  U.  S.  662.  690.  33  L.  Ed.  487. 
vSee.  ante.  "Of  Instrument  Executed  by 
Married   Woman."   TI.   .A..  3. 

District  of  Columbia,  Virginia  and  Ken- 
tucky.—By  §  451,  Rev.  Stat.,  District  of 
Columbia,  "if  upon  such  privy  examina- 
tion and  explanation,  she  (a  married 
woman)  shall  acknowledge  the  deed  to 
be  her  act  and  deed,  and  shall  declare  that 
she  had  willingly  signed,  sealed  and  de- 
livered the  same,  and  that  she  wished  not 
to  retract  it,  the  officer  shall  certify  such 
exarnination,  acknowledgment  and  dec- 
laration by  a  certificate  annexed  to  the 
deed,  and  under  his  hand  and  seal,  to  the 


90 


ACKNOWLEDGMENTS. 


(3)  Bxplanation  of  Contents  to  Wife — A  deed  was  held  insufficient  under 
the  law  of  Pennsylvania,  to  pass  the  title,  where  the  notary's  certificate  did  not 
state  that  he  had  made  known  its  contents  to  the  wife.3' 

VI.    Effect,  Correction,  or  Reformation  of  Defective  Certificate 
of  Acknowledgment. 

A.  Effect  of  Invalid  Acknowledgment. — It  has  never  been  supposed  that 
a  notary,  who  takes  an  acknowledgment  of  a  deed,  could  be  counted  as  a  wit- 
ness to' the  deed  without  a  separate  signature.  But  where  the  certificate  of  a 
vice  consul  to  the  acknowledgment  of  a  will  before  him  by  testator,  was  a  wholly 
unofficial  act,  there  is  no  objection  to  disregarding  the  words  "Vice  Consul  of  the 
United  States,"  and  treating  it  as  an  acknowledgment  of  the  execution  before  a 
competent  witness.    The  acknowledgment  of  a  will  is  really  a  feature  of  the  attes- 

tation.^s 

B.  Reformation  by  Officer  or  Court. — The  failure  of  the  certificate  of  a 
clerk  to  state  the  essential  privy  examination  of  a  feme,  cannot  be  cured  by  sub- 
sequent proceedings  of  the  court  or  clerk,  upon  evidence  of  the  fact.  The  clerk's 
authority  was  exhausted  in  its  exercise,  and  he  has  no  authority  subsequently  to 
alter  the  records  of  the  acknowledgment  after  it  is  made.^^ 


following  effect,"  that  is  to  say,  beginning 
ill  the  usual  form  of  a  certificate  or  ac- 
knowledgment, and  adding  that,  "being 
by  me  examined  privily  and  apart  from 
her  husband,  and  having  the  deed  afore- 
said fully  explained  to  her,  she  acknowl- 
edged the  same  to  be  her  act  and  deed, 
and  declared  that  she  had  willingly  signed, 
sealed  and  delivered  the  same,  and  that 
she  wished  not  to  retract  it."  Hitz  v. 
Jcnks,    123    U.   S.   297,   301.   31    L.    Ed.    156. 

"It  has  been  decided  by  this  court,  in 
a  case  arising  under  a  similar  statute  of 
Virginia,  that  if  the  certificate,  as  recorded, 
is  silent  as  to  these  facts  (separate  ex- 
amination and  acknowledgment),  the  want 
cannot  be  supplied  by  parol  evidence 
that  the  wife  was  duly  -.examined;  and 
this  for  the  reason  stated  by  Mr.  Justice 
Trimble,  in  delivering  judgment,  as  fol- 
lows: 'What  the  law  requires  to  be  done, 
and  appear  of  record,  can  only  be  done 
and  made  to  appear  by  the  record  itself, 
or  an  exemplification  of  the  record.  It 
is  perfectly  immaterial  whether  there  be 
an  acknowledgment  or  privy  examination 
in  fact  or  not,  if  there  be  no  record  made 
of  the  privy  examination;  for  by 
the  express  provisions  of  the  law, 
it  is  not  the  fact  of  privy  examination 
merely,  but  the  recording  of  the  fact, 
which  makes  the  deed  effectual  to  pass 
the  .estate  of  a  feme  covert.'  Elliott  v. 
PeirscJ,  1  Pet.  328.  340,  7  L.  Ed.  164." 
Hitz  V.  Jenks,  123  U.  S.  297,  304,  31  L. 
Ed.    156. 

By  the  Virginia  statute  of  1748,  "when 
any  deed  has  been  acknowledged  by  a 
feme  covert,  and  no  record  made  of  her 
privy  examination,  such  deed  is  not  bind- 
ing upon  the  feme  and  her  heirs;"  this 
law  was  adopted  by  Kentucky,  at  her 
separation  from  Virginia;  and  is  under- 
stood never  to  have  been  repealed.  El- 
lic-tt  V.  Peirsol,  1  Pet.  328,  339,  7  L.  Ed. 
164. 


37.  Explanation  to  wife  must  be  certi- 
fied to.— Bayne  v.  Wiggins.  139  U.  S.  210, 
212,  35  L.  Ed.  144.  See.  generally,  the 
title   HUSBAND  AND  WIFE. 

38.  Invalid  acknowledgment  as  to  attesta- 
tion.—Keely  V.  Moore,  196  U.  S.  38.  45, 
49  L.  Ed.  376.  See.  generally,  the  title 
WILLS. 

Irregular  but  sufficient  acknowledgment. 
— Where  a  mortgage  was  executed  by  a 
husband,  his  own  name  only  being  used 
in  the  body  of  the  instrument,  but  it  was 
signed  by  his  wife  also,  who  relinquished 
her  right  of  dower,  and  made  her  ac- 
knowledgment in  an  after  part  of  the  in- 
strument; and  there  is  sufficient  evidence, 
from  an  inspection  of  the  whole  instru- 
ment, to  believe  that  the  intention  of  the 
parties  was  to  consider  the  whole  paper 
as  forming  one  assurance,  the  wife  will 
be  barred  of  her  dower,  as  far  as  the 
mortgage  is  concerned.  Dundas  v.  Hitch- 
cock, 12  How.  257,  13  L.  Ed.  978.  See 
Stebbins  v.  Duncan,  108  U.  S.  32,  45,  27 
L.  Ed.  641.  See,  ante,  "For  Recordation," 
II.   B. 

39.  Officer  cannot  alter  record. — Elliott 
V.  Peirsol,  1  Pet.  328,  340,  7  L.   Ed.   164. 

A  deed  from  baron  and  feme,  of  lands 
in  the  state  of  Kentucky,  executed  to  a 
third  person,  by  which  the  land  of  the 
feme  was  intended  to  be  conveyed,  for 
the  purpose  of  a  recoveyance  to  the  hus- 
band, and  thus  to  vest  in  him  the  estate 
of  the  wife,  was  indorsed  by  the  clerk  of 
Woodford  county  court,  "acknowledged 
by  James  Elliott,  and  Sarah  G.  Elliott, 
September  11th,  1816,"  and  was  certified 
as  follows:  "Attest — J.  McKenney,  jun.. 
Clerk.  Woodford  County,  ss:  Septem- 
ber 11th,  1813.  This  deed  from  James 
Elliott  and  Sarah  G.  Elliott,  his 
wife,  to  Benjamine  Elliott,  was  this 
day  produced  before  me,  and  ac- 
knowledged by  said  James  and  Sarah 
to     be     their     act     and     deed,     and     the 


ACKNOWLEDGMENTS. 


91 


C.  By  Legislative  Enactment — 1.  Coxstitutioxality. — The  authority  of 
the  supreme  court  of  the  United  States  to  examine  into  the  constitutionality  of  a 
statute  of  a  state  curing  defective  acknowledgments,  is  confined  to  the  question, 
whether  it  violates  the  federal  constitution.-*'^ 

2.  CoxsTRUCTiox. — Statutes  curing  defective  acknowledgments  are  to  be  so 
construed  as  to  effectuate  their  purpose;  that  is,  to  create  a  conclusive  presump- 
tion of  proper  acknowledgment  of  instruments  within  tlieir  purview,  when  reason- 
ably construed.-*^     But  the  courts  are  bound  by  the  clearly  expressed  language 


same  is  duly  recorded.  John  McKenney, 
jun,  C.  C.  C."  Held,  that  subsequent  pro- 
ceedings of  the  court  of  Woodford 
county,  by  which  the  defect  of  the  certifi- 
cate of  the  clerk  to  state  the  privy  ex- 
amination of  the  feme  (which,  by  the  law 
of  Kentucky,  is  necessary  to  make  a  con- 
veyance of  the  estate  of  a  feme  covert 
legal),  were  intended  to  be  cured,  upon 
evidence  that  the  privy  examination  was 
made  by  the  clerk,  will  not  supply  the 
defect,  or  give  validity  to  the  deed.  El- 
liott v.  Peirsol,  1  Pet.  328,  340,  7  L.  Ed. 
164. 

An  officer  (clerk  in  this  case)  in  certi- 
fying the  acknowledgment,  acts  minis- 
terially, and  not  judicially,  in  the  matter. 
Until  his  certificate  of  the  acknowledg- 
ment was  recorded,  it  was,  in  its  nature, 
but  an  act  in  pais,  and  alterable  at  the 
pleasure  of  the  officer.  But  the  authority 
of  the  clerk  to  make  and  record  a  cer- 
tificate of  the  acknowledgment  of  the 
deed,  was  functus  officio,  as  soon  as  the 
record  was  made.  By  the  exertion  of  his 
authority,  the  authority  itself  became  ex- 
hausted. The  act  had  become  matter  of 
record,  fixed,  permanent  and  unalterable; 
and  the  remaining  powers  and  duty  of  the 
clerk  were  only  to  keep  and  preserve  the 
record  safely.  Elliott  v.  Peirsol,  1  Pet. 
328.   341.  7  L.   Ed.   164. 

40.  Jurisdiction  of  supreme  court. — 
Watson  f.  ^klercer,  8  Pet.  88,  8  L.  Ed.  876. 
See  the  title  CONSTITUTION  AL  LAW. 

In  178.5,  M.  and  wife  executed  a  deed 
conveying  certain  lands  of  the  wife  to  T., 
who  immediately  reconveyed  them  to  M.; 
the  object  of  the  conveyance  was  to  vest 
the  lands  of  the  wife  in  the  husband.  The 
deed  of  M.  and  wife  to  T.  was  not  ac- 
knowledged according  to  the  forms  es- 
tablished by  the  law  of  Pennsylvanfa  of 
February  2bth,  1770,  to  pass  the  estates 
of  femes  covert;  and  after  the  death  of 
the  wife  of  ]M.,  the  land  was  recovered  in 
an  ejectment  from  the  heirs  of  M.,  in  a 
suit  instituted  against  him  by  the  heirs 
of  the  wife  of  M.  In  1826,  after  the  re- 
covery of  the  ejectment,  the  legislature 
of  Pennsylvania  passed  an  act,  the  object 
of  which  was  to  cure  all  defective  ac- 
knowledgments of  this  sort,  and  to  give 
them  the  same  efficacy  as  if  they  had 
been  originally  taken  in  the  proper  form. 
The  plaintiffs  in  the  ejectment  claimed 
title  to  the  premises,  under  James  Mer- 
cer, the  husband;  and  the  defendants,  as 
heirs-at-law    of    his    wife,   who    died    with- 


out issue;  this  ejectment  was  brought 
after  the  passage  of  the  act  of  1826.  The 
authority  of  this  court  to  examine  the 
constitutionality  of  the  act  of  1826  ex- 
tends no  further  than  to  ascertain 
whether  it  violates  the  constitution  of  the 
United  States;  the  question,  whether  it 
violates  the  constitution  of  Pennsylyania, 
is  upon  the  present  writ  of  error,  not  be- 
fore the  court.  Watson  v.  Mercer,  8  Pet. 
88.    8    L.    Ed.    876. 

Reason  and  necessity. — The  great  evils 
likely  to  arise  from  a  strict  construction 
applied  to  the  bona  fide  conveyances  of  the 
early  period  of  the  settlement  of  this  coun- 
try, an  age  careless  of  form,  have  com- 
pelled legislatures  to  quiet  titles  by  con- 
firmatory acts,  in  order  to  prevent  the 
most  gross  injustice.  Webb  v.  Weather- 
head,    17    How.    .577,    57S.   15   L.    Ed.   35. 

Constitutionality  of  Pennsylvania  act. — . 
"The  act  of  1826  does  not  violate  the  ob- 
ligation of  any  contract,  either  in  its 
terms  or  its  principles;  it  does  not  even 
affect  to  touch  any  title  acquired  by  a 
patent  or  any  other  grant;  it  supposes 
the  titles  of  the  femes  covert  to  be  good, 
however  acquired;  and  even  provides  that 
deeds  of  convej-ance  made  by  them  shall 
not  be  void,  because  there  is  a  defective 
acknowledgment  of  the  deeds,  by  which 
they  have  sought  to  transfer  their  title. 
So  far.  then,  as  it  has  any  legal  operation, 
it  goes  to  confirm  and  not  to  impair  the 
contract  of  the  femes  covert;  it  gives  the 
very  effect  to  their  acts  and  contracts 
which  they  intended  to  give;  and  which, 
from  mistake  or  accident,  has  not  been 
effected.  The  cases  of  Calder  v.  Bull,  3 
Dall.  386.  1  L.  Ed.  648;  Fletcher  v.  Peck, 
5  Cranch  87,  138,  3  L.  Ed.  162;  Ogden  v. 
Saunders,  12  Wheat.  213.  266,  6  L.  Ed.  606; 
and  Satterlee  z:  Matthewson,  2  Pet.  380, 
7  L.  Ed.  458,  fullv  recognize  this  doc- 
trine." Watson  V.  Mercer,  8  Pet.  88,  8  L. 
Ed.   876. 

41.  Conclusive  presumption  of  regular- 
ity created. — Webb  v.  Weatherhead.  17 
How.  577,  15  L.  Ed.  35;  Smith  v.  Gale, 
144  U.  S.  509,  522,  36  L.  Ed.  521;  Scott  v. 
Reid.  10  Pet.   524.  527.  9  L.   Ed.  519. 

Construction  of  Tennessee  acts. — In 
1839,  the  legislature  of  Tennessee  passed 
a  law  containing  the  following  provision, 
namely:  "That  whenever  a  deed  has  been 
registered  twenty  years,  or  more,  the  same 
shall  be  presumed  to  be  upon  lawful  au- 
thority, and  the  probate  shall  be  good 
and    effectual,    though    the    certificate    on 


92 


A  CKNO IV  LED  GMENTS. 


of  the  statutes,  and  cannot  extend  them.     Where  they  make  a  distinction,  reason- 
able or  unreasonable,  the  courts  must  observe  it.^^ 


which  the  same  has  been  registered,  has 
not  been  transferred  to  the  register's 
books,  and  no  matter  what  has  been  the 
form  of  the  certificate  of  probate  or  ac- 
knowledgment." A  deed  to  "the  legatees 
and  devises  of  the  l^te  Anthony  Bledsoe," 
which  was  certified  by  the  register  of 
Maury  county.  Tennessee,  to  have  been 
recorded  there  in  January,  1809,  was,  un- 
der the  authority  of  this  statute,  properly 
admitted  in  evidence,  although  inforrnal- 
ities  existed  with  respect  to  its  being 
proved,  and  with  respect  to  the  ac- 
knowledgment of  a  feme  covert.  Webb 
V.  Weatherhead,  17  How.  577,  15  L. 
Ed.   35. 

As  a  legal  presumption  it  is  conclusive 
that  the  deed  was  properly  acknowledged, 
although  the  contrary  may  appear  on  the 
face  of  the  papers.  Webb  v.  Weather- 
head,  17  How.   577.  578,  15   L.   Ed.   35. 

Informalities  and  errors  in  the  acknowl- 
edgments of  feme  coverts,  are  those  which 
the  carelessness  and  ignorance  of  con- 
veyancers were  most  liable  to  make,  and 
which  most  required  such  curative  legis- 
lation. Webb  V.  Weatherhead,  17  How. 
577,  578,  15  L.  Ed.  35.  See.  generally,  the 
title    RECORDING    ACTS. 

Construction  of  Dakota  act. — Where  an 
act  of  Dakota  (Laws  of  Dakota  Terri- 
tory, 1872-3,  pp.  63,  64).  passed  after  the 
acknowledgment  of  the  instruments  in 
question,  provided  how  they  should  be 
taken  in  future,  and  provided  by  §  5  that 
"All  records  of  instruments  heretofore 
made  in  any  of  the  counties  of  the  ter- 
ritory, the  acknowledgment  and  certifi- 
cate of  which  instruments  are  taken  and 
certified  by  the  officers,  and  in  the  man- 
ner herein  provided,  shall,  from  and  after 
the  taking  effect  of  this  act.  have  the  same 
force  and  effect  as  though  such  certifi- 
cates of  acknowledgment  were  accom- 
panied by  the  additional  certificates  here- 
tofore required  by  law."  this  curative  act 
did  away  with  the  necessity  of  any  cer- 
tificate additional  to  that  of  the  notary 
public,  provided  that  the  latter  certified 
to  the  acknowledgment  under  his  hand 
and  seal.  Smith  v.  Gale,  144  U.  S.  509. 
522.    36    L.    Ed.    521. 

"The  certificates  upon  the  original  in- 
struments were  attested  by  an  official  seal. 
It  seems,  however,  that  in  putting  these 
instruments  upon  record  in  the  register's 
office  in  the  county  of  Minnehaha,  the 
scrivener  omitted  to  make  a  similitude  on 
the  record  of  the  notarial  seal,  or  a  scroll 
or  sj^mbol  to  indicate  it,  and  the  defend- 
ant introduced  the  record  books  in  which 
these  instruments  had  been  recorded  to 
show  this  fact.  It  was  claimed  at  this 
point  that  the  deeds  did  not  prove  them- 
selves, as  they  had  not  been  duly  re- 
corded. By  §  493  of  the  Dakota  Code  of 
Civil     Procedure  it  is  enacted  that  'every  in- 


strument in  writing,  which  is  acknowl- 
edged or  proved,  and  duly  recorded,  is 
admissible  in  evidence  without  further 
proof."  These  instruments,  however,  un- 
der the  curative  act  of  1873,  were  perfect 
upon  their  face,  the  certificate  of  the 
secretary  of  state  being  mere  surplusage, 
and  that  of  the  notary  being  accom- 
panied by  his  official  seal.  Now,  while  § 
5  of  this  act  makes  the  records  of  instru- 
ments heretofore  made,  evidence,  not- 
withstanding the  want  of  a  certificate  of 
authorization,  it  ought  not  to  be  held  that 
the  original  instrument,  which  is  perfect 
upon  its  face,  is  made  inadmissible  by  the 
fact  that  the  record  of  such  instrument 
has  omitted  the  official  seal  of  the  no- 
tary." Smith  v.  Gale.  144  U.  S.  509.  523, 
36  L.  Ed.  521.  See,  ante,  "Proof  of  Of- 
ficer's Authority,"  V,  B,  2. 

42.  Distinctions  must  be  observed. — 
Scott  V.  Reid,  10  Pet.  524,  527,  9  L.  Ed. 
519. 

The  third  section  of  the  Tennessee  act 
of  the  23d  of  November,  1809,  which  pro- 
vides, "that  all  deeds  for  the  absolute 
conveyance  of  any  real  estate  within  this 
state,  to  which  the  Indian  title  was  not 
extinguished,  at  the  time  of  the  execu- 
tion of  such  deed,  and  at  the  time  of  the 
registration  of  the  same,  as  hereinafter 
mentioned,  which  deed  shall  have  been 
proved  by  one  or  more  of  the  subscrib- 
ing witnesses  thereto,  in  any  court  of 
record,  or  before  any  judge  of  the  su- 
perior courts  in  the  state,  or  shall  have 
been  so  proved  before  any  court  of 
record  or  any  judge  of  a  court,  or  mayor 
of  a  city,  out  of  this  state,  and  shall  have 
been  registered  in  any  county  in  this 
state,  within  the  time  required  for  the 
probate  and  registration  of  deeds;  such 
probate  and  registration  shall  be  sufficient 
to  entitle  such  deed  or  deeds  to  be  read 
in  evidence,  in  any  court  within  this  state; 
and  shall  also  be  sufficient  to  entitle  such 
deed  or  deeds  to  registration  in  the  county 
or  counties  where  said  land  may  lie,  when 
the  Indian  title  is  extinguished  thereto," 
does  not  apply  to  deeds  of  this  character 
proved  by  acknowledgment,  so  as  to  make 
them  competent  evidence.  Scott  v.  Reid, 
10  Pet.  524.  525.  9  L.  Ed.  519.  See  Black- 
well  z'.  Patton,  7  Cranch  471,  3  L.  Ed. 
408. 

It  does  not  appear  why  the  benefits  of 
this  statute  were  given  to  those  who  held 
under  deeds  proved  by  the  subscribing 
witnesses,  and  withheld  from  those  whose 
deeds  were  proved  by  the  acknowledg- 
ment of  the  grantor.  In  most  cases,  if 
not  in  all,  proof  by  acknowledgment 
would  be  deemed  more  satisfactory  than 
by  witnesses;  but  the  legislature  having 
made  a  distinction  between  the  cases; 
whether  it  was  intended  or  not,  reason- 
able   or    unreasonable;     the      courts      are 


ACKNOIVLEDGMENTS. 


93 


VII.      Conclusiveness   of  Acknowledgment. 

A.  Presumption  in  Favor  of  Validity. — It  is  the  policy  of  the  law  to  up- 
hold certificates  when  substance  is  found,  and  not  to  suffer  conveyances,  or  the 
proof  of  them,  to  be  defeated  by  technical  or  unsubstantial  objections.^^ 

B.  Conclusiveness  of  Certificate. — Where  a  perfect  deed  has  been  signed 
and  acknowledged  before  the  proper  officer,  an  inquiry  into  the  examination  of 
the  feme  covert,  embracing  the  requisites  of  the  statute,  as  constituting  the 
acknowledgment,  with  a  view  to  contradict  the  writing,  is  inadmissible.  Acts  of 
the  officer  for  this  purpose  are  judicial  and  conclusive.^^ 

C.  Presumption  as  to  Venue. — See,  ante,  "Venue,"  V,  B,  3. 


bound  by  the  clearly-expressed  language 
of  the  act.  Scott  v.  Reid,  10  Pet.  524, 
527,  9  L.   Ed.  519. 

In  the  latter  part  of  the  second  section 
of  the  Tennessee  act  of  1821  it  is  pro- 
vided, that  "in  all  cases  where  a  deed  of 
conveyance  of  land  has  been  acknowl- 
edged before  a  judge  of  the  late  superior 
courts  of  law  and  equity,  or  before  any 
court  of  record  in  this  state,  and  since 
registered  in  any  register's  oi^ce  in  this 
state;  or  where  the  privy  examination  of 
a  feme  covert,  through  whom  the  title  is 
derived,  has  been  taken  before  any  court 
of  record  and  certified,  and  such  deed 
registered  in  the  proper  county;  such 
deed,  or  an  authenticated  copy  thereof, 
may  be  read  in  evidence,  and  shall  be 
deemed  sufficient  to  pass  the  title;  pro- 
vided, that  no  person  claiming  by  a  con- 
veyance under  the  same  title,  shall  be  af- 
fected thereby.  These  provisions  em- 
brace two  descriptions  of  cases.  The 
first  one.  is,  where  a  deed  has  been  ac- 
knowledged before  a  judge  and  registered 
in  any  register's  office  in  the  state;  and 
the  other,  where  the  privy  examination 
of  a  feme  covert,  through  whom  the  title 
is  derived,  has  been  taken  before  a  court 
of  record  and  registered  in  the  proper 
county.  But  in  neither  of  these  cases, 
shall  the  title  be  held  good  against  a  per- 
son claiming  under  the  same  title.  Scott 
V.   Reid,   10   Pet.   524,   527.  9  L.   Ed.  519. 

This  section  does  not  so  clearly  ex- 
press the  intention  of  the  legislature  as 
it  might  have  done,  but  it  is  susceptible 
of  the  construction  that  the  deed  re- 
quired to  be  registered  in  the  proper 
county  is  the  deed  that  conveys  the  title 
of  the  feme  covert.  To  extend  this  re- 
quirement, by  construction,  to  the  first 
deed  named,  would  make  the  provision 
contradictory,  if  not  absurd.  Scott  v. 
Reid.  10  Pet.  524,  528,  9  L.  Ed.  519. 

43.  Policy  of  law  to  uphold  validity. — 
Carpenter  v.  Dexter,  8  Wall.  513,  526,  19 
L.  Ed.  426;  Davey  v.  Turner,  1  Dall.  11, 
1  L.  Ed.  15;  Lloyd  v.  Taylor.  1  Dall.  17. 
1  L.  Ed.  18-  Ross  V.  McLung,  6  Pet.  283, 
287.    8    L.    Ed.    400. 

And  for  that  purpose  resort  will  be  had 
to  the  instrument  to  which  it  is  attached. 
Carpenter  v.  Dexter.  8  Wall.  51,3.  528,  19 
L.    Ed.    426. 

44.  Certificate  sole  and  conclusive  evi- 
dence.— Drury  r.  Foster,  2  Wall.  24.  34, 
17  L.  Ed.  780;  Young  v.  Duvall,  109  U.  S. 


573,  27  L.  Ed.  1036;  Hitz  v.  Jenks,  123 
U.  S.  297,  304,  31  L.  Ed.  156.  See  Ross 
V.    McLung,    6    Pet.   283,    287,    8    L.  Ed.  400. 

"That  the  magistrate's  certificate,  when 
made  in  the  form  required  by  the  statute, 
and  duly  recorded,  is  conclusive  evidence 
that  he  has  performed  his  duty,  has  not 
been  directly  adjudged  by  this  court;  but 
the  course  of  its  decisions  has  tended  to 
this  conclusion.  In  Drury  v.  Foster,  Mr. 
Justice  Nelson,  in  delivering  judgment, 
observed:  'There  is  authority  for  saying, 
that  where  a  perfect  deed  has  been  signed 
and  acknowledged  before  the  proper  of- 
ficer, an  inquiry  into  the  examination  of 
the  feme  covert,  embracing  the  requisites 
of  the  statute,  as  constituting  the  ac- 
knowledgment, with  a  view  to  contradict 
the  writing,  is  inadmissible;  that  the  acts 
of  the  officer  for  this  purpose  are  judicial 
and  conclusive.'  2  Wail.  24,  34,  17  L.  Ed. 
780.  And  in  Young  v.  Duvall,  the  court 
said  that  if  the  officer's  certificate  'can 
be  contradicted,  to  the  injury  of  those 
M-ho  in  good  faith  have  acted  upon  it, 
the  proof  to  that  end  must  be  such  as 
will  clearly  and  fully  show  the  certificate 
to  be  false  or  fraudulent.  The  mischiefs 
that  would  ensue  from  a  dififerent  rule 
could  not  well  be  overstated.  The  cases 
of  hardship  upon  married  women  that 
might  occur  under  the  operation  of  such 
a  rule  are  of  less  consequence  than  the 
general  inseci'rity  of  titles  to  real  estate, 
which  would  inevitably  follow  from  one 
less  rigorous.'  109  U.  S.  573,  577,  27  L. 
Ed.  1036."  Hitz  V.  Jenks.  123  U.  S.  297. 
304.   31   L.    Ed.    156. 

The  reasonable,  if  not  the  necessary, 
conclusion  is  that,  except  in  cases  of 
fraud,  the  certificate,  made  and  recorded 
as  the  statute  requires,  is  the  sole  and 
conclusive  evidence  of  the  separate  ex- 
amination and  acknowledgment  of  the 
wife.  Hitz  V.  Jenks.  123  LT.  S.  297,  303, 
31  L.  Ed.  156.  See  post,  "Competency," 
VII,    D. 

In  Rhea  v.  Rhenner.  1  Pet.  105,  7  L. 
Ed.  72.  and  in  Hepburn  v.  Dubois,  12  Pet. 
345.  9  L.  Ed.  1111,  the  requisite  certifi- 
cate was  either  wanting  or  defective  upon 
its  face.  Hitz  v.  Jenks,  123  U.  S.  217.  305, 
31  L.  Ed.  156.  See  ante,  "Of  Instru- 
ment Executed  by  Married  Woman."  II, 
A.   3:   "By   Married   Woman."   IV.   C,   1, 

Weight  in  evidence. — '"The  solemn 
probate  of  a  deed  by  a  witness,  upon 
oath,    before    a    magistrate,    for    the    pur- 


94 


ACKNO  WLBDGMBNTS. 


D.  Evidence. — See,  ante,  "Purpose  and  Necessity,"  V,  A;  "Conclusiveness 
of  Certificate,"  VII,  B. 

1.  Competency. — Extrinsic  evidence,  in  the  absence  of.  fraud  or  duress,  is 
incompetent  to  impeach  the  notary's  certificate  as  to  the  manner  in  which  he  per- 
formed his  duty.^^ 

2.  Weight  and  Sufficiency. — Even  upon  the  assumption  that  the  certificate 
is  only  prima  facie  evidence  of  the  facts  stated  in  it,  the  proof  must  be  of  a 
clear,  complete,  and  satisfactory  character  in  order  to  impeach  the  official  state- 
ments of  the  officer  who  certified  the  acknowledgment  of  the  deed  in  question.^^ 

VIII.     Fees. 

The  taking  of  an  acknowledgment  in  a  criminal  cause  by  the  accused  and  his 


pose  of  having  it  recorded,  and  the  cer- 
tificate of  the  magistrate  of  its  due  pro- 
bate, upon  such  testimony,  are  certainly 
entitled  to  more  weight  as  evidence,  than 
the  mere  unexplained  proof  of  the  hand- 
writing of  a  witness,  after  his  death.  The 
one  affords  only  a  presumption  of  the 
due  execution  of  the  deed,  from  the  mere 
fact  that  the  signature  of  the  witness  is 
to  the  attestation  clause;  the  other  is  a 
deliberate  affirmation  by  the  witness, 
upon  oath,  before  a  competent  tribunal, 
of  the  material  facts  to  prove  the  execu- 
tion." Crane  v.  Morris,  6  Pet.  598,  615,  8  L. 
Ed.  514.     See  post,  "Evidence."  VII,  D. 

45.  Extrinsic  evidence  incompetent. — 
Hitz  7'.  Jenks,  123  U.  S.  297,  304,  31  L. 
Ed.    156. 

Where  the  recorded  certificate  of  the 
notary  public  who  took  the  acknowledg- 
ment was  in  the  form  given  in  the  stat- 
ute, the  other  evidence  on  the  subject 
was  the  testimony  of  the  appellant  and 
of  the  notary.  The  appellant,  being  called 
as  a  witness  in  her  own  behalf,  admitted 
her  signature,  but  did  not  recollect  that 
she  ever  executed  or  acknowledged  the 
deed  in  question,  and  denied  that  it  was 
ever  explained  to  her.  The  notary,  being 
called  as  a  witness  by  the  appellees,  testi- 
fied that  in  taking  her  acknowledgment 
he  asked  her  if  she  had  read  over  the 
deed  and  understood  its  contents,  and  if 
she  willingly  signed,  sealed  and  delivered 
it.  without  any  compulsion  on  the  part 
of  her  husband,  and  wished  not  to  retract 
it,  to  all  which  she  answered  in  the  af- 
firmative; that  he  did  not  otherwise  ex- 
plain the  deed  to  her,  and  did  not  read 
it  himself;  and  that  he  did  not  think  it 
necessary  to  explain  a  deed  if  the  party 
was  already  acquainted  with  its  contents. 
The  appellant's  signature  being  admitted, 
and  there  being  no  proof  of  fraud  or 
duress  in  taking  or  procuring  her  ac- 
knowledgment, the  extrinsic  evidence 
was,  for  the  reasons  and  upon  the  au- 
thorities before  stated,  incompetent  to 
impeach  the  notary's  certificate  as  to  the 
manner  in  which  he  had  performed  his 
duty.  Hitz  v.  Jenks,  423  U.  S.  297,  305,  31 
L.    Ed.   156. 

In  the  case  of  a  deed  actually  executed 
by  a  married  woman  of  full  age  and 
sound  mind,  a  certificate  of  her  separate 
examination  and   acknowledgment,   in   the 


form  prescribed  by  the  statute,  and  duly 
recorded  with  the  deed,  cannot  after- 
wards, except  for  fraud,  be  controlled  or 
avoided  by  extrinsic  evidence  of  the  man- 
ner in  which  the  examination  was  con- 
ducted by  the  magistrate.  Hitz  v.  Jenks, 
123    U.    S.    297,    304.    31    L.    Ed.    156. 

46.  Proof  must  be  full. — Young  v.  Du- 
vall.  109  U.  S.  573,  577,  27  L.  Ed.  1036; 
Hitz  V.  Jenks,  123  U.  S-  297.  304,  31  L. 
Ed.  156;  Insurance  Co.  v.  Nelson,  103  U. 
S.  544.  548,  26  L.  Ed.  436;  Hammond  v. 
Hopkins,    143    U.    S.    224,  271.  36  L.  Ed.  134. 

Where  it  was  in  proof  that  Mrs.  Y. 
signed  the  note  and  the  deed,  having  an 
opportunity  to  read  the  papers  before 
signing  them;  she  was  before  an  ofificer 
competent  under  the  law  to  take  her  ac- 
knowledgment, and  he  came  into  her 
presence  for  the  purpose  of  receiving  it; 
he  so  came  at  the  request  of  the  husband, 
who  expected,  by  means  of  the  executed 
deed  of  trust,  to  secure  a  loan  of  the 
amount  specified  in  the  note;  and  she 
knew,  or  could  readily  have  ascertained 
while  in  the  presence  of  the  officer,  as 
well  to  what  property  the  deed  referred 
as  the  object  of  its  execution,  but  there 
is,  however,  a  conflict  in  evidence  as  to 
whether  she  willingly  signed,  sealed,  and 
delivered  the  deed,  or  had  its  contents 
fully  or  at  all  explained  to  her  by  the  of- 
ficer, or  was  examined  privily  and  apart 
from  her  husband;  the  certificate  of  the 
officer  must  of  necessity,  arising  out  of 
considerations  of  public  policy,  under  the 
circumstances  disclosed  in  this  case,  be 
regarded  as  an  ascertainment,  in  the 
mode  prescribed  by  law,  of  the  facts  es- 
sential to  his  authority  to  make  it;  and 
if,  under  such  circumstances,  it  can  be 
contradicted,  to  the  injury  of  those  who 
in  good  faith  have  acted  upon  it — upon 
which  question  no  opinion  expressed — 
the  proof  to  that  end  must  be  of  such  a 
character  as  will  clearly  and  fully  show 
the  certificate  to  be  false  or  fraudulent. 
Young  V.  Duvall,  109  U.  S.  573,  576,  27 
L.  Ed.  1036;  Insurance  Co.  v.  Nelson, 
103    U.    S.    544,    547.   26    L.    Ed.    436. 

In  the  absence  of  evidence  of  fraud  or 
collusion  on  the  part  of  officers  certifying 
to  an  acknowledgment  of  a  husband  and 
wife,  since  deceased,  their  certificate 
ought  to  prevail  to  establish  the  fact, 
against    the    qualified    denial    by    the    wife 


ACTION  ON  THE  CASE. 


95 


sureties  is  a  single  act,  for  which  only  one  fee  can  be  charged.  If,  for  any  reason, 
it  was  necessary  to  take  them  separately,  that  fact  should  have  been  made  to  ap- 
pear.     The  burden  of  proof   was  upon  the   plaintiff   suing   for   such   fees.*'^ 

ACQUAINTED.— See  the  title  Acknowledgments,  ante,  p.  75. 

ACQUIESCENCE.— See  note  1. 

ACQUIT. — As  to  plea  of  autrefois  acquit,  see  the  title  Autrefois,  Acquit 
AND  Convict. 

ACROSS. — "To  the  word  across,  unless  it  is  qualified  by  some  prefix  as  diag- 
onally or  obliquely,  there  is  attached,  in  ordinary  use,  but  one  meaning,  and  that 
is  a  direction  opposite  to  length. "- 

ACT. — See,  generally,  the  title  Statutes.  An  act  is  defined  as  "an  exertion 
of  energy  or  force,  mental  or  physical;  anything  that  is  done  or  performed; 
a  doing  or  deed:  an  operation  or  performance."-* 

ACTION  ON  THE  CASE.— See  the  title  Trespass. 


of  any  knowledge  of  the  deed,  and  the 
statement  of  the  husband  that  he  had 
signed  his  wife's  name  and  that  the  deed 
had  never  been  acknowledged.  Ham- 
mond v.  Hopkins,  143  U.  S.  224.  271,  36 
L.   Ed.  134. 

When  a  deed  or  mortgage,  regular  in 
appearance,  and  bearing  the  genuine 
signature  and  duly  certified  acknowledg- 
ment of  the  grantor  or  mortgagor  is  at- 
tacked, the  evidence  to  impeach  it  should 
be  clear  and  convincing.  The  acknowl- 
edgment of  a  deed  can  only  be  impeached 
for  fraud,  arid  the  evidence  of  fraud  must 
be  clear  and  convincing.  In  this  case, 
the  testimony  of  the  wife  touching  the 
manner  in  which  her  signature  to  the 
mortgage  was  obtained  is  so  incredible, 
that  her  account  of  the  way  in  which  her 
acknowledgment  was  taken  is  entitled  to 
little  weight.  Insurance  Co.  v.  Nelson, 
103  U.  S.  544,  26  L.  Ed.  436.  See  ante, 
"Conclusiveness   of  Certificate,"   VII.   B. 

47.  Taking  acknowledgment  in  criminal 
case  a  single  act. — United  States  v.  Hall, 
147  U.  S.  691,  37  L.  Ed.  333;  United 
States  V.  Taylor,  147  U.  S.  695,  37  L.  Ed. 
335;  United  States  v.  Ewing.  140  U.  S. 
142,  146.  35  L.  Ed.  388;  United  States  v. 
Barber,  140  U.  S.  164,  35  L.  Ed.  396.  See 
U.    S.    Rev.    Stat.,    §    828. 

1.  Acquiescence. — In  Pence  v.  Langdon, 
99  U.  S.  578,  581,  25  L.  Ed.  420.  it  is  said: 
"Acquiescence  and  waiver  are  always 
questions  of  fact.  There  can  be  neither 
Without  knowledge.  The  terms  import 
this  foundation  for  such  action.  One 
cannot  waive  or  acquiesce  in  a  wrong 
while  ignorant  that  it  has  been  com- 
mitted." See,  also,  the  titles  LACHES; 
WAIVER. 

2.  Hannibal,  etc.,  R.  Co.  v.  Missouri 
River  Packet  Co.,  125  U.  S.  260.  271,  31 
L.   Ed.   731. 

3.  Act.— Wilson  z:  Nelson,  183  U.  S.  191, 
212,    46   L.    Ed.    147. 

In  Wilson  v.  Nelson.  183  U.  S.  191, 
212,  46  L.  Ed.  147,  it  is  said:  "Black's 
Law  Dictionary  describes  'an  act'  as  fol- 
lows: 'In  a  more  technical  sense,  it  means 
something   done   voluntarily   by   a   person, 


and  of  such  a  nature  that  certain  legal 
consequences  attach  to  it.  Thus,  a  grantor 
acknowledges  a  conveyance  to  be  his 
act  and  deed,  the  terms  being  synony- 
mous.' Independently  of  dictionary  defi- 
nitions, it  may  be  safely  said  that,  in 
common  usage  and  understanding,  the 
word  act  signifies  something  done  volun- 
tarily, or,  in  other  words,  the  result  of  an 
exercise  of  the  will." 

Act  done. — In  Alexander  v.  Bryan.  110 
U.  S.  414,  418,  28  L.  Ed.  195,  it  is  said: 
"It  is  settled  law  in  Alabama,  that,  until 
there  is  a  judicial  ascertainment  of  the 
default  of  the  principal,  the  liability  of  the 
surety  is  not  fixed,  within  the  statute; 
that  the  bar  in  favor  of  the  surety  must 
be  computed  from  the  time  of  such  as- 
certainment of  such  default;  that  the 
words  act  done,  in  the  statute  mean  such 
judicial  ascertainment;  and  that  it  is  that 
only  which  creates  a  cause  of  action 
against  the  surety,  and  authorizes  a  suit 
against  him  on  his  bond.  Fretwell  v. 
McLemore,  52  Ala.  124.  136."  See,  gen- 
erally, the   title   SURETYSHIP. 

Judicial  and  legislative  act. — In  Sinking 
Fund  Cases,  99  U.  S.  700.  761,  25  L.  Ed. 
496,  it  is  said:  "The  distinction  between 
a  judicial  and  a  legislative  act  is  well  de- 
fined. The  one  determines  what  the  law 
is,  and  what  the  rights  of  parties  are.  with 
reference  to  transactions  already  had;  the 
other  prescribes  what  the  law  shall  be  in 
future  cases  arising  under  it.  Wherever 
an  act  undertakes  to  determine  a  question 
of  right  or  obligation,  or  of  property,  as 
the  foundation  upon  which  it  proceeds, 
such  act  is  to  that  extent  a  judicial  one, 
and  not  the  proper  exercise  of  legislative 
functions." 

Acting. — In  United  States  v.  Fuller, 
160  U.  S.  593.  597,  40  L.  Ed.  549,  it  is 
said:  "While  the  words  'acting  master's 
mates,'  sometimes  employed  prior  to  the 
Revised  Statutes,  might  indicate,  by  the 
use  of  the  word  'acting,'  a  person  tem- 
porarily appointed  to  the  duties  of  a  mas- 
ter's mate,  olificers  who  are  recognized 
by  law,  and  whose  pay  is  fixed  by  a  per- 
manent statute,  cannot  be  said  to  be  tem- 
porarily  appointed." 


ACTIONS. 

BY    FRANK    STUART. 

I.  Definitions,  Distinctions  and  General  Consideration,  98. 

A.  "Action,"  98. 

1.  General  Definition,  98. 

2.  As  Applicable  in  Particular   Instances,  98. 

B.  "Case,"  98. 

C.  "Suit,"  99. 

D.  "Cause,"  100. 

E.  "Cause  of  Action,"  100.  * 

F.  "Civil  Cause,"   100. 

G.  "Case"  and  "Cause"  Compared,  100. 
H.  "Case"  and  "Suit"  Compared,  100. 

I.  "Action,"  "Suit"  and  "Cause"  Compared,  101. 

J.  Controversy,  101. 

K.    "Original   Suit"  and  "Cause,"  101. 

L.  Kinds  of  Actions  Generally,  101. 

M.  Penal  or  Remedial  Actions.  101. 

N.  Petition  of  Right,  101. 

O.  Distinction  between   Admiralty  and  Common-Law   Process,   102. 

P.  Proceedings  In  Rem  and  Personam,  102. 

Q.  Local  and  Transitory  Actions,  102. 

R.  Joint  and  Several  Actions,  102. 

S.  Cases  at  Common  Law  and  Cases  in  Equity,   102. 

T.  Actions  Ex  Delicto  and  Ex  Contractu,   102. 

U.  Remedy,   103. 

V.    "Common-Law  Remedy,"  1C4. 

W.  Friendly  Suits,  104. 

X.  Forms  and  Modes  of  Procedure,  104. 

Y.  Hypothecary  Action,  104. 

II.  Right  of  Action,   104. 

A.  Object,  104. 

B.  Right  to  Bring  Suit  Distinguished  from  Right  to  Prosecute  Particular 

Bill,  104. 

C.  Test,   104. 

D.  Necessity  foi   Actual  Controversy,  104. 

E.  As  Dependent  on  Defense,   104. 

F.  What  Law  Governs,  105. 

G.  No  Right  or  Wrong  without  a  Remedy,  105. 
H.  Liability  without  Fault,  105. 

I.  Damnum  Absque  Injuria,  105. 

J.  Trivial  Causes,   106. 
K.  Motive,  106. 

L.  Actions  for  LTse  of  Another,  106. 
M.  Impairment  or  Modification  of  Remedy,  106. 

ni.    Statutory  Remedies,   106. 

A.  New  Liability  or  Right  Created  without  Remedy,   106. 

B.  New   Statutory    Remedy    or   Penalties  and    Forfeitures    for  _  Existing 

Common-Law  Right,   106. 

C.  Statute   Creating   New   Right   or   Ofifense   and   Prescribing   a   Specific 

Remedy  or  Punishment,  107. 

(96) 


ACTIONS.  97 

D.  Enforcement  of  Statutory  Remedies,   10^. 

E.  Form  of  Action  for  Breach,  110. 

F.  Failure  to  Pursue  Statutory  Remedies,  110. 

IV.   Merger,  110. 

V.    Commencement,  Prosecution  and  Termination  of  Actions,  110. 

A.  Commencement,  1 10. 

1.  Demand,  110. 

2.  What   Law  Governs,   110. 

3.  What  Constitutes,  110. 

4.  Necessity   for  Process  and  Appearances,   111. 

5.  Necessity  for  Appearance  and  Return  to  Summons,  111. 

6.  Premature  Suits,  111. 

7.  Evidence  of   Commencement,   111. 

B.  Prosecution,    111. 

C.  Termination,  111. 

VI.   Joinder  and  Splitting  Causes  of  Action,  111. 

A.  Joinder  of  Causes  of  Action,   HI. 

B.  Splitting  Causes  of  Action,  112. 

VII.   Equitable  Defenses,  114. 

CROSS    REFERENCES. 

See  the  titles  Abatement,  Revivai,  and  Survival,  vol.  1,  p.  1;  Ag:^!:::d  CasS; 
Appeal  and  Error;  Appearances;  Assumpsit;  Bonds;  Conspiracy;  Consoli- 
dation of  Actions  ;  Constitutional  Law  ;  Continuances;  Costs;  Courts; 
Covenant,  Action  of;  Creditors'  Suits;  Death  by  Wrongful  Act;  Debt, 
THE  Action  of;  Demand;  Demurrers;  Detinue;  Discovery;  Dismissal,  Dis- 
continuance and  Nonsuit  ;  Ejectment  ;  Election  of  Remedies  ;  Equity  ; 
False  Imprisonment  ;  Fictitious  Suit  ;  Forcible  Entry  and  Detainer  ; 
Friendly  Suits;  PIabeas  Corpus;  Illegal  Contracts;  Injunctions;  Judg- 
ments AND  Decrees;  Jurisdiction;  Labor;  Libel  and  Slander;  Limitation 
OP  Actions  and  Adverse  Possession  ;  Lis  Pendens  ;  Malicious  Prosecution  ; 
Merger;  Motions;  Multifariousness;  Ordinances;  Parties;  Penalties 
AND  Forfeitures;  Pleading;  Premature  Actions;  Quo  Warranto;  Re- 
moval OF  Causes;  Replevin;  Revenue  Laws;  Separate  Trials;  Statutes; 
Summary  Proceedings;  Summons  and  Process;  Supersedeas  and  Stay  of 
Proceedings;  Supplementary  Proceedings;  Torts;  Trespass;  Trover  and 
Conversion  ;  Vewue.  ' 

As  to  joinder  and  spHtting  of  causes  on  appeal,  see  the  title  Appeal  and  Er- 
ror. As  to  deciding  moot  questions  on  appeal,  see  the  title  Appeal  and  Error. 
As  to  necessity  for  actual  controversy  to  give  jurisdiction  on  appeal,  see  the  title 
Appeal  and  Error.  As  to  the  right  to  waive  a  tort  and  sue  on  contract,  see  the 
titles  Assumpsit  ;  Election  of  Remedies.  As  to  effect  of  repeal  of  statute  on 
jurisdiction,  see  the  title  Courts  ;  Jurisdiction  ;  Statutes.  As  to  pleading  and 
practice,  mode  and  forms  of  procedure,  etc.,  in  federal  courts,  see  the  titles 
Courts;  Eql'ity;  Pleading.  As  to  the  efifect  of  a  technical  mistake  of  an  at- 
torney as  destroying  a  right  of  action,  see  the  title  Mistake  and  Accident.  As 
to  adoption  of  state  court  practice  by  federal  courts,  see  tlie  title  Courts.  As 
to  joinder  in  indictments,  see  the  titles  Criminal  Law;  Indictments,  Informa- 
tions and  Presentments.  As  to  preservations  of  distinction  in  federal  courts 
between  law  and  equity,  see  the  title  Equity.  As  to  actions  by  and 
against  District  of  Columbia,  see  the  title  District  of  Columbia.  As 
to  right  of  actions  on  illegal  or  immoral  contract,  see  the  title  Illegal  Con- 
tracts. As  to  actions  on  judgments  and  decrees,  see  the  title  Judgments  and 
Decrees.  As  to  joint  judgments,  see  the  title  Judgments  and  Decrees.  As  to 
actions  to  recover  penalties,  see  the  titles  Ordinances;  Penalties  and  For- 
1  U  S  Enc— 7 


98  ACTIONS. 

FEiTUREs;  Statutes.  As  to  suit  in  name  of  one  person  for  benefit  of  another, 
see  the  title  Parties.  As  to  nonjoinder  and  misjoinder  of  parties,  see  the  titles 
Demurrers  ;  Parties.  As  to  actions  by  or  against  states  or  United  States,  see 
the  titles  States;  United  States.  As  to  interference  with  contractual  relations 
as  constituting  a  right  of  action,  see  the  titles  Contracts  ;  Master  and  Servant. 
As  to  particular  forms  of  actions,  see  the  particular  titles,  as  Assumpsit  ;  Debt, 
THE  Action  of;  etc.  As  to  actions  by  and  against  particular  parties,  see  the 
particular  titles. 

I.    Definitions,  Distinctions  and  General  Consideration. 

A.  "Action" — 1.  General  Definition. — "An  action  is  an  ordinary  pro- 
ceeding in  a  court  of  justice  by  which  a  party  prosecutes  another  party  for  the  en- 
forcement or  protection  of  a  right,  the  redress  or  prevention  of  a  wrong,  or  the 
punishment  of  a  public  offense."^ 

2.  As  Applicable  in  Particular  Instances. — As  Applicable  to  Copy- 
right a  Law. — The  word  "action"  used  in  the  copyright  law  providing  that  no 
person  shall  maintain  an  action  for  the  infringement  of  his  copyright  unless  he 
shall  give  notice  thereof  by  inserting  the  prescribed  words  in  the  several  copies  of 
every  edition  published,  means  either  an  action  at  law  or  in  equity.^ 

As  Applicable  to  Criminal  Proceedings. — The  word  "actions"  may  in- 
clude both  civil  and  criminal  proceedings."' 

As  Applicable  to  Removal  of  Cause  Act. — As  to  what  constitutes  an  action 
within  the  removal  of  cause  act,  see  the  title  Removal  of  Causes. 

As  Applicable  to  Admiralty. — As  to  the  nature  of  proceedings  in  admiralty, 
see  the  title  Admiralty. 

As  Applicable  to  Mandamus. — See  the  title  Mandamus. 

Scire  Facias.— Scire  facias  is  generally  classified  as  in  substance  a  new  ac- 
tion.-* 

Writ  of  Error. — See  the  title  Appeal  and  Error. 

B.  "Case." — Case  means  a  proceeding  in  court,  a  suit,  or  action.^  A  case 
in  law  or  equity  is  a  term  well  understood,  and  of  limited  signification.  It  is  a 
controversy  between  parties  which  has  taken  shape   for  judicial   decision.*^     In 

1.  Definition  of  action. — Code  of  Civil  A  scire  facias  upon  a  judgment,  is,  to 
Procedure  of  Kansas,  Dassler's  Comp.  some  purposes,  only  a  continuance  of  the 
Laws.  §  3525;  Code,  §  4.  Ames  v.  Kansas,  former  suit.  Davis  v.  Packard,  7  Pet. 
Ill   U.   S.   449.   460,   28   L.    Ed.   482.  276,   8    L.    Ed.   684.     See   the   titles   JUDG- 

"Lord    Coke    defined    'action'    to    be    'a  MENTS       AND      DECREES;       SCIRE 

legal   demand   of   one's   right.'  "      Bradford  FACIAS. 

V.  Southern  R.  Co.,  195  U.  S.  243,  248,  49  While  it  is   true   that   a   scire   facias   for 

L.   Ed.   178.  the  purpose  of  obtaining  execution   is  or- 

Denvation.— The     term    action     is      de-  dinarily    a    judicial    writ    to    continue    the 

rived    from    the    Latin    ago.    to    urge    and  effect    of   the    former   judgment,    yet    it   is 

drive.      Ex  parte   Milligan,  4  Wall.  2,   112,  ;„    the    nature    of    an    action    because    the 

18   L-    Ed.   281.  defendant    may    plead    to    it.      Browne    v. 

Necessity  for  prosecution  to  judgment.  Chavez.  181  U.   S.  68.  71,  45  L    Ed    752 
—See    the    title    INSURANCE.  a       ,^    .u  .  /  •.       c        • 

2.  "Action"  as  applicable  to  copyright  .  A^,  ^^  '^e  nature  of  a  writ  of  scire 
law—Thompson  r.  Hubbard,  131  U.S.  J^'^^^  "P°"  ^  recognizance  to  answer 
123,  150.  33  L.  Ed.  76.  See  the  title  ^"^  ^f.  „°ffe"se.  see  the  title  SCIRE 
COPYRIGHT.  -  ^*-^^^-     ,  _ 

3.  Criminal  proceedings.— Caha  v.  5-  Definitions  of  "case."— See.  also. 
United  States,  152  U.  S.  211,  214.  38  L.  C.\SE.  Blyew  v.  United  States,  13  Wall. 
Ed.      415.        See      the      title      CRIMINAL       ^81,    595,   20    L.    Ed.   638. 

LAW.  6.      Surrender   of    Criminals,     5     Wheat. 

4.  Scire  facias. — Browne  v.  Chavez,  181  Appendix  1,  16;  Florida  v.  Georgia,  17 
U.    S.    68,    71,    45    L.    Ed.     752;      Davis      v.       How.  478,  515,  15  L-   Ed.   181. 

Packard,   7   Pet.  276,  8   L.   Ed.  684.  Story  defines  a  case  as  a  suit  in  law  or 

Various    English    cases    have    held    that  equity  instituted  according  to  the  regular 

scire    facias    on    a    judgment    was    not    a  course    of    judicial    proceedings.      Kendall 

mere,   continuation    of    a    former    suit    but  v.    United    States,    12    Pet.    524,    632,    9    L. 

created   a  new   right.      Browne  v.   Chavez,  Ed.   1181. 

181   U.    S.    68,    71,   45   L.    Ed.    752.  A   case    is   the    right   to   assert    rights    in 


ACTIOXS. 


99 


other  words,  whenever  the  claim  or  contention  of  a  party  takes  such  a  form  that 
the  judicial  power  is  capable  of  acting  upon  it,  then  it  has  become  a  case  or  con- 
troversy,'^  and  consists  of  the  right  of  one  party,  as  well  as  of  the  other. ^ 

C.  "Suit." — The  term  "suit"  is  a  very  comprehensive  one,  and  is  understood 
to  apply  to  any  proceeding;  in  a  court  of  justice,  in  which  an  individual  pursues 
that  remedy  in  a  court  of  justice  which  the  law  affords  him.^ 


the  form  prescribed  bj'  law.  Osborn  v. 
Bank.   9   Wheat.   738,  6   L.    Ed.   204. 

Case  is  derived  from  cado.  Ex  parte 
Milligan,   4  Wall.   2.   112,   18   L.    Ed.   281. 

As  to  what  constitutes  a  case  within 
removal  of  cause  act,  see  the  title  RE- 
MOVAL OF  CAUSES. 

Cases  afifecting  ambassadors  or  other 
public  ofificials  or  consuls,  see  the  title 
AMBASSADORS   AND   CONSULS. 

7.  Smith  V.  Adams,  130  U.  S.  167,  173. 
174,  32  L.  Ed.  895;  Osborn  v.  Bank,  9 
Wheat.  738,  819,  6  L.  Ed.  204;  Pacific 
Steam  Whaling  Co.  v.  United  States.  187 
U.  S.  447,  451,  47  L.  Ed.  353;  Kendall  v. 
United  States,  12  Pet.  524,  645,  9  L.  Ed. 
1181;  Interstate  Commerce  Comm.  v. 
Rrimson.  154  U.  S.  447,  475.  38  L.  Ed. 
1047;  Cohens  v.  Virginia,  6  Wheat.  264, 
405,  5  L.  Ed.  257;  La  Abra  Silver  Mining 
Co.  V.  United  States,  175  U.  S.  423,  455. 
44    L.    Ed.    223. 

"To  come  within  the  description  of  a 
case  in  law  and  equity,  a  question  must 
assume  a  legal  form  for  forensic  litigation 
and  judicial  decision.  There  must  be 
parties  come  into  court  who  can  be 
reached  by  its  process  and  bound  by  its 
power,  whose  rights  admit  of  ultimate 
decision  by  a  tribunal  to  which  they  are 
bound  to  submit.''  Florida  v.  Georgia,  17 
How.  478.  515,  15  L.  Ed.  181,  citing  Sur- 
render of  Criminals,  5  Wheat.  Appendix 
1,   17. 

8.  New  Orleans,  etc.,  R.  Co.  v.  Mis- 
sissippi. 102  U.  S.  135,  141,  26  L.  Ed.  99; 
Story  on  the  Constitution.  §  1647;  Ten- 
nessee V.  Davis,  100  U.  S.  257,  263.  25  L. 
Ed.  650;  Cohens  c-.  Virginia.  6  Wheat. 
264.   379,    5   L.    Ed.   257. 

9.  Definition  of  "suit." — See.  also, 
SUIT.  Weston  v.  Charleston,  2  Pet.  449. 
7  L.  Ed.  481;  Kendall  v.  United  States 
(Dissenting  opinion  of  Barbour,  J.),  12 
Pet.  524,  645.  9  L.  Ed.  1181;  Holmes  v. 
Jennison,  14  Pet.  540,  586.  10  L.  Ed.  579; 
Ex  parte  Milligan.  4  Wall.  3,  112,  18  L. 
Ed.  281;  Case  of  the  Sewing  Machine 
Companies.  18  Wall.  553.  585,  21  L.  Ed. 
PI  4;  Kohl  c'.  United  States,  91  U.  S.  367. 
375,  23  L.  Ed.  449;  New  Orleans,  etc.,  R. 
Co.  v.  Mississippi  (Dissenting  opinion  of 
Miller,  J.).  102  U.  S.  135.  144,  26  L.  Ed. 
ro:  Upshur  Countv  :•.  Rich,  135  U.  S.  467. 
4:4.   34    L.    Ed.   199. 

The  term  suit  is  of  a  ver\-  broad  signifi- 
cation. Gaines  v.  Fucntes,  92  U.  S.  10, 
24.   23    L.    Ed.    524. 

The  modes  of  proceeding  may  be 
various,  but  if  a  right  is  litigated  be- 
tween   parties    in    a    court    of   justice,    the 


proceeding  by  which  the  decision  of  the 
court  is  sought  is  a  suit.  Weston  v. 
Charleston,  2  Pet.  449.  464.  7  L.  Ed.  481; 
Kohl  V.  United  States.  91  U.  S.  367,  375, 
23  L.   Ed.   449. 

"In  Weston  v.  Charleston,  2  Pet.  449, 
464,  7  L.  Ed.  481,  Chief  Justice  Marshall, 
speaking  for  this  court,  said:  'The  term 
(suit)  is  certainly  a  very  comprehensive 
one,  and  is  understood  to  apply  to  any 
proceeding  in  a  court  of  justice  by  which 
an  individual  pursues  that  remedy  which 
the  law  affords.  The  modes  of  proceed- 
ing may  be  various;  but,  if  a  right  is  liti- 
gated in  a  court  of  justice,  the  proceed- 
ing by  which  the  decision  of  the  court  is 
sought  is  a  suit.'  "  Kohl  v.  United 
States,  91  U.  S.  367,  375,  23  L.  Ed.  449. 

A  suit  i-s  the  prosecution  of  some  de- 
mand in  a  court  of  justice.  Cohens  v. 
Virginia.  6  Wheat.  264,  5  L.  Ed.  257;  Ex 
parte  Milligan.  4  Wall.  2,  113,  18  L.  Ed. 
281;  Holmes  v.  Jennison,  14  Pet.  540, 
624.   10   L.   Ed.    579. 

The  word  suit,  applies  to  any  proceed- 
ing in  a  court  of  justice  in  which  the 
plaintiff  pursues  his  remedy  to  recover 
a  right  or  claim.  Case  of  the  Sewing 
Machine  Companies,  18  Wall.  553.  585,  21 
L.    Ed.   914. 

"Webster  says  'suit'  is  the  act  of  suing; 
the  process  by  which  one  gains  an  end  or 
object,  and  as  a  word  in  the  law,  he  says 
it  is  'an  attempt  to  gain  an  end  by  legal 
process;'  'a  legal  application  to  a  court 
for  justice;'  'an  action  or  process  for  the 
recovery  of  a  right  of  action.'  "  New  Or- 
leans, etc.,  R.  Co.  V.  Mississippi,  102  U. 
S.    135,    143,    26    L.    Ed.    99. 

"Worcester  defines  it  thus:  'In  mod- 
ern law,  the  prosecution  of  some  claim 
or  demand  in  a  court  of  justice;  judicial 
prosecution;'  and  perhaps  this  is  as  good 
a  definition  of  the  word,  when  used  in 
reference  to  legal  proceedings,  as  any 
that  can  be  framed,  and  it  is  peculiarly- 
applicable  to  the  use  of  the  word  in  the 
act  of  1875."  New  Orleans,  etc..  R.  Co. 
V.  Mississippi,  102  U.  S.  135,  143.  26  L. 
Ed.   99. 

"In  Cohens  v.  Virginia.  6  Wheat.  264, 
5  L.  Ed.  257.  Chief  Justice  Marshall  de- 
clared a  suit  to  be  the  prosecution  by  a 
party  of  some  claim,  demand  or  request 
in  a  court  of  justice  for  the  purpose  of 
being  put  in  possession  of  a  right  claimed 
by  him  and  of  which  he  was  deprived." 
La  Abra  Silver  ?klining  Co.  v.  United 
States,   175  U.   S.   423.   455,  44   L.    Ed.   223. 

The  legal  sense  of  the  word  suit  ad- 
heres   to    the    case    after    the    rendition    of 


100 


ACTIONS. 


D.  "Cause." — A  "cause,"  is  "a  suit  or  action  in  court;  any  legal  process 
which  a  party  institutes  to  obtain  his  demand,  or  by  which  he  seeks  his  right,  or 
supposed  right. "i<^  It  is  not  necessary  that  there  be  two  parties  to  a  proceeding 
to  render  it  a  "cause,"  as  for  example,  a  writ  of  habeas  corpus  is  a  cause  when 
the  petition  is  presented  to  the  court.  ^^ 

E.  "Cause  of  Action." — A  cause  of  action  is  the  subject  matter  of  the 
controversy,  and  that  is,  for  all  purposes  of  the  suit,  whatever  the  plaintiiT  de- 
clares it  to  be  in  his  pleadings.  ^ 2 

F.  "Civil  Cause." — "Though  the  term  'civil  causes'  is  often  descriptively  ap- 
plied, in  contradistinction  to  'criminal  causes;'  yet  it  is  not  uncommon  to  apply 
it,  likewise,  in  contradistinction  to  causes  of  maritime  and  admiralty  jurisdic- 
tion."i=^ 

G.  "Case"  and  "Cause"  Compared. — The  words  "case"  and  "cause"  are 
constantly  used  as  synonyms  in  statutes  and  judicial  decisions,  each  meaning  a 
proceedings  in  court,  a  suit,  or  action. ^^ 

H.  "Case"  and  "Suit"  Compared. — "Suits  of  a  civil  nature  at  common 
law"  mean  the  same  thing  as  cases  at  law.^^ 


the  judgment.  Wayman  v.  Southard,  10 
Wheat.    1,   29,   6   L.    Ed.   253. 

As  to  what  constitutes  a  suit  within  the 
removal  of  cause  act,  see  the  title  RE- 
MOVAL OF  CAUSES. 

Habeas  corpus. — See  the  title  HA- 
BEAS  CORPUS. 

Mandamus. — See  the  title  M  A  N- 
DAMUS. 

Eminent  domain  proceedings. — See  the 
title   EMINENT   DOMAIN. 

Adjustment  of  claims  by  county  com- 
missioners.—See   the  title   COUNTIES. 

Writ  of  error.— See  the  title  APPEAL 
AND  ERROR. 

Appeal.— See  the  title  APPEAL  AND 
ERROR. 

Writ  of  prohibition. — See  the  titles 
APPEAL  AND  ERROR;  PROHIBI- 
TION. 

Probate  proceedings. — See  the  title 
WILLS. 

Seizure.— See  the  title  SEARCHES 
AND   SEIZURES. 

10.  Definition  of  cause. — See.  also, 
CAUSE. 

This  is  a  legal,  scriptural  and  popular 
use  of  the  word,  coinciding  nearly  with 
case,  from  cado.  and  action  from  ago.  to 
urge  and  drive.  Webster's  Dictionary, 
cited  in  Ex  parte  Milligan,  4  Wall.  2, 
112,    18    L.    Ed.    281. 

Cause  means  a  proceedings  in  court. 
a  suit,  or  action.  Blyew  v.  United  States, 
13   Wall.   .581,   595,  20   L.  Ed.   638. 

"  'A  cause,'  in  its  usual  and  natural 
meaning,  includes  all  questions  that  have 
arisen  or  may  arise  in  it."  Moran  v. 
Dillingham,  174  U.  S.  153,  157,  43  L.  Ed. 
930. 

As  to  what  constitutes  a  cause  within 
the  removal  of  cause  act,  see  the  title 
REMOVAL  OF  CAUSES. 

11.  Parties  necessary  in  "cause." — Ex 
parte  Milligan,  4  Wall.  2,  112.  18  L.  Ed. 
281. 

12.  Cause  of  action. — See.  also.  CAUSE 
OF   ACTION.    Pirie  v.   Tvedt,  115  U.   S. 


41,  29  L.  Ed.  331;  Connell  v.  Smiley,  156 
U.  S.  335,  340.  39  L.  Ed.  443;  Little  v. 
Giles,  118  U.  S.  596,  601,  30  L.  Ed.  269; 
Chesapeake,  etc.,  R.  Co.  v.  Dbcon,  179  U. 
S.  131,  138,  45  L.  Ed.  121;  Torrence  v. 
Shedd,  144  U.  S.  527,  530.  36  L.  Ed.  529; 
Thorn  Wire  Hedge  Co.  v.  Fuller,  122  U. 
S.  535,  543.  30  L.  Ed.  1235;  Louisville,  etc., 
R.  Co.  V.  Ide,  114  U.  S.  52,  56.  29  L.  Ed. 
63;  Bradford  v.  Southern  R.  Co.,  195  U. 
S.  243,  248,  49  L.  Ed.  178.  See  the  title 
PLEADING. 

Cause  of  action  comprises  every  fact 
a  plaintiff  is  obliged  to  prove  in  order  to 
obtain  judgment,  or,  controversely,  every 
fact  the  defendant  would  have  the  right 
to  traverse.  Chesapeake,  etc.,  R.  Co.  v. 
Dixon,  179  U.  S.  131,  139.  45  L.  Ed.  121; 
Bradford  v.  Southern  R.  Co..  195  U.  S. 
243.  248,  49  L.  Ed.  178.  See  the  titles 
.\PPEAL  AND  ERROR;  REMOVAL- 
OF  CAUSES. 

13.  "Civil  cause." — Wiscart  v.  D'Auchj', 
3  Dall.  321.  325.  1  L.  Ed.  619.  See  the 
titles  APPEAL  AND  ERROR;  RE- 
MOVAL OF  CAUSES. 

.14.  Blvew  V.  United  States,  13  Wall. 
581.  595."  20  L.  Ed.  638.  See  the  titles 
APPEAL  AND  ERROR;  REMOVAL 
OF   CAUSES. 

"An  attempt  has.  however,  been  made 
to  discriminate  between  the  words  'case 
affecting,'  as  found  in  the  constitutional 
provision,  and  the  words  'cause  aflfecting,' 
contained  in  the  act  of  congrr^ss.  We 
are  unable  to  perceive  any  substantial 
ground  for  a  distinction.  The  words 
'case'  and  'cause'  are  constantly  used  as 
synonyms  in  statutes  and  judicial  de- 
cisions, each  meaning  a  proceeding  in 
court,  a  suit,  or  action.  Surely  no  court 
can  have  jurisdiction  of  either  a  case  or 
a  cause  until  it  is  presented  in  the  form 
of  an  action."  Blyew  i'.  United  States,  13 
Wall.  581.  595,  26  L.  Ed.  638,  citing 
United  States  v.  Ortega,  11  Wheat.  467, 
6  L.  Ed.   5"1. 

15.    Kendall    v.    United    States,    12    Pet. 


ACTIOXS. 


101 


1.  "Action,"  "Suit"  and  "Gc-.;;se"  Compared. — Action,  suit,  and  cause  are 
convertible  terms. ^*^ 

J.  Controversy. — The  term  "controversies"  if  distinguishable  at  all  from 
cases  is  so  in  that  it  is  less  comprehensive  than  the  latter  and  includes  only  suits 
of  a  civil  nature. 1"  Judicial  controversy  is  one  which  has  taken  shape  for  ju- 
dicial decision. ^^ 

K.  "Original  Suit"  and  "Cause." — As  to  the  terms  "original  suit"  an:! 
"cause"  as  used  in  the  twenty- fourth  section  of  the  judiciary  act,  see  the  title 
Appeal  and  Error.  As  to  whether  a  bill  of  revivor  may  be  considered  an  orig- 
inal suit,  see  the  title  Abatement,  Revival  and  Survival,  ante,  p.  12.  As  to 
scire  facias,  see  ante,  "As  Applicable  to  Particular  Instances,"  I,  A,  2.  And  see 
the  titles  Judgments  and  Decrees;  Scire  Facias.  As  to  suit  on  recognizance 
of  bail,  see  the  title  Bail  and  Recognizance.  As  to  action  of  debt,  see  the 
title  Debt,  the  Action  of. 

L.  Kinds  of  Actions,  Generally — General  Statement. — "Actions  are  of 
two  kinds,  first,  civil:  second,  criminal."^-' 

Criminal  Actions. — "A  criminal  action  is  one  prosecuted  by  the  state  as  a 
partv,  ao^ainst  a  person  charged  with  a  public  oflFense,  for  the  punishment 
thereof."2o 

Civil  Action. — Proceedings  to  enforce  civil  rights  are  civil  proceedings.^^ 
Every  action,  not  included  within  the  definition  of  criminal  actions,  is  a  civil 
action. -- 

M.  Penal  or  Remedial  Actions. — See  the  titles  Death  by  Wrongful  Act  ; 
Penalties  and  Forfeitures. 

N.  Petition  of  Right. — By  the  proceeding  known  as  a  "petition  of  right," 
the  British  government  accords  to  citizens  of  the  United  States  the  right  to 
prosecute  claims  against  it.^^ 


524.  632.  9  L.  Ed.  1181.  See  the  titles 
.APPEAL  AND  ERROR;  REMOVAL 
OF   CAUSES. 

16.  Ex  parte  Milliean,  4  Wall.  2,  112. 
18  L.  Ed.  281.  See  the  titles  APPEAL 
AND  ERROR:  REMOVAL  OF 
CAUSES. 

.\ction  and  suit  are  synonymous. 
Weston  V.  Charleston,  2  Pet.  449,  t'L.  Ed. 
4S1. 

"Bouvier's  Law"  Dictionary  says  that  in 
the  practice  of  the  law  'suit'  means  'an 
action.'"  New  Orleans,  etc.,  R.  Co.  v. 
Mississippi.  102  U.  S.  135,  143,  26  L- 
Ed.    99. 

17.  Controversy. — Chisholm  v.  Georgia, 
2  Dall.  419,  431,  1  L.  Ed.  440.  See  the 
titles  APPEAL  AND  ERROR;  BANK- 
RUPTCY; COURTS.  As  to  what  con- 
stitut^^  a  controversy  between  a  state 
and  citizens  of  another  state,  see  the  title 
JURISDICTION.  As  to  what  consti- 
tutes a  controversy  within  the  removal  of 
cause  act,  see  the  title  REMOVAL  '^T^ 
CAUSES. 

18.  Judicial  controversy. — Surrender  of 
Criminals.  .5  Wheat..  Appendi.x  1,  16; 
Florida  v.  Georgia,  17  How.  478,  514,  15 
L.   Ed.   181. 

19.  Actions  are  of  two  kinds. — Dass- 
ler's  Comp.  Laws  of  Kansas.  .A.mes  v. 
Kansas,    111   U.    S.    449.    28   L.    Ed.   482. 

As  to  whether  a  particular  proceeding 
is  in  the  nature  of  a  civil  or  criminal  ac- 
tion,   see   the   specific   titles   in   which   the 


treatment   of   such   proceeding  will   neces- 
sarily arise. 

20.  Criminal  action. — Dassler's  Comp. 
Laws  of  Kansas;  Ames  v.  Kansas,  111 
U.  S.  449.  28  L.  Ed.  482.  See,  also,  the 
title    CRIMINAL   LAW. 

Proceedings  for  punishment  of  crime 
are  criminal  proceedings.  Ex  parte  Tom 
Tong,   108   U.   S.  556,   559.   27   L.   Ed.   827. 

21.  Civil  action. — Ex  parte  Tom  Tong, 
108  U.   S.   556,   559.  27  L.    Ed.  827. 

22.  Dassler's  Comp.  Laws  of  Kansas, 
§§  3528-3529;  Ames  v.  Kansas,  111  U.  S. 
449,   460,   28   L.    Ed.   482. 

23.  Petition  of  right. — United  States  z;. 
O'Keefe.  11  Wall,  178.  20  L.  Ed.  131.  See 
United  States  v.  Lee,  106  U.  S.  196,  205, 
27    L.    Ed.    171. 

"This  valuable  privilege,  secured  to  the 
subject  in  the  time  of  Edward  the  First, 
is  now  crystallized  in  the  common  law  of 
England.  As  the  prayer  of  the  petition 
is  grantable  ex  debito  justitige.  it  is 
called  a  petition  of  right,  and  is  a  judicial 
proceeding,  to  be  tried  like  suits  between 
subiect  and  subject."  United  States  v. 
O'Keefe.  11  Wall.  178,   183,  20  L.   Ed.  131. 

"It  does  not  exist  by  virtue  of  any  stat- 
ute, nor  does  the  recent  legislation  in 
England  concerning  it  do  more  than  to 
regulate  the  manner  of  its  exercise  and 
to  confer  on  the  petitioner  the  privilege, 
not  before  granted,  of  instituting  his  pro- 
ceeding in  any  one  of  the  superior  ccnirts 
of    common    law    or    equity    in    Westmin- 


102 


ACTIO  XS. 


0.   Distinction  between   Admiralty   and   Common   Law  Process. — See 

the  title  Admir/VLTY. 

P.  Proceedings  in  Rem  and  Personam. — See  the  titles  Admiralty;  At- 
tachment AND  Garnishment;  Bankruptcy  and  Insolvency;  Courts;  Eject- 
ment; Jurisdiction;  Partition;  Summons  and  Process;  VenuE.  See,  also^ 
Proceedings  in  Rem  and  in   Personam. 

Q.    Local  and  Transitory  Actions. — See  the  titles  Jurisdiction;  Venue. 

R.  Joint  and  Several  Actions. — As  to  what  actions  are  several  for  the 
piH-pose  of  removal,  see  the  title  Removal  of  Causes. 

S.  Cases  at  Common  Law  and  Cases  in  Equity. — In  the  interpretation  of 
the  clauses  of  the  constitution  and  the  statute  referring  to  the  jurisdiction  of  the 
federal  courts,  by  cases  at  common  law  are  to  be  understcwd  suits  in  which  legal 
r^hts  are  to  be  ascertained  and  determined  in  contradistinction  to  those  where 
equitable  rights  alone  are  recognized,  and  equitable  remedies  are  administered. ^f^ 
AjkI  by  cases  in  equity  are  to  be  understood  suits  in  which  relief  is  sought  ac- 
cording to  the  principles  and  practice  of  the  equity  jurisdiction,  as  established  in 
English  jurisprudence. 2^ 

T.  Actions  ex  Delicto  and  ex  Contractu — Definition. — In  both  the  civil 
and  the  common  law,  obligations  and  causes  of  action  are  divided  into  two  great 
classes — those  arising  ex  contractu  (out  of  a  contract),  and  those  ex  delicto.  The 
latter  are  such  as  grow  out  of  or  are  fo-unded  upon  a  wrong  or  tort,  e.  g.,  tres- 


ster."  United  States  v.  O'Keefe,  11 
Wall.    178,    183,   20   L.    Ed.   131. 

The  onlj'  method  by  which  an  action 
may  be  maintained  against  the  Crown  in 
England,  is  by  what  is  known  as  a  pe- 
tition of  rights.  Chisholm  v.  Georgia,  2 
Dall.  419.  436,  1  L.  Ed.  440;  United  States 
V.  O'Keefe,  11  Wall.  178,  20  L.  Ed.  131; 
United  States  v.  Lee,  106  U.  S.  196,  205. 
27  L.  Ed.  171.  See  the  title  UNITED 
STATES. 

25.  "Cases  at  common  law"  and  "cases 
in  equity.'* — Parsons  v.  Bedford.  3  Pet. 
433,  447,  ~  L.  Ed.  732;  Robinson  t'.  Camp- 
bell. 3  Wheat.  212,  4  L.  Ed.  372;  Irvine 
V.  Marshall,  20  How.  558,  565,  15  L.  Ed. 
494;  Fenn  v.  Holme,  21  How.  481,  16  L- 
Ed.  198;  Root  v.  Lake  Shore,  etc..  R.  Co., 
105    U.    S.    18«.    206,   26    L.    Ed.   975. 

Under  the  constitution  and  laws  of 
the  United  States,  the  distinction  between 
common  law  and  eq-uity.  as  existing  in 
England  at  the  time  of  the  separation  of 
the  two  countries,  has  been  maintained, 
although  both  jurisdictions  are  vested  in 
the  same  courts.  Fenn  v.  Holme.  21 
How.  481,  484,  487,  16  L.  Ed.  198;  Thomp- 
son V.  Central  Ohio  R.  Co.,  6  Wall.  134,  18 
L.  Ed.  765;  Heine  x'.  Levee  Commission- 
ers. 19  Wall.  655,  22  L.  Ed.  223;  Fitts  v. 
McGhee,  172  U.  S.  516,  517,  43  L.  Ed. 
535;  In  re  Sawyer,  124  U.  S.  200,  209.  31 
L.  Ed.  402;  White  v.  Berry,  171  U.  S. 
366,  376.  43  L.  Ed.  199.  See  the  titles 
COURTS;    EQUITY;    JURISDICTION. 

By  "common  law,"  the  framers  of  the 
constitution  of  the  United  States  meant, 
what  the  constitution  denominated,  in  the 
third  article,  "law;"  not  merely  suits 
which  the  common  law  recognized  among 
its  old  and  settled  proceedings,  but  suits 
'n    which    legal    rights    were    to    be   ascer- 


tained and  determined,  in  contradistinc- 
cion  to  those  where  equitable  rights  alone 
were  regarded,  and  equitable  remedies 
were  administered;  or  where,  as  in  the 
admiralty,  a  mixture  of  public  law  and 
of  maritime  law  and  equity  was  often 
found  in  the  same  suit.  Parsons  v.  Bed- 
ford, 3  Pet.  433.  7  L.  Ed.  732.  See  Os- 
born  V.  Bank,  9  Wheat.  738,  6  L.  Ed.  204. 

Suits  at  common  law  are  a  distinct 
class,  so  recognized  in  the  constitution^ 
whether  they  be  such  as  are  concurrent 
with  suits  of  which  there  is  jurisdiction 
in  admiralty,  or  not.  Waring  v.  Clarke, 
5   How.  44l!^  459.   12   L.   Ed.   226. 

26.  Robinson  v.  Campbell,  3  Wheat. 
212.  4  L.  Ed.  372;  United  States  v.  How- 
land.  4  Wheat.  108,  4  L.  Ed.  526;  Irvine 
z:  Marshall,  20  How.  558,  565,  15  L.  Ed. 
994;  Fenn  v.  Holme,  21  How.  481,  16  L. 
Ed.  198;  Root  v.  Lake  Shore,  etc..  R.  Co., 
105    U.    S.    189,    206,   26    L.    Ed.    975. 

"It  would  be  difificult.  and  perhaps  im- 
possible, to  state  any  general  rule  which 
would  determine,  in  all  cases,  what 
should  be  deemed  a  suit  in  equity  as  dis- 
tinguished from  an  action  at  law.  for 
particular  elements  may  enter  into  con- 
sideration which  would  take  the  matter 
from  one  court  to  the  other;  but  this  may 
be  said,  that,  where  an  action  is  simply 
for  the  recovery  and  possession  of  spe- 
cific, real  or  personal  property,  or  for  the 
recovery  of  a  money  judgment,  tlft  ac- 
tion is  one  at  law.  An  action  for  the  re- 
covery of  real  property,  including  dam- 
ages for  withholding  it,  has  always  been 
of  that  class."  Whitehead  v.  Shattuck, 
138  U.  S.  146,  151.  34  L.  Ed.  873,  cited  in 
Scott  V.  Neely,  140  U.  S.  106.  107,  33  L. 
Ed.    358. 


ACTIOXS. 


103 


pass,  trover,  replevin.-'     The  difference  between  actions  founded  in  tort  and  in 
contract  is  not  merely  formal  or  technical.-** 

Test. — "Where  contract  and  tort,  in  the  forms  of  declaration  at  common 
law  in  actions  of  the  case,  are  with  difficulty  discriminated,  the  general  test 
adopted  is,  if  specific  breaches  are  assigned,  sounding  ex  delicto,  it  is  case  on  the 
tort."29 

Waiver  of  Contract. — There  is  a  class  of  cases  known  to  the  common  law, 
in  which  a  plaintiff  having  a  right  of  action  arising  upon  contract  may  waive  his 
remedy  directly  upon  the  contract  in  form,  and  allege  his  gravamen  as  origina- 
ting in  tort,  produced  by  a  violation  or  neglect  of  duty.  The  cases  in  which  this 
alternative  is  permitted  are,  in  the  first  place,  those  in  which,  independently  of 
the  rights  of  the  plaintiff  arising  from  express  stipulations  with  the  defendant, 
there  are  duties  or  obligations  incumbent  on  the  latter  resulting  from  the  peculiar 
position  he  occupies  with  respect  to  the  public,  giving  the  right  to  redress  to  all 
who  may  suft'er  from  the  violation  or  neglect  of  these  public  obligations. ■■" 
Secondly,  they  are  cases  in  which  a  kind  of  quasi  tort  is  supposed  to  arise  from  a 
violation  of  the  contract  immediately  between  the  parties.  These  cases,  although 
they  are  torts  in  form,  are  essentially  cases  of  contract.^ ^ 

Waiver  of  Tort. — As  to  waiving  the  tort  and  suing  in  assumpsit,  see  the  title 
Assumpsit. 

U.  Remedy. — A  remedy  is  the  means  employed  to  enforce  a  right,  or  redress 
an  injury.'^-  A  remedy  does  not  necessarily  imply  an  action.^^  While  remedies 
for  nonfulfillment  of  contracts  are  generally  by  action,  they  are  by  no  means 


27.  Definition  of  actions  ex  contractu 
and   ex   delicto. — Black's    L.    Diet.    444. 

Instances  of  actions  ex  delicto  and  ex 
contractu. — Since  the  liability  of  stock- 
holders in  New  York  under  the  corpora- 
tion act  existing  is  in  contract  and  not  a 
penalty,  the  action  may  be  enforced  in 
an  action  ex  contractu  against  a  resident 
stockholder  found  in  another  state. 
Flash  v.  Conn,  109  U.  S.  371.  27  L.  Ed. 
966. 

An  action  brought  to  recover  what  is 
alleged  to  be  due  on  the  price  of  a  con- 
tract is  an  action  sounding  in  contract. 
Hyde  z:  Ruble,  104  U.  S.  407,  26  L.  Ed. 
823. 

An  action  against  a  carrier  for  dam- 
ages for  negligence  sustained  while 
traveling  on  defendant's  road,  the  action 
is  ex  delicto.  Railroad  v.  Laird.  164  U.  S. 
393,    41    L.    Ed.    485. 

An  action  to  recover  for  breach  of  an 
express  warranty  as  to  the  validity  and 
genuineness  of  municipal  bonds  which  in 
fact  were  forgeries,  and  false  and  fraudu- 
lent, is  in  tort.  Shippen  z'.  Bowen,  12"^ 
U.  S.  576.  30  L.  Ed.  1172.  See  the  title 
DEBT,  THE  ACTION  OF. 

28.  Distinction  not  merely  formal  or 
technical. — Garland  z'.  Davis,  4  How.  131. 
144,  11   L.   Ed.  907. 

29.  Test.— New  Jersey,  etc.,  Nav.  Co. 
V.  Merchants'  Bank.  6  How.  344,  433,  12 
L.    Ed.   465. 

30.  "Waiver  of  contract. — New  Jersey, 
etc..  Nav.  Co.  v.  Merchants'  Bank.  6  How. 
344,    410,   12    L.    Ed.    465. 

Such  are  the  instances  of  attorneys, 
surgeons,  common  carriers,  and  other 
bailees.  The  wrong  in  these  instances  is 
rather    the    infringement    of    these     public 


and  general  obligations,  than  the  viola- 
tion of  the  private  direct  agreement  be- 
tween the  parties;  and  agreement,  con- 
tract, is  not  the  foundation  of  the  de- 
mand, nor  can  it  be  properly  taken  as 
the  measure  of  redress  to  be  adjudged; 
for,  if  the  relations  of  the  parties  are  the 
stipulations  of  their  contract  exclusively 
or  essentially,  their  remedies  must  be 
upon  such  stipulations  strictly.  New 
Jersey,  etc..  Nav.  Co.  v.  Merchants'  Bank. 
6   How.  344.  410,   12  L.   Ed.  465. 

31.  New  Jersey,  etc.,  Nav.  Co.  v.  Mer- 
chants' Bank.  6  How.  344,  410,  12  L.  Ed. 
465. 

"In  *  *  *  proof  that  these  actions  in 
form  ex  delicto,  founded  on  breach  of 
contract,  are  essentially  actions  of  con- 
tract, it  is  clear  that,  in  such  actions,  an 
infant  could  not  be  debarred  the  privi- 
lege of  his  nonage,  nor  could  the  opera- 
tion of  the  statute  of  limitations  upon  the 
true  cause  of  the  action  be  avoided;  both 
these  defenses  would  apply,  according  to 
the  real  foundation  of  the  action."'  New 
Tersey.  etc.,  Nav.  Co.  v.  Merchants'  Bank, 
6   How.   344,   412,    12    L.    Ed.   465. 

"With  respect  to  these  cases  ex  delicto 
quasi  ex  contractu,  as  they  have  been 
called,  it  has  been  ruled,  that  if  the  plain- 
tiff states  the  custom,  and  also  relies  on 
an  undertaking  general  or  special,  the 
action  is  in  reality  founded  on  the  con- 
tract, and  will  be  treated  as  such."  New 
Jersey,  etc..  Nav.  Co.  v.  Merchants' 
Bank.   6    How.    344,    412,    12   L.    Ed.    465. 

32.  Remedy. — Knapp,  etc..  Co.  7\  Mc- 
Caffrey, 177  U.  S.  638,  644,  44  L.  Ed.  921, 
quoting   Bouvier's   Law    Diet. 

33.  ^Knapn.  etc..  Co.  v.  :\IcCaffre}'. 
177   U.    S.   638,   644,    44   L.    Ed.   921. 


104  ACTIONS. 

universally  so.  Thus,  a  landlord  has  at  common  law  a  remedy  by  distress  for  his 
rent— a  right  also  given  to  him  for  the  purpose  of  exacting  compensation  for 
damages  resulting  from  the  trespass  of  cattle.  A  bailee  of  property  has  a 
remedy  for  work  done  upon  such  property,  or  for  expenses  incurred  in  keeping 
it,  by  detention  of  possession.  An  innkeeper  has  a  similar  remedy  upon  the 
goods  of  his  guests  to  the  amount  of  his  charges  for  their  entertainment ;  and  a 
carrier  has  a  like  lien  upon  the  thing  carried.  There  is  also  a  common-law  remedy 
for  nuisances  by  abatement ;  a  right  upon  the  part  of  a  person  assaulted  to  resist 
the  assailant,  even  to  his  death ;  a  right  of  recaption  of  goods  stolen  or  unlaw- 
fully taken,  and  a  public  right  against  disturbers  of  the  peace  by  compelling  them 
to  give  sureties  for  their  good  behavior.  All  these  remedies  are  independe..:  of 
an  action. -^"^ 

V.  "Common-Law  Remedy." — Some  of  the  cases  recognize  a  distinction 
between  a  common-law  action  and  a  common-law  remedy .-^^ 

W.     Friendly  Suits. — See  the  title  Friendly  Suits. 

X.  Forms  and  Modes  of  Procedure. — See  the  various  titles  relating  to  the 
particular  forms  of  action. 

As  to  forms  and  modes  of  procedure,  pleading,  etc.,  in  federal  courts,  see  the 
title  Courts. 

Y.  Hypothecary  Action. — "An  hypothecary  action  is  a  real  action  which  the 
creditor  brings  against  the  property  which  has  been  hypothecated  to  him  by  his 
debtor,  in  order  to  have  it  seized  and  sold  for  the  payment  of  his  debt."^^ 

II.    Right  of  Action. 

A.  Object. — The  prime  object  of  all  litigation  is  to  establish  a  right  asserted 
by  the  plaintiff  or  to  sustain  a  defense  set  up  by  the  party  pursued.-^" 

B.  Right  to  Bring  Suit  Distinguished  from  Right  to  Prosecute  Par- 
ticular Bill. — The  right  to  bring  a  suit  is  entirely  distinguishable  from  the  right 
to  prosecute  the  particular  bill.  One  goes  to  the  maintenance  of  any  action ;  the 
other  to  maintenance  of  the  particular  action. ^^ 

C.  Test. — It  is  not  universally,  though  it  may  be  ordinarily,  the  test  of  a  right, 
that  it  may  be  enforced  in  a  court  of  justice ;  claims  and  debts  due  by  a  sovereign 
are  not  commonly  capable  of  being  so  enforced ;  but  it  does  not  follow,  that  be- 
cause an  vmjust  sentence  cannot  be  reversed,  the  party  injured  has  lost  all  right 
to  justice,  or  all  claim,  upon  principles  of  public  law,  to  remuneration.-"^ 

D.  Necessity  for  Actual  Controversy. — See  the  title  Appeal  and  Error. 

E.  As  Dependent  on  Defense. — The  right  to  maintain  an  action  does  not 

34.  Knapp,  etc.,  Co.  v.  McCaffrey,  177  "Thus  it  was  held,  in  the  case  of 
U.  S.  638,  644,  44  L.  Ed.  921;  Cohens  v.  Smith  v.  McKav,  161  U.  S.  3.55,  40  L. 
Virginia.   6  Wheat.  264,  407,  5   L.   Ed.   2.57.       Ed.     731,    and    Blythe    v.    Hinckley,    173 

35.  Taylor  v.  Hammons,  4  Wall.  411,  U.  S.  501,  43  L.  Ed.  783,  that  it  was  not 
431,  18  L.  Ed.  397;  Moran  v.  Sturges,  154  a  question  of  the  jurisdiction  of  the  cir- 
U.  S.  256,  276,  38  L.  Ed.  981;  Knapp,  etc.,  cuit  court  that  the  action  should  have 
Co.  V.  McCaffrey,  177  U.  S.  638.  644,  44  been  brought  at  law  instead  of  in  equity. 
L.  Ed.  921.  See  the  titles  ADMIRALTY;  The  question  in  each  case  is  whether  the 
EQUITY;    JURISDICTION.  plaintiff   has    brought    himself    within    the 

A    statutory   proceeding    to    wind    up    a  language    of   the   jurisdictional    act.   what- 

corporation  is  not  a  common-law  remedj'.  ever    be    the    form     of      his      action,      or 

Moran  v.   Sturges,   154  U.   S.   256,   277,   38  whether   it   be   at    law   or   in   equity.     The 

L.    Ed.   981.      See   the    title      CORPORA-  objection   that  plaintiff  has  failed  to  com- 

TIONS.  ply    with    the    ninety-fourth    rule    may   be 

36.  Louisiana  Code  of  Practice,  §  61;  raised  by  demurrer,  but  the  admitted 
Lovell  V.  Cragin,  136  U.  S.  130,  142,  34  power  to  decide  this  question  is  also  an 
L.  Ed.  372.  See  the  title  MORTGAGES  admission  that  the  court  has  jurisdiction 
AND    DEEDS    OF   TRUST.  of  the   case."     Illinois    Central    R.    Co.   v. 

37.  Object      of      litigation.— Tyler     v.        Adams,  180  U.  S.  28,  35,  45   L.   Ed.  410. 
Judges    of    Court,    179   U.    S.    405,    406.    45  39.     Test. — Comesrvs    v.    Vasse,    1    Pet. 
L.    Ed.   252.                                                                       193,  7   L.   Ed.  108;  Williams  v.  Heard,   140 

38.  Distinctions  between  right  to  bring  U.   S.   529,   543,  35   L.   Ed.   555;   Stanley  v. 
&M  and  right  to  prosecute  particular  bill.  Schwalby,   147   U.    S.    508,   517,    37    L.    Ed. 
— nimcis    Central    R.    Co.    v.    Adams.    180  259.      See   the   title  UNITED   STATES. 
U.  S,  2S,  35,  45  L.  Ed.   4ie. 


ACTIONS. 


105 


depend  upon  the  defense  set  up.^'^ 

F.  What   Law  Governs. — See  the  title  Conflict  of  Laws. 

G.  No  Right  or  Wrong  without  a  Remedy. — There  can  be  no  right^i  or 
Avron^-  without  a  remedy. 

H.  Liability  without  Fault. — "Our  jurisprudence  affords  examples  of  legal 
liability  without  fault. "^-^ 

I.  Damnum  Absque  Injuria — Generally. — "There  are  cases  of  injurious 
acts  for  which  a  suit  will  not  lie,  unless  there  be  fraud  or  malice  concurring  to 
characterize  and  distinguish  them."-*^ 

Public  Necessity. — "The  rights  of  necessity  are  a  part  of  the  law."*^ 

Impending  Danger  to  Individuals. — But  impending  dangers  give  no  im- 
munity to  one  man  to  destroy  the  property  of  another.-**^ 

Unavoidable  Accident. — See  the  title  Negligence. 

Exercise  of  Public  or  Statutory  Rights  or  Functions. — It  is  a  general  rule 
that  the  exercise  of  rights  and  powers  conferred  by  statute,  for  the  public  benefit, 
with  skill  and  caution  does  not  confer  a  right  of  action  on  third  parties  injured 
thereby.-*" 


40.  Osborn  v.  Bank.  9  Wheat. 
738,  825,  6  L.  Ed.  204;  Tennessee  v. 
Union,  etc..  Bank.  152  U.  S.  455.  459,  38 
L.  Ed.  511;  Pacific  Railroad  Removal 
Cases,  115  U.  S.  1,  18,  29  L.  Ed.  319.  See, 
also.  Cooke  v.  Avery,  147  U.  S.  375.  385, 
37  L.  Ed.  209.  212;  Filhoil  v.  Torney,  194 
U.    S.    356.    360,    48    L.    Ed.    1014. 

"The  question  respecting  the  right  to 
make  a  particular  contract,  or  to  acquire 
a  particular  property,  or  to  sue  on  ac- 
count of  a  particular  injury,  belongs  to 
every  particular  case,  and  may  be  re- 
newed in  every  case.  The  question  forms 
an  original  ingredient  in  every  cause. 
Whether  it  be.  in  fact,  relied  on  or  not, 
in  the  defense,  it  is  still  a  part  of  the 
cause,  and  may  be  relied  on.  The  right  of 
the  plaintiff  to  sue,  cannot  depend  on  the 
defense  which  the  defendant  may  choose 
to  set  up.  His  right  to  sue  is  anterior 
to  that  defense,  and  must  depend  on  the 
state  of  things  when  the  action  is  brought. 
The  question  which  the  case  involved, 
then.  must  determine  its  character, 
whether  those  questions  be  made  in  the 
cause  or  not."  Osborn  v.  Bank,  9  Wheat. 
■738.  825.  6  L.  Ed.  204;  Filhoil  v.  Torney, 
194    U.    S.    356,    360,    48    L.    Ed.    1014. 

41.  No  rifjht  without  a  remedy. — Bron- 
son  V.  Kinzie,  1  How.  311.  316,  11  L.  Ed. 
143;  White  v.  Hart,  13  Wall.  646.  20  L. 
Kd.  685;  Wheaton  z'._  Peters,  8  Pet.  591. 
695,  8  L.  Ed.  1055.  dissenting  opinion  of 
Thompson.  J.;  Marburv  v.  Madison,  1 
Cranch    137,    163.    2    L.    Ed.    60. 

42.  No  wrong  without  a  remedy. — 
Findlay  v.  McAllister.  113  U.  S.  104.  115, 
28  L.  Ed.  930;  Marbiiry  v.  -Madison,  1 
Cr?nch  137.  163,  2  L.  Ed.  60. 

"If  there  be  an  admitted  wrong,  the 
courts  will  look  fnr  to  supply  an  ade- 
Cirate  remedy."  De  Lima  v.  Bidwell, 
182  U.   S.   1.   176,  45   L.   Ed.   1041. 

43.  Liability  without  fault. — Chicago, 
etc..  R.  Co.  v.  Zernecke.  183  U.  vS.  582. 
586.    46    L.    Ed.    339. 

"The  law  of  deodands  was  such  an  ex- 
ample.     The    personification    of    the    ship 


in  admiralty  law  is  another.  Other  ex- 
amples are  afforded  in  the  liability  of  the 
husband  for  the  torts  of  the  wife — the 
liability  of  a  master  for  the  acts  of  his 
servants."  Chicago,  etc.,  R.  Co.  v.  Zer- 
necke, 183  U.  S.  582.  586,  46  L.  Ed.  339. 
See  the  titles  ADMIRALTY;  DAM- 
AGES; HUSBAND  AND  WIFE;  MAS- 
TER AND  SERVANT. 

44.  Damnum  absque  injuria. — Adler  v. 
Fenton,  24  How.  407.  410,  16  L.  Ed.  696. 
See  the  titles  DAMAGES;  FRAUD  AND 
DECEIT. 

45.  Public  necessity. — "At  the  common 
law  every  one  had  the  right  to  destroy 
real  and  personal  property,  in  cases  of 
actual  necessity,  to  prevent  the  spreading 
of  a  fire,  and  there  was  no  responsibility 
on  the  part  of  such  destroyer,  and  no 
remedy  for  the  owner."  Bowditch  v. 
Boston,  101  U.   S.  16,  18,  25   L.   Ed.  980. 

"  'For  the  commonwealth  a  man  shall 
suffer  damage,  as  for  saving  a  city  or 
town  a  house  shall  be  plucked  down  if 
the  next  one  be  on  fire;  and  a  thing  for 
the  commonwealth  every  man  may  do 
without  being  liable  to  an  action.'  There 
are  many  other  cases  besides  that  of 
fire — some  of  them  involving  the  destruc- 
tion of  life  itself — where  the  same  rule 
is  applied.  'The  rights  of  necessity  are 
a  part  of  the  law.'  ■  Respublica  v.  Spar- 
hawk.  1  Dall.  357.  362,  1  L.  Ed.  414." 
Bowditch  V.  Boston,  101  U.  S.  16,  18,  25 
L.    Ed.    980. 

46.  Impending  danger  to  individuals. — 
Richmond  v.  Smith,  15  Wall.  429.  438,  21 
L.    Ed.   200. 

"As  well  may  a  man  in  good  health 
claim  the  right  to  take  the  life  of  his 
neighbor  who  is  sick,  and  offer  as  a  de- 
fense for  his  crime  that  the  sick  man 
would  have  died  of  his  disease  if  he,  the 
defendant,  had  withheld  the  mortal 
blow."  Richmond  v.  Smith,  15  Wall. 
429.    438,    21    L.    Ed.    200. 

47.  Exercise  of  statutory  powers. — 
P"mpelly  v.  Green  Bav  Canal  Co.,  13 
Wall.  166,  20  L.  Ed.  557;' Northern  Trans- 


106 


ACTIONS. 


J.  Trivial  Causes. — "The  matter  of  amount  does  not  determine  the  question 
of  right,  and  the  party  who  has  a  legal  right  may  insist  upon  it,  if  only  a  shilling 
be  involved.""*^ 

K.  Motive. — An  act  legal  in  itself,  and  violating  no  right,  cannot  be  made 
actionabl:  on  account  of  the  motive  which  superinduced  it.'*^  It  is  no  defense 
that  the  plaintiff  may  have  had  some  ulterior  object  in  view  beyond  the  recovery 
of  a  judgment,  so  long  as  such  object  was  not  an  unlawful  one.^*^ 

L.    Action  for  Use  of  Another. — See  the  title  Partiks. 

M.  Impairment  or  Modification  of  Remedy. — See  the  title  Constitu- 
tional Law. 

III.     Statutory  Remedies. 

A.  New  Liability  or  Right  Created  without  Remedy. — A  general  liability 
created  by  statute  without  a  remedy  may  be  enforced  by  an  appropriate  common- 
law  action.^  ^ 

B.  New  Statutory  Remedy  or  Penalties  and  Forfeitures  for  Existing" 
Common-Law  Right. — A  statute  which  gives  an  additional  remedy,^^  or  in- 
flicts new  penalties  and  forfeitures  for  the  violation  of  a  right,  leaves  the  in- 
jured party  the  option  of  appealing  to  the  statute  or  common  law  for  redress. ^^ 
And  where  a  statute  gives  a  remedy,  where  there  was  one  by  the  common  law, 
and  does  not  imply  a  negative  of  the  common-law  remedy,  there  will  be  two  con- 
current remedies.     In  such  case,  the  statute  remedy  is  cumulative.^^ 


portation  Co.  v.  Chicago,  99  U.  S.  635, 
25  L.  Ed.  336;  Baltimore,  etc..  R.  Co.  v. 
Fifth  Baptist  Church.  108  U.  S.  317,  27 
L.  Ed.  739;  Hamilton  v.  Vicksburg,  etc., 
R.  Co.,  119  U.  S.  280.  30  L.  Ed.  393.  See 
the  titles  DAMAGES;  EMINENT  DO- 
MAIN; NAVIGABLE  WATERS;  NEG- 
LIGENCE;   NUISANCES. 

See  the  particular  titles  relating  to  of- 
ficers. See,  also,  the  title  PUBLIC  OF- 
FICERS. 

"The  remedy  for  a  consequential  in- 
jury resulting  from  the  state's  action 
through  its  agent,  if  there  be  any,  must 
be  that,  and  that  only,  which  the  legis- 
lature shall  give."  Northern  Transporta- 
tion Co.  V.  Chicago,  99  U.  S.  635.  641,  25 
L.    Ed.    336. 

48.  Trivial  causes.— Gulf,  etc.,  R.  Co. 
V.  Ellis,  165  U.  S.  150,  153.  41  L.  Ed. 
666. 

49.  Motive. — Adler  v.  Fenton,  24  How. 
407.    410,    16    L.    Ed.    696. 

50.  Dickerman  v.  Nothern  Trust  Co., 
176   U.    S.    181,    190,    44    L.    Ed.    423. 

"If  the  law  concerned  itself  with  the 
motives  of  parties,  new  complications 
would  be  introduced  into  suits  which  might 
seriously  obscure  their  real  merits."  Dick- 
erman V.  Northern  Trust  Co.,  176  U.  S. 
181,   190,   44  L.   Ed.   423,  430. 

"If  debt  secured  by  a  mortgage  be 
justly  due,  it  is  no  defense  to  a  fore- 
closure that  the  mortgagee  was  animated 
by  hostility  or  other  bad  motive."  Dick- 
erman V.  Northern  Trust  Co.,  176  U.  S. 
181.   190,  44  L.   Ed.   423,   430. 

51.  Right  created  without  remedy. — 
Stewart  v.  Baltimore,  etc.,  R.  Co..  168  U. 
S.  445,  447,  42  L.  Ed.  537;  Pollard  v. 
Bailey,  20  Wall.  520,  527,  22  L.  Ed.  376; 
United    States   v.   Kaufman,   96   U.   S.    5G7. 


570,  24  L.  Ed.  792;  Fourth  Nat.  Bank 
V.  Francklvn,  120  U.  S.  747,  756,  30  L.  Ed. 
825.  See  So«th  Carolina  v.  Gaillard,  101 
U.    S.    433.    437,    25    L.    Ed.    937. 

By  the  internal  revenue  law  the  United 
States  are  not  prohibited  from  adopting 
the  action  of  debt  or  any  other  common- 
law  remedy  for  collecting  what  is  due  to 
them.  This  is  true  on  general  principles. 
Savings  Bank  v.  United  States,  19  Wall. 
227,  228.  22  L.  Ed.  80.  See  the  title 
REVENUE  LAWS. 

Where  no  special  remedy  has  been  pro- 
vided for  the  enforcement  of  claims 
against  the  United  States  government  the 
general  laws  governing  payment  of 
claims  as  provided  by  the  court  of  claims 
is  applicable.  United  States  v.  Kaufm.in. 
96  U.  S.  567,  570,  24  L.  Ed.  792.  See  the 
titles   CLAIMS;   UNITED   STATES. 

52.  Statute  giving  additional  remedy. — 
Wheaton  v.  Peters,  8  Pet.  591,  698,  S  L- 
Ed.  1055;  Amy  v.  The  Supervisors,  11 
Wall.  136,  138,  20  L.  Ed.  101.  See  Nashua 
Savings  Bank  v.  Anglo-American  Land, 
etc.,  Co.,  189  U.  S.  221,  232,  47  L.  Ed. 
782. 

53.  Wheaton  v.  Peters,  8  Pet.  591,  698, 
8  L.  Ed.  1055.  See  the  title  COPY- 
RIGHT. 

54.  Dissenting  opinion  of  Thompson, 
J.,  in  Wheaton  v.  Peters,  8  Pet.  591.  690, 
8    L.    Ed.    1055. 

A  statute  of  the  state  of  Mississippi, 
passed  on  the  15th  of  February,  1828,  pro- 
vided that  if  a  sherifif  should  fail  to  pay 
over  to  a  plaintiff  money  collected  by  ex- 
ecution, the  amount  collectetl.  with  25  per 
cent,  damages,  and  8  per  cent,  interest, 
might  be  recovered  against  such  sheriff 
and  his  sureties,  by  motion  before  the 
court    to    which    such    execution    was    re- 


ACTIONS. 


K7 


C.  Statute  Creating  New  Right  or  Offense  and  Prescribing  a  Specific 
Remedy  or  Punishment. — Where  a  statute  creates  a  new  right, ^-^  Habil- 
ity,^*^    or    offense,'"''^    and    provides    a    particular    or    special    remedy,-^^    punish- 


turnable.  But  the  marshal  himself  was 
always  liable  to  an  attachment,  under 
which  he  could  be  compelled  to  bring  the 
money  into  court;  and  by  the  process  act 
of  congress,  of  May,  1828,  was  also  liable, 
in  Mississippi,  to  have  a  judgment  en- 
tered against  himself  by  motion.  Held,  a 
marshal  and  his  sureties  cannot  be  pro- 
ceeded against  jointly,  in  this  summary 
way,  but  they  must  be  su^d  as  directed 
by  the  act  of  congress.  Gwin  v.  Breed- 
love.   2   How.   29,    11    L.    Ed.    167. 

55.  Statute  creating  new  right. — Sav- 
ings Bank  v.  United  States.  19  Wall.  227, 
238.  23  L.  Ed.  80;  Barnett  V.  Muncie 
Nat.  Bank,  98  U.  S.  555.  25  L.  Ed.  212; 
Haseltine  v.  Central  Nat.  Bank,  183  U.  S. 
132,  46  L.  Ed.  118;  Farmers',  etc.,  Bank 
V.  Dearing,  91  U.  S.  29,  35,  23  L.  Ed.  196; 
Haycraft  v.  United  States,  22  Wall.  81, 
98.  22  L.  Ed.  738;  Stephens  t^.  Mononga- 
hela  Nat.  Bank.  Ill  U.  S.  197,  199,  28  L. 
Ed.  399;  Wheaton  v.  Peters,  8  Pet.  591, 
663,  8  L.  Ed.  1055;  Banks  v.  Manchester, 
128  U.  S.  244,  32  L.  Ed.  425;  Thompson 
V.  Hubbard.  131  U.  S.  123,  33  L.  Ed.  76; 
Evans  V.  Nellis,  187  U.  S.  271,  47  L.  Ed. 
173;  Middletown  Nat.  Bank  v.  Toledo, 
etc.,  R.  Co.,  197  U.  S.  394,  49  L.  Ed.  803; 
Gates  V.  National  Bank,  100  U.  S.  239,  25 
L.  Ed.  580;  McBroom  v.  Scottish  Invest- 
ment Co.,  153  U.  S.  318.  325,  38  L.  Ed.  729. 

56.  Statute  creating  new  liability. — 
Stewart  v.  Baltimore,  etc.,  R.  Co.,  168  U. 
S.  445,  447,  42  L.  Ed.  537;  Pollard  v. 
Bailey,  20  Wall.  520,  527,  22  L.  Ed.  376; 
Fourth  Nat.  Bank  v.  Francklyn.  120  U. 
S.  747.  30  L.  Ed.  825.  See  the  Harrisburg, 
119   U.   S.   199,  30   L.   Ed.   358. 

Where  a  statute  creating  an  individual 
liability  of  stockholders  in  a  corporation, 
declares  the  purpose  of  its  creation,  and 
provides  a  particular  manner  in  equity  of 
expressing  this  liability;  the  liability  and 
the  remedy  being  created  by  the  same 
statute,  the  statutory  remedy  is  exclusive 
and  hence  a  stockholder  cannot  sue  at 
law.  Pollard  v.  Bailey.  20  Wall.  520,  22 
L.  Ed.  376;  Stewart  v.  Baltimore,  etc..  R. 
Co.,  168  U.  S.  445,  447,  42  L.  Ed.  537; 
Fourth  Nat.  Bank  v.  Francklyn,  120  U. 
S.  747,  30  L.  Ed.  825;  Middletown  Nat. 
Bank  v.  Toledo,  etc.,  R.  Co..  197  U.  S.  394, 
49   L.   Ed.   803. 

57.  Statute  creating  new  offense. — Bar- 
net  V.  Muncie  Nat.  Bank.  98  U.  S.  555, 
25  L.  Ed.  212;  Haseltine  v.  Central  Nat. 
Bank,  183  U.  S.  132,  136,  46  L.  Ed.  118; 
Farmers',  etc..  Bank  i\  Dearing,  91  U.  S. 
29,  35,  23  L.  Ed.  196;  Gates  v.  National 
Bank,  100  U.  S.  239.  25  L.  Ed.  580;  Mc- 
Broom V.  Scottish  Investment  Co..  153 
U.   S.   318.   325,   38    L.    Ed.   729. 

58.  Statute  providing  particular  or  spe- 
cial remedy. — Fourth  Nat.  Bank  v. 
Francklyn.   120   U.    S.   747,   30    L.    Ed.    825; 


Pollard  z'.  Bailey,  20  Wall.  520,  22  L.  Ed. 
376;  Savings  Bank  v.  United  States,  19 
Wall.  227,  238.  22  L.  Ed.  80;  Barnet  v. 
Muncie  Nat.  Bank,  98  U.  S.  555,  25  L.  Ed. 
212;  Haseltine  v.  Central  Nat.  Bank,  183 
U.  S.  132,  46  L.  Ed.  118;  Stewart  v.  Bal- 
timore, etc.,  R.  Co.,  168  U.  S.  445,  447.  42 
L.  Ed.  537;  Farmers',  etc..  Bank  v.  Dear- 
ing. 91  U.  S.  29.  35,  23  L.  Ed.  196;  Arnson 
V.  Murphy.  109  U.  S.  238,  27  L.  Ed.  920- 
Haycraft  v.  United  States,  22  Wall.  81. 
98,  22  L.  Ed.  738;  Stephens  v.  Mononga- 
hela  Nat.  Bank,  111  U.  S.  197.  199,  28  L. 
Ed.  399;  Wheaton  v.  Peters,  8  Pet.  591,  8 
L.  Ed.  1055;  Banks  v.  Manchester,  128 
U.  S.  244,  252,  32  L.  Ed.  425;  Thompson 
V.  Hubbard,  131  U.  S.  123.  33  L.  Ed.  76; 
Carter  v.  Carusi,  112  U.  S.  478,  483,  28  L. 
Ed.  821;  Gates  v.  National  Bank,  100  U. 
S.  239.  25  L.  Ed.  580;  McBroom  v.  Scot- 
tish Investment  Co..  153  U.  S.  318,  325., 
38  L.  Ed.  729.  See  The  Harrisburg,  119 
U.  S.   199,  214.  30  L.   Ed.  358. 

"The  reason  of  the  rule  is  that  the 
statute,  by  providing  a  particular  remedy, 
manifests  an  intention  to  prohibit  other 
remedies,  and  the  rule,  therefore,  rests 
upon  a  presumed  statutory  prohibition. 
It  applies  and  it  is  enforced  when  any  one 
to  whom  the  statute  is  a  rule  of  conduct 
seeks  redress  for  a  civil  wrong.  He  is, 
confined  to  the  remedy  pointed  out  in 
the  statute,  for  he  is  forbidden  to  make 
use  of  any  other."  Savings  Bank  v. 
United  States.  19  Wall.  227,  239,  22  L. 
Ed.  80. 

Limitation  of  the  rule. — "It  may  well 
be  that  where  a  purely  statutory  right  is 
created  the  special  remedy  provided  by 
the  statute  for  the  enforcement  of  that 
right  must  be  pursued,  but  where  the 
statute  simply  takes  away  a  common-law 
obstacle  to  a  recovery  for  an  admitted 
tort,  it  would  seem  not  unreasonable  to 
hold  that  an  action  for  that  tort  can  be 
maintained  in  any  state  in  which  that 
common-law  obstacle  has  been  removed. 
At  least  it  has  been  held,  by  this  court  in 
repeated  cases,  that  an  action  for  such  a 
tort  can  be  maintained  'where  the  stat- 
ute of  the  state  in  which  the  cause  of  ac- 
tion arose  is  not  in  substance  inconsistent 
with  the  statutes  or  public  policy  of  the 
state  in  which  the  right  of  action  is 
sought  to  be  enforced.  Texas,  etc.,  R. 
Co.  V.  Cox,  145  U.  S.  593,  605,  36  L.  Ed. 
829.  See,  also,  Dennick  v.  Central  R.  Co., 
103  U.  S.  11,  26  L.  Ed.  439;  Huntington 
V.  Attrill,  146  U.  S.  657.  36  L.  Ed.  1123: 
Northern  Pacific  R.  Co.  v.  Babcock,  154 
U.  S.  190,  38  L.  Ed.  958;  Stewart  v.  Baiti 
more,  etc..  R.  Co.,  168  U.  S.  445.  448,  42 
L.  Ed.  537;  Fourth  Nat.  Bank  v.  Franck- 
Ivn.  120  U.  S.  747,  30  L.  Ed.  825.  See  the 
title   VENUE. 

"In   all   the    diversity   of   opinion   in   the 


108 


ACTIONS. 


ment,^^  or  penalty,^'^    for    its    enforcement  or  execution,  the  remedy,'^ ^  or  pnnish- 


courts  of  the  different  states,  upon  the 
question  how  far  a  liability,  imposed 
upon  stockholders  in  a  corporation  by  the 
law  of  the  state  which  creates  it,  can  be 
pursued  in  a  court  held  beyond  the  limits 
of  that  state,  no  case  has  been  found,  in 
which  such  a  liability  has  been  enforced 
by  any  court,  without  a  compliance  -with 
the  conditions  applicable  to  it  under  the 
legislative  acts  and  judicial  decisions  of 
the  state  which  creates  the  corporation 
and  imposes  the  liability.  To  hold  that 
it  could  be  enforced  without  such  com- 
pliance would  be  to  subject  stockholders 
residing  out  of  the  state  to  a  greater 
burden  than  domestic  stockholders." 
•Fourth  Nat.  Bank  v.  Francklyn,  120  U. 
S.   747,   758,   30    L.    Ed.    825. 

Copyright  Cases. — Congress  has  pro- 
vided a  special  right  or  remedy  for  the 
enforcement  of  the  claim  and  rights  of 
persons  entitled  to  copyrights,  hence  the 
remedy  is  exclusive  of  all  common-law 
remedies.  Wheaton  v.  Peters.  8  Pet.  591, 
8  L.  Ed.  1055;  Banks  v.  Manchester,  128 
U.  S.  244,  252,  32  L.  Ed.  425;  Thompson 
V.  Hubbard,  131  U.  S.  123.  33  L.  Ed.  76. 
See   the  title   COPYRIGHT. 

Revenue  laws. — The  remedy  by  suit 
provided  by  statute  to  recover  back  an 
internal  revenue  tax  after  payment  thereof 
is  exclusive.  Snyder  v.  Marks.  109  U.  S. 
189,  27  L.  Ed.  901.  See  the  title  REVE- 
NUE   LAWS. 

The  remedy  against  a  revenue  collector 
to  recover  back  duties  illegally  assessed 
is  a  statutory  liability  which  is  ex- 
clusive. Arnson  v.  Murphv,  109  U.  S. 
238,  27  L.  Ed.  920;  Mitchell' ?7.  Clark,  110 
U.  S.  633,  642,  28  L.  Ed.  279.  See  the 
title    REVENUE    LAWS. 

A  statute  provided  for  the  appropria- 
tion or  capture  of  an  enemy's  property  on 
land,  and  provided  that  certain  persons 
may  demand  and  receive  a  restoration  of 
their  property.  If  the  proceedings  be 
taken  within  two  years,  the  statutory 
remedv  was  exclusive.  Haycraft  v.  United 
States^  22  Wall.  81.  98.  22  L.  Ed.  738. 
See  the  title  ABANDONED  AND  CAP- 
TURED  PROPERTY,   ante,   p.    1. 

Usury. — Rev.  Stat.,  §  5198,  providing 
the  risht  to  recover  usurious  interest  paid 
a  national  bank  also  provides  the  rem- 
edy for  its  recovery;  hence,  the  remedy 
is  exclusive.  Stephens  v.  Monongahela 
Nat.  Bank,  111  U.  S.  197,  28  L.  Ed.  399; 
Barnet  v.  Muncie  Nat.  Bank,  98  U.  S. 
555.  25  L.  Ed.  212;  Farmers',  etc..  Bank 
V.  Dearing,  91  U:  S.  29,  23  L.  Ed.  196; 
McBroom  v.  Scottish  Investment  Co.,  153 
U.  S.  318,  325.  38  L.  Ed.  729;  Carter  v. 
Carusi.  112  U.  S.  478,  483,  28  L.  Ed.  821; 
Oates  V.  National  Bank,  100  U.  S.  239. 
249.  25  L.  Ed.  580.  See  the  titles  BANKS 
AND  BANKING;  USURY. 

Section  716  of  the  Revised  Statutes  of 
the  District   of   Columbia  providing  for  a 


recovery  back  of  unlawful  interest  is  ex- 
clusive. Carter  v.  Carusi,  112  U.  S.  478, 
483,  28  L.  Ed.  821.  See  the  titles  IN- 
TEREST;  USURY. 

A  statute  which  prescribes  a  legal  rate 
of  interest,  and  forbids  the  taking  of  a 
higher  rate,  under  penalty  of  a  forfeiture 
of  the  entire  interest,  and  declares  that 
the  party  paying  such  higher  rate  of  in- 
terest, may  recover  it  back  by  suit 
brought  within  twelve  months,  confers 
no  authority  to  apply  the  usurious  interest 
actually  paid  to  the  discharge  of  the 
principal  debt,  and  a  suit  for  its  recovery, 
brought  within  twelve  months,  was  the 
exclusive  remedy.  Walsh  v.  Mayer,  111 
U.  S.  31.  28  L.  Ed.  338;  Carter  v.  Carusi. 
112    U.    S.   478,   484,   28    L.   Ed.   821. 

The  act  of  June  3.  1864  (13  Stat.  99.  § 
30),  having  prescribed  that,  as  a  penalty 
for  such  taking,  the  person  paying  such 
unlawful  interest,  or  his  legal  representa- 
tive, may,  in  any  action  of  debt  against 
the  bank,  recover  back  twice  the  amount 
so  paid,  he  can  resort  to  no  other  mode 
or  form  of  procedure.  Barnet  v.  Muncie 
Nat.  Bank,  98  U.  S.  555,  25  L.  Ed.  212; 
Haseltine  v.  Central  Nat.  Bank,  183  U. 
S.  132.  46  L.   Ed.   118. 

A  statutory  remedy  providing  for  a 
recovery  back  of  illegal  assessments  of 
taxes  is  exclusive,  where  the  taxing  au- 
thorities have  exchisive  discretion;  other- 
wise, where  the  statute  leaves  open  to 
judicial  inquiry,  jurisdictional  matters. 
Osden  City  v.  Armstrong.  168  U.  S.  224, 
42"L.  Ed.  444.     See  the  title  TAXATION. 

59.  Statute  providing  particular  punish- 
ment.— Barnet  z'.  Muncie  Nat.  Bank.  98 
U.  S.  555.  25  L.  Ed.  212;  Haseltine  v.  Cen- 
tral Nat.  Bank.  183  U.  S.  132,  136.  46  L. 
Ed.  118;  Farmers',  etc..  Bank  v.  Dearing, 
91    U.    S.   29.   35.    23    L.    Ed.    196. 

60.  Statute  providing  penalty. — Farm- 
ers', etc..  Bank  v.  Dearing,  91  U.  S.  29, 
35,  23  L.  Ed.  196;  Walsh  v.  Mayer.  Ill 
U.  S.  31,  28  L.  Ed.  338;  Carter  v.  Carusi, 
112  U.  S.  478.  484,  28  L.  Ed.  821;  Barnet 
V.  Muncie  Nat.  Bank,  98  U.  S.  555.  25  L. 
Ed.  21":  Haseltine  v.  Central  Nat.  Bank. 
183  U.  S.  132,  46  L.  Ed.  118;  Oates  v.  Na- 
tional Bank.  100  U.  S.  239.  25  L.  Ed.  580; 
McBroom  v.  Scottish  Investment  Co.,  153 
U.  S.  318,  325,  38  L.  Ed.  729.  See  the 
title  PENALTIES  AND  FORFEI- 
TURES. 

61.  Exclusive  of  all  common-law  rem- 
edies.—Pollard  V.  Bailey,  20  Wall.  520.  22 
L.  Ed.  376:  Haspltiri'-  v.  Central  Nat. 
Bank,  183  U.  S.  132.  136,  46  L.  Ed.  118; 
Barnet  v.  Muncie  Nat.  Bank,  98  U.  S. 
555,  25  L.  Ed.  212;  Stewart  v.  Baltimore, 
etc..  R.  Co..  168  U.  S.  445,  447.  42  L.  Ed. 
537;  Fourth  Nat.  Bank  v.  Francklyn,  120 
U.  S.  747.  30  L.  Ed.  825;  Farmers',  etc., 
Ppnk  V.  Dearing,  91  U.  S.  29,  35,  23  L. 
Ed.  196;  Arnson  v.  Murphy,  109  U.  S. 
238,    27    L.    Ed.    920;    Haycraft    v.     United 


ACTIONS. 


109 


ment^2  is  generally  exclusive  of  all  common-law  remedies. 

D.  Enforcement  of  Statutory  Remedies. — Time  for  Enforcement. — 
Where  a  statute  creates  a  right  not  known  to  the  common  law,  and  provides 
a  remedy  for  the  enforcement  of  such  right,  and  limits  the  time  within  which 
the  remedy  must  be  pursued,  the  remedy  in  such  case  forms  a  part  of  the  right, 
and  must  be  pursued  within  the  time  prescribed,  or  else  the  right  and  rem- 
edy are  both  lost.^^ 

Power  of  Court. — Where  the  remedy  is  statutory  only,  every  court  which 
takes  jurisdiction  for  its  enforcement  is  limited  in  its  powers  by  the  statute  under 
which  alone  it  can  act.^^ 

Necessity  for  Party  to  Bring-  Himself  within  Terms  of  Statute. — 
"Where  a  right  is  statutory,  the  claimant  cannot  recover  unless  he  brings  himself 
within  the  terms  of  the  statute. "^^ 

Place  of  Enforcement. — Whenever,  by  either  the  common  law  or  the  stat- 
ute law  of  a  state,  a  right  of  action  has  become  fixed  and  a  legal  liability  incurred, 
that  liability  may  be  enforced  and  the  right  of  action  pursued  in  any  court  which 
has  jurisdiction  of  such  matters  and  can  obtain  jurisdiction  of  the  parties.^*' 

Repeal  of  Statute. — It  is  well  settled  that  if  a  statute  giving  a  special  remedy 
is  repealed  without  a  saving  clause  in  favor  of  pending  suits,  all  suits  must  stop 
v^^here  the  repeal  finds  them.*^'     And  suits  pending,  which  rest  upon  an  act  of  con- 


States,  22  Wall.  81,  98.  22  L.  Ed.  738; 
Wheaton  v.  Peters,  8  Pet.  591,  8  L.  Ed. 
1055;  Banks  v.  Manchester,  128  U.  S.  244, 
252,  32  L.  Ed.  425;  Thompson  v.  Hub- 
bard, 131  U.  S.  123,  33  L.  Ed.  76;  Ste- 
phens V.  Monongahela  Nat.  Bank,  111  U. 
S.  197.  198.  28  L.  Ed.  399;  Gates  v.  Na- 
tional Bank,  100  U.  S.  239,  25  L.  Ed.  580; 
McBroom  v.  Scottish  Investment  Co., 
153    U.    S.    318.    325,    38    L.    Ed.    729. 

Exclusiveness  of  statute  as  to  federal 
questions. — -"It  is  contended,  on  the  other 
hand,  that  where  taxes  are  levied  upon 
property  which  is  by  law  exempt  from 
taxation,  the  statutory  remedy  by  appli- 
cation to  a  board  of  review  is  only  cumu- 
lative and  that  the  taxpayer  may  at  his 
election  seek  his  remedy  by  injunction 
in  the  first  instance.  But  it  was  for  the 
supreme  court  of  Montana  to  determine 
whether  the  statute  was  exclusive  and 
whether  plaintiff  came  within  its  terms  or 
not.  and  its  action  in  that  regard  raises 
no  federal  question  for  our  consideration." 
Northern  Pacific  R.  Co.  v.  Patterson.  154 
U.  S.  130,  133.  38  L.  Ed.  934.  See  the  title 
APPEAL   AND   ERROR. 

62.  Exclusiveness  of  statutory  punish- 
ment.— Farmers',  etc.,  Bank  v.  Bearing, 
91  U.  S.  29.  35.  23  L.  Ed.  196;  Barnet  v. 
Muncie  Nat.  Bank.  98  U.  S.  555,  25  L. 
Ed.  212:  Gates  v.  National  Bank.  100  U. 
S.  239.  25  L.  Ed.  580;  McBroom  v.  Scot- 
tish Investment  Co.,  153  U.  S.  318,  325, 
38   L.    Ed.    729. 

63.  Time  for  enforcement. — Bear  Lake, 
etc..  Co.  v.  Garland,  164  U.  S.  1.  14,  41 
L.  Ed.  327.  See  the  title  LIMITATION 
OF  ACTIONS  AND  ADVERSE  POS- 
SESSION. 

64.  Power  of  court. — East  Tenn.,  etc., 
R.  Co.  V.  Southern  Tel.  Co.,  112  U.  S 
306,  310,  28  L.  Ed.  746.  See  the  titles 
COURTS;    STATUTES. 


65.  United  States  v.  Perryman,  100  U. 
S.  235,  25  L.  Ed.  645;  Wheaton  v.  Peters. 
8  Pet.  591,  696,  8  L.  Ed.  1055;  Bowditch 
V.  Boston.  101  U.  S.  16,  25  L.  Ed.  980.  See 
the   title  STATUTES. 

66.  Dennick  t-.  Central  R.  Co..  103  U. 
S.  11,  26  L.  Ed.  439;  Flash  v.  Conn,  109 
U.  S.  371,  379,  27  L.  Ed.  966.  See  the 
titles  CONFLICT  OF  LAWS;  DEATH 
BY  WRONGFUL  ACT;  JURISDIC- 
TION; VENUE. 

67.  Effect  of  repeal.— South  Carolina  v. 
Gaillard,  101  U.  S.  433.  438.  25  L.  Ed.  937; 
Carroll  v.  Green,  92  U.  S.  509,  515.  23  L. 
Ed.  738;  Norris  v.  Crocker,  13  How.  429, 
14  L.  Ed.  210:  Baltimore,  etc.,  R.  Co.  v. 
Grant,  98   U.  S.   398,  401,  25  L.   Ed.   231. 

The  act  of  the  general  assembly  of 
South  Carolina,  passed  June  9,  1877.  en- 
titled "An  act  to  provide  the  mode  of 
proving  bills  of  the  bank  of  the  state 
tendered  for  taxes,  and  the  rules  of  evi- 
dence applicable  thereto,"  created  no  new 
contract  between  the  state  and  the  tax- 
payer or  billholder,  but  merely  provided 
a  new  remedy  which  formed  no  part  of 
the  contract  created  by  the  charter  of  the 
bank.  After  that  act  was  repealed,  a 
party  could  not  institute  a  proceeding  to 
avail  himself  of  the  remedy  which  it 
furnished,  and  all  suits  then  pending 
thereunder  terminated,  there  being  no 
saving  clause  as  to  them.  South  Caro- 
lina V.  Gaillard.  101  U.  S.  433.  25  L.  Ed. 
937.  See  the  title  CONSTITUTIONAL 
LAW. 

A  statute  provided  for  a  penalty  to  be 
recovered  by  the  owner  of  fugitive  slaves. 
The  statute  being  repealed,  the  penalty 
fails.  Norris  v.  Crocker,  13  H^w.  429, 
14  L.  Ed.  210.  See  the  titles  PFN.A.L- 
TIES  AND  FORFEITURES:  SLAVES. 

As  to  repeal  of  statute  as  revoking  ju- 
risdiction, see  thp  titles  JURISDIC- 
TION;  STATUTES. 


110  ACTIONS. 

o-ress,  fall  with  the  repeal.^'^  "If  final  relief  has  not  been  granted  before  the  re- 
peal went  into  effect,  it  cannot  be  after.  But  when  a  right  has  arisen  upon  a 
contract,  or  a  transaction  in  the  nature  of  a  contract  authorized  by  statute,  and 
has  been  so  far  perfected  that  nothing  remains  to  be  done  by  the  party  asserting 
It,  the  repeal  of  the  statute  does  not  affect  it,  or  an  action  for  its  enforcement. 
It  has  become  a  vested  right,  which  stands  independent  of  the  statute.^^ 

E.  Form  of  Action  for  Breach. — An  action  arising  out  of  breach  of  statu- 
tory duty  must  be  presented  in  some  particular  form  of  action  and  not  as  an  ac- 
tion founded  upon  breach  of  the  statuteJ^ 

F.  Failure  to  Pursue  Statutory  Remedies.— A  failure  to  pursue  stat- 
utory remedies  is  not  always  fatal  to  the  rights  of  a  party  in  possession,  and 
sometimes  if  full  and  adequate  compensation  is  made  to  the  plaintiff  the  pos- 
session of  the  defendant  will  not  be  disturbed."^ ^ 

IV.    Merger. 

See  the  titles  Former  Adjudication  or  Res  Adjudicata  ;  Merger. 
V.    Commencement,    Prosecution   and  Termination  of  Actions. 

A.  Commencement. — 1.  Demand. — A'cccssity. — As  a  general  rule  demand  is 
one  of  the  prerequisites  to  the  institution  of  an  action." - 

What  Constitutes  Legal  Demand. — See  the  titles  Bills,  Notes  and 
Checks;  Contracts;  Demand;  Payment. 

Necessity  for  Demand  to  Be  in  Writing. — See  the  titles  Bills,  Notes 
and  Checks;  Contracts;    Demand. 

2.  What  Law  Governs. — See  the  tides  Conflict  of  Laws;  Limitation  of 
Actions  and  Adverse  Possession. 

3.  What  Constitutes. — To  commence  a  suit  is  to  demand  something  by  the 
institution  of  process  in  a  court  of  justice.''^     An  action  or  suit  is  generally  con- 

68.    Moffitt    T'.    Garr,    1    Black.    273,    283,  the    statute   but   an   action   founded   on   an 

17    L.    Ed.   207.  implied    assumpsit.      Metropolitan    R.    Co. 

69    Baltimore,   etc.,   R.   Co.  v.    Grant.  98  i'.    District   of    Columbia,    132   U.    S.    1,    33 

U.   S.   398,   25   L.   Ed.   231;   South   Carolina  L.    Ed.   231.      See    the   title   ASSUMPSIT. 

V    Gaillard,   101   U.   S.   433.   438,   25   L.   Ed.  And    see.    generally,    the    particular    ac- 

^37-  Steamship  Co.  v.  JolifTe,  2  Wall.  450,  tions     titles,     as     ASSUMPSIT;     DEBT, 

17    L     Ed     805;    Bear    Lake,    etc..    Co.    v.  THE    ACTION    OF;     TRESPASS,      etc. 

Garland.  164  U.  S.  1,  3,  12,  41  L.  Ed.  327.  See,  also,  the  title   STATUTES. 

See   the   titles    APPEAL   AND    ERROR;  71.     Failure    to    pursue   statutory   reme- 

CONSTITUTIONAL    LAW.  dies.— New   York  City  v.  Pine,   185   U.   S. 

Where    a    pilot,    licensed    under    a    stat-  93^    io3,    46    L.    Ed.    820.      S<e    the    titles 

Ute,   had   tendered   his   services   to   pilot   a  EMINENT    DOMAIN;    STATUTES, 

vessel  out  of  port,  and  such  services  were  ^^     Necessity   for   Demand.— Yeaton   v. 

refused     his    claini    to     the      half-pilotage  g^^^j^   ^f    Alexandria,    5    Cranch    49,    51,    3 

fees,  allowed  by  the  statute  in  such  cases.  ^    g^    33     ^^^^.jjj  „^    ^^.^^    ^^  ^^„    g^^ 

became    perfect;    and    the    subsequent    re-  ^^    ^    ^^    3^3     ^olby   v.    Reed,    99   U.    S. 

peal  of  the  statute  does  not  afiect  a  judg-  ^^q     ^^^     35    ^     gj     434       gee    the    titles 

ment    rendered    m    an    action    brought    to  bjlls,   NOTES   AND   CHECKS;   CON- 

Tecover   the    claim,   or   the   jurisdiction   ot  TRACTS'    PAYMENT 

this   court  to  view   the   judgment   on   writ  '                   ." 

of    error.      Steamship    Co.    z;.     Joliflfe,     2  73.     What    constitutes    commencement. 

Wall.  450,  17  L.  Ed.   805;  Bear  Lake,  etc..  —Cohens   r.   Virgmia    6   Wheat.   264,   5  L. 

Co.  V.  Garlan,  164  U.   S.  1,  3.  12,  41  L.  Ed.  Ed.    257;    Ex    parte    Milhgan.    4    Wall.    2, 

327      See  the  title    PILOTS  '^'^^-   '^^    ^-    ^d.    281. 

70.     Form    of    action.— Metropolitan    R.  AA   t°,    ^^^"   .^"    ^^^^°"    '^    commenced 

Co.  V.   District   of   Columbia,   132   U.   S.   1,  ^'thin  the  meaning  of  the  statutes  of  limi- 

■^q   T      FH    ''31     ritino-  rnrrnll  t    Green    92  tations,    see    the    title    LIMITATION    OF 

U    S:  509."  23  L.  Ed  ^-738;  Beattv  z    Burnes,  ACTIONS    AND    ADVERSE    POSSES- 

8    Cranch    98.    3    L.    Ed.    500;    McCluny   v.  SION. 

Silliman,  3  Pet.  270,  277.  7  L.  Ed.  676.  As  to  what  constitutes  the  commence- 
An  action  by  a  municipalitv  to  recover  ment  of  an  action  withm  the  eleventh 
compensation  from  a  street  railroad  com-  amendment,  see  the  title  STAI  E. 
pany  for  failure  to  repair  pavements  in  "Brought"  and  "commenced"  com- 
the  "street  which  duty  it  has  assumed  in  pared. — The  words  "brought"'  and  "corn- 
its  charter,  is  not  an  action  founded  upon  menced"  are  synonymous.     Goldenbery  v. 


ACTIONS. 


Ill 


sidered  to  be  commenced  when  tlie  bill  or  complaint  is  filedJ* 

4.  Necessity  for  Process  and  Appearance.— In  order  to  institute  an  action, 
it  is  necessary  that  there  should  have  been  process  issued  and  appearance 
theretoJ^ 

5.  Necessity  for  Appearance  and  Return  to  SuxMmons. — It  seems  that  it 
is  not  necessary  that  a  return  must  be"  made  and  the  parties  appear  and  begin  to 
try  the  case  before  it  is  a  suit."*' 

6.  Premature  Suits. — See  the  title  Premature  Suits. 

7.  Evidence  of  Commencement. — See  the  titles  Documentary  Evidence; 
Depositions. 

B.  Prosecution. — Definition. — Since  to  commence  a  suit  is  to  demand  some- 
thing by  the  institution  of  process  in  a  court  of  justice,  to  prosecute  a  suit  is  to 
continue   that   demand.'" 

Pending  of  Suit. — A  suit  is  pending  from  the  time  of  commencement."^ 

C.  Termination. — The  suit  does  not  terminate  with  the  judgment;  proceed- 
ings in  the  execution  are  proceedings  in  the  suit."^ 

VI.    Joinder  or  Splitting  Causes  of  Action. 

A.  Joinder  of  Causes  of  Action — Contract  and  Tort. — As  a  general  rule, 
"A  declaration  is  bad  which  unites  a  count  in  tort  with  one  in  contract."^ 


Murphy,    108    U.    S.    162,    163,    27    L.    Ed. 
687. 

As  to  accrual  of  right  of  actions  in 
specific  instances,  see  the  particular  titles. 

74.  What  constitutes  commencement. 
■ — Ex  parte  Connawaj',  ITS  U.  S.  421,  430, 
44  L.  Ed.  1134;  Farmers'  Loan.  etc..  Co. 
V.  Lake  St.  Rd.  Co.,  177  U.  S.  51,  60.  44  L. 
Ed.  667;  Ely  v.  New  Mexico,  etc.,  R.  Co., 
129  U.  S.  291,  292.  293.  32  L.  Ed.  688. 
Richmond  Mining  Co.  v.  Rose,  114  U.  S. 
576,   583,    29   L.   Ed.   276. 

As  to  a  bill  of  revivor  as  the  com- 
mencement of  a  suit,  see  the  title 
ABATExMENT,  REVIVAL  AND  SUR- 
VIVAL, ante,  p.  12. 

As  to  whether  a  person  demanding  his 
release  by  a  writ  of  habeas  corpus  has 
commenced  a  suit,  see  the  titles  APPEAL 
AND    ERROR;    HABEAS    CORPUS. 

75.  Necessity  for  process  and  appear- 
ance.—Smith  c'.  Woolfolk.  115  U.  S.  143. 
29    L.    Ed.    357. 

After  a  decree  disposing  of  the  parties 
and  subject  matter  of  a  suit,  it  is  not  per- 
missible to  institute  new  litigations  on 
new  and  distinct  issues  not  raised  by  the 
original  pleadings,  and  between  parties 
who  were  complainants  in  the  original 
cause,  although  connected  with  the  sub- 
ject matter  of  the  original  litigation, 
simply  by  terming  the  new  litigation  by 
the  title  of  the  original  cause,  without 
new  process  and  appearance.  Smith  v. 
Woolfolk,  115  U.  S.  143.  29  L.  Ed.  357. 
See  the  titles  APPEARANCES;  SUM- 
MONS  AND   PROCESS. 

76.  Necessity  for  appearance  and  re- 
turn to  summons. — Ex  parte  Milligan,  4 
Wall.  2.  113,  IS  L.  Ed.  281.  See  the  titles 
.\PPE\RANCES;  SUMMONS  AND 
PROCESS. 

77.  Definition. — Cohens  f.  Virginia.  6 
Wheat.  2G4,  5  L.  Ed.  257;   Ex  parte  Milli- 


gan. 4  Wall.  2,   113,  18   L.   Ed.  281. 

78.  Pendency. — Ex  parte  Connaway, 
178  U.  S.  421,  427,  44  L.  Ed.  1134.  See 
the  titles  ABATEMENT.  REVIVAL 
AND  SURVIVAL,  ante.  p.  12;  EXECU- 
TORS AND  ADMINISTRATORS; 
SCIRE  FACIAS. 

79.  Termination. — Union  Bank  of 
Georgetown  v.  Geary,  5  Pet.  99,  8  L.  Ed. 
60;  Wayman  v.  Southard,  10  Wheat.  1,  6 
L.  Ed.  253;  Bank  of  U.  S.  v.  Halstead,  10 
Wheat.  51,  6  L.  Ed.  264;  Beers  v.  Haugh- 
ton,  9  Pet.  329,   359,  9  L.   Ed.  145. 

As  to  the  death  of  a  party  as  terminat- 
ing a  cause  of  action,  see  the  title 
ABATEMENT.  REVIVAL  AND  SUR- 
VIVAL, ante.  p.  12. 

80.  Contract  and  tort.— Garland  v 
Davis.  4  How.  131,  144,  11  L.  Ed.  907  See 
the   titles    CONTRACTS;   TORTS. 

When  a  declaration  sounds  in  tort  and 
the  plea  is  "nonassumpsit,"  such  a  plea 
would  be  bad,  on  demurrer.  If  not  de- 
murred to,  and  the  case  goes  to  trial 
(the  issue  and  verdict  following  the  plea), 
the  defect  is  so  material  that  it  is  not 
cured  by  verdict,  under  the  statute  of 
jeofails.  Garland  v.  Davis,  4  How  131 
11    L.    Ed.    907. 

A  count  in  assumpsit  for  money  had  and 
received  may,  by  consent  consistently 
with  the  rules  of  pleading,  be  joined  with 
a  count  for  deceit  for  falsely  represent- 
ing that  one  was  a  creditor  of  the  govern 
ment  thereby  obtaining  a  stock  certificate 
in  the  public  funds.  Fenemore  v.  United 
States,   3   Dall.  357,  1  L.  Ed.  634. 

A  cause  of  action  in  tort  for  the  breach 
of  an  express  warranty  is  not  obliterated, 
or  removed  from  the  case,  because  it  may 
have  been  joined  with  a  cause  of  action 
for  deceit.  Shippen  v.  Bowen.  122  U.  S. 
576,    582,     30    L.     Ed.     1172;    Dushane    v. 


112 


ACTIONS. 


Joinder  of  Several  Claims  in  Contract. — Several  claims  on  several  con- 
tracts cannot  be  joined. ^^ 

Contract  for  Payment  of  Distinct  Sums. — "A  contract  for  the  payment  of 
distinct  sums  of  money,  at  different  periods,  is  very  much  in  the  nature  of  dis- 
tinct contracts.  An  action  of  debt  lies  for  each  sum,  as  it  becomes  due,  and 
when  that  sum  is  paid,  the  debtor  or  contractor  is  forever  discharged  from  the 
contract  to  pay  it."^^ 

Assumpsit  and  Covenant. — It  is  opposed  to  the  common-law  system  of 
pleading  which  prevails  in  some  jurisdictions  to  join  the  actions  of  covenant  and 
assumpsit.  If  this  is  done  in  the  declaration,  the  defendant  can  successfully  de- 
mur.^^ 

Actions  Resting  on  Same  Issues  and  Evidence. — Actions  resting  on  the 
same  evidence,  and  issues,  and  supported  by  the  same  testimony,  may  be  joined 
by  consent. '^^ 

Libel  in  Rem  and  in  Personam. — See  the  title  Admiralty. 

Legal  and  Equitable  Claims. — In  the  courts  of  the  United  States  it  is  not 
permissible  to  blend  into  one  action  an  action  at  law  and  a  suit  in  equity. ^^  The 
adoption  by  the  federal  courts  of  the  proceedings  and  practice  in  the  state  courts 
will  not  authorize  legal  and  equitable  claims  to  be  blended  together  in  one  suit.*^ 

B.  Splitting  Causes  of  Actions. — General  Rule. — "It  is  not  in  the  power 
of  a  party,  merely  by  his  own  acts,  to  split  up  a  contract  into  fragments,  and 
to  make  the  promisor  liable  to  every  holder  of  a  fragment  for  his  share. "^'^ 


Benedict,  120  U.  S.  630,  636,  30  L-  Ed.  810; 
See,  also.  Schuchardt  v.  Aliens,  1  Wall. 
359,   368,    17    L.    Ed.   642. 

81.  Several  claims  in  contract. — The 
plaintiffs  united  severally  in  a  suit,  claim- 
ing the  return  of  money  paid  by  them  on 
distinct  promissory  notes  given  to  the 
defendants.  They  are  several  contracts, 
having  no  connection  with  each  other. 
These  parties  cannot  join  their  claims  in 
the  same  bill.  Yeaton  v.  Lenox,  8  Pet. 
123.  8  L.  Ed.  889.  See  the  title  CON- 
TRACTS. 

Several  creditors  may  not  unite  in  a 
suit  to  attach  the  effects  of  an  absent 
debtor.  They  may  file  their  separate 
claims,  and  be  allowed  payment  out  of  the 
same  fund,  but  they  cannot  unite  in  the 
same  original  bill.  Yeaton  v.  Lenox.  8 
Pet.  123,  8  L.   Ed.  889. 

Where  the  note  is  a  commercial  part- 
nership contract,  what  the  law  of  Lou- 
isiana denominates  a  contract  in  solido; 
by  which  each  party  is  bound  severally 
as  well  as  jointly,  they  may  be  sued  sev- 
erallv  as  well  as  jointly.  Breedlove  v. 
Nico'let.    7    Pet.    413,   8    L.    Ed.    731. 

82.  Contract  for  payment  of  distinct 
sums. — Faw  v.  Marsteller.  2  Cranch  10, 
23,  2  L.  Ed.  191. 

83.  Assumpsit  and  covenant. — Phillips, 
etc..  Construction  Co.  v.  Seymour,  91  U. 
S.   646,    654.   23    L.    Ed.    341. 

84.  Actions  resting  on  same  issues  and 
evidence. — Insurance  Co.  v.  Boykin,  12 
Wall.  433.  436,  20   L.  Ed.  442. 

A  policy  for  $10,000  was  signed  by  four 
companies,  each  of  whom  agreed  to  be- 
come liable  for  one-fourth  of  the  loss  to 
that  extent.  Held,  that  one  action  could  be 
brought  against  them  all  bj^  their  con- 
sent,   the    declaration    charging    the    sepa- 


rate promises  and  praying  for  separate 
judgment.  Insurance  Co.  v.  Boykin.  12 
Wall.  433,  20  L.   Ed.  442. 

85.  Legal  and  equitable  claims. — Ben- 
net  V.  Butterworth.  11  How.  669,  674,  13 
L.  Ed.  859;  Hurt  v.  Hollingsworth,  100 
U.  S.  100,  25  L.  Ed.  569;  Buzard  z:  Hous- 
ton, 119  U.  S.  347,  351,  30  L.  Ed.  451; 
Cherokee  Nation  zk  Southern  Kansas  R. 
Co.,  135  U.  S.  641,  651.  34  L.  Ed.  295; 
Thompson  zk  Central  Ohio  R.  Co..  6  Wall. 
134,  18  L.  Ed.  765;  Jones  v.  McMasters, 
20  How.  210,  15  L.  Ed.  805;  Broderick's 
Will  Case,  21  Wall.  503,  520,  22  L.  Ed. 
599;  Lindsay  v.  Shreveport  Bank,  156  U. 
S.   485,    493.   39    L.    Ed.    505. 

In  the  courts  of  the  LTnited  States,  the 
union  of  equitable  and  legal  causes  of  ac- 
tion in  one  suit  is  forbidden  by  the  second 
section  of  the  process  act  of  May  8.  1792 
(1  Stat.  276),  which  is  substantially'  re- 
enacted  in  §  913,  Rev.  Stat.  Hurt  z\  Hol- 
lingsworth, 100  U.  S.  100,  25  L.  Ed.  569. 
See  the  title  EQUITY. 

86.  Thompson  v.  Central  Ohio  R.  Co.,  6 
Wall.  134.  18  L.  Ed.  765;  Van  Norden  v. 
Morton.  99  U.  S.  378,  380.  25  L.  Ed.  454; 
Bennett  v.  Butterworth,  11  How.  669,  13 
L.  Ed.  859;  Jon  s  v.  McMasters.  20  How. 
210,  15  L.  Ed.  805;  Lindsy  v.  Shreve- 
port Bank.  156  U.  S.  485,  493,  39  L.  Ed. 
505;  Broderick's  Will  Case.  21  Wall.  503, 
520,  22  L.  Ed.  599.  See  the  titles 
COURTS:  EQUITY. 

87.  Right  to  split  causes  of  action. — 
Shankland  z:  Washington,  5  Pet.  390,  394, 
8  L.  Ed.  166;  Mandeville  z-.  Welch.  5 
Wheat.  277,  288,  5  L.  Ed.  87;  United 
States  V.  California,  etc.,  Land  Co.,  192  U. 
S.  355.  358,  48  L.  Ed.  476.  Stark  z'.  Starr, 
94  U.  S.  477,  485,  24  L.  Ed.  276;  The 
Haytian    Republic,    154   U.    S.    118,    125,   38 


ACTIONS. 


113 


Distinct  Causes  of  Action. — This  principle  does  not  require  distinct  causes 
of  action,  that  is  to  say,  distinct  matters,  each  of  which  would  authorize  by  itself 
independent  relief,  to  be  presented  in  a  single  suit,  though  they  existed  at  the 
same  time  and  might  be  considered  together. ^^ 

Splitting  Cause  of  Action  to  Give  Court  Jurisdiction.— See  the  titles  Ap- 
peal AND  Error;  Jurisdiction. 

Test  of  Right. — One  of  the  tests  laid  down  for  the  purpose  of  determining 
whether  or  not  the  causes  of  action  should  have  been  joined  in  one  suit  is  whether 
the  evidence  necessary  to  prove  one  cause  of  action  would  establish  the  other.^^ 


L.  Ed.  930;  Second  National  Bank  v. 
Grand  Lodge,  98  U.  S.  123,  124.  25  L.  Ed. 
75;  United  States  v.  Throckmorton.  98 
U.  S.  61,  65.  25  L.  Ed.  93;  Kendall  z: 
Stokes,  3  How.  87.  11  L.  Ed.  506;  The 
Water  Witch.  1  Black.  494,  17  L.  Ed.  155. 
See.  also.  Bienville  Water  Siipply  Co.  v. 
Mobile,  186  U.  S.  212,  46  L.  Ed.  1132;  Vi- 
nal  V.  West  Virginia  Oil,  etc.,  Co.,  110 
U.    S.   215,    28    L.    Ed.    124. 

"A  creditor  shall  not  be  permitted  to 
split  up  a  single  cause  of  action  into 
many  actions,  without  the  assent  of  his 
debtor,  since  it  may  subject  him  to  many 
embarrassments  and  responsibilities,  not 
contemplated  in  his  original  contract.  He 
has  a  right  to  stand  upon  the  singleness 
of  his  original  contract,  and  to  decline  any 
legal  or  equitable  assignments,  by  which 
it  may  be  broken  into  fragments."  Man- 
deville  v.  Welch.  5  Wheat.  277,  288.  5  L. 
Ed.   87. 

"It  is  undoubtedly  a  settled  question 
that  a  party  seeking  to  enforce  a  claim 
legal  or  equitable  must  present  to  the 
court,  either  by  the  pleadings  or  proofs, 
all  the  grounds  upon  which  he  expects  a 
judgment  in  his  favor.  He  is  not  at  lib- 
erty to  split  up  his  demand  and  prosecute 
it  by  piecemeal,  or  present  only  a  portion 
of  the  grounds  upon  which  special  relief 
is  souglit.  and  leave  the  rest  to  be  pre- 
sented in  a  second  suit,  if  the  first  fail. 
There  would  be  no  end  to  litigation  if 
such  a  practice  were  permissible."  The 
Havtian  Republic.  154  U.  S.  118,  125.  38 
L.  Ed.  930;  Stark  v.  Starr.  94  U.  S.  477, 
485.    24    L.    Ed.    276. 

88.  Distinct  causes  of  action. — The  Hay- 
tian  Republic,  154  U.  S.  118.  125,  38  L.  Ed. 
930;  Stark  v.  Starr,  94  U.  S.  477,  24  L. 
Ed.  276;  Perkms  v.  Hart,  11  Wheat.  237, 
251,  6  L.  Ed.  463;  Graves  v.  Corbin, 
132  U.   S.   571,   586,    587,   33   L.   Ed.  462. 

"Where  the  agreement  embraces  a  num- 
ber of  distinct  subjects,  which  admit  of 
being  separately  executed  and  closed,  it 
must  be  taken  distributively,  each  sub- 
ject being  considered  as  forming  the  mat- 
ter of  a  separate  agreement,  after  it  is 
so  closed.  If,  for  instance,  the  agreement 
between  a  merchant  and  his  factor  be, 
that  the  latter  shall  sell  and  remit  the 
proceeds  of  all  cargoes  which  the  former 
shall  consign  to  him,  upon  a  stipulated 
commission,  it  can  hardly  be  contended, 
that  the  factor  cannot  recover  his  com- 
missions in  this  form  of  action,  upon  the 
1  U  S  Enc-8 


proceeds  of  a  single  cargo,  which  have 
been  remitted,  while  there  remain  other 
cargoes  yet  undisposed  of."  Perkins  v. 
Hart,   11  Wheat.  237.  251,   6   L.   Ed.   463. 

Claims  for  price  of  land  and  for  rents 
and  revenue. — "There  does  not  seem  to  be 
any  good  reason  for  saying  that  a  claim 
for  the  price  of  land  and  a  claim  for 
rents  and  revenues  against  warrantor  may 
not  be  separated  by  the  act  of  the  par- 
ties." New  Orleans  v.  Whitney.  138  U. 
S.   595,   613,  34   L.   Ed.   1102. 

"The  point  of  the  assignment  of  error 
is  that  the  prosecution  of  these  suits 
upon  the  respective  warranties  therein 
propounded  and  the  recovery  of  a  part 
of  the  demands  under  the  said  warranties, 
namely,  the  prices  of  the  lands,  operated 
as  a  waiver  and  discharge  of  the  other 
liabilities  arising  upon  the  same  warran- 
ties, viz,  the  liabilities  to  restore  the  rents, 
revenues,  etc.,  that  the  contract  of  war- 
ranty is  one  and  undividable;  that  al- 
though upon  the  breach  of  it  a  recovery 
may  be  had  against  the  warrantor  for 
the  restitution  of  the  price,  for  the  fruits 
or  revenues,  for  costs  and  other  damages, 
j-et  only  one  suit  can  be  maintained  upon 
the  contract,  and  not  different  suits  for 
the  different  matters  recoverable;  and  that 
the  splitting  of  actions  upon  single  de- 
mands is  not  allowed  by  the  Code  of 
Practice  of  Louisiana,  the  156th  article  of 
which  declares.  'If  one  demand  'less  than 
is  due  him,  and  do  not  amend  his  peti- 
tion, in  order  to  augment  his  demand, 
he  shall  lose  the  overplus.'  "  New  Orleans 
V.  Whitney,  138  U.  S.  595.  613,  34  L.  Ed. 
1102. 

Actions  on  matured  coupons  upon  ne- 
gotiable bonds. — Each  matured  coupon 
upon  a  negotiable  bond  is  a  separable 
promise,  distinct  from  the  promises  to 
pay  the  bond  or  other  coupons,  and  gives 
rise  to  a  separate  cause  of  action.  Indeed, 
the  title  to  several  matured  coupons  of 
the  same  bond  may  be  in  as  many  differ- 
ent persons,  and  upon  each  a  distinct  and 
separate  action  be  maintained.  Nesbit  v. 
Riverside  Independent  District,  144  U.  S. 
610,  36  L.  Ed.  562;  Edwards  V.  Bates 
County.  163  U.  S.  p.  269.  270.  41  L.  Ed. 
155.  See  the  title  MUNICIP.\L, 
COUNTY.  STATE  AND  FEDERAL 
SECURITIES. 

89.  Test  of  right.— The  Haytian  Re- 
public,  154   U.    S.    118,    125,    38    L.    Ed.    930. 


114 


ACTIONS. 


Separate  Actions  on  Joint  Covenants. — See  the  title  Covenants. 
Separate  Actions  by  Joint  Payees  or  Obligees. — See  the  title  Bonds. 
Separate  Action  by  Assignee  or  Consignee  of  Part  of  Claim. — See  the 

title  Assignments. 

Effect  of  Recoveiyr  of  Part  of  Demand. — See  the  title  Former  Adjudica- 
tion OR  Res  Adjudicata. 

Objections. — Objections  to  the  splitting  of  causes  of  action  should  be  taken 
c-arly  in  tlie  proceedings. ^<^ 

VII.     Equitable   Defenses, 

Common-Law  Rule. — It  is  a  well-settled  rule  that  independent  of  statute  an 
equitable  defense  cannot  be  made  in  a  court  of  law.^^ 

Under  the  Statutes. — Under  the  statutes  in  some  instances  equitable  defenses 
are  now  permitted  to  be  set  up  in  the  various  actions,  for  a  treatment  in  relation 
to  which,  see  the  specific  titles  treating  the  subject  in  which  the  defense  would  be 
set  up. 


90.  Objections. — New   Orleans  v.  Whit- 
ney,   138   U.   S.  595,  614,  34   L.   Ed.   1102. 

91.  Equitable  Defenses. — Robinson  v. 
Cambell,  3  Wheat.  212,  4  L.  Ed.  372; 
Bank  of  Hamilton  v.  Dudley,  2  Pet.  492, 
7  L.  Ed.  496;  Bagnell  v.  Broderick,  13 
Pet.  436,  10  L.  Ed.  235;  Watkins  v.  Hol- 
man,  16  Pet.  25,  10  L.  Ed.  873;  Hickey 
V.  Stewart,  3  How.  750.  11  L.  Ed.  814; 
United  States  v.  King,  3  How.  773,  11  L- 
Ed.  824;  Bennett  v.  Butterworth,  11  How. 
669.  13  L.  Ed.  859;  Hendrickson  T'.  Hinck- 
ley, 17  How.  443.  444,  15  L.  Ed.  123; 
Jones  V.  McMasters,  20  How.  210,  15  L. 
Ed.  805;  Fenn  v.  Holme,  21  How.  481, 
16  L.*  Ed.  198;  Hooper  v.  Scheimer,  23 
How.  235,  16  L.  Ed.  452;  Greer  z'.  Mezes, 
24  How.  268,  16  L.  Ed.  661;  Smith  v. 
McCann,  24  How.  398.  16  L.  Ed.  714; 
Sheirburn  7).  Cordova.  24  How.  423,  16 
L.  Ed.  741;  Singleton  v.  Tonchard,  1 
Black.  342,  17  L.  Ed.  50;  Thompson 
V.  Central  Ohio  R.  Co.,  6  Wall. 
134,  18  L.  Ed.  765;  Payne  r.  Hook. 
7  Wall.  425,  19  L.  Ed.  260;  Gib- 
son V.  Chouteau,  13  Wall.  92,  20  L.  Ed. 
534;  Carpenter  v.  Montgomery,  13  Wall. 
480,  20  L.  Ed.  698;  Foster  v.  Mora,  98 
U.  S.  425,  25  L.  Ed.  191;  Hurt  v.  Hol- 
lings worth.  100  U.  S.  100,  25  L.  Ed.  569; 
Embry  7-.  Palmer,  107  U.  S.  3,  27  L.  Ed. 
346;  Holland  v.  Challen,  110  U.  S.  15,  28 
L.  Ed.  52;  Burnes  v.  Scott,  117  U.  S.  582. 
29  L.  Ed.  991;  Nothern  Pacific  R.  Co.  v. 
Paine.  119  U.  S.  561.  .30  L.  Ed.  513;  Rid- 
ings r.  Johnson.  128  U.  S.  212,  217,  32  L. 
Ed.  401;  Johnson  v.  Christian,  128  U.  S. 
374,  382,  32  L.  Ed.  412;  Willard  v. 
Wood.  135  U.  S.  309.  314,  34 
L.  Ed.  210;  Scott  V.  Neely,  140  U.  S.  106, 
109.  110,  35  L.  Ed.  358;  Scott  v.  Arm- 
strong. 146  U.  S.  499,  512,  36  L.  Ed.  1059; 
Lantry  v.  Wallace.  182  U.  S.  536,  549,  45 
L.  Ed.  1218;  Montejo  v.  Owen,  14  Blatch- 
ford,  324;  La  Mothe  Manufacturing  Co. 
7'.  Nat.  Tube  Works  Co.,  15  Blatchford, 
432. 

"In  the   courts  of  the  United   States,  to 
legal    actions    legal   d-efenses   only    can    be 


interposed.  If  the  defendant  have  equi- 
table grounds  for  relief  against  the  plain- 
tifif,  he  must  seek  to  enforce  them  by  a 
separate  suit  in  equity.  If  his  equitable 
grounds  are  deemed  sufficient,  he  may 
thus  stay  the  further  prosecution  of  the 
action  at  law,  or  be  furnished  with  mat- 
ter which  may  be  set  up  as  a  legal  defense 
to  it.  Upon  the  removal,  therefore,  of  the 
action  to  the  circuit  court,  the  equitable 
defense  could  not  be  considered."  North- 
ern Pacific  R.  Co.  V.  Paine,  119  U.  S.  561, 
563.    30    L.    Ed.    513. 

"As  a  general  rule  want  of  considera- 
tion is  a  defense  to  a  promissory  note, 
but  it  is  not  always  a  defense  which  can 
be  made  at  law.  It  frequently  requires 
the  aid  of  a  court  of  equity  to  give  it 
cflfect.  The  plea,  to  support  which  the 
defendant  contends  the  evidence  of  want 
of  consideration  was  admissible,  clearly 
sets  up  an  equitable  defense.  It  alleges 
that  the  note  sued  on  is  based  on  the 
'transactions  relating  to  the  business  of 
said  partners.'  Referring,  therefore,  to 
the  preceding  plea,  which  states  the  busi- 
ness of  the  partners,  as  we  are  author- 
ized to  do,  we  learn  that  the  partner- 
ship business  had  not  at  the  time  of  filing 
the  pleas  been  settled,  or  the  interest  of 
Winston  therein  or  in  the  bonds  been 
ascertained.  The  plea  under  consideration 
further  avers  that  the  members  of  the 
partnership  were  interested  in  the  said 
business  and  were  necessary  parties  to  a 
suit  relating  to  the  note,  and  that  the 
amount  due  thereon,  if  anything,  could 
not  be  ascertained  until  the  final  settle- 
ment of  the  partnership.  It  is  plain, 
therefore,  that  the^  defense  set  up  by  the 
plea  is  not  the  legal  defense  of  want  of 
consideration,  for  the  plea  admits,  by 
implication,  that  there  may  be  something 
due  on  the  note,  but  the  equitable  de- 
fense that  the  amount  due  on  the  note,  if 
anything,  is  dependent  on  the  amount 
coming  to  Winston  from  the  as- 
sets of  the  partnership,  which  can- 
not     be    ascertained      without      a      settle- 


ACTUAL. 


115 


ACT  OF  GOD.— See  the  titles  Carriers;  Marine  Insurance);  Ships  and 
Shipping.  And  see  Act  oe  Law  ;  Inevitable  Accident.  The  act  of  God 
means  inevitable  accident  without  the  intervention  of  man  and  pubhc  enemies. 
It  is  hmited  to  cases  in  which  no  man  has  any  agency  whatever  ^ 

ACT  OF  LAW.— See  note  2. 

ACTS  OF  BANKRUPTCY.— See  the  title  Bankruptcy 

ACTS  OF  CONGRESS.— See  the  title  Statutes. 

ACTUAL. — The  word   "actual,"   in  the  lexicon,  has  as  a  meaning  "real"  as 

posed  to  "nominal,"  as  well  as  the  meaning  of  "present."^ 


oppos 

ment  of  the  partnership  affairs  in  a  suit 
to  wliich  all  the  partners  are  necessary 
parties.  And  yet  having  so  pleaded,  the 
defendant  insists,  in  argument,  that  in  a 
trial  upon  the  promissory  note  in  a  court 
of  law,  and  without  the  presence  of  two 
of  the  four  partners,  evidence  is  admissi- 
ble to  settle  the  partnership,  and  to  prove, 
without  making  Winston  a  party  to  the 
suit,  that  there  is  nothing  due  him  out  of 
the  partnership  assets.  The  pleading  and 
the  contention  of  the  defendant  appear, 
therefore,  to  be  contradictory  and  incon- 
sistent." Burnes  v.  Scott,  117  U.  S.  582, 
586.    29    L.     Ed.    991. 

1.  Act  of  God.— The  Majestic,  166  U.  S. 
375,  41  L.  Ed.  1039.  See,  also.  Hodgson 
t'.   Dexter,   1    Cranch   345,  2  L.   Ed.   130. 

In  Memphis,  etc.,  R.  Co.  v.  Reeves.  10 
Wall.  176,  189,  19  L-  Ed.  909,  it  is  said: 
"One  of  the  instances  always  mentioned 
by  the  elementary  writers  of  loss  by  the 
act  of  God  is  the  case  of  loss  by  flood  and 
storm."' 

In  Gleeson  v.  Virginia  Midland  R.  Co.. 
140  U.  S.  435,  439,  35  L.  Ed.  458,  it  is 
said:  "Extraordinary  floods,  storms  of 
unusual  violence,  sudden  tempests,  severe 
frosts,  great  droughts,  lightnings,  earth- 
quakes, sudden  deaths  and  illnesses,  have 
been  heid  to  be  'acts  of  God';  but  we  know 
of  no  instance  in  which  a  rain  of  not  un- 
usual violence,  and  the  probable  resuks 
thereof  in  softening  the  superficial  earth, 
have   been   so   considered." 

2.  Act  of  law. — In  Tavlor  v.  Taintor,  16 
Wall.  366,  369.  21  L.  Ed.  287.  it  is  said: 
"It  is  the  settled  law  of  this  class  of  cases 
that  the  bail  will  be  exonerated  where 
the  performance  of  the  condition  is  ren- 
dered impossible  by  the  act  of  God,  the 
act  of  the  obligee,  or  the  act  of  the  law? 
Where  the  principal  dies  before  the  day 
of  performance,  the  case  is  within  the 
first  '-ategory.  Where  the  court  before 
which  the  principal  is  bound  to  appear 
is  abolished  without  qualification,  the  case 
is  within  the  second.  If  the  principal  is 
arrested  in  the  state  where  the  obligation 
is  given,  and  sent  out  of  the  state  by  the 
governor,  upon  the  requisition  of  the  gov- 
ernor of  another  state,  it  is  within  the 
third."  See.  also,  the  title  BAIL  AND 
RECOGNIZANCE. 

3.  Astor  V.  Merritt,  111  U.  S.  202.  213, 
■28   L.    Ed.   401. 

Actual  service. — See  the  title  SUM- 
MONS AND   PROCESS.     In   Houston  v. 


present. 

Moore,  5  VVheat.  1,  61,  5  L.  Ed.  19,  John- 
son, J.,  said:  "Upon  the  most  mature 
reflection,  it  is  my  opinion,  that  there  is 
a  sound  distinction  between  the  'calling 
forth'  of  the  militia,  and  their  being  in  the 
actual  service  or  'employment'  of  the 
United  States  contemplated  both  in  the 
constitution  and  acts  of  congress."  See 
also,  the  titles  ARMY  AND  NAVY- 
MILITIA. 

Actual  settler.— In  Hickie  v.  Starke,  1 
Pet.  94.  97,  7  L.  Ed.  67,  it  is  said:  "In 
Henderson  z'.  Poindexter.  12  Wheat.  530, 
6  L.  Ed.  718.  the  term  actual  settler,  seems 
to  have  been  understood  as  synonymous 
with  the  resident  of  the  country.  That 
case,  however,  did  not  require  that  the 
precise  meaning  of  the  term  should  be 
fixed,  and  the  court  is  disposed  to  think, 
that  a  settlement  made  on  the  land  by 
another  person,  who  cultivated  it  for  the 
proprietor,  would  be  sufficient;  though 
the  proprietor  should  not  reside  in  person 
on  the  estate,  or  within  the  territory."  See 
generally,  the  title  PUBLIC  LANDS. 

Actual  time  of  service. — In  United 
States  V.  Morton,  112  U.  S.  1,  4,  28  L.  Ed. 
613,  it  is  held  that  time  of  service  as  a 
cadet  in  the  Military  Academy  at  West 
Point,  was  to  be  regarded  as  actual  time 
of  service  in  the  army.  To  the  same  effect, 
see  United  States  v.  Watson.  130  U.  S.  80, 
32  L.  Ed.  852.  See,  generally,  the  title 
ARMY  AND  NAVY. 

Actual  use.— In  Astor  v.  Merritt,  111  U 
S.  202,  213.  28  L.  Ed.  401,  it  is  said:  "It 
IS  manifest,  that,  by  the  words,  in  actual 
use.  Congress  did  not  intend  that  those 
words  should  be  limited  to  wearing  ap- 
parel on  the  person  at  the  time.  They 
must  have  a  more  extended  meaning.  The 
test  of  having  worn  the  article,  as  a  cri- 
terion whether  it  is  'in  actual  use,'  is  ar- 
bitrary, and  without  support  in  the  stat- 
ute. An  article  of  wearing  apparel,  bought 
for  use,  and  appropriated  and  set  apart 
to  be  used,  by  being  placed  in  with,  and 
as  a  part  of,  what  is  called  a  person's  ward- 
robe, is.  in  common  parlance,  in  use,  in 
actual  use,  in  present  use,  in  real  use.  as 
well  before  it  is  worn  as  while  it  is  be- 
ing worn  or  afterwards."  See,  also, 
Schlesinger  7'.  Beard,  120  U.  S.  264.  267^ 
30  L.  Ed.  656.  And  see  the  title  REVE- 
NUE   LAWS. 

Actual  value.— See  VALUE.  And  see 
the  title   REVENUE  LAWS. 

In  Cummings  v.   National   Bank,   101   U. 


116 


ADJACENT. 


ACTUAL  CONTROVERSY. — As  to  when  moot  cases  are  ground  for  dis- 
missal or  affirmance,  see  the  title  Appeal  and  Error. 

ACTUARIES. — See  the  tille  Banks  and  Banking. 

ACUERDO.— See  note  1. 

ADDICTED.— See  note  2. 

ADDITIONAL   ALLOWANCE   OF   COSTS.— See   tiie  title  Costs. 

ADDITIONAL  SECURITY  ON  APPEAL.— See  the  title  Appeal  and 
Error. 

ADDITIONAL  SERVITUDE.— See  the  title  Eminent  Domain. 

ADDRESS. — As  to  address  of  bills  in  equity,  see  the  title  Equity.  As  to 
presumption  that  letters  properly  mailed  and  addressed  were  received,  see  the 
title  PrEsltmptions  and  Burden  of  Proof. 

ADEMPTION. — Ademption  may  be  said  to  be  the  extinction  or  withdrawal 
of  a  legacy  in  consequence  of  some  act  of  the  testator  equivalent  to  its  revoca- 
tion or  clearly  indicative  of  an  intention  to  revoke.-^ 

ADEQUATE  REMEDY  AT  LAW.— See  the  titles  Appeal  and  Error; 
Equity;  Injunctions;  Judgments  and  Decrees;  Mandamus;  Specific 
Performance. 

ADJACENT.— See  note  4. 


S.  153.  162,  25  L.  Ed.  903,  it  is  said: 
"The  phrases  'salable  value.'  actual  value, 
'cash  value,'  and  others  used  in  the  direc- 
tions to  assessing  officers,  all  mean  the 
same  thing,  and  are  designed  to  effect  the 
same    purpose." 

Actually  in  session. — In  United  States 
V.  Pitman,  147  U.  S.  669.  671.  37  L.  Ed. 
324,  it  is  said:  "We  think  the  court  should 
be  deemed  actually  in  session  within  the 
meaning  of  the  law,  not  only  when  the 
judge  is  present  in  person,  but  when,  in 
obedience  to  an  order  of  the  judge  di- 
recting its  adjournment  to  a  certain  day, 
the  officers  are  present  upon  that  day,  and 
the  journal  is  opened  by  the  clerk,  and 
the  court  is  adjourned  to  another  day  by 
further  direction  of  the  judge."  See,  gen- 
erally,  the    title   COURTS. 

1.  Acuerdo. — In  United  States  v.  Castil- 
:ero.  2  Black  1.  322,  17  L.  Ed.  360,  it  is 
,-aid:  "An  acuerdo,  or  order  on  the  mar- 
;  in  of  a  letter,  petition,  or  communica- 
t'on  of  any  kind,  is  merely  an  expression  of 
t'^e  determination  of  the  minister  or  other 
f'nctionary  to  whom  it  is  addressed,  in 
r-^gard  to  its  subject  matter.  Its  chief  use 
was  to  direct  the  clerks  or  other 
.'■ubordinates  in  the  preparation  of  the 
reply  or  in  taking  other  action  with  re- 
gard to  it.  If  the  proceedings  has  been 
interrupted  after  the  acuerdo  is  affixed, 
hvX  before  the  dispatch  is  written  or  title 
i?,sued  as  directed,  it  may  be  regarded,  not 
rnreasonably,  as  a  species  of  equitable 
tirie.  or  as  sufficient,  coupled  with  other 
efii'itable  circumstances,  to  justify  the 
parij^  in  asking  the  completion  of  the 
proceeding  so  initiated."  See,  generally, 
the   title   PUBLIC   LANDS. 

2.  Addicted. — An  applicant  for  life  in- 
siurnce  was  asked  if  he  had  been  addicted 
to  the  excessive  or  intemperate  use  of 
alcoholic  stimulants,  or  opium.  Upon 
\h^  meaning  of  this  question,  the  court 
said  in  .^tna  Life   Ins.  Co.  v.   Davey,  123 


U.  S.  739,  742.  31  L.  Ed.  315:  "The  in- 
quiry as  to  whether  the  insured  had  ever 
been  addicted  to  the  excessive  or  intem- 
perate use  of  alcoholic  stimulants,  and, 
whether,  at  the  time  of  the  application,  ht 
used  alcoholic  stimulants  'often  or  daily' 
was.  in  effect,  an  inquiry  as  to  his  habit 
in  that  regard;  not  whether  he  used  such 
stimulants  or  opium  at  all,  but  whether 
he  used  any  of  them  habitually.  If  he,  was 
addicted  to  the  excessive  use  of  them» 
he  was  habitually  intemperate;  pnd  to  use 
them  often  or  daily  is,  according  to  the 
ordinary  acceptation  of  those  words,  to 
use  them  habitvplly."  See.  generally,  the 
title  INSURANCE. 

3.  Kenaday  v.  Sinnott,  179  U.  S.  606, 
617.  45  L.  Ed.  339.  As  to  ademption  of 
legacies,  see  the  title  WILLS. 

4.  Adjacent. — An  act  granted  railway 
companies  the  right  to  take  materials 
from  the  public  lands  "adjacent  to  the 
line  of  said  road."  It  was  held,  that  ad- 
jacent lands  meant  lands  in  proximity, 
contiguous  to,  or  near  the  road,  and  does 
not  include  lands  at  any  distance  from  the 
railroad.  Stone  v.  United  States,  167  U. 
S.  178,  190,  191,  42  L.  Ed.  127.  In  United 
States  V.  St.  Anthony  R.  Co.,  192  U.  S. 
524,  530,  48  L.  Ed.  54S.  it  is  said:  "The 
lands  from  which  materials  for  the  con- 
struction of  the  railroad  may  be  taken 
must  be  adjacent  to  this  piece  of  land  but 
two  hundred  feet  wide.  The  term  is  a 
somewhat  relative  and  uncertain  one.  and 
in  one  aspect  the  case  may  be  determined 
with,  at  least  some  reference  to  the  size 
of  the  strip  or  right  of  way  granted,  and 
to  which  the  land  must  be  adjacent."  And 
in  that  case  it  was  held,  that  land  more 
than  twenty  miles  from  a  railroad  which 
was  only  forty  miles  long  was  not  adja- 
cent to  it.  See.  also.  United  States  zk 
Denver,  etc.,  R.  Co.,  150  U.  S.  1,  11,  37  L. 
Ed.    975. 


ADJOINING    LANDOWNERS. 

CROSS   REFERENCES- 

See  the  titles  Boundaries;  Damages;  Easements;  Eminent  Domain; 
Fences;  Mines  and  Minerals;  Nuisances;  Party  Walls;  Street  Rail- 
ways;   Streets  and  Highways;    Trespass;    Waters  and  Watercourses. 

General  Rule  as  to  Use  of  Property. — An  individual  who  for  his  own  bene- 
fit makes  an  improvement  on  his  own  land  according  to  his  best  skill  and  dili- 
gence, not  foreseeing  it  will  produce  injury  to  his  neighbor;  if  he  thereby,  though 
unwittingly,  injure  his  neighbor,  is  liable. ^ 

Rule  as  to  Lateral  Support. — The  general  rule  may  be  admitted  that  every 
landowner  has  a  right  to  have  his  land  preserved  unbroken,  and  that  an  adjoining 
owner  excavating  on  his  own  land  is  subject  to  this  restriction,  that  he  must  not 
remove  the  earth  so  near  to  the  land  of  his  neighbor  that  his  neighbor's  soil  will 
crumble  away  under  its  own  weight  and  fall  upon  his  hand.^  But  this  rule  ex- 
tends only  to  soil  in  its  natural  condition.-^ 

Obstructing  Light. — An  adjoining  landowner  may  build  a  fence  as  high  as 
he  pleases  upon  his  own  land  even  though  it  obstructs  his  neighbor's  lights.^ 

ADJOURNED  SESSION.— See  note  5. 

1.  Northern  Trans.  Co.  v.  Chicago,  99  pleases,  even  though  it  obstracts  his 
U.  S,.  635,  25  L.  Ed.  336.  neighbor's    lights,    and    the    weight   of    au- 

2.  Northern  Trans.  Co.  v.  Chicago,  99  thority  is  that  his  motives  in  so  doing 
U.   S.   635.   25   L.   Ed.   336.  cannot  be  inquired  into,  even   though   the 

3.  This  right  of  lateral  support  extends  fence  be  built  expressly  to  annoy  and 
only  to  the  soil  in  its  natural  condition.  spite  an  adjoining  owner;  and,  in  this 
It  does  not  protect  whatever  is  placed  particular,  the  law  takes  no  account  of 
upon  the  soil  increasing  the  downward  the  selfishness  or  malevolence  of  indi- 
and  lateral  pressure.  If  it  did,  it  would  vidual  proprietors,  although  there  are 
put  it  in  the  power  of  a  lot  owner,  by  many  strong  intimations  to  the  contrary, 
erecting  heavy  buildings  on  his  lot,  to  Camfield  v.  United  States,  167  U.  S.  518, 
greatly  abridge   the  right   of  his   neighbor  523,    42    L.    Ed.    260. 

to  use  hi-s  lot.     It  would  make  the  rights  5     Adjourned    session.— Adjourned    ses- 

of    the    prior    occupant    greatly    superior  gion  is  considered  as  the   same   session  as 

to   those    of   the   latter.      Northern   Trans.  that  at  which  the  adjournment  was  made. 

Co.   V.    Chicago,   99   U.    S.   635,    645,   25    L.  Mechanics'    Bank    v.    Withers.    6    Wheat. 

Ed.    336.  106.   109,   5   L.   Ed.   217.     And  see  the  title 

4.  It  is   true  that   a   man   may   build   a  ADJOURNMENTS, 
fence   upon   his   own   land   as   high   as    he 

(117) 


ADJOURNMENTS. 

CROSS    REFERENCES. 

See  the  titles  Appeal  and  Error;  Continuances;  Courts;  Judges;  Judg- 
ments   AND  Decrees;    Justices  oe  the  Peace;    Rehearing. 

Power  of  Adjournment  Common  to  All  Courts. — The  power  of  adjourn- 
ing to  a  distant  day  is  one  common  to  all  courts.  ^ 

Adjourned  Session  Considered  as  Same  Term. — Where  the  power  of  ad- 
journment is  exercised,  the  adjourned  session  is  considered  as  the  same  term.^ 

ADJUDICATION.— See  note  3. 

ADMINISTRATION    OF    ESTATES.— See  the  titles    Bankruptcy;    Exec- 
utors and  Administrators;  Wills. 
ADMINISTRATORS. — See  the  title  Executors  and  Administrators. 


1.  Power  of  adjournment  common  to  all 
courts. — Mechanics'  Bank  v.  Withers,  6 
Wheat.  107.  5  L.  Ed.  217,  holding  that  the 
drctiit  court  for  the  District  of  Columbia 
has  snch  power. 

May.  be  held  immediately  preceding 
regular  session. — An  adjourned  term  may 
be  held  immediately  preceding  the 
regular  session.  Larman  v.  Tisdale,  11 
How.   586,  13   L.   Ed.   823. 

2.  Adjourned  session  considered  as 
same  term. — Mechanics'  Bank  v.  Withers, 
6   Wheat.    107,    5    L.    Ed.    217. 

Right  of  defendant  to  set  aside  default 
at  adjourned  session. — The  regular  term 
began  on  the  3d  Monday  in  April,  and 
the  court  continued  to  sit,  de  die  in  diem, 
until  the  1  fith  of  May,  when  it  adjourned 
to  the  4th  Monday  of  June.  Held,  that 
a  defendant,  against  whom  an  office  judg- 
ment   had    been    entered    on    the    16th    of 


May.  had  a  right,  under  the  law  and 
practice  of  Virginia,  to  appear  at  the  ad' 
journed  session,  and  have  the  default  set 
aside,  on  giving  special  bail,  and  plead- 
ing issuably.  Mechanics'  Bank  v.  With- 
ers. 6  Wheat.  107.  5  L.  Ed.  217. 
See  the  title  JUDGMENTS  AND  DE- 
CREES. 

3.  Adjudication. — In  United  States  v. 
Irwin,  127  U.  S.  12.5,  32  L.  Ed.  99,  it  is 
said:  "But.  in  our  opinion,  the  controll- 
ing words  of  the  act  are  those  which  de- 
clare that  the  claims  of  the  parties  are 
thereby  referred  to  the  court  of  claims 
'for  adjudication  according  to  law.'  The 
force  of  this  phrase  cannot  be  satisfied 
by  anything  less  than  a  formal,  regular, 
and  final  judgment  of  the  judicial  tribunal, 
to  which  the  matter  is  submitted,  acting 
upon  the  acknowledged  principles  of  law 
applicable  to  the  circumstances  of  the 
case." 


(118) 


ADMIRALTY. 

BY   J.    N.    CLAYBROOK. 

Jurisdiction,   125. 
A.  Nature  and  Extent,  125. 

1.  Construction  of  Constitutional  Grant  of  Admiralty  and   Maritime 

Jurisdiction,  125. 

a.  In  General,  125. 

b.  Governed  by  General  Maritime  Law  in  Force  When  Constitu- 

tion Adopted,  125. 

c.  Whether    Jurisdiction    Coextensive  with    That  of    English    or 

Continental  Admiralty  Courts.  126. 

d.  Jurisdiction  as  xA.ffected  by  Federal  Statutes,   126. 

e.  Jurisdiction  as  Affected  by  State  Statute,   126. 

f.  Jurisdiction  as  Affected  by  Rules  of  Court,  127. 

2.  Concurrent  Jurisdiction  with  State  Courts,  127. 

a.  In  General,  127. 

b.  Saving  of  Common-Law  Remedy,  128. 

(1)  Statement  of  Saving  Clause,  128. 

(2)  Construction  and  Operation  of  Saving  Clause.   128. 

(a)  In  General,  128. 

(b)  What  Remedies  Are  Saved,   128. 

aa.  Meaning  of  Common-Law  Remedy,  128. 
bb.  Proceedings  in   Personam,    128. 
(aa)    In  General,  128. 
(bb)    Actions  on   Contract,   129. 
(cc)   Actions   for   Damages   for  Tort,    129. 
(dd)    Suits  in  Equity,  129. 
(ee)    Proceedings  in   Personam  with  Ancillarv 

Attachment,  129. 
(ff)    Statutory  Remedies,  130. 
aaa.  In    General,    130. 
bbb.  Action      for     Death     by     V\'rongful 
Act.    130. 
cc.  Proceedings  in  Rem,  130. 

3.  Jurisdiction  of  Suits  between  Foreigners,  131. 

a.  Discretion  of  Court  as  to  Assumption  of  Jurisdiction,  131. 

b.  Consent  of  Foreign  Consul  or  Representative,  131. 

c.  Jurisdiction  in  Particular  Suits  or  Actions,  132. 

4.  Waters  within  Jurisdiction,  132. 

a.  Former  Rule — Waters  within  Ebb  and  Flow  of  Tide,  132. 

b.  Present   Rule — Navigable  Waters,   133. 

(1)  In  General,  133. 

(2)  Mode  of  Determining  Navigability  of  Waters    133 

(3)  Canals,  133. 

(4)  Rivers.  134. 

(5)  Waters  within  Body  of  County  or  State,  134. 

c.  Foreign  Navigable  Waters.  134. 

5.  Vessels  or  Property  within  Jurisdiction.  134. 

a.  Vessels.  134. 

(1)   Character  of  Vessel,    134. 

(a)  Vessels  Propelled  by  Oars.  134. 

(b)  Canal  Boats,  134. 

(c)  Government  Vessels,  134. 

aa.  Vessels  of  United  States,   134. 
bb.  Foreign  \^'arships.   135. 

(11^) 


120  ADMIRALTY. 

(2)  Necessity  for  Vessel  to  Be  Engaged  in  Foreign  or  In- 

terstate Commerce,  135. 

(a)  Former  Rule,   135. 

(b)  Present  Rule,  135. 

(3)  Launching     as     Prerequisite     to     Admiralty     Jurisdic- 

tion,   136. 

(4)  Vessel  Moored  to  Wharf.  136. 

b.  Property  Other  Than  Vessels,  136. 

(1)  Bridge,  136. 

(2)  Dry  Dock,  136. 

(3)  Proceeds  of  Property  or  Vessel,  136. 

c.  Conflict  of  Jurisdiction  as  to  Res,  137. 
6.  Causes  of  Action  within  Jurisdiction,   137. 

a.  Contracts,  137. 

(1)  In  General,  137. 

(2)  Shipbuilding  Contracts,  138. 

(3)  Contracts  of  Carriage,   138. 

(a)  Carriage  of  Passengers,  138. 

(b)  Contracts  of  Affreightment  and  Charter  Party,  138. 

(4)  Towage  Contracts,  139. 

(5)  Contracts  of  Consortship,  139. 

(6)  Services  by  Master  or  Seamen,  139. 

(a)  Services  by  Master,   139. 

(b)  Services  by  Seamen,  139. 

(7)  Wharfage,  140. 

(8)  Pilotage,  140. 

(9)  Mortgages.   140. 

(10)  Repairs  and  Supplies,  141. 

(a)  In   General,   141. 

(b)  Repairs    or     Supplies    Furnished     Domestic     Ves- 

sels, 141. 

(c)  Repairs    or    Svipplies    Furnished    to    Foreign    Ves- 

sels, 142. 
Cd)   Repairs  to  Vessels  in  Drv  Dock  or  upon  Land,  142. 

(11)  Contribution,   142. 

(12)  Contracts  of  Bottomry  or  Respondentia,  143. 

(13)  Marine  Insurance,  143. 

b.  Torts,  143. 

(1)  In  General,  143. 

(2)  Jurisdiction    Dependent    on    Place    \Miere    Tort    Com- 

mitted,  143. 

(3)  Nature  and  Character  of  Tort,  143. 

(a)  In  General.  143. 

(b)  Personal  Injuries,  144. 

(c)  Death  by  Wrongful  Act,  144. 

(d)  Injuries  to  Ships  or  Vessels,  144. 
aa.  Obstructions  to  Navigation.  144. 
bb.  Collision.  144. 

(e)  Injuries  on  Land  Caused  by  Ships  or  Vessels,  145. 

(f)  Injuries  to    Aids  to    Navigation  by  Ships    or    Ves- 

sels, 145. 

(g)  Seizure  or  Dispossession  of  Property,  145. 
(h)   Loss  of  Goods  by  Carriers,  146. 

c.  Actions  in  Regard  to  Ownership  or  Possession  of  Vessels,  146. 

d.  Equitable  Relief,  146. 

(1)  Direct  Proceedings  for  Equitable  Relief,  146. 

(2)  Applying    Equitable    Principles    to    Cases    within    Ad- 
miralty Jurisdiction,  147. 


ADMIRALTY.  121 

e.  General  Average,  147. 

f.  Maritime  Liens,   148. 

g.  Seizures  for  Forfeitures,  148. 

h.  Proceedings  to  Limit  Liability  of  Ship  Owners,  149. 
i.  Prize,  150. 
j.  Salvage,  151. 
k.   Surveys,  151. 

1.  Enforcement  of  Lien  for  Duties,  151. 
7.  Criminal  Jurisdiction,   151. 

B.  Courts,  151. 

1.  District  Courts,  151. 

2.  Circuit  Courts,  152. 

3.  Appellate  Courts,   152. 

a.  Original  Jurisdiction,  152. 

b.  Appellate  Jurisdiction,   153. 

4.  Territorial  Courts,  153. 

5.  Foreign  Courts,  153. 

C.  Objections,  and  Waiver  of  Objections,  to  Jurisdiction^  154. 

II.    Maritime  Law,   154. 
III.    Procedure,  156. 

A.  Forms   and    Modes   of   Proceeding,    156 

1.  Nature  and  Characteristics  of  Admiralty  Proceedings,  156. 

2.  Proceedings   in   Personam   and   in   Rem,    156. 

a.  Proceedings  in  Personam,     156. 

b.  Proceedings  in  Rem,  157. 

3.  Election   as   to   Mode   of   Proceeding,    157. 

3.  Power  of  Congress  to  Prescribe   Forms  and   Modes  of 'Pro- 

ceeding, 157. 

4.  Power  of  Court  to  Prescribe  Rules  of  Practice,  158. 

B.  Venue,  158. 

1.  Proceedings  in  Rem,  158. 

2.  Proceedings  in  Personam,  158. 

C.  Joinder   and  Consolidation  of  Causes  of  Action  or  Proceedings,    158. 

1.  Joinder  of  Causes  of  Action  or  Proceedings,  158. 

a.  Joinder  of  District  Causes  of  Action.  158. 

b.  Joinder  of  Proceedings  in  Personam  and  Proceedings  in 

Rem,  159. 

2.  Consolidation  of  Actions,  159. 

D.  Parties,  159. 

1.  Libelants,  159. 

a.  Who  May  Sue,  159. 

b.  Joinder,  160. 

2.  Respondents,  160. 

3.  Objections  as  to  Parties,  161. 

a.  Mode  of  Objecting,  161. 

b.  Time  of  Objecting,  161. 

4.  Adding  New  Parties  by  Supplemental  Libel  or  Petition,  161. 

5.  Effect  of  Death  of  Party,   161. 

6.  Substitution  of  Parties,  161. 

E.  Appearance,  Process  and  Attachment,   161. 

1.  Appearance,   161. 

2.  Process,  161. 

a.  In  General,   161. 

b.  Necessity   of   Service   in    Proceeding   in   Rem,   162. 

c.  Effect  of  Service,   162. 

3.  Attachment,   162. 

a.  Power  to  Issue  Attachment,  162. 


122  ADMIRALTY. 

b.  Who   May  Attach.    162. 

c.  Grounds    for    Attachment,    162. 

d.  What  May  Be  Attached,   162. 

e.  Necessity   for   Specification  of   Property  in   Libel,    162. 

f.  Issuance  and  Validity  of  Attachment,  162. 

g.  Efifect  of  Default  of  Respondent  after  Attachment,   163. 

F.  Pleadings,  163. 

1.  In   General,    163. 

2.  Libel,  163. 

a.  Definition    and    Nature,    163. 

b.  Form  and  Requisites,  163. 

(1)  Necessary  Averments,  163. 

(2)  Sufficiency  of  Averments  and  Accuracy  of   State 

ments,   163. 

(3)  Prayer  for  Relief,  164. 

(4)  Informations    for   Forfeitures,    164. 

c.  Waiver  of  Objections,  165. 

3.  Answer,  165. 

a.  Definition  and   Nature,   165. 

b.  Form  and  Requisites,  166. 

c.  Efifect  as  Evidence,  166. 

4.  Reply,  166. 

5.  Cross  Libel,   166. 

a.  Definition,    166. 

b.  Object    and    Purpose,    166. 

c.  Necessity,   166. 

d.  Mode  of  Proceeding,  166. 

e.  Subject  Matter,   166. 

f.  Dismissal,  167. 
'}                             6.  Amendments.   167. 

a.  Attitude  of  Admiraltv  toward  Amendments,  167. 

b.  Amendment  of  Libel.   167. 

(1)  In   General,    167. 

(2)  Amendment  as  to  Parties,  167. 

(3)  Amendment    on    Appeal.    167. 

(4)  Amendment  after  Reversal,   168. 

c.  Amendment  of  Answer,    168. 

G.  Laches.  168. 

H.  Intervention  and  Claim.  169. 

1.  Intervention.   167. 

2.  Claim.    169. 

a.  In  General.  169. 

b.  Who   May   Claim.    169. 

c.  Verification  or  Affidavit.  170. 

d.  Effect  of   Fraudulent  Claim.    170. 

e.  Separate   Claims   Treated   as    Separate   Proceedings.    170. 

f.  Disposition    of    L^nclaimed    Property.    170. 
L   Set-Off.  Recoupment  and   Counterclaim,   170. 

J.  Custody  and  Control  of  Property,   170. 

1.  Necessity  for  Seizure  of  Property,  170. 

2.  Control    of    Property    bv    Court    Pending    Suit,    171. 

3.  Wrongful  Removal  of  Property  from  Custody  of  Court.  17'. 

4.  Abandonment  of   Seizure,    171. 

5.  Release  of  Property  on  Bond  or  Stipulation,  171. 

a.  Power  to  Take  v^tipnlations  and  Release  Property,  171. 
(1")    In    General.    171. 
(2)    Seizures    for    Forfeiture.    172. 


ADMIRALTY.  123 

b.  Form  and  Requisities,  172. 

c.  Operation   and    Effect,    172. 

(1)  Substitute   for   Property,   172. 

(2)  Binding    Effect    on    Appeal,    172. 

d.  Liability  on  Stipulations.  172. 

(1)  Liability  of  Stipulators  to  Subsequent  Libelants  or 

Intervenors,    172. 

(2)  Nature  and  Extent  of  Liability,  173. 

(a)  Liability    for  Amount   of   Bond   or    Stipula- 

tion,   173. 

(b)  Liability    for   Interest   and   Costs,    173. 

(3)  Amendment  as  Discharging  Stipulators,  173. 

(4)  Judgment    against    Stipulators,    174. 

(a)  Rendition,  174. 

(b)  Operation  and  Effect,   174. 

(c)  Reformation  of  Judgment,  174. 

(d)  Enforcement  of  Judgment,    174. 

(e)  Relief  from  Lien  of  Judgment  Pending   Ap- 

peal,   174. 

e.  Recall  or  Rearrest  of  Property  or  Vessel,    174. 

(1)  Grounds.  171. 

(a)  Filing  New  or  Intervening  Libel.   174. 

(b)  Fraud,    Misrepresentation   or    Impropci-    Re- 

lease, 174. 

(2)  What   Court  May  Recall   Property,   174. 

(3)  Mode  of  Making  Recall  or  Rearrest,  175. 

(4)  Time  of  Recall,  175. 
K.  Evidence,  175. 

1.  Mode  of  Proof,   175. 

2.  Burden  of  Proof,   175. 

3.  Witnesses,  175. 

4.  Depositions,    175. 

5.  Weight  and  Sufficiency,  176. 
L.  Variance.   176. 

M.  Trial  and  Hearing,  176. 

1.  Mode  of  Proceeding,  176. 

2.  Jury  Trial,  176. 

3.  Reference  to  Masters  and  Commissioners,  177. 

a.  Right  to  Refer  Questions,  177. 

b.  Report.  177. 

(1)  Form  and  Requisites,  177. 

(2)  Exceptions,  177. 

(a)  Necessity  of  Exceptions.  177. 

(b)  Form  and  Requisites.  \77 . 

(3)  Setting  Aside  Report  on  Appeal.  177. 
N.  Decree.  178. 

1.  What  Constitutes  Final  Decree,  178. 

2.  Form  and  Requisites.  178. 

3.  Operation  as  a  Lien  on  Real  Estate,   178. 

4.  Conclusiveness,  178. 

5.  Collateral  Attack,   179. 

6.  Defaults,  179. 

7.  Personal    Decree   against    Owner    for    Deficiency,    179. 

8.  Enforcement  of  Decrees,   180. 
O.     Sale  of  Property.  180. 

1.  Order  of  Sale.  180. 

2.  Effect  of  Defect  in  Title  on  Sale  of  Property.  180. 


124  ADMIRALTY. 

P.  Disposition   of   Proceeds   of   Sale,    180. 

1.  Right  to  Share  in  Proceeds  of  Sale,  180. 

2.  Mode  of   Subjecting  Proceeds,    180. 

3.  Power  of  Marshal  to  Control  or  Distribute  Proceeds  without 

Order  of  Court,  181. 

4.  Disposition  of  Unclaimed  Property,  181. 

Q.  Costs,   Counsel  Fees,   Interests  and  Damages,   181. 

1.  Costs,  181. 

2.  Counsel   Fees,    181. 

3.  Interest,   182. 

4.  Damages,    182. 

a.  General  Rules  as  to  Damages   in  Admiralty,   182. 

b.  Award  of  Damages  to  Prevailing  Party,  182. 
R.  Review,  182. 

1.  Mode  of   Review,   182. 

2.  Jurisdiction,  183. 

a.  Courts,   183. 

(1)  In  General,  183. 

(2)  Circuit  Court,  183. 

(3)  Circuit  Court  of  Appeals,  184. 

(4)  Supreme   Court,   184. 

b.  Amount  in  Controversy,  185. 

c.  Appealable    Decisions,    185. 

3.  Who  May  Appeal,  185. 

4.  Time  of  Appeal,    185. 

5.  Cross   Appeal,    185. 

6.  Perfecting   Appeal,    185.. 

a.  Necessity  of  Writing,  185. 

b.  Record,  186. 

7.  Effect  of  Appeal,  186. 

a.  As  Suspending  Decree  of  Lower  Court,  186. 

b.  As  Carrying  Up  Property  or   Stipulation,   186. 

(1)  Appeal  from  District  to  Circuit  Court,  186. 

(2)  Appeal   from   Circuit   to   Supreme  Court,   187. 

8.  Dismissal  of  Appeal,   187. 

9.  Trial  and  Hearing,  187. 

a.  Appeal   from  District  to  Circuit   Court,   187. 

b.  Appeal  from  Circuit  to  Supreme  Court,  188. 

(1)   Retrial   as   to   Facts,    188. 

(a)  Rule  under  Judiciary  Act,  188. 

(b)  Rule   under   Act   of    1803,    188 

(c)  Rule  under  Act  of  1875,  188. 

aa.  In  General,  188. 

bb.  To  What  Cases   Statute  Applies,   189. 

cc.  What  Rulings  May  Be  Reviewed,  189. 
(aa)   In  General,  189. 
(bb)    What  Are  Conclusions  of  Law 
Which  May  Be  Reviewed,  189. 

dd.  Of  What  Facts  Findings  Required,  189. 

ee.  Conclusiveness  of  Findings,   190. 

f f.  Effect  of  Refusal  to  Make  Findings,  190. 

gg.  Effect  of  Findings   Not  Supported  by 
Evidence,  191. 

hh.  Bill  of  Exceptions,  191. 

(aa)   Necessity  of   Bill.   191. 
(bb)   Form  of  Bill,   191. 

ii.  Hearing    and    Determination    on    Find- 
ings, 191. 


ADMIRALTY.  125 

c.  Effect    Where   Evidence   Is   Conflicting,    192. 

(1)  In  General,   192. 

(2)  Effect  of  Concurring  Decisions  of  District  and  Cir- 

cuit Courts  on  Questions  of  Fact,  192. 

d.  Further  Proof,  193. 

CROSS    REFERENCES. 

See  the  titles  Abate;me;nt,  Revival  and  Survival,  ante,  p.  12;  Actions,  ante, 
p.  96 ;  Ambassadors  and  Consuls  ;  Amendments  ;  Appeal  and  Error  ;  Ap- 
pearances; Certiorari;  Collision;  Conflict  oe  Laws;  Consolidation  of 
Actions;  Contracts;  Costs;  Courts;  Criminal  Law;  Embargo  and  Nonin- 
tercourse  Laws;  Equity;  Evidence;  Exceptions,  Bill  of,  and  State- 
ment of  Facts  on  Appeal;  Findings  of  Courts;  Former  Adjudication 
or  Res  Adjudicata  ;  General  Average  ;  Judgments  and  Decrees  ; 
Jury;  Laches;  Marine  Insurance;  Maritime  Liens;  Navigable  Waters; 
Penalties  and  Forfeitures;  Pilots;  Piracy;  Pleading;  Prize;  Rev- 
enue Laws;  Salvage;  Seamen;  Set-Off,  Recoupment  and  Counterclaim; 
Ships  and  Shipping;    War. 

As  to  pendency  of  other  suits  or  proceedings  as  defense  to  proceedings  in 
admiralty,  see  the  title  Abatement,  Revival  and  Survival,  ante,  p.  12.  As 
to  affect  of  death  of  party  or  proceedings  in  admiralty,  see  the  title  Abate- 
ment, Revival  and  Survival,  ante,  p.  12.  As  to  arbitration  of  proceedings 
pending  in  a  court  of  admiralty  under  rule  of  court,  see  the  title  Aruitr-^tion 
AND  Award.  As  to  procedure  in  suits  for  collision,  see  the  title  Collision.  As 
to  contributory  negligence  as  a  defense  to  proceedings  in  admiralty  for  collision 
and  division  of  damages  in  such  cases,  see  the  title  Collision.  As  to  criminal 
jurisdiction,  see  the  title  Criminal  Law.  As  to  dismissal  or  discontinuance  of 
admiralty  causes,  see  the  title  Dismissal,  Discontinuance  and  Nonsuit.  As 
to  mandate  and  proceedings  thereon  upon  appeals  in  admiralty,  see  the  title 
Mandate  and  Proceedings  Thereon.  As  to  liens  on  vessels,  whether  arising 
from  general  maritime  law  or  imposed  by  federal  or  state  statutes,  see  the  title 
Maritime  Liens.  As  to  contributory  negligence  as  barring  recovery  in  action 
for  personal  injuries,  and  division  of  damages  in  such  case,  see  the  title  Neg- 
ligence. As  to  prohibition  to  courts  of  admiralty,  see  the  title  Prohibition. 
As  to  proceedings  to  limit  liability  of  ship  owners,  see  the  title  Ships  .a^nd  Ship- 
ping. As  to  proceedings  for  forfeiture  of  vessel  for  violation  of  slave  trade, 
see  the  title  Slaves. 

L    Jurisdiction. 

A.  Nature  and  Extent — 1.  Construction  of  Constitutional  Grant  of 
Admiralty  and  Maritime  Jurisdiction — a.  In  General. — The  jurisdiction  of 
the  federal  courts  in  admiralty  and  maritime  cases  is  given  in  general  terms  by 
the  constitution,  and  the  extent  of  it  is  to  be  ascertained  by  a  reasonable  and  just 
construction  of  the  words  used  when  taken  in  connection  with  the  whole  instru- 
ment and  the  purposes  for  which  admiralty  and  maritime  jurisdiction  was 
granted  to  the  federal  government. ^ 

b.  Governed  by  Gefieral  Maritime  Laze  in  Force  When  Constitution  Adopted. 
• — The  general  system  of  maritime  law  which  was  familiar  to  the  lawyers  and 
statesmen  of  this  country  when  the  constitution  was  adopted,  was  intended,  and 
referred  to,  when  it  was  declared  in  that  instrument,  that  the  judicial  power  of 

1.   Reasonable   and  just   construction   of  the    judicial    power    should    extend    to    all 

words   used. — The   Steamer   St.    Lawrence,  cases    of    admiralty    or    maritime   jurisdic- 

1  Black  522,  17  L-  Ed.  180;  Insurance  Co.  tion,   was   added   out  of  abundant   caution 

V.   Dunham,  11  Wall.   1,  24.  20   L-    Ed.   90;  to    preclude    a    narrow    interpretation    of 

The   Lottawanna,  21   Wall.   558,  22   L.    Ed.  the      word      "admiralty."      Oregon,      etc.. 

654.  Navigation    Co.   v.    Balfour,    179    U.    S.   55, 

The   word   "maritime"   as   used   in   §    2,  45    L.    Ed.    82. 
art.   3,   of  the   constitution  providing    that 


126 


ADMIRALTY 


the  United   States  sliall   extend  "to  all  cases  of  admiralty  and  maritime  jufis- 
diction."2 

c.  Whether  Jurisdiction  Coextensive  zeith  That  of  English  or  Continental 
Admiralty  Courts. — Admiralty  jurisdiction,  as  exercised  in  the  federal  courts,  is 
not  restricted  to  the  subjects  cognizable  in  the  English  courts  of  admiralty  at  the 
date  of  the  revolution.^  Nor,  on  the  other  hand,  is  it  as  extensive  as  that  ex- 
ercised by  the*  continental  courts,  organized  under,  and  governed  by.  the  prin- 
ciples of  civil  law."* 

d.  Jurisdiction  as  Affected  by  Federal  Statutes. — The  boundaries  and  limits 
of  the  admiralty  and  maritime  jurisdiction  are  matters  of  judicial  cognizance, 
not  to  be  affected  or  controlled  by  congressional  action.'' 

e.  Jurisdiction  as  Affected  by  State  Statutes. — And  no  state  can  enlarge  or  di- 


2.  Governed  by  general  maritime  law  in 
force     when     constitution     adopted. — The 

Lottawanna,  21  Wall.  558,  22  L.  Ed.  654; 
Workman  v.  New  York.  179  U.  S.  552, 
45  L.  Ed.  314;  Steamboat  New  York,  18 
How.  223,  226,  15  L.  Ed.  359;  Ex  parte 
Easton,  95  U.  S.  68,  70.  24  L.  Ed.  373; 
Butlffl-  V.  Boston,  etc..  Steamship  Co.,  130 
U.  S.  527.  556.  32  L.  Ed.  1017;  The  Bel- 
fast, 7  Wall.  624.  636,  19  L.  Ed.  266;  At- 
kins V.  Fiber  Disintegrating  Co.,  18  Wall. 
272,   304.   21   L.    Ed.   841. 

The  nature  and  extent  of  the  admiraltj' 
jurisdiction  must  be  determined  by  the 
laws  of  congress  and  the  decisions  of  the 
supreme  court,  and  by  the  usages  pre- 
vailing in  the  courts  of  the  states  at  the 
time  the  federal  constitution  was  adopted. 
Ex  parte  Easton,  95  U.  S.  68,  70,  24  L. 
Ed.  373;  Steamboat  New  York,  18  How. 
223,  15  L.  Ed.  359;  Workman  v.  New 
York,  179  U.  S.  552.  45  L.  Ed.  314;  The 
Lottawanna,  21  Wall.  558,  576.  22  L.  Ed. 
654.      See   post.  "Maritime   Law,"   IL 

"The  constitution,  in  the  grant  of  the 
admiralty  jurisdiction,  refers  to  it  as  it 
existed  in  this  and  other  maritime  coun- 
tries at  the  time  of  the  adoption  of  that 
instrument.  It  was  then  greatly  larger 
here  than  in  England.  The  hostility  of 
the  common-law  courts  there  had  wrought 
the  reduction."  Atkins  v.  Fiber  Disin- 
tegrating Co.,  18  Wall.  272.  21  L.  Ed.  841. 
845,  citing  Manro  v.  .\limeda.  10  Wheat. 
473.  6  L.  Ed.  369;  Waring  f.  Clarke.  5 
How.  441,  455,  12  L.  Ed.  226;  New  Jersey 
Steam  Nav.  Co.  v.  Merchants'  Bank,  6 
How.  344.  389,  12  L.  Ed.  465;  The 
Steamer  St.  Lawrence,  1  Black,  522,  527. 
17  L.  Ed.  180;  The  Propeller  Genesee 
Chief  V.  Fitzhugh,  12  How.  443.  454.  13 
L.  Ed.  1058;  Insurance  Co.  v.  Dunham, 
11  Wall.  1,  20  L.  Ed.  90;  Story  Const., 
§    1666. 

3.  Jurisdiction  not  limited  to  cases  cog- 
nizable in  English  admiralty  courts. — 
The  Belfast,  7  Wall.  624.  636,  19  L.  Ed. 
266;  Bags  of  Linseed,  1  Black  108.  113, 
17  L.  Ed.  35;  The  Lottawanna.  21  Wall. 
558,  22  L.  Ed.  654;  The  Blackheath.  195 
U.  S.  361,  49  L.  Ed.  236;  Ex  parte  Easton, 
95  U.  S.  68.  70,  24  L.  Ed.  373;  Waring  r. 
Clarke.  5  How.  441.  12  L.  Ed.  2'>6:  Cut- 
ler V.  Rae,  7  How.  729,  732,  12  L.  Ed.  890; 


Insurance  Co.  v.  Durham,  11  Wall.  1,  24. 
20  L.  Ed.  90;  The  Blackheath,  195  U.  S. 
361,  365,  49  L.  Ed.  236;  New  Jersey 
Steam  Nav.  Co.  v.  Merchanes'  Bank,  6 
How.  344,  387,  12  L.  Ed.  465;  Atkins  v. 
Fiber  Disintegrating  Co.,  18  Wall.  272, 
304.   21    L.    Ed.   841. 

"This  court  has  frequently  declared  and 
decided  that  the  admiralty  and  maritime 
jurisdiction  of  the  United  States  is  not 
limited  either  by  the  restraining  statutes 
or  the  judicial  prohibitions  of  England, 
but  is  to  be  interpreted  by  a  more  en- 
larged view  of  its  essential  nature  and  ob- 
jects, and  with  reference  to  analogous 
jurisdictions  in  other  countries  constitut- 
ing the  maritime  commercial  world,  as 
well  as  to  that  of  England."  Insurance 
Co.  7'.  Dunham,  11  Wall.  1,  24,  20  L. 
Ed.   90. 

4.  Jurisdiction  not  extensive  as  conti- 
nental admiralty  courts. — The  Belfast.  7 
Wall.  624,  636.  19  L.  Ed.  266;  Bags  of 
Linseed.  1  Black  108.  113.  17  L.  Ed.  35; 
Ex  parte  Easton.  95  U.  S.  68.  70,  24  L. 
Ed.   373. 

5.  Boundaries  of  jurisdiction  not  af- 
fected by  federal  statutes. — Butler  v.  Bos- 
ton, etc..  Steamship  Co..  130  U.  S.  527. 
557.  32  L.  Ed.  1017;  The  Steamer  St. 
Lawrence,  1  Black  522,  17  L.  Ed.  180; 
The  Lottawanna,  21  Wall.  558.  22  L.  Ed. 
654;  Ex  parte  Garnett.  141  U.  S.  1.  35 
L.  Ed.  631;  The  Blackheath.  195  U.  S. 
361.  368.  49  L.  Ed.  236;  Grant  v.  Poillon, 
20   How.   162,   1C8,   15  L.    Ed.  873. 

Congress  cannot  make  the  admiralty 
and  maritime  jurisdiction  broader  than  the 
judicial  power  may  determine  to  be  its 
true  limits.  The  Steamer  St.  Lawrence.  1 
Black  522.  17  L.  Ed.  180;  The  Lotta- 
wanna, 21  Wall.  558.  22  L.  Ed.  654;  Ex 
parte   Garnett.  141  U.   S.  1.   35   L.  Ed.  631. 

"The  fact  that  congress,  under  the  con- 
stitution, cannot  extend  our  admiralty 
jurisdiction  affords  an  argument  for  a 
broad  interpretation  commensurate  with 
the  needs  of  modern  commerce."  The 
Blackheath.  195  U.  S.  361.  309.  40  L.  Ed. 
236. 

It  has  been  held,  that  a  statute  (act 
of  .\ug.  18.  1856.  ch.  164.  Rev.  Stat.,  § 
5576),  providing  that  the  nunishment  of 
oflfenses     committed     on     Guano     Islands 


ABMTRAVrY. 


127 


minish  the  admiralty  or  maritime  jurisdiction  granted  by  the  constitution  to  the 
judicial  power  of  the  United  States.*^ 

f.  Jurisdiction  as  Affected  by  Rules  of  Court. — Rules  of  court  cannot  enlarge 
the  admiralty  jurisdiction  or  make  it  broader  than  the  judicial  power  may  deter- 
mine to  be  its  true  limits^ 

2.  Concurrent  Jurisdiction  with  State  Courts — a.  In  General. — The  ad- 
miralty jurisdiction  of  the  courts  of  the  United  States,  although  exclusive  of  com- 
mon-law courts  on  some  subjects,  is  concurrent  upon  others.^  Admiralty  juris- 
diction in  the  courts  of  the  United  States  is  not  taken  away  because  the  courts 
of  common  law  may  have  concurrent  jurisdiction  in  a  case  with  the  admiralty. ^ 
The  grant  to  the  United  States,  in  the  constitution,  of  all  cases  of  admiralty  and 
maritime  jurisdiction,  does  not  extend  to  a  cession  of  the  waters  in  which  those 
cases  may  arise,  or  of  general  jurisdiction  over  the  same.^*^ 


shall  be  governed  by  the  same  rules  as 
govern  like  crimes  upon  the  high  seas, 
is  not  an  attempt  to,  confer  admiralty 
jurisdiction  over  land,  and  is  not  uncon- 
stitutional on  that  ground.  Jones  i'. 
United  States.  137  U.  S.  202,  34  L.  Ed.  691. 
See   the   title   CRIMINAL   LAW. 

6.  Jurisdiction  not  aftected  by  state 
statute. — The  Lottawanna,  21  Wall.  558, 
22  L.  Ed.  654;  The  Steamer  St.  Lawrence, 
1  Black  522,  17  L.  Ed.  180;  Ex  parte  Gar- 
nett,  141  U.  S.  1,  35  L.  Ed.  631;  Steamboat 
New  York,  18  How.  223,  15  L.  Ed.  359; 
Butler  v.  Boston,  etc..  Steamship  Co.,  130 
U.  S.  527,  32  L.  Ed.  1017;  J.  E.  Rumbell, 
148  U.  S.  1,  37  L.  Ed.  345;  American 
Steamboat  Co.  v.  Chace,  16  Wall.  522.  531, 
21  L.  Ed.  369;  Watts  v.  Camors.  115  U. 
S.  353.  362,  29  L.  Ed.  406;  Workman  v. 
New  York,  179  U.  S.  552.  562,  45  L.  Ed. 
314. 

The  statutes  of  a  state  have  no  binding 
force  in  an  admiralty  case.  The  rule  for 
the  decision  of  the  federal  courts  is  de- 
rived from  the  general  admiralty  law. 
Steamboat  New  York,  18  How.  223,  15 
L.     Ed.    359. 

State  legislatures  have  no  authority  to 
create  a  maritime  lien,  nor  can  they  con- 
fer any  jurisdiction  upon  a  state  court 
to  enforce  such  a  lien  by  a  suit  or  pro- 
ceeding in  rem.  as  practised  in  the  ad- 
miraly  courts.  The  Belfast,  7  Wall.  624, 
644.  19  L.  Ed.  266;  Edwards  v.  Elliott,  21 
Wall.    532.    556,    22    L.    Ed.    487. 

7.  Jurisdiction  not  affected  by  rules  of 
court. — The  Steamer  St.  Lawrence,  1 
Black  522,  17  L.  Ed.  180;  The  Lotta- 
wanna,  21   Wall.    558,    22    L.    Ed.    654. 

8.  Jurisdiction  concurrent  on  some  sub- 
jects.— Tavlor  :■.  Carrvl,  20  How.  583.  15 
L.  Ed.  1028.     See  the 'title  COURTS. 

'The  common-law  courts  exercise  a 
concurrent  jurisdiction  in  nearly  all  the 
cases  of  admiralty  cognizance,  whether 
of  tort  or  contract  (with  the  exception  of 
proceedings  in  rem)."  New  Jersey  Steam 
Nav.  Co.  V.  Merchants'  Bank,  6  How.  344. 
390,    12    L.    Ed.    465. 

The  courts  of  common  law  deal  with 
ships  or  vessels  as  with  other  personal 
property.  Tavlor  v.  Carryl,  20  How.  583, 
5S4,    15    L.    Ed.    1028. 


It  can  only  be  in  those  cases  where, 
previous  to  the  constitution,  state  tribu- 
nals possessed  jurisdiction,  independent 
of  national  authority,  that  they  can  now 
constitutionally  exercise  a  concurrent 
jurisdiction.  Martin  v.  Hunter.  1  Wheat. 
304,   337,   4    L.    Ed.   97. 

9.  Admiralty  jurisdiction  not  affected  by 
concurrent  jurisdiction  at  common  law. — 
Waring  v.  Clarke,  5  How.  441,  12  L.  Ed. 
226;  The  Brig  Hope,  10  Pet.  108,  9  L. 
Ed.   363. 

10.  Power  of  state  over  territory  within 
admiralty  jurisdiction. — United  States  v. 
Bevans.  3  Wheat.  336,  4  L.  Ed.  404; 
Smith  z'.  Maryland,  18  How.  71.  15  L. 
Ed.  269;  Manchester  v.  Massachusetts, 
139  U.  S.  240,  259,  35  L.  Ed.  159;  Mc- 
Cready  v.  Virginia,  94  U.  S.  391,  397.  24 
L.  Ed.  248.  See  the  titl^  NAVIGABLE 
WATERS. 

Congress  may  pass  all  laws  which  are 
necessary  for  giving  the  most  complete 
effect  to  the  exercise  of  the  admiralty 
and  maritime  jurisdiction  granted  to  the 
government  of  the  Union;  but  the  gen- 
eral jurisdiction  over  the  place,  subject 
to  this  grant,  adheres  to  the  territory,  as 
a  portion  of  territory  not  yet  given  away; 
and  the  residuary  powers  of  legislation 
still  remain  in  this  state.  United  States 
V.  Bevans.  3  Wheat.  336,  4  L.  Ed.  404; 
Smith  V.  Maryland,  18  How.  71,  15  L. 
Ed.    269. 

A  state  has  a  right  to  protect  its  fish- 
eries by  making  it  unlawful  to  take  or 
catch  oysters  with  a  scoop  or  drag,  and 
to  inflict  the  penalty  of  forfeiture  upon 
the  vessel  employed  in  this  pursuit.  Such 
a  law  is  not  repugnant  to  the  constitution 
as  interfering  with  the  admiralty  and 
maritime  jurisdiction  of  the  judicial 
power  of  the  United  States.  Smith  v. 
Maryland,  18  How.  71,  15  L.  Ed.  269. 
See.  generallv,  the  title  FISH  AND 
FISHERIES;    OYSTERS. 

"The  admiralty  jurisdiction  under  our 
system  can  only  be  exercised  under  the 
laws  of  the  L^nited  States."  Janney  v. 
Columbian  Ins.  Co..  10  Wheat.  411,  6  L. 
Ed.    35i. 


128 


ADMIRALTY. 


b.  Saving  of  Common-Law  Remedy — (1)  Statement  of  Samng  Clause. — The 
judiciary  act. of  1789  which  confers  admiralty  jurisdiction  on  the  courts  of  the 
United  States,  expressly  saves  to  suitors,  in  all  cases,  the  right  of  a  common- 
law  remedy,  where  the  common  law  is  competent  to  give  it.^^ 

(2)  Construction  and  Operation  of  Saving  Clause. —  (a)  In  General. — The 
meaning  of  the  clause  of  the  ninth  section  of  the  judiciary  act  of  1789,  saving 
to  suitors,  in  all  cases,  a  common-law  remedy  when  the  common  law  is  com- 
petent to  give  it,  is,  that  in  cases  of  concurrent  jurisdiction  in  admiralty  and  at 
common  law  the  jurisdiction  in  the  latter  is  not  taken  away.^^  Congress  in- 
tended by  the  provision  to  allow  a  party  to  seek  redress  in  the  admiralty  if  he 
saw  fit  to  do  so,  but  not  to  make  it  compulsory  in  any  case  where  the  common 
law  is  competent  to  give  him  a  remedy. ^•'^ 

(b)  What  Remedies  Are  Saved — aa.  Meaning  of  Common-Latv  Remedy. — » 
The  clause  of  the  statute  in  question  only  saves  to  suitors  "the  right  of  a  com- 
mon-law remedy,  where  the  common  law  is  competent  to  give  it."  It  is  not  a 
remedy  in  the  common-law  courts  which  is  saved,  but  a  common-law  remedy. ^^ 

bb.  Proceedings  in  Personam — (aa)  In  General. — When -a  suit  is  in  personam 
against  the  owner,  the  party  seeking  redress  may  proceed  by  libel  in  the  district 
court,  or  he  may,  at  his  election,  proceed  in  an  action  at  law,  either  in  the  cir- 
cuit court,  if  he  and  the  defendant  are  citizens  of  dififerent  states,  or  in  a  state 
court,    as  in    other  cases    of  actions    cognizable  in    the  state    and    federal    courts 


11.  Saving  clause  stated. — 1  Stat,  at  L. 
73,  §  9;  Rev.  vStat.  §  .563;  U.  S.  Comp. 
Stat.  1901,  p.  457;  Waring  v.  Clarke,  5 
How.  441.  12  L.  Ed.  226;  New  Jersey 
Steam  Nav.  Co.  v.  Merchants'  Bank,  6 
How.  344,  390,  12  L.  Ed.  465;  The  Moses 
Taylor  v.  Hammons,  4  Wall.  411,  431,  18 
L.  Ed.  397;  The  Hine  v.  Trevor.  4  Wall. 
555,  571,  18  L.  Ed.  451;  The  Belfast,  7 
Wall.  624.  644,  19  L.  Ed.  266;  Leon  v. 
Galceran,  11  Wall.  185,  188,  20  L.  Ed.  74; 
American  Steamboat  Co.  v.  Chase,  16 
Wall.  522,  21  L.  Ed.  369;  Schoonmaker  v. 
Gilmer,  102  U.  S.  118,  26  L.  Ed.  95;  Chap- 
pell  V.  Bradshaw,  128  U.  S.  132,  32  L. 
Ed.  369;  Moran  v.  Sturges,  154  U.  S.  256, 
38  L.  Ed.  981;  The  Glide.  167  U.  S.  606, 
42  L.  Ed.  296;  Perry  v.  Haines,  191  U.  S. 
17,  48  L.  Ed.  73;  Taylor  v.  Carryl,  20 
How.  583,  15  L.  Ed.  1028;  Knapp,  etc.,  Co. 
V.  McCaffrey.  177  U.  S.  638,  44  L.  Ed. 
921;  The  Atlas,  93  U.  S.  302.  316.  23  L. 
Ed.    863.  I 

12.  Common-law  jurisdiction  not  de- 
stroyed.-— Waring  v.  Clarke.  5  How. 
441,  12  L.  Ed.  226;  New  Jersey  Steam 
Nav.  Co.  V.  Merchants'  Bank,  6  How.  344, 
390,    12    L.    Ed.    465. 

13.  Resort  to  admiralty  not  compulsory. 

— Properly  construed  a  party  under  that 
provision  may  proceed  in  rem  in  the 
admiralty,  if  a  maritime  lien  arises,  or  he 
may  bring  a  suit  in  personam  in  the  same 
jurisdiction,  or  he  may  elect  not  to  go 
into  admiralty  at  all,  and  may  resort  to 
his  common-law  remedy  in  the  state 
courts,  or  in  the  circuit  courts  of  the 
United  States  if  he  can  make  proper  par 
ties  to  give  the  circuit  court  jurisdiction 
of  his  case.  Leon  v.  Galceran,  11  Wall. 
185,   188,  20   L.   Ed.   74;   American   Steam 


boat  Co.  V.  Chase,  16  Wall.  522.  534,  21 
L.    Ed.    369. 

14.  Meaning  of  common-law  remedy. — 

The  Moses  Taylor  t'.  Hammons,  4  Wall. 
411,  431,  18  L.  Ed.  397;  Moran  v.  Sturges, 
154  U.  S.  256.  38  L.  Ed.  981;  Knapp,  etc.. 
Co.  V.  McCaffrey,  177  U.  S.  638,  44  L.  Ed. 
921. 

The  reservation  is  not  of  an  action  at 
common  law,  but  of  a  common-law 
remedy;  and  a  remedy  does  not  neces- 
sarily imply  an  action.  A  remedy  is 
defined  by  Bouvier  as  "the  means  em- 
ployed to  enforce  a  right,  or  redress  an 
injury."  While,  as  stated  by  him, 
remedies  for  nonfulfillment  of  contracts 
are  generally  by  action,  they  are  by  no 
means  universally  so.  Thus,  a  landlord 
has  at  common  law  a  remedy  by  distress 
for  his  rent — a  right  also  given  to  him 
for  the  purpose  of  exacting  compensation 
for  damages  resulting  from  the  trespass 
of  cattle.  A  bailee  of  property  has  a 
remedy  for  work  done  upon  such  prop- 
erty, or  for  expenses  incurred  in  keening 
it,  by  detention  of  possession.  An  inn- 
keeper has  a  similar  remedy  upon  the 
goods  of  his  guests  to  the  amount  of  his 
charges  for  their  entertainment;  and  a 
carrier  has  a  like  lien  upon  the  thing  car- 
ried. There  is  also  a  common-law  remedy 
for  nuisances  by  abatement;  a  right  upon 
the  part  of  a  person  assaulted  to  resist 
the  assailant  even  to  his  death;  a  right 
of  recaption  of  goods  stolen  or  unlaw- 
fully taken,  and  a  public  right  agninst 
disturbers  of  the  peace  by  compelling 
them  to  give  sureties  for  their  rood 
behavior.  All  these  remedies  are  inde- 
pendent of  an  action.  Knapp.  etc., 
Co.  V.  McCaffrey.  177  U.  S.  638,  44  L.  Ed. 
921. 


ADMIRALTY. 


129 


exercising  jurisdiction  in  common-law  cases,  as  provided  in  the  eleventh  section 
of  the  judiciary  act.^-^ 

(bb)  Actions  on  Contract. — Any  action  which  the  common  law  gives  for 
obtaining  a  judgment  in  personam  against  a  party  liable  on  a  marine  contract  is 
saved  by  the  clause  in  question. i«  Thus,  the  state  courts  have  a  right  to  enter- 
tain a  suit  for  the  seizure  and  sale  of  the  interest  of  any  owner,  or  part  owner, 
in  a  vessel,  by  attachment  or  by  general  execution,  when  the  proceeding  is  a 
personal  action  against  such  owner,  to  recover  a  debt  for  which  he  is  personally 
liable,!'  and  a  suit  for  mariners'  wages  in  personam  is  also  maintainable  at  com- 
mon law.!^ 

(cc)  Actions  for  Damages  for  Tort. — An  action  which  the  common  law  gives 
for  obtaining  a  judgment  in  personam  against  a  party  liable  on  a  marine  tort 
is  saved  by  the  clause  of  the  judiciary  act  saving  to  suitors  the  right  of  a  com- 
mon-law remedy  in  all  cases  where  the  common  law  is  competent  to  give  it.^^ 
The  right  to  bring  a  common-law  action  JPor  seizures  on  navigable  waters, ^o  for 
damages  by  collision  at  sea,2i  and  for  damages  to  a  vessel  by  fire  resulting  from 
negligence,-"  is  saved  by  the  judiciary  act. 

(dd)  Suits  in  Equity.- — A  suit  in  ecjuity  to  enforce  a  common-law  remedy  is 
saved  to  the  state  courts. -•'^ 

(ee)  Proceedings  in  Personam  ztnth  Ancillary  Attaclinient. — If  the  suit  be  in 
personam  against  an  individual  defendant,  with  an  ancillary  attachment  against 
a  particular  thing,  or  against  the  property  of  the  defendant  in  general,  it  is 
essentially  a  proceeding  according  to  the  course  of  the  common  law,  and  within 
the  saving  clause  of  the  statute. ^■i     And  a  bond  given  to  relieve  the  property  or 


15.  Actions  in  personam. — The  Belfast, 
7  Wall.  624.  644.  19  L.  Ed.  266;  The 
Moses  Taylor  z'.  Hammons,  4  Wall.  411, 
18  L.  Ed.  397;  The  Hine  v.  Trevor,  4 
Wall.  555,  18  L.  Ed.  451;  American  Steam- 
boat Co.  V.  Chace,  16  Wall.  522,  53P..  21 
L.  Ed.  369;  Leon  v.  Galceran,  11  Wall. 
185,   191.  20   L.    Ed.   74. 

The  common  law  is  as  competent  as 
the  admiralty  to  give  a  remedy  in  all 
cases  where  the  suit  is  in  personam 
against  the  owner  of  the  property.  Leon 
V.  Galceran,  11  Wall.  185,  191,  20  L. 
Ed.    74. 

16.  Actions  on  contract. — The  Hine  v. 
Trevor,  4  Wall.  555,  556.  18  L-  Ed.  451; 
Leon  V.  Galceran.  11  Wall.  185,  20  L.  Ed. 
74;  Manchester  z/.  Massachusetts,  139  U. 
S.  240,  262,  35  L.  Ed.  159;  New  Jersey 
Steam  Nav.  Co.  v.  Merchants'  Bank,  6 
How.   344,   390,    12    L.    Ed.   465. 

17.  Seizure  and  sale  of  vessel  in  action 
against  owner  for  debt. — The  Hine  v. 
Trevor,  4  Wall.  555,  556.  18  L.  Ed.  451. 

18.  Suit  for  mariners'  wages. — Leon  v. 
Galceran.  11  Wall.  185,  20  L.  Ed.  74. 
See,  generally,   the   title   SEAMEN. 

19.  Actions  for  marine  tort.^ — The  Hine 
V.  Trevor,  4  Wall.  555.  556,  18  L.  Ed.  451; 
Manchester  z'.  Massachusetts,  139  U.  S. 
240,  262.  35  L.  Ed.  159;  New  Jersey 
Steam  Nav.  Co.  v.  Merchants'  Bank,  6 
How.    344,    396,    12    L.    Ed.    465. 

Death  by  wrongful  act. — As  to 
remedy  for  death  by  wrongful  act,  see 
post.  "Action  for  Death  by  Wrongful 
Act."  L  A,  2,  (2),  (b),  bb,   (m,  bbb. 

20.  Seizi'res  on  navigable  waters. — 
United    States    v.    Ames,   99    U.    S.    35,   42, 

1  U  S  Ktie— 9 


25    L.    Ed.    295;    Slocum    v.    Mavberry,    2 
Wheat.   1,  4  L.  Ed.  169. 

21.  Actions  for  collision. — Schoon- 
maker  v.  Gilmore,  102  U.  S.  118,  26  L- 
Ed.  95,  citiPT  the  Moses  Taylor  v.  Ham- 
n-ons,  4  Wall.  411,  477,  18  L.  Ed. 
3f)7;  The  Hine  v.  Trevor.  4  Wall. 
555,  18  L.  Ed.  451;  The  Belfast,  7  Wall. 
624.  19  L.  Ed.  266;  Leon  v.  Galveran,  11 
Wall.  185,  20  L.  Ed.  74;  American  Steam- 
boat Co.  z'.  Chace,  16  Wall.  522,  21  L.  Ed. 
369. 

22.  Actions  for  damage  to  vessel  by 
fire. — An  action  for  trespass  on  the  case 
for  damages  by  fire  to  a  schooner  re- 
-sulting  from  the  negligence  of  the  de- 
fendant's servants  in  cutting  a  burning 
scow  loose  from  a  wharf  and  allowing  it 
to  drift  against  the  schooner  is  a  common- 
law  action  within  the  provision  of  the 
9th  section  of  the  judiciary  act  of  1879 
as  embodied  in  §  563,  Rev.  Stat,  "saving 
to  suitors  in  all  cases  the  right  of  a 
common-law  remedy  where  the  common 
law  is  competent  to  give  it."  Chappel  v. 
Bradshaw,   128  U.   S.  132,  32   L.   Ed.  369. 

23.  Suits  in  equity. — Knapp,  etc.,  Co.  v. 
McCaffrey,    177    U.    S.    638.    44   L.    Ed.    921. 

A  suit  in  equity  to  enforce  a  possessory 
towage  lien  upon  a  raft  of  timber  is  a 
common-law  remedy  saved  by  the  sav- 
ing clause  of  the  judiciary  act.  Knapp, 
etc.,  Co.  V.  McCaffrey,  177  U.  S.  638,  44 
L.    Ed.    921. 

24.  Proceedings  in  personam  with  an- 
cillary attachment. — Knapp,  etc.,  Co.  v. 
McCaffrey,  177  U.  S.  638.  44  L.  Ed.  921; 
Johnson  z'.  Chicago,  etc..  Elevator  Co., 
119  U.  S.  388,  30  L.  Ed.  447;   Leon  t;.  Gal- 


130 


ADMIRALTY. 


vessel  so  sequestered  or  attached  is  properly  sued  on  in  a  state  court. ^^ 

(ff)  Statutory  Remedies — aaa.  In  General. — The  saving  clause  is  not  limited 
to  such  causes  of  action  as  were  known  to  the  common  law  at  the  time  of  the 
passage  of  the  judiciary  act.^^'  But,  on  the  other  hand,  it  could  not  have  been 
the  intention  of  congress,  by  the  exception  in  that  section,  to  give  the  suitor  all 
such  remedies  as  might  afterwards  be  enacted  by  state  statutes,  for  this  would 
have  enabled  the  states  to  make  the  jurisdiction  of  their  courts  concurrent  in 
all  cases,  by  simply  providing  a  statutory  remedy  for  all  cases,  and  thus  de- 
feat the  exclusive  jurisdiction  of  the  federal  courts.-^ 

bbb.  Action  for  Death  by  Wrongful  Act. — A  statute  of  a  state  giving  to 
the  next  of  kin  of  a  person  killed  an  action  on  the  case  for  damages  for  the 
injury  caused  by  death,  does  not  interfere  with  the  admiralty  jurisdiction  and  is 
within  the  saving  clause  although  no  such  remedy  enforceable  though  the 
admiralty  existed  when  the  act  was  passed,  or  has  existed  since. ^^ 

cc.  Proceedings  in  Rem. — The  clause  saving  to  suitors  the  right  of  a  com- 
mon-law remedy,  where  the  common  law  is  competent  to  give  it,  does  not 
save  a  remedy  by  proceeding  in  rem  as  used  in  the  admiralty  courts,  as  such  a 
proceedeing  is  not  a  remedy  atTcrded  by  the  common  law ;  it  is  a  proceed- 
ing under  the  civil  law,  and  when  used  in  the  common-law  courts,  it  is  given 
by  statute. 29  If  the  cause  of  action  be  one  cognizable  in  admiralty,  and  the 
suit  be  in  rem  against  the  thing  itself,  though  a  monition  be  also  issued  to  the 


ceran,  11  Wall.  185,  20  L.  Ed.  74;  The 
Hine  v.  Trevor,  4  Wall.  555,  18  L.  Ed. 
451;  The  Belfast,  7  Wall.  624.  19  L.  Ed. 
266;  The  Propeller  Genesee  Chief  v.  Fitz- 
hugh.  12  How.  443,  13  L.  Ed.  1058;  Jack- 
son V.  Steamboat  Magnolia,  20  How.  296, 
15  L.  Ed.  909;  Taylor  v.  Carryl,  20  How. 
583,  15  L.  Ed.  1028;  Pennywit  v.  Eaton, 
15   Wall.   380.   382.   21   L.    Ed.    72. 

It  is  no  objection  to  the  jurisdiction  of 
a  state  court  in  a  suit  in  personam  for 
mariners'  wages  that  the  process  of  se- 
questration or  attachment  has  been  used 
to  bring  the  vessel  on  which  the  services 
were  rendered  under  the  dominion  of  the 
court,  for  the  purpose  of  subjecting  it  to 
such  judgment  as  might  be  rendered  in 
the  cause.  Leon  v.  Galceran,  11  Wall. 
185,    20    L.    Ed.    74. 

25.  Action  on  attachment  bond. — Leon 
V.  Galceran.  11  Wall.  185,  20  L.  Ed.  74. 
See,  generally,  the  title  ATTACHMENT 
AND    GARNISHMENT. 

26.  Saving  not  limited  to  common-law 
remedies  known  at  time  of  passage  of 
judiciary  act. —  American  Steamboat  Co. 
V.  Chace,  16  Wall.  522.  21  L.  Ed.  369; 
Knapp,  etc.,  Co.  v.  McCaffrey,  177  U.  S. 
638.    44    L.    Ed.    921. 

27.  Saving  does  not  extend  to  all  statu- 
tory remedies. — The  Hine  v.  Trevor.  4 
Wall.    555,    571,    18    L.    Ed.    451. 

In  the  act  of  1845,  where  congress  does 
mean  this,  the  language  expresses  it 
clearly;  for  after  saving  to  the  parties,  in 
cases  arising  under  that  act,  a  right  of 
trial  by  jury,  and  the  right  to  a  concur- 
rent remedy  at  common  law,  where  it  is 
competent  to  give  it,  there  is  added,  "any 
concurrent  remedy  which  may  be  given 
by  the  state  laws  where  such  steamer  or 
other  vessel  is  employed."  The  Hine  v. 
Trevor,  4  Wall.  555,  571.  18  L.  Ed.  451. 


28.  Action  for  death  by  wrongful  act. 

— .American    Steamboat    Co.    v.    Chace,    16 
Wall.    522,    21    L.    Ed.    369. 

"Attempt  is  made  to  deny  the  right  to 
such  a  remedy  in  this  case,  upon  the 
ground  that  the  operation  of  th.e  saving 
clause  must  be  limited  to  such  causes  of 
action  as  were  known  to  the  common 
law  at  the  time  of  the  passage  of  the  ju- 
diciary act.  and  the  argument  is  that  the 
cause  of  action  alleged  was  not  known 
to  the  common  law  at  that  period,  which 
cannot  be  admitted,  as  actions  to  recover 
damages  for  personal  injuries  prosecuted 
in  the  name  of  the  injured  party  were 
well  known,  even  in  the  early  history  of 
the  common  law.  Such  actions,  it  must 
be  admitted,  did  not  ordinarily  survive, 
but  nearly  all  the  states  have  passed  laws 
to  prevent  such  a  failure  of  justice,  and 
the  validity  of  siich  laws  has  never  been 
much  cuestioned."  American  Steamboat 
Co.  v.  Chace,  16  Wall.  522,  533,  21  L.  Ed. 
369.  See,  generally,  the  title  DEATH 
BY  WRONGFUL  -\CT. 

29.  Proceedings  in  rem. — The  Moses 
Tavlor  z.  Hammons,  4  Wall.  411,  431, 
18 'L.  Ed.  397;  The  Glide,  167  U.  S.  606, 
42  L.  Ed.  296;  The  Belfast,  7  Wall.  624, 
625,  19  L.  Ed.  266;  J.  E.  Rumbell.  148  U. 
S.  1.  37  L.  Ed.  345;  The  Lottawanna,  21 
Wall.  558,  22  L.  Ed.  654;  The  Hine  v. 
Trevor.  4  Wall.  555,  18  L.  Ed.  451;  Ed- 
wards V.  Elliott,  21  Wall.  532,  557,  22  L. 
Ed.  487;  Norton  f.  Switzer.  93  U.  S.  355, 
366.  ^3  L.  Ed.  903;  United  States  t'.  Ames, 
99  U.  S.  35.  42.  25  L.  Ed.  295;  Leon  v. 
Galceran,  11  Wall.  185.  191,  20  L.  Ed.  74; 
Mornn  v.  Sturges,  154  U.  S.  256,  277,  38 
L.    Ed.    981. 

There  is  no  form  of  action  at  common 
law  which,  when  compared  with  proceed- 
ings  in   rem   in   the   admiralty   can   be   re- 


ADMIRALTY. 


131 


owner,  the  proceeding  is  essentially  one  in  admiralty  and  is  not  within  the 
saving  clause  of   the  judiciary  act.^^ 

3.  Jurisdiction  of  Suits  between  Foreigners— a.  Discretion  of  Court  as  to 
Assumption  of  Jurisdiction.— Where  the  subject  matter  of  an  action  is  within 
the  admiralty  jurisdiction,  the  fact  that  all  of  the  parties  to  the  proceedino' 
are  foreigners  will  not  prevent  it  from  taking  cognizance  of  the  cause.  In 
such  case  it  is  within  the  discretion  of  the  court  of  admiralty  to  take  or  re- 
fuse jurisdiction,-!  and,  as  a  general  rule,  it  will  assume  jurisdiction  unless 
circumstances  exist   which  render  the  assumption  of  jurisdiction  inexpedient.^2 

b.  Consent  of  Foreign  Consul  or  Representatvi/e.— While  jurisdiction  will 
not  be  assumed  as  a  general  rule  without  the  consent  of  the  representative 
of  the  country  to  which  the  vessel  belongs,  such  consent  is  not  a  condition  of 
jurisdiction,  but  is  only  regarded  as  a  material   fact  to  aid  the  court  in  deter- 


garded  as  a  concurrent  remedy.     The  Bel- 
fast,  7   Wall.   624,    644.   19   L.    Ed.   266. 

State  statutes  which  confer  upon  state 
courts  remedies  for  marine  torts  and  on 
marine  contracts  by  proceedings  strictly 
in  rem  are  void,  and  do  not  come  within 
the  saving  clause  of  the  ninth  section  of 
the  act  of  1789,  concerning  a  common- 
law  remedy.  The  Hine  z'.  Trevor,  4  Wall. 
555,  556,  18  L.  Ed.  451;  Perry  v.  Haines, 
191  U.  S.  17,  48  L.  Ed.  73;  The  Moses 
Taylor  v.  Hammons,  4  Wall.  411,  18  L. 
Ed.  597;  Knapp,  etc.  Co.  v.  McCaffrey, 
177  U.  S.  638,  44  L.  Ed.  921;  The  Winne- 
bako,  205  U.  S.  354,  363.  51  L.  Ed.  836; 
Edwards  v.  Elliott,  21  Wall.  532,  556,  22 
L.  Ed.  487;  The  Belfast,  7  Wall.  624,  644. 
19    L.    Ed.    266. 

Proceeding  in  rem  to  enforce  maritime 
lien. — The  saving  in  the  judiciary  act  does 
not  authorize  a  proceeding  in  rem,  to  en- 
force a  maritime  lien,  in  a  common-law 
court,  whether  state  or  federal.  Com- 
mon-law remedies  are  not  applicable  to 
-enforce  such  a  lien,  but  are  suits  in  per- 
sonam, though  such  suits,  under  special 
statutes,  may  be  commenced  by  attach- 
ment of  the  property  of  the  debtor.  The 
Belfast,  7  Wall.  624,  625,  19  L.  Ed.  266; 
Moran  v.  Sturges,  154  U.  S.  256, .  38  L. 
Ed.  981;  American  Steamboat  Co.  v. 
Chace,  16  Wall.  523,  534,  21  L.  Ed.  369; 
The  Hine  v.  Trevor,  4  Wall.  555.  18  L. 
Ed.  451;  The  GMe,  167  U.  S.  606,  42  L. 
Ed.  296.  See,  generally,  the  title  MARI- 
TIME  LIENS. 

30.  What  is  a  proceeding  in  rem. — 
Knapp,  etc.,  Co.  v.  McCaffrey,  177  U.  S. 
638.  44  L.  Ed.  921.  See,  ante,  "Proceed- 
ings in  Personam  with  Ancillary  Attach- 
ment," I,  A,  2,  b,   (2).  (b),  bb,   (ee). 

A  statute  which  provides  that  vessels 
may  be  sued  and  made  defendants  with- 
out any  proceediugs  against  the  owners, 
or  even  mentioning  their  names;  that  a 
writ  may  be  i.ssued  and  the  vessel  seized 
on  filing  of  a  petition  similar  in  sub- 
stance to  a  libel,  and  that  after  a  notice 
in  the  nature  of  a  monition  the  vessel 
may  be  condemned  and  an  order  made 
for  her  sale,  if  the  liability  is  established 
for  which  she  was  sued,  provides  a  rem- 
edy partaking  of  all  the  essential  features 


oi  an  admiralty  proceeding  in  rem,  and 
which  IS  in  no  sense  a  common-law  rem- 
edy within  the  saving  clause  of  the  ju- 
diciary act.  The  Hine  v.  Trevor,  4  Wall. 
555,  571,  18  L.  Ed.  451;  Perry  v.  Haines, 
191   U.   S.    17,   48   L.   Ed.   73. 

31.  Assumption  of  jurisdiction  within 
discretwn  of  court.— The  Maggie  Ham- 
mond, 9  Wall.  435,  19  L.  Ed.  772;  The 
Belgenland,  114  U.  S.  355,  29  L.  Ed.  152; 
Ex  parte  Newman,  14  Wall.  152,  168,  20 
L.  Ed.  877;  Panama  R.  Co.  v.  Napier 
Shipping  Co.,  166  U.  S.  280,  41  L-  Ed. 
1004;  The  Biaireau,  2  Cranch  240,  2  I* 
Ed.  266.  See.  also,  Taylor  v.  Carryl  20 
How.    583,    611,    15    L.    Ed.    10^8. 

Where  the  subjects  of  a  particular  na- 
tion invoke  the  aid  of  our  tribunals  to 
adjudicate  between  them  and  their  fel- 
low subjects,  as  to  matters  of  contract 
or  tort  solely  affecting  themselves  and 
determinable  by  their  own  laws,  such 
tribunals  will  exercise  their  discretion 
whether  to  take  cognizance  of  such  mat- 
ters or  not.  The  Belgenland,  114  U  S 
355,    365,    29    L.    Ed.    152. 

What  law  governs.— See  the  title  CON- 
FLICT OF  LAWS. 

32.  Jurisdiction  will  he  assumed  unless 
inexpedient.- Panama  R.  Co.  v.  Napier 
ShippinsT  Co.,  166  U.  S.  280.  41  L.  Ed. 
1004;  The  Maggie  Hammond,  9  Wall 
435,  19  L.  Ed.  772;  The  Belgenland  114 
U.  S.  355,  29  L.  Ed.  152;  Ex  parte  New- 
man. 14  WalL  153,  168,  20  L.  Ed.  877- 
The  Biaireau,  2  Cranch  240,  2  L.  Ed.  266! 
The  better  opinion  is  that  the  court 
will  take  cognizance  of  torts  to  which 
both  parties  are  foreigners;  at  least,  in 
the  absence  of  a  protest  from  a  foreign 
consul.  Panama  R.  Co.  v.  Napier  Ship- 
ping Co..  166  U.   S.  280,  41    L.   Ed.   1004. 

Circumstances  which  render  it  inex- 
pedient for  the  court  to  take  jurisdictioa 
of  controversies  between  foreigners  often 
exist  in  cases  not  arising  in  the  country 
of  the  forum;  as.  where  they  are  governed 
by  the  laws  of  the  country  to  which  the 
parties  belong,  and  there  is  no  difficulty 
in  a  resort  to  its  courts;  or  where  they 
have  agreed  to  resort  to  no  other  triba- 
nals.  The  Belgenland,  114  U  S  355 
363,    29    L.    Ed.    152. 


132 


ADMIRALTY. 


mining  the  question  of  discretion,  whether  jurisdiction  in  the  case  ought  or 
ought   not   to   be   exercised. ^^ 

c.  Jurisdiction  of  Particular  Suits  or  Actions. — A  suit  for  colHsion  on  the 
high  seas  between  two  foreign  vessels,^*  and  a  suit  upon  a  contract  between 
foreigners  for  shipment  between  foreign  coimtries  on  a  foreign  ship,^^  have 
been  held  to  be  within  the  admiralty  jurisdiction. 

4.  Waters  within  Jurisdiction — a.  Former  Rule — Waters  within  Bhb 
and  Flow  of  Tide.^—li  was  formerly  the  rule  that  in  cases  purely  dependent 
upon  the  locality  of  the  act  done,  admiralty  jurisdiction  was  limited  to  the  sea^ 
and  to  tidewaters  as  far  as  the  ti-de  flowed,  and  did  not  reach  beyond  high-water 
mark.36     j|-  ^g-S  held,  that  admiralty  jurisdiction  extended  to  tidewater  although 


33.  Consent  of  representative  of  for- 
eign government. — Ex  parte  Newman,  14 
Wall.  152.  168,  20  L.  Ed.  877;  The  Bel- 
genland,  114  U.   S.  355.  363,  29   L.   Ed.  152. 

Suits  by  foreign  seamen  for  wages  or 
because  of  illtreatment. — While  admiralty 
may  take  jiirisdiction  of  a  case  of  foreign 
seamen  suing  for  wages,  or  because  of 
illtreatment,  this  will  not  usually  be  done 
without  the  consent  of  the  foreign  con- 
sul, but  if  the  voyage  is  ended  or  the 
seamen  have  been  dismissed  or  treated 
with  great  cruelty  admiralty  will  enter- 
tain jurisdiction  even  against  the  protest 
of  the  consul.  Tbe  Belgenland,  114  U. 
S.    355,   363.   29    L.    Ed.    152. 

The  case  of  foreign  seamen  is  un- 
doubtedly a  special  one,  when  they  sue 
for  wages  under  a  contract  which  is  gen- 
erally strict  in  its  character,  and  framed 
according  to  the  laws  of  the  country  to 
which  the  ship  belongs;  framed  also  with 
a  view  to  secure,  in  accordance  with 
those  laws,  the  rights  and  interests  of 
the  ship  owners  as  well  as  those  of  mas- 
ter and  crew,  as  well  when  the  ship  is 
abroad  as  when  she  is  at  home.  Nor  is 
this  special  character  of  the  case  en- 
tirely absent  when  foreign  seamen  sue 
the  master  of  their  ship  for  illtreatment. 
On  general  principles  of  comity,  admi- 
ralty courts  of  other  countries  will  not 
interfere  between  the  parties  in  such 
cases  unless  there  is  special  reason  for 
doing  so,  and  will  require  the  foreign 
consul  to  be  notified  and,  though  not 
absolutely  bound  by,  will  always  pay  due 
respect  to,  his  wishes  as  to  taking  juris- 
diction. The  Belgenland.  114  U.  S.  355, 
364,    29    L.    Ed.    152. 

If  any  treaty  stipulations  exist  between 
the  United  States  and  the  country  to 
which  a  foreign  ship  belongs,  with  regard 
to  the  right  of  the  consul  of  that  coun- 
try to  adjudge  controversies  arising  be- 
tween the  master  and  crew,  or  other  mat- 
ters occurring  on  the  ship  exclusively 
subject  to  the  foreign  law,  such  stipula- 
tions should  be  fairly  and  faithfully  ob- 
served. The  Belgenland,  114  U.  S.  355, 
364.  29  L.  Ed.  152.  See,  generally,  the 
title    SEAMEN. 

34.  Collision  between  foreign  vessels. 
—The  Belgenland,  114  U.  S.  355.  29  L,. 
Ed.    lf^2. 


35.  Suit  for  breach  of  charter  party. — 

Upon  a  contract  between  foreigners  for 
shipments  between  foreign  countries,  as 
Scotland  and  Canada,  on  a  foreign  ship, 
where  the  master  abandons  the  voyage 
without  lawful  excuse,  improperly  enters 
into  a  new  contract  of  afifreightment  and 
proceeds  on  a  distant  voj^age,  leaving  the 
goods  at  a  foreign  port,  and  neither 
carrying  them  himself  to  the  port  of  des- 
tination, nor  seeking  to  forward  them  ia 
another  vessel,  a  court  of  admiralty  of 
the  United  States  has  jurisdiction  of  a 
proceeding  in  rem  by  the  owner.  The 
Maggie  Hammond.  9  Wall.  435,  19  L.  Ed. 
772.  See,  generally,  the  title  SHIPS 
AND   SHIPPING. 

36.  Waters  v^nthin  ebb  and  flow  of  tide. 
—Waring  v.  Clarke,  5  How.  441,  463,  13 
L.  Ed.  226;  United  States  v.  Coombs.  12 
Pet.  72,  9  L.  Ed.  1004;  The  Steamboat 
Planter.  7  Pet.  324,  8  L.  Ed.  700;  The 
Steamboat  Jefferson,  10  Wheat.  428.  6  L. 
Ed.  358;  New  Jersey  Steam  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  344,  391,  12  L. 
Ed.  465;  The  Steamboat  Orleans  r.  Phoe- 
bus, 11  Pet.  175,  9  L.  Ed.  677;  Railroad 
Co.  V.  Schurmeier,  7  Wall.  272.  208,  19  L. 
Ed.  74;  Packer  v.  Bird.  137  U.  S.  661.  671. 
34  L.  Ed.  819;  Illinois  Cent.  R.  Co.  v. 
Illinois,  146  U.  S.  487,  36  L.  Ed.  1018; 
Pollock  V.  Farmers'  Loan,  etc.,  Co.,  157 
U.  S.  429,  575.  39  L.  Ed.  759;  St.  Anthony 
Falls  Water  Power  Co.  v.  Commission- 
ers. 168  U.  S.  349.  361,  42  L.  Ed.  497; 
Scranton  v.  W^heeler,  179  U.  S.  141,  187, 
45    L.    Ed.    126. 

Admiralty  had  no  jurisdiction  over  a 
vessel  not  engaged  in  maritime  trade  and 
navigation,  though  on  her  voyages  she 
touched,  at  one  terminus  of  them,  in  tide- 
water, her  employment  having  been  sub- 
stantially on  other  waters.  The  true  test 
of  its  jurisdiction,  in  all  cases  of  this  sort, 
was,  whether  the  vessel  was  engaged, 
substantially,  in  maritime  navigation,  or 
in  interior  navigation  and  trade,  not  on 
tidewaters.  The  Steamboat  Orleans  v. 
Phoebus.  11  Pet.  175.  9  L.  Ed.  677;  New 
Jersey  Steam  Nav.  Co.  v.  Merchants'^ 
Bank,  6  How.  344,  391.  12  L.  Ed.  465; 
The  Steamboat  Tefferson.  10  Wheat.  428, 
6  L.  Ed.  358;  The  Steamboat  Planter.  7 
Pet.  324,  8  L.  Ed.  700;  Waring  v.  Clarke, 
5    How.    441,  463,   12   L.   Ed.   226. 


ADMIRALTY. 


133 


they  were  within  the  body  of  a  county  or  state. '^^ 

b.  Present  Rule — Navigable  Heaters — (1)  In  General. — The  old  rule  that 
admiralty  jurisdiction  was  limited  to  waters  within  the  ebb  and  flow  of  the  tide 
was  overruled  in  The  Propeller  Genesee  Chief  v.  Fitzhugh,  12  How.  443,  13  L. 
Ed.  1058.  and  the  rule  announced,  which  has  since  become  firmly  established, 
that  the  admiralty  and  maritime  jurisdiction  granted  to  the  federal  government 
by  the  constitution  of  the  United  States  is  not  limited  to  tidewater,  but  extends 
to  all  public  navigable  waters,  lakes  and  rivers.^^ 

(2)  Mode  of  Determining  Nazngability  of  Waters. — See  the  title  Navigable 
Waters. 

(3)  Canals. — The  only  distinction  between  canals  and  other  navigable  waters 
is  that  they  are  rendered  navigable  by  artificial  means,  and  sometimes  are  wholly 
within  the  limits  of  a  particular  state,  but  this  does  not  create  any  distinction 
in  principle  as  they  are  usually  constructed  to  connect  waters  navigable  by  nature, 

.and  to  avoid  the  portage  of  property  from  one  navigable  lake  or  river  to  another, 
or  to   improve  or  deepen  a  natural  channel,  and  are  usually  navigated  by  the 


Test  as  to  whether  waters  are  within 
ebb  and  flow  of  tide. — Under  this 
rule  it  was  held,  that  although  the  cur- 
rent at  a  particular  place  might  be  so 
strong  as  not  to  be  turned  backward  by 
the  tide,  yet  if  the  effect  of  the  tide  upon 
the  current  was  so  great  as  to  occasion  a 
regular  rise  and  fall  of  the  tide,  it  was 
■within  the  ebb  and  flow  of  the  tide. 
Peyroux  v.  Howard.  7  Pet.  324.  342,  8  L. 
Ed.  700;  Waring  v.  Clarke,  .5  How.  441, 
463.    12    L.    Ed.    226. 

38.  Tidewaters  within  body  of  county. 
— Waring  v.  Clarke,  5  How.  441.  463,  12 
L.    Ed.    226. 

39.  Navigable  Waters. — Ex  parte  Gar- 
nett,  141  U.  S.  1,  35  E.  Ed.  631;  Fretz  v. 
Bull.  12  How.  466,  13  L.  Ed.  1068;  Jack- 
son V.  Steamboat  Magnolia.  20  How.  296, 
15  L.  Ed.  909;  Nelson  z'.  Leland,  22  How. 
48,  16  L.  Ed.  269;  The  Steamboat  Com- 
merce, 1  Black  574,  17  L.  Ed.  107;  The 
Hine  v.  Trevor,  4  Wall.  555,  18  L.  Ed. 
451;  The  Belfast,  7  Wall.  624.  19  L.  Ed. 
266;  The  Eagle,  8  Wall.  15,  19  L.  Ed.  365; 
The  Montelio,  20  Wall.  430,  22  L.  Ed. 
391;- Ex  parte  Boyer.  109  U.  S.  629,  27  L. 
Ed.  1056;  United  States  v.  Rodgers,  150 
U.  S.  249.  37  L.  Ed.  1071;  Ex  parte  Eas- 
ton.  95  U.  S.  68.  72,  24  L.  Ed.  373;  Perry 
r.  Haines,  191  U.  S.  17,  48  L.  Ed.  73; 
Philadelphia,  etc.,  R.  Co.  v.  Philadelphia, 
etc.,  Towboat  Co.,  23  How.  209,  16  L. 
Ed.  433;  The  Propeller  Monticello  v. 
Mollison,  17  How.  153.  15  L.  Ed.  68;  The 
Steamboat  New  World  v.  King,  16  How. 
469,  14  L.  Ed.  1019;  Barney  v.  Keokuk,  94 
U.  S.  324.  24  L.  Ed.  224;  W^alsh  v.  Rodg- 
ers. 13  How.  283,  14  L.  Ed.  147;  Ure  v. 
Coffman,  19  How.  56,  15  L.  Ed.  567;  New 
York,  etc..  Steamship  Co.  v.  Calderwood, 
19  How.  241.  245,  15  L.  Ed.  612;  Butler 
V.  Boston,  etc..  Steamship  Co..  130  U.  S. 
527,  556,  32  L.  Ed.  1017;  Illinois  Cent.  R. 
Co.  v.  Illinois,  146  U.  S.  487,  36  L.  Ed. 
1018;  Packer  r.  Bird.  137  U.  S.  661.  671, 
34  L.  Ed.  819;  Railroad  Co.  v.  Schurmeier, 
7  Wall.  272,  288.  19  L.  Ed.  74;  St.  .A.n- 
thony    Falls    Water    Power    Co.    v.    Com- 


missioners, 168  U.  S.  349,  361,  42  L.  Ed. 
497;  Shively  v.  Bowlby,  152  U.  S.  1.  34, 
38  L.  Ed.  331;  Pollock  v.  Farmers'  Loan' 
etc..  Co.,  157  U.  S.  429,  575,  39  L.  Ed.  759; 
Scranton  v.  Wheeler,  179  U.  S.  141,  187, 
45     L.    Ed.    126. 

Effect  of  act  of  1845.— The  act  of  con- 
gress passed  on  the  26th  of  February 
184o  (5  Stat,  at  L..  726),  extending  the 
jurisdiction  of  the  district  courts  to  cer- 
tain cases  upon  the  lakes,  and  navigable 
waters  connecting  the  same,  is  consistent 
with  the  constitution  of  the  United  States. 
The  Propeller  Genesee  Chief  v.  Fitzhugh, 
12   How.   443,   13   L.   Ed.   1058. 

But  the  district  courts  exercise  juris- 
diction over  fresh  water  rivers  "navigable 
from  the  sea,"  by  virtue  of  the  judiciary 
act  of  1789,  and  not  as  conferred  by  the 
act  of  1845.  which  extends  their  jurisdic- 
tion to  the  great  lakes  and  waters  "not 
navigable  from  the  sea."  Jackson  v. 
Steamboat  Magnolia,  20  How.  296,  15  L- 
Ed.  909.  The  grant  of  admiraltj^  powers 
to  the  district  courts  of  the  United  States, 
by  the  ninth  section  of  the  act  of  Sep- 
tember 24th,  1789,  is  coextensive  with 
this  grant  in  the  constitution,  as  to  the 
character  of  the  waters  over  which  it  ex- 
tends. The  Hine  v.  Trevor,  4  Wall.  555, 
18    L.    Ed.   451. 

Power  to  confer  jurisdiction  over  great 
lakes  not  dependent  on  power  to  regu- 
late commerce. — The  power  of  congress 
to  confer  jurisdiction  upon  the  district 
courts  over  the  great  lakes  and  navigable 
waters  connecting  the  same  does  not  rest 
upon  the  power  granted  to  congress  to 
regulate  commerce.  But  it  rests  upon 
the  ground  that  the  lakes  and  navigable 
waters  connecting  them  are  within  the 
scope  of  admiralty  and  maritime  jurisdic- 
tion, as  known  and  understood  in  the 
United  States,  when  the  constitution  was 
adopted.  The  Propeller  Genesee  Chief 
V.  Fitzhugh,  12  How.  443,  13  L.  Ed.  1058. 
See.  also,  United  States  v.  Rodgers,  150 
U.    S.   249,   257,   37    L.    Ed.    1071. 


r34  ADMIRALTY. 

same  vessels  which  ply  between  the  naturally  navigable  waters  at  either  end  of 
the  canal  and  they  are  therefore  within  the  admiralty  jurisdiction.-*'-* 

(4)  Rivci'S. — Navigable  rivers,  which  empty  into  the  sea,  or  into  the  bays  and 
gulfs  which  form  a  part  of  the  sea,  are  but  arms  of  the  sea,  and  are  as  much 
within  the  admiralty  and  maritime  jurisdiction  of  the  United  States  as  the  sea 
itself.^  1 

(5)  Waters  zvithin  Body  of  County  or  State. — The  jurisdiction  of  courts  of 
admiralty  in  torts  depends  entirely  on  locality,  and  it  extends  to  places  within 
the  body  of  a  county  or  state.-* ^ 

c.  Foreign  Navigable  Waters. — The  fact  that  the  cause  of  action  arose  in  the 
waters  of  a  foreign  port  is  immaterial,  as  the  law  is  entirely  well  settled,  both 
in  England  and  in  this  country,  that  torts  originating  within  the  waters  of  a 
foreign  power  may  be  the  subject  of  a  suit  in  a  domestic  court.'*^ 

5.  Vessels  or  Property  within  Jurisdiction — a.  l^essels — (1)  Character 
of  Vessel — (a)  Vessels  Propelled  by  Oars. — The  modern  law  of  England  and 
America  rules  out  of  the  admiralty  jurisdiction  all  vessels  propelled  by  oars^ 
simply  because  they  are  the  smallest  class  and  beneath  the  dignity  of  a  court  of 
admiralty.-*'* 

(b)  Canal  Boats. — Canal  boats,  drawn  by  horses,  are  ships  or  vessels  within 
the  meaning  of  tlie  admiralty  law   and  are  within  the  admiralty  jurisdiction.^^ 

(c)  Government  J'^cssels — aa.  J'essels  of  United  States. — A  claim  for  dam- 
ages exists  against  a  vessel  of  the  United  States  guilty  of  a  maritime  tort,  as  much 
as  if  the  otfending  vessel  belonged  to  a  private  citizen.  And  although,  for  rea- 
sons of  public  policy,  the  claim  cannot  be  enforced  by  direct  proceedings  against 
the  vessel,  yet  it  will  be  enforced,  by  the  courts,  whenever  the  property  itself, 
upon  which  the  claim  exists,  becomes,  through  the  afifirmative  action  of  the 
United  States,  subject  to  their  jurisdiction  and  control.  The  government,  in  such 
a  case,  stands,  with  reference  to  the  rights  of  the  defendants  or  claimants,  as 

40.  Canals.— Perry  v.  Haines,  191  U.  tion,  see  the  title  NAVIGABLE 
S.   17.   48   L.   Ed.  73;   Ex  parte   Boyer,   109       WATERS. 

U.    S.   629,  27   L.   Ed.   1056.  42.     Waters    -within    body    of    county    or 

Erie    Canal.— The    Erie    Canal,    though  state.— Philadelphia,   etc..   R.   Co.  v.  Phila- 

wholly  within   the   state   of   New   York,  is  delphia,   etc..   Towboat   Co.,   23   How.   209. 

a    great    highway    of    commerce    between  16   L.   Ed.  433;  Waring  v.  Clarke,  5  How. 

ports  in  different  states  and  foreign  coun-  441,  12  L.   Ed.  226;  Jackson  v.   Steamboat 

tries,    and   is    navigated   by   vessels    which  Magnolia,    20    How.    296.    299,    15    L.    Ed. 

also  traverse  the  waters   of   Hudson   river  909;    The    Steamboat    Commerce,    1    Black 

from  the  head  of  navigation  to  its  mouth,  574.    17   L.    Ed.   107;    Ex  parte   Boyer,    109 

and    is    within    the    admiralty   jurisdiction.  U.  S.  629,  27  L.   Ed.   1056;   Montgomery  r. 

Perry    v.    Haines,    191    U.    S.     17,     48      L.  Henry,   1   Dall.  49,   1   L.   Ed.  32;   American 

Ed.   73.  Steamboat    Co.    f.    Chace,    16    Wall.    522. 

Illinois  and  Michigan  canal.— The  Illi-  529,  21  L.  Ed.  369. 
nois  and  Michigan  canal,  an  artificial  "Remedies  for  marine  torts,  it  is  con- 
navigable  water  way.  96  miles  long,  60  ceded,  may  be  prosecuted  in  the  ad- 
feet  wide  and  6  feet  deep,  connecting  miralty  courts,  even  though  the  wrongful 
Lake  Michigan  and  the  Chicago  river  act  was  committed  on  navigable  waters 
with  the  Illinois  river  and  the  Mississippi  within  the  body  of  a  county."  American 
river  is  a  public  water  of  the  United  Steamboat  Co.  v.  Chace,  16  Wall.  522. 
States    and    within    the    legitimate    scope  529,   21    L.    Ed.   369. 

of   the   admiralty  jurisdiction,   although   it  43.    Foreign  navigable  waters. — Panama 

is  wholly  within   the  body   of  a  state   and  R.   Co.  ?'.   Napier   Shipping   Co.,   166  U.   S. 

subject    to    its     ownership      and      control.  280,    41    L.    Ed.    1004,    distinguishing    The 

Ex  parte   Boyer,  109  U.   S.   629,  27   L-   Ed.  Steamboat   Commerce,   1   Black  574,  17  L. 

1056.  Ed.    107. 

41.  Rivers. — The  Belfast.  7  Wall.  624,  44.  Vessels  propelled  by  oars. — Perry 
640,  19  L.  Ed.  266;  Nelson  v.  Leland.  22  v.  Haine-.  191  U.  S.  17,  48  L.  Ed.  73. 
How.  48,  56,  16  L.  Ed.  2669;  Montgomery  45.  Canal  boats. — Perry  v.  Haines,  191 
V.  Henry,  1  Dall.  49,  1  L.  Ed.  32;  New  U.  S.  17.  4R  L.  Ed.  73;  Ex  parte  Boyer, 
York,  etc..  Steamship  Co.  v.  Calderwood,  109  U.  S.  629,  27  L.  Ed.  1056.  See,  also. 
19   How.   241.   15   L.   Ed.  612.  The    Quickstep,    9    Wall.    665,    19    L.    Ed. 

As    to    what    rivers    are    navigable    and       767. 
therefore    within    the    admiralty    jurisdic-  Admiralty    has    jurisdiction    in    case    of 


ADMIRALTY. 


135 


do  private  suitors,  except  that  it  is  exempt  from  costs,  and  from  affirmative  re- 
lief against  it,  beyond  the  demand  or  property  in  controversy.^*^ 

bb,  Foreign  Warships. — A  public  vessel  of  war  of  a  foreign  sovereign  at 
peace  with  the  United  States,  coming  into  our  ports,  and  demeaning  herself  in 
a  friendly  manner,  is  exempt   from  the  jurisdiction  of  the  country.-*" 

(2)  Xeccssity  for  Vessel  to  Be  Engaged  in  Foreign  or  Interstate  Commerce 
— (a)  Former  'Rule. — It  was  held,  in  several  early  cases,  that,  under  the  act  of 
congress  of  1845,  extending  jurisdiction  of  the  federal  courts  to  the  vessels  en- 
gaged in  navigation  upon  the  Great  Lakes  and  waters  connecting  them  between 
ports  and  places  in  the  different  states,  the  admiralty  jurisdiction  did  not  extend 
to  vessels  engaged  in  commerce  between  ports  in  the  same  states.-*** 

(b)  Present  Rule. — But  it  is  now  well  settled  that  the  admiralty  jurisdiction 
does  not  depend  in  any  case  upon  the  question  of  foreign  or  interstate  commerce. 
If  vessels  are  engaged  upon  navigable  waters  of  the  United  States,  the  fact  that 
they  are  engaged  wholly  in  commerce  between  ports  in  the  same  state  does  not 
defeat  the  jurisdiction  of  courts  of  admiralty.*^     Thus,  the  admiralty  jurisdic- 


a  collision  between  canal  boats  of  more 
than  twenty  tons  burden  engaged  in  com- 
merce upon  the  Illinois  &  Michigan  canal. 
Ex  parte  Boyer,  109  U.  S.  629,  27  L.  Ed. 
1056. 

46.  Vessels  of  United  States.— The 
Siren,  7  Wall.   152.  19  L.  Ed.  129. 

A  prize  ship,  in  charge  of  a  prize  mas- 
ter and  crew,  on  her  way  from  the  place 
of  capture  to  the  port  of  adjudication, 
committed  a  maritime  tort  by  running 
into  and  sinking  another  vessel.  Upon 
the  libel  of  the  government,  the  ship  was 
condemned  as  lawful  prize,  and  sold,  and 
the  proceeds  paid  into  the  registry.  The 
owners  of  the  sunken  vessel,  and  the 
owners  of  her  cargo,  thereupon  inter- 
vened by  petition,  asserting  a  claim  upon 
the  proceeds  for  the  damages  sustained 
by  the  collision.  Held,  that  they  were 
entitled  to  have  their  damages  assessed 
and  paid  out  of  the  proceeds  before  dis- 
tribiUion  to  the  captors.  The  Siren,  7 
Wall.  152.  19  L.  Ed.  129.  See,  generally, 
Ihe    title    PRIZE. 

47.  Foreign  warships. — The  Schooner 
Exchange,    7    Cranch    116,    3    L.    Ed.   287. 

48.  Former  rule, — Allen  v.  Newberry, 
21  How.  244,  16  L.  Ed.  110;  Maguire  v. 
Card.  21  How.  248,  16  L.  Ed.  118;  The 
Hine  v.  Trevor,  4  Wall.  555,  18  L.  Ed. 
451.  See,  also,  New  Jersey  Steam  Nav. 
Co.  V.  Merchants'  Bank,  6  How.  344,  392, 
12  L.  Ed.  465.  See,  generally,  the  title 
COMMERCE. 

Contract  for  supplies. — Thus  a  contract 
for  supplies  furnished  to  a  vessel  engaged 
in  trade  between  ports  in  same  state  was 
held  not  within  the  admiral"ty  jurisdiction. 
Maguire  v.  Card,  21  How.  348,  16  L.  Ed. 
118. 

Contract  of  affreightment. — And  it  was 
held,  that  the  admiralty  jurisdiction  did 
not  extend,  to  a  case  where  there  was  a 
shipment  of  goods  from  a  port  in  a  state 
to  another  port  in  the  same  state,  both 
being  in  Wisconsin,  although  the  vessel 
was  a  general  ship,  and  bound,  upon  the 
voyage    in    question,    to    Chicago,    a    port 


in  the  state  of  Illinois.  Allen  v.  New- 
berry, 21  How.  244,  16  L.  Ed.  110.  See, 
generally,  the  title  SHIPS  AND  SHIP- 
PING. 

49.  Present  rule.— Perry  v.  Haines.  191 
U.  S.  17.  48  L.  Ed.  73;  Ex  parte  Garnett, 
141  U.  S.  1,  35  L.  Ed.  631;  The  Belfast,  7 
Wall.  624,  19  L.  Ed.  266;  Ex  parte  Boyer, 
109  U.  S.  629,  27  L.  Ed.  1056;  The  Steam- 
boat Commerce,  1  Black  574,  17  L.  Ed. 
107;  Lord  v.  Goodall,  etc.,  Co.,  102  U  S. 
541.  26  L.  Ed.  224;  The  Eagle,  8  Wall 
15,  19  L.  Ed.  365;  The  Lottawanna,  21 
Wall.   558,   22   L.    Ed.   654. 

Since  the  decision  (A.  D.  1851)  in  the 
Genesee  Chief,  12  How.  443,  which  de- 
cided that  admiralty  jurisdiction  was  not 
limited  in  this  country  to  tidewaters,  but 
extended  to  the  lakes  and  the  waters  con- 
necting them;  the  previous  act  of  1845 
(5  Stat,  at  Large  726).  entitled  "An  act 
extending  the  jurisdiction  of  the  district 
courts  to  certain  cases  upon  the  lakes 
and  navigable  waters  connecting  the 
same,"  and  which  went  on  the  assumption 
(declared  in  the  Genesee  Chief,  12  How. 
443,  to  be  a  false  one)  that  the  jurisdic- 
tion of  the  admiralty  was  limited  to  tide- 
waters, has  become  inoperative  and  in- 
effectual, with  the  exception  of  the  clause 
which  gives  to  either  party  the  right  of 
trial  by  jury  when  requested.  The  dis- 
trict courts,  upon  whom  the  admiralty 
jurisdiction  was  exclusively  conferred  by 
the  judiciary  act  of  1789,  can,  therefore, 
take  cognizance  of  all  civil  causes  of  ad- 
miralty jurisdiction  upon  the  lakes  and 
waters  connecting  them,  the  same  as 
upon  the  high  seas,  bays,  and  rivers  navi- 
gable from  the  sea.  The  Eagle,  8  Wall 
15,   19   L.    Ed.  365. 

For  the  same  reason  the  following 
clause  in  the  ninth  section  of  the  judici- 
ary act  of  1789,  which  confers  exclusive 
original  cognizance  of  all  civil  causes  of 
admiralty  jurisdiction  upon  the  district 
courts,  is  _  equally  inoperative:  "Includ- 
ing all  seizures  under  laws  of  impost, 
navigation,   or  trade  of  the   United   States 


136 


ADMIRALTY. 


tion  extends  to  contracts  for  repairs  of  vessels,^"  to  contracts  of  afifreightment,^^ 
to  suits  for  collision,52  ^nd  to  suits  for  enforcement  of  limited  liability, ^^  al- 
though the  vessels  in  question  are  engaged  in  commerce  wholly  within  a  state. 

(3)  Launching  as  Prerequisite  to  Admiralty  Jurisdiction. — A  vessel  upon 
the  stocks  is  not  a  subject  of  admiralty  jurisdiction,  and  cannot  be  made  liable 
in  admiralty  either  in  rem  against  herself  or  in  personam  against  her  owners  upon 
contract  or  torts. ^^ 

(4)  Vessel  Moored  to  Wharf. — The  jurisdiction  of  admiralty  over  a  tort  by 
a  vessel  is  not  ousted  by  the  fact  that  when  the  wrong  was  done  she  had  com- 
pleted her  voyage  and  was  moored  at  a  wharf  where  her  cargo  was  to  be  dis- 
charged.^^ 

b.  Property  Other  than  Vessels — (1)  Bridge. — A  bridge  is  not  within  the 
admiralty  jurisdiction.^^ 

(2)  Dry  Dock. — A  dry  dock  is  not  a  subject  of  salvage  service  or  of  ad- 
miralty jurisdiction,  because  it  is  not  used  for  the  purpose  of  navigation.^' 

(3)  Proceeds  of  Property  or  Vessel. — By  the  admiralty  law,  all  maritime 
claims  upon  the  vessel  extend  equally  to  the  proceeds  arising  from  its  sale,  and 
are  to  be  satisfied  out  of  them.^^ 


where  the  seizures  are  ma<ie  on  waters 
which  are  navigable  from  the  sea  by  ves- 
sels of  ten  or  more  tons  burden,  within 
their  respective  districts,  as  well  as  upon 
the  high  seas."  The  Eagle,  8  Wall.  15, 
19    L.    Ed.    365. 

50.  Contracts  for  repair  of  vessels.— 
Perry  v.  Haines,  191  U.  S.  17.  48  L. 
Ed.    73. 

51.  Contracts  of  Affreightment. — Ad- 
miralty has  jurisdiction  of  a  contract  of 
affreightment,  although  the  shipment  is 
between  ports  in  the  same  state,  and  a 
state  statute  giving  a  remedj'  in  rem  in 
state  courts  for  a  breach  of  such  a  con- 
tract is  unconstitutional  and  void.  The 
Belfast.  7  Wall.  624,  19  L-  Ed.  266. 

52.  Collision. — To  bring  a  case  of  col- 
lision within  the  admiralty  jurisdiction  of 
the  federal  courts,  it  is  not  necessary  to 
show  that  either  of  the  vessels  was  en- 
gaged in  foreign  commerce  or  commerce 
between  the  states.  The  Steamboat  Com- 
merce, 1  Black  574,  17  L.  Ed.  107;  The 
Syracuse.  12  Wall.  167,  20  L.  Ed.  382. 
See,    generally,    the    title    COLLISION. 

It  makes  no  difference  with  respect  to 
the  admiraltjr  jurisdiction  over  the  Illi- 
nois and  i\Iichigan  canal  that  the  vessel 
libelled  was  at  the  time  when  the  col- 
lision occurred  on  a  voyage  from  one 
place  in  the  state  of  Illinois  to  another 
place  in  the  same  state.  Ex  parte  Boyer, 
109    U.    S.    629.    27    L.    Ed.    1056. 

53.  Application  of  limited  liability  act. 
— Ex  parte  Garnett.  141  U.  S.  1,  35  L.  Ed. 
631;  Perry  v.  Haines.  191  U.  S.  17,  48 
L.  Ed.  73.  Generally,  as  to  limitation  of 
liability  of  shipowners.  see  the  title 
SHIPS    -\ND    SHIPPING. 

54.  Launching  as  prerequisite  to  ad- 
miralty jurisdiction. — Tucker  v.  .A.lexand- 
roff,  183  U.  S.  424,  438,  46  L.  Ed.  264. 

A  ship  is  born  when  she  is  launched, 
and  lives  so  long  as  her  identity  is  pre- 
served. Prior  to  her  launching  she  is  a 
mere  congeries  of  wood  and  iron — an  or- 


dinary piece  of  personal  property — as  dis- 
tinctly a  land  structure  as  a  house,  and 
subject  only  to  mechanics'  liens  created 
by  state  law  and  enforcible  in  the  state 
courts.  In  the  baptism  of  launching  she 
receives  her  name,  and  from  the  moment 
her  keel  touches  the  water  she  is  trans- 
formed, and  becomes  a  subject  of  ad- 
miralty jurisdiction.  She  acquires  a  per- 
sonalitj'  of  her  own;  becomes  competent 
to  contract,  and  is  individually  liable  for 
her  obligations,  upon  which  she  may  sue 
in  the  name  of  her  owner,  and  be  sued 
in  her  own  name.  Tucker  v.  Alexandroff. 
183   U.   S.   424,  J38,  46  L.   Ed.  264. 

Damages  caused  by  act  of  launching. — 
If  in  the  process  of  launching  a  vessel  es- 
capes from  the  control  of  those  about 
her  and  injures  another,  she  is  liable  to 
a  suit  in  rem  for  damages.  Tucker  v. 
Alexandroff,  183  U.  S.  424,  438,  46  L. 
Ed.   264. 

Jurisdiction  of  claim  for  repairs  and 
supplies  to  vessel  in  dry  deck. — See  post, 
"Repairs  to  Vessel  in  Drv  Dock  or  on 
Land,"  I.  A,  6,  a,   (10).   (d). 

55.  Vessels  moored  to  wharf. — Leathers 
V.   Blessing,   105  U.  S.  626.  26  L.   Ed.   1192. 

56.  Bridge. — K  maritime  lien  can  only 
exist  upon  movable  things  engaged  in 
navigation,  or  upon  things  which  are  the 
subjects  of  commerce  on  the  high  seas 
or  navigable  waters.  It  cannot  arise 
upon  anything  which  is  fixed  and  immov- 
able. It  does  not,  therefore,  exist  upon 
a  bridge.  The  Rock  Island  Bridge,  6 
Wall.  213.  18  L.  Ed.  753.  See,  generally, 
the   title    MARITIME   LIENS. 

57.  Dry  dock. — Cope  v.  Vallette  Dry 
Dock  Co..  119  U.  S.  625,  30  L.  Ed.  501, 
Perry  r.  Haines.  191  U.  S.  17,  48  L.  Ed. 
73.      See.   generally,   the    title    S-\LV.\GE. 

58.  Proceeds  of  property  or  vessel. — 
The  Siren.  7  Wall.  152.  19  L.  Ed.  129; 
Sheppard  v.  Taylor.  5  Pet.  675.  8  L.  Ed. 
269;  Andrews  v.  Wall.  3  How.  568.  572. 
11  L.  Ed.  729;  The  St.  Jago  De  Cuba,  9 
W^ieat.   409.  6   L.  Ed.  122. 


ADMIRALTY. 


137 


c.  Conflict  of  Juf^isdiction  as  to  Res. — In  a  proceeding  in  admiralty,  a  seizure 
of  the  res  by  the  marshal  protects  the  property  from  interference  by  state  proc- 
ess.^^  And  on  the  other  hand,  a  seizure  of  the  res  under  a  p'-ocess  of  attachment 
issuing  from  a  state  court,  cannot  be  interfered  with  by  a  process  in  rem  against 
the  same  res  issuing   from  a  court  of  admiralty. ^"^ 

6.  Causes  of  Action  within  Jurisdiction — a.  Contracts — (1)  In  Gen- 
eral.— As  to  contracts,  the  true  criterion  whether  they  are  within  the  admiralty 
and  maritime  jurisdiction,  is  their  nature  and  subject  matter,  as,  whether  they 
are  maritime  contracts,  having  reference  to,  maritime  service,  maritime  transac- 
tions, or  maritime  casualties,  without  regard  to  the  place  where  they  were  made. 
The  admiralty  jurisdiction,  in  cases  of  contract,  is  limited  to  contracts,  claims, 
and  services,  purely  maritime, ,  and  touching  rights  and  duties  appertaining  to 
commerce  and  navigation .''^ 


59.  Interference  by  state  process  after 
seizure  in  admiralty. — Freeman  i'.  Howe, 
24  How.  450,  456,  16  L.  Ed.  749;  Buck  v. 
Colbath,  3  Wall.  334,  335.  18  L.  Ed.  257; 
The  Slaves  Reindeer,  2  Wall.  383,  17  L. 
Ed.    911. 

Jurisdiction  exclusive  in  admiralty. — H 
the  case  is  one  of  which  the  admiralty 
has  exclusive  jurisdiction,  the  state  court 
cannot  prevent  the  exercise  of  that  juris- 
diction. Thus  proceedings  in  admiralty 
to  enforce  maritime  liens  upon  vessels 
may  be  sustained  although  the  corpora- 
tions owning  the  vessels  have  commenced 
proceedings  in  the  state  cot^rt  for  volun- 
tary dissolution  and  the  winding  up  of 
the  corporation,  and  although  a  receiver 
has  been  appointed  by  the  state  court  to 
take  possession  of  the  property.  The 
state  court  having  no  jurisdiction  to  en- 
force a  maritime  lien,  is  a'so  incapable  of 
displacing  it.  Moran  7'.  Sturges,  154  U. 
S.    256.    38    L.    Ed.    981. 

60.  Seizure  by  state  court  not  to  be  in- 
terfered with  by  edrriralty  process. — 
Where  a  vessel  had  been  seized  under  a 
process  of  foreign  attachment  issuing 
from  a  state  court  in  Pennsylvania,  and 
a  motion  was  pending  in  that  court  for 
an  order  of  sale,  a  libel  filed  in  the  dis- 
trict court  of  the  United  States,  for 
mariners'  wages,  and  process  issued  un- 
der it.  could  net  divest  the  authorities  of 
the  state  of  their  authoritv  over  the  ves- 
sel; and  of  the  two  salc^  made,  one  by 
the  sheriff  and  one  by  the  marshal,  the 
sale  by  the  sheriff  must  be  considered  as 
conveving  the  legal  title  to  the  property, 
and  the  sale  by  the  marshal  is  inopera- 
tive. Tavlor  r.  Carryl,  20  How.  583.  584, 
15  L.  Eri.  ]028.  See.  eenerallv,  the  title 
ATTACHMENT  AXD  GARNISH- 
MENT. 

61.  Jurisdiction  of  actions  on  contract 
in  general. — People's  Eerrv  Co.  v.  Beers, 
20  How.  393,  401,  15  L.'  Ed.  961;  The 
Resolrtp.  168  U.  S.  437,  42  L.  Ed.  533; 
The  Belfast.  7  Wall.  624.  19  L.  Ed.  266; 
Andrews  v.  Wall.  3  How.  568.  572,  11  L. 
Ed.  729;  Insurance  Co.  v.  Dunham,  11 
Wall.  1.  29,  20  L.  Ed.  90;  The  Steamboat 
Jefferson,    10    Wheat.    428,    429,    6    L.    Ed. 


358;    The   Steamboat   Orleans   v.    Phoebus, 

11  Pet.  175,  9  L.  Ed.  677;  Grant  v.  Poillon, 
20  How.  162  168,  15  L.  Ed.  873;  Ex  parte 
Easton,  95  U.  S.  68,  72,  24  L.  Ed.  373; 
Rea  r.  The  Eclipse,  135  U.  S.  599.  34  L. 
Ed.  269;  Ex  parte  Garnett.  141  U.  S.  1, 
35  L.  Ed.  631;  New  Jersey  Steam  Nav. 
Co.  V.   Merchants'   Bank.  6   How.   344,   391, 

12  L.  Ed.  465;  Martin  v.  Hunter,  1  Wheat. 
304.  335,  4  L.  Ed.  97;  Jackson  v.  Steam- 
boat Magnolia,  20  How.  296,  15  L.  Ed. 
909;  Grant  v.  Poillon,  20  How.  162.  168, 
15    L.    Ed.   873;    Philadelphia,    etc.,    R.    Co. 

V.  Philadelphia,  etc.,  Towboat  Co..  23 
How.  209.  215,  16  L.  Ed.  433;  Ex  parte 
Gordon.  104  U.  S.  515,  516.  26  L.  Ed.  104; 
Ex  parte  McNeil,  13  Wall.  236.  242,  20 
L.  Ed.  624;  Scott  v.  Eaton.  15  Wall.  382, 
384,    21    L.    Ed.    114. 

Admiralty  jurisdiction  extends  to  all 
contracts,  claims,  and  services  essentially 
maritime,  among  which  are  bottomry 
bonds,  contracts  of  affreightment  and  con- 
tracts for  the  conveyance  of  passengers, 
pilotage  on  the  high  seas,  wharfage,  agree- 
ments of  consortship,  surveys  of  vessels, 
damages  by  the  repair  and  outfit  of  ships 
belonging  to  foreign  nations  or  to  other 
states,  and  the  wages  of  mariners.  Ex 
parte  Easton,  95  U.  S.  68,  72,  24  L.  Ed. 
373. 

Contracts  made  and  to  be  performed 
on  land. — Judicial  power  in  cases  of  ad- 
miralty and  maritime  jurisdiction,  has 
never  been  supposed  to  extend  to  con- 
tracts made  on  land  and  to  be  executed  on 
land.  The  Propeller  Genesee  Chief  v. 
Fitzhugh,  12  How.  443.  452,  13  L.  Ed. 
1058. 

Contracts  made  on  land  to  be  executed 
at  sea  or  vice  versa. — 'Tn  general,  con- 
tracts upon  land,  though  to  be  executed 
on  the  sea,  and  contracts  at  sea,  if  to  be 
executed  on  the  land,  are  not  cognizable 
by  the  English  admiralty.  There  are 
some  exceptions  to  this  rule  in  that  coun- 
try; but  none,  it  is  believed,  which  affect 
the  auestion  now  before  vs."  Grant  v. 
Poillon,  20  How.  162,  168.  15  L.  Ed.  873. 

Contracts  to  be  perform.ed  on  non- 
navigable  waters. — Contracts  to  be  per- 
formed on  waters  not  navigable,  are  not 
maritime    any   more   than    those    made    to 


138 


ADMIRALTY. 


(2)  Shiphuilding  Contracts. — A  contract  for  building  a  ship,  or  supplying 
engines,  timber,  etc.,  is  not  a  maritime  contract  and  is  not.  therefore,  within  the 
admiralty  jurisdiction.*^- 

(3)  Coiitracts  of  Carriage — (a)  Carriage  of  Passengers. — A  contract  for  the 
transportation  of  passengers  by  a  steamship  on  the  ocean  is  a  maritime  con- 
tract, and  there  is  no  distinction  in  principle  between  it  and  a  contract  for  the 
like  transportation  of  merchandise.  The  same  liability  attaches  upon  its  execu- 
tion both  to  the  owner  and  the  steamship.^^ 

(b)  Contracts  of  Affreightment  and  Charter  Party. — Charter  parties  and 
contracts  of  affreightment  are  "maritime  contracts"  within  the  true  meaning  and 
construction  of  the  constitution  and  act  of  congress,  and  cognizable  in  courts  of 
admiralty  by  process  either  in  rem  or  in  personam.''^ 


be  performed  on  land.  The  Belfast.  7 
Wall.   6:H,   637.   19   L.   Ed.   260. 

Mixed  cases — Services  partly  on  land 
and  partly  on  water. — Mixed  cases  may 
arise,  and  often  do  arise,  where  the  act 
and  services  done  are  of  a  mixed  nature; 
as,  where  salvage  services  are  performed 
partly  on  tidewaters  and  partly  on  shore, 
for  the  preservation  of  the  property;  in 
which  the  admiralty  jurisdiction  has  been 
constantly  exercised,  to  the  extent  of  de- 
creeing salvage.  United  States  v.  Coombs, 
12   Pet.   72.   9   L.    Ed.    1004. 

"These  mixed  cases,  however,  will  be 
found,  not  cases  of  tort,  but  of  contract, 
which  do  not  depend  altogether  upon  the 
locality  as  the  test  of  jurisdiction,  such 
as  contracts  of  materialmen,  for  supplies, 
charter  parties,  and  the  like.  These  cases 
depend  upon  the  nature  and  subject  mat- 
ter of  the  contract,  whether  a  maritime 
contract,  and  the  service  a  maritime 
service  to  be  performed  upon  the  sea,  or 
other  navigable  waters,  though  made 
upon  land."  The  Plymouth.  3  Wall.  20, 
34,    18    L.    Ed.    125. 

62.  Shipbuilding  contracts. — People's 
Ferry  Co.  v.  Beers,  20  How.  393.  400.  15 
L.  Ed.  961;  Roach  z'.  Chapman,  22  How. 
129.  16  L.  Ed.  294;  Morewood  v.  Enequist, 
23  How.  491.  494,  16  L.  Ed.  516;  Norton 
V.  Switzer.  93  U.  S.  355,  366.  23  L.  Ed. 
903;  Edwards  v.  Elliott.  21  Wall.  532, 
556,  22  L.  Ed.  487;  The  Winnebago,  205 
U.  S.  354.  363.  51  L.  Ed.  836;  Graham  v. 
Morton  Transp.  Co..  203  U.  S.  577,  51  L. 
Ed.  325;  J.  E.  Rumbell.  148  U.  S.  1,  11. 
37  L.  Ed.  345;  dissenting  opinion  of 
Brewer,  J.  in  Perry  v.  Haines,  191  U. 
S.  17,  39.  48  L.  Ed.  73;  Knapp.  etc..  Co. 
V.  McCaffrey,  177  U.  S.  638.  643.  44  L. 
Ed.   921. 

For  causes  of  action  not  cognizable  in 
admiralty,  either  in  rem  or  in  personam, 
the  states  may  not  only  grant  liens,  but 
may  provide  remedies  for  their  enforce- 
ment. Contracts  for  the  building  of  a 
ship  are  the  most  prominent  examples  of 
such  as  are  not  maritime  in  their  char- 
pcter,  and  hence  within  this  rule.  Perrj' 
r.  Haines.  191  U.  S.  17.  25,  48  L.  Ed.  73. 
filing  People's  Ferry  Co.  v.  Beers.  20 
How.  393.  15  L.  Ed.  961;  Roach  v.  Chap- 
man, 22  How.  129,  16  L.  Ed.  294;  Edwards 


V.  Elliott,  21  Wall.  532,  22  L.  Ed.  487; 
Johnson  v.  Chicago,  etc..  Elevator  Co., 
119  U.   S.   388,   30  L.   Ed.  447. 

Items  furnished  after  launching,  but 
really  a  part  of  the  'iriginal  construction 
are  within  the  above  rule.  The  Winne- 
bago.  205   U.   S.   354,   362,   51    L.    Ed.    836. 

Claims  for  engines  and  boilers  fur- 
nished.— Where  a  steamboat  was  built  at 
Louisville,  in  Kentucky,  and  the  persons 
who  furnished  the  boilers  and  engines 
libelled  the  vessel  in  admiralty  in  the  dis- 
trict court  of  the  United  States  for  the 
eastern  district  of  Louisiana,  that  court 
had  no  jurisdiction  of  the  case.  The 
state  law  of  Kentucky,  which  creates  a 
lien  in  such  a  case,  cannot  confer  juris- 
diction on  the  courts  of  the  United  States. 
Roach  V.  Chapman.  22  How.  129.  16  L. 
Ed.    294. 

63.  Carriage  of  passengers. — The 
Moses  Taylor  v.  Hammons,  4  Wall.  411, 
18  L.  Ed.  397;  The  City  of  Panama,  101 
U.  S.  453.  25  L.  Ed.  1061.  See  the  titles 
CARRIERS;    SHIPS    .\ND    SHIPPING. 

64.  Contracts  of  affreightment  and 
charter  parties. — Morewood  f.  Enequist, 
23  How.  491.  493,  16  L.  Ed.  516;  New 
Jersev  Steam  Nav.  Co.  v.  Merchants' 
Bank'  6  How.  344,  12  L.  Ed.  465;  Bags 
of  Linseed.  1  Black  1©8.  112.  17  L.  Ed. 
35;  The  Atlas.  93  U.  S.  302,  23  L.  Ed. 
863;  The  Eddy,  5  Wall.  481.  494.  18  L. 
Ed.  486;  The  Moses  Taylor  v.  Ham- 
mons. 4  Wall.  411.  18  L.  Ed.  397:  Grant 
V.  Poillon.  20  How.  162.  15  L.  Ed.  873; 
Brittan  v.  Barnaby.  21  How.  527.  538.  16 
L.  Ed.  177;  Ravmond  v.  Tvson.  17  How. 
53.  59.  15  L.  Ed.  47;  The  Belfast.  7  Wall. 
624.  19  L.  Ed.  266:  The  Harriman.  9  Wall. 
161.  19  L.  Ed.  629;  McKinlav  v.  Morrish, 
21  Wall.  343.  16  L.  Ed.  100;  The  Keokuk. 
9  Wall.  517.  19  L.  Ed.  744.  See.  gen- 
erallv.  the  title  SHIPS  AND  SHIP- 
PING. 

Admiralty  has  jurisdiction  in  personam 
as  well  as  in  rem.  over  controversies  aris- 
ing out  of  contracts  of  affreightment  be- 
tween New  York  and  ProA-idence.  New 
Tersev  Steam  Nav.  Co.  v.  Merchants' 
Bank!  5  How.   344.   12  L.   Ed.  465. 

Either  part}'  to  a  contract  of  affreight- 
ment may  in  a  proper  case  enforce  his 
lien   by   a   proceeding   in   rem   in   the    dis- 


ADMIRALTY. 


139 


(4)  Totvage  Contracts. — A  contract  to  tow  another  vessel  is  a  maritime  con- 
tract, and  there  is  no  distinction  in  principle  in  this  respect  between  a  vessel  and 
a  raft.«^ 

(5)  Contracts  of  Consortship. — An  agreement  of  consortship  between  the 
masters  of  two  vessels  engaged  in  the  business  known  by  the  name  of  wreck- 
ing, is  a  contract  capable  of  being  enforced  in  an  admiralty  court,  against  prop- 
erty or  proceeds  in  the  custody  of  the  court. ^*^ 

(6)  Services  by  Master  or  Seamen — (a-)  Sei-vices  by  Master. — It  has  been 
said  that  the  master  has  no  lien  for  his  wages  even  though  his  services  are  mari- 
time.*^' But  it  has  been  held,  that  where  the  master  of  a  vessel  claims  a  lien 
for  his  wages  under  a  state  statute,  admiralty  has  jurisdiction  of  a  libel  in  rem, 
and  it  is  no  defense  that  the  master  has  not  proceeded  within  the  time  allowed 
at  law  for  the  enforcement  of  his  claim,  as  this  will  not  affect  the  jurisdiction 
of  the  court.^^ 

(b)  Serine es  by  Seamen. — Over  the  subject  of  seamen's  wages,  the  admiralty 
has  an  undisputed  jurisdiction  in  rem,  as  well  as  in  personam  ;'5^  but  while  an 
agreement  for  wages  may  be  sued  on  in  admiralty,'''*^  and  is  not  affected  by  the 
fact  that  the  vessel  at  the  time  of  the  rendition  of  the  services  was  in  the  hands 
of  a  receiver  appointed  by  the  state  court.'^i  a  stipulation  in  a  contract  by  which 
the  master  of  a  ship  agrees  to  pay  a  sum  of  money  in  case  the  voyage  should 
be   altered   or   discontinued,   can   be   enforced   only  at   common   law.'''^     Where- 


trict  court.  The  Eddy,  5  Wall.  481,  494, 
18  L.  Ed.  486;  Bags  of  Unseed,  1  Black 
108,   112,  17  L.  Ed.  35. 

Where  the  master  of  a  vessel  was  also 
part  owner,  and  made  a  contract  of 
affreightment  with  a  lumber  company,  of 
which  he  was  also  a  member,  and  the 
cargo  was  consigned  to  the  master,  it 
was  held,  that  the  case  is  not  within  ad- 
miralty jurisdiction,  but  appropriate  to 
that  of  a  court  of  chancery.  Grant  v. 
Poillon.  20  How.   162,   15   L.   Ed.   873. 

A  contract  to  transport  a  cargo  from 
Hamburg  to  New  York  is  nothing  more 
than  a  contract  between  the  owner  of 
property  and  a  carrier  to  convey  a  given 
subject  for  hire.  It  is  a  contract  made 
upon  land  to  be  terminated  and  executed 
upon  the  land  for  a  stipulated  compen- 
sation, and  not  strictly  or  properly  a 
maritime  contract,  in  any  sense  beyond 
any  other  contract,  in  the  performance  of 
which  a  party  or  agent  would  be  com- 
pellable to  cross  the  ocean  or  even  to 
pass  a  river.  Ship  Howard  ?-.  Wissman, 
18   How.   231.   234,    15   L.    Ed.   363. 

65.  Towage  contract. — Knapp,  etc.,  Co. 
V.  McCafTrev,  177  U.  S.  638,  44  L.  Ed. 
921.  See,  generallv.  the  title  TOWAGE, 
TUGS   AND   TOWS. 

66.  Contract  of  consortship. — Andrews 
V.  Wall.   3    How.    568,   11    L.   Ed.    729. 

Such  an  agreement  of  consortship  ex- 
tends to  the  owners  and  crew^s,  and  is 
not  merely  personal  between  the  masters. 
Andrews  v.  Wall.  3  How.  568,  11  L.  Ed. 
729. 

67.  Services  of  master. — The  Steam- 
boat Orleans  7'.  Phrebus.  11  Pet.  175.  184, 
9  L.  Ed.  677.  (But  in  this  case  the  serv- 
ices were  not  maritime.)  And  see  The 
Williams    H.    Hoag,    168    U.    S.    443,   42    L. 


Ed.    537.      See,    gen-erally,    the    title    MAS- 
TERS  OF    VESSELS. 

68.  Enforcement  of  state  lien  for  mas- 
ter's wages. — The  WilKam  H.  Hoag,  168 
U.  S.  443.  42  L.  Ed.  537.  See,  generally, 
the    title    MASTERS    OF    VESSELS. 

69.  Services  by  seamen. — Sheppard  v. 
Taylor.  5  Pet.  675,  8  L.  Ed.  269;  Grant  v. 
Poillon,  20  How.  162.  166,  15  L.  Ed.  873; 
Andrews  v.  Wall,  3  How.  568.  572,  11  L. 
Ed.  729;  The  Resolute,  168  U.  S.  437,  42 
L.  Ed.  533;  Leon  v.  Galceran,  11  Wall. 
185,  20  L.  Ed.  74;  The  St.  Jago  De  Cuba, 
9  Wheat.  409,  6  L.  Ed.  122.  See  the  title 
SEAMEN. 

70.  Agreement  to  pay  wages. — Grant  v. 
Poillon,  20  How.  162,  168,  15  L.  Ed.  873; 
The  Resolute,  168  U.  S.  437,  42  L.  Ed. 
533. 

71.  Effect  of  vessel  being  in  hands  of 
receiver  appointed  by  state  court  when 
services  rendered. — The  fact  that  a  ves- 
sel was.  at  the  time  the  services  were 
rendered,  in  the  hands  of  a  receiver  ap- 
pointed by  a  state  court,  is  not  absolutely 
inconsistent  with  a  lien  in  rem  for  sea- 
men's wages.  Prima  facie,  the  rendition 
of  mariner's  services  imports  a  lien,  and 
the  mere  fact  that  the  vessel  is  navi- 
gated by  a  receiver  does  not  necessarily 
negative  such  lien,  although  there  may  be 
facts  in  the  particular  case  to  show  that 
the  above  statute  does  not  apply,  or  that 
credit  was  expressly  given  to  the  owner, 
to  the  charterer,  or  to  some  third  person. 
In  fact,  the  question  of  lien  or  no  lien  is 
not  one  of  jurisdiction,  but  of  merits. 
The  Resolute,  168  U.  S.  437,  42  L.  Ed. 
533.      See    the_  title   RECEIVERS. 

72.  Stipulation  to  pay  sum  upon  altera- 
tion of  discontinuance  of  voyage. — Grant 
V.  Poillon,  20  How.  162,  168,  15  L.  Ed. 
873. 


140 


ADMIRALTY. 


ever  the  lien  for  the  wages  exists,  and  attaches  upon  the  proceeds,  admiralty  will 
exert  its  jurisdiction  by  way  of  monition  to  the  parties  holding  the  pro- 
ceeds.'''^ 

(7)  Wharfage. — Claims  for  wharfage,  arising  out  of  either  an  express  or  im- 
plied contract,  are  cognizable  in  admiralty. '^^ 

(8)  Pilotage. — Claims  for  pilotage  fees  are  within  the  jurisdiction  of  the 
admiralty,^"'  even  in  cases  where  a  fixed  compensation  for  pilotage  is  established 
by  state  laws.'^^ 

(9)  Mortgages. — The  courts  of  the  United  States,  in  the  exercise  of  ad- 
miralty jurisdiction,  cannot  take  cognizance  of  questions  of  property  between 
the  mortgagee  of  a  vessel  and  the  owner.  The  mere  mortgage  of  a  ship,  other 
than  that  of  an  hypothecated  bottomry,  is  a  contract  without  any  of  the  char- 
acteristics or  attendants  of  a  maritime  loan,  and  is  entered  into  by  the  parties 
to  it,  without  reference  to  navigation  or  perils  of  the  sea.''^'^     But  admiralty  has 


73.  Enforcement  of  claim  against  pro- 
ceeds.— Sheppard  v.  Taylor,  5  Pet.  675,  8 
L.  Ed.  269;  Andrews  v.  Wall,  3  How. 
568,  572.  11  L.  Ed.  729;  The  St.  Jago  De 
Cuba,   9   Wheat.   409.   6    L.    Ed.    132. 

Enforcement  of  lien  for  wages  against 
award  of  board  of  treaty  commissioners. 
— When  a  ship  was  seized  by  Spanish  au- 
thorities, and  under  subsequent  treaty, 
the  owners  were  awarded  a  certain  sum 
for  the  seizure,  it  was  Iield,  that  the  sea- 
men who  have  served  on  the  ship  before 
the  seizure  had  a  lien  on  the  sum  awarded 
which  might  be  enforced  in  admiralty. 
Sheppard  v.  Taylor.  5  Pet.  675,  8  L.  Ed. 
26?. 

74.  Claims  for  wharfage. — If  the  vessel 
or  water  craft  is  a  foreign  one,  or  be- 
longs to  a  port  of  a  state  other  than  that 
wliere  the  wliarf  is  used,  the  claim  of  the 
wharfinger  for  such  use  is  a  maritime 
lien  against  the  vessel,  which  he  may  en- 
force by  a  proceeding  in  rem,  or  he  may 
resort  to  a  libel  in  personam  against  the 
owner  of  such  vessel  or  water  craft.  Ex 
parte  Easton,  95  U.  S.  68.  24  L.  Ed.  373. 
See   the   title  WHARVES. 

75.  Claims  for  pilotage. — Ex  parte  Mc- 
Niel,  13  Wall.  236,  20  L.  Ed.  624;  Hobart 
V.  Drogan,  10  Pet.  108,  9  L.  Ed.  363;  Ex 
parte  Hagar.  104  U.  S.  520,  26  L.  Ed.  816; 
Andrews  v.  Wall.  3  How.  568,  572.  11  L. 
Ed.  729;  New  Jersey  Steam  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  344,  391,  12 
L.  Ed.  465.  See,  generally,  the  title 
PILOTS.  _ 

Prohibition  will  not  lie  to  restrain  ad- 
miralty from  taking  jurisdiction  of  a 
claim  for  pilotage  fees.  Ex  parte  Hagar, 
104  U.  S.  520.  26  L.  Ed.  816.  See  the 
titles    PILOTS;    PROHIBITION. 

76.  'When  compensation  fixed  by  state 
laws. — Where  a  fixed  compensation  for 
pilotage  is  established  by  state  laws,  un- 
der authority  of  the  act  of  congress,  the 
jurisdiction  of  the  district  courts  of  the 
United  States,  in  suits  for  pilotage,  is  not 
ousted  by  the  adoption  of  the  state  laws, 
by  the  act  of  congress;  the  only  effect  is, 
to  leave  the  jurisdiction  concurrent  in 
the  state  courts;  and,  if  the  party  should 


sue  in  the  admiralty,  to  limit  his  recovery 
to  the  same  precise  sum,  to  which  he 
would  be  entitled  under  the  state  laws, 
adopted  by  congress,  if  he  should  sue  in 
the  state  courts.  The  Brig  Hope,  10  Pet. 
108.  9  L.  Ed.  363.  See,  generally,  the  title 
PILOTS. 

77.  Mortgage  of  slup. — Bogart  v.  Steam- 
boat John  Jay,  17  How.  399.  15  L.  Ed. 
95;  The  Lottawanna.  21  Wall.  55S,  23  L. 
Ed.  654;  J.  E.  Rumbell,  148  U.  S.  1,  15, 
37  L.  Ed.  345;  Rea  v.  The  Eclipse,  135 
U.  S.  599,  34  L.  Ed.  269.  See,  generally, 
the  title  MORTGAGES  AND  DEEDS 
OF    TRUST. 

"It  has  been  repeatedly  decided  in  the 
admiralty  and  common-law  courts  in  Eng- 
land, that  the  former  have  no  jurisdic- 
tion in  questions  of  property  between  a 
mortgagee  and  the  owner.  No  such  ju- 
risdiction has  ever  been  exercised  in  the 
Lhiited  States.  No  case  can  be  found  in 
either  country  where  it  has  been  done." 
Bogart  V.  Steamboat  John  Jay,  17  How. 
399,    401.    15    L.    Ed.    95. 

A  debt  secured  by  the  mortgage  of  a 
ship  does  not  give  the  ownership  of  it 
to  the  mortgagee.  He  may  use  the  legal 
title  to  make  the  ship  available  for  its 
payment.  A  legal  title  passes  condition- 
ally to  the  mortgagee.  Where  there  has 
been  a  failure  to  pay.  he  cannot  take  the 
ship  manu  forti,  but  he  must  resort  either 
to  a  court  of  equity  or  to  statutory  reme- 
dies for  the  same  purpose  when  they  ex- 
ist, to  bar  the  mortgagor's  right  of  re- 
demption by  a  foreclosure,  which  is  to 
operate  at  such  time  afterward,  when 
there  shall  be  a  foreclosure  without  a 
sale,  as  the  circumstances  of  the  case 
may  make  it  equitable  to  allow.  Indeed, 
after  a  final  order  of  foreclosure  has  been 
signed  and  enrolled,  and  the  time  fixed 
by  it  for  the  paj'ment  of  the  money  has 
passed,  the  decree  may  be  opened  to  give 
further  time,  if  there  are  circumstances 
to  make  it  equitable  to  do  so,  with  an 
ability  in  the  mortgagor  to  make  prompt 
payment.  Bogart  v.  Steamboat  John 
Jay.  17  How.  399,  402,  15  L.  Ed.  95. 

Courts   of  admiralty  have   always   taken 


ADMIRALTY. 


141 


jurisdiction,  after  a  vessel  has  been  sold  by  its  order  and  the  proceeds  have  been 
paid  into  the  registry,  to  pass  upon  the  claim  of  the  mortgagee,  as  of  any  other 
person,  to  the  fund,  and  to  determine  the  priority  of  the  various  claimsJ^ 

(10)  Repairs  and  Supplies — (a)  In  General. — The  admiralty  possesses  a 
general  jurisdiction  in  cases  of  suits  by  materialmen,  in  personam,  and  in  remJ^ 

(b)  Repairs  or  Supplies  Furnished  Domestic  Vessels. — As  to  repairs  or  neces- 
saries in  the  port  or  state  to  which  the  ships  belong,  the  case  is  governed  alto- 
gether by  the  local  law  of  the  state,  as  no  lien  is  implied,  unless  it  is.  recognized 
by  that  law;  if,  however,  the  local  law  gives  a  lien,  it  may  be  enforced  in  the 
admiralty  in  proceedings  in  rem.^*^ 


the  same  view  of  a  mortgage  of  a  ship, 
and  of  the  remedies  for  the  enforcement 
of  them,  that  courts  of  chancery  have 
done  of  such  a  mortgage  and  of  any 
other  mortgaged  chattel.  But,  from  the 
organization  of  the  former  and  its  modes 
of  proceeding,  they  cannot  secure  to  the 
parties  to  such  a  mortgage  the  reinedies 
and  protection  which  they  have  in  a 
court  of  chancery.  They  have,  therefore, 
never  taken  jurisdiction  of  such  a  con- 
tract to  enforce  its  payment,  or  by  a 
possessory  action  to  try  the  title,  or  a 
right  to  the  possession  of  a  ship.  Bogart 
V.  Steamboat  John  Jay,  17  How.  399,  402. 
15    L.    Ed.   95. 

English  courts  exercise  jurisdiction  un- 
der statute. — Where  admiralty  courts  in 
England  exercise  inrisdiction  imun  the 
subject  of  mortgages  of  ships,  it  is  un- 
der a  statute  of  Victoria;  and  in  the 
United  States  the  admirahy  and  mari- 
time jurisdiction  remains  as  it  was  be- 
fore. Bogart  V.  Steamboat  John  Jay,  17 
How.    399,   15   L.    Ed.   95. 

78.  Jurisdiction  as  to  claim  of  mort- 
gagee to  fund  in  court. — J.  E.  Rumbell, 
148  U.  S.  1,  15,  37  L.  Ed.  345,  citing  An- 
drews V.  Wall,  3  How.  568,  11  L-  Ed.  729; 
Schuchardt  v.  Baggage,  19  How.  239,  15 
L.  Ed.  625;  The  Lottawanna,  21  Wall. 
558,    22   L.    Ed.   654. 

79.  General  jurisdiction  over  suits  by 
materialmen. — The  General  Smith,  4 
Wheat.  438,  4  L.  Ed.  609.  See.  generally, 
the   title    M.\RITTME   LIENS. 

80.  Repairs  or  supplies  furnished  do- 
mestic vessels. — The  General  Smith,  4 
Wheat.  438,  4  L.  Ed.  609;  The  Steamboat 
Planter.  7  Pet.  324,  8  L.  Ed.  700;  Ram- 
say V.  Allegree.  12  Wheat.  611,  6  L.  Ed. 
746;  J.  E.  Rumbell.  148  U.  S.  1.  12,  37 
L.  Ed.  345;  The  St.  Jago  De  Cuba,  9 
Wheat.  409,  6  L.  Ed.  122;  The  Lotta- 
wanna, 21  Wall.  558,  22  L.  Ed.  654;  The 
Edith,  94  U.  S.  518,  24  L.  Ed.  167;  New 
Jersey  Steam  Nav.  Co.  v.  Merchants' 
Bank,  6  How.  344,  390.  12  L.  Ed.  465;  The 
John  G.  Stevens.  170  U.  S.  113,  117,  42 
L.  Ed.  969;  Perry  v.  Haines,  191  U.  S. 
17,  24.  48  L.  Ed.  73;  The  Glide,  167  U.  S. 
606,  624,  42  L.  Ed.  296;  Meyer  v.  Tupper, 
1  Black  522,  17  L.  Ed.  180;  The  Steam- 
boat Orleans  v.  Phoebus,  11  Pet.  175,  9 
L.  Ed.  677.  See.  a^enerally,  the  title 
MARITIME   LIENS. 

The  12th  admiralty  rule  adopted  in  1844 


authorized  proceedings  in  rem  where  the 
libellant  was  entitled  to  a  lien  under  the 
local  or  state  law.  Mever  v.  Tupper,  1 
Black  522,  17  L.  Ed.  'l80;  The  Lotta- 
wanna,  20    Wall.    201,   218,    22    L.    Ed.    259. 

The  12th  rule  of  admiralty  practice 
adopted  in  1844  was  repealed  by  the  rule 
adopted  in  1858  which  denied  the  process 
in  rem  to  a  party  in  admiralty  except 
where  the  maritiine  law  gives  a  lien, 
Meyer  v.  Tupper,  1  Black  522,  17  L.  Ed. 
180;  The  Lottawanna,  20  Wall.  201,  218,  22 
L.  Ed.  259;  The  Lulu.  10  Wall.  192,  19 
L.  Ed.  906;  The  Belfast.  7  Wall.  624,  644, 
19  L.  Ed.  266;  Leon  v.  Galceran,  11  Wall, 
185,  191,  20  L.  Ed.  74;  American  Steam- 
boat Co.  V.  Chace,  16  Wall.  522,  533,  21 
L.  Ed.  369;  Maguire  v.  Card,  21  How. 
248,    16   L.    Ed.    118. 

By  the  rule  adopted  May  6,  1872.  where 
a  lien  is  given  by  the  local  law.  the  party 
in  whose  favor  it  exists  may  proceed 
either  in  rem  or  in  personam.  The  Lotta- 
wanna, 21  Wall.  558,  581.  22  L.   Ed.  654. 

If  the  action  was  instituted  while  the 
rule  was  in  force,  the  court  may  enforce 
the  lien  by  a  proceeding  in  rem  after  the 
repeal  of  the  rule.  Meyer  v.  Tupper,  1 
Black   522.    17    L.    Ed.    180. 

Whenever  the  statute  of  a  state  gives  a 
lien,  to  be  enforced  by  process  in  rem 
against  the  vessel,  for  repairs  or  supplies 
in  her  home  port,  this  lien,  being  similar 
to  the  lien  arising  in  a  foreign  port  un- 
der the  general  law,  is  in  the  nature  of 
a  maritime  lien,  and  therefore  may  be  en- 
forced in  admiralty  in  the  courts  of  the 
United  States.  J.  E.  Rumbell,  148  U.  S. 
1,  12,  37  L.  Ed.  345;  The  Steamboat 
Planter,  7  Pet.  324,  8  L.  Ed.  700;  Meyer 
V.  Tupper.  1  Black  532,  17  L.  Ed.  180; 
The  Lottawanna.  21  Wall.  558,  22  L.  Ed. 
654;  Rule  12  in  Admiralty  as  amended  in 
1872;  Webb  v.  Sharp,  13  Wall.  14,  20  L. 
Ed.    478. 

This  lien,  in  the  nature  of  a  maritime 
lien,  and  to  be  enforced  by  process  in  the 
nature  of  admiralty  process,  is  within 
the  exclusive'  jurisdiction  of  the  courts 
of  the  L^nited  States,  sitting  in  admiralty. 
J.  E.  Rumbell,  148  U.  S.  1,  12,  37  L.  Ed. 
345;  The  Moses  Taylor  v.  Hammons,  4 
Wall.  411,  18  L.  Ed.  397;  The  Hine  v. 
Trevor,  4  Wall.  555,  18  L.  Ed.  451;  The 
Belfast,  7  Wall.  624.  19  L.  Ed.  266;  The 
Lottawanna,  21  Wall.  558,  22  L.  Ed.  654; 
Johnson    v.    Chicago,    etc..    Elevator    Co., 


142 


ADMIRALTY. 


(c)  Repairs  or  Supplies  Furnished  to  Foreign  Vessels. — Where  the  repairs 
have  been  made,  or  necessaries  furnished,  to  a  foreign  ship,  or  to  a  ship  in  the 
ports  of  a  state  to  which  she  does  not  belong,  the  general  maritime  law  gives  a 
lien  on  ships  as  security,  and  the  party  may  maintain  a  suit  in  the  admiralty  to 
enforce  his  right. ^^ 

(d)  Repairs  to  Vessels  in  Dry  Dock  or  upon  Land. — A  contract  for  repairs 
to  a  vessel  in  dry  dock  is  a  maritime  contract,  of  which  admiralty  has  jurisdic- 
tion,^2  but  the  repair  of  articles  of  a  ships  furniture  or  machinery  on  land,  is 
not  a  maritime  contract  enforceable  in  admiralty.^-"* 

(11)  Contribution. — Where  two  vessels  are  held  to  be  both  in  fault  for  a  col- 
lision and  the  damages  are  divided,  and  subsequently  one  of  them  pays  to  the 
cargo  owners  a  loss  sustained  by  the  collision,  its  claim  against  the  other   for 


119   U.   S.   388,   30   L.    Ed.    447;   The   Glide, 
167  U.   S.   606.  607,  42   L.   Ed.  296. 

In  Louisiana,  workmen  employed  in 
the  construction  or  repairs  of  ships  or 
boats  enjoy  the  privilege  of  a  lien  on 
such  ships  or  boats,  without  being  bound 
to  reduce  their  contracts  to  writing, 
whatever  may  be  their  amount,  but  this 
privilege  ceases,  if  they  have  allowed  the 
ship  or  boat  to  depart,  without  exercising 
their  rights.  The  state  law,  therefore, 
gives  a  lien  and  admiralty  has  jurisdic- 
tion. The  Steamboat  Planter,  7  Pet.  324, 
S   L.   Ed.  700. 

A  libel  was  filed  in  the  district  court 
of  the  United  States  for  the  eastern  dis- 
trict of  Louisiana,  against  the  steamship 
Planter,  by  H.  &  V.,  citizens  of  New  Or- 
leans, for  the  recovery  of  a  sum  of  money 
alleged  to  be  due  to  them,  as  shipwrights, 
for  work  done  and  materials  found  in  the 
repairs  of  the  Planter;  the  libel  asserted,, 
that,  by  the  admiralty  law  and  the  laws 
of  the  state  of  Louisiana,  they  had  a 
lien  and  privilege  upon  the  boat,  her 
tackle,  etc.,  for  the  payment  of  sums  due 
for  the  repairs  and  materials,  and  prayed 
admiralty  process  against  the  boat,  etc.; 
the  answer  of  the  owners  of  the  Planter 
averred,  that  they  were  citizens  of 
Louisiana,  residing  in  New  Orleans,  that 
the  libellants  are  also  citizens,  and  that 
the  court  have  no  jurisdiction  of  the 
cause.  Held,  that  this  was  a  case  of  ad- 
miralty iurisdiction.  The  Steamboat 
Planter.  7   Pet.   324,   8   L.   Ed.   700. 

Lien  under  state  law  must  be  perfected. 
— The  lien  claimed  under  the  state  law 
must  be  perfected.  The  Lottawanna,  21 
Wall.    558,   559.   22    L.    Ed,    654. 

If  no  lien  is  given  by  a  state  law  for  re- 
pairs and  supplies  to  a  domestic  ship  in 
a  port  of  that  state,  the  materialmen  may 
nevertheless  maintain  a  libel  in  personam. 
The  General  Smith,  4  Wheat.  438,  4  L. 
Ed.  609;  Andrews  v.  Wall.  3  How.  568, 
572,  11  L.  Ed.  729.  .-Xnd  see  Ramsay  v. 
Allegre.  12  Wheat.  611.  6  L.  Ed.  746, 
where  it  was  doubted  whether  a  proceed- 
ing in  personam  could  be  maintained  in 
an\^  case  where  there  was  no  lien  which 
could  be  enforced  by  a  proceeding  in 
rem. 

But    a    proceeding    in    personam    cannot 


be  maintained  against  the  owner  of  a 
ship  by  materialmen  furnishing  supplies, 
for  the  ship,  in  her  home  port,  where  the 
local  law  gives  no  specific  lien,  where 
the  owner  has  given  a  negotiable  promis- 
sory note  for  the  debt,  and  it  is  not  ten- 
dered to  be  given  up,  or  actually  sur- 
rendered, at  the  hearing.  Ramsay  v.  Alle- 
gre,  12   Wheat.   611.  6   L.   Ed.   746. 

81.  Repairs  or  supplies  furnished  to 
foreign  vessels. — The  General  Smith,  4 
Wheat.  438.  4  L.  Ed.  609;  The  Steamboat 
Planter,  7  Pet.  324,  8  L.  Ed.  700;  An- 
drews V.  Wall,  3  How.  568,  572,  11  L.  Ed. 
729;  The  Ship  Virgin.  8  Pet.  538,  8  L. 
Ed.  1036;  J.  E.  Rumbell,  148  U.  S.  1.  19, 
37  L.  Ed.  345;  The  Glide,  167  U.  S.  606, 
624,  42  L.  Ed.  296;  The  John  G.  Stevens, 
170  U.  S.  113,  117,  42  L.  Ed.  969;  The 
Lottawanna,  20  Wall.  201,  218,  22  L.  Ed. 
259;  The  Guy.  9  Wall.  758,  19  L.  Ed.  710; 
The  Kalorama,  10  Wall.  204,  214,  19  L. 
Ed.  941;  The  St.  Jago  De  Cuba,  9  Wheat. 
409,  6  L.  Ed.  122;  The  Laura.  19  How. 
22,  15  L.  Ed.  534;  The  Grapeshot.  9  Wall. 
129.  19  L.  Ed.  651;  The  Lula,  10  Wall. 
192,  19  L.  Ed.  906.  See  the  title  MARI- 
TIME LIENS. 

Effect  of  pendency  of  action  in  state 
courts. — It  is  no  objection  to  the  asser- 
tion in  the  admiralty  of  a  maritime  lien 
against  a  vessel  for  necessary  repairs  and 
supplies  to  her  in  a  foreign  port  that  the 
libellant  has  brought  a  common-law  ac- 
tion for  the  value  of  the  repairs  and  sup- 
plies, the  action  not  being  yet  determined. 
The  Kalorama,  10  Wall.  204,  19  L.  Ed. 
941.  See,  generally,  the  title  ABATE- 
MENT, REVIVAL  AND  SURVIVAL, 
ante,  p.  12. 

82.  Repairs  to  vessels  in  dry  dock. — 
"As  all  serious  repairs  upon  the  hulls  of 
vessels  are  made  in  dry  dock,  the  propo- 
sition that  such  repairs  are  made  on  land 
would  practically  deprive  the  admiralty 
courts  of  their  largest  and  most  impor- 
tant jurisdiction  in  connection  with  re- 
pairs." Perry  v.  Haines.  191  U.  S.  17,  48 
L.  Ed.  73.  See,  ante,  "Launching  as  Pre- 
requisite to  Admiralt}^  Jurisdiction."  I, 
A,   5,   a.    (3). 

83.  Repairs  on  land. — Perrv  v.  Haines, 
191   U.   S.    17,   32,    48    L.    Ed.   73 


ADMIRALTY. 


143 


contribution  for  its  share  of  the  damage  which  has  been  thus  paid  to  the  cargo 
owners   is  one  within  the  admirahy   jurisdiction.''^"' 

(12)  Contracts  of  Bottomry  or  Respondentia. — The  jurisdiction  of  admiralty 
over  contracts   of  bottomry  and   respondentia   is   treated   in   another   title. '^•^ 

(13)  Marine  Insurance. — Admiralty  has  jurisdiction  of  a  libel  in  personam 
upon  a  policy  of  marine  insurance,  to  recover  for  a  loss.'^" 

b.  Torts — (1)  /;/  General. — The  courts  of  the  United  States,  proceeding  as 
courts  of  admiralty  and  maritime  jurisdiction,  have  jurisdiction  in  cases  of  mari- 
time torts,   in  personam  as   well   as  in  rem.^''' 

(2)  Jurisdiction  Dependent  on  Place  Where  Tort  Committed. — The  wrong 
and  injury  complained  of  must  have  been  committed  wholly  upon  the  high  seas  or 
navigable  waters,  or,  at  least  the  substance  and  consummation  of  the  same  must 
have  taken  place  upon  these  waters,  to  be  within  the  admiralty  jurisdiction.  In 
other  words  the  cause  of  damage,  in  technical  language,  whatever  else  attended 
it,  must  have  been  there  complete. ^^ 

(3)  Nature  and  Character  of  Tort — (a)  In  General. — The  definition  of  the 
term  "torts."  when  used  in  reference  to  admiralty  jurisdiction,  is  not  confined  to 
wrongs  or  injuries  committed  by  direct  force.  It  includes,  also,  wrongs  suffered 
in  consequence  of  the  negligence  or  malfeasance  of  others,  where 
the  remedy  at  common  law  is  by  an  action  on  the  case.**^ 


84.  Contribution,  where  one  of  two  ves- 
sels mutually  in  fault  has  paid  cargo  own- 
ers entire  loss. — Erie  R.  Co.  v.  Erie,  etc., 
Trans.  Co.,  204  U.  S.  220.  225,  51  L.  Ed. 
450.  See,  generally,  the  title  COL- 
LISION. 

"The  rule  of  the  common  law.  even, 
that  there  is  no  contribution  between 
wrongdoers,  is  subject  to  exception.  Pol- 
lock. Torts,  7th  ed.,  195,  196.  Whatever 
its  origin,  the  admiralty  rule  in  this  coun- 
try is  well  known  to  be  the  other  way." 
Erie  R.  Co.  v.  Erie  Trans.  Co.,  204  U.  S. 
220.  225,  51  L.  Ed.  450,  citing  The  North 
Star,  106  U.  S.  17,  27  L.  Ed.  91;  The 
Sterling  &  Equator,  106  U.  S.  647,  27  L. 
Ed.  98.  See  the  title  CONTRIBUTION 
AND    EXONER.\TlON. 

85.  Contracts  of  bottomry  or  respond- 
entia.—See  the  title  BOTTOMRY  AND 
RESPONDENTIA. 

86.  Marine  insurance. — Insurance  Co. 
V.  Dunham.  11  Wall.  1,  20  L.  Ed.  90;  In 
re  Louisville  Underwriters.  134  U.  S.  488, 
33  L.  Ed.  991.  See,  generallv,  the  title 
MARINE    INSURANCE. 

87.  Jurisdiction  over  torts — In  general. 
— Manro  v.  .\lmeida,  10  Wheat.  473.  6  L. 
Ed.  369;  The  Plymouth.  3  Wall.  20,  36, 
18  L.  Ed.  125;  Ex  parte  Easton,  95  U. 
S.  68.  72.  24  L.  Ed.  373;  Philadelphia, 
etc.,  R.  Co.  V.  Philadelphia,  etc..  Tow- 
boat  Co..  23  How.  209.  215,  16  L.  Ed.  433; 
The  Rock  Island  Bridge.  6  Wall.  213. 
215.  18  L.  Ed.  753;  Talbott  v.  Three 
Brigs,  1  Dall.  95.  1  L.  Ed.  52;  Martin  v. 
Hunter.  1  Wheat.  304.  335.  4  L.  Ed.  97; 
Ex  parte  Fasset.  142  U.  S.  479.  35  L.  Ed. 
1087;  Ex  parte  Gordon.  104  U.  S.  575,  576, 
2fi  L.  Ed.  104;  Murray  v.  The  Charming 
Betsey.  2  Cranch  64.  2  L.  Ed.  208;  The 
Apnllon.  9  Wheat.  362,  6  L.  Ed.  Ill;  The 
Belfast.   7   Wall.   624.   19    L.    Ed.  266. 

88.  Jurisdiction  dependent  on  place 
where  tort  committed. — The   Plymouth,   3 


Wall.  20.  34,  18  L.  Ed.  125;  The  Rock 
Island  Bridge,  6  Wall.  213,  215.  18  L.  Ed. 
753;  Philadelphia,  etc.,  R.  Co.  v.  Phila- 
delphia, etc.,  Towboat  Co.,  23  How.  209, 
215.  16  L.  Ed.  433;  The  Steamboat  Com- 
merce. 1  Black  574.  579,  17  L.  Ed.  107; 
The  Belfast,  7  Wall.  024,  637,  19  L.  Ed. 
266;  The  Steamboat  New  World  v.  King, 
16  How.  469.  14  L.  Ed.  1019;  Insurance 
Co.  T.  Dunham,  11  Wall.  1.  29.  20  L.  Ed. 
90;  Ex  parte  Gannett,  141  U.  S.  1,  18.  35 
L.    Ed.    631. 

The  jurisdiction  of  the  admiralty  does 
not  depend  upon  the  fact  that  the  injury 
was  inflicted  by  the  vessel,  but  upon  the 
locality — the  high  seas,  or  navigable 
waters  where  it  occurred.  The  Plymouth 
3  Wall.  20,  36,  18  L.  Ed.  125;  The  Rock 
Island  Bridge.  6  Wall.  213,  215,  18  L.  Ed. 
753. 

The  locus,  or  territory,  of  maritime  ju- 
risdiction where  torts  must  be  committed, 
and  where  business  must  be  transacted 
in  order  to  be  maritime  in  their  character, 
extends  not  only  to  the  main  sea,  but  to 
all  the  navigable  waters  of  the  United 
States,  or  bordering  on  the  same,  whether 
land  locked  or  open,  salt  or  fresh,  tide  or 
no  tide.  Insurance  Co.  v.  Dunham,  11 
W\all.  1.  20  L.  Ed.  90.  See.  generally,  the 
title    N.A VI GABLE    W.\TERS. 

89.     Nature    and     character     of      tort. 

Philadelphia,  etc..  R.  Co.  v.  Philadelphia 
etc..  Towboat  Co.,  23  How.  209,  215,  16 
L.  Ed.  433;  Leathers  v.  Blessing,  105  U. 
S.   626,   630,   26   L.    Ed.   1192.   1194. 

Every  species  of  tort,  however  occur- 
ring, and  whether  on  board  a  vessel  or 
not,  if  upon  the  high  seas  or  navigable 
waters,  is  of  admiralty  cognizance.  The 
Pbmiouth.    3   Wall.    20.   36.   18   L.    Ed.    125. 

Marine  torts  and  injuries  of  which  ad- 
miraltv  lias  jurisdiction  include  assaults 
or  other  personal  injuries.  collision, 
spoliation,  and  damage,  illegal   seizures  or 


144 


ADMIRALTY. 


(b)  Personal  Injuries. — A  libel  for  injuries  sustained  by  a  passenger  on  a 
steamboat,  proceeding  on  navigable  waters  is  within  the  admiralty  jurisdiction, 
and  may  be  enforced  by  a  proceeding  in  rem  against  the  vessel,^^'  and  an  injury 
to  persons  rightfully  going  on  board  a  vessel  at  a  wharf,  is  also  within  the  ad- 
miralty jurisdiction.^^ 

(c)  Death  by  Wrongful  Act. — In  the  absence  of  an  act  of  congress  or  a  state 
statute  giving  a  right  of  action  therefor,  a  suit  in  admiralty  cannot  be  main- 
tained to  recover  damages  for  the  death  of  a  human  being  caused  by  negli- 
gence.^^  Indeed,  ac'miralty  has  no  jurisdiction  to  entertain  a  libel  in  rem  in 
such  case  even  where,  by  the  local  law,  a  right  of  action  survives  to  the  adminis- 
trator or  relatives  of  the  deceased,  unless  a  lien  is  expressly  created  by  the  law.^^ 

(d)  Injuries  to  Ships  or  Vessels — aa.  Obstructions  to  Navigation. — It  is  a 
rule  of  maritime  law,  from  the  earliest  time,  "that  if  a  ship  run  foul  of  an 
anchor  left  without  a  buoy,  the  person  who  placed  it  there  shall  respond  in  dam- 
ages."^^  This  rule  extends  to  injuries  to  ships  or  vessels  by  piles  left  in  nav- 
igable waters  so  as  to  cause  injuries  to  vessels, ^^  to  an  injury  to  a  vessel  by  col- 
lision with  a  pier,^*^  and  to  an  injury  to  a  vessel  by  a  sunken  wreck  at  a  dock 
where  the  ship  discharges  her  cargo. ^" 

bb.  Collision. — Controversies  growing  out  of  collisions  are  cognizable  in  the 
admiralty. ^^ 


other  depredation  on  property,  and  illegal 
dispossession  or  withholding  of  possession 
from  the  owners  of  ships.  Ex  parte 
Easton.  95  U.  S.  68,   72,  24  L.   Ed.  373. 

90.  Injury  to  passengers. — The  Steam- 
boat New  World  v.  King,  16  How.  469, 
14  L.  Ed.  1019;  The  City  of  Panama,  101 
U.    S.   4.53.   463,   25   L.    Ed.   1061. 

91.  Injury  to  persons  rightfully  on 
board  while  vessel  is  moored  to  wharf. — 
Where  a  vessel  was  moored  to  a  wharf 
on  the  Mississippi  river,  with  her  gang 
plank  extending  to  the  shore,  and  the 
plaintiff,  in  accordance  with  the  usual 
custom,  went  on  board  to  ascertain 
whether  there  was  any  freight  for  him, 
and  was  injured  owing  to  the  negligent 
manner  in  which  the  goods  were  stored  on 
the  vessel,  it  was  held,  that  admiralty  had 
jurisdiction.  Leathers  v.  Blessing,  105  U. 
S.    626,    26    L.    Ed.    1192. 

92.  Death  by  Wrongful  Act.— The  Cor- 
sair, 1-15  U.  S.  335,  36  L.  Ed.  727;  The 
Harrisburg,  119  U.  S.  199.  30  L.  Ed.  358; 
The   Alaska,  130  U.   S.  201,  32  L.  Ed.   923. 

But  prohibition  will  not  lie  to  the  dis- 
trict court  of  the  United  States  sitting  in 
admiralty  to  prevent  it  from  taking  juris- 
diction of  a  libel  for  damages  for  the 
death  of  seamen  caused  by  collision,  the 
court  having  jurisdiction  of  the  vessel 
and  of  the  tort.  Ex  parte  Gordon,  104 
U.  S.  515,  26  L.  Ed.  104;  Ex  parte  Ferry 
Co..  104  U.  S.  519,  26  L.  Ed.  815.  See  the 
title    PROHIBITION. 

As  to  whether  right  of  action  for  death 
by  wrongful  act  is  within  the  clause  sav- 
ing to  suitors  the  right  of  common-law 
remedies,  see  ante,  "Action  for  Death  by 
Wrongful  Act,"  I,  A.  2,  b.  (2),  (b),  bb, 
(ff),   bbb. 

93.  Right  to  sue  in  rem  under  state  stat- 
ute givig  right  of  action. — The  Corsair, 
145  U.   S.   335,   36   L.   Ed.   727;   The  Albert 


Dumois,  177  U.  S.  240,  258,  44  L.  Ed.  751.' 
See,  also,  Workman  v.  New  York,  179  U. 
S.    532.    587,   45    L.    Ed.    314. 

94.  Injuries  to  ships  by  obstructions  to 
navigation. — Philadelphia,  etc.,  R.  Co.  v. 
Philadelphia,  etc.,  Towboat  Co..  23  How. 
209,  215,  16  L.  Ed.  433.  See.  generally, 
the  title   NAVIGABLE  WATERS. 

95.  Piles  obstructing  navigation. — 
Where  a  railroad  company  employed  con- 
tractors to  build  a .  bridge,  and  for  that 
purpose  to  drive  piles  in  a  river,  and, 
owing  to  the  abandonment  of  the  con- 
tract, the  piles  were  left  in  the  river,  in 
such  a  condition  as  to  injure  a  vessel 
when  sailing  on  her  course,  the  railroad 
company  were  responsible  for  the  injury. 
Philadelphia,  etc.,  R.  Co.  v.  Philadelphia, 
etc.,  Towboat  Co..  23  How.  209,  16  L. 
Ed.    433. 

96.  Injury  to  a  vessel  by  collision  v/ith 
a  pier. — Atlec  v.  Packet  Co.,  21  Wall.  389, 
22    L.    Ed.    619. 

97.  Injuries  to  vessel  by  sunken  wreck. 
— Panama  R.  Co.  v.  Napier  Shipping  Co., 
166    U.    S.    280.    41    L.    Ed.    1004. 

98.  Collision.— The  Continental,  14 
Wall.  345,  355,  20  L.  Ed.  801;  The  Bel- 
genland,  114  U.  S.  355.  29  L.  Ed.  152; 
The  Moses  Taylor  v.  Hammons,  4  Wall. 
411,  18  L.  Ed.  397;  The  Hine  v.  Trevor, 
4  Wall.  555,  18  L.  Ed.  451;  The  Belfast, 
7  Wall.  624.  19  L.  Ed.  266;  Leon  v.  Gal- 
ceran,  11  Wall.  185,  20  L.  Ed.  74;  Ameri- 
can Steamboat  Co.  v.  Chace,  16  Wall.  522, 
21  L.  Ed.  369;  Schoonmaker  v.  Gilmore, 
102  U.  S.  118.  119,  26  L.  Ed.  95;  Work- 
man T'.  New  York,  179  U.  S.  532,  573,  45 
L.  Ed.  314;  Peters  v.  Warren  Ins.  Co.,  14 
Pet.  99.  10  L.  Ed.  371;  The  Siren.  7  Wall. 
152.  19  L.  Ed.  129.  See,  generallv,  the 
title    COLLISION. 

A  vessel  is  liable  in  rem  for  collision, 
whether    operated    by    owner    or    a    char- 


ADMIRALTY. 


145 


(e)  Injuries  on  Land  Caused  by  Ships  or  Vessels. — Admiralty  has  no  juris- 
diction over  injuries  on  shore  caused  by  ships  or  vessels. ^^  Thus  admiralty  has 
no  jurisdiction  of  an  action  for  injuries  to  a  building  caused  by  the  spars  of  a 
vessel;!  nor  of  an  action  for  damage  by  fire  to  buildings  on  land  due  to  the 
negligence  of   those  in  charge  of   a  ship  engaged  on  navigable  waters. ^ 

(f )  Injuries  to  Aids  to  Navigation  by  Ships  or  Vessels. — Admiralty  has  ju- 
risdiction over  injuries  to  a  beacon,  although  it  is  built  on  piles  driven  in  the 
bottom.^ 

(g)  Seizure  or  Dispossession  of  Property. — Every  violent  dispossession  of 
property  on  the  ocean  is,  prima  facie,  a  maritime  tort,  and,  as  such,  it  belongs 
to  the  admiralty  jurisdiction.'*  In  case  of  the  violent  seizure  on  the  ocean  of  a 
sum  of  money,  the  owner  is  entitled  to  admiralty  process  against  the  property, 
where  it  is  brought  within  the  reach  of  admiralty  process.^  And  in  such  case, 
where  the  property  cannot  be  reached  by  admiralty  process,  the  remedy  in  per- 
sonam is  pursued  in  admiralty.^     The  owner  of  property  wrongfully  seized  by 


terer.  The  China,  7  Wall.  53,  70,  19  L. 
Ed.  67;  The  Barnstable,  181  U.  S.  464, 
468.  45  L.  Ed.  955.  See,  generally,  the 
title    COLLISION. 

Municipal  fire  boat. — A  libel  in  per- 
sonam may  be  maintained  in  admiralty 
against  the  city  of  New  York  to  recover 
for  injuries  to  a  vessel  by  collision  caused 
by  the  negligence  of  those  in  charge  of  a 
fire  boat  belonging  to  the  city  while  an- 
swering a  fire  call.  Workman  v.  New 
York,   179  U.   S.   552.  45   L.   Ed.  314. 

The  local  law  yields  to  the  general 
maritime  law  with  respect  to  the  liability 
of  a  city  for  an  injury  to  a  vessel  by  col- 
lision with  its  fireboat  on  its  way  to  as- 
sist in  putting  out  the  fire.  Workman  v. 
New  York,  179  U.  S.  552,  45  L.  Ed.  314. 

Collision  on  high  seas  between  foreign 
ships. — See,  ante,  "Jurisdiction  of  Suits 
between   Foreigners."   I,  A,  3. 

99.  Injuries  on  shore  by  vessels. — John- 
son f.  Chicago,  etc.,  Elevator  Co.,  119  U. 
S.  388,  30  L.  Ed.  447;  Homer  Ramsdell 
Transp.  Co.  v.  La  Compagnie  Generale 
Transatlantique,  182  U.  S.  406,  411,  45  L. 
Ed.  1155,  1159;  The  Blackhealth.  195  U. 
S.   361.   49    L.   Ed.   236. 

Where  damages  done  is  done  wholly 
upon  land,  the  fact  that  the  cause  of  the 
damage  originated  on  water  subject  to  the 
admiralty  jurisdiction  does  not  make  the 
cause  one  for  the  admiralty.  The  Plym- 
outh, 3  Wall.  20,  18   L.   Ed.' 125. 

1.  Injury  to  building. — Where  the  jib 
boom  of  a  vessel  which  was  being  towed 
up  the  Chicago  river,  at  Chicago,  struck 
a  warehouse  on  the  shore  and  caused  the 
loss  of  a  large  quantity  of  corn  stored 
therein,  it  was  held,  that  the  cause  of 
action  was  not  within  the  admiralty  ju- 
risdiction. Johnson  v.  Chicago,  etc..  El- 
evator  Co.,    119   U.    S.    388,   30   L.    Ed.   447. 

The  fact  that  the  state  laws  give  a  lien 
on  the  vessel  does  not  alter  the  rule.  The 
cases  in  which  state  statutes  have  been 
held  void  by  this  court,  to  the  extent  in 
which  they  authorized  suits  in  rem 
against  vessels,  because  they  gave  to  the 
state    courts    admiralty    jurisdiction,    were 

1  U  S  B^nc-10 


only  cases  where  the  causes  of  action  were 
cognizable  in  the  admiralty.  Johnson  v. 
Chicago,  etc.,  Elevator  Co.,  119  U.  S.  388. 
30  L.  Ed.  447. 

2.  Fires  on  land  set  by  vessels. — Where 
buildings  on  land  are  ignited  through  the 
negligence  of  those  in  charge  of  a  ship 
in  navigable  waters,  admiralty  has  no 
jurisdiction  of  a  suit,  either  in  rem  or  in 
personam,  by  any  one  of  the  suflferers  by 
the  fire,  to  recover  damages  from  the 
vessel  or  her  owner,  the  substance  and 
consummation  of  the  tort  having  taken 
place  on  land.  The  Plymouth,  3  Wall.  20, 
30.  18  L.  Ed.  125;  Ex  parte  Phenix  Ins. 
Co.,   118  U.  S.  610.  30   L.   Ed.  274. 

Hence,  where  a  vessel  lying  at  a  wharf, 
on  waters  subject  to  admiralty  jurisdic- 
tion, took  fire,  and  the  fire,  spreading  it- 
self to  certain  storehouses  on  the  wharf, 
consumed  these  and  their  stores,  it  was 
held,  not  to  be  a  case  for  admiralty  pro- 
ceeding. The  Plymouth,  3  Wall.  20,  18 
L.    Ed.   125. 

3.  Injuries  to  beacon. — The  Blackheath, 
195  U.  S.  361,  49  L.  Ed.  236.  (Beacon 
15  or  20  feet  from  the  channel  of  Mobile 
river  or  bay.  in  water  12  or  15  feet  deep.) 

4.  Seizure  on  ocean. — L'Invincible,  1 
Wheat.  238,  255,  4  L.  Ed.  80;  Slocum  v. 
Mayberry,  2   Wheat.   1.   4  L.   Ed.   169. 

Seizure  by  commissioned  cruiser  during 
war. — But  sitting  and  judging,  as  such 
courts  do,  by  the  law  of  nations,  the  mo- 
ment it  is  ascertained  to  be  a  seizure  by 
a  commissioned  cruiser,  made  in  the  le- 
gitimate exercise  of  the  rights  of  war, 
the  progress  of  a  neutral  court  of  admi- 
ralty is  arrested;  for  the  circumstance  is, 
in  those  courts,  a  sufficient  evidence  of 
right.  L'Invincible.  1  Wheat.  238,  255, 
4   L.   Ed.   80.      See   the   title    PRIZE. 

5.  Jurisdiction  in  rem. — Manro  v.  Al- 
meida,   10   Wheat.    473,   486.   6    L.    Ed.    369. 

6.  Jurisdiction  in  personam. — Manro  v. 
Almeida,  10  Wheat.  473.  486.  6  L.  Ed.  369, 
citing  Maley  v.  Shattuck.  3  Cranch  458,  22 
L.  Ed.  498;  Murray  v.  The  Charming  Bet- 
sey. 2  Cranch  64,  2  L.   Ed.  208. 


146 


ADMIRALTY. 


the  collector  of  customs  may  maintain  a  libel  in  admiralty  against  the  collector, 
the   seizure  being  a  marine   tort   cognizable   in   admiralty.' 

(h)  Loss  of  Goods  by  Carriers. — Admiralty  has  jurisdiction  of  a  proceeding 
against  a  ship  for  loss  of  goods  carried.^ 

c.  Actions  in  Regard  to  Ozvnership  or  Possession  of  Vessels. — The  courts 
of  admiralty  of  the  United  States  have  jurisdiction  of  petitory  as  well  as  mere 
possessory  actions.*^ 

d.  Equitable  Relief — (1)  Direct  Proceedings  for  Equitable  Relief. — Ad- 
miralty has  no  general  equity  jurisdiction  and  cannot  afford  equitable  relief  in 
a  direct  proceeding  for  that  purpose. ^"^  It  cannot  entertain  a  bill  or  libel  to  cor- 
rect a  mistake.ii  or  declare  or  enforce  a  trust  or  equitable  title, ^^  or  exercise  ju- 
risdiction   in    matters    of    account, ^-"^  or    entertain    a    bill    for    specific    perform- 


7.  Seizure  of  yacht  by  collector  of  port. 

— Where  a  pleasure  yacht  was  purchased 
in  England  and  brought  to  this  country 
and  was  seized  by  the  collector  at  the 
port  of  New  York  on  the  ground  that  she 
was  subject  to  duty,  it  was  held,  that  the 
owner  could  maintain  a  libel  against  the 
collector,  the  seizure  being  a  marine  tort 
cognizable  in  admiralty.  Ex  parte  Fas- 
sett,  142  U.  S.  479,  35  L.  Ed.  1087;  The 
Conquerer,  166  U.  S.  HO,  41  L.  Ed.  937; 
Schoenfeld  v.  Hendricks,  152  U.  S.  691, 
694,  38  L.  Ed.  601.  See,  generally,  the 
title   REVENUE  LAWS. 

8.  Loss  of  goods  by  carrier. — Liverpool, 
etc..  Steam  Co.  v.  Phenix  Ins.  Co.,  129  U. 
S.  397,  32  L.  Ed.  788;  Pearce  v.  Page.  24 
How.  228,  16  L.  Ed.  623.  See  ante,  "Con- 
tracts of  Affreightment  and  Charter 
Party,"   L  A,  6,   a,   (3).   (b). 

9.  Actions  in  regard  to  ownership  or 
possession  of  vessel. — Ward  v.  Peck,  18 
How.   267.  15  L.  Ed.   383. 

"In  the  case  of  the  New  England  Ins. 
Co.  V.  Brig  Sarah  Anne,  13  Pet.  387,  10  L. 
Ed.  213,  in  this  court,  the  only  question 
was  the  title  or  ownership  of  the  brig 
yet  the  cause  was  entertained  without  any 
expression  of  doubt  as  to  jurisdiction." 
Ward  V.  Peck,  18  How.  267,  15  L.  Ed.  383. 

10.  Equitable  relief  in  direct  proceedings 
for  equitable  relief. — United  States  v.  Cor- 
nell Steamboat  Co.,  202  U.  S.  184,  50  L- 
Ed.  987;  Rea  v.  The  Eclipse.  135  U.  S. 
599.  34  L.  Ed.  269.  See,  generally,  the 
title  EQUITY. 

11.  Bill  or  libel  to  correct  mistake. — 
Ward  V.  Thompson,  22  How.  330.  16  L. 
Ed.  249;  Rea  v.  The  Eclipse,  135  U.  S. 
599.  34  L.  Ed.  269.  See,  generally,  the  title 
MISTAKE  AND   ACCIDENT. 

12.  Bill  or  libel  to  enforce  trust  or  eq- 
uitable title. — Ward  v.  Thompson,  22 
How.  330.  16  L.  Ed.  249;  Rea  v.  The 
Eclipse.  135  U.  S.  599.  34  L.  Ed.  269.  See, 
generally,  the  title  MISTAKE  AND  AC- 
CIDENT. 

Where  person''.  j'Ulhorizftd  to  sell  a  ves- 
sel, sold  it,  upon  condition  that  it  was 
not  damaged,  beyond  a  certain  sum,  and 
one  of  the  owners  refused  to  sell  upon 
such  condition,  it  was  held,  that  admi- 
ralty had  no  jurisdiction  to  grant  relief 
to    the    purchaser   who    had   paid    part    of 


the  purchase  money,  the  contract  of  sale 
upon  condition  being  entirely  unauthor- 
ized and  the  purchaser's  rights  being 
purely  equitable.  Rea  v.  The  Eclipse,  135 
U.    S.    599.    34   L.    Ed.   269. 

13.  Matters  of  account. — Grant  v.  Poil- 
lon,  20  How.  162,  15  L.  Ed.  873;  Minturn 
V.  Maynard,  17  How.  477,  15  L-  Ed.  235; 
Rea  V.  The  Eclipse,  135  U.  S.  599,  34  L. 
Ed.  269.  See,  generally,  the  title  AC- 
COUNTS AND  ACCOUNTING,  ante, 
p.  70. 

Accounting  between  part  owners  of  ves- 
sels.— Admiralty  has  no  jurisdiction  in 
matters  of  account  between  part  owners 
of  a  ship  or  vessel.  Ward  v.  Thompson. 
22  How.  330.  333.  16  L.  Ed.  249;  Grant 
V.  Poillon,  20  How.  162,  168,  15  L-  Ed. 
873;  Orleans  v.  Phoebus.  11  Pet.  175,  9 
L.  Ed.  677;  Vandewater  z'.  Mills,  19  How. 
82,  92.  15  L.   Ed.   554. 

If  the  party  desires  an  account,  his 
remedy  is  in  a  court  of  chancery.  If  his 
complaint  be  for  a  breach  of  some  inde- 
pendent covenant,  he  should  seek  his 
remedy  in  a  court  of  common  law.  Ward 
V.  Thompson,  22  How.  330,  333,  16  L.  Ed. 
249. 

A  contract  between  two  persons,  one 
of  whom  had  chartered  a  vessel,  whereby 
he  was  to  act  as  master,  and  the  other  as 
mate  of  the  vessel,  and  the  two  were  to 
share  equally  in  the  profits  of  the  con- 
templated voyages,  was  held  not  to  be 
within  the  admiralty  jurisdiction.  Grant 
V.  Poillon,  20  How.  162,  169,  15  L.  Ed. 
873. 

Where  certain  parties  joined  together 
to  carry  on  an  adventure  in  trade  for  their 
mutual  benefit — one  contributing  a  ves- 
sel, and  the  other  his  skill,  labor,  expe- 
rience, etc. — and  there  was  to  be  a  com- 
munion of  profits  on  a  fixed  ratio,  it  was 
a  contract  over  which  a  court  of  admi- 
ralty had  no  jurisdiction.  Ward  v. 
Thompson.    22    How.    330,    16    L.    Ed.    249. 

Accounting  between  principal  and  agent. 
— Where  a  libel  was  filed  in  personam, 
against  the  owners  of  a  steamboat  in  Cal- 
ifornia, by  their  general  agent  or  broker, 
for  the  balance  of  an  account  for  money 
paid,  laid  out.  and  expended,  in  paying 
for  supplies,  repairs,  and  advertising  of 
the  steamboat,  together  with  commissions 


ADMIRALTY. 


147 


ance,!-*  or  take  jurisdiction  of  a  suit  for  the  foreclosure  of  a  mortgage  upon 
\essels/^  or  decree  the  sale  of  a  vessel  to  setde  a  dispute  between  part  owners, ^^ 
and,  unlike  a  court  of  equity,  admiralty  has  no  power  to  sequester  property. ^"^ 

(2)  Applying  Equitable  Principles  to  Cases  zvithin  Admiralty  Jurisdiction. — 
But  courts  of  admiralty  may  apply  equitable  principles  to  subjects  within  their 
jurisdiction,  and,  in  the  distribution  of  proceeds  in  their  possession  or  under 
their  control,  may  give  effect  to  equitable  claims. ^^ 

e.  General  Average. — The  owner  of  cargo  jettisoned  has  a  maritime  lien 
on  the  vessel  for  the  contributory  share  due  from  the  vessel  on  an  adjustment 
of  the  general  average,  which  lien  may  be  enforced  by  a  proceeding  in  rem  in 
the  admiralty. 1^^  But  since  in  cases  of  general  average  the  lien  is  a  qualified 
one,  dependent  upon  the  possession  of  the  goods,  and  ceases  when  they  are  de- 
livered to  the  owner  or  consignee,  after  such  delivery  the  admiralty  has  no 
jurisdiction  of  a  suit  in  personam  by  the  owner  of  the  vessel  against  the  con- 
signee for  contribution  by  way  of  general  average. ^^ 


on  the  disbursements,  the  libel  was  prop- 
erly dismissed,  for  want  of  jurisdiction, 
since  there  was  nothing  in  the  case  to 
bring  it  within  the  class  of  maritime  con- 
tracts; and  the  local  law  of  California, 
which  authorized  an  attachment  of  ves- 
sels for  supplies  or  repairs,  does  not  ex- 
tend to  the  balance  of  accounts  between 
agent  and  principal,  who  have  never  dealt 
on  the  credit,  pledge,  or  security  of  the 
vessel.  Alintburn  v.  Maynard,  17  How. 
477.  1.5  L.  Ed.  23.5.  See,  generally,  the 
title   PRINCIPAL   AXD   AGENT. 

14.  Specific  performance. — Montgomery 
V.  Henrv.  1  Dall.  49,  1  L.  Ed.  32;  Rea  v. 
The  Ecl'ipse,  13.5  U.  S.  599,  34  L.  Ed.  269. 
See,  gencrallv,  the  title  SPECIFIC  PER- 
FORMANCE. 

15.  Foreclosure  of  mortgages. — A  court 
of  admiralty  cannot  decree  the  sale  of 
a  ship  for  an  unpaid  mortgage,  or  declare 
her  to  be  the  property  of  the  mortgagees, 
and  direct  possession  of  her  to  be  given 
to  them.  Bogart  v.  The  Steamboat  John 
Jay,  17  How.  399,  15  L.  Ed.  95;  Rea  v. 
The  Eclipse.  135  U.  S.  599,  34  L.  Ed.  269; 
J.  E.  Rumbell,  148  U.  S.  1,  15,  37  L.  Ed. 
345.  See  ante,  "Mortgages,"  I.  A,  6,  a,  (9). 
And  see.  generally,  the  title  MORT- 
GAGES  AND   DEEDS    OF   TRUST. 

16.  Sale  of  vessel  to  settle  dispute  be- 
tween part  owners. — The  jurisdiction  of 
courts  of  admiralty,  in  cases  of  part 
owners  having  unequal  interest  and  shares, 
is  not,  and  never  has  been,  applied  to  di- 
rect a  sale,  upon  any  dispute  between 
t]:em  as  to  the  trade  and  navigation  of  the 
ship  engaged  in  maritime  voyages,  prop- 
erly so  called;  the  majority  of  the  owners 
have  a  right  to  employ  the  ship  on  such 
voj^ages  as  they  please,  giving  a  stipu- 
lation to  the  dissenting  owners  for  the 
safe  return  of  the  ship,  if  the  latter,  upon 
a  proper  libel  filed  in  the  admiralty,  re- 
quire it;  and  the  minority  of  the  owners 
mav  employ  the  ship  in  the  like  manner, 
if  the  majority  decline  to  employ  her  at 
all.  The  Steamboat  Orleans  v.  Phoebus, 
1]  Pet.  175,  9  L.  Ed.  677;  Grant  v.  Poil- 
lon.  20   How.    162.   168.  15   L.    Ed.   873. 

17.  Sequestering     property. — Ex     parte 


Phillips,   131   U.   S.  Appendix  CXLVII.  25 
L.   Ed.  781. 

18.  Applying  equitable  principals  to 
cases  vdthin  jurisdiction. — United  States 
V.  Cornell  Steamboat  Co.,  202  U  S  184 
50  L.  Ed.  987;  Rea  v.  The  Eclipse,  135 
U.  S.  599,  34  L.  Ed.  269;  Watts  v.  Camors, 
115  U.  S.  353,  29  L.  Ed.  406;  The  Ship 
Virgm,  8  Pet.  538.  8  L.  Ed.  1036;  Bags 
of  Linseed,  1  Black  108,  114,  17  L.  Ed.  35. 

When  the  facts  before  a  court  of  ad- 
miralty, in  a  matter  within  its  jurisdic- 
tion, are  such  that  a  court  of  equity  would 
relieve,  and  a  court  of  law  could  not,  it  is 
the  duty  of  the  court  of  admiralty  to 
grant  relief.  Watts  v.  Camors,  115  U  S. 
353,  29  L.  Ed.  406;  The  Ship  Virgin,  8 
Pet.    538.  8    L.    Ed.   1036. 

"Even  in  cases  of  marine  torts,  inde- 
pendent of  prize,  courts  of  admiralty  are 
in  the  habit  of  giving  or  withholding  dam- 
ages upon  enlarged  principles  of  justice 
and  equity,  and  have  not  circumscribed 
themselves  within  the  positive  boundaries 
of  mere  municipal  law.  They  have  exer- 
cised a  conscientious  discretion  upon  the 
subject.  A  party  who  is  in  delicto,  ought 
to  make  a  strong  case,  to  entitle  himself 
to  general  relief."  The  Marianna  Flora. 
11  Wheat.  1,  54,  6  L.   Ed.  405. 

19.  General  average. — Dupont  de  Ne- 
mours c'.  Vance.  19  How.  162.  15  L.  Ed. 
584.  See,  generally,  the  title  GENERAL 
AVERAGE. 

20.  Suit  by  owner  of  vessel  against  con- 
signee, after  delivery  of  goods. — Cutler  v 
Rae.    7    How.    729,    12    L.    Ed.    890. 

Where  a  vessel  was  run  on  shore  by 
the  captain  in  order  to  save  the  lives  of 
those  on  board,  and  for  the  preservation 
of  the  cargo,  by  which  act  the  vessel  was 
totally  lost,  but  the  cargo  saved  and  de- 
livered to  the  consignee,  a  libel  in  per- 
sonam, filed  by  the  owner  of  the  vessel 
against  the  consignee  of  the  cargo  (and 
the  result  would  be  the  same  if  filed 
against  the  owner  of  the  cargo),  for  a 
contribution  by  way  of  general  average, 
cannot  be  sustained  in  the  admiralty 
courts  of  the  United  States.  Cutler  v. 
Rae,   7   How.   729,  12    L.   Ed.  890. 


148 


ADMIRALTY. 


f.  Maritime  Liens. — Jurisdiction  to  enforce  maritime  liens  by  a  pro- 
ceeding in  rem  is  exclusive  in  the  admiralty. 21  But,  a  party  may,  of  course, 
waive  his  maritime  lien  and  resort  to  his  common-law  remedy  either  in  the  state 
or  federal  courts.^^ 

g.  Seizures  for  Forfeitures. — Informations  to  recover  municipal  forfeitures, 
where  the  seizure  is  made  in   navigable   waters,  are  cognizable  in  admiralty, -^ 


21.  Maritime  liens. — Leon  v.  Galceran, 
11  Wall.  185,  20  L.  Ed.  74;  Norton  v.  Swit- 
zer.  93  U.  S.  355,  23  L.  Ed.  903.  Moran 
V.  Sturges,  154  U.  S.  256,  38  L.  Ed.  981; 
The  Belfast,  7  Wall.  624,  19  L.  Ed.  266; 
The  Eagle,  8  Wall.  15.  19  L.  Ed.  365;  Ed- 
wards V.  Elliott,  21  Wall.  532.  22  L.  Ed. 
487;  The  Lottawanna,  20  Wall.  201,  22 
L.  Ed.  259;  United  States  v.  Ames,  99  U. 
S.  35.  25  L.  Ed.  295;  American  v.  Chace, 
16  Wall.  522,  21  L.  Ed.  369;  Norton 
V.  Switzer,  93  U.  S.  355,  23  L-  Ed.  903; 
Johnson  v.  Chicago,  etc..  Elevator  Co., 
119  U.  S.  388,  397,  30  L.  Ed.  447;  J.  E.  Rum- 
bell,  148  U.  S.  1,  37  L.  Ed.  345;  The  Glide, 
167  U.  S.  606.  42  L.  Ed.  296;  Knapp,  etc., 
Co.  V.  McCafifrey,  177  U.  S.  638,  642.  44 
L.  Ed.  921;  Perry  v.  Haines,  191  U.  S. 
17,  24,  48  L.  Ed.  73;  The  General  Smith, 
4  Wheat.  438.  4  L.  Ed.  609;  The  Lotta- 
wanna, 21  Wall.  558,  579,  22  L.  Ed.  654;  ' 
The  Steamer  St.  Lawrence,  1  Black  522, 
529,  17  L.  Ed.  180;  The  John  G.  Stevens, 
170  U.  S.  113,  117,  42  L.  Ed.  969;  The 
Maggie  Hammond.  9  Wall.  435,  19  L. 
Ed.  772;  The  Kalorama,  10  Wall.  204.  19 
L.  Ed.  941.  See,  generally,  the  title 
MARITIME   LIENS. 

A  proceeding  in  a  state  court  to  wind 
up  a  corporation  owning  vessels,  and  the 
appointment  of  a  receiver,  does  not  di- 
vest the  admiralty  of  jurisdiction  to  en- 
force maritime  liens  existing  against  the 
vessels,  and  a  judgment  of  the  state  court 
enjoining  libellants  from  any  further  pro- 
ceedings to  enforce  their  liens  upon  such 
vessels  is  improper,  especially  where  the 
vessels  were  seized  under  process  issued 
from  the  admiralty  court  before  the  re- 
ceiver had  qualified.  Moran  v.  Sturges. 
154   U.    S.    256.    38    L.    Ed.   981. 

Lien  added  by  state  statute  to  maritime 
cause  of  action. — Wherever  any  lien  is 
given  by  a  state  statute  for  a  cause  of  ac- 
tion cognizable  in  admiralty,  either  in  rem 
or  in  personam,  proceedings  in  rem  to  en- 
force such  lien  are  within  the  exclusive 
jurisdiction  of  the  admiralty  courts. 
Knapp,  etc.,  Co.  v.  McCafifrey,  177  U.  S. 
638,  642,  44  L.  Ed.  921;  The  Belfast.  7 
Wall.  624.  19  L.  Ed.  266;  The  Lottawanna, 
21  Wall.  558,  22  L.  Ed.  654;  J.  E.  Rumbell, 
148  U.  S.  1,  37  L.  Ed.  345;  The  Glide,  167 
U.  S.  606,  42  L.  Ed.  296;  Moran  v.  Sturges, 
154    U.    S.    256.   38    L-    Ed.    981. 

"It  is  competent  for  the  states  to  create 
liens  for  necessaries  furnished  to  domes- 
tic vessels,  and  that  such  liens  will  be  en- 
forced by  the  courts  of  admiralty  under 
their  general  jurisdiction  over  the  subject 
of  necessaries.  The  General  Smith,  4 
Whpat.  438,  4  L.  Ed.  609;  The   Steamboat 


Planter,  7  Pet.  324,  8  L.  Ed.  700;  The 
Steamer  St.  Lawrence,  1  Black  522.  17  L. 
Ed.  180;  The  Lottawanna,  21  Wall.  558, 
22  L.  Ed.  654;  The  Belfast,  7  Wall.  624, 
19  L.  Ed.  266;  J.  E.  Rumbell,  148  U.  S. 
1,  12,  37  L.  Ed.  345."  The  Roanoke,  189 
U.  S.  185,  194.  47  L.  Ed.  770.  See.  gen- 
erally,   the    title    MARITIME    LIENS. 

Lien  given  by  state  statute  for  non- 
maritime  cause  of  action. — State  legisla- 
tures have  no  authority  to  create  a  inari- 
time  lien,  nor  can  they  confer  any 
jurisdiction  upon  a  state  court  to  enforce 
such  a  lien  by  a  suit  or  proceeding  in 
rem  as  practised  in  the  admiralty  courts. 
The  Belfast,  7  Wall.  624,  19  L.  Ed.  266; 
Edwards  v.  Elliott,  21  Wall.  532,  22  L. 
Ed.  487;  The  Moses  Taylor  v.  Hammons, 
4  Wall.  411.  18  L.  Ed.  397;  The  Hine  v. 
Trevor.  4  Wall.  555,  18  L.  Ed.  451;  Knapp, 
etc.,  Co.  V.  McCafifrey,  177  U.  S.  638,  642. 
44  L.  Ed.  921;  The  Roanoke.  189  U.  S. 
185,  47  L.  Ed.  770;  Perry  v.  Haines,  191 
U.  S.  17,  48  L.  Ed.  73;  The  Winnebago, 
205  U.  S.  354,  363,  51  L.  Ed.  836;  The 
John  G.  Stevens,  170  U.  S.  113,  117,  42 
L.     Ed,    969. 

22.  Waiver  of  lien  and  resort  to  com- 
mon-la ..v  remedy. — Leon  v.  Galceran,  11 
Wall.  185,  20  L.  Ed.  74;  Shoonmaker  v. 
Gilmore.  102  U.  S.  118.  26  L.  Ed.  95; 
Norton  v.  Switzer,  93  U.  S.  355,  23  L.  Ed. 
903;  American  Steamboat  Co.  v.  Chace, 
16  Wall.  522,  21  L.  Ed.  369;  The  Belfast, 
7  Wall.  624,  646,  19  L.  Ed.  266;  The 
Moses  Taylor  v.  Hammons.  4  Wall.  411, 
18  L.  Ed.  397;  The  Hine  v.  Trevor.  4  Wall. 
555,  18  L.  Ed.  451;  Johnson  v.  Chicago, 
etc..  Elevator  Co.,  119  U.  S.  388,  397, 
30  L.  Ed.  447;  The  Glide.  167  U.  S.  606, 
42  L.  Ed.  297;  Perry  v.  Haines,  191  U.  S. 
17,  24,  48  L.  Ed.  73;  The  Lottawanna.  21 
Wall.  558.  579.  22  L.  Ed.  654;  The  Kal- 
orama.  10  Wall.   204,   19   L.   Ed.  941. 

23.  Seizure  on  navigable  waters. — Con- 
fiscation Cases,  7  Wall.  454,  19  L.  Ed.  196; 
Morris's  Cotton,  8  Wall.  507,  511.  19  L. 
Ed.  481;  Armstrong's  Foundry  v.  United 
States,  6  Wall.  766.  769.  18  L.  Ed.  882;  In- 
surance Co.  V.  United  States,  6  Wall.  759. 
765,  18  L.  Ed.  879;  United  States  v.  Hart,  & 
Wall.  770,  772,  18  L.  Ed.  914;  Garnhart  f. 
United  States.  16  Wall.  162,  165,  21  L.  Ed. 
275;  The  Sarah.  8  Wheat.  391,  394,  5  L. 
Ed.  644;  Cleveland  Ins.  Co.  v.  Globe  Ins. 
Co.,  98  U.  S.  366,  375,  25  L.  Ed.  201; 
Whelan  v.  United  States.  7  Cranch  112, 
3  L.  Ed.  286.  See.  generally,  the  title 
REVENUE   LAWS. 

Cases  of  seizure  upon  waters  naviga- 
ble from  the  sea  by  vessels  of  more  than 
ten    tons    burden,    for    breach    of   the    laws 


ADMIRALTY. 


149 


but  it  is  otherwise  where  the  seizure  is  made  on  land.-^  Thus,  informations  for 
forfeiture  for  violation  of  the  nonintercourse^^  or  nonimportation  laws^^*^  for 
violation  of  the  act  of  congress  against  the  slave  trade, ^^  and  for  violation  of 
the  laws  against  piracy, ^^  are  cases  of  admir^-lty  and  maritime  jurisdiction. 
Proceedings  in  rem  for  forfeiture  are  in  no  way  dependent  upon  the  personal 
conviction  of  the  offender. ^^ 

h.  Proceedings  to  Limit  Liabilit\[  of  Ship  Onmers. — A  proceeding  under  the 
act  of  March,  1851,  to  limit  the  liability  of  ship  owners  is  one  pre-eminently  of 
admiralty  jurisdiction,'^**  provided  the  cause  of  action  for  which  the  limitation  of 


of  the  United  States,  are  civil  cases  of 
iidmirahy  and  maritime  jurisdiction. 
Whelan  v.  United  States.  7  Cranch  112, 
3  L.  Ed.  286. 

The  place  of  seizure,  and  not  the  place 
of  committing  the  cffense,  decides  juris- 
diction. The  Betsey  and  Charlotte,  4 
Cranch  443,  2  L.  Ed.  673;  The  Merino,  9 
Wheat.  .391,  6  L.   Ed.    118. 

24.  Where  the  seizure  is  made  on  land 
the  suit  is  one  at  common  law.  Confis- 
cation Cases,  7  Wall.  454,  19  L.  Ed.  196; 
Morris's  Cotton,  8  Wall.  ^Q~,  19  L.  Ed. 
481;  Armstrong's  Foundry  v.  United 
States,  6  Wall.  766,  769,  18  L.  Ed.  882; 
Insurance  Co.  v.  United  States,  6  Wall. 
7.59,  765,  18  L.  Ed.  879;  United  States  v. 
Hart,  6  Wall;  770,  772.  18  L.  Ed.  914; 
Garnhart  v.  United  States,  16  Wall.  162, 
165,  21  L.  Ed.  275;  The  Sarah.  8  Wheat. 
391,  394,  5  L.  Ed.  644;  Cleveland  Ins.  Co. 
V.  Globe  Ins.  Co.,  98  U.  S.  366,  375,  25  L. 
Ed.  201;  United  States  v.  Winchester,  99 
U.  S.  372.  25  L.  Ed.  479.  See,  generally. 
the   title   REVENUE    LAWS. 

Cotton  found  on  land  in  Mississippi 
was,  February  18,  1863.  seized  by  the 
naval  forces  of  the  United  States,  without 
the  order  of  the  president,  and  delivered 
by  an  officer  of  the  navy  to  the  marshal 
of  the  United  States  for  the  southern  dis- 
trict of  Illinois.  A  libel  was  filed  in  the 
district  court  for  that  district,  alleging  as 
the  ground  of  seizure  that  the  cotton  be- 
longed to  a  person  in  armed  rebellion 
against  the  United  States.  The  cotton 
was  sold,  and  a  decree  rendered,  whereby 
one-half  of  the  proceeds  was  paid  into 
the  treasury  of  the  United  States,  and  the 
other  half  ordered  to  be  paid  to  the  offi- 
cer as  informer,  who  declined  to  accept 
it,  and  the  check  therefor  was  deposited 
with  the  assistant  treasurer  at  St.  Louis, 
on  whom  it  had  been  drawn.  At  the 
instance  of  the  admiral,  the  supreme  court 
of  the  district  of  Columbia  sitting  in  ad- 
miralty took  jurisdiction  of  the  case,  and 
ordered  the  check  to  be  deposited  with 
the  assistant  treasurer  at  W^ashington,  and 
the  money  to  remain  in  his  hands  subject 
to  the  further  order  of  the  court.  The 
check  was  so  deposited,  and  the  court  by 
its  decree  distributed  the  mc  ney  to  the 
captors.  Held,  that  the  decrees  were 
void,  and  that  the  owner  of  the  cotton 
was  entitled  to  recover  the  net  proceeds 
of  the  sale  of  it.  United  States  %'.  Win- 
chester, 99  U.   S.   372.   25   L.   Ed.   479. 


25.  Violation    of    nonintercourse    act. — 

The  Octavia,  1  Wheat.  20,  4  L.  Ed.  25; 
The  Betsey  &  Charlotte,  4  Cranch  443, 
2  L.  Ed.  673.  See,  generally,  the 
title  EMBARGO  AND  NONINTER- 
COURSE   LAWS. 

26.  Violation  of  nonimportation  laws. 
—The  Samuel,  1  Wheat.  9,  4  L.  Ed.  23; 
The  Sarah,  8  Wheat.  391,  5  L.  Ed.  644. 
See,  generally,  the  title  EMBARGO  AND 
NONINTERCOURSE   LAWS. 

27.  Violation  of  slave  trade  act. — The 
Josefa  Segunda.  10  Wheat.  312,  6  L.  Ed. 
329;  The  Scooner  Sally,  2  Cranch  406.  3 
L  Ed.  320.  See,  generally,  the  title 
SLAVES. 

The  district  courts  have  jurisdiction, 
under  the  slave  trade  acts,  to  determine 
who  are  the  actual  captors,  under  a  state 
law  made  in  pursuance  of  the  4th  section 
of  the  slave  trade  act  of  1807,  c.  77,  and 
directing  the  proceeds  of  the  sale  of  the 
negroes  to  be  paid,  "one  moiety  for  the 
use  of  the  commanding  officer  of  the 
capturing  vessel,"  etc.  The  Josefa 
Segunda,    10   Wheat.    312,    6    L.    Ed.    329. 

28.  Violation  of  laws  against  piracy. — 
The  Palmyra,  12  Wheat.  1,  6  L.  Ed.  531. 
See,    generally,    the    title    PIRACY. 

29.  Personal  conviction  of  the  offender 
not  necessary. — The  Palmyra,  12  Wheat. 
1,  6  L.  Ed.  531;  The  Three  Friends,  166 
U.  S.  L  41  L.  Ed.  897  (seizure  for  breach 
of    neutrality    laws). 

30.  Proceedings  to  limit  liability  of 
ship  owners. — Oregon,  etc.,  Navigation  Co. 
V.  Balfour,  179  U.  S.  55,  45  L.  Ed.  82; 
Providence,  etc..  Steamship  Co.  v.  Plill 
Mfg.  Co.,  109  U.  S.  578,  27  L.  Ed.  1038; 
The  Benefactor,  103  U.  S.  239,  26  L.  Ed. 
351;  The  Scotland,  105  U.  S.  24,  26  L. 
Ed.  1001;  Butler  v.  Boston,  etc..  Steam- 
ship Co..  130  U.  S.  527,  32  L.  Ed.  1017; 
In  re  Morrison.  147  U.  S.  14,  37  L.  Ed. 
60,  67;  Norwich  Co.  v.  Wright,  13  Wall. 
104.  20  L.  Ed.  585;  In  re  Garnett,  141  U. 
S.  1.  35  L.  Ed.  631;  The  City  of  Norwich, 
118  U.  S.  468,  30  L.  Ed.  134;  The  Great 
Western,  118  U.  S.  520,  30  L.  Ed.  156; 
Ex  parte  Slayton,  105  U.  S.  451,  26  L.  Ed. 
1066. 

A  proceeding  to  limit  the  liability  of 
shipowners  is  an  equitable  action,  but 
one  not  in  any  sense  inconsistent  with  the 
admiralty  jurisdiction.  In  re  Morrison, 
147  U.  S.  14,  37  L.  Ed.  60,  67;  Oregon, 
etc..  Navigation  Co.  v.  Balfour,  179  U. 
S.    55,    45    L.    Ed.    82. 

Generally,    as    to    proceedings    to    limit 


150 


ADMIRALTY. 


liability  is  sought  is  within  the  admiralty  jurisdiction.^^ 

i.    Prize. Jurisdiction  in  cases  of  prize  is  conferred  upon  the  admiralty  courts 

by  the  o-rant  of  jurisdiction  of  all  causes  of  "admiralty  and  maritime  jurisdic- 
tion" as  prize  is  a  branch  of  admiralty  jurisdiction.'' ^  Admiralty  courts,  sit- 
tino-  as  prize  courts,  are  authorized  to  decree  restitution  in  whole  or  in  parr 
when  the  capture  is  wrongful ;  and  if  it  is  made  without  probable  cause,  may 
order  and  decree  damages  and  costs  against  the  captors.^s 


the   liability  of   ship   owners,   see   the   title 
SHIPS   AND   SHIPPING. 

31.  Original  cause  of  action  must  be 
within  admiralty  jurisdiction. — A  district 
court  cannot  take  jurisdiction  in  ad- 
miralty of  a  petition  for  a  limitation  of 
liability  where  it  would  not  have  had 
cognizance  in  admiralty  originally  of 
the  cause  of  action  involved.  Ex  parte 
Phenix  Ins.  Co.,  118  U.  S.  610.  30  L.  Ed. 
274. 

32.  Prize.— The  Admiral.  3  Wall.  603, 
18  L.  Ed.  58;  United  States  v.  Ames,  99 
U.  S.  35,  25  L.  Ed.  295;  The  City  of 
Panama,  101  U.  S.  453,  25  L.  Ed.  1061; 
The  Paquete  Habana,  175  U.  S.  677.  680, 
44  L.  Ed.  320;  Glass  v.  The  Sloop  Betsey, 
3  Dall.  6,  1  L.  Ed.  485;  Penhallow  v. 
Doane.  3  Dall.  54,  97,  1  L.  Ed.  507; 
Brown  v.  United  States,  8  Cranch  110, 
137,  3  L.  Ed.  504;  The  L'Invincible,  1 
Wheat.  238.  259,  4  L.  Ed  80;  The 
Thompson.  3  Wall.  155,  162,  18  L.  Ed. 
55;  United  States  v.  Weed,  5  Wall.  62,  18 
L.  Ed.  531;  The  Siren.  7  Wall.  152,  162,  19 
L.  Ed.  129;  United  States  v.  Peters,  3 
Dall.  121.  1  L.  Ed.  535;  The  Santissima 
Trinidad,  7  Wheat.  283,  350,  5  L.  Ed.  454; 
The  Alerta  v.  Moran,  9  Cranch  359,  3 
L.  Ed.  758;  Bingham  v.  Cabbot,  3  Dall. 
19,  1  L.  Ed.  491;  W.  B.  V.  Latimer,  4  Dall. 
App.  1,  1  L.  Ed.  915;  Martin  v.  Hunter. 
1  Wheat.  304,  4  L.  Ed.  97;  Talbot  v. 
Three  Brigs,  1  Dall.  95.  1  L.  Ed.  52; 
Kean  v.  The  Gloucester,  2  Dall.  36,  1  L. 
Ed.  278;  The  Adeline,  9  Cranch  244,  3 
L.  Ed.  719;  The  Amiable  Nancy,  3  Wheat. 
546.  4  L.  Ed.  456;  Jennings  v.  Carson,  4 
Cranch  2,  2  L.  Ed.  531;  Talbot  v.  Jasen.  3 
Dall.  133.  1  L.  Ed.  540.  See,  generally, 
the    title    PRIZE. 

Judicial  cognizance  of  prize  cases  is  de- 
rived from  that  article  of  the  constitu- 
tion which  ordains  that  the  judicial  power 
shall  pxtend  to  all  cases  of  admiralty  and 
maritime  jurisdiction;  and  the  district 
courts  for  many  years  exercised  jurisdic- 
tion in  such  cases  without  any  other  au- 
thority from  congress  than  what  was 
conferred  by  the  ninth  section  of  the 
judiciary  act,  which  gave  those  courts 
exclusive  original  cognizance  of  all  civil 
causes  of  admiralty  and  maritime  juris- 
diction, including  the  seizures  therein 
mentioned,  the  rule  adopted  being  that 
prize  jurisdiction  was  involved  in  the 
general  delegation  of  admiralty  and 
maritime  cognizance,  as  conferred  bv  the 
language  of  that  section.  United  States 
r.    Ames,    99    U.    S.    35,    25    L.    Ed.    295; 


Glass  V.  The  Sloop  Betsey.  3  Dall.  6, 
1  L.  Ed.  485;  The  .Admiral,  3  Wall.  603, 
18  L.  Ed.  58;  Jennings  v.  Carson,  4 
Cranch  2,  29,  2  L.  Ed.   531. 

The  district  court  holds  both  its  prize 
jurisdiction  and  its  jurisdiction  as  an  in- 
stance court  of  admiralty  from  the  con- 
stitution and  the  act  of  congress,  and  it 
is  but  one  court,  with  these  different 
branches  of  admiralty  jurisdiction,  as  well 
as  cognizance  of  other  and  distinct  sub- 
jects. United  States  v.  Weed,  5  Wall. 
62.  69,  18  L.  Ed.  531;  The  Siren,  7  Wall. 
152,    161,    19    L.    Ed.    129. 

Jurisdiction  not  dependent  on  prize 
act. — The  district  courts  of  the  United 
States  have  jurisdiction  of  questions  of 
prize,  and  its  incidents,  independent  of 
the  special  provisions  of  the  prize  act  of 
Tune  26th.  iPI''.  ch.  430  '^'^-f^  A'^iiable 
Nancy,   3   Wheat.    546.   4   L.    Ed.   456. 

Suits  by  prize  crew  for  prize  money. — - 
The  crew  of  a  privateer  may  file  a  libel  in 
admiralty  for  their  share  of  the  prize 
money.  Kearn  v.  The  Gloucester,  2  Dall. 
36,  1  L.   Ed.  278. 

Capture  on  navigable  river. — Admiralty 
has  jurisdiction  of  a  capture  on  a  naviga- 
ble river  of  property  belonging  to  a  citi- 
zen of  the  state  wherein  the  capture  is 
made.  W.  B.  v.  Latimer,  4  Dall.  Appendix 
1,  12,  1   L.   Ed.  915. 

Recaptures. — Recaptures  are  emphat- 
icall}^  cases  of  prize;  for  the  definition  of 
prize  goods  is.  tliat  they  are  goods  taken 
on  the  high  seas,  jure  belli,  out  of  the 
hands  of  the  enemy.  When  so  taken,  the 
captors  have  an  undoubted  right  to  pro- 
ceed against  them  as  belligerent  property, 
in  a  court  of  prize;  for  in  no  other  way. 
and  in  no  other  court,  can  the  questions 
presented  on  a  capture  jure  belli  be  prop- 
erly or  efifectually  examined.  The  Adeline, 
9    Crainch    244.   285,    3    L.    Ed.    719. 

Where  vessel  is  not  within  jurisdiction 
of  court. — The  United  States  district  court 
in  admiralty  has  no  jurisdiction  of  a  libel 
against  a  former  privateer  for  the  wrong- 
ful seizure  as  prize  of  war  of  a  vessel  be- 
longing to  a  citizen  of  the  United  States, 
where  the  vessel  so  seized  is  not  within 
the  jurisdiction  of  the  court.  United 
States  V.  Peters,  3  Dall.  121.  1  L.  Ed.  535. 
See,  also,  The  Santissima  Trinidad,  7 
Wheat.  283,  350.  5  L.   Ed.  454. 

33.  Power  to  decree  restitution  or  give 
damages.— The  Thompson,  3  Wall.  155, 
162,  18  L.  Ed.  55;  Glass  v.  The  Sloop 
Betsey,    3    Dall.    16.    1    L.    Ed.     485;     The 


ADMIRALTY. 


151 


j.  Sah'oge. — A  claim  for  salvage  may  be  enforced  in  the  admiralty  either  by 
proceedings  in  rem  or  in  personam.-"*  And  incidentally  admiralty  has"^  the  power 
to  determine  to  whom  the  residue  of  the  property  ought  to  be  delivered.^^ 

k.  Surveys. — The  subject  of  surveys  is  one  of  admiralty  jurisdiction,  since 
mariners  and  freighters  have  to  claim  the  aid  of  the  admiralty  to  release  them 
from  their  contract  in  cases  of  a  defect  of  seaworthiness.^*^ 

1.  Enforcement  of  Lien  for  Duties.— The  lien  for  duties  cannot  in  any 
case,  be  enforced  by  a  libel  of  information  in  the  admiralty;  the  revenue  juris- 
diction of  the  district  courts,  proceeding  in  rem,  only  extending  to  cases  of 
seizures  for  forfeitures  under  laws  of  impost,  navigation  or  trade  of  the  United 
States.  But  a  suit  at  common  law  may  be  instituted  in  the  district  or  circuit 
courts,  in  the  name  of  the  United  States,  founded  upon  their  legal  right  to  re- 
cover the  possession  of  goods  upon  which  they  have  a  lien  for  duties,  or  to  re- 
cover damages   for  the  illegal  taking  or  detaining  the  same.-^^ 

7.  Criminal  Jurisdiction.— Under  the  grant  by  the  constitution  of  judicial 
power  to  the  United  States  in  all  cases  of  admiralty  and  maritime  jurisdiction, 
and  under  the  rightful  legislation  of  congress,  the  courts  of  the  United  States', 
merely  by  virtue  of  this  grant  of  judicial  power,  and  in  tl^e  absence  of  leei=1ation 
by  congress,  have  no  criminal  jurisdiction  whatever.  The  criminal  jurisdiction 
of  the  courts  of  the  United  States  is  wholly  derived  from  the  statutes  of  the 
United  States.^s 

B.  Courts — 1.  District  Courts. — As  to  cases  of  a^'miral'v  and  maritime  ju- 
risdiction, including  prize  causes,  the  judiciary  act  of   1789.  in   8  9,  vested  the 


Santissima  Trinidad,  7  Wheat.  283,  5  L. 
Ed.    4.54. 

Prize  courts  have  exchisive  jurisdic- 
tion and  an  enlarged  discretion  as  to  the 
allowance  of  freight,  damages,  expenses, 
and  costs  in  all  cases  of  captures,  and  as 
to  all  torts,  and  personal  injuries,  and  ill- 
treatments,  and  abuse  of  power  connected 
with  captured  jure  belli;  and  the  courts 
will  frequently  award  large  and  liberal 
damages  in  those  cases.  The  Siren,  7 
Wall.   15?,  161,  19  L.    Ed.   129. 

The  jurisdiction  is  not,  therefore, 
limited  to  the  determination  of  the  sim- 
ple question  of  prize  or  no  prize.  But 
whatever  may  be  the  limitation  upon  the 
jurisdiction  of  a  prize  court  in  England, 
there  is  no  such  limitation  upon  the  dis- 
trict court  sitting  as  a  prize  court  in  this 
country.  The  Siren,  7  Wall.  152,  161,  19 
L.    Ed.  129. 

Outstanding  claims  upon  the  vessel,  ex- 
isting previous  to  the  capture,  cannot  be 
considered.  This  exclusion  rests  not  on 
the  ground  of  any  supposed  inability  of 
the  court  to  pass  upon  these  claims  cor- 
rectly, but  because  thev  are  superseded 
bv  the  capture.  The  Siren.  7  Wall.  152, 
162.  19  L.  Ed.  129,  citing  The  Battle.  6 
Wall.  498.  18  L.  Ed.  933;  The  Hamnton.  5 
Wall.  372.  18  L.  Ed.  659;  The  Frances,  8 
Cranch   418,   3   L.    Ed.    609. 

Jurisdiction  of  state  courts  after  decree 
of  restitution. — Where  restitution  is 
ordered  by  a  prize  court,  common-law 
courts  have  jurisdiction  of  an  action  to 
recover  the  value  of  the  vessel.  Ta.xier  v. 
Sweet,  2  Dall.   81,  1   L.   Ed.  298. 

34.  Salvage. — Admiralty  Rule  19;  United 


States  V.  Connell  Steamboat  Co.,  202  U. 
S.  184,  190,  50  L.  Ed.  987;  McDonough  v. 
Dannery,  3  Dall.  188,  1  L.  Ed.  563;  The 
Sybil,  4  Wheat.  98,  4  L.  Ed.  522-  The 
Sabine,  101  U.  S.  384,  25  L.  Ed.'  982; 
Hobart  v.  Drogan,  10  Pet.  108,  9  L.  Ed. 
363;  Peisch  z).  Ware,  4  Cranch  347.  2  L. 
Ed.  643;  The  Schooner  North  Carolina,  15 
Pet.  40,  48,  10  L.  Ed,  653.  See,  also.  Cope 
V.  Vallette  Dry  Dock  Co.,  119  U.  S.  625, 
30  L.  Ed.  501  (holding  dry  docks  not  to 
be  a  subject  of  salvage).  See  ante,  "Con- 
tracts of  Consortship,"  I,  A,  6.  a,  (5). 
And   see,   generally,    the   title    SALVAGE. 

35.  Disposition  of  residue  after  allow- 
ance of  salvage. — McDonough  z'.  Dannery 
3  Dall.  188,   1  L.  Ed.  563. 

36.  Surveys.— Dorr  v.  Pacific  Ins.  Co  ,  7 
Wheat.  581.  612.  5  L.  Ed.  528.  See,  gen- 
erally, the  title  SHIPS  AND  SHIPPING. 

37.  Enforcement  of  lien  for  duties.^ 
United  States  v.  350  Chests  of  Tea  12 
Wheat.  486,  487,  6  L.  Ed.  702.  See  gen- 
erally, the  title   REVENUE  LAWS. 

38.  Criminal  jurisdiction. — Manchester 
V.  Massachusetts,  139  U.  S.  240,  262,  35 
L.  Ed.  159;  Butler  v.  Boston,  etc.,  Steam- 
ship Co..  130  U.  S.  527.  32  L.  Ed  1017' 
The  Belfast,  7  Wall.  624,  19  L.  Ed  266- 
The  Eagle,  8  Wall.  15,  19  L.  Ed.  365: 
Leon  V.  Galceran,  11  Well.  185,  20  L.  Ed. 
74;  Steamboat  Co.  v.  Chace,  16  Wall.  522, 
21  L.  Ed.  369;  Schoonmaker  v.  Gilmore 
102  U.  S.  118.  26  L.  Ed.  95;  Insurance  Co. 
r.  Dunham,  11  Wall.  1.  20  L.  Ed.  90; 
Jones  z'.  United  States,  137  U.  S.  202.  21l', 
34  L.  Ed.  691.  Generally,  as  to  criminal 
iurisdiction  of  offenses  on  high  seas,  see 
the  title   CRIMINAL  LAW. 


152 


ADMIRALTY. 


exclusive  original  jurisdiction  in  the  district  court,  without  regard  to  the  sum  or 
value  in  controversy.-^^ 

2.  Circuit  Courts. — The  only  admiralty  and  maritime  jurisdiction  which 
belongs  to  the  circuit  courts  of  the  United  States  is  appellate.^"^ 

3.  Appellate  Courts — a.  Original  Jurisdiction. — The  supreme  court  has 
not  original  jurisdiction  of  a  personal  suit  against  a  state  to  recover  property 
in  its  possession,  where  the  property  is  not  in  the  custody  of  a  court  of  admiralty, 
or  brought  within  its  jurisdiction,  and  in  the  possession  of  a  private  person.*^ 


39.  District  courts. — The  Paquete 
Habana,  175  U.  S.  677.  680,  44  L.  Ed.  320; 
American  Ins.  Co.  v.  Canter,  1  Pet.  511, 
7  L.  Ed.  242;  Jennings  v.  Carson,  1  Pet. 
2,  7.  2  L.  Ed.  531;  Glass  v.  The  Sloop 
Betsey,  3  Dall.  16,  1  L.  Ed.  485;  The 
Admiral.  3  Wall.  603,  612,  18  L.  Ed.  58; 
Moran  v.  Sturges.  154  U.  S.  256,  38  L. 
Ed.  981;  New  Jersey  Steam  Nav.  Co.  v. 
Merchants"  Bank,  6  How.  344,  390,  12 
L.  Ed.  465;  The  Moses  Taylor  v.  Ham- 
mons,  4  Wall.  411,  18  L.  Ed.  397;  The 
Hine  v.  Trevor.  4  Wall.  555,  18  L.  Ed. 
451;  The  Lottawanna,  21  Wall.  558,  22 
L.  Ed.  654;  Johnson  v.  Chicago,  etc.. 
Elevator  Co.,  119  U.  S.  388,  30  L.  Ed. 
447;  J.  E.  Rumbell,  148  U.  S.  1.  37  L. 
Ed.  345;  Gelston  v.  Hoyt.  3  Wheat.  246, 
312.  4  L.  Ed.  381;  The  Sarah,  8 
Wheat.  391,  394,  5  L.  Ed.  644;  Penhallow 
V.  Doane,  3  Dall.  133,  1  L.  Ed.  540;  Talbot  v. 
Jansen.  3  Dall.  133.  1  L.  Ed.  540;  The  Bel- 
fast. 7  Wall.  624,  19  L.  Ed.  266;  American 
Steamboat  Co.  v.  Chace,  12  Wall.  522,  531, 
21  L.  Ed.  369;  United  States  v.  Beavns, 
3  Wheat.  336,  287,  4  L.  Ed.  404;  Stratton 
V.  Jarvis,  8  Pet.  4,  8  L.  Ed.  846. 

It  was  held,  that  the  provision  of  the 
ninth  section  of  the  judiciary  act,  vest- 
ing in  the  district  courts  of  the  United 
States  exclusive  cognizance  of  civil 
causes  of  admiralty  and  maritime  ju- 
risdiction, was  constitutional.  The  Moses 
Taylor  v.  Hammons,  4  Wall.  411,  18  L. 
Ed.    397. 

The  district  court  holds  both  its  prize 
jurisdiction  and  its  jurisdiction  as  an  in- 
stance court  of  admiralty  from  the  con- 
stitution and  the  act  of  congress,  and  it 
is  but  one  court,  with  these  different 
branches  of  admiralty  jurisdiction,  as 
well  as  cognizance  of  other  and  dis- 
tinct subjects.  United  States  v.  Weed,  5 
Wall.  62,  69,  18  L.  Ed.  531;  Glass  v.  The 
Sloop  Betsev.  3  Dall.  6,  16,  1  L.  Ed.  485; 
The  Admiral.  3  Wall.  603.  612.  18  L.  Ed. 
58;  The  Sarah.  8  Wheat.  391,  394,  5  L.  Ed. 
644;  The  Siren.  7  Wall.  152.  161,  19  L. 
Ed.  129. 

Admiralty  jurisdiction  distinct  from 
common-law  jurisdiction. — By  the  act 
constituting  the  judicial  s^-stem  of  the 
United  States,  the  district  courts  are 
courts  both  of  common  law  and  admir- 
alty jurisdiction.  But  although  the  two 
jurisdictions  are  vested  in  the  same  tri- 
bunal, they  are  as  distinct  from  each 
other  as  if  they  were  vested  in  different 
tribunals    and    can    be    no    more    blended 


than  a  court  of  chancery  with  a  court 
of  common  law.  The  Sarah,  8  Wheat. 
391,     5     L.     Ed.    644. 

40.  Original  jurisdiction  of  circuit 
court. — Ex  parte  Cooper,  143  U.  S.  472, 
36  L.  Ed.  232;  Governor  v.  Madrazo,  1 
Pet.  110,  7  L.  Ed.  73. 

In  the  district  court  of  the  United 
States  for  the  district  of  Georgia,  a  li- 
bel was  filed,  claiming  certain  Africans, 
as  the  property  of  the  libellant,  which 
had  been  brought  into  the  state  of  Geor- 
gia, and  were  seized  by  the  authority  of 
the  governor  of  the  state,  for  an  alleged 
illegal  importation;  process  was  issued 
against  the  slaves,  but  was  not  served, 
the  case  was  taken  by  appeal  to  the  cir- 
cuit court,  and  the  governor  of  Georgia, 
filed  a  paper,  in  the  nature  of  a  stipula- 
tion, importing  to  hold  the  Africans  sub- 
ject to  the  decree  of  the  circuit  court, 
etc.  Held,  that  such  a  stipulation  could 
not  give  jurisdiction  in  the  case  to  the 
circuit  court,  as  process  could  not  issue 
legally  from  the  circuit  court  against 
the  Africans;  because  it  would  be  the 
exercise  of  original  jurisdiction  in  ad- 
miralty, which  the  circuit  court  does  not 
possess.  Governor  v.  Madrazo,  1  Pet. 
110,  7   L.   Ed.   73. 

Appellate  jurisdiction  of  circuit  court. 
— See  pest.  "Review."   Ill,  R. 

41.  Original  jurisdiction. — Ex  parte 
Madrazo,  7   Pet.   627,   8   L.   Ed.  808. 

Juan  Madrazo,  a  subject  of  the  king 
of  Spain,  filed  a  libel  praying  admiralty 
process  against  the  state  of  Georgia,  al- 
leging that  the  state  was  in  possession 
of  a  certain  sum  of  money,  the  proceeds 
of  the  sale  of  certain  slaves  which  had 
been  seized  as  illegallj^  brought  into  the 
state  of  Georgia;  and  which  seizure  had 
been  subsequently,  under  admiralty  pro- 
ceedings, adjudged  to  have  been  illegal, 
and  the  right  of  Madrazo  to  the  slaves, 
and  the  money  arising  from  the  sale 
thereof,  established  by  the  decision  of 
the  circuit  court  of  the  United  States 
for  the  district  of  Georgia.  The  counsel 
for  the  petitioner  claimed,  that  the  su- 
preme court  had  jurisdiction  of  the  case, 
alleging  that  the  11th  amendment  of  the 
constitution  of  the  United  States  which 
declares  that  the  judicial  power  of  the 
United  States  shall  not  extend  to  any 
suits  in  law  or  equity,  did  not  take  away 
the  jurisdiction  of  the  courts  of  the 
United  States,  in  suits  in  the  admiralty, 
against  a   state.     Held,   that   this   is  not   a 


ADMIRALTY. 


153 


b.    Appellate   Jurisdicfioii. — See   post,   "Review,"    III,    R. 

4.  Territorial  Courts. — The  district  courts  of  the  territories,  established 
in  pursuance  of  acts  of  congress  for  that  purpose,  usually  have  the  same  ad- 
miraltv  jurisdiction  as  that  possessed  by  district  courts  within  the  states.* 2  Al- 
though admiralty  jurisdiction  can  be  exercised  in  the  states,  in  those  courts 
only  which  are  established  in  pursuance  of  the  third  article  of  the  constitution, 
the  same  limitation  does  not  extend  to  the  territories ;  in  legislating  for  them, 
congress  exercises  the  combined  powers  of  the  general  and  state  governments.*^ 
And  a  territorial  legislature  may  create  a  court  within  the  territory  and  con- 
fer upon   it   such   powers   as   are  usually  exercised   by  admiralty  courts.** 

5.  Foreign  Courts. — English  Courts  of  Admiralty. — Under  the  statute 
of  24th  and  25th  Victoria,  commonly  known  as  the  admiralty  court  act,  juris- 
diction exists  in  the  English  courts  of  admiralty  to  enforce  by  proceedings  in 
rem  a  claim  by  an  owner,  domiciled  in  Canada,  arising  out  of  the  breach  of  a 
contract  of  affreightment  to  carry  goods  to  an  English  port.*^ 


case  where  property  is  in  custody  of  a 
court  of  admiralty;  or  brought  within 
its  jurisdiction,  and  in  the  possession  of 
any  private  person;  it  is  a  mere  personal 
suit  against  a  state,  to  recover  proceeds 
in  its  possession,  and  such  a  suit  cannot 
be  commenced  in  this  court  against  a 
state.  Ex  parte  Madrazo,  7  Pet.  627,  8 
L.   Ed.  808. 

42.  Territorial  courts. — The  City  of 
Panama,  101  U.  S.  4»3,  25  L.  Ed.  '1O6I; 
Ex  parte  Cooper,  143  U.  S.  472,  36  L.  Ed. 
232;  McAllister  v.  United  States,  141  U. 
S.  174.  184.  35  L.  Ed.  693;  Steamer  Co- 
ciuitlam  z-.  United  States,  163  U.  S.  346, 
351.    41    L.    Ed.    184. 

District  court  of  Washington  territory. 
— The  act  of  Congress  approved  March 
2.  1853,  entitled  "An  act  to  establish  the 
territorial  government  of  Washington" 
(10  Stat.  172),  enacts  that  the  district 
courts  of  the  territory  shall  have  and 
exercise  the  same  jurisdiction  in  all 
cases  arising  under  the  constitution  and 
laws  of  the  United  States  as  is  vested  in 
the  circuit  and  district  courts  of  the 
United  States,  and  also  of  all  cases  aris- 
ing under  the  laws  of  the  territory.  Held, 
that  the  district  courts  of  the  territory 
have  jurisdiction  in  admiralty  cases.  The 
City  of  Panama,  101  U.  S.  453,  25  L.  Ed. 
1061. 

District  court  of  Alaska. — Under  the 
act  of  congress  of  Maj-  17,  1884,  entitled 
an  act  providing  for  a  civil  government 
for  Alaska  (23  St.,  p.  24)  the  district 
court  of  Alaska  acquired  all  the  admi- 
ralty jurisdiction  within  the  district  of 
Alaska  belonging  to  the  district  courts  of 
the  United  States.  Ex  parte  Cooper,  143 
U.  S.  472,  36  L.  Ed.  232;  McAllister  v. 
United  States,  141  U.  S.  174,  35  L.  Ed. 
693;  Steamer  Coquitlam  v.  United  States, 
163    U.    S.    346.    41    L.    Ed.    184. 

The  district  court  of  Alaska  has  juris- 
diction in  admiralty  to  forfeit  a  vessel  for 
violation  of  §  1956  of  the  Revised  Statutes, 
in  relation  to  the  killing  of  seals  and  other 
fur-bearing  animals,  on  any  of  the  navi- 
gable waters   within   the   dominion   of   the 


United  States  acquired  by  the  treaty  of 
March  30,  1867,  with  Russia.  Ex*parte 
Cooper,   143   U.   S.   472,  36   L.    Ed.   232. 

43.  Power  cf  congress  with  respect  to 
creation  of  territorial  courts. — American 
Ins.  Co.  V.  Canter,  1  Pet.  511,  512.  7  L- 
Ed.  242;  McAllister  v.  United  States,  141 
U.  S.  174,  180,  35  L.  Ed.  693. 

44.  Creation  of  admiralty  court  by  ter- 
ritorial legislature. — The  act  of  the  ter- 
ritorial legislature  of  Florida,  erecting  a 
court  which  proceeded,  under  the  pro- 
visions of  the  law,  to  decree,  for  salvage, 
the  sale  of  a  cargo  of  a  vessel,  which  had 
been  stranded,  and  which  cargo  had  been 
brought  within  the  territorial  limits,  is 
not  inconsistent  with  the  laws  and  con- 
stitution of  the  United  States,  and  is 
valid;  and  consequently,  a  sale  of  the 
property,  made  in  pursuance  of  it, 
changed  the  property.  American  Ins. 
Co.  V.  Canter,  1  Pet.  511,  512.  7  L.  Ed. 
242.  See,  also,  Downes  v.  Bidwell,  182 
U.    S.    244,   263,    45    L.    Ed.    1088. 

"By  §  1910  of  the  Revised  Statutes  the 
district  courts  of  the  territory  have  the 
same  jurisdiction  in  all  cases  arising  un- 
der the  constitution  and  laws  of  the 
United  States  as  is  vested  in  the  circuit 
and  district  courts  of  the  United  States. 
We  have  often  so  decided.  American 
Ins.  Co.  T.  Canter,  1  Pet.  511.  7  L.  Ed. 
242;  Banner  v.  Porter,  9  How.  235.  18  L. 
Ed.  119;  Clinton  v.  Englebrecht,  13  Wall. 
434,  20  L.  Ed.  659.  They  are  courts  of 
the  territories,  invested  for  some  pur- 
poses with  the  powers  of  the  courts  of 
the  United  States."  Reynolds  v.  United 
States.  98  U.  S.  154,  25  L.  Ed.  244.  See, 
also.  United  States  v.  Coe,  155  U.  S.  76,  85, 
39    L.    Ed.    79. 

45.  English  courts  of  admiralty. — Eng- 
lish courts  of  admiralty  held  to  have  ju- 
risdiction— where  the  master  abandoned 
the  voyage  without  lawful  excuse,  im- 
properly entered  into  a  new  contract  of 
affreightment,  and  proceeded  on  a  dis- 
tant voyage,  leaving  the  goods  at  the 
Welsh  port,  neither  carrying  them  him- 
self to  their  port  of  destination,  nor  seek- 


154 


ADMIRALTY 


French  Courts  of  Admiralty. — The  jurisdiction  of  the  French  courts,  as  tc» 
seizures,  is  not  confined  to  seizures  made  within  two  leagues  of  the  coast.-*^ 

Foreign  Courts  of  Admiralty  within  United  States  Territory. — No  for- 
eign power  can,  of  right,  institute  or  erect  any  court  of  judicature  of  any  kind, 
within  the  jurisdiction  of  the  United  States,  but  such  only  as  may 
be  warranted  by,  and  be  in  pursuance  of,  treaties.  Therefore,  the 
admirahy  jurisdiction  which  was  formerly  exercised  in  the  United 
States  by  the  consuls  of  France,  not  being  so  warranted,  was  not  of  Right.^" 

C.  Objections,  and  Waiver  of  Objections,  to  Jurisdiction. — An  objec- 
tion for  want  of  jurisdiction  need  not  be  made  in  the  lower  court  or  even  in 
the  appellate  court,  as  the  court  will  of  its  own  motion  dismiss  the  case  when  the 
want  of  jurisdiction  is  apparent.*^  But  where  a  libel  alleges  that  the  place  where 
the  fact  was  done,  was  within  the  jurisdiction  of  the  admiralty,  and  this  is  not 
contradicted  in  the  answer,  the  court  will  take  the  matter  as  it  stands  upon  the 
libel,  not  on  the  evidence.^ ^ 

II.    Maritime  Law. 

Admiralty  courts  proceed  upon  principles,  rules  and  usages  which  belong  to 
the  admiralty,  as  contradistinguished  from  courts  of  common  law.^"  While  it 
is  true  that  the  great  mass  of  maritime  law  is  the  same  in  all  commercial  coun- 
tries having  for  its  basis  the  general  maritime  law  of  the  world,^^  yet  as  every  na- 
tion is  at  liberty  to  adopt  its  own  maritime  law,^^  and  the  general  maritime  law 
is  operative  as  law  in  any  country  only  so  far  as  it  is  adopted  by  the  laws  and 
usages  of  that  country ,^3  in' each  country  peculiarities  exist  either  as  to  some  of 


ing    to    forward    tliem    in    another    vessel. 
The    Maggie    Hammond,    9    Wall.    435,    19. 
L.   Ed.   772. 

46.  French  courts  of  admiralty. — Hud- 
son V.  Questier,  6  Cranch  281,  3  L.  Ed. 
224',  overruling  Rose  v.  Himely,  4  Cranch 
241,  2  L.   Ed.  608. 

A  seizure,  beyond  the  limits  of  the  ter- 
ritorial jurisdiction,  for  breach  of  a  munic- 
ipal regulation,  is  warranted  by  the  law 
of  nations.  Hudson  v.  Guestier,  6  Cranch 
281,  3  L.  Ed.  224,  overruling  Rose  v. 
Himely,  4  Cranch  241,  2  L.  Ed.  608. 

Of  their  own  jurisdiction,  so  far  as  it 
depends  upon  municipal  laws,  the  courts 
of  France  are  the  exclusive  judges.  Rose 
V.   Himely,   4   Cranch   241.   2  _L._  Ed.   608. 

47.  Foreign  courts  within  United 
States.— Glass  v.  The  Sloop  Betsey,  3 
Dall.   6,   1.5,   1    L.   Ed.   48.5. 

48.  Necessity  for  objection. — Where  a 
libel  was  filed  against  a  foreign  ship,  in 
an  admiralty  case,  in  an  admiralty  court 
of  the  United  vStates,  the  libellant  and 
claimant  both  being  foreigners,  the  place 
of  shipping  and  the  place  of  consignment 
being  foreign  ports,  and  the  whole  ground 
of  libel  a  matter  which  occurred  abroad, 
the  supreme  court  considered  the  ques- 
tion of  jurisdiction  open  for  argument, 
though  it  was  not  raised  by  the  plead- 
ings, and  had  not  been  suggested  by  any 
one  in  the  court  below.  The  Maggie 
Hammond,   9   Wall.    435.    19   L.    Ed.   772. 

49.  Waiver  of,  or  estoppel  to  raise,  ob- 
jections.— Montgomery  v.  Henry.  1  Dall. 
49,    50.    1    L.    Ed.    32. 

50.  Distinguished  from  common  law. 
—The  Wanata,  95  U.  S.  600.  24  L.  Ed. 
461;    Manro    v.    Almeida,    10    Wheat.    473, 


6  L.  Ed.  369;  American  Ins.  Co.  v.  Can- 
ter,   1    Pet.    511,   7    L.    Ed.    242. 

A  case  in  admiraltj'  does  not,  in  fact, 
arise,  under  the  constitution  or  laws  of 
the  United  States;  these  cases  are  as  old 
as  navigation  itself,  and  the  law,  admi- 
ralty and  maritime,  as  it  existed  for  ages, 
is  applied  by  our  courts  to  the  cases,  as 
they  arise.  American  Ins.  Co.  v.  Canter. 
1    Pet.   511.   512,   7   L.   Ed.   242. 

Application  of  equitable  principles  by 
admiralty  courts. — See  ante,  "Applying 
Equitable  Principles  to  Cases  within  Ad- 
miralty  Jurisdiction,"    I,    A,    6.    d,    (2). 

51.  Maritime  law  of  all  countries  based 
on  general  maritime  law. — The  Lottaw- 
anna,    21    Wall.    558.    572,   22    L.    Ed.    654. 

52.  Every  nation  may  adopt  its  own 
maritime  code. — The  Lottawanna,  21  Wall. 
558,  572,  22  L.  Ed.  654;  Perry  v.  Haines, 
191    U.    S.    17.   49,    48    L.    Ed.    73. 

53.  Maritime  law  operative  only  so  far 
as  adopted — The  Lottawanna,  21  Wall. 
558.  22  L.  Ed.  654,  572;  The  Scot- 
land, 105  U.  S.  24,  29,  26  L.  Ed.  1001; 
Workman  v.  New  York,  179  U.  S.  552, 
45  L.  Ed.  314;  Butler  v.  Boston,  etc., 
Steamship  Co.,  130  U.  S.  527,  556,  32  L. 
Ed.  1017;  Liverpool,  etc..  Steam  Co.  v. 
Phenix  Ins.  Co..  129  U.  S.  397,  32  L.  Ed. 
788;  The  Belgenland,  114  U.  S.  355,  39 
L.  Ed.  152;  The  Harrisburg,  119  U.  S. 
199.  30  L.  Ed.  358;  The  John  G.  Stevens, 
170  U.  S.  113,  126.  42  L.  Ed.  969;  Ralli 
V.  Troop,  157  U.  S.  386,  407;  39  L.  Ed. 
742.  Perry  v.  Haines,  191  U.  S.  17,  49, 
48  L.  Ed.  73;  The  Siren,  13  Wall.  389. 
20   L.    Ed.   505. 

"In  this  respect  it  is  like  international 
law   or   the   laws   of   war,   which   have   the 


ADMIRALTY. 


155 


the  rules,  or  in  mode  of  enforcing  them.^*  In  the  United  States  we  have  a 
maritime  law  of  our  own,  it  being  the  general  system  of  maritime  law  which  was 
familiar  to  the  lawyers  and  statesmen  of  the  country  when  the  constitution  was 
adopted. ^^ 

Modifications  or  changes  in  the  general  maritime  law  may  be  made 
by  each  country  so  as  to  render  it  suited  to  its  locality  and  the  genius  of  its  own 
people  and  institutions.'*^     In  the  United  States,  congress  has  the  power  under 


effect  of  law  in  no  country  any  further 
than  they  are  accepted  and  received  as 
such;  or,  like  the  case  of  the  civil  law, 
which  forms  the  basis  of  most  European 
laws,  but  which  has  the  force  of  law  in 
each  state  only  so  far  as  it  is  adopted 
therein,  and  with  such  modifications  as 
are  deemed  expedient.  The  adoption  of 
the  common  law  by  the  several  states  of 
this  union  also  presents  an  analogous 
case.  It  is  the  basis  of  all  the  state  laws; 
but  is  modified  as  each  sees  fit."  The 
Lottawanna,  21  Wall.  558,  572,  22  L.  Ed. 
654. 

"Perhaps  the  maritime  law  is  more  uni- 
formly followed  by  commercial  nations 
than  the  civil  and  common  laws  are  by 
those  who  use  them.  But,  like  those  laws, 
however  fixed,  definite,  and  beneficial  the 
theoretical  code  of  maritime  law  may  be, 
it  can  have  only  so  far  the  effect  of  law 
in  any  country  as  it  is  permitted  to  have. 
But  the  actual  maritime  law  can  hardly 
be  said  to  have  a  fixed  and  definite  form 
as  to  all  the  subjects  which  may  be  em- 
braced within  its  scope."  The  Lottaw- 
anna. 21  Wall.   558,  572,   22  L.    Ed.   654. 

"The  maritime  usages  of  foreign  coun- 
tries are  not  obligatory  upon  us,  and  will 
not  be  respected  as  authority,  except  so 
far  as  they  are  consonant  with  the  well 
.settled  principles  of  English  and  Ameri- 
can jurisprudence.  The  John  G.  Stevens. 
170  U.  S.  113,  126.  42  L.  Ed.  969."  The 
Elfrida,  172  U.   S.   186,  203.  43   L.   Ed.  413. 

54.  Maritime  law  different  in  different 
countries. — The  Lottawanna,  21  Wall. 
558,  572.  22  L.  Ed.  654;  The  Steamer  St. 
Lawrence,  1  Black  522.  526,  17  L.  Ed. 
180. 

"Especially  is  this  the  case  on  the  out- 
side boundaries  of  the  law,  where  it  comes 
in  contact  with,  or  shades  off  into  the 
local  or  municipal  law  of  the  particular 
country  and  affects  only  its  own  mer- 
chants or  people  in  their  relations  to 
each  other.  Whereas,  in  matters  affect- 
ing the  stranger  or  foreigner,  the  com- 
monly received  law  of  the  whole  com- 
mercial world  is  more  assiduously  ob- 
served— as,  in  justice,  it  should  be."  The 
Lottawanna,  21  Wall.  558,  572,  22  L.  Ed. 
654. 

"It  will  be  found,  therefore,  that  the 
maritime  codes  of  France.  England, 
Sweden,  and  other  countries,  are  not  one 
and  the  same  in  every  particular;  but 
that  whilst  there  is  a  general  correspond- 
ence between  them  arising  from  the  fact 
that  each  adopts  the  essential  principles, 
and   the   great   mass    of  the  general   mari- 


time law,  as  the  basis  of  its  system,  there 
are  varj'ing  shades  of  difference  corre- 
sponding to  the  respective  territories,  cli- 
mate, and  genius  of  the  people  of  each 
country  respectively.  Each  state  adopts 
the  maritime  law.  not  as  a  code  having  any 
independent  or  inherent  force,  proprio 
vigore,  but  as  its  own  law,  with  such  modi- 
fication and  qualifications  as  it  sees  fit. 
Thus  adopted  and  thus  qualified  in  each 
case,  it  becomes  the  maritime  law  of  the 
particular  nation  that  adopts  it."  The  Lot- 
tawanna,  21   Wall.   558,   573,   22   L.    Ed.  654. 

55.  Maritime  law  of  United  States. — ■ 
The  Lottawanna,  21  Wall.  558,  572,  23 
L.  Ed.  654.  See,  also,  Butler  v.  Boston, 
etc..  Steamship  Co.,  130  U.  S.  527,  555, 
32  L.  Ed.  1017;  In  re  Garnett,  141  U.  S. 
1,  12,  35  L.  Ed.  631.  See  ante,  "Gov- 
erned by  General  Maritime  Law  in  Force 
When    Constitution   Adopted,"   I,    A,   1.   b. 

"To  ascertain,  therefore,  what  the 
maritime  law  of  this  country  is.  it  is  not 
enough  to  read  the  French,  German,  Ital- 
ian, and  other  foreign  works  on  the  sub- 
ject, or  the  codes  which  they  have 
framed;  but  we  must  have  regard  to  our 
own  legal  history,  constitution,  legisla- 
tion, usages,  and  adjudications  as  well. 
The  decisions  of  this  court  illustrative  of 
these  sources,  and  giving  construction  to 
the  laws  and  constitution  are  especially 
to  be  considered;  and  when  these  fail  us. 
we  must  resort  to  the  principles  by  which 
they  have  been  governed."  The  Lotta- 
wanna,   21   Wall.    558,    576,   22    L.    Ed.    654. 

The  admiralty  law  is  to  be  gathered 
from  accepted  practice  of  courts  of  ad- 
miralty at  home  and  abroad.  The  Oceola, 
189   U.    S.    158,   168,   47   L.    Ed.    760. 

While  the  American  colonies  were  a 
part  of  the  British  empire,  the  English 
maritime  law,  including  the  law  of  prize, 
was  the  maritime  law  of  this  country. 
From  the  close  of  the  Revolution  down 
to  this  time  it  has  continued  to  be  our 
law,  so  far  as  it  is  adopted  to  the  altered 
circumstances  and  condition  of  the 
country,  and  has  not  been  modified  by 
the  proper  national  authorities.  The 
Siren,   13   Wall.   389,   392,  20    L.    Ed.   505. 

Rules  of  navigation. — See  the  title 
COLLISION. 

Rules  applicable  in  prize  cases. — See 
the    title    PRIZE. 

56.  Modification  of  maritime  law. — 
The  Lottawanna,  21  Wall.  558,  572.  22 
L.    Ed.    654. 

"Undoubtedly,  no  single  nation  can 
change  the  law  of  the  sea.  That  law  is 
of  universal  obligation,  and  no  statute  of 


156 


ADMIRALTY. 


the  commercial  law  to  introduce  such  changes  in  the  maritime  law  as  may  be 
needed,^'    but  the  courts  can  neither  make  nor  change  it.-^'^ 

The  construction  of  the  maritime  law  should,  so  far  as  possible,  be  the  same 
by  courts  of  all  maritime  nations.^ ^ 

in.    Procedure. 

A.    Forms  and  Modes  of  Proceeding — 1.    Nature  and  Charactkristics 

OF  Admiralty  Proceedings. — The  distinguishing  and  characteristic  feature  of 
a  suit  in  admiralty,  is  that  the  vessel  or  thing  proceeded  against  itself  is  seized 
and  impleaded  as  the  defendant,  and  is  judged  and  sentenced  accordingly.^" 

2.  Proceedings  in  Personam  and  in  Rem — a.  Proceedings  in  Persvnam. — 
Actions  in  personam  are  those  in  which  an  individual  is  charged  personally  in 
respect    to   some   matter    of   admiralty   and    maritime    jurisdiction.*'^      The   pre- 


one  or  two  nations  can  create  obliga- 
tions for  the  world.  Like  all  the  laws  of 
nations,  it  rests  upon  the  common  con- 
sent of  civilized  communities.  It  is  of 
force,  not  because  it  was  prescribed  by 
any  superior  power,  but  because  it  has 
been  generally  accepted  as  a  rule  of  con- 
duct. Whatever  may  have  beeri  its  origin, 
whether  in  the  usages  of  navigation  or 
in  the  ordinances  of  maritime  states,  or 
in  both,  it  has  become  the  law  of  the 
sea  only  by  the  concurrent  sanction  of 
those  nations  who  may  be  said  to  con- 
stitute the  commercial  world."  The  Sco- 
tia.   14  Wall.    170.    187,   20    L.    Ed.   822. 

57.  Power  of  congress  to  change  mari- 
time law. — The  Lottawanna,  21  Wall.  558, 
572,    22    L.    Ed.    654. 

The  act  of  congress  which  limits  the 
liability  of  ship  owners  was  passed  in 
amendment  of  the  maritime  law  of  the 
country,  and  the  power  to  make  such 
amendments  is  coextensive  with  tbat  law. 
It  is  not  confined  to  the  boundaries  or 
class  of  subjects  which  limit  and  char- 
acterize the  power  to  regulate  commerce; 
but,  in  maritime  matters,  it  extends  to  all 
matters  and  places  to  which  the  maritime 
law  extends.  Ex  pcrrte  Garnett,  141  U. 
S.  1,  13.  35  L.  Ed.  631.  Generally,  as  to 
limitation  of  liability  of  ship  owners,  see 
the    title    SHIPS    AND    SHIPPING. 

58.  Power  of  courts  to  make  or  change 
maritime  law. — The  Lottawanna,  21  Wall. 
558,    572,    22    L.    Ed.    654. 

59.  Uniformity  of  construction. — The 
Irrawaddy,  171  U.  S.  187,  202,  43  L.  Ed. 
130. 

60.  Characteristics  of  admiralty  pro- 
ceedings.— The  Moses  Taylor  r.  Ham- 
mons,  4  Wall.  411.  18  L.  Ed.  397;  Perry 
V.   Haines,  191  U.   S.  17,  48   L.  Ed.   73. 

A  proceeding  in  rem  against  the  vessel 
as  debtor  or  "offending  thing,"  is  the 
characteristic  of  a  suit  in  admiralty. 
Perry  v.  Haines,  191  U.  S.  17,  48  L.  Ed.  73. 

Proceedings  to  confiscate  real  estate 
under  the  act  of  July  17th,  1862,  entitled 
"An  act  to  suppress  insurrection,  to  punish 
treason  and  rebellion,  to  seize  and  con- 
fiscate the  property  of  rebels,"  etc.,  are 
not  "proceedings  in  admiralty,"  although 
the    act    declares    that    they    "shall    be    in 


rem,  and  conform  as  near  as  may  be  to 
proceedings  in  admiralty  or  in  revenue 
cases."  Ex  parte  Graham,  10  Wall.  541, 
19  L.   Ed.  981. 

When  an  information  imder  the  said 
act,  filed  in  the  district  court,  is  really 
in  common-law  form,  and  the  proceeding 
has  the  substance  and  all  the  requisites  of 
a  common-law  proceeding,  the  fact  that! 
the  information  is  entitled  "a  libel"  of  in- 
formation, and  that  the  warrant  and  cita- 
tion is  called  "a  monition,"  does  not 
convert  it  into  a  proceeding  on  the  ad- 
miralty side  of  the  court.  The  Confisca- 
tion  Cases,  20  Wall.  92,  93.  22  L.   Ed.  320. 

Under  the  act  of  August  6,  1831,  "to  con- 
fiscate property  used  for  insurrectionary 
purposes"  and  providing  for  its  condemna- 
tion in  the  district  or  circuit  court,  or  in 
admiralty,  a  proceeding  brought  for  the 
condemnation  of  such  property,  although 
analogous  to  a  proceeding  in  admiralty, 
does  not  constitute  "a  cause  in  admi- 
raltv."  Union  Ins.  Co.  r.  United  States, 
6    Wall.    759,    18    L.    Ed.    879. 

Action  in  state  court  instituted  by  at- 
tachment.— A  proceeding  in  a  state  court 
against  the  person  of  the  defendant,  in- 
stituted by  attachment,  is  not  a  proceed- 
ing in  admiralty.  Pennywit  z'.  Eaton,  15 
Wall.  380,  382,  21  L-  Ed.  72;  The  Genesee 
Chief  7>.  Fitzhugh.  12  How.  443,  13  L.  Ed. 
1058;  Jackson  v.  Steamboat  Magnolia,  20 
How.  296,  15  L.  Ed.  909;  Taylor  v.  Car- 
ryl,  20  How.  583,  15  L.  Ed.  1028;  The 
Hine  v.  Trevor,  4  Wall.  555,  18  L.  Ed. 
451;  The  Belfast.  7  Wall.  624,  19  L.  Ed. 
266;  Leon  v.  Galceran,  11  Wall.  185,  20  L. 
Ed.   74. 

61.  Proceedings  in  personam. — The  Sa- 
bine.   101    U.    S.    384,   388,    25   L.    Ed.    982. 

Common-law  remedies  in  cases  of  tort, 
as  given  in  common-law  courts,  and  suits 
in  personam  in  the  admiralty  courts  of 
this  country,  bear  a  strong  resemblance 
to  each  other  in  respect  to  parties,  and 
the  effect  of  a  recovery  by  the  injured 
party  against  one  or  all  of  the  wrong- 
doers, and  the  extent  of  redress  to  which 
an  innocent  party  is,  entitled  against  the 
wrongdoer.  The' Atlas,  93  U.  S.  302,316, 
23  L.  Ed.  863;  The  Belfast,  7  Wall.  624, 
644,    19    L.    Ed.    266. 


ADMIRALTY. 


157 


lequisite  to  resort  to  a  libel  in  personam  in  the  admiralty  is  the  existence  of  a 
cause  of  action  maritime  in  its  nature. ^^ 

b.  Proceedings  in  Rem. — Actions  in  rem  are  prosecuted  to  enforce  a  right  to 
things  arrested,  to  perfect  a  maritime  privilege  or  lien  attaching  to  a  vessel  or 
cargo  or  both,  and  in  which  the  thing  to  be  made  responsible  is  proceeded  against 
as  the  real  party.^^  A  proceeding  in  rem  must  be  founded  on  a  lien,^^  and  may 
be  maintained  in  all  cases  where  a  lien  is  given  by  the  general  maritime  law,*^^ 
and  by  the  12th  rule  of  admiralty  practice,  such  a  proceeding  may  be  maintained 
where  a  lien  is  given  by  the  local  law.^^^ 

c.  Election  as  to  Mode  of  Proceeding. — A  party  having  a  maritime  lien  may 
pursue  his  remedy  by  a  suit  in  rem  or  by  a  suit  personam,  at  his  election.''^ 

3.  Power  of  Congress  to  Prescribe  Forms  and  Modes  oe  Proceeding. — 
Congress  may  prescribe  the  forms  and  modes  of  proceeding  in  the  tribunals 
established  to  carry  the  power  conferred  upon  them  with  respect  to  admiraltv 
and  maritime  jurisdiction  into  execution.^^ 


62.  Prerequisite  to  suit  in  personam. — 

Workman  v.  New  York;  179  U.  S.  552. 
573.  45   L.    Ed.   314. 

Proceedings  in  personam  in  the  admi- 
ralty is  the  appropriate  remedy  for  the 
redress  of  maritime  torts.  The  Rock 
Island  Bridge.  6  Wall.  213,  215,  18  L.  Ed. 
753. 

63.  Proceedings  in  rem. — The  Sabine, 
101   U.   S.   384,  388,  25  L.   Ed.  982. 

Both  the  process  and  proceedings  in  ac- 
tions in  rem  are  different  from  those  in 
proceedings  in  personam,  and  the  appro- 
priate decree  in  the  one  might  be  abso- 
Intelv  absurd  in  the  other.  The  Sabine, 
101    U.   S.   384,   388,  25   L.    Ed.   982. 

64.  Necessity  for  lien. — The  Lottawaflna. 
21  Wall.  558,  22  L.  Ed.  654;  The  Reso- 
lute, 168  U.  S.  437,  440,  42  L.  Ed.  533; 
The  Rock  Island  Bridge,  6  Wall.  213, 
215.  18  L.  Ed.  753;  The  Siren.  7  Wall. 
1.52,  155,  19  L.  Ed.  129;  The  Belfast.  7 
Wall.   624,   644,    19    L.    Ed.    266. 

65.  Lien  given  by  m.aritime  law. — The 
Lottawanna,  21  Wall.  55S,  .581,  22  L.  Ed. 
654;  The  Resolute.  168  U.  S.  437,  440,  42 
L.     Ed.     533;    The     Rock     Island     Bridge, 

6  Wall.  213.  215,  18   L.    Ed.  753;  The  Siren, 

7  Wall.  152,  155,  19  L.  Ed.  129;  The  Bel- 
fast, 7  Wall.  624.  644,  19  L.  Ed.  266.  See 
ante,  "Maritime  Liens."  I,  A,  6,  f.  And 
see,  generally,  the  title  MARITIME 
LIENS. 

Where  a  maritime  tort  gives  rise  to  a 
maritime  lien  it  may  be  redressed  by  a 
proceeding  in  rem  in  the  admiralty,  this 
being  the  appropriate  remedy  for  the  en- 
forcement of  maritime  liens.  The  Rock 
Island  Bridge,  6  Wall.  213,  215.  18  L. 
Ed.  753. 

A  lien  for  damages  occasioned  by  col- 
lision may  be  enforced  by  a  proceeding 
in  rem,  except  where  the  vessel  in  fault 
is  the  property  of  the  United  States.  The 
Siren,  7  Wall.  152,  155,  19  L.  Ed.  129. 
See,  generally,  the  title  MARITIME 
LIENS. 

When  maritime  lien  arises. — See  the 
title  MARITIME  LIENS. 

66.  Lien  given  by  state  lav/. — The  Lot- 


tawanna, 21  Wall.  558,  579.  22  L.  Ed.  654. 
See  ante,  "Repairs  and  Supplies,"'  I,  A, 
6,  a,    (10). 

This  rule  of  practice  first  adopted  in 
1844  (The  Steamer  St.  Lawrence.  1  Black 
522,  17  L.  Ed.  180;  The  Lottawanna.  20 
Wall.  201,  218,  22  L.  Ed.  259)  was  repelled 
in  1858  (The  Steamer  St.  Lawrence,  1 
Black  522,  17  L.  Ed.  180;  The  Lottawanna, 
20  Wall.  201,  218,  22  L.  Ed.  259;  The  Lulu. 
10  Wall.  192.  19  L.  Ed.  906;  The  Belfast. 
7  Wall.  624,  644,  19  L.  Ed.  266;  Leon  v. 
V.  Galceran,  11  Wall.  185.  191,  20  L.  Ed. 
74;  American  Steamboat  Co.  v.  Chace,  16 
Wall.  522,  533,  21  L.  Ed  369;  Maguire  v. 
Card,  21  How.  248,  16  L.  Ed.  118)  iDut  was 
again  reinstated  in  1872;  The  Lotta- 
wanna.   21    Wall.    558,    579.   22    L.    Ed.    654. 

67.  Election  of  remedies. — The  Belfast. 
7  Wall.  624,  19  L.  Ed.  266;  Norton  v. 
Switzer,  93  U.  S.  355.  356.  23  L.  Ed.  903; 
The  Rock  Island  Bridge,  6  Wall.  213. 
215.  18  L.  Ed.  753;  Leon  v.  Galceran,  11 
Wall.  185,  187,  20  L.  Ed.  74.  See  ante, 
"Maritime  Liens,"  I.  A,  6,  f.  And  see, 
generally,  the  titles  ELECTION  OF 
RE^IEDTES:   ^vlARlTlME   LIENS. 

Materialmen  having  a  lien  may  elect 
to  proceed  in  rem  or  in  personam.  The 
Belfast.  7  Wall.  624,  643,  19  L.  Ed.  266. 
See,  eenerallv.  the  title  MARITIME 
LIENS. 

Seamen  suing  for  wages  may  proceed 
either  in  rem  against  the  ship  or  in  per- 
sonam against  the  master.  Leon  z'.  Gal- 
ceran, 11  Wall.  185.  187.  20  L.  Ed.  74. 
See.    generally,    the    title     SEAMEN. 

Resort  to  common-law  remedy. — In- 
deed parties  in  maritime  causes  are  not 
compelled  to  proceed  in  the  admiralty  at 
all.  They  may  resort  to  their  common- 
law  remedy  in  state  courts,  or  in  the 
circuit  court  of  the  United  States,  pro- 
vided the  parties  are  citizens  of  different 
states.  Norton  v.  Switzer,  93  U.  S.  355, 
356,  23  L.  Ed.  903.  See  the  titles 
COURTS:  JURISDICTION. 

68.  Pov/er  of  congress  to  prescribe 
forms  and  modes  of  proceeding. — The 
Steamer    St.    Lawrence,    1    Black    522,    17 


158 


ADMIRALTY. 


4.  Power  of  Court  to  Prescribe  Rules  of  Practice. — Congress  has  given 
to  the  supreme  court  the  authority  to  aher  and  change  the  forms  and 
modes  of  proceeding  by  admirahy  rules-''^  While  the  courts  have  power  over 
their  own  process  and  mode  of  procedure,  they  cannot  enlarge  or  diminish  their 
own  jurisdiction  by  a  rule  of  practice.'^"  ^  change  in  a  rule  is  prospective  in 
its  operation,  and  does  not  defeat  a  suit  previously  commenced.' ^ 

B.  Venue — 1.  Proceedings  in  Rem. — Libels  in  rem  may  be  prosecuted  in 
any  district  of  the  United  States  where  the  property  is  found.^^ 

2.  Proceedings  in  Personam. — By  the  ancient  and  settled  practice  of  courts 
of  admiralty,  a  libel  in  personam  may  be  maintained  for  any  cause  within  their 
jurisdiction,  wherever  a  monition  can  be  served  upon  the  libelee,  or  an  attachment 
made  of  any  personal  property  or  credits  of  his.'-"  A  libel  in  personam  may  be 
sustained  against  a  corporation  in  a  district  not  within  the  state  in  which  it  is 
incorporated."'* 

C.  Joinder  and  Consolidation  of  Causes  of  Action  or  Proceedings — 1. 
Joinder  of  Causes  of  Action  or  Proceedings — a.  Joinder  of  Distinct  Causes 
of  Action. — It  is  irregular,  and  against  the  known  principles  of  courts  of  ad- 


L.    Ed.    180.     See   the   title     RULES     OF 
COURT. 

69.  Power  of  court  to  prescribe  rules 
of  practice. — The  Steamer  St.  Lawrence, 
1  Black  522,  17  L.  Ed.  180;  The  Sabine, 
101    U.    S.    384,    388,    25    L-    Ed.    982. 

"Our  admiralty  rules  were  promulgated 
in  accordance  with  the  act  of  Congress." 
The  Sabine.  101  U.  S.  384,  388.  25  L.  Ed. 
982. 

70.  Enlargement  or  diminishment  of 
jurisdiction  by  rules  of  practice. — The 
Steamer  St.  Lawrence.  1  Black  522,  17 
L.   Ed.   ISO. 

71.  Change  in  rule  prospective  in  opera- 
tion.— The  Steamer  St  Lawrence,  1  Black 
522,   523,   17    L.   Ed.    180. 

72.  Venue  of  proceedings  in  rem. — 
The  Slavers,  2  Wall.  383.  384,  17  L.  Ed. 
911;  Nelson  v.  Leland,  22  How.  48,  16  L. 
Ed.  269;  The  Propeller  Commerce,  1 
Black.    574.    581,    17    L.    Ed.    107. 

If  the  seizure  be  made  on  the  high 
seas,  or  within  the  territory  of  a  foreign 
power,  the  jurisdiction  is  conferred  on 
the  court  of  the  district  where  the  prop- 
erty is  carried  and  proceeded  against. 
The   Merino,   9  Wheat.   391.   6   L.   Ed.   118. 

A  municipal  seizure,  within  the  terri- 
tory of  a  foreign  power,  does  not  oust 
the  jurisdiction  of  the  district  court,  into 
whose  district  the  property  may  be  car- 
ried for  adjudication.  The  Merino,  9 
Wheat.  391,  6  L.  Ed.  118;  The  Richmond, 
9  Cranch  102,  3  L.  Ed.  670;  Ex  parte 
Johnson.  167  U.  S.  120,  124._  42  L.  Ed.  103. 

Proceedings  to  limit  liability. — A  vessel 
not  having  been  libelled  to  answer  for 
a  loss  resulting  from  collision,  and  no 
suit  therefor  having  been  commenced 
against  her  owner,  proceedings  to  limit 
her  liability  are  instituted  lawfuHj^  in  the 
district  in  which  the  vessel  is  at  the  time 
the  proceedings  were  instituted,  and  she 
being  at  that  time  subject  to  the  control 
of  that  court  for  the  purposes  of  the 
case.  In  re  Morrison,  147  U.  S.  14.  33, 
37    L.    Ed.    60;    Ex   parte    Slayton,    105    U. 


S.  451,  26  L.   Ed.   1066.   See,  generally,  the 
title  SHIPS  AND  SHIPPING. 

73.  Venue  of  proceedings  in  personam. 
— Rule  2  in'  Admiralty;  In  re  Louisville 
Underwriters,  134  U.  S.  488,  33  L.  Ed. 
991;  Manro  v.  Almeida.  10  Wheat.  473, 
6  L.  Ed.  369;  Atkins  v.  Fiber  Disinte- 
grating Co.,  18  Wall.  272,  21  L.  Ed.  841; 
Ins.  Co.  V.  Navigation  Co.,  18  Wall.  307, 
21  L.  Ed.  846;  Cushing  v.  Laird,  107  U. 
S.  69.  27  L.  Ed.  391;  In  re  Manf.  Co., 
108  U.  S.  401,  27  L.  Ed.  764.  See,  gen- 
erally, the  title  VENUE. 

Rule  not  affected  by  act  of  March  3, 
1887.— The  act  of  March  3,  1887,  c.  373,  § 
1  (24  St.,  p.  552),  providing  that  no  per- 
son shall  be  arrested  in  one  district,  for 
trial  in  another  in  any  civil  action  be- 
fore a  circuit  or  district  court,  and  no 
civil  suit  shall  be  brought  before  either 
of  such  courts  against  any  person  by 
any  original  process  or  proceeding  in  any 
other  district  than  that  whereof  he  is  an 
inhabitant,  'does  not  apply  to  proceeding 
in  admiralty.  In  re  Louisville  Under- 
writers, 134  U.  S.  488.  33  L.  Ed.  991;  At- 
kins V.  Fiber  Disintegrating  Co.,  18  Wall. 
272.  21   L.   Ed.   841. 

A  proceeding  in  admiralty  is  not  a 
"civil  suit"  within  the  meaning  of  the  pro- 
hibition. Atkins  V.  The  Fiber  Disintegrat- 
ing Co.,  18  Wall.  272.  301,  21   Ed.  841. 

74.  Suits  in  personam  against  foreign 
corporations. — In  re  Louisville  Under- 
writers, 134  U.  S.  488.  33  L.  Ed.  991;  At- 
kins V.  The  Fiber  Disintegrating  Co.,  18 
Wall.  272,  301,  21  L.  Ed.  841;  In  re  Devoe 
Mfg.    Co..    108    U.    S.    401.    27    L.    Ed.    764. 

The  United  States  district  court  for 
New  Jersey  has  jurisdiction  of  a  proceed- 
ing in  rem  against  a  foreign  corporation, 
where  it  seizes,  by  attachment,  a  vessel 
belonging  to  such  a  corporation,  in  the 
body  of  water  between  Staten  Island  and 
New  Jersey,  known  as  the  Kill  von  Kull, 
the  vessel  being  moored  to  a  dock  situated 
in  the  city  of  Bavonne.  In  re  Devoe 
Mfg.  Co..  108  U.  S.  401,  27  L.  Ed.  764. 
See,   generally,   the   title   VENUE. 


ADMIRALTY 


159 


miralty,  to  allow,  in  a  libel  in  rem,  and  quasi  for  possession,  the  introduction 
of  any  other  matters  of  an  entirely  different  character;  such  as  an  account  of 
the  vessel's  earnings,  or  the  claim  of  a  part  owner  for  his  wages  and  advances 
as  master."-'' 

b.  Joinder  of  Proceedings  in  Personmn  and  Proceedings  in  Rem. — While 
admiralty  rules  prescribe  a  remedy  appropriate  to  each  class  of  cases  in  admi- 
ralty, and  allow  in  certain  cases  a  joinder  of  ship  and  freight,  or  ship  and 
master,  or  alternative  actions  against  the  ship,  master  or  owner  alone,  in  no 
case  under  these  rules,  except  in  possessory  suits,  can  the  ship  and  owner  be 
joined  in  the  same  libel,  though  perhaps  they  may  be  in  cases  not  falling  within 
the  rules. "^ 

2.  Consolidation  of  Actions. — Where  causes  of  a  like  nature,  or  relative 
to  the  same  question,  are  pending  before  a  court  of  the  United  States,  the  court 
may  make  such  orders  and  rules  concerning  proceedings  therein  as  may  be  con- 
formable to  the  usages  of  courts  for  avoiding  unnecessary  costs  or  delay  in  the 
administration  of  justice,  and  may  consolidate  said  causes  wdien  it  appears  rea- 
sonable to  do  so.'^'^ 

D.  Parties — 1.  Libelants — a.  Who  May  Sue. — While  in  admiralty,  the 
party  entitled  to  relief  should  be  n.iade  libelant,'^  a  libel  may  be  filed  "by  an 
agent  of  the  person  entitled  to  relief,''^  or  by  one  of  several  partners. ***  '  The 
consignee  of  a  cargo  has  such  an  interest,  that  he  may  file  a  libel  for  recoverv 
of  property  consigned  to  him,''*^  and  the  indorsee  of  a  bill  of  lading  may  libel 


75.  Joinder  of  distinct  causes  of  action. 

— The  Steamboat  New  Orleans  7'.  Phoe- 
bus. 11  Pet.  175,  9  L.  Ed.  677.  See,  gen- 
erally,  the   title   ACTIONS. 

76.  Joinder  cf  proceedings  in  personam 
and  in  rem. — The  Corsair,  14.5  U.  S.  335, 
341,  36  L.  Ed.  727,  explaining  Newell  v. 
Norton.  3  Wall.  257,  18  L.  Ed.  271,  where 
it  was  held,  that  a  libel  in  rem  against  a 
vessel  and  personally  against  her  owner 
might  be  joined.  The  Sabine.  101  U.  S. 
384.   25    L.    Ed.    982. 

Salvors  cannot  in  the  same  libel  pro- 
ceed in  rem  against  a  vessel  and  in  per- 
sonam against  the  consignees  of  her  cargo. 
The  Steamboat  Mayflower  v.  The  Steam- 
boat Sabine.  101  U.  S.  384,  25  L.  Ed.  982. 
See.  also,  Bondies  v.  Sherwood,  22  How. 
214.  216.  16  L.  Ed.  238.  See  the  title 
S.ALVAGE. 

77.  Consolidation  of  actions. — Rev. 
Stat.,  §  921;  The  North  Star.  106  U.  S  17, 
27.  27  L.  Ed.  91.  See.  generally,  the  title 
CONSOLIDATION   OE  ACTIONS. 

"The  power  of  consolidation  here  given 
enables  the  district  courts  sitting  in  ad- 
miralty to  provide  for  cases  under  con- 
sideration in  a  manner  adapted  to  the 
ends  of  justice  and  the  exact  rights  of 
the  parties.  The  North  Star,  106  U.  S. 
17.   27,   27    L.   Ed.   91. 

In  collision  cases. — See  the  title  COL- 
LISION. 

78.  Party  entitled  to  relief. — Fretz  v. 
Bull.  12  How.  466.  13  L.  Ed.  1068.  See. 
generally,    the    title    PARTIES. 

Equitable  claimant. — In  courts  of  com- 
mon-law. the  injured  party  alone  can  sue 
for  a  trespass,  as  the  damages  are  not 
legally  assignable;  and  if  there  be  an  eq- 
uitable claimant,  he  can  sue  only  in  the 
name    of    the    injured    party;    whereas,    in 


admiralty,  the  person  equitably  entitled 
may  sue  in  his  own  name.  The  Pro- 
peller Monticello  v.  Mollison,  17  How. 
153,    155.    15    L.    Ed.    68. 

79.  Agent.— An  agent  of  absent  owners 
may  libel,  either  in  his  own  name,  as 
agent,  or  in  the  names  of  his  principals, 
as  he  thinks  best.  The  North  Carolina, 
15    Pet.    40,    10   L.    Ed.    653;   The   Thames, 

14  Wall.  98,  20  L.  Ed.  804;  McKinlay  v. 
Morrish.  21  How.  343.  16  L.  Ed.  100. 
See.  generally,  the  title  PRINCIPAL 
AND  AGENT. 

Master  representing  owner  and  crew.^ 
Salvage  suits  are  frequently  promoted  by 
the  master  alone,  in  behalf  of  himself 
and  the  owners  and  crew,  or  in  behalf 
of  the  owners  and  crew,  or  the  owners 
alone,  without  making  any  claim  in  his 
own  behalf,  and  the  practice  has  never 
led  to  any  practical  difficulty,  as  the  whole 
subject,  in  case  of  controversy,  is  within 
the  control  of  the  court.  The  Blackwall, 
10  Wall.  1.  10,  19  L.  Ed.  870.  See,  gen- 
erally,   the    title    SALV.\GE. 

Subsequent  ratification  of  acts  of  agent. 
— A  power  of  attorney  given  subsequent 
to  the  libel,  is  a  sufficient  ratification  of 
what  the  agent  had  before  done  in  be- 
half of  the   owner.     The    North    Carolina, 

15  Pet.  40,  10  L.  Ed.  653;  McKinlay  v. 
Morrish.  21   How.   343.  355.   16  L.   Ed.   100. 

80.  One  of  several  partners. — If  the 
contract  was  made  and  the  work  done 
by  the  libelant,  his  right  to  recover,  in 
his  own  name,  cannot  be  defeated  by 
showing  that  he  had  a  partner  interested 
in  the  contract.  The  Ship  Potomac.  2 
Black  581.  17  L.  Ed.  263.  See,  generally, 
the   title    PARTNERSHIP. 

81.  Consignee  cf  cargo. — .A.  consienee 
may    sue    in    a    court    of   admiralty,    either 


160 


ADMIRALTY. 


a  vessel  for  failure  to  deliver  the  goods. ^-  The  master  or  owner  of  a  vessel  may 
represent  the  insurers'  claim  for  the  loss  of  the  cargo.^^ 

b.  Joinder. — All  persons  entitled,  on  the  same  state  of  facts,  to  participate 
in  the  same  relief,  may  join  as  hbelants,  whether  the  suit  be  in  personam  or  in 
rem.^'*  Thus,  several  owners  of  cargo  conveyed  in  the  same  ship,^^  or  several 
seamen  or  mariners  having  cause  of  complaint  of  the  like  kind  against  the  same 
ship  or  vessel,^^  may  join  as  libelant,  in  the  same  suit. 

2.    Re;spondEnts. — Where  an  injury  is  due  to  the  negligence  of  two  vessels. 


in  his  own  name,  as  agent,  or  in  the  name 
of  his  principal,  as  he  thinks  best.  Mc- 
Kinlay  v.  Morrish,  21  How.  343.  16  L. 
Ed.  100;  The  Thames,  14  Wall.  98,  108, 
20  L.  Ed.  804;  Houseman  z^.  The  Schooner 
North  Carolina,  15  Pet.  40,  49.  10 
L.  Ed.  653;  Lawrence  v.  Minture,  17 
How.    100,    15    L.    Ed.    58;    The    Vaughan 

6  Telegraph.  14  Wall.  258,  266,  20  L- 
Ed.  807. 

The  consignees  of  a  cargo  have  a  suf- 
ficient interest  in  the  cargo,  that  they 
may  proceed  in  the  admiralty  for  the 
recovery  not  only  of  their  own  prop- 
erty, but  for  that  part  of  it  which  may  be 
consigned  to  them.  The  North  Carolina, 
15  Pet.  40,  10  L.  Ed.  653;  McKinlay  v. 
Morrish,  21  How.  343,  355,  16  L.   Ed.   100. 

A  consignee  of  goods  has  a  right,  in 
his  own  name,  to  libel  a  vessel  for  their 
nondelivery,  imless  there  is  something  to 
show  that  he  had  no  interest  in  them. 
The  presumption  is,  that  he  had  an  in- 
terest, and  to  defeat  the  right  to  sue,  in 
his  own  name,  this  presumption  must  be 
rebutted  by  proof.  Lawrence  v.  Min- 
turn,  17  How.  100,  15  L.  Ed.  58. 

82.  Indorsee  of  bill  of  lading. — The  in- 
dorsee of  a  bill  of  lading  may  libel  the 
vessel  on  which  the  goods  are  shipped, 
for  failure  to  deliver  them,  though  he 
may  be  but  an  agent  or  trustee  of  the 
goods  for  others.  The  Thames,  14  Wall. 
98,  20  L.  Ed.  804.  See.  generally,  the  title 
BILLS  OF  LADING. 

83.  Owner  or  master  of  vessel  suing  for 
benefit  of  insurer. — Newell  v.  Norton,  3 
Wall.  258,  IS  L.  Ed.  271;  Fretz  v. 
Bull,  12  How.  466,  13  L.  Ed.  1068;  Hall  v. 
Railroad  Company,  13  Wall.  367.  20  L- 
Ed.    594;    Comegys   v.    Vasse,    1    Pet.    193. 

7  L.  Ed.  108;  The  Propeller  Monticello 
V.  MoUison,  17  How.  153,  15  L.  Ed.  68; 
Garrison  v.  Memphis  Ins.  Co.,  19  How. 
312.  15  L.  Ed.  656.  The  Potomas,  105  U. 
S.  630,  634,  26  L.  Ed.  1190.  See,  generally, 
the  title   MARINE  INSURANCE. 

A  person  who  is  master  and  part  owner 
of  a  vessel  in  which  a  cargo  has  been 
wrongfully  sunk  by  collision  from  an- 
other vessel,  may  properly  represent  the 
insurer's  claim  for  the  loss  of  the  cargo, 
and  proceed  to  enforce  it  in  rem  and  in 
personam  through  the  admiraltv.  Newell 
v.  Norton,  3  Wall.  257,  258,  18  L.  Ed. 
271. 

Where  the  cargo  of  a  boat  was  partly 
insured,   but   not   the   boat   itself,   and    tlia 


insurance  companj'-  paid  for  that  part  of 
the  cargo  which  was  insured,  it  was  com- 
petent for  the  owners  of  the  boat  to  file 
a  libel  for  the  use  of  the  insurance  com- 
pany. Fretz  V.  Bull,  12  How.  466,  13  L. 
Ed.    1068. 

In  collision  cases. — See  the  title  COL- 
LISION. 

84.  Joinder  of  libelants. — Fretz  v.   Bull, 
12   How.   466.   13    L.   Ed.   1068;   The    Com 
mander    in    Chief.    1    Wall.    43.    51,    17    L- 
Ed.    609. 

All  persons  interested  in  a  cause  of 
collision  maj-  be  joined  in  the  libel  for 
the  prosecution  of  their  own  claims  and 
the  protection  of  their  own  interests. 
Owners  of  the  vessel  and  the  shippers  of 
the  cargo,  for  example,  and  all  other 
persons  affected  by  the  injury,  may  be 
made  parties  to  the  suit,  or  it  may  be 
prosecuted  by  the  master  as  the  agent 
of  all  concered.  The  Commander-in-Chief, 
J  Wall.  43.  51.  17  L.  Ed.  609.  See,  gen- 
erally, the  title   COLLISION. 

85.  Joinder  of  several  cargo  owners. 
—Rich  V.  Lambert,  12  How.  353,  13  L. 
Ed.   1017. 

The  joining  of  several  owners  of  cargo 
conveyed  in  the  same  ship  in  a  libel  in 
rem  for  damages  done  to  the  goods  in  the 
course  of  shipment,  and  the  consolidation 
of  libels  filed  separately  by  the  respec- 
tive owners  for  like  damage,  is  allowed 
by  the  practice  of  the  court  for  its  con- 
venience, and  the  saving  of  time  and  ex- 
pense to  the  parties.  It  is  a  practice  de- 
serving commendation  and  encourage- 
ment in  all  cases  where  it  can  be  adopted 
without  complicating  too  much  the  pro- 
ceedings ,  and  thereby  prejudicing  the 
rights  of  the  parties.  Rich  v.  Lambert, 
12    How.    353,   13    L.    Ed.    1017. 

86.  Action  by  seamen  for  wages. — Acts 
of  1790,  ch.  29.  §  6;  Oliver  v.  Alexander, 
6  Pet.  143,  146,  8  L.  Ed.  349.  See,  gen- 
erally, the  title   SEAMEN. 

This  statute  converts  what,  by  the  ad- 
miralty law  was  a  privilege,  into  a  posi- 
tive obligation.  Oliver f.  Alexander,  6  Pet. 
143,   146,   8    L.   Ed.   349. 

Although  the  libel  is,  in  its  form,  joint, 
the  contract  is  always  treated  in  the  ad- 
miralty according  to  tlie  truth  of  the  case, 
as  a  several  distinct  contract  with  each 
seaman;  each  is  to  stand  or  fall  by  the 
merits  of  his  own  claim,  and  is  unaffected 
by  that  of  his  colibelants.  Oliver  v. 
Alexander,  6  Pet.  143,  8   L.  Ed.  349. 


ADMIRALTY. 


161 


they  may  be  joined  in  the  same  Hbel.^"  A  respondent  sued  in  admiralty  for  re- 
pairs to  a  vessel  cannot  deny  that  he  is  sole  owner,  if  the  vessel  has  been  sold 
by  the  order  of  another  court,  and  he  has  claimed  and  received  the  proceeds  as 
sole  owner. ^^ 

3.  Objections  as  to  Parties — a.  Mode  of  Objecting. — Parties  improperly 
joined  may,  on  motion,  be   stricken  out.^^ 

b.  Time  of  Objecting. — Objections  to  parties,  or  for  want  of  proper  parties, 
should  be  made  in  the  court  below,  where  amendments  may  be  granted  in  the 
discretion  of  the  court. ^" 

4.  Adding  New  Parties  by  Supplemental  Libel  or  Petition. — New  par- 
ties may  be  added  in  admiralty  by  supplemental  libel  or  petition. ^^ 

5.  Effect  of  Death  of  Party. — See  the  title  Abatement^  Revival  and 
Survival,  ante,  p.  12. 

6.  Substitution  of  Parties. — Where  the  owner  of  a  vessel  injured  by  col- 
lision files  a  libel  against  the  other  vessel  on  behalf  of  himself  and  the  cargo 
owners,  and  the  libel  is  dismissed  as  to  the  owners  and  he  takes  no  appeal,  the 
cargo  owner  may  be  substituted  as  libelant,  and  the  failure  of  the  owner  of 
the  vessel  to  appeal  from  the  decree  of  dismissal  will  not  prejudice  the  cargo 
owner. ^^2 

E.  Appearance,  Process  and  Attachment — 1.  Appearance. — An  entry  of 
appearance  of  record,  and  taking  time  to  answer,  followed  by  the  ex- 
ecution of  bonds,  reciting  the  appearance  of  the  respondent,  constitutes  an  ap- 
pearance in  an  admiralty  proceeding.*"  An  appearance  is  a  waiver  of  an  ob- 
jection for  want  of  a  monition. ^^ 

2.  Process — a.  /;;  General. — Under  the  process  act  of  1792,  ch.  137,  §  2, 
the  proceedings  in  cases  of  admiralty  and  maritime  jurisdiction,  in  the  courts  of 
the  United  States,  are  to  be  according  to  the  modified  admiralty  practice  in  our 
own  countrv.  engrafted  upon  the  British  practice;  and  it  is  not  a  sufficient  rea- 
son   for  rejecting  a   particular   process,   which   has  been   constantlv  used   in   the 


87.  Respondents. — The  Washington  v. 
The  Gregory,  9  Wall.  513,  19  L.  Ed.  787; 
The  Beaconsfield,  158U.  S.  303,  39  L.  Ed. 
993.  As  to  joinder  in  collision  cases, 
sec,    generally,    the    title    COLLISION. 

88.  Estoppel  to  deny  sole  ownership  of 
vessel. — Flanigan  v.  Turner,  1  Black  491, 
17   L.   Ed.   106. 

89.  Striking  out  improper  parties  on 
motion. — The  Schooner  Commander-in- 
Chief,   1  Wall.  43.  52,  17  L.   Ed.  609. 

90.  Necessity  of  objection  in  lower 
court. — The  Commander-in-Chief,  1  Wall. 
43.  52,  17  L.  Ed.  609.  See  the  titles  AP- 
PEAL AND  ERROR;  EXCEPTIONS. 
BILL  OF,  AND  STATEMENT  OF 
FACTS   ON   APPEAL. 

Where  it  appears  that  the  party  or  par- 
ties named  as  libelants  are  competent  to 
prosecute  the  suit,  the  nonjoinder  of 
others  having  an  interest  in  the  contro- 
versy must  be  shown  by  exception,  and, 
if  not  made  to  appear  in  the  court  below, 
cannot  be  made  available  as  an  original 
objection  in  the  appellate  tribunal.  The 
Commander-in-Chief.  1  Wall.  43.  51.  17 
L.    Ed.   609. 

A  party  cannot,  in  an  admiralty  proceed- 
ing by  the  owners  of  a  vessel,  to  recover 
darnages  for  a  cargo  lost  on  their  ship  by 
collision,  object  in  the  supreme  court  for 
the    first    time,    that    the    owners    of    the 

.  1  U  S  Ene— 11 


vessel  were  not  the  owners  of  the  cargo, 
and  therefore  that  they  cannot  sustain  the 
libel.  The  Commander-in-Chief,  1  Wall. 
43,    44,    17    Ed.    609. 

91.  Adding  new  parties  by  supple- 
mental libel  or  petition. — The  Commander- 
in-Chief,   1    Wall.   43,  52.  17  L.   Ed.   G09. 

92.  Substitution.— The  Beaconsfeld,  158 
U.    S.    303,  39   L.    Ed.   993. 

Who  may  revive  action  on  death  of 
libelant  in  action  by  admiral  for  prize 
money,  see  the  title  ABATEMENT.  RE- 
VIVAL AND  SURVIVAL,  ante,  p.  12. 

Substitution  as  avoiding  stipulati'^n. — ■ 
See  post,  "Release  of  Property  on  Bond 
or   Stipulation,"    III,  J,   5. 

93.  Appearance. — An  entry  on  the  record 
of  an  admiralty  case,  that  on  the  return 
of  a  process  of  attachment  Mr.  B.  "ap- 
pears for  the  respondent,  and  has  a  week 
to  perfect  an  appearance  and  to  answer," 
is  an  appearance,  the  entry  being  followed 
by  the  execution  by  the  respondent  or 
his  agents  of  different  bonds,  reciting 
"that  an  appearance  in  the  case  had  been 
enterred."  Atkins  v.  Fiber  Disinte- 
grating Co.,  18  Wall.  272,  21  L.  Ed.  841. 
See   the   title   APPEARANCES. 

94.  Appearance  as  waiving  want  of  mo- 
nition.— Penhallow  v.  Doane,  3  Da  11.  54, 
87.  1  L.  Ed.  507.  See,  generally,  the  title 
APPEARANCES. 


1C2 


ADMIRALTY. 


admiralty  courts  of  this  country,  that  it  has  fallen  into  desuetude  in  England. ^^ 

b.  Aecissiix  of  Service  in  Frocccding  in  Rem. — A  suit  in  rem  cannot  be 
maintained  wilhout  service  of  process  upon  the  property."" 

c.  Effect  of  Service. — Service  of  regular  process  is  a  warning  to  all  parties 
who  have  any  interest  in  the  cause  to  come  in  and  protect  their  interest ;  and 
urless   they  do  sc,   if  due  notice   was  given,   they  are  bound  by  the  decree. ^'^ 

3.  Attachment — a.  Power  to  Issue  Attachment. — The  courts  of  the  United 
States,  proceeding  as  courts  of  admiralty  and  maritime  jurisdiction,  may  is- 
sue the  process  of  attachment  to  compel  appearance,  both  in  cases  of  maritime 
torts  and  contracts."^ 

b.  Who  May  Attach. — A  creditor  by  judgment  in  a  state  court,  of  the  owners 
of  the  vessel,  even  though  he  had  a  decree  in  personam  also  in  the  admiralty 
against  them,  cannot  seize,  or  attach,  on  execution,  proceeds  of  the  vessel  in  the 
registry  of  the  admiralty."^ 

c.  Grounds  for  Attachment. — The  process  by  attachment  may  issue, 
wherever  the  defendant  has  concealed  himself  or  absconded  from  the  country, 
and  the  goods   to  be  attached  are  within   the   jurisdiction  of   the  admiralty. ^ 

d.  What  May  Be  Attached. — Attachment  may  issue  against  goods  and  chat- 
tels,2  stocks  and  credits,-''  and  credits  and  effects  in  the  hands  of  third  persons.'* 

e.  Necessity  for  Specification  of  Property  in  Libel. — It  is  not  necessary,  that 
the  property  to  be  attached  should  be  specified  in  the  libel.-^ 

f.  Issuance  and   Validity  of  Attachment. — It  seems,  that  an  attachment  can- 


95.  Kind  of  process. — Manro  v.  Ahneida, 
10  Wheat.  473,  6  L.  Ed.  .369.  See.  gener- 
erally,  the  title  SUMMONS  AND  PROC- 
ESS. 

96.  Necessity  of  service  in  proceeding 
in  rem. — The  Propeller  Commerce.  1 
Black  .574,  ."SI.  17  L.  Ed.  107.  See,  gen- 
erally, the  title  SUMMONS  AND  PROC- 
ESS. 

Notice  of  the  controversy  is  necessary, 
in  order  to  become  a  party,  and  it  is  a 
principle  of  natural  justice,  of  universal 
obligation,  that  before  the  rights  of  an 
individual  be  bound  by  a  judicial  sentence, 
he  shall  have  notice,  either  actual  or  im- 
plied, of  the  proceedings  against  him. 
Where  these  proceedings  are  against  the 
person,  notice  is  served  personall)%  or  by 
pablication;  where  they  are  in  rem,  notice 
is  served  upon  the  thing  itself.  This  is 
necessarily  notice  to  all  those  who  have 
any  interest  in  the  thing,  and  is  reason- 
able, because  it  is  necessary,  and  because 
it  is  the  part  of  common  prudence  for  all 
those  who  have  any  interest  in  it,  to 
guard  that  interest  by  persons  who  are 
in  a  situation  to  protect  it.  The  Mary,  9 
Cranch  T?6,  144,  3  L.  Ed.  678. 

97.  Effect  of  service. — The  Commander- 
in-Chief,  1  Wall.  43,  52.  17  L.  Ed.  609. 
See,  generally,  the  title  SUMMONS  AND 
PROCESS. 

98.  Power  to  issue  attachment. — Manro 
V.  Almeida.  10  Wheat.  73,  6  L.  Ed.  369; 
Miller  v.  United  States,  11  Wall.  296,  20 
L.  Ed.  142.  See,  generally,  the  title  AT- 
TACHMENT    AND    GARNISHMENT. 

Stocks  and  credits  are  attachable  in 
admiralty  and  revenue  cases  by  means 
of  the  simple  service  of  a  notice,  without 
the  aid  of  any  statute.  Miller  v.  United 
States,   11  Wall.  268,  20  L.   Ed.   135. 


The  remedy  by  attachment,  in  the  ad- 
miralty, in  maritin^te  cases,  applies  even 
where  the  same  goods  are  liable  to  the 
process  of  foreign  attachment,  issuing 
from  the  courts  of  common  law.  Manro 
V.   Almeida,   10   Wheat.   473,   6   L.   Ed.   369. 

In  a  court  of  admiralty,  as  in  a  court 
of  common  law,  the  process  of  foreign 
attachment  is  auxiliary  and  incidental  to 
the  principal  cause.  Cushing  z'.  Laird, 
107  U.  S.  67,  27  L.  Ed.  391;  Atkins  v. 
Fiber  Disintegrating  Co.,  18  Wall.  272, 
21  L.  Ed.  841. 

99.  Who  may  attach. — The  Lottawanna, 
20  Wall.   201.   -22   L.    Ed.   259. 

1.  Grounds  for  attachment. — Manro  v. 
Almeida,  10  Wheat.  473,  6  L.   Ed.  369. 

Attachment  of  property  of  nonresident. 
— A  district  court  of  the  United  States, 
M'hen  acting  as  a  court  of  admiralty,  can 
obtain  jurisdiction  to  proceed  in  personam 
against  an  inhabitant  of  the  United  States 
not  residing  within  the  district  (within 
which  terms  a  corporation  incorporated 
by  a  state  not  withm  the  district  is  meant 
to  be  included),  by  attachment  of  the 
goods  or  property  of  such  inhabitant 
found  within  the  district.  Atkins  v.  Fiber 
Disintegrating  Co.,  18  Wall.  272,  21  L. 
Ed.   841. 

2.  Goods  and  chattels. — Manro  v.  Al- 
meida, 10  Wheat.  473,   6  L.   Ed.  369. 

3.  Stocks  and  credits. — Miller  v.  United 
States,  n  Wall.  268,  20  L.  Ed.  135;  Manro 
r.  Almeida,  10  Wheat.  473,  6  L.  Ed.  369. 

4.  Credits  in  hands  of  third  per.^ons.— 
Manro  v.  Almeida,  10  Wheat.  473,  6  L.  Ed. 
369. 

5.  Specification  of  property  in  libel. — 
Manro  :■.  Almeida,  10  Wheat.  473,  6  L. 
Ed.   369. 


ADMIRALTY.  163 

not  issue,  without  an  express  order  of  the  judge,  but  it  may  be  issued  simul- 
taneously with  the  monition;  and  where  the  attachment  issued  in  this  manner, 
and  in  pursuance  of  the  prayer  of  the  hbel,  the  supreme  court  will  presume  that 
it  was  regularly  issued.^ 

g.  Effect  of  Default  of  RespondcHt  after  Attachment. — In  case  of  defa  ilt,  the 
property    attached    may  be    condemned  to    answer  the  demand  of  the    libelant.* 

F.  Pleadings — 1.  In  General. — Pleadings  in  admiralty  are  not  governed 
by  the  strict  rule  tliat  prevails  in  regard  to  indictments  or  criminal  informa- 
tions at  cominon  law.' 

2.  Libel — a.  Definition  cmd  Nature. — Tl-ie  libel  in  the  admiralty  court  takes 
the  pdace  of  the  declaration  in  an  action  at  bw.*  The  word  "libel"  does  not 
refer  exekisively  to  admiralty  proceedings,  but  may  relate  to  seizures  on  land.^ 

b.  Form  and  Requisites — (1)  A'  cessary  Averments. — If  a  libel  is  one  in 
rem,  it  must  state  that  the  property  is  within  the  district,^''  it  must  state 
tl>e  nature  of  the  cause,  as,  for  example,  that  it  is  a  cause  civil  and  maritime, 
of  contract,  of  tort  or  damage,  of  salvage,  or  possession,  or  otherwise,  as  the 
case  n-iay  be,^^  the  names  asd  places  of  residence  of  the  parties, ^2  ^nd  if  it  is 
one  in  personam  against  the  owners  of  the  vessel,  it  must  aver  that  the  respond- 
ents were  the  owners  of  the  vessd  at  the  time  of  accident.^s  -q^^  j^  jg  ^ot 
necessary  to  state  any  fact  which  constitutes  the  defense  of  the  claimant/* 
nor  to  describe  the  property  to  be  attached. ^^ 

(2)  Sufficiency  of  Averments  and  Acc7iracy  of  Statements. — The  rules  of 
pleading  rn  the  admiralty  are  exceedingly  simple  and  free  from  technical  re- 
q«irements.  It  is  incumbent  on  the  Hbelant  to  propound  with  distinctness 
the  substantive  facts  on  which  lie  relies ;  to  pray,  either  specifically  or  generally, 
for  the  relief  appropriate  to  them ;  and  to  ask  for  such  process  of  the  court  as 
is  suited  to  the  action,  whether  in  rem  or  in  personam.^''  While  substantial 
accuracy  in  pleading  should  be  observed  by  the  libelant, i"  and  a  departure 
from  thi-s  requirement,  with  intention  to  deceive,  may  constitute  a  bar  to  re- 
covery, unless  the  faulty  party  is  relieved  from  its  consequences  by  leave  of 
the     court,  1^    an    omission    to    state    facts    which    prove    to    be    material    but 

I.  Issuance  and  validity  of  attachment.       v.  Weed.  .5  Wall.  62,  68,  18  L.  Ed.  .5.31. 
— Manro    v.    Almeida,    10    Wheat.    473,    6  12.    Averment    as    to    names    and    resi- 
L.    Ed.    369.                                                                     dences    of    parties.— The    Propeller    Com- 

6.  Effect  of  default  of  respondent  after  merce,  1  Black  574,  5X1,  17  L.  Ed.  107. 
attachment. — Manro       v.       Almeida.       10  Where    a    prosecution    is    instituted    by 
Wheat.  47?,.  6   L.   E<1.   369.  one   or   more   parties   for   themselves   and 

7.  Pleadings  not  governed  by  rule  of  others  not  named,  it  would  be  more  reg- 
common  law. — Oakes  z\  United  States,  iilar  that  it  should  be"  so  averred  in  the 
174  U.  S.  778,  43  L.  Ed.  1169;  Penhallow  v.  libel;  but  as  there  can  be  only  one  prose- 
Doane,  3  Dall.  54,  79.  1  L.  Ed.  507;  The  Ship  cution  for  the  same  collision,  it  is  not 
Virgin,  8  Pet.  538,  549,  8  L.  Ed.  1036;  Du-  perceived  that  the  omission  of  that  aver- 
pont  de  Nemours  t'.  Vance.  19  How.  162.  ment  can  operate  to  the  prejudice  of  the 
171,  15  L.  Ed.  584;  New  Jersey  Steam  claimant.  The  Commander-in-Chief  1 
Nav.  Co.  V.  Merchants'  Bank.  6  How.  344.  Wall.  43,  52,   17   L.   Ed.   609. 

434,    12    L.    Ed.    465.      See    post,    "Libel."  13.    Ownership   of  vessel. The   Corsair 

II.    F.   2.  145  U.  S.   335,  36  L.    Ed.   727. 

8.  Libel  compaired  with  declaration. —  14.  Matters  of  defense. — The  Brig  Au- 
The  .\tlas,  93  U.  S,  302,  316,  23  L.  Ed.  863.  rora,  7  Cranch  382,  3  L.  Ed.  378;  The  Mar- 

9.  "Libel"    as     relating     exclusively    to       garet.   9  Wheat.  421,   6   L.   Ed.   125. 
pleading     in     admiralty. — The     Betsey     &  15.    Description    of   property    to    be    at- 
Charlotte,  4  Crancli  413.  451.  2  L.  Ed.  673.       tached. — Manro     v.     Almeida,     10    Wheat. 

10.  Averment    that    property    i^    within       473.   6   L.   Ed.   369. 

district. — The      Propeller      Commerce,      1  16.   Sufficiency  of  averments  in  general. 

Black  574,  581,  17  L.  Ed.  107.  — Dupont  de   Nemours  v.  Vance,  19  How. 

II.  Averment  as   to   nature   of   cause   of       162.  171.  15  L.  Ed.  584. 

action. — The  Propeller  Commerce.  1  Black  In    prize    cases. — See    the    title    PRIZE. 

574.  581.  17  L.  Ed.  107;     The  Divina   Pas-  17.    Substantial   accuracy  required. The 

tnra.  4  Wheat.  52.  64.  4  L.  Ed.  512;  United  Stephen    Morgan,    94  U.   S.   599,  602    24   L 

States    V.  Weed.  5  Wall.  65,  68,  18  L.  Ed.  531.  Ed.    266. 

The   libel   must   inform   the   claimant    of  18.    Want    of    substantial     accuracy     in 

the  ppeciiic  act  by  which  he  or  his  prop-  statements. — Defects    of    the    kind,    when 

erty  has  violated  the   law.     United   States  discovered,    should    be    cured    by    amend- 


164 


ADMIRALTY. 


which  cannot  have  occasioned  any  surprise  to  the  opposite  party,  will  not  be 
allowed  to  work  injury  to  the  libelant,  on  appeal  if  the  court  can  sec  that 
there  was  no  design  on  his  part  in  emitting  to  state  them.^^  Material  errors 
occurring  in  the  libel  may  be  corrected  or  cured  by  the  answer. 2<' 

(3)  Praver  for  Relief. — The  libel  must  contain  either  a  general  or  special 
prayer  for  appropriate  relief, -^  but  if  a  libel  sets  forth  all  the  material  facts 
ultimately  found  by  the  court,  contains  a  prater  for  general  relief,  damages 
may  be  awarded  although  not  specifically  prayed  for. 22 

(4)  Inform-ations  for  Forfeitures. — A  libel,  on  a  seizure,  in  its  terms  and  in 
its  essence,  is  an  information. ^'^  While  an  information  in  the  admiralty  for  a 
forfeiture,  must  contain  a  substantial  statement  of  the  offense, ^^  and  show  that 
the    cause    is    one    within    the    admiralty    jurisdiction, -»    technical    nicety    is    not 


ment  in  all  cases  where  the  imperfection 
is  calculated  to  deceive  or  mislead.  The 
Stephen  Morgan,  94  U.  S.  599,  602,  24  L. 
Ed.    266. 

19.  Omission  to  state  some  material 
facts.— The  Quickstep,  9  Wall.  6G5,  19  L. 
Ed.  7(37;  The  Syracuse.  12  Wall.  167, 
173.   20   L.   Ed.   382. 

Inaccuracy  in  statement  of  subordinate 
facts. — If  a  libelant  propounds  with  dis- 
tinctness the  substantive  facts  upon  which 
he  relies,  and  prays,  either  specially  or 
generally,  for  appropriate  relief,  even  if 
there  is  some  inaccuracy  in  his  statement 
of  subordinate  facts,  or  of  the  legal  effect 
of  the  facts  propounded,  the  court  may 
award  any  relief  which  the  law  applicable 
to  ti  e  case  warrants.  The  Gazelle,  128 
U.  S.  474.  32  L.  Ed.  496;  Dupont  de  Ne- 
mours V.  Vance.  19  How.  162.  15  L.  Ed. 
584;  The  Syracuse.  12  Wall.  167,  20  L. 
Ed.   382. 

20.  Omissions  from  libel  cured  by  an- 
swer.— The  Stephen  Morgan,  94  U.  S. 
599,  603,  24  L.  Ed.  266;  The  Syracuse,  12 
Wall.   167,   173.  20   L.   Ed.  382. 

Where  the  libel  alleged  a  shipment  of 
cargo  under  a  bill  of  lading,  and  its  non- 
delivery, and  prayed  process  against  the 
vessel,  and  the  answer  set  up  a  jettison 
rendered  necessary  by  a  peril  of  the  sea, 
and  this  defensive  allegation  was  sus- 
tained by  the  court,  it  was  held,  that  the 
libelant  was  entitled  to  a  decree  for  the 
contributory  share  of  general  average  due 
from  the  vessel.  Dupont  de  Nemours  v. 
Vance.   19   How.   162,   15   L.   Ed.   584. 

Sufficiency  of  averments  in  collision 
cases.— See  the  title   COLLTSTON. 

21.  Prayer  for  relief. — Dupont  de  Ne- 
mours V.  Vance.  19  How.  162.  171,  15  L. 
Ed.    584. 

22.  Right  to  damages  not  prayed  for  in 
libel.— The  Gazelle,  128  U.  S.  474,  32  L. 
Ed.  496;  Penhallow  v.  Doane,  3  Dall.  54, 
1  L.  Ed.  507. 

23.  Libel  as  information.^The  Samuel. 
1  Wheat.  9.  13.  4   L.   Ed.  23. 

24.  Necessity  for  substantial  statement 
of  offense. — The  Caroline.  7  Cranch  496. 
3  L.  Ed.  417;  The  Schooner  Anne,  7 
Cranch  570,  3  L.  Ed.  442;  The  Schooner 
Hoppet,  7   CraiXGh  389,  3   L.    Ed.    380. 

A   rule   so   essential    to   justice   and   fair 


proceeding,  as  that  which  requires  a  sub- 
stantial statement  of  the  offense  upon 
which  the  prosecution  is  founded,  must 
be  the  rule  of  every  court  where  justice 
is  its  object,  and  cannot  be  satisfied  by  a 
general  reference  to  the  provisions  of  the 
statute.  United  States  v.  Weed,  5  Wall. 
62,  68,  18  L.  Ed.  531;  The  Schooner  Hop- 
pet,  7  Cranch  389,  3  L.  Ed.  380;  Freid- 
enstein  v.  United  States.  125  U.  S.  224, 
236,  30  L.   Ed.  742. 

Inasmuch  as  the  information  is  in  the 
nature  of  a  criminal  proceedings,  the  alle- 
gations must  conform  strictly  to  the  stat- 
ute upon  which  it  is  founded.  United 
States  V.  Huckabee.  16  Wall.  414,  431.  21 
L.  Ed.  457;  The  Schooner  Hoppet.  7 
Cranch  389.  3  L.  Ed.  380;  The  Caroline, 
7  Cranch  496,  500,  3  L.  Ed.  417;  The  Mary 
Ann,  8   Wheat.   380.   5   L.   Ed.   641. 

The  right  of  the  claimant  to  be  informed 
by  the  libel  of  the  specific  act  by  which 
he  or  his  property  has  violated  the  law, 
and  to  have  an  opportunity  to  produce 
witnesses,  and  to  cross-examine  those 
produced  against  him,  are  a«  fully  rec- 
ognized in  the  admiralty  courts,  in  all 
excent  prize  cases,  as  thev  are  in  the 
courts  of  common  law.  United  States  v^ 
Weed.   5   Wall.   62.   68,   18    L.    Ed.    531. 

.\  libel  for  a  forfeiture  must  be  particu- 
lar and  certain  in  all  the  material  circum- 
stances which  constitute  the  oflFense.  The 
Carolioe.  7  Cranch  496.  3  L.  Ed.  417;  The 
Schooner     Anne.  7  Cranch  570.  3  L.  Ed.  442. 

If  the  information  be  defective  in  that 
respect,  the  defect  is  not  cured,  by  evi- 
dence of  the  facts  omitted  to  be  averred 
in  the  information.  The  Schooner  Hop- 
pet. 7  Cranch  389.  3   L.   Ed.  380. 

Libel  for  forfeiture  under  slave  trade 
act.— See   the    tit^-o    SL.WES. 

Libel  for  forfeiture  for  breach  of  rev- 
enue laws. — See  the  title  REVENUE 
LAWS. 

25.  Showing  as  to  admiralty  jurisdic- 
tion.—'La  Vengeance,  3  Dall.  297.  1  L.  Ed. 
610. 

Jurisdictional  facts. — Where  a  libel  for 
forfeiture  of  a  vessel  for  illegal  expor- 
tation of  arms  alleged  that  arms  were  ex- 
ported from  Sandy  Hook  in  the  state  of 
New  Jersey  to  a  foreign  coimtry,  etc.,  it 
was     held,     that    it    sufificientlj^     appeared 


ADMIRALTY. 


165 


required,-*'  and,  in  general,  it  is  sufficient,  if  the  ofifense  be  described  in  the 
words  of  the  law.  and  so  set  forth,  that,  if  the  allegation  be  true,  the  case  must 
be  within  the  statute. 2"  But  a  general  referen|^  to  the.  provisions  of  the  stat- 
ute is  not  sufficient. 2s  Stating  a  charge  in  the  alternative  is  good,  if  each  al- 
ternative constitutes  an  offense  for  which  the  thing  is  forfeited. ^^  It  is  not 
necessary    that    the    libel    should    conclude   contra    formam    statuti."^ 

c.  Waiver  of  Objections. — Where  exceptions  of  form  are  taken  on  a  libel  in 
admiralty  in  the  district  court,  but  are  not  found  in  the  record  of  the  appeals 
from  the  district  to  the  circuit  court,  or  from  the  circuit  court  to  the  supreme 
court,  and  do  not  appear  to  have  been  brought  to  the  attention  of  the  circuit 
court,  or  acted  on  in  any  manner  by  it,  they  must  be  held  to  l:ave  been 
waived.-"'^ 

3.  Answer — a.  Definition  and  Nature. — The  answer  in  admiralty  proceed- 
ings is  a  substitute  for  the  plea  of  the  defendant  in  actions  at  law.^^ 


that  'the  offense  was  a  water  transaction, 
pnd  within  the  admiralty  jurisdiction.  La 
Vengeance,   3   Dall.   297.    1   L.   Ed.   610. 

26.  Technical  nicety  not  required. — The 
Samuel,  1  Wheat.  9,  4  L.  Ed.  23;  The 
Merino.  9  Wheat.  391,  6  L.  Ed.  118;  The 
Emily,  9  Wheat.  381.  6  L.  Ed.  116;  The 
Schooner  Hoppet.  7  Cranch  389.  3  L.  Ed. 
380;  Coffev  v.  United  States.  116  U.  S. 
427,  435.  29'  L.  Ed.  681;  The  Confisca- 
tion Cases.  20  Wall.  92,  110,  22  L.  Ed.  320. 

Compared  with  indictment. — A  libel  of 
information  does  not  require  all  the  tech- 
nical precision  of  an  indictment  at  com- 
mon law;  if  the  allegation  describes  the 
offense,  it  is  all  that  is  necessary.  The 
Emilv,  9  Wheat.  381,  382,  6  L.  Ed.  116; 
The  Palmyra.  12  Wheat.  1.  12,  6  L.  Ed. 
531;  The  Samuel,  1  Wheat.  9,  4  L. 
Ed.   23. 

Certainly  a  libel  for  the  forfeiture  of  a 
vessel  need  not  be  more  technical  or  spe- 
cific than  an  indictment  at  common  law. 
The  United  States  v.  Brig  Neurea.  19 
How.   92.   94.    15    L.   Ed.   531. 

27.  Description  in  words  of  statute. — 
The  Samuel.  1  Wheat.  9,  4  L.  Ed.  23;  The 
Merino.  9  Wheat.  391.  6  L.  Ed.  118;  The 
Emily,  9  Wheat.  381,  6  L.  Ed.  116;  The 
Schooner  Hoppet.  7  Cranch  389.  3  L.  Ed. 
380;  Coffev  v.  United  States.  116  U.  S. 
427.  43.'^,  29  L.  Ed.  681;  The  United  States 
V  The  Brig  Neurea.  19  How.  92.  15  L.  Ed. 
531;  The  Palmyra.  12  Wheat.  1,  13,  6  L. 
Ed.  531;  The  Mary  Ann,  8  Wheat.  380, 
389,  5  L.  Ed.  6417;  United  States  v.  Mann, 
95  U.   S.   580,   586.  24  L.   Ed.  531. 

Exceptions  to  the  rule,  exist  where  the 
term?  r;f  the  statute  are  so  general  as  nat- 
urally to  call  for  more  distinct  specifica- 
tions. The  Palmyra.  12  Wheat.  1,  13.  6 
L.  Ed.  531;  The  Mary  Ann,  8  Wheat. 
380.  389,   5   L.  Ed.   641. 

"If  the  words  which  describe  the  sub- 
ject of  the  law  are  general,  embracing  a 
whole  class  of  individuals,  but  must  nec- 
essarily be  so  construed,  as  to  embrace 
only  a  subdivision  of  that  class,  we  think 
the  charge  in  the  libel  ought  to  conform 
to  the  true  sense  and  meaning  of  those 
w-rds  as  used  bv  the  legislature."  The 
Mary    Ann,    8    Wheat.    380,    389,    5    L.    Ed. 


641;  United  States  v.  Mann,  95  U.  S. 
580,  586.  24  L.  Ed.  531;  The  Schooner 
Hoppet.    7    Cranch   389,    3    L.    Ed.    380. 

28.  General  reference  to  provisions  of 
statute. — The  Schooner  Hoppet,  7  Cranch 
389,  3   L.  Ed.  380. 

The  rule  of  the  common  law,  that  in 
all  proceedings  either  against  the  person 
or  thing,  for  penalties  or  forfeitures,  the 
allegation  that  the  act  charged  was  com- 
mitted in  violation  of  law,  or  of  the  pro- 
visions of  a  particular  statute  will  not 
justify  condemnation,  unless,  independ- 
entlj'  of  this  allegation,  a  case  be  stated, 
which  shows  that  the  law  has  been  vio- 
lated, applies  to  informations  in  a  court 
of  admiralty.  The  Schooner  Hoppet,  7 
Cranch   389.   393.   3    L.    Ed.  380. 

29.  Stating  charge  in  alternative. — The 
Emily,  9   Wheat.   381.   6   L.    Ed.   116. 

30.  Conclusion. — The  Merino,  9  Wheat. 
391,  6  L.  Ed.  118;  The  Confiscation  Cases. 
20   Wall.    92.    Ill,   22    L.    Ed.   320. 

The  absence  of  any  averment  that  the 
causes  of  forfeiture  were  contrafy  to  the 
form  of  the  statute  or  statutes  of  the 
United  States  in  such  case  provided,  is 
no  sufficient  reason  for  reversing  the 
judgment  of  the  district  court.  Such  an 
averment  is  required  by  the  twenty-second 
admiralty  rule,  but  even  in  admiralty  a 
failure  to  make  it  cannot  be  taken  ad- 
vantage of  in  a  court  of  errors.  The 
Merino,  9  Wheat.  391,  401,  6  L.  Ed.  118. 
The  defect  is  only  formal.  It  is  true  the 
absence  of  such  averment  in  indictments 
and  criminal  informations  has  been  held 
to  be  a  fatal  fault,  but  for  reasons  inappli- 
cable to  civil  proceedings,  and  we  need 
not  repeat  that  the  present  is  a  civil  case. 
The   Confiscation   Cases,  20  Wall.  92.   Ill, 

22  L.    Ed.   320. 

Libel  for  forfeiture  of  goods  seized  on 
land.— See  the  title  REVENUE  LAWS, 
and    cross   references    there   given. 

31.  Waiver  of  objections. — The  Vaughan 
and  Telegraph,  14  Wall.  258,  20  L."  Ed. 
807.  See,  also.  The  Emily.  9  Wheat.  381, 
3S6,   6    L.    Ed.    116. 

32.  Answer  compared  with  plea  in  ac- 
tions at  law.— The  Atlas.  93  U.  S.  302,  316, 

23  L.    Ed.   863. 


166  ADMIRALTY. 

b.  Form  and  Requisites. — It  is  incumbent  on  the  respondent  to  answer  dis- 
tinctly each  substantive  fact  alleged  in  the  libel,  either  admitting  or  denying, 
or  declaring  his  ignorance  thereof,  and  to  allege  such  other  facts  as  he  relies 
upon  as  a  defense,  either  in  part  or  in  whole,  to  the  case  made  by  the  libel.^^ 
The  necessity  for  specification  which  is  required  with  respect  to  exceptions  to 
the  report  of  commissioners  in  admiralty  exists  in  a  high  degree  with  respect 
to    answers   in   admiralty.      The   answer   should   be    full,   explicit   and   distinct.^* 

c.  Effect  as  Evidence. — In  the  admiralty  the  same  rule  does  not  prevail  as  in 
equity,  that  the  answer  to  matters  directly  responsive  to  the  allegations  of  the 
bill,  is  to  be  treated  as  sufficient  proof  of  the  facts,  in  favor  of  the  respondent^ 
unless  overcome  by  the  testimony  of  two  witnesses,  or  of  one  witness  and 
other  circumstances  of  equivalent   force. -"^ 

4.  Reply. — New  matter  in  an  answer  is  considered  as  denied  by  the  libel- 
ant and  no  reply  thereto  is  necessary .^^ 

5.  Cross  Libel — 2^..  Definition. — A  cross  libel  is  a  libel  brought  by  a  defend- 
ant in  the  suit  against  the  plaintiff  in  the  same  suit  or  against  other  defend- 
ants in  the  original  suit  or  against  both,  touching  the  matters  in  question  in  the 
original  libel.-'" 

b.  Object  and  Purpose. — A  cross  libel  is  brought  in  admiralty  to  obtain  full 
and  complete  relief  to  all  parties  as  to  matters  charged  in  the  original  libel. ^^ 

c.  Necessity. — In  admiralty,  if  the  respondent  desires  to  obtain  entire  dam- 
ages against  the  libelant,  or  damages  in  excess  of  those  claimed  by  libelant,  a 
cross  libel  is  necessary,^''  and  an  answer  cannot,  by  agreement  of  the  parties, 
be  treated  as  a  cross  libel.-*^ 

d.  Mode  of  Proceeding. — Respondents  who  desire  to  have  affirmative  relief 
against  the  libelants  should  file  their  libel,  take  out  process,  and  have  it  served 
in  the  usual  way ;  and  when  that  is  done,  the  libelants  in  the  first  suit  regularly- 
become  respondents  in  the  cross  libel,  and,  as  such,  they  must  answer  or  stand 
the  consec|uences  of  default.-*^ 

e.  Subject  Matter. — Matters  auxiliary  to  the  cause  of  action  set  forth  in  the 
original  libel  may  be  included  in  the  cross  suit,  and  no  others,  as  the  cross  suit 
is,  in  general,  incidental  to,  and  dependent  upon,  the  original  suit.'*^  New  and 
distinct  matters,  not   included  in  the  original   libel,  should  not  be  embraced   in 

33.  Form    and    requisites. — Dupont    de  39.  Necessity  of  cross  libel. — Bowker  v. 

Nemours   v.    Vance,    19    How.    162,    172,    15  United    States,    186    U.    S.    135,    46    L.    Ed. 

L.   Ed.   584;   Commander-in-Chief,   1   Wall.  1090. 

43,   17    L.   Ed.   609.  In   collision   cases. — See   the   title   COL- 

34.  Answer  should  be  full,  explicit  and  LISION. 

distinct. — The     Schooner     Commander-in-  40.      Agreement     of      parties      to      treat 

Chief.  1   Wall.  43,   17   L.   Ed.  609.  answer  as  cross  libel. — Where  a  libel  was 

Form  and  sufficiency  of  answer  in  col-  filed   by  the   owners   of  a   steamer   against 

lision   cases. — Sec   the   title    COLLISION.  the  owners  of  a  propeller  for  a  collision, 

35.  Effect  as  evidence.— Andrews  v.  a"d  there  was  an  agreement  between  the 
Wall.  3  How.  568,  572,  11  L.  Ed.  729.  parties     m     the     court     below,     that     the 

36.  Reply.-Admiralty  Rule  51;  Coffey  ^"^^^'^  ^^  ^i'-f  7'^"^'"^'  '^°"''^  ^P^T.^^^ 
V.  United  States.  116  U.  S.  427.  435,  29  f  ^  ^'"^^^  ''^/l-J^^  mode  of  _  proceedmg 
T      Fd     est  does  not  meet  the  approval  ot  this  court, 

_    ''   .■  .  and    ona:ht    not    to    be    drawn    into    prec- 

37.  Definition  of  cross  libel.— The  Dove,  ^dent.  The  respondents  should  file  their 
91  U.  S.  381.  383,  23  L.  Ed.  354;  Bowker  ^^^^^  jji^gj^  ^^^1,^  „^,j  process,  and  have  it 
V.  United  States,  186  U.  S.   135.  46  L.   Ed.  served  in  the  usual  way.    Ward  v.   Cham- 


berlain.  21    How.    572,   16  L.   Ed.   219. 
Set-off,    recoupment     or     counterclaim. 


1090 

"Generally  speaking,  the  same  principles 

applv    to    cross    libels    as    to    cross    bills."  ^-^-^".     '^^"."^"''="'      "'      v,uuiiicicx*iiiik 

Bowker   v.   United    States,    186    U.    S.    135,  77^^^,    P?^^-    „  ^^/t.;      t     ^^^""P"^^"^     and 

139,  46  L.  Ed.  1090.     See  the  title  CROSS  Counterclaim,      IIL    I. 

g]^j  J  5^  41.      Mode      of     proceeding. — Ward     v. 

38.   Effect  and  purpose  of  cross  libpl.—  Chamberlain,  21   How.  .=)72,  574,  16  L.   Ed. 

The    Dove.    91    U.    S.    381.    385,    23    L.    Ed.  -'«• 

354;    Bfwkcr  "•.   U^nited   States,   186  U.   S.  42.    Matters   auxiliary   to   original   cause 

135,  46  L.  Ed.   1090.  of   action.— The    Dove,    91    U.    S.    381,    385. 


ADMIRALTY. 


167 


the  cross  suit,  as  they  cannot  be  properly  examined  in  such  a  suit,  for  the 
reason  that  they  constitute  the  proper  subject  matter  of  a  new  original  libel.-*^ 

f.  Dismissal. — The  decree  of  a  district  court,  dismissing  a  cross  libel  for 
want  of  merit,  from  which  no  appeal  was  taken,  determines  the  questions 
raised  by  such  cross  libel,  but  does  not  dispose  of  the  issues  of  law  or  of  fact 
involved  in  the  original  suit.-*-*  \Miere  the  cross  bill  asks  affirmative  relief, 
and  is  therefore  not  a  pure  cross  bill,  the  dismissal  of  the  original  bill  mav  not 
dispose  of  the  cross  bill,  which  may  be  retained  for  a  complete  determination 
of  the  cause.^^ 

6.  Amendments — a.  Attitude  of  Aduiiralty  toward  Amendments. — Amend- 
ments are  readily  granted  in  the  admiralty  court,  as  carrying  out  the  maxim 
that  all  the  world  are  parties  to  the  proceecling;  and  if  due  notice  be  given,  and 
any  one  interested  fails  to  appear,  he  cannot  thereafter  have  any  ground  of  com- 
plaint.'*^ 

b.  Amendment  of  Libel — d)  /;;  General. — In  all  informations  and  libels,  in 
causes  of  admiralty  and  maritime  jurisdiction,  new  counts  mav  be  filerl.  and 
amendments,  in  matters  of  substance,  may  be  made,  upon  motion,  at  any  time 
before  the  final  decree,  upon  such  terms  as  the  court  shall  imposed' 

(2)  Amendment  as  to  Parties. — If  the  libelant  originally  proceeded  against 
vessel,  master,  owners,  antl  pilots,  the  libel  may  with  leave  of  the  court  Ije 
amended  so  as  to  apply  to  the  vessel  and  master  only.^^ 

(3)  Amendment  on  Appeal. — In  admiralty  proceedings,  amendments  are 
made  in  the  appellate  court,  not  only  as  to  form,  but  as  to  matter  of  substance, 
as,  by  filing  a  new  count  to  the  libel.^^     Such  amendments  are  within  the  ad- 


23    L.    Ed.    354;    Bowker   v.   United    Sta':cs, 
186    U.    S.    135.    46    L.    Ed.    1090. 

43.  Nev/  matter  not  to  be  included  in 
cross  bill.— The  Dove,  91  U.  S.  381.  385. 
23  L.  Ed.  354;  Bowker  v.  United  States. 
186   U.    S.    135.    46    L.    Ed.    1090. 

44.  Dismissal  of  cross  libel. — The  Dove, 
91  U.  S.  381.  23  L.  Ed.  354.  See,  .gen- 
erally, the  title  DISMISS.\L,  DISCOX- 
TT NUANCE  AND  NONSUIT. 

By  such  dismissal,  without  appeal,  both 
parties  to  the  cross  libel  are  remitted  to 
the  pleadings  in  the  original  suit;  and 
every  issue  therein  is  open  on  appeal  as 
fullv  as  if  no  cross  libel  had  ever  been 
filed.  The  Dove,  91  U.  S.  381,  23  L.  Ed. 
354. 

45.  Dismissal  of  original  libel  as  dis- 
missal of  cross  libel. — Bowker  v.  United 
States.  186  U.  S.  135.  46  L.  Ed.  1090.  See 
the  title  DISMISSAL.  DISCONTINU- 
ANCE  AND   NONSUIT. 

46.  Attitude  of  admiralty  toward 
amendments. — The  Schooner  Commander 
in  Chief,  1  Wall.  43.  52,  17  L.  Ed.  609; 
The  Schooner  North  Carolina.  15  Pet.  40, 
10  L.  Ed.  653;  The  Schooner  .-Xdeline.  9 
Cranch  244.  284,  3  L.  Ed.  719.  See,  gen- 
erallv.   the   title    AMENDMENTS. 

"Where  merits  clearly  appear  on  the 
recr^rd,  it  is  the  settled  practice,  in  ad- 
miralty proceedings,  not  to  dismiss  the 
libel,  brt  to  allow  the  party  to  assert  his 
rights  in  a  new  allegation.  This  practice, 
so  consonant  with  eouity  and  sound 
prinrinle.  has  been  deliberately  adopted 
by  this  court  on  former  occi««ions."  The 
Schooner  Adeline,  9  Cranch  244,  3  L.  Ed. 
719. 


In  admiralty  the  most  liberal  principles 
prevail  in  regard  to  amendments.  The 
Schooner  North  Carolina,  15  Pet.  40,  10 
L.    Ed.    653. 

47.  Amendment  of  libel. — Admiralty 
T?rle  24;  The  Charles  Morgan  v.  Kouns, 
115  U.  S.  69,  29  L.  Ed.  316;  The  Stephen 
Morgan,   94  U.   S.  599,   602,  24   L.    Ed.  266. 

A  libel  charging  a  seizure  to  have  been 
made  on  water,  when  it  was  in  fact  made 
on  land,  will  not  support  a  verdict  and 
judgment  or  sentence  thereon,  but  must 
he  amended  or  dismissed.  The  Sarah,  8 
Wheat.   391,   5   L.   Ed.   644. 

An  informal  libel,  or  information  in  rem, 
may  be  amended,  by  leayc  of  the  court. 
The  Caroline.  7  Cranch  496.  3  L.  Ed.  417. 
See  The  Edward.  1  Wheat.  261,  4  L.  Ed. 
86;  The  Mabev,  in  Wall.  419.  420.  19  L. 
Ed.    963. 

48.  Amendment  as  to  parties. — Newell 
V.  Norton.  3  Wall.  257,  18  L.  Ed.  271. 

Such  an  amendment,  neither  increasing 
nor  diminishing  their  liability,  will  not 
discharge  the  sureties  to  the  usual  bond 
given  on  release  of  a  vessel  seized  by 
process  of  the  admiralty.  Newell  v.  Nor- 
ton,   3    Wall.    257.    258,    18    L.    Ed.    271. 

49.  Amendment  on  appeal — In  general. 
— The  Marianna  Flora,  11  Wheat.  261.  6 
L.  Ed.  405:  The  Edward.  1  Wheat.  261.  4 
L.  E'l.  86;  The  Charles  Morgan  v.  Kouns, 
115   U.   S.   69,  76,  29   L.   Ed.   .316. 

In  revenue  or  instance  causes,  the  cir- 
cuit court  mav.  upon  appeal,  allow  the 
introduction  of  a  new  allegation  into  the 
information,  by  way  of  amendment.  The 
Edward.  1  Wheat.  '261,  4  L.  Ed.  86.  See. 
n'so.  Rice  v.  Minnesota,  etc.,  R.  Co.,  21 
How.   82.    84,    16    L.    Ed.   31. 


168 


ADMIRALTY. 


miralty  rule  permitting  amendments  before  final  decree.^°  While  a  new  claim 
for  damages  may  be  added  to  the  bill  on  appeal,^  ^  a  new  claim  for  interest 
cannot  be  added  in  order  to  bring  the  amount  in  controversy  within  the  juris- 
diction of  the  court. ^2  If  the  amendment  be  made  in  the  circuit  court,  the 
cause  is  heard  and  adjudicated  by  that  court  and  upon  appeal  by  the  supreme 
court,  on  the  new  allegation.^-  But  where  the  libel  is  so  informal  and  defective, 
that  the  court  cannot  enter  up  a  decree  upon  it,  the  supreme  court  will  not 
amend  the  libel  itself,  but  will  remand  the  cause  to  the  court  below,  with  di- 
rections to  permit  it  to  be  amended.^^ 

(4)  Amendment  after  Rez'ersal. — A  libel  may  be  amended,  after  reversal, 
for  want  of  substantial  averments.^^ 

c.  Amendment  of  Anszver. — It  is  within  the  discretion  of  the  district  court 
to  refuse  leave  to  amend  the  answer.^" 

G.  Laches. — While  courts  of  admiralty  are  not  governed  by  any  statute  of 
limitations,  they  adopt  the  principle  that  laches  or  delay  in  the  judicial  enforce- 
ment of  maritime  liens,  will,  under  proper  circumstances,  constitute  a  valid 
defense.^'''  No  arbitrary  or  fixed  period  of  time  has  been,  or  will  be  established, 
as  an  inflexible  rule ;  but  the  delay  which  will  defeat  such  a  suit  must,  in  every 
case,    depend    on   the    peculiar    equitable   circumstances   of   that   case.^^ 


50.  Application  of  admiralty  rule  per- 
mitting amendments  before  final  decree. 
— A  motion  to  amend  the  libel  made  while 
the  case  is  pending  in  the  circuit  court 
for  a  new  trial  on  its  merits,  after  an  ap- 
peal from  the  district  court  and  the  vaca- 
tion of  its  decree,  is  made  before  final 
decree  within  the  meaning  of  admiralty 
rule  24,  providing  that  in  all  informa- 
tions and  libels  in  causes  of  admiralty  or 
maritime  jurisdiction  "new  counts  may  be 
filed,  and  amendments,  in  matter  of  sub- 
stance, may  be  made,  upon  motion,  at 
any  time  before  the  final  decree,  upon 
such  terms  as  the  court  shall  impose." 
The  Charles  Morgan  v.  Kouns,  11.5  U.  S. 
69,  29  L.  Ed.  316,  citing  The  Lucille,  19 
Wall.    7.S.    74,    22    L.    Ed.    64. 

51.  Adding  new  claim  for  damages. — 
Under  admiralty  rule  24,  the  circuit  court 
may.  in  its  discretion,  permit  an  amend- 
ment of  the  libel,  so  as  to  include  a  claim 
for  damages  growing  out  of  the  original 
cause  of  action,  and  litigated  in  the  court 
below,  but  rejected  because  not  specified 
in  the  pleadings.  The  Charles  Morgan  v. 
Kouns,  11.5  U.  S.  69,  29  L.  Ed.  316,  citing 
The  Lucille.  19  Wall.  73,  74.  22  L.  Ed. 
64,  distinguishing  The  Schooner  North 
Carolina,   15    Pet.   40,    50.    10   L.    Ed.   653. 

But  before  the  adoption  of  the  ad- 
miralty rule  24,  a  libel  could  not  be 
amended  after  an  appeal,  so  as  to  bring  in 
a  new  claim  for  damages.  The  Schooner 
North  Carolina.  15  Pet.  40,  50,  10  L.  Ed. 
653. 

52.  Adding  claim  of  interest  in  order  to 
give  jurisdiction. — It  is  too  late,  when  the 
cause  has  reached  the  supreme  court,  to 
amend  the  libel  by  inserting  a  special 
claim  for  interest  so  as  to  bring  the 
amount  in  controversy  within  the  juris- 
diction of  the  court.  The  24th  admiralty 
rule  ought  not  to  be  construed  to  extend 
to  cases  where  an  amendment  would  give 
jurisdiction,  which   would   not  exist   with- 


out such  amendment.  Udall  v.  The 
Steamship  Ohio,  17  How.  17,  15  L.  Ed.  42. 
Generally,  as  to  amount  in  controversy, 
see  the  title  APPEAL  AND  ERROR. 

53.  Hearing  on  new  allegations. — The 
Marianna  Flora,  11  Wheat.  1,  6  L.  Ed. 
405. 

54.  Remanding  case  for  amendment. — 
The  Mary  Ann,  S  Wheat.  380,  5  L.  Ed. 
641;  The  Divina  Pastora,  4  Wheat.  52, 
4  L.  Ed.  512;  The  Marianna  Flora,  11 
Wheat.  1,  6  L.  Ed.  405;  The  Edward,  1 
Wheat.  261,  4  L.  Ed.  86;  The  Adeline,  9 
Cranch  244,  3  L.  Ed.  719;  Brig  Caroline,  7 
Cranch  496,  3  L.  Ed.  417;  The  Schooner 
Anne,  7  Cranch  570,  3   L.   Ed.  442. 

55.  Amendment  after  reversal. — The 
Mary  Ann,  8  Wheat.  380,  5  L.  Ed.  641; 
The  Schooner  Anne,  7  Cranch  570,  3  L. 
Ed.   442. 

56.  Discretion  as  to  refusal  of  leave  to 
amend  answer. — O'Brien  v.  Miller,  168 
U.    S.    104,    42    L.    Ed.    398. 

It  has  been  held,  that  it  is  no  abuse  of 
the  discretion  for  the  court  to  refuse  to 
permit  an  answer  to  a  third  amended  libel 
to  be  amended  so  as  to  set  up  laches  on 
the  part  of  libelants  in  not  sooner  bring- 
ing the  matter  objected  to  before  the 
court.  O'Brien  v.  Miller,  168  U.  S.  104, 
42   L.   Ed.   398. 

Amended  answer  setting  up  improbable 
defense  and  departing  from  answer  not 
favored.— The  Mabey  &  Cooper.  14  Wall. 
204,  20   L.    Ed.   881. 

57.  Laches.— The  Key  City,  14  Wall. 
653,  20  L.  Ed.  896;  Reed  v.  Merchant's 
Mut.  Ins.  Co.,  95  U.  S.  23,  33,  24  L.  Ed. 
348.      See,    generally,    the    title    LACHES. 

58.  Laches  dependent  on  circumstances 
of  case.— The  Key  City,  14  W^all.  653,  20 
L.    Ed.    896. 

When  an  admiralty  lien  is  to  be  en- 
forced to  the  detriment  of  a  purchaser 
for  value,  without  notice  of  the  lien,  the 
defense   will   be   held   valid   under    shorter 


ADMIRALTY 


169 


K,  Intervention  and  Claim — 1.  Inte;rvEx\tion. — All  parties  who  may  have 
an  interest  in  the  subject  matter  of  the  suit  may  appear,  and  each  may  pro- 
pound independently,  his  interests.^^  The  insurer  may  at  all  times  intervene 
in  courts  of  admiralty,  if  he  has  the  equitable  right  to  tlie  whole  or  any  part 
of  the  damages.^"  So,  also,  the  cargo  owners  may  intervene  for  the  protection 
of  their  interests,  at  any  time  before  the  distribution  of  the  proceeds  of  sale.^^ 
In  collision  cases,  the  court  may,  under  the  59th  admiralty  rule,  order  process 
to  issue  against  all  who  have  an  interest  in  the  case/'^  After  the  release  of  a 
vessel  on  bond,  intervening  petitions  cannot  be  filed  without  a  rearrest.*'-'^  The 
demand  of  the  ship  owners  for  freight  and  general  average  is  to  be  pursued 
against  that  portion  of  the  proceeds  of  the  cargo,  which  is  adjudged  to  the 
owners  of  the  goods,  by  a  direct  libel  or  petition,  and  not  by  a  claim  interposed 
in  the  salvage  cause. ^"^ 

2.  Claim. — a.  In  General. — In  suits  in  rem,  and  on  the  exchequer  side  of 
the  district  courts  of  the  United  States,  the  claimant  is  an  actor,  and  is  en- 
titled to  come  before  the  court  in  that  character  only,  in  virtue  of  his  proprietary 
interest  in  the  thing  in  controversy ;  this  alone  gives  him  a  persona  standi  in 
judicio.^^  It  is  necessary,  that  he  should  establish  his  right  to  that  character, 
as  a  preliminary  to  his  admission  as  a  party  ad  litem,  capable  of  sustaining  the 
litigation. ^"^ 

b.  Who  May  Claim. — In  case  of  a  seizure,  the  owner  may  appear  and  file 
a  claim,**'''  or  it  may  be  made  by  another  for  him,  as  the  master  of  the  vessel  or 
managing  owner,  or  the  consignee.'''^  And  a  consul  has  a  right  to  interpose  a 
claim  on  behalf  of  the  citizens  or  subjects  or  his  country,**^  but  coshippers  have 
no  authoriry  to  interpose  any  claim  for  other  shippers  with  whom  they  have  no 
privity  of  interest   or  consignment.'^''     Allegations   and   pleadings  to   the  merits 


time,  and  a  more  rigid  scrutiny  of  the 
delay  than  when  the  claimant  is  the  party 
who  owned  the  property  when  the  lien 
accrued.  The  Key  City,  14  Wall.  G53,  20 
L.    Ed.   896. 

Quaere,  can  a  demand  arising  out  of  con- 
tract be  enforced  by  a  libel  in  personam 
in  admiralty  when  a  suit  to  recover  it.  if 
brought  in  a  state  court  of  concurrent 
jurisdiction,  would  be  barred  by  the  stat- 
ute of  liinitations?  Reed  v.  Merchant's 
Mut.   Ins.   Co..   95  U.   S.   23.  24   L.   Ed.  348. 

59.  Intervention  in  general. — Taylor  v. 
Carryl,  20  How.  583,  599,  15  L.  Ed.  1028; 
The  Lottawanna,  20  Wall.  201,  22  L.  Ed. 
259;  The  Lottawanna,  21  Wall.  558,  22  L. 
Ed.  654.  See,  also.  The  Mary,  9  Cranch 
126,   144,   3   L.    Ed.    678. 

Intervention  to  claim  proceeds  of  sale. 
— See  post.  "Disposition  of  Proceeds  of 
Sale,"    III,    P. 

60.  Intervention  by  insurer. —  The 
Propeller  Monticello  v.  Mollison,  17  How. 
153.  155,  15  L.  Ed.  68.  See,  generally,  the 
titles  INTERVENTION;  MARINE  IN- 
SURANCE. 

Under  the  34th  rule  in  admiralty  an 
insurer  may  be  allowed  to  intervene,  and 
become  the  dominus  litis,  where  he  can 
show  an  abandonment,  which  divests  the 
original  claimant  of  all  interest. 
The  Propeller  Monticello  v.  Mollison,  17 
How.   153.  155.   15   L.   Ed.  6^. 

Under  the  43d  admiralty  rule  an  in- 
surer m?v  intervene  after  decree,  and 
claim  the  damages  recovered,  by  showing 


that  he  is  equitably  entitled  to  them. 
The  Propeller  Monticello  v.  Mollison,  17 
How.   153,   155,   15   L.    Ed.   68. 

61.  Cargo  owners. — The  Commander-in- 
Chief.  1  Wall.  43.  17  L.   Ed.  609. 

62.  Forced  intervention  in  collision 
cases.— See    the    title    COLLISION. 

63.  Rearrest  as  prerequisite  to  interven- 
tion.—The  Oregon,  158  U.  S.  186,  39  L. 
Ed.   943. 

64.  Intervention  by  ship  owners  in  sal- 
vage case. — The  Sybil,  4  Wheat.  98,  4  L. 
Ed.  522.  See,  generally,  the  title  SAL- 
VAGE. 

65.  Claim — In  general. — United  States 
V.  422  Casks  of  Wine.  1  Pet.  547,  7  L.  Ed. 
257;  Govenor  v.  Madrazo,  1  Pet.  110,  132, 
7    L.    Ed.    73. 

One  claimant  is  not  to  suffer  for  the 
contumacy  of  another.  The  Mary,  9 
Cranch    126,    143,    3    L.    Ed.   678. 

66.  Necessity  for  claimant  to  establish 
interest. — United  States  v.  422  Casks  of 
Wine,  1  Pet.  547.  7  L.  Ed.  257. 

67.  Owner. — United  States  v.  Ames,  99 
U.   S.   35,  43.  25   L.    Ed.  295. 

68.  Claim  by  agent,  etc.,  of  owner. — 
United  States  v.  Ames.  99  U.  S.  35.  43, 
25  L.  Ed.  295.  See,  generally,  the  title 
PRINCIPAL  AND  AGENT. 

69.  Right  of  consul  to  claim  for  subject 
of  his  country.- Sec  the  title  AMBASSA- 
DORS AND  CONSULS. 

70.  Coshippers. — Stratton  v.  Jarvis,  8 
Pet.  4,  9,  8   L.   Ed.  840. 


170  ADMIRALTY. 

are  a  waiver  of  the  preliminary  inquiry  as  to  proprietary  interest,  and  admission 
that  the  party  is  rightly  in  court,  and  capable  of  contesting  the  merits.'^ 

c.  Verification  or  Affidavit. — A  test  affidavit  ought  to  state,  that  the  property, 
at  the  time  of  the  shipment,  and  also  at  the  time  of  capture,  did  belong,  and  will, 
if  restored,  belong  to  the  claimant,'^ 2  i^^t  an  irregularity  in  this  respect  is  not 
fatal. '^  If  the  affidavit  is  made  by  an  agent,  he  must  make  oath  as  to  his'  belief 
of  the  verity  of  the  claim,  and  if  necessary,  produce  proof  of  his  authority,  be- 
fore he  can  be  admitted  to  put  in  the  claim.'*  A  test  affidavit,  by  an  agent, 
is  not  sufficient,  if  the  principal  be  within  the  country,  and  within  a  reasonable 
distance  from  the  court,' ^  but  an  objection  on  this  ground  cannot  be  raised  for 
the  first  time  in  the  supreme  court.'® 

d.  Effect  of  Fraudulent  Claim. — If  a  party  attempts  to  impose  upon  the  court, 
by  knowingly  or  fraudulently  claiming  as  his  own,  property  belonging  in  part 
to  others,  he  will  not  be  entitled  to  restitution  of  that  portion  which  he  may 
ultimately  establish  as  his  own."' 

e.  Separate  Claims  Treated  as  Separate  Proceedings. — When  separate  claims 
are  interposed,  although  the  libel  is  joint  against  the  whole  property,  each  claim 
is  treated  as  a  distinct  and  independent  proceeding,  in  the  nature  of  a  several 
suit,  upon  which  there  may  be  a  several  independent  hearing,  decree  and  appeal. 
This  is  very  familiar  in  practice,  in  prize  causes,  and  seizures  in  rem  for  for- 
feitures ;  and  it  is  equally  applicable  to  all  other  proceedings  in  rem,  whenever 
there  are  distinct  and  independent  claimants.'^ 

f.  Disposition  of  Unclaimed  Property. — See  ante,  "Disposition  of  Proceeds  of 
Sale,"  III.  P. 

I.  Set-Off,  Recoupment  and  Counterclaim. — Recoupment  or  counter- 
claim may  be  asserted  in  the  answer  in  a  proceeding  in  admiralty." ^ 

J.  Custody  and  Control  of  Property — 1.  Necessity  for  Seizure  oe 
Property. — To  give  jurisdiction  in  rem  there  must  be  a  seizure  and  actual  con- 
trol of  the  property  by  the  marshal  of  the  court,**^  and  the  seizure  by  the  marshal 

71.  Waiver   of   objection  to   claimant. —  80.  Necessity  for  seizure  of  property.— 

United    States    v.    4?2    Casks    of    Wine,    1  Taylor    v.    Carryl,    :^0    How.    583,    599,    15 

Pet.   547,   7   L.   Bd.   257.  L.    Ed.    1028;    The    Rio    Grande,    23    Wall. 

72.  Fcrm  and  contents  of  test  affidavit.  458.  465,  23  L.  Ed.  158;  Miller  v.  United 
—The  Schooner  Adeline,  9  Cranch  244,  3  States.  11  Wall.  268.  294.  20  L.  Ed.  135; 
L.   Ed.   710.  dishing  v.   Laird,   107   U.   S.   69,   78,   27    L. 

73.  Effect  of  irregularity  in  affidavit. —  Ed.  391;  Jennings  t'.  Carson,  4  Cranch 
The  Schooner  Adeline.  9  Cranch  244,  3  L.  2,  2  L.  Ed.  531;  The  Brig  Ann,  9  Cranch 
Ed.   719.  289,    3    L.    Ed.    734;    The    Josefa    Segnnda. 

74.  Sufficiency  of  oath  and  proof  of  10  Wheat.  312,  6  L.  Ed.  329;  Dobbins  v. 
agenfs  authority.— United  States  z:  422  United  States,  96  U:  S.  39.^.  3^6,  24  L.  Ed. 
Casks  of  Wine.  1   Pet.  547,  7  L.  Ed.  257.  637. 

75.  Right  of  agent  to  make  affidavit. —  In  order  to  institute  and  perfect  pro- 
The  Schooner  Adeline,  9  Cranch  244,  3  ceedings  in  rem,  it  is  necessary  that  the 
L.    Ed.    719.  thing  should  be  actually  or  constructively 

76.  W?iver  of  objection  to  affidavit  by  -within  the  reach  of  the  court.  It  is 
agent. — The  Schooner  Adeline,  9  Cranch  actually  within  its  possession,  when  it  is 
':'-14,  3  L.  Ed.  719.  See  the  titles  .APPEAL  submitted  to  the  process  of  the  court;  it 
\ND  ERROR;  EXCEPTIONS,  BILL  is  constructively  so.  when,  by  a  seizure, 
OF,  AND  STATEMENT  OE  EACTS  it  is  held,  to  ascertain  and  enforce  a  right 
ON   APPE.'^L.  or  forfeiture   which   can   alone  be    decided 

77.  Effect  of  fraudulent  claim. — The  by  a  judicial  decree  in  rem.  The  Brig 
Dos  Hermanos,  2  Wheat.  76,  4  L.  Ed.  189.  Ann,  9  Cranch  289,  291,  3  L.  Ed.  734. 

78.  Separate  claims  treated  as  separate  Pending  the  proceedings  the  property 
proceedings. — Stratton  z\  Jarvis,  8  Pet.  4,  is  in  the  possession  of  the  court,  and  not 
9,    8    L.    Ed.    846.  left  in  the  possession  of  either  party  with- 

79.  Set-off,  recoupment  or  counterclaim.  out  security.     Cushing  v.  Laird,  107  U.  S. 
— Bowker  v.  United  States,  186  U.   S.   135,  69.  78,  27   L.  Ed.  391;  Jennings  v.   Carson, 
46   L.    Ed.   1090.      See   the   title   SET-OFF,  4  Cranch  2,  2  L.   Ed.  531. 
RECOUPMENT        AND        COUNTER-  Process   in    rem    is    founded    on   a    right 
CLAIM.  in  the  thing,  and  the  object  of  the  process 

Recoupm.ent  or  counterclaim  in  colli-  is  to  obtain  the  thing  itself,  or  a  satisfac- 
tion cases. — See  the  title  COLLISION.  tion   out   of  it,   for  some   claim   resting  on 


ADMIRALTY 


171 


must  be  valid. ^^ 

2.  Control  of  Property  by  Court  Pending  Suit. — In  all  proceedings  in 
rem,  the  court  has  a  right  to  order  the  thing  to  be  taken  into  custody  of  the  law ; 
and  it  is  to  be  presumed  to  be  in  custody  of  the  law,  unless  the  contrary  ap- 
pears. ^2  g^t  vessels  are  frequently  allowed  to  pursue  their  ordinary  vo\ages 
while  in  custody  pending  suit,  under  proper  restrictions  and  in  order  to  prevent 
hardship.**^ 

3.  Wrongful  Removal  of  Property  from  Custody  of  Court. — An  ac- 
cidental  or  fraudulent  or  improper  removal  of  property  from  the  custody  of 
the  court  cr  marshal  does  not  destroy  jurisdiction. ^^ 

4.  Abandonment  of  Seizure. — A  seizure,  once  voluntarily  abandoned,  loses 
its  validity.*^ 

5.  Release  of  Property  on  Bond  or  Stipulation — a.  Pozver  to  Take  Stipu- 
lations and  Release  Property. —  (1)  In  General. — In  general,  when  a  warrant  of 
arrest  or  other  process  in  rem  is  issued  in  any  cause  of  admiralty  jurisdiction, 
the  marshal  may  stay  the  execution  of  such  process,  or  discharge  the  property 
arrested  if  the  process  has  been  levied,  on  receiving  from  the  claimant  of  the 
property  a  bond  or  stipulation  in  double  the  amount  claimed  by  the  libelant, 
with  sufficient  surety,  to  be  approved  by  the  judge.^*^ 


a  real  or  quasi  proprietary  right  in  it. 
Consequently,  the  court,  through  its 
process,  arrests  the  thing,  and  holds  pos- 
session of  it  by  its  ofificers,  as  the  means 
of  affording  such  satisfaction,  and  in 
contemplation  of  law  it  is  in  the  posses- 
sion of  the  court  itself.  The  Propeller 
Commerce.  1  Black  .574,  581,  17  L.  Ed. 
107. 

81.  Sf:'zure  must  be  valid. — Taylor  v. 
Carry!,  20  How.  583,  584,  15  L.  Ed.  1028; 
The  Josefa  Segunda,  10  Wheat.  312,  6 
L.    Ed.    329. 

In  order  to  constitute  a  valid  seizure, 
so  as  to  entitle  the  party  to  the  proceeds 
of  a  forfeiture,  there  must  be  an  open, 
visible  possession  claimed,  and  authority 
exercised,  under  the  seizure.  The  Josefa 
Segunda,    10   Wheat.   312,   6   L.    Ed.   329. 

A  seizure  is  not  valid  when  the  vessel 
was,  at  the  time  of  seizure,  in  the  actual 
and  legal  possession  of  the  sheriff.  Tay- 
lor V.  Carry],  20  How.  583,  584,  15  L.  Ed. 
1028. 

If  a  merchant  vessel  of  the  United 
States  be  seized  by  the  naval  force  of  the 
United  States,  within  the  territorial  juris- 
diction of  a  foreign  friendly  power,  for  a 
violation  of  the  laws  of  the  United  States, 
it  is  an  offense  against  that  power,  which 
must  be  adjusted  between  the  two  gov- 
ernments; this  court  can  take  no  cog- 
nizance of  it.  Bwt  the  law  does  not  con- 
nect that  trespass  with  the  subsequent 
seizure  by  the  civil  authority,  under  the 
process  of  the  district  court,  so  as  to 
annul  the  proceedings  of  that  court 
against  the  vessel.  The  Ship  Richmond, 
9  Cranch  102.  3  L.  Ed.  670;  The  Merino, 
9  Wheat.  391,  6  L.  Ed.  118;  Ex  parte 
Johnson.  167  U.  S.  120,  126,  42  L.   Ed.  103. 

82.  Control  of  property  pending  suit. — 
Jennings  v.  Carson,  4  Cranch  2,  2  L.  Ed. 
531. 

83.  Release    of   vessels    by    court. — The 


Three   Friends.  166  U.   S.  1,  41   L.   Ed.  897. 

84.  Wrongful  removal  of  property 
from  custody  of  court. — The  Rio  Grande, 
23  Wall.  458,  465,  23   L.   Ed.   158. 

Hence,  where,  on  a  libel  in  rem  in  the 
admiralty  for  repairs,  a  vessel  had  been 
seized,  and,  on  hearing,  the  libel  was  dis- 
missed, but  on  the  same  day  an  appeal 
to  the  circuit  court  was  moved  and  al- 
lowed, a  motion  made  on  the  next  da}'  by 
the  claimants,  and  improvidently  granted, 
to  restore  the  vessel  to  them,  does  not 
divest  the  circuit  court  of  its  jurisdiction 
to  hear  the  appeal,  if  within  due  time  the 
appeal  is  perfected  by  giving  bonds  in  the 
way  prescribed  by  statute.  The  Rio 
Grande,    23    Wall.    458,    23    L.    Ed.    158. 

85.  Abandonment  of  seizure. — The  Brig 
Ann,  9  Cranch  289,  291,  3  L.  Ed.  734; 
The  Josefa  Segunda,  10  Wheat.  312,  G 
L.    Ed.   329. 

If  a  seizure  be  completely  and  explicitly 
abandoned,  and  the  property  restored  by 
the  voluntary  act  of  the  party  who  has 
made  the  seizure,  all  rights  under  it  are 
gone.  Although  judicial  jurisdiction  once 
attached,  it  is  divested  by  the  subsequent 
proceedings;  and  it  can  be  revived  only 
bv  a  new  seizure.  It  is,  in  this  respect, 
like  a  case  of  capture,  which,  although 
well  made,  gives  no  authoritv  to  the 
prize  court  to  proceed  to  adjudication, 
if  it  be  voluntarily  abandoned,  before 
judicial  proceedings  are  instituted.  The 
Brig  Ann,  9  Cranch  289,  29-1.  3  L.  Ed. 
734. 

A  seizure,  not  followed  by  an  actual 
prosecution,  or  by  a  claim  in  the  district 
court,  before  a  hearing  on  the  merits, 
insisting  on  the  benefit  of  the  seizure,  be- 
comes a  nullity.  The  Josefa  Segunda, 
10    Wheat.    312,    6    L.    Ed.    ^^. 

86.  Power  to  take  stipulation  and  re- 
lease property. — Rev.  Stat..  8  941;  The 
Three    Friends,   166  U.   S.    1,  67.  41   L.    Ed. 


[72 


ADMIRALTY. 


(2)  Seizures  for  Forfeiture. — The  statute  makes  an  exception  in  cases  of 
seizure  for  forfeiture  under  any  law  of  the  United  States.^''' 

b.  Form  and  Requisites. — It  matters  not  whether  security  in  an  admiralty  and 
maritime  cause  be  by  bond,  recognizance,  or  stipulation,  as  the  court  has  an  in- 
herent authority  to  take  it,  and  to  proceed  to  award  judgment  or  decree  thereon 
accordmg  to  the  course  of  the  admiralty,  unless  where  som£  statute  has  pre- 
scribed a  different  course. ^^  But  if  a  vessel  is  in  custody  when  intervening  peti- 
tions are  hied,  the  vessel  cannot  be  released  until  a  stipulation  is  given  to  answer 
all  the  libels  on  file.^^ 

c.  Operation  and  Effect — (1)  Substitute  for  Property. — Whenever  a  stipula- 
tion is  ta^'-en  in  the  admiralty  for  the  property  subjected  to  legal  process  and 
condemnation,  the  stipulation  is  deemed  a  mere  substitute  for  the  thing  itself, 
and  the  stipulators  are  held  liable  to  the  exercise  of  all  those  authorities  on  the 
part  of  the  court  which  it  could  properly  exercise  if  the  thing  itself  were  still  in 
the  custody  of  the  court. ^*^' 

(2)  Bi.'iding  Effect  on  Appeal. — A  stipulation  is  binding  on  the  appellate  court, 
uU'Css  it  aj  pears  that  the  property  was  rel-ased  by  misrepresentation  and  fraud. ^^ 

d.  Liability  on  Stipulations — (1)  Liability  of  Stipulators  to  Subsequent  Libel- 
ants or  Intervcnors. — Where  after  a  libel  is  filed  for  a  collision,  and  the  usual 
stipulation  to  answer  judgment  given,  other  libels  for  damages  from  the  same 
collision  are  filed  without  a  rearrest  of  the  vessel,  this  is  a  new  cause  of  action, 
and  the  court  acquires  no  jurisdiction  to  render  a  judgment  against  the  sureties.''^ 


897;  The  Wanata.  95  U.  S.  600,  616,  24 
L.  Ed.  461;  The  Oregon.  158  U.  S.  186, 
39  L.  Ed.  943;  The  Schooner  Anne  Caro- 
line, 2  Wall.  538.  548,  17  L.  Ed.  833. 

"Nothing  can  be  better  settled,  said 
Judge  Story,  than  that  the  admiralty  may 
take  a  fidejussory  caution  or  stipulation 
in  cases  in  rem,  and  may  in  a  summary 
manner  award  judgment  and  execution 
thereon.  Jurisdiction  to  that  effect  is 
possessed  by  the  district  court;  and, 
being  fully  authorized  to  adopt  the 
process  and  modes  of  proceeding  of  the 
admiralty,  they  have  an  undoubted  right 
to  deliver  the  property  on  bail  and  to 
enforce  conformity  to  the  terms  of  the 
bailment.  Authority  to  take  such  security 
is  undoubted,  and,  whether  it  be  by  a 
sealed  instrument  or  by  a  stipulation  in 
the  nature  of  a  recognizance,  cannot  affect 
the  jurisdiction  of  the  court.  Having 
jurisdiction  of  the  principal  cause,  the 
court  inust  possess  jurisdiction  over  all 
the  incidents,  and  may.  by  motion,  at- 
tachment, or  execution,  enforce  its  de- 
crees against  all  who  become  parties  to 
the  proceedings."  The  Wanata,  95  U.  S. 
600,  616,  24   L.   Ed.  461. 

87.  Seizures  for  forfeiture. — Rev.  Stat., 
§  941;  The  Three  Friends.  166  U.  S.  1, 
67,  41  L.   Ed.   897. 

The  release  on  bond  of  a  vessel  charged 
with  liability  to  forfeiture  under  §  5283 
of  the  Revised  Statutes  which  forbids  the 
fitting  out  or  arming  of  vessels  with  in- 
tent that  they  shall  be  employed  in  the 
service  of  any  foreign  people  or  to  cruise 
or  commit  hostilities  against  the  subjects, 
citizens  or  property  of  any  foreign  people 
with  whom  the  United  States  is  at  peace 
is  unauthorized.  The  Three  Friends,  166 
U.  S.  1,  41  L.  Ed.  897. 


88.  Form  and  requisites. — The  Wanata, 
95  U.  S.  600.  616,  24  L.  Ed.  461;  United 
States  V.  Ames,  99  U.  S.  35.  41,  25  L.  Ed. 
295;  The  Schooner  Ann  Caroline,  2  Wall. 
538,    549,    17    L.    Ed.    833. 

Bonds  are  to  all  intents  and  purposes 
stipulations.  The  Wanata.  95  U.  S.  600. 
616,   24    L.    Ed.    461. 

89.  Necessity  for  bond  to  answer  all 
petitions.— The  Oregon,  158  U.  S.  186,  39 
L.    Ed.    943. 

90.  The  bond,  a  substitute  for  property 
released.— The  Wanata,  95  U.  S.  600,  611, 
24  L.  Ed.  461;  The  Palmyra,  12  Wheat.  1, 
6  L.  Ed.  531;  United  States  v.  Ames,  99 
U.  S.  35,  36.  25  L.  Ed.  295;  The  Steamer 
Webb,   14  Wall.   406,  20-  L.   Ed.  774. 

It  is  quite  a  different  question,  whether 
the  court  will,  in  particular  cases,  exer- 
cise its  authority,  where  sureties  on  the 
stipulation  may  be  affected  injuriously; 
that  is  a  subject  addressed  to  its  sound 
discretion.  The  Palmyra,  12  Wheat.  1,  10, 
6   L.   Ed.  531. 

Under  the  New  York  act  of  April  24, 
1862,  purporting  to  give  a  lien  upon  a 
vessel  for  materials  furnished  and  work 
done  in  repairing  her  at  her  home  port, 
where  a  seizure  has  been  seasonably 
made,  a  bond  in  conformity  with  the  stat- 
ute, accepted  and  delivered  by  the  owner, 
is  a  substitute  for  the  property  and  works 
a  discharge  of  the  vessel.  The  Edith, 
94  U.   S.  518,  24  L.   Ed.  167. 

91.  Binding  effect  on  appeal. — The 
Wanata.  95  U.  S.  600,  611,  24  L.  Ed.  461; 
Houseman  v.  The  Schooner  North  Caro- 
lina,   15    Pet.   40,    10   L.   Ed.    653. 

92.  Liability  of  stipulators  to  subse- 
quent libelants  or  intervenors. — The  Ore- 
gon,  158   U.   S.   186,   39  L.    Ed.   943. 

A   stipulation   for   the    release   of   a    suit 


ADMIRALTY. 


173 


(2)  Nature  and  Extent  of  Liability — (a)  Liability  for  Amount  of  Bond  or 
Stipulation. — Sureties  in  admiralty,  like  sureties  at  law,  are  only  bound  to  the 
extent  of  the  obligation  expressed  in  their  stipulation.  The  obligation  of  a  stipu- 
lator -s  the  same  as  that  of  a  surety,  and  consequently  his  liab'lity  is  limited  by 
the  terms  of  his  contract. ^^  fhe  court  cannot  award  any  damages  against  the 
sureties  beyond  the  amount  of  the  stipulation,  even  if  the  amount  of  the  stipula- 
tion is  lesb  than  the  decree.^"*  Stipulations  are  taken  for  the  property  seized  for 
the  value  of  the  same  when  delivered  to  the  claimant,  and  the  stipulation  will 
not  be  reduced  if  the  property  when  sold  brings  less  than  the  appraised  value.^'- 
The  stipulator  is  estopped  to  deny  that  the  vessel  or  property  is  worth  less  than 
the  value  fixed  by  the  appraisers. ^"^ 

(b)  Liability  for  Interest  and  C^.^^v.— If  stipulators  neglect  to  fulfill  the  terms 
of  the  in-^trument,  and  the  suffering  party  is  driven  by  their  neglect  to  resort 
to  legal  measures  to  recover  the  amount  to  satisfy  his  loss,  they  are  then,  like 
the  delinquent  ship  owner,  liable  for  costs  and  interest  occasioned  by  their  neglect 
and  contumacy. ^'^ 

(3)  Amendment  as  Discharging  Stipulators. — An  amendment,  neither  increas- 
ing nor  diminishing  the  liability  of  stipulators,  will  not  discharge  the  sureties 
to  the  usual  bond  given  on  release  of  a  vessel  seized  by  process  of  the  ad- 
miralty.^^    But   the  introduction  of  a  new  cause  of  action   is  something  which 


for  the  benefit  "of  whom  it  may  concern" 
obviorslv  is  for  the  benefit  of  the  libel- 
ants whose  claims  have  been  filed, 
and  does  pot  apply  to  persons  subse- 
quently becoming  parties  by  intervention. 
The  Oregon.  1.58  U.  S.  186,  39  L.   Ed.  943. 

93.  Liability  for  amount  of  bond  or 
stipulation. — Tlie  Schooner  Ann  Caroline, 
2  Wall.  538.  548,  17  L.  Ed.  833;  The  Wa- 
nata,  95  U.  S.  600,  612,  24  L.  Ed.  461; 
United  States  i:  Ames,  99  U.  S.  35,  41,  25 
L.  Ed.  295;  The  Ship  Virgin.  8  Pet.  538. 
539.  8  L.  Ed.  1036;  The  Hypodame,  6 
WpII.   216.   18   L.    Ed.   794. 

Whenever  the  obligation  of  the  stipu- 
lator, as  expresed  in  the  stipulation,  is 
for  a  definite  sum,  the  surety  stipulating 
to  pay  that  sum  cannot  be  coinpelled  to 
pay  more  than  that  amount  for  any  de- 
fault of  his  principal.  The  Wanata,  95 
U.  S.  600,  605,  24  L.  Ed.  461;  The  Steamer 
Webb,   14  Wall.   406,  20  L.   Ed.   774. 

94.  Decree  for  larger  amount  than 
stipulation. — United  States  v.  Ames,  99 
U.  S.  35,  41,  25  L.  Ed.  295;  The  Wanata, 
95   U.    S.    600,    611,    24    L.    Ed.    461. 

95.  Effect  where  property  brings  less 
than  appraised  value. — United  States  v. 
Ames,  99  U.  S.  35,  41,  25  L.  Ed.  295;  The 
Wanata,  95  U.   S.   600,  611.  24   L.    Ed.   461. 

96.  Estoppel  of  stipulator  to  attack  ap- 
praisement.— Where  the  owner  had  the 
ship  delivered  up  to  him  upon  an  ap- 
praisement, at  the  value  of  $1800,  and 
gave  a  stipulation,  according  to  the  course 
of  admiralty  proceedings,  to  refund  that 
value,  together  with  damages,  interest  and 
costs,  to  the  court,  it  was  held  that  he 
was  not  at  liberty  to  insist,  that  the  ship 
was  of  less  value  in  his  hands,  or 
that  he  had  discharged  other  liens,  di- 
minishing the  value  for  which  the  owners 
were    personally    liable,    in    solido,    in    the 


first    instance.      The    Ship    Virgin,    8    Pet. 
53S.    8     L.     Ed.    1036. 

97.  Liability  for  interest  and  costs. — 
The  Wanata,  95  U.  S.  600.  24  L.  Ed.  461; 
The  Schooner  Ann  Caroline,  2  Wall.  538, 
17  L.  Ed.  833;  The  Maggie  J.  Smith  v. 
Walker,  123  U.  S.  349.  356,  31  L.  Ed.  175; 
The  Steamer  Webb,  14  Wall.  406,  20  L. 
Ed.   774. 

The  allowance  of  interest  and  costs 
rests  in  the  discretion  of  the  trial  court 
and  its  action  will  not  be  disturbed  on 
appeal.  The  Maggie  J.  Smith  v.  Walker, 
123    U.   S.   349.  356.   31   L.   Ed.   175. 

Stipulators  for  a  definite  sum  as  costs 
cannot  be  made  liable  for  more  than  that 
amount,  where  they  have  not  made  de- 
fense, and  have  not  been  guilty  of  any 
default.  The  Wanata,  95  U.  S.  600,  615. 
24  L.  Ed.  461;  The  Schooner  Ann  Caro- 
line. 2  Wall.  538,  17  L.  Ed.  833;  The 
Steamer  Webb,  14  Wall.  406,  20  L.  Ed. 
774. 

98.  Immaterial  amendment. — Newell  v. 
Norton,  3  Wall.  257.  258,  18  L.  Ed.  271; 
The  Beaconsfield.  158  U.  S.  303,  39  L. 
Ed.    993. 

Stipulations  in  admiraltv  are  not  sub- 
ject to  the  rigid  rules  of  the  common 
law  with  respect  to  the  liability  of  the 
surety,  and.  so  long  as  the  cause  of  ac- 
tion remains  practically  the  same,  a  mere 
change  in  the  name  of  the  libelant,  as 
by  substituting  the  real  part}'  in  interest 
for  a  nominal  party,  will  not  avoid  the 
stipulation  as  against  the  sureties;  or,  as 
it  is  stated  in  some  cases,  stipulations 
are  to  be  interpreted  as  to  the  extent 
and  limitation  of  responsibility  created 
by  them  bv  the  intention  of  the  court 
which  reouired  them,  and  not  by  the  in- 
tention i^f  the  parties  who  are  bound  by 
them.  The  Beaconsfield,  158  U.  S.  303, 
39  L.  Ed.  993. 


174  ADMIRALTY. 

the  sureties  are  not  bound  to  contemplate,  and  it  necessarily  follows  that  they 
cannoL  be  held.^^ 

(4)  Judgment  against  Stipulators — (a)  Rendition. — Judgment  may  be  ren- 
dered against  both  principal  and  sureties  at  the  time  of  rendering  the  decree  in 
the  original  cause. ^ 

(b)  Operation  and  Effect. — A  decree  rendered  on  a  bond  given  with  sureties 
by  the  claimant  at  the  request  and  for  the  benefit  of  his  firm,  to  which  the  prop- 
erty so  delivered  to  him  belonged,  bars  a  suit  against  the  other  partners. ^ 

(c)  Reformation  of  Judgment. — A  decree  in  admiralty  in  the  district  and 
circuit  courts  for  a  greater  amount  than  the  sum  for  which  sureties  were  bound, 
on  stipulalions  for  a  discharge  of  the  vessel  from  the  marshal's  custody,  may  be 
reformed  by  the  supreme  court  so  as  not  to  exceed  that  sum.^ 

(d)  Enforcement  of  Judgment. — Where  a  judgment  is  recovered  on  a  stipula- 
tion in  admiralty  and  execution  returned  unsatisfied,  the  persons  in  whose  favor 
the  judgment  was  rendered  may  pursue  their  remedy  against  the  stipulators  in 
other  courts.^  The  persons  recovering  the  judgment  are  only  general  creditors 
of  the  sureties,  and  the  latter  cannot  be  required  to  bring  the  specific  property 
into  court/"'  And  mandamus  will  not  issue  to  compel  the  circuit  court  to  order 
the  stipulators  to  appear  for  examination  concerning  their  property,  according 
to  the  state  laws  and  practice.*^ 

(e)  Relief  from  Lien  of  Judgment  Pending  Appeal. — Where  a  decree  against 
the  respondent  and  his  stipulators  is  appealed  from,  if  the  decree  operates  as  a 
lien  on  the  real  estate  of  the  stipulators,  notwithstanding  the  appeal,  it  is  an  ad- 
vantage the  law  gives  the  appellee  for  his  security  with  which  the  supreme  court 
will  not  interfere  in  advance  of  the  hearing  of  the  case  on  its  merits.' 

e.  Recall  or  Rearrest  of  Property  or  Vessel — (1)  Grounds — fa)  Filing  New 
or  Intervening  Libel. — If,  after  the  stipulation  is  given,  other  libels  are  filed,  a 
new  warrant  of  arrest  must  be  issued  and  the  vessel  again  taken  into  custody.** 
So  if  an  intervening  libel  is  filed  subsequent  to  the  release  of  a  vessel  on  a  stipula- 
tion, the  vessel  must  be  recalled  or  rearrested. '^ 

(b)  Fraud,  Misrepresentation  or  Improper  Release.— In  case  of  misrepresenta- 
tion or  fraud,  or  in  case  the  order  of  release  was  improvidently  given  without 
any  appniiscment  or  any  proper  knowledge  of  the  real  value  of  the  property, 
the  vessel  or  property  may  be  recalled  before  judgment  where  the  ends  of  jus- 
tice requiie  the  matter  to  be  reconsidered.^^ 

(2)  What  Court  May  Recall  Property. — A  bond  accepted  by  the  court  upon 
ordering  the  delivery  to  the  claimant  of  property  seized  in  admiralty,  is  in  the 
subsequent  proceedings  a  substitute  for  the  property ;  and  the  question  whether 
a  case  is  made  for  the  recall  of  the  property  must  be  determined  before  a  final 

99.    Amendment  introducing  new  cause  Phillips,   131   U.    S.    Appendix   cxlii,   25   L. 

of    action.— The    Beaconsfield.    158    U.    S.  Ed.   781. 

303,   39    L.    Ed.   993;   The    Oregon,   158   U.  6.    Examination  of  stipulators  on  inter- 

S.   186,   39   L.    Ed.   943.  rogatories.— Ex    parte    Phiirps,    131    U.    S. 

1.  Rendition  of  judgment. — The  Belgen-  Appendix   clxvii,   ;?5   L.    Ed.    781. 

land.  108  U.  S.   153.  156,  27  L.   Ed.  685.  7.     Relief  from   lien   of   judgment   pend- 

2.  Res  judicata. — United  States  v.  ing  appeal. — The  Steamship  Belgenland 
Ames,  99  U.  S.  35,  25  L.  Ed.  295.  See  v.  Jansen,  108  U.  S.  157,  27  L.  Ed.  825. 
the  title  FORMER  ADJUDICATION  g.  Filing  new  libels.— The  Oregon,  158 
OR  RES  AD  JUDICATA.  U.  S.  186.  39  L.  Ed.  943.     • 

3.  Reformation  of  judgment.— The  9.  Filing  intervening  libel.— The  Ore- 
Steamer    Webb,    14   Wall.    406,    20    L.    Ed.  go„,    158    U.    S.    186.    39    L.    Ed.    943. 

''*•  10.      Fraud,     misrepresentation    or     im- 

4.  Enforcement  of  judgment  by  pro-  prcper  release.— United  States  v.  Ames, 
ceedings  in  other  courts.— Ex  parte  Phil-  99  u.  S.  33,  42,  25  L.  Ed.  295:  United 
lips,  131  U.  S.  Appendix  cxlvn,  25  L.  Ed.  States  z:  Havtian  Republic,  154  U.  S.  118. 
T81.  126^    38    L.    Ed.    930;    The    Three    Friends^ 

5.  Right  to  require  sureties  to  bring  166  U.  S.  1,  41  L.  Ed.  897  (release  of 
specific     property     into     court. — Ex    parte  vessel    seized   for   forfeiture). 


ADMIRALTY. 


175 


decree  on  the  bond  is  rendered  in  the  district  court,  or  in  the  circuit  court  on 
appeal.     Action  on  that  question  cannot  be  reviewed  in  the  supreme  court. ii 

(3)  Mode  of  Making  Recall  or  Rearrest. — Where  the  court  of  admiralty  has 
parted  wiih  the  possession  of  the  property,  upon  bail  or  stipulation,  and  it  is 
necessary,  for  the  purposes  of  justice,  to  retake  the  property  into  the  custody  of 
the  court,  the  proper  process  against  any  person  not  a  party  to  the  stipulation, 
but  who  is  alleged  to  have  the  actual  or  constructive  possession,  is  a  monition, 
and  not  an  execution,  in  the  first  instance. ^^ 

(4)  Time  of  Recall. — The  question  whether  a  case  is  made  for  the  recall  of 
the  vessel  or  property  must  be  determined  before  a  final  decree  on  the  bond  is 
rendered  m  the  district  court,  or  in  the  circuit  court  on  appeal. ^-^ 

K.  Evidence— 1.  Mode  of  Proof.— The  mode  of  proof  in  causes  of  ad- 
miralty and  maritime  jurisdiction  is  required  to  be  according  to  the  rules  pre- 
scribed by  the  supreme  court,  except  as  otherwise  specially  provided. ^^ 

2.  Burden  of  Frc  of. — The  burden  of  proof  is  on  the  party  having  the  af- 
firmative.^^  If  the  suit  is  one  in  rem  to  enforce  a  lien,  the  burden  of  proof  as 
to  the  existence  of  the  lien  is  on  the  libelant.^'' 

3.  Witnesses. — A  party  in  admiralty  has  a  right  to  produce  witnesses  to  es- 
tablish his  claim, ^"  and  to  cross-examine  those  produced  against  him.^*  An 
objection  to  a  witness,  on  the  ground  of  incompetency  from  interest,  must  be 
made  at  the  hearing,  and  comes  too  late  if  it  be  deferred  until  the  argument. ^^ 

4.  Depositions. — Depositions  cannot  be  read  in  admiralty,  any  more  than  at 
common  law,  without  some  sufficient  reason  being  shown  why  the  witness  was 
not  produced  at  the  hearing,^''  and  depositions  taken  in  another  action  cannot  be 
used  in  a  suit  in  admiralty  between  different  parties,  although  the  subject  matter 
of  the  two  suits  is  the  same.^^  Where  a  deposition  is  taken  by  a  person  who  is 
both  commissioner  and  clerk  of  the  court,  and  the  proctor  of  the  opposing  party 
knows  that  the  deposition  has  been  taken,  it  cannot  be  ruled  out  on  the  ground 
that  it  is  not  sealed  up,  that  the  preliminary  proof  of  materiality  was  not  made, 
or  that  notice  of  its  being  filed  was  not  given. 22  If  depositions  are  not  objected 
to  in  the  lower  court,  all  objections  thereto  are  waived. ^^ 


11.  What  court  may  recall  property. — 

United  States  v.  Ames,  99   U.  S.   35,  25   L. 
Ed.  295. 

Even  if  the  power,  in  case  of  fraud, 
misrepresentation,  or  manifest  error  in 
the  court,  exists  in  the  court  of  original 
jurisdiction,  or  even  in  the  circuit,  inas- 
much as  the  stipulation  for  value  follows 
the  appeal  into  that  court,  still  it  is  clear 
that  no  other  court  possesses  any  such 
jurisdiction  nor  any  power  to  re-examine 
the  discretionary  ruling  of  the  admiralty 
courts  in  that  regard.  United  States  v. 
Ames,  99,  35.  42,  25  L.  Ed.  295,  citing 
Houseman  f.  The  Schooner  North  Caro- 
lina, 15  Pet.  40,  10  L.  Ed.  653;  The  Wa- 
nata.   95   U.    S.    600,    611,   24    L.    Ed.    461. 

12.  Mode  of  making  rearrest. — The 
Gran    Para,    10   Wheat.    497,    6    L.    Ed.    375. 

13.  Time  of  recall. — United  States  v. 
.\me?.  99   U.   S.    35,  25    L.    Ed.   295. 

14.  Mode  of  proof. — Blea«e  z'.  Garling- 
ton.  92  U.  S.  1,  23  L.  Ed.  521.  See  post, 
"Further  Proof,"  III.  R.  9.  d. 

15.  Burden  of  proof. — The  General 
Smith,  4  \\'heat.  438,  4  L.  Ed.  609.  See, 
generallv,  the  title  PRESU^IPTIONS 
AXD   BURDEN   OF   PROOF. 

16.  Burden  of  proof  as  to  lien  claimed 
by  libelant. — The  General  Smith,  4 
Wheat.  43S.  4  L.  Fd.  609.  See  the  title 
MARITIME    LIEXS. 


17.  Right  to  produce  witnesses. — ■ 
United  States  ?•.  Weed,  5  Wall.  62,  68; 
18  L.  Ed.  531;  The  Island  City.  1  Black 
121,  129,  17  L.  Ed.  70.  See,  generally,  the 
title   WITNESSES. 

18.  Right  to  cross-examine  opponents 
witnesses. — United  States  z:  Weed,  5 
Wall.  62,  68,  18  L.  Ed.  531.  See,  generally, 
the   title   WITNESSES. 

19.  Objections  for  incompetency  of  wit- 
nesses.—Nelson  v.  Woodruff,  1  Black  156, 
17    L.    Ed.    97. 

20.  Showing  as  to  reason  for  failure  to 
produce  witness  on  trial. — Rutherford  v. 
Geddes,  4  Wall.  220,  18  L.  Ed.  343.  See, 
generally,   the   title   DEPOSITIONS. 

21.  Depositions  taken  in  another  suit. 
— Rutherford  v.  Geddes,  4  Wall.  220,  18 
L.   Ed.  343. 

Depositions  cannot  be  used  on  the  trial 
of  a  suit  in  admiralty,  which  were  taken 
in  another  suit  concerning  the  same  sub- 
ject matter,  where  the  party  against 
whom  they  are  oflfered  was  not  a  party 
to  the  suit  in  which  they  were  taken, 
nor  priv}-  to  any  such  party,  and  had  no 
right  to  cross-exarnine  the  witnesses. 
Rutherford  v.  Geddes,  4  Wall.  220.  18  L. 
Ed.   313. 

22.  Depositions  taken  by  clerk. — Nel- 
son t'.  Woodruff,  1  Blac'-  156.   17  L.  Hd.  17. 

23.  Objections     to     deposition     to     be 


176 


ADMIRALTY. 


5.  Weight  and  Sufficiency. — Evidence  of  shop  books  outweighs  the  ex 
parte  opirion  of  experts  to  the  conlrary.--^ 

L.  Variance. — In  courts  of  admirahy  of  the  United  States,  akhough  the 
proof  of  tach  party  must  substantially  correspond  with  his  allegations,  so  far  as 
to  prevent  surprise, -•''  there  are  no  technical  rules  of  variance  or  departure. ^^ 

M.  Trial  and  Hearing — 1.  Mode  of  Proceeding. — Admiralty  courts  pro- 
ceed accoiding  to  the  principles,  rules  and  usages  which  belong  to  the  admiralty 
as  contradistinguished  from  the  courts  of  common  law. 2' 

2.  Jury  Trial. — In  the  absence  of  statute,  the  parties  to  a  civ^il  proceeding  in 
admiralty  are  not  entitled  to  a  jury  trial. ^'^  Seizures  for  forfeiture  upon  waters 
for  breach  of  the  laws  of  the  United  States,  are  civil  cases  within  the  meaning 
of  the  above  rule,  and  are  to  be  tried  without  a  jury.^^     But  congress  has  power 


taken  in  lower  court. — By  the  rules  of 
the  supreme  court  in  all  cases  of  equity 
and  admiralty  jurisdiction,  no  objection 
shall  be  allowed  to  be  taken  to  the  ad- 
missibility of  any  deposition,  deed,  grant 
or  other  exhibit,  found  in  the  record,  as 
evidence;  unless  objection  was  taken 
thereto  in  the  court  below;  but  the  same 
shall  otherwise  be  deemed  to  have  been 
taken  bv  consent.  Mechanics'  Bank  v. 
Seton,  ]"  Pet.  299,  7  L.  Ed.  152.  See  the 
titles  APPEAL  AND  ERROR;  EX- 
CEPTIONS, BILL  OF,  AND  STATE- 
MENT  OF  FACTS  ON  APPEAL. 

2/  Shop  books  as  outweighing  expert 
evidence. — The  Ship  Potomac.  2  Black 
581.  17  L.  Ed.  263.  S°e  the  tit^e  EXPERT 
AND  OPINION   EVIDENCE. 

25.  Proof  must  corresp'^nd  with  plead- 
ings so  as  to  prevent  surprise. — Tlie  Ga- 
zelle, 128  U.  S.  474,  32  L.  Ed.  496;  The 
Syracuse.  12  Wall.  167.  173.  20  L.  Ed.  382; 
Dupont  de  Nemours  7'.  Vance,  19  How. 
162.  15  L.  Ed.  584;  Rich  7'.  Lambert.  12 
How.  353.  13  L.  Ed.  1017;  M-Kinlav  v. 
Morrish,  21  How.  343,  16  L.  Ed.  100;  The 
Eddy.  5  Wall.  481,  48",  18  L.  Fd.  486; 
The  "Sarah.   8  Wheat.  391.   5   L.   Ed.   644. 

The  evidence  must  be  confined  to  the 
points  put  in  issue  by  the  allegations  of 
the  libel  and  denial  of  the  answer.  Mc- 
Kinlay  7'.  Morrish,  21  How.  343,  16  L.  Ed. 
100. 

When  lit'pants  make  their  case  in  ex- 
press allegations  and  by  express  denials 
of  them,  and  then  introduce  testimony 
inapplicable  to  the  issues  they  made,  it 
is  not  a  part  of  the  case,  unless  as  it 
shall  inferentially  bear  upon  other  evi- 
dence properly  in  it,  upon  which  the  par- 
ties rely  for  the  determination  of  their 
controversy.  McKinlav  i'.  Morrish.  21 
How.  343,  346,  16  L.  Ed.  100.  See.  also. 
Rich  V.  Lambert,  12  How.  353,  13  L.  Ed. 
1017. 

On  a  libel  by  the  consis:nee  of  goods 
against  a  vessel  for  nondelivery  of  the 
same — the  defense  being  that  the  goods 
were  subject  to  the  ben  of  the  vessel  for 
freight  and  that  the  libelants  improperly 
refused  to  pay  it — any  supposed  miscon- 
duct of  a  bailee  of  the  goods,  not  before 
the  court,  with  whom  the  goods  had  been 
stored    on    the    refusal    of    the    consignee 


to  pay  freight  and  take  them  away,  is  a 
question  not  involved  in  the  pleadings. 
And  if  on  such  a  state  of  pleadings  the 
defendants  prove  their  defense,  they  are 
entitled  to  a  decree  in  their  favor  irre- 
spective of  any  such  supposed  misconduct 
of  the  bailee.  The  Eddy,  5  Wall.  481, 
482,    18    L.    Ed.    486. 

A  libel  charging  the  seizure  to  have 
been  on  water,  when  in  fact,  it  was  made 
on  land,  will  not  support  a  verdict,  and 
judgment  or  sentence  thereon;  but  must 
be  amended  or  dismissed.  The  two  ju- 
risdictions, and  the  proceedings  under 
them,  are  to  be  kept  entirely  distinct. 
The    Sarah,    8    Wheat.    391,    5    L.    Ed.    644. 

26.  No  rules  of  variance  or  departure 
in  admiralty.— The  Gazelle.  128  LT.  S.  474, 
32  L.  Ed.  496;  The  Syracuse,  12  Wall. 
167,  173,  20  L.  Ed.  382;  Dupont  de  Ne- 
mours 7'.  Vance,  19  How.  162,  15  L.  Ed. 
584.  See,  generally,  the  title  VARI- 
ANCE. 

27.  Mode  of  proceeding. — United  States 
7'.  Ames,  99  U.  S.  35,  25  L.  Ed.  29.>.; 
Manro  7'.  Almeida,  10  Wheat.  473,  6  L. 
Ed.  369;  The  Wanata,  95  U.  S.  600,  611, 
24  L.  Ed.  461;  The  Eagle,  8  Wall.  15,  19 
L.    Ed.    365. 

Following  decisions  of  state  courts.— 
As  to  when  federal  courts  will  follow  de- 
cisions of  state  courts,  see  the  title 
COURTS. 

28.  Right  to  jury  trial  in  civil  cases. 
— The  Propeller  Genesee  Chief  7'.  Fitz- 
hugh,  12  How.  443.  459,  13  L.  Ed.  1058; 
Whelan  7-.  United  States,  7  Cranch  112,  3 
L  Ed.  286;  United  States  v.  La  Ven- 
geance, 3  Dall.  297,  1  L.  Ed.  610;  The 
Sarah,  8  Wheat.  391.  5  L.  Ed.  644;  The 
Betsev  &  Charlotte.  4  Cranch  443.  2  L.  Ed. 
673;  Ramsay  7'.  Allegre,  12  Wheat.  611, 
640,  6  L.  Ed.  746.  See,  generallv,  the  title 
JURY. 

"Every  advance  of  the  admiralty  is  a 
victory  over  the  common  law;  a  con- 
quest gained  upon  the  trial  bv  jury." 
Ramsay  7'.  Allegre,  12  Wheat.  611,  640, 
6    L.    Ed.    746. 

29.  Seizures  for  forfeiture. — Whelan  v. 
United  States.  7  Cranch  112.  3  L.  Ed.  286; 
United  States  7'.  La  Vengeance,  3  Dall. 
297,  1  L.  Ed.  610;  The  Sarah,  S  Wheat. 
391,  5  L.  Ed.  644;  The  Betsey  &  Charlotte, 


ADMIRALTY. 


[77 


to  provide  for  jury  trial  in  cases  in  admiralty ,3(*  and  it  has  exercised  the  power 
as  lo  certain  cases  upon  the  lakes  and  navigable  waters  connecting  the  same.^^ 

3.  RefkrEnce  to  Masters  and  Commissioners. — a.  Right  to  Refer  Ques- 
tions.— Though  reference  of  maritime  causes  to  special  masters  of  nautical  ex- 
perience, witn  power  to  examine  witnesses,  and  report  the  facts  to  the  court,  is 
not  specifically  authorized  by  law  or  rules  of  court,  it  is  not  irregular,  as  the  court 
still  reserves  the  right  of  final  decision. ^^ 

b.  Report — (1)  Forrii  and  Requisites. — The  report  of  assessors  appointed  by 
a  court  of  admiralty  to  assess  damages  ought  to  state  the  principles  on  which  it 
is  founded,  and  not  a  gross  sum,  without  explanation. -^-^ 

(2)  E.vceptions — (a)  Necessity  of  B.veeptions. — While  as  a  general  rule  ob- 
jections to  the  report  of  commissioners  in  admiralty  will  not  be  considered  on 
appeal,  wliere  no  exception  to  the  report  is  made  in  the  lower  court,-^^  it  is  not 
necessary  to  lake  exceptions  to  the  report  of  auditors,  if  the  errors  appear  upon 
the  face  of  the  report.^^ 

(b)  Form  and  Requisites. — Parties  excepting  to  a  report  of  a  commissioner 
in  admiraliy  proceedings,  should  state,  with  reasonable  precision,  the  grounds  of 
their  exceptions,  with  the  mention  of  such  other  particulars  as  will  enable  the 
court  to  fiscertain,  without  unreasonable  examination  of  the  record,  what  the 
basis  of  tiiC  exception  is.-^^ 

(3)  Setting  Aside  Report  on  Appeal. — The  report  of  commissioners  to  assess 
damages  \v-  a  civil  proceeding  in  admiialty,  cannot  be  set  aside  on  appeal,  where 
the  commissioner  did  not  return  the  testimony  or  his  finding  of  fact  into  court. •^''' 


4  Cranch  443,  2  L.  Ed.  673.    See.  generally, 
the   title   REVENUE   LAWS. 

SO.  Power  cf  congress  t.?  provide  for 
jury  trial  in  admiralty. — The  Propeller 
Genesee  Chief  z'.  hitzhugh.  12  How.  443, 
13  L.  Ed.  1058  (holding  the  act  of  Febru- 
ary 26,  1845,  giving  the  right  to  jury  trial 
as  to  certain  cases  arising  upon  lakes  and 
navigable  waters  connecting  the  same,  to 
be  constitutional). 

31.  Cases  upon  lakes  and  navigable 
waters  connecting  same. — Act  of  Feb.  2G. 
1845;  United  States  Rev.  Stat.  (1878),  § 
566;  The  Propeller  Genesee  Chief  v. 
Fitzhugh,   12    H(jw.   443,   13   L.    Ed.   1058. 

32.  Right  to  refer  questions  to  master 
or  commissioners. — The  City  of  Wash- 
ington, 92  U.  S.  31,  39,  23  L.  Ed.  600; 
The  Hypodame,  6  Wall.  216,  18  L.  Ed. 
794.  See,  generally,  the  title  REFER- 
ENCE. 

The  district  court  has  a  better  oppor- 
tunity in  arriving  at  correct  conclusions 
in  cases  depending  on  fact,  where  the 
evidence  is  conflicting,  than  the  supreme 
court.  It  may  examine  witnesses  ore 
tenus  and  summon,  if  it  pleases,  experi- 
enced masters  of  vessels  to  help  it  in 
cases  dependent  upon  nautical  experi- 
ence. The  Hypodame,  6  Wall.  216,  18  L. 
Ed.   794. 

33.  Form  and  requisites. — The  Charm- 
ing Betsey,  2  Cranch  64,  2   L.  Ed.  208. 

34.  Necessity  for  exception  in  lower 
court. — Objections  to  the  amount  of  dam- 
ages, as  reported  by  a  commissioner  and 
awarded  by  the  admiralty  court,  will  not 
be  entertained  in  the  supreme  court  in  a 
case  of  collision  where  it  appears  that 
neither   party    excepted    to    the    report    of 

1  U  S  Enc— 12 


the     commissioner.       The     Vanderbilt,     6 
Wall.  225,  226.   18    L.   Ed.  823. 

35.  Exception  for  errci-  apparent  on 
face  of  report. — Himely  v.  Rose,  5  Cranch 
313,   .-^   L.    Ed.   11]. 

36.  Form  and  requisites. — The  Schooner 
Commander-in-Chief,  1  Wall.  43,  17  L. 
Ed.   609. 

If  the  exception  be  that  the  commis- 
sioner received  "improper  and  immaterial 
evidence,"  the  exception  should  show 
what  the  evidence  was.  If,  that  "he  had 
no  evidence  to  justify  his  report,"  it  should 
set  forth  what  evidence  he  did  have.  If, 
that  "he  admitted  the  evidence  of  wit- 
nesses who  were  not  competent,"  it  should 
give  their  names,  and  specify  why  they 
were  incompetent,  what  they  swore  to, 
and  why  their  evidence  ought  to  have 
been  rejected.  The  Schooner  Com- 
mander-in-Chief, 1  Wall.  43,  17  L.  Ed. 
609. 

Where  a  master  found  the  amount  due 
but  stated  no  account,  and  his  report  was 
excepted  to  as  being  excessive,  not  suf- 
ficiently proved,  erroneous  under  the 
pleadings,  and  founded  on  illegal  evi- 
dence, such  general  objections  may  justly 
be  treated  as  frivolous,  and  if  overruled 
and  the  case  brought  here  on  appeal  this 
court,  cannot  say  that  particular  charges 
wera  wrongly  admitted,  or  particular 
credits  wrongly  thrown  out.  The  Ship 
Potomac,    2    Black    581,    17    L.    Ed.    263. 

37.  Setting  aside  report  on  appeal. — • 
WHTcre,  on  a  reference  by  a  district  court 
sitting  in  admiralty  to  assess  the  damages 
done  by  a  collision,  the  master  after  tak- 
ing depositions  reports  a  certain  sum  as 
due,  but  is  not  requested  by  the  respond- 


178 


ADMIRAL'!  Y. 


N.  Decree — 1.  What  Constitutks  Final  Decrke. — In  admiralty  caus'^s, 
a  decree  is  not  final  while  it  is  depending  in  th'e  supreme  court.^^  The  question 
as  to  what  are  final  decrees  in  admiralty  from  which  an  appeal  may  be  taken  is 
treated  elsewdiere  in  this  work.^^ 

2.  Form  and  Requisites. — The  decree  of  a  court  of  admiralty  must  conform 
to  the  pleadings  and  proof. ^"  Although  the  language  of  a  decree  in  admiralty 
may  declare  a  decision  which  might  not,  if  it  were  construed  by  its  exact  words, 
be  carable  of  being  supported,  still,  if  it  is  obvious  from  subsequent  parts  of 
of  the  record  that  no  error  has  been  committed,  the  court  will  not  reA^erse  for 
this  circumstance.'*^ 

3.  Operation  as  a  Lien  on  Reai^  Estate. — Judgments  and  decrees  rendered 
in  the  admiralty  courts  of  the  United  States  are  liens  upon  real  estate  in  all  cases 
where  simdar  judgments  or  decrees  of  the  state  courts  are  made  liens  by  the  law 
of  the  state."*-  The  lien  gives  the  libelant  a  right  to  levy  on  the  lands  to  which 
it  attacherv  and  consequently  such  an  interest  in  the  lands  as  will  enable  him  to 
sustain  a  bill  of  discovery  against  the  respondent  and  any  third  person  who  sets 
up  an  unfounded  claim  under  a  different  lien.*^ 

4.  Conclusiveness. — The  decree  of  a  court  of  admiralty  upon  a  question 
within  its  jurisdiction  is  conclusive  upon  the  whole  world. ■*■*  The  decisions  of  a 
•court  of  admiralty  are  neces.'^arily  conclusive  on  all  other  courts,  because  the 
subject  matter  is  not  examinable  in  them.     With  respect  to  itself,  no  reason  is 


ents  in  the  case  to  return  the  testimonj' 
or  his  finding  of  facts  into  court,  and 
though  returning  certain  parts  of  the  testi- 
mony, does  not  return  the  whole,  nor 
any  finding  of  facts,  and  the  court  con- 
firms his  report  and  enters  a  decree  ac- 
cordingly— a  decree  affirmed  bj-  the  cir- 
cuit court — this  court  cannot,  in  the  ab- 
sence of  the  testimony  and  where  the 
record  does  not  afford  any  satisfactory 
statement  of  facts  to  enable  it  to  deter- 
mine that  there  is  any  error  in  the  re- 
port of  the  commissioner,  review  that 
matter.  The  Cayuga,  16  Wall.  177,  21  L. 
Ed.    3.54. 

38.  What  constitutes  final  decree. — 
United  States  v.  Preston,  3  Pet.  57,  66, 
7  L.  Ed.  601;  The  Schooner  General 
Pinkney.  5  Cranch  281.  286,  3  L.  Ed.  101; 
The  Lucille,  19  Wall.  73,  74,  22  L.  Ed. 
64;  The  Charles  Morgan  v.  Kouns,  115  U. 
S.    69,  29  }..   Ed.   316. 

39.  What  decrees  are  final  and  appeal- 
able.—See  the  title  APPE.\L  AND  ER- 
ROR. 

40.  Conformity  to  pleadings  and  proof. 
—The  Schooner  Hoppet.  7  Cranch  389,  3 
L.    Ed.    380. 

In  case  of  an  individual  claiming  for 
others  in  admiralty,  the  rights  of  each 
person  or  firm  represented  are  supposed 
to  be  contained  or  covered  in  separate 
decrees,  or  separate  portions  of  one  de- 
cree, as  each  owns  separately,  and,  if 
not  thus  considered,  one  may  have  to  pay, 
or  be  made  to  suffer,  for  another.  Spear 
V  Place.  11  How.  522,  .527.  13  L.  Ed.  796; 
Oliver  r.  Alexander,  6  Pet.  143,  8  L.  Ed. 
349;  Stratton  v.  Jarvis,  8  Pet.  4,  11,  8  L. 
Ed.  846. 

41.  Sturgis  V.  Clough,  1  Wall.  269,  17 
L.    Ed.    580. 

Thus,    where    a    decree    allowed    a    cer- 


tain sum  for  repairs  to  a  vessel,  and  re- 
jected (improperly,  perhaps),  a  claim  for 
demurrage,  the  decree  was  not  reversed 
on  that  account;  it  appearing  from  a  sub- 
sequent part  of  the  record  that  the  judge 
had  in  fact  considered  the  sum  he  allowed 
for  repairs  eo  nomine  was  too  large  for 
repairs  simply,  but  was  "about  just"  for 
repairs  and  demurrage  together.  Stur- 
gis V.   Clough,  1  Wall.  269,  "17  L.   Ed.   580. 

42.  Operation  as  Hen  on  realty. — Ward 
V.  Chamberlain,  2  Black  430.  17  L.  Ed. 
319.  See,  generallv,  the  title  JUDG- 
MENTS AND  DECREES. 

A  decree  for  the  payment  of  money 
in  an  admiralty  suit  in  personam  stands 
in  this  respect  upon  the  same  footing  as 
a  decree  in  equity.  Ward  v.  Chamberlain, 
2  Black  430,  17  L.  Ed.  319. 

Where  one  party  filed  his  libel  against 
another  in  the  federal  district  court  for 
Ohio,  claiming  damages  by  a  collision  of 
two  vessels  on  the  lake  and  got  a  decree 
in  personam  for  money  as  compensation, 
tlie  decree  is  a  lien  on  the  respondent's 
land.  Ward  v.  Chamberlain,  2  Black  430, 
17  L.    Ed.    319. 

43.  Right  of  lienor  to  discovery  against 
other  claimants. — Ward  v.  Chamberlain,  2 
Black  430,  17  L.  Ed.  319.  See.  generally, 
the  titles  DISCOVERY;  JUDGMENTS 
AND  DECREES. 

44.  Conclusiveness.  — •  Penhallow  v. 
Doane,  3  Dall.  54.  85.  1  L.  Ed.  507;  The 
Mary,  9  Cranch  126,  144,  3  L.  Ed.  678;  Gel- 
ston  V.  Hoyt,  3  Wheat.  246,  4  L.  Ed.  381; 
Slocum  z>.  Mayberry,  2  Wheat.  1,  4  L.  Ed. 
169;  Govenor  v.  Madrazo,  1  Pet.  110,  133, 
7  L.  Ed.  73.  See.  generally,  the  title 
FORMER  .\DJUDICATlON  OR  RES 
ADTUDICATA. 

The  sentence  of  a  court  of  admiralty 
binds  all  the   world,  as  to  everything  con- 


ADMIRALTY. 


17) 


perceived  for  yielding  to  them  a  further  conclusiveness  than  is  allowed  to  the 
judgments  and  decrees  of  courts  of  common  law  and  equity.  They  bind  the 
subject  matter  as  between  parties  and  privies.^^ 

5.  Collateral  Attack. — United  States  district  courts  sitting  in  admiralty  are 
courts  of  superior  jurisdiction,  and  every  intendment  is  made  in  favor  of  their 
decrees,  so  that  where  it  appears  that  the  court  has  jurisdiction  of  the  subject 
matter,  and  that  the  defendant  was  duly  served  with  process  or  voluntarily  ap- 
peared and  made  defense,  the  decree  is  not  open  to  attack  collaterally.^'^ 

6.  Defaults.-— In  admiralty  and  revenue  cases  when  a  default  has  been  duly 
entered  to  a  monition  founded  on  an  information  averring  all  the  facts  necessary 
to  a  condemnation,  it  has  substantially  the  effect  of  a  default  to  a  summons  in  a 
court  of  common  law.  It  establishes  the  fact  pleaded,  and  justifies  a  decree  of 
condemnation.^'  A  decree  by  default  against  one  of  several  defendants,  does 
not  estop  the  others  from  contesting  the  facts  admitted  by  the  default  of  the 
absent  pai  ty."*^ 

7.  Personal  Judgment  against  Owner  for  Deficiency. — In  a  proceeding 
in  rem  against  a  vessel,  the  decree  does  not  render  the  ow-ner  of  the  vessel  liable 
for  any  greater  amount  than  the  value  of  the  vessel  and  her  freight  then  pend- 
ing.^9  ' 


tained  in  it.  because  all  the  world  are 
parties  to  it.  The  sentence,  so  far  as  it 
goes,  is  conclusive  to  all  persons.  Pen- 
hallow  V.  Doane.  .3  Dall.  r>4.  85,  1  L.  Ed. 
507;  Williams  f.  Armrovd.  7  Cranch  424.  .3 
L.  Ed.  392.  See,  also,  Nialey  v.  Shattuck, 
3  Cranch  458.  488,  2  L.  Ed.  498;  The  Mary, 
9  Cranch  126.  144,  3  L.   Ed.  678. 

An  admiralty  judgment  upon  point  in 
issue  is  conclusive  at  common  law.  Cu- 
pisino  r.   Perez.  2   Dall.    194,   1   L.   Ed.  345. 

Foreign  decree  in  admiralty. — The  sen- 
tence of  a  foreign  court  of  admiralty,  con- 
demning a  vessel  for  breach  of  blockage, 
is  conclusive  evidence  of  that  fact  in  an 
action  on  the  policy  of  insurance.  Croud- 
son  T'.  Leonard,  4  Cranch  434.  2  L.  Ed. 
670. 

The  sentence  of  a  foreign  tribunal,  con- 
dcnning  neutral  property,  under  an  edict, 
unjust  in  itself,  contrary  to  the  law  of 
nations,  and  in  violation  of  neutral  rights, 
and  which  has  been  so  declared  by  the 
legislative  and  executive  departments  of 
the  government  of  the  United  States, 
changes  the  property  of  the  thing  con- 
demned. The  American  owner  cannot  re- 
claim, in  the  courts  of  this  country,  his 
property  which  has  been  seized  and  con- 
demned in  a  French  court  under  the  Milan 
decree.  Williams  zf.  Armroyd,  7  Cranch 
424,  3  L.  Ed.  392.  See,  generally,  the  title 
FORETGX    TUDGMEXTS. 

45.  Entitled  to  same  respect  as  judg- 
ments at  law  and  decrees  in  equity. — The 
Marv.  9  Cranch  126.  143.  3  L.  Ed.  678. 
See  the  titles  FORMER  ADTUDTCA- 
TTOX  OR  RES  ADTUDTCATA;  TUDG- 
MEXTS   AXD  DECREES. 

Tf  a  claim  be  set  up  under  the  sentence 
of  condernnation  of  a  foreign  court,  this 
court  will  examine  into  the  jurisdiction 
of  such  court;  and  if  that  court  cannot, 
consistently  with  the  law  of  nations,  exer- 
cise the  jurisdiction  which  it  has  assumed, 


its   sentence   will  be  disregarded.     Rose  v. 
Mimely,   4    Cranch   241,   2    L.    Ed.    608. 

Every  sentence  of  condemnation  by  a 
competent  court,  having  jurisdiction  over 
the  subject  matter  of  its  judgment,  is 
conclusive  as  to  the  title  to  the  thing 
claimed  under  it.  Rose  v.  Himely,  4 
Cranch   241.   2   L.   Ed.  608. 

46.  Collateral  attack. — Ex  parte  Cooper, 
143  U.  S.  472.  .36  L.  Ed.  232;  Miller  v. 
United  States,  11  Wall.  268,  20  L.  Ed.  135; 
McCormick  v.  Sullivant,  10  Wheat.  192, 
6  L.  Ed.  300;  Des  Moines,  etc.,  R.  Co. 
V.  Iowa  Homestead  Co.,  123  U.  S.  552, 
31  L.  Ed.  202;  Cuddy  v.  Petitioner,  131 
U.  S.  280.  33  L.  Ed.  154.  See,  generaliv. 
the  title  JUDGMEXTS  AND  DECREES. 

47.  Defaults.—Miller  v.  United  States,  1 1 
Wall.   268.   20   L.    Ed.    135. 

48.  Effect  of  default  of  one  of  several 
defendants.— The  Marv,  9  Cranch  126,14:; 
3  L.  Ed.  678. 

A  judgment  against  one  defendant  ff- 
the  want  of  a  plea,  or  a  decree  against 
one  defendant  for  want  of  an  answ--. 
does  not  prevent  any  other  defendan 
from  contesting,  so  far  as  respects  hi-nv 
self,  the  very  fact  which  is  admitted  b- 
the  absent  party.  No  reason  is  per- 
ceived why  a  different  rule  should  pre 
vail  in  a  court  of  admiralty,  nor  is  the 
court  informed  of  any  case  in  which  a 
different  rule  has  been  established.  The 
Mary.   9   Cranch    126.    143,  3   L.   Ed.   678. 

49.  Personal  judgment  against  owner 
for  deficiency. — The  Citv  of  Hartford.  97 
U.  S.  323,  330.  24  L.  Ed.  930;  The 
Schooner  Ann  Caroline.  2  Wall.  538,  549. 
17  L.  Ed.  833.  Generally,  as  to  the  limi 
tation  of  liabilitv  of  ship  owners,  see  the 
title   SHIPS    AND   SHIPPING. 

A  decree  in  a  proceeding  in  rem  against 
a  vessel  is  merely  the  ascertainment  f.f 
damage,  interest  and  costs  which  the  li- 
belant has  sustained,  and  which  he  is  en- 


180 


ADMIRALTY. 


8.  Enforcement  of  Decrees. — A  court  of  admiralty  in  one  nation  can  carry 
into  effect  the  determination  of  the  court  of  admiralty  of  another. ^o  And  it 
wa  held,  that  the  district  court  could  enforce  a  decree  of  the  court  of  appeals 
under  the  ccnfederation  of  1781  after  the  dissolution  of  the  latter  court.^^ 

0.  Sale  of  Property — 1.  Order  of  Sale. — An  order  of  sale  is  for  the 
benefit  of  all  parties,  and  the  right  to  order  a  sale  exists  only  where  the  prop- 
erty is  in  the  custody  of  the  court  and  the  property  may  perish  while  in  its 
custody.^ 2  If  the  property  is  delivered  on  security  to  either  party,  an  order 
of  sale  pending  the  cause  is  unheard  of  in  admiralty  proceedings.^^  An  inter- 
locutory order  of  sals  is  not  a  condemnation.^^ 

2.  Effect  cf  Defect  in  Title  on  Sale  of  Property. — Upon  an  admiralty 
proceeding  in  rem,  where  the  proceeds  of  the  sale  are  brought  into  court,  they 
are  not  fiable  to  make  good  a  loss,  sustained  by  the  purchaser,  in  consequence 
of  a  defect  being  discovered  in  the  article  sold.  ^^ 

P.  Disposition  of  Proceeds  of  Sale — 1.  Right  to  Share  in  Proceeds 
OF  Sale. — Any  person  having  a  specific  lien  on,  or  a  vested  right  in,  a  surplus 
fund  in  vourt,  may  ?pply  by  petition  for  the  protection  of  his  interest  under 
the  forty-<hird  admiralty  rule,^*'  but  a  distribution  cannot  be  claimed  except  by 
those  who  have  a  maritime  lien.^'  Where,  in  case  of  a  collision,  one  of  two 
parties  iniured  institutes  proceedings  against  the  vessel  in  fault,  and  at  his  own 
expense  prosecutes  his  suit  to  condemnation  of  the  vessel,  or  of  the  proceeds 
f)f  her  sale  in  the  registry,  another  party  injured  by  the  same  coUis'on,  who  has 
contributed  nothing  to  the  litigation  to  establish  the  vessel's  liability,  but  has 
stood  by  during  that  contest,  and  taken  no  ]  art  in  it,  cannot  share  in  the  pro- 
ceeds of  the  sale  of  the  vessel,  until  the  claim  of  the  first  partv  is  satisfied  in 
full.ss 

2.  Mole  of  Subjecting  Proceeds. — A  person  claiming  a  lien  on  the  pro- 
ceeds of  a  sale  cannot  file  a  libel  directly  against  the  proceeds  of  the  sale,^^  but 


titled  to  recover,  provided  the  interest  of 
the  owners  is  sufficient  to  pay  it  and  not 
otherwise.  The  Citv  of  Hartford.  97  U. 
S.  323.  330.  2*4  L.  Ed.  930;  The  Schooner 
Ann  Caroline,  2  Wall.  538.  549.  17  L.  Ed. 
833. 

50.  Enforcement  of  foreign  decree. — 
Penhallow  v.  Doane,  3  Dall.  54,  97,  1  L. 
Ed.  507.  See.  .a:enerally.  the  title  FOR- 
ETGN  JUDGMENTS. 

51.  Power  of  district  court  to  enforce 
decree  of  dissolved  court. — Penhallow  v. 
Doane.  3  Dall.  54,  1  L.  Ed.  507;  Jennings 
V.   Carson.   4   Cranch  2,  2   L.   Ed.   531. 

52.  Right  to  order  sale. — Jennings  v. 
Carson,  4  Cranch  2.  26.  2  L.  Ed.  531;  The 
Schooner  Squirrel,  2  Dall.  40.  1  L.  Ed. 
280. 

The  sale  may  be  before  appearance  of 
parties,  where  property  is  in  perishing 
condition.  The  Schooner  Squirrel.  2  Dall. 
40.   1    L.   Ed.   280. 

53.  Order  of  sale  not  necessary  where 
parties  have  possession  of  property. — Jen- 
nings V.  Carson,  4  Crancli  2.  26,  2  L.  Ed. 
531. 

54.  Effect  of  order  of  sale  as  final  con- 
demnation.— Vessels  are  seldom  if  ever 
condemned  but  by  a  final  sentence. 
United  States  v.  Schooner  Peggy,  1 
Cranch   103,  109,  2  L.   Ed.  49. 

55.  Effect  of  defect  in  title  on  sale  of 
property. — The  IMonte  Allegre.  9  Wheat. 
616,   G   L.    Ed.   174. 


56.  Who  may  apply  for  distribution  or 
protection  of  prcceeds. — The  Lottawanna. 
21  Wall.  558.  559.  22  L.  Ed.  654;  The 
Lottawanna.   20  Wall.   201.   22   L.    Ed.  259. 

57.  Necessity  for  maritime  lien. — Grant 
V.  Poillon,  20  How.  162,  169,  15  L.  Ed. 
873;  The  Lottawanna,  20  Wall.  201,  22 
L.    Ed.    259. 

Where  claims  on  the  proceeds  in  the 
registry  of  a  vessel  sold  are  not  maritime 
liens,  the  district  court  cannot  distribute 
those  proceeds  in  payment  of  the  claims 
if  the  owners  of  the  vessel  oppose  such 
distribution.  The  Lottawanna,  20  W^all. 
201,   22   L.    Ed.   259. 

A  creditor  by  judgment  in  a  state  court, 
of  the  owners  of  the  vessel,  even  though 
he  have  a  decree  in  personam  also  in  the 
admiralty  against  them,  cannot  seize,  or 
attach,  on  execution,  proceeds  of  the 
vessel  in  the  registry  of  the  admiralty. 
The  Lottawanna,  20  Wall.  201.  22  L.  Ed. 
259. 

58.  Right  of  party  not  participating  in 
suit  to  share. — \A^oodworth  v.  Insurance 
Co..  5  Wall.  87.  18  L.  Ed.  517. 

59.  Right  to  libel  proceeds  of  sale. — 
Where  a  mortgage  existed  upon  the  moi- 
ety of  a  vessel  which  was  afterwards  li- 
belled, condemned,  and  sold  by  process 
in  admiralty,  and  the  proceeds  brought 
into  the  registry  of  the  court,  the  mort- 
gagee could  not  file  a  libel  against  a 
moiety    of    those    proceeds.      His    proper 


ADMIRALTY. 


181 


it  is  in  an  inherent  incident  to  the  jurisdiction  of  the  admiralty  to  entertain  sup- 
plemental suits  or  petitions  by  the  parties  in  interest  to  ascertain  to  whom  the 
proceeds  rightfully  belong,  and  to  deliver  them  over  to  the  parties  who  estab- 
lish the  lawful  ownership  thereof. ''*' 

3.  Power  of  Marshal  to  Control  or  Distribute  Proceeds  without  Or- 
der OF  Court. — It  is  a  great  Trregularity  for  the  marshal  to  keep  the  property, 
or  the  proceeds  thereof,  in  his  own  hands,  or  to  distribute  the  same  among  the 
parlies  enr'tled.  without  a  special  order  from  the  court;  but  such  an  irregularity 
n:ay  be  cured,  by  the  assent  and  ratification  of  all  the  parties  interested,  if  there 
be  no  mala  fides. ^^ 

4.  Disposition  of  Unclaimed  Property. — If  any  owner  should  not  appear 
to  claim  any  particular  parcel  of  the  property,  the  habit  of  courts  of  admiralty 
is  to  retam  such  property,  or  its  proceeds,  after  deducting  the  salvage,  until  a 
claim  is  made,  or  a  year  and  a  day  have  elapsed  from  the  time  of  the  institution 
of   the   proceedings. •'- 

Q.  Costs,  Counsel  Fees,  Interests  and  Damages — 1.  Costs. — In  ad- 
miralty co£ts  and  expenses  are  not  matters  positively  limited  by  law,  but  are 
allowed  in  the  exercise  of  a  sound  discretion  of  the  court.^^  Costs  may  be 
awarded  against  the  owner  beyond  the  stipulation,  if  he  appears  and  makes  de- 
fense.^^ 

2.    Counsel  Fees — Courts  of  admiralty  cannot  properly  allow  counsel  fees 


course  would  have  been,  either  to  have 
appeared  as  a  claimant  when  the  first 
libel  was  filed,  or  to  have  applied  to  the 
court,  by  petition,  for  a  distributive  share 
of  the  proceeds.  Schuchardt  v.  Baggage, 
19  How.  2:59.  15  L.  Ed.  625. 

60.  Supplemental  proceedings  to  sub- 
ject proceeds  of  sale. — Andrews  v.  Wall, 
:;  How.  5GS.  11  L.  Ed.  729;  The  Lottaw- 
;nna.  21  Wall.  558.  559,  23  L.  Ed.  654; 
Schuchardt  v.  Baggage,  19  How.  239,  15 
L.  Ed.  625;  J.  E.  Rumbell,  148  U.  S.  1,  15, 
Si'  L.  Ed.  345. 

This  .principle  is  familiarly  known  and 
exercised  in  cases  of  the  sales  of  ships  to 
satisfy  claims  for  seamen's  wages,  for  bot- 
tomry bonds,  for  salvage  services,  and  for 
supplies  of  materialmen,  where,  after 
satisfaction  thereof,  there  remain  what 
are  technically  called  "remnants  and  sur- 
pluses," in  the  registry  of  the  admiralty. 
A  more  striking  example  is  that  of  sup- 
plemental libels  and  petitions,  by  persons 
asserting  themselves  to  be  joint  captors, 
and  entitled  to  share  in  prize  proceeds, 
and  of  customhouse  officers,  for  their 
distributive  shares  of  the  proceeds  of 
property-  seized  and  condemned  for 
breaches  of  the  revenue  laws,  where  the 
jurisdiction  is  habitually  acted  upon  in  all 
cases  of  difficulty  or  controversj\  An- 
drews V.  Wall,  3  How.  568,  572,  11  L.  Ed. 
729. 

61.  Distribution  by  marshal  without  or- 
der of  court. — The  Collector,  6  Wheat. 
194,    5    L.    Ed.    239. 

62.  Disposition  of  unclaimed  property. 
— Stratton  v.  Jarvis.  8  Pet.  4,  9,  8  L.  Ed. 
846;  United  States  v.  422  Casks  of  Wine, 
1   Tet.   547,   7   L.    Ed.    257. 

If,  after  proceeding  in  a  cause,  the 
court  finds  the  claimant  has  no  property. 


or  that  it  is  in  another,  not  represented, 
the  court  will  retain  the  res,  until  the  real 
owner  shall  appear,  and  claim  and  receive 
it  from  the  court.  United  States  v.  422 
Casks   of  Wine,   1   Pet.   547,  7   L.   Ed.  257. 

63.  Discretion  of  court  as  to  costs. — 
Canter  v.  American  Ins.  Co.,  3  Pet.  307, 
7  L.  Ed.  689;  The  Scotland.  118  U.  S. 
507,  30  L.  Ed.  153;  The  Sapphire,  18  Wall. 
51,  57,  21  L.  Ed.  814;  The  Schooner  Mag- 
gie J.  Smith  V.  Walker,  123  U.  S.  349,  31  L. 
Ed.  175;  Harmonj'  v.  United  States.  2 
How.  210,  11  L.  Ed.  239.  See,  generally, 
the  title  COSTS. 

Costs  in  admiralty  are  entirely  under 
the  control  of  the  court.  They  are  some- 
times, from  equitable  considerations,  de- 
nied to  the  party  who  recovers  his  de- 
mand, and  they  are  sometimes  given  to  a 
libelant  who  fails  to  recover  anything, 
when  he  was  misled  to  commence  the 
suit  by  the  act  of  the  other  party.  Doubt- 
less they  generally  follow  the  decree,  but 
circumstances  of  equity,  of  hardship,  of 
oppression,  or  of  negligence  induce  the 
court  to  depart  from  that  rule  in  a  great 
variet}-  of  cases.  The  Sapphire,  18  Wall. 
51,  57.  21    L.   Ed.   814. 

No  appeal  lies  from  a  decree  respecting 
costs  and  expenses,  since  costs  are  wholly 
in  the  discretion  of  the  court.  Canter  v. 
American  Ins.  Co.,  3  Pet.  307,  7  L.  Ed, 
689;  The  Scotland.  118  U.  S.  507.  30  L. 
Ed.  153;  Harmonv  v.  United  States,  2 
How.  210,  11  L.  Ed.  239. 

But  they  can  be  taken  notice  of  inci- 
dentally, as  connected  with  the  principal 
decree.  Harmony  v.  United  States,  2 
How.  210,  11  L.  Kd.  239.  See  the  titlt 
APPEAL  AND  ERROR. 

64.  Costs  heycnd  stipulation. — The 
Wanata,   95  U.   S.   600,  618,   24   L.   Ed.   461. 


182 


ADMIRALTY. 


to  the  counsel  of  a  gaining  side  in  admiralty,  as  an  incident  to  the  judgment,  be- 
yond the  costs  and  lees  allowed  by  statu! e.'^^ 

3.  Interest. — The  allowance  of  interest  on  damages  is  not  an  absolute  right. 
Whether  it  ought  or  ought  not  to  be  allowed  depends  upon  the  circumstances  of 
each  case,  and  rests  very  much  in  the  discretion  of  the  tribunal  which  has  to 
pass  upon  the  subject,  whether  it  be  a  court  or  a  jury.«'^ 

4.  Damages — a.  General  Rules  as  to  Damages  in  Admiralty. — In  affording 
redress  for  torts  upon  the  high  seas,  admiralty  acts  upon  the  principle  of  com- 
pensation, and  not  upon  that  of  forfeiture.'^^  As  to  the  allowance  of  exemplary 
damages,  as  well  as  damages  by  way  of  compensation  or  remuneration  for  ex- 
penses incurred,  or  injuries  or  losses  sustained,  by  misconduct,  admiralty  courts 
proceed,  in  cases  of  tort,  upon  the  same  principles  as  courts  of  common  law.*^* 
When  damages  are  claimed  in  the  original  proceedings,  if  a  decree  of  restitution 
and  costs  only  passes,  it  is  a  virtual  denial  of  damages.''^ 

b.  Azvard  of  Damages  to  Prevailing  Party.-r-When  there  is  probable  ground 
for  a  suit  or  defense,  the  court  considers  the  only  compensation  which  the  suc- 
cessful party  is  entitled  to,  is  a  compensation  in  costs  and  expenses.'*' 

R.    Review — 1.    Mode  of  Review. — A  supposed  error  in  a  judgment  of  an 


65.  Allowance    of    counsel    fees. — The 

Baltimore,  8  Wall.  377.  378.  19  L.  Ed. 
463. 

In  Canter  z:  American  Ins.  Co.,  3  Pet. 
307,  7  L.  Ed.  688,  counsel  fees  were  al- 
lowed as  expenses  attending  the  prosecu- 
tion of  an  appeal  to  the  circuit  court  and 
to  the  supreme  court,  in  an  admiralty 
case. 

Under  the  statute  regulating  the  fees 
of  attorneys,  solicitors,  and  proctors  (the 
statute,  namel}',  of  February  26th,  18.53, 
10  Stat,  at  Large.  161),  a  docket  fee  of 
twenty  dollars  may  be  taxed,  on  a  final 
hearing  in  admiralty,  if  the  libelant  re- 
cover fifty  dolars,  but,  if  he  recovers  less 
than  fiftv  dollars,  onlv  ten.  The  Balti- 
more, 8  Wall.  377,  378,  19  L.   Ed.  463. 

66.  Allowance  of  interest  on  damages. 
—The  Scotland,  118  U.  S.  .507,  518.  30  L. 
Ed.  153;  The  Albert  Dumois.  177  U.  S. 
240,  44  L.  Ed.  751;  Hemmingway  v. 
Fisher,  20  How.  255,  15  L.  Ed.  799.  See, 
generally,   the   title   INTEREST. 

The  allowance  of  interest  is  not  re- 
viewable bj'  the  supreme  court  except  in 
a  very  clear  case.  The  Scotland.  118  U. 
S.  507.  30  L.  Ed.  153;  The  Albert  Dumois, 
177  U.  S.  240,  44  L.   Ed.  751. 

As  to  allowance  of  interest  by  way  of 
damages  upon  wrongful  seizure  under 
reverire  laws,  see  the  title  REVENUE 
LAWS. 

Where  a  judgment  is  affirmed  by  a 
divided  court,  interest  is  not  to  be  cal- 
culated upon  the  judgment.  The  eight- 
eenth rule  of  this  court  never  applied  to 
cases  in  admiralty  which  are  brought  up 
by  appeal,  and  the  rule  itself  is  repealed 
by  the  sixty-second  rule.  Hemmingway 
r.   Fisher,  20    How.  255,  15   L.    Ed.   799. 

67.  Compensation,  not  forfeiture,  the 
rule  in  admiralty. — Harmony  t.  United 
States.  2  Hew.  210.  235,  11  L.  Ed.  238. 
See,  generally,  the  title   D.\]M  AGES. 

So  far  as  the  general  maritime  law   ap- 


plies to  torts  or  injuries  committed  on 
the  high  seas  and  within  the  admiralty 
jurisdiction,  the  general  rule  is,  nor  for- 
feiture of  the  oflfending  property;  but 
compensation  to  the  full  extent  of  all  dam- 
ages sustained  or  reasonably  allowable 
to  be  enforced  by  a  proceeding  therefor 
in  rem  or  in  personam.  It  is  true  that 
the  law  of  nations  goes  in  many  cases, 
much  farther,  and  inflicts  the  penalty  of 
conliscation  for  verv  gross  and  wanton 
violations  of  duty.  But  then,  it  limits  the 
penalty  to  cases  of  extraordinary  turpi- 
tude or  violence.  For  petty  misconduct, 
or  petty  plunderage,  or  petty  neglect  of 
duty,  it  contents  itself  with  the  mitigated 
rule  of  compensation  in  damages.  Har- 
mony I'.  United  States,  2  How.  210.  234, 
11  L.  Ed.  238;  The  Marianna  Flora.  11 
Wheat.   1.  40,   6   L.   Ed.   405. 

68.  Rule  as  to  allowance  of  compensatory 
and  exemplary  damages. — Lake  Shore, 
etc.,  R.  Co.  f.  Prentice,  147  U.  S.  101, 
108,  37  L.  Ed.  97.  See.  generally,  the  titles 
DAMAGES;  EXEMPLARY  DAMAGES. 

69.  Effect  of  decree  without  mention- 
ing damages. — Canter  c'.  American  Ins. 
Co.,  3    Pet.  307,   7    L.    Ed.  688. 

The  party  will  be  deemed  to  have 
waived  the  claim  for  damages  unless  he 
then  interposes  an  appeal  or  cross  appeal 
to  sustain  his  claim.  Canter  v.  American 
Ins.    Co..    3    Pet.   307,    7    L.    Ed.    688. 

70.  Damages. — Canter  i\  American  In- 
surance Co.,  3  Pet.  307,  7  L.  Ed.  688; 
Hemmingway  v.  Fisher,  20  How.  255,  IS 
L.   Ed.   799. 

In  The  Diana,  3  Wheat.  58,  a  decree, 
in  an  instance  cause  was  affirmed,  with 
damages  at  the  rate  of  six  per  cent,  per 
annum,  on  the  amount  of  the  appraised 
vahie  of  the  cargo  (the  same  having  been 
delivered  to  the  claimant  on  bail),  in- 
cluding interest  from  the  date  of  the  de- 
cree of  condemnation  in  the  district  court. 


ADMIRALTY. 


183 


admiralty  court  on  the  merits  of  an  action,  cannot  be  corrected  by  prohibition." ^ 
The  method  of  reviewing  a  decree  of  the  district  court  in  admiralty  is  by  appeal 
to  the  circuit  court." ^  While  under  the  judiciary  act  an  admiralty  cause  could 
not  be  brought  to  the  supreme  court  from  the  circuit  court  in  any  other  mode 
than  by  writ  of  error,"^  this  rule  was  changed  by  the  act  of  March  3,  1803,  pro- 
viding for  appeal  in  such  cases."^  Since  the  act  of  March  3,  1891,  establishing 
the  circuit  court  of  appeals,  decisions  of  the  circuit  court  in  admiralty  are  re- 
viewed by  appeal  to  the  circuit  court  of  appeals,"^  and  the  decision  of  the  cir- 
cuit court  of  appeals  is  final,  except  as  to  cjuestions  which  may  be  certified  to  the 
supreme  court,'^*'  or  where  the  whole  case  is  required  by  the  supreme  court  to 
be  sent  up,  on  certiorari  issued  for  that  purpose,  or  otherwise.'^" 

2.  Jurisdiction — a.  Courts — (1)  In  General. — The  court  of  appeals,  erected 
by  the  continental  congress,  had  power  to  revise  and  correct  the  sentences  of 
the  state  courts  of  admiralty.'^^  And  it  was  held,  that  an  appeal  lay  to  the  high 
court  of  errors  and  appeals  of  Pennsylvania  from  a  decision  of  the  state  court 
in  an  admiralty  cause."^ 

(2)  Circuit  Court. — Under  the  judiciary  act.^f*  and  under  the  act  of  March 
3,  1803,^^  appeals  from  the  district  to  the  circuit  court  were  permitted  from  all 


71.  Prohibition. — Ex  parte  Pennsyl- 
vania. 109  U.  S.  174.  27  L.  Ed.  894. 
See.  generally,  the  title   PROHIBITION. 

72.  Review  of  decision  of  district  court. 
—Rev.  Stat..  §  631;  Ward  v.  Chamberlain, 
2  Black  4,30,  443,  17  L.  Ed.  319;  The  Ad- 
miral, 3  Wall.  603,  612,  18  L.  Ed.  58;  The 
Protector,   11   Wall.   82,   86.   20   L.    Ed.    47. 

When  the  judicial  system  of  the  United 
States  was  organized,  exclusive  original 
cognizance  of  all  civil  cases  of  admiraltj- 
and  maritime  jurisdiction  was  conferred 
upon  the  district  courts,  and  appeals  in 
certain  cases  were  allowed  to  the  circuit 
court.  Ward  v.  Chamberlain,  2  Black  430. 
443.  17  L.  Ed.  319;  The  Admiral.  3  Wall. 
603.  612.  18  L.  Ed.  58;  The  Protector,  11 
Wall.    82.   86,   20    L.    Ed.    47. 

73.  Mcde  of  review  of  decision  of  cir- 
cuit court  under  judiciary  act. — Ward  i'. 
Chamberlain.  2  Black  430,  443,  17  L.  Ed. 
319;  The  Admiral,  3  Wall.  603.  612.  18 
L.  Ed.  58;  The  Protector,  11  Wall.  82. 
86,    20    L.    Ed.    47. 

74.  Mode  of  review  of  decision  of  cir- 
cuit court  undsr  act  of  1803. — The  San 
Pedro.  2  \\heat.  132,  4  L.  Ed.  202;  The 
Baltimore,  8  Wall.  377,  382,  19  L.  Ed.  463; 
Dower  v.  Richards,  151  U.  S.  658,  664,  38 
L.    Ed.    305. 

The  rules,  regulations  and  restrictions 
contained  in  the  22d  and  23d  sections  of 
the  judiciary  act,  respecting  the  time 
within  which  a  writ  of  error  shall  be 
brought,  and  in  what  instances  it  shall 
operate  as  a  supersedeas;  the  citation  to 
the  adverse  party,  the  security  to  be  given 
by  the  plaintiffs  in  error  for  prosecuting 
his  suit,  and  the  restrictions  upon  the  ap- 
pellate court  as  to  reversals  in  certain 
enumerated  cases,  are  applicable  to  ap- 
peals lender  the  act  of  1803,  and  are  to  be 
substaiTfially  observed;  except  that  where 
the  appeal  i';  prayed  at  the  s.in^e  term 
when  the  decree  or  sentence  is  pro- 
nounced, a  citation  is  not  necessarv.  The 
^acn   Pedro,    2    Wheat.    132,    4    L.    Ed.    202. 


75.  Mode  of  review  of  decision  of  cir- 
cuit court  under  act  of  1891. — Act  of 
:\Iarch    3.   1891.   §   6. 

76.  Certifsnng  questions  to  supreme 
court. — Act  of  March  3.  1891,  §  6.  See, 
generallv.      the      title      APPEAL       AND 

error'. 

77.  Certiorari. — Act  of  ]\Iarch  3.  1891, 
§  6;  The  Paquete  Habana,  175  U.  S. 
677,  680,  44  L.  Ed.  320;  Oregon  Railway, 
etc..  Co.  V.  Balfour,  179  U.  S.  55,  45  L. 
Ed.  82;  The  Three  Friends,  166  U.  S.  1, 
41    L.    Ed.    897. 

78.  Power  of  courts  established  by  con- 
gress to  review  decisions  of  state  court 
of  admiralty. — Penhallow  v.  Doane,  3 
Dall.  54.  108.  1  L.  Ed.  507;  United  States 
V.  Peters,  3   Dall.   121,  1   L.    Ed.   535. 

79.  Appeal  from  state  court  in  admi- 
ralty cause. — Talbot  v.  Three  Brigs.  1 
Dall.   95,   90.   1    L.   Ed.   52. 

80.  Under  judiciary  act. — As  to  cases 
of  admiralty  and  maritime  jurisdiction,  in- 
cluding prize  causes,  the  judiciary  act  of 
1789,  in  §  21,  permitted  an  appeal  from 
them  to  the  circuit  court  where  the  matter 
in  dispute  exceeded  the  sum  or  value  of 
$300.  The  Paquete  Habana,  175  U.  S. 
677.  680,  44  L.  Ed.  320;  The  Admiral,  3 
Wall.   603.  612,   18   L.   Ed.  58. 

In  an  early  case,  it  was  held,  that  an 
appeal  from  the  district  court  of  the  dis- 
trict of  Maine,  in  a  case  of  admiralty  ju- 
risdiction, did  not  lie  directly'  to  the  su- 
preme court  of  the  United  States,  but  to 
the  circuit  court  for  the  district  of  Mass- 
achusetts. The  Schooner  Sally,  5  Cranch 
406.  2   L.   Ed.   320. 

81.  Under  act  of  March  3,  1803.— By 
the  act  of  March  3.  1803.  c.  40.  appeals  to 
the  circuit  court  were  permitted  from  all 
final  decrees  of  a  district  court  where  the 
mrtter  in  dispute  ex-^ceflcd  the  sum  or 
value  of  $50.  The  Pagrete  Habana.  175 
U.  S.  680,  44  L.  Ed.  320;  ITnited  States 
V.  Nourse,  6  Pet.  470,  495,  8   L.   Ed.  467. 


184 


ADMIRALTY. 


final  decr--es  in  cases  of  admiralty  and  maritime  jurisdiction  where  the  amount 
in  controversy  was  sufficient  to  give  jurisdiction  to  the  circuit  court.^^  g^t 
since  the  act  of  1891,  creating  the  circuit  court  of  appeals,  the  circuit  courts  of 
the  United  States  have  no  appellate  jurisdiction  over  the  district  courts. ^^ 

(3)  Cirrnit  Court  of  Appeals. — Under  the  act  of  1891,  creating  the  circuit 
court  of  appeals,  app'jal,  in  admiralty  and  maritime  cases,' lies  directly  from  the 
district  court  to  the  circuit  court  of  appeals,  and  its  decision  in  such  cases  is 
final,  except  that  that  court  may  certify  to  the  supreme  court  questions  of  law, 
and  that  the  supreme  court  may  order  up  the  whole  case  by  certiorari,  or 
otherwise.^'* 

(4)  Supreme  Court. — Under  the  judiciary  act.  decrees  of  the  circuit  court  in 
cases' of  admiralty  and  maritime  jurisdiction  could  be  reviewed  in  the  supreme 
court  upon  writ  of  error. ^'^  Under  act  of  March  3.  1803.-'^  and  under  the  act  of 
congress  '-elating  to  judicial  proceedings  in  the  territory  of  Florida,^'  the  de- 
cision of  the  circuit  court  wa^  reviewable  by  appeal  to  the  supreme  court,  where 
the  amount  in  controversy  was  sufficient  to  give  the  supreme  court  jurisdiction. 
But  s'w^e  the  act  of  March  3,  1891,  establishing  the  circuit  court  of  appeals,  the 
supreme  court  has  no  jurisdiction  to  review  the  judgment  of  the  circuit  court 
in  admiralty  causes,  either  by  appeal  or  upon  a  writ  of  error,  although  questions 
may  be  certified  from  the  circuit  court  of  appeals  to  the  supreme  court  in  the 
manner  provided  for  by  statute,  or  the  whole  case  may  be  required  by  the  su- 
preme court  to  be  sent  up  by  certiorari  issued  for  that  purpose,  or  otherwise.^^ 


82.  Amount  in  controversy. — Generally, 
as  to  amount  in  controversy,  see  the  title 
APPEAL  AND  ERROR. 

83.  Under  act  of  1891.— U.  S.  Rev.  Stat. 
(Suppl.  1891),  p.  o.^9,  c.  356;  The  Paquete 
Habana,  175  U.  S.  677.  680.  44  L.  Ed. 
320. 

84.  Circuit  court  of  appeals. — The  Pa- 
quete Habana,  175  U.  S.  677.  680.  44  L. 
Ed.  320;  Oregon,  etc..  Navigation  Co.  r. 
Balfour,  179  U.  S.  55,  45  L.  Ed.  82;  The 
Three  Friends,  166  U.  S.  1,  41  L.  Ed.  897. 

Proceedings  under  the  act  of  congress 
to  limit  the  liability  of  ship  owners,  and 
the  rules  of  court  passed  in  pursuance  of 
that  act,  are  admiralty  cases  within  the 
meaning  of  §  6  of  the  judiciary  act  of 
March  3,  1891,  providing  that  the  judg- 
ments and  decrees  of  circuit  courts  of 
appeals  in  admiralty  cases  shall  be  final, 
and  no  appeal  lies  to  the  supreme  court 
therefrom.  Oregon,  etc..  Navigation  Co. 
V.    Balfour.    179    U.    S.    55,    45    L.    Ed.    82. 

Appeal  from  territorial  court  of  Ha- 
waii.— The  United  States  circuit  court  of 
appeals  has  no  jurisdiction  of  an  appeal 
from  a  decree  in  admiralty  made  by  the 
circuit  court  of  the  territory  of  Hawaii, 
in  a  case  pending  in  the  courts  of  Ha- 
waii at  the  time  of  its  annexation  to  the 
United  States.  Ex  parte  Wilders  Steam- 
ship   Co..    183    U.    S.    545,    46    L.    Ed.    321. 

85.  Under  judiciary  act. — Under  the  ju- 
diciary act  admiralty  and  maritime  causes, 
where  the  matter  in  dispute  exceeded  the 
sum  or  value  of  three  hundred  dollars, 
could  be  transferred  from  the  circuit  court 
to  the  supreme  court  bv  writ  of  error. 
The  .\dmiral.  3  Wall.  603.  612.  18  L.  Ed. 
58:   The   Protector,   11   Wall.   82.  86,    20   L. 

.    Ed.   47. 

86.  Under    act   of    March    3,    1803.— By 


the  act  of  March  3,  1803,  c.  40.  appeals 
were  permitted  from  the  circuit  court  to 
the  supreme  court  in  all  cases  of  admi- 
ralty and  .maritime  jurisdiction,  in  which 
the  matter  in  dispute  exceeded  the  sum 
or  value  of  $2,000.  The  Protector,  11 
Wall.  82.  86,  20  L.  Ed.  47;  The  Lady  Pike, 
21  Wall.  1,  8,  22  L.  Ed.  499;  The  Pa- 
quete Habana,  175  U.  S.  677,  680,  44  L. 
Ed.  320;  Sarchet  v.  United  States,  12  Pet. 
143.  9  L.  Ed.  1033. 

At  the  time  when  the  district  court  for 
the  southern  district  of  Florida  was  es- 
tablished, the  act  of  1803  governed  appeals 
from  the  district  to  the  circuit  courts, 
and  from  the  circuit  courts  to  this  court. 
No  appeal  in  admiralty  could  be  taken 
directly  from  the  district  court,  except 
when,  as  in  the  case  of  the  southern  dis- 
trict of  Florida,  the  district  court  exer- 
cised the  jurisdiction  of  the  circuit  court 
as  well  as  that  of  the  district  court.  The 
Lucy,    8    Wall.    307,    309.    19    L.    Ed.    394. 

87.  Act  relating  to  Florida. — Under  act 
of  congress  relating  to  judicial  proceed- 
ings in  the  territory  of  Florida,  appeal 
lies  to  supreme  court  in  all  admiralty 
cases.  Parish  r.  Ellis.  16  Pet.  451.  10  L. 
Ed.   1028. 

88.  Under   act   of   March   3,    1891. Act 

of  March  3,  1891,  §  6;  The  Paquete  Ha- 
bana, 175  U.  S.  677,  680,  44  L.  Ed.  320; 
Oregon  Railway,  etc..  Co.  v.  Balfour,  179 
U.  S.  55.  45  L.  Ed.  82;  The  Three  Friends. 
166  U.  S.  1,  41  L.  Ed.  897.  Generally,  as 
to  the  certification  of  cases  to  the  supreme 
court  by  the  circuit  court  of  appeals  see 
the   title   APPEAL   AND   ERROR. 

When  pov/er  to  require  certification  of 
case  to  be  exercised. — The  power  of  the 
supreme  court  to  require  a  case  to  he 
certified   up  for  decision  is   not  ordinaril}- 


ADMIRALTY. 


185 


b.  Amount  in  Controz'crsy. — The  question  of  jurisdiction  on  appeal  in  ad- 
miralty cases  as  dependent  on  the  amount  in  controversy  is  treated  in  another 
title-S!^ 

c.  Appealable  Decisio^is. — The  question  as  to  the  appealability  of  a  decree  in 
admiralty  as  dependent  upon  its  finality  is  treated  in  another  title.^*^ 

3.  Who  May  Appeal. — One  seaman  suing  in  admiralty  cannot  appeal  from  a 
decree  made  in  regard  to  another,»i  and  an  appeal  in  the  name  of  the  vessel 
libelled  is  improper. '-^"^ 

4.  Time  of  AppE.m.. — An  appeal  in  admiralty  from  the  district  to  the  circuit 
court  must  be  to  the  term  of  the  circuit  court  held  next  after  the  decree,  and  it 
must  be  made  while  the  district  court  is  sitting,  or  within  the  time  required  by 
the  general  rules  or  a  special  order.^^  But  a  provision  in  a  rule  of  the  district 
court  that  the  clerk  should  prepare  and  deliver  to  the  circuit  court  the  appeal 
and  record  within  twenty  days,  cannot  prevent  the  circuit  court  from  entertain- 
ing the  cause,  if  for  any  reason  this  is  not  done.^-' 

5.  Cross  Appeal. — Where  one  of  the  parties  to  an  admiralty  case  perfects 
an  appeal  from  a  decree  and  the  other  does  not  perfect  a  cross  appeal,  the  lat- 
ter is  not  entitled  to  relief  beyond  that  given  by  the  court  below. ^^ 

6.  Pereecting  Appeal — a.  Necessity  of  Writing. — A  rule  of  the  district 
court  requiring  an  appeal  in  admiralty  to  be  in  writing,  and  filed  with  the  clerk, 
may  be  dispensed  with  by  that  court,  and  if  the  court  allows  an  appeal  without 


to  be  exercised.  Tlie  Three  Friends,  166 
T'.  S.  1,  41  L.  Ed.  897,  citing  American 
Construction  Co.  v.  Jacksonville,  etc.,  R. 
Co.,  148  U.  S.  372,  37  L.  Ed.  486.  See, 
generally,  the  title  APPEAL  AND  ER- 
ROR. 

The  power  has  been  exercised  in  an  ac- 
tion for  forfeiture  for  breach  of  the  neu- 
trality laws.  The  Three  Friends,  166  U. 
S.  1.  41  L.  Ed.  897. 

89.  Amount  in  controversey. — As  to  ju- 
risdiction on  appeal  as  dependent  on 
amount  in  controversy,  see  the  title  AP- 
PEAL AND    error'. 

90.  Appealable  decisions. — As  to  ap- 
pealabilit}'  as  dependent  on  finality  of 
iiidgment  or  decree,  see  the  title  AP- 
PEAL   AND    ERROR. 

As  to  appeals  from  cavises  in  provis- 
ional court  transferred  to  circuit  court  of 
United  States  by  act  of  congress,  see  the 
title   APPEAL  AND   ERROR. 

91.  Right  of  one  seaman  to  appeal  for 
another. — Oliver  7\  Alexander,  6  Pet.  143. 
114,   8    L.    Ed.    349. 

92.  Appeal  in  name  of  vessel. — A  writ 
of  error  or  appeal  to  this  court  cannot  be 
sustained  in  the  name  of  a  steamboat,  or 
any  other  than  a  human  being,  or  some 
corporate  or  associated  aggregation  of 
persons.  Steamboat  Burns,  9  Wall.  237, 
19   L.    Ed.    620. 

Whenever  the  res  is  seized  in  admi- 
ralty proceedings  proper,  or  in  revenue 
or  other  proceedings  partaking  of  that 
character,  the  property  is  condemned  and 
sold,  and  with  the  distribution  of  the  pro- 
ceeds the  case  ends,  unless  some  one  ap- 
pears in  court  as  claimant  either  of  the 
res  or  its  proceeds.  When  a  claimant  ap- 
pears he  becomes  a  party  to  the  proceed- 
ings, and  may  defend,  take. an  appeal,  or 
writ    of    error,    or    adopt    any    other    pro- 


ceeding that  a  party  properly  before  the 
court  may  be  entitled  to.  Steamboat 
Burns,  9  Wall.  237,  239,   19   L.   Ed.  620. 

93.  Time  of  appeal.— The  S.  S.  Osborne, 
10.)  U.   S.   447.  4.50,  26   L.    Ed.   1065. 

94.  Failure  to  file  appeal  within  time 
prescribed  by  rule  of  district  court. — The 
appeal,  where  once  made,  continues  dur- 
ing the  whole  of  the  next  term  of  the 
circuit  court,  unless  sooner  dismissed  by 
that  court  for  want  of  prosecution  or 
otherwise,  in  accordance  with  its  own  prac- 
tice. The  S.  S.  Osborne.  105  U.  S.  447. 
450,  26   L.    Ed.   1065. 

95.  Cross  appeal. — Stratton  v.  Jarvis.  8 
Pet.  4,  S  L.  Ed.  846;  Canter  v.  American  Ins. 
Co.,  3  Pet.  307.  7  L.  Ed.  688;  The  Maria 
Martin.  12   Wall.   31,   40.   20   L.   Ed.   251. 

Where  the  district  court  in  a  libel  in 
admiralty  for  collision,  adjudged  both 
vessels  to  be  in  fault,  and  only  one  ap- 
pealed, it  was  held,  that  the  only  ques- 
tion here  on  appeal  was  as  to  the  fault  of 
the  appealing  vessel.  The  Des  Moines, 
154  U.  S.  584,' 20  L.  Ed.  821. 

The  libelants,  in  their  original  libel, 
in  the  district  court  of  the  United  States 
for  the  district  of  South  Carolina,  prayed 
that  certain  bales  of  cotton  might  be  de- 
creed to  them,  with  damages  and  costs; 
Canter,  who  also  claimed  the  cotton, 
prayed  the  court  for  restitution,  with 
damages  and  costs;  the  district  court  de- 
creed restitution  of  part  of  the  cotton 
to  the  libelants,  and  dismissed  the  libel, 
without  any  award  of  damages  on  either 
side;  both  parties  appealed  from  this  de- 
cree to  the  circuit  court,  where  the  decree 
of  the  district  cotirt  was  reversed,  and 
restitution  of  all  the  cotton  was  decreed 
to  Canter,  with  c^sts.  without  any  award 
of  damages,  or  ny  express  reservation 
of  that   question   in  the  decree;   from  this 


186 


ADMIRALTY. 


writing,  the  appellee  cannot  object  to  the  jurisdiction  of  the  circuit  court  on 
that  ground. ^^ 

b.  Record. — Upon  appeals  in  admiralty,  a  transcript  of  the  record  mast  be 
transmitted  to  the  appellaLe  court. ^^^  In  general,  only  the  process,  pleadings,  and 
decree,  and  such  orders  and  memorandums  as  may  be  necessary  to  show  the 
jurisdiction  of  the  court  and  regularity  of  the  proceedings,  shall  be  entered  upon 
the  final  record.^**  Where,  under  the  requirements  of  law,  the  facts  have  been 
found  in  the  court  below,  and  the  power  to  review  is  limited  to  the  determination 
of  questions  of  law  arising  on  the  record,  the  record  must  be  confined  to  the 
pleadings,  the  findings  of  fact  and  conclusions  of  law  thereon,  the  bills  of  ex- 
ceptions, the  final  judgment  or  decree,  and  such  interlocutory  orders  and  de- 
crees as  m.ay  be  necessary  to  a  proper  review  of  the  case.^^ 

7.  Effect  of  AppFaIv — a.  As  Suspending  Decree  of  Lower  Court. — In  ad- 
miralty ca.>es,  an  appeal  suspends  the  sentence  altogether;  and  the  cause  is  to  be 
heard  in  the  appellate  court,  as  if  no  sentence  had  been  pronounced.^ 

b.  As  Carrying  Up  Property  or  Stipulation — (1)  Appeal  from  District  to 
Circuit  Court. — The  rule  is  universal  that  an  appeal  in  admiralty  from  the  dis- 
trict court  to  the  circuit  court  carries  up  the  whole  fund.^     x^nd  after  an  appeal 


decree,  the  libelants  in  the  district  court 
appealed  to  this  court;  no  appeal  was  en- 
tered by  Canter.  Held,  that  the  question 
of  a  claim  of  damages  by  Canter  was  not 
open  before  this  court;  the  decree  of  res- 
titution, without  any  allowance  of  dam- 
ages, was  a  virtual  denial  of  them,  and 
a  final  decree  upon  Canter's  claim  of  dam- 
ages; it  was  his  duty,  at  that  time,  to 
have  filed  a  cross  appeal,  if  he  meant  to 
rely  on  a  claim  to  damages;  and  not  hav- 
ing done  so.  it  was  a  submission  to  the 
decree  of  restitution  and  costs  only.  Can- 
ter V.  American  Ins.  Co.,  3  Pet.  307,  7  L. 
Ed.  688. 

Although  the  general  rule  is  that  a  party 
who  does  not  appeal  cannot  be  heard  in 
opposition  to  the  decree,  still  where  it 
appeared  the  suit  below  being  a  libel  for 
collision  against  a  tug  and  her  tow — that 
an  appeal  from  the  district  court  to  the 
circuit  court  had  been  taken  from  the  en- 
tire decree  by  the  owners  of  the  tow  who 
had  ordered  the  tug,  and  who  had  under- 
taken her  defense  as  well  as  their  own, 
and  thus  represented  the  entire  interest  of 
the  losing  party  in  the  suit,  an  appeal  by 
the  tug  from  the  circuit  court  to  this 
court  was  entertained  here,  though  the 
court  observes  that  doubt  might  perhaps 
exist  as  to  the  regularity  of  the  proceed- 
ing. The  Mabey  &  Cooper.  14  Wall.  204, 
20   L.   Ed.   881. 

96.  Necessity  of  writing. — The  S.  S.  Os- 
borne,  105  U.   S.   447,   450.   26   L.   Ed.   1065. 

97.  Necessity  for  transcript  of  record. 
— -"Upon  the  appeal  of  any  cause  in  eq- 
uity, or  of  admiralty  and  maritime  jurisdic- 
tion, of  prize  or  no  prize,  a  transcript  of 
the  record,  as  directed  by  law  to  be  made 
and  copies  of  the  proofs,  and  of  such  en- 
tries and  papers  on  file  as  may  be  nec- 
essary on  the  hearing  of  the  appeal,  shall 
be  transmitted  to  the  supreme  court;  pro- 
vided, that  either  the  court  below  or  the 
supreme  court  may  order  any  original 
document    or    other    evidence    to    be    sent 


up,  in  addition  to  the  copy  of  the  record, 
or  in  lieu  of  a  copy  of  a  part  thereof." 
Rev.  Stat..  §  698;  Ex  parte  Cooper,  143 
U.  S.  472.  36  L.  Ed.  232.  See,  also.  The 
Baltimore.  8  Wall.  377,  383,  19  L.  Ed.  463. 

98,  What  to  be  entered  on  record. — Rev. 
Stat.,  §  750;  Ex  parte  Cooper,  143  U.  S. 
472,    36    L.    Ed.    232. 

99.  Where  finding  cf  law  and  fact  are 
certified. — Admiralty  Rule  8,  paragraph 
6;  Marshall  f.  The  Adriatic,  103  U.  S.  730, 
26   L.    Ed.   605. 

1.  Effect  of  appeal  as  suspending  decree. 
— The  Schooner  General  Pinknej',  5 
Cranch  281,  3  L.  Ed.  101;  The  Hesper, 
122  U.  S.  256,  30  L.  Ed.  1175;  United 
States  V.  Preston,  5  Pet.  57.  66  L.  Ed.  601; 
The  Steamboat  Louisville,  154  U.  S.  657, 
25  L.  Ed.  771;  The  Lucille,  19  Wall.  73.  74, 
22  L.  Ed.  64;  The  Benefactor,  103  U.  S. 
239,  247.  26  L.  Ed.  351.  See  post,  "Trial 
and  Hearing,"   IH,  R.  9. 

An  appeal  in  admiralty  has  the  effect 
to  supersede  and  vacate  the  decree  froin 
which  it  is  taken.  A  new  trial,  completely 
and  entirelj^  new,  with  other  testimony 
and  other  pleadings,  if  necessary,  or,  if 
asked  for,  is  contemplated — a  trial  in 
which  the  judgment  of  the  court  below 
is  regarded  as  though  it  had  never  been 
rendered.  A  new  decree  is  to  be  made 
in  the  circuit  court.  This  decree  is  to  be 
enforced  by  the  order  of  that  court,  and 
the  record  remains  there.  The  case  is 
not  sent  back  to  the  district  court  for 
executing  the  decree,  or  for  any  other  pro- 
ceeding whatever,  and  that  court*  has 
nothing  further  to  do  with  it.  The  de- 
cree should,  therefore,  be  complete  within 
itself.  The  Lucille,  19  Wall.  73,  74,  22  L. 
Ed.  64.  See  post,  "Rule  under  Act  of 
1875,"  TIT,  R.  9.  b,  (l),   (c). 

2.  Appeal  as  carrying  up  fund. — The 
Wanata.  95  U.  S.  600.  24  L.  Ed.  461;  The 
Lady  Pike,  96  U.  S.  461.  24  L.  Ed.  672; 
The   Lottawanna,  20  Wall.   201,  22   L.   Ed. 


ADMIRALTY 


187 


from  the  disthct  to  the  circuit  court,  the  former  court  can  make  no  order  re- 
specting tlie  property,  whether  it  has  been  sold,  and  the  proceeds  paid  into  court, 
or  whether  it  remains  specifically,  or  its  proceeds  remain,  in  the  hands  of  the 
marshal.'!  Admiralty  bonds  and  stipulations  taken  in  the  district  court,  inasmuch 
as  they  constitute  the  fund  out  of  which  compensation  is  to  be  decreed  to  the 
libelants,  also  follow  the  appeal  into  the  circuit  court.-* 

_  (2)  Appeal  from  Circuit  to  Supreme  Court. — Where  the  appeal  is  from  the 
circuit  court  to  the  supreme  court,  the  funds  remains  in  the  custody  of  he 
circuit  court. ^ 

8.  Dismissal  of  Appeal. — As  to  dismissal  of  appeal,  see  the  title  Appeal 
AND  Error. 

9.  Trial  and  Hearing— a.  Appeal  from  District  to  Circuit  Court. — Upon 
an  appeal  in  admiralty  from  the  district  to  the  circuit  court,  the  case  is  pro- 
ceeded with  substantially  in  the  same  way  as  if  it  had  been  originally  begun  in 
that  court.  The  appeal  vacates  the  decree  of  the  district  court,  the  case  is 
heard  de  novo,  without  any  regard  to  what  was  done  below,  and  an  entirely  new 
decree  is  entered  which  the  circuit  court  carries  into  execution,  without  remand-^ 
ing  the  case  to  the  lower  court.^''  The  fact  that  the  claimant  does  not  aj'pcal 
from  the  decree  of  the  district  court  does  not  alter  the  rule,  as,  by  appealing, 
the  libelant  takes  the  risk  of  the  result  of  a  trial  of  the  case  de  novo.'^ 


2.59;    The    Collector,    6    Wheat.    194,    .5    L. 
Ed.  239. 

Where  an  appeal  is  taken  to  the  circuit 
court  from  the  decree  of  the  district  court 
in  a  proceeding  in  rem.  the  property  or 
its  proceeds  follows  the  cause  into  the 
former  court.  The  Lottawanna,  20  Wall. 
201,  22  L.  Ed.  259;  The  Collector,  6 
Wheat.    194,    5    L.    Ed.    239. 

3.  Power  of  district  court  with  respect 
to  property. — The  Collector,  6  Wheat.  194, 
5  L.  Ed.  239. 

It  is  a  great  irregularity,  for  the  mar- 
shal to  keep  the  property,  or  the  proceeds 
thereof,  in  his  own  hands,  or  to  distrib- 
ute the  same  among  the  parties  entitled, 
without  a  special  order  from  the  court; 
but  such  an  irregularity  may  be  cured,  by 
the  assent  and  ratification  of  all  the  parties 
interested,  if  there  be  no  mala  fides.  The 
Collector.   6  Wheat.    194,   5   L.    Ed.   239. 

4.  As  carrying  up  bond  or  stipulation. 
—The  Wanata,  9.5  U.  S.  600.  (518,  24  L. 
Ed.  461;  Montgomery  v.  Anderson,  21 
How.  386,  16  L.  Ed.  160;  The  Lady  Pike, 
96  U.  S.  461,  24  L.  Ed.  672. 

Where  the  claimant  appeals  from  the 
decree  of  the  district  court,  the  bond  and 
other  stipulations  follow  the  cause  into 
the  circuit  court;  and,  upon  the  affirma- 
tion of  the  decree,  the  fruits  of  the  appeal 
bond  and  other  stipulations  may  be  ob- 
tained in  the  same  manner  as  in  the  court 
below,  thej^  being  in  fact  nothing  more 
than  a  security  taken  to  enforce  the 
original  decree,  and  are  in  the  nature  of 
the  stipulation  in  the  admiralty.  The 
Wanata.  95  U.  S.  600,  616.  24  L.  Ed.  461; 
Montgomery  v.  Anderson,  21  How.  386. 
16  L.  Ed.  160. 

Where  a  stipulation  to  abide  and  an- 
swer the  decree  of  a  district  court  in  a 
case  of  admiralty  is,  with  the  consent  of 
the  parties,  substituted  for  the  stipulation 


previously  filed  by  a  claimant,  it  thereby 
becomes  the  stipulation  for  value,  and 
does  not  become  inoperative  upon  an  ap- 
peal to  the  circuit  court.  The  appeal  car- 
ries up  the  whole  fund.  The  Lady  Pike, 
96  U.   S.  461,  24  L.   Ed.  672. 

5.  Effect  of  appeal  from  circuit  to  su- 
preme court  as  carrying  up  property. — The 
Lady  Pike,  96  U.  S.  461,  465,  24  L.  Ed. 
672;  The  Collector.  6  Wheat.  194,  5  L. 
Ed.  239;  Jennings  v.  Carson.  4  Cranch 
2,  2  L.  Ed.  531. 

In  such  case  the  mandate  of  the  su- 
preme court  is  sent  down,  and  there  op- 
erates upon  the  fund  sent  up  from  the 
district  court,  just  the  same  as  if  the  ex- 
ecution had  been  issued  there  without  any 
appeal  to  this  court.  The  Lady  Pike,  96 
U.   S.  461,  465.  24  L.   Ed.   672. 

6.  Trial  on  appeal  from  district  to  cir- 
cuit court. — The  Steamboat  Louisville,  154 
U.  S.  657.  25  L.  Ed.  771;  The  Lucille, 
19  Wall.  73,  74.  22  L.  Ed.  64;  Montgom- 
ery V.  Anderson,  21  How.  388,  16  L.  Ed. 
160;  The  Schooner  General  Pinkney,  5 
Cranch  281,  283;  3  L.  Ed.  101;  The  Charles 
Morgan  v.  Kouns,  115  U.  S.  69.  29  L-  Ed. 
316;  The  Hesper,  122  U.  S.  256,  30  L.  Ed. 
1175;  United  States  v.  Preston,  3  Pet. 
57.    66.    7    L.    Ed.    601. 

Power  of  circuit  court  to  execute  its 
own  decree. — On  appeal  from  the  dis- 
trict to  the  circuit  court  the  latter  must 
execute  its  own  decree,  and  the  district 
court  has  nothing  more  to  do  with  the 
case.  The  Lucille,  19  Wall.  73.  22  L. 
Ed.   64. 

7.  Effect  of  failure  of  claimant  to  file 
appeal  where  libelant  appeals. — The  fact 
that  the  claimants  did  not  appeal  from  the 
decree  of  the  district  court  does  not  al- 
ter the  rule.  When  the  libelant  appeals, 
he  does  so  in  view  of  the  rule,  and  takes 
the  risk  of  the  result  of  a  trial  of  the  case 


188 


ADMIRALTY. 


b.  Appeal  frciJi  Circuit  to  Supreme  Court — (1)  Retrial  as  to  Facts — ■ 
(a)  Rule  under  Judiciary  Act. — Under  the  provisions  of  the  judic'ary  act,  there 
could  be  no  reversal  for  error  of  fact.*^  If  causes  of  admirahy  jurisdiction  were 
removed  to  the  supreme  court  accompanied  with  a  statement  of  facts,  but  with- 
out the  evidence,  the  statement  was  conclusive  as  to  all  the  facts  which  it  con- 
tained.^ 

(b)  Rule  under  Act  of  i8o^. — Under  the  act  of  March  3,  1803,  the  supreme 
court  could  re-examine  the  whole  testimony  in  the  case,  the  express  requirement 
of  the  act  of  congress  being  that  the  supreme  court  should  hear  and  determine 
such  appeals,  and  it  was  as  much  the  duty  of  the  court  to  reverse  the  decree  from 
which  th^  appeal  was  taken  for  error  of  fact,  if  clearly  established,  as  for  er- 
ror of  law.^*^' 

(c)  Rule  under  Act  of  i8/5 — aa.  In  General. — By  the  act  of  February  16, 
1875,  the  circuit  court  of  the  United  States  in  deciding  causes  of  admiralty  or 
!i-aritime  jurisdiction  on  the  instance  side  of  the  court,  were  required  to  find  the 
■acts  and  conclusions  of  law  upon  which  they  rendered  their  judgments  or  de- 
crees, and  state  them  separately,  and,  upon  review,  the  jurisdiction  of  the  supreme 
court  was  limited  to  the  determination  of  questions  of  law  arising  upon  the  record 
and  to  such  rulings  of  the  circuit  court  excepted  to  at  the  time,  as  might  be  pre- 
sented by  bills  of  exceptions ;  and  the  findings  of  fact  were  conclusive  upon  the 
supreme  court. ^^ 


r'e  novo.  The  whole  case  is  opened  by 
l"is  appeal,  as  much  as  it  would  have  been 
if  both  parties  had  appealed,  or  if  the  ap- 
peal had  been  taken  only  by  the  claiin- 
ants.  The  Hesper,  122  U.  S.  256,  30  L. 
Ed.   1175. 

8.  Rule  under  judiciary  act. — The  Bal- 
f  '■'Ore,    8    Wall.    377,    ?,^\.    19    L.    Ed.    463. 

9.  Conclusiveness  cf  findings  of  fact  un- 
dfr  judiciary  act. — Wiscart  v.  D'Auchy, 
:;  Dall.  321.  324,  1  L.  Ed.  619;  The  Balti- 
r:^re,  8  Wall.   377,  382,  19   L.   Ed.  463. 

Power  to  reverse  for  error,  in  fact,  any 
•'idgment  or  decree  of  a  circuit  court 
brought  here  for  revision,-  being  abso- 
lutely prohibited,  it  became  necessary  to 
nrescriise  some  mode  by  which  the  facts 
in  equity  suits  and  in  cases  of  admiralty 
and  maritime  jurisdiction  sliould  be  as- 
certained and  embodied  in  the  record,  and 
it  was  accordingly  provided  in  the  lOtli 
section  of  the  judiciary  act,  that  it  should 
he  the  duty  of  the  circuit  co-.irts  in  such 
rrses  to  cause  the  facts  on  which  they 
founded  their  sentence  or  decree  fully 
to  appear  upon  the  record  in  some  one  of 
the  modes  therein  described,  and  while  that 
provision  remained  in  force  this  court  had 
no  more  right  to  re-examine  the  facts 
found  in  such  a  case  than  the  court  pos- 
sesses in  a  common-law  suit  where  the 
fprts  are  found  by  the  verdict  of  a  jury. 
TT-e  Baltimore,  8  Wall.  377,  382,  19  L.  Ed. 

IG.  Rule  under  act  of  1803.— The  Balti- 
more, 8  Wall.  377.  19  L.  Ed.  463;  The 
Lucille,  19  Wall.  73.  74,  22  L.  Ed.  64;  The 
City  of  Hartford,  97  U.  S.  323,  328.  24  L. 
Ed.  950;  The  Maria  Martin.  12  Wall.  31, 
2«  L.  Ed.  251;  The  Lady  Pike,  21  Wall. 
1.  22  L  Ed.  499;  The  Sabine,  26  L.  Ed. 
4f)0,  103  U.  S.  540;  Connemara,  108  U.  S. 
352,   359.   27   L.    Ed.   751;      Post   v.   Jones, 


19  How.  150,  15  L.  Ed.  618;  The  Hesper. 
122  U.  S.  256,  30  L.  Ed.  1175;  The  Tor- 
nado. 109  U.  S.  110,  27  L.  Ed.  874;  Dower 
7-.  Richards,  151  U.  S.  658,  664,  38  L.  Ed. 
305.  See  ante.  "As  Suspending  Decree 
of  Lower   Court,"   III.   R.  7,  a. 

It  is  undoubtedly  the  general  rule  that 
an  appeal  in  admiralty,  like  all  appeals 
derived  from  the  practice  of  the  civil  law, 
carries  the  whole  cause  to  the  appellate 
court,  in  which  it  is  to  be  tried  anew  upon 
the  same  and  such  additional  proofs  as 
the  parties  I'nay  propound.  Whilst  this 
is  the  general  rule,  there  is  also  no  doubt 
that  the  legislature  may  authorize  the  ap- 
pellate court,  after  hearing  the  cause,  and 
determining  the  questions  raised  therein, 
to  remand  it  to  the  court  a  quo  for  fur- 
ther proceedings.  The  Benefactor,  103 
U.   S.   239.  247,  26   L.   Ed.  351. 

Before  the  act  of  1875,  this  court,  upon 
an  appeal  in  a  case  of  salvage,  gave  the 
same  weight,  and  no  inore,  to  the  decree 
of  the  court  below,  that  a  court  of  com- 
mon law  would  allow  to  the  verdict  of  a 
jury;  and  might  revise  that  decree  for 
manifest  error  in  matter  of  fact,  even  if 
no  violation  of  the  just  principles  which 
should  govern  the  subject  was  shown.  The 
Connemara,  108  U.  S.  352,  359,  27  L  Ed.  751; 
Post  V.  Jones,  19  How.  150.  15  L  Ed.  618; 
The  Hesper,  122  U.  S.  256,  30L.  Ed.  1175; 
The  Tornado,  109  U.  S.  110.  27  L  Ed.  874. 

The  amount  of  salvage  decreed  below 
was  never  reduced,  unless  for  some  vio- 
lation of  just  principles,  or  for  clear  and 
palpable  mistake  or  gross  over-allowance. 
The  Connemara,  108  U.  S.  359,  27  L.  Ed. 
751;  Hobart  v.  Drogan,  10  Pet.  108,  9  L 
Ed.  363;  The  Comanche.  8  Wall.  448,  19 
L.  Ed.  397.     See  the  title  SALVAGE. 

11.  Rule  under  act  of  1875 — In  general. 
— Ralli  V.  Troop,   157  U.  S.  386,  39  L.  Ed. 


ADMIRALTY. 


189 


bb.  To  What  Cases  Statute  Applies. — The  act  of  1875  applies  to  appeals  from 
a  circuit  court  of  a  territory  in  admiralty  cases. ^^ 

cc.  What  Rulings  May  Be  Reviezved. —  (aa)  /;/  General. — Under  the  act  of 
1875,  the  only  rulings,  upon  which  the  supreme  court  was  authorized  to  pass  are 
such  as  might  be  presented  by  a  bill  of  exceptions  prepared  as  in  actions  at  law.^^ 

(bb)  IVhat  Are  Conclusions  of  Lazv  Which  May  Be  Reviezved. — Conclusions 
arising  upon  the  facts  as  found  are  conclusions  of  law  open  to  review,  although 
treated  by  the  circuit  court  as  findings  of  fact.^^ 

dd.  Of  What  Facts  Findings  Required. — It  is  only  the  ultimate  facts  which 
the  court  is  bound  to  find  ;  and  the  supreme  court  will  not  take  notice  of  a  re- 
fusal to  find  the  mere  incidental   facts,  which  only  amount  to   evidence    from 


742;  The  City  of  New  York,  147  U.  S. 
72.  37  L.  Ed.  84;  Liverpool,  etc..  Steam 
Co.  T.  Phenix  Ins.  Co.,  129  U.  S.  397,  32 
L.  Ed.  788;  The  Nacoochee,  137  U.  S. 
330,  341.  34  L.  Ed.  687;  The  Steamer 
Eclipse.  135  U.  S.  599,  606,  34  L.  Ed.  269; 
The  Gazelle,  128  U.  S.  474,  32  L.  Ed.  496; 
Sun  Mutual  Ins.  Co.  v.  Ocean  Ins.  Co.,  107 
U.  S.  48.5,  27  L.  Ed.  337;  The  Annie  Linds- 
lev.  104  U.  S.  185,  26  L.  Ed.  716;  The 
.\bbotsford,  98  U.  S.  440,  25  L.  Ed.  168; 
The  Connemara.  108  U.  S.  352,  359,  27  L. 
Ed.  751;  The  Tornado,  109  U.  S.  110,  27 
L.  Ed.  874:  The  Hesper.  122  U.  S.  256, 
30  L.  Ed.  1175;  The  Steamboat  Sabine, 
103  U.  S.  540,  .26  L.  Ed.  450;  The  City  of 
New  York.  147  U.  S.  72,  37  L.  Ed.  84; 
The  Francis  Wright,  105  U.  S.  381,  26  L. 
Ed.  1100;  The  Louisville,  154  U.  S.  657, 
'25  L.  Ed.  771;  Nickerson  v.  Merchants' 
Steamship  Co.,  105  U.  S.  267.  26  L.  Ed. 
1026;  Winslow  v.  Wilcox,  104  U.  S.  183, 
26  L.  Ed.  693;  Ex  parte  Cooper.  143  U. 
S.  472,  36  L.  Ed.  232;  The  Sylvia  Handv, 
143  U.  S.  513,  36  L.  Ed.  246;  Steam  Tug 
E.  A.  Packer  x'.  New  Jersey  Lighterage 
Company,  140  U.  S.  360,  35  L.  Ed.  453; 
Dower  v.  Richards,  151  U.  S.  658,  664,  38 
L.    Ed.    305. 

Constitutionality  of  act. — It  has  been 
held,  that  the  act  of  1875  is  constitutional. 
The  Francis  Wright,  105  U.  S.  381.  26  L. 
Ed.    1100. 

12.  Appeals  from  territorial  courts. — 
Ex  parte  Cooper,  143  U.  S.  472,  36  L.  Ed. 
232;  The  Sylvia  Handy,  143  U.  S.  513,  36 
L.    Ed.   246. 

The  act  of  February  16,  1875.  applies 
to  the  district  court  of  Alaska.  Ex  parte 
Cooper,  143  U.  S.  472,  36  L.  Ed.  232;  The 
Sylvia  Handy.  143  U.  S.  513.  36  L.  Ed.  246. 

13.  What  rulings  may  be  reviewed  un- 
der act  of  1875.— The  City  of  New  York, 
147  U.  S.  72,  76,  37  L.  Ed.  84;  The  Ab- 
botsford.  98  U.  S.  440,  25  L.  Ed.  168;  The 
Clara,  102  U.  S.  200,  26  L.  Ed.  145;  The 
Benefactor,  102  U.  S.  214,  26  L.  Ed.  157; 
The  Annie  Lindsley,  104  U.  S.  185,  26  L. 
Ed.  716;  Collins  v.  Riley,  104  U.  S.  322; 
26  L.  Ed.  752;  Sun  Mut.  Ins.  Co.  v.  Ocean 
Ins.  Co.  107  U.  S.  485,  27  L.  Ed.  337; 
Watts  V.  Camors,  115  U.  S.  353,  29  L.  Ed. 
406;  The  Schooner  Maggie  J.  Smith  f. Wal- 
ker, 123  U.  S.  349,  31  L.Ed.  175;  The  Ga- 
zelle, 128  U.  S.  474.  32  L.  Ed.  496;  The 
Connemara,  108  U.  S.  352,  27  L.  Ed.   751; 


The  Adriatic,  103  U.  S.  730.  26  L.  Ed.  605; 
The  Hesper,  122  U.  S.  256,  266,  30  L. 
Ed.  1175.  The  Tornado,  109  U.  S.  110, 
115.  27  L.  Ed.  874;  Liverpool,  etc.,  Steam 
Co.  V.  Phenix  Ins.  Co.,  129  U.  S.  397,  32 
L.  Ed.  788;  The  Steamer  Eclipse,  135  U. 
S.   599,  607,  34   L.   Ed.  269. 

In  cases  of  salvage,  as  in  other  admi- 
ralty cases,  the  supreme  court  may  re- 
vise the  decree  appealed  from  for  matter 
of  law,  but  for  matter  of  law  only;  and 
should  not  alter  the  decree  for  the  reason 
that  the  amount  awarded  appears  to  be 
too  large,  unless  the  excess  is  so  great 
that,  upon  any  reasonable  view  of  the 
facts  found,  the  award  cannot  be  justi- 
fied by  the  rules  of  law  applicable  to  the 
case.  The  Connemara,  108  U.  S.  352,  360, 
27  L.  Ed.  751.  The  Tornado,  109  U.  S. 
110,  27  L.  Ed.  874;  The  Hesper,  122  U. 
S.  256,  30  L.  Ed.  1175.  See  the  title  S.\L- 
VAGE. 

14.  What  are  conclusions  of  law. — The 
Edwin  1.  Morrison.  153  U.  S.  199.  38  L. 
Ed.  688;  The  Britannia,  153  U.  S.  130, 
38    L.    Ed.    660. 

In  an  action  to  recover  damages  done 
to  a  cargo  by  sea  water  findings  of  the  cir- 
cviit  court  that  "at  the  time  of  the  contract 
and  loading  of  cargo  and  commencement 
of  voj'age  the  vessel  was  tight,  staunch 
and  strong  and  in  every  way  fit  for  the 
contemplated  voyage;"  that  "there  was 
no  latent  defect  in  the  vessel  which  con- 
tributed to  the  injury  to  the  cargo;"  and 
that  "the  whole  of  said  damage  to  cargo 
was  caused  by  dangers  of  the  sea  and  was 
within  the  exception  in  charter  parties 
and  bills  of  lading,"  were  held  to  be  find- 
ings determined  by  the  interpretation 
which  the  law  put  upon  the  circumstances 
of  the  transaction  p  1  as  such  open  to 
revision  by  the  supreme  court.  The 
Edwin  I.  Morrison,  153  U.  S.  199,  38  L. 
Ed.  688,  citing  Sun  Mutual  Ins.  Co.  v. 
Ocean  Ins.  Co.,  107  U.  S.  485,  27  L.  Ed. 
337;  United  States  v.  Pugh,  99  U.  S.  265, 
25  L.  Ed.  322;  The  Britannia,  153  U.  S. 
130,   38    L.    Ed.   660. 

In  an  action  for  collision,  the  findings 
that  "the  conduct  of  those  in  charge  of 
the  Beaconsfield.  as  specifically  set  forth 
in  the  foregoing  findings,  does  not  warrant 
the  inference  that  there  was.  on  their 
part,    negligence    contributory   to    produce 


190 


ADMIRALTY. 


which  the  ulthiiate  fact  is  to  be  obtained. ^^  Wherever  the  trial  court  finds  the 
facts  and  the  conclusions  of  law  therefrom,  it  is  bound  to  find  every  fact  material 
to  its  conclusion,  and  a  refusal  to  do  so,  if  properly  excepted  to,  is  a  ground  for 
reversal.  ^*^ 

ee.  Conclusiveness  of  Fiiidi)igs. — The  facts  found  by  the  court  below  are  con- 
clusive,^'^ and  have  practically  the  same  ettect  as  the  special  verdict  of  a  jury.^^ 
A  bill  of  exceptions  cannot  be  used  to  bring  up  the  evidence  for  a  review  of 
these  findings. ^^ 

ff.  Effect  of  Refusal  to  Make  Findings.— li  the  court  below  neglects  or  re- 
fuses to  make  a  finding  one  way  or  the  other,  as  to  the  existence  of  a  material 
fact,  which  has  been  established  by  uncontradicted  evidence,  and  an  exception 


the  collision,"  is  a  conclusion  of  law  open 
to  revision  on  appeal.  The  Britannia,  153 
U.  S.   130,  38  L.   Ed.   660. 

15.  Of  what  facts  findings  required. — 
The  City  of  New  York.  147  U.  S.  72,  76, 
37  L.  Ed.  84;  The  Francis  Wright,  105 
U  S.  381,  26  L.  Ed.  1100;  Alerchants' 
Mut.  Ins.  Co.  V.  Allen.  121  U.  S.  67,  30  L. 
Ed.  859;  The  John  H.  Pearson.  121  U.  S. 
469.   30    L.    Ed.  979. 

16.  Necessity  for  finding  as  to  every  ma- 
terial fact. — Steam  Tug  E.  A.  Packer  v. 
New  Jersej'  Lighterage  Company,  140  U. 
S.  360,  365.'  35   L.   Ed.  453. 

In  The  John  H.  Pearson.  121  U.  S.  469, 
30  L.  Ed.  979,  the  question  arose  as  to 
what  was  meant  by  the  term  "Northern 
Passage"  from  Gibraltar  to  New  York, 
and  it  was  held,  that  the  court  below 
should  have  ascertained  from  the  evidence 
what  passages  there  were  which  vessels 
were  accustomed  to  take,  and  then  de- 
termine which  of  them  the  vessel  was 
allowed  by  its  contract  to  choose  as  the 
northern,  and  the  decree  was  reversed 
and  the  case  remanded  for  further  pro- 
ceedings upon  this  ground.  -  Steam  Tug 
E.  A.  Packer  v.  New  Jersev  Lighterage 
Company,  140  U.  S.  360,  365,  35  L.  Ed. 
453. 

If  the  report  of  a  master  is  excepted 
to.  there  must  be  findings  of  fact  by  the 
circuit  court,  in  order  for  the  supreme 
court  to  review  the  case,  where  the  appel- 
lant insists  on  pressing  his  exceptions. 
The  Steamboat  Sabine,  103  U.  S.  540.  26 
L.    Ed.    450. 

17.  Conclusiveness  of  findings. — The 
City  of  New  York.  147  U.  S.  72,  76.  37 
L.   Ed.   84;   The   Abbotsford,  98   U.   S.   440. 

25  L.   Ed.    168;   The    Clara,   102   U.    S.   200, 

26  L.  Ed.  145;  The  Benefactor,  102  U.  S. 
214,  26  L.  Ed.  157;  The  Annie  Lindsley, 
104  U.  S.  185,  26  L.  Ed.  716;  Collins  v. 
Riley,  104  U.  S.  322,  26  L.  Ed.  752;  Sun 
Mut.  Ins.  Co.  V.  Ocean  Ins.  Co..  107  U. 
S.  485,  27  L.  Ed.  337;  Watts  z:  Camors. 
115  U.  S.  353.  29  L.  Ed.  406;  The  Schooner 
Maggie  J.  Smith  v.  Walker,  123  U.  S.  349, 

31  L.  Ed.  175;  The  Gazelle,  128  U.  S.  474, 

32  L.  Ed.  496;  The  Connemara.  108  U.  S. 
352,  27  L.  Ed.  751;  The  Adriatic.  103  U.  S. 
730.  26  L.  Ed.  605;  The  Potomac,  105  U. 
S.   630,  26   L.   Ed.   1194. 

Where    the    circuit    court    found    that    a 


harbor  was  in  a  fiord  or  inlet  having  a 
bar  across  its  mouth,  which  it  was  im- 
possible for  a  ship  to  pass,  either  in  bal- 
last or  with  cargo;  and  that  the  only  an- 
chorage outside  the  bar  was  not  a  rea- 
sonably safe  anchorage,  nor  a  place  where 
it  is  reasonably  safe  for  a  vessel  to  lie 
and  discharge,  these  positive  findings 
of  essential  facts  are  in  no  way  controlled 
or  overcome  by  the  other  statements 
(rather  recitals  of  portions  of  the  evidence 
than  findings  of  fact)  that  large  English 
steamers  habitually.  and  thirty  one 
American  vessels  in  the  course  of  several 
years,  had  in  fact  discharged  the  whole  or 
part  of  their  cargoes  at  that  anchorage, 
without  accident  or  disaster.  The  Gazelle, 
128    U.    S.    474.   485.    32    L.    Ed.    496. 

18.  Findings  have  same  effect  as  special 
verdict.— The  City  of  New  York,  147  U. 
S.  72.  76,  37  L.  Ed.  84;  The  Abbotsford, 
98  U  S.  440.  25  L.  Ed.  168;  The  Clara, 
102  U.  S.  200,  26  L.  Ed.  145;  The  Bene- 
factor, 102  U.  S.  214,  26  L.  Ed.  157;  The 
Annie  Lindsley,  104  U.  S.  185,  26  L.  Ed. 
716;  Collins  v.  Riley.  104  U.  S.  322,  26 
L.  Ed.  752;  Sun  Mutual  Ins.  Co.  v.  Ocean 
Ins.  Co..  107  U.  S.  485.  27  L.  Ed.  337; 
Watts  r.  Camors,  115  U.  S.  353,  29  L.  Ed. 
406;  The  Schooner  Maggie  J.  Smith  v. 
Walker.  123  U.  S.  349,  31  L.  Ed.  175;  The 
Gazelle.  128  U.  S.  474.  32  L.  Ed.  496;  The 
Francis  Wright.  105  U.  S.  381.  26  L.  Ed. 
nOO;  The  Connemara,  108  U.  S.  352,  27  L. 
Ed.  751;  The  Adriatic.  103  U.  S.  730,  26  L. 
Ed.  605;  The  S.  C.  Tryon,  105  U.  S.  267,  26 
L.  Ed.  1026.  See,  generally,  the  title 
VERDICT. 

19.  Bill  of  exceptions  to  review  findings. 
—The  City  of  New  York.  147  U.  S.  72. 
76.  37  L.  Ed.  84;  The  Abbotsford.  98  U.  S. 
440,  25  L.  Ed.  168;  The  Clara,  102  U.  S. 
200,  26  L.  Ed.  145;  The  Benefactor,  102 
U.  S.  214.  26  L.  Ed.  157;  The  Annie 
Lindslev,  101  U.  S.  185,  26  L.  Ed.  716; 
Collins  V.  Riley.  104  U.  S.  322,  26  L.  Ed. 
752;  Sun  Mut.  Ins.  Co.  v.  Ocean  Ins. 
Co.,  107  U.  S.  485.  27  L.  Ed.  337:  The 
Gazelle.  128  U.  S.  474.  32  L-  Ed.  496; 
The  Connemara.  108  U.  S.  352,  27  L.  Ed. 
751;  The  Adriatic.  103  U.  S.  "^30.  26  L.  Ed. 
605;  The  Schooner  Maeeie  J.  Smith  v. 
Walker.  123  U.  S.  349.  352.  31  L.  Ed.  175; 
Watts  V.  Camors.  115  U.  S.  353,  29  L.  Ed. 
406. 


ADMIRALTY. 


191 


be  taken,  the  question  may  be  brought  up  for  review  in  that  particular.  The  re- 
fu.^al  lo  find  ii  equivalent  to  finding  that  the  fact  was  immaterial,  and  is  a  ques- 
tion ot  law.  and  properly  reviewable  in  an  appellate  court. 2"  But  to  justify  the 
su])reme  court  in  returning  a  cause  to  certify  the  findings,  it  must  clearly  appear 
tl  at  the  omission  was  attributable  to  the  fault  or  neglect  of  the  court  and  not  to 
the  parties.-^ 

gg-  Effect  of  Findings  Not  Supported  by  Evidence. — If  the  court  below  make> 
a  finding  of  fact  which  is  not  supported  by  any  evidence  whatever,  and  an  ex- 
ception be  taken,  the  question  is  reviewable  in  that  particular. -^ 

hh.  Bill  of  Exceptions — (aa)  Necessity  of  Bill. — A  bill  of  exceptions  is  no; 
necessary  to  give  the  supreme  court  jurisdiction  of  an  appeal  in  admiralty  under 
the  provisions  of  the  act  of  February  16,  1875.23  But  if  the  circuit  court  fails 
to  make  findings,  when  it  should  do  so,  or  makes  a  finding  which  is  not  supported 
by  the  evidence,  a  bill  of  exceptions  is  necessary  in  order  to  make  the  objection 
available. 2-1 

Cbb)  Form  of  Bill. — Where  an  exception  is  on  the  ground  that  the  court 
failed  to  find  facts  which  it  should  have  found,  the  bill  of  exceptions  ought  to 
show  the  grounds  relied  on  to  sustain  the  objections,  so  that  it  will  appear  tha 
the  court  below  was  properly  informed  as  to  the  point  to  be  decided,  and  tha' 
the  facts  sought  to  be  incorporated  are  conclusively  proven  by  uncontradicted 
evidence;  and  if  the  exception  is  as  to  facts  found,  it  should  be  stated  that  it 
was  because  there  was  no  evidence  to  support  them,  and  then  so  much  of  the 
testimony  as  is  necessary  to  establish  this  ground  of  complaint,  which  might  under 
some  circumstances  include  the  whole,  should  be  incorporated  in  the  bill  of  ex- 
ceptions.-^ 

ii.  Hearing  and  Determination   on  Findings. — When    the    testimony  has  been 


20.  Effect  of   refusal   to  make   findings. 

—The  Citv  of  Xew  York.  147  U.  S.  72, 
77,  37  L.  Ed.  84;  The  Francis  Wright,  105 
U.  S.  381.  26  L.  Ed.  1100;  Steam  Tng  E. 
A.  Packer  v.  New  Jersev  Lighterage 
Company.    140    U.    S.    360.    35    L.    Ed.    453. 

21.  Return  of  a  cause  for  certificate  of 
findings. — Winslow  :•.  Wilcox.  104  U.  S. 
183.  26  L.  Ed.  693;  The  Abbotsford,  98 
U.   S.  440,   25   L.   Ed.   168. 

Where  the  circuit  court  refused  to  find 
a  specific  fact  which  the  supreme  court 
thought  to  be  material,  and  to  have  been 
proven  by  uncontradicted  testimony,  the 
case  was  remanded  for  a  further  finding 
in  regard  to  this  point.  Steam  Tug  E. 
A.  Packer  v.  New  Jersey  Lighterage 
Company,  140  U.  S.  360.  35  L.  Ed.  453; 
The  City  of  New  York.  147  U.  S.  72,  77, 
37    L.    Ed.    84. 

Where,  the  circuit  court  has  passed  on 
all  the  issues  the  sunreme  court  cannot 
listen  to  complaints  that  it  has  refused  to 
find  certain  other  facts  which  the  weight 
of  the  testimony  did  not  warrant.  Steam 
Tug  E.  A.  Packer  v.  New  Jersey  Lighter- 
age Company,  140  U.  S.  360,  363,  35  L. 
Ed.  453;  The  .Annie  Lindsley,  104  U.  S. 
185,  26  L.  Ed.  716,  717. 

22.  Finding  not  supported  by  evidence. 
—The  Citv  of  New  York,  147  U.  S.  72, 
77,  37  L.  Ed.  84;  The  Francis  Wrie-ht,  105 
U.  S.  381,  26  L.  Ed.  1100;  Steam  Tug  E. 
A.  Packer  v.  New  Jersev  Li.ghterage 
CompPiny.  140  U.  S.   360,  35  "L.   Ed.   453. 

23.  Necessity  for  bill  of  exception  to 
make  findings  part  of  record. — Nickerson 


V.  Merchants'  Steamship  Co..  105  U.  S. 
267,  26  L.  Ed.  1026;  The  Adriatic,  107  U. 
S.  512,  27  L.  Ed.  497;  The  Potomac,  105 
U.  S.  630,  26  L.  Ed.  1194.  See,  generally, 
the  title  EXCEPTIONS,  BILL  OF,  AND 
STATEMENT  OF  FACTS  ON  AP- 
PEAL. 

The  findings  which  the  statute  requires 
must  be  stated  by  the  court.  These, 
therefore,  become  part  of  the  record  with- 
out any  action  of  the  parties,  and  errors 
of  law  arising  on  them  need  not  be  pre- 
sented by  exceptions.  They  are  in  the 
nature  of  a  special  verdict,  as  to  which 
the  inquiry  is  always  open  in  the  review- 
ing court,  whether  taken  in  connection 
with  everything  else  that  appears,  it  is 
suflficient  to  support  the  judgment.  Nick- 
erson V.  Merchants'  Steamship  Co.,  105 
U.    S.    267.   26    L.    Ed.   1026. 

24.  Necessity  of  exception  for  refusal  to 
make  findings  or  where  findings  not 
supported  by  evidence. — The  Gazelle  128 
U.  S.  474.  481,  32  L.  Ed.  496;  The  Francis 
Wright,  105  U.  S.  381.  26  L.   Ed.  1100. 

25.  Form  of  bill.— The  Francis  Wright, 
105  U.  S.  381,  26  L.  Ed.  1100;  The  City 
of  New  York.  147  U.  S.  72,  77,  37  L 
Ed.   84. 

Exceptions  to  the  refusals  of  the  cir- 
cuit court  to  find  certain  facts  cannot  be 
considered  by  the  supreme  court  where 
the  testimony  is  not  before  it.  The 
Nacoochee,  137  U.  S.  330.  341,  34  L.  Ed. 
687;  The  Francis  Wright,  105  U.  S.  381. 
26  L.   Ed.   1100. 


192 


rlDMIRALTY 


sif'icd  and  weighed,  and  the  actual  circumstances  of  the  transaction  stated  in  a 
connected  form,  the  law,  by  means  of  its  presumptions,  determines  whether  they 
establish  such  a  relation  between  the  parties  as  to  give  rise  to  reciprocal  righis 
and  obl'gations,  and  if  so,  what  legal  consequences  h.ave  followed.  The  issue  to 
be  determined  may  be  one,  in  form,  merely  of  fact,  as  whether  a  particular  con- 
tract was  made,  or  whether  one  or  both  of  the  parties  have  been  guilty  of  neg- 
ligence. The  circumstances  of  the  entire  transaction  having  been  ascertained 
and  stated,  the  issue  is  determined  by  the  interpretation  which  the  law  puts  U])on 
them.  This  is  an  office  quite  distinct  from  ascertaining  the  circumstances  them- 
selves by  the  process  of  reduction  from  the  original  mass  of  evidence.  It  in- 
volves only  a  consideration  of  the  facts  as  found,  in  their  relation  to  each  other, 
in  view  of  fixed  presumptions,  in  order  to  determine  and  declare  the  efifect  to 
be  given  to  them  as  a  connected  whole. ^^ 

c.  Effect  Where  Ezndence  Is  Conflicting — (1)  /;;  General. — When  the  evidence 
is  conflicting  and  there  is  evidence  to  sustain  the  decree,  tlie  supreme  court  w.ll 
not  ordinarily  interfere.'^" 

.  (2)  Effect  of  Concurring  Decisions  of  District  and  Circuit  Courts  on  Ques- 
tions of  Fact. — Successive  decisions  of  two  courts  in  the  same  case,  on  questior- 
of  fact,  are  not  to  be  reversed,  unless  clearly  shown  to  be  erroneous. ^^     But  ia 


26.  Hearing  and  determination  of  cause 
on  findings. — Sun  Alutual  Ins.  Co.  v. 
Ocean  Ins.  Co.,  107  U.  S.  485.  502,  27 
L.     Ed.    337. 

"This  rule  was,  after  much  considera- 
tion, established  in  United  States  v.  Pugfi, 
99  U.  S.  265,  25  L.  Ed.  322.  in  reference  to 
the  examination  of  th.c  jrdfrments  of  the 
court  of  claims,  and  we  reiterate  it  here, 
as  equally  applicable  to  appeals  from  the 
decrees  in  admiralty  of  the  circuit  courts 
of  the  United  States  under  the  act  of 
1875."  Sun  I\Iutual  Tns.  Co.  z\  Ocepn  Ins. 
Co..    107    U.    S.    485.    50-?,   27    L.    Ed.    337. 

27.  Evidence  ccn'^icting. — Smith  v. 
Burnett,  173  U,  S.  430,  43  L.  Ed  756; 
Philadelphia,  etc..  R.  Co.  z'.  Philadelp-hia, 
etc.,  Steamb-at  Co.,  23  How.  209.  16  L. 
Ed.  433;  The  Grace  Girdler,  7  Wall.  196, 
19  L.  Ed.  113;  The  Juniata,  93  U.  S.  337, 
23  L.  Ed.  930;  Morewocd  z:  Enequist,  23 
How.  491.  16  L.  Ed.  516;  The  Ludwig 
Holberp-.  157  U.  S.  60.  39  L.  Ed.  620;  The 
Lady  Pike,  21  Wall.  1.  22  L.  Ed.  499; 
Walsh  V.  Rogers,  13  How.  283,  14  L.  Ed. 
147. 

28.  Effect  of  concurring  decisions  of  dis- 
trict and  circuit  court  en  questions  of 
fact. — Towson  z'.  Moore.  173  U.  S.  17, 
43  L.  Ed.  597;  The  Baltimore.  8  Wall.  377. 
382,  19  L.  Ed.  463;  The  Schooner  S.  B. 
Wheeler.  20  Wall.  385.  386,  22  L.  Ed.  385; 
The  Richmond.  103  U.  S.  541,  26  L.  Ed. 
313;  Smith  v.  Burnett,  173  U.  S.  430,  43 
L.  Ed.  756;  The  Quickstep.  9  Wall.  665, 
19  L.  Ed.  767;  The  Lady  Pike,  21  Wall. 
18.  22  L.  Ed.  499;  Campania  de  Navigacion 
La  Flecha  v.  Brauer,  168  U.  S.  104,^42  L. 
Ed.  398;  Morewood  v.  Enequist.  23  How. 
491.  16  L.  Ed.  516;  The  Conqueror.  166  U. 
S.  110,  41  L.  Ed.  937:  The  Steamboat  Eliza 
Hancock.  91  U.  S.  618.  23  L.  Ed.  214; 
The  Steamboat  Sabine.  103  U.  S.  540, 
26  L.  Ed.  450;  International  Nav.  Co.  v. 
Farr,   181    U.    S.    218,   45    L.    Ed.   830;    The 


Carib  Prince.  170  U.  S.  655,  42  L.  Ed. 
1181;  The  Grace  Girdler,  7  Wall.  190.  19 
L.  Ed.  113;  The  Juniata.  93  U.  S.  337,  23 
L.  Ed.  930;  The  Commerce.  16  Wall.  33, 
21  L.  Ed.  465;  The  Germanic,  196  U.  S. 
589,  49  L.  Ed.  610;  The  Steamship  Wild- 
croft,  201  U.  S.  378,  50  L.  Ed.  465;  The 
Germanic.  196  U.  S.  589,  49  L.  Ed.  610; 
The  Steamship  Wildcroft,  201  U.  S.  378, 
50  L.  Ed.  794.  (Finding  as  to  seaworthi- 
ness of  vessel.)  See,  generally,  the  title 
APPEAL   AND    ERROR. 

Appeals  in  admiralty,  it  may  be  ad- 
mitted, are  not  favored  where  it  appears 
that  the  subordinate  courts  have  both  con- 
curred in  the  same  view  of  the  merits  of 
the  controversy.  The  Lady  Pike,  21 
WpII.  1,  8,  22   L.   Ed.  499._ 

Where  a  cause  in  admiralty  turns  on  a 
((uestion  of  fact,  and  the  evidence  is  con- 
flicting, and  both  the  courts  below  decide 
the  same  way,  it  is  not  for  this  court  to 
hear  arguments  whether  eleven  deponents 
ought  to  be  believed  on  one  side  rather 
than  ten  on  the  other,  for  the  weight  of 
testimony  is  not  always  with  numbers. 
The  Water  Witch,  1  Black  494,  17  L.  Ed. 
155. 

Suits  for  collision. — Where  the  district 
and  the  circuit  court  concur  in  their  view 
of  facts  in  a  collision  case  in  admiralty, 
the  case  will  come  before  the  supreme 
court  with  every  presumption  in  favor  of 
the  correctness  of  the  decision  appealed 
from.  The  Quickstep,  9  Wall.  665,  19 
L.  Ed.  767;  The  Sabine,  103  U.  S.  541.  26 
L.  Ed.  314;  The  Schooner  S.  B.  Wheeler, 
20   Wall.   385.   386,   22    L.    Ed.   385. 

The  supreme  court  will  not.  in  a  case  of 
collision,  reverse  the  concurrent  decrees 
of  the  courts  below,  upon  a  mere  differ- 
ence of  opinion  as  to  the  weight  and  ef- 
fect of  conflicting  testimony.  To  war- 
rant a  reversal,  it  must  be  clear  that  the 
lower    courts    have    committed    an    error. 


ADMIRALTY. 


193 


a  clear  case,  the  supreme  court  will  reverse  even  though  the  district  and  circuit 
court  agreed  in  their  conclusion.-^ 

d.  Further  Proof. — Upon  an  appeal  in  admiralty,  where  a  party  makes  a  proper 
showing  of  an  excuse  for  failure  to  introduce  evidence  in  the  lower  courtj^*^  the 
court  may  order  further  proof  to  be  given.^i  Further  proof  may  be  ordered 
whenever  public  justice  and  the  substantial  merits  require  it,^^  where  the  evi- 
dence is  so  contradictory  and  ambiguous  as  to  render  a  decision  difficult.-'^^  or 
where  there  is  newly-discovered  evidence  which  is  material  to  the  question  in 
issue,^*  but  further  proof,  inconsistent  with  that  already  in  the  case,  will  be  re- 


and  that  a  wrong  has  been  done  to  the 
appellant.  The  Juniata,  93  U.  S.  337,  23 
L.    Ed.    930. 

In  cases  of  collision  depending  on  fact, 
where  the  evidence  is  conflicting,  the 
supreme  court  will  not  readily  reverse  a 
decree  made  by  the  district,  and  affirmed 
by  the  circuit  court.  It  declares  that  the 
district  court,  which  can  examine  wit- 
nesses ore  tenus,  and  summon,  if  it 
pleases,  experienced  masters  of  vessels  to 
help  them,  as  Trinity  masters  do  the 
English  courts  in  cases  depending  on 
nautical  experience,  has  better  oppor- 
tunities than  any  other  courts  can  have 
for  examining  such  cases,  and  for  form- 
ing correct  conclusions  on  them.  The 
Hypodame,  6  Wall.   216,   18   L.    Ed.   794. 

In  a  case  of  collision  between  two  sea- 
going vessels,  where  the  only  question 
proposed  by  the  pleadings  is  one  of  fact, 
where  there  is  much  discrepancy  between 
the  witnesses  as  to  every  averment,  and 
where  both  the  courts  below  have  con- 
curred in  their  decision,  it  is  not  to  be 
expected  that  the  supreme  court  w'll  re- 
verse the  decree  upon  a  mere  doubt 
founded  on  the  number  or  credibility  of 
the  witnesses.  The  Ship  Marcellus,  1 
Black  414,  17  L.  Ed.  217. 

In  such  a  case  the  appellant  has  all 
presumptions  against  him,  and  the  burden 
of  proof  is  thrown  on  him  to  show 
affirmatively  that  an  error  has  been  com- 
mitted, and  if  there  be  sufficient  evidence 
on  the  record  to  support  the  decree 
which  was  made,  the  appellant  cannot  get 
it  reversed  by  establishing  a  theory,  sup- 
ported by  some  of  the  witnesses,  on 
which  a  dififerent  decree  might  have  been 
rendered.  The  Ship  Marcellus.  1  Black 
414,  17  L.   Ed.   217. 

29.  Supreme  court  will  reverse  in  clear 
case.— The  Lady  Pike,  21  Wall.  1,  22  L. 
Ed.    499. 

30.  Showing  of  excuse  for  failure  to 
introduce  evidence  in  lower  court. — The 
Juniata,  91  U.  S.  366.  23  L.  Ed.  208;  The 
Mabey.  10  Wall.  419,  19  L.  Ed.  963. 

Upon  a  motion  to  examine  witnesses 
in  the  supreme  court,  in  an  appeal  in  ad- 
miralt}-,  the  part}'  should  show  some  ex- 
cuse satisfactory  to  this  court,  for  the 
failure  to  examine  them  in  the  courts 
below,  such  as  that  the  evidence  was  dis- 
covered when  it  was  too  late  to  procure 
such  examination,  or  that  the  witnesses 
had  been  subpoenaed  and  failed  to  appear, 

1  U  S  Enc— 13 


and  could  not  be  reached  by  attachments, 
and   the   like.      The    Mabey,    10   Wall.   419, 

19  L.   Ed.  963. 

Hence,  where,  on  such  a  motion,  his 
affidavit  stated  only  that  the  witnesses 
were  material  ones,  without  whose  testi- 
mony he  could  not  safely  proceed  to  the 
hearing,  as  he  was  informed  and  believed, 
and  as  he  was  advised  by  his  counsel  after 
a  full  statement  to  him  of  the  facts  which 
he  expected  to  prove  by  the  persons 
whom  it  was  proposed  to  examine,  the 
motion  was  denied.  The  Mabey,  10  Wall. 
419,    19    L.    Ed.    963. 

Depositions  taken  under  a  commission 
from  a  circuit  court  in  an  admiralty  case, 
after  an  appeal  to  this  court,  will  not  be 
made  a  part  of  the  record,  unles  a  suffi- 
cient excuse  be  shown  for  not  taking  the 
evidence  in  the  usual  way  before  the 
courts  below.  The  Juniata.  91  U.  S.  366, 
23   L.   Ed.   208. 

31.  Further  proof  on  appeal. — The 
Marianna  Flora,  11  Wheat.  1.  6  L.  Ed. 
405;  Rice  v.  Minnesota,  etc.,  R.  Co.,  21 
How.  82.  85,  16  L.  Ed.  31;  The  Brig 
James  Wells,  7  Cranch  22,  3  L.  Ed.  256; 
The  Brig  Clarissa  Claiborne,  7  Cranch 
107,  3  L.  Ed.  284;  The  Pizarro,  2  WHieat. 
227.  4  L.  Ed.  226;   Hemmingway  r.  Fisher, 

20  How.   255,   260.   15   L.    Ed.    79*9. 

Effect  of  act  of  1875. — Quaere,  whether, 
since  the  act  of  February  16,  1875,  "to 
facilitate  the  disposition  of  cases  in  the 
supreme  court,  and  for  other  purposes," 
(c.  77,  18  Stat.  315),  new  testimony  can. 
under  any  circumstances,  be  taken  after 
an  appeal  in  admiralty  to  the  supreme 
court,  or  amendments  to  the  pleadings 
allowed.  I^Ierchants'  Mut.  Ins.  Co.  v. 
Allen.   121  U.  S.  67,  73,  30  L.   Ed.  859. 

Further  proof  in  prize  cases. — See  the 
title    PRIZE. 

32.  To  promote  justice  and  ascertain 
merits. — The  ]\Iarianna  Flora,  11  Wheat. 
1.  6  L.  Ed.  405;  Rice  v.  Minnesota,  etc., 
R.  Co..  31  How.  82,  85,  16  L.   Ed.  31. 

"The  order  is  always  made  with  ex- 
treme caution  and  only  when  the  ends  of 
justice  clearly  require  it.'"  The  Grey 
Jacket.    5    Wall.    70,    18    L.    Ed.    646. 

33.  Evidence  contradictory  and  am- 
biguous.— The  Samuel,  1  Wheat.  9.  4  L. 
Ed.    23. 

34.  Newly-discovered  evidence. — The 
Western  Metropolis,  12  Wall.  389,  20  L. 
Ed.    394. 

Where  it  appeared  by  affidavits  filed  by 


194 


ADULTERATION. 


fused. 3^  A  commission  may,-'^  and  probably  must,^'''  issue  for  the  purpose  of 
takincr  further  proof. '^^  If  further  proof  is  taken,  it  will  be  presumed  that  an 
order  for  that  purpose  was  made  by  the  court,  in  the  absence  of  any  objection 
appearing  on  the  record.^^  While  the  decision  of  the  circuit  court  granting  or 
denyi'-ig  further  proof  is  subject  to  review,*'"'  if  properly  objected  to  in  the  lower 
court,*  1  mandamus  will  not  lie  to  compel  the  court  to  receive  and  consider  it.*^ 

ADMISSIONS  IN  EVIDENCE.— See  the  title    Declarations    and    Admis- 
sions, and  references  given. 

ADOPTION  OF  CHILDREN.— See  the  title  Parent  and  Child. 
ADULTERATION.— See  the  title  Food. 


the  appellant,  who  was  claimant  below,  in 
a  collision  case,  that  it  was  probable  that 
two  witnesses  for  the  libellant  received, 
before  testifying,  a  promise  from  him  for 
the  payment  of  a  sum  of  money  in  the 
event  that  the  case  should  be  decided  in 
his  favor,  and  that  the  appellant  ascer- 
tained the  fact  after  the  appeal,  the  court 
ordered  a  commission,  under  the  12th 
rule,  to  take  the  testimony  of  such  wit- 
nesses relative  to  said  agreement.  The 
Western  Metropolis,  13  Wall.  389.  20  L. 
Ed.    394. 

35.  Further  proof  inconsistent  with 
evidence  already  in  case. — The  Euphrates, 
8  Cranch  385,  3   L.   Ed.   .598. 

36.  Commission  to  take  new  evidence. 
—The  Brig  James  Wells,  7  Cranch  22,  3 
L.  Ed.  256;  The  Brig  Clarissa  Claiborne,  7 
Cranch    107,    3    L.    Ed.   284. 

Refusal  of  allowance  on  appeal  of  com- 
mission to  take  testimony. — A  commis- 
sion from  the  supreme  court  to  take 
testimony  will  be  refused,  on  an  ap- 
peal in  a  collision  case  in  admiralty, 
where  the  party  moving  had  in  the 
district  court  the  same  witnesses  whom 
he  proposed  to  examine  on  appeal, 
and  did  not  examine  them  only  because 
he  had  agreed  with  a  codefendant  (who 
was  apparently  as  between  themselves 
alone  liable,  he,  the  codefendant.  having 
led  the  other  defendant  into  the  fault  for 
which  the  libel  had  been  filed)  that  he. 
the  codefendant,  would  manage  the  whole 
case  and  pay  the  sums  awarded  by  any 
decree  (the  purpose  of  this  agreement 
having  apparently  been  to  keep  from  the 
court  below  a  full  knowledge  of  the  case), 
and  where  especially  the  party  now  mov- 
ing did  not  appeal  from  the  decree  of  the 
district  court.  The  Mabey,  13  Wall.  738. 
20    L.    Ed.    473. 

37.  Affidavits  must  be  taken  by  commis- 
sion.— The  London  Packet.  2  Wheat.  371, 
4  L.  Ed.  '>64;  The  Samuel,  3  Wheat.  77, 
4   L.   Ed.   338. 


38.  Witnesses    not    to    be    examined   in 

court.— The  Samuel,  3  Wheat.  77,  4  L.  Ed. 
3381. 

39.  Presumption  as  to  order  for  further 
proof. — Where  further  evidence  was  taken 
after  the  appeal  to  this  court  was  entered, 
under  the  authority  of  an  act  of  congress 
passed  in  1803  (2  Stat,  at  L.,  244),  the 
issuing  of  the  commission  by  the  clerk  of 
the  circuit  court,  and  the  uniting  by  both 
parties  in  its  execution,  furnish  a  pre- 
sumption that  the  proper  order  was  given. 
If  not,  the  parties  have  waived  all  ob- 
jection. Rich  V.  Lambert,  12  How.  353,  13 
L.    Ed.    1017. 

40.  Review  of  decision  allowing  or  re- 
fusing further  proof. — If  the  court  below 
deny  any  order  for  further  proof  when  it 
ought  to  be  granted,  or  allow  it  when  it 
ought  to  be  denied,  and  the  objection  is 
taken  by  the  party,  and  appears  on  the 
record,  the  appellate  court  can  administer 
the  proper  relief.  The  Pizarro,  2  Wheat. 
227,  4   L.    Ed.   22fi. 

41.  Necessity  for  objection  to  order  al- 
lowing or  refusing  further  proof. — But.  if 
evidence  in  the  nature  of  furtlier  proof  be 
introduced,  and  no  formal  order  or  ob- 
jection appear  on  the  record,  it  must  be 
presumed  to  have  been  done  by  consent, 
and  the  irregularity  is  waived.  The 
Pizarro,   2  Wheat.  227,  4  L.   Ed.  226. 

42.  Compelling  allowance  of  further 
proof  by  mandamus. — Mandamus  will  not 
lie  to  the  circuit  court  of  appeals  and  to 
the  judges  thereof,  commanding  them  to 
receive  and  duly  consider  certain  deposi- 
tions or  further  proofs  taken  bv  petitioner 
on  appeal  in  an  action  pending  in  that 
court.  In  re  Hawkins,  147  U.  S.  486,  37 
L.  Ed.  251;  In  re  Morrison,  147  U.  S. 
14,  37  L.  Ed.  60;  Ex  parte  Morgan,  114 
U.  S.  174.  175,  29  L.  Ed.  135;  Ex  parte 
Burtis.  103  U.  S.  238.  26  L.  Ed.  392;  Ex 
parte  Schwab.  98  U.  S.  240.  25  L.  Ed. 
105.     See   the   title   MANDAMUS. 


ADULTERY,  FORNICATION  AND  LEWDNESS. 

BY    CLAUDE   R.    YARDLKY. 

I.    Definitions,  195. 

II.   Nature  and  Elements  of  Adultery,  195. 

A.  Private  Offense  under  the  Philippine  Code,  195. 

B.  Ma.riage  as  Essential  to  Constit-ine  the  Offense,  196. 

1.  Effect  of  Statutory  Enactment  on  Former  Holding,  196. 

2.  Knowledge  of   Woman's    Marriage    Necessary    under    Philippine 

Code,  196. 

III.  Unlawful  Cohabitation,  196. 

A.  An  Offense  Created  by  Statute,  196. 

B.  What  Constitutes  Cohabitation,  196. 

C.  An  Oft'ense  of  Continuing  Character,  197. 

IV.  Ordinance  Regulating  Residence  of  Lewd  Women,  197. 

V.   Prosecution  and  Punishment,   197. 

A.  Prosecution  under  Penal  Code  of  Philippine  Islands,  197. 

1.  By  Whom  Brought,  197. 

2.  Complaint,  197. 

B.  Jurisdiction  of  Adultery  Committed  by  Citizen  of  Cherokee  Nation,  197. 

C.  Conviction  of  Fornication  under  Indictment  for  Adultery,   197. 

D.  Punishment,  198. 

1.  Adultery  Committed  between  White  Person  and  Negro,  198. 

2.  Punished  by  Federal  Statutes,  198. 

CROSS    REFERENCES. 

See  the  titles  Bigamy  and  Polygamy;  Constitutional  Law;  Divorce; 
Dower;   Husband  and  Wife;  Incest;   Indians;   Obscenity;   Seduction. 

As  to  the  offense  of  sending  lewd  and  lascivious  matter  through  the  mails, 
see  the  title  Postal  Laws.  As  to  prosecution  under  United  States  statutes  pro- 
hibiting the  practice  of  polygamy,  see  the  title  Bigamy  and  Polygamy. 

I.      Definitions. 

Adultery  is  defined  by  the  Penal  Code  of  the  Philippine  Islands  as  follows : 
^'Adultery  is  committed  by  the  married  woman  who  lies  with  a  man  not  her  hus- 
band, and  by  him  who  lies  with  her  knowing  that  she  is  married,  although  the 
marriage  be  afterwards  declared  void."^ 

Obscene,  Lewd  and  Lascivious. — The  words  "obscene,"  "lewd"  and 
"lascivious,"  as  used  in  §  3893  of  the  Revised  Statutes  of  the  LTnited  States, 
signify  that  form  of  immorality  which  has  relation  to  sexual  impurity,  and  have 
the  same  meaning  as  is  given  them  at  common  law  in  prosecutions  for  obscene 
libel.  As  the  statute  is  highly  penal,  it  should  not  be  held  to  embrace  language 
unless  it  is  fairly  within  its  letter  and  spirit. - 

II.      Nature  and  Elements  of  Adultery. 
A.    Private  Offense  under  the  Philippine  Code. — Under  the  Penal  Code 

1.    Defined    by    Philippine    Code. — Art.  2.      Obscene,     lewd     and     lascivious. — 

433.    ch.    1,    title   9.    Penal    Code    of    Philip-  Swearingen    z\    United    States,    161    U.    S. 

pine   Islands;    Serra   z:   Mortiga,  204   U.   S.  446,  4.51,  40   L.   Ed.   76.5. 
470,    51    L.    Ed.    571. 

(195) 


196  ADULTERY,  FORNICATION  AND  LEWDNESS. 

of  the  Philippine  Islands,  the  offense  of  adultery  is  classed  as  a  private  offense.^ 
B.  Marriage  as  Essential  to  Constitute  the  Offense — 1.  Effect  op 
Statutory  Enactment  on  Former  Holding. — It  was  formerly  held,  that  to 
constitute  the  crime  of  adultery,  it  was  necessary  that  the  accused  be  married 
to  a  person  other  than  the  one  with  whom  the  offense  was  tommitted  at  the 
time  it  is  alleged  to  have  taken  place.  Thus,  a  man  who  was  single  could  not 
be  found  guilty  of  adultery  with  a  married  woman.  But  this  has  been  changed 
by  statute  which  provides  that  when  the  act  shall  be  committed  between  a  mar- 
ried woman  and  a  man  who  is  unmarried,  both  parties  to  such  act  shall  be  deemed 
guilty  of  adultery."* 

2.  Knowledge  of  Woman's  Marriage  Necessary  under  Philippine  Code. 
— Under  the  Penal  Code  of  the  Philippine  Islands,  it  is  an  essential  ingredient 
of  the  crime  of  adultery,  that  the  male  participant  should  have  knowledge  that 
the  woman  with  whom  the  adultery  was  committed  was  a  married  woman. ^ 

III.      Unlawful   Cohabitation. 

A.  An  Offense  Created  by  Statute. — The  cohabitation  of  a  male  person 
with  more  than  one  woman,  in  a  territory  or  other  place  over  which  the  United 
States  have  exclusive  jurisdiction,  is  made  an  offense  by  statute.*^ 

Statutory  Provision. — The  statute  provides,  that  if  any  male  person  here- 
after cohabits  with  more  than  one  woman  he  shall  be  deemed  guilty  of  a  mis- 
demeanor. x\nd  under  these  statutes  it  has  been  held,  that  the  offense  of  cohabit- 
ing with  more  than  one  woman  is  a  different  offense  from  bigamy  or  polygamy, 
in  that  it  declares  the  offense  to  be  a  misdemeanor  and  the  punishment  being 
less  severe  than  that  for  bigamy  or  polygamy.' 

B.  What  Constitutes  Cohabitation. — The  offense  of  cohabiting  with 
more  than  one  woman,  under  the  act  of  March  22,  1882,  may  be  committed  by 
a  man  living  in  the  same  house  with  two  women  whom  he  had  theretofore  ac- 
knowledged as  his  wives,  and  eating  at  their  respective  tables,  and  holding  them 
out  to  the  world  by  his  language  or  conduct,  or  both,  as  his  wives,  though  he 
may  not  occupy  the  same  bed  or  sleep  in  the  same  room  with  them,  or  either 
of  them,  or  have  sexual   intercourse  with  either  of  them.     The  offense  of  co- 

3.  Private  offense.— Serra  v.  Mortiga,  Snow  v.  United  States,  118  U.  S.  346,  30 
204  U.  S.  470,  51  L.  Ed.   571.  L.   Ed.   207;   Cannon  v.  United   States,  118 

4.  Necessity    for   marriage. — Respiiblica       U.  S.  355.  30  L.  Ed.  207. 

V.  Roberts.  2  Dall.  124,  1  L.  Ed.  316.  7.  Statutory  provisions  cited  and  con- 
Statutory  enactment. — 24  Stat.  L.  n.35.  strued. — Snow  v.  United  States.  118'  U. 
Petitioner  was  indicted  for  a  violation  S.  346.  30  L.  Ed.  207;  Cannon  v.  United 
of  the  third  section  of  the  act  of  March  3,  States,  116  U.  S.  55,  29  L.  Ed.  561.  But 
1887,  24  Stat.  635,  c.  397,  entitled  "An  act  see  Cannon  v.  United  States,  118  U.  S. 
to  amend  an  act  entitled  'An  act  to  amend  .355,  30  L.  Ed.  207,  vacating  the  judgment 
section  fiftj'-three  hundred  and  fifty-two  in  116  U.  S.  55,  and  dismissing  the  case 
of  the  Revised  Statutes  of  the  United  for  want  of  jurisdiction. 
States,  in  reference  to  bigamy,  and  for  Section  3  of  the  act  of  1882  is  in  these 
other  purposes.'  approved  Match  twenty-  words:  "If  any  male  person,  in  a  Ter- 
second,  eighteen  hundred  and  eighty-two."  ritory  or  other  place  over  which  the 
The  section  reads  as  follows:  "That  who-  United  States  have  exclusive  jurisdiction, 
ever  commits  adultery  shall  be  punished  hereafter  cohabits  with  more  than  one  wo- 
by  imprisonment  in  the  penitentiary  not  man,  he  shall  be  deemed  guilty  of  a  mis- 
exceeding  three  years;  and  when  the  act  demeanor,  and  on  conviction  thereof  shall 
is  committed  between  a  married  woman  be  punished  by  a  fine  of  not  more 
and  a  man  who  is  unmarried,  both  par-  than  three  hundred  dollars,  or  by  im- 
ties  to  such  act  shall  be  deemed  guilty  of  prisonment  for  not  more  than  six 
adultery,  and  when  such  act  is  committed  months,  or  by  both  said  punishments,  in 
between  a  married  man  and  a  woman  who  the  discretion  of  the  court."  This  sec- 
is  unmarried,  the  man  shall  be  deemed  tion  creates  a  new  and  distinct  offense 
guilty  of  adultery."  Ex  parte  Mayfield,  from  bigamy  or  polygamy,  one  which 
141  U.  S.  107,  108,  111,  35  L.   Ed.  635.  is   declared    to   be    a   misdemeanor     (there 

5.  Under  Philippine  Code. — Serra  v.  having  been  and  being  no  such  declara- 
Mortiga,    204    U.    S.    470.    51    U.    Ed.    571.  tion  as   to  bigamy  or  polygamy),  and   the 

6.  Statutory    offense. — 22    Stat.    L.    31;  punishment   for   which   is   much   less   than 


ADULTERY,  FORNICATION  AND  LEWDNESS.  197 

habitation,  in  the  sense  of  this  statute,  is  committed  if  there  is  a  Hving  or  dwell- 
ing together  as  husband  and  wife.^ 

C.  An  Offense  of  Continuing  Character. — Unlawful  cohabitation  is  an 
offense  of  a  continuing  character  having  duration,  and  not  an  offense  consisting 
of  an  isolated  act.^ 

IV.    Ordinance  Regulating  Residence  of  Lewd  Women. 

A  city  may  by  ordinance  forbid  any  woman  of  lewd  character  from  dwelling 
within  certain  limits,  and  such  ordinance  will  not  be  in  conflict  with  the  con- 
stitution of  the  United  States. i" 

V.      Prosecution  and  Punishment. 

A.  Prosecution  under  Penal  Code  of  Philippine  Islands — 1.  By  Whom 
Brought. — Complaint  of  Injured  Party. — Under  the  Penal  Code  of  the 
Philippine  Islands,  the  offense  of  adultery  being  classed  as  a  private  offense  is 
not  prosecuted  upon  information  by  the  public  prosecutor,  but  by  complaint  on 
behalf  of  the  injured  party. ^^ 

2.  Complaint. — A  complaint  under  the  Penal  Code  of  tht  Philippine  Is- 
lands charging  a  person  with  adultery,  is  deficient  which  does  not  specify 
the  place  where  the  crime  was  committed.  And  it  is  necessary  that  the-  com- 
plaint, charging  two  persons  with  adultery,  should  expressly  state  that  the  ac- 
cused man  knew  that  the  woman  with  whom  the  offense  was  alleged  to  have 
been  committed  was  married. ^^ 

B.  Jurisdiction  of  Adultery  Committed  by  Citizen  of  Cherokee  Na- 
tion.— Federal  courts  had  no  jurisdiction  to  punish  a  member  of  the  Cherokee 
nation  for  the  offense  of  adultery  committed  in  the  territory  of  the  nation,  as 
such  an  offense  was  exclusively  within  the  jurisdiction  of  the  courts  of  the 
Cherokee  nation.  And  being  a  crime  punishable  by  imprisonment  in  the  peni- 
tentiary, as  such  punishment  can  be  executed  in  a  penitentiary  where  hard  la- 
bor was  exacted,  it  has  been  held,  that  the  offense  of  adultery  is  not  within  the 
jurisdiction  of  the  courts  established  by  act  of  March  1,  1889,  establishing 
courts  for  the  Indian  Territor^^^•'' 

C.  Conviction  of  Fornication  under  Indictment  for  Adultery. — A  per- 
son who  is  charged  in  an  indictment  with  adultery,  may  be  acquitted  of 
the  charge  of  adultery  but  found  guilty  of  fornication,  x^nd  an  acquittal  of 
adultery  is  a  bar  to  a  prosecution   for  fornication.^^ 

the  puni'^hment  for  bigamy   or  polygamy.  all    courts,    state    and    Federal.      It    is    no 

Snow  V.  United  States,  118  U.  S.  346,  350.  part  of  the  judicial  function  to  determine 

30    L.    Ed.    207,    reaffirmed    in    Cannon    v.  the    wisdom    or    folly    of   a   regulation    by 

United  States,  118  U.  S.  355,  29  L.  Ed.  561.  the  legislative  body  in  respect  to  matters 

8.  Cohabitation. — Ex  parte  Snow,  120  of  a  police  nature."  L'Hote  v.  New  Or- 
U.  S.  274,  30  L.  Ed.  658;  Cannon  7'.  United  leans,  177  U.  S.  587.  597.  44  L.  Ed.  899. 
States.   116  U.   S.   55.  29  L.   Ed.   561.  See    the    title    DISORDERLY    HOUSES. 

9.  Continuing  character. — Ex  parte  11.  Injured  party. — Serra  v.  Mortiga, 
Nielson,  131  U.  S.  176.  185,  33  L.   Ed.  118;        204  U.   S.   470,   51   L.   Ed.   571. 

Ex  parte  Snow,  120  U.   S.  274,  281,   30   L-  "It   is   conceded   at   bar   that,   under   the 

Ed.  658.  Philippine    law,    the    offense    of    adultery, 

10.  Residence  of  lewd  women. — L'Hote  as  defined  by  the  articles  in  question,  is 
T.  New  Orleans,  177  U.  S.  587,  44  L-  Ed.  classed  as  a  private  oflfense,  and  must  be 
899.  prosecuted,    not    on    information     by    the 

"The    regulation    of   houses    of   ill-fame,  public    prosecutor,    but    by    complaint    on 

legislation   in   respect   to   women    of  loose  behalf    of    an     injured    party."       Serra    v. 

character,  may  involve  one   of   three  pos-  Mortiga,    204    U.    S.    470,    51    L.    Ed.    571. 
sibilities:       First.      absolute      prohibition;  12.     Complaint    under    Philippine    Code. 

second,   full   freedom   in    respect   to   place,  • — Serra  v.    Mortiga,   204   U.    S.   470,    51    L. 

coupled   with   rules   of   conduct;   or,   third,  Ed.  571. 

a  restriction  of  the  location  of  such  houses  13.     Ex   parte    Mayfield,    141    U.    S.    107, 

to      certain      defined      limits.        Whatever  35    L.    Ed.    635.      See,    generally,    the    title 

course    of    conduct     the     legislature    may  WIDOWS, 
adopt  is  in  a  general  way  conclusive  upon  14.     Respublica   v.    Roberts,  2   Dall.   124, 


198  ADVANCEMENTS. 

D.    Punishment — 1.  Adultery  Committed   between    White   Person    and 

jv[]jGRo A    state    may    prescribe    a    more    severe    punishment    for    the    offense 

of  adultery  and  fornication  where  committed  between  a  negro  and  a  white 
person,  than  when  both  parties  to  the  oft'ense  are  of  the  same  race  or  color. ^^ 

2.  Punished  by  Federal  Statutes. — The  punishment  for  adultery  is  pre- 
scribed by  statutes  of  the  United  States. ^^ 

ADVANCE. — "To  advance  is  to  'supply  beforehand,'  'to  loan  before  the  work 
is  done  or  the  goods  made.'  This  is  the  popular  understanding  of  the  language, 
as  well  as  the  accurate  definition. "i" 

ADVANCEMENTS. 

CROSS    REFERENCES. 

See  the  title  Descent  and  Distribution  ;  Estates  ;  Executors  and  Ad- 
ministrators ;  GiETs;  Parent  and  Child;  Trusts  and  Trustees;  Wills. 

Definition. — Money  or  property  given  by  a  father  to  his  child  or  presump- 
tive heir,  or  expended  by  the  former  for  the  latter's  benefit,  by  way  of  anticipa- 
tion of  the  share  which  the  child  will  inherit  in  the  father's  estate  and  intended  to 
be  deducted  therefrom.  It  is  the  latter  circumstance  which  differentiates  an  ad- 
vancement from  a  gift  or  a  loan.^ 

Between  Whom  Advancements  May  Be  Made. — The  doctrine  of  ad- 
vancement has  a  common  application  between  husband  and  wife  and  parent  and 
child.  2 

Presumption  of  Advancement. — Where  an  obligation  exists,  legal  or  moral, 
to  provide  for  the  grantee,  as  in  the  case  of  a  husband  for  his  wife,  or  a  father 
for  his  child,  the  eircumstance  that  the  grantee  stands  in  one  of  these  relations 
to  the  party  is  of  itself  sufficient  evidence  to  create  a  presumption  of  an 
advancement   for   the  grantee's  benefit.-" 

Presumption  where  Parent  Debtor  of  Child. — \Miere  a  parent,  being  a 
debtor  to  his  child,  makes  an  advancement  to  such  child,  it  is  presumed  to  be 
a  satisfaction  pro  tanto  of  the  debt.* 

Whether  Intended  as  Advancement  Determined  from  Recitals  in  Will. 
— Under  a  will  reciting  that  advancements  have  been  made  to  children  which 
are  charged  to  them,  but  that  an  equal  provision  shall  be  made  for  each  in  ad- 
dition to  the  advances  made  or  that  may  hereafter  be  made,  and  that  such  ad- 
vances be  treated  not  as  advances  but  as  gifts,  the  amount  advanced  to  one 
of  the  children  cannot  be  deducted  from  his  equal  share  under  the  will.^ 

1  L.  Ed.  316,  Ex  parte  v.  Neilsen,  131  U.  on    stocks,    bonds,    bullion,    bills    of    ex- 

S    176,   186.     See,  generally,  the  title  AU-  change,    or    promissory    notes    is    an    ad- 

TREFOIS,    ACQUIT    AND    CONVICT.  vance    or    loan    where    those    species    of 

15.  Persons  of  different  race. — Pace  v.  property  are  pledged  as  collaterals,  or  are 
Alabama.    106    U.    S.    583,   27    L.    Ed.    207.  hypothecated   to   secure   the   return   of  the 

16.  Statutory  enactment. — The  present  advance  or  the  payment  of  the  sum  lent, 
statute    provides    th.at    whoever    commits  is  unquestionably  true." 

a-dultery    shall    be   punished   by   imprison-  1.     Bouvier's   Law   Diet.,   vol.    1,   p.   106; 

ment    in    the    penitentiary    not    exceeding  Black's   Law   Diet.,   vol.   1,   p.   43. 
three  years.     Act  of  Mar.  3.  1877.  24  Stat.  2.    Jackson  v.  Jackson,  91  U.  S.  122, 125, 

635,    c.    397.      Ex    parte    Mayfield,    141    U.  23    L.    Ed.   258;    Glover    v.    Patten,    165    U. 

S.    107,    108.   Ill,    35    L.    Ed.    635.  5.  394,  406,  41  L.   Ed.   760. 

^^-    i?L'^''^"a7'TV^<"iin'Vi?T/r    ?H-  3.     Jackson    v.    Jackson.    91    U.    S.    122, 

^^  Burkhardt,  97  U.   S.  110.  117,  24   L.   Ed.        ^,^^  ^-^^    ^^  ^    ^^^  ^58. 

Zn    Selden    v.    Equitable    Trust    Co.,    94  *■     Glover   v.    Patten,    165     U.      S.      394, 

U     S    419.   421,   24   L.    Ed.    249,   it   is    said:  406,  41  L.  Ed.  760;  1  Pomero/s  Eq.  Juris.. 

"The  words  used  are  not  technical.    They  §    540.       See     the     title     PARENT    AND 

are,   therefore,   to   be   understood   in   their  CHILD. 

common  and  popular   sense.     Dwarris   on  5.     Adams    v.    Cowan,    174    U.    S.    800; 

Statutes.   5'.*3.     And   that,   in   common   un-  Adams  v.  Cowen,  177  U.  S.  471,  44  L.  Ed. 

derstanding,  an  advance  or  loan  of  money  851. 


AFFIDAVITS  OF  MERITS. 


199 


ADVERSE  INTEREST.— See  note  1. 

ADVERSE  PARTY.— See  note  2. 

ADVERSE  POSSESSION.— See  the  title  Limitation  of  Actions  and  Ad- 
verse Possession. 

ADVERTISEMENTS.— See  the  titles  Judicial  Sales;  Newspapers;  Sher- 
iffs' Sales  ;  Taxation.  As  to  service  of  process  by  publication  in  newspaper, 
see  the  title  Summons  and  Process.  As  to  copyrighting  advertisements,  see  the 
title  Copyright.  As  to  use  of  flag  for  advertising  purposes,  see  references  under 
Flag. 

ADVICE  OF  COUNSEL.— See  the  titles  Contempt;  False  Imprisonment; 
Libel  and  Slander;    Malicious  Prosecution;    Patents;    Witnesses. 

AFFECT. — See  note  3.  Affecting  ambassadors. — See  the  title  Ambassadors 
and  Consuls. 

AFFECTION.— See  note  4. 

AFFIDAVIT  OF  MERITS.— See  the  title  Pleading. 


1.  Adverse  interest. — See  Jenkins  v. 
International  Bank,  106  U.  S.  571,  574,  575, 
27  L.  Ed.  304.  And  see  the  title  BANK- 
RUPTCY. 

2.  Adverse  party. — In  Pojdras  de  la 
Lande  v.  The  Treasurer  of  Louisiana.  17 
How.  1,  2,  15  L.  Ed.  9.3,  it  is  said:  "The 
practice  is  founded  upon  the  language  of 
the  act  of  1789,  c.  20.  which  directs  the 
adverse  party  to  be  cited,  on  a  writ  of 
error  or  appeal.  The  adverse  party  is 
the  one  which  appeared  in  the  suit,  and 
who  prosecuted  or  defended  it,  and  in 
whose  favor  the  judgment  was  rendered, 
which  the  plaintiff  in  the  writ  of  error 
seeks  to  reverse.''  See.  also,  the  title 
APPEAL  AND  ERROR. 

3.  Affect.— In  Ryan  v.  Carter,  93  U.  S. 
78,  84,  23  L.  Ed.  807,  it  is  said:  'Tt  is 
unnecessary  to  give  the  various  defini- 
tions of  the  word  affect.  It  is  enough  to 
saj\  that  it  is  often  used  in  the  sense  of 
acting     injuriously     upon      persons      and 


things;    and    in    this    sense,    we   are    all    of 
opinion,   it   was   used   in    this   proviso." 

4.  Affection. — In  Connecticut  Mut.  Life 
Ins.  Co.  c'.  Union  Trust  Co..  112  U.  S. 
250,  257,  28  L.  Ed.  708,  it  is  said:  "The 
insured  was  directed  to  answer  Yes  or 
No.  as  to  whether  he  had  ever  had  cer- 
tain diseases,  among  which  was  included 
'affection  of  liver.'  It  is  difficult  to  define 
precisely  what  was  meant  by  'affection 
of  liver,'  as  a  disease,  and  the  difficulty  is 
not  removed  by  the  evidence  of  the  only 
physician  who  testified  upon  the  subject. 
While  he  would  ordinarily  understand 
affection  of  the  liver  to  mean  some 
chronic  disease  of  that  organ,  yet  it  is 
not,  he  says,  strictly  a  medical  term,  but 
a  general  expression,  which,  by  itself, 
may  include  acute  as  well  as  chronic 
disease  of  the  liver.  He  describes  it  as 
'a  big  bag  to  put  many  diseases  in,'  and 
observes  that  it  'would  cover  anything 
in  the  world  (he  m.  tter  with  the  liver'" 
See,  also,  the  title   INSURANCE. 


AFFIDAVITS. 

BY  JAMES  F.  MINOR. 

I.    Scope  of  Title,  200. 

II.    Authority  to  Administer,  200. 
in.    Who  May  Make  and  How  Made,  201. 
IV.    Amendment,  202. 

V.    Affidavit  of  Merits  or  Defense,  202. 
VI.    Fee  for  Administration  and  Record,  202. 
VII.   Use  in  Evidence,  202. 

A.  Admissibility,  202. 

B.  Weight,  202. 

CROSS    REFERENCES. 

See  the  titles  Depositions  and  Interrogatories;  E^vidence;  Notary  Public; 
Oath;  Perjury;  Pleading;  Witnesses. 

Affidavits  in  particular  proceedings,  see  the  titles  xA.ppeal  and  Error  ;  Attach- 
ment and  Garnishment;  and  other  specific  titles.  Affidavits  as  to  handwrit- 
ing, see  the  title  Handwriting.  Affidavits  as  to  value  in  controversy,  see  the 
title  Appeal  and  Error.  Affidavits  as  evidence  on  appeal,  see  the  title  Appeal 
.\ND  Error.  Affidavit  for  commitment,  see  the  titles  Commitment  and  Pre- 
liminary Examination  of  Accused;  Criminal  Law;  Warrants.  Affidavit 
for  continuance,  see  the  title  Continuances.  Affidavit  for  new  trial,  see  the 
title  New  Trials.  Affidavits  for  removal  of  cause,  see  the  title  Removal  OF 
Causes.  Affidavit  of  loss  of  written  instrument,  see  the  title  Lost  Instruments 
and  Records.  Affidavits  in  forma  pauperis,  see  the  titles  Appeal  and  Error; 
Costs.  In  taking  and  perfecting  appellate  proceedings,  see  the  title  Appeal 
and  Error.  Proof  of  property  in  prize  cases,  see  the  title  Prize.  Verification 
of  pleadings,  see  the  title  Pleading. 

I.      Scope   of  Title, 

This  title  is  intended  to  include  formal  requirements  in  regard  to  the  making 
and  taking  of  affidavits,  ex  parte,  for  use  in  legal  proceedings,  their  amendment 
and  use  in  evidence  generally.  It  excludes  the  consideration  of  affidavits,  as  to 
substance  and  contents,  for  the  purposes  of  particular  proceedings,  such  as  ar- 
rest or  warrant,  attachment,  continuance,  appeals,  chattel  mortgages,  to  secure 
exemption  from  costs,  verification  of  pleadings,  etc.,  for  which  see  the  specific 
titles. 

II.    Authority  to  Administer. 

An  affidavit  to  hold  to  bail  has  been  held  sufficient  where  sworn  to  before  the 
Lord  Mayor  of  London. ^  Affidavits  to  be  used  as  further  proof,  in  causes  of 
admiralty  and  maritime  jurisdiction,  in  this  court,  must  be  taken  by  a  commis- 
sion.2     A  commissioner   of  die   LTnited   States  circuit  court   could  not,   in   1876, 

1.    Lord   Mayor   of  London.— Tavlor   v.  same    purpose.      Tavlor   v.    Knox,    1    Dall. 

Knox,  1  Dall.  158,  1  L.  Ed.  80.  158,  1   L.   Ed.   SO.     See.   R-enerallv,   the  title 

As    it    appears    by    the    case    in    8    Mod.  BAIL   AND    RECOGNIZANCE. 

323   (Walrond  v.  Van   Moses),  that  an  af-  2.     Commission.— The    London    Packet, 

fidavit  of  a  plaintiff,  before  a  notary  pub-  2  Wheat.  372,  4  L.   Ed.  264;  The  Frances, 

lie   in   Holland,   was    deemed   sufficient    to  8   Cranch   348,   3   L.   Ed.   585. 

hold    the    defendant    to    bail,    the    like    af-  Where    the    affidavits    produced    on    the 

fidavit,   sworn   to   before    the    Lord    Mayor  order    for    further   proof    are   positive,    but 

of    London,    should    be    sufficient    tor    the  their     credibility     impaired     by    the     non- 

(200) 


AFFIDAVITS. 


201 


take  the  affidavit  to  the  report  of  an  officer  of  a  national  bank,  and  hence  a  state 
notary  could  not  do  so.  being  given  the  same  authority  under  act  of  Aug.  15, 
1876,  c.  3C4.-^  If  a  state  magistrate  should  take  an  affidavit,  under  an  act  of  con- 
gress expressly  giving  him  the  power  to  do  so,  it  would  be  a  lawful  affidavit,  by 
one  having  competent  authority ;  and  as  much  so  as  if  he  had  been  specially 
appointed  a  commissioner,  under  the  law  of  the  United  States  for  that  purpose.'* 

III.    Who  May  Make  and  How  Made.    ■ 

The  making  of  an  affidavit  by  an  agent  or  attorney  necessarily  implies  that 
he  may  not  be  able  to  make  it  on  positive  knowledge,  where  the  statute  does 
not  require  it.^ 


production  of  letters  mentioned  in  the 
affidavits,  a  second  order  for  further  proof 
will  be  allowed,  in  the  appellate  court. 
The  Frances,  8  Cranch  348,  3  L.  Ed.  585. 
See  the   title  ADMIRALTY,  ante,  p.   117. 

3.  Commissioners  of  United  States 
circuit  courts,  notaries  and  justices. — 
United  States  v.  Curtis,  107  U.  S.  671, 
674.  27   L.    Ed.   534. 

The  power  of  commissioners  of  the 
United  States  circuit  courts  did  not  in 
1876.  extend  to  the  taking  of  oaths  to  re- 
ports by  ofl^cers  of  national  banks.  They 
could  take  affidavits  when  required,  or 
allowed  in  an\'  civil  cause  in  a  circuit  or 
district  court,'  Rev.  Stat..  §  945;  Act  of 
Feb.  20,  1812,  c.  25,  Act  of  March  1.  1817, 
c.  30;  or  administer  oaths  where,  in  the 
same  state,  under  the  laws  of  the  United 
States,  oaths,  in  like  cases,  could  be  ad- 
ministered bj^  justices  of  the  peace.  Rev. 
Stat..  §  1778;  or  they  could  take  evidence, 
affidavits,  and  proof  of  debts  in  proceed- 
ings in  bankruptcy.  Rev.  Stat.,  §§  5003. 
5076;  Act  of  March  2,  1867,  c.  176;  § 
3  of  the  Act  of  July  27.  1868.  c.  258;  § 
20  of  the  Act  of  June  22.  1874.  c.  390. 
United  States  v.  Curtis,  107  U.  S.  671, 
674,   27   L.    Ed.    534. 

.\  notary  public  appointed  by  a  state 
had  no  authority  to  administer  an  af- 
fidavit under  a  law  of  the  United  States 
prior  to  the  act  of  Feb.  26,  1881,  c.  82, 
declaring  "that  the  oath  or  affirmation 
required  by  §  5211  of  the  Revised  Stat- 
utes, verifying  the  returns  made  by  na- 
tional banks  to  the  comptroller  of  the 
currencJ^  when  taken  before  a  notary  pub- 
lic properly  authorized  and  commissioned 
by  the  state  in  which  such  notary  resides 
and  the  bank  is  located,  or  any  other 
officer  having  an  official  seal,  authorized 
in  such  state  to  administer  oaths,  shall  be 
a  sufficient  verification,  as  contemplated 
by  said  §  5211:  Provided,  that  the  of- 
ficer administering  the  oath  is  not  an  of- 
ficer of  the  bank."  United  States  v.  Cur- 
tis.   107    U.    S.    671.    676.    27    L.    Ed.    534. 

Congress  intended  by  §  1778,  Rev.  Stat., 
to  give  notaries  public  in  their  respective 
states  the  same  authority,  in  the  admin- 
istration of  oaths,  as  is  given,  under  the 
"laws  of  the  United  States,  to  justices  of 
the  peace   in  the  same   states;  and   to   no- 


taries public  in  the  District  of  Columbia 
the  same  authority,  in  administering 
oaths,  which,  under  the  laws  of  the  United 
States,  might  be  exercised  by  justices  of 
the  peace  in  this  district.  But  to  justices 
of  the  peace,  in  the  several  states,  such 
authority  had  not  been  given  by  any  pro- 
vision in  the  Revised  Statutes,  or  by  any 
act  of  Congress  prior  to  their  adoption. 
United  States  v.  Curtis,  107  U.  S.  671, 
674.  27   L.   Ed.   534. 

4.  State  officer  authorized  by  federal 
statute. — United  States  v.  Bailey,  9  Pet. 
238.   9    L.    Ed.    113. 

There  was  no  statute  of  the  United 
States,  in  1835,  which  expressly  author- 
ized any  justice  of  the  peace  of  a  state, 
or  any  officer  of  the  national  government, 
judicial  or  otherwise,  to  administer  an 
oath  in  support  of  any  claim  against  the 
United  States,  under  the  act  of  1823.  The 
secretary  of  the  treasury,  in  order  to 
carry  into  effect  the  authority  given  to 
liim  to  liquidate  and  pay  the  claims  re- 
ferred to  in  the  act  of  1832,  had  estab- 
lished a  regulation,  authorizing  affidavits 
made  before  any  justice  of  the  peace  of 
a  state,  to  be  received  and  considered  in 
proof  of  claims  under  the  act.  By  im- 
plication, he  possessed  the  power  to  make 
such  a  regulation;  and  to  allow  such  affida- 
vits in  proof  of  claims  under  the  act  of 
1832;  it  was  incident  to  his  duty  and  au- 
thority in  settling  claims  under  that  act. 
United  States  v.  Bailey,  9  Pet.  238,  9  L. 
Ed.     113. 

5.  Agent. — Chicago,  etc..  R.  Co.  v.  Ohle, 
117  U.  S.  123,  129,  29  L.  Ed.  837;  United 
States  V.  Bryant,  111  U.  S.  499,  503,  28  L. 
Ed.    496. 

As  the  United  States  can  act  only  by 
agents,  where  the  language  of  a  statute 
does  not  require  that  such  an  agent  as  the 
special  agent  of  the  General  Land  Of- 
fice should  swear  in  any  stronger  form 
that  the  property  belongs  to  the  United 
States,  or  should  set  forth  the  grounds 
of  his  knowledge,  information,  or  be- 
lief, it  is  sufficient  if  he  swears  "to  the 
best  of  his  knowledge,  information,  and 
belief."  United  States  v.  Bryant.  Ill  U. 
S.  499.  503.  28  L.  Ed.  496.  See  post. 
"Weight,"  VII,  B. 


202 


AFFIDAJ'ITS. 


IV.     Amendment. 

Where  a  statute  (§  1483  of  the  Code  of  Mississippi  of  1871)  expressly  au- 
thorizes amendments  to  defective  affidavits,  there  is  no  objection  on  principle, 
under  such  a  provision,  to  an  amendment  adding  a  new  ground  for  the  attach- 
ment. Where  defendant  was  not  prejudiced,  the  allowance  of  such  amendment 
is  no  ground  of  exception.*"' 

V.   Affidavit  of  Merits  or  Defense. 

See  the  title  Pleading. 

VI.    Fee  for  Administration  and  Record. 

The  clerk  of  a  circuit  court  is  entitled  to  a  fee  of  ten  cents  for  administering 
affidavits  to  witnesses  respecting  their  mileage  and  attendance,  but  that  is  no 
reason  for  preserving  the  affidavit  as  a  part  of  the  records  of  the  court." 

VII.    Use  in  Evidence. 

A.  Admissibility. — An  affidavit  filed  in  a  cause  to  obtain  an  order  of  court 
in  affiant's  favor  on  a  certain  point,  is  competent  evidence  against  him  on  the 
trial  of  another  issue. ^  While  the  rule  that  interest  disqualified  a  witness  pre- 
vailed, still,  on  incidental  questions,  which  did  not  aiTect  the  issue  to  be  tried 
by  the  jury,  such  as  a  continuance  or  the  introduction  of  secondary  evidence  of 
a  lost  paper,  the  affidavit  of  a  party  was  received  as  now.^ 

B.  Weight. — Of  affidavit  of  merits  or  defense,  see  the  title  Pleading. 

An  affidavit  filed  under  a  statute  is  properly  rejected  when  not  filed 'within  the 
time  prescribed  by  the  act.^*^ 

A  single  affidavit  is  insufficient  to  contradict  a  recital  in  a  record  of  court. 
An  affidavit  of  a  witness  does  not  import  absolute  verity,  as  the  record  does.^^ 
An  affidavit  having  been  filed  in  a  cause  by  a  corporation  defendant  as  a  ground 
for  obtaining  an  order  of  the  court  in  its  favor,  was  competent  evidence  against 
it  on  the  trial  of  another  issue;  and  the  fact  that  it  was  sworn  on  information 
and  belief  by  an  officer,  affected  only  its  weight  and  not  its  competency. ^^ 


6.  Amendment  adding  substantial  aver- 
ment.— Fitz  Patrick  t'.  Flannagan,  106  U. 
S.  648.  650,  27  L.  Ed.  211.  See,  generally, 
the  titles  AMENDMENTS;  ATTACH- 
MENT   AND    GARNISHMENT. 

7.  Fee  for  administration,  and  record. 
—United  States  r.  Taylor,  147  U.-S.  695. 
697,  37  L.  Ed.  335.  See  the  titles  AP- 
PEAL AND  ERROR;  CLERKS  OF 
COURT;  OATH;  RECORDS;  WIT- 
NESSES. 

8.  Affidavit  made  for  trial  of  another 
issue. — Chicasjo,  etc.,  R.  Co.  v.  Olile.  117 
U.  S.  123.  129.  29  L.  Ed.  837.  See  post. 
"Weight."  VTI.  B. 

9.  When  interest  was  disqualification, 
affidavit  on  collateral  point  competent. 
Tayloe  v.  Riggs,  1  Pet.  591.  7  L.  Ed. 
275. 

"The  objection  to  receiving  the  affida- 
vit of  the  party  is,  that  no  man  can  be 
a  witnef-s  in  his  own  carse.  This  is,  un- 
doubtedly, a  sound  rule,  which  ought 
never  to  be  violated.  But  many  collateral 
questions  arise  in  the  progress  of  a 
cause,  to  which  the  rule  does  not  apply. 
Questions  which  do  not  involve  the  mat- 
ter in  controversy,  but  matter  which  is 
nuxiliary  to  the  trial,  which  facilitate   the 


preparation  for  it,  often  depend  on  the 
oath  of  the  party.  An  affidavit  to  the 
materiality  of  a  witness  for  the  purpose 
of  obtaining  a  continuance;  or  a  com- 
mission to  take  his  deposition,  or  an  af- 
fidavit of  his  inability  to  attend;  is  usu- 
ally made  by  the  party,  and  received  with- 
out objection.  So,  affidavits  to  support 
a  motion  for  a  new  trial  are  often  re- 
ceived. These  cases,  and  others  of  the 
same  character  which  might  be  adduced, 
show,  that  on  many  incidental  questions 
which  are  addressed  to  the  court,  and  do 
not  affect  the  issue  to  be  tried  by  the 
jury,  the  affidavit  of  the  party  is  re- 
ceived." Tavloe  v.  Riggs,  1  Pet.  591,  596, 
7  L.  Ed.  275.  See  the  title  WIT- 
NESS. 

10.  When  not  filed  in  time  rejected. — 
McPhoul  V.  Lapsley.  20  Wall.  264,  22  L. 
Ed.   344. 

11.  "Absolute  verity  not  imported. — Ev- 
ans V.  Stettnisch.  149  U.  S.  605,  37  L.  Ed. 
866. 

12.  Affidavit  upon  another  issue,  on  in- 
formation and  belief. — Chicago,  etc.,  R. 
Co.  V.  Ohle.  117  U.  S.  123.  129,  29  L.  Ed. 
837;  Pope  v.  Allis.  115  U.  S.  363,  29  L. 
Ed.   393. 


AFTERBORX  CHILDREN. 


203 


AFFINITY. — See  the  titles  Descent  and  Distribution;  Incest;  Marriage; 
Wills.     As  a  disqualification,  see  the  titles  Judges  ;    Jury. 

AFFIRMANCE.— See  the  title  Appeal  and  Error. 

AFFIRMATION.— See  the  titles  Oath  ;    Witnesses. 

AFFRAY. — See  the  title  Assault  and  Battery. 

AFFREIGHTMENT.— See  the  titles  Carriers;    Ships  and  Shipping. 

AFORESAID.— See,  also.  Said.     See  note  1. 

AFTER. — See  the  title  Time.  "The  general  current  of  the  modern  author- 
ities on  the  interpretation  of  contracts,  and  also  of  statutes,  where  time  is  to  be 
computed  from  a  particular  day  or  a  particular  event,  as  when  an  act  is  to  be 
performed  within  a  specified  period  from  or  after  a  day  named,  is  to  exclude  the 
day  thus  designated,  and  t  oinclude  the  last  day  of  the  specified  period. ^ 

AFTER- ACQUIRED  PROPERTY.— See  the  titles  Assignments;  Chattel 
Mortgages  and  Conditional  Sales;  Executions;  Judgments  and  Decrees; 
Mortgages  and  Deeds  of  Trust  ;  Pledge  and  Collateral  Security  ;  Public 
Lands  :  Sales. 

AFTER-ACQUIRED  TITLE.— See  the  title  Estoppel. 

AFTERBORN  CHILDREN.— See  the  titles  Descent  and  Distribution; 
Wills. 


1.  Aforesaid. — In  United  States  v. 
Reese,  92  U.  S.  214.  242,  23  L.  Ed.  563, 
the  court  said:  "To  illustrate:  Section  4 
enacts,  that  if  any  person  by  unlawful 
means  shall  hinder  or  prevent  any  citizen 
from  voting  at  any  election  'as  aforesaid,' 
he  shall  be  subject  to  fine  and  imprison- 
ment. Wliat  do  the  words,  'as  aforesaid,' 
mean?  They  mean,  for  the  causes  and 
pretenses  or  upon  the  grounds  in  the  first 
and  second  sections  mentioned;  that  is, 
on  account  of  the  race  or  color  of  the 
person  so  prevented.  All  those  necessary 
words  are  by  this  expression  incorporated 
into  the  fourth  section.  The  same  is  true 
of  the  words  'the  wrongful  act  or  omis- 
sion as  aforesaid,'  and  'the  person  so 
offering  and  failing  as  aforesaid,'  in  the 
third  section.  By  this  application  of  the 
words  'as  aforesaid'  they  become  perti- 
nent and  pointed.  Unless  so  construed, 
they  are  wholly  and  absolutely  without 
meaning.  No  other  meaning  can  possibly 
be   given    to   them." 

The  United  States  chartered  a  vessel 
for  a  voyage  aforesaid,  at  a  stipulated 
price  per  diem  for  every  day  when  so  em- 
ployed. It  was  held,  that  the  contract 
only  embraced  the  employment  of  the 
vessel  when  on  such  voyage,  and  did  not 
extend  to  demurrage.  Mitchell  v.  United 
States,   96   U.    S.    162,   24    L.    Ed.    702. 

2.  Sheets  v.  Selden,  2  Wall.  177,  190,  17 
L.  Ed.  822.  See,  also,  Arnold  v.  United 
States,  9  Cranch  104,  119.  3  L.   Ed.  671. 

A  statute  was  as  follows:  "Be  it 
enacted,  etc.,  that  every  last  will  and  tes- 
tament executed  in  due  form  of  law,  after 
the  first  day  of  June  next,  shall  be  con- 
strued with  reference  to  the  real  estate 
and  personal  estate  comprised  in  it,  to 
speak  and  take  effect  as  if  it  had  been 
executed  on  the  day  of  the  death  of  the 
testator  or  testatrix,  urjess  a  contrary  in- 
tention shall  appear  by  the  will."  In  con- 
struing this  statute,  the  court  said:     "The 


words  'after  the  first  day  of  June  next' 
refer  to  and  qualify  the  words  "executed 
in  due  form  of  law,'  which  they  follow, 
just  as  in  the  same  section  the  words  'on 
the  day  of  the  death  of  the  testator'  refer 
to  and  qualify  the  word  'executed.'  "  Car- 
roll V.  Carroll,  16  How.  275,  281,  14  L. 
Ed.  936.     See,   also,  the  title   WILLS. 

After  my  debts  are  paid. — The  words 
in  a  will,  "after  my  debts  and  funeral 
charges  are  paid,  I  devise  and  bequeath  as 
follows,"  amount  to  a  charge  upon  the 
real  estate  for  the  payment  of  debts.  In 
Fenwick  v.  Chapman,  9  Pet.  461,  469.  9 
L.  Ed.  193,  the  court  said:  "In  the  case 
before  us,  the  word  'after'  implies,  as 
strongly  as  any  word  in  the  English  lan- 
guage can  do,  that  the  payment  of  debts 
is  a  condition  precedent  to  the  absolute- 
ness of  any  entire  devise  in  the  will." 
See,   also,   the   title   WILLS. 

After  completion. — A  railroad  company 
was  exempt  from  taxation  "for  ten  years 
after  completion  of  said  road  within  the 
limits  of  this  state."  It  was  held,  that 
the  company  was  not  exempt  until  the 
completion  of  the  road.  The  court  said: 
"In  their  natural  and  their  legal  meaning, 
the  words  'for  ten  years  after  the  comple- 
tion of  said  road'  as  distinctly  exclude  the 
time  preceding  the  coriipletion  of  the 
road,  as  the  time  succeeding  the  ten  years 
after  its  completion.  If  the  legislature 
had  intended  to  limit  the  end  only,  and 
not  the  beginning,  of  the  exemption,  its 
purpose  could  have  been  easily  expressed 
by  saying  'until'  instead  of  'for,'  so  as  to 
read  'until  ten  years  after  the  completion,' 
leaving  the  exemption  to  begin  imme- 
diately upon  the  granting  of  the  charter." 
Vicksburg,  etc.,  R.  Co.  v.  Dennis.  116  U. 
S.   665.  669,  29   L.    Ed.   770. 

After  the  date  of  appointment. — See  the 
title  ARMY  AND  NAVY.  And  see 
United  States  v.  Moore,  95  U.  S.  760,  24 
L.    Ed.   588. 


204  AGREED  CASE. 

AGE.— As  to  proof  of  age.  see  the  titles  Hearsay  Evidence;  Infants;  Ped- 
igree.   . 

AGENCY. — See  the  title  Principal  and  Agent. 

AGGRAVATION. — See  the  titles  Assault  and  Battery;  Exemplary  Dam- 
ages. 

AGGREGATION. — See  the  title  Patents.  As  to  whether  aggregation  of 
several  claims  is  permissible  to  make  up  jurisdictional  amount,  see  the  titles  Ap- 
peal and  Error  ;  Courts. 

AGGRIEVED  PARTY. — See  the  title  Appeal  and  Error. 

AGISTMENT.— See  the  title  Animals. 

AGREED.— See  note  1. 

AGREED  CASE. 

BY    R.    C.    WALKER. 

I.   Definition,  Nature  and  Object,  204. 

II.  Right  of  Parties  to  Submit  Agreed  Case,  205. 

III.  Nature  of  Controversy,  205. 

IV.  Consent  of  Parties,  205. 
V.    Contents,  205. 

VI.    Operation  and  Effect,  206. 

A.  As  \\'aiver  of  Jury.  206. 

B.  xA.s  Waiver  of  Questions  of  Pleading  or  Form  of  Action,  206. 

C.  As  Enabling  Court  of  Law  to  Assume  Equity  Jurisdiction.  207. 

D.  Court  Not  Concluded  by  Statement  of  Legal  Conclusions,  207. 

VII.    Submission  of  Controversy,  207. 

A.  Definition  and  \\'hat  Constitutes.  207. 

B.  Right  to  Submit— Waiver  of  Jury.  208. 

C.  Submission  Must  Be  in  Writing,  208. 

D.  Court  Assumes  Character  of  Arbitrator,  208. 

CROSS  REFERENCES. 

See  the  titles  Appeal  and  Error  ;  Exceptions,  Bill  oe,  and  Statement  oe 
Facts  on  Appeal;    Findings    of    Courts;    Jury;    Stipulations;     Verdict. 

As  to  substitution  of  agreed  case  for  bill  of  exceptions,  see  the  title  Exceptions, 
Bill  OF,  and  Statement  of  Facts  on  Appeal ;  Findings  of  Courts;  Jury; 
Stipulations:  Verdict.  As  to  substitution  of  agreed  case  for  bill  of  excep- 
tions, see  the  title  Exception.s,  Bill  of,  and  Statement  of  Facts  on  Appeal. 
As  to  submission  to  arbitration,  see  the  title  Arbitration  and  Award.  As  to 
review  of  agreed  case,  see  the  title  Appeal  and  Error. 

I.    Definition,  Nature  and  Object. 

_  An  agreed  statement  of  facts  is  a  statement  of  facts  agreed  on  by  the  par- 
ses as  true  and  correct,  and  submitted  to  a  court  for  a  ruling  on  the  law  of 
the  case.- 

Analogous  to  Special  Verdict. — An  agreed  case  upon  which  the  judgment 
i ;  founded  is  considered  as  analogous  to  a  special  verdict.^ 

Object.— See  post,  "Operation  and  Effect,"  VL 

1.  _    Dismissed       agreed.— The       words  Haldeman  v.  United  States,  91  U.   S.  584, 

cv'f.missed    agreed,    entered    as    the    judg-  23  L.   Ed.  433. 

nipiit    of   a    court,    do   not   themselves   im-  2.  Black's  Law  Dictionary,  p.  55. 

port   an   agreement  to  terminate   the   con-  3.    Analogous    to    special    verdict.— Rai- 

troversy,  nor  imply  an  intention  to  merge  mond    v.    Terrebonne    Parish,    132    U.    S. 

the     cause     of     action     in     the     judgment.  192.   33    L.   Ed.   309;    Burr  v.   Des   Moines, 


AGREED  CASE. 


205 


II.    Right  of  Parties  to  Submit  Agreed  Case. 

Parties  have  the  right  to  submit  their  case  to  the  court  upon  an  agreed  state- 
ment of  facts,  independent  of  any  legislative  provision  on  the  subject.^  Where 
the  facts  are  without  dispute,  and  agreed  between  the  parties,  a  statement  of  the 
same  may  be  drawn  up  and  entered  on  the  record,  and  submitted  directly  to 
the  court,  for  its  decision,  without  the  intervention  of  a  jury.^ 

III.    Nature  of  Controversy. 

The  controversy   submitted   upon  an  agreed   case   must  be   real.^ 

IV.    Consent  of  Parties. 

Agreed  statements  rest  upon  the  consent  of  the  parties.^  And  under  certain 
circumstances,  the  court  will  decline  to  accept  the  submission  of  the  cause  against 
the  wishes  of  parties  collaterally  interested  in  the  decision.''' 

V.    Contents. 

An  agreed  case  must  state  ultimate  facts,  presenting  questions  of  law  only. 
It  must  not  be  a  recital  of  evidence  or  circumstances  which  may  tend  to  prove 
the  facts  stated  or  from  which  they  may  be  inferred.^     An  agreed  case  should 


etc.,  R.  Co.,  1  Wall.  99,  17  L.  Ed.  561; 
Norris  v.  Jackson,  9  Wall.  125,  19  L.  Ed. 
608;  Martinton  v.  Fairbanks.  112  U.  S. 
670,  28  L.  Ed.  862;  Glenn  v.  Fant,  134  U. 
S.  398,  33  L.  Ed.  969;  Davenport  v. 
Paris,  136  U.  S.  580,  34  L.  Ed.  548;  United 
States,  etc..  Co.  v.  New  Mexico,  183  U. 
S.  535.  46  L.  Ed.  315;  Wilson  v.  Mer- 
chants' Loan,  etc.,  Co..  183  U.  S.  121, 
46  L.  Ed.  113;  Supervisors  v.  Kennicott, 
103  U.   S.   554.  26   L.    Ed.   486. 

3.  Right  of  parties. — "In  the  district 
court,  in  a  suit  otherwise  triable  by  a  jury, 
the  parties  may,  by  stipulation,  waive  a 
jury  and  agree  on  a  statement  of  facts, 
and  submit  the  case  to  the  court  thereon, 
for  it?  derision  as  to  the  law.  Hender- 
son's Distilled  Spirits,  14  Wall.  44.  53,  20 
L.  Ed.  815.  That  might  have  been  done 
also  in  the  circuit  co.urt,  without  au}^  stat- 
ute to  that  effect.  Campbell  v.  Bovreau, 
21  How.  223.  226.  227,  16  L.  Ed.  96." 
Rogers  v.  United  States.  141  U.  S.  548,  554, 
35   L.   Ed.   853. 

4.  Suvdam  v.  Williamson.  20  How.  427, 
434,  15  L.  Ed.  978;  United  States  v.  Elia- 
son,  16  Pet.  291,  10  L.  Ed.  968;  Stimp- 
son  V.  Railroad  Co..  10  How.  329.  13  L. 
Ed.  441;  Graham  v.  Bayne,  18  How.  60. 
15  L.  Ed.  265;  Faw  v.  Roberdeau,  3 
Cranch  174,  2  L.  Ed.  402;  Brent  v.  Chap- 
man. 5  Cranch  358,  3  L.  Ed.  125;  In- 
surance Co.  V.  Tweed,  7  Wall.  44,  19  L. 
Ed.   65. 

As  to  right  of  parties  to  submit  the 
trial  of  both  facts  and  law  to  the  court, 
see  post.  "Right  to  Submit — Waiver  of 
Jury,"   VIT.    B. 

5.  Moot  case. — The  court  cannot  con- 
sent to  determine  a  controversy  in  which 
the  plaintiff  in  error  has  become  the  do- 
minus  litis  on  both  sides.  South  Spring 
Gold  Co.  V.  Amador  Gold  Co..  145  U. 
S.  300.  See  the  titles  ACTIONS,  ante.  p. 
96;  APPEAL  AND  ERROR. 


6.  Pomeroy  v.  Bank,  1  Wall.  592,  17  L. 
Ed.    638. 

"The  facts  cannot  be  said  to  be  agreed 
while  the  parties  are  at  issue  as  to  the 
admissibility  or  competency  of  the  evi- 
dence." Pomeroy  v.  Bank,  1  Wall.  592, 
603,  17   L.   Ed.   638. 

7.  Parties  collaterally  interested. — "The 
showing  made  on  this  motion  satisfies  us 
that  this  case,  and  the  one  which  follows 
it  on  the  docket,  were  brought  here  for 
a  determination  of  the  questions  on  which 
depends  the  title  of  the  St.  Louis  Smelt- 
ing and  Refining  Company  to  its  addi- 
tion to  Leadville;  'that  the  decision  of 
these  suits  will  dispose  of  a  large  num- 
ber of  others  now  pending  in  the  court 
below;  that  when  the  suits  were  begun 
below  all  the  defendants  united  in  the 
employment  of  counsel  to  present  their 
defense,  and  contributed  to  a  common 
fund  for  the  payment  of  the  expenses  of 
the  litigation;  that  since  these  cases  have 
been  docketed  here  the  parties  to  this 
have  come  to  an  amicable  understanding 
in  respect  to  the  subject  matter  of  their 
particular  litigation,  under  which  this  sub- 
mission has  been  made,  through  new 
counsel  employed  in  behalf  of  the  de- 
fendants in  error  and  without  the  con- 
currence of  those  interested  in  the  other 
case  and  the  suits  still  pending  below. 
The  questions  involved  are  important.  Un- 
der these  circumstances  we  think  we  ought 
not  to  accept  the  submission  of  the  cause 
against  the  wishes  of  those  collaterally 
interested  in  the  decision  that  may  be 
made.'  "  Smelting  Co.  v.  Kemp,  103  U. 
S.   666.   26   L.   Ed.   313.     ' 

8.  Contents. — Raimond  z'.  Terrebonne 
Parish.  132  U.  S.  192,  33  L.  Ed.  309;  Burr 
V.  Des  Moines,  etc.,  R.  Co..  1  Wall.  99, 
17  L.  Ed.  561;  Norris  v.  Jackson,  9  Wall. 
125,  19  L.  Ed.  608;  Martinton  v.  Fair- 
banks. 112  U.  S.  670,  28  L.  Ed.  862;  Glenn 


206 


AGREED  CASE. 


state  every  fact  material  to  a  determination  of  the  rights  of  the  parties. ^ 

VI.    Operation  and  Effect. 

A.  As  Waiver  of  Jury. — The  submission  of  a  civil  cause  for  trial  on  an 
agreed  statement  of  facts  operates  to  waive  a  jury  trial. ^'^ 

B.  As  Waiver  of  Questions  of  Pleading  or  Form  of  Action. — A  case 
stated,  in  an  action  at  law,  doubtless  waives  all  questions  of  pleading^i  or  of 


V.  Fant,  134  U.  S.  398,  33  L-  Ed.  969; 
Davenport  v.  Paris,  136  U.  S.  580,  3^  L. 
Ed.  548;  Wilson  v.  Merchants'  Loan,  etc., 
Co..  183  U.  S.  121,  46  L.  Ed.  113;  Lehnen 
V.  Dickson,  148  U.  S.  71,  77.  37  L.  Ed. 
873;  St.  Louis  v.  Western,  etc.,  Tel.  Co.,  166 
U.  S.  388,  41  L.  Ed.  1044;  United  States,  etc., 
Co.  V.  New  Mexico,  183  U.  S.  535,  46 
L.  Ed.  315;  United  States  v.  EHason,  16 
Pet.  291.  10  L.  Ed.  968;  Pennock  v.  Dia- 
logue, 2  Pet.  1,  7  L.  Ed.  327;  United  States 
V.  King,  7  How.  833,  844.  12  L.  Ed.  934; 
Bond  V.  Brown,  12  How.  254.  256.  13  L. 
Ed.  977;  Weems  v.  George,  13  How.  190, 
14  L.  Ed.  108;  Arthurs  v.  Hart.  17  How. 
6,  7,  15  L.  Ed.  30;  Graham  v.  Bayne,  18 
How.  60,  15  L.  Ed.  265;  Pomeroy  v.  Bank, 
1  Wall.  592,  17  L.  Ed.  638;  Guild  v.  Fron- 
tin,  18  How.  135.  15  L.  Ed.  290;  Hack- 
feld  Co.  V.  United  States,  197  U.  S.  442, 
49  L.  Ed  826:  Binney  z'.  Chesapeake  & 
Ohio  Canal  Co.,  8  Pet.  214,  216,  8  L. 
Ed.   921. 

In  Glenn  v.  Fant,  134  U.  S.  398.  400. 
33  L.  Ed.  969,  the  court  say:  "What  is 
stj'led  here  an  'agreed  statement  of  facts' 
is  an  agreement  as  to  certain  matters, 
and  that  the  parties  might  refer  to  and 
rely  upon  any  and  all  grounds  of  action 
or  defense  to  be  found  in  two  volumi- 
nous exhibits,  marked  X  and  Y,  being  the 
records  of  two  equity  causes  in  other 
courts,  including  all  the  pleadings  and 
evidence,  as  well  as  the  orders  and  de- 
crees therein.  The  effect  of  some  of  that 
evidence  and  of  the  conclusions  of  fact 
to  be  drawn  from  it  is  controverted.  It 
is  impossible  for  us  to  regard  this  stipu- 
lation as  taking  the  place  of  a  special  ver- 
dict of  a  jury,  or  a  special  finding  of  facts 
by  the  court,  upon  which  our  jurisdic- 
tion could  properly  be  invoked  to  de- 
termine the  questions  of  law  thereon  aris- 
ing. And  while  the  case  is  governed  by 
the  rule  laid  down  in  Campbell  v.  Boy- 
reau,  21  How.  223.  16  L.  Ed.  96,  yet,  even 
if  the  statutory  provisions  in  relation  to 
the  trial  of  causes  without  the  interven- 
tion of  a  jury  by  the  circuit  courts  of  the 
United  States  were  applicable,  the  result 
upon  this  record  would  be  the  same. 
Raimond  v.  Terrebonne  Parish,  132  U. 
S.  192,  33  L.  Ed.  309:  Andes  z'.  Slauson, 
130  U.  S.  435,  32  L.  Ed.  989:  Bond  v.  Dus- 
tin,  112  U.  S.  604,  28  L.  Ed.  835;  Lyons 
V.  Lyons  Bank,  19  Blatchford  279."  See 
to  the  same  effect  Wilson  v.  Merchants' 
Loan,  etc.,  Co.,  183  U.  S.  121,  46  L.  Ed. 
113. 

This  court  cannot  give  judgment  as  on 


an  agreed  statement  of  facts  or  case 
stated,  except  where  facts,  and  facts  only, 
are  stated.  If  there  be  question  as  to  the 
competency  or  effect  of  evidence,  or  any 
rulings  of  the  court  below  upon  evidence 
to  be  examined,  the  court  cannot  enter- 
tain the  case  as  an  agreed  statement. 
Burr  V.  The  Des  Moines,  etc..  R.  Co.  1 
Wall.  99.  17  L.  Ed.  561,  affirmed  in  Pom- 
eroy V.   Bank,  1  Wall.  592,  17  L.  Ed.  638. 

9.  Should  state  all  material  facts.— "The 
result  of  the  decisions  under  the  statutes 
providing  for  a  waiver  of  trial  by  jury, 
and  the  proceedings  on  a  trial  by  the 
court.  Rev.  Stat..  §  649,  and  Rev.  Stat., 
§  700,  is  that  when  there  are  special  find- 
ings they  must  be  findings  of  what  are 
termed  ultimate  facts,  and  not  the  evi- 
dence from  which  such  facts  might  be 
but  are  not  found.  If,  therefore,  an 
agreed  statement  contains  certain  facts  of 
that  nature,  and  in  addition  thereto  and 
as  part  of  such  statement  there  are  other 
facts  of  an  evidential  character  only,  from 
which  a  material  ultimate  fact  might  be 
inferred,  but  which  is  not  agreed  upon  or 
found,  we  cannot  find  it,  and  we  cannot 
decide  the  case  on  the  ultimate  facts 
agreed  upon  without  reference  to  such 
other  facts.  In  such  case  we  must  be 
limited  to  the  general  finding  by  the  court. 
We  are  so  limited  because  the  agreed 
statement  is  not  a  compliance  with  the 
statute."  Wilson  v.  Merchants'  Loan,  etc 
Co.,  183  U.  S.  121,  126,  46  L.  Ed.  113.' 
See.    also,    cases    cited    in    preceding    note. 

10.  As  waiver  of  jury.— A  stipulation, 
signed  by  the  parties  or  their  attorneys, 
and  filed  with  the  clerk  of  the  circuit 
court,  submitting  a  civil  cause  for  trial 
on  an  agreed  statement  of  facts,  is  "a 
stipulation  in  writing  waiving  a  jury," 
within  the  meaning  of  §  649  of  the  Re- 
vised Statutes.  Supervisors  v.  Kennicott 
103  U.  S.  554.  2  L.  Ed.  486.  See  the  title 
JURY. 

11.  As  waiver  of  questions  of  pleading. 

—"The  case  having  been  submitted  to 
the  circuit  court  upon  a  statement  of 
facts  agreed  by  the  parties,  or  case  cited, 
upon  which  the  court  was  to  render  such 
judgment  as  the  law  required,  all  ques- 
tions of  the  sufficiency  of  the  pleadings 
were  waived,  and  the  want  of  an  answer 
was  immaterial.  *  *  *  Willard  v.  Wood 
135  U.  S.  309,  314.  34  L.  Ed.  210;  Bond 
V.  Dustm.  112  U.  S.  604,  607,  28  L.  Ed 
835."  Saltonstall  v.  Russell,  152  U  S  628* 
630,   38    L.    Ed.    576. 


AGREED  CASE. 


207 


form  of  action,  which  might  have  been  cured  by  amendment.  12 

C.  As  Enabling  Court  of  Law  to  Assume  Equity  Jurisdiction. — A  state- 
ment of  facts  agreed  by  the  parties  in  an  action  at  law  cannot  enable  a  court  of 
law  to  assume  the  jurisdiction  of  a  court  of  equity. i-' 

D.  Court  Not  Concluded  by  Statement  of  Legal  Conclusions. — Where 
all  the  facts  are  stated,  the  court  cannot  be  concluded  by  a  stipulation  of  the 
parties  as  to  the  legal  conclusions  to  be  drawn  therefrom. ^^ 

VII.    Submission  of  Controversy. 

A.  Definition  and  What  Constitutes. — A  submission  of  controversy  is  the 
waiver  of  a  jury  trial  and  submitting  the  trial  of  both  facts  and  law  to  the 
court.  1^ 

Submission  to  Special  Tribunal.— A  reference  by  consent  of  parties,  of  an 
entire  case  for  the  determination  of  all  its  issues,  though  not  strictly  a  submission 
of  the  controversy  to  arbitration — a  proceeding  which  is  governed  by  special 
rules — is  a  submission  of  the  controversy  to  a  tribunal  of  the  parties'  own  selec- 
tion, to  be  governed  in  its  conduct  by  the  ordinary  rules  applicable  to  the  ad- 
ministration of   justice   in   tribunals   established  by  law.^^ 


12.  Form  of  action. — Willard  v.  Wood, 
13.".   U.   S.   309,   34    L.    Ed.   210. 

13.  Law  court  assuming  equity  juris- 
diction.—Willard  V.  Wood,  135  U.  S.  309, 
34   L.  Ed.  210. 

14.  "The  circuit  court  of  appeals  dis- 
posed of  this  case  upon  the  view  that  the 
judgment  of  conviction  would  have  been 
warranted  upon  the  evidentiary  facts 
stipulated,  and  that  the  stipulation,  in  so 
far  as  it  stated  that  the  escape  of  the  im- 
migrants couJd  not  have  been  reasonably 
anticipated  by  the  master  or  officers  of 
the  steamship,  and  did  not  occur  by  rea- 
son of  any  negligence  or  want  of  proper 
care  upon  their  part,  was  the  statement  of 
a  mere  conclusion,  not  binding  upon  the 
court,  and  would  not  prevent  it  from 
rendering  an  independent  judgment  upon 
the  facts  stated.  We  cannot  take  this 
view  of  the  case.  It  may  be  conceded 
that  where  the  facts  are  all  stated,  the 
court  cannot  be  concluded  by  a  stipula- 
tion of  the  parties  as  to  the  legal  con- 
clusions to  be  drawn  therefrom,  but  we 
know  no  rule  of  public  policj^  which  will 
prevent  the  United  States  attorney  from 
stipulating  with  the  defendant  in  a  case 
of  this  character  as  to  the  ultimate  facts 
ip  the  controversy.  *  *  *  The  eviden- 
tiary facts  in  the  stipulation  upon  which 
this  case  was  tried  are  not  very  full}'  set 
forth,  and  the  government  and  the  de- 
fendant were  content  to  stipulate  that  the 
method  of  escape  through  the  portholes 
(assuming  that  it  was  by  this  means  the 
immigrants  escaped")  could  not  have  been 
reasonably  anticipated  bj-  those  in  charge 
of  the  Korea,  and  that  the  escape  did 
not  occur  by  reason  of  any  negligence  or 
lack  of  proper  care  upon  the  part  of  the 
officers  of  the  vessel  or  the  defendant. 
We  think  the  parties  were  entitled  to 
have  this  case  tried  upon  the  assumption 
that  these  ultimate  facts.  "Stipulated  into 
the  record,  were  established,  no   less  than 


the  specific  facts  recited."  Hackfeld  & 
Co.  V.  United  States,  197  U.  S.  443,  446, 
49    L.    Ed.    826. 

15.  Befinition. — See  Guild  v.  Frontin, 
18  How.  135.  15  L.  Ed.  290,  citing  Gra- 
ham V.  Bayne,  18  How.  60,  15  L.  Ed.  265. 
See,  also,  Kelsey  v.  Forsyth,  21  How. 
85,  16  L.  Ed.  32;  Suydam  v.  Williamson. 
20  How.  427,  428.  15  L.  Ed.  978;  Campbell 
T'.  Boyreau,  21  How.  223.  16  L.  Ed.  96; 
Rogers  v.  United  States,  141  U.  S.  548, 
35   L.   Ed.  853. 

Requesting  court  to  instruct  verdict. — 
A  request,  made  to  the  court  by  each 
party  to  instruct  the  jury  to  render  a  ver- 
dict in  his  favor,  is  not  equivalent  to  a 
submission  of  the  case  to  the  court  with- 
out the  intervention  of  a  jury,  within  the 
intendment  of  Rev.  Stat.,  §§  649,  700. 
Buetell  V.  Magone,  157  U.  S.  154.  39  L. 
Ed.     654. 

Where,  "however,  both  parties  asked  the 
court  to  instruct  a  verdict,  both  affirmed 
that  was  no  disputed  question  of  fact 
which  could  operate  to  deflect  or  con- 
trol the  question  of  law.  This  was  nec- 
essarily a  request  that  the  court  find  the 
facts,  and  the  parties  are.  therefore,  con- 
cluded by  the  finding  made  by  the  court, 
upon  which  the  resulting  instruction  of 
law  was  given."  Buetell  v.  Magone.  157 
U.  S.  154,  157,  39  L.  Ed.  654. 

16.  Submission  to  special  tribunal. — 
Kimberlv  7'.  Arms,  129  U.  S.  512.  524,  32 
L.  Ed.  764. 

When  the  parties  consent  to  the  refer- 
ence of  a  case  to  a  master  or  other  officer 
to  hear  and  decide  all  the  issues  therein, 
both  of  fact  and  of  law,  and  such  refer- 
ence is  entered  as  a  rule  of  court,  it  is 
a  submission  of  the  controversy  to  a  spe- 
cial tribunal,  selected  by  the  parties,  to  be 
governed  in  its  conduct  by  the  ordinar}- 
rules  applicable  to  the  administration  of 
justice  in  tribunals  established  by  law; 
and  its  determinations  are  not  subject  to 


208 


AGREEMENT. 


B.  Right  to  Submit — Waiver  of  Jury. — Parties  may,  by  consent,  waive 
the  trial  of  issues  of  fact  by  a  jury,  and  submit  the  trial  of  both  facts  and  law 
to  the  court.     It  will  not  be  a  mistrial. ^^ 

C.  Submission  Must  Be  in  Writing. — The  stipulation,  between  the  parties, 
to  waive  a  jury  trial  and  submit  the  case  to  the  court  must  be  in  writing,  other- 
wise no  errors  in  the  rulings  of  the  trial  court  can  be  examined  by  the  reviewing 

court. ^^ 

D.  Court  Assumes  Character  of  Arbitrator. — If,  by  agreement  of  par- 
ties, the  questions  of  fact  in  dispute  are  submitted  for  decision  to  the  judge  upon 
the  evidence,  he  does  not  exercise  judicial  authority  in  deciding,  but  acts  rather 
in  the  character  of  an  arbitrator. i*^ 

AGREEMENT. — See,  generally,  the  title  Contracts.  The  word  agreement, 
does  not  necessarily  import  any  direct  and  express  stipulation  ;  nor  is  it  necessary 
that  it  should  be  in  writing.  If  there  is  a  verbal  understanding,  to  which  both 
parties  have  assented,  and  upon  which  both  are  acting,  it  is  an  agreement. ^ 


be  set  aside  and  disregarded  at  the  discre- 
tion of  the  court.  Kimberly  v.  Arms,  129 
U.   S.  512,  32   L.   Ed.   764. 

As  to  submission  to  arbitrators,  see  the 
title  ARBITRATION  AND  AWARD. 

17.  Right  to  submit. — Guild  v.  Frontin, 
18  How.  135.  15  L.  Ed.  290;  Graham  v. 
Bayne,  18  How.  60.  15  L.  Ed.  265;  Suy- 
dam  V.  Williamson,  20  How.  427,  428,  15 
L.  Ed.  978;  Kelsey  v.  Forsyth,  21  How. 
85.  88,  16  L.  Ed.  32;  Campbell  V.  Boyreau, 
21  How.  223.  16  L.  Ed.  96;  Rogers  v. 
United  States,  141  U.  S.  548,  35  L.  Ed. 
853;  Shankland  v.  Washington,  5  Pet.  390. 
8  L.  Ed.  166;  Martin  v.  Ihmsen,  21  How. 
394.    16    L.    Ed.    134. 

Under  the  4th  section  of  the  act  of 
March  5th,  1865.  the  parties  may  submit 
cases  to  the  court  without  a  jury.  Norris 
V.  Jackson.  9  Wall.  125,  19  L.  Ed.  608; 
Insurance  Co.  v.  Tweed,  7  Well.  44,  19  L- 
Ed.  65;  Coddington  v.  Richardson,  10  Wall. 
516,  19  L.  Ed.  981;  Flanders  v.  Tweed,  9 
Wall.   425,   19   L.    Ed.   678. 

Waiver  of  jury. — -"As  a  case  cannot  be 
submitted  to  the  court  for  trial  without 
waiving  a  jury,  a  stipulation  to  submit, 
especially  if  it  be  on  agreed  facts,  is  of 
itself  a  sufficient  waiver  to  meet  the  re- 
quirements of  §  649."  Supervisors  7'. 
Kennicott,  103  U.  S.  554,  556,  26  L.  Ed. 
480. 

As  to  waiver  of  jury,  see  the  title  JURY. 

18.  "The  condition  upon  which,  ac- 
cording to  the  act  of  March  3d,  1865.  the 
parties  are  authorized  to  waive  a  trial 
by  jury,  and  substitute  the  court,  and.  at 
the  same  time,  save  to  themselves  all  the 
rights  and  privileges  which  belong  to 
them  in  trials  by  jury  at  common  law, 
*  *  *  is  the  filing  with  the  clerk  a  writ- 
ten stipulation,  signed  by  the  parties,  or 
their  attorneys."  Flanders  v.  Tweed,  9 
Wall.  425.  19  L.  Ed.  678,  followed  in 
Flanders  v.  Tweed,  154  U.  S.  569,  19  L- 
Ed.  680;  Coddington  7'.  Richardson, 
10  Wall.  516.  19  L.  Ed.  981;  Martinton  v. 
F-irb?n1-';.  112  U.  S.  670.  675.  28  L.  Ed 
S62.         Cee       the      ti'.lc       EXCEPTIONS. 


BILL  OF,  AND  STATEMENT  OF 
FACTS  ON  APPEAL. 

No  error  can  be  examined  in  the  rulings 
of  the  court  at  the  trial  of  a  cause  by  the 
court  without  a  jury  by  agreement  of 
parties,  if  there  is  no  allegation  in  the 
record  that  the  stipulation  was  in  writ- 
ing, as  required  by  the  statute.  Bond  v. 
Dustin,  112  U.  S.  604.  28  L.  Ed.  835,  and 
Dundee  Mortgage,  etc.,  Co.  v.  Hughes, 
124  U.  S.  157.  31  L.  Ed.  357,  followed  in 
Spalding  v.  Manasse,  131  U.  S.  65.  33  L. 
Ed.  86.  See,  also.  Grayson  v.  Lynch,  163 
U.  S.  468.  41   L.  Ed.  230. 

19.  Courts  act  as  arbitrators. — Rogers 
V.  United  States,  141  U.  S.  548,  35  L.  Ed. 
853,  citing  Campbell  v.  Boyreau,  21  How. 
223,  16  L.  Ed.  96;  Weems  v.  George,  13 
How.  190;  14  L.  Ed.  108.  Subsequent  to 
the  act  of  Mar.  3,  1865,  §  4,  see  Martin- 
ton  V.  Fairbanks,  112  U.  S.  670,  675,  28  L. 
Ed.   862. 

1.  Agreement. — Holmes  v.  Jennison.  14 
Pet.  540.  572,  10  L.  Ed.  579;  Wharton  v. 
Wise,    153   U.    S.    155.   168,  38   L.    Ed.  669. 

.\  statute  provided  that  when  the  terms 
of  an  agreement  had  been  reduced  to  writ- 
ing by  the  parties,  it  was  to  be  considered 
as  containing  all  the  terms,  and  that  no 
evidence  should  be  admitted  except  in 
certain  cases.  In  construing  this  provi- 
sion, the  court,  in  Bogk  v.  Gassert,  149 
U.  S.  17,  24.  37  L.  Ed.  631,  said:  "The 
term  agreement  includes  deed  and  wills, 
as  well  as  contracts   between  the  parties." 

Insurance. — An  insurance  company's 
charter  required  that  contracts,  bargains, 
agreements,  poli-fT*  or  other  instruments 
should  be  in  writing  and  under  seal  of  the 
corporation,  and  signed  by  the  president 
and  attested  by  the  secretary.  It  was 
held,  the  agreement  as  thus  used  did  not 
include  the  initial  preliminary  agreement 
for  insurance  which  precedes  tlie  execu- 
tion of  the  formal  policv.  Franklin  Ins. 
Co.    7'.    Colt.    -^0    Wall.    .560.    22    L.    Ed.    422. 

Agreement  between  the  states. — See  the 
title    STATES. 

Agreement  to  sell. — See  CALL. 


ALIENATION  OF  AFFECTIONS. 


209 


AGRICULTURE.— See  the  title  Crops. 

AID.— vSee  note  1. 

AID  AND  COMFORT.— See  note  2. 

AIDER  AND   ABETTOR. — See    the    title    Accomplices    and  Accessories, 
ante,  p.  63. 
'  AIDER  BY  VERDICT.— See  the  title  Amendments. 

AIDING  AND  ASSISTING  TREASON.— See  note  3. 

AID  SOCIETIES. — See  the  title  Beneficial  and  Benevolent  Associations. 

AIR. — See  the  titles  Adjoining  Landowners,  ante,  p.  117;    Easements. 

ALABAMA. — As  to  Alabama  claims,  see  the  titles  Courts;   Treaties. 

ALASKA. — See  the  titles  Admiralty,  ante,    p.    119;  Appeal    and    Error; 
Courts. 

ALCALDE. — An  alcalde  was  an  officer  of  the  Spanish  law,  with  duties  cor- 
responding somewhat  to  those  of  a  mayor  or  justice  of  the  peace.^ 

ALCOHOLIC  LIQUORS. — See  the  titles  Commerce;    Constitutional  Law; 
Intoxicating  Liquors. 

ALCOHOLISM. — As    to    defense  to    action    on  life    policy,  see  the   title    In- 
surance. 

ALDERMEN. — See  the  title  Municipal  Corporations. 

ALIAS  WRITS. — See  the  titles  Attachment  and  Garnishment;    Execu- 
tions;    Summons  and  Process. 

ALIBI. — See  the  titles  Criminal  Law;   Instructions. 

ALIENATE— ALIENATION.— See  note  5. 

ALIENATION  IN  MORTMAIN.— See  Mortmain. 

ALIENATION  OF  AFFECTIONS.— See  the  title  Husband  and  Wife. 


1.  See,  also,  Abet.  And  see  the  title  AC- 
COMPLICES AND  ACCESSORIES, 
ante,  p.  63.  As  to  aid  to  corporations  and 
public  improvements,  see  the  title  MU- 
NICIPAL, COUNTY,  STATE  AND 
FEDERAL  AID. 

2.  Aid  and  comfort. — In  Young  v. 
United  States.  97  U.  S.  39,  62.  24  L.  Ed. 
992,  it  is  said:  "There  can  be  no  doubt 
that  the  words  'aid  or  comfort'  are  used 
in  this  statute  in  the  same  sense  they  are 
in  the  clause  of  the  constitution  defining 
treason  (art.  3,  §  3),  that  is  to  say,  in 
their  hostile  sense.  The  acts  of  aid  and 
comfort  which  will  defeat  a  suit  must  be 
of  the  same  general  character  with  those 
necessary  to  convict  of  treason,  where  the 
offense  consists  in  giving  aid  and  comfort 
to  the  enemies  of  the  United  States.  But 
there  may  be  aid  and  comfort  without 
treason;  for  'treason  is  a  breach  of  al- 
legiance, and  can  be  committed  by  him 
only  who  owes  allegiance,  either 
perpetual  or  temporary.'  United  States 
V.  Wiltberger,  5  Wheat.  76,  96,  .5  L.  Ed. 
37.  The  benefits  of  the  statute  are  with- 
held not  for  treason  only,  but  for  giving 
aid  and  comfort  as  well.  A  claimant  to 
be  excluded  need  not  have  been  a  traitor; 
it  is  sufficient  if   he   has   done   that   which 


would  have  made  him  a  traitor  if  he  had 
owed  allegiance  to  the  United  States."  The 
act  under  consideration  in  this  case  was 
the  abandoned  and  captured  property 
act.  See  the  title  ABANDONED  AND 
CAPTURED  PROPERTY,  ante,  p.  1. 
And   see.   also,   the   title   TREASON. 

3.  Aiding  and  assisting  treason. — See 
Respublica  v.  Carlisle.  1  Dall.  35,  37.  1 
L.   Ed.   26. 

4.  See  United  States  v.  Castillero,  2 
Black  1,  194,  17  L.  Ed.  360;  Strother  :■. 
Lucas,  12  Pet.  410,  9  L  Ed.  1137.  And 
see.  generally,  the  title  PUBLIC  LANDS. 

5.  Alienate. — That  a  contract  to  alienate 
is  an  alienation  of  public  lands,  see  Ander- 
son V.  Carkins,  13.5  U.  S.  483.  34  L.  Ed. 
272.     And  see  the  title  PUBLIC  LANDS. 

Alienation. — In  United  States  v. 
Schurz.  102  U.  S.  378,  397,  26  L.  Ed.  167, 
it  is  said:  "Rlackstone  describes  four 
modes  of  alienation  or  transfer  of  title 
to  real  estate,  which  he  calls  common 
assurance;  the  first  of  which  is  by  mat- 
ter in  pais  or  deed;  the  second  by  mat- 
ter of  record,  or  an  assurance  transacted 
only  in  the  king's  public  courts  of  record; 
the  third  by  special  custom;  and  the 
fourth  by  devise  in  a  last  will  or  testa- 
ment." 


1  U  S  Enc— 14 


ALIENS. 

BY  JAMES  F.   MINOR. 

I.    Definition  and  Status,  212. 

II.   What  Determines  Relation,  213. 

A.  Birth.  Domicile  or  Marriage,  213. 

1.  Birth,  213. 

2.  Domicile,  213. 

3.  Marriage,  214. 

B.  Annexation,  214. 

C.  Conquest,  214. 

D.  Division  of  Country,  214. 

1.  In  General,  214. 

2.  Infants.  215. 

a.  Children  Born  before  Division,  215. 

b.  Children  Born  after  Division,  215. 

3.  Right  of  Election,  216. 

4.  Burden  of  Proof  and  Presumptions,  217. 

E.  Rights  under  Treaties,  217. 

F.  Expatriation,  217. 

G.  Naturalization.  217. 

UI.   Duties,  Rights  and  Powers,  217. 

A.  Allegiance  and  Jurisdiction  over,  217. 

1.  Domiciled  Aliens,  217. 

2.  Nonresident  Aliens,  218. 

3.  Crew  of  Vessel  of  Merchant  Marine,  218. 

4.  Foreign   Public  Vessel,  219. 

B.  Right  to  Protection  of  Laws.  219. 

C.  Holding  Office,  Sitting  as  Juror,  or  Voting,  219. 

D.  Suing  and  Being  Sued,  220. 

1.  Suits  between  Aliens,  220. 

2.  Suits  between  Aliens  and  Citizens,  221. 

a.  In  General,    221. 

b.  Alien  Residents,  222. 

c.  Venue,  Scope,  and  Rule  of  Decision.  222. 

3.  Suits  between  a  State  and  an  Alien.  223. 

4.  Suits  by  Aliens  against  the  United  States,  223. 

5.  Suits  by  Foreign  Governments,  223. 

6.  Suits  by  and  against  Alien  Enemies,  224. 

7.  Suits  to  Enforce  Title  to  Land,  224. 

E.  Property  Rights,  224. 

L  Real  Property,  224. 

a.  Right  to  Acquire  and  Hold,  224. 

(1)  At  Common  Law,  224. 

(a)  By  Inheritance,  224. 

(b)  By  Purchase,  225. 

(c)  Termination    or    Waiver    of    Objection    of    Alien- 
age, 227. 

(2)  By  the  Civil  Law,  227. 

(3)  Constitutional  and  Statutory  Provisions,  227. 

(a)  In  General.  227. 

(b)  Laws  of  Particular  States,  228. 

(210) 


ALIENS.  211 

b.  Right  to  Transmit  or  Convey,  233. 

c.  Confiscation   and   Forfeiture,   234. 

d.  Evidence,  Presumptions  and   Pleading,  234. 

2.  Personalty,  234. 

3.  Tax  on  Right  of  Succession.  234. 

4.  Effect  of  Division  of  Country,  234. 

5.  Equitable  Conversion,  235. 

6.  Treaty  Rights,  235. 

a.  In  General,  235. 

b.  Treaties  with  France.  236. 

c.  Treaties  with  Great  Britain,  237. 

d.  Treaties  with   Switzerland,  239. 

F.  Criminal  Jurisdiction  over  Aliens,  240. 

G.  Alien  Enemies  and  Effect  of  War,  240. 

IV.   Pleading  and  Practice,  240. 

A.  Declaration  or  Bill.  240. 

1.  Averments  as  to  Alienage  or  Citizenship,  240. 

2.  Effect  and  Necessity  for  Denial,  242. 

3.  Amendment,  242. 

B.  Plea,  242. 

C.  Replication,  243. 

D.  Evidence,  243. 

1.  Presumptions  and  Burden  of  Proof,  243. 

a.  Inferences  and  Presumptions,  243. 

b.  Burden  of  Proof,  244. 

2.  Competency,  244. 

3.  Weight  and   Sufficiency,  244. 

E.  Limitation  of  Actions,  245. 

F.  Removal  of  Causes.  245. 

V.   Admission  or  Exclusion  of  Aliens  or  Immigrants,  j:45. 

A.  Power  of  Congress  and  States,  245. 

1.  In  General.  245. 

2.  Mode  of  Exercise  and  Discretion,  245. 

3.  Inalienability.  246. 

4.  Conditional  Admission.  247. 

5.  To  Punish  Criminally  Illegal  Entry  and  Residence,  247. 

6.  Construction  of  Acts  of  Congress,  247. 

7.  Powers  of  States.  248. 

B.  Classes  Excluded.  248.   ■ 

1.  Paupers.  Criminals  and  Deceased   Persons,  248. 

2.  Anarchists.  249. 

3.  Chinese.  250. 

4.  Alien  Contract  Laborers.  250. 

C.  Procedure.  250. 

1.  Delegation  to  Inspectors  or  Other  OfHcers,  or  a  Department,  2.S0. 

a.  In  General.  250. 

b.  Authority  and  Discretion.  250. 

c.  Finality  of  Decision  and  Court   Review,  252. 

2.  Provisions   for  Registration  and  Identification,  253. 

3.  Detention  and  Expulsion  or  Deportation,  253. 

4.  Right  to  Habeas  Corpus.  255. 

5.  Due  Process  of  Law.  255. 

D.  Liability  of  Person  Bringing  in  Immigrants  Not  Permitted  to  Land,  255. 

E.  Privilege  of  Transit,  255. 


212 


ALIBXS. 


F.  Chinese  Exclusion  Acts.  255. 

G.  Alien  Contract  Labor  Laws,  255. 

H.  Head  Money  Laws  and  Taxes  on  Immigration,  255. 

CROSS  REFERENCES. 

See  the  titles  Abandoned  and  Captured  Property,  ante,  p.  1;  Blockade; 
Chinese  Exclusion  Acts;  Citizenship;  Confederate  States;  Conflict 
OF  Laws;  Constitutional  Law;  Contract  Labor  Law;  Contracts; 
Courts;  Descent  and  Distribution;  Domicile;  Dower;  Elections;  Em- 
bargo and  Nonintercourse  Laws;  Escheat;  Extradition;  Foreign  Cor- 
porations; Foreign  Laws;  Habeas  Corpus;  Homestead  Exemptions;  In- 
dians; International  Law;  Naturalization;  Prize;  Quarantine;  Re- 
moval of  Causes;  Revenue  Laws;  Seamen;  Sequestration;  Taxation; 
Territories;    Treaties;  United  States;    War. 

As  to  alien  corporations,  see  the  title  Foreign  Corporations.  As  to  Indians 
as  aliens,  see  the  title  Indians.  As  to  liability  for  treason,  see  the  title 
Treason.  As  to  limitation  of  actions  by  or  against,  see  the  title  Limitation 
OF  Actions  and  Adverse  Possession.  As  to  location  of  public  lands  by  aliens^ 
see  the  title  Public  Lands.  As  to  removal  of  cause  for  alienage,  see  the  title 
Removal  of  Causes.  As  to  rights  under  patent  laws,  see  the  title  Patents. 
As  to  suits  by  alien  against  state,  see  the  title  States.  As  to  taxation  of  im- 
migrants, see  the  titles  Commerce;  Taxation.  As  to  tax  on  immigrants  as 
regulation  of  commerce,  see  the  title  Commerce. 

I.    Definition  and  Status. 

See  post,  "What  Determines  F^elation,"  II.  As  to  presumptions,  see  post,  "Evi- 
dence," IV,  D. 

The  word  "aliens"  has  been  held  to  embrace  subjects  or  citizens  of  foreign  coun- 
tries, resident  or  nonresident  in  this  country  ;*  and  aliens  do  not  cease  to  be  such 
by  a  residence  in  this  country.-  And  a  grant  from  the  king  did  not  constitute 
the  alien  grantee  a  denizen,  so  as  to  enable  him  to  hold  an  indefeasible  estate.  The 
effect  of  an  alien  being  made  a  denizen  is  not  to  enable  him  to  take  lands,  but 
it  has  the  effect  to  enable  him  to  hold  them  against  the  king.^  By  residence 
they  acquire  rights  and  incur  duties  in  many  respects  the  same  a-s  those 
of  citizens."* 


1.  Foreigners,   resident  or  nonresident. 

• — Hennessv  c'.  Richardson  Drug.  Co.,  189 
U.    S.    25,    34,   47    L.    Ed.    697. 

In  §  6  of  the  judiciary  act  of  March  3, 
1891.  making  final  the  judgments  and' de- 
crees of  the  circuit  court?  of  appeals  in 
cases,  among  others,  in  which  the  jurisdic- 
tion was  dependent  entirely  on  the  op- 
posite parties  to  the  suit  or  controversy 
being  citizens  of  different  states,  or  "aliens 
and  citizens  of  the  United  States."  the 
word  "aliens,"  as  there  used,  embraces 
subjects  or  citizens  of  foreign  countries, 
and  not  merely  persons  resident  in  this 
country,  who  owe  allegiance  to  another. 
Hennessy  v.  Richardson  Drug  Co..  189 
U.    S.    25,    34.   47    L.    Ed.    697. 

A  person  born  in  England,  before  the 
year  1775,  and  who  always  resided  there, 
and  never  was  in  the  United  States,  is  an 
alien.  Dawson  v.  Godfrey,  4  Cranch  321, 
2  L.   Ed.  634. 

2.  Same. — Breedlove  v.  Nicolet,  7  Pet. 
413,    8    L.    Ed.    731.    But   an    alien   is    pre- 


sumed not  to  reside  in  the  United  States. 
Galveston,  etc.,  R.  Co.  v.  Gonzales,  151 
U.  S.  496,  507,  :5S   L.  Ed.  248. 

Porto  Ricans. — Citizens  of  Porto  Rico,. 
whose  permanent  allegiance  is  due  to  the 
United  States,  who  live  in  the  peace  of 
the  dominion  of  the  United  States;  the 
organic  law  of  whose  domicile  was  en- 
acted by  the  United  States,  and  is  en- 
forced through  officials  sworn  to  support 
the  constitution  of  the  United  States,  are 
not  aliens.  Gonzales  z\  Williams,  192 
U.  S.  1.  13,  48  L.  Ed.  .".17.  See  the  title 
CITIZENSHIP. 

Foreign  states. — There  is  a  distinction 
between  foreign  states  and  foreign  citi- 
zens. The  word  "aliens"  could  include  the 
former  only  by  straining  it  beyond  its 
natural  meaning.  Columbia  v.  Cauca  Co.^ 
190   U.    S.    524,    47    L.    Ed.    1159. 

3.  As  denizen — Grant  of  land.— Doe  v. 
Robertson.  11  Wheat.  .'i32,  352,  6  L.  Ed. 
488. 

4.  Rights  and  duties. — By  general  inter- 


ALIENS. 


213 


n.    What  Determines  Relation. 

As  to  evidence,  see  post,  "Evidence,"  IV,  D.  See,  generally,  the  title  Citi- 
zenship. 

A.  Birth,  Domicile  or  Marriage — 1.  Birth. — The  rule  commonly  laid 
down  in  the  books  is,  that  every  person  who  is  born  within  the  ligeance  of  a  sov- 
ereign, is  a  subject ;  and,  e  converso,  that  every  person  born  without  such  al- 
legiance is  an  alien.     This,  however,  is  little  more  than  a  definition  of  terms,^ 

2.  Domicile. — One  removing  to  a  foreign  country  may  acquire  the  national 
character  of  that  country  by  residence  there,  animo  manendi.  It  is  a  question 
of  intention.^ 


national  law,  foreigners  who  have  become 
domiciled  in  a  country  other  than  their 
own,  acquire  rights,  and  must  discharge 
duties,  in  many  respects  the  same  as  pos- 
sessed by  and  imposed  upon  the  citizens 
of  that  country,  and  no  restriction  on  the 
footing  upon  which  such  persons  stand 
b}^  reason  of  their  domicil  of  choice,  or 
commercial  domicil,  is  to  be  presumed. 
Lau  Ow  Bew  z:  United  States,  144  U.  S. 
47.  61,  36  L.  Ed.  .340.  See  post,  "Alle- 
giance   and   Jurisdiction    Over,"    III,    A. 

5.  As  determined  by  birth. — Inglis  v. 
Sailor's  Snug  Harbour.  3  Pet.  99.  7  L.  Ed. 
fill  (dissenting  opinion  of  Story,  J.  ); 
Dawson  z'.  Godfrey,  4  Cranch  321,  2  L. 
Ed.  634;  United  States  v.  Wong  Kim  Ark, 
169  U.  S.  649.  660,  42  L.  Ed.  890.  See 
post,  "Division  of  Country,"  II,  D.  See 
the    title    CITIZENSHIP. 

Children  born  in  a  country,  continuing, 
while  under  age.  in  the  family  of  the  fa- 
ther, partake  of  his  national  character  as 
h.  citizen  of  that  country.  Shanks  r.  Du- 
pont,  3  Pet.  242,  245,  7  L.  Ed.  666;  Jones 
<■.  McMasters,  20  How.  8.  20,  15  L.  Ed. 
805. 

6.  As  determined  by  domicile. — The  Ve- 
nus, 8  Cranch  253,  279,  3  L.  Ed.  553;  The 
Eriendschraft,  3  Wheat.  12,  14,  4  L-  Ed. 
322. 

"In  deciding  whether  a  person  has  ob- 
tained the  right  of  an  acquired  domicil,  it 
is  not  to  be  expected  that  much,  if  any, 
assistance  should  be  derived  from  mere 
elementarj^  writers  on  the  law  of  nations. 
They  can  only  lay  down  the  general  prin- 
ciples of  law;  and  it  becomes  the  duty 
of  courts  to  establish  rules  for  the  proper 
application  of  those  principles.  The  ques- 
tion, whether  the  person  to  be  affected 
by  the  right  of  domicil  had  sufficiently 
made  known  his  intention  of  fixing  him- 
self permanently  in  the  foreign  country, 
must  depend  upon  all  the  circumstances 
of  the  case.  If  he  had  made  no  express 
declaration  on  the  subject,  and  his  secret 
intention  is  to  be  discovered,  his  acts 
must  be  attended  to.  as  affording  the 
most  satisfactor)^  evidence  of  his  inten- 
tion. On  this  ground  it  is,  that  the  courts 
of  England  have  decided,  that  a  person 
who  removes  to  a  foreign  country,  set- 
tles himself  there,  and  engages  in  the 
trade   of   the   country,   furnishes,   by  these 


acts,  such  evidence  of  an  intention  per- 
manently to  reside  there,  as  to  stamp  him 
with  the  national  character  of  the  state 
where  he  resides.  In  questions  on  this 
subject,  the  chief  point  to  be  considered, 
is  the  animus  manendi;  and  courts  are 
to  devise  such  reasonable  rules  of  evidence 
as  may  establish  the  fact  of  intention.  If 
it  sufhciently  appear,  that  the  intention 
of  removing  was  to  make  a  pennanent 
settlement,  or  for  an  indefinite  time,  the 
right  of  domicil  is  acquired  by  a  residence 
even  of  a  few  days.  This  is  one  of  the 
rules  of  the  British  courts,  and  it  ap- 
pears to  be  perfectly  reasonable.  Another 
is,  that  a  neutral  or  subject,  found  resid- 
ing in  a  foreign  country  is  presumed  to 
be  there  animo  manendi;  and  if  a  state 
of  war  should  bring  his  national  character 
into  question,  it  lies  upon  him  to  explain 
the  circumstances  of  his  residence."  The 
Venus.  8  Cranch  253,  279,  3  L.  Ed.  553. 

"The  writers  upon  the  law  of  nations 
distinguish  between  a  temporary  residence 
in  a  foreign  country,  for  a  special  pur- 
pose, and  a  residence  accompanied  with 
an  intention  to  make  it  a  permanent  place 
of  abode.  The  latter  is  styled  by  Vattel, 
domicil,  which  he  defines  to  be,  'a  habi- 
tation fixed  in  any  place,  with  an  inten- 
tion of  always  staying  there.'  Such  a 
person,  says  this  author,  becomes  a  mem- 
ber of  the  new  society,  at  least,  as  a  per- 
manent inhabitant,  and  is  a  kind  of  a 
citizen  of  an  inferior  order  from  the  na- 
tive citizens;  but  is,  nevertheless,  united 
and  subject  to  the  society,  without  par- 
ticipating in  all  its  advantages.  This 
right  of  domicil,  he  continues,  is  not  es- 
tablished, unless  the  person  makes  suffi- 
ciently known  his  intention  of  fixing  there, 
either  tacitl3^  or  by  an  express  declara- 
tion. Vatt.  p.  92,  93.  Grotius  nowhere 
uses  the  word  domicil,  but  he  also  dis- 
tinguishes between  those  who  stay  in  a 
foreign  country,  by  the  necessity  of  their 
afifairs,  or  from  any  other  temporary 
cause,  and  those  who  reside  there  from  a 
permanent  cause.  The  former  he  denomi- 
nates strangers,  and  the  latter,  subjects." 
The  Venus,  8  Cranch  253,  277,  3  L.  Ed. 
553.  See  post,  "Allegiance  and  Jurisdic- 
tion Over,"  III.  A;  "Power  of  Congress 
and  States."  V,  A.  And  see  the  titles 
CITIZENSHIP:  DOMICILE;  NAT- 
URALIZATION. 


214 


ALIENS. 


3.  Marriage. — Alienage  may  be  determined  and  citizenship,  acquired  by  mar- 
riage to  a  citizen  of  the  United  States.^ 

B.  Annexation. — When  previously  foreign  territory  is  acquired  by  or  an- 
nexed to  the  United  States,  or  admitted  to  the  Union  as  a  state,  the  alienage  of 
the  inhabitants  of  each  with  reference  to  the  other  is  determined.'^ 

C.  Conquest. — On  a  conquest  by  one  nation  of  another,  and  the  subsequent 
surrender  of  the  soil  and  change  of  sovereignty,  those  of  the  former  inhabit- 
ants who  do  not  remain  and  become  citizens  of  the  victorious  sovereign,  but^ 
on  the  contrary,  adhere  to  their  old  allegiance  and  continue  in  the  service  of  the 
vanquished  sovereign,  deprive  themselves  of  protection  or  security  to  their 
property  except  so  far  as  it  may  be  secured  by  treaty. » 

D.  Division  of  Country — 1.  In  General. — In  case  of  a  successful  revolu- 
tion, a  person  born  in  the  old  country  before  the  separation  and  who  always  re- 
sided there  and  never  was  in  the  new  country  is  an  alien  to  the  new  country.  ^^ 
And  so  the  nationality  of  the  ante-nati  in  the  case  of  such  a  revolution  is  de- 
termined by  th«ir  choice  of  allegiance,  under  the  British  doctrine,  as  of  the  time 


7.  As  determined  by  marriage. — Citizen- 
sWp  acquired  by  a  woman's  marriage  to 
a  citizen  of  the  United  States,  removes 
a  disability  to  acquire  property  in  the 
District  of  Cohambia.  Kelly  v.  Owen, 
7  Wall.  496,   19  L.   Ed.  283. 

8.  As  determined  by  annexation. — Os- 
terman  2:  Baldwin,  6  Wall.  116,  122,  18 
L.  Ed.  730;  Christy  v.  Scott.  14  How. 
282,  294.  14  L-  Ed.  422;  Soulard  v.  United 
States,  4  Pet.  511,  7  L.  Ed.  938;  Gonzales 
r.  Williams,  192  U.  S.  1,  13.  48  L.  Ed.  317; 
American  Ins.  Co.  v.  356  Bales  of  Cotton, 
1  Pet.  5U.  542,  7  L.  Ed.  242;  Dorr  v. 
United  States,  195  U.  S.  138,  49  L.  Ed. 
128;  Lincoln  v.  United  States,  197  U.  S. 
419,  49  L.  Ed.  816;  De  Lima  v.  Bidwell, 
182  U.  S.  1.  45  L.  Ed.  1041;  Dooley  v. 
United  States,  182  U.  S.  222,  45  L.  Ed. 
1074;  S.  C.  183  U.  S.  151,  46  L.  Ed.  128; 
Goetze  V.  United  States,  182  U.  S.  221, 
45  L.  Ed  1065;  Downes  v.  Bidwell,  182 
U.  S.  244,  45  L.  Ed.  1088;  Fourteen  Dia- 
mond Rings  V.  United  States.  183  U.  S. 
176,  46  L.  Ed.  138. 

Subject  to  their  right  of  election  to 
retain  their  former  nationality.  Boyd  v. 
Nebraska,    143    U.    S.    135,   36    L.    Ed.    103. 

When  Texas  was  admitted  into  the 
Union,  the  alienage  of  a  citizen  of  one 
of  the  United  States  was  determined.  His 
present  status  is  that  of  a  person  natural- 
ized, and  that  naturalization  has  a  retro- 
active effect,  so  as  to  be  deemed  a  waiver 
of  all  liability  to  forfeiture,  and  a  con- 
firmation of  his  former  title.  Osterman 
1:  Baldwin,  6  Wall.  116,  122,  18  L.  Ed. 
730;  Christy  v.  Scott,  14  How.  282,  294, 
14  L.  Ed.  422.  See  post.  "Constitutional 
and   Statutory   Provisions,"  lU,  E,  1,  a,  (3). 

In  the  treaty  by  which  Louisiana  was 
acquired,  the  United  States  stipulated, 
that  the  inhabitants  of  the  ceded  territory 
should  be  protected  in  the  free  enjoyment 
of  their  property;  the  United  States,  as  a 
just  nation,  regard  this  stipulation  as  the 
avowal  of  a  principle  which  would  have 
been   held    equally    sacred,    though    it    had 


not  been  inserted  in  the  contract.  The 
term  "property,"  as  applied  to  lands,  com- 
prehends every  species  of  title,  inchoate 
or  complete;  it  is  supposed  to  embrace 
those  rights  which  lie  in  contract;  those 
which  are  executory,  as  well  as  those 
which  are  executed.  In  this  respect,  the 
relation  of  the  inhabitants  of  Louisiana 
to  their  government  is  not  changed;  the 
new  government  takes  the  place  of  that 
which  has  passed  away.  Soulard  v.  United 
States.  4  Pet.  511,  7  L.  Ed.  938.  See.  gen- 
erally, the  titles  CITIZENSHIP;  IN- 
TERNATIONAL   LAW^ 

9.  As  determined  by  conquest. — United 
States  V.  Repentigny,  5  Wall.  211.  18  L. 
Ed.  627;  Shanks  v.  Dupont,  3  Pet.  242. 
7  L.  Ed.  666;  Boyd  v.  Nebraska,  143  U. 
S.   13.^.  162.  36   L.   Ed.  103. 

Hen.e.  where  on  such  a  conquest,  treaty 
provided  that  the  former  inhabitants  who 
wished  to  adhere  in  allegiance  to  their 
vanquishd  sovereign,  might  sell  their 
property,  provided  they  sold  it  to  a  cer- 
tain class  of  persons  and  within  a  time 
named,  the  property,  if  not  so  sold,  be- 
came abandoned  to  the  conqueror.  United 
States  V.  Repentigny,  5  Wall.  211,  18  L. 
Ed.  627.  See  the  titles  CONSTITU- 
TIONAL LAW;  INTERNATIONAL 
LAW;  WAR.  See  ante,  "Annexation." 
II,  B. 

The  capture  and  possession  of  James 
Island,  in  February,  1789,  and  of  Charles- 
ton, on  the  11th  of  May,  in  the  same  year, 
by  the  British  troops,  was  not  an  abso- 
lute change  of  the  allegiance  of  the  cap- 
tured inhabitants;  they  owed  allegiance  to 
the  conquerors,  during  their  occupation; 
but  it  was  a  temporary  allegiance,  which 
did  not  destroy,  but  only  suspended,  their 
former  allegiance.  Shanks  ?'.  Dupont,  3 
Pet.  242,  246,  7  L.  Ed.  666. 

10.  Ante-Nati. — Dawson  v.  Godfrey,  4 
Cranch  321,  2  L.  Ed.  634;  Inglis  v.  Sailor's 
Snug  Harbor,  3  Pet.  99.  7  L.  Ed.  617; 
Blieht  f.  Rochester,  7  Wheat.  535.  544,  5 
L.  Ed.  516. 


ALIENS. 


215 


of  the  treaty  of  peace,  but  under  the  American  rule,  as  of  the  time  of  the  Dec- 
iaration  of  Independence;  viz.  1776. ^^ 

2.  Infants — a.  Children  Born  before  Division.— The  nationahty  of  an  in- 
fant, born  before  the  division  and  continuing  such  until  after  the  election  of  the 
father  to  continue  his  allegiance  to  the  old  country,  is  determined  by  that  elec- 
tion where  acquiesced  in  by  the  infant  after  becoming  of  age,  and  he  is  an  alien.  12 

b.  Children  Born  after  Division. — In  case  of  birth  in  New  York  after  Ameri- 
can Declaration  of  Independence,  before  its  occupation  by  the  British  troops, 
such  infant  would  share  the  alienage  of  his  father,  subject  to  his  election  to  de- 
termine it  in  a  reasonable  time  after  majority  by  electing  American  nationality. 
If  born  after  such  occupation,  he  was  born  an  alien. ^"^ 


11.  Same. — Inglis  v.  Sailor's  Snug  Har- 
bor. 3  Pet.  99,  7  L.  Ed.  617;  Dawson  v. 
Godfrey,  4  Cranch  321,  2  L.  Ed.  634;  Mc- 
Kinney  v.  Saviego,  18  How.  235.  15  L. 
Ed.  365;  Blight  v.  Rochester,  7  Wheat. 
535,  544,  5  L.  Ed.  516;  Boyd  v.  Nebraska. 
143  U.  S.  135,  163,  36  L.  Ed.  103.  See  post, 
"Right   of   Election,"   II,  D,  3. 

The  rule  as  to  the  point  of  time  at 
which  the  American  ante-nati  ceased  to  be 
British  subjects,  differs  in  this  country 
and  in  England,  as  established  by  the 
courts  of  justice  in  the  respective  coun- 
tries. The  English  rule  is,  to  take  the 
date  of  the  treaty  of  peace  in  1783;  our 
rule  is,  to  take  the  date  of  the  Declaration 
of  Independence.  Inglis  v.  Sailor's  Snug 
Harbor,  3  Pet.  99,  7  L.  Ed.  617;  Daw- 
son V.  Godfrey,  4  Cranch  321.  2  L.  Ed. 
634. 

The  settled  doctrine  in  this  country  is, 
that  a  person  born  here,  but  who  left  the 
country,  before  the  Declaration  of  Inde- 
pendence, and  never  returned  here,  be- 
came an  alien,  and  incapable  of  taking 
lands,  subsequently,  by  descent;  the  right 
to  inherit  depends  upon  the  existing  state 
of  allegiance,  at  the  time  of  the  descent 
cast.  Inglis  v.  Sailor's  Snug  Harbor, 
3  Pet.  99,  7  L.  Ed.  617. 

The  doctrine  of  perpetual  allegiance  is 
not  applied  by  the  British  courts  to  the 
American  ante-nati;  and  this  court,  in 
the  case  of  Blight  v.  Rochester,  7  Wheat. 
535,  544,  5  L.  Ed.  516,  adopted  the  same 
rule  with  respect  to  the  rights  of  British 
subjects  here — that,  although  born  before 
the  revolution,  they  are  equally  incapable 
with  those  born  subsequently  to  that  event, 
of  inheriting  or  transmitting  the  inherit- 
ance of  lands  in  this  country.  Inglis  v. 
Sailor's  Snug  Harbor,  3  Pet.  99,  7  L. 
Ed.   617. 

The  British  doctrine,  therefore,  is,  that 
the  American  ante-nati,  by  remaining  in 
America,  after  the  peace,  lost  their  char- 
acter of  British  subjects;  and  our  doc- 
trine is,  that  by  withdrawing  from  this 
country,  and  adhering  to  the  British  gov- 
ernment, they  lost,  or  perhaps,  more  prop- 
erly speaking,  never  acquired,  the  charac- 
ter of  .\merican  citizens.  Inglis  z'.  Sail- 
or's Snug  Harbor,  3  Pet.  99.  7  L.  Ed. 
617. 

The  constitution  of  Texas  considered  as 


aliens  all  who  did  not  reside  there  at  the 
time  of  the  Declaration  of  Independence, 
unless  they  were  afterwards  naturalized. 
McKinney  v.  Saviego.  18  How.  235,  15 
L.  Ed.  365.  See  post,  where  the  laws  of 
Texas  are  considered  under  "Constitu- 
tional and  Statutory  Provisions,"  III,  E. 
1,  a,   (3). 

A  citizen  of  Mexico  became  an  alien 
to  Texas  by  virtue  of  the  separation  of 
that  state  from  the  rest  of  the  Mexican 
Republic.  Airhart  v.  Massieu,  98  U  S 
491,   495,   25   E.    Ed.    213. 

12.  Alienage  determined  by  father's  elec- 
tion.— Inglis  V.  Sailor's  Snug  Harbor,  3 
Pet.  99.  101,  7  L.  Ed.  617;  Jones  v.  Mc- 
Masters.  20   How.  8,   15   L.   Ed.   805. 

A  person  born  in  New  York,  before  the 
4th  of  July,  1776,  and  who  remained  an 
infant,  with  his  father,  in  the  city  of  New 
York,  during  the  period  it  was  occupied- 
by  the  British  troops,  his  father  being  a 
loyalist,  and  having  adhered  to  the  Brit- 
ish government,  and  left  New  York  with 
the  British  troops,  taking  his  son  with 
him,  who  never  returned  to  the  United 
States,  but  afterward  became  a  bishop 
of  the  Episcopal  church,  in  Nova  Scotia; 
such  a  person  was  born  a  British  subject, 
and  continued  an  alien,  and  is  disabled 
from  taking  land  by  inheritance  in  the 
state  of  «New  York.  Inglis  v.  Sailor's 
Snug  Harbor.  3  Pet.  99,  101.  7  L  Ed 
617. 

Where  a  person  was  born  at  Goliad, 
then  in  the  state  of  Coahuila  and  Texas, 
being  a  part  of  the  republic  of  Mexico, 
which  place  was  also  the  domicil  of  her 
father  and  mother  until  their  deaths,  and 
was  removed  at  the  age  of  four  years,  be- 
fore the  declaration  of  Texan  independ- 
ence, to  Matamoras.  in  Mexico,  this  per- 
son is  an  alien,  and  can  sue  in  the  courts 
of  the  United  States.  Jones  v.  McMasters, 
20  How.  8,  15  L.  Ed.  805.  See  ante. 
"Birth,"  II,  A,  1;  post,  "Burden  of  Proof 
and    Presumptions,"    II,    D,    4. 

13.  Birth  after  division. — Inglis  r.  Sail- 
or's Snug  Harbor,  3  Pet.  99.  7  L.  Ed.  617. 
If  such  a  person  had  been  born  after  the 
4th  of  July.  1776,  and  before  the  15th  of 
September,  1776,  when  the  British  trooi>s 
took  possession  of  the  city  of  New  York 
and  the  adjacent  places,  his  infancy  in- 
capacitated  him   from   making  an   election 


216 


ALIENS. 


3.   Right  of  Election. — As  to  rights  under  treaties,  see  post,  "Treaty  Rights," 

in,  E,  6. 

The  ric'ht  of  election  must  necessarily  exist  in  all  revolutions  like  ours,  and  is 
well  established  by  adjudged  cases. ^-^  But  its  exercise,  to  be  effectual,  must  be 
voluntary  and  final. ^"^ 


for  himself,  and  his  election  and  character 
followed  that  of  his  father,  subject  to 
the  right  of  disafifirniance,  in  a  reasonable 
time  after  the  termination  of  his  minor- 
ity; which  never  having  been  done,  he 
remained  a  British  subject,  and  disabled 
from  inheriting  land  in  the  state  of  New 
York.  Inglis  v.  Sailors  Snug  Harbor,  3 
Pet.  99,  7  L.  Ed.  617.  But  see  opinion  of 
Story,  J.,  dissentiente,  3  Peters   168. 

If  born  after  the  IBritish  took  posses- 
sion of  New  York,  and  before  the  evacu- 
ation on  the  25th  of  November,  1783,  he 
was.  under  the  circumstances  stated  in 
the  case,  born  a  British  subject,  under 
the  protection  of  the  British  government, 
and  not  under  that  of  the  state  of  New 
York,  and,  of  course,  owing  no  allegiance 
to  the  state  of  New  York.  He  was  an 
alien,  and  incapable  of  taking  lands  in 
New  York  by  inheritance.  Inglis  v.  Sail- 
or's Snug  Harbor,  3  Pet.  99.  125,  7  L.  Ed. 
617. 

14.  Existence  of  right. — Inglis  v.  Sailor's 
Snug  Harbor,  3  Pet.  99.  7  L.  Ed.  617;  Mc- 
Ilvaine  v.  Coxe,  4  Cranch  209,  211,  2  L.  Ed. 
598;  White  v.  Burnley,  20  How.  235,  250, 
15  L.  Ed.  886;  Respublica  v.  Chapman, 
1  Dall.  52,  53,  1  L.  Ed.  33.  See  ante,  "In 
General,"   II,  D,  1;  "Infants,"   II.  D,  2. 

The  supreme  court,  in  the  case  of  Mc- 
Ilvaine  v.  Coxe,  4  Cranch  20:J,  2  L.  Ed.  598, 
fully  recognized  the  right  of  election;  but 
tliey  considered  that  Mr.  Coxe  had  lost 
tliat  right  by  remaining  in  the  state  of  New 
Jersey,  not  only  after  she  had  declared 
herself  a  sovereign  state,  but  after  she 
had  passed  laws  by  which  she  declared 
him  to  be  a  member  of,  and  is  allegiance 
to,  the  new  government.  Inglis  v.  Sailor's 
Snug  Harbor,  3  Pet.  99,  100,  7  L.  Ed.  617; 
White  V.  Burnley.  20  How.  235,  250,  15  L. 
Ed.    886. 

He  did  not  become  an  alien  then,  even 
by  joining  the  British  army  during  the 
Revolutionary  war.  Mcllvaine  v.  Coxe. 
4  Cranch  209.  216,  2  L.  Ed.   598. 

On  the  4th  of  October,  1776,  the  state  of 
New  Jersey  was  completely  a  sovereign 
and  independent  state,  and  had  a  right  to 
compel  the  inhabitants  of  the  state  to  be- 
come citizens  thereof,  and  a  person  born 
in  the  colony  of  New  JerseJ^  before  the 
year  1775,  and  residing  there  until  the 
year  1777,  but  who  then  joined  the  British 
army,  and  ever  afterward  adhered  to  the 
British,  claiming  to  be  a  British  subject, 
and  demanding  and  receiving  compensa- 
tion from  that  government,  for  his  loy- 
alty and  his  sufferings  as  a  refugee,  has  a 
right  to  take  lands  by  descent,  in  the 
state  of  New  Jersey.     Mcllvaine  v.  Coxe, 


4  Cranch  209,  2  L.  Ed.  598.  See  case 
argued   but   not   decided   in  2    Cranch   280. 

"Prima  facie,  and  as  a  general  rule,  the 
character  in  which  the  American  ante- 
nati  are  to  be  considered,  will  depend 
upon,  and  be  determined  by,  the  situation 
of  the  party,  and  the  election  made,  at 
the  date  of  the  Declaration  of  Independ- 
ence according  to  our  rule;  or  the  treaty 
of  peace,  according  to  the  British  rule. 
But  this  gerveral  rule  must  necessarily 
be  controlled  by  special  circumstances 
attending  particular  cases.  And  if  the 
right  of  election  be  at  all  admitted,  it 
must  be  determined,  in  most  cases,  by 
what  took  place  during  the  struggle,  and 
between  the  Declaration  of  Independence 
and  the  treaty  of  peace.  To  say.  that  the 
election  nuist  have  been  before,  or  imine- 
diately  at  the  Declaration  of  Independence, 
wQuld  render  the  right  nugatory." 
Inglis  V.  Sailor's  Snug  Harbor,  3  Pet.  99. 
120.  7  L.  Ed.  617. 

Where  an  American  born  woman  was 
of  age,  before  December,  1782,  when  she 
removed  to  England  with  her  husband,  as 
she  remained  in  South  Carolina,  her 
native  state,  until  that  time,  her  birth  and 
residence  must  be  deemed  to  constitute 
her,  b}'  election,  a  citizen  of  South 
Carolina,  Avhile  she  remained  in  that  state; 
if  she  was  not  of  age,  then,  under  the 
circumstances  of  this  case,  she  might  be 
deemed  to  hold  the  citizenship  of  her 
father:  for  children,  born  in  a  country, 
continuing,  while  under  age.  in  the  family 
of  the  father,  partake  of  his  national 
character  as  a  citizen  of  that  country. 
Shanks  v.  Dupont,  3  Pet.  242,  245,  7  L. 
Ed.    666. 

"The  general  doctrine  asserted  in  the 
American  courts  has  been,  that  natives 
who  were  not  here  at  the  Declaration  of 
Independence,  but  were  then,  and  for  a 
long  while  afterwards  remained,  under 
British  protection,  if  they  returned  before 
the  treaty  of  peace,  and  were  here  at  that 
period,  were  to  be  deemed  citizens.  If 
they  adhered  to  the  British  crown,  up  to 
the  time  of  the  treaty,  they  were  deemed 
aliens."  Inglis  v.  Sailor's  Snug  Harbor.  3 
Pet.  99.  160,  7  L.  Ed.  617,  dissenting  opin- 
ion of  Story,  J.  See  post.  "Burden 
of   Proof   and    Presumptions,"    II,    D,   4. 

In  Pennsylvania. — In  Pennsylvania  this 
right  of  election  continued  until  the  11th 
of  February,  1777.  Respublica  v.  Chap- 
man,   1    Dall    52.    53,    1    L.    Ed.    33. 

15.  Departure  involuntary. — White  v. 
Burnley,  20  How.  235.  250,  15   L.   Ed.   886. 

A  grantee  having  been  compelled  to 
leave  Texas,  laere  was  no  evidence  of  his 


ALIEXS. 


217 


4.  Burden  of  Proof  and  Presumptions. — See  post.  "Evidence,"  I\^,  D. 

A  plaintiff  having  been  born  and  having  always  lived  under  the  old  government, 
the  burden  rested  upon  the  defendants,  who  claimed  that  she  was  a  citizen  of 
the  new  one,  to  establish  the  fact  of  the  change  of  her  allegiance  ^^  And  a  prima 
facie  presumption  against  alienage  may  arise  from  being  here  at  the  Declaration 
of  Independence. 1' 

E.  Rights  under  Treaties. — See  post,  "Treaty  Rights,"  III,  E,  6. 

F.  Expatriation. — See  the  title  Citizenship. 

G.  Naturalization. — See  the  title  Naturalization. 

III.    Duties,  Rights  and  Powers. 

As  to  status  generally,  see  ante,  "Definition  and  Status,"  I. 

A.  Allegiance  and  Jurisdiction  over. — See  ante,  "Birth,  Domicile  or  Mar- 
riage," II,  A.     See  the  title  Citizenship. 

1.  Domiciled  Aliens. — Aliens  domiciled  in  the  United  States  owe  a  local  and 
temporary  allegiance  to  the  government  of  the  United  States ;  they  are  bound  to 
obey  all  the  laws  of  the  country,  not  immediately  relating  to  citizenship,  during 
their  residence  in  it,  and  are  equally  amenable  with  citizens  for  any  infraction 
of  those  laws.^* 


voluntary  and  final  abandonment  of  the 
country.  As  there  was  no  evidence,  the 
jury  could  not  express  opinion  upon  the 
subject.  White  v.  Burnley,  20  How.  235. 
15  L.  Ed.  886;  Cook  v.  Burnley,  11  Wall. 
659.   670,    20    L.    Ed.   29. 

Of  infants. — See  ante,  "Infants,"  II, 
D,  2. 

16.  Presumptions  from  birth  and  resi- 
dence.— Jones  :■.  McMasters.  20  How.  8, 
20.  15  L.  Ed.  805.  citing  Inglis  v.  Sailor's 
Snug  Harbor.  3  Pet.  99,  122,  123,  7  L.  Ed. 
617." 

Where  there  was  no  evidence  which 
would  justify  the  court  in  leaving  it  to 
the  jury  to  decide  whether  or  not  a 
grantor  was  an  alien  enemy  when  he 
made  a  conveyance,  he  being  then  a  resi- 
dent of  Louisinna.  the  mere  fact  of  his 
being  a  Spaniard  wns  not  sufficient  for  an 
inference  that  he  was  an  enemy  of  Texas. 
The  averment  in  the  deed  that  he  was  a 
citizen  of  Mexico  was  not  sufficient  to 
establish  alienage.  White  v.  Burnley,  20 
How.    235,    15    L.    Ed.    886. 

17.  Same. — Inglis  v.  Sailor's  Snug 
Harbor.  3   Pet.  99.  122,  7  L.  Ed.  617. 

One  who  was  here,  at  the  time  of  the 
Declaration  of  Independence,  prima  facie, 
may  be  deemed  to  have  become  thereby 
an  American  citizen.  But  this  prima 
facie  presumption  may  be  rebutted;  other- 
wise, there  is  no  force  or  meaning  in  the 
right  of  election.  It  surely  cannot  be 
said,  that  nothing  short  of  actually  re- 
moving from  the  country,  before  the 
Declaration  of  Independence,  will  be  re- 
ceived as  evidence  of  the  election,  where 
every  act  that  could  be  done  to  signify  the 
choice  that  had  been  made,  except 
actually  withdrawinar  from  the  country, 
was  done.  Inglis  z'.  Sailor's  Snug  Harbor. 
3   Pet.  99.  122.  7   L.   Ed.  617. 

Presumption  as  to  election  during 
minority. — If  a  woman  was   competent   to 


make  an  election  while  a  minor,  but  after 
she  had  arrived  at  mature  years,  as  to 
the  government  to  which  she  would  owe 
allegiance,  the  presumption,  upon  the  fact, 
is,  that  she  has  made  it  in  favor  of  the 
one  under  which  she  has  lived  since  her 
birth.  If  she  was  incompetent  to  make  it 
during  her  minority,  then  the  allegiance 
due  at  her  birth  continued,  and  existed 
at  the  time  of  the  commencement  of  the 
suit.  Jones  ?■.  McMasters,  20  How.  8,  20, 
15   L.    Ed.   805. 

Her  allegiance  remained  unchanged,  un- 
less by  her  election,  which  it  was  incum- 
bent on  the  opposite  party  to  show. 
Jones  V.  McMasters,  20  How.  8,  15  L.  Ed. 
805. 

18.  Allegiance  of  domiciled  aliens. — - 
Radich  v.  Hutchins,  95  U.  S.  210,  24  L. 
Ed.  409;  Carlisle  z'.  United  States.  16 
Wall.  147.  21  L.  Ed.  426:  Lau  Ow  Bew 
V.  United  States,  144  U.  S.  47,  36  L.  Ed. 
340;  The  Exchange  i:  McFaddon,  7 
Cranch  116.  143,  3  L.  Ed.  287;  United 
States  V.  Wong  Kim  Ark,  169  U.  S.  649, 
694,  42  L.  Ed.  890. 

"By  general  international  law,  foreign- 
ers who  have  become  domiciled  in  a 
country  other  than  their  own,  acquire 
rights  and  must  discharge  duties  in  many 
respects  the  same  as  possessed  by  and 
imposed  upon  the  citizens  of  that  country, 
and  no  restriction  on  the  footing  upon 
which  such  persons  stand  by  reason  of 
their  domicil  of  choice,  or  commercial 
domicil,  is  to  be  presumed."  Fuller,  C. 
J.,  Lau  Ow  Bew  r.  United  States,  144 
U.  S.  47,  61,  36  L.  Ed.  340,  Brewer.  J., 
dissenting  in  Fong  Yue  Ting  v.  United 
States.    149   U.    S.   698,   736,   37    L.   Ed.   905. 

"When  private  individuals  of  one  nation 
spread  themselves  through  another,  as 
business  or  caprice  may  direct,  mingling 
indiscriminately  with  the  inhabitants  of 
that  other,  or  when  merchant  vessels  enter 


218 


ALIEXS. 


2.  Nonresident  Aliens. — A  nonresident  alien  cannot  be  a  traitor. ^^ 

3.  Crew  of  Vessel  of  Merchant  Marine. — When  a  foreigner  enters  the 
mercantile  marine  of  any  nation  and  becomes  one  of  the  crew  of  a  vessel  having 
undoubtedly  a  national  character,  he  assumes  a  temporary  allegiance  to  the  flag 
under  which  he  serves,  and  in  return  for  the  protection  afforded  him  becomes 
subject  to  the  laws  by  which  that  nation  in  the  exercise  of  an  unquestioned  au- 
thority governs  its  vessels  and  seamen.-*'  The  rule,  thaj  the  vessel  being  Ameri- 
can is"  evidence  that  the  seamen  on  board  are  such,  is  now  an  established  doctrine 
of  this  countrv  ;  and  in  support  of  it  there  is  with  the  American  people  no  di- 
versity of  opinion  and  can  be  no  division  of  action.^i  But  it  is  part  of  the  law 
of  civilized  nations  that  when  a  merchant  vessel  of  one  country  enters  the  ports 
of  another  for  the  purposes  of  trade,  it  subjects  itself  to  the  law  of  the  place 
to  which  it  o-oes,  unless  by  treaty  or  otherwise  the  two  countries  have  come  to 
some  diilerent  understanding  or  agreement.22 


for  the  purposes  of  trade,  it  would  be 
obviously  inconvenient  and  dangerous  to 
society,  and  would  subject  the  laws  to 
continual  infraction,  and  the  government 
to  degradation,  if  such  individuals  or 
merchants  did  not  owe  temporary  and 
local  allegiance,  and  were  not  amenable 
to  the  jurisdiction  of  the  country." 
The  Exchange  v.  McFaddon,  7  Cranch 
116,   143,  3  L.   Ed.  287. 

Liability  for  treason  and  kindred  of- 
fenses.— Aliens  who,  being  domiciled  in 
the  country  prior  to  the  rebellion,  gave 
aid  and  comfort  to  the  rebellion,  were, 
therefore,  subject  to  be  prosecuted  for 
violation  of  the  laws  of  the  United  States 
against  treason  and  for  giving  aid  and 
comfort  to  the  rebellion.  Carlisle  v. 
United  States,  16  Wall.  147.  21  L.  Ed. 
426;  Radich  v.  Hutchins,  95  U.  S.  210,  24 
L.   Ed.   409. 

Aliens  domiciled  in  the  United  States 
in  1862  were  engaged  in  manufacturing 
saltpetre  in  Alabama,  and  in  selling  that 
article  to  the  Confederate  States,  know- 
ing that  it  was  to  be  used  by  them  in  the 
manufacture  of  gunpowder  for  the  pros- 
ecution of  the  war  of  the  rebellion;  held, 
that  they  thus  gave  aid  and  comfort  to 
the  rebellion.  Carlisle  v.  United  States, 
16    Wall.    147,    21    L.    Ed.    426. 

Amnesty. — The  proclamation  of  the 
President  of  the  United  States,  dated  De- 
cember 25th,  1868,  granting  ''uncondition- 
ally, and  without  reservation,  to  all  and 
to  every  person  who,  directly  or  indi- 
rectly, participated  in  the  late  insurrec- 
tion or  rebellion,  a  full  pardon  and  am- 
nesty for  the  ofifense  of  treason  against 
the  United  States,  or  of  adhering  to 
their  enemies  during  the  late  civil  war, 
■with  restoration  of  all  rights,  privileges, 
and  immunities  under  the  constitution  and 
the  laws  which  have  been  made  in  pur- 
suance thereof,''  included  aliens  domiciled 
in  the  country  who  gave  aid  and  comfort 
to  the  rebellion.  Carlisle  v.  United  States. 
16  Wall.  147,  148,  21  L.  Ed.  426.  See  the 
titles  CONFEDERATE  STATES;* 
TREASON:  W.AR.  See  post.  "'Criminal 
Jurisdiction  over  Aliens,"  TIT.  F. 
"Chinese  persons  born  out  of  the  United 


States,  remaining  subjects  of  the  emperor 
of  China,  and  not  having  become  citi- 
zens of  the  United  States,  are  entitled  to 
the  protection  of,  and  owe  allegiance  to, 
the  United  States,  so  long  as  they  are 
permitted  by  the  United  States  to  reside 
here;  and  are  'subject  to  the  jurisdiction 
thereof,'  in  the  same  sense  as  all  other 
aliens  residing  in  the  United  States. 
Yick  Wo  7'.  Hopkins  (I886),  118  U.  S. 
356,  30  L.  Ed.  220;  Lau  Ow  Bew  v.  United 
States  (1892),  144  U.  S.  47,  36  L.  Ed.  340; 
Fong  Yue  Ting  v.  United  States  (1893), 
149  U.  S.  698,  724,  37  L.  Ed.  905;  Lem 
Moon  Sing  v.  United  States  (1895), 
158  U.  S.  538,  547,  39  L.  Ed.  1082;  Wong 
Wing  V.  United  States  (1896),  163  U.  S. 
228,  239,  41  L.  Ed.  140."  United  States  v. 
Wong  Kim  Ark,  169  U.  S.  649,  694,  42 
L.   Ed.  890. 

Authority  of  congress. — See  post, 
"Power  of  Congress  and  States."  V,  A. 

Liability  to  taxation. — It  seems  well 
settled  that  aliens  are  subject  to  ordinary 
reasonable  taxation  in  their  persons  and 
property  by  the  government  where  they 
reside,  as  fully  as  citizens.  Woodbury, 
J.,  dissenting,  in  Passenger  Cases.  7  How. 
238,  532,  12  L.  Ed.  702.  See,  generally, 
the  title  TAXATION. 

19.  Nonresident  alien  incapable  of  trea- 
son.— Young  i'.  United  States,  97  U.  S. 
39,  63,  24  ^  L.  Ed.  992.  See  the  title 
TREASON. 

20.  Crew  of  foreign  merchant  vessel. 
—Ross  V.  Mclntyre.  140  U.  S.  453,  473,  35 
L.  Ed.  581;  United  States  v.  Holmes,  5 
Wheat.    412.   5    L.    Ed.   122. 

"This  law  may  be  suspended  while  he 
is  in  the  ports  of  a  foreign  nation,  but 
where  such  foreign  nation  grants  to  the 
country  which  he  serves  the  power  to  ad- 
minister its  own  laws  in  such  foreign 
territory,  then  the  law  under  which  he 
enlisted  again  becomes  supreme."  Ross 
V.  Mclntyre,  140  U.  S.  453,  474,  35  L. 
Ed.   581. 

21.  Vessel  American,  crew  American. — 
Ross  V.  Mclntyre,  140  U.  S.  453,  479,  35 
L.  Ed.  581. 

22.  Owner  and  crew  of  foreign  vessel 
in     port. — Wildenhus"     Case,     120     United 


ALIEXS. 


219 


4.  Foreign  Public  Vkssel.— A  public  vessel  of  war  of  a  foreign  sovereign  at 
peace  with  the  United  States,  coming  into  our  ports,  and  demeaning  herself  in 
a  friendly  manner,  is  exempt  from  the  jurisdiction  of  the  country.-- 

B.  Right  to  Protection  of  Laws.— Aliens  lawfully  residing  within  the 
United  States,  permanently  or  temporarily,  are  entitled  to  the  equal  protection 
of  the  laws  and  the  United  States  constitution.-^ 

C.  Holding  Office,  Sitting  as  Juror,  or  Voting.— While  alienage  might  have 
been  a  cause  of  challenge,  before  the  juror  was  sworn,  advantage  cannot  be 
taken  of  it,  after  verdict.^^     Nor  does  the  presence  of  an  alien  on  the  grand  jury 


States,  1,  11,  30  L.  Ed.  565.  See,  also, 
The  Exchange  v.  McFaddon,  7  Cranch 
116.  143,  3  L.  Ed.  287;  Ross  v.  Mclntyre. 
140  U.  S.  452,  474,  35  L.  Ed.  581;  Patter- 
son V.  Bark  Eudora,  190  U.  S.  169,  176, 
47    L.    Ed.    1002. 

"As  the  owner  has  voluntarily  taken  his 
vessel  for  his  own  private  purposes  to 
a  place  within  the  dominion  of  a  govern- 
ment other  than  his  own,  and  from  which 
he  seeks  protection  during  his  stay,  he 
owes  that  government  such  allegiance  for 
the  time  being  as  is  due  for  the  protec- 
tion to  which  he  becomes  entitled." 
Wildenhus'  Case.  120  U.  S.  1.  12, 
30  L.  Ed.  565.  See  ante,  "Domiciled 
Aliens,"  III,  A,  1;  post.  "Criminal  Ju- 
risdiction   over    Aliens."    Ill,    F. 

23.  Foreign  public  vessel  exempt  from 
jurisdiction. — The  Exchange  z'.  McFad- 
don. 7  Cranch  116,  3  L.  Ed.  287;  Patter- 
son V.  Bark  Eudora.  190  U.  S.  169,  176, 
47    L.     Ed.     1002. 

"It  may  safely  be  affirmed,  that  there 
is  a  manifest  distinction  between  the  pri- 
vate property  of  the  person  who  hap- 
pens to  be  a  prince,  and  that  military 
force  which  supports  the  sovereign  power, 
and  maintains  the  dignity  and  the  inde- 
pendence of  a  nation.  A  prince,  by  ac- 
quiring private  property  in  a  foreign 
country,  may  possibly  be  considered  as 
subjecting  that  nronertv  to  the  territo- 
rial jurisdiction:  he  mav  be  considered  as 
.«o  far  laying  down  the  prince,  and  as- 
suming the  character  of  a  private  indi- 
vidual; but  this  he  cannot  be  presumed 
to  do,  with  respect  to  any  portion  of  that 
armed  force,  which  vipholds  his  crown, 
and  the  nation  he  is  intrusted  to  gov- 
ern." The  Exchange  v.  McFaddon,  7 
Cranch  116,  145,  3  L.  Ed.  287. 

.\s  to  criminal  jurisdiction,  see  post, 
"Criminal  Jurisdiction  over  Aliens." 
Ill,    F. 

24.  Carlisle  v.  United  States,  16  Wall. 
147,  21  L.  Ed.  426;  Yick  Wo  v.  Hopkins, 
118  U.  S.  356,  371,  30  L.  Ed.  220;  Lau 
Ow  Bew  V.  United  States.  144  U.  S.  47, 
61.  36  L.  Ed.  340;  Fong  Yue  Ting  v. 
United  States,  149  U.  S.  698,  724.  37  L. 
Ed.  905;  Lem  Moon  Sing  v.  United 
States.  158  U.  S.  538,  547,  39  L.  Ed.  1082; 
Wong  Wing  v.  United  States,  163  U.  S. 
228,  239.  41  L.  Ed.  140;  United  States  v. 
Wong  Kim  Ark.  169  U.  S.  649,  694.  42  L. 
Ed.  890.  See  Ah  Sin  v.  Wittman.  198 
U.   S.   500,   49   L.   Ed.    1142.      See,  however, 


post,  "Admission  or  Exclusion  of  Aliens 
or  Immigrants,"  V.  And  see  the  title 
CONSTITUTIONAL  LAW. 

"By  the  law  of  nations,  doubtless,  aliens 
residing  in  a  country,  with  the  intention 
oi  making  it  a  permanent  place  of  abode, 
acquire,  in  one  sense,  a  domicil  there;  and, 
while  they  are  permitted  by  the  nation 
to  retain  such  a  residence  and  domicil, 
are  subject  to  its  laws,  and  may  invoke 
its  protection  against  other  nations." 
(Gray,  J.)  Fong  Yue  Ting  v.  United 
States,    149   U.   S.   698,   724.   37    L.    Ed.    905. 

"Aliens  from  countries  at  peace  with 
us,  domiciled  within  our  country  by  its 
consent,  are  entitled  to  all  the  guaran- 
ties for  the  protection  of  their  persons 
and  property  which  are  secured  to  native- 
born  citizens."  Field,  J.,  dissenting  in 
Fong  Yue  Ting  v.  United  States,  149  U. 
S.    698.    754.    37    L.    Ed.    905. 

"That  those  who  have  become  domi- 
ciled in  a  country  are  entitled  to  a  more 
distinct  and  larger  measure  of  protection 
than  those  who  are  simply  passing 
through,  or  temporarily  in  it,  has  long 
been  recognized  by  the  law  of  nations." 
Brewer.  J.,  dissenting  in  Fong  Yue  Ting 
r.  United  States.  149  U.  S.  698,  734,  37  L. 
Ed.   905. 

But  it  was  held,  however,  in  Baldwin 
z'.  Franks,  120  U.  S.  678,  30  L.  Ed.  766,  that 
aliens  were  not  protected  by  federal  leg- 
islation against  conspiracy  to  deprive 
them  of  rights  guaranteed  them  under 
treaties,  and  that  such  legislation  for  the 
protection  of  "citizens."  did  not  include 
within  its  purview  resident  aliens.  See 
dissenting  opinions  of  Harlan  and  Field, 
J.J.  See.  also,  the  titles  CHINESE  EX- 
CLUSION  ACTS;   CITIZENSHIP. 

Necessary  averments. — Where  it  is 
claimed  that  the  enforcement  of  a  munic- 
ipal ordinance  denies  to  Chinese  per- 
sons the  equal  protection  of  the  law  by 
being  executed  solely  against  them,  it 
must  be  averred  also  that  the  conditions 
and  practices  to  which  it  is  properly  di- 
rected did  not  exist  exclusively  among 
them,  or  that  there  were  other  offenders 
than  the  Chinese  against  whom  it  was 
not  enforced.  Ah  Sin  v.  Whittman,  198 
U.  S.  500,  49  L.  Ed.  1142. 

25.  Alienage  of  juror  not  a  fundamental 
defect. — Hollinsisworth  v.  Duane.  4  Dall. 
353,  1  L.  Ed.  864;  Kohl  v.  Lehlback,  160 
U.   S.  293.  302,  40  L.   Ed.  432. 

"In    Hollingsworth    v.    Duane.    reported 


120 


ALIENS. 


which  found  the  indictment  deprive  the  court  of  jurisdiction  to  try  the  accused 
thereunder. 2" 

Right  to  Vote  and  Hold  Office  Confined  to  Citizens. — Ahens  differ  only 
from  citizens  in  that  they  cannot  vote  or  hold  any  pubHc  office. 2''' 

D.  Suing  and  Being  Sued. — See  the  title  Courts.  As  to  maritime  con- 
tracts and  causes  of  action,  see  the  title  Admiralty,  ante,  p.  119. 

1.  Suits  bKTwEKn  Aliens. — It  was  doubted,  in  one  early  case,  whether  the 
federal  courts  have  jurisdiction  in  cases  between  aliens  ;^^  in  another  it  was 
unanimously  held,  that  no  such  jurisdiction  existed  \^^  and  in  three  later  cases  it 
was  expressly  declared  that  congress  had  no  power  to  confer  such  jurisdiction.^*' 
But  these  were  all  cases  arising  in  a  federal  court  for  a  state,  and  in  a  very 
recent  case,  without  alluding  to  these  earlier  cases,  the  supreme  court  unani- 
mously held  that  congress  had  conferred  such  jurisdiction,  i.  e.,  where  the  par- 
ties on  both   sides  were  aliens,  on  the   federal   district  court  for   Porto  Rico.^^ 


in  Wallace  C.  C.  Reports,  147.  and  also, 
but  imperfectly,  in  4  Dall.  353.  1  L.  Ed. 
864,  it  was  held,  by  the  circuit  court  of 
the  United  States  for  the  eastern  district 
of  Pennsylvania,  at  October  term,  1801, 
that  alienage  of  a  juror  is  cause  of  chal- 
lenge, but  it  is  not  per  se  sufficient  to  set 
aside  a  verdict,  and  this  whether  the  party 
complaining  knew  of  the  fact  or  not;  and 
that  this  was  the  rule  at  common  law  as 
shown  by  authorities  cited  from  the  Year 
Books  and  otherwise."  Kohl  z'.  Lehlback, 
160  U.  S.  293.  300,  40  L.  Ed.  432.  See  the 
titles   JUFY;    PUBLIC   OFFICERS. 

"The  disqualification  of  alienage  is 
cause  of  challenge  propter  defectum,  on 
account  of  personal  objection,  and  if, 
voluntarily,  or  through  ne.gligence,  or 
want  of  knowledge,  such  objection  fails 
to  be  insisted  on,  the  conclusion  that  the 
judgment  is  thereby  invalidated  is  wholly 
inadmissible.  The  defect  is  not  funda- 
mental as  affecting  the  substantial  rights 
of  the  accused,  and  the  verdict  is  not 
^"oid  for  want  of  power  to  render  it. 
United  States  v.  Gale,  109  U.  S.  65.  72, 
2~  L.  Ed.  857.  Whether,  where  the  de- 
f  ndant  is  without  fault  and  may  have 
1  en  prejudiced,  a  new  trial  may  not  be 
f  "anted  on  such  a  ground,  is  another 
question."  Kohl  v.  Lehlback,  160  U.  S. 
293.    302.    40    L.    Ed.    432. 

26.  Alienage  of  grand  juror. — "The  fact 
that  a  law  of  the  territory  allowed  an 
r.lien  who  had  declared  his  intention  to 
become  a  citizen  of  the  United  States  to 
s't  on  a  grand  jury,  and  that  an  alien  did 
?"  fact  sit  on  the  jury  that  found  the  in- 
d'ctment  against  this  petitioner,  did  no,t 
f'-^prive  the  court  of  its  jurisdiction  for 
h'"^  trial  under  the  indictment.  The  ob- 
j^'-tion,  if  it  be  one,  goes  only  to  the 
Tf-'^ularity  of  the  proceedings,  not  to  the 
h'risdiction  of  the  court."-  Ex  parte 
H?rding,  120  U.  S.  782.  784.  30  L.  Ed. 
824. 

27.  Fong  Yue  Ting  v.  Unit.^  States, 
140  U.  S.  69S,  754,  37  L.  Ed.  905.  See  the 
titles  CITIZENSHIP;  ELECTIONS- 
PUBLIC   OFFICERS. 

28.  Suits       between       aliens. — Qusre, 


whether  the  courts  of  the  United  States 
have  jurisdiction  in  cases  between  aliens. 
Bailiff  V.  Tipping,  2  Cranch  406,  2  L.  Ed. 
320. 

29.  In  Montalet  v.  Murray,  4  Cranch 
46,  2  L.  Ed.  545,  the  court  was  unani- 
mously of  opinion,  that  the  courts  of  the 
United  States  have  no  jurisdiction  of  cases 
between    aliens. 

30.  Limitation  on  power  of  congress. 
— Mossman  7\  Higginson.  4  Dall.  12.  1  L. 
Ed.  720:  Hodgson  t'.  Bower  Bank,  5 
Cranch  303,  3  L.  Ed.  108;  Jackson  v. 
Twentyman,   2    Pet.    136,   7   L.    Ed.    374. 

The  power  of  congress  to  confer  juris- 
diction on  the  federal  courts  of  suits 
'where  an  alien  is  a  party."  is  confined 
to  suits  between  citizens  and  foreigners. 
Mossman  z'.  Higginson.  4  Dall.  12,  1  L. 
Ed.  720;  Hodgson  v.  Bower  Bank,  5 
Cranch  303,  3  L.  Ed.   108. 

The  nth  section  of  the  act  of  1789  (giv- 
ing jurisdiction  where  an  alien  is  a  party), 
must  be  construed  in  connection  with, 
and  in  conformity  to,  the  constitution  of 
the  United  States;  by  this  latter,'  the  ju- 
dicial power  does  not  extend  to  private 
suits  in  which  an  alien  is  a  party,  unless 
a  citizen  be  the  adverse  party;  and  it  is 
indispensable,  to  aver  the  citizenship  of 
the  defendants,  to  show,  on  the  record, 
the  jurisdiction  of  the  court.  Jackson  v. 
Twentyman,  2   Pet.   136,  7   L.   Ed.   374. 

31.  Recent  ruling  as  to  Porto  Rico. — 
The  district  court  of  the  United  States 
for  the  district  of  Porto  Rico  has  juris- 
diction of  a  cause,  where  the  parties  on 
both  sides  were  subjects  of  the  king  of 
Spain.  Ortega  v.  Lara,  202  U.  S.  339.  50 
L.    Ed.    1055. 

The  court  said:  '"The  jurisdiction  of 
the  District  Court,  when  the  parties  on 
both  sides  M'ere  subjects  of  th^  King  of 
Spain,  has  several  times  been  sustained 
by  this  court,  and  we  do  not  feel  required 
in  this  case  to  make  anv  other  ruling." 
Citing  §  3,  of  Act  of  March  2,  1901,  ''31 
Stat.  93,  c.  812,  as  conferring  such  ju- 
risdiction. Ortega  v.  Lara,  202  U.  S.  339, 
50  L.  Ed.  1055.  See,  also,  Perez  v.  Fer- 
nandez, 202  U.  S.  80,  50  L.   Ed.  942.     And 


ALIENS. 


221 


2.  Suits  between  AeiEns  and  Citizens.— As  to  pleading,  see  post,  "Plead- 
ing and  Practice,"  IV.  ' 

a.  In  Geii^ral. —Where  all  the  substantial  plaintiffs,  for  whose  benefit  the  de- 
cree is  sought,  are  aliens,  the  United  States  circuit  courts  have  original  juris- 
diction between  them  and  all  the  defendants,  citizens  of  the  United  States.32 
Although  the  iwminal  plaintiffs  may  be  citizens  suing  for  aliens.^s     His  becoming 


see,  post,  "Averments  as  to  Alienage  or 
Citizenship."    IV,    A,    1. 

In  courts  of  admiralty. — See  the  title 
ADMIRALTY,  ante,  p.  119. 

32.  Jurisdiction  of  circuit  courts. — 
Conolly  z:  Taylor,  2  Pet.  5S6.  7  L.  Ed. 
518;  Bors  v.  Preston.  Ill  U.  S.  252,  28  L. 
Ed.  419;   Gracie  z\   Palmer,  8  Wheat.   699, 

5  L.  Ed.  719;  Weems  v.  George,  1,'!  How. 
190,  14  L.  Ed.  108;  Hennessy  i:  Richard- 
son Drug  Co.,  189  U.  S.  25,  47  L.  Ed. 
697;    Hughes   v.    Edwards,    9    Wheat.    489, 

6  L.  Ed.  142;  Hepburn  v.  Dunlop,  1 
Wheat.  179.  4  L-  Ed.  65;  Chisholm  v. 
Georgia,  2  Dall.  419,  1  L.  Ed.  440;  La- 
cassagne  v.  Chapuis,  144  U.  S.  119, 
126,  36  L.  Ed.  368;  Re  Hohorst, 
150  U.  S.  653.  37  L.  Ed.  121.  See, 
generally,    the    title    COURTS. 

By  the  act  of  March  3,  1887,  c.  373.  § 
1,  as  corrected  by  the  act  of  August  13, 
1888,  c.  886,  24  Stat.  552;  25  Stat.  434, 
congress,  following  the  very  words  of  the 
constitution,  has  vested  in  those  courts 
jurisdiction  of  controversies  between  citi- 
zens of  a  state  and  foreign  states,  citi- 
zens or  subjects.  Re  Hohorst,  150  U.  S. 
653,  659,  37  L.  Ed.  1211;  Press  Pub.  Co. 
V.  Monroe,  164  U.  S.  105.  110,41  L.  Ed.  367. 

Where  it  affirmatively  appears  from  the 
pleadings  that  complainants  are  citizens 
of  a  foreign  state  and  defendant  a  citizen 
of  a  state,  no  issue  of  fact  ari'^ing  in  that 
regard,  the  federal  circuit  court  has  juris- 
diction. Henessy  z'.  Richardson  Drug  Co., 
189  U.   S.   25.  47   L.   Ed.   697. 

Where  there  was  a  sale  of  an  undi- 
vided moiety  of  a  tract  of  land,  and  the 
purchaser  undertook  to  extinguish  cer- 
tain liens  upon  it,  which  he  failed  to  do; 
and  in  consequence  of  such  failure  the 
liens  were  enforced,  and  had  to  be  paid  by 
the  alien  heirs  of  the  original  owner,  wlio 
was  a  citizen  of  same  state  with  defendant, 
a  suit  by  these  heirs  against  the  purchaser 
to  recover  damages  for  the  nonfulfillment 
of  his  contract  to  extinguish  the  liens,  was 
not  within  the  prohibition  of  the  11th  sec- 
tion of  the  judiciary  act.  1  Stat,  at  L.,  78. 
The  heirs,  being  aliens,  had  a  right  to 
sue  in  the  circuit  court,  for  thev  did  not 
claim  as  assignees.  Weems  v.  George,  13 
How.  190.  14  L.   Ed.  108. 

Alien  trustees. — Where  the  plaintiffs 
are  aliens,  althdugh  they  sue  as  trustees, 
yet  they  are  entitled  to  sue  in  the  circuit 
court.  Chappedelaine  z'.  Dechenaux,  4 
Cranch    306,    2    L.    Ed.    629. 

Under  treaty.— By  the  fifth  article  of 
the  treaty  of  peace  with  Great  Britain  "it 
is  agreed,  that   all  persons   who   have   any 


interest  in-  confiscated  lands,  either  by 
debts,  marriage  settlements  or  otherwise, 
shall  meet  with  no  lawful  impediment  in 
the  prosecution  of  their  just  rights."  The 
interest  by  debt,  intended  to  be  protected 
by  the  treaty,  must  be  an  interest  hoWen 
as  a  security  for  money  at  the  time  of  the 
treaty;  and  the  debt  must  still  remain  due. 
Owings  V.  Norwood,  5  Cranch  344,  345, 
3  L.  Ed.  120.  See  Higginson  v.  Mein,  4 
Cranch  415,  2  L.  Ed.  664. 

In  Virginia. — Legal  impediments  to  the 
recovery  of  British  debts  existed  in  Vir- 
ginia, until  the  year  1793.  Dunlop  v. 
Ball,  2   Cranch  180,  2  L.   Ed.  246. 

In  Texas. — Several  cases  have  undoubt- 
edly decided  that  an  alien  cannot  sue  for 
lands  in  Texas.  "The  last  ca«e  referred 
to  is  that  of  White  v.  Sabriego  (23  Tex. 
243),  which  presented  the  naked  question 
of  alienage  as  a  bar.  The  court,  however, 
stated  that  under  special  circumstances 
aliens  may  sue;  that  is,  under  circum- 
stances which  entitle  them  to  hold  land; 
as,  where  they  have  a  title  emanating  di- 
rectly from  the  government,  or  where 
they  acquired  land  by  descent  or  purchase 
before  the  division  of  the  empire  and  the 
change  of  government.  In  the  subsequent 
case  of  Sabriego  v.  White  (30  Tex.  576), 
involving  the  same  title,  the  plaintiff 
showed  that  the  land  was  granted  to  her 
mother  before  the  revolution;  and  that  her 
mother  (with  herself)  removed  to  Mat- 
amoras  during  the  revolution,  and  her 
mother  died  there  in  1842;  and  that  the 
plaintiff  had  ever  since  continued  to  re- 
side in  Matamoras.  remaining  a  Mexican 
citizen.  The  court  held  that  the  plaintiff 
lawfully  succeeded  to  her  mother's  rights, 
and  retained  her  title  to  the  property,  no 
office  having  been  found  to  forfeit  it  and 
hence  that  she  was  entitled  to  maintain 
her  action.  The  case  of  Jones  v.  Mc- 
Masters  (20  How._  822,  15  L.  Ed.  805)  is 
also  a  case  in  point  on  this  question,  it 
being  there  held  that  alienage  was  no 
bar  to  an  action,  if  the  title  of  the  alien 
was  good;  and  the  title  was  held  good  as 
against  third  persons  until  office  found, 
and  a  judgment  of  forfeiture."  Airhart 
V.  Massieu.  98  U.  S.  491.  499,  25  L.  Ed. 
213.  Where  it  was  held,  that  alienage  was 
no  objection  to  the  right  to  vindicate  the 
plaintiff's  title  in  the  courts  here.  See 
post,    "Real    Property."    Ill,    E.    1. 

33.  Citizen  nominal  party. — The  courts 
of  the  United  States  have  jurisdiction  in 
a  case  between  citizens  of  the  same  state, 
if  the  plaintiffs  are  only  nominal  plaintiffs, 
for  the  use  of  an  alien.  Browne  v.  Strode, 
5  Cranch  303,  3  L.   Ed.  108. 


')77 


ALIENS. 


a  citizen  pending.the  suit  will  not  divest  the  jurisdiction  ■,^*  and  the  aHen  may  be 
a  foreign  consul  as  well.^^  But  the  citizen  defendant  in  suit  by  alien  must  be  a 
lesident  of  the  United  States,  to  give  its  circuit  courts  jurisdiction  of  the  suit.^^ 

b.  Alien  Residents. — Aliens  do  not  lose  their  right  to  sue  in  the  federal  courts 
by  residence  within  one  of  the  United  States.^" 

c.  Venue,  Scope  and  Rule  of  Decision. — An  alien  is  assumed  not  to  reside  in 
the  United  States,  and  hence  must  resort  to  the  domicil  of  the  defendant  when 
he  sues.  On  the  other  hand,  if  the  suit  be  against  the  alien,  he  may  doubtless 
be  sued  in  any  district  wherein  he  is  found. -^^  Where  the  jurisdiction  of  the 
United  States  circuit  court  in  construing  a  slate  statute  was  based  upon  the  fact 
that  the  plaintiffs  were  aliens  and  subjects  of  Great  Britain,  that  court  had  the 
same  jurisdiction  as  a  state  court  would  have  had  to  try  the  whole  question  and 
to  examine  and  decide  not  only  as  to  its  conformity  with  the  federal  constitu- 
tion, but  in  addition  whether  the  act  were  a  violation  of  the  state  constitution, 
and  whether  the  provisions  of  the  act  itself  had  been  complied  with.  In  exer- 
cising that  jurisdiction  it  was  nevertheless  the  duty  of  the  trial  court  to  follow 
and  he  guided  by  the  decisions  of  the  highest  state  court,  upon  the  construction 
of  the  statute,  and  upon  the  question  whether,  as  construed,  the  statute  violated 
any  provision  of  the  state  constitution.     The  same  duty  rests  upon  the  federal 


34.     Citizenship    acquired    pending    suit. 

■ — If  an  alien  becomes  a  citizen,  pending 
the  suit,  the  jurisdiction  which  was  once 
vested,  is  not  divested  by  this  circum- 
stance. C-nollv  V.  Taylor,  2  Pet.  556, 
565.  7   L.    Ed.   518. 

W>iere  plaintiff  was  an  alien  when  the 
suit  began,  he  had  the  right  to  sue  in  the 
cnnrts  of  the  United  States.  Cook  v. 
Lillo,    103    U.    S.    792.    26    L.    Ed.    460. 

?5.  Alien  as  foreign  consul. — The  ju- 
ri'^d'ction  of  the  circuit  courts,  conferred 
without  qualification,  of  a  controversy  be- 
tween a  citizen  and  an  alien,  is  not  de- 
feated by  the  fact  that  the  alien  happens 
to  b-e  the  consul  of  a  foreign  government. 
Bors  V.  Preston,  111  U.  S.  252,  261.  28 
L.    Ed.    419. 

36.  Nonresident  citizen  defendant  not 
suable. — -"Where  a  party  defendant  was  a 
citizen  of  the  United  States,  but  resident 
in  a  foreign  country,  having  no  inhabit- 
ancy in  any  state  of  the  Union,  the  cir- 
cuit courts  had  no  jurisdiction  over  him 
in  a  suit  brought  by  an  alien,  though  his 
property  were  attached  in  the  district." 
Galveston,  etc.,  Railwav  v.  Gonzales,  151 
U.  S.  496.  500.  38  L.  Ed.  248.  See  post. 
"Venue,  Scope  and  Rule  of  Decision." 
III.    D,   2,   c. 

37.  Alien  residents  can  sue. — If  origi- 
nally aliens,  they  did  not  cease  to  be  so, 
nor  lose  their  right  to  sue  in  the  federal 
court,  by  a  residence  in  Louisiana;  neither 
the  constitution  nor  the  acts  of  congress 
require  that  aliens  should  reside  abroad, 
to  entitle  them  to  sue  in  the  courts  of 
the  United  States.  Breedlove  z'.  Nicolet, 
7    Pet.   413,   8    L.    Ed.   731. 

38.  Venue. — Galveston,  etc..  Railway  7'. 
Gonzales,  151  U.  S.  496,  503,  38  L.  Ed.  248; 
Re  Hohorst.  150  U.  S.  653.  662.  37  L.  Ed. 
1211. 

"Tn   the   case   of   Re   Hohorst,   150  U.   S. 


653,  37  L.  Ed.  1211,  *  *  *  jt  .^^^s  held, 
that  the  clause  in  question  (act  of  Aug. 
13.  1888,  c.  866,  25  Stat.  433,  revising  ju- 
risdiction of  circuit  courts),  that  no  civil 
suit  should  be  brought  against  any  per- 
son in  any  other  district  than  that  whereof 
he  was  an  inhabitant,  was  manifestly  inap- 
plicable to  a  suit  brought  by  a  citizen  of 
one  of  the  United  States  against  an  alien, 
and  that  the  words  of  the  provision  evi- 
dently looked  to  those  persons,  and  those 
persons  only,  who  were  inhabitants  of 
some  district  within  the  United  States." 
Galveston,  etc..  Railwav  z'.  Gonzales.  151 
U.    S.    496.    503,    38    L.    Ed.    248. 

Especially  in  a  suit  for  the  infringement 
of  a  patent  right;  and  consequently,  such 
a  person  may  be  sued  by  a  citizen  of  a 
state  of  the  Union  in  any  district  in  which 
valid  service  can  be  made  upon  the  de- 
fendant. Re  Hohorst,  150  U.  S.  653.662, 
37  L  Ed.  1211;  Ex  parte  Louisville  Un- 
derwriters.   134   U.    S.   488,    33    L.    Ed.    991. 

It  i':  there  enacted  that  "no  civil  suit 
shall  be  brought  before  either  of  said 
courts  against  any  person  by  any  original 
process  or  proceeding  in  anv  other  dis- 
trict than  that  whereof  he  is  an  inhabi- 
tant; but,  where  the  jurisdiction  is  founded 
only  on  the  fact  that  the  action  is  be- 
tween citizens  of  dififerent  states,  suit 
shall  be  brought  only  in  the  district  of  the 
residence  of  either  the  plaintiff  or  the  de- 
fendant." Of  these  two  provisions,  the 
latter  relates  only  to  suits  between  citi- 
zens of  different  states  of  the  Union,  and 
is  therefore  manifestly  inapplicable  to  a 
suit  brought  by  a  citizen  of  one  of  these 
states  against  an  alien.  And  the  former 
of  the  two  orovisions  cannot  reasonably 
bo  construed  to  apply  to  such  a  suit." 
Re  Hohorst,  150  U.  S.  653.  660.  37  L.  Ed. 
1211;  Barrow  S.  S.  Co.  z'.  Kane,  170  U. 
S.    100,    112,    42    L.   Ed.    964. 


ALIENS. 


223 


supreme  court,  and   it  has   been   so  determined   from   the   earHest  period   of   its 
history. ^^ 

3.  Suits  between  a  State  and  an  Alien. — Where  a  state  has  a  controversy 
with  an  ahen  about  a  contract,  or  other  matter  of  a  civil  nature,  the  supreme  court 
of  the  United  States  has  original  jurisdiction  of  it,  and  the  circuit  or  district 
courts  have  nothing  to  do  with  such  a  case.^»  And  that  the  federal  courts  can- 
not entertain  a  suit  brought  against  a  state  by  an  alien,  is  not  to  be  controverted.^ i 

4.  Suits  by  Aliens  against  the  United  States. — The  privilege  of  suing 
in  the  court  of  claims  on  claims  against  the  United  States  is  accorded  to  such 
aliens  only  whose  governments  accord  essentially  the  same  privilege  to  citizens 
of  the  United  States.^s 

5.  Suits  by  Foreign  Governments. — A  foreign  government  may,  if  it  see 
fit.  submit  its  case  to  the  courts  of  the  country  with  whose  citizens  its  contro- 


39.  Scope  and  rule  of  decision. — Fall- 
brook  Irrigation  District  v.  Bradley,  164 
U.  S.  112.  1.54.  41  L.  Ed.  369.  See  the 
titles  CONSTITUTIONAL  LAW; 
COURTS. 

Pleading  and  objections  to  jurisdiction, 
see    post,    "Pleading    and    Practice."    IV. 

40.  Jurisdiction  exclusive  in  supreme 
court.- — Respnblica  v.  Cobbett,  3  Dall.  467, 
475,  1  L.  Ed.  683.  See  Chisholm  v.  Geor- 
gia,   2    Dall.    419,    1    L,    Ed.    440. 

41.  State  cannot  be  sued. — See  the 
eleventh  amendment  to  federal  constitu- 
tion. Osborn  v.  United  States.  9  Wheat. 
738,  903,  6  L.  Ed.  204.  See  Chisholm  v. 
Georgia,  2  Dall.  419,  1  L.  Ed.  440.  See 
the  title  STATES. 

42.  United  States  v.  O'Keefe.  11  Wall. 
178.  20  L.  Ed.  131;  Carlisle  v.  United 
States,  16  Wall.  147.  21  L.  Ed.  426.  See, 
generally,  the  titles  COURTS;  UNITED 
ST.ATES. 

"One  nation  treats  with  the  citizens  of 
another  only  through  their  government. 
A  sovereign  cannot  be  sued  in  his  own 
courts  without  his  consent.  His  own 
dignity,  as  well  as  the  dignity  of  the 
nation  he  represents,  prevents  his  ap- 
pearance to  answer  a  suit  against  him  in 
the  courts  of  another  sovereignty,  except 
in  performance  of  his  obligations,  by 
treatj^  or  otherwise,  voluntarily  assumed. 
Hence,  a  citizen  of  one  nation  wronged 
by  the  conduct  of  another  nation,  must 
seek  redress  through  his  own  govern- 
ment. His  sovereign  must  assume  the 
responsibility  of  presenting  his  claim,  or 
it  need  not  be  considered.  If  this  re- 
sponsibility is  assumed,  the  claim  may  be 
prosecuted  as  one  nation  proceeds  against 
another,  not  by  suit  in  the  courts,  as  of 
right,  but  by  diplomacy,  or,  if  need  be,  by 
war.  It  rests  with  the  sovereign  against 
whom  the  demand  is  made  to  determine 
for  hinT^elf  what  he  will  do  in  respect  to 
it.  He  mav  pay  or  reject  it;  he  may  sub- 
mit to  arbitration,  open  his  own  courts 
to  suit,  or  consent  to  be  tried  in  the 
courts  of  another  nation.  All  depends 
tipon  himself."  United  States  v.  Diekel- 
man,  92  U.  S.  .520.  524.  23  L.  Ed.  742. 
See  the  title   INTERNATIONAL  LAW. 


District  court  for   Porto   Rico. — By  the 

act  of  April  12,  1900,  the  district  court  of 
the  United  States  for  Porto  Rico  was 
given,  "in  addition  to  the  ordinary  juris- 
diction of  district  courts  of  the  United 
States,  jurisdiction  of  all  cases  cognizant 
in  the  circuit  courts  of  the  United  States, 
and  shall  proceed  in  the  same  manner 
as  a  circuit  court."  31  Stat.  8.5,  c.  191, 
§  34.  If,  therefore,  an  action  could  have 
been  brought  in  a  district  or  circuit 
court  of  the  United  States,  it  was  within 
the  cognizance  of  this  court.  This  is 
determined  by  the  act  of  March  3,  1887, 
commonly  known  as  the  "Tucker  Act," 
and  which  provides  for  the  bringing  of 
suits  a.gainst  the  government  of  the 
United  States.  24  Stat.  .505,  c.  359.  Hijo 
V.  United  States,  194  U.  S.  315,  321,  48 
L.    Ed.    994. 

Quaere,  whether  the  requirement  in  the 
Tucker  Act,  that  the  petition  shall  be 
filed  "in  the  district  where  the  plaintiff 
resides,"  precludes  a  suit  against  the 
United  States  by  any  person,  natural  or 
corporate,  residing  out  of  the  country. 
Hijo  V.  United  States,  194  U.  S.  315,  322, 
48    L.   Ed.  994. 

British  subjects. — By  the  proceeding 
known  as  a  "petition  of  right."  the  gov- 
ernment of  Great  Britian  accords  to 
citizens  of  the  United  States  the  right 
to  prosecute  claims  against  the  govern- 
ment in  its  courts,  and  therefore  British 
subjects,  if  otherwise  entitled,  may,  un- 
der the  act  of  congress  of  July  27th,  1868, 
prosecute  claims  against  the  United 
States  in  the  court  of  claims.  Carlisle  v. 
United  States,  16  Wall.  147,  21  L.  Ed. 
426;  United  States  v.  O'Keefe,  11  Wall. 
178.  20   L.   Ed.  131. 

Accordingly.  British  subjects,  if  other- 
wise entitled,  may  recover  by  process  in 
our  court  of  claims  the  proceeds  of  cap- 
tured and  abandoned  property;  a  privilege 
granted  only  to  the  citizens  or  subjects  of 
such  foreign  governments  as  accord  to 
our  citizens  the  right  to  prosecute  claims 
against  such  governments  in  their  i-onrts. 
United  States  v.  O'Keefe,  11  Wall.  178, 
20  L.  Ed.  131.  See.  generally,  the  title 
ABANDONED  AND  CAPTURED 
PROPERTY,  ante,  p.  1. 


224 


ALIENS. 


versy  exists,  and  tlie  federal  circuit  courts  have  jurisdiction,  but  it  has  the  rig/it 
ot  appeal  there  from. -^-^  And  the  right  of  a  foreign  sovereign  to  sue  is  not  de- 
feated, nor  does  such  suit  abate,  by  change  in  the  person  of  such  sovereign.-** 

6.  Suits  by  and  against  Alien  Enemies. — See  the  title  Confederate 
States;  War. 

7.  Suits  to  Enforce  Title  to  Land — Alien  Mortgagee. — An  alien  cannot 
have  an  action  to  enforce  the  title  to  land  which  he  has  taken  by  way  of  pur- 
chase ;  but  the  supreme  court  has  decided,  in  Hughes  v.  Edwards,  9  Wheat. 
489,  6  L.  Ed.  142.  that  an  alien  mortgagee  may  have  the  aid  of  a  court  of  equity 
to  foreclose  a  mortgage  by  a  sale,  because  the  debt  is  the  principal  thing  and 
the  land  only  an  incident. ^ 

E.  Property  Rights — 1.  Real  Property — a.  Right  to  Acquire  and  Hold 
—  {\)- At  Common  Lazv — (a)  By  InheritarKe. — The  common  law,  unmodified 
by  statute  or  treaty,  would  have  excluded  aliens  from  inheriting  lands  in  the 
United  States  from  a  citizen  thereof.  Its  doctrine  is  that  aliens  have  no  inherit- 
able blood  through  which  a  title  can  be  transferred  by  operation  of  law.^^  There 
is  no  admitted  difference   between  alien   friends  and  enemies   in  this  respect.'*^ 


43.  Suits  by  foreign  states  and  right  of 
appeal. — Colombia  v.  Cauca  Co.,  190  U. 
S.  524.  47  L.  Ed.  1159;  The  Sapphire,  11 
Wall.  164,  20  L.  Ed.  127.  See  Cherokee 
Nation   v.    Georgia,    5    Pet.    18    L.    Ed.    25. 

Where  a  foreign  government  has  seen 
fit  to  submit  its  case  to  the  courts  of  the 
country  with  whose  citizens  its  contro- 
versy exists,  it  would  be  unfortunate  if 
through  any  mistake  it  was  prevented 
from  carrying  questions  of  law  to  the 
court  of  last  resort,  and  it  had  the  right 
to  appeal.  The  circuit  court  had  juris- 
diction under  the  constitution,  article  3, 
§  2,  and  the  act  of  August  13,  1888,  c.  866, 
§  1,  25  Stat.  434,  as  the  suit  is  "a  con- 
troversy between  citizens  of  a  state  and 
foreign  states,  citizens,  or  subjects." 
within  the  words  and  meaning  of  the  act. 
The  Sapphire,  11  Wall.  164.  167,  20  L. 
Ed.  127.  The  right  to  appeal  from  the 
decree  of  the  circuit  court  of  appeals  is 
given  by  the  act  of  March  3,  1891,  c.  517, 
§  6,  26  Stat.  826.  828.  "in  all  cases  not 
hereinbefore,  in  this  section,  made  final." 
The  only  words  of  the  section  relied  upon 
as  making  the  decree  of  the  circuit  court  of 
appeals  final  are  those  which  declare  it  so 
"in  all  cases  where  the  jurisdiction  is  de- 
pendent entirely  upon  the  opposite  parties 
to  the  suit  or  controversy,  being  aliens 
and  citizens  of  the  United  States  or  citi- 
zens of  different  states."  There  is  no 
reason  to  doubt  that  congress  was  as  well 
aware  of  the  distinction  between  foreign 
states  and  foreign  citizens  when  it  passed 
the  act  of  1891  as  when  it  passed  the 
act  of  1888,  and  that  when  it  spoke  of 
aliens  it  meant  foreign  citizens  alone. 
Colombia  v.  Cauca  Co.,  190  U.  S.  524,  47 
L.    Ed.    1159. 

44.  Effect  of  change  in  sovereign's  per- 
son.— The  Sapphire.  11  Wall.  164.  20  L. 
Ed.  127.  See  the  title  .ABATEMENT. 
REVIVAL  AND  SURVIVAL,  ante, 
p.    12. 

1.  Neilson  v.  Lagow,  12  How.  98.  108, 
13    L.    Ed.    909. 


45.    Cannot  ta4te  by  operation  of  law. — 

Geofroy  v.  Riggs.  133  United  States,  258, 
265,  33  L.  Ed.  642;  Fairfax  v.  Hunter,  7 
Cranch  603,  619,  3  L.  Ed.  453,  reaffirmed 
in  1  Wheat.  304;  Hauenstein  v.  Lynham, 
100  U.  S.  483,  25  L.  Ed.  628;  Orr  v.  Hodg- 
son, 4  Wheat.  453.  4  L.  Ed.  613;  Jack- 
son V.  Clarke.  3  Wheat.  1.  13,  4  L.  Ed. 
319;  McCreery  v.  Somerville,  9  Wheat.  354. 
6  L.  Ed.  109;  Minor  v.  Happersett,  21 
Wall.  162,  169,  22  L-  Ed.  627;  Sullivan  v. 
Burnett,  105  U.  S.  334.  337,  26  L.  Ed. 
1124;  McKinney  v.  Saviego,  18  How.  235, 
15  L.  Ed.  365;  Kelly  z'.  Owen,  7  Wall. 
496,  19  L.  Ed.  283;  Inglis  v.  Sailor's  Snug 
Harbor,  3  Pet.  99,  7  L.  Ed.  617;  Blight 
V.  Rochester,  7  Wheat.  535,  544,  5  L.  Ed. 
516;  Spratt  v.  Spratt,  4  Pet.  393.  408.  7 
L.  Ed.  897;  Beard  v.  Rowan.  9  Pet.  301, 
9  L.  Ed.  135;  Lambert  v.  Paine,  3  Cranch 
97,  130,  2  L.  Ed.  377;  Dawson  v.  Godfrey, 
4  Cranch  321,  2  L.  Ed.  634;  Phillips  v. 
Moore,  100  U.  S.  208,  212,  25  L.  Ed.  603; 
Craig  V.  Leslie.  3  Wheat.  563.  574,  4  L- 
Ed.  460;  Levy  v.  McCartee,  6  Pet.  102, 
8  L.  Ed.  334;  Hanrick  z'.  Patrick.  119  U. 
S.  156.  165,  30  L.  Ed.  396;  Middleton  V. 
McGrew,  23  How.  45,  16  L.  Ed.  403. 

There  is  no  exception,  at  common  law, 
which  gives  the  right  to  inherit  distinctly 
from  the  obligation  of  allegiance,  exist- 
ing either  in  fact  or  in  supposition  of  law. 
Dawson  v.  Godfrey,  4  Cranch  321,  323,  2 
L.  Ed.  634.  See  post.  "Effect  of  Division 
of  Country,"   HI,  E,  4. 

Where  a  person  dies,  leaving  issue, 
♦•ho  are  aliens,  the  latter  are  not  deemed 
his  heirs  in  law;  but  the  estate  descends 
to  the  next  of  kin  who  have  an  inherit- 
able blood,  in  the  same  manner  as  if  no 
such  alien  issue  were  in  existence.  Orr 
V.    Hodgson,   4   Wheat.   453.   4   L.    Ed.   613. 

4C.     Alien   friends   and   enemies   alike. — 

Fairfjix  v.  Hunter.  7  Cranch  602,  619.  3 
L.  Ed.  453,  reaffirmed  in  1  Wheat.  304; 
Hauenstein  v.  Lynham,  100  U.  S.  483,  25 
L.    Ed.    628. 


ALIENS. 


225 


And  lands  cast  by  descent  will  escheat,  where  the  beneficiary  is  an  alien,  without 
office  found.*^ 

(b)  By  Purchase. — But  aliens  may  take  by  grant  or  devise  thoug-h  not  by  de- 
scent. In  other  words,  they  may  take  by  the  act  of  a  party,  but  not  by  opera- 
tion of  law ;  and  they  may  convey  or  devise  to  another,  but  such  a  title  is  always 
liable  to  be  devested  at  the  pleasure  of  the  sovereign  by  office  found.  In  such 
cases  the  sovereign,  until  entitled  by  office  found  or  its  equivalent,  cannot  pass 
the  title  to  a  grantee.*^     And  the  same  rule  prevails  in  equity,  although  a  chan- 


47.  Escheat. — Fairfax  v.  Hunter,  7 
Cranch  603,  3  L.  Ed.  453;  Taylor  v.  Ben- 
ham,  5  How.  233,  12  L.  Ed.  130;  McKin- 
ney  v.  Saviego,  18  How.  23.5,  15  L.  Ed. 
365.      See    the    title    ESCHEAT. 

48.  May  take  by  purchase  or  act  of 
party. —  Fairfax  v.  Hunter,  7  Cranch  602, 
619,  3  L.  Ed.  453,  reaffirmed  in  1  Wheat. 
304;  Hauenstein  v.  Lynham.  100  U.  S. 
483.  25  L.  Ed.  628;  Orr  v.  Hodgson,  4 
Wheat.  453.  4  L.  Ed.  613;  Conrad  v.  Wap- 
les,  96  U.  S.  279.  289,  24  L.  Ed.  721; 
Craig  V.  Leslie,  3  Wheat.  563,  588,  4  L. 
Ed.  460;  Phillips  v.  Moore,  100  U.  S.  208. 
212,  25  L.  Ed.  603;  Cross  v.  De  Valle.  1 
Wall.  1,  17  L.  Ed.  515;  Airhart  v.  Mas- 
sieu,  98  U.  S.  491,  493,  25  L.  Ed.  213; 
Jackson  v.  Clarke,  3  Wheat.  1,  13,  4  L. 
Ed.  319;  Craig  v.  Radford,  3  Wheat.  594, 
4  L.  Ed.  467;  Doe  v.  Robertson,  11 
Wheat.  332,  6  L.  Ed.  488;  Society  for  the 
Propagation  of  the  Gospel  v.  New 
Haven,  8  Wheat.  464,  491,  5  L.  Ed.  662. 
See  Jones  v.  McMasters,  20  How.  8,  21, 
15    L.    Ed.    805. 

"It  is  clear  by  the  common  law,  that 
an  alien  can  take  lands  by  purchase, 
though  not  by  descent;  or,  in  other  words, 
he  cannot  take  bj'  the  act  of  law,  but  he 
■may  by  the  acts  of  the  party.  This  prin- 
ciple has  been  settled  in  the  Year  Books, 
and  has  been  uniformly  recognized  as 
sound  law  from  that  time."  Fairfax  v. 
Hunter.  7  Cranch  603,  619,  3  L.  Ed.  453, 
reaflfirtned  in  1  Wheat.  304;  Orr  v.  Hodg- 
son, 4  Wheat.  453,  4  L.  Ed.  613;  Conrad  z/. 
Waples.  96  U.   S.  279,  289,  24  L.   Ed.  721. 

Freehold  interest. — An  alien  cannot 
onl}-  take  an  interest  in  land,  but  a  free- 
hold interest  in  the  land  itself,  and  may 
hold  it  against  all  the  world  but  the  king, 
and  even  against  him,  until  ofifice  found, 
and  he  is  not  accountable  for  the  rents 
and  profits  previously  received.  Craig  v. 
Leslie,  3  Wheat.  563.  588.  4  L.  Ed.  460; 
Craig  V.  Radford,  3  Wheat.  594,  4  L.  Ed. 
467. 

Necessity  for  inquest  of  office  or 
equivalent. — As  to  land  taken  by  devise 
or  purchase,  an  alien  can  always  hold  it 
till  office  found.  Taylor  v.  Benham,  5 
How.  232.  270,  12  L.  Ed.  130;  Doe  v. 
Robertson.  11  Wheat.  332,  355,  6  L.  Ed. 
488;  Fairfax  v.  Hunter,  7  Cranch  603,  618, 
3  L.  Ed.  453;  Manuel  v.  Wulfif.  152  U. 
S.  505,  507,  38  L.  Ed.  532;  Cross  v.  De 
Valle.  1  Wall.  1.  17  L.  Ed.  515:  National 
Bank  v.  Matthews,  98  U.  S.  621,  628,  25 
L.  Ed.   188;   Phillips  v.    Moore,   100   U.   S. 

1  U  S  P;dc— 15 


208.  212,  25  L.  Ed.  603;  Craig  v.  Leslie,  3 
Wheat.  563,  588,  4  L.  Ed.  460;  McKinley 
Mining  Co.  v.  Alaska  Mining  Co.,  183  U. 
S.  563.  571,  46  L.  Ed.  331.  See  Jones  v. 
McMasters,  20  How.  8,  21,  15  L.  Ed.  805; 
Runyan  v.  Coster,  14  Pet.  122,  131.  10  L. 
Ed.  382;  Bennett  v.  Hunter,  9  Wall.  326, 
336,  19  L.  Ed.  672;  King  v.  Mullins,  171 
U.  S.  404,  417,  43  L.  Ed.  214;  Fritts  v. 
Palmer,  132  U.  S.  282,  293,  33   L.   Ed.   317. 

An  alien  may  take,  by  purchase,  a  free- 
hold estate,  which  cannot  be  divested  on 
the  ground  of  alienage,  but  by  inquest  of 
office,  or  some  legislative  act  equivalent 
thereto.  Craig  v.  Radford,  3  Wheat.  594, , 
4  L.  Ed.  467;  Craig  v.  Leslie.  3  Wheat. 
563,  589,  4  L.  Ed.  460;  Hauenstein  v.  Lyn- 
ham, 100  U.  S.  483,  25   L.   Ed.   628. 

"The  ca^e  of  Fairfax's  Devisee  v.  Hunt- 
er's Lessee,  7  Cranch  603,  involved  the 
title  to  a  large  tract  of  land  in  Virginia, 
granted  to  Lord  Fairfax.  The  lands  were 
devised  by  will  to  Denny  Fairfax,  a  Brit- 
ish subject,  who  never  became  a  citizen 
of  the  United  States,  but  always  resided 
in  England,  and  was  an  alien  enemy.  In 
1789,  the  governor  of  the  commonwealth 
of  Virginia  granted  the  lands  by  patent 
to  Hunter,  a  citizen  of  Virginia,  who  en- 
tered into  possession  prior  to  the  insti- 
tution of  the  action.  It  was  the  opinion 
of  the  court  that  the  title  acquired  by  an 
alien  by  purchase  is  not  divested  until 
office  found,  although  it  was  contended 
that  the  common  law  as  to  inquests  of 
office  had  been  dispensed  with  by  stat- 
ute, so  as  to  make  the  grant  to  Hunter 
complete  and  perfect.  As  to  this  point 
Mr.  Justice  Story  observed,  p.  622:  'We 
will  not  say  that  it  was  not  competent 
for  the  legislature  (supposing  no  treaty  in 
the  way),  by  a  special  act,  to  have  vested 
the  land  in  the  commonwealth  without 
an  inquest  of  office  for  the  cause  of  alien- 
age. But  such  an  effect  ought  not,  upon 
principles  of  public  policy,  to  be  presumed 
upon  light  grounds;  that  an  inquest  of 
office  should  be  made  in  cases  of  alienage, 
is  a  useful  and  important  restraint  upon 
public  proceedings.'  "  (Obiter.)  Atlantic, 
etc.,  R.  Co.  V.  Mingus,  165  U.  S.  413,  41 
L.    Ed.    770. 

"Mr.  Justice  Johnson,  dissenting,  was  of 
opinion  that  the  interest  acquired  by 
Denny  Fairfax  under  the  devise  was  a 
mere  scintilla  juris,  and  that  that  scin- 
tilla was  extinguished  by  the  grant  of  the 
state  vesting  the  tract  in  Hunter;  that  it 
was    competent    for    the    state    to    assert 


226 


ALIENS. 


cellor  may  not  entertain  a  bill  by  an  alien  to  enforce  a  trust,  which,  if  conveyed 

its  rights  over  an  alien's  property  by  though  they  were  supposed  to  be  also 
other 'iiieans  than  by  an  inquest  of  office;  cestuis  que  trust.  If,  therefore,  they  were 
subsequent  cases  in  this  court  have  as-  aliens,  the  land  did  not  escheat  on  the 
serted  this  power  to  exist  beyond  any  death  of  the  trustee,  because  land  taken 
controversy."  Atlantic,  etc.,  R.  Co.  v.  by  devise  does  not  escheat  until  office 
Minous,    165   U.   S.    413.   41    L-    Ed.    770.  found,  although  land  cast  by  descent  does 

wliet'her  the  purchase  be  by  grant  or 
devise,  the  estate  vests  in  the  alien,  not 
for  his  own  benefit,  but  for  the  benefit 
of  the  state;  or,  in  the  language  of  the 
ancient  law.  the  alien  has  the  capacity 
to  take  but  not  to  hold  lands,  and  they 
may  be  seized  into  the  hands  of  the 
sovereign.  But,  until  the  lands  are  so 
seized,  the  alien  has  complete  dominion 
over  the  same.  Fairfax  v.  Hunter.  7 
Cranch  603,  3  L.  Ed.  453;  S.  C,  1  Wheat 
304;   Ccmrad  v.  Waples,  96  U.   S.  279,  289, 

24  L.    Ed.    721. 
"The    legislature    must    first   act    before 

any  proceedings  can  be  taken  to  annul 
the  title  of  an  alien,  or  any  other  es- 
cheatable  titles."  Airhart  v.  Massieu,  98 
U.  S.  491,  498.  25  L.  Ed.  213.  See  Jones 
V.  McMasters.  20  How.  8,  21,  15  L.  Ed. 
805.  See  post,  "Laws  of  Particular 
States,"    III,    E,    1,   a,    (3),    (b). 

And  until  office  found,  an  ^alien  was 
competent  to  hold  land  against  third  per- 
sons, even  in  a  country  the  laws  of  which 
forbade  the  holding  of  real  estate  by  an 
alien.  No  one  has  any  right  to  complain 
in  a  collateral  proceeding,  if  the  sovereign 
does  not  enforce  his  prerogative.  Oster- 
man  v.  Baldwin,  6  Wall.  116,  121,  18  L. 
Ed.  730;  Phillips  v.  Moore.  100  U.  S.  208, 

25  L.  Ed.  603. 
Nature  of  proceeding. — "By  the  com- 
mon law,  an  alien  cannot  acquire  real 
property  by  operation  of  law,  but  may 
take  it  by  act  of  the  grantor,  and  hold  it 
until  office  found;  that  is,  until  the  fact  of 
alienage  is  authoritatively  established  by 
a  public  officer,  upon  an  inquest  held  at 
the  instance  of  the  government.  The 
proceeding  which  contains  the  finding  of 
the  fact  upon  the  inquest  of  the  officer  is 
technically  designated  in  the  books  of 
law  as  'office  found.'  It  removes  the  fact, 
upon  the  existence  of  which  the  law  de- 
vests the  estate  and  transfers  it  to  the 
government,  from  the  region  of  uncer- 
tainty, and  makes  it  a  matter  of  record." 
Phillips  V.  Moore,  100  U.  S.  208,  212,  25 
L.    Ed.    603.      See    the    title    ESCHEAT. 

As  ground  for  rescission  or  specific  per- 
formance.— The  alienage  of  the  vendee  is 
an  insufficient  ground  to  entitle  the  vendor 
to  a  decree  for  rescinding  a  contract 
for  the  sale  of  lands,  though  it  may  af- 
ford a  reason  for  refusing  a  specific  per- 
formance, as  against  the  vendee.  Hep- 
burn V.  Dunlop.  1  Wheat.  179,  4  L.  Ed.  65. 

Modes  of  acquisition  distinguished.^ 
Whether  the  executor  had  a  power  to  sell 
coupled  with  a  trust,  or  a  power  coupled 
with  an  interest,  the  residuary  legatees 
took    by    devise    and    not    by    descent,    al- 


Talyor  v.   Benham,  5  How.  233,  12  L.  Ed. 
130. 

Homestead  entry  or  mining  claim. — See 

the    titles     MINES     AND     MINERALS; 
PUBLIC   LANDS. 

The  transfer  of  a  mining  claim  by  a 
qualified  locator  to  an  alien  is  not  to  be 
treated  as  ipso  facto  an  abandonment,  and 
the  analogy  of  such  a  case  to  the  cast- 
ing of  descent  upon  an  alien  cannot  be 
maintained.  Manuel  v.  Wulff.  152  U.  S. 
505,  508,  38  L.  Ed.  532;  McKinley  Min- 
ing Co.  V.  Alaska  Mining  Co.,  183  U.  S. 
563,  571,  46   L.   Ed.  331. 

"The  supreme  court  of  Montana  has 
recognized  the  settled  rule  that  an  alien 
may  take  and  hold  land  by  purchase  un- 
til office  found,  and  that,  if  the  alien 
become  a  citizen  before  his  alienage  has 
been  adjudged,  the  act  of  naturalization 
takes  effect  by  relation;  but  held  that  'pos- 
sessory rights  to  mining  claims  on  the 
public  domain  of  the  United  States,'  al- 
though 'endowed  with  the  qualities  of  real 
estate  to  a  high  degree,'  did  not  come 
within  that  rule."  Manuel  v.  Wulff,  152 
U.    S.    505,    507,   38    L.    Ed.    532. 

Where  locator  was  a  citizen,  if  his  lo- 
cation were  valid,  his  claim  passed  to 
his  grantee,  not  by  operation  of  law,  but 
by  virtue  of  his  conveyance,  and  the  in- 
capacity of  the  latter  to  take  and  hold  by 
reason  of  alienage  was.  under  the  cir- 
cumstances, open  to  question  by  the  gov- 
ernment only.  Manuel  v.  Wulff,  152  U. 
S.  505,  511,  38  L.  Ed.  532;  McKinley  Min- 
ing Co.  V.  Alaska  Mining  Co.,  183  U.  S. 
563.  571,  46  L.  Ed.  331.  See  post,  "Ter- 
mination or  Waiver  of  Objection  of 
Alienage,"    III,   E,   1.   a,    (l),    (c). 

Under  state  grant. — "If  there  is  any 
view  of  the  subject  in  which  an  alien, 
taking  under  grant,  may  be  considered  as 
taking  by  operation  of  law,  it  is  because 
the  grant  issues  and  takes  effect,  under 
a  law  of  the  state.  But  this  is  by  no 
means  the  sense  of  the  rule,  since  attach- 
ing to  it  this  idea  would  be  to  declare 
the  legislative  power  of  the  state  incom- 
petent to  vest  in  an  alien  even  a  de- 
feasible estate."  Doe  v.  Robertson,  11 
Wheat.   332,   355,  6   L.   Ed.  488. 

Possessory  right  to  entry  on  public 
lands. — Under  a  state  constitution  giv- 
ing aliens,  who  were  bona  fide  residents 
of  the  state,  the  rights  of  native  born 
citizens  in  respect  to  the  possession  and 
enjoyment  of  property,  a  possessory  right, 
to  a  cattle  range  on  nublic  lands,  is  prnp- 
crtv  of  va'ne.  Griffith  v.  Godey.  113  U. 
S.    89.   96.    28    L.    Fd.    9^4. 

Reason  for    rule. — The     only    unexcep- 


ALIENS. 


227 


to  him,  might  immediately  escheat.-*^     In  these  respects  there  is   no  difference 
between  an  ahen  friend  and  an  ahen  enemy. •''^ 

(c)  Termination  or  Waiver  of  Objection  of  Alienage. — If  an  ahen  became 
a  citizen  before  his  ahenage  has  been  adjudged,  the  act  of  naturahzation  takes 
effect  by  relation,  so  as  to  be  a  waiver  of  all  liability  to  forfeiture  and  a  confir- 
mation of  his  former  title.^^  And  an  alien  having  made  homestead  entry  and 
subsequently  filed  his  intention  to  become  a  citizen,  the  alienage  at  time  of  en- 
try, in  the  absence  of  an  adverse  claim,  would  not  defeat  the  right  of  purchase. ^^ 
This  objection  of  alienage  may  be  waived  by  the  government  entitled  to  insist 
thereon.^ 

(2)  By  the  Civil  Lazv. — By  the  civil  law,  some  proceeding,  equivalent  in  its 
substantive  features  to  ofiice  found,  was  also  essential  to  take  the  fact  of  alien- 
age from  being  a  matter  of  mere  surmise  and  conjecture,  and  to  make  it  a  matter 
of  record.  Such  a  proceeding  was  usually  had  before  the  local  magistrate  or  coun- 
cil, and  might  be  taken  at  the  instance  of  the  government,  or  upon  the  denounce- 
ment of  a  private  citizen. -^^ 

(3)  Constitutional  and  Statutory  Provisions. — See  post,  "Treaty  Rights," 
III,  E,  6. 

(a)  In  General. — The  law  of  nations  recognizes  the  liberty  of  every  govern- 
ment to  give  to  foreigners  only  such  rights,  touching  immovable  property  within 
its  territory,  as  it  may  see  fit  to  concede.  In  our  country,  this  authority  is  pri- 
marily in  the  states  where  the  property  is  situated.^"*  And  it  may  refuse  to  al- 
low an  alien  to  succeed  to  either  real  or  personal  property  situated  within  its 
limits.^^     So,  of  course,  it  may  expressly  allow  such  transmission  of  property  to 


tionable  reason  that  can  be  assigned  why 
an  alien  can  take  by  deed,  though  he 
cannot  hold,  is,  that  otherwise  the  pro- 
prietor wouW  be  restricted  in  his  choice 
of  an  alienee;  or  in  other  words,  in  his 
right    of    alienation. 

49.  Cross  V.  De  Valle,  1  Wall.  1,  4,  13.  17 
L.    Ed.   .51.5. 

50.  Friends  and  enemies  on  same  foot- 
ing.—Fairfax  V.  Hunter,  7  Cranch  603,  619, 
3  L.  Ed.  543;  S.  C.  1  Wheat.  304,  4  L. 
Ed.  97;  Hauenstein  7'.  Lynham,  100  U.  S. 
483,  25  L.  Ed.  628;  Craig  z:  Radford,  3 
Wheat.  594,  4  L.  Ed.  467;  Conrad  t'.  Wa- 
ples,  96  U.  S.   279,  290,  24   L.   Ed.   721. 

51.  Alienage  determined  before  adju- 
dication.—Manuel  v.  Wulfif.  152  U.  S.  505, 
507,  38   L.   Ed.   532;    Osterman  v.   Baldwin, 

6  Wall.  116,  18  L.  Ed.  730.  See,  gener- 
ally, the   title   PUBLIC   LANDS. 

52.  In  a  contested  application  for  a 
patent  to  a  mining  claim,  made  by  the 
grantee  of  the  locator,  who  was  an  alien 
at  the  time  of  the  conveyance  to  him  but 
was  subsequently  naturalized,  inasmuch 
as  this  proceeding  was  based  upon  an 
adverse  claim  to  the  application  for  a 
patent,  the  objection  of  alienage  was  prop- 
erly made,  but  this  was  as  in  right  and 
on  behalf  of  the  government,  and  natu- 
ralization removed  the  infirmity  before 
judgment  was  rendered.  Manuel  v.  Wulfif. 
152  IT.  S.  505,  511.  38  L.  Ed.  532.  See, 
generally,    the    title    PUBLIC    L.^NDS. 

And  the  acquisition  of  citizenship  by  a 
woman,  bv  virtue  of  marriage  to  a  citizen 
of  the  United  States,  removes  her  disa- 
l^ilitv    to    inherit    lands.      Kelly    v.    Owen. 

7  Wall.   496,   19   L.   Ed.  283.     And  see  the 


titles  CITIZENSHIP;  NATURALIZA- 
TION. 

1.  Waiver    of    objection    of    alienage.^ 

Semble,  that  where  congress  authorizes  a 
court  to  hear  a  question  of  title,  to  which 
the  LTnited  States  is  a  party,  and  in  ad- 
judicating it  to  be  governed  by  the  law 
of  nations  and  of  the  country  from  which 
the  title  was  derived,  by  principles  of  nat- 
ural justice  and  according  to  the  law  of 
nations  and  stipulations  of  treaties,  an 
objection  of  mere  alienage  and  conse- 
quent incapacity  to  take  or  hold,  must  be 
regarded  as  waived.  See  ante,  "By  Pur- 
chase," III,  E,  1,  a,  (1).  (b);  post,  "By 
the  Civil  Law,"  III,  E,  1,  a,  (2).  United 
States  v.  Repentigny,  5  Wall.  211.  212,  18 
L.    Ed.   627. 

53.  Some  proceeding  necessary  to  es- 
tablish alienage. — Phillips  v.  Moore,  100 
U.  S.  208,  212,  25  L.  Ed.  603.  See  ante. 
"By  Purchase."  Ill,  E,  1,  a,  (l),   (b). 

54.  Freedom  of  legislation  under  law 
of  nations. — Hauenstein  ?'.  Lvnham.  100 
U.  S.  483.  25  L.  Ed.  628;  Blyth'e  z'.  Hinck- 
ley, ISO  U.  S.  333,  45  L.  Ed.  557.  See, 
also.  Beard  t',  Rowan,  9  Pet.  301.  317, 
9  L.  Ed.  135;  Chirac  v.  Chirac.  2  Wheat. 
259.  4  L.  Ed.  234;  Levy  v.  McCartee,  6 
Pet.    102,    S    L.    Ed.    334. 

55.  May  forbid  alien  to  take  by  succes- 
sion.— "Every  state  or  nation  may  unques- 
tionably refuse  to  allow  an  alien  to  take 
either  real  or  personal  property,  .'situated 
within  its  limits,  either  as  heir  or  legatee, 
and  may,  if  it  thinks  proper,  direct  that 
property  so  descend'»ig  or  bequeathed 
shall  belong  to  the  state.  In  many  of 
the  states     of  this  Union  at   this  day,  real 


228 


ALIENS. 


aliens. ^^ 

(b)  Laws  of  Particular  States — California. — The  constitution  of  California  in 
force  in  1870  invested  foreigners,  who  were  bona  fide  residents  of  the  state,  with 
the  same  rights,  in  respect  to  the  possession  and  enjoyment  of  property,  as  na- 
tive born  citizens.    Art.  I,  §  17." 

Georgia. — By  the  act  of  1810.  when  a  citizen  died  with  no  heir  capable  of 
inheriting  his  real  estate  on  account  of  alienage,  the  real  estate  did  not  escheat,  but 
was  sold  and  the  proceeds  paid  to  the  devisees  named  in  decedent's  will.  "Heir"" 
here  does  not  include  next  of  kin  or  devisee,  but  means  an  heir  that  may  inherit 
the  real  estate  under  the  laws  of  Georgia. ^^ 

Kentucky, — Under  the  Kentucky  act  of  1800  the  condition  upon  which  aliens, 
other  than  enemies  were  placed  on  the  same  footing  with  citizens,  with  re- 
spect to  the  right  of  holding  and  disposing  of  land,  was  a  two  years'  residence 
within  the  state ;  and  the  full  effect  and  benefit  of  the  act,  and  the  clear  intention 
of  the  legislature,  required  a  construction  which  gave  to  it  a  prospective  as. 
well  as  retrospective  application.''^ 

Maryland  and  District  of  Columbia. — The  statute  of  11  &  12  Wm.  Ill,  ch. 
6,  which  is  in  force  in  Maryland,  removes  the  common-law  disability  of  claim- 
ing title  through  an  alien  ancestor,  but  does  not  apply  to  a  living  alien  ancestor,, 
so  as  to  create  a  title  by  heirship,  where  none  w^ould  exist  by  the  common-law. 
if  the  ancestor  were  a  natrual-born  subject  or  citizen.*'"'     By  acts  of  the  Maryland 


property  devised  to  an  alien  is  liable  to 
escheat.  And  if  a  state  may  deny  the 
privilege  altogether,  it  follows  that,  when 
it  grants  it.  it  may  annex  to  the  grant 
any  conditions  which  it  supposes  to  be 
required  by  its  interests  or  policy.  This 
has  been  done  by  Louisiana.  The  right 
to  take  is  given  to  the  alien,  subject  to 
a  deduction  of  ten  per  cent,  for  the  use 
of  the  state."  Mager  f.  Crima,  8  How. 
490,   493.    12    L.    Ed.   1168. 

56.  Express  authority  to  acquire. — - 
"There  has  not  been  cited  a  single  case 
where  any  doubt  has  been  thrown  upon 
the  right  of  a  state,  in  the  absence  of  a 
treaty,  to  declare  an  alien  capable  of  in- 
heriting or  taking  property  and  holding 
the  same  within  its  borders.  The  trea- 
ties have  always  been  for  the  purpose  of 
enabling  an  alien  to  take  even  though 
the  particular  state  may  not  have  ex- 
pressly permitted  it.  But  no  case  has 
arisen  where  it  was  asserted  or  claimed 
that  a  state  in  the  absence  of  a  treaty 
might  not  itself  permit  an  alien  to  take 
property  within  its  limits."  Blvthe  z'. 
Hinckley,  180  U.  S.  333,  341,  45  L.  Ed. 
557.  See  Chirac  v.  Chirac,  2  Wheat.  259, 
4  L.  Ed.  234;  Levy  v.  McCartee,  6  Pet. 
102,   8    L.    Ed.   334. 

It  is  not  necessary  that  aliens  should 
be  made  citizens,  in  order  to  hold  real 
estate;  and  the  condition  upon  which  this 
may  be  done,  is  a  matter  resting  entirely 
with  the  state  leffislature.  Beard  v. 
Rowan.  9  Pet.  301,  317.  9  L.   Ed.  13.i. 

57.  California  laws. — Griffith  v.  Godey, 
113   U.    S.   89,   96.   28    L.   Ed.   934. 

The  possessory  right  to  a  cattle  range 
on  public  lands,  though  held  by  aliens, 
was  property  of  value  in  California  in 
1870.  Griffith  f.  Godey,  113  U.  S.  89,  96, 
28  L.   V.:..   03 !. 


58.  Georgia  law^s. — McLearn  v.  Wallace^ 
10  Pet.  62.-).  637,  9  L.  Ed.  559. 

The  preamble  of  this  act  refers  only  to 
estates  of  citizens  bequeathing  their  prop- 
erty to  aliens,  but  the  first  section  seems, 
to  refer  as  well  to  cases  of  intestacy, 
such  as  this.  And  where  the  next  of  kin 
of  such  intestate  are  aliens,  there  being- 
more  remote  kin  who  are  citizens,  the 
latter  are  entitled  to  the  remaining  pro- 
ceeds of  the  real  estate  which  was  sold 
tn  pay  its  part  of  a  mortgage  on  the  en- 
tire property,  and  not  the  next  of  kin. 
McLearn  t'. 'Wallace.  10  Pet;  625,  637,  9- 
L.   Ed.  559. 

The  rights  of  foreign  heirs,  under  the- 
laws  of  Georgia,  are  .to  be  regarded 
equallv  as  those  of  domestic  heirs;  where 
each  has  interests  in  the  property  of  a 
deceased  person,  they  are  alike  entitled 
to  the  consideration  and  protection  of  a 
court  of  chancery.  McTearn  z'.  Wallace, 
10    Pet.    625.    641.    9    L.    Ed.    559. 

59.  Kentucky  laws. — Beard  v.  Rowan^ 
9  Pet.   301,   317.  9   L.   Ed.   135. 

The  preamble  shows  that  the  legislative- 
intention  was  to  make  a  general  provision 
for  removing  the  disability  of  aliens  to  hold 
real  estate,  and  it  is  not  to  be  restricted 
to  aliens  who  had  resided  two  years  in 
the  state  before  its  passage.  It  does  not 
profess  tn  naturalize  aliens,  and  is  not 
objectionable  on  that  ground.  Beard  z\ 
Rowan,    9    Pet.    301.    317,    9    L.    Ed.    135. 

60.  Maryland  laws. — McCreery  v.  Som- 
erville.  9  Wheat.   354.  6   L.   Ed.    109. 

Thus,  where  .'\.  died  seised  of  lands  in 
I\Lirvland.  leaving  no  heirs,  except  B..  a 
brother,  who  was  an  alien,  and  had  never 
been  naturalized  as  a  citizen  of  the  United 
States,  and  three  nieces,  the  daughters  of 
the  said  B..  who  were  native  citizens  of  the 
L^ritpd  StPtes;  it  was  held,  that  they  could 


ALIENS. 


229 


legislature,  passed  in  1780  and  1791,  respectively,  the  disqualification  of  alien- 
age was  further  modified,  but  not  entirely  removed.  The  former  act  applied 
only  to  French  heirs  of  naturalized  Frenchmen,  with  a  proviso,  that  they  must 
become  resident  citizens  of  the  state  within  ten  years.^^  The  latter  act,  which 
applied  to  any  foreigner,  although  only  to  the  District  of  Columbia,  did  not  do 
away  with  the  disability  to  take  realty  by  inheritance  from  a  citizen  of  the  United 
States.^2 


not  claim  title  by  inheritance  through  B.. 
their  father,  he  being  an  alien,  and  still 
living.  McCreerv  z'.  Somerville,  9  Wheat. 
354,   6   L.    Ed.    109. 

61.  Acts  of  1780  and  1791.— Chirac  z'. 
Chirac,  2  Wheat.  259.  4  L.  Ed.  234;  Geof- 
roy  V.  Riggs,  133  U.  S.  258,  265,  33  L.  Ed. 
642;  Spratt  r.  Spratt,  1  Pet.  343,  7  L.  Ed. 
171;    S.   C.   4    Pet.   391^,   7   L.    Ed.   897. 

J.  B.  C.  having  died  seised  in  fee  of  the 
lands  in  question,  his  heirs  being  French 
subjects,  the  treaty  of  1778  having  been 
abrogated,  and  the  act  of  Maryland,  of 
1780,  permitting  the  lands  of  a  French 
subject,  who  had  become  a  citizen  of 
Maryland,  dying  intestate,  to  descend 
on  the  next  of  kin,  being  nonnatural- 
ized  Frenchmen,  with  a  proviso  vesting 
the  land  in  the  state,  if  the  French  heirs 
should  not.  within  ten  years,  become  resi- 
dent citizens  of  the  state,  or  convey  the 
lands  to  a  citizen;  it  was  determined,  that 
the  time  for  the  performance  of  this  con- 
dition having  expired,  before  the  action 
was  brought,  the  estate  was  terminated, 
unless  supported  in  some  other  manner 
than  by  the  act  of  Maryland.  Chirac  v. 
Chirac.  2  Wheat.  259.  4  L.  Ed.  234. 

The  act  of  Maryland  of  1780  modified 
the  common  law  so  far  as  to  allow  a  sub- 
ject of  France  who  had  settled  in  that 
state,  and  given  assurances  of  allegiance 
and  attachment  to  it  as  required  of  citi- 
zens to  devise  to  French  subjects,  who 
for  that  purpose  were  to  be  deemed  citi- 
zens, of  the  state.  Act  of  March,  1780, 
c.  8,  §  5,  1  Dorsey's  Laws  of  Maryland, 
158.  It  also  provided  that  if  the  decedent 
died  intestate,  his  natural  kindred, 
whether  residing  in  France  or  elsewhere, 
should  inherit  his  real  estate  in  like  man- 
ner as  if  such  decedent,  and  his  kindred, 
Were  citizens  of  the  United  States.  It 
had  no  bearing,  however,  upon  the  in- 
heritance of  a  subject  of  France,  except 
from  a  Frenchman  domiciled  in  the  state. 
Geofroy  v.  Riggs,  133  U.  S.  258,  265, 
33    L.   Ed,    642. 

62.  Land  in  the  county  of  Washington, 
and  District  of  Columbia,  purchased  by  a 
foreigner,  before  naturalization,  was  held 
by  him,  under  the  law  of  Maryland,  and 
tnight  be  transmitted  to  the  relations  of 
the  purchaser,  who  were  foreigners;  and 
the  capacity  so  to  transmit  those  lands 
is  given  absolutely  by  this  act,  and  is  not 
affected  by  his  becoming  a  citizen;  but 
passes  to  his  heirs  and  relations,  pre- 
cisely as  if  he  had  remained  a  foreigner. 
Spratt  V.  Spratt,   1  Pet.  343,  7   L.   Ed.   171. 


The  act  of  the  legislature  of  Maryland 
of  1791,  which  authorizes  the  descent  to 
alien  heirs,  of  lands  held  by  aliens  under 
"deed  or  will,"  in  that  part  of  the  District 
of  Columbia  which  was  ceded  to  the 
United  States  by  the  state  of  Maryland, 
does  not  authorize  the  descent  to  such 
heirs  of  land,  in  that  part  of  the  district, 
which  was  purchased  by  an  alien,  at  a 
sale  made  under  an  order  of  the  court  of 
chancery,  and  for  which  no  deed  was  ex- 
ecuted, before  the  purchaser  became  a 
citizen  of  the  United  States,  or  before 
his  decease.  Spratt  v.  Spratt,  4  Pet.  393, 
7   L.    Ed.   897. 

"The  act  of  Maryland  of  December,  19, 
1791,  which  provided  in  its  sixth  section 
that  any  foreigner  might,  by  deed  or  will 
thereafter  made,  take  and  hold  lands 
within  the  state  in  the  same  manner  as 
if  he  were  a  citizen  thereof,  and  that  the 
lands  might  be  conveyed  by  him,  and 
transmitted  to  and  inherited  by  his  heirs 
and  relations  as  if  he  and  they  were  cit- 
izens of  the  state,  did  not  do  away  with 
the  disability  of  foreigners  to  take  real 
property  within  that  state  by  inheritance 
from  a  citizen  of  the  LTnited  States.  It 
was  so  held  in  effect  in  Spratt  z>.  Spratt, 
1  Pet.  343.  7  L.  Ed.  171;  S.  C.  4  Pet.  393, 
7  L.  Ed.  897."  Geofroy  v.  Riggs,  133  U. 
S.   258.   265,    33   L.    Ed.    642. 

It  is  an  enabling  act;  and  applies  to 
those  only  who  could  not  take  lands  with- 
out the  provisions  of  that  law.  It  en- 
ables a  "foreigner"  to  take,  in  the  same 
manner  as  if  he  were  a  citizen.  Spratt  v. 
Sprntt,  1  Pet.  343,  7   L.   Ed.   171. 

"In  a  controversy  between  the  alien 
heirs  of  James  Spratt  and  Sarah  Spratt. 
1  Pet.  343,  7  L.  Ed.  171,  this  court  deter- 
mined, that  land  which  James  Spratt  took 
and  held  under  the  enabling  act  of  Mary- 
land, descended  to  his  alien  heirs,  but  that 
land  which  he  took  and  held  as  a  citizen, 
did  not  pass  to  those  heirs."  Spratt  V. 
Spratt,   4    Pet.    393,    408.  7    L-    Ed.    897. 

A  foreigner  who  becomes  a  citizen  is 
no  longer  a  foreigner,  within  the  purview 
of  the  act.  Thus,  after-purchased  lands 
vest  in  him  as  a  citizen;  not  by  virtue  of 
the  act  of  the  legislature  of  Maryland, 
but  because  of  his  acquirins:  the  r'ehts  of 
citizenship.  Spratt  v.  Spratt,  1  Pet.  343, 
7   L.    Ed.    171. 

Federal  legislation. — The  act  of  Con- 
gress of  March  3,  1887  (24  Stat.  476,  C 
340"),  prohibits  aliens  who  have  not  de- 
clared their  intention  to  become  citizens, 
to    thereafter   acquire,   hold,    or    own    real 


230 


ALIENS. 


Missouri. — The  first  section  of  chapter  110,  Rev.  Stat,  of  Missouri,  con- 
ferred upon  two  classes  of  ahens  the  same  capacity  of  acquiring  by  descent  or 
purchase  real  estate  in  Missouri,  and  of  holding  and  alienating  it,  as  is  enjoyed 
by  citizens  of  the  United  States — those  residing  in  this  country  who  had  made 
a  declaration  of  intention  to  become  citizens  of  the  United  States,  by  taking  the 
required  oath,  and  those,  whether  they  had  made  such  declaration  or  not,  wha 
resided  in  that  state.  Aliens  not  belonging  to  one  or  the  other  of  those  classes 
were  left  subject  to  the  operation  of  the  common-law  rule — recognized  as  in 
force  in  Missouri — that  an  alien,  for  the  want  of  inheritable  blood,  could  not 
take  land  by  descent.^^ 

But  the  object  of  the  act  of  1855  was  not,  for  purposes  of  descent,  to  ob- 
literate all  distinction  between  aliens  residing  in,  and  those  residing  out  of,  the 
United  States.®^ 

The  act  of  the  Missouri  legislature  of  1872,  removing  in  toto  the  dis- 
abilities of  aliens  of  every  class  to  acquire  real  estate,  was  not  retrospective  in. 
operation. ^^ 

New  Jersey. — See  ante,  "Division  of  Country,"  II,  D. 

New  York, — See  ante,  "Division  of  Country,"  11,  D;  post,  "Treaty  Rights," 
HI,  E,  6. 

By  the  New  York  statute  in  force  in  1874,  it  was  enacted  that  every  devise  of 
any  interest  in  real  property  to  a  person  who,  at  the  time  of  the  death  of  the 
lestator,  shall  be  an  alien,  not  authorized  by  statute  to  hold  real  estate,  shall  be 
void.  2  Rev.  Stat,  of  New  York,  58.«« 


estate,  or  any  interest  therein,  in  the  Dis- 
trict of  Columbia  or  any  of  the  Territories, 
except  by  inheritance  or  for  a  debt  pre- 
viously contracted,  unless  such  privilege 
is  conferred  by  a  treaty,  and  impliedly 
recognizes  an  existing  right  in  aliens  to 
so  acquire  real  estate.  Geofroy  v.  Riggs, 
133    U.    S.   2,58,  r272,   33   L.    Ed.   642. 

63.  Missouri  laws. — Sullivan  v.  Burnett, 
105   U.   S.    334,   337,  26   L.    Ed.    1124. 

Construction  as  to  residence. — "The 
statute  of  Missouri  which  permits  the 
demandant  to  inherit  from  an  intestate, 
notwithstanding  his  ancestor,  through 
whom  he  derives  his  descent,  is  or  has 
been  an  alien,  must  be  interpreted  with 
reference  as  well  to  other  provisions  con- 
ferring upon  aliens  the  capacity  to  in- 
herit real  estate,  as  to  the  public  policy 
which  manifestly  induced  such  legislation. 
These  provisions,  in  terms,  make  an  alien 
resident  in  Missouri,  or  an  alien  resident 
elsewhere  in  this  country,  intending  to 
become  a  citizen,  capable  of  inheriting 
real  estate  by  descent  or  purchase."  Sul- 
livan V.  Burnett,  105  U.  S.  334,  341,  26 
L.   Ed.    1124. 

Aliens  living  or  dead  may  transmit  in- 
heritance.— Tn  making  title  by  descent  it 
may  be  that  his  ancestor  is  or  was  an 
alien,  without  inheritable  blood,  either  at 
common  law  or  by  statute.  That  fact 
would  ordinarily  constitute  an  insuperable 
difficulty  in  the  way  of  his  taking  or  hold- 
ing the  estate.  But  the  statute  elsewhere 
interposes  in  his  behalf,  and  says  that 
he  shall  not  be  barred  in  tracing  his  de- 
scent from  the  intestate,  by  reason  of  the 
fact  that  any  ancestor  either  is  or  has 
been  an  alien — language  broad  enough  to 
•nclude  a  living  as  well  as  a  dead  progen- 


itor.     Sullivan   v.    Burnett,   105   U.   S.   334,. 
341,    26    L.    Ed.    1124. 

Thus,  where,  at  the  time  descent  was 
cast,  the  plaintiffs  were  the  nearest  of  kin 
of  the  class  of  aliens,  who,  by  the  first 
section  of  ch.  110,  were  capable  of  ac- 
quiring real  estate  in  Ad^issouri  by  descent 
or  purchase,  their  right  to  take  by  de- 
scent was  not  affected  by  the  fact  that 
their  respective  mothers  were,  when  the 
intestate  died,  alive,  and  alien  nonresidents 
of  this  country,  incapable  themselves  of 
inheriting  the  estate.  Sullivan  z^.  Burnett^ 
105  U.  S.  334.  340,  26  L.  Ed.  1124;  Mc- 
Creery  j'.  Somerville.  9  W^heat.  354,  6  L. 
Ed.  109.  CA  Maryland  case),  distinguished. 

64.  Statute  of  1855.— Sullivan  v.  Burnett,, 
105    U.    S.    334.   338.   26    L.    Ed.    1124. 

The  Missouri  statute  of  1855  (§  2,  ch, 
110,  Rev.  Stat.  1865),  allowing  an  alien 
who  cannot  take  to  sell  and  convey  to  a 
person  who  can,  plainly  had  no  reference 
to  those  aliens  upon  whom  had  already 
been  conferred,  by  statute,  the  capacity  to. 
inherit  and  hold,  or  to  sell  and  convey,  in 
the  same  manner  as  citizens  of  the  United 
States.  Sullivan  r.  Burnett,  105  U.  S. 
334.   339,   26    L.    Ed.    1124. 

65.  Statute  of  1872.  removing  all  disa- 
bility, prospective. — Sullivan  v.  Burnett, 
105  U.   S.  334.  26  L.   Ed.   1124. 

66.  New  York  laws. — Scholey  v.  Rew. 
23  Wall.   331.  350,  23   L.    Ed.   99. 

And  in  1832  it  was  held,  that,  under  the 
laws  of  New  York,  one  citizen  of  the 
state  cannot  inherit  in  the  collateral  line 
to  the  other,  when  he  must  take  his  pedi- 
gree or  title  through  a  deceased  alien 
ancestor;  the  legislature  must  be  pre- 
sumed to  use  words  in  their  known  and 
ordinary    signification,    unless    that    sense 


ALIENS. 


231 


Rhode  Island.— The  well-settled  principle,  that  aliens  may  take  land  by  deed 
or  devise,  atul  hold  against  any  one  but  the  sovereign  until  office  found,  exists 
m  Rhode  Island  as  elsewhere;  not  being  affected  by  that  statute  which 'allows 
them  to  hold  land  "'provided"  they  previously  obtain  a  license  from  the  probate 
court/'' 

Texas.— See  ante,  "Division  of  Country,"  11,  D;  post,  "Effect  of  Division  of 
Country,"  III,  E,  4. 

According  to  general  principles,  mere  alienage  did  not  forfeit  a  title  to 
land  in  Texas;  and  although  the  constitution  of  Texas  provided  that  no  alien 
should  hold  land  in  Texas,  except  by  title  emanating  directly  from  the  govern- 
ment of  that  republic,  yet  it  was  afterwards  declared  that  the  legislature  ^should, 
by  law,  provide  a  method  for  determining  what  lands  may  have  been  forfeited  or 
cscheated.^8    fhe  constitution  and  laws  of  Texas  provide  for  the  case  of  an  alien 


be  repelled  by  the  context;  "the  common 
law"  is  constantly  used  in  contradistinc- 
tion to  the  statute  law.  Levy  v.  McCar- 
tee,   6   Pet.   102,   8   L.    Ed.   334. 

67.  Rhode  Island  laws. — Cross  v.  De 
Valle,  1  Wall.  1,  17  L.  Ed.  515. 

Nor  by  the  fact  that  a  chancellor  may 
not  entertain  a  bill  by  an  alien  to  enforce 
a  truft.  which,  if  conveyed  to  him,  might 
immediately  escheat  to  the  crown.  Cross 
V.   De   Valle,   1    Wall.   1.  13,   17   L-    Ed.   515. 

68.  Texas  laws. — Jones  v.  McMasters, 
20  How.  8,  15  L.  Ed.  805;  McKinney  v. 
Saviego.    18    How.    235,    15    L.    Ed.    365. 

By  way  of  exception  to  this  general 
inhibition,  it  provided  that  "if  any  citizen 
should  die  intestate  or  otherwise,  his 
children  or  heirs  shall  inherit  his  estate, 
and  aliens  shall  have  a  reasonable  time 
to  take  possession  of  and  dispose  of  the 
same  in  a  manner  hereafter  to  be  pointed 
out  by  law."  McKinney  v.  Saviego,  18 
How.  235,  238,  15  L.  Ed.  365;  Hanrick  v. 
Patrick,  119  U.  3.  156,  164,  30  L.  Ed. 
396;  Airhart  v.  Massieu,  98  U.  S.  491, 
494,    25    L.    Ed.    213. 

In  the  absence  of  such  a  legislative 
provision,  a  title  emanating  from  the  gov- 
ernment of  Mexico,  anterior  to  Texan  in- 
dependence, is  not  forfeited.  Jones  v. 
McMasters.  20  How.  8,  15  L.  Ed.  805. 

"The  course  of  decision  in  the  courts 
of  Texas  appears  to  be,  that,  until  some 
act  of  the  legislature  is  passed  on  the 
subject,  effect  cannot  be  given  to  the 
plea  of  alienage,  or,  at  least,  that  some 
proceeding  must  be  had,  on  the  part  of 
the  government,  divesting  the  estate  for 
this  cause,  before  effect  can  be  given  to 
it."  Jones  V.  McMasters,  20  How.  8,  21, 
15    L.    Ed.    805. 

In  pursuance  of  this  provision,  the  acts 
of  1840,  and  1848,  were  passed;  §  9  of 
the  latter  act  was  as  follows:  "Section 
9.  Tn  making  title  to  land  by  descent, 
it  shall  be  no  bar  to  a  party  that  any  an- 
cestor through  whom  he  derives  his 
descent  from  the  intestate  is  or  hath  been 
an  alien;  and  every  alien  to  whom  any 
land  may  be  devised  or  may  descend 
shall  have  nine  years  to  become  a  citizen 
of  the  republic,  and  take  possession  of 
such    land,    or    shall    have    nine    years    to 


sell  the  same,  before  it  shall  be  declared 
to  be  forfeited,  or  before  it  shall  escheat 
to  the  government."  Hanrick  v.  Patrick 
119  U.  S.  156.  164,  30  L.  Ed.  396;  Airhart 
V.  Massieu,  98  U.  S.  491,  495,  25  L  Ed. 
21.'?. 

The  efifect  of  the  provision  of  the  con- 
stitution of  the  republic,  and  the  stat- 
utes of  1840  and  1848,  upon  the  subject 
of  alienage,  was  to  vest  a  defeasible  title 
to  real  estate  in  Texas  into  the  alien 
children  and  heirs  of  a  citizen  of  the 
United  States  who  may  have  died  in- 
testate leaving  such  property;  which  title 
was  valid  both  against  individuals  and 
also  the  state,  not  only  for  the  period  of 
nine  years,  but  for  such  further  time 
until  the  state  by  some  proper  proceed- 
ings in  the  nature  of  ofifice  found  had 
declared  a  forfeiture,  and  the  passage  of 
the  English  Naturalization  act  of  1870, 
within  such  nine  years,  made  this  title  an 
indefeas'ble  one.  Hanrick  v.  Patrick.  119 
United  States,  156,  168,  169,  30  L.  Ed. 
396;  McKinney  v.  Saviego,  18  How.  235, 
2:59.    15    L.    Ed.    365. 

.-\nd  a  citizen  of  the  United  States,  and 
w-ho,  as  such,  was  of  course,  before  the 
admission  of  Texas  into  the  Union,  an 
alien  to  that  republic,  and  so,  as  against 
office  found,  incompetent  to  hold  land 
there,  became,  on  the  admission,  compe- 
tent, no  office  having  been  previously- 
found.  Osterman  v.  Baldwin.  6  Wall. 
116.    18    L.    Ed.    730. 

A  sale  of  lands  in  Texas,  made  before 
her  separation  from  Mexico,  by  a  citizen 
to  a  nonresident  alien,  passed  tlie  title 
to  the  latter,  who  thereby  acquired  a  de- 
feasible estate  in  them,  which  he  could 
hold  until  deprived  thereof  by  the  su- 
preme authority,  upon  the  official  ascer- 
tainment of  the  fact  of  his  nonresidence 
and  alienage,  or  upon  the  denouncement 
of  a  private  citizen.  Phillips  v.  Moore, 
100    U.    S.    208,    210,    25    L.    Ed.    603. 

"Tn  Barrett  v.  Kelly,  in  the  .list  of 
Texas,  where  land  had  been  sold,  in  1833, 
to  citizens  of  the  United  States,  then 
nonresident  aliens,  it  was  held  that,  un- 
less there  was  an  adjudication  by  some 
court  or  pob"tical  authority  upon  their 
alienage,    while    it     existed,     their      rights 


232 


ALIENS. 


heir  who  may  inherit-  from  a  citizen,  but  not  for  an  alien  heir  inheriting  from  an 
aUen.  The  legislature  of  Texas  had  power  to  modify  these  rules,  but  did  not 
change  them  in  this  respect  when  it  introduced  the  common  law  by  statute.  Upon 
the  death  of  the  ancestor,  the  estate  was  cast  upon  the  state,  without  the  neces- 
sity of  an  inquest  of  office.^^ 

Vermont. — The  act  of  the  legislature  of  Vermont,  which  prohibits  the  re- 
covery of  mesne  profits  in  certain  cases,  applies  to  the  claim  to  such  profits  by 
aliens  suing  to  recover  lands  in  Vermont ;  and  the  provisions  of  the  treaty  of 
peace  of  1783,  and  those  of  the  treaty  with  Great  Britain  in  1794,  do  not  inter- 
fere with  the  provisions  of  that  act.  The  law  has  prescribed  the  restrictions  un- 
der which  mesne  profits  shall  be  recovered,  and  these  restrictions  are  obligatory 
on  the  citizens  of  the  state ;  the  plaintiflfs  take  the  benefit  of  the  statute  remedy, 
to  recover  their  right  to  the  land ;  and  they  must  take  the  remedy,  with  all  the 
statute  restrictions. ''*^ 

Virginia. — See  ante,  "At  Common  Law,"  III,  E,  1,  a,  (1);  post,  "Treaty 
Rights,"  III,  E,  6. 

The  common  law  as  to  aliens,  except  so  far  as  it  has  been  modified  by  her  leg- 
islature, is  the  local  law  of  Virginia.  But  the  Virginia  Revised  Code  of  1873 
has  obliterated  nearly  all  the  distinctions  between  aliens  and  citizens  with  re- 
spect to  their  rights  as  to  both  real  and  personal  property.  See  ch.  4,  §  18,  p. 
130,  and  ch.  119,  §§  4  and  10,  pp.  917,  918.' i 


were  not  devested.  The  decision  pro- 
ceeded upon  the  ground  that  the  title 
had  passed  to  the  grantees,  notwithstand- 
ing their  alienage,  though  subject  to  be 
devested  upon  an  official  determination 
of  that  fact."  Phillips  v.  Moore,  100  U. 
S.  208,  210,  25  L.  Ed.  603.  See  post, 
"Confiscation  and  Forfeiture,"  III,  E,  1, 
c;  "Effect  of  Division  of  Country," 
III,    E,    4. 

The  Texas  statute  of  1854,  neither  by- 
its  express  terms  nor  by  a  proper  con- 
struction of  its  provisions  and  intention, 
did  so  repeal  §  9,  act  of  1848,  as  to  pre- 
vent, if  they  are  otherwise  entitled,  alien 
heirs  from  deriving  title  by  descent  under 
it  to  real  estate  in  Texas.  Hanrick  v. 
Patrick,  119  U.  S.  156.  168,  30  L.  Ed. 
396. 

That  act  did  not  in  terms  limit  the 
rights  of  aliens  under  §  9  of  the  act  of 
1848.  but  was,  on  the  contrary,  an  af- 
firrnative  or  enlarging  statute,  and  in- 
tended to  give  to  aliens  such  rights,  and 
privileges,  in  addition  to  those  granted, 
by  that  act,  as  had  been  or  should  be 
given  by  their  government  to  citizens  of 
the  United  States.  Hanrick  v.  Patrick, 
119    U.    S.    156,    168,    30   L.    Ed.    396. 

By  the  laws  which  governed  Texas  be- 
fore the  revolution,  the  proprietor  of 
land  must  have  resided  within  the  juris- 
diction of  the  Mexican  government,  and 
foreigners  could  not  inherit  land.  Mc- 
Kinney  v.  Saviego,  18  How.  235,  15  L. 
Ed.    365. 

The  alien  heirs  of  a  colonist  in  Texas, 
who  died  intestate  in  1835,  cannot  in- 
herit his  landed  property  there.  The 
courts  of  Texas  have  so  decided,  and  this 
court  adopts  their  decision.  Middleton 
V.   McGrew.  23   How.  45,  16   L.   Ed.   403. 


For  the  laws  of  Mexico,  as  construed 
by  the  courts  of  Texas,  furnish  the  rule, 
and  that  construction  is  that  the  capacity 
of  aliens  to  hold  lands  in  the  republic  of 
Mexico,  if  it  ever  existed  under  the  laws 
of  Spain,  was  extinguished  by  the  decree 
of  March  12th,  1828.  These  decisions 
declare  a  law  of  descent  applicable  to 
landed  property  in  Texas  generally. 
Middleton  v.  McGrew,  23  How.  45,  48, 
16    L.    Ed.    403. 

"By  the  colonization  laws  of  Mexico, 
and  of  Coahuila  and  Texas,  a  nonresident 
alien  could  not  hold  real  estate."  Air- 
hart  V.  Massieu.  98  U.  S.  491,  495,  25  L. 
Ed.  213;  McKenny  z;. '  Saviego.  18  How. 
235,    15    L.    Ed.    365. 

69.  Alien,  heir  of  alien. — McKinney 
V.    Saviego.    18    How.    235.    15    L.    Ed.    365. 

Thvis.  where  a  person  who  owned  land 
in  Texas  whilst  it  was  a  part  of  Mexico, 
removed  into  Mexico  prior  to  the  Declara- 
tion of  Independence  by  Texas,  and  con- 
tinued to  reside  in  Mexico  until  her 
death,  her  daughter,  who  was  also  a 
citizen  of  Mexico,  could  not,  as  heir,  re- 
cover the  land  in  Texas.  McKinney  v. 
Saviego,  18  How.  235,  15  L.  Ed.  365.  See 
post,  "Right  to  Transmit  or  Convey," 
HT.   E.   1,   b. 

70.  Vermont  laws. — Propagation  So- 
ciety V.   Pawlet,   4   Pet.    480,  7   L.   Ed.   927. 

71.  Virginia  laws. — Hauenstein  v.  Lyn- 
ham,  100  U.  S.  483,  485,  25  L.  Ed.  628.  See 
now  Va.  Code  (1904)  §  43. 

The  act  of  assembly  of  Virginia,  of 
1779,  ch.  13,  §  3,  secured  from  escheat 
all  the  interest  acquired  by  aliens  in  real 
property,  previous  to  the  issuing  of  the 
patent,  and  left  the  right  acquired  by 
them  under  the  patent,  to  be  determined 
by  the  general  principles   of  the   common 


ALIENS. 


233 


b.  Right  to  Transmit  or  Convey. — An  alien  has  no  inheritable  blood,  and  can- 
not transmit  land  himself  to  others  by  descent/ 2  But  it  is  not  necessary  that 
aliens  be  made  citizens  in  order  to  pass  title  to  real  estate ;  and  the  condition  upon 
which  this  may  be  done  is  a  matter  resting  entirely  with  the  state  legislature^^ 


law.  Doe  v.  Robertson,  11  Wheat.  332, 
6   L.    Ed.    488. 

These  legislative  acts  were  valid,  under 
the  compact  of  1789,  between  the  states 
of  Virginia  and  Kentucky.  Doe  v.  Rob- 
ertson,  11    Wheat.    332.    6    L.    Ed.    488. 

The  title  of  an  alien,  thus  acquired  by 
patent,  in  1784,  under  the  laws  of  Vir- 
ginia, and  subsequently  confirmed  to  him 
by  a  legislative  act  of  Kentucky,  in  1796, 
and  to  his  heirs  and  their  grantees,  by 
an  act  of  the  same  state,  in  1799,  will 
overreach  a  grant  made  by  Virginia,  to  a 
citizen,  in  1785,  and  defeat  the  claim  of 
all  persons  holding  under  such  grant. 
Doe  z\  Robertson,  11  Wheat.  332,  6  L. 
Ed.    488. 

Quaere,  whether  a  British  subject,  born 
in  England,  in  the  year  1750,  and  who  al- 
ways resided  in  England,  could,  in  the 
year  1786,  take  and  hold  lands  in  Vir- 
ginia, by  descent  or  by  devise?  Lambert 
V.  Paine.  3  Cranch  97.  2   L.   Ed.  377. 

72.  Incapacity  to  transmit  by  descent. 
—Levy  V.  McCartee,  6  Pet.  102,  8  L.  Ed. 
334;  Airhart  v.  Massieu,  98  U.  S.  491, 
493,  25  L.  Ed.  213;  McCreery  v.  Somer- 
ville,  9  Wheat.  354,  6  L.  Ed.  109;  Mc- 
Kinney  t'.  Saviego,  18  How.  235,  15  L. 
Ed.  365;  Sullivan  v.  Burnett,  105  U.  S. 
334,  340.  341,  26  L.  Ed.  1124;  Minor  v. 
Happersett,    21    Wall.    162,    22    L.    Ed.    627. 

The  case  of  Collingwood  v.  Pace,  1 
Vent.  413,  furnishes  conclusive  evidence 
that,  by  the  common  law,  in  all  cases  of 
mediate  descents,  if  any  mediate  ancestor 
through  whom  the  party  makes  his  pedi- 
gree, is  an  alien,  that  is  a  bar  to  his  title 
as  heir.  Levy  z'.  AlcCartee,  6  Pet.  102, 
8  L.  Ed.  334;  McCreery  v.  Somerville,  9 
Wheat.  354,  355,  6  L.  Ed.  109.  See  ante, 
"Constitutional  and  Statutory  Provisions," 
III,    E,    1.    a,    (3). 

In  Texas. — The  10th  section  of  the 
Texas  law  of  distribution  and  descent 
(Hart.  Dig.  art.  585),  provides:  'Tn 
making  title  to  land  by  descent,  it  shall 
be  no  bar  to  a  party  that  any  ancestor, 
through  whom  he  derives  his  descent 
from  the  intestate,  is  or  hath  been  an 
alien;  and  every  alien  to  whom  any  land 
may  be  devised  or  may  descend,  shall 
have  nine  years  to  become  a  citizen  of 
the  republic  and  take  possession  of  such 
land;  or  shall  have  nine  years  to  sell 
the  same,  before  it  shall  be  declared  for- 
feited, or  before  it  shall  escheat  to  the 
government."  The  first  clause  of  this 
?ection  is  substantially  a  re-enactment  of 
the  statute  of  11  and  12  William  IH,  ch. 
6,  and  removes  no  other  defect  than  the 
want  of  inheritable  blood  arising  from 
the  alienage  of  some  person  through 
whom    the    heir    must    deduce    his    claim. 


McKinney  v.  Saviego,  18  How.  235,  239, 
15    L.    Ed.    365. 

But  the  remedial  effect  of  the  act  does 
not  extend  beyond  the  disability  of  an 
alien  heir.  It  contains  no  enactment  in 
favor  of  an  alien  who  may  have  ac- 
quired possession  or  property  in  lands, 
whereby  he  could  make  a  valid  bequest 
or  transmit  it  to  his  heirs,  whether  aliens 
or  citizens  by  descent.  McKinney  v. 
Saviego,  18  How.  235.  239,  15  L.  Ed. 
365. 

Neither  the  language  of  the  act  nor 
the  policy  of  Texas,  as  it  may  be  dis- 
covered from  its  constitutions  and  laws, 
authorizes  the  conclusion  that  an  alien, 
claiming  real  property  in  Texas,  can 
transmit  it.  by  descent,  to  an  heir  who  is 
also  an  alien.  McKinney  v.  Saviego.  18 
How.    235.    239,    15    L.    Ed.    365. 

"This  law  would  seem  to  be  the  legiti- 
mate result  of  the  status  of  aliens  with 
regard  to  title  to  land  in  Texas;  the  pro- 
hibition to  hold  lands  being  provisional 
only,  not  operative  unless  they  failed  to 
become  citizens  or  dispose  of  their  land 
within  nine  years;  and  not  even  then  un- 
til regular  proceedings  should  be  pro- 
vided for  and  should  be  had  to  annul 
the  title.  The  later  cases  in  Texas  have 
fully  established  this  doctrine."  Airhart 
T'.  Massieu,  98  U.  S.  491.  25  L.  Ed.  213; 
Hanhick  v.  Patrick,  119  U.  S.  156,  30  L.  Ed. 
396.  See  ante,  "Laws  of  Particular 
States,"    in.    E.   1,   a.    (3),    (b). 

In  Missouri. — See  ante,  "Constitu- 
tional and  Statutory  Provisions,"  III,  E. 
1,    a.    (3)-. 

73.  Passing  title  otherwise. — Beard  v. 
Rowan,  9  Pet.  301,  317,  9  L.  Ed.  135;  Air- 
hart V.  Massieu,  98  U.  S.  491,  497,  25 
L.    Ed.    213. 

An  alien  friend  can  convey  his  lands 
situate  in  a  foreign  government,  and  that 
the  title  is  defeasible  is  nothing  to  de- 
feat the  right.  White  v.  Burnley,  20 
How.  235.  249,  15  L.  Ed.  886;  Cook  v. 
Burnley,    11   Wall.    659.   670,  20    L.    Ed.   29. 

"Notwithstanding  the  existence  of  hos- 
tilities between  Texas  and  Mexico,  it  was 
competent  for  one  citizen  of  Mexico  to 
convey  to  another,  both  residing  and  be- 
ing in  Mexico,  lands  situated  in  Texas. 
This  point  was  settled  by  the  late  de- 
cision of  this  court  in  the  case  of  Conrad 
V.  Waples,  96  U.  S.  279,  24  L.  Ed.  721." 
Airhart  v.  Massieu,  98  U.  S.  491,  497.  25 
L.    Ed.   213. 

As  to  citizens  of  Mexico,  it  is  well  set- 
tled that  they  never  lost  the  right  of  dis- 
posing of  their  Texas  lands  by  the  di- 
vision of  the  empire.  Williams  v.  Con- 
ger,   125    U.    S.    397,    426,    31    L.    Ed.    778, 


234 


ALIENS. 


And  where  an  alien  may  take,  as  by  act  of  a  party,  he  may  devise  or  convey  to 
another ;  but  such  title  is  liable  to  be  divested  at  the  pleasure  of  the  sovereign  by 
office  found."^ 

c.  Confiscation  and  Forfeiture. — See  ante,  "Laws  of  Particular  States,"  III, 
E,  1,  a,  (3),(b).     See  the  titles  Confederate  States;  War. 

The  general  principle  is  undisputed,  that  the  division  of  an  empire  works  no 
forfeiture  of  a  right  of  property  previously  acquired. "^  The  removal  that  worked 
a  forfeiture  under  Mexican  colonization  laws,  and  divestiture  of  the  title  without 
judicial  inquiry,  was  a  removal  out  of  the  republic  of  Mexico,  and  settlement 
in  a  foreign  country.'^'' 

d.  Eindence,  Presumptions  and  Pleading. — See  ante,  "Burden  of  Proof  and 
Presumptions,"  II,  E,  4;  post,  "Pleading  and  Practice,"  IV. 

2.  Personalty. — The  incapacity  of  an  alien  to  take,  and  to  hold  beneficially, 
a  legal  or  equitable  estate  in  real  property,  does  not  extend  to  personal  estate.'^'^ 

3.  Tax  on  Right  of  Succession. — See  the  title  Succession  Taxes. 

By  a  law  of  the  state  of  Louisiana,  every  person  not  being  domiciliated  in 
that  state,  and  not  being  a  citizen  of  any  other  state  or  territory  in  the  Union, 
who  shall  be  entitled,  whether  as  heir,  legatee,  or  donee,  to  the  whole  or  any 
part  of  the  succession  of  a  person  deceased,  shall  pay  a  tax  to  the  state  of  ten 
per  cent,  of  the  value  thereof.  This  law  is  not  repugnant  to  the  constitution  of 
the  United  States.'^  ^ 

4.  Effect  of  Division  of  Country. — See  ante,  "Division  of  Country,"  II, 
D;  "Laws  of  Particular  States,"  III,  E.  1.  a,  (3),  (b)  ;  "Confiscation  and  For- 
feiture," III,  E,  L  c. 


citing    Airhart   v.    Massieu,    98    U.    S.    491, 
493.    497.    35    L.    Ed.   213. 

74.  Same — Divestiture  by  office  found. 
— Hauenstein  v.  Lynham,  100  U.  S.  483, 
25  L.  Ed.  628;  Fairfax  v.  Hunter.  7 
Cranch  603.  619.  3  L.  Ed.  453;  S.  C.  1 
Wheat.    304.    4    L.    Ed.    97,    116. 

75.  Division  of  country. — Jones  v.  Mc- 
Masters,  20  How.  8.  20,  15  L.  Ed.  805. 
See  post,  "Effect  of  Division  of  Coun- 
try," III.  E.  4;  "Treaties  with  Great 
Britain."    Ill,   E,    6.   c. 

76.  Removal  from  Texas  under  Mexi- 
can law. — McKinney  v.  Saviego,  is  How. 
235.  15  L.  Ed.  365;  Jones  v.  McMasters, 
20  How.  8.  21,  15  L.   Ed.  805. 

"A  change  of  domicile  operated  to  de- 
feat the  estate  of  the  grantee,  and  to  re- 
store the  land  without  incumbrance  to 
the  public  domain,  so  that,  without  a  ju- 
dicial or  other  inquiry,  it  might  be  re- 
granted."  McKinnev  v-  Saviego,  IS  How. 
235,  238.  15  L.   Ed.  365. 

The  treaty  of  Guadaloupe  Hidalgo 
provided  for  those  Mexicans  who  in- 
habited territories  ceded  to  the  United 
States,  but  had  no  relation  to  Texas.  Mc- 
Kinney V.  Saviego,  IS  How.  235.  15  L. 
Ed.  365. 

77.  Incapacity  does  not  extend  to  per- 
sonalty.—Craig  V.  Leslie.  3  Wheat.  563, 
574.  4  L.  Ed.  460;  McLean  v.  Wallace,  10 
Pet.    625,   637,  9    L.    Ed.    559. 

Alienage  does  not  incapacitate  to  take 
personal  property  by  descent.  McLean  v. 
Wallace.   10   Pet.    625,   637.  9  L.   Ed.   559. 

78.  Succession  tax  constitutional. — 
Mager  v.  Crima,  8  How.  490.  12  L.  Ed. 
1168;  Frederickson  v.  Louisiana,  23  How. 
145,    16    L.    Ed.    577. 


The  treaty  concluded  between  the  King 
of  Wurtemberg  and  the  United  States  in 
1844  (8  Stat,  at  L.,  588),  did  not  include 
the  case  of  a  c'tizen  of  the  United  States 
dying  at  home,  and  disposing  of  prop- 
erty within  the  state  of  which  he  was  a 
citizen,  and  in  which  he  died,  for  a  citizen 
of  Louisiana  domiciliated  abroad  is  sub- 
ject to  this  ta.x.  Frederickson  v.  Louisi- 
ana.   23    How.    445.    16    L.    Ed.    577. 

Consequentl_v.  where  the  state  of 
Louisiana  claimed,  under  a  statute,  a  tax 
of  ten  per  cent,  on  the  amount  of  cer- 
tain legacies  left  by  one  of  her  citizens 
to  certain  subjects  of  the  King  of  Wur- 
temberg, the  statute  was  not  in  conflict 
with  the  treaty,  and  the  claim  must  be 
allowed.  Frederickson  7'.  Louisiana.  23 
How.   445,    16    L.   Ed.   577. 

The  treaty  does  not  regulate  the  testa- 
mentary dispositions  of  citizens  or  sub- 
jects of  the  contracting  powers,  in  refer- 
ence to  property  within  the  country  of 
their  origin  or  citizenship,  but  only  in 
reference  to  property  possessed  by  such 
citizens  within  the  states  of  the  other 
power.  But  if  it  did  there  would  be  no 
illegal  discrimination  between  aliens  and 
citizens  of  Louisiana  domiciliated  abroad. 
Frederickson  v.  Louisiana,  23  How.  448, 
16   L.    Ed.   577. 

Estoppel. — An  alien  to  whom  a  de- 
vise of  an  interest  in  real  estate  has  been 
made,  and  who  has  received  its  value  in 
proceedings  for  partition,  is  estopped  to 
set  up  against  a  demand  for  a  succession 
tax  thereon,  that  by  the  law  of  the  state 
where  the  estate  i«;,  the  devise  is  abso- 
lutely null  and  void.  Scholey  v.  Rew,  23 
Wall.    331.    23    L.    Ed.   99. 


ALIENS. 


23! 


The  division  of  a  country  and  the  maintenance  of  independent  govern- 
ments over  its  different  parts  do  not  of  themselves  divest  the  rights  which  the 
citizens  of  either  have  to  property  situate  within  the  territory  of  the  other '^a 

5.  Equitable  Conversion.— In  order  to  avoid  an  escheat,  and  carry  out 
the  wishes  of  the  testator,  a  court  of  equity  will,  if  necessarv,  consider  land  as 
money,  where  a  testator,  who  is  a  trustee,  has  directed  the  land  to  be  sold,  and 
will  direct  the  proceeds  to  be  given  to  the  cestui  que  trust. s" 

6.  Treaty  Rights. — See  the  title  Treaties. 

a.     In    General. — See    ante,    "Constitutional    and    Statutory    Provisions "    III 
E,  1,  a,  (3). 


79.  Property  rights  not  necessarily  di- 
vested.— Airhart  v.  Massieu,  98  U.  S.  491, 
2.'-,  L.  Ed.  213;  Society  v.  New  Haven.  8 
Wheat.  464,  5  L.  Ed.  663;  Propagation 
Society  v.  Pawlet,  4  Pet.  480,  502,  7  L. 
Ed.    927. 

A  Mexican  was  not.  by  the  revolution 
which  resulted  in  the  independence  of 
Texas,  or  by  her  constitution  of  March 
17.  1836,  or  her  laws  subsequently  en- 
acted, divested  of  his  title  to  lands  in 
that  state,  but  he  retained  the  right  to 
alienate  and  transmit  them  to  his  heirs, 
and  the  latter  are  entitled  to  sue  for  and 
recover  them.  Airhart  v.  Massieu,  98  U. 
S.  491,   25   L.   Ed.   213. 

That  constitution,  although  declaring 
generally  that  aliens  shall  not  hold  land 
in  Texas  except  by  title  emanating  di- 
rectly from  the  government,  did  not  di- 
vest their  title;  for  it  adds,  that  "they 
shall  have  a  reasonable  time  to  take  pos- 
session of  and  dispose  of  the  same  in  a 
manner  hereafter  to  be  pointed  out  by 
law."  Before  the  title  can  be  divested, 
proceedings  for  enforcing  its  forfeiture 
must  be  provided  by  law,  and  carried  into 
efTect;  and  hitherto  they  have  not  been 
provided.  Airhart  <:'.  Massieu.  98  U.  S. 
491.    25    L.    Ed.    213. 

The  capacity  of  private  individuals 
(British  subjects)  or  of  corporations, 
created  by  the  crown,  in  this  country,  or 
in  Great  Britain,  to  hold  lands  or  other 
property'-  in  this  country,  was  not  af- 
fected bv  the  revolution.  Society  v.  New 
Haven.  8  Wheat.  464,  5  L.  Ed.  662;  Prop- 
agation Society  v.  Pawlet.  4  Pet.  480. 
502,  7  L.  Ed.  927.  See  ante,  "Confisca- 
tion and  Forfeiture,"  III,  E,  1,  c;  post, 
"Treaty   Rights,"    III.    E,    6. 

Effect  on  right  of  succession. — The 
correct  doctrine  of  the  English  law  is, 
that  the  right  to  inherit  depends  upon 
the  existing  state  of  allegiance,  at  the 
t'me  of  the  descent  cast.  (Inglis  v. 
Sailors'  Snug  Harbor.  3  Pet.  99.)  And 
the  idea  that  it  depends  upon  community 
nf  allegiance,  at  the  time  of  birth,  is  a 
consequence  that  follows  from  the  doc- 
trines that  a  man  can  never  put  oflf  his 
allegiance,  or  be  deprived  of  the  bene- 
fits of  it.  but  for  a  crime.  Community 
of  allegiance  once  existing,  must,  upon 
these  principles,  exist  ever  after.  Hence 
it  is.  that  the  ante-nati  of  America  may 
continue   to   inherit   in    Great   Britain,    be- 


cause we  once  owed  allegiance  to  that 
crown.  But  the  same  reason  does  not 
extend  to  the  ante-nati  of  Great  Britain, 
because  they  never  owed  allegiance  to 
our  government.  Dawson  v.  Godfrey  4 
Cranch    321.    2    L.    Ed.    634. 

"Whatever  doubts  may  have  been 
formerly  entertained,  it  is  now  settled, 
that  a  British  subject,  born  before,  can- 
not, smce  the  revolution,  take  lands  by 
descent  in  the  United  States.  Dawson 
V.  Godfrey,  4  Cranch  321,  2  L.  Ed.  634  '" 
Fairfax  v.  Hunter.  7  Cranch  603.  620,  2 
L.  Ed.  453,  reaffirmed  in  1  Wheat.  304. 
4  L.  Ed.  97.  See  quaere  in  Mcllvaine  v\ 
Coxe,  4   Cranch  209,  211,  2  L.   Ed.  598. 

British  subjects,  born  before  the  revo- 
lution, are  equally  incapable,  with  those 
born  after,  of  inheriting,  or  transmitting 
the  inheritance  of,  lands  in  this  country 
Blight  V.  Rochester.  7  Wheat.  535,  5  h. 
Ed.  516;  Inglis  v.  Sailors'  Snug  Harbor. 
3   Pet.   99,   7    L.    Ed.   617. 

80.  Construction  to  avoid  escheat.— 
Taylor  -•.  Benham,  5  How.  233,  12  L.  Ed. 
130;  Craig  v.  Leslie.  3  Wheat'  563.  4  L 
Ed.    460. 

R.  C.  a  citizen  of  Virginia,  being  seised 
of  real^^  property  in  that  state,  made  his 
will:  "In  the  first  place,  I  arive,  devise 
and  bequeath  unto  J.  L.,"  and  four  oth- 
ers, "all  my  estate,  real  and  personal,  of 
which  I  may  die  seised  and  possessed,  in 
any  part  of  .America,  in  special  trust,  that 
the  afore-mentioned  persons,  or  such  of 
them  as  may  be  living  at  my  death,  will 
sell  my  personal  estate  to  the  highest 
bidder,  on  two  years'  credit,  and  my  real 
estate  on  one,  two  and  three  years' 
credit,  provided  satisfactory  security  be 
given,  by  bond  and  deed  of  trust:"  In 
the  second  place,  I  give  and  bequeath  to 
my  brother  T.  C."  an  alien,  "all  the  pro- 
ceeds of  my  estate,  real  and  personal, 
which  T  have  herein  directed  to  be  soldi 
to  be  remitted  to  him.  accordingly  as  the 
payments  are  made,  and  I  hereby  declare 
the  aforesaid  J.  L."  and  the  four  other 
persons,  "to  be  my  trustees  and  execu- 
tors for  the  purposes  afore  mentioned." 
Held,  that  the  legacy  given  to  T.  C.  in 
the  will  of  R.  C,  was  to  be  considered 
as  a  bequest  of  personal  estate,  which  he 
was  capable  of  taking  for  his  own  bene- 
fit, though  an  alien,  on  the  principle  of 
eanitable  conversion.  Craig  v.  Leslie,  3 
Wheat.    563,   4   L.   Ed.   460. 


136 


ALIENS. 


The  protection  of  the  citizens  of  one  country  owning  property  in  another,  and 
the  manner  of  transferring,  devising  or  inheriting  the  same,  are  fitting  subjects 
for  the  exercise  of  the  treaty  power  of  the  United  States. '^^ 

b.  Treaties  zmtli  France. — Citizens  of  France  can  take  land  in  the  district 
of  Cohimbia  by  descent  from  citizens  of  the  United  States,  and  in  all  the  states 
have  all  the  rights  permitted  by  their  laws  to  aliens  as  to  holding  property  and 
disposing  thereof. ^^ 


81.  Treaty  power  and  its  scope. — Geof- 
roy  V.  Riggs,  133  U.  S.  258,  266,  33  L. 
Ed.  642;  Orr  v.  Hodgson,  4  Wheat.  453, 
4   L.    Ed.    613. 

That  the  treaty  power  of  the  United 
States  extends  to  all  proper  subjects  of 
negotiation  between  our  government  and 
the  governments  of  other  nations,  is 
clear.  It  is  also  clear  that  the  protection 
which  should  be  afforded  to  the  citizens 
of  one  country  owning  property  in  an- 
other, and  the  manner  in  which  that 
property  may  be  transferred,  devised  or 
inherited,  are  fitting  subjects  for  such 
negotiation  and  of  regulation  by  mutual 
stipulations  between  two  countries,  under 
the  treaty  power.  Geofroy  z'.  Riggs,  133 
U.  S.  258,  266.  33  L.  Ed.  642;  Chirac  v. 
Chirac,  2  Wheat.  259,  4  L.  Ed.  234. 

A  treaty  stipulation  may  be  effectual 
to  protect  an  alien's  land  from  escheat 
bv  a  state.  Hauenstein  v.  Lynham,  100 
U.   S.   483,   489.   25    L.   Ed.   628.  ' 

And  such  treaties  require  no  further 
legislation  to  give  them  force.  Chirac  v. 
Chirac,  2  Wheat.  259,  4  L.  Ed.  234;  Bald- 
win V.  Franks.  120  U.  S.  678.  703,  30  L. 
Ed.    766. 

Conflict  with  state  statutes. — Ques- 
tions have  arisen  as  to  the  rights  of 
aliens  to  hold  property  in  a  state  under 
treaties  between  this  government  and 
foreign  nations  which  distinctly  provide 
for  that  right,  and  it  has  been  said  that 
in  such  case  the  right  of  aliens  was  gov- 
erned by  the  treaty,  and  if  that  were  in 
opposition  to  the  law  of  the  particular 
state  where  the  property  was  situated,  in 
such  case  the  state  law  was  suspended 
during  the  treaty  or  the  term  provided 
for  therein.  See  Geofroy  v.  Riggs.  133 
U.  S.  258.  33  L.  Ed.  642,  a  case  arising, 
and  affecting  lands,  in  the  District  of 
Columbia,  in  regard  to  which  congress 
has  exclusive  jurisdiction,  and  in  that 
case  Mr.  Justice  Field,  in  delivering  the 
opinion  of  the  court,  said  at  page  266: 
"This  article,  by  its  terms,  suspended, 
during  the  existence  of  the  treaty,  the 
provisions  of  the  common  law  of  Mary- 
land and  of  the  statutes  of  that  state  of 
1780  and  1791.  so  far  as  they  prevented 
citizens  of  France  from  taking  by  in- 
heritance from  citizens  of  the  United 
States,  property,  real  or  personal,  situ- 
ated therein."  Blvthe  z'.  Hinckley,  180 
U.    S.    333,    340,    45    L.    Ed.    55T. 

"The  question  of  the  extent  of  the 
power  of  the  United  States  to  provide  by 
treaty  for  the  inheriting  by  aliens,  of 
real  estate,  in  spite  of  the  statutes  of  the 


state  in  which  the  land  may  be,  does  not 
arise  in  this  case,  and  we  express  no 
opinion  thereon."  Blythe  v.  Hinckley, 
180  U.   S.  333,  342,  45   L.   Ed.   557. 

Quaere,  whether  the  government  of  the 
United  States  is  incompetent  to  regulate 
testamentary  dispositions  or  laws  of  in- 
heritance of  foreigners,  in  reference  to 
property  within  the  states.  Frederickson 
z\  Louisiana,  23  How.  455.  448,  16  L.  Ed. 
577.  See  Hauenstein  v.  Lynham,  100  U. 
S.    483.    489.    25    L.    Ed.    628. 

Effect  of  expiration  or  repeal. — The 
expiration  or  repeal  of  a  treaty  confer- 
ring property  rights  on  aliens  does  not 
affect  rights  which  have  become  complete 
thereunder  during  its  continuance  in 
force.  Chirac  v.  Chirac.  2  W^heat.  259, 
4  L.  Ed.  234;  Carneal  v.  Banks,  10  Wheat. 
181,    6    L.    Ed.    297. 

Right  to  tax  succession. — See  ante, 
"Tax    on    Right   of   Succession,"    IH,    E,   3. 

82.  Rights  under  convention  of  1853. — 
Geofroy  v.  Riggs,  133  U.  S.  258,  264,  33 
L.    Ed.    642. 

Article  7  of  the  convention  with  France, 
of  1853,  means  that  in  all  the  states  of 
the  Union  by  whose  laws  aliens  are  per- 
mitted to  hold  real  estate,  so  long  as 
such  laws  remain  in  force.  Frenchmen 
shall  enjoy  the  right  of  possessing  per- 
sonal and  real  property  by  the  same  title 
and  in  the  same  manner  as  citizens  of  the 
United  States.  They  shall  be  free  to 
dispose  of  it  as  they  may  please — by  do- 
nation, testament,  or  otherwise — just  as 
those  citizens  themselves.  But  as  to  the 
states  by  whose  existing  laws  aliens  are 
not  permitted  to  hold  real  estate,  the 
treaty  engages  that  the  president  shall 
recommend  to  them  the  passage  of  such 
laws  as  may  be  necessary  for  the  pur- 
pose of  conferring  that  right.  Geofroy 
r.  Riggs.  133  U.  S.  258,  270.  33  L.  Ed. 
642. 

The  District  of  Columbia,  under  the 
government  of  the  United  States,  is  as 
much  a  state  as  any  of  those  political 
communities  which  compose  the  United 
States,  in  the  sense  that  the  word  was 
used  in  the  French  convention  of  1853. 
Geofroy  z:  Riggs,  133  U.  S.  258,  268,  33 
L.    Ed.    642. 

Under  treaty  of  1778  and  convention  of 
1800. — While  the  power  of  naturalization 
is  exclusively  in  congress,  the  treaty  of 
amity  and  commerce  between  the  United 
States  and  France,  of  1778,  art.  11,  en- 
abled the  subjects  of  France  to  purchase 
and  hold  lands  in  the  United  States,  and 
vice   versa.      Quaere,    what   was   the   effect 


ALIENS. 


237 


c.  Treaties  zcith  Great  Britain. — The  6th  article  of  the  treaty  of  peace  between 
the  United  States  and  Great  Britain,  of  1783,  completely  protected  the  titles  of 
British  subjects  to  lands  in  the  United  States,  which  would  have  been  liable  to 
forfeiture,  by  escheat,  for  the  defect  of  alienage;  that  article  was  not  meant  to 
be  confined  to  confiscations  jure  belli. ^^  The  treaties  of  1783  and  1794  only 
provided   for  titles  existing  at  the  time  those  treaties  were-  made,  and  not  for 


of  this  treaty  under  the  confederation? 
Chirac  v.  Chirac.  2  Wheat.  259,  4  L.  Ed. 
234;  see  Pollard  v.  Kibbe.  14  Pet.  353, 
413.    10    L.    Ed.    490. 

And  no  further  legislation  was  re- 
quired to  give  it  effect.  Chirac  v.  Chirac, 
2  Wheat.  259.  4  L.  Ed.  234;  Baldwin  v. 
Franks,   120  U.   S.  678,  703,  30   L.   Ed.   766. 

The  repeal  of  the  treaty  of  1778  with 
France  did  not  abrogate  the  act  of  Mary- 
land of  1780,  by  implication.  Chirac  v. 
Chirac,   2   Wheat.    259,   4   L.    Ed.    234. 

A  naturalized  Frenchman  having  died 
seised  in  fee  of  the  lands  in  question,  his 
heirs  being  French  subjects,  the  treaty 
of  1778  having  been  abrogated,  and  the 
act  of  Maryland,  of  1780,  permitting  the 
lands  of  a  French  subject,  who  had  be- 
come a  citizen  of  Maryland,  dying  in- 
testate, to  descend  on  the  next  of  kin. 
being  nonnaturalized  Frenchmen,  with  a 
proviso  vesting  the  land  in  tlie  state,  if 
the  French  heirs  should  not.  within  ten 
years,  become  resident  citizens  of  the 
state,  or  convey  the  lands  to  a  citizen, 
being  still  in  force,  it  was  determined, 
that  the  time  for  the  performance  of  this 
condition  having  expired,  before  the  ac- 
tion was  brought,  the  estate  was  termi- 
nated, unless  supported  in  some  other 
manner  than  by  the  act  of  Marjdand. 
Chirac  v.  Chirac,  2  Wheat.  259,  260,  4  L. 
Ed.   234. 

But  the  convention  of  1800,  between 
the  United  States  and  France,  enabling 
the  people  of  one  country  holding  lands 
in  the  other,  to  dispose  of  the  same  by 
testament  or  otherwise,  and  to  inherit 
lands  in  the  respective  countries,  with- 
out being  obliged  to  obtain  letters  of 
naturalization,  it  was  held,  that  it  ren- 
dered the  performance  of  this  condition 
a  useless  formality,  and  that  the  conven- 
tional ri'le  applied  equally  to  the  case  of 
those  who  took  by  descent,  under  the 
act,  as  to  those  who  acquired  by  pur- 
chase, without  its  aid.  Chirac  v.  Chirac, 
2  Wheat.   259,   4  L.   Ed.   234. 

The  further  stipulation  in  the  conven- 
tion, "that  in  case  the  laws  of  either  of 
the  two  states  should  restrain  strangers 
from  the  exercise  of  the  rights  of  prop- 
erty M-ith  respect  to  real  estate,  such  real 
estate  may  be  sold,  or  otherwise  dis- 
posed of,  to  citizens  or  inhabitants  of  the 
country  where  it  may  be,"  was  held  not 
to  affect  the  rights  of  a  French  subject, 
who  takes  or  holds,  by  the  convention,  so 
as  to  deprive  him  of  the  power  of  selling 
to  citizens  of  this  country;  and  was  held 
to  give  to  a  French  subject,  who  had  ac- 
quired  lands    by    descent    or    devise    (and 


perhaps,  in  any  other  manner),  the  right, 
during  life,  to  sell  or  otherwise  dispose 
thereof,  if  lying  in  a  state  where  lands 
purchased  by  an  alien,  generally,  would 
be  immediately  escheatable.  Chirac  v. 
Chirac.  2   Wheat.  259,  4   L.   Ed.  234. 

.Although  the  convention  of  1800  has 
expired,  by  its  own  limitation,  it  was  de- 
termined, that  the  instant  the  descent 
was  cast  on  a  French  subject,  during  its 
continuance,  his  rights  became  complete 
under  it,  and  could  not  be  affected  by  its 
subsequent  expiration.  Chirac  v.  Chirac, 
2    Wheat.   259,   4   L.    Ed.   234. 

The  treaty  of  1778,  between  the  United 
States  and  France,  allowed  the  citizens 
of  either  country  to  hold  lands  in  the 
other;  and  the  title  once  vested  in  a 
French  subject,  to  hold  land  in  the 
United  States,  was  not  divested  by  the 
abrogation  of  that  treaty,  and  the  expira- 
tion of  the  subsequent  convention  of 
1800.  Carneal  v.  Banks.  10  Wheat.  181. 
6    L.    Ed.   297. 

For  construction  of  art.  7  of  the  con- 
vention with  France  of  1800,  and  art.  7 
of  the  conven^inn  of  1853,  see  Geofroy 
V.   Riggs,   1,33  U.  S.  258,  33   L.   Ed.  642. 

Treaty  ceding  Louisiana. — The  lan- 
guage of  the  treaty  ceding  Louisiana  ex- 
cludes every  idea  of  interfering  with 
private  property;  of  transferring  land 
which  had  been  severed  from  the  royal 
domain.  The  people  changed  their 
sovereign;  their  right  to  property  re- 
mained unaffected  by  this  change.  The 
right  of  property,  then,  is  protected  and 
secured  by  the  treaty;  and  an  inchoate 
title  to  lands  is  property.  Delassus  v. 
United  States,  9  Pet.  117,  133,  9  L.  Ed. 
71.  See,  also.  Ainsa  v.  New  Mexico,  etc., 
R.  Co.,  175  U.  S.  76.  79.  44  L.  Ed.  78; 
Livingston  v.  Story.  11  Pet.  351,  394.  9 
L.  Ed.  746;  Strother  v.  Lucas,  12  Pet. 
410.   9   L.   Ed.   1137. 

83.  Treaty  of  1783.— Orr  v.  Hodgson, 
4  Wheat.  453,  4  L.  Ed.  613;  Society  v. 
New   Haven,   8  Wheat.   464,    5   L.    Ed.   662. 

The  treaty  of  1783  acted  upon  the  state 
of  things  as  it  existed  at  that  period;  it 
took  the  actual  state  of  things  as  its 
basis;  all  those,  whether  natives  or  other- 
wise, who  then  adhered  to  the  American 
states,  were  virtually  absolved  from  all 
allegiance  to  the  British  crown;  all  those 
who  then  adhered  to  the  British  crown 
were  deemed  and  held  subjects  of  that 
crown;  the  treaty  of  peace  wPs  a  treaty 
operating  between  states  and  the  inhabit- 
ants thereof.  Shanks  v.  Dupont,  3  Pet, 
242,  247,   7    L.    Ed.    666. 


238 


ALIENS. 


titles  subsequently  acquired. ^^  And  by  the  British  treaty  of  1794,  all  impedi- 
ment of  alienage  was  absolutely  levelled  with  the  ground  despite  the  laws  of  the 
states. S5  Actual  possession  is  not  necessary  to  give  the  party  the  benefit  of  the 
treaty;  but  the  existence  of  title  at  the  time  is  necessary.*^"     And  all  British-born 


84.  Same  considered  with  treaty  of 
1794. — Where  J.  D.,  an  alien  and  British 
subject,  came  into  the  United  States, 
subsequent  to  the  treaty  of  1783,  and  be- 
fore the  signature  of  the  treaty  of  1794. 
died  seised  of  the  lands  in  question; 
held,  that  the  title  of  his  heirs  was  not 
protected  by  the  treaties.  Blight  v.  Ro- 
chester, 7   Wheat.   535,  5   L.    Ed.  516. 

And  in  Smith  v.  State  of  Maryland,  6 
Cranch  286,  3  L.  Ed.  225.  it  was  held, 
that  the  acts  of  Maryland,  1780,  ch.  45 
and  49,  confiscated  and  vested  in  the 
state  the  equitable  interests  of  British 
subjects  in  lands  without  office  found, 
prior  to  the  treaty  of  peace  of  1783,  so  that 
the  British  cestui  que  trust  was  not  pro- 
tected by  the  stipulation  in  that  treaty, 
against  future  confiscations,  nor  by  the 
stipulation  in  the  9th  article  of  the  treaty 
of  1794,  securing  to  British  subjects,  who 
then  held  lands  in  this  country,  the  right 
to    continue    to    hold    them. 

The  property  of  British  corporations, 
in  this  country,  was  protected  by  the  6th 
article  of  the  treaty  of  peace  of  1783,  in 
the  same  manner  as  those  of  natural  per- 
sons; and  their  title,  thus  protected,  was 
confirmed  by  the  9th  article  of  the  treaty 
of  1794,  so  that  it  could  not  be  forfeited 
by  any  intermediate  legislative  act,  or 
other  proceeding  for  the  defect  of  alien- 
age. Society  v.  New  Haven,  8  Wheat. 
464.    5    L.    Ed.    662. 

85.  Treaty  of  1794  removed  all  dis- 
ability.— Hauenstein  v.  Lynham,  100  U. 
S.    483,    489,    25    L.    Ed.    628. 

Whether  the  treaty  of  peace  of  1783, 
declaring  that  no  future  confiscations 
should  be  made,  protects  from  forfeiture, 
under  the  municipal  laws  respecting 
alienage,  lands  held  by  British  subjects 
at  the  time  of  its  ratification,  or  not,  yet 
the  9th  article  of  treaty  of  1794  com- 
pletely protected  the  title  of  a  British 
devisee,  whose  estate  had  not  been  pre- 
viously divested  by  an  inquest  of  office, 
or  some  equivalent  proceeding.  Jackson 
V.  Clarke,  3  Wheat.  1,  12,  4  L.  Ed.  319. 

The  commonwealth  of  Virginia  could 
not  grant  the  unappropriated  lands  in  the 
Northern  Neck,  the  absolute  property, 
seizin  and  possession  of  which  was  in 
Eord  Fairfax  at  his  death,  until  its  title 
should  have  been  perfected  by  posses- 
sion; and  the  British  treaty  of  1794  con- 
firmed the  title  to  those  lands  in  the  dev- 
isee of  Lord  Fairfax.  Fairfax  v.  Hun- 
ter, 7  Cranch  603.  3  L.  Ed.  453,  affirmed 
in    1    Wheat.   304,    4    L.    Ed.    97. 

"It  was  once  in  the  power  of  the  com- 
monwealth of  Virginia,  by  an  inquest  of 
office  or  its  equivalent,  to  have  vested 
the    estate    completely    in     itself,      or      its 


grantee.  But  it  has  not  so  done,  and  its 
own  inchoate  title  (and  of  course,  the 
derivative  title,  if  any,  of  its  grantee) 
has,  by  the  operation  of  the  treaty,  be- 
come ineffectual  and  void."  Fairfax  v. 
Hunter,  7  Cranch  603,  627,  3  L.  Ed.  453, 
reaffirmed   in    1   Wheat.   304,   4    L.   Ed.   97. 

A  defeasible  title,  thus  vested,  during 
the  war  of  the  revolution,  in  a  British- 
born  subject,  who  has  never  become  a 
citizen,  is  completely  protected  and  con- 
firmed by  the  9th  article  of  the  treaty  of 
1794,  between  the  United  States  and 
Great  Britain.  Craig  v.  Radford,  3 
Wheat.  594,  4  L.  Ed.  467.  See  ante, 
"Confiscation  and  Forfeiture,"  III,  E,  1, 
c;  "Effect  of  Division  of  Country," 
HI,    E.   4. 

86.  Nature  of  title  protected. — Blight 
V.  Rochester,  7  Wheat.  535,  5  L.  Ed.  516; 
Harden  v.  Fisher,  1  Wheat.  300,  4  L. 
Ed.    96. 

It  completely  protects,  without  further 
legislation,  the  property  rights  of  British 
aliens  in  this  country,  of  every  descrip- 
tion, and  its  validity  is  unquestionable. 
Hughes  V.  Edwards,  9  Wheat.  489,  6  L. 
Ed.  142;  Orr  v.  Hodgson,  4  Wheat.  453, 
4  L.  Ed.  613.  See  Baldwin  v.  Franks.  120 
U.    S.    67S,    703.    30    L.    Ed.    766. 

Actual  possession  or  seizin  at  time  of 
treaty  unnecessary. — Under  the  0th 
article  of  the  treaty  between  the  United 
States  and  Great  Britain,  of  1794  (by 
which  was  provided  that  British  subjects, 
holding  lands  in  the  United  States,  and 
their  heirs,  so  far  as  respects  those  lands 
and  the  remedies  incident  thereto,  should 
not  be  considered  as  aliens),  it  is  not 
necessary  for  the  alien  to  show  that  he 
was  in  the  actual  possession  or  seisin 
of  the  land,  at  the  date  of  the  treaty, 
which  applies  to  the  title,  whatever  that 
vaay  be.  and  gives  it  the  same  legal 
validity  as  if  the  parties  were  citizens: 
the  title  of  an  alien  mortgagee  is  pro- 
tected by  the  treaty.  Hughes  v.  Ed- 
wards, 9  Wheat.  489,  6  L.  Ed.  142;  Har- 
den V.  Fisher,  1  W'heat.  300,  4  L.  Ed.  96; 
Orr  V.  Hodgson,  4  Wheat.  453,  463.  4  L. 
Ed.    613. 

But.  independent  of  the  stipulations  of 
the  treaty,  an  alien  imortgagee  has  a  right 
to  come  into  a  court  of  equity,  and  have 
the  property  which  has  been  pledged  for 
the  payment  of  the  debt,  sold  for  the  pur- 
pose of  raising  the  monej^;  his  demand 
is  merely  a  personal  one.  the  debt  being 
considered  as  the  principal,  and  the  land 
as  an  incident.  Hughes  r.  Edwards,  9 
Wheat.  489,  6  L.  Ed.  142.  See,  also,  Neil- 
son  V.  Lagow,  12  How.  98.  108,  13  L. 
Ed.    909. 


A  LI  EX  S. 


23J 


subjects,   whose   allegiance   has   never   been   renounced,   are   included    within    its 
benefits,  and  citizens  of  the  United  States.^'' 

d.  Treaties  zinth  Szcitccrlaud. — The  treaty  of  1850,  with  the  Swiss  Confedera- 
tion, removed  the  incapacity  of  a  citizen  of  Switzerland  so  far  as  to  entitle  him 
to  the  proceeds  of  land  in  \'irginia,  as  to  which  he  is  the  next  of  kin.'*^  And 
the  time  for  asserting  same  is  limited  by  no  statute.**^ 


87.     All    British-born   subjects   included. 

— All  British-born  subjects,  whose  alle- 
giance Great  Britain  has  never  renounced, 
ought,  upon  general  principles  of  inter- 
pretation, to  be  held  within  the  intent, 
as  they  certainly  are  within  the  words, 
of  the  treaty  of  1794.  p.  250,  removing 
the  disabilities  of  alienage  of  British  sub- 
jects and  their  heirs,  as  to  lands  held  by 
them  in  the  United  States  at  the  time  of 
the  treaty.  Shanks  v.  Dupont,  3  Pet. 
242,    7    L.    Ed.    666. 

But  the  9th  article  of  the  treaty  of 
1794  did  not  mean  to  include  any  other 
persons  than  such  as  were  British  sub- 
jects or  citizens  of  the  United  States.  It 
did  not  apply  to  aliens  to  both  govern- 
ments. Orr  v.  Hodgson,  4  Wheat.  453, 
4    L.    Ed.    613. 

G.  C,  born  in  the  colony  of  New  York, 
went  to  England  in  1738,  where  he  re- 
tided  until  his  decease;  and  being  seised 
of  lands  in  New  York,  he.  on  the  30th  of 
November,  1776,  in  England,  devised  the 
same  to  the  defendant  and  E.  C.  as  ten- 
ants in  common,  and  died  so  seised,  on 
the  10th  of  December.  1776;  the  defend- 
ant and  E.  C.  having  entered  and  becom- 
ing possessed,  E.  C.,  on  the  3d  of  De- 
cember, 1791.  bargained  and  sold  to  the 
defendant  all  his  interest.  The  defendant 
and  E.  C,  were  both  born  in  England 
long  before  the  revolution.  On  the  22d 
of  March.  1791,  the  legislature  of  New 
York  passed  an  act  to  enable  the  defend- 
ant to  purchase  lands,  and  to  hold  all 
other  lands  which  he  might  then  be  en- 
titled to,  within  the  state,  by  purchase  or 
descent,  in  fee  simple,  and  to  sell  and 
dispose  of  the  same,  in  the  same  manner 
as  any  natural  born  citizen  might  do.  The 
treaty  between  the  United  States  and 
Great  Britain  of  1794,  contains  the  fol- 
lowing provision:  "Article  9th.  It  is 
agreed,  that  British  subjects  who  now 
hold  lands  in  the  territories  of  the  United 
States,  and  ,\merican  citizens  who  now 
hold  lands  in  the  dominions  of  his  maj- 
esty, shall  continue  to  hold  them,  ac- 
cording to  the  nature  and  tenure  of  their 
respective  estates  and  titles  therein;  and 
may  grant,  sell  or  devise  the  same,  to 
whom  they  please,  in  like  manner  as  if 
they  were  natives,  and  that  neither  they, 
nor  their  heirs  or  assigns,  shall,  so  far 
as  respects  the  said  lands  and  the  legal 
remedies  inc'dent  thereto,  be  considered 
as  aliens."  The  defendant,  at  the  time  of 
the  action  .brought,  still  continued  to  be 
a  British  subject.  Held,  that  he  was  en- 
titled to  hold  the  lands  so  devised  to  him 


by    G.   C.,   and   transferred   to   him.     Jack- 
son v.  Clarke,  3  Wheat.  1,  4  L.  Ed.  319. 

Thomas  Scott,  a  native  of  South  Caro- 
lina, died  in  1782,  intestate,  seised  of  lands 
en  James  Island,  having  two  daughters, 
.\nn  and  Mary,  both  born  in  South  Caro- 
lina, before  the  Declaration  of  Independ- 
ence; Sarah  married  D.  P..  a  citizen  of 
South  Carolina,  and  died  in  1802,  entitled 
to  one-half  of  the  estate.  The  British 
took  possession  of  James  Island  and 
Charleston,  in  February  and  May.  1780; 
and  in  1781,  Ann  Scott  married  Joseph 
Shanks,  a  British  officer,  and  at  the 
evacuation  of  Charleston,  in  1782,  she 
went  to  England  with  her  husband,  where 
she  remained  until  her  death  in  1801;  she 
left  five  children,  born  in  England;  they 
claimed  the  other  moiety  of  fhe  real  es- 
tate of  Thomas  Scott,  in  right  of  their 
mother,  under  the  ninth  article  of  th€ 
treaty  of  peace  between  this  country  and 
Great  Britain,  of  the  19th  of  November, 
1794.  Held,  that  they  were  entitled  to 
recover  and  hold  the  same.  Shanks  v. 
Dupont,    3    Pet.    242.    7    L.    Ed.   666. 

Her  subsequent  removal  to  England, 
with  her  husband,  operated  as  a  virtual 
dissolution  of  her  allegiance,  and  fixed 
her  future  allegiance  to  the  British  crown, 
by  the  treaty  of  peace  in  1783.  p.  246. 
Shanks  v.  Dupont,  3  Pet.  242,  7  L.  Ed 
666. 

88.  Rights  under   treaty   of    1850.— A,   a 

citizen  of  Switzerland  died  in  1861  in  Vir- 
ginia intestate  and  without  issue.  For 
want  of  an  heir  capable  under  the  stat- 
utes of  the  state  to  inherit  the  lands  there 
situate  whereof  he  died  seised  in  fee,  they 
were  sold  by  the  escheator  of  the  proper 
district.  A's  next  of  kin,  B,  a  citizen  of 
Switzerland,  filed  a  petition  to  recover 
the  proceeds  of  that  sale.  Upon  consid- 
eration of  the  treaty  between  the  United 
States  and  the  Swiss  Confederation  of 
November  25,  1850  (10  Stat.  587),  held, 
that  the  treat}^  is  the  supreme  law  of  the 
land,  and  by  its  terms  the  incapacity  of 
B  as  an  alien  was  so  far  removed  as  to 
entitle  him  to  recover  and  sell  the  lands 
and  "withdraw  and  export  the  proceeds 
thereof."  Hauenstein  v.  Lynham.  100  U. 
S.    483.    25    L.    Ed.   628. 

In  view  of  B's  rights  in  the  premises, 
the  escheator  is  entitled  only  to  the 
amount  allowed  by  law  for  making  sales 
of  real  estate  in  ordinary  cases,  but  coun- 
sel cannot  be  paid  out  of  the  fund  in  dis- 
pute. Hauenstein  7-.  Lynham,  100  U.  S. 
483.    25    L.    Ed.    62S. 

89.  Limitation. — His  rights  thus  secured 


240 


AUEXS. 


F.  Criminal  Jurisdiction  over  Aliens. — The  general  rule  of  law  is  that 
aliens  are  subject  to  the  law  of  the  territory  where  the  crime  is  committed. ^"^ 
But  by  comity  it  has  come  to  be  generally  understood  among  civilized  nations 
that  ail  matters  of  discipline  and  all  things  done  on  board  which  affect  only  the 
vessel  or  those  belonging  to  her,  and  do  not  involve  the  peace  or  dignity  of  the 
country,  or  the  tranquillity  of  the  port,  should  be  left  by  the  local  government  to 
be  dealt  with  by  the  authorities  of  the  nation  to  which  the  vessel  belonged,  as 
the  laws  of  that  nation  or  the  interests  of  its  commerce  require.  But  if  crimes 
are  committed  on  board  of  a  character  to  disturb  the  peace  and  tranquillity  of  the 
country  to  which  the  vessel  has  been  brought,  the  offenders  have  never  by  comity  or 
usage  been  entitled  to  any  exemption  from  the  operation  of  the  local  laws  for 
their  punishment,  if  the  local  tribunals  see  fit  to  assert  their  authority. ^^  But  this 
implied  consent  to  waive  jurisdiction  over  the  internal  affairs  of  such  foreign 
merchant  vessels  may  be  withdrawn,  partially  or  entirely. ^^ 

G.  Alien  Enemies  and  Effect  of  War. — See  the  titles  Admiralty,  ante, 
p.  119;  Confederate  States;  War. 

IV.    Pleading  and  Practice. 

A.  Declaration  or  Bill— 1.  Averments  as  to  Alienage  or  Citizenship. 
— In  order  to  give  the  federal  courts  jurisdiction  of  a  cause  to  which  an  alien  is  a 


are  not  barred  by  the  lapse  of  time,  inas- 
much as  no  statute  of  Virginia  prescribes 
the  term  within  which  they  must  be  as- 
serted, as  may  be  done  by  the  terms  of 
the  treaty.  Hauenstein  v.  Lynham.  100 
U.    S.    483,    25    L.    Ed.    628. 

90.  Barrington  v.  Missouri,  20.5  U.  S. 
483,  487,  51  L.  Ed.  890.  citing  Wildenhus' 
Case,  120  U.  S.  1,  30  L.  Ed.  565;  Carlisle 
V.  United  States,  16  Wall.  147,  21  L.  Ed. 
426;  Patterson  v.  Bark  Eudora,  190  U.  S. 
169.  177.  47  L.  Ed.  1002.  See  the  title 
ADMIRALTY,  ante,  p.  119. 

91.  Comity  rule — Dependent  on  public 
character  of  offense. — Wildenhus'  Case. 
120  U.  S.  1.  12,  30  L.  Ed.  565;  Patterson 
V.  Bark  Eudora.  190  U.  S.  169,  177,  47  L. 
Ed.    1002. 

"The  principle  which  governs  the 
whole  matter  is  this:  Disorders  which 
disturb  only  the  peace  of  the  ship  or 
those  on  board  are  to  be  dealt  with  ex- 
clusively by  the  sovereignty  of  the  home 
of  the  ship,  but  those  which  disturb  the 
public  peace  may  be  suppressed,  and,  if 
need  be.  the  offenders  punished  by  the 
proper  authorities  of  the  local  jurisdic- 
tion. It  may  not  be  easy  at  all  times  to 
determine  to  which  of  the  two  jurisdic- 
tions a  particular  act  of  disorder  belongs. 
Much  will  undoubtedly  depend  on  the  at- 
tending circumstances  of  the  particular 
case,  but  all  must  concede  that  felonious 
homicide  is  a  subject  for  the  local  juris- 
diction, and  that  if  the  proper  authori- 
ties are  proceeding  with  the  case  in  a 
regular  way,  the  consul  has  no  right  to 
interfere  to  prevent  it."  Wildenhus'  Case, 
120   U.    S.    1,    18,    30    L.    Ed.    565. 

Under  the  treaty  which  is  the  law 
which  now  governs  the  conduct  of  the 
United  States  and  Belgium  towards  each 
other   in    this   particular,    each   nation    has 


granted  to  the  other  such  local  jurisdic- 
tion within  its  own  dominion  as  may  be 
necessary  to  maintain  order  on  board  a 
merchant  vessel  but  has  reserved  to  it- 
self the  right  to  interfere  if  the  disorder 
on  board  is  of  a  nature  to  disturb  the 
public  tranquility.  Wildenhus'  Case,  120 
U.   S.    1,    17.   30    L.    Ed.    565. 

No  treaty  gives  to  subjects  of  Great 
Britain  any  different  measure  of  justice 
than  is  secured  to  citizens  of  this  coun- 
try. Barrington  z'.  Missouri.  205  U.  S. 
483,  487,  51  L.  Ed.  890,  citing  Spies  v. 
Illinois.   123   U.    S.    131.   182.   31   L.    Ed.   80. 

92.  Subject  to  revocation  or  change. — 
Patterson  z\  Bark  Eudora,  190  U.  S.  169, 
178.    47   L.    Ed.    1002. 

It  is  within  the  power  of  congress  to 
prescribe  penal  provisions  regulating 
contracts  for  seamen's  wages,  and  no 
one  within  the  jurisdiction  of  the  United 
States  can  escape  liability  for  a  viola- 
tion of  those  provisions  on  the  plea  that 
he  is  a  foreign  citizen  or  an  officer  of  a 
foreign  merchant  vessel.  It  also  follows 
that  it  is  a  duty  of  the  courts  of  the 
United  States  to  give  full  force  and  ef- 
fect to  such  provisions.  It  is  not  pre- 
tended that  this  government  can  control 
the  action  of  foreign  tribunals.  In  any 
case  presented  to  them  they  will  be 
guided  by  their  own  views  of  the  law 
and  its  scope  and  effect,  but  the  courts 
of  the  United  States  are  bound  to  ac- 
cept this  legislation  and  enforce  it  when- 
ever its  provisions  are  violated.  The  im- 
plied consent  of  this  gogk'ernment  to  leave 
jurisdiction  over  the  internal  affairs  of 
foreign  merchant  vessels  in  our  harbors 
to  the  pations  to  which  those  vessels  be- 
long may  be  withdrawn.  Indeed,  the  im- 
plied consent  to  permit  them  to  enter  our 
harbors  may  be  withdrawn,  and  if  this 
implied    consent    may     be     wholly      with- 


ALIEXS. 


241 


party,  ii  is  necessary  to  set  forth  the  alienage  or  citizenship  of  the  parties  in  posi- 
tive terms. ^3  When  the  jurisdiction  of  the  circuit  court  depends  upon  the  ahenage 
of  one  of  the  parties,  the  fact  of  ahenage  must  appear  affirmatively  either  in  the 
pleadings  or  elsewhere  in  the  record. ^^ 


drawn  it  may  be  extended  upon  such 
terms  and  conditions  as  the  government 
sees  fit  to  impose.  Patterson  v.  Bark 
Eudora,  190  U.  S.  169,  178,  47  L.  Ed.  1002. 
And  see  ante,  "Allegiance  and  Jurisdic- 
tion  Over."   Ill,   A. 

93.  Averments  must  be  in  positive 
terms. — Turner  v.  Enrille,  4  Dall.  7,  1  L. 
Ed.    717;    Bingham    v.    Cabot,    .'!    Dall.    382, 

1  L.  Ed.  646;  Abercrombie  i'.  Dupuis.  1 
Cranch  343.  2  L.  Ed.  1?9;  Capron  r.  Van 
Noorden,  2  Cranch  126,  2  L.  Ed.  229; 
Mossman  f.  Iligginson,  4  Dall.  12.  1  L. 
Ed.  720;  Jackson  v.  Twentyman,  2  Pet. 
136,  7  L.  Ed.  374;  Edwards  z'.  Tanneret, 
12  Wall.  446,  450,  20  L.  Ed.  415;  Rouse 
r.  Letcher,  156  U.  S.  47,  39  L.  Ed.  341; 
Hodgson  V.  Bower  Bank,  5  Cranch  303, 
3  L.  Ed.  108.  .See  Turner  v.  Bank  of  N. 
America,   4    Dall.   8.    1    L.    Ed.    718. 

To  give  jurisdiction  to  the  courts  of 
the  United  States,  on  account  of  alien- 
age of  a  party,  it  must  be  expressly 
averred  in  the  pleading  that  one  of  the 
parties  is  an  alien.  Abercrombie  v. 
Dupuis.  1  Cranch  343.  2  L.  Ed.  129,  fol- 
lowing Bingham  z'.  Cabot,  3  Dall.  382.  1 
L.  Ed.  646.  The  record  must  show  the 
fact.  Capron  v.  Van  Noorden,  2  Cranch 
126.   2    L.    Ed.   229. 

The  power  of  congress  to  confer  juris- 
diction on  the  federal  courts  of  suits 
"where  an  alien  is  a  party,"  is  confined 
to  suits  between  citizens  and  foreigners, 
and  therefore,  a  description  of  the  par- 
ties in  the  pleadings  showing  this  fact, 
is  essential  to  the  jurisdiction  of  the  cir- 
cuit court  over  suits  to  which  an  alien  is 
party.  Mossman  <:•.  Higgins'^n,  4  Dall. 
12,  1   L.  Ed.   720;  Jackson  v.  Twentyman, 

2  Pet.   136,   7   L.   Ed.   374. 

Although  the  plaintiflf  be  described  in 
the  proceedings  as  an  alien,  yet  the  de- 
fendant must  be  expressly  stated  to  be 
a  citizen  of  some  one  of  the  United 
States.  Otherwise,  the  courts  of  the 
United  States  have  not  jurisdiction  in 
the  case.  The  words  of  the  constitution 
were  found  to  be  "between  a  state,  or  the 
citizens  thereof,  and  foreign  states,  citi- 
7ens  or  subjects."  Hodgson  v.  Bower 
Bank,  5  Cranch  303.  3  L.  Ed.  108.  Ste, 
however,  ante,  "Suits  between  Aliens," 
Til.    D,    1.      See   the   title    COURTS. 

94.  Must  appear  in  pleadings  or  record. 
—Brown  f.  Keene.  8  Pet.  112,  115.  8  L. 
Ed.  885;  Bingham  v.  Cabot.  3  Dall.  382, 
1  L.  Ed.  646;  Capron  v.  Van  Noorden,  2 
Cranch  126.  2  L.  Ed.  229;  Robertson  z: 
Cease,  97  U.  S.  646.  24  L.  Ed.  1057;  Bors 
f.  Preston.  Ill  U.  S.  252.  263.  28  L.  Ed. 
419. 

Where    it    does    not    appear     from      the 

1  U  S  Enc— 16 


record  that  the  defendant  is  an  alien,  and 
it  is  consistent  with  the  record  that  the 
defendant  was  and  is  a  citizen  of  the 
same  state  with  the  plaintiff,  the  record, 
as  it  now  is,  does  not  present  a  case  which 
the  circuit  court  had  authority  to  de- 
termine. Bors  v.  Preston,  111  U.  S.  252, 
263,    28    L.    Ed.    419. 

In  Stuart  v.  Easton.  156  U.  S.  46,  39 
L.  Ed.  341.  it  was  held,  that  by  the  de- 
scription of  plaintif?  as  "a  citizen  of  Lon- 
don, England,"  the  fact  that  he  was  a 
subject  of  the  British  Crown  was  not 
made  afifirmatively  to  appear  as  required. 
In  the  case  at  bar,  complainants  de- 
scribed themselves  as  "all  of  Cognac  in 
France,  and  citizens  of  the  Republic  of 
France,"  and  this  was  sufficient.  No 
averment  of  alienage  was  necessary. 
Hennessy  v.  Richardson  Drug  Co.,  189 
U.   S.  25.  35.  47  L.   Ed.  697. 

An  allegation  that  the  plaintiff  now  is 
and  for  more  than  one  3'ear  last  past, 
has  been  a  resident  of  a  state  of  the 
Union  and  a  citizen  of  Sweden,  is  a 
sufficient  averment  of  alienage.  The 
meaning  of  the  pleader,  being,  evidently, 
to  state  the  nationality  of  the  plaintiff 
and  the  country  to  which  he  owed 
allegiance,  an  objection  that  he  should 
have  been  styled  "subject,"  was  without 
merit.  Nichols  Lumber  Co.  v.  Transon. 
203  U.  S.  278.  51  L.  Ed.  181,  citing  Hen- 
nessy v.  Richardson  Drug  Co.,  189  U. 
S.    25,    47    L.    Ed.   697. 

A  dismissal  of  a  case  for  want  of  ju- 
risdiction held  to  have  been  rightly  made 
from  the  circuit  court  for  Louisiana,  as 
being  a  proceeding  which,  under  the  act 
of  congress  of  July  28th.  1866,  was  to 
remain  in  the  district  court  of  the  United 
States  for  that  district;  the  case  being 
one  that  had  been  begun  in  the  "Pro- 
visional Court  of  Louisiana,"  on  plead- 
ings which  showed  that  both  parties 
were  citizens  of  the  state  named.  The 
jurisdiction  of  the  circuit  court  was  held 
not  to  have  been  helped  by  a  suggestion 
made  there  on  transferring  the  case,  that 
the  defendant  was  an  alien;  the  fact  be- 
ing denied  in  the  subsequent  pleadings, 
and  no  proof  of  it  in  any  way  made.  Ed- 
wards z'.  Tanneret,  12  Wall.  446,  20  L. 
Ed.    415. 

"When  the  plaintiff  in  an  action  in- 
vokes the  jurisdiction  of  the  circuit  court 
because  of  the  citizenship  of  the  parties, 
it  must  appear  upon  the  record  that  the 
citizenship  is  such  as  to  justify  the  coart 
in  taking  cognizance  of  the  case.  And 
certainly  the  pleadings  here  exhibit  noth- 
ing from  which  the  court  can  see  that 
both  parties  are  not  citizens  of  Louisiana. 


''42 


ALIENS. 


2.  Effect  and  Necessity  for  DENiAi,.-^\Miere  the  petitioners  averred  that 
they  were  aliens,  and  this  averment  is  not  contradicted  on  the  record,  the  court  can- 
not presume  that  they  are  citizens. ^-^  And  where  the  declaration  plainly  sets  out 
that  the  plaintiffs  are  aliens,  and  the  defendant  a  citizen  of  Maryland,  it  is  suf- 
ficient to  give  the  federal  court  jurisdiction. '^'^ 

3.  Amendment. — If  an  alien  should  sue  a  citizen,  and  omit  to  state  the  char- 
acter of  the  parties  in  the  bill,  though  the  court  could  not  exercise  jurisdiction, 
while  the  defect  in  the  bill  remained,  yet  it  might,  as  is  every  day's  practice,  be 
corrected,  at  any  time  before  the  hearing,  and  the  court  would  not  hesitate  to  de- 
cree in  the  cause. ^^ 

B.  Plea. — The  general  issue  pleaded  to  an  action  of  ejectment  admits  the 
capacity  of  the  plaintiffs  to  sue,  although  aliens,'^^  and  a  plea  of  alienage,  to  be 


As  already  noticed,  the  petition  makes 
no  averment  respecting  the  citizenship  of 
the  defendant,  and  simply  describes  the 
plaintiff  as  a  citizen,  without  asserting  of 
what  state  or  kingdom.  And  the  citation 
describes  both  parties  as  citizens  of 
Louisiana."  Edwards  v.  Tanneret,  12 
Wall.    44(5,    4.-50,    20    L.    Ed.    413. 

Residence. — Where  the  plaintiffs  are 
aliens,  the  jurisdiction  has  been  held  to 
be  sufficiently  shown  by  stating  that  fact 
and  the  citizenship  of  defendants,  with- 
out averring  that  the  defendant  is  a  resi- 
dent of  the  district  in  which  the  suit  is 
brought  -^r  served  therein.  His  right  of 
exemption  to  suit  there  may  be  waived 
hy  voluntary  appearance.  Gracie  v. 
"palmer,  8  Wheat.  699,  5  L.  Ed.  719.  See 
ante,  "Venue,  Scope,  and  Rule  of  De- 
cision," III.   D,  2,  c. 

Alleging  discrimination  in  protection 
of  laws. — See  ante,  "Right  to  Protection 
of   Laws,"   in,   B. 

95.  Presumed  true  where  uncontra- 
dicted.— Breedlove  v.  Nicolet,  7  Pet.  413, 
8  L.  Ed.  731.  See  Propagation  Society 
V.  Pawlet,  4  Pet.  480,  7  L.  Ed.  927. 

96.  Waters  v.  Barrill,  131  U.  S.  (Ap- 
pendix)   Ixxxiv.    18    L.    Ed.    STS. 

Effect  and  collateral  attack. — The  ju- 
risdiction of  the  circuit  court  of  the 
United  States,  of  a  suit  brought  by  a 
plaintiff  alleging  alienage,  cannot  be 
questioned  as  to  the  fact  in  another  suit, 
when,  by  the  record  of  the  original  suit, 
there  appeared  to  be  jurisdiction,  and  the 
question  was  not  raised  by  the  defend- 
ant in  that  suit.  Lacassagne  v.  Chapuij, 
144   U.    S.   119,   126.   36   L.    Ed.   368. 

97.  Amended  to  show  character  of 
parties. — Conolly  v.  Taylor.  2  Pet.  556,  7 
L.  Ed.  518;  Rouse  v.  Letcher,  156  U.  S. 
47,    39    L.    Ed.    341. 

Where  plaintiff  is  described  throughout 
the  record  as  "a  citizen  of  London,  Eng- 
land," and  the  defendants  as  "corpora- 
tions of  the  state  of  Pennsylvania."  as  the 
jurisdiction  of  the  circuit  court  confessedly 
depended  on  the  alienage  of  plaintiff  in 
error,  and  that  fact  was  not  made  affirm- 
atively to  appear,  the  judgment  must  be 
reversed  at  the  costs  of  plaintiff  in  error, 
.-ind  the  cause  be  remanded  to  the  circuit 
court  with  leave  to  apply  for  amendment 


and  for  further  proceedings.  Rouse  v. 
Letcher,  156  U.  S.  47,  39  L.  Ed.  341,  citing 
Bingham  v.  Cabot,  3  Dall.  382,  1  L.  Ed. 
G46;    Mossman    v.    Higginson.    4    Dall.    12, 

1  L.    Ed.    720;      Capron   v.    Van    Noorden, 

2  Cranch  126.  2  L-  Ed.  229;  Jackson  v. 
Twentyman,  2  Pet.  136,  7  L.  Ed.  374; 
Conolly  V.  Taylor.  2  Pet.  556,  7  L.  Ed. 
518;  Brown  v.  Keene,  8  Pet.  112,  115,  8  L. 
Ed.  885;  Robertson  v.  Cease,  97  U.  S. 
646,  24  L.  Ed.  1057;  Bors  v.  Preston,  111 
U.   S.   252.  263,   28    L.    Ed.    419. 

Striking  out  and  changing  sides. — 
Where  the  suit  was  originall_v  instituted 
by  aliens  and  a  citizen  of  the  United 
States,  as  complainants,  against  the  de- 
fendants, citizens  of  the  United  States; 
in  the  progress  of  the  cause,  and  before 
the  final  hearing,  the  name  of  the  citizen 
of  the  United  States,  who  was  one  of  the 
plaintiffs,  was  stricken  out,  and  he  was 
made  a  defendant.  Held,  the  substantial 
parties  plaintiffs,  those  for  whose  bene- 
fit the  decree  is  sought,  are  aliens,  and 
the  court  has  original  jurisdiction  be- 
tween them  and  all  the  defendants;  but 
they  prevented  the  exercise  of  this  juris- 
diction, by  uniting  with  themselves  a  per- 
son between  whom  and  one  of  the  defend- 
ants the  court  could  not  take  jurisdiction; 
strike  out  his  name  as  a  complainant,  and 
the  impediment  is  removed  to  the  ex- 
ercise of  that  original  jurisdiction  which 
the  court  possessed  between  the  alien 
parties,  and  all  the  citizen  defendants; 
there  is  no  objection,  founded  on  conven- 
ience or  law,  to  this  course.  Conolly  v. 
Taylor.  2   Pet.   .^oG,   7   L.   Ed.   .".IS. 

98.  General  issue  admits  capacity  to  sue. 
— Propagation  Society  v.  Pawlet,  4  Pet. 
480.   7    L.    Ed.    927. 

In  ejectment  to  recover  a  lot  of  land, 
being  the  first  division  lot  laid  out  to  the 
right  of  the  society  in  the  town  of  Paw- 
let, the  plaintiffs  were  described  in  the 
writ  as  "The  Society  for  the  Propagation 
of  the  Gospel  in  foreign  parts,  a  corpo- 
ration duly  established  in  England,  within 
the  dominions  of  the  king  of  the  United 
Kingdom  of  Great  Britain  and  Ireland, 
the  members  of  which  society  are  aliens, 
and  subjects  of  the  said  king;"  the  defend- 
ants pleaded  the  general  issue  of  not 
guilty.     The  general  issue  admits  the  com- 


.-illEXS. 


243 


good,  must  allege  a  state  of  facts  that  will  debar  plaintiff  as  an  alien  from  suing 
in  the  action.-'^  And  alienage  as  incapacitating  to  take  property,  cannot  be  availed 
of  for  the  first   time  in  the  appellate  court,  though  disclosed  by  the  record. ^ 

C.  Replication. — Where  alienage  as  a  disqualification  to  acquire  property 
is  truthfully  pleaded,  particular  circumstances  avoiding  it  must  be  set  up  by 
S{>ecial  replication. ^ 

D.  Evidence.— See  ante.  "What  Determines  Relation."  II. 

1.  Presumptions  and  Burden  of  Proof.— See  ante,  "Definition  and  Status," 
I :  "Burden  of  Proof  and  Presumptions."  II.  D.  4. 

a.  Inferences  and  Presumptions. — Alienage  cannot  be  inferred,  argumenta- 
tively.  from  the  single  circumstance  that  such  person  holds  and  exercises  the  of- 
fice of  consul  in  a  foreign  government.-     But  in  the  absence  of  proof  that  an  alien 


petency  of  the  plaintiffs  to  sue.  in  the 
corporate  capacity  in  which  they  have 
sued.  Propagation  Society  z\  Pawlet,  4 
Pet.    480,    7    L.    Ed.    927. 

If  the  defendants  meant  to  insist  on 
the  want  of  a  corporate  capacity  in  the 
plaintiff,  an  English  corporation,  to  sue, 
it  should  have  been  insisted  upon  by  a 
special  plea  in  abatement  or  bar;  pleading 
to  the  merits  has  been  held  by  this  court 
to  be  an  admission  of  the  capacity  of  the 
plaintiffs  to  sue;  the  general  issue  ad- 
mits, not  only  the  competency  of  the 
plaintiffs  to  sue.  but  to  sue  in  the  partic- 
ular action  wliich  tliey  bring.  Propaga- 
tion Society  r.  Pawlet.  4  Pet.  4S0,  7  L.  Ed. 
■927. 

99.  Must  show  incapacity  to  sue. — 
Christy  r.  Scott.  14  How.  282.  294,  14 
L.  Ed.  422;  Dawson  c\  Godfrev.  4  Cranch 
321,   2    L.    Ed.    634. 

A  plea  to  an  action  of  ejectment  brought 
in  the  United  States  district  court  for 
Texas,  alleging,  among  other  things,  that 
plaintiff,  at  the  time  of  the  acquisition  of 
his  title,  was  not  and  never  had  been  a 
citizen  of  Texas  or  Mexico,  but  was  a  citi- 
zen of  the  United  States,  and  such  acquisi- 
tion was  before  the  annexation  of  Texas 
to  the  United  States,  if  intended  as  a 
plea  to  the  action  of  the  alienage  of  the 
plaintiff,  is  manifestly  bad,  for  the  plain- 
tiff, as  a  citizen  of  the  United  States  is 
capable  of  maintaining  an  action  to  re- 
cover lands  in  Texas,  to  which  he  has 
title.  Christy  r.  Scott.  14  How.  282.  294. 
14   L.    Ed.   422. 

Overruling  plea — Waiver  of  objection 
thereto. — Where  a  plea  to  the  jurisdiction 
in  a  suit  by  plaintiffs  alleging  alienage,  is 
overruled,  presumably  as  being  untrue. 
snd  error  in  so  doing  is  not  urged  in  the 
argument  of  the  writ  of  error,  it  is  con- 
■^idered  as  waived.  Weems  z\  George,  13 
How.  190,  14  L.  Ed.  108. 

1.  Time  for  pleading  alienage  as  inca- 
pacity to  take  property. — The  alienage  of 
a  devisee,  a.--  making  void  the  devise, 
cannrit  be  availed  of  by  him  for  the  first 
time  in  the  supreme  court  on  a  writ  of  er- 
ror to  a  circuit  judgment  on  a  special 
case,  even  though  the  record  discloses 
the  fact  of  alienage.  Scholev  f.  Rew,  23 
Wall.  331,  350,  23   L.   Ed.  99.' 


Where,  beyond  what  may  be  inferred 
from  the  finding  of  the  court  that  th« 
plaintiff  is  an  alien,  it  does  not  appear 
that  the  defense  of  alienage  was  set  up 
in  the  court  below,  nor  does  the  assign- 
ment of  errors  contain  any  specification 
of  such  a  question,  except  that  the  plain- 
tiff is  not  liable  to  a  sucession  tax  and 
that  the  decision  of  the  court  below  that 
he  is  so  liable  is  erroneous,  such  an  as- 
signment is  not  a  compliance  with  the 
rule  upon  that  subject,  but  the  court  did 
not  rest  the  decision  upon  that  ground. 
Scholey  r.  Rew.  23  Wall.  331.  350,  23  L. 
Ed.   99. 

Alienage  pleadable  in  ejectment. — If 
the  demandant  in  ejectment  be  incapable 
of  taking  as  heir  by  descent,  although 
there  be  a  right,  that  may  be  shown  by 
the  tenant;  as.  if  he  be  an  alien,  because 
it  defeats  the  asserted  descent  of  the  ti- 
tle. Inglis  V.  Sailor's  Snug  Harbor.  3 
Pet.  99,  172.  7  L.  Ed.  617,  dissenting  opin- 
ion of  Story,  J. 

2.  Replication  of  matter  in  avoidance. — 
"Tf  an  action  be  commenced  in  England, 
by  an  ante-natus  of  America,  for  the  re- 
covery of  land,  the  plea  of  alien  born 
could  not  be  maintained,  because  incon- 
sistent with  the  fact;  nor  would  a  plea  of 
the  severance  of  these  states  avail  the  de- 
fendant, because  the  act  of  his  govern- 
ment, independent  of  any  crime  of  his 
own,  does  not  deprive  the  plaintiff  of  his 
civil  rights,  although  it  may  release  him 
from  the  obligation  of  allegiance.  But 
if  a  suit  of  the  same  kind  is  instituted  here, 
by  an  ante-natus  of  Great  Britain,  the 
plea  of  alien  born  could  be  maintained, 
for  the  plaintiff  never  owed  allegiance  to 
our  government.  To  avoid  it.  he  would 
be  put  to  a  special  replication,  by  which 
he  must  of  necessity  acknowledge  the 
truth  of  the  plea,  and  set  forth  circum- 
stances which  would  amount  to  a  recog- 
nition of  his  never  having  been  a  party  in 
our  social  compact."  Dawson  v.  Godfrey, 
4  Cranch  321.  2   L.   Ed.   634. 

3.  Not  inferred  from  holding  consulship. 
— Bors  V.  Preston,  111  U.  S.  252,  263.  28 
L.    Ed.   419. 

In  what  cases  citizenship  may  be  pre- 
sumed, so  as  to  confirm  a  title  to  land^. 
see  Blight  v.  Rochester,  7  Wheat.  535,  5 
L.   Ed.  516. 


244 


ALIENS. 


has  become  a  citizen  of  the  United  States,  his  original  status  is  presumed  to  con- 
tinue.-* And  an  essential  step  in  the  termination  of  such  incapacity  by  naturaliza- 
tion cannot  ordinarily  be  presumed  from  lapse  of  time,  where  it  should  appear 
of  record  but  does  not.^  And  aliens  are  presumed,  prima  facie,  to  be  residents 
abroad.*^ 

b.  Burden  of  Proof. — Where  the  common  law  deprives  an  alien  generally  of 
the  right  of  inheriting,  it  is  incumbent  upon  the  plaintiff  to  establish  some  excep- 
tion in  favor  of  his  case." 

2.  Competency. — In  an  action  by  alleged  citizens  of  the  United  States  against 
an  alien,  the  affidavit  of  a  plaintiff,  made  in  a  former  suit  alleging  alienage  as. 
ground  for  removal  of  the  cause,  is  competent  evidence. ^  But  a  passport,  gi-anted 
by  the  secretary  of  state  of  the  United  States,  is  incompetent  to  disprove  the  alien- 
age of  the  grantee.^ 

3.  Weight  and  Sufficiency. — A  mere  recital  in  a  deed,^"  or  evidence  of  con- 
versations and  admissions, 1^  have  been  held  insufffcient  evidence  of  alienage. 


4.  Presumption  of  continuance  of  status. 

— Hauenstein    v.    Lynham,    100    U.    S.    483, 
25    L.    Ed.    628. 

5.  Presumption  of  essential  step  in  nat- 
uralization.— Blight  V.  Rochester,  7  Wheat. 
53. -S,    .546,    5    L.    Ed.    516. 

The  alienage  being  fully  proved,  and 
the  laws  of  Virginia  requiring,  as  indis- 
pensable to  his  citizenship,  that  he  should 
take  the  oath  of  fidelity  to  the  common- 
wealth, in  a  court  of  record,  of  which  the 
clerk  is  directed  to  grant  a  certificate, 
it  does  not  seem  that  this  fact,  which,  had 
it  taken  place,  must  appear  on  record, 
ought  to  be  presumed,  unless  there  were 
some  other  fact,  such  as  holding  an  office 
of  which  citizens  alone  were  capable,  or 
which  required  an  oath  of  fidelity,  from 
which  it  might  be  inferred.  In  favor  of 
long  possession,  in  favor  of  strong  ap- 
parent equity,  much  may  be  presumed; 
but  in  a  case  where  the  presumption 
would  defeat  possession,  where  the  equity 
is  doubtful,  where  the  parties  rely  upon 
strict  law,  coiirts  will  be  cautious  how 
they  lean  in  favor  of  presuming  that  which 
does  not  appear,  and  which  might  be 
shown  by  a  record.  Blight  2'.  Rochester. 
7  Wheat.   535,  546,  .■)   L.  Ed.   516. 

6.  Inference  of  residence  abroad. — 
Propagation  Societv  v.  Pawlet.  4  Pet.  480, 
7  L.  Ed.  927. 

.A.nd  where  the  plaintiffs  are  a  foreign 
corporation,  the  members  of  which  are 
3\'erred  to  be  aliens,  and  British  subjects, 
the  natural  presumption  is.  that  they  are 
residents  abroad.  Propagation  Society  v. 
Pawlet,  4  Pet.   480,  7   E.   Ed.  927. 

7.  Burden  on  party  alleging  exception 
to  rule  against  alien  inheriting. — Dawson 
V.  Godfrey,  4  Cranch  321,  323.  2  L.  Ed. 
634. 

S.  Affidavit  of  alienage  in  former  suit. — 
The  defendant  in  the  circuit  court  offered 
in  evidence  the  record,  duly  certified,  of 
the  district  court  of  the  United  States  for 
the  district  of  Louisiana,  containing  the 
proceedings  in  a  suit  which  had  been 
orijinally  instituted  against  D'.\rbel,  in  a 
State   court   of   Louisiana,  and   on   his   affi- 


davit that  he  was  an  alien,  and  a  subject 
of  the  king  of  Spain,  had  been  removed 
for  trial  to  the  district  court,  under  the 
authority  of  the  act  of  congress  author- 
izing such  a  removal  of  a  suit  against  an 
alien  into  a  court  of  the  United  States;  the 
record  was  introduced,  as  containing  a 
copy  of  the  affidavit  of  D'Arbel  in  the 
state  court,  upon  which  the  case  was  re- 
moved. Held,  that  this  was  legal  evi- 
dence. Urtetiqui  v.  D'Arbel,  9  Pet.  692, 
9  L.   Ed.  276. 

9.  Passport  incompetent  to  prove  citi- 
zenship.— The  plaintiffs  instituted  a  suit 
in  the  circuit  court  of  the  United  States 
for  the  district  of  Maryland,  stating  them- 
selves to  be  citizens  of  the  state  of  Mary- 
land, and  that  the  defendant  was  an  alien,, 
and  a  subject  of  the  king  of  Spain;  the 
defendant  pleaded  in  abatement  that  one- 
of  the  plaintiffs,  Domingo  D'.\rbel,  was 
not  a  citizen  of  Maryland,  nor  any  of  the 
United  States,  but  was  an  alien,  and  a 
subject  of  the  king  of  Spain;  upon  the 
trial  of  the  issue  joined  on  this  plea,  the 
plaintiffs  produced  and  gave  in  evidence^ 
under  the  decision  of  the  circuit  court, 
a  passport  granted  by  the  secretary  of 
state  of  the  United  States,  stating  D'Arbel 
to  be  a  citizen  of  the  United  States.  Held, 
that  the  passport  was  not  legal  evidence 
to  establish  the  fact  of  the  citizenship  of 
the  person  in  whose  favor  it  was  given. 
Urtetiqui  x\  D'Arbel,  9  Pet.  692,  9  L.  Ed. 
276. 

10.  Recital  in  deed. — A  mere  expression 
in  a  deed  that  a  party  was  a  citizen  of 
Mexico  did  not  establish  alienage,  as  the 
state  might  claim  his  citizenship,  notwith- 
standing. White  V.  Burnley,  20  How.  233,. 
250,  15  L.  Ed.  886;  Cook  v.  Burnley,  11 
Wall.    659,    670,   20   L.    Ed.   29. 

11.  Evidence  of  conversations  or  admis- 
sions.— Where  the  objection  to  a  grant  of 
land  in  California  was,  that  the  grantee 
was  a  foreigner,  and  th.er^efore  not  en- 
titled to  hold  land,  this  court  is  of  the 
opinion  that  the  testimony  of  conversa- 
tions or  admissions,  relied  upon  to  prove 
that    fact,    ought    not     to    be    received    to 


ALIENS.  2A5 

E.  Limitation  of  Actions.— See  ante,  "Treaties  with  Switzerland,"  III,  E, 
6,  d.     See  the  title  Limitations  of  Actions  and  Adverse  Possession. 

F.  Removal   of    Causes.— See   the   title   Removal   of   Causes. 

V.    Admission  or  Exclusion  of  Aliens  or  Immigrants. 

A.  Power  of  Congress  and  States— 1.  In  General.— Congress  "has  the 
absolute  power  to  exclude  aliens,  or  to  exclude  some  and  admit  others. 12  Con- 
gress may  exclude  aliens  of  a  particular  race  from  the  United  States ;  prescribe 
the  terms  and  conditions  upon  which  certain  classes  of  aliens  may  come  to  this 
country;  and  establish  regulations  for  sending  out  of  the  country  such  aliens  as 
come  in  here  in  violation  of  law.^-^ 

But  the  policy  of  this  country  from  the  beginning  has  been  to  encourage  the 
immigration  of  desirable  aliens  into  the  United  States. ^ 

2.  Mode  of  Exercise  and  Discretion. — In  the  United  States,  this  power  is 
vested  in  the  national  government,  to  which  the  constitution  has  committed  the 
fntire  control  of  international  relations,  in  peace  as  well  as  in  war.  It  belongs  to 
the  political  department  of  the  government,  and  may  be  exercised  either  through 
treaties  made  by  the  president  and  .senate,  or  through  statutes  enacted  by  con- 
gress. ^^     And  the  reasons  for  its  discrimination  are  not  open  to  challenge  in  the 

outweigh   the   prima   facie    (if   not   conclu-  States  v.   Sing  Tuck,   194  U.  S.   161,  48   L. 

sive)    presumptions    arising   from    the    ex-  Ed.   917. 

pediente    and    definitive    title.      Dalton    v.  It    is    an    accepted    maxim    of    interna- 

United  States,  22  How.  436,  16  L.  Ed.  395.  tional    law,    that    every    sovereign    nation 

12.  Lees  V.  United  States.  150  U.  S.  476,  has  the  power,  as  inherent  in  sovereignty, 
4S0,  37  L.  Ed.  1150;  The  Chinese  Exclu-  ^"f^  essential  to  self-preservation,  to  for- 
sion  Case,  130  U.  S.  581,  603.  32  L.  Ed.  bid  the  entrance  of  foreigners  within  its 
1068;  Fong  Yue  Ting  v.  United  States,  dominions,  or  to  admit  them  only  in  such 
149  U.  S.  698,  37  L.  Ed.  905;  Church  of  cases  and  upon  such  conditions  as  it 
the  Holy  Trinity  v.  United  States,  143  U.  "^^y  see  fit  to  prescribe.  Fong  Yue  Tingz;. 
S.  457,  36  L.  Ed.  226;  The  Japanese  Im-  United  States,  149  U.  S.  698.  705,  37  L. 
migrant  Case.  189  U.  S.  86,  97,  47  L.  Ed.  Ed.  905;  Wong  Wing  v.  United  States, 
721  163    U.   S.   228,   231,   41   L.    Ed.    140.      Nish- 

"The   power   of   the    government    to   ex-  j,"'"'"^,,?^^'"    "r    ^^^'^1'^'%^%^-    ^• 

clrde  foreigners  from  fhe  country,   when-  ^.^1'    654,    35    L.    Ed.    1146;      The    Chinese 

ever,  in  its  judgment,  the  public  interests  ^f^f'^''   ^^ase,   130  U^  S    581.  606    32   L. 

require   such  exclusion,  has   been  asserted  Jl^"    ^^'^i,  T^'r!,'   o^.^  o'''"'''   ^^V^"   ^• 

in    repeated    instances,    and    never    denied  f  ?;  ^^-  ,1?,  ^o  ^     T^^^^no'' w"^7k           t'' 

bv    the     executive     or    legislative     depart-  J.^o^:  525,  12  L.   Ed.  702;  Woodbury,  J., 

inents."     Fong  Yue  Ting  v.  United  States,  dissenting. 

149   U.    S.    60S.    707.    37    L.    Ed.    905;      The  The    section    which    restrained    congress 

Chinese    Exclusion    Case,    130    U.    S.    581,  f'"m  prohibiting  the  migration  or  impor- 

€00.   32   L.    Ed.    1068.  tation  of  such  persons  as  anj^  of  the  states 

Aui         u  r  r  ^  may  think  proper  to  admit,  until  the  year 

.Although     over    ahcns,    qua    anens,    no  ^„.-i     ,  i  i  •  i        i 

,,;       i         *-i       ■»       I  u  11        4-  J     <-  1808,    has    always    been    considered    as    an 

direct    authority    has     been     delegated    to  4^-         r  ^u  ^  i   4. 

,       .i"^  .-.    .■         ,    ^  1   ■  exception    trom    trie     power     to      regulate 

congress   bv   the   constitution,    to   regulate  ,  ,    -^  i  ^    ^   , 

t\    •        A     ■     ■  1      •  c^     A  commerce,    and    certainly    seems    to    class 

their    aamission    or    exclusion    as    iriends.  •        ^-  vi      •  / ^-  w 

D  r^  r.    TT  .-.on     -r,D     , r.    T  migratiou     With     importatiou.       Migration 

Passenger   Cases,    7    How.    283.    ."08.    12    L.  r  •   ,.   i      ^  i      ^ 

•cj    r-rvr,  /  1-         i'  •    "  r  T->      •   1    T  \  apiHics   as    appropriately    to   voluntarv,    as 

Ed.  702  (dissenting  opinion  of  Daniel.  J.    ;  •  .    .•         i  j.      •        i      ,.  "      i^ 

Fong  Yue  Ting  v.  United    States,   149    U  '"^P^rtation   does   to   im^oluntary.   arrivals. 

S.  698,  731,  762    37  L.   Ed.  905.  gibbons   v.   Ogden    9   Wheat.    1,  216    6    L. 

'         '  .  .  Ed.    23.      See    post.      Powers    of    States, 

13.  Although    a    state    of    peace    exists  V    A    7. 

with   such   foreign   country.      The   Chinese  ',,t-,'       r     .  t.     ■    ^     ^.-i    ^         ^■ 

V   ^}     ■        n  -lorv  TT    o    roi     ,-r^r    o,-,   T  Thc    first    rcstraiut     that    nations     re- 

hxclusion   Case.   130  U.    S.   581,   606,   32   L.  <-      ti  i  •     ,i         •    i  ^  ,.      k«  .-^ 

■VA      incc         XT-  u-  Ti>i  •  TT   ■,.  A  servc  to  themselves  is  the   right  to  be  in- 

Ed.     1068;       Nishimura     Ekiu    7'.    United  r  j      r  *i  ^  i-*     ^(  ^„^^^, 

<^i-^^         1 /o    TT     c     ^n      o-    T       T?  I     -,-,Aa  formcd  of  the   name  and   quality  of  every 

btates.    142    U.    S.    651,    35    L.     Ed.     1146  r        •  .i     ,  •         >>      ilr  t      tjo/ 

rr^        \7        -r-  TT   -4-  A    cZ  t.        -i.rv   TT  forcigucr   that   arrives.        Wayne,   J.,    Pas- 

l-ong  Yue    ling  v.   United   States,   149   U.  ^    ^  n-  tj  c^qo     ^m     <oq    io  r 

c    ana    o~  T     T? J    nnr       T  n/T  c"  scuger   Cases.  7   How.   283,   401,  423,  12   L,. 

b.  698,  3(  L.  Ed.  905;     Lem  Moon  Sing  v.  va    r.n.cy 

United    States.    158    U.    S.    538,    39    L.    Ed.  ^"-    '    - 

1.082;   Wong   Wing   v.    United    States,    163  1-     Passenger    Cases     7    How.    283,    401, 

U.  S.  228,   41    L.    Ed.   140;   Fok   Young   Yo  440,    461,    12    L.     Ed.    T02. 

V.  United   States.  185  U.   S.  296,  305,  46  L.  14.    Fong    Yue    Ting    v.    United    States, 

Ed.  917;    Chin   Bak   Kan  v.   United   States,  149    U.    S.    698.    705,    713.    37    L.    Ed.    905; 

186    U.    S.    193,    46    L.    Ed.    1121;    United  Nishimura   Ekiu  v.   United   States,   142   U. 


246 


ALIEXS. 


courts.  Given  the  power  to  exclude,  it  has  the  right  to  make  that  exclusion  ef- 
fective by  punishing  those  who  assist  in  introducing,  or  attempting  to  introduce, 
aliens  in  violation  of  its  prohibition. ^-^ 

3.  Inalienability. — This  power  of  exclusion  of  foreigners  is  inalienable,  by 
treaty  or  otherwise.^-'  And  the  acquisition  of  a  commercial  domicile  in  this  coun- 
try by  an  alien  is  no  bar  to  his  exclusion. ^"^ 


S.  651,  659,  35  L.  Ed.  1146.  See  dissenting 
opinion  of  Daniel.  J.,  in  Smith  v.  Turner, 
7   How.  283,  482,  513,  12  L.  Ed.  702. 

The  doctrine  is  firmly  established  that 
the  power  to  exclude  or  expel  aliens  is 
vested  in  the  political  departments  of  the 
government,  to  be  regulated  by  treaty 
or  by  act  of  congress  (Chew  Heong  v. 
United  States.  112  U.  S.  536,  63,  28  L. 
Ed.  770,  dissenting  opinion  of  Field,  J.), 
and  to  be  executed  by  the  executive  au- 
thority according  to  such  regulations,  ex- 
cept so  far  as  the  judicial  department  is 
authorized  by  treaty  or  by  statute,  or  is 
required  by  the  constitution,  to  intervene. 
Fong  Yue  Ting  v.  United  States.  149  U. 
S  698.  37  L.  Ed.  905;  Lem  Moon  Sing  v. 
United  States,  158  U.  S.  538,  39  L.  Ed. 
1082;  Li  Sing  v.  United  States,  180  U.  S. 
486,  45  L.  Ed.  634.  And  as  a  general 
proposition  this  must  be  true  of  the 
privilege  of  transit.  Fok  Young  Yo  v. 
United  States,  185  U.  S.  296,  302.  46  L. 
Ed.    917. 

15.  Interference  of  judiciary. — Lees  v. 
United  States,  150  U.  S.  476.  480,  37  L. 
Ed.     1150. 

The  question  whether,  and  upon  what 
eruditions,  these  aliens  shall  be  permitted 
to  remain  within  the  United  States,  be- 
ing one  to  be  determined  by  the  political 
departments  of  the  government,  the 
judicial  department  cannot  properly  ex- 
press an  opinion  upon  the  wisdom,  the 
policy,  or  the  justice  of  the  measures 
enacted  by  congress  in  the  exercise  of 
the  powers  confided  to  it  by  the  consti- 
tution over  this  subject.  Li  Sing  v. 
United  States,  180  U.  S.  486,  495,  45  L. 
Ed.  634;  Fong  Yue  Ting  v.  United  States. 
149  U.  S.  698,  731,  37  L.  Ed.  905.  See 
post,  "Delegation  to  Inspectors  or  Other 
Officers,    or    a    Department,"    V,    C,    1. 

Alien  immigration  act  of  1903. — 
Whether  rested  on  the  accepted  principle 
of  international  law  that  every  sovereign 
nation  has  the  power,  as  inherent  in 
sovereignty  and  essential  to  self-preserva- 
tion, to  forbid  the  entrance  of  foreigners 
within  its  dominions,  or  to  admit  them 
only  in  such  cases  and  upon  such  condi- 
tions as  it  may  seem  fit  to  prescribe;  or 
on  the  power  to  regulate  commerce  with 
foreign  nations,  which  includes  the  en- 
trance of  ships,  the  importation  of  goods, 
and  the  brino^ing  of  persons  into  the  ports 
of  the  United  States,  the  alien  immi- 
gration act  of  1903  is  not  open  to  con- 
stitutional objection.  Turner  z'.  Wil- 
liams, 194  U.  S.  279,  290,  48  L.  Ed.  979. 
See    post,    "Tn    O^^ncral."    V,    C,    1,    a. 

16.    Inalienability. — Fong    Yue    Ting    v. 


United  States.  149  U.  S.  698,  716,  720,  37 
L-  Ed.  905;  The  Chinese  Exclusion  Case, 
130  U.  S.  581.  32  L.   Ed.   1068. 

The  power  of  exclusion  of  foreigners 
being  an  incident  of  sovereignty  be- 
longing to  the  government  of  the 
United  States,  as  a  part  of  those  sov- 
ereign powers  delegated  by  the  con- 
stitution, the  right  to  its  exercise  at  any- 
time when,  in  the  judgment  of  the  gov- 
ernment, the  interests  of  the  country  re- 
quire it,  cannot  be  granted  away  or  re- 
strained on  behalf  of  anyone.  Whatever 
license,  therefore,  Chinese  laborers  may 
have  obtained,  previous  to  the  act  of 
October  1,  1888.  to  return  to  the  United 
States  after  their  departure,  is  held  at  the 
will  of  the  government,  revocable  at  ?iny 
time,  at  its  pleasure.  The  Chinese  Ex- 
clu.=ion  Case,  130  U.  S.  581,  609,  32  L.  Ed. 
lOCf^ 

I  f  the  government  of  the  country  of 
wl.'-li  the  foreigners  excluded  are  subjects 
is  dissatisfied  with  this  action  it  can  make 
complaint  to  the  executive  head  of  our 
government,  cr  resort  to  any  other 
measure  which,  in  its  judgment,  its  in- 
terest or  dignity  may  demand;  and  there 
lies  its  only  remedy.  The  Chinese  Ex- 
clusion Case,  130  U.  S.  581,  606,  32  L. 
Ed.    1068. 

The  existence  of  a  treaty  with  a 
foreign  power,  recognizing,  to  some  ex- 
tent, the  right  of  subjects  of  that  power 
to  enter  or  remain  in  the  United  States. 
will  not  prevent  the  legislative  power  from 
exercising  its  right  to  exclude  such  aliens 
absolutely,  and  such  laws  will,  to  that 
extent,  abrogate  the  treatv.  The  Chin'"-** 
Exclusion  Case.  130  U.  S.  581,  32  L.  Ed. 
1068;  United  States  v.  Cue  Lim,  176  U. 
S.  459,  464,  44  L.  Ed.  544.  See  Chew 
Heong  7'.  United  States,  112  U.  S.  536, 
555,    28    L.    Ed.    770. 

If  an  act,  construed  to  exclude  certain 
aliens  thus  construed,  takes  away  from 
the  alien  appellant  any  right  given  by 
previous  laws  or  treaties  to  re-enter  the 
country,  the  authority  of  congress  to  do 
even  that  cannot  be  questioned,  although 
it  is  the  duty  of  the  courts  not  to  con- 
strue an  act  of  congress  as  modifving  or 
annulling  a  treaty  made  with  another  na- 
tion, unless  its  words  dearly  and  plainly 
point  to  such  a  construction.  Lem 
Moon  Sins:  v.  United  States.  158  U.  S. 
538.  549,  39  L-  Ed.  1082;  Chew  Heong  7'- 
United  States,  112  U.  S.  536.  555,  28  L. 
Ed.    770. 

17.  Acquisition  of  commercial  domicile 
no  bar. — A  statute  passed  in  execution   of 


ALIENS. 


247- 


4.  Conditional  Admission. — The  United  States  admits  aliens  conditionally, 
and  preserves  that  condition  notwithstanding  preliminary  decision  in  their  favor 
by  a  board  which  it  provides.  The  authority  of  Congress  to  impose  such  condi- 
tions hardly  was  disputed  and  is  not  open  to  doubt.  ^^ 

5.  To  Punish  Criminally  Illegal  Entry  and  R^udlnce. — See  post,  "De- 
tention and  Expulsion  or  Deportation,"  V,  C,  3. 

It  would  be  plainly  competent  for  congress  to  declare  the  act  of  an  alien  in 
remaining  unlawfully  within  the  United  States  to  be  an  offense,  punishable  by 
tine  or  imprisonment,  if  such  offense  were  to  be  established  by  a  judicial  trial.'-' 
Or  it  may  punish  those  who  assist  in  introducing  or  attempting  to  introduce 
aliens  over  its  prohibition.-'^ 

6.  Construction  of  Acts  of  Congress. — Undoubtedly,  an  act  of  congress 
should  be  given  a  reasonable  interpretation,  with  a  view  to  effect  its  purpose  to 


that  power  is  no  less  applicable  to  an 
alien,  who  has  acquired  a  commercial 
domicil  within  the  United  States,  but  who, 
having  voluntarily  left  the  country,  al- 
tliough  for  a  temporary  purpose,  claims 
the  right  under  some  law  or  treaty  to 
re-enter  it.  The  words  of  the  act  of 
August  18,  1894,  are  broad  and  include 
"every  case"  of  an  alien,  at  least  every 
Chinese  alien,  who,  at  the  time  of  its 
passage,  is  out  of  this  country,  no  mat- 
ter for  what  reason,  and  seeks  to  come 
back.  He  is  none  the  less  an  alien  be- 
cause of  his  having  a  coininercial  domicil 
in  this  country.  Lem  Moon  Sing  v. 
United  States,  158  U.  S.  538,  547,  39  L. 
Ed.  1082;  The  Chinese  Exclusion  Case, 
130  U.  S.  581,  32  L.  Ed.  1068;  Nishimura 
Ekiu  V.  United  States.  142  U.  S.  651,  35 
L.  Ed.  1146;  Fong  Yue  Ting  v.  United 
StJites,  149  U.  S.  698.  37  L.  Ed.  905;  Wong 
Wing  V.  United  States,  163  U.  S.  228,  41 
L  Ed.  140;  United  States  v.  Wong  Kim 
Ark,   169  U.    S.    649,    699,    42   L.    Ed.   890. 

And  this  for  reasons  applicable  to  all 
aliens  alike,  and  inapplicable  to  citizens 
of  whatever  race  or  color,  without  in- 
fringing on  the  14th  constitutional 
amendment.  United  States  v.  Wong  Kim 
Ark,   169    U.    S.   649,   699.    42   L.    Ed.   890. 

18.  Pearson  v.  Williams,  202  U.  S.  281, 
284.  ,50  L.  Ed.  1029;  Lem  Moon  Sing  v. 
United  States.  158  U.  S.  538,  543.  39  L- 
Ed.  1082;  Nishimura  Ekiu  v.  United 
States,  142  U.  S.  651,  35  L.  Ed.  1146;  The 
Japanese  Immigrant  Case,  189  U.  S.  86, 
97,  99,  47  L.  Ed.  721;  Fong  Yue  Ting  v. 
United  States,  149  U.  S.  698,  37  L.  Ed. 
905;  Wong  Wing  v.  United  States.  163 
U.  S.  328.  41  L.  Ed.  140;  Fok  Young  Yo  z;. 
United  States,  185  U.  S.  296,  305,  46  L. 
Ed.    917. 

In  The  Japenese  Immigrant  Case.  189 
U.  S.  86,  99,  47  L.  Ed.  721.  it  was  said: 
"Taking  all  its  enactments  together,  it  is 
clear  that  concrress  did  not  intend  that 
the  mere  admission  of  an  alien,  or  his 
mere  entering  the  country,  should  place 
him  at  all  times  thereafter  entirely  beyond 
the  control  or  authority  of  tlie  executive 
officers  of  the  government.  On  the  con- 
trary,   if    the    secretary    of    the    treasury 


became  satisfied  that  the  immigrant  had 
been  allowed  to  land  contrary  to  the 
prohibition  of  that  law,  then  he  could  at 
any  time  within  a  year  after  the  land- 
ing, cause  the  immigrant  to  be  taken 
mto  custody  and  deported.  The  immi- 
grant must  be  taken  to  have  entered  sub- 
ject to  the  condition  that  he  might  be 
sent  out  of  the  country  by  order  of  the 
proper  executive  officer  if  within  a  year 
he  was  found  to  have  been  wrongfully 
admitted  into  or  had  illegally  entered  the 
United  States."  See  post,  "Detention  and 
Expulsion   or   Deportation,"   V,   C,  3. 

19.  Power  to  punish  criminally. — Wong 
Wing  V.  United  States,  163  U.  S.  228.  235 
41    L. 'Ed.    140. 

But  w^hen  congress  sees  fit  to  further 
promote  such  a  policy  by  subjecting  the 
persons  of  such  aliens  to  infamous  pun- 
ishment at  hard  labor,  or  by  confiscating 
their  property,  such  legislation,  to  be 
valid,  must  provide  for  a  judicial  trial  to 
establish  the  guilt  of  the  accused.  Wong 
Wing  V.  United  States,  163  U.  S.  228,  237, 
4]  L.  Ed.  140;  Li  Sing  v.  United  States. 
180  U.  S.  486.  495,  45  L.  Ed.  634.  See 
Turner  v.  Williams,  194  U.  S.  279  291 
48    L.    Ed.  979. 

"No  limits  can  be  put  by  the  courts 
upon  the  power  of  congress  to  protect, 
by  summary  methods,  the  country  from 
the  advent  of  aliens  whose  race  or  habits 
render  them  undesirable  as  citizens,  or 
to  expel  such  if  they  have  already  found 
their  way  into  our  land  and  unlawfully 
remain  therein.  But  to  declare  unlawful 
residence  within  the  country  to  be  an 
infamous  crime,  punishable  by  depriva- 
tion of  liberty  and  property,  would  be 
to  pass  out  of  the  sphere  of  constitu- 
tional legislation,  unless  provision  were 
made  that  the  fact  of  guilt  should  first 
be  established  by  a  judicial  trial."  Wong 
Wing  V.  United  States.  163  U.  S.  228,  237, 
41  L.  Ed.  140.  See  Turner  v.  Williams. 
194  U.  S.   279,  291,   48  L.   Ed.   979. 

20.  Lees  v.  United  States,  150  U.  S. 
476,  480.  37  L.  Ed.  1150.  See  post,  "De- 
tention and  ExDulsion  or  Deportation." 
V,  C,  3;  "Liability  of  Persons  Bringing 
in  Immigrants  Not  Permitted  to  Land," 
V,   D. 


248  A  LI  EX  S. 

prevent  the  introduction  into  this  country  of  classes  of  persons  excluded  by  im- 
migration lavvs.-^  But  it  should  not  be  construed  to  modify  or  annul  a  treaty 
made  with  another  nation,  unless  its  words  clearly  and  plainly  point  to  such  con- 
struction.-2     But  if  penal,  it  must  be  strictly  construed.--' 

7.  Powers  of  States. — Except  to  guard  its  citizens  against  diseases  and  pau- 
pers, the  municipal  power  of  a  state  cannot  prohibit  the  introduction  of  foreigners 
brought  into  this  country  under  the  authority  of  congress.  It  may  deny  them  a 
residence,  unless  they  shall  give  security  to  indemnify  the  public  should  they  be- 
come paupers.-^  The  states  have  also  reserved  the  police  right  to  turn  ofif  from 
their  territories  paupers,  vagabonds,  and  fugitives  from  justice.  And  the  state 
having  slavery  had  the  right  to  exclude  all  such  as  were,  from  a  common  ancestry 
and  country,  of  the  same  class  of  men.^^ 

B.  Classes  Excluded — 1.  Paupers,  Criminal  and  Diseased  Persons. — 
The  exclusion  of  paupers,  criminals  and  persons  afflicted  with  incurable  diseases, 
for  which  statutes  have  been  passed,  is  only  an  application  of  the  same  power  to 


21.  Reasonably  interpreted  to  effect 
purpose. — Hackfeld  Co.  v.  United  States, 
197    U.    S.    442.    452.    49    L.    Ed.    826. 

22.  Lem  Moon  Sing  7.'.  United  States, 
158    U.    S.    538,    549,    39    L.    Ed.    1082. 

23.  That  section  of  the  act  of  March 
3,  1891,  imposing  a  penalty  for  neglecting 
to  return  to  the  port  whence  they  came, 
immigrants  excluded  from  landing  and 
entry,  upon  the  person  bringing  them  to 
this  country,  is  a  highly  penal  statute  and 
to  be  strictly  construed.  Hackfeld  Co. 
V.  United  States,  197  U.  S.  442.  49  L.  Ed. 
826. 

24.  Power  of  state  to  exclude. — Passen- 
ger Cases  (per  McClean,  J.).  7  How.  283, 
406.    12    L.    Ed.    702. 

25.  Police  powers. — Passenger  Cases 
(per  Wayne,  J.).  7  How.  28.3,  406,  410.  424. 
12  L.    Ed.  702. 

By  the  police  power  in  the  states  they 
have  reserved  the  right  to  be  informed 
of  the  name  and  quality  of  every 
foreigner  that  arrives  in  the  state.  This, 
and  no  more  than  this,  was  Miln's  Case, 
in  11  Pet.  102,  9  L.  Ed.  648.  But  only 
after  they  have  been  landed,  as  is  there 
said.  Passenger  Cases,  7  How.  283,  410. 
424.   12   L.    Ed.    702,   per   Wayne.  J. 

The  case  of  the  New  York  v.  Miln.  11 
Pet.  102,  103.  9  L.  Ed.  648,  decided  no 
more  than  that  the  requirement  from  the 
master  of  a  vessel  of  a  catalogue  of  his 
passengers  landed  in  the  city,  rendered  to 
the  mayor  on  oath,  with  a  correct  de- 
scription of  their  names,  ages,  occupa- 
tions, places  of  birth,  and  of  last  legal 
settlement,  was  a  police  regulation  within 
the  power  of  the  state  to  enact,  and  not 
inconsistent  with  the  constitution  of  the 
United  States.  Henderson  t'.  Mew  York, 
92    U.    S.    2.59.    23    L.    Ed.    543. 

"The  states  may  meet  such  persons 
upon  their  arrival  in  port,  and  may  put 
them  under  all  proper  restr?--nts.  Tliey 
may  prevent  them  from  entering  tlieir 
territories,  may  carry  them  out  or  drive 
them  cflf."  Passenger  Cases.  7  How.  283. 
410,  426,  12  L.  Ed.  702,  per  Wayne.  J. 

And    see    Gibbons    v.    Ogden,    9    Wheat. 


1,  230,  where  Johnson.  J.,  giving  a  separate 
opinion,  said  that  §  9  of  the  federal  con- 
stitution, while  primarily  meant  to  apply 
to  the  importation  of  slaves,  was  yet  ob- 
viously calculated  to  comprise  persons  of 
all  descriptions,  and  recognized  in  con- 
gress a  power  to  prohibit,  where  the  states 
permit,  although  they  cannot  permit  where 
the   states   prohibit. 

But  see  quaere,  in  Henderson  v. 
New  York,  92  U.  S.  259,  275,  23  L. 
Ed.  543,  whether,  in  the  absence  of  action 
by  congress,  the  states  can,  or  how  far 
thej'  can.  by  appropriate  legislation,  pro- 
tect themselves  against  actual  paupers, 
vagrants,  criminals,  and  diseased  persons, 
arriving  in  their  territory  from  foreign 
countries. 

"This  court  does  not.  in  this  case,  un- 
dertake to  decide  whether  or  not  a  state 
may.  in  the  absence  of  all  legislation  by 
congress  on  the  same  subject,  pass  a 
statute  strictly  limited  to  defending  itself 
against  paupers,  convicted  criminals,  and 
others  of  that  class,  but  is  of  opinion  that 
to  congress  rightfuUj'  and  appropriately 
belongs  the  power  of  legislating  on  the 
whole  subiect."  Henderson  z'.  New  York, 
92  U.   8.  259,  260,  23   L.  Ed.  543. 

If  the  right  of  the  states  to  pass  stat- 
tites  to  protect  themselves  in  regard  to 
the  criminal,  the  pauper,  and  the  diseased 
foreigner,  landing  within  their  borders, 
exist  at  all,  it  's  limited  to  such  as  are 
absolutely  necessary  for  that  purpose;  and 
a  inere  police  regulation  cannot  extend 
so  far  as  to  prevent  or  obstruct  other 
classes  of  persons  from  the  right  to  hold 
personal  and  commercial  intercourse  with 
the  people  of  tlie  United  States.  Chy 
Lung  z'.  Freeman,  92  U.  S.  275.  23  L.  Ed. 
550. 

The  statute  of  California  (requiring  an 
onerous  bond  of  the  master  or  owner  for 
the  future  protection  of  the  state,  or  the 
payment  of  an  arbitrarj'-  sum,  for  each 
alien  passenger  of  certain  designated 
classes,  "hard  to  identify  as  such  before 
they  are  permitted  to  land),  in  this  respect, 
extends  far  beyond  the  necessity'  in  which 


ALIEXS. 


249 


particular  classes  of  persons,  whose  presence  is  deemed  injurious  or  a  source  of 
danger  to  the  couniry.  As  applied  to  them,  there  has  never  been  any  question 
as  to  the  power  to  exclude  them.  The  power  is  constantly  exercised;  its  exist- 
ence is  involved  in  the  right  of  self-preservation.-'^  And  the  alien,  diseased  child 
of  a  naturalized  parent  may  be  excluded. ^^^ 

2.    Anarchists. — The   1903   alien  immigration  act  is  not  unconstitutional   so 
far  as  it  provides  for  the  exclusion  of  an  alien  because  he  is  an  anarchist.^s 


the  right,  if  it  exists,  is  founded,  and  in- 
vades the  right  of  congress  to  regulate 
commerce  witii  foreign  nations,  and  is 
therefore  void.  Chv  Lung  v.  Freeman, 
92  U.  S.  275.  23  L.   Ed.  550. 

The  court  said:  "'We  are  not  called 
upon  by  this  statute  to  decide  for  or 
against  the  right  of  a  state,  in  the  absence 
of  legislation  by  congress,  to  protect  her- 
self by  necessary  and  proper  laws  against 
paupers  and  convicted  criminals  from 
abroad;  nor  to  laj-  down  the  dehnite 
limit  of  such  right,  if  it  exist.  Such  a 
right  can  only  arise  from  a  vital  necessity 
for  its  exercise,  and  cannot  be  carried  be- 
yond the  scope  of  that  necessity.''  Chy 
Lung  V.  Freeman.  92  U.  S.  275,  280,  23 
L.  Ed.  550.  See  ante.  "In  General."  V, 
A,  1;  "Mode  of  Exercise  and  Discretion," 
V,  A,  2;  post.  "Classes  Excluded,"  V.  B. 

26.  Exclusion  of  paupers,  criminals  and 
diseased. — The  Chinese  Exclusion  Case, 
130  U.  S.  581.  608.  32  L.  Ed.  1068; 
Zartarian  v.  Billings.  204  U.  S.  170.  27  L. 
Ed.    182. 

Paupers  or  persons  l.-kely  to  become 
public  charges. — A?  amcu'^  the  aliens 
forbidden  to  enter  the  United  States  are 
those  of  whatever  country-,  who  are 
'paupers  or  persons  likely  to  become  a 
public  charge,"'  aliens  of  that  class  have 
not  been  given  by  the  treat}-  with  Japan 
full  liberty  to  enter  or  reside  in  the  United 
States;  for  that  instrument  expressly  ex- 
cepts from  its  operation  any  ordinance 
or  regulation  relating  to  "police  and  pub- 
lic security."  A  statute  excluding  paupers 
or  persons  likely  to  become  a  public 
charge  is  manifestly'  one  of  police  and 
public  securitv.  The  Japanese  Immigrant 
Case,  1S9  U.  S.  86,  97.  47  L.  Ed.  721. 

Japanese. — Aside  from  that  specific  ex- 
ception, it  seems  that  the  provision  of  the 
treaty  with  Japan  that  the  citizens  or 
subjects  of  each  of  the  two  countries 
should  have  "full  liberty  to  enter,  travel 
or  reside  in  any  part  of  the  territories  of 
the  other  contracf'ng  party,"  would  have 
no  reference  to  tbpt  class,  in  either 
country,  who  from  their  ha1)its  or  con- 
dition are  ordinarily  or  jiroperh-  the  ob- 
ject of  police  regulations  designed  to 
protect  the  general  public  against  con- 
tact with  dangerous  or  improper  persons. 
The  Japanese  Immigrant  Case.  189  L'.  S. 
86.   97.   47   L.    Ed.   721. 

Porto  Ricans. — The  immigration  act  re- 
lates to  foreigner?  as  respe'^ts  this 
country,  to  persons  owing  allegiance  to 
a  foreign  government,  and  citizens  or  sub- 


jects thereof;  and  citizens  of  Porto  Rico, 
whose  perrrtanent  allegiance  is  due  to  the 
United  States;  who  live  in  the  peace  of 
the  dominion  of  the  United  States;  the 
organic  law  of  whose  domicil  was 
enacted  by  the  United  States,  and  is 
enforced  through  officials  sworn  to  sup- 
port the  constitution  of  the  United  States, 
are  not  "aliens,"  and  upon  their  arrival 
by  water  at  the  ports  of  our  mainland  are 
not  "alien  immigrants,"  within  the  intent 
and  meaning  of  the  act  of  1891,  and  the 
immigrants  cannot  be  excluded  as  per- 
sons likely  to  become  a  public  charge. 
Gonzales  v.  Williams,  192  U.  S.  1,  13.  48 
L.    Ed.    317. 

27.  Diseased  child  of  naturalized  parent. 
— Zatarian  v.  Billings.  204  U.  S.  170,  27 
L.    Ed.    182. 

Congress  has  not  said  that  an  alien 
child  who  has  never  dwelt  in  the  United 
States,  coming  to  join  a  naturalized 
parent,  may  land  when  afflicted  with  a 
dangerous  contagious  disease.  Therefore 
such  alien  child  is  rightfully  excluded,  and 
cannot  claim  entry  as  a  citizen  under  § 
2172.  Rev.  Stat.,  U.  S.  Zartarian  v.  Bil- 
lings.  204   U.    S.    170,    27    L.    Ed.    182. 

28.  Exclusion  of  Anarchists. — Turner  v. 
Williams,  194  U.  S.  279,  292,  48  L.  Ed. 
979. 

The  language  of  the  act  is  "anarchists, 
or  persons  who  believe  in  or  advocate  the 
overthrow  by  force  or  violence  of  the 
government  of  the  United  States  or  of 
all  government  or  of  all  forms  of  law,  or 
the  assassination  of  public  officials."  If 
this  should  be  construed  as  defining  the 
word  "anarchists"  by  the  words  which 
follow,  or  as  used  in  the  popular  sense 
above  given,  it  would  seem  that  when  an 
alien  arrives  in  this  country,  who  avows 
himself  to  be  an  anarchist,  without  more, 
he  accepts  the  definition.  And  it  is  un- 
deniable that  this  government  has  the 
power  to  exclude  an  alien  who  believes 
in  or  advocates  the  overthrow  of  the 
government  or  of  all  governments  by 
force  or  th»  assassination  of  officials. 
Turner  v.  Williams,  194  U.  S.  279.  293. 
48    L.    Ed.    979. 

Ev°n  if  the  alien,  though  he  did  not 
so  state  to  the  board,  only  res"?>rded  the 
absence  of  government  as  a  political  ideal, 
yet  when  he  sought  to  attain  it  by  advo- 
cating, not  simpl}'  for  the  benefit  of  work- 
ingmen.  who  are  justly  ent'tled  to  repel 
the  charge  of  desirinpr  the  destruction  of 
Ipw  pprl  ^rri-^r.  b"t  "at  any  rate,  as  an 
anarchist."   the    universal   strike   to   which 


250 


ALIENS. 


3.  Chinese.— See  the  title  Chinese  Exclusion  Acts. 

4.  Alien  Contract  Lahorers. — See  the  title  Contract  Labor  Law. 

C.  Procedure — 1.  Delegation  to  Inspectors  and  Other  Officers,  or  a 
Department. — See  ante,  'Tower  of  Congress  and  States,"  V,  A. 

a.  In  General. — Congress  may  commit  the  enforcement  of  such  provisions, 
conditions  and  regulations  exclusively  to  executive  and  subordinate  officers,  with- 
out judicial  intervention.-^ 

b.  Authority  and  Discretion. — The  determination  of  the  facts  on  which  citizen- 


he  referred,  and  by  discourses' on  what  he 
called  "The  legal  murder  of  1887,"  and 
by  addressing  mass  meetings  on  that  sub- 
ject in  association  with  Most,  the  in- 
ference was  not  unjustifiable  either  that 
he  contemplated  the  ultimate  realization 
of  his  ideal  by  the  use  of  force,  or  that 
his  speeches  were  incitements  to  that  end. 
Turner  v.  Williams,  194  U.  S.  279,  294,  48 
L.  Ed.  979. 

"If  the  word  'anarchists'  should  be  in- 
terpreted as  including  aliens  whose  an- 
archistic views  are  professed  as  those  of 
political  philosophers  innocent  of  evil  in- 
tent, it  would  follow  that  congress  was  o^ 
opinion  that  the  tendency  of  the  general 
exploitation  of  such  views  is  so  dangerous 
to  the  public  weal  that  aliens  who  hold 
and  advocate  them  would  be  undesirable 
additions  to  our  population,  whether  per- 
manently or  temporarily,  whether  many 
or  few,  and,  in  the  light  of  previous  de- 
cisions, the  act.  even  in  this  aspect, 
would  not  be  unconstitutional,  or  as  ap- 
plicable to  any  alien  who  is  opposed  to 
all  organized  government."  Turner  t'. 
Williams.  194  U.  S.  279.  294.  48  L.  Ed. 
979. 

As  to  the  alien  of  June  25,  1798, 
1  Stat.  570.  c.  58,  the  c(  ntroversy  over 
that  law  (and  the  sedition  law)  and  the 
opinions  expressed  at  the  time  against  its 
constitutionality  have  no  bearing  upon 
this  case,  which  involves  an  act  couched 
•11  entirelv  different  terms  and  embracing 
pn  entirelv  dififerent  purpose.  Turner  f. 
Williams,"  194  U.  S.  279,  294,  48  L.  Ed. 
979.  See  The  Chinese  Exclusion  Case, 
130   U.   S.   581,   610,   32    L.    Ed.    1068. 

29.  Nishimura  Ekiu  v.  United  States, 
142  U.  S.  651,  35  L.  Ed.  1146;  Fong  Yue 
Ting  V.  United  States,  149  U.  S.  698.  37 
L.  Ed.  905;  Lem  Moon  Sing  v.  United 
States.  158  U.  S.  538,  39  L.  Ed.  1082; 
Wong  Wing  v.  United  States,  163  U.  S. 
'^28,  41  L.  Ed.  140;  Fok  Young  Yo  v. 
United  States.  185  U.  S.  296,  305,  46  L. 
Ed.  917;  United  States  v.  Cue  Lim,  176 
U.  S.  459,  464,  44  L-  Ed.  544;  The  Jap- 
-nese  Immigrant  Case.  189  U.  S.  86,  97, 
47  L.  Ed.  721;  Turner  r.  Williams,  194 
U.  S.  279,  289,  48  L.  Ed.  979;  Li  Sing  v. 
United  States,  180  U.  S.  486.  495.  45  L. 
T^d.  634;  Chin  Bak  Kan  v.  United  States, 
186  U.  S.  193.  46  L.  Ed.  1121;  United 
States  7'.  Sing  Tuck.  194  U.  S.  161,  48  L. 
Ed.  917. 

The  supervi^ir>n  of  the  admission  of 
aliens   into   the   United   States  may  be   in- 


trusted by  congress  either  to  the  depart- 
ment of  state,  having  the  general  manage- 
ment of  foreign  relations,  or  to  the  de- 
partment of  the  treasury,  charged  with  the 
enforcement  of  the  laws  regulating  for- 
eign commerce;  and  congress  has  often 
passed  acts  forbidding  the  immigration 
of  particular  classes  of  foreigners,  and 
has  committed  the  execution  of  these  acts 
to  the  secretary  of  the  treasury,  to  col- 
lectors of  customs  and  to  inspectors  act- 
ing under  their  authority.  Nishimura 
Ekiu  v.  United  States,  142  U.  S.  651,  659, 
35  L.  Ed.  1146.  See  The  Japanese  Im- 
migrant Case,  189  U.  S.  86,  97,  47  L.  Ed. 
721. 

Whatever  may  be  the  ultimate  rights 
of  a  person  seeking  to  enter  the  country 
and  alleging  that  he  is  a  citizen,  it  is 
within  the  power  of  congress  to  provide 
at  least  for  a  preliminary  investigation  by 
an  inspector,  and  for  a  detention  of  the 
person  until  he  has  established  his  citi- 
zenship in  some  reasonable  way.  If  the 
person  satisfies  the  inspector,  he  is  al- 
lowed to  enter  the  country  without  further 
trial.  United  States  v.  Sing  Tuck,  194 
U.    S.    161,    168.    18    L.    Ed.    917. 

Act  of  1903. — It  is  provided  by  §  24  of 
the  act  of  1903  that  "every  alien  who  may 
not  appear  to  the  examining  immigrant 
inspector  at  the  port  oif  arrival  to  be 
clearly  and  beyond  a  doubt  entitled  to 
land  shall  be  detained  for  examination 
in  relation  thereto  by  a  board  of  special 
inquiry."  The  following  section,  §  25, 
directs  the  appointment  of  such  boards  as 
shall  be  necessary  for  the  prompt  deter- 
mination of  cases  of  aliens  detained,  to 
consist  of  three  members  to  be  selected 
from  the  immigrant  officials  in  the  service. 
"Such  boards  shall  have  authority  to  de- 
termine whether  an  alien  who  has  been 
duly  held  shall  be  allowed  to  land  or  be 
deported."  They  are  to  keep  records, 
"and  the  decision  of  any  two  members  of 
a  board  shall  prevail  and  be  final."  sub- 
ject to  appeal  by  the  alien  or  a  dissent- 
ing member  "through  the  commissioner 
of  immigration  at  the  port  of  arrival  and 
the  commissioner  general  of  immigration, 
to  the  secretary  of  the  treasury  (now  the 
secretary  of  commerce  and  labor,  act  of 
February  14,  1903,  ch.  552,  §§  4,  7.  10, 
31.'  Stat.  826,  828.  829).  whose  decision 
shall  then  be  final."  Pearson  t'.  Williams, 
202    U.    S.    281.   283,    50    L.    Ed.    1029. 

On   the   other   hand   it  is   provided   by  § 
21    "That    in    case    the    secretary    of    the 


ALIENS. 


251 


ship  and  the  authority  to  exclude  or  expel  aliens  depend,  may  be  intrusted  to 
a  United  States  commissioner.^''  But  the  fundamental  principles  of  due  process 
of  law  must  be  observed  by  administrative  officers  in  executing  such  lavvs.^i 
Such  delegation  necessarily  implies  the  power  to  take  and  weigh  evidence  on 
the  questions  arising  as  the  right  of  aliens  to  enter  or  remain.  But  the  exer- 
cise thereof  is  not  essential  to  the  jurisdiction  of  the  officer. -^2 


treasury  (now  secretary  of  commerce  and 
labor)  shall  be  satisfied  that  an  alien  has 
been  found  in  the  United  States  in  viola- 
tion of  this  act  he  shall  cause  such  alien, 
within  the  period  of  three  years  after 
landing  or  entry  therein,  to  be  taken 
into  custody  and  returned  to  the  country 
whence  he  came,"  with  details  as  to  the 
method.  Pearson  v.  Williams.  202  U.  S. 
281,  283,  50  L.  Ed.  1029.  See  ante,  "Mode 
of  Exercise  and   Discretion,"  V,  A,  2. 

The  act  of  1891  manifestly  contemplates 
and  intends  that  the  inspectors  of  immigra- 
tion shall  be  appointed  by  the  secretary 
of  the  treasury;  and  appointments  of  such 
ofificers  by  the  superintendent  of  immi- 
gration could  be  upheld  only  by  presum- 
ing them  to  be  made  with  the  concur- 
rence or  approval  of  the  secretary  of  the 
treasury,  his  official  head.  Nishimura 
Ekiu  V.  United  States,  142  U.  S.  651. 
663.  35   L.   Ed.    1146. 

30.  United  States  commissioner. — It  is 
competent  for  congress  to  empower  a 
United  States  commissioner  to  determine 
the  various  facts  on  which  citizenship  de- 
pends under  the  decision  in  United  States 
V.  Wong  Kim  Ark.  169  U.  S.  649,  42  L. 
Ed.  890,  and  the  same  reasoning  in  re- 
spect to  the  authority  to  exclude  applies 
to  the  authority  to  expel.  Chin  Bak  Kan 
V.  United  States.  186  U.  S.  193,  200,  46  L. 
Ed.  1121.  See  ante,  "Mode  of  Exercise 
and   Discretion,"   V.   A,   2. 

31.  Due  process  of  law. — Administra- 
tive officers,  when  executing  the  provi- 
sions of  a  statute  involving  the  liberty  of 
persons,  may  not  disregard  the  funda- 
mental principles  that  inhere  in  "due  proc- 
ess of  law"  as  understood  at  the  time  of 
the  adoption  of  the  constitution.  One  of 
these  principles  is  that  no  person  shall 
be  deprived  of  his  liberty  without  op- 
portunity, at  some  time,  to  be  heard,  be- 
fore such  officers,  in  respect  to  the  mat- 
ters upon  which  that  liberty  depends — not 
necessarily  an  opportunity  upon  a  reg- 
ular, set  occasion,  and  according  to  the 
forms  of  judicial  procedure,  but  one  that 
will  secure  the  prompt,  vigorous  action 
contemplated  by  congress,  and  at  the  same 
time  be  appropriate  to  the  nature  of  the 
case  upon  which  such  officers  are  required 
to  act.  The  Japanese  Immigrant  Case, 
189  U.  S.   86,    100.   47   L.    Ed.   721. 

It  is  not  competent  for  the  secretary 
of  the  treasury  or  any  executive  officer, 
at  any  time  within  the  year  limited  by 
the  statute,  arbitrarily  to  cause  an  alien, 
who  has  entered  the  country,  and  has  be- 
come  subject   in   all   respects   to   its  juris- 


diction, and  a  part  of  its  population,  al- 
though alleged  to  be  illegally  here,  to  be 
taken  into  custody  and  deported  without 
giving  him  all  opportunity  to  be  heard 
upon  the  question  involving  his  right  to 
be  and  remain  in  the  United  States.  No 
such  arbitrary  power  can  exist  where  the 
principles  involved  in  due  process  of  law 
are  recognized.  The  Japanese  Immigrant 
Case.  189  U.  S.  86.   101.  47  L.   Ed.  721. 

Notice  and  opportunity  to  be  heard  suf- 
ficient.— Where  the  alien  had  notice,  al- 
though not  a  formal  one.  of  the  investi- 
gation instituted  for  the  purpose  of  as- 
certaining whether  she  was  illegally  in 
this  country,  and  the  traverse  to  the  re- 
turn made  by  the  immigration  inspector 
shows  upon  its  face  that  she  was  before 
that  officer  pending  the  investigation  of 
her  right  to  be  in  the  United  States,  and 
made  answers  to  questions  propounded  to 
her,  objections  to  the  form  and  conduct 
of  the  investigation  which  were  not,  but 
could  have  been  presented  to  the  officer 
having  primary  control  of  such  a  case,  as 
well  as  upon  an  appeal  to  the  secretary  of 
the  treasury,  who  had  power  to  order 
another  investigation  if  that  course  was 
demanded  by  law  or  by  the  ends  of  jus- 
tice, cannot  justify  the  intervention  of  the 
courts.  Whether  further  investigation 
should  have  been  ordered  was  for  the  of- 
ficers, charged  with  the  execution  of  the 
statutes,  to  determine.  Their  action  in 
that  regard  is  not  subject  to  judicial  re- 
view. The  Japanese  Immigrant  Case, 
189  U.  S.  86,  101,  47  L.  Ed.  721. 

Judicial  trial  not  essential. — Assuming 
that  the  fifth  amendment  applies  to  one 
seeking  entrance  into  this  country  and 
that  to  deny  entrance  to  a  citizen  is  to 
deprive  him  of  liberty,  nevertheless  with 
regard  to  him  due  process  of  law  does 
not  require  a  judicial  trial.  That  is  the 
result  of  various  cases  and  the  almost 
necessary  result  of  the  power  of  congress 
to  pass  exclusion  laws.  That  the  de- 
cision may  be  entrusted  to  an  executive 
officer  and  that  his  decision  is  due  proc- 
ess of  law  was  affirmed  and  explained 
in  Nishimura  Ekiu  v.  United  States,  142 
U.  S.  651,  660,  35  L.  Ed.  1146,  and  in 
Fong  Yue  Ting  v.  United  States.  149  U. 
S.  698.  713,  37  L.  Ed.  905,  United  States 
V.  Ju  Toy,  198  U.  S.  253,  263,  49  L.  Ed. 
1040.  See  post,  "Due  Process  of  Law." 
V,    C,    5. 

32.  Taking  and  weighing  evidence. — 
Where  jurisdiction  is  given  to  the  officer 
over  the  right  of  the  alien  to  land,  nec- 
essarily  jurisdiction    is    given    to    pass    on 


252 


ALIENS. 


c.  Finalitx  of  Decision  and  Court  Reviezc. — See  ante,  "Power  of  Congress," 
A".  A;  "In  General."  \',  C,  1,  a.     See  post.  "Right  to  Habeas  Corpus,"  V,  C.  4. 

The  determination  of  such  executive  officers  may  be  made  final  by  Congress,^^ 
Although   congress   may.   if   it   sees   fit,   autliorize   the   courts   to   investigate   and 


the  evidence  presented  to  establish  that 
right.  He  may  determine  the  validity  of 
the  evidence,  or  receive  testimony  to  con- 
trovert it,  and  an  officer  or  tribunal,  in- 
vested with  jurisdiction  of  a  matter,  loses 
not  that  jurisdiction  by  not  giving  suffi- 
cient weight  to  evidence,  or  by  reject- 
ing proper  evidence,  or  by  admitting  that 
which  is  improper.  Lee  Lung  z'-  Patter- 
son, 186  U.  S.  168,  176.  46  L.  Ed.  1108. 
See  Turner  v.  Williams,  194  U.  S.  279, 
48  L.  Ed.  979. 

The  statute  (act  of  1891)  does  not  re- 
quire inspectors  to  take  any  testimony 
at  all,  and  allows  them  to  decide  on 
their  own  inspection  and  examination  the 
question  of  the  right  of  any  alien  im- 
migrant to  land.  The  provision  relied 
on  merely  empowers  inspectors  to  ad- 
minister oaths  and  to  take  and  consider 
testimony,  and  requires  only  testimony 
so  taken  to  be  entered  of  record.  Nishi- 
nmra  Ekiu  v.  United  States,  142  U.  S. 
651,    663,    35    L.    Ed.    1146. 

33.  Finality  of  decision. — Nishimura 
Ekiu  V.  United  States,  142  U.  S.  651,  35 
L.  Ed.  1146;  Lem  Moon  Sing  v.  United 
States,  158  U.  S.  538.  39  L.  Ed.  1082; 
Fok  Young  Yo  v.  United  States,  185  U. 
S.  296,  46  L.  Ed.  917;  Lee  Gon  Yung  v. 
United  States,  185  U.  S.  306,  46  L.  Ed. 
921;  Lee  Lung  v.  Patterson,  186  U.  S. 
168,  175,  46  L.  Ed.  1108;  The  Japanese 
Immigrant  Case.  189  U.  S.  86,  97.  47  L. 
Ed.   721. 

It  was  decided  in  Nishimura  Ekiu's 
Case.  142  U.  S.  651,  35  L.  Ed.  1146,  that 
congress  might  entrust  to  an  executive 
officer  the  final  determination  of  the  facts 
upon  which  an  alien's  right  to  land  in 
the  United  States  was  made  to  depend, 
''and  that  if  it  did  so.  his  order  was  due 
process  of  law,  and  no  other  tribunal, 
unless  expressly  authorized  by  law  to  do 
so.  was  at  liberty  to  re-examine  the  evi- 
dence on  which  he  acted,  or  to  controvert 
its  sufficiency."  This  doctrMT^  was  af- 
firmed in  Lem  Moon  Sing  v.  United  States, 
158  U.  S.  538,  39  L.  Ed.  .1082.  and  at  the 
present  term  in  Fok  Young  Yo  v.  United 
States.  185  U.  S.  296,  46  L.  Ed.  917,  and 
Lee  Gon  Yung  v.  United  States,  185  U. 
S.  306.  46  L.  Ed.  921.  Lee  Lung  v.  Pat- 
terson. 186  U.  S.  168,  175,  46  L.  Ed.  1108. 
The  Japanese  Immigrant  Case,  189  U. 
S.  86.  97.  47  L.  Fd.  721.  But  see  Chin 
Bak  Kan  v.  United  States,  186  U.  S.  193, 
200,  46  L.  Ed.   1121. 

And  in  the  case  of  Lem  Moon  Sing  v. 
United  States,  158  U.  S.  538,  547,  39  L. 
Ed.  1082,  it  was  held,  expounding  the 
act  of  August  18.  1894.  that  the  decision 
of  the  appropriate  immigration  or  custom 
officers,     excluding  an  alien  from  admission 


into  the  United  States  under  any  law  or 
treaty,  is  made  final  in  every  case,  unless, 
on  appeal  to  the  secretary  of  the  treasury, 
it  be  re\ersed.  But  it  is  obvious  that  it 
is  only  when  the  decision  of  the  customs 
officer  excludes  an  alien  from  admission 
that  his  decision  is  final.  When  his  de- 
cision admits  the  alien,  then  the  provi- 
sions of  the  act  of  July  5,  1884,  are  still 
applicable,  which  provide  that,  notwith- 
standing the  contents  of  the  certificate 
exhibited  to  the  collector  of  customs,  and 
their  prima  facie  eflfect,  "said  certificate 
may  be  controverted  and  the  facts  therein 
stated  disproved  by  the  United  States  au- 
thorities." Li  Sing  z'.  United  States,  180 
U.  S.  486.  490,  45  L-  Ed.  634;  United 
States  V.  Sing  Tuck,  194  U.  S.  161,  168, 
48  L.  Ed.  917;  Fok  Young  Yo  v.  United 
States.    185   U.   S.   296,  304,   46    L.    Ed.   917. 

The  decisions  of  the  inspection  officers 
adverse  to  the  right  to  land  are  made 
final  unless  an  appeal  is  taken  to  the  sup- 
perintendent  of  immigration,  whose  ac- 
tion is  subject  to  review  by  the  secretary 
of  the  treasury;  and  all  aliens  who  un- 
lawfully come  into  the  United  States  in 
violation  of  law  shall  be  immediately,  if 
practicable,  sent  back,  or  may  be  returned 
as  by  law  provided.  Gonzales  z'.  Wil- 
liams, 192  U.  S.  1,  13,  48  L.  Ed.  317; 
The  Japanese  Immigrant  Case,  189  U.  S. 
86,  102,  47  L.  Ed.  271.  See  post,  "Due 
Process    of    Law."    V,    C,    5. 

The  act  of  August  18,  1894,  purports  to 
make  the  decisions  of  the  department 
final,  whatever  the  ground  on  which  the 
riglit  to  enter  the  country  is  claimed — as 
well  when  it  is  rit'-^enship  a'?  when  it  is 
domicil  and  the  bel  nging  to  a  class  ex- 
cepted from  the  exclusion  acts.  United 
States  V.  Sing  Tuck,  194  U.  S.  161.  167, 
48  L.  E.  917;  Lem  Moon  Sing  v.  United 
States.  158  U.  S.  538,  546,  547.  39  L.  Ed. 
1082.  It  is  also  established  by  the  for- 
mer case  and  others  which  it  cites  that 
the  relevant  portion  of  the  act  of  August 
18,  1894,  ch.  301,  is  not  void  as  a  whole. 
The  statute  has  been  upheld  and  enforced. 
But  the  relevant  portion  being  a  single 
section,  accomplishing  all  its  results  by 
the  same  general  words,  must  be  valid  as 
to  all  that  it  einbraces,  or  altogether  void. 
An  exception  of  a  class  constitutionally 
exempted  cannot  be  read  into  those  gen- 
eral words  merely  for  the  purpose  of  sav- 
ing what  remains.  That  has  been  decided 
over  and  over  again.  It  necessarily  fol- 
lows that  when  such  words  are  sustained 
thev  are  sustained  to  their  full  extent. 
United  States  v.  Ju  Toy.  198  U.  S.  253, 
262.    49   L.    Ed.    1040. 

The  act  of  March  3,  1891,  §  551,  is  con- 
stitutional and  valid,  in   excluding  certain 


ALIENS. 


253 


ascertain  the  facts  on  which  the  right  to  land  depends,^*  it  is  not  within  the 
province  of  the  judiciary  to  order  that  foreigners  who  have  never  been  natural- 
ized, nor  acquired  any  domicil  or  residence  within  the  United  States,  nor  even 
been  admitted  into  the  country  pursuant  to  law,  shall  be  permitted  to  enter. 
in  opposition  to  the  constitutional  and  lawful  measures  of  the  legislative  and 
executive  branches  of  the  national  government.  As  to  such  persons,  the  de- 
cisions of  executive  or  administrative  officers,  acting  within  powers  expressly 
conferred  by  congress,  are  due  process  of  law,  whether  as  to  exclusion  or 
expulsion.*^ 

2.  Provisions  for  Registration  and  Identification. — Congress,  having  the 
right,  as  it  may  see  fit,  to  expel  aliens  of  a  particular  class,  or  to  permit  them 
to  remain,  has  undoubtedly^  the  right  to  provide  a  system  of  registration  and 
identification  of  the  members  of  that  class  within  the  country,  and  to  take  all 
proper  means  to  carry  out  the  system  which  it  provides.'"' 

3.  Detention  and  Expulsion  or  Deportation. — See  ante,  "Power  of  Con- 


classes  of  aliens  from  admission  to  the 
United  States.  The  inspector  of  immigra- 
tion was  duly  appointed;  his  decision 
against  the  petitioner's  right  to  land  in 
the  United  States  was  within  the  authority 
conferred  upon  him  by  that  act;  no  ap- 
peal having  been  taken  to  the  superin- 
tendent of  immigration,  that  decision  was 
final  and  conclusive;  the  petitioner  is  not 
unlawfully  restrained  of  her  liberty;  and 
the  order  of  the  circuit  court  is  affirmed. 
Nishimura  Ekiu  v.  United  States,  143  U. 
S.   651,    664,   35    L.    Ed.    1146. 

34.  Nishimura  Ekiu  v.  United  States, 
143  U.  S.  651.  660,  .35  L.  Ed.  1146;  Fong 
Yue  Ting  v.  United  States.  149  U.  S.  698, 
71.3,  37  L.  Ed.  905;  Lau  Ow  Bew  z-.  United 
States,  144  U.  S.  47,  36  L.  Ed.  340;  Lem 
Moon  Sing  v.  United  States,  158  U.  S. 
538,  548,  39  L.  Ed.  1082;  United  States  v. 
Jung  Ah  Lung,  124  U.  S.  621.  31  L.  Ed. 
591. 

35.  Province  of  judiciary. — Nishimura 
Ekru  V.  United  States,  143  U.  S.  651, 
660,  35  L.  Ed.  1146;  Fok  Young  Yo  v. 
United  States,  185  U.  S.  396,  305.  46  L. 
Ed.  917;  The  Japanese  Immigrant  Case, 
189  U.  S.  86.  98,  47  L.  Ed.  731. 

The  findings  of  the  commissioner  and 
in  the  district  court  in  cases  of  this  char- 
acter should  ordinarily  be  followed  in  the 
supreme  court,  -and  will  only  be  recon- 
sidered when  it  is  clear  that  an  incorrect 
conclusion  has  been  reached.  Chin  Bale 
Kan  V.  United  States,  186  U.  S.  193,  301, 
46  L.  Ed.  1131;  Tom  Hong  v.  United 
States,   193   U.    S.    517,   532,   48   L.   Ed.   772. 

The  same  reasoning  in  respect  to  the 
authority  to  exclude  applies  to  the  au- 
thority to  expel,  and  the  policy  of  the 
legislation  in  respect  to  exclusion  and  ex- 
pulsion is  opposed  to  numerous  appeals. 
Chin  Bak  Kan  ?'.  United  States,  186  U.  S. 
193,   201.    46    L.    Ed.    1121. 

Where  an  alien  was  arretted,  under  a 
warrant  issued  by  the  secretary  of  the  de- 
partment of  commerce  and  labor  of  the 
United  States,  and  was  taken  to  the  El- 
lis Island  immigration  station,  where  he 
was     examined     by     a     board     of     special 


inquiry,  duly  constituted  according  to  law, 
upon  his  right  to  remain  in  this  country, 
and  said  alien  was  by  said  board  found 
to  be  an  alien  anarchist,  and  was  by  unan- 
imous decision  of  said  board  ordered 
to  be  deported  to  the  country  from 
whence  he  came  as  a  person  within  the 
United  States  in  violation  of  law,  appealed 
from  the  said  decision  of  the  board  of 
special  inquiry  to  the  secretary  of  com- 
merce and  labor,  who  dismissed  the  ap- 
peal and  directed  that  said  alien  be  de- 
ported to  the  country  from  whence  he 
came  upon  the  ground  that  said  alien  is 
an  anarchist  and  a  person  who  disbe- 
lieves in  and  who  is  opposed  to  all  organ- 
ized government  and  was  found  to  be  in 
the  United  States  in  violation  of  law,  there 
being  evidence  before  them  to  support 
this  conclusion,  such  decision  and  order 
will  not  be  reviewed  on  the  facts.  Turner 
v.  Williams,  194  U.  S.  379,  281,  48  L.  Ed. 
979. 

Res  adjudicata. — The  board  of  special 
inquirv  provided  by  §  25  of  the  act  of 
1903  ('32  Stat.  1218.  1220)  for  determining 
whether  a  detained  alien  shall  be  allowed 
to  land  or  be  deported,  is  an  instrument 
of  the  executive  power,  not  a  court,  and 
its  decisions  are  those  of  the  executive 
department,  and  cannot  constitute  res  ad- 
judicata in  a  technical  sense.  Pearson  v. 
Williams.  202  U.  S.  281,  384,  50  L.  Ed. 
1029. 

The  finality  given  to  a  decision  of  this 
board  is  only  a  finality  consistent  with 
and  subject  to  §  21,  and  does  not  prevent 
the  secretary  of  commerce  and  labor  from 
directing  a  second  hearing  and  making  an 
order  of  deportation  under  §  21,  after  such 
board  has  decided  in  favor  of  the  alien. 
It  was  intended  to  be  final  on  the  courts. 
Here  the  personel  of  the  boards  was  the 
same  in  each  inquiry.  Pearson  v.  Wil- 
liams.   303   U.    S.    381.    .50    L.    Ed.    1039. 

36.  Fong  Yu  Ting  v.  United  States, 
149  U.  S.  698,  714,  37  L.  Ed.  905;  Wong 
Wing  V.  United  States,  163  U.  S.  338,  231, 
337,  41  L.  Ed.  140.  .\nd  see  the  title 
CHINESE   EXCLUSION    ACTS. 


J54 


ALIENS. 


f^ress  and  States,"  V.  A ;  "Delegation  to  Inspectors  and  Other  Officers  or  a  De- 
partment," V,  C,  1. 

The  rio-ht  of  a  nation  to  expel  or  deport  foreigners  who  have  not  been  natural- 
ized or  taken  any  steps  towards  becoming  citizens  of  the  country,  rests  upon 
the  same  grounds,  and  is  as  absolute  and  unqualified  as  the  right  to  prohibit 
and  prevent  their  entrance  into  the  country.^'^  The  power  of  congress  to  expel 
may  be  exercised  entirely  through  executive  officers ;  or  congress  may  call  in  the 
aid  of  the  judiciary  to  ascertain  any  contested  facts  on  which  an  alien's  right 
to  be  in  the  country  has  been  made  by  congress  to  depend.-^^  And  detention  or 
temporary   confinement   may  be  employed   as   a   necessary  means   to   the   end.^^ 


37.  Fong  Yue  Ting  v.  United  States, 
149  U.  S.  698,  707.  713,  37  L.  Ed.  905. 
See  United  States  v.  Wong  Kim  Ark, 
169  U.  S.  649,  726,  42  L.  Ed.  890,  dis- 
senting opinion;  Wong  Wing  v.  United 
States.  163  U.  S.  228.  231,  41  L.  Ed.  140; 
Li  Sing  V.  United  States,  180  U.  S.  486, 
495,   45    L.    Ed.    634. 

"Deportation"  is  the  removal  of  an 
alien  cut  of  the  country,  simply  because 
his  presence  is  deemed  inconsistent  with 
the  public  welfare,  and  without  any  pun- 
ishment being  imposed  or  contemplated, 
either  under  the  laws  of  the  country  out 
of  which  he  is  sent,  or  under  those  of 
the  country  to  which  he  is  taken.  It  dif- 
fers from  "transportation"  and  "extradi- 
tion," although  each  has  the  effect  of  re- 
moving a  person  from  the  country.  Fong 
Yue  Ting  v.  United  States,  149  U.  S.  698, 
709,    37    L.    Ed.   905. 

In  England,  the  only  question  that  has 
ever  been  made  in  regard  to  the  power 
to  expel  aliens  has  been  whether  it  could 
be  exercised  by  the  king  without  the  con- 
sent of  parliament.  It  was  formerly  ex- 
ercised by  the  king,  but  in  later  times  by 
parliament,  which  passed  several  acts  on 
the  subject  between  1793  and  1848.  Fong 
Yue  Ting  v.  United  States,  149  U.  S. 
698.    709,    37    L.    Ed.    905. 

See,  however,  the  dissenting  opinions 
of  Brewer  and  Field,  JJ.,  in  Fong  Yue 
Ting  V.  United  States,  149  U.  S.  698,  707, 
738.  746,  37  L.  Ed.  905,  saying:  "The 
power  to  remove  resident  aliens  is,  con- 
fessedly, not  expressed  (in  the  constitu- 
tion). Even  if  it  be  among  the  powers 
implied,  vet  still  it  can  be  exercised  only 
in  subordination  to  the  limitations  and  re- 
strictions imposed  by  the  constitution;" 
and:  "The  power  of  the  government  to 
exclude  foreigners  from  this  country — that 
is,  to  prevent  them  from  entering  it. 
whenever  the  public  interests  in  its  judg- 
ment require  such  exclusion — has  been  re- 
peatedly asserted  by  the  legislative  and 
executive  departments  of  our  government 
and  never  denied;  but  its  power  to  de- 
port from  the  country  persons  lawfully 
domiciled  therein  bv  its  consent,  and  en- 
gaged in  the  ordinary  pursuits  of  life, 
has  never  been  asserted  by  the  legislative 
or  executive  departments  except  for  crime, 
or  as  an  act  of  war  in  view  of  existing 
or  anticipated  hostilities,  unless  the  alien 
act  of  June  25,  1798,  can  be  considered  as 


recognizing  that  doctrine."  Field,  J.,  dis- 
senting. Fong  Yue  Ting  i'.  United  States, 
149    U.    S.    698,    746,    37    L.    Ed.    905. 

38.  Delegation  to  executive  officers. — 
Fong  Yue  Ting  z'.  United  States,  149  U. 
S.  698,  713.  37  L.  Ed.  905:  See  ante.  "Deb 
egation  to  Inspectors  or  Other  Officers 
or  a  Department,"  V,  C,  1. 

39.  Detention,  or  temporary  confine- 
ment, as  part  of  the  means  necessary  to 
give  effect  to  the  provisions  for  the  ex- 
clusion or  expulsion  of  aliens  would  be 
valid.  Proceedings  to  exclude  or  expel 
would  be  vain  if  those  accused  could  not 
be  held  in  custody  pending  the  inquiry  into 
their  true  character  I'l^d  while  arrange- 
ments were  being  made  for  their  depor- 
tation. Detention  is  a  usual  feature  of 
every  case  of  arrest  on  a  criminal  charge, 
even  when  an  innocent  person  is  wrong- 
fully accused;  but  it  is  not  imprisonment 
in  a  legal  sense.  Wong  Wing  v.  United 
States,  163  U.  S.  228.  235,  41  L.  Ed.  140; 
Turner  7'.  Williams.  194  U.  S.  279,  294,  48 
L.  Ed.  979.  United  States  v.  Sing  Tuck, 
194    U.    S.    161,    168,   48    L.    Ed.    917. 

Such  a  provision  has  no  reference  to  an 
establishment  of  religion  nor  does  it  pro- 
hibit the  free  exercise  thereof;  nor  abridge 
the  freedom  of  speech  or  the  press;  nor 
the  right  of  the  people  to  assemble  and 
petition  the  government  for  a  redress  of 
grievances.  It  is,  of  course,  true  that  if 
an  alien  is  not  permitted  to  enter  this 
country,  or,  having  entered  contrary  to 
law,  is  expelled,  he  is  in  fact  cut  off  from 
worshipping  or  speaking  or  publishing  or 
petitioning  in  the  country,  but  that  is 
merely  because  of  his  exclusion  there- 
from. He  does  not  become  one  of  the 
people  to  whom  these  things  are  secured 
by  our  constitution  by  an  attempt  to  en- 
ter forbidden  bv  law.  Turner  7'.  Williams, 
194  U.   S.   279,   292.   48    L.    Ed.   979. 

The  detention  during  the  time  necessary 
for  investigation  was  not  unlawful,  even 
if  all  of  these  parties  were  citizens  of  the 
United  States  and  were  not  attempting 
to  upset  the  inspection  machinery  by  a 
transparent  device.  Wong  Wing  v. 
United  States.  163  U.  S.  228,  235.  41  L. 
Ed.  140;  United  States  7'.  Sing  Tuck,  194 
U.  S.  161.  169,  48  L.  Ed.  917.  See  ante, 
"In  General."  V,  C.  1,  a. 

Hard  labor  clause  unconstitutional. — • 
But  so  much  of  the  act  of  1892  as  pro- 
vided   for     imprisonment     at    hard     labor 


ALIENS. 


255 


Auid  the  deportation  of  an  alien  who  is  found  to  be  here  in  violation  of  law 
is  not  a  deprivation  of  liberty  without  due  process  of  law,  and  the  provisions  of 
the  constitution  securing  the  right  of  trial  by  jury  have  no  application.-*" 

4.  Right  to  Habeas  Corpus.— See  ante,  "Delegation  to  Inspectors  or  Other 
Officers  or  a  Department,"  \',  C,  1  ;  "Right  to  Protection  of  Laws,"  III,  B. 

An  alien  immigrant,  prevented  from  landing  by  any  officer  claiming  authority 
to  do  so  under  an  act  of  congress,  and  thereby  restrained  of  his  liberty,  is  doubt- 
less entitled  to  a  writ  of  habeas  corpus  to  ascertain  whether  the  restraint  is  law- 
ful.*^    But  the  petitioner  mast  make  out  a  prima  facie  case  of  illegal  detention.*^ 

Of  Alien  in  Transit. — See  post,  "Privilege  of  Transit,"  V,  E. 


without  a  judicial  trial  was  held  to  be 
unconstitutional.  The  cases  of  Chae 
Chan  Ping,  Fong  Yue  Ting  and  Lem 
Moon  Sing  were  carefully  considered  and 
applied.  Turner  v.  Williams,  194  U.  S. 
'.^79.  291.  48  L.  Ed.  979.  See  ante,  "To 
Punish  Criminally  Illegal  Entry  and 
Residence."  V,  A,  5. 

■'In  the  case  of  Fong  Yue  Ting  v.  United 
States,  149  U.  S.  698,  730.  37  L.  Ed.  905; 
Mr.  Justice  Gray  used  the  following  sig- 
nificant language:  "The  proceeding  be- 
fore a  United  States  judge,  as  provided 
for  in  §  6  of  the  act  of  1892,  is  in  no 
proper  sense  a  trial  and  sentence  for  a 
crime  or  offense.  It  is  simply  the  as- 
certainment, by.  appropriate  and  lawful 
means,  of  the  fact  whether  the  conditions 
exist  upon  which  congress  has  enacted 
that  an  alien  of  this  class  may  remain 
within  the  country.  The  order  of  de- 
portation is  not  a  punishment  for  crime. 
It  is  not  a  banishment,  in  the  sense  in 
Tv'hich  that  word  is  often  applied  to  the 
expulsion  of  a  citizen  from  his  country 
by  way  of  punishment.  It  is  but  a  method 
of  enforcing  the  return  to  his  own 
country  of  an  alien  who  has  not  complied 
with  the  conditions  upon  the  performance 
of  which  the  government  of  the  nation, 
acting  within  its  constitutional  authority 
and  through  the  proper  departments,  has 
determined  that  his  continuing  to  reside 
here  shall  depend.  He  has  not,  there- 
fore, been  deprived  of  life,  liberty  or 
property,  without  due  process  of  law; 
and  the  provisions  of  the  constitution, 
securing  the  right  of  trial  by  jury,  and 
prohibiting  unreasonable  searches  and 
seizures,  and  cruel  and  unusual  punish- 
ments, have  no  application.'  "  Wong  Wing 
V.  United  States,  163  U.  S.  228,  236,  41 
L.  Ed.  140.  See,  also,  Li  Sing  v.  United 
States,   180   U.    S.   486,   494,   45    L.    Ed.   634. 

40.  The  Chinese  Exclusion  Case.  130 
U.  S.  581,  32  L.  Ed.  1068;  Nishiniura 
Ekiu  V.  United  States.  142  U.  S.  651,  35 
L.  Ed.  1146;  Fong  Yue  Ting  v.  United 
States,  149  U.  S.  698,  37  L.  Ed.  905;  Lem 
Moon  Sing  v.  United  States,  158  U.  S. 
538,  39  L.  Ed.  1082;  Wong  Wing  v. 
United  States,  163  U.  S.  228,  41  L.  Ed. 
140:  Fok  Young  Yo  v.  United  States.  185 
U.  S.  296.  46  L.^Ed.  917;  The  Japanese  Im- 
migrant Case.  189  U.  S.  86,  47  L.  Ed.  721; 
Chin    Bak   Kan    v.    United   States,    186    U. 


S.  193,  46  L.  Ed.  1121;  United  States  v. 
Sing  Tuck,  194  U.  S.  161.  48  L.  Ed.  917; 
Turner  v.  Williams.  194  U.  S.  279,  289,  48 
L.    Ed.    979. 

The  petitioner.  although  physically 
within  our  boundaries,  is  to  be  regarded 
as  if  he  had  been  stopped  at  the  limit  of 
our  jurisdiction  and  kept  there  while  his 
right  to  enter  was  under  debate.  United 
States  V.  Ju  Toy,  198  U.  S.  253,  263.  49 
L.  Ed.  1040;  The  Japanese  Immigrant 
Case,  189  U.  S.  86,  100,  47  L.  Ed.  721. 
See  ante,  "Conditional  Admission,"  V. 
A,    4. 

41.  Nishimura  Ekiu  v.  United  States, 
142  U.  S.  651,  660,  35  L.  Ed.  1146;  Chew 
Heong  V.  United  States,  112  U.  S.  536,  28 
L.  Ed.  770;  United  States  v.  Jung  Ah 
Lung.  124  U.  S.  mi.  31  L.  Ed.  591;  Wan 
Shing  V.  United  States,  140  U.  S.  424.  35 
L.  Ed.  503;  Ex  parte  Lau  Ow  Bew,  141 
U.  S.  583,  35  L.  Ed.  868.  See  the  title 
HABEAS   CORPUS. 

42.  Even  if  it  is  beyond  the  power  of 
congress  to  make  the  decision  of  the  de- 
partment final  upon  the  question  of  citi- 
zenship, a  petition  for  habeas  corpus 
ought  not  to  be  entertained,  unless  the 
court  is  satisfied  that  the  petitioner  can 
make  out  at  least  a  prima  facie  case.  A 
mere  allegation  of  citizenship  is  not 
enough.  But,  before  the  courts  can  be 
called  upon,  the  preliminary  sifting  proc- 
ess provided  by  the  statutes  must  be 
gone  through  with.  Whether,  after  that, 
a  further  trial  may  be  had,  not  decided. 
United  States  v.  Sing  Tuck,  194  U.  S. 
161.    168.    170,    48    L.    Ed.    917. 

The  decision  of  the  inspector  of  im- 
migration being  in  conformity  with  the 
act  of  1891,  there  can  be  no  doubt  that 
it  was  final  and  conclusive  against  the 
petitioner's  right  to  land  in  the  United 
States.  The  words  of  §  8  are  clear  to 
that  effect,  and  were  manifestly  intended 
to  prevent  the  question  of  an  alien  im- 
migrant's right  to  land,  when  once  de- 
cided adversely  by  an  inspector,  acting 
Vv-ithin  the  jurisdiction  conferred  upon  him, 
from  being  impeached  or  reviewed,  in 
the  courts  or  otherwise,  save  only  by  ap- 
peal to  the  inspector's  official  superiors, 
and  in  accordance  with  the  provisions  of 
the  act.  It  cannot  be  reviewed  on  habeas 
corpus.  Nishimura  Ekiu  v.  United  States, 
142   U.   S.    651,    663,   35   L.   Ed.   1146. 


256  ALIENS. 

5.  Due  Process  oE  Law. — While  it  may  well  be  doubted  whether  an  alien 
clandestinely  within  this  country  can  invoke  the  due  process  clause  of  the  con- 
stitution,*^  it  has  been  settled  that  the  power  to  exclude  or  expel  aliens  belongs 
to  the  political  department  of  the  government,  and  that  the  order  of  an  ex- 
ecutive officer,  invested  with  the  power  to  determine  finally  the  facts  upon  which 
an  alien's  right  to  enter  this  country,  or  remain  in  it.  depends,  is  due  process  of 
law,  and  no  other  tribunal,  unless  expressly  authorized  by  law  to  do  so,  is  at 
liberty  to  re-examine  the  evidence  on  which  he  acted,  or  to  controvert  its  suffi- 
ciency.'*^ 

D.  Liability  of  Person  Bringing  in  Immigrants  Not  Permitted  to  Land. 
• — The  statute  imposes  upon  one  who  has  brought  immigrants  into  the  United 
States  not  permitted  to  land  here,  the  duty  of  returning  them  to  the  place  from 
whence  they  came,  with  a  penalty  by  fine  in  case  the  duty  is  neglected.  By  this 
requirement,  it  was  not  intended  to  make  the  ship  owner  or  master  an  insurer 
of  the  absolute  return  of  the  immigrant,  at  all  hazards,  except  when  excused 
by  vis  major  or  inevitable  accident.  This  statute  imports  a  duty,  and  in  the 
absence  of  a  requirement  that  it  shall  be  performed  at  all  hazards,  no  more  ought 
to  be  required  than  a  faithful  and  careful  effort  to  carry  out  the  duty  imposed.'*-'* 

E.  Privilege  of  Transit. — The  privilege  of  transit,  although  it  is  one  that 
should  not  be  withheld  without  good  cause,  is  nevertheless  conceded  only  on 
such  terms  as  the  particular  government  prescribes  in  view  of  the  well-being 
of  its  own  people.  If,  then,  these  regulations  have  the  force  of  law,  they  bind 
the  courts,  and  should  not  be  interfered  with  by  habeas  corpus  proceedings.*^ 

F.  Chinese  Exclusion  Acts. — See  the  title  Chinese  Exclusion  Acts. 

G.  Alien  Contract  Labor  Laws. — See  the  tide  Contract  Labor  Law. 

H.  Head  Money  Laws  and  Taxes  on  Immigration. — See  the  titles  Com- 
merce ;  Taxation.     Recovery  of  same  after  payment,  see  the  title  Assumpsit. 

ALIMONY.— See  the  title  Divorce. 

ALL. — All  is  a  word  of  most  comprehensive  meaning,'   but  may  be  given  a 

43.      Due      process       of      law. — Qujere,  See    ante.    "To    Punish    Criminally    Illegal 

whether  an  alien  can  rightfully  invoke  the  Entrj'   and    Residence."   V,   A,   5. 
due    process    clause    of    the    constitution,  46.     Privilege  of  transit  and  regulation 

who     has    entered    the     country    clandes-  thereof.— Fok  Young  Yo  v.  United  States, 

tinely,    and    who    has    been    here    for    too  ,^5   u.   S.  296.   302.  46  L.  Ed.  917;   United 

brief  a  period  to  have  become,  in  any  real  States   v.   Ju   Toy,    198   U.    S.   253.   261,   49 

sense,    a    part    of    our    populatioii^   before  l     Ed.     1040;    The    Japanese     Immigrant 

his  right  to  remain  is  disputed.     The  Jap-  q^^^^  jgg  u    g    gg,  97.  47  l.  gd.  721. 
anese   Immigrant   Case,   189  U.   S.   86,  100,  ^  ■        1         <_•  1  1        j     ^u 

47   L    Ed    721  Congressional     action     has     placed     the 

44.'        The    Japanese    Immigrant    Case.  final,  determination    of    the    right    of    ad- 

189    U.    S.    86,    100,    47    L.    Ed.    721;    Fong  ""^sion    in    executive    officers     without   ju- 

Yue  Ting  v.  United  States.  149  U.  S.  698.  ^^^'^^   intervention,   and  this  has   been   for 

713,    37    L.    Ed.    905;    Nishimura    Ekiu    v.  ^=1"^   years   the    recognized   and   declared 

United    States,    142    U.    S.    651,    659.    35    L.  P^^'^^    °^  ,^^'1  country.      The    regulations 

Ed.     1146;     Lem     Moon     Sing    v.     United  ^o    prevent    abuse    of   privilege    of    transit 

States,   158  U.   S.   538,   547,  39" L.  Ed.  1082.  V^   ^^^"   ''"  r  ^''^   >"tended   to    efifectuate 

See  ante,. "Right   to  Protection  of  Laws,"  the     same     policy,     and     recourse     to     the 

III,    B;    "Authority    and    Discretion,"    V,  courts  by  habeas  corpus  to  determine  the 

C.   1,   b:   "Finality  of  Decision   and   Court  ?>^i^tence    of    sitch    abuse    appears    equally 

Review,"   V,   C.  1,  c;   "Detention   and   Ex-  '.""^"^''i^-    IT    ^^  ^cr  T.^  J°T  %y"Qi'7 

pulsion   or  Deportation,"  V,   C,   3.  ^^^^^^^   ^^^    U.   S.   296,   305,   46   L.    Ed.   917. 

45.      Liability    for    unlawfully    introduc-  I"  ^^^  Young  Yo  v.  United  States,  185 

ing      immigrant.        Hackfeld      v.      United  U-    S.  296,  304,  305.  46  L.   Ed.   917,  it  was 

States,   197  U.   S.   442,   450,   49   L.   Ed.   826.  held,    that    the    decision    of    the    collector 

The  true   rule  does   not' make  tlie   ship-  of  customs  on  the  right  of  transit  across 

owner    the    insurer    at    all    ha7ards    of    the  the    territory    of    the    United    States    was 

safe  return  of  the  immigrant,  but  does  re-  conclusive.     United    States   v.  Ju  Toy,  198 

quire   every  precaution   to  detain    him   and  U.   S.   253,  261,  49   L.   Ed.   1040.      See   ante, 

prevent      escape.        Hackfeld      v.      United  "Right    to    Habeas    Corpus,"   V,   C,    4. 

States,   197  U.   S.   442,   452,   49   L.   Ed.   826.  1.     All   is    a   word    of   most   comprehen- 


ALL. 


257 


more  limited  construction  to  effectuate  the  plain  intent. 2 


sive  meaning.  United  States  z'.  Powell, 
14    Wall.    49:5,    501,    20    L.    Ed.    729. 

All  my  estate. — A  devise  of  all  my  es- 
tate held  to  convey  the  fee.  Lambert  v. 
Paine.   3    Cranch    97,    138.    2    L.    Ed.    377. 

All  the  estate,  etc. — A  statute  used  the 
words  all  the  estate,  property',  moneys, 
stocks  and  eflfects.  To  these  words,  the 
court  said:  "The  description  of  property 
thus  made  liable  to  seizure  is  as  broad 
as  possible.  It  covers  the  estate  of  the 
owner — all  his  estate  or  ownership." 
Wallach  r.  Van  Riswick,  92  U.  S.  202. 
207.   23    L.    Ed.    473. 

Referring  to  the  language  of  the  bank- 
ruptcy act  of  1800,  it  is  said  in  Comegys 
V.  Vasse,  1  Pet.  193,  218,  7  L.  Ed.  108: 
"All  the  estate,  real  and  personal,  of 
every  nature  and  description,  in  law  or 
equity,  are  broad  enough  to  cover  every 
description  of  vested  right  and  interest 
attached  to  and  growing  out  of  property. 
Under  such  words  the  whole  property  of 
a  testator  would  pass  to  his  devisee. 
Whatever  the  administrator  would  take, 
in  case  of  intestacy,  would  seem  capable 
of  passing  by  such  words."  See.  also, 
Williams  v.  Heard,  140  U.  S.  529,  543,  35 
L.    Ed.    550. 

All  cases. — The  constitution  confers 
jurisdiction  upon  the  United  States 
courts  in  all  cases  in  law  and  equity.  All 
cases  apply  to  criminal  as  well  as  civil  cases. 
Tennessee  v.  Davis,  100  U.  S.  257.  270, 
25  L.  Ed.  648,  citing  Martin  v.  Hunter.  1 
Wheat.  304.  4  L.  Ed.  97;  Cohens  v.  Vir- 
ginia. 6  Wheat.  264.  5  L.  Ed.  257;  Nash- 
ville z'.  Cooper.  6  Wall.  247,  18  L.  Ed. 
851. 

In  Capital  Traction  Co.  c'.  Hof,  174  U. 
S.  1.  37.  43  L.  Ed.  873.  it  is  said:  "By  § 
7  of  the  act  of  1823.  the  right  of  appeal 
to  a  court  of  record  was  expressly  given 
'in  all  cases  where  the  debt  or  demand 
doth  exceed  the  sum  of  live  dollars,  and 
either  plaintiff  or  defendant  shall  think 
him  or  herself  aggrieved  by  the  judgment 
of  anv  justice  of  the  peace.'  The  words 
'in  all  cases.'  in  their  natural  meaning, 
include  cases  which  have  been  tried  by 
a  jury  before  the  justice  of  the  peace,  as 
well  as  those  tried  by  him  without  a 
jury;  and  we  perceive  no  necessity  and 
no  reason  for  restricting  their  applica- 
tion   to    the    latter    class    of    cases." 

All  children. — In  Minor  <•.  Happersett, 
21  Wall.  162,  168.  22  L.  Ed.  627.  it  is 
said:  "It  is  sufficient  for  everything  we 
have  now  to  consider  that  all  children 
born  of  citizen  parents  within  the  juris- 
diction are  themselves  citizens.  The 
words  'all  children'  are  certainly  as  com- 
prehensive when  used  in  this  connection, 
as  'all  persons.'  and  if  females  are  in- 
cluded in  the  last  they  must  be  in  the 
first.  That  they  are  included  in  the  last 
is   not   denied.      In   fact,    the    whole   argu- 

1  U  S  Enc— 17 


ment  of  the  plaintiffs  proceeds  upon  that 
idea." 

All  goods,  etc. — The  48th  section  of 
the  internal  revenue  act  of  June  30th, 
1864.  as  amended  by  the  act  of  1866,  which 
forfeits  'all  goods,  wares,  merchandise, 
articles  or  objects,'  if  found  in  posses- 
sion of  any  person  in  fraud  of  the  in- 
ternal revenue  laws,  etc.,  is  applicable  to 
distilled  spirits  notwithstanding  the  for- 
feiture of  spirits  is  provided  for  in  a  dis- 
tinct series  of  sections  relating  thereto 
in  the  same  law,  or  in  a  supplementary 
law.  The  court  said:  "The  act  of  1868, 
which  revises  the  entire  revenue  law  re- 
lating to  spirits  and  tobacco,  furnishes  a 
striking  instance  of  this.  After  provid- 
ing for  a  large  number  of  specific  forfei- 
tures, or  forfeitures  for  specific  breaches  of 
the  law,  it  follows  up  the  subject  by  sec- 
tions of  the  most  general  nature,  so  framed 
as  not  to  admit  of  any  possible  escape  or 
evasion,  and  which  necessarily  include 
most  of  the  cases  before  specifically  pro- 
vided for."  The  Distilled  Spirits,  11  Wall. 
;;56,   365,   20    L.    Ed.    167. 

2.  Limited  meaning. — In  United  States 
7'.  Howland.  4  Wheat.  108,  116,  4  L.  Ed. 
526,  it  is  said:  "It  is  contended  for  the 
United  States,  that  the  clause  which 
gives  the  power  to  sell,  by  using  the 
words  'all  the  property  of  them,  the  said 
Shoemaker  &  Travers.  and  Jacob  Shoe- 
maker;' indicate  clearly  that  this  deed 
does  convey  all  their  property.  But 
these  words  are  explained  and  limited  by 
those  which  follow,  so  as  to  show  that 
the  word  all  is  used  in  reference  to  the 
schedule,  and  means  all  the  property  in 
the    schedule." 

All  manner  of  business. — If  one  per- 
son constitutes  another  his  "general  and 
special  agent  to  do  and  transact  all  man- 
ner of  business."  this  does  not  neces- 
sarily authorize  the  agent  to  sell  stocks 
or  other  property  of  the  principal.  Hodge 
v.   Combs.  1  Black  192,  195,  17  L.   Ed.   157. 

All  creditors. — A  statute  provided  that 
conveyances  should  be  void  as  to  "all 
creditors  and  subsequent  purchasers" 
unless  the  same  were  acknowledged  and 
recorded.  In  construing  this  provision, 
the  court,  in  Pierce  v.  Turner,  5  Cranch 
154.  165,  3  L.  Ed.  64,  said:  "This  argu- 
ment proceeds  upon  the  ground,  that  by 
the  words  'all  creditors  and  subsequent 
purchasers,'  is  meant  as  well  as  the  cred- 
itors of  the  grantee  and  subsequent  pur- 
chasers from  him.  as  those  who  might 
derive  title  under  the  grantor.  Although 
the  words  are  certainly  broad  enough  to 
comprehend  the  whole,  it  is  believed  by 
a  majority  of  the  court,  that  the  con- 
struction should  be  such  as  to  limit  the 
application  of  them  to  the  creditors  of, 
and  subsequent  purchasers  from.  \he 
grantor."         See,      generally,      the      titles 


258 


ALLEGIANCE. 


ALLEGATA  AND  PROBATA.— See  the  title  Variance;. 

ALLEGIANCE. — By  allegiance  is  meant  the  obligation  of  fidelity  and  obe- 
dience which  the  individual  owes  to  the  government  under  which  he  lives,  or  to 
his  sovereign  in  return  for  the  protection  he  receives.     It  may  be  an  absolute  and 

FRAUDULENT    AND     VOLUNTARY 
CONVEYANCES;      RECORDING 

ACTS. 

All  the  goods. — In  American  Fur.  Co. 
V.  United  States,  2  Pet.  358.  367,  7  L.  Ed. 
450.  it  is  said:  "The  expression  'all  the 
goods  of  the  said  traders,'  in  the  second 
section  of  the  last  act,  although  general 
enough,  if  they  stood  alone,  unexplained 
by  the  context,  to  embrace  all  the  goods 
belonging  to  the  trader  wherever  they 
might  be  found;  are  clearly  restrained  by 
the  provision  which  immediately  pre- 
cedes them,  so  as  to  mean  those  goods 
only  which  might  be  found  in  company, 
though  not  in  contact  with,  the  inter- 
dicted   article." 

All  lands. — All  lands  confined  to  lands 
specifically  described,  see  Gibbs  v. 
Diekma.  131  U.  S.  186,  26  L.  Ed.  177, 
178. 

All  my  lands. — In  Lane  v.  Vick.  3  How. 
464.  473,  11  L.  Ed.  681,  it  is  said:  "The 
words  'all  .of  my  lands,'  unless  restricted 
by  words  with  which  they  stand  con- 
nected, or  by  some  other  part  of  the 
will,  cover  the  entire  real  estate  of  the 
testator.  But  these  words  are  restricted 
by  the  part  of  the  sentence  which  fol- 
lows them,  and  also  in  other  parts  of  the 
will."      See,    generally,    the    title    WILLS. 

All  other  property. — A  railroad  com- 
pany granted  a  mortgage  "on  the  tele- 
graph line  and  telegraph  oflfices  along  the 
line  of  said  road  belonging  to  said  com- 
pany; also  on  the  machine  shops  and  all 
other  property  in  the  .«tate  and  in  Geor- 
gia, Tennessee  and  Mississippi  belong- 
ing to  said  company;  also  on  all  coal 
mines  now  opened  or  hereafter  to  be 
opened  and  worked,  belonging  to  said 
company;  also  upon  all  iron  or  other 
mineral  lands,  and  all  iron  manufactur- 
ing establishments  now  in  operation  and 
hereafter  to  be  constructed."  It  was  held 
that  the  words  "all  other  property"  did 
not  cover  everything  in  the  four  states 
which  the  company  owned,  especially  all 
its  land,  but  were  to  be  confined  to  the 
property  of  the  company  about  which  a 
doubt  would  arise  whether  it  was  a  part 
of  those  telegraph  offices,  machine  shops, 
mines  and  manufacturing  establishments 
mentioned  in  the  mortgage.  Alabama  z'. 
Montague.  117  U.  S.  603.  29  L.  Ed.  1000. 
InPennock  v.  Coe,  23  How.  117,  126, 
16  L.  Ed.  436.  it  is  said:  "The  descrip- 
tion begins  by  conveying  'all  the  follow- 
ing present  and  future  acquired  property 
of  the  said  parties  of  the  first  part;'  and 
after  specifying  the  road  and  the  several 
parts  of  it,  together  with  the  rolling 
stock,  there  is  added,  'and  all  other  per- 
sonal property,  ri^ht  thereto,  and  in- 
terest   therein.'      This      clause,     probably 


from  the  connection  in  which  it  is  found, 
was  intended  to  refer  to  property  ap- 
purtenant to  the  road,  and  employed  in 
its  operation,  and  which  had  not  been 
enumerated;  and  if  so,  the  better  opinion, 
perhaps  is,  that  it  would  be  bound  by  the 
mortgage  even  as  against  judgment  cred- 
itors." 

All  debts. — A  debt  due  to  the  United 
States,  though  it  be  by  one  who  owes  it 
as  a  surety,  is  not  barred  by  a  release  in 
bankruptcy  from  all  debts,  etc.  United 
States  V.  Herron,  20  Wall.  251,  260,  22 
L.    Ed.   275. 

All  the  rest. — A  devise  of  all  the  rest 
of  testator's  land  and  tenements  has  been 
held  not  to  convey  the  fee.  Wright  v. 
Page.   10  Wheat.  204,  232,  6  L.   Ed.   303. 

All  faults. — In  Smith  v.  Richards,  13 
Pet.  26,  41,  10  L.  Ed.  42,  it  is  said:  '"The 
words,'  that  is.  with  all  faults,  as  they  lie, 
'are  very  large  to  exclude  the  buyer  from 
calling  upon  the  seller  for  any  defect  in 
the  things  sold;  but  if  the  seller  was 
guilty  of  any  positive  fraud  in  the  case, 
these  words  will  not  protect  him,' " 
quoting  Mansfield,  C.  J.,  in  Schneider  v. 
Heath.  Campbell  505.  See,  generally, 
the  titles   SALES:   WARRANTY. 

All  possible  dispatch. — In  Lowber  v. 
Bangs,  2  Wall.  728,  755,  17  L.  Ed.  768, 
it  is  said:  "None  will  pretend,  I  suppose, 
that  the  phrase  'with  all  possible  dis- 
patch' is  more  intensified  than  the  phrase 
'as  soon  as  possible,'  which  is  one  of 
daily    use." 

All    burlaps.— See    BURLAPS. 

All  the  coast. — In  Chouteau  v.  Molony, 
16  How.  203,  227,  14  L.  Ed.  905,  it  is  said: 
"The  words,  that  they  sell  and  abandon 
to  him  all  the  coast,  and  the  contents  of 
the  mine  discovered  by  the  wife  of 
Peosta,  are  the  only  words  from  which  it 
can  be  implied  that  they  were  selling 
land.  Admitting  that  they  do  so,  the 
words  'all  the  coast'  of  the  mine  Peosta 
cannot  be  enlarged  to  mean  more  than 
the  land  which  covered  its  ramifications 
and  the  land  contiguous  to  them,  which 
was  necessary  for  the  operations  of  the 
miners   and   for   their    support." 

Transposition  of  the  term. — In  Finlay 
V.  King,  3  Pet.  349,  382,  7  L.  Ed.  703.  it 
is  said:  "The  words  used  by  the  testator 
to  show  that  nothing  was  further  from 
his  inind  than  a  partial  intestacy.  He 
says,  he  has  thought  proper  to  make  his 
will.  'leaving  and  bequeathing  his 
worldly  estate  in  manner  following.' 
After  making  a  considerable  provision 
for  his  wife,  and  devisine  to  others,  dur- 
ing her  life,  he  gives  'all  his  real  estate 
at  her  death'  to  his  nephew,  on  condition, 
and  on  failure  to  perform  the  condition, 
gives   'the   said  estate'   over.     Being  about 


ALLOJl—ALLOll\lXCE. 


259 


permanent  obligation,  or  it  may  be  a  qualified  and  temporary  one.  Tbe  citizen 
or  subject  owes  an  absoluie  and  permanent  allegiance  to  bis  government  or  sov- 
ereign, or  at  least  until,  by  some  open  and  distinct  act,  he  renounces  it  and  be- 
comes a  citizen  or  subject  of  another  government  or  another  sovereign.  The 
alien,  w^hilst  domiciled  in  the  country,  owes  a  local  and  temporary  allegiance, 
which  continues  during  the  period  of  his  residence.^ 

ALLEYS.— See  the  titles  Dedication;  Deeds;  Municipal  Corporations; 
Partition;  Streets  and  Highways. 

ALLOCATUR.— See  the  title  Appeal  and  Error. 

ALLOT.— See  note  2. 

ALLOW— ALLOWANCE.— See  note  3.  As  to  allowance  to  widow  and  minor 
children,  see  the  title  Executors  and  Administrators. 


to  devise  all  his  estate  to  his  nephew,  and 
knowing  that  his  wife  and  others  would 
hold  a  large  part  of  it  for  her  life,  it  was 
obvious,  that  his  nephew  could  not  take 
«11,  till  her  death.  But  if  he  divised  the 
whole  estate,  that  which  could  not  be 
taken  by  the  wife,  or  by  others  for  her 
life,  would  pass  to  the  nephew,  if  a  clear 
intention  appears  in  the  whole  will,  to 
intercept  the  descent  to  the  heir;  al- 
though the  clause,  taken  literally,  would 
postpone  the  possession,  even  of  that  part 
in  which  the  wife  has  no  interest,  till  her 
death.  To  effect  this  intention,  the  court 
will  vary  the  strict  meaning  of  words, 
and  sometimes  transpose  them.  1  Call 
132.  The  word  'all'  may  be  transposed, 
so  that  the  clause  may  read,  'in  case  of 
liaving  no  children,  I  then  leave  my  real 
estate,  all,  at  the  death  of  my  wife,  to 
William    King.'    etc." 

1.  Allegiance. — Carlisle  v.  United 
States,  16  Wall.  147.  1.54,  21  L.  Ed.  426. 
See,  also,  Englis  v.  Sailors'  Snug  Har- 
bor, 3  Pet.  99.  15.5,  7  L.  Ed.  617.  And 
see  the  title  ALIENS,   ante,  p.   210. 

In  United  States  v.  Wong  Kim  .\rk, 
169  U.  S.  649,  6.59.  42  L.  Ed.  890,  it  is 
said:  "'Allegiance  is  nothing  more  than 
the  tie  or  duty  of  obedience  of  a  subject 
to  the  sovereign  under  whose  protection 
he  is;  and  allegiance  by  birth  is  that 
which  arises  from  being  born  within  the 
dominions  and  under  the  protection  of  a 
particular  sovereign.  Two  things  usually 
concur  to  create  citizenship:  First,  birth 
locally  within  the  dominions  of  the 
sovereign;  and.  secondly,  birth  within  the 
protection  and  obedience  or,  in  other 
words,  within  the  ligeance  of  the  sov- 
ereign. That  is.  the  party  must  be  born 
within  a  place  where  the  sovereign  is  at 
the  time  in  full  possession  and  exercise 
of  his  power,  and  the  party  must  also  at 
Ws  birth  derive  protection  from.  and 
-consequently  owe  obedience  or  allegiance 
to.    the    sovereign,    as    such,    de    facto." 

2.  Allot. — In  Worcester  v.  Georgia,  6 
Pet.    515,    582,    8    L,.    Ed.    482,    it    is    said: 


"The  language  used  in  treaties  with  the 
Indians  should  never  be  construed  to 
their  prejudice.  If  words  be  made  use 
of,  which  are  susceptible  of  a  more  ex- 
tended meaning  than  their  plain  import, 
as  connected  with  the  tenor  of  the  treaty, 
they  should  be  considered  as  used  only 
in  the  latter  sense.  To  contend,  that  the 
word  allotted  in  reference  to  the  land 
guarantied  to  the  Indians,  in  certain  trea- 
ties, in-dicates  a  favor  conferred,  rather 
than  a  right  acknowledged"  would,  it 
would  seem  to  me,  do  injustice  to  the 
understanding  of  the  parties."  See,  also, 
Minnesota  v.  Hitchcock,  185  U.  S.  373. 
396.   46    L.    Ed.    954. 

Allotted  and  marked  out. — In  Wor- 
cester c\  Georgia,  6  Pet.  515,  552,  8  L.  Ed. 
483,  it  is  said:  "Is  it  reasonable  to  sup- 
pose, that  the  Indians,  who  could  not 
write,  and  most  probably  could  not  read, 
who  certainly  were  not  critical  judges 
of  our  language,  should  distinguish  the 
word  allotted  from  the  words  'marked 
out?'" 

3.  Allow. — In  Brashier  v.  Gratz.  6 
Wheat.  528.  536,  5  L.  Ed.  322,  it  is  said: 
"The  parties  stipulate  that  for  every  acre 
which  the  survey  shall,  show  the  tract  to 
contain  less  than  302  acres,  Gratz  'shall 
pay  or  allow  to  Brashier  the  sum  of 
$22.50.  That  is,  shall  'pay  him,  if  the 
notes  shall  have  been  received,  shall 
'allow  to  him,  if  the  deficiency  shall  ap- 
pear  before   payment   of  the    notes.'' 

Allowance. — .\  soldier  by  desertion 
forfeited  his  pay  and  allowances  upon 
the  meaning  of  allowance  in  this  connec- 
tion: "The  bounty  which  the  petitioner 
clairned  was  included  in  the  allowances 
forfeited.  Under  the  term  allowances 
everything  was  embraced  which  could  be 
recovered  from  the  government  by  the 
soldier  in  consideration  of  his  enlistment 
and  services.  except  the  stipulated 
monthly  compensation  designated  as 
pay."  United  States  v.  Landers,  92  U.  S. 
77,   80,   23    L.    Ed.    603. 


260 


ALOXG. 


ALLUVION. — See  the  title  Accession,  xA.ccrETion  and  Reliction,  ante, 
p.  51.  Alluvion  is  an  addition  of  soil  to  land  by  a  river,  so  gradual,  that  in  short 
periods  the  change  is  imperceptible;  or,  to  use  a  common  expression,  a  latent 
addition.^ 

ALONG.— See  note  2. 


1.  Jefferis  v.  East  Omaha  Land  Co., 
134    U.    S.    178.    192,    33    L.    Ed.    872. 

2.  Along  the  bank. — Where  a  state 
ceded  land  on  the  west  of  a  certain  river, 
making  the  boundary  line  a  line  "along 
the  bank"  of  the  river,  it  was  held,  that 
the  words  "'along  the  bank"  were  strong 
and  definite  enough  to  exclude  the  idea 
that  any  part  of  the  river  or  its  bed  was 
granted,  or  that  a  line  was  to  be  traced 
at  the  edge  of  the  water  as  that  may  be 
at  one  or  another  time  or  at  low  water, 
or  the  lowest  low  water,  and  that  the 
meaning  of  the  call  was  that  the  line 
should  be  the  fast  land  which  confined 
the  water  of  the  rrver  in  its  channel  or 
bed  in  its  whole  width.  Howard  v.  Inger- 
soll.  13  How.  381,  416,  14  L.  Ed.  189. 
Sec,  generally,  the   title   BOUNDARIES. 


Along  its  route. — Where  a  statute  pro- 
vided that,  "when  an  injury  is  done  to 
a  building  or  other  property  by  tires 
communicated  by  a  locomotive  engine  of 
any  railroad  corporation,  the  said  corpo- 
ration shall  be  responsible  in  damages  for 
such  injury,"  and  have  an  insurable  in- 
terest in  such  property  "along  its  route;" 
held,  that  the  phrase  "along  its  route" 
means  in  proximity  to  the  rails  up  in 
which  the  locomotive  engines  run;  and 
that  the  corporation  is  liable  for  such  an 
injury  to  buildings  or  other  property 
along  its  route,  whether  they  are  oatsidc 
of  the  lines  of  its  roadway,  or  lawfully 
within  those  lines.  Grand  Trunk  R.  Co.. 
V.  Richardson.  91  U.  S.  454,  23  L.  Ed. 
356.      See,    generally,   the   title    FIRES. 


ALTERATION  OF  INSTRUMENTS. 

BY    JAMES    F.    MINOR. 

1.   Material  and  Immaterial  Alterations,  262. 

A.  What  Constitutes  a  Material  or  Immaterial  Alteration  Generally,  262. 

1.  As  Question  of  Law  or  Fact,  262. 

2.  Alteration  in  Excess  of  Authority,  262. 

3.  General  Rule  as  to  Materiality.  262. 

B.  Instances  of  Material  Alteration.  262. 

C.  Instances  of  Immaterial  Alteration.  263. 

D.  Effect  of  Material  Alteration,  263. 

1.  In  General,  263. 

2.  By  Stranger,  264. 

3.  On  Commercial  Paper  Generally.  264. 

4.  On  Deed.  264. 

5.  On  Bond,  265. 

6.  On  Patent  for  Land,  266. 

E.  Effect  of  Immaterial  Alteration.  266. 

II.    Consent  Rule,  266. 

A.  Evidence  or  Inference  of  Consent.  266. 

B.  Rule  Stated,  266. 

C.  Parol  Authority,  267. 

m.    Filling  Blanks,  267. 

A.  By  Parol  Authority,  267. 

B.  By  Implied  Authority,  267. 

C.  Perfecting  Incomplete  Instrument,  268. 

1.  Negotiable  Paper,  268. 

2.  Deeds,  269. 

3.  Bonds,  269. 

IV.  Evidence,  269. 

A.  Burden  of  Proof,  269. 

1.  As  to  Forgery  or  Alteration.  269. 

2.  As  to  Violation  of  Agreement  as  to  Filling  Blanks.  270. 

B.  Questions  of  Law  and  Fact.  270. 

C.  Presumptions,  270. 

1.  As  to  Time  of  Alteration  and  by  Whom  Made,  270. 

2.  As  to  Alteration  in  Course  of  Official  Duty,  271. 

3.  As  to  Consent  to  Alteration,  271. 

D.  Admissibility,  271. 

E.  Weight  and  Sufficiency,  271. 

1.  Lapse  of  Time  and   Acquiescence,  271. 

2.  Evidence  of  Consent  to  Alteration.  271. 

V,  Pleading  and  Practice,  272. 

A.  Pleas,  272. 

B.  Instructions.  171. 

CROSS  REFERENCES. 

See  the  titles  Amendments;  Bills,  Notes  and  Checks;  Bonds;  Deeds; 
Forgery  and  Counterfeiting;  TelEgr.aphs  AxNd  Telephones.  As  to  altera- 
tion of  agreements  in  general,  see  the  titles  Contracts  ;  Sales  ;  Vendor  and 
Purchaser. 

As  to  alteration  of  certificate  of  acknowledgment,  see  the  title  .Acknowledg- 
ments,    ante,     p.     75.       As    to    alteration    of    contract    of    bail,    see    the    title 

(261) 


262 


ALTERATION  OF  INSTUMENTS. 


Bail.  As  to  alteration  of  patent,  see  the  title  Patents.  As  to  alteration  of  rec- 
ca-ds,  see  the  title  Records.  As  to  alteration  of  surety's  contract,  see  the  title 
Suretyship.  As  to  alterations  of  wills  by  testator,  see  the  title  Wiles.  As  to 
altered  documents  as  evidence,  see  the  title  Evidence.  As  to  effect  and  conse- 
quences of  altering  negotiable  instruments,  see  the  titles  Banks  and  Banking; 
Bills,  Notes  and  Checks.  As  to  rights  of  bona  fide  purchasers  of  altered 
negotiable  paper,  see  the  title   Bills,  Notes  and  Checks. 

I.   Material  and  Immaterial  Alterations. 

A.  What  Constitutes  a  Material  or  Immaterial  Alteration  Generally. 

— 1.  As  Question  of  Law  or  Fact. — See  post,  "Questions  of  Law  and  Fact,'* 
IV,  B. 

2.  Alteration  in  Excess  of  Authority. — See  post,  "Perfecting  Incomplete 
Instrument,"  III,  C. 

6.  UENER-VL  Rule  as  to  Materiality. — An  alteration  is  material  or  imma- 
terial, as,  upon  a  sound  construction  of  the  whole  instrument,  it  will  or  will  not 
alter  or  change  its  operation  and  effect.^  Any  change  that  alters  the  defendant's 
contract,  whether  increasing  or  diminishing  h's  liability,  is  material.-  Such  as 
the  placing  of  seals  upon  an  instrument  after  its  execution.^ 

B.  Instances  of  Material  Alteration. — The  following  have  been  held 
material  alterations  :  Change  in  instrument  appointing  to  office  extending  liability 
upon  the  officer's  bond,  which  refers  thereto,  without  surety's  consent;'*  an 
alteration  of  date  as  to  time  of  payment  \^  the  addition  of  a  new  person 
as  maker  to  a  promissory  note  ;^    the  erasure  of  the  name  of  one  of  several  ob- 


1.  Operation    and    effect    of    alteration 

the  test.— Steele  v.  Spencer.  1  Pet.  552, 
561,  7  L.  Ed.  259;  Miller  v.  Stewart,  9 
Wheat.  680.  717.  6  L.  Ed.  189.  See  Gor- 
don V.  Third  Nat.  Bank,  144  U.  S.  97, 
36  L.  Ed.  360  ;  Dartmouth  College  v. 
Woodward,  4  Wheat.  518,  662.  4  L.  Ed. 
.629. 

2.  Change  in  liability. — Mersman  v. 
Werges.  112  U.  S.  130,  141.  28  L.  Ed. 
641;  Wood  V.  Steele,  6  Wall.  80,  18  L. 
Ed.   725. 

3.  Placing  seals  on  instrument  after 
execution. — "The  placing  of  the  seals 
thereon  after  the  execution  of  the  instru- 
ment was  a  material  alteration  of  it,  but 
if  done  by  a  stranger,  and  the  instrument 
was  valid  without  the  seals  and  was  de- 
clared on  as  such  instrument,  the  action 
upon  it  could  be  maintained,"  as  said  in 
Moses  V.  United  States.  166  U.  S.  571, 
5S3.  41  L.  Ed.  1119.  See  post  "Rule 
Stated,"  II,  B;  "As  to  Consent  to  Altera- 
tion,"  TV.   C.   3. 

A  razure  must  make  a  deed  void,  or  it 
is  immaterial. — Miller  v.  Stewart.  9  Wheat. 
680,  715.  6  L.  Ed.  189  (dissenting  opinion). 

As  expressed  in  the  dissenting  oninion 
of  Johnson  and  Todd.  II..  in  Miller  v. 
Stewart,  9  Wheat.  680.  716,  6  L.  Ed.  189: 
"As  to  the  principle  upon  which  a  razure 
avoids  a  deed,  it  is  not  too  much  to  say. 
that  the  law  of  the  subiect  appears  to 
have  got  into  some  confusion.  Modern 
decisions,  particularly  of  our  own  courts, 
lean  against  the  excessive  rigor  with  which 
some  writers  and  some  cases  di  =  fisrure  it. 
In  the  case  of  Cutts  7'.  United  States  d 
Gallis,  69),  a  bond  had  been  canceled  and 


m.utilated,  the  seal  torn  away  by  the  joint 
act  of  the  defendant  and  the  plaintiff's 
bailee,  and  was  still  held,  and  rightly 
held,  to  be  sustainable  as  the  deed  of  the 
party.  In  the  case  of  Speake  v.  United 
States,  9  Cranch  28,  3  L.  Ed.  645,  a  bond 
was  sustained,  notwithstanding  the  strik- 
ing out  of  one  joint  and  several  co-ob- 
ligor, in  the  absence  of  the  others,  and 
the    insertion    of    another." 

4.  Alteration  enlarging  liability  on  in- 
strument.— Where  a  bond  is  given,  con- 
ditioned for  the  faithful  performance  of 
the  duties  of  the  office  of  deputy  col- 
lector of  direct  taxes  for  eight  certain 
townships,  and  the  instrument  of  the  ap- 
pointment, referred  to  in  the  bond,  was 
afterwards  altered,  so  as  to  extend  to  an- 
other township,  without  the  consent  of 
the  surety,  it  was  held,  that  the  surety 
was  discharged  from  his  responsibility  for 
monevs  sub'^enuently  collected  by  his 
principal.  dohnson  &  Todd.  TJ.  dis- 
sentina:.)  Miller  v.  Stewart.  9  Wheat.  680, 
6  L.  Ed.  189.  See.  also.  United  States  ?'. 
Freel.  186  U.  S.  309.  316.  46  L.  Ed.  1177; 
Leggett  7'.  Humphreys,  21  How.  66,  16  L. 
Ed.   50. 

5.  Alteration  of  date. — The  alteration 
of  the  date,  whether  it  hasten  or  delay 
the  time  of  payment,  has  been  uniformly 
held  to  be  material.  Wood  v.  Steele.  6 
Wall.  80.  83.  18  L.  Ed.  725:  Mersman  7-. 
Werges,  112  U.  S.  139.  141,  28  L.  Ed. 
641.  " 

6.  Addition  of  new  maker  to  note.— 
The  addition  of  a  new  nerson  as  a  prin- 
cipal mat-pr  of  a  promissory  note,  ren- 
dering all  the  promisors  apparently  jointly 


ALTERATION  OF  INSTRUMENTS. 


26: 


ligors  ;■   change  of  name  of  grantee  in  deed  after  execution.^ 

C.  Instances  of  Immaterial  Alteration.— See  ante,  "What  Constitutes  a 
Material  or  Immaterial  Alteration  Generally,"  I,  A. 

Where  the  legal  force  of  the  instrument  is  unchanged  as  to  the  person  sought 
to  be  charged,  the  alteration  is  immaterial.^  And  the  addition  of  the  name  of  a 
surety,  before  or  after  first  negotiation  of  a  note,  is  not  a  material  alteration  as 
to  the  maker. ^'^ 

D.  Effect  of  Material  Alteration. — 1.    In  general. — The  rule  is  universal 


and  equally  liable,  not  only  to  the  holder, 
but  also  as  between  themselves,  and  so 
far  tending  to  lessen  the  ultimate  lia- 
bility of  the  original  maker  or  makers, 
has  been  held  in  the  courts  of  some  of  the 
states  to  be  a  material  alteration.  Mers- 
man  v.  Werges,  112  U.  S.  139,  141.  28  L. 
Ed.    641. 

7.  Erasure  of  name  of  co-obligor. — "An 
erasure  of  the  name  of  one  of  several  ob- 
ligors is  a  material  alteration  of  the  con- 
tract of  the  others,  because  it  increases 
the  amount  which  each  of  them  may  be 
held  to  contribute.  Martin  v.  Thomas,  24 
How.  315",  16  L.  Ed.  689;  Smith  i'.  United 
States,  2  Wall.  219,  17  L.  Ed.  788." 
Mersman  v.  Werges,  112  U.  S.  139,  141, 
28    L.    Ed.    C41. 

8.  Substitution  of  grantee  in  deed. — "If 
the  name  of  William  Steele  was  inserted 
in  the  deed  as  grantee,  after  its  full  ex- 
ecution and  attestation,  instead  of  the 
name  of  some  other  grantee,  which  was 
stricken  out,  no  doubt,  the  alteration  was 
very  material,  and  nothing  could  in  that 
case  pass  by  the  deed  to  William  Steele." 
Steele  v.  Spencer,  1  Pet.  552.  561.  7  L 
L.   Ed.  259. 

"The  two  other  alterations  supposed,  in 
the  words  'Ross'  and  'Ohio,'  in  the  de- 
scription of  the  grantee's  residence,  inay 
have  been  either  material  or  immaterial, 
as,  upon  a  sound  construction  of  the  whole 
instrument,  they  would  or  would  not  al- 
ter or  change  its  operation  and  effect." 
Steele  v.  Spencer,  1  Pet.  552,  561.  7  L. 
Ed.  259. 

Unnoted  change  explained. — An  un- 
noted erasure  of  one  name  as  grantee  and 
the  substitution  of  another,  the  change 
being  merelj^  in  the  given  name,  is  ex- 
plained by  proof  of  the  identity  of  the 
two  as  one  and  the  same  person.  Han- 
rick  V.  Patrick,  119  U.  S.  156.  172.  30  L. 
Ed.  396.  See.  generally,  ante.  "General 
Rule   as   to    Materiality."   I,    A,    3. 

9.  Legal  effect  of  instrument  un- 
changed.— Gordon  v.  Third  Nat.  Bank, 
144  U.  S.  97,  36  L.  Ed.  360;  Mersman  v. 
Werges,  112  U.  S.  139,  143,  28  L.  Ed.  641. 

The  stamping  of  a  waiver  of  demand 
and  protest  and  guarantee  of  payment, 
upon  the  back  of  a  promissory  note, 
when  it  fell  due,  at  the  instance  and  re- 
quest of  the  indorsers.  although  by  inad- 
vertence they  were  placed  above  the  name 
of  the  maker  (also  appearing  on  the  back 
for  negotiation)  as  well  as  the  indorser's 
name,   does    not   constitute   a   material   al- 


teration, so  far  as  the  maker  is  con- 
cerned, as  they  do  not  affect  his  rights, 
no  such  waiver  being  needed  to  hold  him 
liable.  Gordon  v.  Third  Nat.  Bank,  144 
U.    S.    97,   36    L.    Ed.    360. 

Where  a  note,  though  in  form  made 
by  the  husband  to  his  partner,  and  in- 
dorsed by  him,  was  without  considera- 
tion as  between  them,  and  was  in  fact 
signed  by  both  of  them  for  the  benefit 
of  the  partnership,  and  the  mortgage  of 
the  wife's  land  was  executed  and  de- 
livered by  her  and  her  husband  to  the 
partner  for  the  sarae  purpose,  and  the 
name  of  the  wife  was  signed  to  the  note 
by  the  partner,  or  by  his  procurement, 
before  it  was  negotiated  for  value,  the 
plaintiff  receiving  the  note  and  mortgage 
from  the  partner  and  advancing  his 
money  upon  the  security  thereof,  in  good 
faith  and  in  ignorance  that  the  note  had 
been  altered,  if  the  wife  had  herself  signed 
the  note,  she  would  have  been  an  accom- 
modation maker,  and,  in  equity  at  least,  a 
surety  for  the  other  signers;  and  neither 
the  liability  of  the  husband  as  maker  of 
the  note,  nor  the  effect  of  the  mortgage 
executed  by  the  wife,  as  well  as  by  the 
husband  to  secure  the  payment  of  that 
note,  would  have  been  materially  altered 
by  the  addition  of  her  signature.  There 
appears,  therefore,  to  be  no  reason  why 
the  plaintiff,  as  indorsee  of  the  note,  seek- 
ing no  decree  against  the  wife  personally, 
should  not  enforce  the  note  against  the 
husband,  and  the  mortgage  against  the 
land  of  the  wife.  Mersman  v.  Werges, 
112    U.    S.    139,    143.    28    L.    Ed.    641. 

10.  Addition  of  surety  or  guarantor. 
— ^^See  post,  "Effect  of  Immaterial  .\lter- 
ation,"    I,    E. 

"Where  the  signature  added,  although 
in  form  that  of  a  joint  promisor,  is  in 
fact  that  of  a  surety  or  guarantor  only, 
the  original  maker  is,  as  between  himself 
and  the  surety,  exclusively  liable  for  the 
whole  amount,  and  his  ultimate  liability 
to  pay  that  amount  is  neither  increased 
nor  diminished;  and,  according  to  the 
general  current  of  the  .American  author- 
ities, the  addition  of  the  name  of  a  surety, 
whether  before  or  after  the  first  negotia- 
tion of  the  note,  is  not  such  an  altera- 
tion as  discharges  the  maker."  Mersman 
V.  Werges,  112  U.  S.  139,  142,  28  L.  Ed. 
641. 

Filling  blanks  in  incomplete  instru- 
ment.— See  post.  "Perfecting  Incomplete 
Instrument,"   III,   C. 


264 


ALTERATION  OF  INSTRUMENTS. 


that  the  aheratioli  of  an  instrument  in  a  material  point  by  the  party  claiming 
tinder  it,  as  by  inserting  or  striking  out  names  without  the  authority  or  consent 
of  the  other  parties  concerned,  renders  the  instrument  void,  unless  subsequently 
approved  or  ratified. ^^  And  the  rules,  that  where  one  of  two  innocent  persons 
must  sufifer,  he  who  has  put  it  in  the  power  of  another  to  do  the  wrong  must 
bear  the  loss,  and  that  the  holder  of  commercial  paper  taken  in  good  faith  and 
in  the  ordinary  course  of  business  is  unafifected  by  any  latent  infirmities  of  the 
security,  have  no  application  in  this  class  of  cases.^^ 

2.  By  Stranger. — An  alteration  made  by  a  stranger  to  the  instrument  will  not 
avoid  the  same.^^ 

3.  On  Commercial  Paper  Generally. — It  is  now  settled,  in  both  English  and 
American  jurisprudence,  that  a  material  alteration  in  any  commercial  paper,  with- 
out the  consent  of  the  party  sought  to  be  charged,  extinguishes  his  liability. ^-^ 

4.  On  Deed. — A  deed  may  be  avoided  or  rendered  of  no  efifect  by  razure,  ad- 
dition, interlining  or  other  alteration,  in  any  material  part,  if  done  after  its  execu- 
tion.^^       And  every  erasure  and  interlineation  in  the  deed,  by  the  obligee  or  ap- 


11.    Material  alteration  by  party  avoids. 

—Smith  V.  United  States,  2  Wall.  219. 
234,  17  L.  Ed.  788;  Angle  v.  Northwest- 
ern Life  Ins.  Co.  92  U.  S.  330,  23  L.  Ed. 
556. 

"Every  material  alteration  of  a  written 
instrument,  according  to  the  old  decisions, 
whether  made  by  a  party  or  by  a  stran- 
ger, was  fatal  to  its  validity  if  made  after 
execution,  and  while  the  instrument  was 
in  the  possession  and  vmder  the  control 
of  the  partj'  seeking  to  enforce  it,  and 
without  the  privity  of  the  party  to  be 
afTected  by  the  alteration."  Smith  v. 
United  States,  2  Wall.  219.  232.  17  L. 
Ed.   788. 

"A  material  alteration  of  a  written  con- 
tract by  a  party  to  it,  discharges  a  party 
who  does  not  authorize  or  consent  to  the 
alteration,  because  it  destroys  the  identity 
of  the  contract,  and  substitutes  a  dif- 
ferent agreement  for  that  into  which  he 
entered.  In  the  application  of  this  rule, 
it  is  not  only  well  settled  that  a  material 
alteration  of  a  promissory  note  by  the 
pa.yee  or  holder  discharges  the  maker, 
even  as  against  a  subsequent  innocent 
indorsee  for  value;  but  it  has  been  ad- 
judged by  this  court  that  a  material  al- 
teration of  a  note,  before  its  delivery  to 
the  payee  by  one  of  two  joint  makers, 
•without  the  consent  of  the  other,  makes 
it  void  as  to  him."  Mersman  v.  Werges, 
112  U.  S.  139,  141,  28  L.  Ed.  641,  citing 
Wood  V.  Steele,  6  Wall.  80.  18  L.  Ed.  72.5. 
See,  also.  Angle  v.  Northwestern  Life  In- 
surance  Co..  92  U.   S.   330.  23  L.   Ed.   .5.56. 

Any  unauthorized  variation  in  an  agree- 
ment which  a  surety  has  signed,  that  may 
prejudice  him,  or  may  substitute  an 
agreement  different  from  that  which  he 
came  into,  discharges  him.  Smith  v. 
United  States,  2  Wall.   219,  17   L.   Ed.  788. 

12.  Inapplicability  of  equitable  rules. — 
Wood  V.  Steele,  6  Wall.  SO.  82,  18  L.  Ed. 
725. 

"The  law  regards  the  security,  after  it 
is  altered,  as  an  entire  forgery  witii  re- 
spect   to    the    parties    who   have    not    con- 


sented, and  so  far  as  they  are  concerned, 
deals  with  it  accordingly."  Wood  v. 
Steele.    6    Wall.   80,   83,   18    L.    Ed.   725. 

Common  law  governs. — The  efifect  of  an 
alteration  or  interlineation  of  a  deed  is  to 
be  decided  by  the  principles  of  the  com- 
mon law.  Miller  v.  Stewart.  9  Wheat. 
680,  708,  6   L.    Ed.   189. 

13.  Alteration  by  stranger  ineffectual. — 
United  States  v.  Linn,  1  How.  104,  109, 
11  L.  Ed.  64.  See  Smith  v.  United  States, 
2  Wall.   219,  232,   17  L.   Ed.  788. 

The  placing  of  seals  upon  an  (official) 
bond  after  the  execution  of  the  instru- 
ment is  a  material  alteration  of  it,  but 
if  done  by  a  stranger  and  the  instrument 
was  valid  without  the  seals  and  was  de- 
clared on  as  such  an  instrument,  the  ac- 
tion upon  it  could  be  maintained.  Moses 
V.  United  States.  166  U.  S.  571,  583,  41  L. 
Ed.  1119;  United  States  v.  Linn,  15  Pet. 
290,    311.    10   L.    Ed.    742. 

14.  Effect  on  commercial  paper. — Wood 
V.  Steele.  6  Wall.  80,  82,  18  L.  Ed.  725; 
Mersman  v.  Werges,  112  U.  S.  139,  141, 
28   L;   Ed.   641. 

The  alteration  of  the  date  in  ?my  com- 
mercial paper — though  the  alteration  de- 
lay the  time  of  payment — is  a  material  al- 
teration, and,  if  made  without  the  consent 
of  the  party  sought  t<.  be  charged,  ex- 
tinguishes his  liability.  The  fact  that  it 
was  made  by  one  of  the  parties  signing 
the  paper  before  it  had  passed  from  his 
hands,  does  not  alter  the  case  as  respects 
another  party  (a  surety),  who  had  signed 
previously.  Wood  v.  Steele.  6  Wall.  80. 
18  L.  Ed.  725.  See  the  title  BILLS, 
NOTES   AND   CHECKS. 

15.  Effect  as  avoiding  deed. — Vanhorne 
f.  Dorrance,  2  Dall.  304  305,  1  L.  Ed.  391; 
Moelle  c'.  Sherwood,  148  U.  S.  21,  27,  37 
L.  Ed.  350;  Steele  ?■.  Spencer,  1  Pet.  552, 
7  L.  Ed.  259;  Speake  v.  United  States, 
9  Cranch  28,  38,  3  L.  Ed.  645.  dissenting 
opinion  of  Livingston.  J.  See  the  title 
DEEDS. 

"By  the  common  law,  the  alteration  or 
interlineation  of  a  deed,  in  a  m,aterial  part, 


ALTBRATIOX  OF  INSTRUMENTS. 


265 


pointee,  without  consent,  is  a  surrender;  and  a  revocation  may  be  implied  by- 
law. It  need  not  be  by  an  instrument  to  that  etTect.^*^  But  it  must  be  shown  to 
have  been  made  under  circumstances  that  the  law  does  not  warrant. i" 

3.  On  Bond. — The  interlineation  in  an  appeal  bond  of  a  new  obligor's  name, 
without  the  surety's  knowledge, ^^  or  the  erasure  from  an  official  bond,  before  ac- 
ceptance, of  the  name  of  one  of  several  sureties  without  the  knowledge  of  the 
others  ;i»  or  the  erasure  of  the  name  of  the  principal  in  a  replevin  bond,  by  him 
without  sureties'  consent,  invalidate  the  respective  bonds,  as  to  the  sureties  af- 
fected thereby. ^^ 


at  least,  by  the  holder,  without  the  con- 
sent of  the  other  party,  ipso  facto  avoids 
the  deed."  Miller  v.  Stewart,  9  Wheat. 
680,   706,   6   L.    Ed.    189. 

"An  alteration  in  the  description  of 
property  embraced  in  a  deed,  so  as  to 
make  the  instrument  cover  property  dif- 
ferent from  that  originally  embraced, 
whether  or  not  it  destroys  the  validity 
of  the  instrument  as  a  conveyance  of  the 
property  originally  described,  certainly 
does  not  give  it  validity  as  a  conveyance 
of  the  property  of  which  the  new  descrip- 
tion is  inserted."  Moelle  v.  Sherwood, 
148   U.    S.   21,   27,   37   L.    Ed.   3.50. 

Even  if  the  deed,  as  altered  in  its  de- 
scription of  the  propertj'  conveyed,  be 
deemed  valid  as  between  the  parties  from 
the  time  of  the  alteration,  though  not 
re-cxecuted,  it  could  not  take  effect  and 
be  in  force  as  to  subsequent  purchasers 
without  notice,  whose  deeds  were  already 
recorded,  but  as  to  them,  by  the  statute 
of  Nebraska,  it  was  void.  Moelle  v. 
Sherwood,   14«  U.   S.  21.  27.  ?>1  L.  Ed.  350. 

16.  Equivalent  to  surrender  or  revoca- 
tion.—Miller  V.  Stewart.  9  Wheat.  680. 
708.   6    L.    Ed.    189, 

17.  Circumstances  must  be  such  as  do 
not  warrant  it. — Speake  7'.  United  States, 
9  Cranch  28,  37,  3   L.  Ed.  645. 

"The  fact,  that  there  is  an  erasure  or 
interlineation,  apparent  rn  the  face  of  the 
deed,  does  not.  of  itself,  avoid  it.  To 
produce  this  effect,  it  must  be  shown  to 
have  been  made  under  circumstances  that 
the  law  does  not  warrant."  Speake  v. 
United  States.  9  Cranch  28,  37.  3  L.  Ed. 
645. 

18.  Insertion  of  new  obligor. — Oneale 
V.  Long.  4  Cranch  60.  2  L.  Ed;  550. 

If  a  bond  be  executed  by  O.,  as  a  surety 
for  S.,  to  obtain  an  appeal  from  the  judg- 
ment of  a  justice  of  the  peace,  in  Mary- 
land, and  the  bond  is  rejected  by  the  jus- 
tice, and  afterwards,  without  the  knowledge 
of  O..  the  name  of  W.  be  interlined  as  an 
obligor,  who  executes  the  bond,  and  the 
justice  then  accepts  it.  it  is  void  as  to  O. 
Oneale  v.  Long.  4  Cranch  60,  2  L.  Ed. 
550. 

"The  judges  did  not  all  agree  upon  the 
same  grounds,  some  being  of  opinion, 
that  the  bonds  were  void,  by  reason  of 
the  interlineation,  and  others,  that  they 
were  vacated  by  the  rejection  of  them  by 
the   magistrate,   and    could   not   be   set   up 


again,    without   a    new    delivery."      Oneale 
V.   Long,  4  Cranch   60.  62,  2  L.   Ed.   550. 

19.  Erasure  of  surety's  name. — Smith  v. 
United   States.  2   Wall.  219.   17  L.   Ed.  788. 

Where  several  persons  sign  a  bond  to 
the  government  as  surety  for  a  govern- 
ment officer,  which  bond  statute  requires 
shall  be  approved  by  a  judge,  before  the 
officer  enters  on  the  duties  of  his  office, 
an  erasure  by  one  of  the  sureties  of  his 
name  from  the  bond — though  such  eras- 
ure be  made  before  the  instrument  is 
submitted  to  the  judge  for  approval,  and, 
therefore,  while  it  is  uncertain  whether 
it  will  be  accepted  by  the  government,  or 
ever  take  effect — avoids  the  bond,  after 
approval,  as  respects  a  surety  who  had 
not  been  informed  that  the  name  was 
thus  erased;  the  case  being  one  where, 
as  the  court  assumed,  the  tendency  of  the 
evidence  was,  that  the  person  whose  name 
was  erased  signed  the  bond  before  or  at 
the  same  time  with  the  other  party,  the 
defendant.  Smith  v.  United  States,  2  Wall. 
219,    17    L.    Ed.    788. 

Support  to  the  proposition,  that  inas- 
much as  the  erasure  was  made  before  the 
bond  was  approved  by  the  district  judge, 
it  left  the  liability  of  all  concerned  pre- 
ciseh'  as  it  would  have  stood,  if  the  per- 
son whose  name  was  erased  had  only 
promised  to  sign  and  had  not  fulfilled 
his  engagement,  is  attempted  to  be  drawn 
from  the  case  of  LTnited  States  v.  Linn, 
1  How.  104.  11  L.  Ed.  64;  S.  C.  15  Pet. 
290.  10  L.  Ed.  742;  and  "it  must  be  con- 
fessed that  there  are  expressions  in  the 
opinion  of  the  majority  of  the  court 
which  give  some  countenance  to  that  view 
of  the  law.  Question  in  that  case  arose 
upon  the  demurrer  of  the  plaintiffs  to 
the  plea  of  the  defendants,  and  the  judg- 
ment of  the  court  was  in  fact  based  upon 
the  ground  that  the  allegations  of  the 
plea  were  insufficient  to  establish  the  de- 
fense. Alteration  charged  in  that  case 
was  that  the  seals  had  been  attached  to 
the  signatures  after  the  instrument  was 
signed  and  before  it  was  delivered,  and 
the  allegations  of  the  plea  were,  that  the 
alteration  was  made  without  the  consent, 
direction,  or  authority  of  the  surety,  but 
it  was  not  alleged  that  it  was  done  with- 
out his  knowledge,  or  by  whom  it  was 
done."  Smith  v.  United  States,  2  Wall. 
219.  230.    17    L.    Ed.    788. 

20.  Erasure  of  principal's  name. — Where 
there    was   an    action    of   replevin   in   Wis- 


266 


ALTERATION  OF  INSTRUMENTS. 


6.  On  Patent  for  Land. — Where  a  grant  conveyed  the  legal  title  in  1842,  and 
innocent  purchasers  paid  for  the  properly,  and  took  legal  conveyances  for  it,  with 
an  honest  belief  that  they  were  dealhig  ior  and  acquiring  a  legal  title  from  the 
true  owner,  a  claimant  of  the  equity  of  the  patent,  on  the  ground  that  the  patent 
was  issued  to  the  wrong  person,  after  being  altered  as  to  the  name  of  the  patentee, 
cannot  set  it  up  to  overthrow  the  purchase.-^  So,  where  a  grant  of  land  in  Cali- 
fornia was  genuine,  and  issued  by  the  proper  authority,  a  fraudulent  attempt  to 
alter  it  by  erasures  and  interlineations  for  the  purpose  of  enlarging  the  quantity, 
made  after  California  had  been  ceded  to  the  United  States,  will  not  vitiate  the 
the  or''ginal  grant. -^  And  ihe  destruction  or  nuitilation  of  a  patent,  after  same 
was  duly  issued,  by  an  officer  of  the  land  offixe,  was  nugatory.^-^ 

E.  Effect  of  Immaterial  Alteration. — It  has  been  held,  that  an  interlin- 
neation  made  after  the  execution  of  a  deed,  though  in  an  immaterial  point,  will 
avoid  it. 24 

II.    Consent  Rule. 

A.  Evidence  or  Inference  of  Consent. — See  post.  "Presumptions,"  IV, 
C;  "Admissibility."  IN.  D ;  "Weight  and  Sufficiency,"  IV,  E. 

B.  Rule  Stated. — It  is  clear,  at  the  common  law,  that  an  alteration  or  ad- 


consin,  by  virtue  of  which  the  property 
was  seized  by  the  marshal,  and  a  bond 
was  given  by  the  defendant  in  replevin, 
together  with  sureties,  the  object  of  which 
was  to  obtain  the  return  of  the  property 
to  the  defendant;  which  bond  was  after- 
wards altered,  by  the  principal  defendant's 
erasing  his  name  from  the  bond,  with  the 
knowledge  and  consent  of  the  marshal 
but  without  the  knowledge  or  consent  of 
the  sureties,  the  bond  was  thereby  ren- 
dered invalid  against  the  sureties.  Martin 
V.  Thomas,  24  How.  315,  16  L.  Ed.  689. 
See  the  title  BONDS.  Perfecting  incom- 
plete bond,  see  post  "Bonds,"   III,  C.  3. 

21.  Change  in  patentee's  name. — Lea  v. 
Polk  County  Copper  Co..  21  How.  493, 
16  L.  Ed.  203.  See  United  States  v.  Gal- 
braith,  2   Black  394.  406.  17  L.   Ed.  449. 

"There  was  nothing  in  the  case  to  cause 
suspicion  in  the  minds  of  these  purchasers. 
Three  letters  were  added  in  the  patent 
to  the  middle  initial  of  the  original  narjie 
of  the  patentee.  But  the  register  did 
this  in  the  course  of  his  official  duty, 
and,  as  this  court  believe,  honestly;  if  the 
purchasers  had  gone  into  the  inquiry,  the 
presumption  would  have  been  that  the 
register  did  his  duty,  and  these  innocent 
purchasers  might  properly  buy  up  an 
outstanding  title."  Lea  v.  Polk  County 
Copper    Co..    21    How.    49.''..    Ifi    L.    Ed.   203. 

22.  Fraudulent  alteration  after  issue. — 
United  States  v.  West,  22  How.  31.5,  16 
L.  Ed.  317.  Case  distinguished  on  facts 
in  United  States  v.  Galbraith,  2  Black 
394.   406,   17    L.    Ed.   449. 

Where  the  date  of  a  grant  has  been 
altered,  while  it  was  in  the  hands  of  the 
claimants  and  is  produced  to  the  court 
without  evidence,  to  show  how  the  alter- 
ation came  to  be  made,  this  court  cannot 
confirm  the  title.  The  case  of  United 
States  V.  West.  22  How.  315,  16  L.  Ed. 
317,  reviewed,  the  facts  stated  from  the 
original    record,  and  all  its  features    shown 


to  be  strikingly  dififerent  from  this  case. 
United  States  v.  Galbraith,  2  Black  394, 
17  L.  Ed.  449. 

Where  the  clear  weight  of  the  proof  is 
against  the  possession  or  occupation  by 
the  grantee  of  land  in  California,  the  date 
of  the  grant  was  altered  without  any  ex- 
planation of  the  alteration,  and  the  gen^ 
uineness  of  the  signature  of  the  governor 
to  a  certificate  of  approval  of  the  De- 
partmental Assembly  doubted,  this  court 
will  reverse  the  decree  of  the  court  be- 
low confirming  the  claim,  and  remit  it 
for  further  evidence  and  examination. 
United  States  v.  Galbraith,  22  How.  89, 
16    L.    Ed.   321. 

23.  Recall  of  patent. — Bicknell  v.  Corn- 
stock.    113    U.    S.    149,    151,   28    L.    Ed.   962. 

After  a  patent  in  due  form  had  been  ex- 
ecuted, recorded  and  transmitted  to  the 
local  land  office  for  the  patentee,  its  sub- 
sequent recall  (nearly  ten  years  later)  by 
order  of  the  commissioner  of  the  general 
land  office,  who  "tore  oflf  the  seals  and 
erased  the  president's  name  from  said 
patent,  and  mutilated  the  record  thereof 
in  the  general  land  office,  all  without  the 
consent  and  against  the  protest  of  the 
grantees  of  said  Bicknell,"  this  action 
was  utterly  nugatory  and  left  the  patent 
of  1869  to  Bicknell  in  as  full  force  as  if 
no  such  attempt  to  destroy  or  nullify  it 
had  been  made.  This  is  a  necessary  in- 
ference from  the  principles  established 
by  the  court  in  the  case  of  United  States 
V.  Schurz,  102  U.  S.  378.  26  L.  Ed.  167. 
That  principle  is  that  when  the  patent 
has  been  executed  by  the  president  and 
recorded  in  the  general  land  office,  all 
power  of  the  executive  department  over 
it  has  ceased.  Bicknell  7'.  Comstock,  113 
U.   S.   149,   151,  28   L.   Ed.  962. 

24.  Effect  of  immaterial  alteration. — 
Morris  v.  Vanderen.  1  Dall.  64,  67,  1  L. 
Ed.  38.     See  ante,  "Instances   of  Immate- 


ALTERATIOX  OF  IXSTRUMEXTS. 


267 


dition  in  a  deed,  as  by  adding  a  new  obligor,  or  an  erasure  in  a  deed,  as  by 
striking  out  an  old  obligor,  if  done  with  ihe  consent  and  concurrence  of 'all  the 
partie>'  to  the  deed,  does  not  avoid  it.  And  this  principle  equally  applies,  whether 
the  alteration  or  erasure  be  made  in  pursuance  of  an  agreement  and  consent, 
prior  or  subsequent  to  the  execution  of  the  deed.^^  The  consent  to  an  alteration 
is,  in  law,  equivalent  to  a  redelivery.-^ 

C.  Parol  Authority.— Although  it  was  at  one  time  doubted  whether  a  parol 
authority  was  adequate  to  authorize  an  alteration  or  addition  to  a  sealed  instru- 
ment, the  better  opinion,  at  this  day,  is  that  the  power  is  sufficient.27 

III.    Filling  Blanks. 

A.  By  Parol  Authority.— In  several  states  a  parol  autliority  from  the 
grantor  will  empower  another  party  to  fill  up  a  blank  left^or  grantee's  name  in 
a  signed  and  acknowledged  deed.-^ 

B.  By  Implied  Authority.— See  post,  "Perfecting  Incomplete  Instrument  " 
III,  C.  ^  1  , 


rial  Alterations,"  I,  C;  "In  General,"  I,  D, 
1;  "On  Deed,"  I,  D,  4. 

In  a  patent,  the  obliteration  of  the  con- 
sideration by  tearing  out  same,  does  not 
make  void  the  grant,  no  circumstances 
or  suggestion  of  fraud  existing.  Polk  v. 
Wendall,  9  Cranch  87,  97,  3  L.  Ed.  66.5. 
See  ante.  "On   Patent  for   Land,"   I.   D,   6. 

25.  Aheraticn  by  consent  does  not  avoid. 
— Speake  v.  United  States,  9  Cranch  28. 
37,  3  L.  Ed.  645;  United  States  v.  Linn, 
1  How.  104.  107,  11  L.  Ed.  64.  See  post. 
"Filling  Blanks,"   III. 

The  adding  a  scrawl  by  one  of  the  ob- 
ligors to  his  own  name  did  not  vitiate 
the  instrument  as  to  him;  he  had  a  right 
to  add  the  seal,  or  at  least,  he  can  have 
no  right  to  set  up  his  own  act  in  this 
respect  to  avoid  his  own  deed.  It  was, 
therefore,  his  deed,  and  the  plea  of  non 
est  factum  as  to  him  is  false.  United 
States  v.  Linn.  1  How.  104,  107,  11  L.  Ed. 
64.  See  ante,  "General  Rule  as  to  Ma- 
teriality."  I,   A,   3. 

The  name  of  an  obligor  may  be  erased 
from  a  bond,  and  a  new  obligor  inserted, 
b\'  consent  of  all  the  parties,  without  mak- 
ing the  bond  void;  such  consent  may  be 
proved  b}'  parol  evidence;  and  it  is  im- 
material, whether  the  consent  be  given 
before  or  after  the  execution  of  the  deed. 
Speake  i:  United  States,  9  Cranch  28,  3 
L.  Ed.  64.5.  (Livingston,  J.,  dissenting  as 
to  the  admissibility  of  parol  evidence.) 

As  said  in  Smith  v.  United  States,  2 
Wall.  219.  230,  17  L.  Ed.  788;  "Liability 
cannot  attach  to  the  person  whose  name 
was  erased  before  the  instrument  was  ap- 
proved, and  all  those  who  subsequently 
consented  to  remain  liable,  notwithstand- 
ing the  alteration,  are  estopped  under  the 
circumstances  to  interpose  anj'-  suoh  ob- 
jection. They  have  waived  the  effect 
which  the  alteration  in  the  instrument 
would  otherwise  have  had  and  consented 
to  be  bound,  and  therefore  have  suflfered 
no   injury.     Volenti    non    fit    injuria." 

26.  Equivalent  to  redelivery. — Miller  v. 
Stewart,  9  Wheat,  680,   708,   6   L.   Ed.   189. 


Or  re-execution.— When  a  grant  of 
land,  issued  and  delivered,  is  subsequently 
altered  in  the  quantity  granted  by  direc- 
tion of  the  grantor,  on  the  application  of 
the  grantee,  and  is  then  redelivered  to 
the  grantee,  such  redelivery  is  in  legal 
effect  a  're-execution  of  the  grant.  Ma- 
larin  v.  United  States,  1  Wall.  282  17  L 
Ed.  594. 

If  an  original  appointment  is  altered 
by  the  consent  of  the  parties  to  the  in- 
strument, that  very  consent  implies  that 
something  is  added  to  or  taken  from  it. 
The  parties  agree  that  it  shall  no  longer 
remain  as  it  was  at  first,  but  that  the  same 
instrument  shall  be,  not  what  it  was,  but 
what  the  alteration  makes  it.  It  shall 
not  constitute  two  separate  and  distinct 
instruments,  but  one  consolidated  instru- 
ment. Miller  v.  Stewart,  9  Wheat  680 
703,    6    L.    Ed.    189. 

27.  Parol  authority.— Drury  v.  Foster.  2 
Wall.  24.  33,  17  L.  Ed.  780;  Allen  v.  With- 
row.  no  U.  S.  119.  128.  28  L.  Ed.  90.  See 
post,  "By  Parol   Authority."  III.  A. 

28,  Parol  authority  sufficient.— Allen  v 
Withrow,  110  U.   S.   119,  128,  28  L.   Ed.  90.' 

"It  may  be.  and  probably  is,  the  law  in 
Iowa,  as  it  is  in  several  states,  that  the 
grantor  in  a  deed  conveying  real  property 
signed  and  acknowledged,  with  a  blank 
for  the  name  of  the  grantee,  may  author- 
ize another  party,  by  parol,  to  fill  up  the 
blank."  Allen  v.  W''throw,  110  U  S  119 
128.  28  L.  Ed.  90.  See  the  title  DEEDS.' 
As  to  consent  to  alteration,  see  ante 
"C'  ns?nt     Rule,"     II. 

Limitations  on  power. — "But  there  are 
two  conditions  essential  to  make  a  deed 
thus  executed  in  blank  operate  as  a  con- 
veyance of  the  property  described  in  it; 
the  blank  must  be  filled  by  the  party 
authorized  to  fill  it,  and  this  must' be  done 
before  or  at  the  time  of  the  delivery  of 
the  deed  to  the  grantee  named."  Allen 
z:  Withrow,  110  U.  S.  119,  128,  28  L.  Ed. 
90.     See  post,  "Deeds,"  III.  C,  2. 


268 


ALTERATIOX  OF  IXSTRUMENTS. 


Bonds  issued  by  a  railrcad  company  in  Massachusetts,  payable  in  blank,  no 
payee  being  inserted,  and  issued  to  a  citizen  of  Massachusetts,  which  had  passed 
through  several  intervening  holders,  could  be  filled  up  by  a  citizen  of  New  Hamp- 
shire, pavable  to  himself  or  order,  and  then  suit  could  be  maintained  upon 
them  in  the  circuit  court  of  the   United   States   for   Massachusetts. *« 

C.  Perfecting  Incomplete  Instrument — 1.  Negotiablk  Paper. — Where 
a  party  to  a  negotiable  instrument  intrusts  it  to  another  for  use  as  such  with 
blanks  not  filled,  it  carries  on  its  face  an  implied  authority  to  complete  it  by 
filling  them.-^*'  But  it  does  not  authorize  him  to  do  more,  nor  give  him  power  to 
fill  it  iip  at  pleasure,^^  or  to  vary  or  alter  its  material  terms  by  erasing  what  is 


29.  Railroad  bonds. — White  v.  Vermont, 
etc.,    R.   Co.,   21    How.   ^5.   16   L.    Ed.   221. 

The  usage  and  practice  of  railroad  com- 
panies, and  of  the  capitalists  and  business 
men  of  the  country,  and  decisions  of 
courts,  have  made  this  class  of  securities 
negotiable  instruments.  The  later  Eng- 
lish authorities  upon  this  point  overruled. 
White  V.  Vermont,  etc.,  R.  Co.,  21  How. 
575,   16   L.   Ed.   221. 

30.  Filling  blanks  in  the  negotiable  pa- 
per.— Angle  z'.  Northwestern  Life  Ins.  Co., 
92  U.  S.  330.  23  L.  Ed.  556;  Michigan 
Bank  v.  Elred,  9  Wall.  544,  551,  19  L.  Ed. 
763;  Davidson  v.  Lanter,  4  Wall.  447,  457, 
18  L.  Ed.  377;  Bank  v.  Neal,  22  How.  96, 
107,  16  L.  Ed.  323;  Violett  v.  Patton,  5 
Cranch  142.  143,  3  L.  Ed.  61;  Goodman 
V.  Simonds,  20  How.  343,  361,  15  L.  Ed. 
934. 

"It  is  well  settled  law  that  where  a 
party  to  a  negotiable  bill  of  exchange  or 
promissory  note  containing  blanks,  in- 
trusts it  to  the  custody  of  another,  whether 
the  blanks  are  in  the  date  or  the  amount 
of  the  note,  and  whether  it  be  for  the 
purpose  of  accomodating  the  person  to 
whom  it  was  intrusted,  or  to  be  used  to 
raise  money  for  his  own  benefit,  such  bill 
or  note,  especially  if  it  be  indorsed  in  blank, 
or  is  inade  payable  to  bearer,  carries  on 
its  face  an  implied  authority,  in  the  per- 
son to  whom  it  is  so  intrusted,  to  fill 
up  the  blanks  in  his  discretion;  and,  as 
between  such  party  to  the  bill  or  note 
and  innocent  third  parties,  holding  the 
bill  or  note  as  transferees  for  value,  in 
the  usual  course  of  business,  the  person  to 
whom  it  is  so  intrusted  must  be  deemed  to 
be  the  agent  of  the  party  who  committed 
such  bill  or  note  to  his  custodv;  and  the 
legal  conclusion  is,  that  in  filling  up  the 
blanks  he  acted  under-  the  authority  of 
that  party,  and  with  his  approbation  and 
consent."  Michigan  Bank  v.  Eldred,  9 
Wall.  544,  551,  19  L.  Ed.  763.  See,  also, 
Bank  z'.  Neal.  22  How.  96,  107,  16  L.  Ed. 
.123;  Angle  z'.  Northwestern  Life  Ins. 
Co.,  92  U.  S.  330,  338,  23  L.   Ed.  556. 

And  a  bona  fide  holder  of  a  negotiable 
instrument  for  a  valuable  consideration, 
without  notice  of  facts  which  impeach 
its  validity  between  the  antecedent  par- 
ties (as  when  the  instrument  was  improp- 
erly filled  out  for  his  own  benefit  by  the 
party  entrusted  therewith),   if  he   takes   it 


under  an  endorsement  before  the  same 
becomes  due.  holds  the  title  unaffected  by 
these  facts,  and  may  recover  thereon,  al- 
though as  between  the  antecedent  par- 
ties the  transaction  may  be  without  any 
legal  validity.  Goodman  v.  Simonds,  20 
How.   343,   15   L.   Ed.  934. 

The  case  falls  within  the  rule,  that 
where  one  or  two  innocent  parties  must 
suffer,  through  the  fraud  or  negligence  of 
n  third  party,  the  loss  shall  fall  upon  him 
who  gave  the  credit.  Bank  v.  Neal,  22 
How.  96.  16  L.  Ed.  323.  As  to  rights  of 
holder  generally,  see  the  title  BILLS, 
NOTES   AND   CHECKS. 

Change  of  date. — The  power  to  fill  the 
blanks  for  dates  implies,  in  favor  of  such 
holders,  a  power  in  the  person  trusted,  to 
change  the  date,  after  the  note  has  been 
written,  and  before  it  is  negotiated.  Mich- 
igan Bank  7'.  Eldred,  9  Wall.  544.  19  L. 
Ed.    763. 

A  blank  indorsement,  upon  a  blank 
piece  of  paper,  with  intent  to  give  a  per- 
son credit,  is,  in  effect,  a  letter  of  credit. 
And  if  a  promissory  note  be  afterwards 
written  on  the  paper,  the  indorser  cannot 
object  that  the  note  was  written  after  the 
indorsment.  Violett  :'.  Patton,  5  Cranch 
142.    3    L.    Ed.    61. 

Where  a  partnership  is  in  the  habit  of 
indorsing  negotiable  paper,  having  blanks 
left  for  the  date,  and  gives  the  paper  so  in- 
dorsed to  a  person  to  use — he  to  fill  the 
blank  when  he  wishs  to  use  it — the  firm 
is  liable  on  the  paper  with  the  date  filled 
in,  when,  thus  complete,  it  has  passed  to 
the  hands  of  innocent  bona  fide  holders 
for  value.  Michigan  Bank  7'.  Eldred,  9 
Wall.  544.  19  L.  Ed.  763.  See  the  title 
BILLS,  NOTES  AND  CHECKS. 

31.  Limitations  on  power. — Davidson  v. 
Lanier,    4    Wall.    44T,    448.    18    L.    Ed.    377. 

If  there  has  been  no  agreement,  the 
authority  is  general;  if  there  has.  it  must 
be  pursued.  No  person,  unless  au- 
thorized, either  directly  or  by  just  infer- 
ence from  the  nature  of  the  transaction, 
can  fill  up  a  blank  bill  for  his  own  benefit, 
nor  can  such  a  bill  be  enforced  against 
the  drawer  and  indf^rser  in  favor  of  any- 
one who  tal-'es  it  in  bad  faith;  that  is, 
with  knowledge  that  it  has  been  filled  up 
without  authnrit'-  or  in  fraud.  David- 
son 7'.  Lanier,  4  Wall.  447,  456,  18  L.  Ed. 
377. 


ALTERATIOX  OF  IXSTRUMEXTS. 


269 


written  as  part  thereof,  nor  to  pervert  its  scope  or  meaning  by  tilling  blanks  with 
stipulations  repugnant  to  what  is  plainly  expressed  in  the  instrument. ^'-^ 

2.  Deeds. — A  paper,  executed  under  seal  for  the  husband's  benefit,  by  hus- 
band and  wife,  acknowledged  in  separate  form  by  the  wife,  and  meant  to  be  a 
mortgage  of  her  separate  lands,  but  with  blanks  left  for  the  insertion  of  the  mort- 
gagor s  name  and  the  sum  borrowed,  and  to  be  filled  up  by  the  husband,  is  no 
deed  as  respects  the  wife,  when  afterwards  filled  up  by  the  husband  and  given 
to  a  lender  of  money,  though  one  bona  fide  and  without  knowledge  of  the  mode 
of  execution.  The  mortgagee,  on  cross-bill  to  a  bill  of  foreclosure,  was  directed 
to  cancel  her  name.'^^ 

3.  Bonds. — A  bond,  signed  by  principal  and  surety,  and  intrusted  to  the  prin- 
cipal wath  blanks  for  names  of  two  other  sureties,  dates  and  amount,  may  be 
filled  up  and  completed  by  the  principal  so  as  to  be  valid,  though  he  may  have 
exceeded  his  actual  authority. ^^ 

IV.   Evidence. 

A.  Burden  of  Proof. — 1.  As  to  Forgery  or  Alteration. — The  burden  of 
proving  a  forgery  is  upon  the  person  alleging  same.^^  But  where  it  is  alleged 
that  a  written  instrument  has  been  altered,  and  any  suspicion  is  raised  as  to  its 
genuineness,  the  burden  of  removing  same  is  upon  the  party  producing  and  claim- 
ing under  it.^''     Not  so,  however,  when  the  alteration  is  averred  by  the  opposite 


32.  Same. — Angle  v.  Northwestern  Life 
Ins.    Co.,   92   U.    S.   330,    23    L.    Ed.    556. 

Burden    of    proof    as    to    violation    of 

agreement. — See  post.  "As  to  Violation  of 
Agreement  as  to  Filling  Blanks,"  IV, 
A,    2. 

33.  Deeds.— Drury  v.  Foster,  2  Wall. 
24,  17  L.  Ed.  780.  See  ante,  "By  Parol 
Authority,"    III,    A. 

34.  Bonds  completed  by  filling  blanks. 
—Butler  r.  United  States,  21  Wall.  272, 
22  L.  Ed.  614;  Miller  v.  Stewart.  9  Wheat. 
680,   717,  6  L.   Ed.   189. 

A  person  who  signs,  as  surety,  a  printed 
form  of  government  bond,  already  signed 
by  another  as  principal,  but  the  spaces  in 
which  for  names,  dates,  amounts,  etc., 
remain  blank,  and  who  then  gives  it  to 
the  person  who  has  signed  as  principal,  in 
order  that  he  may  fill  the  blanks  with  a 
sum  agreed  on  between  the  two  parties 
as  the  sum  to  be  put  there,  and  with  the 
names  of  two  sureties  who  shall  each  be 
worth  another  sum  agreed  on,  and  then 
have  those  two  persons  sign  it,  makes 
such  person  signing  as  principal  his  agent 
to  fill  up  the  blanks  and  procure  the  sure- 
ties, and  if  such  person  fraudulently  fill 
up  the  blanks  with  a  larger  sum  than  that 
agreed  on  between  the  two  persons  and 
have  the  names  of  worthless  sureties, 
inserted,  and  such  sureties  to  sign  the 
bond,  and  the  bond  thus  filled  up  and 
signed  be  deliverd  by  the  principal  to  the 
government,  who  accepts  it  in  the  belief 
that  it  has  been  properly  executed,  the 
party  sf)  wronged  cannot,  on  suit  on  the 
bond,  again  set  up  the  private  understand- 
ings which  he  had  with  the  principal. 
Butler  V.  United  States,  21  Wall.  272,  22 
L.  Ed.  614;  Miller  v.  Stewart,  9  Wheat. 
680,  717.  6  L.  Ed.  189.  See  ante.  "On 
Bond,"    I,    D,    5;    "Rule    Stated,"    II.    B. 


35.  Burden  of  proving  forgery  on  person 
alleging. — Sturm  v.  Boker,  150  U.  S.  312, 
340,  37    L.   Ed.   1093. 

Where  it  is  admitted  that  the  signatures 
to  writings  were  genuine,  but  insisted 
that  the  writing  above  them  was  forged, 
the  burden  of  proof  was  clearly  upon 
the  defendants  to  establish  that  the  writ- 
ten part  above  the  signatures  was  forged. 
Sturm  V.  Boker,  150  U.  S.  312,  340,  37 
L.  Ed.  1093. 

36.  Burden  of  proving  genuineness  of 
suspicious  instrument. — Smith  v.  United 
States.  2  Wall.  219.  232.  17  L.  Ed.  788; 
United  States  v.  Linn,  1  How.  104,  11 
L.  Ed.  64;  S.  C,  15  Pet.  290,  10  L.  Ed. 
742;  Miller  v.  Stewart,  9  Wheat.  680,  717. 
6    L.    Ed.    189. 

"General  rule  is.  that  where  any  sus- 
picion is  raised  as  to  the  genuineness  of 
an  altered  instrument,  whether  it  be  ap- 
parent upon  inspection,  or  is  made  so  by 
extraneous  evidence,  the  party  producing 
the  instrument  and  claiming  under  it,  is 
bound  to  remove  the  suspicion  by  ac- 
counting for  the  alteration.  Exceptions 
to  the  rule  undoubtedly  arise,  as  where 
the  alteration  is  properly  noted  in  the 
attestation  clause,  or  where  the  altera- 
tion is  against  the  interest  of  the  party 
deriving  title  under  the  instrument." 
Smith  r.  United  States,  2  Wall.  219,  232, 
17    L.    Ed.    788. 

Where  the  alteration  is  apparent  on  the 
face  of  the  instrument,  the  party  offering 
it  in  evidence,  and  claiming  under  it.  is 
bound  to  show  that  the  alteration  was 
made  under  such  circumstances  that  it 
does  not  affect  his  right  to  recover. 
Smith  V.  United  States,  2  Wall.  219.  233. 
17  L.  Ed.  788;  United  States  r.  Linn,  i 
How.    104,    11    L.    Ed.    64;    S.    C,    15    Pet. 


270 


ALTERATION  OF  IXSTRUMEXTS. 


party,  and  it  does  not  appear  upon  the  face  of  the  instrument.^^ 

2.' As  TO  Violation  of  Agreement  as  to  Filling  Blanks. — In  a  suit  by 
the  drawee  upon  negotiable  paper  filled  up  by  authority  by  receiver,  the  burden 
of  proof  that  an  agreement  as  to  filling  up  had  been  violated,  is  on  the  defendant, 
but  if  he  can  make  the  proof  it  will  avail  him.^s 

B.  Questions  of  Law  and  Fact. — The  materiality  of  the  alteration  is  to  be 
decided  by  the  court;  the  question  of  fact  is  for  the  jury .39 

C.  Presumptions. — 1.  As  to  Time  of  Alteration  and  by  Whom  Made. 
. In  the  absence  of  any  proof  on  the  subject,  the  presumption  is  that  the  correc- 
tion or  erasure  was  made  before  the  execution  of  the  deed.^*^  And  the  circum- 
stances mav  be  such  as  to  raise  the  presumption  that  an  altered  instrument  was 


290.  10  L.  Ed.  742.  See  ante,  "Effect  of 
Material  Alteration,"  I,  D. 

Frauds  and  mutilations,  to  which  the 
parties  having  the  custody  of  deeds  are 
privy  cannot  be  taken  too  strongly  against 
them.  Miller  v.  Stewart,  9  Wheat.  680, 
717.  6  L.  Ed.  189. 

Except  where  the  alteration  was  made 
by  a  public  officer  in  the  course  of  offi- 
cial duty,  in  which  case  the  burden  of 
proof  is  on  the  party  alleging  invalidity. 
Oneale  v.  Long,  4  Cranch  60,  2  L.  Ed. 
650.  See  post.  "As  to  .\lteration  in 
Course   of   Official   Duty,"   IV,   C.  2. 

37.  United  States  v.  Linn,  1  How.  104. 
11  L.  Ed.  64;  S.  C,  15  Pet.  290.  10  L. 
Ed.  742.  As  to  deed,  see  ante,  "On  Deed," 
I.   D,   4. 

38.  Violation  of  agreement  as  to  filling 
blanks  must  be  proved. — Davidson  v. 
Lanier,   4  Wall.  447,   448.   18   L.   Ed.   337. 

39.  Materiality  for  court,  fact  of  altera- 
tion for  jury. — Wood  v.  Steele,  6  Wall.  80, 
82,  18  L.  Ed.  725;  Steele  v.  Spencer,  1 
Pet.  552,  560,  7  L.  Ed.  259;  Little  v. 
Herndon.  10  Wall.  26,  19  L.  Ed.  878; 
Vanhorne  7-.  Dorrance,  2  Dall.  304,  305, 
1    L.    Ed.   391. 

Whether  erasures  and  alterations  had 
been  made  in  the  deed  or  not.  was  a 
question  of  fact,  proper  to  be  referred 
to  the  jury;  but  whether  the  erasures  and 
alterations  were  material  or  not,  was  a 
question  of  law  which  ought  to  have  been 
decided  by  the  court.  Steele  v.  Spencer, 
1    Pet.    552,   560,   7   L.    Ed.   259. 

On  an  objection  to  the  admission  of  a 
deed  because  of  an  alleged  erasure  and 
interlineation  apparent  on  its  face,  the 
court  may  properly  admit  the  deed,  leav- 
ing it  to  the  jury  to  determine  whether 
there  was  anv  alteration.  Little  v.  Hern- 
don,   10    Wall.    26,    19    L.    Ed.    878. 

"It  is  the  province  of  the  ]nvy  to  de- 
termine, whether  any  such  alteration  was 
made,  after  the  delivery  of  the  deed." 
Vanhorne  v.  Dorrance,  2  Dall.  304.  305, 
1    L.    Ed.    391. 

The  construction  of  words  belongs  to 
the  court,  and  the  materiality  of  an  al- 
teration in  a  deed,  is  a  question  of  con- 
struction. Steele  v.  Spencer.  1  Pet.  552, 
7    L.    Ed.    259. 

A  commercial  house  sent  to  a  corre- 
spondent eight  bills  of  exchange,  four  pur- 


porting to  be  the  first  and  the  other 
four  the  second  of  exchange,  and  the 
whole  eight  accepted  on  their  face  by 
that  commercial  house,  and  each  of  the 
four  made  paj^able  to  the  order  of  their 
correspondent,  but  in  blank  as  to  the 
names  of  the  drawers,  and  the  address  of 
the  drawees,  and  as  to  date  and  amount 
and  time  and  place  of  payment.  Two  of 
the  four  of  the  second  of  exchange  were 
filled  up,  varying  from  the  others,  not 
only  in  dates  and  amounts,  but  also  as  to 
time  and  place  of  payment.  These  bills 
were  discounted  by  a  bank  without  any 
knowledge  whatever  that  either  had  been 
perfected  and  filled  up  by  the  payee  with- 
out authority,  or  of  the  circumstances 
under  which  they  had  been  intrusted  to 
his  care,  unless  the  words  "second  of 
exchange,  first  unpaid,"  can  be  held  to 
have  that  import.  Held,  that  the  effect 
of  these  words  was  a  question  of  law,  and 
not  of  fact  for  the  jury.  Bank  v.  Neal, 
22    How.   96.   16   L.    Ed.   323. 

Instructions. — See  post,  "Instructions." 
V.  B. 

40.  Presumptively  made  before  execu- 
tion.— Little  7'.  Herndon,  10  Wall.  26,  31, 
19  L.  Ed.  878;  Hanrick  v.  Patrick,  119  U. 
S.  156,  172,  30  L.  Ed.  396;  Contra,  Morris 
r.  Vanderen,  1  Dall.  64,  67.  1  L.  Ed.  38. 

The  presumption  was  that  an  erasure 
was  made  before  the  execution  of  the 
deed.  Hanrick  7'.  Patrick,  119  U.  S.  156, 
172.  30  L.  Ed.  396;  Little  v.  Herndon,  10 
Wall.    26,    19    L.    Ed.    878. 

As  to  the  presumption  which  the  law 
raises  as  to  the  date  of  the  alteration,  the 
authorities  are  not  uniform.  Some  of 
them  hold,  that  where  there  are  no 
particular  circumstances  of  suspicion 
connected  with  the  alteration,  the  pre- 
sumption of  law  is  that  the  alteration  was 
made  contemporaneously  with  the  execu- 
tion of  the  instrument,  giving  as  the  reason 
for  the  conclusion  that  a  deed  cannot  be 
altered  after  its  execution  without  fraud, 
which  is  never  to  be  assumed  without 
proof;  other  authorities  hold  the  pre- 
sumption to  be  the  other  way,  and 
require  an  explanation  of  the  alteration 
before  the  deed  can  be  admitted  in  evi- 
dence. Malarin  7-.  United  States,  1  Wall. 
282.   288,    17   L.    Ed.    594. 

Contra. — But   in   Morris   v.   Vanderen,   1 


ALTERATIOX  OF  IXSTRUMENTS. 


271 


altered  subsequently  to  its  execution,  and,  if  by  design,  by  some  one  who  had  an 
interest  in  destroying  it."'^ 

2.  As  TO  Alteration  in  Course  of  Official  Duty. — An  alteration  made  by 
a  public  ofificer  in  the  course  of  his  official  duty  is  presumed  to  have  been  honestly 
and  properly  made.'*- 

3.  As  TO  Consent  to  Alteration. — Where  an  official  bond,  to  the  United 
States,  conditioned  in  clue  form  for  faithful  discharge  of  duties  committed  to 
officer's  charge,  duly  signed  by  sureties,  had  been  offered  to  the  government  and 
rejected  as  not  bearing  seals  and  was  taken  away  by  the  principal,  and  returned 
with  proper  seals,  the  presumption  is,  in  the  absence  of  direct  evidence,  that  the 
seals  were  attached  with  the  consent  of  the  sureties. •*-^ 

D.  Admissibility. — Parol  evidence  is  admissible  upon  the  question  of  the 
effect  of  an  alteration  or  addition,  either  to  show  that  it  was  made  under  cir- 
cumstances not  warraiting  it  in  law,  to  avoid  it,  or  to  prove  the  alteration  or  ad- 
dition to  have  been  n:ade  by  consent.'*'* 

E.  Weight  and  Sufficiency. — 1.  Lapse  of  Time  and  Acquiescence. — No 
suspicion  on  the  subject  of  alteration  having  been  suggested  for  eighteen  years, 
is  a  circumstance  of  no  little  weight  to  show  that  no  grounds  for  suspicion  ever 
existed.^'' 

2.  LviDENCE  OF  Consent  to  Alteration. — Where  the  evidence  shows  that 
the  alteiation  was  made  without  the  knowledge  of  the  defendant,  and  there  is 
neither  fact  nor  circumstance  in  the  case  from  which  to  infer  any  subsequent 
assent,  althouglfhe  knew  when  he  signed  ihe  bond  that  the  law  required  that  it 
should  be  approved  by  the  dis^'-ict  judge,  his  knowledge  of  the  law  in  that  behalf 
furni-hes  no  ground  of  inference  that  he  authorized  the  alteration,  or  that  he 


Dall.  64.  67,  1  L.  Ed.  38,  it  had  been 
lield,  that  an  interlineation  in  a  deed  is 
not  to  be  presumed  to  have  been  made 
before  its  execution,  but  the  presumption 
is    the    cr  ntrary    unless    otherwise    proved. 

41.  Presumptive  alteration  by  opposing 
interest,  after  execution. — Coulson  t'.  Wal- 
ton. 9   Pet.   62,   79,   9    L.    Ed.    51. 

Where  certain  alterations  have  been 
made  since  the  death  of  the  obligee,  as 
is  satisfactorily  proved,  and  it  is  clear, 
that  no  one  having  any  interest  under  the 
bond  could  have  had  a  motive  to  alter  it, 
as  seems  to  have  been  done,  and  it  is 
proved,  that  after  the  death  of  the  obli- 
gee, the  bond  was  in  possession  of  those 
Avho  claimed  the  land  adversely  to  it.  so 
that  its  destruction  would  have  advanced 
their  interests,  it  is  fair,  therefore,  to  pre- 
sume, that  if  the  alterations  were  made  by 
design,  they  could  not  have  been  made  by 
sign,  they  could  not  have  been  made  by 
anyone  claiming  under  the  bond,  but  must 
have  been  made  by  someone  who  had  an 
interest  in  destroying  it.  Coulson  z\ 
Walton,  9  Pet.  62,  79.  9  L.  Ed.  51.  See 
ante,  "Effect  of  Material  Alteration." 
I.  D. 

42.  Sanction  of  official  duty. — Lea  v. 
Polk  Countv  Cnnper  Co..  21  How.  493, 
16  L.  Ed.  203.  See  ante.  ".\s  to  Forgery 
or    Alteration."    IV,    A,    1. 

43.  Presumptive  consent  to  affixing  seals 
after  execution. — Moses  t'.  United  States, 
166  U.  S.  571.  41  L.  Ed.  1119,  following 
United  States  v.  Linn.  1  How.  104.  11 
L.  Ed.  64.     See   Dair  v.  United  States,  16 


Wall.   1,   21    L.    Ed.   491;   Butler  v.   United 
States.  21   Wall.  272,  22   L.    Ed.   614. 

44.  Parol  evidence  admissible. — Speake 
V.  United  States,  0  Cranch  28,  3  L.  Ed. 
645    (Livingston,    J.,    dissenting). 

"No  change  whatever  in  a  sealed  in- 
strument, after  its  execution,  which  may 
increase  the  liability,  or  be,  in  any  way, 
to  the  prejudice  of  the  party  whose  deed 
is  (and  such  is  the  case  here),  should 
be  palmed  on  him  by  parol  testimony; 
and  so,  vice  versa.  *  *  *  no  alteration 
which  may  be,  in  any  way,  injurious  to 
the  grantee  or  obligee;  should  be  set  up 
by  the  other  party;  but  *  *  *  the  terms 
in  which  the  deed  is  originally  executed 
should  alone  be  binding,  until  alterations 
are  introduced  into  it  by  the  same 
solemnities  which  gave  existence  to  the 
first."  Speake  v.  United  States,  9  Cranch 
28,  37,  3  L.  Ed.  645,  dissenting  opinion  of 
Livingston.    J. 

45.  Rebuttal  by  lapse  of  time  and  ac- 
quiescence.— Malarin  v.  United  States,  1 
Wall.    282,    290,    17    L.    Ed.    594. 

When  a  Mexican  grant  issued  to  the 
claimant  is  alleged  to  have  been  fraudu- 
lently altered  after  it  was  issued  in  the 
designation  of  the  quantity  granted,  a 
lecord  of  judicial  possession,  delivered  to 
the  grantee  soon  after  the  execution  of 
the  grant,  showing  that  the  quantity  of 
which  possession  was  delivered  was  the 
larger  quantity  stated  in  the  grant,  is  en- 
titled to  great  consideration  in  determining 
the  character  of  the  alteration,  particu- 
larly when   there   has   been  a   long  subse- 


272 


ALTERNATIJ^E  WRIT. 


consented  to  be  bound  in  any  other  manner,  or  to  any  greater  extent,  or  under 
any  other  circumstances  than  whaj:  was  expressed  in  the  instrument.*'^ 

V.    Pleading  and  Practice. 

A.  Pleas. — Non  est  factum  is  the  proper  plea  to  set  up  the  razure  of  a  deed.'*''' 
But  the  plaintiff's  knowledge  of,  or  authority  and  direction  for,  the  alteration, 
must  be  alleged  in  the  plea.*^ 

B.  Instruction. — Where  the  instruction  given  refers  the  question  of  ma- 
teriality to  the  jury,  as  well  as  the  fact  of  alteration  and  erasure,  it  is  erroneous.-*^ 

ALTERATION  OF  RECORDS.— See  the  title  Records. 
ALTERNATIVE  JUDGMENT.— See  the  title  Replevin. 
ALTERNATIVE  WRIT.— See  the  title  Mandamus. 


quent  occupation  of  the  premises. 
Malarin  v.  United  States,  1  Wall.  282.  17 
L.    Ed.    594. 

46.  Inference  of  consent  not  authorized 
by  knowledge  of  necessity. — Smith  z'. 
United  States,  2  Wall.  219,  2M,  17  L.  Ed. 
788. 

47.  Razure  set  up  under  non  est 
factum. — Miller  v.  Stewart  (dissenting 
opinion  of  Johnson  and  Todd,  JJ.),  9 
Wheat.    680,    715.    6    L.    Ed.    189. 

Notwithstanding  some  contrariety  to 
dicta,  it  is  now  clearly  settled,  that  a 
razure  must  make  a  deed  void,  or  it  is 
immaterial;  and  therefore,  non  est  fac- 
tum is  held  to  be  the  proper  plea.  Dis- 
senting opinion  of  Johnson  &  Todd,  JJ., 
in  Miller  v.  Stewart,  9  Wheat.  680  715. 
6   L.    Ed.    189. 


48.  Necessary  averment. — United  States 
V.  Linn,  1  How.  104,  11  L.  Ed.  64;  S.  C. 
15  Pet.  290,  10  L.  Ed.  742.  See,  also, 
Moses  V.  United  States,  166  U.  S.  571,  41 
L.  Ed.  1119. 

A  plea  alleging  merely  that  seals  were 
affixed  to  a  bond  without  the  consent  of 
the  defendant,  without  also  alleging  that 
it  was  done  with  knowledge,  or  by  the 
authority  or  direction  of  the  plaintiffs,  is 
not  sufficient.  (McClain,  J.,  dissenting.) 
United  States  v.  Linn.  1  How.  104,  11 
L.  Ed.  64;  S.  C,  15  Pet.  290,  10  L.  Ed. 
742,  cited  in  Moses  v.  United  States,  166 
U.    S.    571.    583,    41    L.    Ed.    1119. 

49.  Instruction  submitting  materiality 
to  jury  erroneous. — Steele  i\  Spencer.  1 
Pet.  552,  560,  7  L.  Ed.  259.  See  ante, 
"Questions    of    Law   and    Fact,"    IV,    B. 


AMBASSADORS  AND  CONSULS. 

BY    J.    N.    CIvAYBROOK. 

I.   Definitions,  274. 
n.   Eligibility,  275. 
III.   Appointment,  276. 

IV.   Evidence  as  to  Representative  Character,  276. 
V,   Privileges  and  Immunities,  276. 

A.  Diplomatic  Representatives,  276. 

1.  Persons  Entitled  to  Privileges  and  Immunities,  276. 

2.  Privileges  from  Arrest,  276. 

a.  Nature  and  Extent  of  Privilege,  276. 

b.  Reasons  for  Privileges,  277 . 

B.  Consuls,  277. 

1.  In  General.  277. 

2.  Consul  Performing  Diplomatic  Duties,  277. 

VI.  Powers,  Duties  and  Liabilities,  277. 

A.  Ambassadors  and  Ministers,  277 . 

B.  Consuls  or  Vice  Consuls,  278. 

1.  Powers,  278. 

a.  In  General,  278. 

b.  Diplomatic  Powers,  278. 

c.  Protection  of  Property  of  Citizens  of  Home  Government.  279. 

d.  Exemption  of  Enemy  Property  from  Capture.  279. 

e.  Trade  or  Business,  279. 

f.  Contracts    in    Conflict    with    Interest    of    Government  Repre- 

sented, 279. 

g.  Authentication  of  Foreign  Laws  or  Judgments,  280. 
h.  Judicial  Powers.  280. 

i.  Arrest  and  Imprisonment  of  Seamen,  280. 

(1)  Right  to  Arrest  Seamen,  280. 

(2)  Mode  of  Making  Arrest,  280. 

(3)  For  What  Length  of  Time  Seamen  May  Be  Held.  280. 
j.  Special   Rules  Applicable  to  Consuls  to  Mohammedan   Coun- 
tries. 280. 

2.  Liabilities.  28L 

a.  Liability  on   Bill  of  Exchange  Drawn  on  Treasury  of  Home 
Government,  281 

b.  Accounting  for  \   -es  Derived  from  Office,  281. 

c.  Liability  for  Interest  on  Funds  on  Deposit,  281. 

VII.  Salary  and  Fees,  281. 

A.  Salary,  281. 

1.  Construction  and  Operation  of  Statutes  in  Regard  to  Salary,  281. 

2.  Salary  of  \  ice  Consuls,  282. 

B.  Fees.  282. 

1.  Right  to  Fees  Derived  from  Office,  282. 

a.  What  Fees  Belong  to  Consul.  282. 

b.  What  Fees  Belong  to  Gevernment,  282. 

2.  Recovery  Back  of  Fees  Paid  to  Government,  283. 

VIII.  Consular  Courts,  283. 

A.  Jurisdiction,  283. 

{27Z) 

1  U  S  Enc-18 


274  AMBASSADORS  AND  CONSULS. 

1.  Jurisdiction  as  Dependent  on  Treaties,  283. 

a.  In  General,  283. 

b.  Construction  and  Operation  of  Particular  Treaties,  283. 

2.  Jurisdiction  over  Offenses  Committed  in  Foreign  Ports,  284. 

3.  Jurisdiction  over   Seamen,  284. 
B.  Trial,  284. 

1.  In  General,  284. 

2.  Rights  of  Accused,  284. 

a.  In  General,  284. 

b.  Indictment  and  Presentment,  284. 

c.  Jury  Trial,  284. 

IX.    Punishment  of  Crimes  against  Foreign  Ministers,  285. 
X.    Termination  of  Office,  285. 
XI.   Jurisdiction  of  Cases  Affecting  Ambassadors  and  Consuls,  285. 

A.  In  General,  285. 

B.  Actions  by  or  against  Ambassadors  and  Ministers,  285. 

1.  Actions  by  Ambassadors  or   Ministers,  285. 

2.  Actions  or  Proceedings  against  Ambassadors  or  Ministers,  285. 

C.  Actions  to  Which  a  Consul  or  Vice  Consul  Is  a  Party,  286. 

1.  United  States  Courts,  286. 

2.  State  Courts,  286. 

CROSS  REFERENCES. 

See  the  titles  Courts  ;    Seamen  ;    Treaties. 

As  to  necessity  of  consent  of  foreign  consul  in  order  to  give  jurisdiction  to 
court  of  admiralty  of  a  suit  between  foreigners,  such  as  disputes  between  seaman 
and  master  of  vessel,  see  the  title  Admiralty^  ante,  p.  119.  Authentication  of 
foreign  judgments  or  proceedings,  see  the  title  Foreign  Judgments,  Records 
AND  Judicial  Proceedings.  Authentication  of  foreign  laws  by  consuls,  see  the 
title  Foreign  Laws.  As  to  suspension  of  statute  of  limitations  as  to  ambassadors 
or  consuls  beyond  the  seas,  see  the  title  Limitation  of  Actions  and  Adverse 
Possession.  Acknowledgment  of  wills  before  consuls  or  vice  consuls,  see  the 
title  Wills. 

I.    Definitions. 

Diplomatic  Officer, — The  term  "diplomatic  officer"  includes  ambassadors, 
envoys  extraordinary,  charges  d'affaires,  agents  and  secretaries  of  legation,  and 
none  others.^ 

Ministers — Public  Minister. — The  word  "minister,"  as  used  in  the  Re- 
vised Statutes,  relating  to  foreign  relations,  is  to  be  understood  to  mean  the  per- 
son invested  with,  and  exercising  the  principal  diplomatic  functions, ^  and  the 
term  "public  ministers"  as  including  ambassadors,  envoys  extraordinary,  ministers 
plenipotentiary,  ministers  resident,  commissioners,  charges  d'affaires,  agents  and 
secretaries  of  legation,  and  none  others. ^ 

Charges  D'Affaires. — Charges  d'affaires  are  persons  orally  invested  with 
the  charge  of  the  embassy  or  legation  by  the  ambassador  or  minister  himself, 
to  be  exercised  during  his  absence  from  the  seat  of  his  mission.  They  are  ac- 
cordingly announced  in  this  character  by  him  before  his  departure  to  the  minister 
of  foreign  affairs  of  the  court  to  which  he  is  accredited.*  Charges  d'affaires  ad 
hoc  are  representatives  originally  sent  and  accredited  by  their  governments,  while 

1.  Meaning  of  "diplomatic  officer." —  3.  Meaning  of  term  "public  minister." 
Rev.  Stat..  §  1674;  Ex  parte  Baiz,  135  U.  —Ex  parte  Baiz.  13.-)  U.  S.  403,  419,  34  L. 
S.    403,    419,    34    L.    Ed.    222.  Ed.    222. 

2.  Meaning   of   "minister." — Rev.    Stat.,  4.  Charges  d'affaires  defined. — Ex  parte 
§   4130;   Ex  parte   Baiz,  135   U.   S.  403.   419,  Baiz,   135   U.   S.    403.   423.   34    L.    Ed.   222. 
34    L.    Ed.    222. 


AMBASSADORS  AND  CONSULS. 


275 


charges  d'affaires  per  interim,  are  agents  substituted  in  the  place  of  the  minister 
during  his  absence.^  Charges  d'affaires  ad  hoc  on  permanent  mission  are  ac- 
credited by  letters  transmitted  to  the  minister  of  foreign  aifairs.  Charges  d'af- 
faires ad  interim  are  presented  as  such  by  the  minister  of  the  first  or  second  class 
when  he  is  about  to  leave  his  position  temporarily  or  permanently.^  In  the 
United  States,  secretaries  of  legation  act  ex  officio  as  charges  d'affaires  ad  in- 
terim, and  in  the  absence  of  the  secretary  of  legation  the  secretary  of  state  may 
designate  any  competent  person  to  act  ad"  interim,  in  which  case  he  is  specifically 
accredited  by  letter  to  the  minister  for  foreign  affairs.' 

Consuls. — A  consul  is  an  officer  commissioned  by  his  government  for  the 
protection  of  its  interests  and  those  of  its  citizens  or  subjects.^ 

Vice  Consuls  and  Vice  Commercial  Agents. — Vice  consuls  and  vice  com- 
mercial agents  are  consular  officers  substituted,  temporarily,  to  fill  the  places  of 
consuls  general,  consuls  or  commercial  agents,  when  they  shall  be  temporarily 
absent  or  relieved  from  duty.^ 

II.   Eligibility. 

Diplomatic  Agents. — In  general,  a  government  will  not  receive  one  of  its 
citizeiis  as  a  diplomatic  agent  of  another  government.'*^  Of  course  the  objection 
would  not  exist  to  the  same  extent  in  the  case  of  designation  for  special  purposes 
or  temporarily,  but  is  on€  purely  for  the  receiving  government  to  insist  upon  or 
waive  at  its  pleasure. ^^ 

Consuls. — A  citizen  of  the  receiving  government  may  be  appointed  consul 
of  a  toreign  government.'-  And  there  is  no  presumption  that  a  person  is  an 
alien  because  he  represents  a  foreign  government  as  consul. '^ 


5.  Charges  d'affaires  ad  hoc  and  ad 
interim. — Ex  parte  Baiz,  135  U.  S.  40.3. 
423,    34    L.    Ed.    222. 

6.  Mode  of  accrediting  charges  d'af- 
faires.— Ex  parte  Baiz.  ]3.t  U.  S.  403.423. 
34    L.    Ed.    222. 

7.  Secretaries  of  legation  ex  of&cio 
charges  d'eiffaires. — Ex  parte  Baiz,  135  U. 
S     403,    42.3.    34    L.    Ed.    222. 

8.  Consul  defined. — Oscanvon  v.  Arms 
Co.,    103    U.    S.    261.    2fi    L.    Ed'    539. 

The  word  "consul"  as  used  in  the  Re- 
vised Statutes,  relating  to  foreign  rela- 
tions, IS  to  be  understood  to  mean  any 
person  invested  by  the  United  States 
■with  and  exercising,  the  functions  of  con- 
sul general,  vice  consul  general,  consul 
<.T  vice  consul.  Ex  parte  Baiz.  135  U.  S. 
403,    420.    34    L.    Ed.    222. 

9.  Vice  consuls  and  vice  commercial 
agents  defined. — Rev.  Stat..  1674;  United 
States  V.  Eaton,  169  U.  S.  331.  336,  42  L. 
Ed.    767. 

And  this  definition  by  congress  of  the 
nature  of  a  vice  consulship  was  not 
changed  by  the  amendment  to  §  4130  of 
the  Revised  Statutes  by  the  act  of  Eeb- 
ruary  1,  1876.  ch.  6.  19  Stat.  2,  as  the 
obvious  purpose  of  that  act  was  simply 
M:  provide  that  where  the  words  "min- 
ister." "consul"  or  "consul  general"  were 
generally  used,  they  should  be  taken  also 
a'  embracing  the  subordinate  nffcers, 
■who  were  to  represent  the  principals  in 
Crise  of  absence.  In  other  words,  that 
"where  a  delegation  of  authoritv  was 
made  to  the  incximbent  of  the  office,  the 
fdCt   that   the   name   of   tlie   principal   alone 


was  mentioned  should  not  be  considered 
as  excluding  the  power  to  exercise  such 
authority  by  the  subordinate  and  tem- 
porary officer,  when  the  lawful  occasion 
for  the  performance  of  the  duty  by  him 
arose.  United  States  r.  Eaton,  169  U. 
S.    331.    336,    42    L.    Ed.    767. 

10.  Citizens  of  home  government  as 
diplomatic  agents  of  foreign  government. 
— Ex  parte  Baiz,  135  U.  S.  403.  428,  34 
L.    Ed.    222. 

"In  many  countries  it  is  a  state  maxim 
that  one  of  its  own  subjects  or  citizens 
is  not  to  be  received  as  a  foreign  diplo- 
matic agent,  and  a  refusal  to  receive, 
based  on  that  objection,  is  always  re- 
garded as  reasonable.  The  e.xpediency  of 
avoiding  a  possible  conflict  between  his 
privilesjes  as  such  and  his  obligations  as 
a  subject  or  citizen,  is  considered  reason 
enough  in  itself."  Ex  parte  Baiz,  135  U. 
S.    403.    427.    34    L.    Ed.    222. 

11.  Citizens  may  act  temporarily  or 
for  special  purposes. — Ex  parte  Baiz,  135 
U.    S.    403.    428,    34    L.    Ed.    222. 

12.  Citizen  may  act  as  consul  for  for- 
eign government. — Bors  v.  Preston,  111 
U.    S.    252.    28    L.    Ed.    419. 

Neither  the  adjudged  cases  nor  the 
practice  of  this  government  prevent  an 
.American  citizen — not  holding  an  office 
of  profit  or  trust  under  the  United  States 
— from  exercising  in  this  country  the  of- 
fice of  consul  of  a  foreign  government. 
Bors  r.  Preston.  Ill  U.  S^  252,  263,  28  L. 
Ed.    419. 

13.  Presumption  as  to  citizenship  of 
consul. — Bors    f.    Preston,    111    U.    S.    252, 


276  AMBASSADORS  AND  CONSULS. 

III.    Appointment. 

A  statute  conferring  authority  upon  the  president  to  appoint  vice  consuls  is 
within  the  power  of  congress, ^"^  and  the  president  may  make  appointments  in 
accordance  with  its  provisions. ^^  And  in  case  of  emergency,  a  vice  consul  may 
be  appointed  by  a  minister  resident  and  consul  general. ^^ 

IV.    Evidence  as  to  Representative  Character. 

The  decision  of  the  executive  in  reference  to  the  public  character  of  a  person 
claiming  to  be  a  foreign  minister,  is  conclusive  upon  the  courts. ^''^  Indeed,  in 
order  to  entitle  a  charge  d'affaires  of  a  foreign  government  to  exemption  from 
arrest,  the  notoriety  of  his  reception  as  such,  by  the  president,  is  sufficient  evi- 
dence of  his  diplomatic  character,  and  no  proof  from  the  department  of  state  is 
necessary.'^  The  refusal  of  the  government  to  allow  a  person  free  entry  of 
goods  imported  for  his  use,  is  entitled  to  weight  as  showing  that  he  was  not  a 
diplomatic  agent  at  the  time  of  the  refusal,  as  this  is  a  privilege  usually  accorded 
to  all  diplomatic  representatives. ^^ 

V.   Privileges  and  Immunities. 

A.  Diplomatic  Representatives — 1.  Pkrsons  Entitled  to  Privileges 
AND  Immunities. — It  is  a  well-settled  ])rinciple  that  the  person  of  a  public 
minister  is  sacred  and  inviolable,  and  whoever  offers  any  violence  to  him,  not 
only  affronts  the  sovereign  he  represents,  but  also  hurts  the  common  safety  and 
well-being  of  nations  and  is  guilty  of  a  crime  against  the  whole  world. ^f*  The 
independence  of  a  minister  extends  to  all  of  his  household, ^i  including  the  secre- 
tary of  the  embassy.^ 

2.  Privilege  from  Arrest — a.  Nature  and  Extent  of  Prknlege. — A  minister 
is  not  amenable  to  the  local  jurisdiction  for  a  crime  committed  during  the  con- 
tinuance of  his  office,  unless  it  be  such  a  crime  as  to  forfeit  the  privileges  an- 
nexed to  his  character. 22     Where  the  office  of  a  charge  d'affaires  is  superseded 

28    L.    Ed.    419.      See,   generally,    the    titles  S.  403.  432,  34   L.   Ed.  322;    Ex  parte   Hitz, 

ALIENS,    ante,    p.    210;    CITIZENSHIP;  111   U.   S.   76(5.   28    L.    Ed.   .592. 
PRESUMPTIONS    AND    BURDEN    OF  18.    Notoriety   of  reception   as  evidence 

PROOF.  of    representative    character. — Dupont     :■. 

14.  Validity   of   act    empowering    presi-  Pichon.   4   Dall.    321.   1    L.    Ed.  851. 

dent     to     appoint     vice     consuls. — United  19.     Refusal   to    allow   free    importation 

States    V.  Eaton,  169  U.  S.  331,  42  L.  Ed.  767.  of    goods    as    evidence    of   want    of   diplo- 

15.  Appointment  of  vice  consuls  by  matic  character. — Ex  parte  Hitz.  Ill  U. 
president. — United     States    r.     Eaton.    169  S.   766.   28   L.    Ed.   592. 

U.   S.   331,   42   L.    Ed.  767.  20.     Privileges    of    ministers    in   general. 

16.  Emergency  appointment  of  vice  — Respublica  v.  DeLona:champs.  1  Dall. 
consul. — The  fact  that  the  minister  resi-  111,  116.  1  L.  Ed.  59.  See.  generally,  the 
dent   and   consul  general  to   Siam  had  ob-  title    ARREST. 

tained     a     leave     of     absence     from     the  21.    Privileges  of  members  of  minister's 

president,  and  was  sick  and  unable  to  dis-  household. — Respublica  v.  DeLongchamps^ 

charge   his  duties,   and   that   the  vice   con-  1    Dall,    111.   116.   1    L.   Ed.   59. 

sul    previously    appointed    had    not    quali-  1.     Privileges    of    secretary   of   embassy. 

fied,   and   was    absent   from    Siam,    created  — Resjniblioa    7'.    DeLongchamps,    1    Dall. 

a  vacancy  within  the  meaning  of  the  con-  111.    116,    1    L.    Ed.    .">9. 

sular    regulations    and    justified    an    emer-  The    secretary   to   the    embassy   has    his 

gency    appointment    of    a    vice    consul    by  commission    from    the    sovereign    himself; 

the   minister   resident   and   consul   general.  he  is  the   most  distinguished   character  in 

United    States    v.    Eaton,    169    U.    S.    331,  the    suit    of    a    public    minister    and    is,    in 

340.   42    L.    Ed.    767.  scime    instances,    considered    as    a    kind    of 

17.  Decision  of  executive  as  to  repre-  public  minister  himself,  and  is  therefore 
sentative  character. — The  court  has  the  entitled  to  the  same  privileges  and  im- 
right  to  accept  the  certificate  of  tjic  state  munities  as  the  minister.  Respublica  v. 
department  that  a  party  is  or  is  not  a  diplo-  DeLongchamps,  1  Dall.  Ill,  116.  1  L. 
matic   representative,  and  as   such   a  privi-  Ed.    59. 

leged    person,    and    cannot     properly      be  22.     Minister  not  amenable  to   local  ju- 

asked   to   proceed   upon    argumentative   or       risdiction. — The    Exchange    r'.    McFaddon, 
collateral   proof.      Ex    parte    Baiz,    135    U.       7   Cranch    116.    136,   3   L.    Ed.   287. 


AMBASSADORS  AND  CONSULS. 


277 


by  the  appointment  of  a  minister,  the  charge  d'affaires  is  privileged  from  arrest 
until  his  return  home,  where  he  is  detained  in  winding  up  his  official  business.^a 

b.  Reasons  for  Prhnlcge. — The  assent  of  the  sovereign  to  the  very  important 
and  extensive  exemptions  from  territorial  juridiction  which  are  admitted  to  at- 
tach to  foreign  ministers,  is  implied  from  the  considerations,  that,  without  such 
exemption,  every  sovereign  would  hazard  his  own  dignity,  by  employing  a  public 
minister  abroad.  His  minister  would  owe  temporary  and  local  allegiance  to  a 
foreign  prince,  and  would  be  less  competent  to  the  objects  of  his  mission.-'* 

B.  Consuls — 1.  In  General.— Consuls  are  subject  to  the  local  law  in  the 
same  manner  with  other  foreign  residents  owing  a  temporary  allegiance  to  the 
state.^5  A  consul  is  subject  to  prosecution  for  violations  of  the  criminal  law  of 
vhe  country  in  which  he  resides. ^^  And  the  fact  that  a  member  of  a  firm  is  a 
United  States  consul  to  a  foreign  country  does  not  exempt  the  firm  from  process 
of  foreign  attachment,  the  other  members  of  the  firm  not  being  entitled  to  an 
exemption.-' 

2.  Consul  Performing  Diplomatic  Duties.— When  a  consul  is  appointed 
charge  d'aft'aires  or  is  invested  with  authority  to  communicate  matters  of  state, 
Avhich  are  usually  entrusted  to  a  diplomatic  representative,  he  has  a  double  po- 
litical capacity  and  though  invested  with  full  diplomatic  powers,  he  does  not 
thereby  obtain  the  diplomatic  privileges  of  a  minister. ^s 

VI.    Powers,  Duties  and  Liabilities. 

A.  Ambassadors  and  Ministers. — A  minister  cannot  bind  his  govern- 
ment by  acts  beyond  the  scope  of  his  employment,  done  without  authority  or  in- 


23.  Continuance  of  privilege  after  ter- 
mination of  office. — Dupont  v.  Pichon,  4 
Dall.  3:21.  1   L.   Ed.  851. 

24.  Reasons  for  privilege. — A  sover- 
eign committing  the  interests  of  his  na- 
tion with  a  foreign  power,  to  the  care  of 
a  person  whom  he  has  selected  for  that 
purpose,  cannot  intend  to  subject  his 
minister  in  any  degree  to  that  power; 
and  therefore,  a  consent  to  receive  him 
implies  a  consent  that  he  shal]  possess 
those  privileges  which  his  principal  in- 
tended he  should  retain — privileges  which 
are  essential  to  the  dignity  of  his 
sovereign,  and  to  the  duties  he  is  bound 
to  perform.  The  Exchange  z'.  IMcFad- 
don,  7  Cranch   116,   139,  3   L.   Ed.   287. 

"Whatever  may  be  the  principle  on 
which  this  immunity  is  established, 
whether  we  consider  him  as  in  the  place 
of  the  sovereign  he  represents,  or  by  a 
political  fiction,  suppose  him  to  be  ex- 
traterritorial, and  therefore,  in  point  of 
law,  not  within  the  jurisdiction  of  the 
sovereign  at  whose  court  he  resides; 
still,  the  immunity  itself  is  granted  by 
the  governing  power  of  the  nation  to 
M'hich  the  minister  is  deputed.  This  fic- 
tion of  exterritoriality  could  not  be 
erected  and  supported  against  the  will  of 
the  sovereign  of  the  territory;  he  is  sup- 
posed to  assent  to  it.  This  consent  is 
not  expressed.  It  is  true,  that  in  some 
countries,  and  in  this,  among  others,  a 
special  law  is  enacted  for  the  case.  But 
the  law  obviously  proceeds  on  the  idea 
of  prescribing  the  punishment  of  an  act 
previously  unlawful,  not  of  granting  to 
a    foreign    minister    a    privilege    which    lie 


would  not  otherwise  possess."  The  Ex- 
change V.  McFaddon,  7  Cranch  116,  138, 
3    L.    Ed.    287. 

25.  Consuls  subject  to  local  laws. — 
Coppell  V.  Hall,  7  Wall.  542,  553,  19  L. 
Ed.  244;  Davis  v.  Packard,  7  Pet.  276,  8 
L.  Ed.  684;  The  Anne,  3  Wheat.  435,  4 
L.  Ed.  428;  United  States  v.  Ravara,  2 
Dall.  297,  1  L.  Ed.  388;  United  States  v. 
Wong  Kin  Ark,  169  U.  S.  649,  42  L.  Ed. 
890. 

26.  Prosecution  of  consul  for  violation 
of  criminal  law. — United  States  v.  Ravara, 
2  Dall.  297,  1  L.  Ed.  388  (sending  threat- 
ening letters) ;  United  States  v.  Wong 
Kin  Ark,  169  U.  S.  649,  42  L.  Ed.  890. 

27.  Foreign  attachment  against  firm 
one  member  of  which  is  consul  to  foreign 
coUntry. — Caldwell  v.  Barclay,  1  Dall.  306, 
1  L.  Ed.  149.  See,  generallv,  the  title 
ATTACHMENT  AND  GARNISH- 
MENT. 

28.  Consul  performing  diplomatic  du- 
ties.— Ex  parte  Baiz,  13.j  U.  S.  403,  424, 
34    L.    Ed.    222. 

The  consul  general  of  Guatemala  and 
Honduras  resident  in  New  York  was  ap- 
pointed as  a  diplomatic  representative  of 
Honduras  in  the  United  States.  The 
secretary  of  state  informed  him  that  he 
could  not  be  accepted  as  the  accredited 
diplomatic  representative  of  a  foreign 
power  because  a  citizen  of  this  country 
could  not  enjoy  so  anomalous  a  position, 
and  informed  him  that  he  was  not  recog- 
nized in  a  diplomatic  character,  and  later 
the  secretary  of  state  refused  to  recog- 
nize him  as  charge  d'affaires  ad  hoc. 
Subsequently,     the      minister      of      Guate- 


278 


AMBASSADORS  AXD  CONSULS. 


structions  from    his    government.-^     A    minister,    or,  in    his    absence,    a    charge 
d'atl'aires,  may  assert  a  claim  for  violation  of  the  territorial  jurisdiction  of  his 

country.'^*^' 

B.  Consuls  or  Vice  Consuls — 1.  Powers — a.  In  Gerwral. — A  consul, 
though  a  public  agent,  is  supposed  to  be  clothed  with  authority  only  for  com- 
mercial purposes.-^  1  It  is  the  duty  of  a  consul  to  take  care  of  American  property, 
either  wrecked  or  belonged  to  deceased  persons,^"  to  aid  his  countrymen  in 
sc'entiric  researches,^^  to  transmit  periodical  advice  on  every  thing  beneficial  to 
trade  or  the  arts.'^^  and  in  all  emergencies  among  strangers,  to  act  as  the  friend 
and  agent  of  commercial  visitors  from  his  own  country. -^-^  The  departmental  in- 
struciions  publiclv  issued  for  the  instruction  and  guidance  of  consuls  are  entitled 
to  the  highest  respect  in  construing  the  statutes  and  treaties  upon  which  their 
powers  depend. -^^ 

b.  Diplomatic  Poxvers. — In  general  a  consul  is  not  considered  as  a  minister, 
or  diplomatic  agent  of  his  sovereign,  intrusted,  by  virtue  of  his  office,  with  au- 
thority to  represent  him  in  his  negotiations  with  foreign  states,  or  to  vindicate 
his  prerogatives.''^  There  is  no  doubt  that  his  sovereign  may  specially  entrust 
him  with  such  authority,  but  only  in  virtue  of  the  right  of  a  government  to 
desigrate  those  who  shall  represent  it  in  the  conduct  of  international  aflFairs;^''^ 
and  by  statute,  a  consular  officer  of  the  United  States  may  exercise  diplomatic 


mala.  Salvador  and  Honduras  addressed 
a  note  to  the  secretary  of  state  advising 
him  of  his  expected  absence  from  the 
country  and  requested  that  the  consul 
general  of  Guatemala  in  New  York 
might  communicate  to  the  secretary  of 
state  "any  matter  whatever  to  the  peace 
of  Central  America  that  should  without 
delay  be  presented  to  the  knowledge  of 
your  excellency."  The  secretary  of  state 
accordingly  informed  the  consul  general 
of  Guateniala  that  he  would  have  pleas- 
ure "in  receiving  any  communications  in 
relation  to  Central  America  of  which  you 
may  be  made  the  channel."  It  was  held, 
that  the  consul  general  of  Guatemala  and 
Honduras  was  not  a  diplomatic  repre- 
sentative during  the  min  "iter's  absence 
and  therefore  was  not  exempt  from  suit 
except  in  the  supreme  court  as  is  the 
case  with  diplomatic  agents.  Ex  parte 
Baiz.  135   U.   S.   403.  34  L.   Ed.  222. 

29.  Government  not  bound  by  ministers 
unauthorized  acts. — Where  the  minister 
of  the  United  States  at  the  court  of  Mad- 
rid, to  the  government  of  Spain,  assured 
that  government  that  a  debt  due  by  it 
to  a  certain  person  in  the  United  States 
would  be  paid  by  the  United  States  if  a 
treaty,  the  ratification  of  which  had  been 
suspended,  was  ratified,  and  which  treaty 
was  afterwards  ratified,  the  assurance  not 
having  been  given  in  pursuance  of  any 
instructions  from  the  president  or  by 
virtue  of  any  authority  from  the  United 
States,  was  held  to  have  been  given  with- 
out authority,  and  was  therefore  void. 
Meade  v.  United  States,  9  Wall.  691,  692, 
19    L.    Ed.    687. 

30.  Claim  by  minister  for  violation  of 
territorial  jurisdiction  of  his  country. — 
The   Anne,   3   Wheat.   435,  4   L.   Ed.   428. 

It  is  admitted,  that  a  claim  by  a  public 
minister,  or,  in  his  absence,  by  a  charge 
d'affaires,    in     behalf     of      his      sovereign. 


would  be  good.  But  in  making  this  ad- 
mission, it  is  not  to  be  understood,  that 
it  can  be  made  in  a  court  of  justice,  with- 
out the  assent  or  sanction  of  the  govern- 
ment in  whose  courts  the  cause  is  de- 
pending. That  is  a  question  of  great  im- 
portance, upon  which  the  supreme  court 
expressly  reserve  their  opinion,  until  the 
point  shall  come  directly  in  judgment. 
The  Anne.  3  Wheat.  435,  446,  4  L.  Ed. 
428. 

31.  Consuls'  authority  generally  con- 
fined to  commercial  purposes. — The 
Anne.  3  Wheat.  435.  4  L.  Ed.  428.  Ex 
parte  Baiz,  135  U.  S.  403,  424,  34  L.  Ed. 
222. 

32.  Duty  to  care  for  American  prop- 
erty.— Harrison  z:  Vose.  9  How.  372,  382, 
13    L.    Ed.    179. 

33.  Duty  to  aid  countrymen  in  scien- 
tific researches. — Harrison  z'.  Vose,  9 
How.    ?,7-2,    382,    13    L.    Ed.    179. 

34.  Transmission  of  advice  as  to  trade 
or  arts. — Harrison  v.  Vose,  9  How.  372. 
382.    13    L.    Ed.    179. 

35.  Duty  to  act  as  friend  and  agent  of 
visiting  countrymen. — Harrison  i'.  Vose. 
9    Hi'W.    372,    382,    13   L.    Ed.    179. 

36.  Effect  of  instructions  as  aiding  in 
determining  nature  and  extent  of  powers. 
— Dainese  v.  Hale,  91  U.  S.  13,  20,  23  L. 
Ed.    190. 

37.  Diplomatic  powers  of  consul. — 
The  Anne,  3  Wheat.  435,  445,  4  L.  Ed. 
428;  Ex  parte  Baiz.  135  U.  S.  403,  424,  34 
L.  Ed.  222;  United  States  v.  Wong  Kin 
Ark.   169  U.   S.   649.  678,  42   L.   Ed.   890. 

38.  May  be  entrusted  with  diplomatic 
powers. — Ex  parte  Baiz,  135  U.  S.  403, 
423,  34  L.  Ed.  222;  Oscanyan  v.  Arms 
Co.,  103  U.  S.  261,  26  L.  Ed.  539;  The 
Anne.  3  Wheat.  43  5,  445.  4  L.  Ed.  428; 
Harrison  r.  Vose,  9  How.  372,  382,  13; 
L.    Ed.    179. 


AMBASSADORS  AXD  CONSULS. 


279 


functions  in  a  country  where  there  is  no  diplomatic  representative,  when  "ex- 
pressl}'  authorized  hy  the  president  to  do  so/'^^ 

c.  Protection  of  Property  of  Citizens  of  Home  Government. — A  consul  has  an 
undoubted  right  to  interpose  claims  for  the  restitution  of  property  belonging  to 
the  subjects  of  his  own  country ,4o  and  a  special  procuration  from  those  for 
whose  benefit  he  acts  is  not  necessary  for  such  purposed  ^  Restitution,  however, 
cannoi  be  decreed  without  proof  of  special  authority.^s  and  of  the  individual 
proprietary  interest.*-  And  it  has  been  held,  that  a  neutral  consul  cannot,  without 
the  s,-ecial  authority  of  his  government,  interpose  a  claim,  on  account  of  the 
violation  of  the  territorial  jurisdiction  of  his  country.^* 

d.  Exemption  of  Enemy  Property  from  Capture. — A  consul  has  no  authority 
by  virtue  of  his  ofiicial  station  to  grant  any  license  or  permit  the  exemption  of 
a  vessel  of  an  enemy  from  capture  and  confiscation.*^  And  a  contract  made  by 
a  consul  of  a  neutral  power,  with  the  citizen  of  a  belligerent  state,  that  he  will 
protect,  with  his  neutral  name,  from  capture  by  the  belligerent,  merchandise 
which  such  citizen  has  in  the  enemy's  lines,  is  against  public  policy  and  void.*'^ 

e.  Trade  or  Business. — A  trading  consul,  in  all  that  concerns  his  trade,  is  liable 
in  the  .'^ame  way  as  a  native  merchant ;  the  character  of  consul  does  not  give 
any  protection  to  that  of  merchant  when  they  are  united  in  the  same  person.*'^ 

f.  Contracts  in  Conflict  zinth  Interest  of  Government  Represented. — While  a 
consu'  is  sometimes  allowed,  in  Christian  countries,  to  engage  in  commercial  pur- 
suits, he  is  so  far  its  public  agent  and  commercial  representative  that  he  is  pre- 
cluded from  undertaking  any  afi^airs  or  assuming  any  position  in  conflict  with 
its  interests  or  its  policy.*^ 


39.  Authority  from  president  to  exer- 
cise diplomatic  functions. — Rev.  Stat.,  § 
1738;  United  States  v.  Eaton.  169  U.  S. 
331.    34.5.    42    L.    Ed.    767. 

40.  Right  to  interpose  claim. — The 
Anne,  3  Wheat.  43.5,  44.5.  4  L.  Ed.  428; 
Ex  parte  Baiz.  133  U.  S.  403.  424,  34  L. 
Ed.  222;  The  Bello  Corrunes,  6  Wheat. 
152?  5  L.  Ed.  229;  Cohens  v.  Virginia,  6 
Wheat.   264,    396,    .5    L.    Ed.    257. 

"Foreign  consuls  frequently  assert,  in 
our  prize  courts,  the  claims  of  their  fel- 
low subjects.  These  suits  are  maintained 
by  them,  as  consuls.  The  appellate 
power  of  this  court  has  been  frequently 
exercised  in  such  cases,  and  has  never 
been  questioned.''  Cohens  v.  Virginia. 
6  Wheat.  264,  397.  5  L.  Ed.   257. 

A  vice  consul,  duly  recognized  by  our 
government,  is  a  competent  party  to  as- 
sert or  defend  the  rights  of  property  of 
the  individuals  of  his  nation,  in  any  court 
having  jurisdiction  of  causes  affected  by 
the  application  of  international  law.  To 
watch  over  the  rights  and  interests  of 
their  subjects,  wherever  the  pursuits  of 
commerce  may  draw  them,  or  the  vicissi- 
tudes of  human  affairs  may  force  them, 
is  the  great  object  for  which  consuls  are 
deputed  by  their  sovereigns;  and  in  a 
country  where  laws  govern,  and  justice 
is  sought  for  in  courts  only,  it  would  be 
a  mockery,  to  preclude  them  from  the 
only  avenue  through  which  th^ir  course 
lies  to  the  end  of  their  mission.  The 
long  and  universal  usage  of  the  courts 
of  the  United  State-,  has  sanctioned  the 
exercise  of  this  right,  and  it  is  impos- 
sible,  that   anv   evil   or   inconvenience    can 


flow  from  it.  Whether  the  powers  of  the 
vice  consul  shall,  in  any  instance,  extend 
to  the  right  to  receive,  in  his  national 
character,  the  proceeds  of  property  li- 
belled and  transferred  into  the  registry 
of  a  court,  is  a  question  resting  on  other 
principles.  In  the  absence  of  specific 
powers  given  him  by  competent  authority, 
such  a  right  would  certainly  not  be  rec- 
.ognized.  Much,  in  this  respect,  must 
ever  depend  upon  the  laws  of  the  coun- 
try from  which,  and  to  which,  he  is 
deputed.  The  Bello  Corrunes.  6  Wheat. 
152,    168.   5    L.    Ed.   229. 

41.  Special  appointment  unnecessary. — 
The  Bello  Corrunes,  6  Wheat.  152,  5  L. 
Ed.    229. 

42.  Special  appointment  necessary  be- 
fore   restitution     can     be      decreed. The 

Bello    Corrunes.    6    Wheat.    152,    5    L.    Ed 
229. 

43.  Proof  of  interest. — The  Antelope,  10 
Wheat.  66,  6   L.   Ed.  268. 

44.  Claim  for  violation  of  territorial 
jurisdiction. — The  Anne,  3  Wheat  435  4 
L.    Ed.    428. 

45.  Exemption  of  enemy  property  from 
capture. — The  Benito  Estenger.  176  U.  S. 
568.    575.    44    L.    Ed.    592. 

46.  Contract  to  protect  property  from 
capture  void.— Coppell  v.  Hall.  7  Wall. 
542.  19  L.  Ed.  244.  See,  generally,  the 
title    ILLEGAL    CONTRACTS. 

47.  Rights  of  trading  consul. — Coppell 
c'.    Hall.   7  Wall.    542,   553.    19   L.    Ed.  244. 

48.  Contracts  in  conflict  with  interests 
of  government. — Oscanvan  z\  Ar..is  C<».. 
103    U.    S.    261.    26    L.    Ed.    539. 

Where  the  consul  general  of  the  Turk- 


280  AMBASSADORS  AXD  COXSULS. 

g.  Authentication  of  Foreign  Laws  or  Judgments. — The  power  of  ambassadors 
and  consuls  with  respect  to  the  certification  of  foreign  laws  and  judgments  are 
treated  elsewhere  in  this  work.*^ 

h.  Judicial  Poivcrs. — See  post.  "Consular  Courts,"  MI. 

i.  Arrest  and  Imp^risonment  of  Seamen. —  (1)  Right  to  Arrest  Seaman. — By 
virtue  of  treaties,  consuls,  in  some  cases,  have  authority  to  cause  the  arrest  of 
seamen  of  the  country  which  they  represent  for  the  purpose  of  securing  them 
during  the  time  and  under  the  circumstances  provided  for  in  the  treaty,  as  con- 
cerning the  internal  order  and  discipline  of  the  vessel.^ ^  The  enforcement  of 
such  treaties  has  been  held  not  in  conflict  with  state  constitutions,  the  detention 
being  temporary  and  not  pursuant  to  a  conviction  for  a  crime. '^ 

(2)  Mode  of  Making  Arrest. — The  proper  mode  of  proceeding  by  a  consul 
general  to  arrest  seaman  under  a  treaty  giving  him  such  right,  is  by  requisition 
presented  to  the  district  court  or  judge,  the  arrest  to  be  made  by  the  marshal, 
but  if  the  arrest  is  made  by  an  unauthorized  person,  such  as  a  city  chief  of  police, 
the  seaman  may  nevertheless  be  held  by  the  district  court,  where,  upon  habeas 
corpus  brought  in  that  court,  it  appears  that  he  is  within  the  terras  of  the  treaty, 
and  the  fact  that  the  arrest  was  irregular  does  not  entitle  the  seaman  to  be  dis- 
charged.^-^ 

(3)  for  What  Length  of  Time  Seaman  May  Be  Held. — Where  a  seaman  has 
been  arrested  at  the  request  of  a  consul  under  the  treaty  with  France  of  1853  he 
may  be  held  for  sixty  days  under  Revised  Statutes,  §  4081,  and  is  not  entitled  to 
his  discharge  aga'nst  the  protest  of  the  consul  merely  becaMse  the  ship  upon  which 
he  was  serving  has  left  the  port.'^* 

j.  Special  Rules  Applicable  to  Co^isuls  to  Moliammedaii  Countries. — Consuls 
to  Mohammedan  countries  are  usually  clothed  with  greater  powers  and  charged 
with  greater  duties  than  ihose  to  Christ"an  states.  Consuls  to  Mohammedan 
countries  are  sometimes  clothed  with  diplon-'atic  ard  even  with  judicial  powers; 
they  ;ire  restricted  to  the  duties  of  ihe'r  ofPces,  are  pa-'d  a  stated  salary,  and  pro- 
hibited from  entering  into  commercial  transactions."'^ 

ish  p:overnment  contracted  with  the  mnnu-  hut  is  simply  a-  temporary  detention  of 
facturers  of  firearms  to  use  his  influence  a  sailor,  whose  contract  of  service  is- an 
in  procuring  his  government  to  purchase  exceptional  one  (Robertson  7>.  Baldwin, 
arms  from  the  latter,  the  consul  to  re-  16.5  U.  S.  275,  41  L.  Ed.  715),  for  the  pur- 
ceive  10  per  cent,  of  the  amount  of  the  pose  of  securing  his  person  during  the 
sales  as  commission,  it  was  held  that  the  time  and  under  the  circumstances  pro- 
contract  was  void  and  that  there  could  vided  for  in  the  treaty,  as  concerning  the 
be  no  recovery  upon  the  contract.  Os-  internal  order  and  discipline  of  the  ves- 
canyan  7'.  Arms  Co.,  103  U.  S.  261,  26  L.  sel,  and  where  a  chief  of  police  volun- 
Ed.'  530.  See  the  title  ILLEGAL  CON-  tarily  performs  the  request  of  tlie  con- 
TP '\CTS.  sul  as  contained  in  a  written  requisition, 
49.  Authentication  of  foreign  laws  the  arrest  is  not  illegal  so  far  as  this 
and  judgements. — As  to  authentication  of  ground  is  concerned.  Dallemancjne  z'. 
foretVn  laws,  see  the  title  FOREIGN  Moisan,  197  U.  S.  169,  174,  49  L.  Kd.  709. 
LAWS.  As  to  authentication  of  foreian  See.  generally,  the  title  COXSTITU- 
judgments.      see      the      title      FOREIGN  TIONAL    LAW. 

JUDGMENTS.   RECORDS   AND  JUDI-  53.     Mode     of     making     arrest.— Dalle- 

CIAL  PROCEEDINGS.  mangne   r.    Moisan.   197    U.    S.   169.    49   L. 

51.  Right  to  arrest  of  seaman. — Dalle-  Ed.  709.  construing  the  treaty  with 
mangne  7'.  Moisan,  197  U.  S.  169,  174,  49  France  of  1853.  and  holding  that' the  act 
L-  Ed.  709.  See  post,  "Jurisdiction  over  of  congress  of  June  11,  1864,  13  Stat.  121, 
Seamen,"  VTII.  A.  3.  And  see  the  titles  furnishes  the  only  means  for  the  execu- 
SE.AMFN;    TRE.\TIES.  tion   of  treaties   entered   into   with   foreign 

52.  Enforcement  not  contrary  to   state  governments. 

constitution. — The   execution   of  the  treaty  54.     For    what    length    of    time    seaman 

of    1853    between    the    United    States    and  may    be    held. — Dallemangne    v.     Moisan, 

France    providing    for    the    arrest    of    sea-  197   U.    S.    169,    174,    49   L.    Ed.   709. 

men   on   requisition  of  the   French   consul,  55.      Consuls     to     Mohammedan     coun- 

does    not    violate    any     provision     of      the  tries. — Mahoney     r.     United      States,      10 

California    constitution;   the   imprisonment  Wall.    62.    66.    19    L.    Ed.    864;    Dainese   v. 

is   not   pursuant   to   a   conviction   of  crime  Hale.  91  U.  S.  13,  15,  23  L.  Ed.  190;  Ross 


JMBASS.WORS  .-JAVJ  COXSULS. 


281 


2.  Liabilities — a.  Liability  on  Bill  of  E.vcliange  Drazvn  on  Treasury  of  Home 
Government. — When  credit  is  given  on  the  strengih  of  a  bill  of  exchange  drawn 
by  a  toreign  consul,  as  upon  an  official  engagement,  the  consul  is  not  liable 
thereon  personally.-^*^ 

b.  Accounting  for  Fees  Derived  frofn  Office. — See  post,  "Fees,"  VII.  B. 

c.  Liability  for  Interest  on  Funds  on  Deposit.— Where  the  consul  deposits  the 
money  of  the  United  States,  the  government  is  entitled  to  the  interest  which  he 
receives  on  his  cleposit.  He  is  not  required  to  put  the  money  out  at  interest,  but 
if  he  does,  the  money  goes  to  the  government. ^^ 

VII.    Salary  and  Fees. 

A.  Salary — 1.  Construction  and  Operation  of  Statutes  in  Regard 
TO  Salary. — Where  a  statute  provides  that  the  salary  of  ministers  shall  be  a  cer- 
tain sum,  unless  otherwise  prescribed  by  law,  and  a  new  office  of  minister  is  created 
by  an  act  making  no  reference  to  salary,  but  the  appropriation  act  provides  for  a  less 
sum  than  that  provided  by  the  general  statute,  the  amount  fixed  by  the  appropria- 
tion act  will  control. -"^^  A  statute  fixing  the  annual  salary  of  a  consul  at  a  named 
sum,  without  limitation  as  to  time,  should  not  be  deemed  abrogated  or  suspended 
by  subsequent  enactments  which  merely  appropriated  a  less  amount  for  the 
services  of  that  officer  for  particular  fiscal  years,  and  which  contained  no  words 
that  expressly,  or  by  clear  implication,  modified  or  repealed  the  previous  law.^*^ 
But  an  appropriation  act  transferring  a  consulate  from  one  class  to  another, 
the  class  to  which  it  is  transferred  being  a  lower  one  with  respect  to  the  salary 
to  which  the  consul  receives,  repeals  the  act  which  originally  placed  the  con- 
sulate in  the  higher  class.^^  And  a  statute  fixing  the  salary  of  a  consul  and 
treating  him  as  a  consul  to  a  Mohammedan  country,  becomes  inoperative  upon  the 
acquisition  of  such  country  by  a  Christian  state.^^ 


V.  Mclntyre,  140  U.  S.  453,  35  L.  Ed.  581. 
See  post,   "Consular   Courts,"   VIII. 

■■.\  great  distinction  has  always  been 
made  between  consuls  to  Mohammedan 
and  consuls  to  Christian  countries,  both 
in  the  powers  intrusted  to  them  and  in 
the  duties  with  which  they  are  charged. 
The  full  reciprocity  which,  by  the  general 
rule  of  international  law.  prevails  be- 
tween Christian  states  in  the  exercise  of 
jurisdiction  over  the  subjects  or  citizens 
of  each  other  in  their  respective  terri- 
tories, is  not  admitted  between  a  Chris- 
tian state  and  a  Mohammedan  state  in 
the  same  circumstances;  and  in  our 
treaties  with  Mohammedan  powers,  ex- 
press stipulations  are  made  for  the  en- 
joyment by  our  citizens  of  certain  ex- 
territorial rights  with  respect  to  their 
persons  and  propert3\"  Mahoney  v. 
United    States,  10  Wall.  62,  66.  19  L.  Ed.  864. 

56.  Liability  on  bill  drawn  on  home 
government. — Jones  z\  LeTombe,  3  Dall. 
384,    1    L.    Ed.    647. 

58.  Liability  for  interest  on  fund  on 
deposit. — United  States  z:  Mosby,  133  U. 
S.  273,  33  L.  Ed.  625.  See,  generally,  the 
title  INTEREST. 

59.  Amount  of  salary  governed  by  ap- 
propriation act. — The  act  of  March  3, 
1875,  ch.  153  (18  Stat.  483),  amending  § 
1675  of  the  Revised  Statutes,  provided 
that  the  salary  of  an  envoy  extraordinary 
and  minister  plenipotentiary  was  to  be 
$10,000  "unless  where  a  different  com- 
pensation is  prescribed  bj^  law."     On  July 


13,  1882.  the  minister  and  resident  con- 
sul general  of  the  United  States  to 
Turkey  at  a  salary  of  $7,500  a  year  was 
appointed  envoy  extraordinary  and  min- 
ister plenipotentiary,  and  by  the  diplo- 
matic appropriation  bills  of  1882,  1883, 
1884,  $7,500  was  appropriated  as  salary 
for  envoy  extraordinary  and  minister 
plenipotentiary  to  Turkey.  It  was  held, 
that  as  the  ofifice  of  envoy  extraordinary 
and  minister  plenipotentiary  to  Turkey 
had  not  existed  before  the  appointment 
of  the  minister  and  resident  consul  gen- 
eral to  that  position  on  July  13,  1882.  and 
as  the  appropriation  acts  in  regard  to 
that  office  provided  for  a  salary  of  $7,500, 
the  envoy  extraordinary  and  minister 
plenipotentiary  was  not  entitled  to  re- 
ceive more  than  $7,500.  Wallace  v. 
United  States,  133  U.  S.  180,  33  L.  Ed. 
571,  distinguishing  United  States  v. 
Langston,   118  U.   S.   389,   30    L.    Ed.   164. 

60.  Appropriation  acts  as  repealing 
general  statutes  governing  salary. — 
Mathews  v.  United  States,  123  U.  S.  182, 
185,  31  L.  Ed.  127;  United  States  v. 
Langston.   118  U.   S.   389,  30   L.    Ed.   164. 

61.  Appropriation  acts  changing  grade 
of  consulate  as  repealing  general  law. — 
Mathews  v.  United  States,  123  U.  S.  182, 
31  L.  Ed.  127.  distinguishing  United 
States  v.  Langston,  118  U.  S.  389,  30  L. 
Ed.    164. 

62.  Abrogation  of  statute  by  acquisi- 
tion of  Mohammedan  country  by  Chris- 
tian   state. — The    provision    of    the    act    of 


282 


AMBASSADORS  AND  CONSULS. 


2.  Salary  of  Vice  Consuls. — The  president  may  fix  the  compensation  of  vice 
consuls,  to  be  paid  out  of  the  allowance  made  by  law  for  the  regular  consul.^^  !„ 
computing  the  amount  of  salary  to  which  a  temporary  vice  consul  appointed  by  the 
minister  resident  and  consul  general  to  Siam,  is  entitled  out  of  the  salary  of  the 
minister  resident  and  consul  general,  the  salary  of  the  minister  resident  and  con- 
sul general  should  be  treated  as  indivisible.'^^  And  a  vice  consul  is  entitled  to 
compensation  for  a  period  which  he  served  before  his  bond  was  received  and  ap- 
proved.^^ 

B_  Fees — 1.  Right  to  Fees  Derived  from  Office — a.  What  Fees  Be- 
long to  Consul. — Fees  for  notarial  and  clerical  work,  such  as  recording  instru- 
ments, but  relating  to  private  transactions  for  individuals,  not  requiring  the  use 
of  the  seal  and  title  or  seal  of  office  f^  fees  for  acknowledgments  and  authentica- 
tions of  instruments  rendered  to  persons  who  requested  their  performance  f 
fees  collected  for  shipping  and  discharging  seamen  on  foreign  built  vessels  sail- 
ing on  the  China  coast  under  the  United  States  flag,  the  seamen  not  being  Ameri- 
can citizens  and  the  vessel  not  having  cleared  from  a  port  of  the  United  States  ;^* 
fees  received  for  certificates  of  shipment  of  merchandise  in  transit  through  the 
United  States  to  other  countries  ;6^  fees  for  examining  Chinese  emigrants  going 
to  the  United  States  on  foreign  vessels,  voluntarily  paid  to  the  consul  ;"^  and  fees 
for  cattle  disease  certificates,"^  belong  to  the  consul  in  his  own  private  right  and 
are  not  the  property  of  the  United  States. 

b.  What  Fees  Belong  to  Government. — On  the  other  hand,  fees  for  certifying 
invoices  for  free  goods  imported  into  the  United  States," 2  for  certification  of 
shipment  or  extra  invoices,'^  for  certificates  of  extra  copies  of  quadruplicate  in- 
voices of  goods  shipped  to  the  United  States.'^  and  fees  for  administering  upon 
the  estate  of  citizens  of  the  United  States,'^'  belong  to  the  United  States  and  must 
be  accounted  for  by  the  consul. 


congress  of  I\Iay  1st,  1810,  fixing  a  sal- 
ary to  the  consul  at  Algiers  and  assign- 
ing to  him  certain  duties,  treating  that 
place  as  belonging  to  a  Mohammedan 
power,  ceased  to  be  operative  when  the 
country,  of  which  it  was  the  princinal 
city,  became  a  province  of  France.  The 
construction  of  the  secretary  of  state  to 
this  efifect.  impliedlv  sanctioned  bv  the 
act  of  congress  of  March  1st.  18.55,  '"to 
remodel  the  diplomatic  and  consular  sys- 
tems of  the  United  States"  (10  Stat,  at 
Large.  621),  and  exoresslv  sanctioned  by 
the'  act  of  August  18th,  1866,  to  regulate 
those  svstems.  Mahonev  v.  United 
States,  10  Wall.  62.  10  U. '"Ed.  864.  See, 
generally,  the   title   STATUTES. 

63.  Power  of  president  to  fix  salary 
of  vice  consul. — United  States  v.  Eaton. 
169   U.    S.    331.   42    L.    Ed.    767. 

64.  Computation  of  amount  of  salary 
of  vice  consul. — United  States  v.  Eaton, 
169   U.    S.    3.31.   42    L.    Ed.    767. 

65.  Compensation  for  service  before 
giving  bond. — United  States  v.  Eaton,  169 
U.    S.    331.    42    L.    Ed,    767. 

66.  Notarial  and  clerical  work. — United 
States  V.  Mosby,  133  U.  S.  273.  33  L.  Ed. 
62.5. 

67.  Acknowledgment  or  authentication 
of  instruments. — United  States  v.  Mosby, 
133   U.   S.  273.   33   L.   Ed.   625. 

68.  Shirning  and  di<=ohar£rine  seamen. 
—United  States  v.  Mosby,  133  U.  S.  273. 
33    L.    Ed.    625. 


invoices  for  free  goods 
United  States.— United 
133  U.   S.  273.  33  L.   Ed. 


69.  Certificate  of  shipment  of  merchan- 
dise through  United  States  to  foreign 
countries. — United  States  v.  Mosbv,  133 
U.   S.  273.  33  L.   Ed.  625. 

70.  Examination  of  emigrants.^United 
States  c'.  Mosby,  133  U.  S.  273,  33  L.  Ed. 
62.'. 

71.  Fees  for  cattle  disease  certificates. 
—United  States  v.  Mosby,  133  U.  S.  273, 
33    L.    Ed.    625. 

72.  Certifying 
imported      into 
States  V.  Mosby. 
625. 

The  question  of  determining  whether 
goods  to  be  shipped  will,  when  imported 
into  the  TTpited  States,  be  free  from  duty 
is  one  which  is  not  left  to  the  determina- 
tion of  the  consul,  often  involving  intri- 
cate points  of  fart  and  of  law,  and  wholly 
coe^nizable  by  the  proper  officers  and 
tribunals  of  the  United  States  appointed 
for  that  purpose.  United  States  v. 
Mosby.    133   U.    S.   273.   33   L.    Ed.   625. 

73.  Certificates  of  ship'-"ent  or  extra 
invoices. — Un'tArl  St.ites  z\  Mosby,  133  U. 
S.    ''73.    33    T,.    Kd.    6'>5. 

7^.  Certificates  cf  extra  copies  of  quad- 
ruflicate  invoices  cf  goods  sh'pned  to 
United  State=. — United  States  v.  Mosby. 
133  U.  S,  '^7n,  rin  L.   Ed.  625, 

76.  Administering  on  estates. — United 
States  V.  Eaton,  169  U.  S.  331,  42  L.  Ed. 
767,  But  ';ee  United  States  <'.  Mosby, 
133  U.  S.  273,  33  L.  Ed.  625.  where  it  was 


AMBASSADORS  AND  CONSULS. 


283 


2.  Recovery  Back  of  Fees  Paid  to  Government. — Where  a  consul  asserts 
his  right  to  fees  in  has  correspondence  with  the  officers  of  the  department  in 
relation  thereto,  and  only  pays  the  money  to  avoid  contest  with  his  superior  of- 
ficers, he  is  not  estopped  to  recover  it  back."  But  in  case  of  a  voluntary  pay- 
ment of  fees  by  the  consul  to  the  government  as  belonging  to  it,  he  is  estopped 
to  subsequently  claim  them  in  his  own  right.' ^ 

VIII.    Consular  Courts. 

A.   Jurisdiction — 1.  Jurisdiction     as     Dependent     on     Treaties a.      In 

General. — Originally  the  consul  was  an  officer  of  large  judicial  as  well  as  com- 
mercial power,  exercising  entire  municipal  authority  over  his  countrymen  in  the 
country  to  which  he  was  accredited.  But  the  changed  circumstances'  of  Europe, 
and  I  he  prevalence  of  civil  order  in  the  several  Christian  states,  have  had  the 
effect  of  greatly  modifying  the  powers  of  the  consular  office;  and  it  may  now 
be  considered  as  generally  true,  that,  for  any  judicial  powers  which  may  be 
vested  in  the  consuls  accredited  to  any  nation,  we  must  look  to  the  express  pro- 
visions of  the  treaties  entered  into  with  that  nation,  and  to  the  laws  of  the 
states  which  the  consuls  represent.'^  Judicial  powers  are  usually  conferred  upon 
consuls  of  Christian  nations  in  Pagan  and  Mahometan  countries,  for  the  decision 
of  controversies  between  their  fellow  citizens  or  subjects  residing  there,  and  for 
the  punishment  of  crimes  committed  by  them.^" 

b.  Construction  and  Operation  of  Particular  Treaties. — The  treaty  between  the 
United  States  and  the  Ottoman  Empire,  concluded  June  5.  1862  (if  not  that  made 
in  1830),  has  the  effect  of  conceding  to  the  United  vStates  the  same  privilege,  in 
respect  to  consular  courts  and  the  civil  and  criminal  jurisdiction  thereof,  which 
are  enjoyed  by  other  Christian  nations ;  and  the  act  of  congress  of  June  22,  1860, 
established  the  necessary  regulations  for  the  exercise  of  such  jurisdiction. ^^  But 
as  this  jurisdiction  is,  in  terms,  only  such  as  is  allowed  by  the  laws  of  Turkey,  or 
its  usages  in  its  intercourse  with  other  Christian  nations,  those  laws  or  usages 
must  be  shown  in  order  to  know  the  precise  extent  of  such  jurisdiction. ^2 


held,  that  fees  for  settling  private  estates 
belonged  to  the  consul. 

77.  Right  to  retain  fees  asserted  at 
time  of  payment. — United  States  v. 
Mosby.  133  U.  S.  273.  33  L.  Ed.  625.  See. 
generally,   the   title   PAYMENT. 

78.  Voluntary  payment  as  estopping 
consul  to  recover  back  fees. — Where 
from  the  commencement  of  his  service 
up  to  the  termination  of  the  office  and 
the  final  settlement  of  his  accounts,  a 
consul  makes  no  claim  for  a  part  of  the 
fees  and  there  is  no  pretense  that  he 
paid  the  fees  to  avoid  controversy  or  that 
he  ever  made  any  objection  or  protest 
against  them  being  charged  to  him  as 
official  fees,  it  is  a  case  of  voluntary  pay- 
ment and  he  cannot  recover  them  back, 
in  a  suit  instituted  three  years  after  his 
retirement.  United  States  z'.  Wilson.  168 
U.  S.  273.  42  L.  Ed.  464.  See,  generally, 
the    title    P.WMEXT. 

79.  Jurisdiction  as  dependent  on  treaties. 
— Dainese  z'.  Hale.  91  U.  S.  13.  15.  23  L. 
Ed.    190. 

The  admiralty  jurisdiction  of  a  French 
consul  was  held  to  be  dependent  en- 
tirely on  stipulations.  Glass  v.  The 
Betsey,   3   Dall.   6.    1    L.    Ed.   485. 

Under  an  old  treaty  with  Erance.  con- 
troversies arising  in  the  United  States 
between    citizens    of     Erance.     and      con- 


troversies arising  in  Erance  between 
citizens  of  the  United  States,  were  to  be 
tried  by  the  respective  consuls  and  vice 
consuls.  Caignet  r.  Pettit.  2  Dall.  234. 
1  L.  Ed.  362;  Villeneuve  v.  Barrion  2 
Dall.  235,  1  L.  Ed.  362.  See,  generallv. 
the    title    TREATIES. 

80.  Judicial  powers  usually  conferred 
on  consuls  to  Mahometan  countries.^ 
Dainese  v.  Hale,  91  U.  S.  13  15  •''3  L 
Ed.    190. 

81.  Treaty  between  United  States  and 
Turkey.— Dainese  v.  Hale,  91  U  S  13 
23    L.    Ed.    190. 

82.  Same — Necessity  of  proof  of  usage 
of  Turkey  with  other  Christian  nations. 
— Dainese  z\  Hale,  91  U.  S.  13.  14  23  L 
Ed.    190. 

The  defendant,  as  consul  general  of 
Egypt,  in  1864  issued  an  attachment 
against  the  goods  of  the  plaintiff,  there 
situate.  The  plaintiff,  and  the  persons 
at  whose  suit  the  attachment  was  issued, 
were  citizens  of  the  United  States,  and 
not  residents  or  sojourners  in  the  Turk- 
ish dominions.  For  this  act  the  plaintiff 
broueht  suit  to  recover  the  value  of  the 
goods  attached.  The  defendant  pleaded 
his  official  character,  and,  as  incident 
thereto,  claimed  jurisdiction  to  entertain 
the  suit  in  which  the  attachment  was  is- 
sued.     Held,   that   the    plea    was    defective 


284  AMBASSADORS  AND  CONSULS. 

2.  Jurisdiction  over  Offenses  Committed  in  Foreign  Ports. — The  juris- 
diction to  try  offenses  committed  on  the  high  seas  in  the  district  where  the  of- 
fender may  be  found,  or  into  which  he  may  be  first  brought,  is  not  exckisive  of 
the  jurisdiction  of  the  consular  tribunal  to  try  a  similar  offense  when  committed 
in  a  port  of  a  foreign  country  in  which  that  tribunal  is  established,  and  the  of- 
fender is  not  taken  to  the  United  States/"*'' 

3.  Jurisdiction  over  Seamen. — American  Consuls  in  China  and  Japan. — 
In  China  and  Japan  the  judicial  authority  of  the  consuls  of  the  United  States 
will  be  considered  as  extending  over  all  persons  du'y  shipped  and  enrolled  upon 
the  articles  of  any  merchant  vessel  of  the  United  States,  whatever  be  the  na- 
tionality of  such  person.  And  all  offenses  which  would  be  justiciable  by  the  con- 
sular courts  of  the  United  S  ates,  where  the  persons  so  offending  are  native  born 
or  naturalized  citizens  of  the  United  States,  employed  in  the  merchant  service 
thereof,  are  equallv  justiciable  by  the  same  consular  courts  in  the  case  of  seamen 
of  foreign  nationality.^* 

Jurisdiction  of  Belgian  Consul  over  Offenses  by  Seamen. — The  Belgian 
consul  has  no  jurisdiction  of  a  homicide  committed  upon  a  Belgian  ship,  by  one  sea- 
man thereof  upon  another,  under  art.  XI  of  the  treaty  of  March  9,  1880,  with  Bel- 
gium, giving  consuls,  etc.,  cognizance  of  differences  between  captains,  officers 
and  crews  on  Belgian  ships,  but  reserving  to  the  local  authorities  jurisditcion 
where  the  disorder  that  has  arisen  is  of  such  a  nature  as  to  disturb  tranquility 
and  public  order  on  shore  or  in  port.^-'' 

B.  Trial — 1.  In  General. — The  jurisdiction  of  the  consular  tribunal  is  to 
be  exercised  and  enforced  according  to  the  laws  of  the  United  States.^*' 

2.  Rights  of  Accused— a.  /;/  General. — In  pursuance  of  the  laws  of  the 
United  States,  the  accused  in  a  prosecution  before  a  consular  tribunal,  must  have 
an  opportunity  of  examining  the  complaint  against  him.  must  be  presented  with 
a  copy  stating  the  offense  he  has  committed,  is  entitled  to  be  confronted  with  the 
witresses  against  him  and  to  cross-examine  them,  and  to  have  the  benefit  of 
counsel.*' 

b.  Indictment  and  Presentment. — In  proceedings  before  consular  tribunals,  a 
presentment  or  indictment  "by  a  grand  jury  is  not  required  under  the  laws  of 
the  United  States,  and  such  laws  are  not  invalid  for  this  reason.^* 

c.  Jury  Trial. — The  laws  of  the  United  States  do  not  give  the  accused  in  a 

for   not   setting   forth   the   laws   or  usages  tion.     It   may  not  be   easy  at  all  times  to 

of  Turkey  upon  which,  by  the  treaty  and  determine    to    which    of   the    two   jurisdic- 

act    of    congress    conferring    the    jurisdic-  tions  a  particular  act  of  disorder  belongs, 

tion,  the  latter  was  made  to  depend,   and  Much, will  undoubtedly  depend  on  the  at- 

which   alone    would   show    its    precise    ex-  tending    circumstances    of    the    particular 

tent,    and    that    it    embraced    the    case    in  case,  but  all  must  concede   that  felonious 

question.      Dainese   v.    Hale,   91    U.    S.    13,  homicide   is   a   subject   for  the  local  juris- 

14.    23    L.    Ed.    190.  diction,  and  that  if  the  proper  authorities 

83.  Oflfenses  in  foreign  ports.— Ross  z;.  are  proceeding  with  the  case  in  a  regu- 
Mclntyre.  140  U.  S.  4.53,  471.  35  L.  Ed.  'ar  way,  the  consul  has  no  right  to  m- 
581_  terfere    to   prevent   it."    Wildenhus'    Case, 

84.  American    consuls    in     China     and  ^20   U.   S.   1.   18.   30   L.   Ed.   .565. 
Japan.— Ross  v.  Mclntvre,   140  U.   S.  453,  Arrest    of    seaman.— See    ante.    "Arrest 
474     35    L.    Ed.    581.  ''"d      Imprisonment      of      Seamen,"      VI, 

*                *           '           '  R      1      i 

85.  Jurisdiction  of  Belgian  consul. —  o/.  'r  •  i  „  j  u  i  r  tt  -4.  j 
wT-AA^Ji.,.,^'  r>^^=  ion  TT  c  i  or,  T  T^ A  86.  Trial  governed  by  laws  of  United 
Wildenhus  Case,  120  U.  b.  1,  30  L.  Ed.  o^  ^  r>  -mt  t  ^  i  .r,  tt  o  .t,t 
eg-  States. — Ross  f.   McTntyre,   140  U.   S.   453, 

"The      principle      which      governs     the  "^^    ^-    ^'^-    ^^^^■ 
whole    matter    is    this:      Disorders     which  87.     Rights    of     accused     in     general.— 

disturb   only   the   peace    of     the      ship      or  Ross    v.    McTntyre,    140    U.    S.    453,    35    L. 

those   on  board   are   to   be   dealt   with   ex-  Ed.    581. 

clusively  by  the  sovereignty  of  the   home  88.     Right    to     indictment     or      present- 

of   the   ship,   but   those   which   disturb   the  ment. —  Ross  v.   McTntyre.   140  U.   S.  453. 

public   peace   mav   be    suppressed,   and,    if  35      L.      Ed.      581.        See,     generally,     the 

need    be,    the    offenders    punished    by    the  title      INDICTMENTS,      I  N  F  O  R  M  A- 

proper    authorities    of    the    local    jurisdic-  TIONS    AND    PRESENTMENTS. 


AMBASSADORS  AND  CONSULS.  285 

prosecution  before  a  consular  tribunal  benefit  of  a  petit  jury,  and  the  validity  of 
laws  conferring  jurisdiction  on  consuls  is  not  affected  by  failure  to  provide  for 
a  jury. 89 

IX.    Punishment  of  Crimes   against  Foreign  Ministers. 

Since  punishments  must  be  certain  and  definite,  a  person  who  has  assaulted 
a  foreign  minister  must  be  sentenced  to  a  punishment  prescribed  by  the  court 
at  the  time,  and  cannot  be  sentenced  to  be  imprisoned  until  the  sovereign  of  the 
foreign  country  declares  the  reparation  satis  factory. ^^ 

X.    Termination  of  Office. 

Consulo  are  approved  and  admitted  by  the  local  sovereign,  and  if  guilty  of 
illegal  or  improper  conduct,  the  exequatur  which  has  been  given  may  be  re- 
voked, and  they  may  be  punished,  or  sent  out  of  the  country,  at  the  option  of 
the  oflFended  government. ^^ 

XI.   Jurisdiction  of  Cases  Affecting  Ambassadors  and  Consuls. 

A.  In  General. — It  is  provided  by  the  constitution  that  the  judicial  power 
of  the  United  States  shall  extend  to  "all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls. "^2  ;\n(j  although  the  constitution  vests  in  the  supreme 
court,  an  original  jurisdiction,  in  cases  affecting  ambassadors,  other  public  min- 
isters and  consuls,  it  does  not  preclude  the  legislature  from  exercising  the  power 
of  vesting  a  concurrent  jurisdiction,  in  such  inferior  courts,  as  might  by  law  be 
established ;  and  the  legislature  has  expressly  declared,  that  the  circuit  court 
shall  have  "exclusive  cognizance  of  all  crimes  and  offenses,  cognizable  under 
the  authority  of  the  United  States. "9'''  A  prosecution  of  a  crime  against  a  for- 
eign minister  is  not  a  case  "affecting  ambassadors,  other  public  ministers  and 
consuls,"  and  the  circuit  court  has  jurisdiction. 9-* 

B.  Actions  by  or  against  Ambassadors  and  Ministers — 1.  Actions 
BY  Ambassadors  or  Ministers. — The  supreme  court  has  original,  but  not  ex- 
clusive, jurisdiction  of  all  suits  brought  by  ambassadors,  or  other  public  minis- 
ters.95 

2.  Actions  or  Proceedings  against  Ambassadors  or  Mimisters. — The  su- 
preme court  has  exclusively  all  such  jurisdiction  of  suits  or  proceedings  against 
ambassadors,  or  other  public  ministers,  or  their  domestics,  or  domestic  servants, 
as  a  court  of  law  can  have  consistently  with  the  law  of  nations. ^^  But  certio- 
rari will  not  lie  in  order  to  take  up  to  the  supreme  court  a  criminal  proceeding 
against  a  person  claiming  to  be  a  diplomatic  representative  of  a  foreign  govern- 

89.  Right  to  jury  trial. — Ross  v.  Mc-  ch.  36,  §  37,  for  infracting  the  law  of  na- 
Intyre,  140  U.  S.  4.t3,  3,5  L.  Ed.  581.  See.  tions.  by  offering  violence  to  the  person 
generally,    the    title    JURY.  of   a    foreip^n    minister,   is    not   a    case    "af- 

90.  Re-publica  7'.  De  Longchamps,  1  fecting  ambassadors,  other  public  minis- 
Dall.   Ill,   1   L.    Ed.    59.  ters   and    consuls,"   within    the    2d    section 

91.  Coppell  V.  Hall.  7  Wall.  542,  553,  of  the  3d  article  of  the  constitution  of 
19   L.    Ed.   244.  the    United     States.        And      the      circuit 

92.  Jurisdiction  of  cases  affecting  am-  courts  have  jurisdiction  of  such  an  of- 
bassadors,  etc. — Ex  parte  Baiz,  135  U.  S.  fense.  under  the  11th  section  of  the  ju- 
403,  417,  34  L.  Ed.  222;  Bors  v.  Preston.  diciarv  act  of  1789.  ch.  20.  United  States 
111  U.  S.  252.  28  L.  Ed.  419;  American  r.  Ortega.  11  Wheat.  467.  6  L.  Ed.  521. 
Ins.  Co.  V.  Canter,  1  Pet.  511,  7  L.  Ed.  95  Jurisdiction  of  action  by  ambassa- 
S42.  See.  generally,  the  titles  COURTS;  jors  or  ministers.— Rev.  Stat..  §  087;  Ex 
JURISDICTION.  parte    Baiz,    135   U.   S.   403.   417,   34   L.    Ed. 

93.  Jurisdiction     of     circuit      court.—       232;    Ex    parte    Hung    Hang,    108    U.    S. 

United   States  v.  Ravara.  2   Ball.   297,  298,       559    07  l    Ed    811 

1   L.   Ed.   388;   Bors  v.   Preston.   Ill   U.   S.  I* "  t     •  j-  *•  r       .^  ■     . 

9«;o    OQ  T     T?J    ^ir>      c       TT   •*  J   c*^  ..  96.    JuHsdiction  of  actions  against  am- 

252,  28   L.   Ed.   419.      See   United    States   f.  ,  ,-1  •    •  *  r>         ol   *     s  cot 

rvrf^rr^     11   wru  „<-    Af-    a   T     TTA    roi  bassaoors  or  ministers. — Rev.  Stat.,  §687; 

Urtega,    11    Wheat.   46<,    6    L.   Ed.   521.  «  .      r>    •       ioc    tt     o     4no     <i-    o<    t 

Qyi      r'--—  •      ^   r       -  •    ■  J.  ^  Ex   parte    Baiz,    135    U.    b.    403.    41/,   34    L. 

94.  Crime  against  foreign  minister  not  t^  ,    ',,..,-,     y^  ^      xj  u  -mo    tt 

a  "case   affecting   ambassadors,"  etc.-An       ?^„f--9/T''   ^H    «ii   ""^  ^' 

indictment   under   the   crimes   act   of    1790.       ^-   ^^'*'   "'   ^-   ^   '         ' 


286 


AMBASSADORS  AND  CONSULS. 


nient  where  it  is  doubtful  whether  the  defendant  is  entitled  to  the  rights  and 
privileges  of  a  diplomatic  agent. ^''  Where,  in  a  proceeding  by  mandamus  or 
prohibition  to  restrain  the  district  court  from  taking  jurisdiction  of  a  proceed- 
ing, because  one  of  the  parties  therein  is  a  diplomatic  representative  of  a  for- 
eign government,  the  petitioner  introduces  evidence  as  to  his  official  character, 
the  burden  of  proof  is  on  the  respondent  to  rebut  such  proof. ^* 

C.  Actions  to  Which  a  Consul  or  Vice  Consul  Is  a  Party — 1.  United 
STATrs  Courts. — While  the  supreme  court  of  the  United  States  has  original 
jurisdiction  of  all  suits  in  which  a  consul  or  vice  consul  is  a  party, ^^  such  juris- 
diction is  not  exclusive,  but  is  concurrent  with  rnat  of  the  district  courts,^  and 
the  circuit  court  of  the  United  States  has  jurisdiction  of  a  suit  by  a  citizen 
against  an  alien,  although  the  latter  is  the  consul  of  a  foreign  government. ^ 

2.  State  Courts. — It  was  formerly  the  rule  that  a  consul  was  exempt  from 
suit  in  a  state  court,^  and  this  privilege  was  not  waived  by  a  failure  to  take  ad- 
vantage of  it  in  the  lower  court  by  plea,  but  might  be  assigned  for  error.*  But 
in  a  later  case  it  was  said,  that  "by  existing  law,  there  is  no  statutory  provision 
which,  in  terms,  makes  the  jurisdiction  of  the  courts  of  the  United  States,  ex- 


97.  Certiorari  where  status  of  party  as 
diplomatic  agent  is  doubtful. — The  de- 
fendant, president  of  a  national  bank, 
was  indicted  for  a  violation  of  §  5209  of 
the  Revised  Statutes.  He  applied  for 
certiorari  to  bring  the  case  to  the  United 
States  supreme  court,  on  the  ground  that 
at  the  time  the  offense  was  committed 
he  was  the  political  agent  of  a  foreign 
government.  It  appeared  that  his  gov- 
ernment had  requested  his  resignation 
before  his  indictment,  and  accepted  it 
subsequently,  and  that  the  government 
of  the  United  States  had  refused  him 
free  entry  of  goods  imported  for  his  use, 
a  privilege  usually  accorded  to  diplo- 
matic agents.  It  was  held,  that,  as  cer- 
tiorari was  a  discretionarj-  remedy,  the 
petition  would  be  dismissed,  and  the  ap- 
plicant left  to  his  remedv  elsewhere.  Ex 
parte  Hitz,  111  U.  S.  766.  '^8  L.  Ed.  592. 
See,    generally,    the    title    CERTIORARI. 

98.  Burden  of  proof  as  to  representa- 
tive character  of  party  to  suit. — 
Ex  parte  ,Baiz,  135  U.  S.  403,  34  L.  Ed. 
222.  See.  generally,  the  title  MAN- 
DAMUS. 

99.  Supreme  court.— Rev.  Stat..  §  687; 
Ex  parte  Baiz,  135  U.  S.  403.  417.  34  L. 
Ed.  222;  Oscanyan  v.  Arms  Co.,  103  U. 
S.  261,  26  L.  Ed.  539.  See,  generally,  the 
titles    COURTS;    JURISDICTION. 

1.  District  court.— Rev.  Stat..  §  563; 
Ex  parte  Baiz.  135  U.  S.  403.  419,  34  L. 
Ed.  222;  Bors  v.  Preston,  111  U.  S.  252, 
257,    28    L.    Ed.    419. 

2.  Circuit  court. — Bors  r.  Preston.  Ill 
U.    S.    252.    :^8    L.    Ed.    419. 

3.  Consul  formerly  exempt  from  suit 
in  state  court. — Davis  t'.  Packard.  7  Pet. 
276,  8  L.  Ed.  648;  Davis  f.  Packard.  8 
Pet.    312,    8    L.    Ed.    957. 

The  record  of  the  proceedings  in  a 
cas*.  brought  up  with  the  writ  of  error 
to  the  court  for  the  correction  of  errors 
of  the  state  of  New  York,  showed,  that 
the  suit  was  commenced  in  the  supreme 
ccKirt  of  the  state  of  New  York,  and  that 


the  plaintiff  in  error,  who  was  consul  gen- 
eral of  tl*e  king  of  Saxony,  did  not  plead 
or  set  up  his  exemption  from  such  suit, 
in  the  supreme  court;  but  on  the  cause 
being  carried  up  to  the  court  for  tl'e 
correction  of  errors,  this  matter  was  a- 
signed  for  error  in  fact;  notwithstanding 
which,  the  court  of  errors  gave  judgmert 
against  the  plaintiff  in  error.  The  court 
of  errors  of  New  York  having  decided 
that  the  character  of  consul  did  not  ex- 
empt the  plaintiff  in  error  from  being 
sued  in  the  state  court,  the  judgment  of 
the  court  of  errors  was  reversed.  Davis 
V.    Packard.   7    Pet.   276,   8   L.    Ed.   684. 

The  action  in  the  supreme  court  of 
New  York  against  the  defendant,  was  on 
a  recojfnizance  of  bail,  and  it  was  con- 
tended, that  this  was  not  an  original  pro- 
ceeding, but  the  continuance  of  a  suit 
rightfully  brought  against  one  who  was 
answerable  to  the  jurisdiction  of  ^he 
court  in  which  it  was  instituted,  and  in 
which  the  plaintiff  in  error  became  spe- 
cial bail  for  the  defendant;  and  therefore, 
the  act  of  congress  did  not  apply  to  the 
case.  Held,  that  the  act  of  congress  be- 
ing general  in  its  terms,  extending  to  all 
suits  against  consuls,  it  applied  to  this 
suit.  Davis  v.  Packard.  7  Pet.  276,  8  L. 
Ed.    684. 

4.  Necessity  of  pleading  privilege. — If 
a  consul,  being  sued  in  a  state  court, 
omits  to  plead  his  privilege  of  exemption 
from  the  suit,  and  afterwards,  on  remov- 
ing the  judgment  of  the  inferior  court  to 
a  higher  court  by  writ  of  error,  claims 
the  privilege,  such  an  omission  is  not  a 
waiver  of  the  privilege.  If  this  were  to 
be  viewed  merely  as  a  personal  privilege, 
there  might  be  grounds  for  such  a  conclu- 
sion, but  it  cannot  be  so  considered;  it 
is  the  privilege  of  the  country  or  govern- 
ment which  the  consul  represents;  this 
is  the  light  in  which  foreign  ministers 
are  considered  by  the  law  of  nations;  and 
our  constitution  and  laws  seem  to  put 
consuls    on    the    same   footing   in    this    re- 


AMBIGUITY. 


287 


elusive  of  the  state  courts  in  suits  against  consuls  or  vice  consuls/'^  and  cer- 
tainly state  courts  have  jurisdiction  of  proceedings  against  a  person  who  has 
been   removed   from  the  office  of  consul  before  the  proceedings  are  instituted.* 

AMBIGUITY. — See  the  titles  Bonds;  Boundaries;  Contracts;  Deeds;  In- 
terpretation AND  Construction;  Mortgages  and  Deeds  of  Trust;  Parol 
Evidence;  Wills. 


spect.  Davis  v.  Packard,  7  Pet.  276.  8  L. 
Ed.  684. 

If  this  privilege  or  exemption  was 
merely  personal,  it  can  hardly  be  sup- 
posed, that  it  would  have  been  thought 
sufficiently  important  to  require  a  spe- 
cial provision  in  the  constitution  and 
laws  of  the  United  States;  higher  con- 
siderations of  public  policy,  doubtless. 
led  to  the  provision;  it  was  deemed  fit 
;md  proper,  that  the  courts  of  the  gov- 
ernment, with  which  rested  the  regula- 
tion of  foreign  intercourse,  should  have 
cognizance  of  suits  against  the  represent- 
s'.ives  of  such  foreign  government.  Davis 
V.   Packard,  7   Pet.   276.   8   L.    Ed.   684. 

5.  Brr-  7'.  "reston,  111  U.  S.  252,  262, 
28    L.    Ed.    4iy. 


6.  Consul  removed  before  institution 
of  proceedings. — The  consul  general  of 
Turkey  was  arrested  by  a  city  magistrate 
for  the  crime  of  embezzlement.  February 
14.  1898,  and  applied  to  the  United  States 
district  court  for  habeas  corpus  on  Feb- 
ruary 18th,  upon  the  ground  that  the  pro- 
ceedings were  unauthorized  because  of 
his  consular  office.  At  the  hearing  on 
March  12th,  the  writ  was  dismissed.  On 
appeal,  it  appeared  that  on  March  19.  the 
state  department  was  notified  that  the 
consul  general  had  been  removed  on  the 
9th  of  that  month.  It  was  held,  that  the 
dismissal  of  the  writ  of  habeas  corpus 
by  the  district  court  was  not  erroneous. 
Tasigi  z'.  Van  de  Carr,  166  U.  S.  391.  41 
L.     Ed.    1045. 


AMENDMENTS. 

BY   S.    BLAIR    FISHER. 

I.    Scope  of  Title,  289. 
n.    Amendment  of  Pleadings  in  Civil  Cases,  290. 

A.  Power  of  Court  to  Allow,  290. 

B.  Time  of  Amendment,  290. 

1.  During  Progress  of  Trial.  290. 

a.  In  Equity,  290. 

( 1 )  In  General.  290. 

(2)  Amendment  of  Bill,  290. 

(3)  Amendment  of  Answer,  292. 

b.  In  Proceedings  at  Law.  292. 

2.  After  Final  Judgment  or  Decree,  293. 

3.  In  Appellate  Court,  293. 

4.  On  Remand,  293. 

C.  In  What  Particulars  Amendable,  293. 

1.  In  Equity,  293. 

a.  In  General,  293. 

b.  Bill,  293. 

(Ij    Proper  Scone  of  Amendments,  293. 

( a )  As  to  ?'arties,  293. 

(b)  To  Remedy  Mistake,  Omission,  or  Uncertainty.  294. 

(c)  To  Put  in  Issue  New  Matter  to  Meet  AiLgatioii^ 
in  Answer.  295. 

(d)  To  Conform  to  Case  Made,  295. 

(e)  Defects  in  Prayer  for  Relief,  296. 

(2)    Amendments  Changing  Case  Made  by  Original  1)111.  -^h. 

c.  Cross  Bill,  297. 

d.  Answer,  298. 

2.  Pleadings  at  Law,  298. 

a.  In  General,  298. 

b.  Effect  of  Practice  Conformity  Act,  298. 

c.  Declaration.  Petition  or  Complaint,  298. 

( 1 )  Proper  Scope  of  Amendments,  298. 

(a)  As  to  Parties,  298. 

(b)  Correction  of  Mistake,  299. 

(c)  Insertion  of  Mateiial  Allegations,  299. 

(d)  To  Conform  to  Facts  Proved,  300. 

(e)  Amendment  of  Demise  in  Ejectment,  300. 

(2)  Amendments  Changing  Substance  of  Original  Claim,  300. 

d.  Answer,  301. 

D.  Procedure  to  Obtain  Amendment,  302. 

1.  Manner  and  Requisites  of  Application,  302. 

a.  Manner,  302. 

b.  Showing  as  to  Grounds    and  Excusing    Oiuission    in    Original 

Pleading,  302. 

2.  Notice,  302. 

3.  Leave  of  Court  to  Amend,  303. 

a.  Necessity.  303. 

b.  Discretion  of  Court  as  to  Allowance  or  Refusal,  303. 
^     c.  Imposition  of  Terms  as  Condition  of  Allowance,  303. 

E.  Manner  of  Amendment.  304. 

(288) 


AMENDMENTS.  289 

F.  Effect  of  Amendment,  304. 

1.  Relation  Back  of  Amendment — Effect  Upon  Running  of  Statute  of 

Limitations,  304. 

a.  General  Rule.  304. 

b.  Amendments  Introducing  New  Cause  of  Action,  304. 

c.  Amendments  Making  New  Parties,  305. 

2.  Effect  upon  Previous   Submission  of  Cause,  305. 

3.  Effect  as  Authorizing  Additional   Pleadings,  305. 

4.  Effect  as  Waiving  Objection  to  Ruling  Sustaining  Demurrer,  306. 

5.  Eft'ect  as  Fixing  Amount  in  Controvi    sy,  306. 

6.  Effect  upon  Right  to  Remove  Cause,  306. 

G.  Objections  to  Amended  Pleadings,  306. 

in.   Amendment  of  Indictments,  Informations  and  Presentments,  307. 

IV.   Amendment  of  Process  and  Return,  307. 
V.   Amendment  of  Verdict,  307. 

VI.   Amendment  of  Judgments,  Orders  and  Decrees,  307. 
VII.   Amendment  of  Appellate  Proceedings,  308. 
VIII.   Amendment  of  Records,  308. 

IX.    Statute  of  Jeofails,  308. 

A.  Origin  and  Purpose,  309. 

B.  Provisions  Stated,  Construed  and  Applied,  309. 

1.  Provisions  Stated,  309. 

2.  Statute  Construed  and  Applied,  310. 

a.  A  Remedial  Statute  and  to  Be  Liberallv  Construed.  310. 

b.  To  What  Defects  Applicable,  310. 

(1)  In  General,  310. 

(2)  As  Dependent  upon  Whether  Defect  One  of  Form  or 

Substance,  311. 

(a)  Defects  of  Form,  311. 

(b)  Defects  in  Substance,  312. 

CROSS  REFERENCES. 

See  the  titles  ABATE;MH^"T,  Revival  and  Survival,  ante,  p.  12;  Admiralty, 
ante,  p.  119;  Affidavits,  ante,  p.  200;  Appfal  and  Error;  Attachment  and 
Garnishment;  Bill  of  Particulars;  Demurrers;  Depositions  and  Inter- 
rogatories; Dismissal,  Discontinuance  and  Nonsuit;  Equity;  Excep- 
tions, Bill  of,  and  Statement  of  Facts  on  Appeal;  Indictments,  Infor- 

M.\TI0NS    AND      PRESENTMENTS;     JUDGMENTS     AND      DECREES;      JuSTICE      OF     THB 

Peace;  Limitation  of  Actions  and  Adverse  Possession;  Mandate  and  Pro- 
ceedings Thereon;  Motions;  New  Trials;  Parties;  Penalties  and  For- 
feitlkes;  Pleading;  Records;  Remittitur;  Removal  of  Causes;  Re- 
pleader; Scire  Facias;  Summons  and  Process;  Variance;  Verdict. 

I.    Scope  of  Title. 

In  diis  title  it  is  intended  to  treat  the  general  principles  of  amendments,  of 
pleadings  and  process  in  civil  cases,  with  applications  thereof,  except  where  the 
amendment  of  some  particular  pleading  or  proceeding  will  be  found  treated  in 
the  specific  title,  as  set  out  in  the  table  of  cross  references  to  this  title,  as.  for 
instance,  amendments  in  attachment  proceedings,  which  will  be  found  treated 
m  ihc  title  Attachment  and  Garnishment;  etc.  The  question  of  amend- 
ments in  admiralty  proceedings  has  already  been  considered  under  the  title 
Admiralty,  ante,  p  119.  No  attempt  will  be  made  to  cover  the  subjects  of 
amendments  of  proceedings  in  criminal  cases,  of  verdicts,  judgments  and  de- 
crees, records,  or  appellate  proceedings.  A  treatment  of  these  matters  will 
be  found  under  the  appropriate  titles  as  indicated  in  the  table  of  cross  refer- 

1  U  s  l^^uc— 19 


290 


AMEXDMEXTS 


ences  at  the  beo"inning  of  this  article.     In  the  last  section  of  this  article,  it  is  at- 
templed  to  treat  generally  the  effect  of  verdict  and  jtidgment  as  ctiring  defects 
of  form,  under  the  statute  of  jeofa'ls.     In  addition  to  the  treatment  of  this  sub 
ject  here  found,  see,  also,  the  titles  Judgments  and  Decrees;  Verdict. 

II.   Amendment  of  Pleadings  in  Civil  Cases. 

A.  Power  of  Court  to  Allow. — Inherent  Power. — It  has  been  held  that  the 
allowance  of  amendments  is  incidental  to  the  exercise  of  all  judicial  power,  and 
is  indispensable  to  the  ends  of  justice. ^ 

Statutory  Authority. — Power  to  amend  pleadings  is  expressly  given  to  the 
federal  courts  by  §  954  of  the  Revised  Statutes. 2 

Jurisdiction. — But  in  order  to  allow  an  amendment,  the  court  must  have  ju- 
risdiction of  the  cause.     An  amendment  presupposes  jurisdiction  of  the  case.^ 

B.  Time  of  Amendment — 1.  During  Progress  of  Trial — a.  In  Equity — 
(1)  In  General. — There  are  cases  in  chancery  where  amendments  are  permitted 
at  any  stage  or  progress  of  the  cause.'*  as,  where  an  essential  party  has  been 
omitted  ;^  but  amendments  which  change  the  character  of  the  bill  or  answer,  so 
as  to  make,  substantially,  a  new  case,  should  rarely,  if  ever,  be  admitted,  after 
the  cause  has  been  set  for  hearing,  much  less  after  it  has  been  heard.^' 

(2)  Amendment  of  Bill. — After  Demurrer  Sustained. — Formerly,  upon  the 
allowance  of  a  demurrer  to  the  whole  bill,  the  bill  was  out  of  court,  and  no 
subsequent  proceedings  could  be  taken  in  the  cause.'  Under  the  rules  of  eq- 
uity practice  established  by  the  supreme  court,  while  the  complainant  is  not 
entitled,  as  a  matter  of  right,  to  amend  his  bill  after  a  demurrer  thereto  has  been 
sustained,  yet  the  court  may.  in  its  discretion,  grant  him  leave  to  do  so  upon 
such   terms  as  it   shall   deem   reasonable.^ 

Upon  Coming-  in  of  Answer. — Under  the  rules  of  equity  practice,  upon  the 


1.  Inherent  power. — Tihon  v.  Cofield, 
Orj  U.  S.  163.  23  L.  Ed.  858;  Bank  f.  Sher- 
man,   101    U.    S.    403,    25    L.    Ed.    866. 

"The  power  of  the  court  to  amend 
where  there  is  anything  on  the  record 
to  amend  by,  is  undoubted."  Randolph 
V.  Barrett,  16  Pet.   138,  10  L.   Ed.  914. 

"That  the  court  has  the  power  and  can, 
upon  hearing  the  cause,  if  unable  to  do 
complete  justice  by  reason  of  defective 
pleadings,  permit  amendments,  both  of 
bills  and  answers,  is  sustained  by  the  au- 
thorities." Neale  v.  Neales.  9  Wall.  1. 
19   L.    Ed.    590. 

2.  Statutory  authority. — The  final 
clause  of  this  section  declares  that  "such 
courts  may  at  any  time  permit  either  of 
the  parties  to  amend  any  defect  in  the 
process  or  pleadings,  upon  such  condi- 
tions as  it  shall,  in  its  discretion  and  bj- 
its  rules  prescribe."  Gagnon  %•.  United 
States.  193  U.  S.  451,  48  L.  Ed.  745. 

Judiciary  act. — "The  provision  by  con- 
gress in  relation  to  amendments  is  to  be 
found  in  the  32d  section  of  the  judiciary 
act  of  September  24th.  1789.  and  is  simi- 
lar to  that  in  the  32  Henry  VIII,  but 
certainly  not  broader."  Garland  v.  Davis, 
4    How.    131,    11    L.    Ed.    907. 

For  the  full  text  of  this  section  and 
citation  of  cases  decided  under  and  ao- 
plying  §  954,  see  post,  "Provisions  Stated," 
IX,    B,    1. 

Generally,  as  to  discretion  of  court  as 
to    granting   or   refusing    leave    to   amend, 


see   post.   "Discretion    of   Court   as   to   Al- 
lowance  or    Refusal,"    II,    D,   3,   b. 

3.  Jurisdiction. — Hodge  v.  Williams,  32 
How.    87,    88,    16    L.    Ed.    237. 

4.  At  any  state  of  cause. — Walden  v. 
Bodlev.  14  Pet.  156,  10  L.  Ed.  398;  Snead 
V.    McC'-ull.   12    How.    407,   13    L.    Ed.  1043. 

5.  Walden  v.  Bodley,  14  Pet.  156,  10 
L.  Ed.  398.  See  post.  "Proper  Scope  of 
.Amendments."    TI,    C.    1.   b,    (l). 

6.  Amendments  changing  character  of 
pleadings  after  cause  set  for  hearing. — 
See  post,  "Amendments  Changing  Case 
Made  by  Original  Bill,"  II,  C.  l,b,  (2); 
"Answer."    IT.    C.    1.    d. 

7.  After  demurrer  sustained. — National 
Bank  v.  Carpenter.  101  U.  S.  567.  25  L. 
Ed.    815. 

8.  Under  present  rules  of  equity  prac- 
tice.— National  Bank  v.  Carpenter.  101  U. 
S.  567.  25  L.  Ed.  815;  United  States  v. 
Atherton,   102   U.   S.   372.   26  L.    Ed.   213. 

Rule  29  of  equity  practice  inapplicable. 
— In  National  Bank  7'.  Carpenter,  101  U. 
S.  567.  25  L.  Ed.  815,  the  complainant 
asked  leave  to  amend  after  demurrer  to 
his  bill  was  sustained.  Leave  was  re- 
fused and  the  bill  was  dismissed.  On 
appeal  to  the  supreme  court  it  was  in- 
sisted that  the  complainant  was  entitled 
of  ri.ght  to  amend,  under  the  29th  rule  of 
equity  practice  established  by  the  su- 
preme court.  It  was  held,  however,  that 
this  rule  had  no  application  and  did  not 
af¥ect  the  case,  as  such   rule  applies   only, 


AMES'DMEXTS. 


291 


coming  in  of  defendant's  answer,  the  plaintiff  may,  upon  motion,  without  no- 
tice to  the  defendant,  have  leave  to  amend  his  bill,  with  or  without  pavment 
of  co^ts.  as  the  court  may  direct.^ 

After  Replication  Filed.— After  replication  has  been  filed,  the  plaintiff  will 
not  be  permitted  to  withdraw  it  and  to  amend  his  bill  except  upon  compliance 
with  the  conditions  imposed  by  the  29th  rule  of  equity  practice. ^^' 

Upon  and  after  Hearing.— In  a  federal  tribunal  the  matter  of  amendment  of 
the  bill  upon  the  hearing  rests  in  the  sound  discretion  of  the  court.  At  an 
earlier  stage  of  the  cause,  this  discretion  is  controlled  by  the  rules  of  equity  prac- 
tice adopted  by  the  supreme  court,  but  not  so  upon  the  hearing,  for  there  is 
no  rule  on  the  subject  of  amendments  applicable  to  the  cause  which  has  ad- 
va'-ced  to  this  point^^  An  amendment  which  changes  the  character  of  the  bill 
ought  not  generally  to  be  allowed  after  the  case  has  been  set  for  a  hearing,  and 
still  less  after  it  has  been  heard. ^2  fhe  reason  is  that  the  answer  may  become 
inappucable  if  such  an  amendment  be  permitted.'-^     Such  amendments  mav,  how- 


where  leave  is  asked  before  a  demurrer 
i?    allowed. 

Order  not  reviewable  in  absence  of 
showing  as  to  proposed  amendment. — 
The  order  refusing  ~uch  leave  cannot  be 
reviewed  in  the  supreme  court,  if  the 
record  does  not  show  what  amendment 
the  complainant  desired  to  make.  Na- 
tional Bank  t.  Carpenter.  10]  U.  S.  567, 
25    L.    Ed.    815. 

In  United  States  r.  Atherton,  102  U. 
S.  372.  26  L.  Ed.  213,  after  the  court  had 
sustained  a  demurrer  to  the  bill,  the  com- 
plainant asked  leave  to  amend;  which 
was  refused  on  the  grounds  that  no 
amendment  could  be  made  which  would 
justify  the  relief  prayed.  On  appeal,  the 
court  said:  "The  right  to  amend  after  a 
demurrer  has  been  sustained  must  rest 
largely,  if  not  wholly,  in  the  discretion  of 
the  court;  and  whil-e  we  are  not  prepared 
to  hold  that  in  no  case  will  its  action  in 
the  matter  be  reviewed  here,  we  have  no 
hesitation  in  saying  that  the  abuse  of  this 
discretion  must  be  made  plain  to  au- 
thorize us  to  do  so.  Tn  the  case  before 
us,  there  is  no  suggestion  of  the  nature 
of  the  amendment  proposed  to  be  made. 
No  amendment  was  offered  for  the  con- 
sideration of  th«  court,  nor  do  we  know 
in  what  particulars  the  parties  desired  to 
amend.  We  have  no  foundation,  there- 
fore, on  which  to  affirm  that  the  court 
*rred    in    refusing    the    request." 

9.  Upon  coming  rn  of  answer. — Re 
Sanford.  etc..  Co..  160  U.  S.  247.  40  L. 
Ed.    414.    citing    Equity    Rules    29.    45. 

10.  After  replication  filed. — By  the  29th 
rule  of  equity  practice  it  is  provided  that 
^'after  replication  filed,  the  plaintiff  shall 
not  be  permitted  to  withdraw  it.  and  to 
Pniend  his  bill  except  upon  a  special  or- 
der of  a  judge  of  the  court,  upon  motion 
or  petition,  after  due  notice  to  the  other 
party,  and  upon  proof  by  affidavit  that 
the  same  is  not  made  for  the  purpose  of 
vexation  or  delay,  or  that  the  matter  of 
the  proposed  amendment  is  material,  and 
could  not  with  reasonable  diligence  have 
been   sooner   introduced   into   the    bill,  and 


upon  the  plaintiff  submitting  to  such  other 
terms  as  may  be  imposed  by  the  judge 
for  speeding  the  cause."  Washington 
Railroad  v.  Bradleys,  10  Wall.  299.  19  L. 
Ed.    894. 

11.  Amendment  on  hearing  purely  dis- 
cretionary.—Xeale  V.  Neales.  9  Wall  1, 
19    L.    Ed.    590. 

12.  Amendment  changing  character  of 
bill.— The  Tremolo  Patent.  2.T  Wall.  518, 
23  L.  Ed.  97;  Walden  r.  Bodlev,  14  Pet. 
156,  10  L.  Ed.  398:  Snead  f.  McCoull.  12 
How.    407,    13    L.    Ed.    1043. 

In  Snead  v.  McCoull.  12  How.  407,  13 
L.  Ed.  1043.  after  the  cause  had  been 
heard  in  arguilient  and  taken  under  ad- 
visement by  the  circuit  court,  the  plain- 
tiff petitioned  that  court  to  permit  him 
to  file  a  further  bill,  by  way  of  amend- 
ment and  supplement  to  the  original  bill 
and  bill  of  revivor  previously  filed  in  the 
cause.  After  being  heard  by  counsel 
upon  his  petition,  the  court  refused  to 
grant  the  prayer  thereof,  on  the  grounds 
that  the  application  was  made  at  too  late 
a  period,  and  that  the  changes  proposed 
by  the  plaintiff  in  the  character  of  the 
cause  would  have  been  in  reality  the  pre- 
senting of  an  entirely  new  case,  rather 
than  an  amendment  of  the  original  bill. 
The  supreme  court,  in  affirming  the  judg- 
ment of  the  circuit  court,  said:  "This 
refusal  of  the  circuit  court  we  hold  to 
have  been  sound  in  principle;  and  it  is 
sustained  by  the  express  language  and 
authority  of  this  court,  in  the  case  of 
Walden  ?■.  Bodley,  which  declares  that, 
although  'there  are  cases  where  amend- 
ments may  be  permitted  at  any  stage  of 
the  proceedin.gs  in  the  cause,  as  where 
an  essential  party  has  been  omitted; 
yet  amendments  which  change  the  char- 
acter of  the  bill  or  answer,  so  as  to  make 
substantially  a  new  case,  should  rarely, 
if  ever,  be  admitted  after  the  cause  is  set 
for  hearin.g,  much  less  after  it  has  been 
heard."      Vid.    14   Pet.    156,   10   L.    Ed.    398." 

13.  Reason  for  rule. — The  Tremolo 
Patent.    23   Wall.   518,   23    L.    Ed.   97. 


292 


AMENDMENTS. 


ever,  it  would  seem,  be  allowed  where  the  peculiar  circumstances  of  the  ca>e 
justif}    it.!-* 

(3)  Amendinent  of  Answer. — In  General. — Error  carj  scarcely  be  imputed  to> 
a  court  for  refusing  to  allow  an  amendment  or  supplement  to  an  answer  after 
the  case  has  progressed  to  a  final  hearing,  nor  to  its  judgment  in  disregarding; 
the   allegations  of   such  proposed   amendment. ^^ 

Amendment  Changing  Character  of  Answer. — The  rule  that  amend- 
ments changing  the  character  of  the  pleading,  so  as  to  make  a  new  case,  should 
rarely  if  ever,  be  admitted,  after  the  cause  has  been  set  for  hearing,  much  less, 
alter  it  has  been  heard,  applies  to  answers  as  well  as  to  bills  in  equity.^*' 

b.  /;;  Proceedings  at  La-w. — In  General. — By  §  954  of  the  United  States  Re- 
vised Statutes,  the  trial  court  may  at  any  time  permit  either  of  the  parties  to 
amend  any  defect  in  the  pleadings  upon  such  conditions  as  it  may  prescribe. ^^ 
This  clearly  authorizes  the  allowance  of  amendments  during  the  progress  of  the 
trial  in  furtherance  of  justice. ^^ 

After  Judgment  on  Demurrer. — Although  in  SQme  of  the  early  decisions, 
it  was  considered  doubtful  whether  the  court  ought  to  permit  amendments  after 
judgiTient  on  demurrer, ^^  yet  under  the  present  practice  leave  to  amend  may 
properly  be  granted  after  an  order  sustaining  a  demurrer.^" 

After  Judgment  on  the  Pleadings. — After  the  opinion  of  the  court  upon 
the  pleadings  has  been  delivered  the  parties  may,  it  would  seem,  agree  to  amend 
their  pleadings,  and  the  cause  be  continued  for  further  consideration. ^^ 

After  Submission  of  Cause. — As  to  the  rigiit  to  make  amendments  after 
submission  of  the  cause,  and  the  eflfect  upon  such  submission,  see  post,  "Effect 
upon  Previous  Submission  of  Cause."  II,  F,  2. 

After  Jury  Sworn. — It  is  error  for  the  court  below  to  permit  an  amendment  of 
the  declaration  by  the  writ,  after  the  jury  has  been  sworn,  and  then  to  have  the 
jury  r^^sworn  and  receive  their  verdict  without  consent  of  the  defendant,  without 


14.  As  to  amendments  after  cause  heard 
and  case  for  relief  made  out,  diflferent 
from  that  disclosed  by  bill,  see  post  "To 
Conform  to  Case  Made."  IT,  C,  1,  b. 
(1),   (d). 

As  to  amendment  of  cross  bill  at  hear- 
ing, though  working  change  in  ground  on 
which  relief  sought,  see  post,  "Cross 
Bill,"    IT.    C,    1,    c. 

15.  In  general. — Roberts  v.  Northern 
Pac.   R.   Co..   158  U.   S.   1.  30   L.   Ed.   873. 

Amendment  refused  where  no  facts  set 
up  unknown  when  original  answer  filed. 
— Where  it  appears  by  the  supplemental 
record  certified  to  the  supreme  court  in 
obedience  to  a  writ  of  certiorari,  that 
after  the  circuit  court  had  delivered  its 
opinion  and  filed  its  findings  of  fact  and 
conclusions  of  law,  and  before  the  entry 
of  a  final  decree,  the  appellant  moved 
for  leave  to  amend  the  answer,  the  mo- 
tion was  properly  denied  by  the  circuit 
court  if  the  proposed  allegations  did  not 
set  up  any  fact  unknown  to  the  appellant 
at  the  time  of  filing  the  original  answer. 
Liverpool,  etc..  Steam  Co.  v.  Phoenix 
Ins.    Co.,    129   U.    S.    397.    32    L.    Ed.    788. 

16.  Amendment  changing  character  or 
answer. — Walden  z'.  Bodley,  14  Pet.  1.56, 
10   L.    Ed.   398. 

17.  In  general. — Bamberger  v.  Terry, 
103  U.  S.  40,  26  L.  Ed.  317;  Mexican  Cen- 
tral R.  Co.  V.  Duthie,  189  U.  S.  76,  47  L. 
Ed.  715;   Gagnon  r.  United  States.   193   U. 


S.  451,  48  L.  Ed.  745.  For  further  cita- 
tion of  cases  decided  under  this  section, 
see    post,    "Provisions    Stated."    TX,    B,    1. 

18.  Allowance  during  progress  of  tried. 
—Bamberger  ?■.  Terry.  103  U.  S.  40,  3e 
L.    Ed.    317. 

19.  After  judgment  on  demurrer. — In 
Mandeville  r.  W'ilson,  5  Cranch  15.  3  L. 
Ed.  23,  it  was  qurered  whether  the  court 
ought  to  permit  amendments  after  judg- 
ment on  demurrer,  Marshall,  Ch.  J.,  ob- 
serving that  "after  the  parties  have  gone 
to  trial  upon  a  set  of  pleadings,  and  the 
judgment  has  been  pronounced,  it  mey 
be  doubted  whether  the  court  can  permit 
the  demurrer  to  be  withdrawn.  It  would 
not  be  right,  in  rll  cases,  a^^er  the  party 
had  taken  issue  upon  the  law,  and  it  has 
been  decided  against  him,  to  suffer  him 
also  to  take  issue  upon  the  fact.  If  it 
be  permitted,  it  is  a  matter  of  great  in- 
dulgence." 

20.  In  Post  V.  Pearson.  108  U.  S.  418. 
27  L.  Ed.  774,  it  was  held,  that  the  order 
sustaining  the  demurrer  to  the  original 
complaint  and  giving  the  plaintiff  leave 
to  amend,  did  not  preclude  the  plaintiflF 
from  reviewing  nor  the  court  from  en- 
tertaining, the  same  question  of  law  upon 
a  fuller  development  of  the  facts  at  the 
trial    on    the   amended   complaint. 

21.  After  judgment  on  the  pleadings. — 
See  Fletcher  v.  Peck.  6  Cranch  87,  3  L- 
Ed.    162. 


AMEXDMBNTS. 


293 


allowing  him  to  pit  ad  anew,  and  without  an  imparlance  or  awarding  payment  of 
costs  by  the  plaintiff. -- 

On  New  Trial. — Amendments  may,  in  the  sound  discretion  of  the  court,  be 
permitted  upon  a  new  trial. ^^ 

2.  After  P'inal  Judgment  or  Decree. — According  to  the  decisions  it  would 
seem  that  an  amendment  may  be  allowed  after  final  judgment  or  decree  where 
the  peculiar  circumstances  of  the  case  justify  it.^-*  And  where  such  amendment 
is  applied  for  before  the  case  has  jassed  from  the  jurisdiction  of  the  lower 
court.25  The  grant  or  refusal  to  allow  amendments  at  this  stage  rests  within 
the  discretion  of  the  court. -^ 

3.  In  Appellate  CouftT. — See  the  title  Appeal  and  Error. 

4.  On  Remand. — vSee  the  title  Mandate  and  Proceedings  TherEon. 

C.  In  What  Particulars  Amendable — 1.  In  Equity — a.  In  General. — 
In  reference  to  amendments  of  equity  pleadings,  the  courts  have  found  it  im- 
practicable to  lay  down  a  rule  that  would  govern  all  cases.  Their  allowance 
must,  at  every  stage  of  the  cause,,  rest  in  the  discretion  of  the  court ;  and  that 
discretion  must  depend  largely  on  the  special  circumstances  of  each  case.  It 
may  be  said,  generally,  that  in  passing  upon  applications  to  amend,  the  ends  of 
justice  should  never  be  sacrificed  to  mere  form,  or  by  too  rigid  an  adherence 
to  technical  rules  of  practice.  Undoubtedly,  great  caution  should  be  exercised 
where  the  application  comes  after  the  litigation  has  continued  for  some  time,  or 
when  the  granting  of  it  would  cause  serious  inconvenience  or  expense  to  the 
opposite  side.2^ 

b.  Bill — (1)  Proper  Scope  of  Amendments — (a)  As  to  Parties. — If  the  bill 
be  found  defective  as  to  parties,  such  defect  may  be  cured  by  amendment  adding 


22.  After  jury  sworn. — Thompson  v. 
Musser,  1  DalL  4.58,  1  L.  Ed.  222.  See 
post,  "Effect  as  Authorizing  Additional 
Pleadings,"   II,   F,  3. 

23.  On  new  trial. — United  States  v. 
Hawkins,  10  Pet.  125.  9  L.  Ed.  369.  See 
the    title    NEW    TRIALS. 

24.  After  final  judgment  or  decree. — 
In  The  Tremolo  Patent,  23  Wall. 
518,  23  L.  Ed.  97,  an  amendment  which 
changed  the  character  of  the  bill  was  al- 
lowed even  after  final  decree,  the  circum- 
stances being  peculiar  and  the  cause  hav- 
ing been,  in  fact,  tried  exactly  as  it  would 
have  been  if  the  bill  had  originally  been 
in   the   amended   form. 

25.  "Indeed,  any  amendments  permis- 
sible under  the  Statutes  of  Jeofails  may 
be  proper  at  subsequent  terms  (2  Tidd 
Pr.,  917;  2  Arch.  Pr.  202.  243);  and  at 
times  even  after  a  writ  of  error  is 
brought.  2  How.  243;  3  Johns.  (N.  Y.) 
Tt5;  Poph.,  102;  Pease  v.  Morgan.  7  Johns. 
(N.  Y.)  468;  Cheetham  v.  "Tilloston,  4 
Id.  499;  1  Johns.  (N.  Y.)  Cas.  29;  2 
Johns.  (N.  Y.)  184;  1  Bing.  486;  Doug- 
lass V.  Bean's  Executors,  5  Id.  60."  Bank 
of  United  States  v.  Moss,  6  How.  31,  39, 
12    L.    Ed.    331. 

In  Mexican  Central  R.  Co.  v.  Duthie. 
189  U.  S.  76,  47  L.  Ed.  715,  which  was  a 
suit  for  personal  injuries  brought  in  the 
circuit  court  of  the  United  States  for 
the  western  district  of  Texas,  the  plain- 
tiff, in  his  original  complaint  averred  that 
he  "resides  in  El  Paso,  in  El  Paso 
County,  State  of  Texas  in  the  western 
district  of  said  state;"  and  that  defendant 


\\as  a  citizen  of  the  state  of  Massa- 
chusetts. The  cause  was  tried  before  a 
jury  and  resulted  in  a  verdict  and  judg- 
ment thereon  April  10,  1902.  No  further 
proceedings  were  had  in  the  cause  after 
the  entry  of  judgment  until  the  17th  day 
of  .\pril  1902,  on  which  day  the  plaintiff 
tiled  his  motion  asking  leave  to  amend 
his  petition  by  inserting  therein  the  fol- 
lowing: "And  is  a  citizen  of  said  state 
and  of  the  United  States  of  America." 
after  the  allegation  made  in  the  original 
pleading  "that  plaintiff  resides  in  El  Paso, 
in  El  Paso  County.  State  of  Texas."  The 
court  granted  leave  to  so  amend  and  de- 
fendant excepted.  The  supreme  court 
held  the  amendment  having  been  applied 
for  and  made  before  the  case  had  passed 
from  the  jurisdiction  of  the  circuit  court, 
was  properly  allowed  under  §  954  of  the 
Revised    Statutes. 

26  In  Brown  v.  Schleier,  194  U.  S.  18, 
4S  L.  Ed.  857,  the  court  observed  that  "it 
is  exceedingly'  disputable  whether  it  is 
an  abuse  of  discretion  to  deny  a  motion 
to  file  an  amended  bill  after  final  judg- 
ment has  been  rendered."  And  see  post, 
"Discretion  of  Court  as  to  Allowance  or 
Refusal,"    IT.    D,    3,  b. 

28.  In  general. — Per  Harlan.  J.,  in 
Hardin  v.  Boyd,  113  U.  S.  756,  28  L.  Ed. 
1141,  quoted  in  Richmond  v.  Irons,  121 
U.    S.    27.    30    L.    Ed.    864. 

"Rules  of  pleading  are  made  for  the 
attainment  of  substantial  justice,  and  are 
to  be  construed  so  as  to  harmonize  with 
it  if  possible.  \  mistaken  view  of  one's 
rights    or    remedies    should    not     be     per- 


294 


AMENDMENTS. 


proper  parties^"  striking  out  rr  transposing  parties,^"  or  changing  suit  by  one 
as  individual  to  suit  by  him  as  representative  of  a  class.- 1 

(b)  7'o  Remedy  Mistake,  Omission,  or  Uncertainty. — Amendments  of 
bills  in  equity  are  properly  allowed  in  the  case  of  omission  or  mistake 
of  some  fact  or  circumstance  connected  with  the  substance  of  the  case,  but  not 
forming  the  substance  itself,^^  or  for  the  purpose  of  presenting  more  fully  the 
facts  at  issue,^^  or  where  a  matter  has  not  been  put  in  issue  by  the  bill  with  suf- 


mitted  wholly  to  defeat  a  claim  founded 
upon  principles  of  equity  and  justice,  and 
if  the  pleadings  can  be  so  amended  as  to 
admit  proof  of  such  claim,  and  such 
amendment  does  not  introduce  a  new 
cause  of  action,  though  it  may  set  up  a 
new  measure  of  damages,  or  work  a  real 
hardship  to  the  party  defendant,  it  is 
within  the  discretion  even  of  the  appellate 
court  to  permit  such  amendment  to  be 
made."  Wiggins  Ferry  Co.  v.  Ohio,  etc., 
R.   Co.,   142   U.    S.   396.   35    L.   Ed.   105.5. 

29.  Adding  proper  parties. — Shields  v. 
Barrow,  17  How.  130,  15  L.  Ed.  158; 
Hardin  v.  Boyd,  113  U.  S.  756,  28  L.  Ed. 
1141;  Snead  v.  McCouIl.  12  How.  407,  13 
L.  Ed.  1043;  Walden  v.  Bodley,  14  Pet. 
156,  10  L.  Ed.  398;  Miller  t'.  Mclntyre,  6 
Pet.  61.  8  L.  Ed.  320;  Graffam  v.  Burgess, 
117    U.    S.    180,    29    L.    Ed.    830. 

"On  the  hearing  of  a  cause,  even 
upon  an  appeal,  an  order  may  be  made 
for  the  cause  to  stand  over,  with  liberty 
to  the  plaintifif  to  amend  by  adding  proper 
parties,  if  it  appears  that  the  plaintiff  is 
entitled  to  relief,  but  that  it  cannot  be 
given  for  the  want  of  proper  parties." 
Lewis  V.  Darling,  16  How.  1,  14  L.  Ed. 
810. 

"When  it  appears  to  a  court  of  equity 
that  a  case,  otherwise  presenting  ground 
for  its  action,  cannot  be  dealt  with  be- 
cause of  the  absence  of  essential  parties, 
it  is  usual  for  the  court,  while  sustaining 
the  objection,  to  grant  leave  to  the  com- 
plainant to  amend  by  bringing  in  such 
parties.  But  when  it  likewise  appears 
that  necessary  and  indispensable  parties 
are  beyond  tlie  reach  of  the  jurisdiction 
of  the  court,  or  that,  when  made  parties, 
the  jurisdiction  of  the  court  will  thereby 
be  defeated,  for  the  court  to  grant  leave 
to  amend  would  be  useless.  Section  2 
of  article  3  of  the  Constitution  of  the 
United  States."  Minnesota  v.  Northern 
Securities  Co.,  184  U.  S.  199,  46  L.  Ed. 
499.  See.  generally,  the  title  PARTIES. 
As  to  the  effect  of  amendments  making 
new  parties,  upon  the  statute  of  limita- 
tions, sf^e  post.  "Amendment  Making  New 
Parties."  TT.  F,  1.  c. 

?0.  Striking  name  of  party  as  plaintiff 
and  making  h'm  defendant. — The  suit  was 
originally  instituted  bv  aliens,  and  a  citi- 
zen of  the  United  States,  as  complain- 
ants, ae^ainst  the  defendants,  citizens  of 
the  United  States;  in  the  progress  of  the 
cause,  and  before  the  final  hearinar,  the 
name  of  the  citi7en  of  the  United  States, 
who  was  one  of  the  plaintiffs,  was  stricken 


out,  and  he  was  made  a  defendant.  Held, 
the  substantial  parties  plaintiffs,  those  for 
whose  benetit*  the  decree  is  sought,  are 
aliens,  and  the  court  has  original  juris- 
diction between  them  and  all  the  defend- 
ants; but  they  prevented  the  exercise  of 
this  jurisdiction,  by  uniting  with  them- 
selves a  person  between  whom  and  one 
of  the  defendants  the  court  could  not  take 
jurisdiction;  strike  out  his  name  as  a  com- 
plainant, and  the  impediment  is  removed 
to  the  exercise  of  that  original  jurisdic- 
tion which  the  court  possessed  between 
the  alien  parties,  and  all  the  citizen  de- 
fendants; there  is  no  objection,  founded 
on  convenience  or  law,  to  this  course. 
Conolly  V.  Taylor,  2  Pet.  556,  565.  7  L. 
Ed.    518. 

31.  Amendment  changing  suit  by  in- 
dividual to  one  by  him  as  representative 
of  a  class. — "The  court  will  generally  .'t 
the  hearing  allow  a  bill  which  has  origi- 
nally been  filed  by  one  individual  of  a 
numerous  class  in  his  own  right  to  be 
amended  so  as  to  make  such  individual 
sue  on  behalf  of  himself  and  the  rest  of 
the  class."  Richmond  v.  Irons,  121  U. 
S.  27,  30  L.  Ed.  864,  quoting  Dan.  Ch. 
Pr.    (4th   ed.)    c.    5,   §    1.   p.   245. 

32.  Omission  or  mistake. — Shields  v. 
Barrow.  17  Plow.  130,  15  L.  Ed.  158;  Har- 
din V.  Boyd,  113  U.   S.  756    28  L.  El.   1141. 

A  formal  charge  of  fraud  may  be  added 
when  it  is  necessary  and  has  been 
omitted.  Graffam  v.  Burgess,  117  U.  S. 
180.    29    L.    T^d.    8.-59. 

Suit  by  alien  against  citizen — Omission 
of  bill  to  state  character  of  parties. — If 
an  alien  should  sue  a  citizen,  and  omit 
to  state  character  of  the  parties  in  the 
bill,  though  the  court  could  not  exercise 
jurisdiction,  while  the  defect  in  the  bill 
remained,  yet  it  might,  as  is  every  day's 
practice,  be  corrected  at  any  time  before 
the  hearing,  and  the  court  would  not 
hesitate  to  decree  in  the  cause.  Conolly 
7'.  Tavlor.  2  Pet.  556.  566,  7  L.  Ed.  518. 
See   the   title    .\LIENS.   ante,  p.   210. 

33.  Amendment  presenting  more  fully 
facts  at  issue. — In  re  Sanford,  etc.,  Co., 
160  U.  S.  247,  40  L.  Fd.  414,  it  was  held. 
that,  the  case  being  left  open  by  the  opin- 
ion and  mandate  of  the  supreme  ci^urt, 
and  by  the  areneral  rules  of  practice  in 
equity,  for  further  proceedings  with  a 
right  in  the  plaintiffs  to  file  a  replication, 
putting  the  cause  at  is=ue,  the  circuv* 
court  might,  in  its  discretion,  allow 
amendments  of  the  pleadings  for  the  pur- 
pose   of   more    fully    or   clearly   presentiny^ 


AMENDMENTS. 


295 


ficieni  precision. •'*'* 

(c)  To  Put  in  Issue  New  Matter  to  Meet  Allegations  in  Ansiver.—AxnQnd- 
ments  of  the  bill  are  properly  allowed  for  putting  in  issue  new  matter  to  meet 
allegations  in  the  answer. -^^ 

(dj  To  Conform  to  Case  Made.— In  the  absence  of  obligatory  rules  of  court 
to  the  contrary,  a  court  of  equity  after  a  cause  has  been  heard  and  a  case  for 
relief  made  out,  but  not  the  case  disclosed  by  the  bill,  has  power  to  allow  an 
amendment  of  the  pleadings,  on  terms  that  the  party  not  in  fault  has  no  rea- 
sonable ground  to  object  to.^^ 


the  facts  at  issue  between  the  parties. 
Citing  Marine  Ins.  Co.  v.  Hodgson,  6 
Cranch  206,  3  L.  Ed.  200;  Neale  ^.  Neales. 
9  Wall.  1.  19  L.  Ed.  .590;  Hardin  v.  Boyd, 
113    U.    S.    756.    28    L.    Ed.    1141. 

34.  Matters  net  put  in  issue  with  suffi- 
cient precision  by  original  bill. — "Lord 
Redsdale  says:  'If  upon  hearing  the 
cause  the  plaintiff  appears  entitled  to  re- 
lief, *  *  *  if  the  addition  of  parties  alone 
is  wanted,  an  order  is  usually  made  for 
the  cause  to  stand  over,  with  liberty  to 
amend  the  bill  by  adding  the  proper  par- 
ties; and  in  some  cases  where  a  matter 
has  not  been  put  in  issue  by  bill  with 
sufficient  precision,  the  court  has,  upon 
hearing  the  cause,  given  the  plaintiff  lib- 
erty to  amend  the  bill  for  the  purpose  of 
making  the  necessary  alteration,'  Reds- 
dale  Eq.  PI.  326.  And  see  The  Tremolo 
Patent,  23  Wall.  518,  23  L.  Ed.  97."  Graf- 
fam     V.  Burgess,  117  U.  S.  180,  29  L.  Ed.  839. 

35.  New  matter  meeting  allegations  in 
answer. — Shields  v.  Barrow,  17  How.  130. 
15   L.    Ed.    158. 

"Under  the  45th  rule  of  equity  practice, 
it  any  matter  alleged  in  the  answer  shall 
make  it  necessary  for  the  plaintiff  to 
amend  his  bill,  he  may  have  leave  to 
amend  the  same  with  or  without  payment 
of  costs,  as  the  court,  or  judge  thereof, 
may  in  his  discretion  direct."  Southern 
Pac.  R.  Co.  V.  United  States,  168  U.  S.  1, 
42    L.    Ed.    ,355. 

"Undoubtedly,  if  a  plea,  upon  argu- 
ment, is  ruled  to  be  sufficient  in  law  to 
bar  the  recovery  of  the  complainant,  the 
court  of  chancery  would,  according  to  its 
uniform  practice,  allow  him  to  amend,  and 
to  put  in  issue  by  a  proper  replication  the 
truth  of  the  facts  stated  in  the  plea." 
Rhode  Island  v.  Massachusetts,  14  Pet. 
210.    10    L.    Ed.    423. 

Amendment  setting  up  fraud. — In  Verv 
V.  Levy.  13  How.  345,  14  L.  Ed.  173,  i't 
was  held,  that  though  the  complainant 
might  not  have  anticipated,  when  the  bill 
was  filed,  that  a  certain  contract  would 
be  set  up  in  the  answer  as  a  defense,  yet 
on  the  coming  in  of  the  answer  he  might 
have  amended  his  bill,  averring  that  if 
any  such  agreement  was  in  fact  made,  it 
was  void  for  fraud,  and  charging  in  what 
the    fraud    consisted. 

Allegation  as  to  discovery  of  fraud. — ■ 
In  Wharton  v.  Lowrey,  2  Ball.  364,  1  L. 
Ed.  417,  after  the  defendant  had  pleaded 
the  statute  of  limitations,  the  complainant 


was  allowed  to  amend  the  bill  by  insert- 
mg  that  the  frauds  charged  therein  liad 
come  to  his  knowledge  within  six  years 
before  the  commencement  of  the  suit. 
See  the  title  LIMITATION  OF  AC- 
TIONS AND  ADVERSE  POSSES- 
SION. 

Facts  bringing  plaintiff  within  savings 
of  statute  of  limitations.— Wliere  the  stat- 
ute of  limitation  is  pleaded  at  law  or  in  eq- 
uity and  the  plaintiff  desires  to  bring  him- 
self within  it.i  savings,  it  would  be  proper 
for  him,  in  his  replication,  or  by  an 
amendment  of  his  bill,  to  set  forth  the 
facts  specially.  Miller  v.  Mclntyre,  6  Pet 
61,  8   L.   Ed.  320. 

In  Johnson  v.  Waters.  Ill  U.  S.  640.  28 
L.  Ed.  547.  it  was  held,  that  an  amend- 
ment was  properly  allowed  to  a  creditor's 
bill  setting  out  matter  taking  the  subject 
of  the  original  bill  out  of  the  prescrip- 
tion, where  the  answer  admitted  that  the 
claim  of  the  complainant  was  duly  ac- 
knowledged by  the  executor  as  a  just 
claim  against  the  estate. 

36.  To  conform  to  case  made. — ^Ne  le 
V.  Neales,  9  Wall.   1,   19   L.   Ed.   590. 

■'  'The  court  will  sometimes  at  the  hear- 
ing permit  the  prayer  of  the  bill  to  be 
amended,  so  as  to  make  it  more  consist- 
ent with  the  case  made  by  the  plaintiff 
than  the  one  he  has  already  introduced.' 
1  Daniel's  Ch.  Pr.,  1st  Ed.  474;  lb.  -^nd 
Ed.  480.  And  see  Neale  v.  Neales,  9  Wall. 
1,  19  L.  Ed.  590;  Hardin  v.  Boyd,  113  U. 
S.  756.  764.  28  L.  Ed.  1141."  GraftVim 
V.   Burgess,  117  U.  S.  180,  29  L.  Ed.  839. 

An  amendment  on  terms  just  to  the 
party  not  in  fault  may  be  allowed  on  a 
bill  for  specific  performance,  where  the 
subject  matter  and  general  purpose  of 
both  bills  is  the  same,  and  the  contract, 
consideration,  promise,  and  acts  of  part 
performance,  stated  in  the  amended  bill, 
are  stated  with  sufficient  precision,  and 
are  supported  by  proofs,  taken  under  the 
original  bill,  which  entitle  the  complain- 
ants to  the  relief  which  they  seek.  Neale 
V.  Neales,  9  Wall.  1,  19  L.  Ed.  590. 

"It  would  seem  clear,  from  the  manner 
in  which  the  court  below  of  its  own  motion, 
and  without  assigning  any  reasons  for 
this  action,  gave  the  complainants  leave 
to  amend  their  bill,  that  on  the  original 
hearing  it  was  satisfied  that  the  evidence 
made  out  a  case  for  relief,  but  a  case 
different  from   the   one   stated   in   the  bill; 


296 


AMEXDMENTS. 


(e)  Defects  in  Prayer  for  Relief. — A  bill  which  is  defective  in  its  prayer  for 
relief  may  be  amended.^" 

(2)  Amend)iieiits  Changing  Case  Made  by  Original  Bill. — It  may  be  stated 
as  a  general  rule  that  an  amendment  should  rarely,  if  ever,  be  permitted  where 
it  would  materially  change  the  very  substance  of  the  case  made  by  the  bill,  and 
to  which  the  parties  have  directed  their  proofs.^^  To  insert  a  wholly  different 
case  is  not  properly  an  amendment,  and  should  not  be  considered  within  the  rules 
on  that  subject."^ 


and,  that  as  the  pleadings  must  correspond 
•idth  the  evidence,  it  was  necessary  either 
to  dismiss  the  bill  without  prejudice,  or 
to  give  the  leave  to  amend.  The  court 
adopted  the  latter  alternative,  doubtless, 
with  a  view  to  save  expense  to  the  par- 
ties, and  because  such  a  course  could  not, 
by  any  possibility,  work  any  harm  to  the 
defendant.  It  is  insisted  that  this  pro- 
ceeding was  erroneous;  that  after  a  cause 
has  been  heard,  the  power  of  allowing 
amendments  ceases,  or  if  it  exists  at  all, 
it  cannot  go  so  far  as  to  authorize  a 
plaintiff  to  change  the  framework  of  his 
bill,  and  make  an  entirely  new  case,  al- 
though on  the  same  subject  matter,  as, 
it  is  contended,  was  done  in  this  instance 
under  the  leave  to  amend.  This  doctrine 
would  deny  to  a  court  of  equity  the 
power  to  grant  amendments  after  the 
cause  was  heard  and  before  decree  was 
passed,  no  matter  how  manifest  it  was 
that  the  purposes  of  substantial  justice 
required  it,  and  would,  if  sanctioned,  fre- 
quently embarrass  the  court  in  its  efforts 
to  adjust  the  proper  mode  and  measure 
of  relief.  To  accomplish  the  object  for 
which  a  court  of  equity  was  created,  it 
has  the  power  to  adapt  its  proceedings  to 
ihe  exigency  of  each  particular  case,  but 
this  power  would  very  often  be  ineffec- 
tual for  the  purpose,  unless  it  also  pos- 
sessed the  additional  power,  after  a  cause 
was  heard  and  a  case  for  relief  made  out. 
but  not  the  case  disclosed  by  the  bill, 
to  allow  an  alteration  of  the  pleadings  on 
terms,  that  the  party  not  in  fault  would 
have  no  reasonable  ground  to  object  to. 
That  the  court  has  this  power  and  can, 
tipon  hearing  the  cause,  if  unable  to  do 
complete  justice  by  reason  of  defective 
pleadings,  permit  amendments,  both  of 
bills  and  answers,  is  sustained  by  the  au- 
thorities." Neale  v.  Neales,  9  Wall.  1.  19 
L.   Ed.  590. 

Not  permitted  where  proposed  amend- 
ment makes  new  case. — '"In  I  Daniells  Ch. 
Pr.  384,  .jth  ed.,  the  author,  after  alluding 
to  the  rule  in  reference  to  the  amendment, 
observes;  'The  instances,  however,  in 
which  this  will  be  done  are  confined  to 
those  where  it  appears,  from  the  case 
made  by  the  bill,  that  the  plaintiff  is  en- 
titled to  relief,  although  different  from 
that  sought  by  the  specific  prayer;  when 
the  object  of  the  proposed  amendment  is 
to  make  a  new  case,  it  will  not  be  per- 
mitted.'" Hardin  ?•.  Boyd.  113  U.  S.  7.56, 
28    L.    Ed.    1141.      See    post,    "Amendment 


Changing    Case    Made    by    Original    Bill," 
II,   C,   1,   b.    (2). 

37.  Defects  in  prayer  for  relief. — Shields 
V.  Barrow,  17  How.  130,  15  L.  Ed.  158; 
Hardin  v.  Boyd,  113  U.  S.  756,  28  L.  Ed. 
1141;  Graffam  v.  Burgess,  117  U.  S.  180, 
29   L.     Ed.    829. 

As  to  amendment  of  prayer  to  make  it 
more  consistent  with  the  case  made,  see 
ante,  "To  Conform  to  Case  Made,"  II, 
C.  1,  b.  (1),  (d). 

38.  General  rule. — Hardin  v.  Boyd,  113 
U.  S.  756,  28  L.  Ed.  1141;  Richmond  v. 
Irons,  121  U.  S.  27,  30  L.  Ed.  864;  Snead 
r.  McCoull.  12  How.  407,  13  L.  Ed.  1043; 
Walden  v.  Bodley,  14  Pet.  156,  10  L.  Ed. 
398;  Neale  v.  Neales,  9  Wall.  1,  19  L.  Ed. 
590. 

"The  rule  is  thus  stated  in  Lyon  v. 
lalmadge,  1  Johns.  Ch.  184,  188:  'If  the 
hill  be  found  defective  in  its  prayer  for 
relief,  or  in  proper  parties,  or  in  the 
omission  or  statement  of  fact  or  circum- 
stances connected  with  the  substance  of 
the  case,  but  not  forming  the  substance 
ilsjelf.  the  amendment  is  usually  granted. 
But  the  substance  of  the  bill  must  con- 
tain ground  for  relief.  There  must  be 
equity  in  the  case  when  fully  stated  and 
correctly  applied  to  the  proper  parties, 
sufficient  to  warrant  a  decree.'  "  Hardin 
v.    Boyd,    113    U.    S.    756,   28    L.    Ed.    1141. 

In  Snead  z:  McCoull,  12  How.  407, 
13  L.  Ed.  1043.  it  was  held,  that  after  a 
case  had  been  argued  and  was  under  ad- 
visement, a  motion  to  permit  the  com- 
plainant to  file  a  further  bill  by  way  of 
supplement  and  amendment,  which  would 
have  made  an  essential  change  in  the 
character  and  objects  of  the  cause,  was 
properly    overruled    in    the    circuit    court. 

£9.  Shields  z:  Barrow,  17  How.  130,  15 
L.    Ed.    158. 

"To  strike  out  the  entire  substance  and 
prayer  of  a  bill,  and  insert  a  new  case  by 
way  of  amendment,  leaves  the  record  un- 
necessarily encumbered  with  the  original 
proceedings,  increases  expenses,  and  com- 
plicates the  suit;  it  is  far  better  to  re- 
quire the  complainant  to  begin  anew." 
Shields  v.  Barrow,  17  How.  130,  15  L- 
Ed.  158,  quoted  in  Hardin  v.  Boyd,  113 
U.    S.    756,   28    L.    Ed.    1141. 

Amendments  held  not  to  make  a  new 
case. — In  a  suit  to  set  aside  a  conveyance 
of  lands,  it  was  alleged  in  the  bill  that 
the  title  bond  was  obtained  through 
fraud  and  imposition  practiced  by  the 
purchaser  and  that  the  greater  portion  of 


AMHXDMEXrS. 


297 


c.    Cross  Bill.-^An  amendment  of  a  cross  bill  at  the  hearing  is  properly  al- 
lowed, although  working  a  change  in  the  ground  upon  which  relief  was  sought, 


the  purchase  money  remained  unpaid. 
The  prayer  of  the  bill  was  that  the  bond 
for  title  and  the  deeds  be  set  aside,  that 
an  account  be  taken,  and  that  a  decree 
might  be  rendered  quieting  the  title  of 
the  plaintiff  as  against  the  claims  of  the 
defendants,  and  for  such  other  relief  as 
equity  might  require.  After  the  cause 
came  for  hearing,  and  after  the  evidence 
had  been  read,  the  complainants  asked 
leave  to  amend  the  prayer  of  the  bill 
by  asserting  therein  the  following  words: 
"Or,  if  thought  proper,  that  the  court  give 
a  decree  for .  the  purchase  money  due 
on  said  lands  for  the  payment  thereof,  and 
that  the  said  lien  be  foreclosed."  This 
amendment  was  allowed,  and  the  defend- 
ants excepted.  On  appeal  it  was  held, 
that  such  amendment  was  properly  al- 
lowed as  it  did  not  make  a  new  case,  nor 
materially  change  the  substance  of  the 
one  actually  presented  bj-  the  bill  and 
the  proofs,  but  simply  enabled  the  court, 
upon  the  case  made  by  the  original  bill, 
to  give  the  relief  which  that  case  justified. 
Hardin  v.  Boyd,  113  U.  S.  756,  28  L.  Ed. 
1141,  distinguishing  Shields  v.  Barrow, 
17  How.  130,  15  L.  Ed.  158,  and  citing 
Neale  z:  Neales.  9  Wall.  1.  19  L.  Ed.  590; 
The  TremoJe  Patent,  23  Wall.  518,  23  L. 
Ed.   97. 

In  Richmond  7'.  Irons.  121  U.  S.  27,  30 
L.  Ed.  864,  the  bill,  as  originally  framed, 
was  one  by  a  judgment  creditor  against 
a  national  bank  and  its  president,  alleg- 
ing insolvency,  and  conversion  of  the 
assets,  and  asking  a  discovery  of  assets, 
appointment  of  receiver,  etc.  Leave  was 
afterwards  given  the  complainant  to  file 
an  amended  bill  making  additional  de- 
fendants, and  on  the  final  hearing  tlie 
complainant  had  leave  to  amend,  and  did 
amend  the  amended  bill  of  complainant 
so  as  to  allege  expresslj'^  that  it  was  filed 
on  behalf  of  himself  and  all  other  credit- 
ors of  the  bank,  and  the  prayer  was 
amended  so  as  to  require  an  account  to 
be  taken  of  the  amount  due  the  complain- 
ant and  other  creditors  of  the  defendant; 
striking  out  those  parts .  which  ask  that 
the  complainant's  judgment  be  decreed  to 
be  a  first  ben  on  the  property  of  the 
bank,  and  paid  first  in  full  out  of  the  fund 
for  distribution;  and  adding  a  prayer  that 
the  fund  so  created  might  be  distributed 
among  all  creditors  of  said  bank  pro  rata. 
in  such  a  way  and  manner  as  should  be 
directed.  The  supreme  court  held  that  the 
action  of  the  circuit  court  in  permitting 
these  amendments  was  justified  bj'  the 
rules  on  that  subject  as  alreadv  stated 
by  the  court  in  the  cases  of  Neale  v. 
Neales,  9  Wall.  1.  19  L.  Ed.  590;  The 
Tremolo  Patent,  23  Wall.  518,  23  L.  Ed. 
97;  and  Hardin  v.  Boyd,  113  U.  S.  756, 
28  L.  Ed.  1141.  Such  amendments  were 
germane     to     the     original     bill     and     the 


various  matters  contained  in  it  and  in  the 
amended  bill,  were  connected  with  each 
other  in  such  a  way  as  fairly  to  bring  the 
question  of  granting  leave  to  file  amended 
bill  within  the  discretion  of  the  court 
below. 

In  Jones  v.  Van  Doren,  130  U.  S.  684, 
32  L.  Ed.  1077,  the  original  bill  alleged 
that  the  defendant  took  the  conveyance 
of  the  plaintiff's  right  of  dower  upon  an 
express  trust  for  her.  and  the  amended 
bill  alleged  that  he  procured  the  con- 
veyance from  her  by  fraudulent  misrep- 
resentations as  to  the  nature  of  the  in- 
strument, creating  a  trust  by  operation  of 
law  in  her  favor.  The  other  facts  alleged 
in  the  two  bills  were  substantially  iden- 
tical. The  supreme  court,  citing  Hardin  v. 
Boyd,  113  U.  S.  756,  28  L.  Ed.  1141.  held, 
that  the  amendment  was  one  which  the 
court  in  the  exercise  of  its  discretion 
might  properly  allow. 

In  Brainard  v.  Buck,  184  U.  S.  99,  46 
L.  Ed.  449,  it  was  held,  that  under  the 
principle  laid  down  in  Jones  v.  Van 
Doren.  130  U.  S.  684,  32  L.  Ed.  1077.  the 
amendment  to  the  bill  was  proper,  and 
the  demurrer  thereto,  on  the  ground  tliat 
it  stated  a  new  and  different  cause  of  ac- 
tion, was  properly  overruled,  as  the 
purpose  in  both  bills,  was  "to  establish  a 
resulting  trust  in  favor  of  the  complain- 
ant Buck  on  account  of  the  transactions 
set  forth  in  the  bills,  and  while  the  rea- 
sons are  stated  more  fully  in  the  amended 
bill  and  in  some  respects  differently  from 
those  in  the  original  bill,  yet  the  purpose 
is  the  same,  arising  from  the  same  trans- 
actions and  based  upon  the  same  general 
rule  of  law  applicable  to  resulting  trusts." 

In  the  original  bill,  filed  by  the  United 
States  in  the  circtiit  court  of  Rhode 
Island,  the  claim  of  the  United  States  to 
payment  of  a  debt  due  to  them,  was  as- 
serted, on  the  ground  of  an  assignment 
made  to  the  United  States  by  an  insol- 
vent debtor,  who  was  discharged  from  im- 
prisonment, on  the  condition,  that  he 
should  make  such  an  assignment;  the 
debtor  had  been  previouslv  discharged 
under  the  insolvent  law  of  Rhode  Island, 
and  had  made,  on  such  discharge,  a 
general  assignment  for  the  benefit  of  his 
creditors.  Afterwards,  an  amended  bill 
was  filed,  in  which  the  claim  of  the  United 
States  was  placed  upon  the  priority  given 
to  the  United  States,  by  the  act  of  con- 
gress, against  their  debtors  who  have  be- 
come insolvent;  it  was  objected,  that  the 
United  States  could  not  change  the  ground 
of  their  claim,  but  must  rest  it,  as 
presented  by  the  original  bill,  on  the 
special  assignment  made  to  them.  It  i3 
true,  as  the  defendant  insists,  that  the 
original  bill  still  remains  on  the  record, 
and  forms  a  part  of  the  case;  but  the 
amendment  presents  a  new  state  of  facts, 


298 


AMENDMENTS. 


where  such  amendment  is  simply  to  enable  the  cross  complainant  to  avail  him- 
self of  what  had  been  alleged,  and  proved  by  the  original  complainants.^" 

d.  Answer. — As  to  the  general  power  of  the  court  to  amend  defective  an- 
swers where  unable  to  do  complete  justice  by  reason  of  such  defects,  see  ante, 
"Power  of  Court  to  Allow,"  II,  A. 

As  to  the  amendment  of  answers  changing  the  character  of  the  plead- 
ing, see  ante.  "Amendment  of  Answer."  II,  B.  1,  a,  (3). 

Entry  of  Amendment  Nunc  Pro  Tunc. — \\  here  the  court  has  authority  to 
grant  an  amendment  to  an  answer,  such  amendment  may  properly  be  en- 
tered nunc  pro  tunc,  as  originally  prayed  in  the  answer.-*  i 

2.  Pleadings  at  Law — a.  In  General. — Under  the  act  of  1789  (now  incor- 
porated in  §  954  of  the  Revised  Statutes)  either  of  the  parties  may  be  allowed, 
in  the  discretion  of  the  court,  to  amend  any  defect  in  the  pleadings.-*^ 

b.  Effect  of  Practice  Conformity  Act. — The  propriety  of  amendments  of  plead- 
ings in  the  circuit  and  district  courts  of  the  United  States  is  governed  by  the 
provisions  of  §  914  of  the  Revised  Statutes,  to  the  effect  that:  "The  practice, 
pleadings,  and  forms  and  modes  of  proceeding  in  civil  causes,  other  than  equity 
and  admiralty  causes  in  the  circuit  and  district  courts,  shall  conform,  as  near  as 
may  t;e,  to  the  practice,  pleadings,  and  forms  and  modes  of  proceeding  existing 
at  the  time  in  like  causes  in  the  courts  of  record  of  the  state  within  which  such 
circuit  or  district  courts  are  held,  any  rule  of  court  to  the  contrary  notwith- 
standing."^^ 

c.  Declaration,  Petition  or  Complaint — (1)  Proper  Scope  of  Amendments 
—  (a)  As  to  Parties. — Adding  or  Striking  Out  Parties. — With  regard  to  amend- 


which  it  was  competent  for  the  complain- 
ants to  do;  and  on  the  hearing,  they  may 
rely  on  the  whole  case  made  in  the  bill, 
or  may  abandon  some  of  the  special 
prayers  it  contains.  Hunter  v.  United 
States,    15    Pet.    173,    8    L.    Ed.    86. 

Arrendments  constituting  new  and  sub- 
stantive ground  of  relief. — In  Warner  z'. 
Godfrey,  186  U.  S.  36.5.  46  L.  Ed.  1203,  it 
was  held,  that  the  complainant,  having 
expressly  declined  to  put  an  end  to  the 
litigation,  upon  the  theory  that  because  of 
mala  fides  she  was  entitled  to  an  uncondi- 
tional recovery  of  the  property  in  ques- 
tion, she  ought  not,  in  equity,  upon  the 
collapse  of  her  eflforts  to  establish  fraud 
and  bad  faith  on  the  part  of  the  defend- 
ants, to  be  allowed  to  reform  her  plead- 
ings and  change  her  attitude  towards  the 
defendants  in  order  to  obtain  that  which 
she  had  expressly  elected  not  to  seek 
and   had   persistently  declined   to   accept. 

"It  would  be  highly  inequitable  to  per- 
mit a  litigant  to  press  with  the  greatest 
pertinacity  for  years  unfounded  demands 
for  specific  and  general  relief,  however 
much  confidence  he  may  have  had  in  such 
charges,  necessitating  large  expenditures 
by  the  defendants  to  make  a  proper  de- 
fense thereto,  and  then,  after  the  sub- 
mission of  the  cause,  when  the  grounds 
of  relief  actupHy  asserted  were  found  to 
be  wholly  without  merit,  to  allow  aver- 
ments to  be  by  way  of  amendment,  con- 
stituting a  new  and  substantive  ground  of 
relief.  This  is  esperi?i11y  applicable  when 
the  facts  upon  which  such  amendment 
rests  were  known  at  the  incipiency  of  the 
litigation   and   the    character    of   the   relief 


was  such  as  called  for  promptness  in  as- 
serting a  right  thereto."  Warner  v.  God- 
frey,   186    U.    S.    365,    46    L.    Ed.    1203. 

In  Meriwether  v.  Garrett,  102  U.  S.  472, 
26  L.  Ed.  197,  it  was  held,  that  the  bills 
in  the  case  could  not  be  amended  so  as 
to  obtain  relief  against  additional  parties, 
without  making  an  entirely  new  suit,  as 
tliey  were  not  framed  with  a  view  to  any 
such    purpose. 

40.  Cross  bill. — Chicago,  etc.,  R.  Co.  v. 
Chicaa-o  Bank,  134  U.  S.  276.  33  L.  Ed. 
900.     See  the  title  CROSS   BILLS. 

41.  Where,  after  setting  up  the  defense 
of  prior  knowledge  and  use  of  the  thing 
patented,  and  giving  the  names  and  resi- 
dences of  witnesses  intended  to  be  called 
to  prove  the  defense,  the  answer  to  a  bill 
for  the  infringement  of  letters  patent  al- 
leges that  the  names  and  residences  of 
certain  other  witnesses  are  unknown  to 
the  defendant,  and  prays  leave  to  insert 
and  set  forth  in  the  answer  such  names 
and  residences  when  they  shall  be  dis- 
covered, it  is  competent  for  the  court  to 
allow,  upon  such  discovery,  the  amend- 
ment to  be  made  nunc  pro  tunc.  Roemer 
V.    Simon.   95    U.    S.    214,    24    L.    Ed.    384. 

42.  In  general. — Bambernrer  v.  Terry, 
103  U.  S.  40,  26  L.  Ed.  317;  Mexican 
Central  R.  Co.  v.  Duthie,  189  U.  S.  76, 
47  L.  Ed.  715;  Gagnon  v.  United  States. 
193  U.  S.  451.  48  L.  Ed.  74  5.  And  see  cases 
cited   post,   "Provisions    Stated,"   IX,   B.   1. 

43  TTffect  cf  practice  conf-^rmity  act. — 
See  West  v.  Smith,  101  U.  S.  263,  25  L. 
Ed.  809:  Liverpool,  etc..  Ins.  Co.  7'.  Gun- 
ther,  116  U.  S.  113,  29  L.  Ed  575:  Hender- 
son   7'.    Louisville,    etc.,    R.    Co.,    123    U.    S. 


AMEXDMEXTS. 


29) 


ments  as  to  parties,  it  may  be  stated  generally  that,  in  accordance  with  the 
practice  conformity  act,  any  such  amendments  may  be  made  in  the  United  States 
circuit  or  district  courts  by  adding  or  striking  out  the  name  of  any  party  as  are 
authorized  by  the  Code  or  practice  act  of  the  state  in  which  such  federal  couns 
are  held."*^ 

As  to  correcting  mistake  in  name  of  party,  see  post,  "Correction  of 
Misiake,"  11,  C,  2,  c,  (1),  (b). 

(b)  Correction  of  Mistake. — Where  the  Code  or  practice  act  of  the  state  in 
which  the  federal  court  is  held  authorizes  it,  a  declaration,  petition  or  complaint 
may  be  amended  in  such  court  by  correcting  any  mistake  therein.-*^ 

(c)  Insertion  of  Material  Allegations. — An  amendment  to  the  declaration, 
petition  or  complaint,  by  inserting  other  allegations  material  to  the  case,  is 
proper  where  such  amendment  is  authorized  in  the  state  in  which  the  federal 
court  is  held.*^^ 


61,  64,  31  L.  Ed.  92;  Atlantic,  etc..  R.  Co. 
V.  Laird.  164  U.  S.  393,  41  L.  Ed.  48.5; 
Noonan  v.  Caledonia  Alin.  Co.,  121  U. 
S.  396.  30  L.  Ed.  1061.  And  see  post, 
"Proper  Scope  of  Amendments."  II.  C,  2, 
c,  (1).  For  a  full  treatment  of  the  above 
act,    see    the    title    COURTS. 

For  a  review  of  the  Connecticut  prac- 
tice as  to  amendments — a  jurisdiction  in 
which  amendments  to  the  declaration  are 
allowed  with  great  liberality — see  the 
opinion  of  Clifford.  J.,  in  West  v.  Smith, 
101   U.   S.   263,   25   L.   Ed.    809. 

44.  Adding  or  striking  out  parties.^ 
Thus,  in  Xoonan  v.  Caledonia  Mining  Co., 
121  U.  S.  396,  30  L.  Ed.  1061,  it  was  held, 
that  the  amendment  making  a  new  party 
defendant  was  proper  under  §  142  of  the 
Code  of  Civil  Procedure  of  Dakota,  pro- 
viding that:  "The  court  may,  before  or 
after  judgment.  *  *  *  amend  any 
pleadings  *  *  *  ^jy  adding  or  striking 
out  the   name   of   any  party."   etc. 

In  Royal  Ins.  Co.  v.  Miller.  199  U.  S. 
353.  50  L.  Ed.  226.  it  was  held,  that  there 
was  no  abuse  of  discretion  in  allowing  an 
amendment  to  the  declaration,  after  issue 
joined  upon  the  repliration.  making  an 
additional    party    plaintiff. 

Generally,  as  to  who  are  proper  or  nec- 
essary parties,  the  propriety-,  manner  and 
time  of  making  additional  parties  or  strik- 
ing out  unnecessarv  or  improper  parties, 
see  the  title  PARTIES. 

Substitution  of  new  sole  plaintiff. — Rule 
that  amendments  are  discretionary  with 
the  court  below,  and  not  reviewable  by 
the  supreme  court,  applied  to  amendment 
of  declaration  substituting  new  sole  plain- 
tiff for,  and  in  the  place  of,  the  sole 
original  plaintiff.  Chapman  v.  Barnev, 
129   U.    S.   677,   32    L.   Ed.   SOO. 

Amendment  making  additional  defend- 
ant held  sufficient  though  informal.^ 
In  Noonan  v.  Caledonia  Min.  Co..  121 
U.  S.  396,  30  L.  Ed.  1061.  which  was  an 
action  to  determine  the  rights  of  the  par- 
ties to  mining  grounds  in  the  territory 
of  Dakota,  it  appeared  during  the  trial 
that  one  M.  was  a  proper  if  not  a  neces- 
sary  party    to    a    complete    determination 


of  the  matters  in  controversy.  There- 
upon, by  consent  of  parties,  he  was  made 
a  codefendant  in  the  action  and  the  fol- 
lowing entry  was  made  at  the  time,  in 
the  journal  of  proceedings,  following  the 
title  of  the  cause:  "By  consent  of  all 
parties,  Thomas  F.  Mahan  is  made  a. 
party  defendant  in  this  action.  Counsel 
for  defendant  appear  and  answer  instanter 
for  him.  any  amendments  to  pleadings 
reciuired  to  be  prepared  and  served  during 
the  pendency  of  this  action,  or  at  us 
conclusion."  Before  the  entry  of  judg- 
ment, the  plaintiff's  attorneys,  in  order  co 
make  the  record  complete  as  to  the  new 
defendant  Mahan.  instead  of  inserting  his 
name  in  the  proper  place  in  the  complaint, 
or  rewriting  it  entirely,  served  upon  the 
defendant's  attorneys.  notice  that  it 
amended  its  complaint  by  inserting  the 
name  of  the  said  Mahan  and  that  he 
claimed  interest  in  the  property  in  ques- 
tion which  claim  was  without  foundation 
or  right,  that  said  claim  of  said  Mahan 
casts  a  cloud  upon  plaintiff's  title  and  that 
plaintiff,  therefore,  makes  said  Mahan  a 
defendant  in  the  action  and  asks  the  same 
relief  against  him  as  prayed  against  the 
other  defendant.  On  appeal  to  the  su- 
preme court,  it  was  held,  that,  while  it 
would  have  been  the  better  course,  when 
the  order  was  entered  that  Mahan  be 
joined  as  codefendant,  for  the  attorneys 
of  the  plaintiff  to  have  had  his  name  at 
once  inserted  in  the  complaint,  with  such 
other  changes  as  to  make  the  allegations 
apply  to  him,  yet,  as  the  trial  continued 
after  the  amendment,  the  defendant 
Mahan.  participating  in  all  its  proceedings 
as  if  his  name  had  been  inserted  in  the 
complaint  in  the  most  formal  manner,  and 
he  had  answered  it  specifically,  he  was 
sufficiently  made  party  to  the  case  by  the 
amendment. 

45.  Correction  of  mistake. — Noonan  v. 
Caledonia  Min.  Co.,  121  U.  S.  396,  30  L. 
Ed.  1061,  quoting  from  §  142  of  the 
Dakota  Code  of  Civil  Procedure,  authoriz- 
ing amendment  "by  correcting  a  mistake 
in  the  name  of  a  party,  or  a  mistake  in 
an\'    oth<"r    respect." 

46.  Material     allegations. — Noonan     v. 


300 


AMENDMENTS. 


(d)  To  Conform  to  Facts  Proved. — Where  authorized  by  the  Code  or  prac- 
tice act  of  the  state  in  which  the  federal  court  is  held,  a  declaration,  petition  or 
complaint  may  be  amended  to  conform  it  to  the  facts  proved,  where  such  amend- 
ment does  not  change  substantially  the  claim.^' 

(e)  Amendment  of  Demise  in  Ejectment. — In  actions  of  ejectment,  the  lease 
being  a  fiction,  amendments  of  the  demise  are  frequently  allowed.^ ^ 

(2)     Amendments    Changing    Substance    of    Original    Claim. — Where,  as    is 


Caledonia  Min.  Co.,  121.  U.  S.  396,  30  L. 
Ed.   1061. 

"Both  in  the  English  and  American 
courts,  amendments,  have  been  allowed  in 
well-considered  cases,  for  the  purpose  of 
introducing  into  the  suit  a  new  and  in- 
dependent cause  of  action."  Tilton  v. 
Cofield,  93  U.  S.  163,  23  L.  Ed.  858,  citing 
Tiernan   v.   Woodrufif,   5   McLean   135. 

Insertion  of  new  counts  for  same  cause 
of  action. — Where  an  action  has  been  re- 
moved from  a  state  court  to  the  circuit 
court,  the  latter  may,  in  accordance  with 
the  state  practice,  grant  the  plaintifif  leave 
to  amend  his  declaration  by  inserting  new 
counts  for  the  same  cause  of  action  as 
that  alleged  in  the  original  counts.  West 
V.   Smith.   101    U.   S.   263,  25    L.    Ed.    809. 

To  show  surety's  knowledge  of  changes 
in  contract. — Tn  United  States  v.  Freel, 
186  U.  S.  309,  46  L.  Ed.  1177.  which  was 
an  action  against  a  contractor  and  the 
sureties  on  his  bond,  it  was  held,  that 
where  from  the  contracts  as  set  out  in 
the  declaration  by  attaching  them  as  ex- 
hibits, substantial  changes  in  the  original 
contract  appeared,  such  declaration  put 
the  plaintiff  out  of  court  so  far  as  the 
surety  was  concerned,  unless  it  averred 
such  changes  to  have  been  made  with 
the  knowledge  and  consent  of  the  surety. 
If  the  governments'  pleader  had  evidence 
of  facts  showing  such  knowledge  and  con- 
sent, and  was  surprised  by  the  action  of 
the  trial  judge  in  sustaining  a  demurrer  to 
the  declaration  it  was  open  to  him  to  ask 
leave  to  amend  by  adding  the  necessary 
averment. 

47.  To  conform  to  proof. — Noonan  v. 
Caledonia  Min.  Co.,  121  U.  S.  396,  30  L.  Ed. 
1061;  Bamberger  z/.  Terry,  103  U.  S.  40,  26 
L.  Ed.  317;  Liverpool,  etc..  Ins.  Co.  v.  Gun- 
ther.  116  U.  S.  113.  29  L.  Ed.  575.  See, 
also,  Wilson  v.  Haley,  etc..  Co.,  153  U.  S. 
39.   38   L.    Ed.   627. 

Illustrations. — In  Davis  v.  Patrick,  141 
U.  S.  479,  35  L.  Ed.  826,  where  it  was  ob- 
jected that  the  court  erred  in  not  directing 
a  verdict  for  defendant  upon  the  ground 
of  a  departure  from  the  allegations  of  the 
petition,  the  evidence  showing  a  contract 
at  a  different  time  from  that  alleged,  the 
court  said:  "As  no  objection  was  made 
to  the  admission  of  testimony  on  this 
ground,  and  as  an  amendment  of  the 
petition  to  correspond  to  the  proof  would 
involve  but  a  trifling  change,  we  cannot 
see  that  there  was  any  error  in  the  rul- 
ing  of   the   court.     If   objection   had   been 


made  in  the  first  instance,  doubtless  the 
court  would,  as  it  ought  to  have  done, 
have  permitted  an  amendment  of  the 
petition." 

In  Railroad  Co.  v.  Lindsay,  4  Wall. 
650.  18  L.  Ed.  328.  where  it  was  insisted 
upon  for  the  first  time  in  the  supreme 
court  that  there  was  a  fatal  variance  be- 
tween the  facts  as  found  by  the  court, 
and  the  case  made  by  the  plaintiff's  peti- 
tion, the  court  said:  "It  does  not  appear 
that  any  of  the  evidence  offered  by  the 
plaintiffs  in  the  court  below  was  objected 
to  by  the  defendants,  nor  does  it  appear 
that  any  exception  was  taken  when  the 
court  announced  its  findings,  or  subse- 
quently when  the  judgment  was  entered. 
It  was  in  the  power  of  the  court  to  per- 
mit the  petition  to  be  amended  and  the 
proper  amendments  would  doubtless  have 
been  made  if  the  objection  had  been 
stated." 

48.  "In  an  ejectment,  the  lease  is  en- 
tirely a  fiction  invented  for  the  purpose 
of  going  fairly  to  trial  on  the  title. 
Courts  have  exercised  a  full  discretion  in 
allowing  it  to  be  amended.  A  plaintiff 
has  frequently  been  allowed  to  enlarge 
the  term,  when  it  has  expired  before  a 
final  decision  of  the  cause.  Between 
making  the  term  extend  to  a  more  distant 
day,  and  coinmence  at  a  later  day,  the 
court  can  perceive  no  difference  in  sub- 
stance. They  are  modifications  of  the 
same  power,  intended  to  effect  the  same 
object;  and  although  not  precisely  the 
same  in  form  the  one  is  not  greater  in 
degree  than  the  other."  Blackwell  v.  Pat- 
ton,  7  Cranch  471,  3   L.  Ed.  408. 

In  Coates  v.  Hamilton,  2  Dall.  256,  1 
L.  Ed.  371,  by  mistake  the  demise  had 
been  laid  in  the  declaration,  so  as  to  com- 
mence before  the  death  of  the  person, 
whose  death  gave  rise  to  the  controversy. 
Leave  was  granted  to  amend  the  declara- 
tion,   by    rectifying    this    mistake. 

In  ejectment,  the  date  of  the  demise  in 
the  declaration  may  be  amended,  during 
the  trial,  so  as  to  conform  to  the  title. 
Blackwell  v.  Patton,  7  Cranch  471,  3  L. 
Ed.    408. 

In  Cockshot  v.  Hopkins.  2  Dall.  97,  1 
L.  Ed.  305,  the  demise  in  the  declaration 
of  ejectment  having  expired  during  the 
pendency  of  the  action,  motion  was  made 
for  leave  to  amend  by  inserting  the  word 
twenty,  instead  of  seven,  so  as  to  enlarge 
the  term.  The  amendment  was  allowed 
on  payment  of  costs.  See  the  title 
EJECTMENT. 


AMBNDMEXrS. 


301 


usually  the  case,  the  Code  or  practice  act  of  the  state  in  which  the  federal  court 
is  held  prohibits  amendments  changing  substantially  the  original  claim,  such  pro- 
hibition is  equally  effective  as  to  proposed  amendments  in  the  federal  courts.*^ 
d.  Anszcer. — Amendment  to  Conform  to  Proof. — A  defendant  may  be  al- 
lowed to  amend  his  pleading  to  cure  a  variance  between  such  pleading  and  the 
proofs,  where  such  amendment  is  authorized  by  the  practice  in  the  state  in  which 
the  federal  court  is  held.^^ 


49.  Amendments  changing  substance  of 
original  claim. — Noonan  z'.  Caledonia  Min. 
Co.,  121  U.  S.  396,  30  L.  Ed.  lOCl  (decided 
in  accordance  with  Dak.  Code,  Civ.  Prac. 
§  142).  See,  also,  Bamberger  v.  Terry, 
103  U.  S.  40.  26  L.  Ed.  317;  Thompson  v. 
Musser,   1   Dall.   458,   1   L.   Ed.   222. 

In  Atlantic,  etc.,  R.  Co.  v.  Laird,  164  U. 
S.  393.  41  L.  Ed.  485,  the  amendments 
were  held  proper  under  §  471  of  the 
California  Code,  which  virtually  forbids 
amendments  only  where  the  allegation  of 
the  claim  or  defense  would  be  changed 
in  its  scope  or  meaning. 

In  Henderson  v.  Louisville,  etc.,  R.  Co., 
123  U.  S.  61,  31  L.  Ed.  92,  it  was  held, 
that,  the  action  being  on  the  common-law 
side  of  the  circuit  court,  the  pleadings 
and  practice  were  governed  by  the  law 
of  the  state,  and  the  right  to  amend  the 
petition  was  limited  by  article  419.  of  the 
Code  of  Practice  of  Louisiana,  which  pro- 
vides that  "after  issue  joined,  the  plaintiff 
may,  with  the  leave  of  the  court,  amend 
his  original  petition;  provided  the  amend- 
ment does  not  alter  the  substance  of  the 
demand  by  making  it  different  from  the 
one  originally  brought."  Under  this  sec- 
tion an  amendment  wholly  inconsistent 
with  the  allegations  of  the  original  peti- 
tion  cannot   be   allowed. 

Amendment  of  complaint  held  not  to 
introduce  a  new  cause  of  action. — In  At- 
lantic, etc.,  R.  Co.  V.  Laird,  164  U.S.  393, 
41  L.  Ed.  48.5,  which  was  an  action  for 
personal  injuries,  the  plaintiff,  on  the  trial, 
was  allowed  to  amend  her  complaint  by 
alleging  that  the  ticket  upon  which  she 
was  traveling  was  ''a  second  class"  ticket 
instead  of,  as  alleged  in  the  original  com- 
plaint, "a  first  class"  ticket.  To  the  cause 
of  action  stated  in  the  complaint  as  thus 
amended,  the  defendants  pleaded  a  statute 
of  limitations  of  two  years.  Judgment 
was  entered  on  the  verdict,  but  this  judg- 
ment was  subsequently  set  aside,  with 
leave  to  the  plaintiff  to  amend  her  com- 
plaint. The  second  amended  complaint 
was  afterwards  filed,  dismissing  one  of 
the  two  joint  tort  feasors  against  whom 
the  action  was  originally  brought,  and  al- 
leging that  the  injury  complained  of  was 
occasioned  solely  by  the  remaining  de- 
fendant. It  was  held,  by  the  supreme 
court,  that  neither  of  the  above  amend- 
ments introduced  a  new  cause  of  action 
so  as  to  render  the  bar  of  the  statute 
available. 

Lim.itation  of  action  not  a  change  of 
the  action. — In  District  of  Columbia  v. 
Talty,    182    U.    S.    510,    45    L.    Ed.    1207,    it 


was  held,  that  it  was  not  error  in  the 
court  below  to  try  the  case  on  the 
amended  petition,  as  it  merely  rested  the 
right  of  recovery  on  a  certain  contract, 
and  its  extension,  which  contract  and 
extensions  were  relied  on  in  the  original 
petition.  There  was,  therefore,  only  a 
limitation   of   the   action,  not  a  change  of  it. 

Am.endment  of  order  allowing  amend- 
ment to  prevent  contest  of  material  facts 
stated  in  original  petition. — In  Henderson 
C-.  Lcuisville,  etc.,  R.  Co.,  123  U.  S.  61, 
:!1  L.  Ed.  92,  it  was  held,  that,  under  the 
Louisiana  practice,  the  circuit  court,  after 
dismissing  a  petition  as  setting  forth  no 
cause  of  action,  with,  leave  to  file  an 
amended  petition,  might  modify  the  order 
allowing  the  amendment,  so  as  to  treat 
the  amendment  as  a  mere  addition  to  the 
original  petition,  and  thus  preclude  the 
plaintiff  from  contesting  a  material  fact, 
within  her  own  knowledge,  which  she 
had  once  solemnly  averred  in  the  original 
petition. 

50.  Amendment  to  conform  to  proof. — 
In  an  action  removed  into  the  circuit 
court  of  the  United  States  for  the  eastern 
district  of  New  York,  it  was  held,  that 
the  New  York  Code  of  Civil  Procedure. 
§§  539.  540,  should  furnish  the  rule  of 
practice  as  to  curing  variance  between 
pleadings  and  proof.  By  the  first  of  these 
sections,  it  is  provided  that  "a  variance 
between  an  allegation  in  a  pleading  and 
the  proof  is  not  material,  unless  it  has 
actually  misled  the  adverse  party  to  his 
prejudice  in  maintaining  his  action  or  de- 
fense upon  the  merits.  If  a  party  insists 
that  he  has  been  misled,  the  fact  and  the 
particulars  in  which  he  has  been  misled 
must  be  proved  to  the  satisfaction  of  the 
court.  Thereupon  the  court  may,  in  its 
discretion,  order  the  pleading  to  be 
amended  upon  such  terms  as  it  deeins 
just."  Section  540  declares  that,  "when 
the  variance  is  not  material,  as  prescribed 
in  the  last  section,  the  court  may  direct 
the  fact  to  be  found  accordin.g  to  the 
evidence,  or  may  order  an  immediate 
amendment  without  costs."  Liverpool, 
etc.,  Ins.  Co.  v.  Gunther,  116  U.  S.  113, 
29  L.  Ed.  575.  In  this  case  it  was  held, 
that,  although  there  was  some  obscurity 
in  pleading  a  defense,  yet  inasmuch  as  all 
the  testimony  necessary  to  the  establish- 
ment was  offered  and  proved  without  ob- 
jections, and,  on  the  conclusion  of  the 
tcstimonJ^  the  matter  was  called  to  the 
,-<ttention  of  the  court  by  a  request  _of 
the  defendant's  counsel  to  direct  a  verdict 
on   that   ground   alone,   such   matter  ought 


302 


AMENDMENTS. 


Amendments  Changing  Defense. — Where  the  Code  or  practice  act  of  the 
state  ni  which  the  federal  court  is  held  prohibits  amendments  changing  substan- 
tially the  defense,  such  prohibition  is  equally  effective  as  to  amendments  in  such 
federal  courts.^ ^ 

D.  Procedure  to  Obtain  Amendment — 1.  Manner  and  Requisites  of 
Application — a.  Manner. — The  usual  method  of  application  for  leave  to 
amend  pleadings  is  by  motion  or  petition.^^ 

b.  Shozving  as  to  Grounds  and  Excusing  Omission  in  Original  Pleading. — 
Under  the  rules  of  equity  practice,  the  application  for  leave  to  amend  the  bill, 
after  replication  filed,  must  show  that  such  application  is  not  for  the  purpose  of 
vexation  or  delay.^^ 

Showing  as  to  Materiality  of  Proposed  Amendment  and  Excusing 
Omission  from  Original  Pleading. — Under  the  29th  rule  of  equity  practice, 
the  appellant  must  show  that  the  matter  of  the  proposed  amendment  is  material, 
and  could  not,  with  reasonable  diligence,  have  been  sooner  introduced  into  the 
bill.54 

2.  Notice. — As  to  whether  notice  to  the  opposite  party  is  essential  to  the 
allowance  of  amendments  to  pleadings,  depends  upon  the  stage  of  the  cause  at 
which  the  application  is  made,'^^  and  whether  the  parties  are  considered  to  be 
still  in  court.^^ 


to  have  been  either  submitted  to  the  jury, 
or  put  in  shape  for  such  submission,  if 
the  rights  of  the  adverse  party  required 
any  change  in  the  pleadings,  or  op- 
portunity for  the  production  of  other 
evidence. 

51.  Amendment  changing  defense.^ 
Atlantic,  etc..  R.  Co.  v.  Laird,  164  U.  S. 
:?93,  41  L.  Ed.  485;  Noonan  v.  Caledonia 
Min.  Co.,  121  U.  S.  396.  30  L.  Ed.  1061. 
See  ante,  "Amendments  Changing  Sub- 
stance of  Original  Claim,"  II.  C.  2.  c,  (2). 

52.  Application  by  motion  or  petition. 
— See  National  Bank  v.  Carpenter,  101 
U.  S.  567,  25  L.  Ed.  815;  In  re  Sanford,  etc., 
Co.,  160  U.  S.  247,  40  L.  Ed.  414;  Snead 
V.  McCoull,  12  How.  407.  13  L.  Ed.  1043; 
Brown  v.  Schleier,  194  U.  S.  18,  48  L.  Ed. 
857;  Mexican  Central  R.  Co.  v.  Duthie, 
189    U.    S.   76,   47  L.   Ed.   715. 

53.  Affidavit  that  application  is  not  for 
purpose  of  vexation  or  delay. — By  the  29th 
rule  of  equity  practice,  prescribed  by  the 
United  States  supreme  court,  amendment 
by  the  plaintiff,  after  replication  filed. 
•will  only  be  permitted  upon  special  order 
of  a  judge  of  the  court  upon  motion  or 
petition,  "upon  proof  by  affidaAnt  that  the 
same  is  not  made  for  the  purpose  of  vexa- 
tion or  delay."  Washington  Railroad  v. 
Bradleys,    10  Wall.  299,   19    L.    Ed.   894. 

54.  Showing  as  to  materiality  and  ex- 
cusing omission  from  original  pleading. — 
Washina:ton  Railroad  v.  Bradleys,  10 
Wall.  299,  19  L.   Ed.   894. 

In  Snead  v.  McCoull,  12  How.  407,  13 
L.  Ed.  1043,  the  supreme  court,  in  affirm- 
ing the  judgment  of  the  circuit  court  in 
refusing  to  allow  a  proposed  amendment 
to  the  bill,  both  because  the  application 
came  too  late  and  the  proposed  amend- 
ment   changed    the    character    of    the    bill 


so  as  to  make  substantially  a  new  case, 
said:  "A  fact  which  imparts  greater 
force  to  the  refusal  of  the  circuit  court 
to  permit  amendment  at  so  late  a  stage 
of  the  proceedings  is  this,  that  the  ap- 
plication to  that  court  appears  to  have 
been  accompanied  with  no  evidence,  and 
not  even  by  an  affidavit,  to  show  that  the 
amendments  desired  could  not  have  been 
made  portions  of  the  original  bill;  on  the 
contrary,  it  is  manifest,  that  they  might 
have  formed  a  part  of  the  case  as  origi- 
nally presented  to  the  circuit  court,  if  at 
any  time  it  were  proper  to  incorporate 
them  with  the  subject  matter,  and  with 
the  objects  proposed  hy  the  original  bill." 

55.  On  coming  in  of  answer. — Under 
equity  rules  29,  45,  upon  coming  in  of  de- 
fendant's answer,  the  plaintiff  may,  upon 
motion,  without  notice  to  the  defendant, 
have  leave  to  amend  his  bill.  In  re  San- 
ford, etc.,  Co.,  160  U.  S.  247.  40  L.  Ed.  414. 

After  replication  filed  and  writhdrawm. 
— Under  the  29th  rule  of  equity  practice, 
amendment  of  the  bill,  after  replication 
filed  and  withdrawn,  must  be  upon  due 
notice  to  the  other  party.  Washington 
Railroad  v.  Bradleys.  10  Wall.  299,  19  L. 
Ed.    894. 

56.  After  judgment,  the  parties  are  still 
in  court,  for  all  the  purposes  of  giving 
effect  to  it;  and  in  the  action  of  eject- 
ment, the  court  having  power  to  extend 
the  demise,  after  judgment,  the  defend- 
ant may  be  considered  in  court,  on  a  mo- 
tion to  amend,  as  well  as  on  any  other 
motion  or  order  which  may  be  necessary 
to  carry  into  effect  the  judgment.  In  no 
correct  sense  is  this  power  of  amendment 
similar  to  the  exercise  of  an  original  ju- 
risdiction between  parties  on  whom  proc- 
ess has  not  been  served.  Walden  V. 
Craig,   14   Pet.   147,   10   L.   Ed.  393. 


AMENDMENTS. 


303 


3.  LUAVE  OF  Court  to  Amend— a.  Necessity.— It  would  seem  that,  as  a  gen- 
eral rale,  amendments  of  pleadings  must  be  upon  leave  and  order  of  court.s" 

As  to  objections  for  failure  to  obtain  leave  to  amend,  see  post,  "Ob- 
j,ections  to  Amended  Pleadings/"  II.  G. 

b.  Discretion  of  Court  as  to  Allowance  or  Refvisal. — It  has  been  repeatedly 
held,  ihat  the  granting  or  refusing  amendments  to  pleadings  rests  in  the  sound 
discreiion  of  the  trial  court,^^  and  the  exercise  of  such  discretion  will  not  be 
reviewed  by  the  supreme  court,  unless  in  case  of  manifest  abuse. ■''^ 

c.  imposition  of  Terms  as  Condition  of  Allozvance. — The  trial  court  mav,  in 
its  discretion,  as  a  condition  of  allowing  amendments  of  pleadings,  impose  such 
terms  as  it  may  deem  reasonable  and  proper.  This  power  is  given  both  by  the 
rules  of  equity  practice,^"  and  by  §  954  of  the  United  States  Revised  Statutes  ;'5i 


57.  Necessity  for  leave  and  order  of 
court. — In  Ballance  v.  Forsyth,  24  How. 
183,  16  L.  Ed.  733,  though  there  was  a 
paper  in  the  record  purporting  to  be  an 
amended  bill,  the  supreme  court  held 
that  it  was  doubtful  whether  it  was  prop- 
erly filed,  it  not  being  clear  that  the 
amendments  were  filed  with  leave,  and 
formed  any  part   of  the   bill. 

In  Terry  v.  McClure.  103  U.  S.  442,  26 
L.  Ed.  403,  an  amended  bill  was  filed  with- 
out leave,  eight  years  after  the  original 
bill  in  equity  had  been  filed,  and  on  the 
day  it  was  dismissed,  on  a  final  hearing 
upon  the  pleadings  and  proofs.  It  was 
held,  that  such  amended  bill  must  be  dis- 
regarded in  the  consideration  of  the  case 
in   the   supreme   court. 

Under  the  29th  rule  of  equity  practice, 
amendment  of  the  bill,  after  replication 
filed  and  withdrawn,  must  be  upon  a  spe- 
cial order  of  a  judge  of  the  court.  Wash- 
ington Railroad  v.  Bradleys,  10  Wall.  299, 
19    L.    Ed.    894. 

58.  Allowance  or  refusal  discretionary 
with  trial  court. — Mandeviile  r.  Wilson,  5 
Cranch  1.5,  3  L.  Ed.  23;  Marine  Ins.  Co. 
r.  Hodgson,  6  Cranch  206,  3  L.  Ed.  200; 
Walden  v.  Craig.  9  Wheat.  576.  6  L.  Ed. 
164;    Chirac   v.    Reinicker,    11    Wheat.    280. 

6  L.  Ed.  474;  Wright  v.  Hollingsworth.  1 
Pet.  165,  7  L.  Ed.  96;  United  States  v. 
Buford.  3  Pet.  12,  7  L.  Ed.  585;  Ex  parte 
Rradstreet,  7  Pet.  634,  8  L.  Ed.  810;  Smith 
V.  Vaughan.  10  Pet.  366.  9  L.  Ed.  457; 
Matheson  v.  Grant,  2  How.  263,  11  L. 
Ed.  261;  Spencer  v.  Lapsley,  20  How. 
264,  15  L.  Ed.  902;  Eberlv  Z'.  Moore.  24 
Hnw.  147,  16  L.  Ed.  612;  Sheets  r.  Selden. 

7  Wall.  416.  19  L.  Ed.  166;  Ewing  r.  How- 
ard. 7  Wall.  499.  19  L.  Ed.  293;  Tilton  v. 
Coheld.  93  U.  S.  163,  23  L.  Ed.  858;  Na- 
tional Bank  v.  Carpenter,  101  U.  S.  567, 
25  L.  Ed.  815;  Hardin  r.  Bovd,  113  U.  S. 
756,  28  L.  Ed.  1141;  Richmond  7'.  Irons. 
121  U.  S.  27.  30  L.  Ed.  864;  Chapman  v. 
Barney.  129  U.  S.  677.  32  L.  Ed.  800;  Bul- 
litt Countv  f.  Wn-her.  130  IT.  S.  142.  32 
L.  Ed.  885;  Central  Trust  Co.  v.  Grant 
Ivocomotive  Works.  135  U.  S.  207,  34  L. 
Ed.  97;  Gormlev  7'.  Bunyan,  138  U.  S. 
623,  34  L.  Ed.  1086;  Mexican,  etc..  R.  Co. 
V.  Pinknev.  149  U.  S.  194.  37  L.  Ed.  699; 
Carr  7-.  Nichols.   157   U.   S.   370,   39    L.    Ed. 


736;  Kinney  v.  Columbia,  etc..  Ass'n,  191 
U.  S.  78,  48  L.  Ed.  103;  Royal  Ins.  Co. 
V.    Miller,   199   U.   S.   353.   50    L.    Ed.   226. 

In  Mandeviile  v.  Wilson,  5  Cranch  15, 
3  L.  Ed.  23;  Marshall,  Ch.  J.,  held  that 
while  the  permitting  amendments  is  a 
matter  of  discretion,  this  did  not  mean 
that  a  court  may  in  all  cases  permit  or 
refuse  amendments  without  control.  A 
case  may  occur,  where  it  would  be  error 
in  a  court,  after  having  allowed  one  party 
to  amend  to  refuse  to  suffer  the  other 
party    to    amend    also,    before    trial. 

59.  Discretion  not  reviewed  unless 
manifestly  abused. — See  cases  cited  in 
preceding    note. 

For  a  full  treatment  of  the  power  of 
the  supreme  court  to  review  the  exercise 
of  discretion  bv  the  lower  courts,  see  the 
title    APPEAL   AND    ERROR. 

60.  Imposition  of  terms  under  equity 
rules. — Under  equity  rules  29.  45.  the 
plaintifif,  upon  coming  in  of  the  answer, 
may  have  leave  to  amend  his  bill,  with 
or  without  the  payment  of  costs,  as  the 
court  may  direct.  In  re  Sanford.  etc.,  Co.. 
160  U.  S.  247,  40  L.  Ed.  414;  Southern 
Pac.  R.  Co.  V.  United  States,  168  U.  S. 
1.  42   L.   Ed.  355. 

Under  the  29th  rule  of  equity  practice, 
after  replication  filed,  the  plaintiff  cannot 
withdraw  it  and  amend  his  bill  except 
upon  "submitting  to  such  other  terms  as 
may  be  imposed  by  the  judge  for  speed- 
ing the  cause."  Washington  Railroad  v. 
Bradleys,    10    Wall.    299.    19    L.    Ed.    894. 

By  the  35th  rule  of  equity  practice  es- 
tablished by  the  United  States  supreme 
court,  it  is  provided  that  "if,  upon  hear- 
ing, any  demurrer  or  plea  shall  be  al- 
lowed,, the  defendant  shall  be  entitled  to 
his  costs.  But  the  court  may,  in  his  dis- 
cretion, upon  motion  of  the  plaintifif. 
allow  him  to  amend  his  bill  upon  such 
terms  as  it  shall  deem  reasonable."  Na- 
tional Bank  v.  Carpenter,  101  U.  S.  567. 
25    L.    Ed.    815. 

As  to  the  power  of  the  court  to  im- 
pose terrns  just  to  the  party  not  in  fault 
on  allowing  amendment  where  case  for 
relief  made  out  other  than  that  disclosed 
by  bill,  see  Neale  7'.  Neales,  9  Wall.  1, 
19    L.    Ed.    590. 

61.  Section  954  of  the  Revised  Statutes, 


304 


AMENDMENTS. 


and  its  exercise  of  discretion  as  to   such  terms  is  not  open  to  examination  on 
appeal. ^2 

E.  Manner  of  Amendment. — As  to  amendment  of  complaint  making  addi- 
tional party  defendant,  held  sufficient  though  informal,  see  ante,  "As  to  Parties," 
II,  C,  2,  c,  (1),  (a).  As  to  amendment  of  answer  nunc  pro  tunc,  see  ante,  "An- 
swer," II,  C,  1,  d. 

F.  Effect  of  Amendment — 1.  Relation  Back  o\-  Amendment — Effect 
UPON  Running  of  Statute  op  Limitations. — See,  generally,  the  title  Limi- 
tation OF  Actions  and  Adverse  Possession. 

a.  General  Rule. — The  general  rule  is  that  an  amendment  of  a  declaration, 
petition  or  complaint,  relates  back  to  the  time  of  the  filing  of  the  original  plead- 
ing, so  that  ihe  running  of  the  statute  of  limitations  against  the  amendment  i.s 
arrested  thereby.*'^ 

b.  Amendments  Introducing  New  Cause  of  Action. — The  above  rule,  how- 
ever, from  its  very  reason,  applies  only  to  an  amendment  which  does  not  cre- 
ate  a   new   cause   of   action,*'-*    and,    where   an   amended    declaration   or    petition 


expressly  provides  that  the  amendments 
specified  therein  are  to  be  permitted  upon 
such  conditions  as  the  court  "shall,  in  its 
discretion  and  by  its  rules,  prescribe." 
Kinney  v.  Columbia,  etc.,  .\ss'n,  191 
U.  S.  78,  48  L.  Ed.  103;  Gagnon  v. 
United  States,  193  U.  S.  451,  48  L.  Ed. 
745;  Mexican  Central  R.  Co.  v.  Duthie, 
189  U.  S.  76,  47  L.  Ed.  715;  Bamberger 
V.  Terry,  103  U.  S.  40,  26  L.  Ed.  317. 
For  further  citations  of  cases  decreed  un- 
der this  section,  see  post,  "i^rovisions 
Stated."    IX,    B,    1. 

Effect  of  refusal  to  amend  on  condi- 
tions imposed  on  extension  of  time,  on 
defendant's  motion. — In  Jackson  v.  Em- 
mons, 176  U.  S.  532,  44  L.  Ed.  576.  on 
Dec.  8th,  1897,  after  a  partial  hearing  of 
the  case,  the  plaintiff  on  his  motion,  by 
leave  of  court,  withdrew  a  juror,  and  the 
remaining  jurors  were  discharged  from 
further  consideration  of  the  case,  witli 
leave  to  amend  his  declaration  as  ad- 
vised within  twenty  days,  and  the  case  was 
continued  for  the  term.  Subsequently,  on 
motion  of  the  attorney  for  the  defendants, 
and  after  notice  to  the  plaintiff,  the  order 
limiting  plaintiff's  time  to  amend  was 
rescinded,  and  he  was  given  twenty  days 
from  the  7th  of  January,  1898,  to  amend 
his  declaration,  and  was  ordered  to  pay 
the  costs  of  the  term  in  which  the  juror 
was  withdrawn.  On  the  ;27th  of  January, 
the  plaintiff  served  on  the  defendant's  at- 
torney notice  of  election  not  to  amend, 
on  the  ground  of  the  order  as  to  pay- 
ment of  costs.  The  supreme  court,  in 
holding  that  the  trial  court  erred  in  dis- 
missing the  case,  said:  "If  the  original 
order  granting  leave  to  amend  had  been 
made  conditional  upon  the  payment  of 
costs,  the  plaintiff  might  or  might  not 
have  accepted  it.  To  decline  to  amend 
afterwards  upon  conditions  which  were 
not  exacted  or  even,  as  far  as  the  records 
show,  were  not  contemplated,  cannot  be 
charged  against  him  as  misconduct.  In- 
deed, there  is  no  question  of  his  good 
faith,    and    whatever    conditions    or   rights 


the  defendant  was  entitled  to  in  conse- 
quence of  the  motion  should  have  been 
asserted  and  adjudged  when  the  plain- 
tiff's motion  was  made.  If  such  rights 
had  been  asserted,  the  plaintiff  would 
have  had  a  choice  of  yielding  or  not  yield- 
ing to  them,  which  afterwards  could  not 
be    exercised." 

62.  Not  reviewable  on  appeal. — The  ac- 
tion of  an  inferior  court  as  to  the  terms 
on  which  it  will  allow  a  complainant  to 
amend  a  bill  in  equity  to  which  it  has 
sustained  a  demurrer,  is  a  matter  within 
the  discretion  of  such  court,  and  not 
open  to  examination  in  the  supreme  court 
on  appeal.  Sheets  t'.  Selden,  7  Wall.  416, 
19  L.  Ed.  166.  See  ante,  "Discretion  of 
Court  as  to  Allowance  or  Refusal,"  II. 
D,   3.   h. 

63.  General  rule. — Union  Pac.  R.  Co. 
r'.  Wyler.  158  U.  S.  285,  39  L.  Ed.  983; 
Sicard  v.  Davis,  (i  Pet.  124,  8  L.  Ed.  342. 
See,  also,  .\tlantic.  etc.,  R.  Co.  v.  Laird, 
164   U.    S.   393,   41    L.    Ed.  485. 

Where  the  amendment  does  not  set  out 
a  new  cause  of  action,  but  merely  that 
set  forth  in  the  original  declaration  or 
petition,  the  bar  of  the  statute  will  not 
apply  though  the  amended  declaration  or 
petition  was  not  tiled  until  after  the  statu- 
tory period  had  elapsed.  Texas,  etc.,  R. 
Co.  V.   Cox.   145   U.   S.   593,  36   L.   Ed.   829. 

When  a  petition  for  confirmation  of  a 
claim  to  lands  in  Florida  was  presented, 
and  was  defective,  and  the  court  allowed 
an  amended  petition  to  be  filed,  it  would 
be  too  strict  to  say  the  original  petition 
was  not  the  commencement  of  the  pro- 
ceeding but  that  the  amendment  allowed 
by  the  superior  court  should  be  taken  as 
the  date  when  the  claim  was  first  pre- 
ferred. United  States  v.  Delespine.  15 
Pet.    319,    10    L.    Ed.    753. 

64.  Limitation  of  rule. — Union  Pac.  R. 
Co.  7'.  Wyler.  158  U.  S.  285,  39  L.  Ed. 
983;  Sicard  v.  Davis,  6  Pet.  124,  8  L.  Ed. 
342. 


AMBSDMBNTS. 


305 


l:ring.^  forward  a  new  and  independent  cause  of  action,  the  bar  of  the  statute  of 
limitaiions  may  apply  to  it.^^ 

c.  Amendments  Making  Neiv  Parties. — Where  new  parties  defendant  are 
made  by  amendment,  the  stattrte  of  Hmitations  is  available  to  them  at  the  pe- 
riod, when  th€  amended  pleading  was  filed. '^^ 

2.  Effect  upon  Previous  Submission  of  Cause. — When  an  amendment  is 
permitted,  the  court  must,  in  its  discretion,  determine  whether  any  submission 
which  has  been  made  ought  to  be  vacated.®" 

3.  Effect  as  Authorizing  Additionai,  Pi^eadings. — Where  an  amendment 
has  been  allowed  to  the  declaration,  the  defendant  may  elect  to  plead  de  novo, 
or  to  abide  by  his  plea.^* 


65.  Amendments  introducing  new  and 
independent  cause  of  action. — Texas,  etc.. 
R.  Co.  V.  Cox,  145  U.  S.  593.  36  L.  Ed. 
829,   and   cases   cited   in   preceding   note. 

Where  the  amended  petition  or  com- 
plaint sets  up  a  new,  distinct  and  inde- 
pendent cause  of  action  against  Avhich  the 
statute  of  limitations  had  run  at  the  time 
of  the  filing  of  such  pleading,  the  bar  of 
the  statute  will  prevail.  Atlantic,  etc..  R. 
Co.  V.  Laird,  164  U.  S.  393,  41  L.  Ed. 
485. 

"The  principle  is,  that,  as  the  running 
of  the  statute  is  interrupted  by  the  suit 
and  summons,  so  far  as  the  cause  of  ac- 
tion then  propounded  is  concerned,  it  in- 
terrupts as  to  all  matters  subsequently 
alleged,  by  way  of  amendment,  which  are 
part  thereof.  But  where  the  cause  of  ac- 
tion relied  upon,  in  an  amendment,  is 
different  from  that  originally  asserted,  the 
reason  of  the  rule  ceases  to  exist,  and 
hence  the  rule  itself  no  longer  applies." 
Union  Pac.  R.  Co.  v.  Wyler,  158  U.  S. 
285.   39    L.    Ed.    983. 

Rule  not  afTected  by  consent  to  amend- 
ment.— The  rule  just  laid  down  as  to  the 
availability  of  a  plea  of  the  statute  of 
limitations  to  an  amended  declaration,  pe- 
tition or  complaint  setting  out  a  new 
cause  of  action,  is  not  affected  by  the 
fact  that  such  amended  pleading  was 
filed  by  consent.  Such  consent  covers 
the  right  to  file  the  amended  pleading, 
but  does  not  waive  the  defenses  thereto 
when  filed.  Union  Pac.  R.  Co.  v. 
Wyler,    158   U.    S.    285,    39    L.    Ed.    983. 

"If  the  interruption  to  the  running  of 
the  statute  created  by  the  first  summons 
applied  only  to  the  cause  of  action  therein 
set  out,  it  would  have  required  an  ex- 
press renunciation  of  the  benefit  of  the 
.statute,  which  had  fully  operated  upon 
the  new  cause  of  action  set  out  in  the 
amended  petition — when  that  petition  was 
filed.  In  Sicard's  Case,  supra  [6  Pet. 
124],  although  the  amendment  had  been 
filed  by  leave  of  court,  and  was,  there- 
fore, a  part  of  the  pleadings,  it  was  held, 
that  the  bar  of  the  statute  applied  to  the 
new  cause  of  action  alleged  in  the  amend- 
ment and  the  rule  there  enforced  is  fol- 
lowed in  the  other  cases  cited."  Union 
Pac.  R.  Co.  V.  Wyler.  158  U.  S.  285,  39 
L.    Ed.    983. 

1  U  S  Kdc-20 


Amendment  open  to  plea  of  the 
statute      of     limitations      as     introducing 

new  cause. — In  Sicard  v.  Davis,  6 
Pet.  124.  8  L.  Ed.  342,  the  plaintiff 
brought  an  action  of  ejectment,  in 
which  he  laid  his  demise  as  having  been 
made  by  Steven  Sicard  on  January 
30.  1815,  and  at  the  November  term 
of  the  court  in  1821  he  was  given 
leave  to  amend  by  laying  his  demise  in 
the  name  of  the  heirs  of  the  original 
grantee  of  the  lands,  Joseph  Phillips  and 
others,  to  whom  the  land  had  been  con- 
veyed before  the  execution  of  the  deed 
under  which  Sicard  acquired  his  title. 
The  supreme  court,  speaking  through  Mr. 
Chief  Justice  Marshall,  held  that  limita- 
tions might  be  pleaded  to  the  second 
allegation,  though  not  to  the  first,  be- 
cause "the  second  count  in  the  declaration 
being  on  a  demise  from  a  different  party 
asserting  a  different  title,  was  not  dis- 
tinguishable, so  far  as  respects  the  bar 
of  the  act  of  limitations  from  a  new  ac- 
tion." 

66.  Amendment  making  new  parties. — 
A  bill  was  filed  in  1808  for  the  purpose 
of  obtaining  the  legal  title  to  certain 
lands  in  Kentucky,  and  afterwards,  new 
parties  were  made  defendants,  in  an 
amended  bill,  filed  in  1815.  Until  these 
parties  had  so  become  defendants,  and 
parties  to  the  bill,  the  suit  cannot  be  con- 
sidered as  commenced  against  them;  the 
statute  of  limitations  will  avail  the  new 
defendants,  at  the  period  when  the 
amended  bill  was  filed;  and  they  are  not 
to  be  affected  by  the  proceeding  during 
the  time  they  were  strangers  to  it.  Miller 
V.  Mclntyre,  6  Pet.  61,  8  L.  Ed.  320. 

67.  Effect  upon  previous  submission  of 
cause. — Bamberger  v.  Terry.  103  U.  S. 
40,    26   L.    Ed.   317. 

Where  the  plaintiff  after  submission  of 
the  cause  is  permitted  to  amend  his  dec- 
laration so  as  to  avoid  a  variance  be- 
tween it  and  the  proofs,  and  it  appears 
that  neither  the  nature  nor  the  merits 
of  the  issue  are  thereby  changed,  the 
defendant  is  not  entitled  to  an  order  set- 
ting aside  the  submission  of  the  cause 
for  trial.  Bamberger  v.  Terry,  103  U.  S. 
40,    26    L.    Ed.    317. 

G8.  Election  cf  defendant  to  ple?d  anew 
or   abide   by   plea. — The   authorities  prove. 


306 


AMENDMENTS. 


4.  Effe;ct  as  Waiving  Objection  to  Ruling  Sustaining  Dkmurre:r. — 
Where  a  demurrer  to  a  pleading  has  been  sustained,  the  fihng  of  an  amended 
pleadmg  is  held  to  waive  the  objeclion  to  the  ruling  on  the  demurrer.'^^ 

5.  Effect  as  Fixing  z^mount  in  Controversy. — The  amount  demanded  by 
the  amended  complaint,  when  differing  from  that  demanded  in  the  original,  de- 
termines the  question  of   jurisdictionJ^ 

6.  Effect  upon  Right  to  Remove  Cause. — The  right  to  the  removal  of  a 
suit  under  the  act  of  March  3rd,  1875,  18  Stat.  470,  ch.  137,  once  lost  by  a 
failure  to  file  a  petition  within  the  prescribed  time  is  not  restored  by  an  amend- 
ment of  the  pleadings  afterwards  so  as  to  present  different  issues.'^ 

G.  Objections  to  Amended  Pleadings. — Demurrer  or  Motion  to  Strike. 
W'liere  an  amended  plea  is  broader,  as  well  as  more  specific  in  its  averments 


unquestionably,  that  upon  an  amendment 
being  made  to  the  declaration,  by  adding 
a  count  the  defendant  has  a  right  to 
plead  de  novo.  Wright  v.  HoUings- 
worth,   1    Pet.   165,   7   L.    Ed.   96. 

After    the    filing    of    a    new    count    of    a 
declaration,    the    defendant,    who,    to    the 
former    counts,    has    pleaded    the    general 
issue,    or    any    particular    plea    may    with- 
draw the  same,  and  plead  anew,  either  the 
general    issue,    or    any    further    or    other 
pleas,    which    his    case    may    require;    but 
he  may  if  he  please,  abide  by  his  plea  al- 
ready   pleaded,    and    waive    his    right     to 
pleading    de    novo,    the    failure    to    plead, 
and   going  to   trial  without   objection,   are 
held  to  be  a  waiver  of  his  right  to  plead, 
and   an  election  to  abide  by  his  plea;  and 
if    it,    in    terms,    purports    to    go    to    the 
whole    action,    it    is    deem.ed    sufficient    to 
cover  the  whole  declaration;  and  puts  the 
plaintiff  to   the  proof   of  his   case,   on   the 
new,  as  well  as  on  the  old  counts.   Wright 
V.   Hollingsworth.  1  Pet.   165,  7  L.   Ed.  96. 
Leave   to   amend  before   trial — Election 
of  defendant  to   take   costs   or  imparl  to 
next    term. — In    Thompson    z'.    Mnsser,    1 
Dall.  458,  1  L.  Ed.  222.  the  court  in  hold- 
ing that   an  amendment  after  jury   sworn, 
without    consent    of     defendant,      without 
giving  him  leave  to  plead  anew,  and  with- 
out  imparlance,   or   awarding   payment   of 
costs    by    the    defendant,    said:     "Suppose, 
however,    that    the    court   had    given      the 
plaintiff    leave    to    make    the    amendment 
before    the    trial;    which    they    might    un- 
qtiestionably  have   done,  as  the   nature   of 
tbe   action   was   not   thereby   changed;   yet 
it    was    in   the    election    of   the    defendant. 
either  to  take  costs  of  the  plaintiff,  or  to 
imparl    to    the    next    term;    for    he    had    a 
right    to    advise    upon    a    plea    fitting    the 
declaration  so  amended;  or,  if  the  amend- 
ment  did   not.   in    his   opinion,    require   an 
alteration   of  the  plea,   he   might   take   the 
costs   and    enter   the     same      plea      imme- 
fiately.      At   all   events.    T   think  he   ought 
to    have    been    allowed,    if   he    pleased,    to 
plead  again  after   the  amendment,   and   so 
join   a   new    issue." 

See,  also,  Jones  f.  Ross,  2  Dall.  143,  1 
L.  Ed.  324,  in  which,  upon  motion  to 
amend  the  decbrati<"ai  in  a  qui  tarn  ac- 
tion,   it    was    held,    that    in    case    of    such 


amendment   the   defendants   would   be   en- 
titled   to   an    imparlance    and    costs. 

69.  Amendment  as  waiving  objection 
to  ruling  sustaining  demurrer. — A.  filed  a 
bill  in  equity  to  enforce  a  forfeiture,  and 
obtain  compensation  for  breach  of  agree- 
ment. The  defendant  demurred  by  a 
single  demurrer.  The  court  sustained  the 
demurrer  as  respected  the  forfeiture,  and 
overruled  it  as  to  the  residue  of  the  bill. 
The  complainant  amended  his  bill  in  con- 
formity to  the  opinion  of  the  court.  The 
defendant  answered.  Testimony  was 
taken,  and  the  complainant  got  a  decree 
for  so  much  money;  less,  however,  than 
he  claimed.  He  thereupon  appealed  to 
the  supreme  court.  The  defendant  did 
not  appeal.  Held,  that  though  the  court 
below  had  erred  in  sustaining  in  part, 
and  overruling  in  part  a  demur-er  which 
was  single,  j^et  that  the  complainant  by 
amending  his  bill,  and  the  defendant  by 
answering  afterwards  had  both  waived 
their  right  to  object  anywhere;  and  the 
defendant  specially  had  in  the  supreme 
court  by  not  appealing;  and  that  the 
question  of  forfeiture  was  withdrawn 
from  the  supreme  court.  Marshall  v. 
Vicksburg,   15   Wall.   146.   21   L.   Ed.   121. 

Where  there  was  a  demurrer  to  a  re- 
joinder, which  demurrer  was  sustained  by 
the  court  below,  and  the  party,  on  leave, 
filed  an  amended  rejoinder,  the  supreme 
court  cannot  be  asked  to  decide  upon  the 
demurrer.  The  point  was  waived  by  the 
filing  of  the  amended  rejoinder.  United 
States  T.  Boyd,  5  How.  29,  12  L.  Ed.  36. 
See   the  title   DEMURRERS. 

70.  EFect  as  fixing  amount  in  contro- 
versy.— Washer  v.  Bullitt  County,  110  U. 
S.  558,  28  L.  Ed.  249.  See  the  titles  AP- 
PEAL AND  ERROR;  COURTS;  JU- 
RISDICTION. 

71.  Effect  upon  right  to  remove  cause. 
— Phoenix  Life  Ins.  Co.  v.  Walrath,  117 
U.    S.   365.  29   L.    Ed.   924. 

Effect  of  amendment  of  pleadings  upon 
jurisdiction  of  court  after  removal  of 
cause. — AVherc  the  circuit  court  of  the 
United  States  has  jurisdiction  over  the 
parties  and  cause  of  action,  by  virtue  of 
the  12th  section  of  the  judiciary  act,  it 
cannot  be  affected  bv  any  amendment  of 
the   pleadings    changing   the    cause   of  ac- 


tl  an  the  original  plea,  an  order  striking  such  amended  plea  from  the  files  is 
erroneous.  The  questions  arising  upon  sucli  plea  could  be  more  appropriately- 
raised  by  demurrer.'^  2 

Objection  for  Omission  to  Obtain  Leave  to  Amend.— An  objection  to  an 
amended  bill  in  chancery  because  not  filed  with  the  leave  of  the  court  below,  as 
required  by  equity  rule  45,  cannot  be  first  made  in  the  supreme  court."^ 

ni.   Amendment  of  Indictments,  Informations  and  Presentments. 

See  the  title  Indictments,  Informations  and  Presentments. 

IV.   Amendment  of  Process  and  Return. 

In  this  section  only  the  statutory  provisions  authorizing  the  amendment  of 
process,  with  a  few  illustrations  of  such  amendments,  are  given.  For  further 
treatment  of  this  question,  see  the  title  Summons  and  Process,  and  the  specific 
titles  involving  the  necessity,  form  and  sufficiency  of  summons  and  process  and 
the  return  thereto,  as.  for  instance,  Attachment  and  Garnishment;  Execu- 
tions;  etc. 

Under  §  954  of  the  Revised  Statute,  the  trial  court  may  permit  the  amend- 
ment by  either  of  the  parties  of  any  defect  in  the  process  upon  such  conditions 
as  it  shall  in  its  discretion  or  by  its  rules  prescribe.''* 

By  §  948  of  the  Revised  Statutes,  "any  circuit  or  district  court  may,  af 
any  time  in  its  discretion,  and  upon  such  terms  as  it  may  deem  just,  allow  an 
amendment  of  any  process  returnable  to  or  before  it.  where  the  defect  has  not 
prejufliced,  and  the  amendment  will  not  injure,  the  party  against  whom  such 
process  issues.  "'^ 

V.    Amendment  of  Verdict. 

See  the  title  Verdict. 

VI.   Amendment  of  Judgments,  Orders  and  Decrees. 

See  the  titles  Judgments  and  Decrees;  Orders  of  Court,  and  cross  refer- 
■ences  there  found. 

tion.     Green   v.   Custard.   23   How.   484.   16  where   there    was   a   variance   between    the 

L.  Ed.  471.  See  the  title  REMOVAL  OF  writ  and  the  count  in  the  sum  demanded, 
CAUSES.  Amendment  of  execution  by  judgment. 

72.    Demurrer   held   proper    rather   than  —An    execution    varying    from    the    judg- 

Tnotion    to     strike.— Griswold    v.    Hazard.  ment  m  the  sum  for  which  issued  maybe 

141  U.  S.  260,  3.5  L.  Ed.  678.     See  the  title  amended    by    the     judgment.        Black      v. 

DEMURRERS.     Generally,    as    to    strik-  Wistar.  4  Ball.  267.  1  L.  Ed.  828. 
iriT  out  pleadings,  see  the  title   PLEAD-  Arnendment    of    wnt     and     process     by 

IXG  striking  out  "administrator,"  etc.,  and  in- 

"73.'    Objection    for    omission    to    obtain  ^'"^f  "^^'"7'C"'^^'  ^^^^"dant,  in  the 

leave   to   Vmend.-Clements    v.    Moore,    6  Zf,""  .     '.L-n!.  ^     tf '^^H  ^:^?   ^"f  ^  and 

Wall.    299.    18    L.    Ed.    786.      Generally,    as  ^^^lared    against    as    the    administrator   of 

to  raising  objections  for  the  first  time  in  l',  ^e  entered  his  appearance  to  the  suit 

th.  supreme  court,  see  the  title  APPEAL  l'   1,"   "'1'°"  u^'"^  ,^   P^'^    '"    ^b^.t^ment 

AMr»    VT>T>r\T>  averring    that    he    was    not    administrator 

.      LRKOK^  of  R.,  and  that  he  was  the   only  executor 

74.  Under  Rev.  Stat.,  §  954.— Bam-  of  R;  the  plaintiff  moved  to  amend  the 
berger  v.  Terry,  103  U.  S.  40.  26  L.  Ed.  .^^rit  and  the  declaration,  by  striking  out 
317;  Gagnon  v.  United  States,  193  U.  S.  administrator,  or,  inserting  executor- 
451,  457,  48  L.  Ed.  745;  Mexican  Central  jgave  was  granted,  and  the  amendment 
R.^Co.  z:  Duthie,  189  U.  S.  76,  47  L.  Ed.  ^as  made.  Held,  that  there  was  no  er- 
'!■''■  ror    in    the    circuit    court    giving   leave    to 

75.  Under  Rev.  Stat.,  §  948. — Kinney  ?•.  amend.  Randolph  v.  Barrett,  16  Pet.  138, 
Columbia,    etc.,    Ass'n.    191    U.    S.    78,    4^  10    L.    Ed.    914. 

L.  Ed.  103.  The  power  of  the  circuit  court  to  au- 
Amendment  of  writ  by  praecioe. — Tn  thorize  amendments,  when  there  is  any- 
Black  7'.  Wister,  4  Dall.  267.  1  L.  Ed.  828.  thing  in  the  record  to  amend  by,  is 
it  was  held,  that  a  writ  in  an  action  of  undoubted.  Tn  this  case,  the  defendant  ad- 
debt   might   be    amended    by   the    praecipe,  mitted   by   his   plea,   that   he   was   the   per- 


308  AMENDMENTS. 

VII.    Amendment   of  Appellate   Proceedings. 

See  the  title  AppKal  and  Erkor. 

VIII.   Amendment  of  Records. 

See  the  title  Records,  and  cross  references  there  found. 

IX.    Statute  of  Jeofails. 

A.  Origin  and  Purpose. — Federal  courts  have  possessed  the  power,  from 
their  organization  to  the  present  time,  to  amend  formal  imperfections  in  the  plead- 
ings, except  in  cases  of  special  demurrer  set  down  for  hearing,  and  are  directed 
to  give  judgment  according  to  law  and  right  of  the  cause. "^  This  power  was  ex- 
pressly given  by  the  thirty-second  section  of  the  act  of  congress,  Sept.  24th,  1789,. 
ch.  20,  1  Stat.  L.  91,  to  establish  the  judicial  courts  of  the  United  States.'''^  It 
was  to  prevent  the  mischiefs  ensuing  from  a  misapplied  rigor,  that  statutes  of  jeo- 
fails have  been  enacted,  and  their  salutary  influence  is  invoked,  whenever  the  in- 
trinsic merits  of  parties  litigant  would,  without  that  influence,  be  sacrificed  to. 
mere  modes  and  forms  of  practice.''* 

B.  Provisions  Stated,  Construed  and  Applied — 1.  Provisions  Stated. 
— By  §  954  of  the  United  States  Revised  Statutes  it  is  provided  that :  "No 
summons,  writ,  declaration,  return,  process,  judgment,  or  other  proceedings  in 
civil  causes,  in  any  court  of  the  United  States,  shall  be  abated,  arrested,  quashed, 
or  reversed  for  any  defect  or  want  of  form ;  but  such  court  shall  proceed  and 
give  judgment  according  as  the  right  of  the  cause  and  matter  in  law  shall  ap- 
pear to  it,  without  regarding  any  such  defect,  or  want  of  form,  except  those 
which,  in  cases  of  demurrer,  the  party  demurring  specially  sets  down,  together 
with  his  demurrer,  as  the  cause  thereof ;  and  such  court  shall  amend  every  such 
defect  and  want  of  form,  other  than  those  which  the  party  demurring  so  ex- 
presses; and  may  at  any  time  permit  either  of  the  parties  to  amend  any  defect 
in  the  process  or  pleadings,  upon  such  conditions  as  it  shall,  in  its  discretion  and 
by  its  rules,  prescribe."'^ 

son   liable  to  the  suit  of  the  plaintiff;   but  The  provisions   of  the  above   section   of 

averred    that    he    was    executor    and    not  this    act    are    now    incorporated    in    §    954, 

administrator;    whether    he    acted    in    one  U.    S.    Rev.    Stat.     See     post,     "Provisions 

character  or  the  other,  he  held  the  assets  Stated,"    IX,    B,    1. 

of    the    testator    or   intestate    in    trust    for  The    power    to    allow    amendments    of 

the    creditors;    and    when    his     plea      was  pleadings    and   process,   on    application    of 

filed,    it    became   part    of   the    record,    and  the   parties,   under   the   last   clause   of  this 

furnished   matter   by   which   the   pleadings  section,   has   already  been   treated   in   pre- 

might  be  amended.     This  amendment  was  vious    sections    of   this   article.      See   ante, 

not  only  authorized  by  the  ordinary  rules  "Amendment      of      Pleadings       in       Civil 

of  amendment,  but  also  by  the  statute  of  Cases,"    II;   "Amendment   of   Process   and 

the  United  States  of  1789,  §  32.    Randolph  Return,"    IV. 

V.  Barrett,  16  Pet.  138.  10  L.  Ed.  914.  78.    Purpose  of  statute. — Roach  v.  Hul- 

Amendment   to  return  to   writ  of  man-  ings,    16   Pet.   319.   10   L.    Ed.    979. 

damus. — An      amendment      by       allowing,  79.    Provisions    of   §    954. — Van    Ness   v.. 

nunc   pro    tunc,   an    entry,   omitted    at   the  United  States   Bank.  13  Pet.  17,   10  L.  Ed. 

proper    time,    by     inadvertence,      in      the  38;   Bank  v.   Guttschlick,  14  Pet.   19,  10  L.. 

journal    record    of   the    clerk   of   the    issue  Ed.  335;   Randolph  v.  Barrett,   16  Pet.  138^ 

of   a   writ   of   peremptory    mandamus;  and  10  L.   Ed.  914;   Roach  v.   Hulings,  16   Pet. 

an  amendment  by  the   marshal   to   his   re-  319,   10  L.   Ed.  979;   Stockton  v.  Bishop,  4 

turn  so  as  to  show  that  he  had  exhibited  How.    155,    11    L.    Ed.     918;      Garland     iK 

the   original  writ   to  the  party   served,   al-  Davis,  4  How.  131,  11  L.   Ed.  907;  Taylor 

lowed    as    matters    of    common    practice.  v.    Benham,    5    How.    233,    12    L-    Ed.    130j 

Supervisors    v.    Durand,    9    Wall.    736,    19  Townsend  v.  Jemison,  7   How.   706.   12  L. 

L.   Ed.   813.      See   the   title   MANDAMUS.  Ed.    880;    Parks    v.    Turner,    12    How.    39. 

76.  Power  possessed  by  federal  courts  13  L.  Ed.  883;  Railroad  Company  v. 
since  organization. — Nash  v.  Towne.  5  Lindsay.  4  Wall.  650,  18  L.  Ed.  328;  Cle- 
Wall.    689,    IS    L.    Ed.    527.  ments   v.    Moore,    6    Wall.    299,    18    L.    Ed. 

77.  Power  given  by  act  establishing  786;  Laber  v.  Cooper,  7  Wall.  565,  19  L. 
United  States  courts.— Roach  v.  Hulings,  Ed.  151;  The  Protector,  11  Wall.  82,  20 
16   Pet.   319,    10   L.    Ed.   979.  L.    Ed.    47;    Phillips,    etc..    Cons.     Co.      V. 


AMEXDMEXTS. 


309 


2.  Statute  Construed  and  Applied— a.  A  Remedial  Statute  and  to  Be  Lib- 
erally Construed.— ^ht  act  of  1789,  ch.  20,  §  32  is  a  remedial  statute,  and  must 
be  construed  liberally  to  accomplish  its  object.  It  not  only  enables  the  courts 
of  the  United  States,  but  it  enjoins  it  upon  them  as  a  duty,  to  disregard  the 
niceties  of  form,  which  often  stand  in  the  way  of  justice,  and  to  give  judgment 
according  as  the  right  of  the  cause  and  matter  in  law  shall  appear  to  them.**" 

b.  To  What  Defects  Applicable— (1)  In  General.— It  has  been  held  that  the 
provisions  of  the  act  of  1789,  now  incorporated  in  §  954  of  the  Revised  Stat- 
utes, are  sufificiently  comprehensive  to  embrace  every  conceivable  step  to  be 
taken  in  a  cause,  from  the  emanation  of  the  writ  down  to  the  judgment,  and 
extend  to  imperfections  and  want  of  form  in  the  findings  of  juries,  as  well  as 
to  the  other  proceedings  in  the  suit.^i 


Seymour.  91  U.  S.  646,  23  L.  Ed.  341; 
Bamberger  v.  Terry,  103  U.  S.  40.  26  L. 
Ed.  317;  Lincoln  v.  Iron  Co.,  103  U.  S. 
412,  26  L.  Ed.  518;  Friedenstein  v.  United 
States,  125  U.  S.  224,  31  L.  Ed.  736;  Mexi- 
can Central  R.  Co.  v.  Duthie.  189  U.  S. 
76,  47  L.  Ed.  715;  Kinney  v.  Columbia, 
etc.,  Ass'n,  191  U.  S.  78,  48  L.  Ed.  103; 
Gagnon  v.  United  States,  193  U.  S.  451, 
48  L.  Ed.  745.  For  further  cases  decided 
under  this  statute,  see  the  general  titles 
JUDGMENTS  AND  DECREES; 
PLEADING;  SUMMONS  AND  PROC- 
ESS; VERDICT;  and  also  the  sections 
of  specific  titles  in  this  work,  relating  to 
these    subjects. 

80.  To  be  liberally  construed. — Parks 
V.  Turner,   12  How.   39.   13  L.   Ed.  883. 

81.  Scope  of  §  854.— "By  the  32d  sec- 
tion of  the  act  to  establish  the  judicial 
courts  of  the  United  States,  it  is  provided, 
'that  no  summons,  writ,  return,  process, 
judgment  or  other  proceedings  in  civil 
causes,  in  any  of  the  courts  of  the  United 
States,  shall  be  abated,  arrested,  quashed 
or  reversed,  for  any  defect  or  want  of 
form,  but  the  said  courts,  respectively, 
shall  proceed  and  give  judgment  accord- 
ing as  the  right  of  the  cause  and  matter 
in  law  shall  appear  to  them,  without  re- 
garding any  imperfections,  defects  or 
wants  of  form  in  such  writ,  declaration 
or  other  pleading,  return,  process,  judg- 
ment or  course  of  proceeding  whatso- 
ever, except  those  only  in  cases  of  de- 
murrer, which  the  party  demurring  shall 
specially  set  down  and  express,  together 
with  his  demurrer,  as  the  cause  thereof.' 
Tt  is  true,  that  a  verdict,  eo  nomine,  is 
not  comprised  within  this  provision  of 
the  statute,  but  judgments  are;  and  the 
language  of  the  provision,  'writ,  declara- 
tion, judgment  or  other  proceedings  in 
civil  causes,'  and  further,  'such  writ,  dec- 
laration, pleading,  process,  judgment  or 
other  proceeding  whatsoever,'  is  suffi- 
ciently comprehensive  to  embrace  every 
conceivable  step  to  be  taken  in  a  cause, 
from  the  emanation  of  the  writ  down  to 
the  judgment."  Roach  v.  Hulings,  16 
Pet.  319,  10  L.  Ed.  979. 

"We  are  satisfied  that  the  thirty-second 
section  of  the  act  of  congress  of  1789, 
ch.   20,  removes   all   difficulty   in   the    case, 


and  makes  it  the  duty  of  this  court  to  af- 
firm the  judgment  rendered  on  this  ver- 
dict. The  section  of  the  law  referred  to 
directs  the  courts  of  the  United  States 
to  proceed  and  give  judgment  according 
as  the  right  of  the  cause  and  matter  in 
law  shall  appear  to  them,  without  regard- 
ing any  imperfections  or  defects,  or  want 
of  form  in  the  writ,  declaration,  or  other 
pleading,  return,  process,  judgment,  or 
course  of  proceeding  whatever,  except 
those  only  in  cases  of  demurrer,  which 
the  party  demurring  shall  specially  set 
down  and  express  together  with  his  de- 
murrer as  the  cause  thereof.  This  is  a 
remedial  statute,  and  must  be  construed 
liberally  to  accomplish  its  object.  It  not 
only  enables  the  courts  of  the  United 
States,  but  it  enjoins  it  upon  them  as  a 
duty,  to  disregard  the  niceties  of  form, 
which  often  stand  in  the  way  of  justice, 
and  to  give  judgment  according  as  the 
right  of  the  cause  and  matter  in  law  shall 
appear  to  them.  And  although  verdicts 
are  not  specially  mentioned  in  this  prg- 
vision,  yet  the  words  'or  course  of  pro- 
ceeding whatever,'  are  evidently  broad 
enough  to  include  them;  and,  as  they  are 
within  the  evil,  they  cannot,  upon  a  fair 
interpretation  of  the  statute,  be  excluded 
from  the  remedy.  The  question,  how- 
ever, has  been  already  decided  in  this 
court  in  the  case  of  Roach  v.  Hulings. 
16  Pet.  319,  321,  322,  10  L.  Ed.  979.  In 
that  case,  as  in  the  one  now  before  the 
court,  the  verdict  was  defective  accord- 
ing to  strict  technical  rules,  and  no  judg- 
ment could  legally  be  entered  upon  it. 
But  this  court  held,  that  the  act  of  con- 
gress above  mentioned  was  intended  to 
remove  objections  of  that  description 
where  they  impeded  the  administration 
of  justice,  and  that  it  extended  to  imper- 
fections and  want  of  form  in  the  findings 
of  juries,  as  well  as  to  the  other  proceed- 
ings in  the  suit.  And  although,  accord- 
ing to  the  strictness  required  by  com- 
mon-law rules,  the  judgment  must  have 
been  reversed,  the  court  sustamed  it  upon 
the  ground  that  the  substantial  meaning 
of  the  verdict  was  manifest,  and  the  de- 
fects objected  to  cured  by  this  act  of 
congress."  Parks  v.  Turner,  12  How.  39, 
13    L.    Ed.   883. 


310 


AMENDMENTS. 


(2)   As  Dependent   upon   luhether  Defect   One   of  Form    or  Substance — (a) 

Defects  of  Form. It  may  be  stated,  as  a  general  rule,  that,  under  the  statute  of 

jeofails,  all  merely  formal  defects  and  imperfections  are  cured  by  verdict.82 


82.    Defects  of  form  cured  by  verdict.— 

"As  a  general  rule,  all  informality  in  a 
good  plea  is  held  to  be  cured  by  a  ver- 
dict, and  ought  to  be.  in  order  not  to 
delay,  through  a  mere  form,  what  may 
seem  to  be  just."  Garland  v.  Davis,  4 
How.    131,   11    L.    Ed.   907. 

A  defective  statement  of  title  or  cause 
of  action  is  cured  by  verdict.  Lincoln  v. 
Iron  Co.,  103  U.  S.  412,  26  L.  Ed.  518; 
De  Sobry  v.  Nicholson,  3  Wall.  420,  18 
L.     Ed.    263. 

"A  cause  of  action  defectively  or  in- 
accurately set  forth,  is  cured  by  the  ver- 
dict, because,  to  entitle  the  plaintiff  to 
recover,  all  circumstances  necessary,  in 
form  or  substance,  to  make  out  his  cause 
of  action,  so  imperfectly  stated,  must  be 
proved  at  the  trial;  but  when  no  cause 
of  action  is  stated,  none  can  be  presumed 
to  have  been  proved."  Renner  v.  Bank. 
9  Wheat.   581,  595,   6  L.   Ed.    166. 

"At  common  law,  after  verdict,  if  the 
issue  joined  be  such  as  necessarily  to  re- 
quire on  the  trial  proof  of  the  facts  de- 
fectively or  imperfectly  stated  or  omitted, 
and  without  which  it  is  not  to  be  pre- 
sumed that  the  judge  would  direct  the 
jury  to  give,  or  the  jury  would  have  given 
the  verdict,  such  defect,  imperfection,  or 
omission  is  cured  by  the  verdict."  Wills 
V.  Claflin,  92  U.  S.  135,  23  L.  Ed.  490, 
quoting  1  Chitty's  Plead.  (lOth  Am.  Ed.) 
673. 

"At  common  law.  defects  in  collateral 
pleadings,  or  other  matters  not  preced- 
ing the"  verdict,  and  not  to  be  proved  in 
order  to  get  a  verdict,  were  not  cured  by 
it.  Yet  those  were  cured  which  related 
to  matters  necessary  to  be  shown  to  get 
a  verdict,  and  hence,  after  it,  are  pre- 
sumed to  have  been  shown.  *  *  *  But 
these  defects  in  collateral  matters,  as 
here,  when  they  relate  to  forjn,  are  as 
fvlly  cured  by  the  statutes  of  jeofails  as 
those  connected  wnth  the  verdict  are  by 
intendment  at  common  law."  Townsend 
V.  Jemison,  7   How.  706.  12  L.   Ed.  880. 

Uncertainty  in  pleadings. — The  rule  as 
to  certainty  in  pleadings,  was  framed  for 
the  benefit  of  the  parties,  and  may  be 
waived  by  them,  and  in  many  cases,  both 
at  common  law,  and  by  the  statute  of 
jeofails,  defects  in  this  particular  are 
cured  by  a  verdict.  Minor  z'.  Mechanics' 
Bank,   1    Pet.   46.   7   L.   Ed.   47. 

Omission  cf  conclusion  to  counts  in 
declaration. — Tn  P-ank  v.  Guttschlick.  14 
Pet.  19,  10  L.  Ed.  335,  it  was  held,  that 
whatever  might  have  been  the  effect  of 
the  want  of  a  formal  conclusion  to  the 
three  special  counts  in  the  declaration, 
upon  a  special  demurrer,  the  32d  section 
of  the  judiciary  act  of  1789  would  cure 
the   defect,   if   admitted   to  be   one. 


Failure  of  narr.  in  debt  on  penal  bill 
to  aver  nonpayment — Plea  of  payment. — ■ 
In  Thompson  z:  Musser,  1  Dall.  458,  1 
L.  Ed.  222,  which  was  an  action  of  debt 
on  a  penal  bill,  the  narr.  failed  to  aver 
nonpayment  by  the  defendant  of  the  sum 
mentioned  in  the  condition,  but  the  de- 
fendant pleaded  payment.  Such  defect 
was    held    to   be    cured   by   the   verdict. 

"We  are  clearly  of  opinion,  that  this 
defect  in  the  declaration,  with  respect  to 
the  averment,  cannot  now  be  taken  ad- 
vantage of  as  an  error.  It  might,  indeed, 
have  been  fatal  on  demurrer;  but,  at  this 
period  of  the  cause,  it  is  cured  by  the 
plea  in  bar,  by  the  verdict,  and  by  the 
statutes  of  jeofails.  The  defendant  be- 
low pleaded  payment,  which  admits  the 
declaration  to  be  good.  10  Vin  Abr.  3, 
pi.  12."  Thompson  v.  Musser,  1  Dall.  458, 
1   L.   Ed.  222. 

Failure  to  aver  value  of  foreign  money 
— Verdict  finding  such  value. — In  Brown 
r.  Barry,  3  Dall.  365,  1  L.  Ed.  638,  which 
was  an  action  of  debt  on  a  bill  of  ex- 
change, the  declaration  failed  to  aver  the 
value  of  foreign  money,  but  it  was  held,, 
that  such  defect  was  cured  by  the  jury's 
specially  finding  the  value  of  such  money. 

Declaration  on  covenant — Failure  to  as- 
sign special  breach. — Though  a  declara- 
tion on  covenant  should  assign  a  special 
breach,  yet,  if  a  general  breach  be  as- 
signed, the  defect  will  be  cured,  by  a 
verdict  for  the  plaintii?.  Minor  v.  Me- 
chanics' Bank.  1  Pet.  46,  7  L.  Ed.  47, 
citing  Com.  Dig.  Plead.,  p.  48.  See  the 
titles  COVENANT,  ACTION  OF;' 
COVENANTS. 

Where  the  plaintiffs  declared  in  cove- 
nant, both  as  heirs  and  devisees,  without 
showing  in  particular  how  they  were 
heirs,  and  without  setting  out  the  will, 
it  was  held  not  to  be  fatal  on  general  de- 
murrer. Such  a  defect  may  be  amended 
under  the  32d  section  of  the  judiciary  act 
of  1789,  c.  20.  Day  v.  Chism,  10  Wheat. 
449,    6    L.    Ed.   363. 

Omission  to  strike  out  all  demises  but 
that  on  which  verdict  given. — In  a  dec- 
laration in  ejectment,  various  demises 
were  laid,  and  the  verdict  of  this  jury,  and 
the  judgment  of  the  circuit  court,  were 
entered  on  one  of  the  demises  only;  and 
it  was  contended,  that  the  court  ought 
not  to  have  entered  a  judgment  on  the 
issue  found  for  the  plaintiff,  but  should 
h.nve  awarded  a  ven're  de  novo;  and  that 
this  irregularity  might  be  taken  advan- 
tage of  upon  a  writ  of  error.  Held,  that 
if  this  objection  had  been  made  in  the 
circuit  court,  on  a  motion  in  arrest  of 
judgment,  the  plaintiff  would  have  been 
permitted  to  strike  out  all  the  demises  in 
the    declaration    but    that    on    which    the 


AMICABLE  ACTION. 


311 


(b)  Defects  in  Substance.— Geneml  Rule.— Under  the  federal  statute  of  jeo- 
fails, as  under  the  English  Statute,  32  Henry  VIII,  it  has  frequently  been  ad- 
judged that  defects  in  substance  are  not  cured  by  a  verdict.'''-^ 

"What  Are  Defects  of  Substance.— A  defect  in  substance,  in  a  plea  or  ver- 
dict, is  conceded,  in  all  the  books,  to  exist  when  they  do  not  cover  "whatever  is 
essential  to  the  gist  of  the  action. "^^ 


AMERICANS. — The  word  "Americans"  as  used  in  a  treaty  conferring  juris- 
diction upon  consular  courts  over  "Americans  committing  offenses,"  includes  not 
only  those  who  are  citizens  of  the  United  States,  but  also  all  who,  though  not 
strictly  citizens,  are  by  their  service  equally  entitled  to  the  care  and  protection  of 
the  government.^ 

AMICABLE  ACTION. — An  amicable  action  is  one  where  the  parties  to  a  real 
controversy  agree  to  conduct  the  suit  in  an  amicable  manner,  that  is  to  say,  that 
they  will  not  embarrass  each  other  with  unnecessary  forms  or  technicalities,  and 
will  mutually  admit  facts  which  they  know  to  be  true,  and  without  requiring 
proof,  and  will  bring  the  point  in  dispute  before  the  court  for  decision,  without 


verdict  was  given;  the  omission  to  strike 
out  these  demises  was  only,  therefore,  an 
omission  of  form;  and  the  act  of  con- 
gress of  1789,  ch.  20,  §  32,  expressly  pro- 
vides, that  no  judgment  shall  be  reversed 
for  any  defect  or  want  of  form,  but  that 
the  courts  of  the  United  States  shall  pro- 
ceed and  give  judgment,  according  as  the 
right  of  the  cause  and  matter  in  law  shall 
appear  to  them,  without  regarding  any 
imperfections,  defects  or  want  of  forms 
in  the  judgment  or  course  of  proceed- 
ing, except  that  specially  demurred  to. 
United  States  Bank  z'.  Van  Ness.  5  Cr. 
C.  C.  294,  affirmed  in  Van  Ness  v.  United 
States   Bank,   13   Pet.  17,   10   L.   Eti.   38. 

That  special  pleas  have  improperly  con- 
clnded  to  the  court  instead  of  to  the 
country,  is  not  a  matter  for  reversal,  the 
matter  not  having  been  brought  in  any 
way  to  the  attention  of  the  court  below. 
Laber  v.  Cooper.  7  Wall.  565,  19  L.  Ed. 
151. 

The  fact  that  no  replication  is  put  in- 
to two  of  three  special  pleas,  raising  dis- 
tinct defenses,  is  not  a  matter  for  rever- 
sal; the  case  having  been  tried  below  as 
if  the  pleadings  had  been  perfect  and  in 
form.  Laber  v.  Cooper,  7  Wall.  565,  19 
L.   Ed.   151. 

An  omission  to  join  issue  upon  an 
avowry  for  rent  in  arrear,  or  otherwise 
to  notice  it  on  the  record,  is  a  mere 
irresrularitv.  ctired  hv  the  verdict.  Der- 
mott  V.  Wallach.  1  Black  96,  17  L.  Ed.  50. 

83.  Defects  of  substance  not  cured  by 
verdict. — Garland  z\  Davis.  4  How.  131, 
n  L.   Ed.  907. 

84.  What  are  defects  in  substance. — 
Garland  v.  Davis,  4  How.  131,  11  L.  Ed. 
907. 

A  total  omission  to  state  any  title  or 
cause  of  action  in  the  declnratinn  is  a 
defect  which  the  verdict  will  not  cure, 
either  at  common  law  or  by  statute. 
McDonald  r.  Hobson.  7  How.  745,  12  L. 
Ed.  897;  Renner  v.  Bank,  9  Wl^eat.  581. 
595,  6  L.  Ed.  166;  Minor  7>.  Mcf^hanics' 
Bank,  1  Pet.  46,  67,  7  L.  Ed.  47;  Pearson 


V.  Bank,  1  Pet.  89.  7  L.  Ed.  65;  Stocktons. 
Bishop,  4  How.  155.  11  L.  Ed.  918;  Tur- 
ner V.  Ogden,  1  Black  450,  451.  17  L.  Ed. 
203;  De  Sobry  v.  Nicholson,  3  Wall  420 
18    L.    Ed.    263. 

Mistake  in  nature  of  action  not  cured 
by  verdict. — A  verdict  will  not  cure  a 
mistake  in  the  nature "  of  the  action. 
Marine  Ins.  Co.  v.  Young,  1  Cranch  332, 
2  L.  Ed.  126.  in  which  case,  the  court 
reversed  the  judgment  and  ordered  it  to 
be  arrested,  because  the  action  was  a 
special  action  on  the  case  on  a  policy  of 
insurance,  and  the  declaration  showed 
that  tlie  policy  was  a   specialty. 

Declaration  in  tort — Plea  of  "non  as- 
sumpsit."— When  a  declaration  sounds  in 
tort,  and  the  plea  is  "non  assumpsit,"  such 
a  plea  would  be  bad  on  demurrer.  If 
not  demurred  to,  and  the  case  goes  to 
trial  (the  issue  and  verdict  following  the 
plea),  the  defect  is  so  material  that  it  is 
not  _  cured  by  verdict,  under  the  statute 
of  jeofails.  Garland  z'.  Davis.  4  How 
131.    11    L.    Ed.   907. 

Declaration  on  covenant — Failure  to  as- 
sign breach,  or  assignment  of  breach  not 
within  covenant. — In  declaration  upon  a 
covenant  for  general  performance  of 
duty,  if  any  breach  be  assigned,  or  a 
breach  which  is  bad,  as  not  being  in  point 
of  law  within  the  scope  of  the  covenant, 
the  defect  is  fatal,  even  after  verdict. 
Minor  v.  Mechanics'  Bank,  1  Pet.  46.  7 
L.  Ed.  47.  citing  C^m.  Dig.  Plead  .  p  14 
See  the  title-^  COV^ENANT  ACTION 
OF;    COVENANTS. 

1.  Americans.— In  re  Ross,  140  U.  S. 
453,   475,  35   L.    Ed.    581. 

A  British  subject  enlisting  as  a  seaman 
upon  an  American  merchant  ship  is  an 
American  within  the  meaning  of  the  treaty 
with  Japan  conferring  jurisdiction  upon 
American  consular  courts  over  all  offenses 
by  Am.ericans  against  Japanese.  In  re  Ross, 
140  U.  S.  453.  475,  35  L.  Ed.  581.  See. 
gprcrallv.  the  titles  .ALIENS  ante,  p  210- 
AMBAS<^Ano^S  \NDCONSt:i,S,  ante 
p.  273;  CITIZENSHIP;  SEAMEN. 


312 


AMOUNT  OF  TAXES. 


subjecting  each  other  to  unnecessary  expense  or  delay.  The  amity  consists  in  the 
manner  in  which  the  action  is  brought  to  issue  before  the  court,  and  there  must, 
in  all  cases,  be  an  actual  controversy,  and  adverse  interests. ^ 

AMICUS  CURI^. — See  the  tide  Friends  of  the  Court.  As  to  filing  briefs 
by,  see  the  title  Appeal  and  Error. 

AMITY. — The  word  "amity"  means  friendship,  in  a  general  sense,  between  in- 
dividuals, societies  or  nations;  harmony;  good  understanding. ^  It  is  not  a  tech- 
nical term,  and  when  found  in  a  statute  must  be  given  its  ordinary  meaning,  un- 
less there  is  something  in  the  context  which  compels  a  narrower  or  different 
scope. ^ 

AMNESTY.— See  the  title  Pardon. 

AMONG. — The  word  "among"  means  intermingled  with.  A  thing  which  is 
among  others  is  intermingled  with  them.-* 

AMOTION. — See  the  titles  Officers  and  Agents  of  Private  Corporations; 
Public  Officers  .  and  the  cross  references  given  under  these  titles. 

AMOUNT  IN  CONTROVERSY.— See  the  titles  Appeal  and  Error;  Courts; 
Removal  of  Causes. 

AMOUNT  OF  TAXES.— The  words  "amount  of  taxes,"  in  their  ordinary  im- 
port, express  an  aggregate  of  taxes,  and,  when  used  in  a  statute,  the  ordinary 
meaning  mav  be  controlled  bv  the  context.'' 


1.  Amicable  action. — Lord  v.  Veazie,  8 
How.   251,   255,   12   L.    Ed.   1067. 

Where  it  appears  from  affidavits  and 
other  evidence  filed  by  persons  not  parties 
to  a  suit,  that  there  is  no  real  dispute  be- 
tween the  plaintifif  and  the  defendant,  but, 
on  the  contrary,  that  their  interest  is  one 
and  the  same,  and  adverse  to  that  of  the 
parties  who  filed  the  affidavit,  this  is  not 
an  amicable  action,  and  the  judgment  of 
a  circuit  court  entered  pro  forma  is  a  nul- 
lity, and  a  writ  of  error  to  reverse  it  will 
be  dismissed.  Lord  v.  Veazie.  8  How. 
251  12  L.  Ed.  1067.  See,  generally,  the  title 
ACTIONS,  ante,  p.  96;  APPEAL  AND 
ERROR;    FRIENDLY    SUITS. 

"Amicable  actions,  so  far  from  being 
objects  of  censure,  are  always  approved 
and  encouraged,  because  they  facilitate 
greatly  the  administration  of  justice  be- 
tween the  parties."  Lord  v.  Veazie,  8 
How.   251,   255,   12   L.   Ed.   1067. 

2.  Amity  defined. — Marks  v.  United 
States.  161  U.  S.  297,  301,  40  L.  Ed.  706, 
citing  Webster's  Dictionary. 

"In  amity"  not  S3monymous  with  "under 
treaty." — The  words  "in  amity"  as  used 
in  a  statute  relating  to  Indian  tribes  "in 
amity  with  the  United  States"  are  not  syn- 
onymous with  "under  treaty."  "Treaty" 
implies  political  relations,  while  amity  sig- 
nifies friendship,  actual  peace.  Marks  v. 
United  States,  161  U.  S.  297,  301,  40  L.  Ed. 
706. 

Under  the  Indian  depredation  act  of 
March  3.  1891.  granting  to  the  court  of 
claims  jurisdiction  over  claims  for  prop- 
erty "destroyed  by  Indians  belonging  to 
any  band,  tribe  or  nation  in  amity  with  the 
United  States,"  all  that  congress  intended 
was  that  when,  as  a  matter  of  fact,  a  tribe 
was  in  the  relation  of  actual  peace  with 
the  United  States,  and  by  some  individual, 
or   individuals,  without   the  consent   or  ap- 


proval of  the  tribe,  a  depreciation  was  com- 
mitted upon  the  property  of  citizens  of  the 
United  States,  such  depredation  might  be 
investigated,  and  the  amount  of  the  loss 
determined  and  adjudicated  by  the  court 
of  claims.  The  jurisdiction  is  not  depend- 
ent on  the  nonexistence  of  a  treaty  wit)' 
the  tribe  to  which  the  Indian  belongs,  buv 
depends  on  whether,  as  a  matter  of  fact, 
the  tribe  was  at  the  time,  as  a  tribe,  in  a 
state  of  actual  peace  with  the  United 
States,  or  whether,  on  the  other  hand,  it 
was  engaged  in  actual  hostilities  with  the 
United  States.  Marks  v.  United  States, 
161  U.  S.  297,  301.  40  L.  Ed.  706.  See, 
generally,  the   title   INDIANS. 

3.  "Amity  not  a  technical  term. — Marks 
V.  United  States,  161  LT.  S.  297.  301,  40  L. 
Ed.  706.  See,  generallv,  the  title  STAT- 
UTES. 

4.  Among. — Gibbons  v.  Ogden,  9  Wheat. 
1.  ^'U.  6  L.  Ed.  23:  Lottery  Case,  188  U. 
S.    3'^1.    346,   47    L.   Ed.    492. 

"Com.merce  among  the  states  cannot 
stop  at  the  external  boundary  line  of 
each  state,  but  may  be  introduced  into  the 
interior.  It  is  not  intended  to  say  that 
these  words  comprehend  that  commerce, 
which  is  completely  internal,  which  is 
carried  on  between  man  and  man  in  a 
state,  or  between  different  parts  of  the 
same  "^tate,  and  which  does  not  extend  to 
or  affect  other  states.  Such  a  power 
would  be  inconvenient  and  is  certainly 
unnecessary.  Comprehensive  as  the  word 
among  is,  it  may  very  properly  be  re- 
stricted to  that  commerce  which  concerns 
more  states  than  one."  Gibbons  v.  Ogden, 
9  Wheat.  1,  189,  194,  6  L.  Ed.  23;  Lottery 
Case,  188  U.  S.  321,  346,  47  L.  Ed.  492. 
See,    generally,   the   title   COMMERCE. 

5.  Amount  of  taxes. — Washington  v. 
Pr.-itt,  s  Wheat.  681,  688,  5  L.  Ed.  714.  _ 

A  statute  providing  for  the  sale  of  im- 


ANCIEXr  DOCUMENTS.  313 

AMUSEMENTS.— See.  generally,  the  title  Theaters  axd  Shows.  As  to 
denial  of  equal  rights  to  citizens  at  pulilic  places  of  amusement,  see  the  title 
Civil  Rights. 

ANARCHIST. — 1.  Properly,  one  who  advocates  anarchy  or  the  absence  of 
government  as  a  political  ideal ;  a  believer  in  an  anarchic  theory  of  society ;  es- 
pecially, an  adherent  of  the  social  theory  of  Proudhon.  2.  In  popular  use.  one 
who  seeks  to  overturn  by  violence  all  constituted  forms  and  instituticnis  of  society 
and  government,  all  law  and  order,  and  all  rights  of  property,  with  no  purpose 
of  establishing  any  other  system  of  order  in  the  place  of  that  destroyed ;  es- 
pecially, such  a  person  when  actuted  by  mere  lust  of  plunder.  3.  Any  person  who 
promotes  disorder  or  excites  revolt  against  an  established  rule,  law  or  custom.^ 

ANARCHY, — 1.  Absence  or  insufficiency  of  government;  a  state  of  society  in 
which  there  is  no  capable  supreme  power,  and  in  which  the  several  functions  of 
the  state  are  performed  badly  or  not  at  all ;  social  and  political  confusion.  Spe- 
cifically— 2.  A  social  theory  which  regards  the  union  of  order  with  the  absence  of 
all  direct  government  of  man  by  man  as  the  political  ideal ;  absolute  individual 
liberty.     3.  Confusion  in  general.- 

ANCESTOR. — See  the  title  Descent  and  Distribution. 

ANCHORED  VESSELS.— See  the  title  Collision. 

ANCIENT  DOCUMENTS. 

BY    ROBERT    E.    MAXWELL. 

I.   What  Included  within  the  Term  Ancient  Documents. 
II.   Ancient  Documents  as  Evidence. 

CROSS  REFERENCES. 
See  the  titles  BEST  and  Secondary  Evidence;  DeEds;  Documentary  Evi- 
dence: Evidence;  Handwriting;  Hearsay  Evidence;  Lost  Instruments  and 
Records;  Marriage  Contracts  and  Settlements;  Pedigree;  Recording  Acts; 
Records  ;   \\'ills. 

I.   What  Included  within  the  Term  Ancient  Documents. 

Deeds,-"^  bonds."*  records,"'  and  wills''  are  included  within  the  term  ancient  docu- 
ments. 

II.    Ancient  Documents  as  Evidence. 

For  What  Purpose  Admitted. — An  ancient  document  may  be  admitted  in 
evidence  to  prove  pedigree.'^ 

proved  lots   in  a  citj%  required  the  adver-  in    which    the    rule    of   each    individual    by 

tisement    of    sale    to    state,    among    other  himself  is  the  only  government  the  legiti- 

things.  "the  amount  of  taxes  due  thereon."  macy   of  which   is   recognized.     Turner  v. 

Tt  was  held,  that  where  one  person  owned  Wilhams,  194  U.  S.  279,  293.  48  L.  Ed.  979. 

several  lots,   it   was   not  sufficient  to  state  3.   Winn   v.    Patterson,   9   Pet.   663,   9    L. 

in  the  advertisement  the  aggregate  of  the  Ed.    266;    Thomas    v.    Horlocker.    1    Dall. 

taxes   due   on  all   of  his   lots   but   that   the  14,   1    L.   Ed.   17;   Barr  v.    Gratz.  4  Wheat. 

amount   due    on    each   lot   was    to   be   sep-  213,  4  L.  Ed.  553;  Williams  v.  Conger,  125 

arately    stated.      Washington    v.    Pratt,    8  U.    S.    397.    31    L.    Ed.    778;    Applegate    7'. 

Wheat.  681,  5   L.   Ed.  714.     See.  generally,  Lexington,     etc.,     Min.     Co.,     117     U.     S. 

the   title    TAXATION.  255,  29   L.   Ed.  892;   Eulkerson  r.   Holmes, 

1.  Anarchist— Turner  v.  Williams.  194  117  U.  S.  389.  29  L.  Ed.  915.  See  the  title 
U.  S.  279,  293,  48   L.   Ed.  979,  citing  Cent.  DEEDS. 

Diet.   Sec  the  title   ALIENS,   ante.  p.  210.  4.    Coulson   v.   Walton.   9    Pet.    62.    9    L. 

2.  Anarchy.— Turner  v.  Williams,  194  U.       Ed.   51.     See   the  title   BONDS. 

S.    279.   292.  48  L.  Ed.  979.  citing  Cent.   Diet.  5.   McGuire  V.  Blount.   199  U.  S.   142,   50 

And    Huxley   is    quoted    as   saying:    An-  L.   Ed.   125.      See  the  title   RECORDS. 

archy,   is   a    term    of   political    philosophy,  6.    Meegan    v.    Boyle,    19    How.    130.    15 

must   be   taken   only   in    its    proper    sense.  L.    Ed.   577.      See   the   title   WILLS, 

which  has  nothing  to  do  with  disorder  or  7.   Eulkerson  v.   Holmes,   117  U.   S.   389, 

with  crime,  but  denotes  a  state  of  society  29  L.  Ed.  915.     See  the  title  PEDIGREE. 


314 


AXCIEXl  DOCUMBXTS. 


That  a  Document  Is  Ancient  May  Be  Proven  by  a  Copy  of  the  Original. 

A  copy  of  an  ancient  document  is  admiss'ble  to  show  that  the  original,  found 

and  produced  in  court,  is  an  ancient  document.^* 

Comparison  of  Handwriting. — If  proof  is  necessary  to  prove  the  identity 
of  parties  to  an  ancient  document,  comparison  of  handwriting  may  be  re- 
sorted toJ 

General  Rule  of  Admissibility. — Ancient  documents  prove  themselves,  and 
are  admissible  in  evidence  without  proof  of  execution. § 

Prerequisites  to  Application  of  Rule. — Before  proof  of  ancient  documents 
can  be  dispensed  with,  they  must  come  from  the  proper  custody;-^  there  must  be 
nothing  about  them  to  suggest  that  they  have  been  forged  or  tampered  with,  and 
they  must  present  an  honest  as  well  as  ancient  appearance. ^^ 


6.  Williams  v.  Conger,  125  U.  S.  397, 
31   L.  Ed.  778. 

7.  "There  may  be  cases,  where,  from 
the  antiquity  of  the  writing,  it  is  impos- 
sible for  any  living  witness  to  swear  that 
he  ever  saw  the  party  write,  comparison 
of  handwriting  with  documents,  known, 
to  be  in  his  handwriting,  has  been  ad- 
mitted." Strother  r.  Lucas,  6  Pet.  763, 
8  L.  Ed.  573.  See  the  title  HAND- 
WRITING. 

8.  Crane  v.  Morris,  6  Pet.  598,  8  L. 
Ed.  514;  Winn  v.  Patterson,  9  Pet.  663, 
674,  9  L.  Ed.  266;  Applegate  v.  Lexing- 
ton, etc.,  Min.  Co.,  117  U.  S.  255,  263, 
29  L.  Ed.  892;  Barr  r.  Gratz,  4  Wheat. 
213.  4  L.  Ed.  553;  McGuire  V.  Blount, 
199    U.    S.    142,    50    L.    Ed.    125. 

With  reference  to  ancient  documents, 
it  is  only  necessary  to  show  that  they 
are  of  age  of  thirty  years.  McGuire  v. 
Blount.    199   U.    S.    142,    50    L.    Ed.    125. 

Seventy  years  is  a  sufficient  lapse  of 
time  to  justify  a  presumption  of  the  due 
execution  and  lo?s  of  a  lease.  Crane  v. 
Morris.    6    Pet.    598,    8    L.    Ed.    514. 

Where  there  is  prima  facie  evidence  of 
the  ej^ecuticn  and  delivery  of  an  ancient 
document  it  will  be  admitted  in  evidence. 
Carver   v.   Astor,   4   Pet.    1,   7    L.    Ed.    761. 

9.  Winn  v.  Patterson,  9  Pet.  663,  9  L. 
Ed.  266;  Barr  v.  Gratz,  4  Wheat.  213,  4 
L.  Ed.  553;  Apnleeate  v.  Lexington,  etc., 
Min.  Co.,  117  U.  S.  255,  29  L.  Ed.  389; 
Fulkerson  v.  Holmes.  117  U.  S.  389,  29 
L.  Ed.  915;  Williams  v.  Conger,  125  U. 
S.    3Q7.  31   L.   Ed.   778. 

With  reference  to  ancient  documents, 
it  is  only  necessary  to  show  that  they 
come  from  a  natural  and  reasonable  cus- 
tody; from  a  place  where  they  might 
rensonably  be  expected  to  be  found.  3 
Wiemore."  §§  2138  and  2139;  McGuire  v. 
Bloi'nt.   199  U.    S.    142.   50   L.   Ed.    125. 

Change  of  possession  though  in  hands 
of  a  proper  custodian. — Where  the  testi- 
monv  tends  to  show  that  documents  were 
subjected  to  various  changes  of  posses- 
sion durinf?  the  transition  nf  the  govern- 
ment of  Florida  from  Spain  to  the 
United  States  and  upon  the  evacuation  of 
Pensacola  during  the  civil  war.  and  there 
is  nothing  to  establish  that  they  were 
ever  out  of  the  hands   of  a  proper  custo- 


dian, nor  to  show  that  the  originals  were 
lost,  or  any  evidence  of  a  fraudulent  sub- 
stitution of  a  made-up  record  in  the  in- 
terest of  parties  to  be  benefited  thereby, 
such  documents  are  admissible  as  ancient 
documents  when  on  their  face  they  bear 
every  evidence  of  age.  McGuire  v. 
Blount,   199   U.   S.   142,   50   L.    Ed.    125. 

"If  property  passes  through  a  dozen 
hands  in  the  course  of  forty  years,  each 
keeping  in  his  own  possession  the  deed 
given  to  him,  the  possession  of  all  is 
equally  under  the  first  deed,  which  may 
be  given  in  evidence  as  an  ancient  deed, 
although  never  seen  by  any  but  the  first 
grantee  to  whom  it  was  given."  Wil- 
liams V.  Conger.  125  U.  S.  397.  417,  31 
L.    Ed.    778. 

10.  McGuire  v.  Blount,  199  U.  S.  142, 
50  L.  Ed.  125;  Applegate  v.  Lexington, 
etc..  Min.  Co.,  117  U.  S.  255,  29  L.  Ed. 
892;  Williams  v.  Conger,  125  U.  S.  397, 
31   L.   Ed.  778. 

Ancient  records  bearing  upon  their 
face  every  evidence  of  age  ?;ind  authen- 
ticity, and  there  is  nothing  about  them  to 
suggest  that  they  have  been  forged  or 
tampered  with  and  they  present  an  hon- 
est as  well  as  ancient  appearance  and 
come  from  official  custody.  To  such  pub- 
lic and  proprietary  records  the  courts 
have  applied  the  rules  of  admissib^ity 
governing  ancient  documents.  3  Wig- 
more  Evid.,  §  2145,  and  notes.  McGuire 
T'.   Blount.    199  U.   S.   142.   50   L.  Ed.  12.-). 

Must  appear  valid  upon  their  face. — An 
eld  will,  which  had  never  been  proved  ac- 
cording to  Inw,  was  properly  excluded  as 
evidence.  The  will  does  not  come  within 
the  rule  by  which  ancient  instruments  are 
admitted.  It  onlv  includes  such  docu- 
ments as  are  valid  upon  their  face. 
ATpegan  r.  Boyle,  19  How.  130.  15  L.  Ed. 
577. 

In  Missouri,  where  a  deed  was  offered 
in  evidence,  purporting  to  convey  the 
t'tles  of  married  women  to  land,  and 
their  names  were  in  the  handwriting  of 
other  persons,  and  there  was  no  proof 
that  the  women  had  either  signed  or  ac- 
knowledged the  deed,  it  was  properly  re- 
fused bv  the  court  to  be  allowed  to  go 
to  the  jury.  The  deed  does  not  come 
within   the   rule   bv   which   ancient   instru- 


AXHVDRID. 


315 


Recitals  Presumed  to  Be  True. — The  recital  in  an  ancient  instrument  is 
presuraed  to  be  true,  and  can  only  be  overthrown  by  positive  proof. ^^ 

Admission  in  One  Court  as  Binding  on  Other  Courts. — That  an  ancient 
document  has  been  admitted  in  one  court  is  conclusive  as  to  its  admissibility  in 
other  courts. ^2 

ANCIENT  LIGHTS.— See  the  titles  .Ajjjoining  Landowners,  ante,  p.  117; 
Easements. 

ANCILLARY  ADMINISTRATION.— See  the  title  Executors  and  Admin- 
istrators. 

ANCILLARY  JURISDICTION.— See  the  title  Courts. 

AND.— See  Or. 

AND  ALSO.— See  note  1. 

ANGUISH. — As  an  element  of  damages,  see  the  titles  Damages;  TeeEGraphs 
and  Telephones. 

ANHYDRID. — An  anhydrid  is  an  oxide  capable  of  forming  an  acid  by  uniting 
with  the  elements  of  water. ^ 


merits  are  admitted.  It  only  includes 
such  documents  as  are  valid  upon  their 
face.  Meegan  v.  Boyle,  19  How.  130,  15 
L.    Ed.    577. 

Where  an  ancient  instrument  is  valid, 
though  not  acknowledged,  such  failure  of 
acknowledgment  does  not  effect  its  ad- 
missibility as  an  ancient  document.  Wil- 
liams V.  Conger,  125  U.  S.  397,  418.  31  L. 
Ed.    77S. 

When  alteration  will  not  affect  admis- 
sibility.— In  Coulson  v.  Walton,  9  Pet.  62, 
9  L.  Ed.  51,  it  was  held,  that,  where,  in 
an  ancient  bond,  the  words  North  Caro- 
lina, or  some  other  words,  have  been 
erased,  and  the  word  Virginia  in  lieu 
thereof  has  been  inserted,  and  the  signa- 
ture seems  to  have  been  scratched  out 
and  written  again,  such  alterations  will 
not  affect  the  admissibility  of  the  bond, 
where  it  appears  that  no  one  having  an 
interest  in  the  bond  could  have  had  a 
motive  to  alter  it.  See  the  title  .\L- 
TER.\TTOX  OF  INSTRUMENTS, 
ante.  p.  2fil. 

11.  Williams  v.  Conger.  125  U.  S.  397, 
31    L.    Ed.    778. 

12.  A  state  court's  decision  as  to  ad- 
rnissibility  of  an  ancient  document  is 
binding  in  the  United  States  court.  Wil- 
liams V.  Conger.  125  U.  S.  397,  31  L.  Ed. 
77?*. 

1.  And  also. — Section  8  of  act  of  Feb- 
ruary 9.  1S93,  establishing  the  court  of  ap- 
peals of  the  District  of  Columbia,  provides 
for  review  of  cases  in  the  supreme  court 
of  the  United  States  where  the  matter  in 
di<^pute  exceeds  five  thousand  dollars; 
"and  also  in  cases  w*ithout  regard  to  the 
sum  or  value  of  the  matter  in  di'ipute, 
wherein  is  involved  the  validity  of  any 
patent  or  copvright,  or  in  which  is  drawn 
in    question    the    validity    of    a    treaty    or 


statute  of.  an  authorit}'  exercised  under, 
the  United  States."  In  Chapman  v.  United 
States.  164  U.  S.  436,  41  L.  Ed.  504,  it  was 
contended  that  the  latter  clause  of  this  sec- 
tion conferred  jurisdiction  upon  the  su- 
preme court  of  the  United  States  to  re- 
view a  judgment  of  the  court  of  appeals  of 
the  District  of  Columbia  in  criminal  cases, 
but  the  court  said:  "It  is  contended  that 
the  words  and  also  as  used  in  the  section 
under  consideration  are  words  'of  legal 
art,'  of  'almost  immemorially  precise  and 
technical  meaning,'  and  import,  not  a  re- 
striction of  matter  previously  stated,  but 
a  transition  from  what  had  been  pre- 
viously declared  to  a  new  and  independent 
subject  intended  to  stand  by  itself.  We 
do  not  care  to  go  into  the  struggle  be- 
tween the  courts  of  King's  Bench  and 
common  pleas  on  the  question  of  the  ju- 
risdiction of  the  former  over  civil  actions, 
which  led  to  the  curious  device  of  the 
ac  etiam,  more  particularly  to  avoid  the 
eflfect  of  13  Car.  II,  2  Stat.,  c.  2.  It  was 
invented  in  order  to  couple  with  a  cause 
of  action  over  which  the  court  of  King's 
Bench  had  jurisdiction,  another  cause  of 
action,  over  which,  without  being  joined 
with  the  first,  the  court  would  not  have  had 
jurisdiction.  2  Sellon's  Pract.  Appendix, 
625,  630;  Burges  on  Insolvency.  135.  149. 
We  are  unable  to  conclude  that  congress, 
which  might  easih-  have  conferred  juris- 
diction in  plain  and  explicit  language,  re- 
sorted to  this  ancient  contrivance  to  ef- 
fect   it." 

2.  Anhydrid. — Lutz  -•.  Magone.  153  U. 
S.  107,  38  L.  Ed.  653.  See  ACID,  ante, 
p.   75. 

An  anhydrous  acid  is  an  acid  free  from 
water.  I,ut7  -'.  Magone,  153  U.  S.  107. 
38  L.  Fd.  653.  S'-e,  generally,  the  title 
REVENUE   LAWS. 


ANIIVIALS. 

BY    CI.AUDK   R.   YARDLEY. 

I.    Definitions,  317. 
n.   Animals  as  Property,  317. 

A.  Wild  Animals,  317. 

B.  Domestic  Animals,  317. 

1.  Ordinary  Domestic  Animals,  317. 

2.  Dogs,  317. 

a.  Distinguished  from  Other  Animals,  317. 

b.  Statutory  Regulations  as  to  the  Keeping  of  Dogs,  318. 

C.  Ownership  of  Increase  of  Animals,  319. 
ni.   Injuries  by  Animals,  319. 

A.  Keeping  as  a  Basis  of  Liability,  319. 

1.  M^ild  or  Partially  Tamed  Animals,  319. 

2.  Domestic  Animals,  319. 

3.  Negligence  as  a  Necessary  Element  of  Recovery,  320. 

4.  Actions  for  Damages,  320. 

a.  Evidence,  320. 

b.  Instructions,  320. 

B.  From  Animals  Grazing  upon  Unenclosed  Lands,  320. 

1.  At  Common  Law,  320. 

2.  Under   State   Regulations,   321. 

3.  Upon  Lands  of  the  United  States,  321. 

4.  Cattle      Straying    from    Public    Land    onto    Unenclosed    Private 

Land,  321.' 

5.  Driving  Cattle  upon  Another's  Land,  322. 

6.  Overstocking  of  LTnenclosed  Land,  322. 

C.  Injuries  to  Highways  from  Driving  Herds  of  Animals  Thereupon,  322. 
IV.   Injuries  to  Animals,  322. 

A.  Maintenance  of  Fences  and  Cattle  Guards  by  Railroads,  322. 

1.  Power  to  Require  Maintenance,  322. 

2.  Railroad  Passing  Through  Federal  Military  Reservation,  323. 

B.  Power  to  Compel  Defendant  to  Pay  Plaintiff  Attorney  Fee  in  Action 

for  Injuries  to  Aniamls,  323. 

V.    Agistment  of  Cattle,  324. 

VI.   Regulations  as  to  the  Grazing  of  Sheep,  324. 
VII.    Health  and  Sanitary  Regulations  Regarding  Animals,  324. 

A.  Power  to  Prescribe  Sanitary  Regulations,  324. 

1.  Of  the  Federal  Government,  324. 

2.  Of  State  Government,  325. 

a.  In  the  Absence  of  Federal  Statute,  325. 

b.  Liability  of  Carrier  for  State  Penalties,  326. 

c.  Quarantine  Regulations,  326. 

d.  Effect  of  Animal  Industry  Act  on  State  Regulations,  327. 

B.  Actions  for  Damages  for  Violation  of  Health  Regulations,  327. 

1.  Pleadings,  327. 

2.  Evidence,  328. 

3.  Question  for  Court,  328. 

CROSS  REFERENCES. 

See  the   titles   Bailments;   Constitutional    Law;    Damages;   Game    and 
Game  Laws;  Trover  and  Conversion. 

(316) 


AXIMALS. 


317 


As  to  statutory  enactments  requiring  transportation  companies  to  provide 
food,  rest  and  water  for  cattle  which  they  are  transporting,  see  the  title 
Carriers. 

I.  Definitions. 

Animate  Being. — .-\n  animal  is  any  animate  heing  which  is  not  human,  en- 
dowed with  the  power  of  vohmtary  motion. ^ 

Does  Not  Include  Birds. — The  term  animals  has  been  held  to  apply  only 
to  quadrupeds  and  not  to  include  birds  and  fowls. ^ 

II.  Animals  as  Property. 

A.  Wild  Animals. — The  ownership  of  wild  animals  as  long  as  they  are  in 
a  wild  state,  ferae  naturae,  as  far  as  they  are  capable  of  ownership,  is  in  the 
state,  not  as  a  proprietor  but  in  its  sovereign  capacity  as  the  representative  and 
for  the  benefit  of  all  people  in  common,  the  law  being  that  all  animals  which 
can  be  taken  upon  the  earth  or  in  the  air  or  in  the  sea — that  is  to  say,  wild 
animals — belong  to  those  who  take  them.^ 

B.  Domestic  Animals — 1.  Ordinary  Domestic  Anim.\ls. — In  ordinary  do- 
mestic animals,  such  as  horses,  cattle,  sheep  and  other  animals  of  a  similar  char- 
acter, the  owner  has  a  perfect,  absolute  and  complete  right  of  property.-* 

2.  Dogs — a.  Distinguished  from  Other  Animals. — At  Common  Law. — By  the 
common  law  as  well  as  by  the  law  of  most,  if  not  all,  the  states,  dogs  are  so 
far  recognized  as  property  that  an  action  will  lie  for  their  conversion  or  injury. 
But  in  absence  of  a  statute  they  are  not  regarded  as  a  subject  of  larceny.  The 
property  in  dogs  therefore,  is  not  of  the  same  character  as  that  of  ordinary 
domestic  animals,  in  which  the  right  of  property  is  absolute,  but  it  is  of  an  im- 
perfect or  qualified  nature.-^ 


1.  Being  endowed  with  power  of  volun- 
tary locomotion. — Bouv.  L.  Diet.,  vol.  1, 
p.  142;  Reiche  v.  Smythe.  13  Wall.  162, 
20    L.    Ed.    566. 

2.  Applies  only  to  quadrupeds. — Reiche 
V.  Smythe,  1.3  Wall.  162.  16.5.  20  L.  Ed. 
560. 

Where  an  act  of  1861  exempted  from 
duty  "animals  of  all  kinds;  birds,  sing- 
ing and  other,  and  land  and  water  fowls," 
and  a  later  act  levied  a  duty  of  20  per 
cent,  "on  all  horses,  mules,  cattle,  sheep, 
hogs,  and  other  live  animals,"  held,  that 
birds  were  not  included  in  the  terms 
"other  live  animals."  Reiche  v.  Smythe, 
13  Wall.  162,  20  L.  Ed.  566.  See  the 
tide   REVENUE   LAWS. 

3.  Qualified  property. — Geer  v.  Con- 
necticut, 161  U.  S.  519.  529,  40  L.   Ed.  793. 

A  man  may  have  a  qualified  property 
in  animals  ferae  naturae  propter  privile- 
gium — th.at  is,  he  may  have  the  privilege 
of  hunting,  taking  and  killing  them  in  ex- 
clusion of  other  persons.  A  man's  prop- 
erty in  these  animals,  usually  called  game, 
is  transient  and  continues  only  so  long 
as  they  continue  in  the  territory  under 
his  control,  and  while  he  may  restrain 
a  stranger  from  taking  them  in  such 
territory,  the  instant  they  depart  into 
the  territory  of  another,  his  qualified 
property  ceases.  A  man  can  have  no 
absolute  property  in  wild  animals  not 
in  confinement  such  as  he  may  have  in 
earth  and  land,  since  these  animals  are 
of    a    vague    and     fugitive     nature,      and 


therefore  can  admit  only  of  a  precarious 
and  qualified  ownership  which  only  lastj 
as  long  as  they  are  in  active  use  and  oc- 
cupation but  not  longer.  Greer  v.  Con- 
necticut, 161  U.  S.  519,  526.  40  L.  Ed. 
793,  citing  and  quoting  2  Black.  Com.  394. 

4.  Absolute  property  in  ordinary  do- 
mestic animals. — Sentell  v.  New  Or- 
leans, etc.,  R.  Co.,  166  U.  S.  698,  701,  41 
L.    Ed.    1169. 

5.  Different  from  ordinary  domestic 
animals. — Sentell  v.  New  Orleans,  etc., 
R.  Co.,  166  U.  S.  698,  701.  41  L.  Ed. 
1160. 

Nature  of  property. — ."The  very  fact 
that  they  are  without  the  protection  of 
the  criminal  laws  shows  that  property 
in  dogs  is  of  an  imperfect  or  qualified 
nature,  and  that  they  stand,  as  it  were, 
between  animals  ferae  naturae  in  which, 
until  killed  or  subdued,  there  is  no  prop- 
erty, and  domestic  animals,  in  which  the 
right  of  property  is  perfect  and  com- 
plete. They  are  not  considered  as  be- 
ing upon  the  same  plane  with  horses, 
cattle,  sheep  and  other  domesticated  ani- 
mals, but  rather  in  the  category  of  cats, 
monkeys,  parrots,  singing  birds  and  simi- 
lar animals  kept  for  pleasure,  curiosity  or 
caprice.  They  have  no  intrinsic  value, 
by  which  we  understand  a  value  com- 
mon to  all  dogs  as  such,  and  independ 
ent  of  the  particular  breed  or  individual. 
Unl'ke  other  domestic  animals,  they  are 
useful  neither  as  beasts  of  burden,  for 
draught    (except   to   a   limited   extent),  nor 


318 


ANIMALS. 


b.  Statutory  Rcgulotioiis  as  to  the  Keeping  of  Dogs. — Because  of  the  imper- 
fect character  of  the  property  in  dogs,  their  general  nature  and  the  fact  that  on 
account  of  their  running  at  large,  and  their  natural  instincts,  they  are  liable  to 
become  a  nuisance  and  a  menace  to  persons  and  property,  the  state  may,  under 
the  police  power,  prescribe  suitable  regulations  in  regard  to  the  keeping  of  dogs.'' 

Taxation. — Thus,  the  owner  may  be  compelled  to  keep  a  collar  on  his  dog 
and  to  list  him  for  taxation,  and  it  may  be  provided  that  if  these  regulations  are 
not  observed,  the  dogs  may  be  killed  either  by  private  persons  or  by  the  public 
authorities.' 

Killing  of  Unlisted  Dog. — It  may  also  be  provided  that  where  a  dog  is  not 
listed  for  taxation,  there  shall  be  no  recovery  in  case  he  is  killed  either  by  the 
neo-lio-ent  or  wanton  act  of  another,  and  where  listed,  the  amount  of  his  val- 
uation on  the  taxation  book  shall  be  the  amount  of  recovery. ^ 


for  food.  They  are  peculiar  in  the  fact 
that  they  differ  among  themselves  more 
widely  than  any  other  class  of  animals, 
and  can  hardly  be  said  to  have  a  char- 
acteristic common  to  the  entire  race. 
While  the  higher  breeds  rank  among  the 
noblest  representatives  of  the  animal 
kingdom,  and  are  justly  esteemed  for 
their  intelligence,  sagacity,  fidelity,  watch- 
fulness, affection,  and,  above  all,  for  their 
natural  companionship  with  man,  others, 
are  afflicted  with  such  serious  infirmities 
of  temper  as  to  be  little  better  than  a 
public  nuisance.  All  are  more  or  less 
subject  to  attacks  of  hydrophobic  mad- 
ness." Sentell  v.  New  Orleans,  etc..  R. 
Co..   160   U.    S.    698.    701.   41    L.    Ed.    1169. 

6.  Statutory  regulations. — Sentell  v. 
New  Orleans,  etc.,  R.  Co..  166  U.  S.  698, 
702,    41    L.    Ed.    1169. 

"As  it  is  practically  impossible  by 
statute  to  distinguish  between  the  dif- 
ferent breeds,  or  between  the  valuable 
and  worthless,  such  legislation  as  has 
been  enacted  upon  the  subject,  though 
nominally  including  the  whole  canine 
race,  is  really  directed  against  the  latter 
class,  and  is  based  upon  the  theory  that 
the  owner  of  a  really  valuable  dog  will 
feel  sufficient  interest  in  him  to  comply 
with  any  reasonable  regulation  designed 
to  distinguish  him  from  the  common 
herd.  Acting  upon  the  principle  that 
there  is  but  a  qualified  property  in  them, 
and  that,  while  private  interests  require 
that  the  valuable  ones  shall  be  protected, 
public  interests  demand  that  the -worth- 
less shall  be  exterminated,  they  have, 
from  time  immemorial,  been  considered 
as  holding  their  lives  at  the  will  of  the 
legislature,  and  properly  falling  within 
the  police  powers  of  the  several  states. 
Laws  for  the  protection  of  domestic 
animals  are  regarded  as  having  but  a 
limited  application  to  dogs  and  cats;  and. 
regardless  of  statute,  a  ferocious  dog  is 
looked  upon  as  hostis  humani  generis, 
and  as  having  no  right  to  his  life  which 
man  is  bound  to  respect.  Putnam  v. 
Payne.  13  Johns.  313;  Hickley  v.  Emer- 
son, 4  Cow.  351:  Brown  t-.  Carpenter.  26 
Vermont,  638;  Wnolf  v.  Chalker,  31  Con- 
necticut. 121;  Brent  v.  Kimball,  60  Illi- 
nois,   211;     Maxwell     t'.      Palmerton,      21 


Wend.  407."  Sentell  v.  New  Orleans, 
etc.,  R.  Co..  166  U.  S.  698,  701.  41  L.  Ed. 
1169. 

7.  Requirement  that  dogs  be  listed  for 
taxation. — Sentell  v.  New  Orleans,  etc., 
R.   Co..  166  U.    S.   698,  702,   41   L.   Ed.   1169. 

"Although  dogs  are  ordinarily  harm- 
less, they  preserve  some  of  their  heredi- 
tarj'  wolfish  instincts,  which  occasionally 
break  forth  in  the  destruction  of  sheep 
and  other  helpless  animals.  Others,  too 
small  to  attack  these  animals,  are  simply 
vicious,  noisy  and  pestilent.  As  their 
depredations  are  often  committed  at 
night,  it  is  usually  impossible  to  identify 
the  dog  or  to  fix  the  liability  upon  the 
owner,  who,  moreover,  is  likely  to  be 
pecuniarily  irresponsible.  In  short,  the 
damages  are  usually  such  as  are  beyond 
the  reach  of  judicial  process,  and  legis- 
lation of  a  drastic  nature  is  necessary  to 
protect  persons  and  property  from  de- 
struction and  annoyance.  Such  legisla- 
tion is  clearly  within  the  police  power  of 
the  state.  It  ordinarily  takes  the  form  of 
a  license  tax.  and  the  identification  of  the 
dog  by  a  collar  and  tag,  upon  which  the 
name  of  the  owner  is  sometimes  required 
to  be  engraved,  but  other  remedies  are 
not  uncommon."  Sentell  v.  New  Orleans, 
etc.,  R.  Co.,  166  U.  S.  698.  705,  41  L.  Ed. 
1169. 

"A  statute  providing  that  no  person 
should  be  liable  for  killing  a  dog  found 
without  a  collar  with  the  name  of  the 
owner  engraved  thereon,  was  held  to  jus- 
tify the  killing,  although  the  defendant  had 
actual  notice  of  the  ownership  of  the  dog 
found  without  such  collar.  Plamtiff 
claimed  that  the  act  was  unconstitutional, 
but  the  court  held  that  it  was  not  an  act 
to  take  private  property  for  public  use,  or 
to  deprive  parties  of  their  property  in 
dogs;  but  merely  to  regulate  the  use  and 
keeping  of  such  property  in  a  manner 
which  seemed  to  the  legislature  reason- 
able and  expedient.  'It  is  a  mere  police 
regulation,  such  as  we  think  the  legisla- 
ture might  constitutionally  establish.' " 
Sentell  7'.  New  Orleans,  etc.,  R.  Co.,  166 
U.    S.   698,   702.    41   L.   Ed.    1169. 

8.  Sentell  v.  New  Orleans,  etc.,  R.  Co., 
166   U.   S.   698,   702,   41   L.   Ed.    1169. 

A  statute  of   Louisiana,  which  provided 


AMMALS. 


319 


C.  Ownership  of  Increase  of  Animals.— The  increase  or  offspring  of  all 
domestic  animals  belong  to  the  owner  of  the  mother. ^ 

III.    Injuries   by  Animals. 

A.  Keeping  as  a  Basis  of  Liability— 1.  Wild  or  Partially  Tamed  An- 
imals.— Animals  fercC  naturce,  as  a  class,  are  known  to  be  mischeivous ;  and  the 
rule  is  well  settled,  that  whoever  undertakes  to  keep  such  an  animal  in  places 
of  public  resort  is  or  may  be  liable  for  the  injuries  inflicted  by  it  on  a  party  who 
is  not  guilty  of  negligence,  and  is  otherwise  without  fault. i"  And  while  certain 
animals  ferae  naturae  may  doubtless  be  domesticated  to  such  an  extent  as  to  be 
classed,  in  respect  to  the  liability  of  the  owner  for  injuries  they  commit,  with  the 
class  known  as  tame  or  domestic  animals,  yet  inasmuch  as  they  are  liable  to 
relapse  into  their  wild  habits  and  to  become  mischievous,  the  rule  is  that  if  they 
do  so,  and  the  owner  becomes  notified  of  their  vicious  habit,  they  are  included 
in  the  same  rules  as  if  they  had  never  been  domesticated.^^ 

2.  Domestic  Animals. — Domestic  animals,  such  as  oxen  or  horses,  may  in- 
jure the  person  or  property  of  another,  but  courts  of  justice  invariably  hold  that 


that  "no  dog  should  be  entitled  to  the 
protection  of  the  law  unless  the  same 
shall  have  been  placed  upon  the  assess- 
ment roll,  and  that  in  civil  action  for  the 
killing  of  or  for  injuries  done  to  dogs  the 
owner  cannot  recover  beyond  the  amount 
of  the  value  of  such  dog  or  dogs  as  fixed 
by  himself  in  the  last  assessment  pre- 
ceding the  killing  or  injuries  complained 
of,"  has  been  held  to  be  a  valid  exercise 
of  the  police  power  of  the  state.  Sen- 
tell  V.  New  Orleans,  etc.,  R.  Co.,  166  U. 
S.    69R,    41    L.    Ed.    1169. 

9.  Belong  to  owner  of  mother. — Fowler 
z:  Merrill,  11  How.  375,  13  L.  Ed.  736; 
.Arkansas  Cattle  Co.  v.  Mann.  130  U.  S. 
60.  78.  32   L.   Ed.   854. 

According  to  the  maxim  partus  sequitur 
ventrem,  the  brood  of  all  tame  and  do- 
mestic animals  belongs  to  the  owner  of 
the  dam  or  mother.  3  Bl.  Com.  390.  Ar- 
kansas Cattle  Co.  V.  Mann,  130  U.  S.  69, 
78,  32  L.   Ed.  854. 

In  Northwestern  Bank  v.  Freeman,  171 
U.  S.  620,  630.  43  L.  Ed.  307,  it  is  said: 
'Under  the  rule  that  the  incident  follows 
the  principle,  a  mortgage  of  domestic 
;inimal.s  covers  the  increase  of  such  ani- 
mals, though  it  is  silent  as  to  such  in- 
crease. This  court  said  in  Arkansas  Cat- 
tle Co.  V.  Mann.  130  U.  S.  69,  32  L.  Ed. 
S.'i4,  by  Mr.  Justice  Harlan,  'according  to 
the  maxim  partus  sequitur  ventrem,  the 
brood  of  all  tame  and  domestic  animals 
belong  to  the  owner  of  the  dam  or 
mother.'  2  Bl.  Com.  390.  See,  also, 
Pyeatt  v.  Powell,  decided  by  the  circuit 
court  of  Appeals  for  the  Eighth  Circuit, 
K)  U.    S.    Anp.    200,    and    cases    cited." 

10.  Liability  for  keeping  wild  animals. 
— SDrintr  Co.  V.  Edgar.  99  U.  S.  645,  651, 
25  L.   Ed.  487. 

This  was  an  action  against  the  pro- 
prietor of  a  park,  to  recover  for  injuries 
sustained  by  A.  from  an  .ittack  by  a  male 
deer  which,  with  other  deer,  was  per- 
mitted to  roam  in  the  park,  and  which 
the  declaration  rhprg-cd  that  the  deff^nd- 
ant  knew   to  be   dangerous.      At   the    trial, 


evidence  was  introduced  to  show  that  the 
park  was  open  and  accessible  to  visitors; 
that  A.  was  in  the  habit  of  visiting  it,  and 
when  lawfully  there  was  attacked  by  the 
deer  and  severely  injured;  that  she  had 
often  seen  deer — about  nine  in  number, 
three  of  whom  were  bucks,  the  oldest 
four  years  old — running  about  on  the 
lawn,  and  persons  playing  with  them,  and 
that  she  had  there  seen  the  sign.  "Be- 
ware of  the  buck;"  that  the  park  con- 
tained about  eleven  acres;  that  notices 
were  put  up  in  the  .park  a  year  or  two 
before,  cautioning  vis^itors  not  to  tease  or 
worry  the  deer;  that;  she  had  no  knowl- 
edge or  belief,  prior,  to  the  attack  upon 
her,  that  the  deer  were  dangerous,  if  not 
disturbed.  Experts  testified  that  in  their 
opinion  the  male  deer,  at  the  season  when 
the  injury  was  sustained  by  A.,  was  a 
dangerous  animal.  The  bill  of  exceptions 
does  not  show  that  all  the  evidence  for 
A.  is  set  forth  in  it.  or  that  the  defendant 
introduced  any.  It  was  held,  that  a  mo- 
tion to  dismiss  the  action,  nonsuit  the 
plaintiff,  and  to  direct  the  jury  to  return 
a  verdict  for  the  defendant,  was  properly 
denied.  Spring  Co.  v.  Edgar,  99  U.  S. 
645,  25  L.   Ed.   487. 

11.  Partially  tamed  animals. — Spring 
Co.  V.  Edgar,  99  U.  S.  645,  653,  25  L.  Ed. 
487. 

"Owners  of  wild  beasts  or  beasts  that 
are  in  their  nature  vicious  are  liable  un- 
der all  or  most  all  circumstances  for  in- 
juries done  by  them;  and  in  actions  for 
injuries  by  such  beasts  it  is  not  necessary 
to  allege  that  the  owner  knew  them  to  be 
mischievous,  for  he  is  presumed  to  have 
such  knowledge,  from  which  it  follows 
that  he  is  guilty  of  negligence  in  per- 
mitting the  same  to  be  at  large.  Though 
the  owner  have  no  particular  notice  that 
the  animal  ever  did  any  such  mischief 
before,  yet  if  the  animal  be  of  the  class 
that  is  ferse  naturae  the  owner  is  liable  to 
an  action  of  damaa:e  if  it  ,s:et  loose  and  do 
harm."  vSoring  Co.  v.  Edgar.  99  U.  S- 
645.   654,  25   L.   Ed.  487. 


320 


ANIMALS. 


if  they  are  rightfully  in  the  place  where  the  injury  is  inflicted,  the  owner  of  the 
animal  is  not  liable  for  such  an  injury,  unless  he  knew  that  the  animal  was  ac- 
customed to  be  vicious. ^2 

3.  Negligence  as  a  Necessary  Element  of  Recovery. — In  an  action  to  re- 
cover damages  for  injuries  received  from  animals  which  were  kept  in  a  state  of 
captivity,  it  is  not  necessary  either  to  allege  or  prove  that  there  was  negligence 
on  the  part  of  the  owner  or  keeper,  but  it  will  be  sufficient  to  warrant  a  recovery, 
if  it  be  shown  either  that  the  animals  were  of  an  untame  nature  or,  if  of  a 
tame  nature,  that  the  owner  or  keeper  had  knowledge  of  their  mischievous  or 
vicious  propensities. 13 

4.  Actions  for  Damages — a.  Evidence. — W'here  injuries  are  received  from 
domestic  animals,  evidence  of  actions  similar  to  those  which  occasioned  the  in- 
jury are  admissible  as  tending  to  show  the  disposition  and  habits  of  the  animals.** 

b.  Instructions. — The  court  may  instruct  the  jury  in  regard  to  the  statements 
of  the  plaintiff  as  to  the  injuries  they  have  received  from  the  captive  animals, 
and  may  also  instruct  them  as  to  the  amount  of  damages  to  be  awarded  in  case 
they  find  for  plaintiff;  and  where  the  opposite  party  makes  no  objection  or  asks 
no  modification  of  the  request,  it  will  be  held  correct.  The  court  may  also  in- 
struct the  jury  as  to  the  testimony  of  experts  and  the  determination  of  the 
weight  of  such  testimony. ^-^ 

B.  From  Animals  Grazing  upon  Unenclosed  Lands — 1.  At  Common 
Law. — The  rule  of  the  common  law  was  that  every  man  must  restrain  his  stock 
within  his  own  grounds,  and  if  he  did  not  do  so  and  they  grazed  upon  the  un- 
enclosed grounds  of  his  neighbor,  it  was  a  trespass  for  which  their  owner  was 
responsible.  1^ 


12.  Injuries   from    domestic    animals. — 

Spring   Co.  V.   Eds^ar,  99  U.  S.  645,  654.  25 
L.    Ed.   487. 

13.  Necessity  for  negligence. — Spring 
Co.  V.  Edgar,  99  U.  S.  645,  653.  25  L.  Ed. 
487. 

Owners  are  liable  for  the  hurt  done  by 
the  animal  even  without  notice  of  the 
propensity,  if  the  animal  is  naturallj-^  mis- 
chievous, but  if  it  is  of  a  tame  nature, 
there  mist  be  notice  of  the  vicious  habit. 
Spring  Co.  v.  Edgar,  99  U.  S.  645,  654,  25 
L.    Ed.    487. 

Whoever  keeps  an  animal  accustomed 
to  attack  or  injure  mankind,  with  the 
knowledge  of  its  dangerous  propensities, 
saj's  .\ddison.  is  prima  facie  liable  to  an 
action  for  damages  at  the  suit  of  any  per- 
son attacked  or  injured  by  the  animal, 
without  proof  of  any  negligence  or  de- 
fault in  the  securing  or  taking  care  of  the 
animal,  the  gist  of  the  action  being  the 
keeping  of  the  animal  after  knowledge  of 
its  mischievous  disposition.  Spring  Co. 
V.   Edgar,   99  U.   S.   645.  656.  25   L.   Ed.   487. 

14.  Previous  action  of  animals. — Ken- 
non  V.  Gilmer,  131  U.  S.  22.  33  L.  Ed. 
110. 

The  plaintiff,  who  was  a  passenger  on 
a  stage  coach,  was  injured  because  of  the 
action  of  the  horses  attached  to  plaintiff's 
coach.  At  the  trial  plaintiff  sought  to  intro- 
duce evidence  of  similar  conduct  of  the 
horses  subsequent  to  the  time  of  the  in- 
jury. It  was  held,  that  evidence  of  siibse- 
quent  misbehavior  of  the  horse  might  prop- 
erly be  admitted,  in  connection  with  evi- 
dence   of    his  misbehavior  at  and  before  the 


time  of  the  accident,  as  tending  to  prove 
a  vicious  disposition  and  fixed  habit,  and  to 
support  the  plaintiff's  allegation  that  the 
horse  was  not  safe  and  well  broken.  The 
length  of  time  afterwards  to  which  such 
evidence  may  extend  is  largely  within  the 
discretion  of  the  judge  presiding  at  the 
trial.  Kennon  v.  Gilmer,  131  U.  S.  22, 
25,   33    L.    Ed.    110. 

15.  Instructions  as  to  evidence. — Spring 
Co.  V.  Edgar.  99  U.   S.  645,  25  L.  Ed.  487. 

In  an  action  for  damages  to  recover 
injuries  received  by  a  woman  from  deer 
which  were  kept  in  a  public  park,  the  jury 
were  instructed  by  the  court  not  to  be- 
lieve any  extravagant  statement  of  the  in- 
juries received  by  the  plaintiff,  and  that, 
when  they  had  made  up  their  minds  as 
to  the  amount  really  sustained,  they 
should  not  be  nice  in  the  award  of  com- 
pensation, but  that  it  should  be  liberal. 
The  defendant  did  not  request  the  instruc- 
tion to  be  qualified  or  explained,  or  a  dif- 
ferent one  given.  It  was  held,  that  the 
charge  in  that  respect  furnished  no  ground 
for  reversing,  the  judgment.  Spring  Co. 
V.   Edgar,   99   U.   S.   645,  25   L-    Ed.   487. 

In  an  action  for  damages  to  recover  in- 
juries received  by  a  woman  from  deer 
which  were  kept  in  a  public  park,  the 
court  called  attention  to  the  testimony  of 
the  experts,  and  instructed  the  jury  that 
it  was  for  them  to  determine  its  weight. 
It  was  held,  that  the  instruction  was 
proper.  Spring  Co.  v.  Edgar,  99  U.  S- 
045.   25    L.    Ed.    487. 

16.  Owner's  duty  at  common  law. — 
Buford   V.    Houtz,    133    U.    S.    320,    328,    33 


ANIMALS. 


321 


2.  Under  State  Regulations. — The  rule  of  the  common  law  has  never  been 
of  universal  application  in  the  United  States,  and  the  subject  has  been  one  of 
statutory  regulation  in  many  of  the  states.  In  these  states  as  a  rule,  the  land- 
owner was  required  to  fence  his  land,  and  unless  he  did  so,  he  could  not  re- 
cover from  an  adjoining  owner  whose  cattle  grazed  upon  his  land." 

3.  Upon  Lands  of  the  United  States. — There  is  an  implied  license  grow- 
ing out  of  the  custom  of  nearly  a  hundred  years,  that  the  public  lands  of  the 
United  States,  especially  those  in  which  the  native  grasses  are  adapted  to  the 
growth  and  fattening  of  domestic  animals,  shall  be  free  to  the  people  who  seek 
to  use  them  where  they  are  left  open  and  unenclosed,  and  no  act  of  the  gov- 
ernment forbids  this.  The  government  of  the  United  States  in  all  its  branches, 
has  known  of  this  use  and  never  forbidden  it  nor  taken  any  steps  to  arrest  it.^' 

4.  Cattle  Straying  from  Public  Land  onto  Unenclosed  Private  Land. 
— It  has  also  become  the  practice  of  persons  owning  tracts  of  land  adjacent  to 
the  public  domain,  to  graze  their  cattle  partially  upon  their  own  land  and  par- 
tially upon  the  land  belonging  to  the  United  States,  and  where  this  is  done,  one 
landowner  cannot  prevent  another  landowner,  who  has  been  grazing  his  animals 
partially  upon  his  own  land  and  partially  upon  the  public  domain,  from  contin- 
uing to  allow  his  animals  to  graze  in  this  manner  because  of  the  fact  that  they 
may  stray  upon  the  unenclosed  land,  and  by  so  doing  cause  him  great  injury. ^^ 


L.  Ed.  618;  Lazarus  v.  Phelps.  152  U.  S. 
81,  84,  38  L.  Ed.  363;  Minneapolis,  etc., 
R.  Co.  V.  Beckwith.  129  U.  S.  26.  34,  32 
L.    Ed.    .58.5. 

17.  Effect  of  statutory  regulations  on 
common-law  rule. — Buford  v.  Houtz,  133 
U.  S.  320.  328,  33  L.  Ed.  618;  Lazarus  v. 
Phelps,  152  U.   S.  81,  38   L.   Ed.  363. 

Nearly  all  the  states  in  early  days  had 
what  was  called  the  fence  law,  a  law  by 
which  a  kind  of  fence,  sufficierlt  in  a  gen- 
eral way  to  protect  the  cultivated  ground 
from  cattle  and  other  domestic  animals 
which  were  permitted  to  run  at  large,  was 
prescribed.  The  character  of  this  fence 
in  most  of  the  statutes  was  laid  down 
with  great  particularity,  and  unless  it  was 
in  strict  conformity  to  the  statute,  there 
was  no  liability  on  the  part  of  the  owner 
of  cattle  if  they  invaded  the  enclosure  of 
a  party  and  inflicted  injury  on  him.  If 
the  owner  of  the  enclosed  ground  had  his 
fence  constructed  in  accordance  with  the 
requirements  of  the  statute,  the  law  pre- 
sumed then  that  an  animal  which  invaded 
this  encolsure  was  what  was  called  a 
breachy  animal,  was  not  such  animal  as 
should  be  permitted  to  go  at  large,  and 
the  owner  was  liable  for  the  damages 
done  by  him.  Otherwise  the  right  of  the 
owner  of  all  domestic  animals,  to  permit 
them  to  run  at  large,  without  responsi- 
bility for  their  getting  upon  the  lands  of 
his  neighbor,  was  conceded.  The  terri- 
tory of  Utah  has  now  and  always  had  a 
similar  statute.  Section  2234  of  the  com- 
piled laws  of  Utah  1888.  vol.  1,  p.  789.  Bu- 
ford V.  Houtz.  133  U.  S.  320,  328,  33  L 
Ed.    618. 

Common-law  rule  never  prevailed. — In 
Buford  V.  Houtz.  133  U.  S.  320.  328.  33 
L.  Ed.  618,  it  is  said:  "It  has  never  been 
understood  that  in  those  regions  and  in 
this    cnrntry.   in    the   progress    of   its    set- 

1  U  S  Eoc— 21 


tlement,  the  principle  prevailed  that  a  man 
was  bound  to  keep  his  cattle  confined 
within  his  own  grounds,  or  else  would  be 
liable  for  their  trespasses  upon  the  un- 
enclosed grounds  of  his  neighbors.  Such 
a  principle  was  ill-adapted  to  the  nature 
and  condition  of  the  country  at  that  time. 
Owing  to  the  scarcity  of  means  for  en- 
closing lands,  and  the  great  value  of  the 
use  of  the  public  domain  for  pasturage, 
it  was  never  adopted  or  recognized  as  the 
law  of  the  country,  except  as  it  might 
refer  to  animals  known  to  be  dangerous, 
and  permitted  to  go  where  their  danger- 
ous character  might  produce  evil  results. 
Indeed,  it  is  only  within  a  few  years  past, 
as  the  country  has  been  settled,  and  be- 
come highly  cultivated,  all  the  land  nearly 
being  so  used  b)^  its  owners  or  by  their 
tenants,  that  the  question  of  compelling 
the  owner  of  cattle  to  keep  them  confined 
has   been   the   subject  of   agitation." 

18.  License  implied  from  continuous 
practice. — Buford  v.  Houtz,  133  U.  S.  320, 
326,   33   L.    Ed.   618. 

19.  Buford  v.  Houtz,  133  U.  S.  320,  326, 
33    L.    Ed.    618. 

The  plaintiffs  who  were  owners  of  a 
large  number  of  cattle  which  were  being 
pastured  on  the  public  lands  of  the  United 
States  in  the  territory  of  Utah,  brought 
an  action  to  enjoin  defendants  who  were 
owners  of  large  number  of  sheep,  from 
driving  the  sheep  over  or  pasturing  them 
upon  the  same  land  which  the  plaintiffs 
were  using  as  a  pasturage  for  their  cat- 
tle. They  alleged  that  the  grazing  of 
sheep  upon  land  did  it  a  permanent  in- 
jurv,  that  it  drove  cattle  from  such  land 
and  greatly  damaged  it  and  rendered  it 
valueless  for  a  long  time  after  such  sheep 
had  been  grazed  thereupon.  It  was  held, 
that  the  defendants  had  an  equal  right 
with  the  plaintiffs  to  pasture  their  animals 


322 


ANIMALS. 


5.  Driving  Cattle;  upon  Another's  Land. — But  if  a  cattle  owner,  knowing 
that  the  proprietor  of  certain  lands  had  been  in  the  habit  of  leasing  his  land  for 
pasture,  should  deliberately  drive  his  cattle  upon  such  land  in  order  that  they 
might  feed  there,  he  will  be  bound  to  pay  a  reasonable  rental.-" 

6.  Overstocking  of  UnEnceosed  Land. — The  owner  of  animals  is  also  liable 
if  he  leases  a  section  of  land,  adjoining  the  vnienclosed  section  of  another,  and 
stocks  his  own  section  with  a  greater  number  of  animals  than  it  can  properly 
support  so  that  in  order  to  obtain  the  proper  amount  of  grass  they  would  be 
forced  to  stray  over  on  the  adjoining  section. -^ 

C.  Injuries  to  Highways  from  Driving  Herds  of  Animals  Thereupon. — 
A  state  has  the  power  to  provide  for.  the  recovery  of  damages  for  injuries  to 
highways  caused  by  the  driving  of  herds  of  animals  over  them. 22 

IV.   Injuries  to  Animals. 

A.  Maintenance  of  Fences  and  Cattle  Guards  by  Eailroads — 1.  Power 
TO  Require  Maintenance. — A  state  may,  in  exercise  of  its  police  power,  re- 
quire railroads  passing  through  the  state  to  erect  and  maintain  fences  and  cat- 
tle guards  at  the  sides  of  their  roads,  and  may  provide  that  where  theie  is  a 
failure  to  do  so,  and  the  animals  of  any  person  are  injured  after  strayixig  upon 
the  track  of  any  railroad  company,  the  owner  may  recover  a  sum  in  addition  to 
the  amount  of  damages  actually  sustained  by  the  loss  of  the  animals. -^ 


upon  the  uninclosed  land  belonging  to  the 
United  States,  that  the  rights  of  neither 
one  were  subordinate  to  the  other  and, 
therefore,  an  injunction  should  be  re- 
fused. Buford  V.  Houtz.  133  U.  S.  320, 
325.    33    L.    Ed.    618. 

20.  Lazarus  v.  Phelps,  152  U.  S.  81, 
85,  38   L.    Ed.   363. 

"If  *  *  *  a  cattle  owner,  knowing  that 
the  proprietor  of  certain  lands,  has  been 
in  the  habit  of  leasing  his  lands  for  pas- 
turage, should  deliberately  drive  his  cat- 
tle upon  such  lands  in  order  that  they 
might  feed  there,  it  would  scarcely  be 
claimed  that  he  would  not  be  bound  to 
pay  a  reasonable  rental.  So,  if  he  lease 
a  section  of  land,  adjoining  an  unenclosed 
section  of  another,  and  stock  his  own  sec- 
tion with  a  greater  number  of  cattle  than 
it  could  properly  support,  so  that,  in  or- 
der to  obtain  the  proper  amount  of  grass, 
they  would  be  forced  to  stray  over  upon 
the  adjoining  section,  the  duty  to  make 
compensation  would  be  as  plain  as  though 
the  cattle  had  been  driven  there  in  the 
first  instance.  The  ordinary  rule  that  a 
man  is  bound  to  contemplate  the  natural 
and  probable  consequences  of  his  own  act 
would  apply  in  such  a  case."  Lazarus  v. 
Phelps,   152  U.   S.   81,  85,  38  L.   Ed.   363. 

21.  Lazarus  v.  Phelps,  152  U.  S.  81,  38 
L.    Ed.    363. 

22.  Injuries  to  highways  from  herds  of 
cattle.— Jones  v.  Brim,  165  U.  S.  180,  41 
L.    Ed.    677. 

A  statute  of  Utah  reads  as  follows: 
"Section  2087.  Any  person  who  drives  a 
herd  of  horses,  mules,  asses,  cattle,  sheep, 
^ats  or  swine  over  a  public  highway, 
where  such  highway  is  constructed  on  a 
hillside,  shall  be  liable  for  all  damage  done 
by  such  animals  in  destroying  the  banks 
or  rolling  rocks  into   or  upon   such   high- 


way." It  has  been  held,  that  this  statute 
does  not  conflict  with  the  fourteenth 
amendment  of  the  constitution  of  the 
United  States.  The  statute  being  general 
in  its  application  embracing  all  persons 
under  substantially  like  circumstances  and 
not  being  an  arbitrary  exercise  of  power, 
does  not  deny  to  the  defendant  the  equal 
protection  of  the  law.  Jones  v.  Brim, 
165    U.    S.    180,    41    L.    Ed.    677. 

23.  Railroad  may  be  compelled  to  main- 
tain fences  and  guards. — Missouri,  Pac. 
R.  Co.  V.  Humes,  115  U.  S.  512.  29  L. 
Ed.  463;  Minneapolis,  etc.,  R.  Co.  v.  Beck- 
with,  129  U.  S.  26,  32  L.  Ed.  585;  Chicago, 
etc.,  R.  Co.  V.  McGlinn,  114  U.  S.  542.  29 
L.  Ed.  270. 

A  state  statute  provided  that  all  rail- 
road corporations  owning  or  operating 
roads  in  that  state  should  erect  and  main- 
tain lawful  fences  on  the  sides  of  the 
road  where  the  same  passed  through, 
along  or  adjoining,  enclosed  or  cultivated 
fields  or  uninclosed  lands  and  further  pro- 
vided that  the  corporation  should  be  liable 
in  double  the  amount  of  all  damages 
which  should  be  done  to  any  animals  es- 
caping from  or  coming  upon  said  land, 
fields  or  enclosures  occasioned  by  the  fail- 
ure to  construct  or  maintain  such  fences. 
It  was  held,  that  this  statute  was 
not  in  conflict  with  §  1,  art.  14,  of  the  con- 
stitution of  the  United  States,  as  the  stat- 
ute only  fixed  the  amount  of  damages  in 
proportion  to  injuries  inflicted  and  it  did 
not  deprive  the  defendant  of  due  process 
of  law,  as  they  were  afforded  every  fa- 
cility for  presenting  their  defenses.  It  was 
further  held,  that  the  statute  did  not  deny 
to  any  persons  the  equal  protection  of 
the  law  as  the  statute  made  no  discrim- 
all  railroad  companies  being  subject  to 
ination    against    any    particular    company, 


AMMALS. 


2.  Railroad  Passing  through  Federal  ^Iilitary  Reservation.— It  has 
been  held,  that  where  laws  requiring  railroads  to  maintain  fences  and  cattle  guards 
were  in  force  in  a  stale,  and  subsequent  to  their  enactments,  a  portion  of  land  in 
said  state  was  ceded  to  and  became  the  property  of  the  United  States  govern- 
ment, which  was  used  for  military  purposes,  that  the  laws  remained  in  force  as 
to  the  land  ceded  and  that  railroad  companies  were  under  the  same  obligations 
to  fence  that  portion  of  their  track  which  passed  through  the  military  reserva- 
tion, as  they  were  to  fence  the  portion  passing  through  the  lands  of  private 
persons. 2* 

B.  Power  to  Compel  Defendant  to  Pay  Plaintiff  Attorney  Fee  in  Ac- 
tion for  Injuries  to  Animals. — In  an  action  to  recover  the  value  of  animals 
killed  or  injured  by  a  railroad  company,  the  company  cannot  be  compelled  to  pay 
the  attorney's  fee  of  the  opposite  party,  where  a  recovery  is  had  against  the  rail- 
road company  in  the  first  instance,  and  such  suit  is  appealed  by  the  company  in 
the  event  that  the  final  judgment  is  against  the  railroad  company,  where  no  "such 
burden  is  imposed  upon  the  opposite  party  or  any  other  class  of  litigants.^s 


the  same  requirements.  Minneapolis,  etc., 
R.  Co.  V.  Beckwith,  125  U.  S.  26.  .32  L.  Ed. 
685;  Missouri  Pac.  R.  Co.  v.  Humes, 
115  U.  S.  512,  29  L.  Ed.  463. 

Provisions  in  a  statute  which  allows  the 
recovery  by  the  owner  of  animals  which 
are  killed  or  injured  on  the  tracks  of  a 
railroad  company,  by  reason  of  the  fail- 
ure of  the  company  to  provide  suitable 
fences  or  cattle  guards,  of  an  amount  in 
«xcess  on  the  actual  dainages  received  or 
giving  to  the  jury  a  latitude  in  which  they 
may  assess  damages,  will  not  invalidate 
the  statutes,  the  amount  over  and  above 
actual  compensation  being  given  as  a  pen- 
alty for  the  failure  to  obey  the  law.  and 
it  is  of  no  effect  that  the  party  injured, 
and  not  the  state,  is  allowed  the  additional 
amount.  Missouri,  Pac.  R.  Co.  v. 
Humes.  115  U.  S.  512,  29  L.  Ed.  463. 

24.  Chicago,  etc.,  R.  Co.  v.  McGlinn, 
114  U.   S.   542,  29   L.    Ed.   270. 

Railroad  passing  through  military  res- 
ervation.— An  action  was  brought  to  re- 
cover the  value  of  a  cow  belonging  to 
plaintiff  which  was  killed  while  upon  the 
track  of  railroad  corporation.  The  evi- 
dence showed  that  the  cow  had  strayed 
Upon  the  track  at  a  point  within  the  limits 
of  a  military  reservation  belonging  to  the 
United  States,  where  the  road  was  not 
enclosed  by  a  fence.  The  statute  of  the 
state  in  which  the  military  reservation  was 
situated,  required  all  railroad  companies, 
whose  roads  were  not  enclosed  by  law- 
ful fences,  to  pay  to  the  owner  of  all  ani- 
mals killed  or  wounded  by  the  engines 
or  cars  of  the  companies,  the  full  value 
of  the  animals  killed  and  damages  to  those 
Wounded,  regardless  of  negligence  on  the 
part  of  the  railroad  company.  It  was 
contended  by  the  railroad  company  that 
the  state  law  became  inoperative  within 
the  reservation  upon  the  cession  to  the 
United  States  of  exclusive  jurisdiction 
over  it,  but  it  was  held,  by  the  court,  that 
this  contention  was  incorrect  upon  the 
principle  that  where  political  jurisdiction 
and  legislative  power  are  transferred  from 


one  nation  or  sovereign  to  another,  the 
municipal  laws  of  the  country,  that  is. 
laws  intended  for  the  protection  of  pri- 
vate rights,  continue  in  force  until  abro- 
gated or  changed  by  the  new  govern- 
ment or  sovereign,  and  where  the  United 
States  had  passed  no  act  abrogating  the 
state  laws,  it  continued  in  force.  Chicago, 
etc.,  R.  Co.  V.  McGlinn,  114  U.  S.  542,  29 
L.  Ed.  270. 

25.   Gulf,  etc.,  R.   Co.  v.  Ellis,   165  U.  S. 
150,    41    L.    Ed.    666. 

Liability  for  plaintiff's  attorney's  fee. 

A  statute   of  the   state   of  Texas  provided 
as    follows:      "Any    person    in    this    state 
having    a    valid    bona    fide    claim    for    per- 
sonal  services  rendered  or  labor  done,  or 
for     damages,     or      for     overcharges      on 
freight,   or   claims   for   stock   killed   or   in- 
jured   by    the    train    of   any   railway    com- 
pany,  provided   that   such   claim   for   stock 
killed  or  injured  shall  be  presented  to  the 
agent  of  the  company  nearest  to  the  point 
where    such    stock   was    killed    or    injured, 
against  any  railway  corporation  operating 
a   railroad    in    this   state,   and   the    amoant 
of     such      claim     does     not     exceed     $50, 
may      present      the      same.      verified      by 
his      affidavit,      for      payment      to      such 
corporation   by   filing   it    with    any   station 
agent   of   such   corporation   in   any   county 
where  suit  may  be  instituted  for  the  same, 
and  if.  at  the  expiration  of  thirty  days  after 
such    presentation,     such     claim     has    not 
been    paid    or    satisfied,    he    may    immedi- 
ately institute   suit    thereon   in   the   proper 
court;  and  if  he  shall   finally  establish  his 
claim,    and    obtain    judgment    for    the    full 
amount     thereof,    as     presented     for    pay- 
ment  to   such    corporation    in    such    court, 
or  any  court  to  which  the  suit  may  have 
been  appealed,   he  shall  be  entitled  to  re- 
cover  the   amount   of   such    claim    and   all 
costs    of  suit,  and  in  addition  thereto  all  rea- 
sonable  attorney's    fees,  provided  he  has  an 
attorney   employed   in   his   case,  not  to   ex- 
ceed $10.  to  be   assessed   and   awarded   by 
the    court    or    jurv    trying    the    issue."      It 
was   held,   that   this   statute   was  unconsti- 


324 


ANIMALS. 


V.   Agistment  of  Cattle. 

A  contract  which  provided  that  an  agister  should  provide  for  the  feeding 
and  caring  for  a  number  of  cattle  and  that  they  should  be  brought  up  to  a  certain 
average  weight,  will  not  be  enforced  where  it  was  shown  that  the  agister  re- 
ceived the  cattle  under  a  misunderstanding  as  to  their  true  condition.-^ 

VI.    Regulations  as  to  the  Grazing  of  Sheep. 

Because  of  the  peculiar  nature  of  sheep,  and  the  fact  that  when  pastured  upon 
lartd,  they  will  in  the  end  drive  all  other  stock  off  of  the  pasture  for  the  reason 
that  sheep  eat  the  herbage  closer  to  the  ground  than  cattle  or  horses,  and  their 
hoofs  being  sharp,  they  devastate  and  kill  growing  vegetation  wherever  they  graze 
for  any  considerable  time,  it  has  been  held,  that  a  state  may  pass  laws  classifying 
sheep,  in  regard  to  the  places  where  they  may  graze,  different  from  other  animals 
and  that  a  statute  providing  that  no  person  or  persons  having  charge  of  sheep  shall 
permit  tliem  to  graze  upon  the  lands  of  any  other  person,  or  within  two  miles  of 
the  dwelling  house  of  another  person,  is  constitutional  and  valid. 2" 

VII.    Health  and  Sanitary  Regulations  Regarding  Animals. 

A.  Power  to  Prescribe  Sanitary  Regulations — 1.  Of  the  Federal. 
Government. — The  transportation  of  live  stock  from  state  to  state  is  a  branch 


tutional  and  void  in  that  it  violated  the 
fourteenth  amendment  to  the  constitution 
of  the  United  States  as  it  compels  the 
railroad  company  to  pay  the  attorney's 
fee  of  their  adversary  where  they  are  un- 
successful, while  if  successful  it  places  no 
similar  burden  on  the  opposite  party  and 
thus  works  an  unfair  discrimination.  Gulf, 
etc..  R.  Co.  V.  Ellis,  165  U.  S.  150.  41  L- 
Ed.  666. 

26.  Contract  for  certain  weight. — Teal 
V.  Bilby,  123  U.  S.  572,  31  L.   Ed.  263. 

The  defendant  who  made  a  business 
©f  feeding  cattle,  entered  into  a  contract 
•with  the  plaintiflf  to  feed,  pasture  and 
otherwise  care  for  three  thousand  head 
of  cattle.  The  agreement  provided  that 
the  cattle  should  be  fed  on  hay,  straw  and 
should  be  on  stalk  fields  during  the  win- 
ter until  the  grass  came,  to  be  kept  in 
inclosed  pastures  on  grass  until  the  mid- 
dle of  August,  after  which  they  were  to 
be  fed  on  corn  until  redelivered  to  the 
plaintiflf.  It  was  also  agreed  that  the 
cattle  should  be  so  fed  and  cared  for  that 
they  would  increase  in  weight  450  pounds 
each,  on  an  average.  Evidence  was  in- 
troduced to  show  that  because  of  the 
treatment  which  the  cattle  had  previously 
received,  they  could  not  be  wintered  on 
hay,  straw  and  stalk  fields,  and  a 
new  agreement  was  entered  into  be- 
tween plaintiff  and  defendant  by  which 
it  was  agreed  that  the  cattle  should 
be  fed  upon  corn  during  the  winter. 
It  was  held,  that  the  feeding  of  the 
cattle  with  a  superior  quality  of  food  was 
sufficient  evidence  to  show  a  modification 
of  the  contract,  and  in  an  action  brought 
against  the  agister  to  recover  damages 
for  failure  to  comply  with  the  terms  of  the 
contract,  the  plaintiff  was  not  entitled  to 
recover  where  the  defendant  received 
the    cattle    under    a    misunderstanding    as 


to  the  condition  they  were  in  and  to  the 
treatment  they  had  received  previous  to 
their  reception  by  him.  Teal  v.  Bilby^ 
123  U.  S.  572,  31  L.  Ed.  263. 

27.  Bacon  v.  Walker,  204  U.  S.  311,  313, 
51  L.  Ed.  499;  Bown  v.  Walling,  204  U. 
S.    320.   51    L.    Ed.    503. 

Sheep  grazing. — A  statute  of  the  state 
of  Idaho  provided  as  follows:  "Section 
1210.  It  is  not  lawful  for  any  person 
owning  or  having  charge  of  sheep  to  herd 
the  same,  or  permit  them  to  be  herded,  on 
the  land  or  possessory  claiins  of  other  per- 
sons, or  to  herd  the  same  or  permit  them 
to  graze  within  two  miles  of  the  dwell- 
ing house  of  the  owner  or  owners  of  said 
possessory  claims."  The  next  section 
provided  for  the  recovery  of  damages  by 
any  person  injured  by  the  violation  of 
the  above  section.  This  statute  was  at- 
tacked upon  the  ground  that  it  was  a  vio- 
lation of  the  fourteenth  amendment  of 
the  United  States,  the  plaintiflf  claiming^ 
that  he  had  an  equal  right  of  pasturage 
with  other  citizens  and  that  by  imposing 
damages  upon  him  for  so  doing,  he  was 
deprived  of  his  property  without  due 
process  of  law.  and  also  that  a  discrim- 
ination was  arbitrarily  and  inclusively 
made  by  the  statute  between  citizens  en- 
gaged in  grazing  sheep  on  the  public  do- 
main and  citizens  engaged  in  grazing 
other  classes  of  stock.  The  court  held 
tliis  objection  to  be  without  weight,  and 
the  statute  to  be  a  valid  and  necessary  po- 
lice regulation,  the  aim  of  which  was  not 
to  make  a  discrimination  between  the 
owners  of  sheep  and  that  of  other  kinds 
of  stock,  but  to  secure  an  equality  of  en- 
joyment and  use  of  the  public  domain  to 
settlers  and  cattle  owners  with  shee{> 
owners.  Bacon  z'.  Walker,  204  U.  S.  311, 
313,  51  L.  Ed.  499;  Bown  v.  Walling, 
204  U.  G.  320,  51   L.  Ed.  503. 


ANIMALS.  325 

of  interstate  commerce  and  any  specified  rule  or  regulation  in  respect  of  such 
transportation,  which  congress  may  lawfully  prescribe  or  authorize  and  which 
may  properly  be  deemed  a  regulation  of  such  commerce,  is  paramount  throughout 
the  Union. 28  So  that  when  the  entire  subject  of  the  transportation  of  live 
stock  from  one  state  to  another  is  taken  under  direct  national  supervision  and  a 
system  devised  by  which  diseased  stock  may  be  excluded  from  interstate  com- 
merce, all  local  or  state  regulations  in  respect  of  such  matters  and  covering  the 
same  ground  will  cease  to  have  any  force,  whether  formally  abrogated  or  not ; 
and  such  rules  and  regulations  as  congress  may  lawfully  prescribe  or  authorize 
will  alone  control.-^  But  as  congress  can  make  no  law  or  give  authority  to  any 
officer  of  the  United  States  government,  to  make  any  regulations  concerning  or 
affecting  intrastate  commerce,  therefore  an  order  issued  by  the  secretary  of  agri- 
culture establishing  what  was  denominated  as  a  quarantine  line,  which  applied 
as  well  to  the  shipments  of  animals  within  the  states,  as  to  shipments  between 
the  states,  was  held  void  as  an  infringement  on  the  powers  of  the  states  to  regu- 
late commerce  within  their  borders.  And  the  fact  that  a  state  has  passed  a  law 
making  a  state  quarantine  line  identical  with  that  established  by  the  secretary 
of  agriculture,  will  not  give  validity  to  his  order. -'^  Such  an  order  was  also  held 
to  be  in  conflict  with  the  act  of  February  2,  1903,  known  as  the  "Cattle  Conta- 
gious Disease  Act,"  as  this  act  was  only  intended  to  apply  to  interstate  shipments 
of  animals  over  which  congress  had  control. -^^ 

2.  Of  State  Government — a.  In  the  Absence  of  Federal  Statute. — In  the 
absence  of  congressional  enactment  on  the  subject,  a  state  may  pass  laws  to  pre- 
vent animals  suffering  from  contagious  or  infectious  diseases  from  entering 
within  it,  and  such  laws  will  not  be  in  conflict  with  the  constitution  of  the  United 
Statcs.-^2  B^it  while  a  state  may  enact  sanitary  laws,  and,  for  the  purpose  of 
self-protection,  establish  quarantine  and  reasonable  inspection  regulations,  and 
prevent  persons  and  animals  having  contagious  or  infectious  diseases  from  en- 
tering the  state,  it  cannot,  beyond  what  is  absolutely  necessary  for  self -protection, 
interfere  with  the  transportation  into  or  through  its  territory .-^^  A  state  may  pro- 
vide that  whoever  permits  diseased  cattle  in  his  possession  to  run  at  large  within 

28.  Reid  v.  Colorado,  187  U.  S.  137.  146,  198.  45  L.  Ed.  820;  Reid  v.  Colorado.  187 
47  L.  Ed.  108.  See  the  title  COM-  U.  S.  137,  47  L.  Ed.  108;  Smith  v.  St. 
MKPCE.  Louis,   etc.,   R.    Co..    181    U.    S.   248,   257,  45 

29.  Reid  v.  Colorado,  187  U.  S.  137,  146,  L.  Ed.  847.  See.  also.  .Austin  v.  Tennes- 
■47   L.    Fd.    108.  see.  179  U.  S!  343,  45  L.  Ed.  324. 

£0.    Illinois    Central    R.    Co.    v.    McKen-  A    state    may,    bv    its    laws,    exclude    all 

dree.  "03  U.  S.  514.  51  L-  Ed.  298.  animals  infected  with  an  infectious  or  con- 

31.  Illinois  Central  R.  Co.  v.  McKendree,  tagious  disease,  until  they  are  cured  of 
203  U.   S.   514,  51   L.   Ed.   298.  the    disease,    or    at    least    some    mode    of 

A  state  line  may.  in  proper  cases,  be  transporting  them  without  danger  of 
adopted  by  the  federal  authorities  as  a  spreading  it  is  devised.  Kimmish  v.  Ball, 
federal  quarantine  line,  if  limited  in  its  129  U.  S.  217,  32  L.  Ed.  695. 
effect  to  interstate  commerce  coming  from  S3.  No  application  to  interstate  ship- 
points  below  that  line.  P>ut  where  the  rrents. — Railroad  Co.  v.  Huscn,  95  U.  S. 
federal  authorities,  by  their  order,  make  465.  24  L.  Ed.  527;  Rasmussen  v.  Idaho, 
it  apply  to  all  shipments  of  animals  181  U.  S.  198,  45  L.  Ed.  820;  Smith  v.  St. 
whether  interstate  or  intrastate  com-  Lou's,  etc.,  R.  Co.,  181  U.  S.  248,  354,  45 
merce.  and  such  order  is  in  its  terrr's  ap-  L.  Ed.  847;  T?e''d  v.  Colorado,  187  U.  S. 
parently  single   and  indivisible,  it  will  not  137,   47   L.    Ed.    108. 

be  limited  by  judicial   construction   to   in-  The    statute   of   Missouri   which   prohfb- 

trastate   commerce    alone,  but   will   be   de-  its  driving  or  convevine  nny  Texas.   M^x- 

clared   a   nullitv   as    exceeding   the    federal  ican,   or   Indian   cattle   into  the    state,   be- 

authorities.       Illinois     Central     R.     Co.    v.  tween    the    first    day    of    March    and    tlie 

McKendree.  203   U.   S.   514.   51    L.   Ed.  298.  first   day  of  November  in  each  year,  is  in 

32.  State  enactments. — Railroad  Co.  v.  conflict  with  the  clause  of  the  cnnstitu- 
Husen.  95  U.  S.  465,  471,  24  L.  Ed.  527;  tion  that  ordains  "Congress  shall  have 
Kimmish  v.  Ball,  129  U.  S.  217,  221,  32  L.  power  to  regulate  commerce  with  foreign 
Ed.  695;  Gravson  v.  Lvnch.  163  U.  S.  nations,  and  among  the  several  states, 
468,  478.  41  L.  Ed.  230;  Missouri,  etc..  R.  and  with  the  Indian  tribes."  Such  a  stat- 
Co.  V.  Haber.  169  U.  S.  613,  614.  42  L.  ute  is  more  th?n  a  quarantine  regulation, 
Ed.   878;    Rasmussen   v.    Idaho,    181    U.    S.  and   not   a    legitimate   exercise   of  the   po- 


326 


ANIMALS. 


its  limits,  shall  be  liable  for  any  damages  caused  by  the  spread  of  the  disease 
occasioned  thereby. ^^ 

b.  Liability  of  Carrier  for  State  Penalties. — If  a  carrier  takes  diseased  cattle 
into  a  state,  it  does  so  subject,  for  any  injury  thereby  done  to  domestic  cattle,  to 
such  liability  as  may  arise  under  any  law  of  the  state  that  does  not  go  beyond 
the  necessities  of  the  case  and  burden  or  prohibit  interstate  commerce. ^^  A  stat- 
ute prescribing  as  a  rule  of  civil  conduct  that  a  person  or  corporation  shall  not 
bring  into  the  state  cattle  known,  or  which  by  proper  diligence  could  be  known,  to 
be  capable  of  communicating  disease  to  domestic  cattle,  cannot  be  regarded  as 
beyond  the  necessities  of  the  case,  nor  as  interfering  with  any  right  intended  to 
be  given  or  recognized  by  §  5258  of  the  Revised  Statutes  of  the  United  States.^* 

c.  QmiratUine  Regulations. — A  state  may  also  provide  suitable  and  proper 
regulations  for  the  inspection  or  quarantining  of  all  animals  capable  of  communi- 
cating, or  liable  to  impart,  disease  to  other  animals  within  its  borders.  And 
such  regulation  will  apply  to  animals  imported  into  the  state  from  other  states, 
as  well  as  to  animals  within  its  borders.^'^     The  prevention  of  disease  being  the 


lice  power  of  the  state.  Railroad  Co.  v. 
Husen,  95  U.  S.  465,  24  L.  Ed.  527. 

That  power  cannot  be  exercised  over 
the  interstate  transportation  of  subjects 
of  commerce.  Railroad  Co,  zk  Husen, 
95  U.   S.   465,   24   L.   Ed.   527. 

34.  Prohibiting  diseased  cattle  from 
running  at  large. — Kimmish  v.  Ball,  129 
U.  S.  217,  32  L.  Ed.  695;  Smith  v.  St.  Louis, 
etc.,  R.  Co..  181  U.  S.  248,  257,  45  L.  Ed. 
847. 

85.  Missouri,  etc..  R.  Co.  v.  Haber,  169 
U.  S.  613,  636,  42  L.  Ed.  878;  Reid  v.  Col- 
orado,   187    U.    S.    137,   47    L.    Ed.    108. 

Neither  corporations  nor  individuals  are 
entitled,  by  force  alone  of  the  constitu- 
tion of  the  United  States  and  without  li- 
ability for  injuries  resulting  therefrom  to 
others,  to  bring  into  one  state  from  an- 
other state  cattle  liable  to  impart  or  ca- 
pable of  communicating  disease  to  do- 
mestic cattle.  The  contrary  cannot  be 
affirmed  under  any  sound  interpretation  of 
the  constitution.  Missouri,  etc.,  R.  Co. 
V.  Haber,  169  U.  S.  613,  628,  42  L.  Ed. 
878;  Reid  v.  Colorado,  187  U.  S.  137.  47 
L.   Ed.   108. 

An  act  of  congress  that  does  no  more 
than  give  authority  to  railroad  companies 
to  carry  "freight  and  property"  over  their 
respective  roads  from  one  state  to  an- 
other state,  will  not  authorize  a  railroad 
company  to  carry  into  a  state  cattle 
known,  or  which  by  due  diligence  may 
be  known,  to  be  in  such  a  condition  as 
to  impart  or  communicate  disease  to  the 
domestic  cattle  of  such  state.  Missouri, 
etc.,  R.  Co.  V.  Haber.  169  U.  S.  613,  638, 
42  L.  Ed.  878.  See,  also,  Reid  v.  Colo- 
rado,   187   U.   S.    137.   47   L.    Ed.    108. 

36.  Missouri,  etc..  R.  Co.  v.  H^ber,  169 
U.  S.  613,  617.  42  L.  Ed.  878.  See,  also, 
Peid  V.  Colorado,  187  U.  S.  137.  47  L.  Ed. 
108. 

A  statute  of  the  state  of  Idaho  pro- 
viding that:  "Whenever  the  governor  of 
the  state  of  Idaho  has  reason  to  believe 
that  scab  or  any  other  infectious  disease 
of   sheep  has  become   epidemic   in   certain 


localities  in  any  other  state  or  territory^ 
or  that  conditions  exist  that  render  sheep 
likely  to  convey  disease,  he  must  there- 
upon, by  proclamation,  designate  such  lo- 
calities and  prohibit  the  importation  front 
them  of  any  sheep  into  the  state,  except 
under  such  restrictions  as,  after  consul- 
tation with  the  state  sheep  inspector,  he 
may  deem  proper,"  has  been  held  con- 
stitutional and  valid.  Rasmussen  v.  Idaho^ 
181   U.  S.   198,  45   L.  Ed.   820. 

'37.  Missouri,  etc.,  R.  Co.  v.  Haber.  169 
U.  S.  613.  42  L.'  Ed.  878;  Reid  v.  Colo- 
rado, 187  U.  S.  137,  47  L.  Ed.  108;  Smith 
V.  St.  Louis,  etc.,  R.  Co.,  181  U.  S.  248, 
45  L.  Ed.  847. 

Article  504oc  of  the  Revised  Statutes, 
of  Texas  1895,  provides:  "It  shall  be  the 
duty  of  the  commiss'on  provided  for  in 
article  5043a  to  protect  the  domestic  ani- 
mals of  this  state  from  all  contagious  or 
infectious  diseases  of  a  malignant  char- 
acter, whether  said  diseases  exist  in  Texas, 
or  elsewhere;  and  for  this  purpose  they 
are  hereby  authorized  and  empowered  to 
establish,  maintain  and  enforce  such  quar- 
antine lines  and  sanitary  rules  and  regu- 
lations as  they  may  deem  necessary.  It 
shall  also  be  the  duty  of  said  commission 
to  co-operate  with  live  stock  quarantine 
commissioners  and  officers  of  other  states 
and  territories,  and  with  the  United  States 
secretary  of  agriculture,  in  establishing 
such  interstate  quarantine  lines,  rules  and 
regulat'ons  as  shall  best  protect  the  live 
stock  industry  of  this  state  against  Texas 
or  splenetic  fever.  It  shall  be  the  duty  of 
said  commission,  rpon  receipt  by  them  of 
reliable  information  of  the  existence 
among  the  domestic  animals  of  the  state 
of  any  malignant  disease,  to  go  at  once  to 
the  place  where  any  such  disease  is  al- 
leged to  exist,  and  make  a  careful  exam- 
ination of  the  animals  believed  to  be  af- 
fected with  anv  such  disease,  and  ascer- 
tain, if  possible,  what,  if  any,  disease 
exists  among  the  live  stock  reported  to 
be  affected,  and  whether  the  same  is  con- 
tagious  or   infectious,   and   if   said   disease 


ANIMALS. 


327 


essence  of  these  quarantine  laws,  such  laws  apply  not  only  to  animals  actually 
diseased,  but  also  to  those  which  have  been  exposed  to  the  disease.'^** 

d.  Effect  of  Aninml  Industry  Act  on  State  Regulations.— State  laws  are  not 
affected  by  the  act  of  congress  known  as  the  "Animal  Industry  Act."  as  this  act 
does  not  prohibit  the  states  from  passing  laws  for  the  exclusion,  quarantining 
or  inspection  of  diseased  cattle,  or  those  liable  to  transmit  disease,  but  was  in- 
tended for  the  very  purpose  for  which  the  state  laws  are  enacted.  The  state 
laws  having  for  their  object  the  accomplishment  for  their  same  purpose,  are 
therefore  in  aid  of  the  federal  statutes.^'-' 

B.  Actions  for  Damages  for  Violation  of  Health  Regulations— 1. 
Pleadings. — In  an  action  to  recover  damages  for  injuries  received  by  plaintiff's 
cattle,  from  defendant's  failure  to  observe  the  necessary  precautions  to  prevent 
the  transmission  of  an  infectious  disease  from  defendant's  cattle  to  that  of  plain- 
tiff's, it  is  not  necessary  to  allege  in  tiie  pleadings  the  particular  spot  where  the 
disease  was  transmitted,  it  being  shown  that  the  disease  might  have  been  trans- 
mitted at  any  one  of  several  places.^^ 


is  found  to  be  of  a  malignant,  contagious 
or  infectious  character,  they  shall  direct 
and  enforce  such  quarantine  lines  and 
sanitary  regulations  as  are  necessary  to 
prevent  the  spread  of  anj'  such  disease. 
.\nd  no  domestic  animals  infected  with 
disease  or  capable  of  communicating  the 
same,  shall  be  permitted  to  enter  or  leave 
the  district,  premises  or  grounds  so  quar- 
antined, except  by  authority  of  the  com- 
missioners. The  said  commission  shall 
also,  from  time  to  time,  give  and  enfoce 
such  directions  and  prescribe  such  rules 
and  regulations  as  to  separating,  feeding 
and  cnring  for  such  diseased  and  exposed 
animals  as  they  shall  deem  neccssa-y  to 
prevent  the  animals  so  affected  with  such 
disease  from  coming  >n  contact  with  other 
animals  not  so  aflFected.  And  the  said 
commissioners  are  hereby  authorized  and 
empowered  to  enter  upon  any  grounds  or 
premises  to  carry  out  the  provisions  of 
this  act."  It  has  been  held,  that  this  act 
was  not  in  violation  of  the  Federal  con- 
stitution in  the  construction  placed  upon 
it  bv  the  highest  court  of  Texas.  Smith 
V.  St.  Louis,  etc..  R.  Co..  181  U.  S.  248, 
249.   4.T    L.    Ed.    847. 

38.  Animals  exposed  to  disease. — Smith 
V.  St.  Louis,  etc.,  R.  Co.,  181  U.  S.  248. 
2.55.    45    L.    Ed.    847. 

39.  Missouri,  etc.,  R.  Co.  v.  Haber.  169 
U.  S.  613.  42  L.  Ed.   878. 

"  'While  the  states  were  invited  to  co- 
operate with  the  general  government  in 
the  execution  and  enforcement  of  the  act, 
whatever  power  they  had  to  protect  their 
domestic  cattle  against  such  diseases  was 
left  I'ntouched  and  unimpaired  by  the  act 
of  congress.'  Hence,  it  was  decided  in 
that  case  that  the  'Animal  Industry  Act' 
did  not  stand  in  the  way  of  the  state  of 
Kansas  enacting  a  statute  declaring  that 
any  person  driving,  shipping  or  trans- 
porting, or  causing  to  be  shinped.  driven 
or  transported  into  or  through  that  state, 
anv  cattle  liable  or  capable  of  communi- 
cating Texas  or  splenetic  fever  to  domestic 
cattle,   should   be   liable   to  the  person   in- 


jured thereby  for  all  damages  sustained 
by  reason  of  the  communication  of  said 
disease  or  fever,  to  be  recovered  in  a  civil 
action.  We  there  held  that  the  Kansas 
statute  did  nothing  more  than  establish  a 
rule  of  civil  liability,  in  that  state,  affected 
no  regulation  of  interstate  commerce  that 
congress  had  prescribed  or  authorized, 
and  impaired  no  right  secured  by  the 
national  constitution."  Raid  v.  Colorado, 
187  U.   S.   1.37,   148,  47  L.   Ed.   108. 

Section  4059  of  the  Iowa  Code  provided 
as  follows:  "If  any  person,  now  or  here- 
after, has  in  his  possession  in  this 
slate  any  such  Texas  cattle,  he  shall 
be  liable  for  any  damages  which 
may  accrue  from  allowing  said  cat- 
tle to  run  at  large  and  thereby  spreading 
the  disease  among  other  cattle  known  as 
the  Texas  fever,  and  shall  be  punished  as 
prescribed  in  the  preceding  section."  The 
Code  prohibited  the  importation  of  Texas 
cattle  which  had  not  been  wintered  north 
of  the  southern  boundary  of  the  state  of 
Missouri  or  Kansas,  and  prescribed  a. 
penalty  consisting  of  fine  and  imprison- 
ment for  the  violation  of  the  statute.  It 
was  held,  that  the  above  statute  did  not 
violate  the  constitution  of  the  United 
States  in  that  it  attempted  to  interfere  or 
regulate  interstate  commerce,  nor  did  it 
violate  §  2,  art.  4,  of  the  constitution  pro- 
viding, that  the  citizens  of  each  state  shall 
be  entitled  to  all  privileges  and  immunities 
in  the  several  states.  Kimmish  v.  Ball, 
129  U.  S.  217.  32  L.  Ed.  693.  See.  also, 
Reid  V.  Colorado,  187  U.  S.  1,37,  47  L. 
Ed.  108,  where  a  similar  statute  of 
Colorado   was    held    constitutional. 

40.  Place  of  transmission. — Grayson  v. 
Lynch.  163  U.   S.  468.  478.  41   L.  Ed.  230. 

"There  is  also  an  allegation  in  the 
second  count  that  the  plaintiffs  kept  and 
grazed  their  cattle  on  certain  lands  of 
whif^h  they  were  possessed  in  the  county 
of  Sierrp;  that  while  so  grazing  upon  said 
lands,  defendants  drove  and  pastured  their 
cattle  upon  th^t^e  lands,  and  there  com- 
municated to  them  the  disease  in  question; 


328 


ANNEXATION  OF  TERRITORY. 


2.  Evidence. — In  an  action  to  recover  damages  for  injuries  received  by  plain- 
tiff's cattle  from  defendant's  failure  to  observe  the  proper  precautions  to  prevent 
the  transmission  of  an  infectious  disease,  from  defendant's  cattle  to  that  of 
plaintiff's,  testimony  of  persons  who  are  not  experts  is  admissible  to  show  that 
cattle  with  symptoms  similiar  to  those  of  plaintift"s  cattle  were  commonly  re- 
ported to  be  afflicted  with  Texas  fever.^^  Members  of  the  staff  of  veterinary 
division  of  the  department  of  agriculture  may  testify  as  experts  concerning  a 
disease  known  as  Texas  fever>2 

3.  Question  eor  Court. — Persons  having  knowledge  that  their  cattle  were 
infected  with  the  disease  known  as  Texas  fever  are  guilty  of  violation  of  a  stat- 
ute in  delivering  them  to  a  railway  company  for  transportation  to  another  state 
or  territory  and  the  duty  devolves  upon  them  to  use  all  necessary  care  to  pre- 
vent their  communicating  a  disease  to  healthy  cattle.  Whether  or  not  this  care 
has  been  exercised  is  a  proper  question  for  the  court.^^ 

ANIMUS  MANENDI.— See  the  title  Domicile. 

ANNEXATION  OF  TERRITORY.— See  the  titles  Counties;  Municipal 
Corporations. 


while  the  finding  of  the  court  in  that  con- 
nection was,  that  it  could  not  be  deter- 
mined 'whether  Lynch  Bros.'  cattle  con- 
tracted the  disease  on  the  road,  or  on 
their  own  range,  or  on  Grayson's  range, 
©wing  to  the  indiscriminate  mixing  of 
them  with  Grayson  &  Co.'s  cattle  on  both 
ranges.'  It  certainly  would  not  be 
claimed  that  the  fact  that  plaintiffs  could 
not  prove  whether  the  disease  was  com- 
municated to  their  cattle  wliile  upon  their 
own  lands  or  elsewhere  would  prevent 
their  recovery,  if  the  disease  were  com- 
municated either  in  one  place  or  the 
©ther."'  Gravson  r.  Lynch,  163  U.  S.  468. 
478,  41   L.   Ed.  230. 

41.  Nonexpert  testimony. — Grayson  v. 
Lynch,  163  U.  S.  468,  478,  41   L.  Ed.  230. 

The  court  in  Gravson  v.  Lynch,  163  U. 
S.  468.  479,  41  L.  Ed.  230.  spoke  as  fol- 
lows: "Objections  were  taken  to  the  tes- 
timony of  three  witnesses,  *  *  *  upon 
the  ground  that,  not  being  experts,  thej' 
were  permitted  to  say  that  the  disease 
with  which  plaintiffs  cattle  became  af- 
fected was  ordinarily  called  Texas  fever. 
These  witnesses,  however,  were  not  called 
as  experts,  nor  did  they  purport  to  testify 
in  that  capacity.  They  testified  fully  as 
to  the  symptoms  of  the  disease  with  which 
plaintiffs'  cattle  were  afflicted,  the  re- 
eemblance  of  these  symptoms  to  such  as 
they  had  previously  observed  in  other  cat- 
tle, stating  that  the  disease  was  generally 
called  Texas  fever.  These  were  evidently 
matters  of  common  observation.  These 
witnesses  did  not  claim  to  testify  of  their 


own  knowledge  as  to  the  name  of  the 
disease,  but  merely  as  to  the  symptoms 
they  observed,  and  that  cattle  so  atiiicted 
were  ordinarily  spoken  of  as  having 
Texas    fever." 

42.  Expert  testimony.— Grayson  v. 
Lynch,   163  U.  S.  ^68,  478,  41   L.  Ed.  230. 

"If  these  gentlemen  who  were  con- 
nected with  the  department  of  agriculture 
and  made  a  specialty  of  investigating 
animal  diseases,  were  not  competent  to 
speak  upon  the  subject  as  experts,  it 
would  probably  be  impossible  to  ob- 
tain the  testimony  of  witnesses  who 
were.  The  fact  that  the}'^  spoke  of  certain 
districts  of  Texas  as  being  infected  with 
that  disease  was  perfectly  competent, 
though  thej"  may  never  have  visited  those 
districts  in  person.  In  the  nature  of  thoir 
business,  in  the  correspondence  of  the  de- 
partment and  in  the  investigation  of  such 
diseases,  they  would  naturally  become 
much  better  acquainted  with  the  districts 
where  such  diseases  oricirnted  or  were 
prevalent,  than  if  they  had  been  merely 
local  physicians  and  testified  as  to  what 
rsme  within  their  personal  observation. 
The  knowledge  thus  gained  cannot  orop- 
erly  be  spoken  of  as  hearsay,  since  it  was 
a  part  of  their  official  duty  to  obtain  such 
lv-r^T\-1pdo''^.  and  learn  where  such  diseases 
originated  or  were  prevalent,  and  how 
they  became  disseminated  throughout  the 
countrv."  Grav^r-n  r.  Lynch.  163  U.  S. 
468.   48"l,   41    L.    Ed.   230. 

43.  Grayson  v.  Lynch.  163  U.  S.  468,  484, 
41  L.   Ed.  230. 


ANNUITY. 

CROSS  REFERENCES. 
See    tlj.e    titles    Advancements,    ante,    p.    198;    Contracts;    Dower;    Ex- 
ecutors AND    Administrators;    Ground    Rents;    Taxation;    Trusts    and 
Trustees;  Wills. 

Definition. — A  yearly  sum  stipulated  to  be  paid  to  another  in  fee,  or  for  life 
or  years,  and  chargeable  only  on  the  person  of  the  grantor. ^ 

Nature. — A  contract  for  annuity  is  in  the  nature  of  an  ordinary  contract,^ 
and  may  be  sold  or  assigned  like  other  property.^ 

Usury. — The  purchase  of  an  annuity,  if  a  bona  fide  sale,  has  never  been  con- 
sidered as  usurious.  Yet,  if  it  is  apparent  the  transaction  is  a  mere  device  to 
avoid  the  statute  of  usury,  it  will  be  treated  as  a  usurious  contract.* 

Property  Chargeable. — The  question  as  to  what  property  is  chargeable  with 
an  annuity  is  one  of  intention  of  the  parties,  to  be  derived  from  the  instrument 
creating  it.^ 

Priority  of  Lien. — The  lien  of  an  annuity  created  on  a  particular  fund  takes 


1.  2  Bla.  Com.  40;  Co.  Litt.  144b; 
Bouvier  L.  Diet;  Black's  L.  Diet. 

2.  A  eontract  to  pay  a^  annuity  is  like 
any  other  eontraet  in  that,  upon  breaeh 
of  the  eontraet,  annuitant  can  elect  to 
treat  it  as  finally  broken  by  the  defend- 
ant, and  can  maintain  an  action,  and  re- 
cover all  that  he  would  have  received  in 
the  future,  as  -well  as  in  the  past.  Pierce 
T.  Tenn.  R.  Co.,  173  U.  S.  1.  16,  43  L.  Ed. 
591. 

3.  Loyd  V.  Scott,  4  Pet.  205,  224,  7  L. 
Ed.  833;  Scott  v.  Loyd.  9  Pet.  418,  446. 
9  L.  Ed.  178. 

4.  Scott  V.  Loyd,  9  Pet.  418,  446,  9  L. 
Ed.   178. 

The  inequality  of  price  will  not,  of  itself, 
make  the  contract  usurious.  Loyd  v. 
Scott.   4   Pet.   205,   224,   7    L.    Ed.    833. 

"The  purchase  of  an  annuity,  or  any 
other  device  used  to  cover  an  usurious 
transaction,  will  be  unavailing.  If  the 
contract  be  infected  with  usury,  it  can- 
not be  enforced.  Where  an  annuity  is 
raised,  with  the  design  of  covering  a  loan, 
the  lender  will  not  be  exempted  by  it 
from  the  penalties  of  usury.  3  Bos.  & 
Pul.  159.  On  this  point,  there  is  no  con- 
tradiction in  the  authorities."  Lloyd  v. 
Scott,  4  Pet.  205.  224,   7  L.   Ed.   833. 

A  mere  application  for  a  loan  does  not 
convert  a  subsequent  annuity,  which 
yields  a  profit  beyond  legal  interest,  into 
a  usurious  contract;  but  an  actual  con- 
tract for  the  loan,  if  converted  into  an 
annuity,  in  order  to  avoid  the  law.  is 
within  the  statute.  Scott  v.  Lloyd.  9  Pet. 
418.  449,  9  L.  Ed.  178.  See  the  title 
USURY. 

5.  In  a  will  devising  certain  land,  the 
testator  provided  for  a  life  annuity  of 
money,  and  other  money  legacies  and 
"that  all  the   legacies  which   I   have   given 


in  money  and  not  charged  upon  any 
particular  fund  is  not  demandable  *  *  * 
for  the  term  of  two  years  after  my 
decease."  The  devise  of  land  was  with  a 
condition  of  forfeiture  in  case  of  non- 
payment of  the  money  legacies  and  life 
annuity.  It  was  held,  that  as  there  was 
no  other  legacies  given  that  answered  the 
description  of  legacies  in  money  charged 
on  a  particular  fund,  the  life  annuity  was 
a  charge  on  the  land  devised.  Bank  v. 
Hudson,  111  U.  S.  66,  75,  28  L.  Ed.  354. 
D.  devised  all  his  estate  to  his  executor, 
in  trust  to  convert  the  same  into  money, 
and  after  paj'ment  of  debts,  to  invest  the 
surplus  in  the  funds,  or  put  out  on  inter- 
est. He  then  bequeathed  £1500  to  E.,  to 
be  paid  at  the  age  of  21,  subject  to  the 
subsequent  provisos;  and  directed  £1000 
to  be  set  apart,  and  the  interest  to  be  paid 
to  S.,  during  her  life,  and  after  bequeath- 
ing other  pecuniary  legacies,  said,  pro- 
vided, "that  in  case  the  personal  estate, 
and  the  produce  arising  from  the  real  es- 
tate, which  I  shall  die  seized  and  pos- 
sessed of,  shall  not  be  sufficient  to  answer 
the  said  annuities  and  legacies  herein  be- 
fore bj-  me  bequeathed,  then  and  in  such 
case,  I  direct,  that  the  said  annuities  and 
legacies  so  by  me  bequeathed,  shall  not 
abate  in  proportion;  but  the  whole  of  such 
deficiency  (if  any  there  shall  be)  shall  be 
deducted  out  of  the  £1500  bequeathed  to 
E.."  whom  he  also  made  his  residuary 
legatee.  The  estate  was  more  than  suffi- 
cient at  the  time  of  the  testator's  death,  to 
pay  all  debts,  annuities  and  legacies,  but 
afterwards,  by  the  bankruptcy  of  the  ex- 
ecutor, became  insufficient.  Held,  that  E-'s 
legacy  of  £1500  should  be  liable  to  S.'s 
annuity.  Silsby  v.  Young,  3  Cranch  249, 
2  L.  Ed.  429.     See  the  title  WILLS. 


(329) 


330 


Ai\  y. 


priority  over  subsequent  liens  created  on  the  same  fund.*^ 

Duration  of  Lien. — A  decree  of  a  court  of  chancery  establishing  the  arrears 
due  on  an  annuity  as  a  specific  lien  on  land,  by  virtue  of  a  will,  does  not  create 
a  lien  but  merely  gives  effect  to  the  lien  which  the  will  created;  and  therefore 
is  not' affected  by  a  statute  limiting  the  lien  of  a  judgment  or  decree  on  the  prop- 
erty of  the  defendant  to  a  certain  period." 

ANNULMENT  OF  MARRIAGE.— See  the  title  Marriage. 

ANOTHER  SUIT  PENDING. — See  the  title  Abatement,  Revival  and  Sur- 
vival, ante,  p.  15. 

ANSWERS. — See  the  titles  Admiralty,  ante,  p.  119;   Equity;   Pleading. 

ANTENUPTIAL  CONTRACTS  AND  SETTLEMENTS.— See  the  title  Mar- 
riage Contracts  and  Settlements. 

ANTICHRESIS. — /\ntichresis,  under  the  Louisiana  law,  is  a  pledge  where  the 
set    ritv  given  consists  in  immovables. ^ 

ANTICIPATE. — In  patent  law,  that  which  would  infringe  if  later,  would  an- 
ticipate if  earlier. 2 

ANTI- TRUST  LAWS. — See  the  title  Monopolies  and  Corporate  Trusts. 

ANY. — While  the  word  "any"  is  generally  used  in  the  sense  of  all  or  every,-* 


6.  A  lien  of  an  annuity  on  land  created 
by  will  takes  priority  over  a  mortgage  to 
secure  creditors,  given  subsequent  to  the 
will,  and  will  be  enforced  against  the  pur- 
chaser at  foreclosure  sale.  Bank  f.  Hud- 
son, 111  U.  S.  66.  77.  28  L.  Ed.  354.  See 
the  title  MORTGAGES  AND  DEEDS 
OF  TRUST. 

7.  Bank  v.  Hudson,  111  U.  S.  66,  76,  28 
L.  Ed.  354.  See.  also,  the  title  JUDG- 
MENTS ANDDECREES. 

1.  Antichresis. — Eivingston  z>.  Stor3^  11 
Pet.  351.  9  L.  Ed.  746.  See  the  titles 
MORTGAGES  AND  DEEDS  OF 
TRUSTS;  PLEDGE  AND  COLLAT- 
ERAL  SECURITY. 

The  creditor  acquires  by  the  contract 
of  antichresis  the  right  of  reaping  the 
fruits  or  other  rewards  of  the  immovables 
given  to  him  in  pledge;  on  condition  of 
deducting,  annually,  their  proceeds  from 
the  interest,  if  any  be  due  to  him,  and 
afterwards  from  the  principal  of  his  debt; 
the  creditor  is  bound,  unless  the  contrary 
is  agreed  on.  to  pay  the  taxes,  as  well  as 
the  annual  charges  of  the  property  given 
to  him  in  pledge;  he  is  likewise  bound, 
tinder  the  penalty  of  damages,  to  provide 
for  the  keeping  and  necessary  repairs  of 
the  pledged  estate;  and  maj;^  lay  out,  from 
the  revenues  of  the  estate,  sufficient  for 
such  expenses.  The  creditor  does  not 
become  proprietor  of  the  pledged  im- 
movables, bv  the  failure  of  payment  at 
the  stated  time;  any  clause  to  the  con- 
trary is  null;  and  in  that  case,  it  is  only 
lawful  for  him  to  sue  his  debtor  before 
the  court,  in  order  to  obtain  a  sentence 
against  him,  and  to  cause  the  objects 
which  have  been  put  into  his  hands  to  be 
seized  and  sold.  The  debtor  cannot,  be- 
fore the  full  payment  of  his  debt,  claim 
the  enjoyment  of  the  immovables  which 
ht^  has  ffiven  in  pledcre;  but  the  creditor. 
who  wishes  to  free   himself  from  the  ob- 


ligations under  the  antichresis,  may  al- 
wa3^s.  unle-^s  he  has  renounced  this  right, 
compel  the  debtor  to  retake  tlie  enjoy- 
ment of  his  immovables.  Livingston  v. 
Story,   11    Pet.   351,   352,   9    L.    Ed.    746. 

2.  Anticipate. — Knapp  v.  Morss,  150  U. 
S.  221,  2:?8.  37  L.  Ed.  1059,  citing  Peters 
V.  Aclive  Mfg.  Co.,  129  U.  S.  530,  32  L.  Ed. 
738;  Thatcher  Heating  Co.  v.  Burtis,  121 
U.  S.  2S(),  30  L.  Ed.  942;  Grant  v.  Walter, 
1-18  U.  S.  547,  37  L.  Ed.  552;  Gordon  v. 
Warder,  1.50  U.  S.  47,  37  L.  Ed.  992.  See, 
generally,  the  title  PATENTS. 

3.  Any  in  sense  of  all  or  every. — United 
States  z\  Palmer,  3  Wheat.  610,  631,  4  L- 
Ed.  471;  Holy  Trinity  Church  v.  United 
States,  143  U.  S.  447,  463,  36  L.  Ed.  226;  dis- 
senting opinion  of  Swayne,  J.,  in  Slaugh- 
ter House  Cases,  16  Wall.  36,  128,  21  L. 
Ed.  394.  See,  also,  Montclairz".  Ramsdell. 
107  U.  S.  147,  152.  27  L.  Ed.  431. 

Any  in  its  comprehensive  sense. — The 
words  "any  car"  as  used  in  act  of  March 
21,  1893,  making  it  unlawful  for  a  railroad 
engaged  in  interstate  commerce  to  use  or 
haul  any  car  not  equipped  with  automatic 
couplers  means  all  kinds  of  cars  running 
on  the  rails,  and  includes  locomotives. 
Johnson  z:  Southern  Pac.  R.  Co.,  196  U. 
S.  1,  49  L.  Ed.  363.  See,  generallv,  the 
titles    COMMERCE;    RAILROADS. 

"Not  to  impose  any  further  tax  or  bur- 
den," when  used  in  reference  to  some  tax 
already  imposed,  means  no  other  tax  be- 
s'des  that  to  which  reference  is  made. 
Those  words,  so  used,  cannot  be  limited 
by  a  refinement  upon  the  etymology  of 
the  word  any,  out  of  or  beyond  its  mean- 
ing in  common  discourse,  to  any  like;  and 
the  words  "any  further  tax,"  used  with  re- 
lation to  some  other  tax,  will,  by  common 
consent,  as  it  always  has  been,  be  in- 
tended to  mean  any  additional  tax  besides 
that  referred  to,  and  not  any  further  like 


ANY. 


331 


this  meaning  may  be  restrained  by  the  context  or  subject  matter  of  the  writing 
in  which  it  is  employed.* 


tax.  Gordon  v.  The  Appeal  Tax  Court,  3 
How.  133,  147,  11  L.  Ed.  529. 

"The  words  'any  captain  or  mariner  of 
any  ship  or  other  vessel,'  comprehend  all 
captains  and  mariners,  as  entirely  as  the 
words  'any  person  or  persons,'  compre- 
hend the  whole  human  race."  United 
States  V.  Palmer.  3  Wheat.  610,  631.  4  L. 
Ed.  471. 

"The  words  'einy  person  or  persons,'  are 
broad  enough  to  comprehend  every  hu- 
man being."  United  States  v.  Palmer,  3 
Wheat.  610,  631,  4  L.  Ed.  471;  Holy  Trinity 
Church  V.  United  States,  143  U.  S.  447, 
462,  36  L.   Ed.  226. 

Any  railroad. — A  state  statute  author- 
ized counties  to  subscribe  to  the  stock  of 
"any  railroad,"'  provided  the  subscription 
did  not  exceed  a  certain  amount.  It  was 
held,  that  the  words  "any  railroad"  were 
used  distributively,  and  that  the  proviso 
had  reference  to  the  subscription  to  "any 
railroad;"  that  is.  any  one  railroad  taken 
separately,  and  that  a  county  might  sub- 
scribe to  more  than  one  railroad,  provided 
the  subscription  did  not  exceed  the 
amount  designated  in  the  statute.  County 
of  Chicot  z:  Lewis.  103  U.  S.  164,  167.  26 
L.   Ed.   495. 

Any  court. — The  act  of  congress  of  July 
13,  1866,  provided  that  "no  suit  shall  be 
maintained  in  any  court  for  the  recovery 
of  any  tax  alleged  to  have  been  errone- 
ously or  illegally  assessed  or  collected, 
until  an  appeal  shall  have  been  duly  made 
to  the  commissioner  of  internal  revenue." 
In  Collector  v.  Hubbard,  12  Wall.  1,  15, 
20  L.  Ed.  272,  the  court,  in  construing  this 
section,  said:  "Unless  the  meaning  of  the 
section  can  be  restrained  by  construction, 
it  is  quite  clear  that  it  includes  the  state 
courts  as  well  as  the  federal  courts,  as  the 
language  is  that  no  suit  shall  be  main- 
tained in  any  court  to  recover  any  tax  al- 
leged to  have  been  erroneously  or  ille- 
gally assessed  or  collected,  and  there  is 
not  a  word  in  the  section  tending  to  show 
that  the  words  'any  court'  are  not  used 
in  their  ordinary  sense.  Unquestionably 
if  the  provision  is  a  good  bar  in  the  fed- 
eral courts,  it  is  a  good  bar  in  all  courts 
acting  under  the  same  act  of  congress, 
and  furnishes   the  rule  of  decision  for  all. 

"Any  criminal  case,"  as  used  in  the  5th 
amendment,  providing  that  no  person 
shall  be  compelled  in  any  criminal  case  to 
be  a  witness  against  himself,  means  any 
criminal  case  against  any  person  what- 
ever, and  is  not  limited  to  a  criminal  pro- 
ceeding against  the  witness  himself. 
Connselman  v.  Hitchcock,  142  U.  S.  547, 
35  h.  Ed.  mo.  See,  generally,  the  title 
WITNESSES. 

Any  person. — The  clause  which  forbids 
a  state  to  deny  to  any  person  the  equal 
protection    of    the    laws    was    clearly    in- 


tended to  prevent  the  hostile  discrimina- 
tion against  the  negro  race  so  familiar  in 
the  states  where  he  had  been  a  slave,  and 
for  this  purpose  the  clause  confers  ample 
power  in  congress  to  secure  his  rights 
and  his  equality  before  the  law.  Slaugh- 
ter-House  Cases,  16  Wall.  36,  38,  21  L. 
Ed.   394. 

Any  creditor.— The  phrase  in  the  6th 
section  of  the  bankrupt  act,  "any  creditor 
or  creditors  who  shall  claim  any  debt  or 
demand  under  the  bankruptcy,"  does  no* 
mean  such  creditors  who  come  in  and 
prove  their  debts,  but  all  creditors  who 
have  a  present  subsisting  claim  upon  the 
bankrupt's  estate,  whether  they  have  a 
security  or  mortgage  therefor  or  not.  Ex 
parte  Christv.  3  How.  292,  293,  11  L.  Ed. 
603. 

Any  contract. — A  state  statute  provided 
that  persons  who  perform  labor  upon,  or 
furnish  materials,  etc.,  for,  the  construc- 
tion or  repairing  of  a  building,  by  virtue 
of  any  contract  with  the  owner  of  the 
same,  or  his  agent,  have  a  right  to  the 
benefit  of  a  lien.  In  McMurray  v.  Brown^ 
91  U.  S.  257,  265,  23  L.  Ed.  321.  the  court 
said:  "Certainly  the  words  any  contract 
are  sufficiently  comprehensive  to  include 
special  contracts  as  well  as  contracts 
which  arise  by  implication,  unless  the  ma- 
terialman is  secured  by  a  deed  of  trust 
or  mortgage,  or  in  some  other  form  of  se- 
curity repugnant  to  the  theory  that  h« 
ever  intended  to  hold  a  lien  under  the 
mechanics'   lien   law.'" 

4.  "Any  restrained  by  context  or  sub- 
ject matter. — United  States  v.  Palmer,  i 
Wheat.  610.  631.  4  L.  Ed.  471;  Holy  Trin- 
ity Church  r.  United  States,  143  U.  S. 
447.   463.  36   L.   Ed.  226. 

Any  kind  of  property. — The  North  Car- 
olina act  of  March  28,  1870,  providing  for 
laborers  and  mechanics'  lien  on  any  build- 
ing, lot,  farm  or  "any  kind  of  property  not 
herein  enumerated."  is  too  limited  in  its 
scope  to  justify  the  conclusion  that  the 
legislature  had  any  intention,  by  that  act, 
to  give  a  lien  upon  railroad  property. 
Buncombe  County  Comr's  v.  Tommey, 
115    U.   S.   122.   29   L.   Ed.   305. 

"Any  court"  as  used  in  §  4284  of  the 
Revised  Statutes,  providing  for  proceed- 
ings to  limit  the  liability  of  ship  owners, 
"in  any  court"  means  "any  court  of  com- 
petent jurisdiction."  which  is  any  court 
having  jurisdiction  of  the  cause  of  action 
for  which  the  limitation  of  liability  is 
sought.  Ex  parte  Phenix  Ins.  Co..  118  U. 
S.  610,  624.  30  L.  Ed.  274.  citing  Ex  parte 
Slayton.  105  U.  S.  451,  26  L.  Ed.  1066. 
See,  generally,  the  titles  A.DMIR.\LTY, 
ante,    p.    119;    SHIPS    AND    SHIPPING. 

The  act  of  March  2,  1807.  ch.  77,  pro- 
hibiting the  importation  of  slaves  into 
any  port   or   place   withm   the  jurisdiction 


332 


APPAREL. 


ANY  ONE  YEAR.— See  note  1. 
APACHES. — See  the  title  Indians. 

APEX. — The  apex  of  a  vein  is  not  necessarily  a  point,  but  often  a  line  of  great 
length.  2 

APOTHECARIES.— See  the  title  Druggists. 
APPAREL. — See  Wearing  Apparel. 


of  the  United  States,  provided  that  the 
captain,  etc..  of  any  ship  or  vessel,  of  the 
burden  of  forty  tons  or  more  and  sailing 
coastwise,  etc.,  having  on  board  any  ne- 
groes, etc.,  shall,  previous  to  the  departure 
of  such  ship  or  vessel,  make  out  and  de- 
liver duplicate  manifests,  etc..  and  if  any 
ship  or  vessel,  being  laden  and  destined 
as  aforesaid,  shall  depart  from  the  port 
where  she  may  then  be,  without  the  cap- 
tain, master,  or  commander  having  first 
made  out  and  subscribed  duplicate  mani- 
fests of  a  negro,  mulatto  and  person  of 
color  on  board  such  ship  or  vessel,  as 
aforesaid,  and  without  having  previously 
delivered  the  same  to  the  said  collector 
or  s\irveyor,  and  obtained  a  permit,  in 
manner  as  herein  required,  every  such 
ship  or  vessel,  etc.,  shall  be  forfeited  to 
the  use  of  the  United  States.     It  was  held, 


that  the  words  "any  ship  or  vessel"  meant 
those  ships  or  vessels  only  which  had 
been  directed  to  make  out  such  mani- 
fests, "in  manner  as  herein  prescribed," 
and  only  applied  to  vessels  of  forty  tons 
or  over,  as  only  such  vessels  could  obtain 
the  permit  directed.  The  Mary  Ann,  8 
Wheat.  380,   .388,   .5   L.   Ed.   641. 

1.  Any  one  year. — The  words  any  one 
year  in  a  statute  providing  that  a  receivo" 
should  not  receive  more  than  a  named 
sum  as  salary  and  commissions,  m  any 
one  year,  means  any  year  calculated  from 
the  date  of  the  appointment  of  the  re- 
ceiver, and  does  not  inean  any  fiscal  year. 
United  States  v.  Dickson.  15  Pet.  141,  19 
L.  Ed.  689.     See  YEAR. 

2.  Apex. — Larkin  v.  Upton,  144  U.  S.  23, 
36  L.  Ed.  330.  See,  generally,  the  title 
MINES  AND  MINERALS. 


APPEAL  AND   ERROR. 

BY   FRANK    MOORE. 

I.   Right  to  Appellate  Review,  333. 

n.    The  Various  Remedies  Considered,  333. 

III.  Appellate  Jurisdiction,  334. 

IV.  Decisions  Reviewable,  349. 

V.  Certificate  of  Division  of  Opinion,  355. 

VI.  Parties  and  Persons  Entitled  to  Appeal,  356. 

VII.  Waiver  of  Right,  357. 

VIII.  Exceptions  and  Objections,  358. 

IX.  Transfer  of  Cause,  359. 

X.  Assignment  of  Errors,  365. 

XI.  Briefs,  366. 

XII.  Effect  of  Appeal,  366. 

XIII.  Appearance,  367. 

XIV.  Dismissal  and  Reinstatement,  367. 
XV.  Presumptions  on  Appeal,  369. 

XVI.   Reversible  Error,  369. 
XVII.   Hearing  and  Determination,  370. 
XVIII.    Costs,  374. 


I.   Right  to  Appellate  Review,  375. 

II.    The  Various  Remedies  Considered,  376. 

A.  In  General,  376. 

B.  Appeal  and  Writ  of  Error,  377. 

1.  Appeal.  377. 

a.  Origin  and  Nature,  377. 

b.  Definitions  and   Distinctions.  377. 

C.  Proceedings   Reviewable  by  Appeal,  378. 

(1)  Proceedings  in  Equity,  378. 
aa.  In  General,  378. 

bb.  Particular  Instances  Considered,  379. 

(2)  Cases  of  Admiralty  and  Maritime  Jurisdiction.  300- 

(3)  Decisions  of  Court  of  Claims,  381. 

(4)  Habeas  Corpus   Proceedings,  381. 
d.  What  Law  Governs  Appeals,  381. 

2.  Writ  of  Error,  382. 

a.  Definition,  Nature  and  Distinctions,  382. 

(1)  Definition.  382. 

(2)  Nature,  382. 

(3)  Distinguished  from   Motion  for  New  Trial.  383. 

b.  Proceeedings  Reviewable  by  Writ  of  Error,  383. 

(1)  Common-Law   Proceedings,  383. 
aa.  In  General.  383. 

bb.  Illustrative  Cases.  384. 

cc.  Actions  Tried  by  Court,  385. 

(2)  Proceedings  in  Equity.  386. 

c.  Review  of   Proceedings  under   Circuit   Court  of  Appeals 

Act,  386. 

(333) 


334  APPEAL  AND  ERROR. 

3.  Review  of  Proceedings  in  District  of  Columbia,  387. 

4.  Review  of  Order  Remanding  Cause  to  State  Court,  387. 

5.  Review  of  Proceedings  in  State  Courts,  388. 

6.  Review  of  Proceedings  in  Territorial  Courts,  338, 

a.  In  General,  388. 

b.  Cases  at  Law  and  in  Equity,  388. 

c.  Form  of  Proceeding  as  Dependent    on    V\'hether    or  Not 

There  Has  Been  a  Trial  by  Jury,  389. 

7.  Agreement  of  Parties  or  Counsel,  390. 

8.  Rules  of  Practice  in  State  Courts,  390. 

a.  In  General,  390. 

b.  Review  of  Causes  from  Louisiana,  39L 

,  9.  Distinction  befween  Appeals  and  Writs  of  Error  as  Regards 

the  Scope  of  the  Remedies,  391. 
10.  Election  of  Remedies,  394. 

C.  Writ  of  Prohibition,  394. 

D.  Mandamus,  395. 

1.  In  General,  395. 

2.  Adequacy  of  Other  Remedies,  398. 

E.  Habeas  Corpus,  399. 

L  In  General,  399. 

2.  Limitations  of  General  Rule,  40L 

3.  Adequacy  of  Other  Remedies,  402. 

F.  Certiorari.  403. 

L  In  General.  403. 

2.  Adequacy  of  Other  Remedies,  403. 

3.  Proceedings  of  Alilitary  Tribunals,  404. 

4.  Under  Circuit  Court  of  Appeals  Act,  404. 

G.  Bill  in  Equity,  404. 
H.  Motions,  405. 

I.  Cross  Appeals,  405. 
J.  Successive  or  Double  Appeals,  405. 
K.  Joinder  of  Separate  Suits  in  One  Appeal,  406. 

in.   Appellate  Jurisdiction.  406. 

A.  Acquisition  and  Extent,  406. 

1.  Definition  and  General  Consideration,  406. 

2.  Burden  of  Showing  Jurisdiction,  407. 

3.  Source  of  Appellate  Power,  407. 

4.  Jurisdiction  of  Inferior  Court,  40^. 

5.  Consent  as  Conferring  Jurisdiction,  409. 

6.  Construction  of  Statute  Conferring  Right  of  Appeal,  411. 

a.  In  General,  411. 

b.  Affirmative  and  Negative  Description,  411. 

c.  Repealing  Acts,  412. 

7.  What  Law  Governs,  413. 

8.  Where  Jurisdiction  Is  Assumed  Sub  Silentio,  414. 

9.  Determination  of  This   Court's  Jurisdiction,  414.     . 

B.  Loss  or  Divestiture  of  Jurisdiction,  414. 

C.  Jurisdiction  in  Particular  Proceedings,  415. 

1.  In  Criminal  Cases,  415. 

a.  In  General.  415. 

b.  Treason,  417. 

c.  Contempt  Proceeding's,  417. 

(1)  In  General.  417. 

(2)  Error  to  State  Court,  419. 

(3)  Effect  of  Circuit  Court  of  Appeals  Act,  419. 

d.  Exceptions  to  General  Rule,  419. 


APPEAL  AND  ERROR.  335 

(1)  Appeals  from  State  Courts,  419. 

(2)  Appeals  by  the  Stale,  419. 

(3)  Proceedings  on  Writ  of  Prohibition,  419. 

(4)  Habeas    Corpus    Proceedings,   420. 

(5)  Certificate  of   Division  of  Opinion,  420. 

(6)  Territorial  Courts  of  Florida,  420. 
e.  Statutory  Provisions,  421. 

2.  In  Prize  Causes,  422. 

3.  In  Habeas  Corpus  Proceedings,  422. 

a.  Power  of  This  Court  to  Issue  the  Writ,  422. 

b.  Review  of  Judgments  of  the  Circuit  Courts,  424. 

c.  Review  of  Judgments  of  District  Courts,  427. 

4.  In  Mandamus  Proceedings,  427. 

5.  Proceedings  to  Condemn  Property  of  Insurrectionists,  428. 

6.  Injunctions  against  Judgments  of  State  Courts,  429. 

7.  Review  of  Judgments  on  a  Caveat,  429. 

D.  Appellate  Jurisdiction  over  Particular  Courts  and  Tribunals,  429. 

1.  Over  District  Courts,  429. 

a.  Under  Early  Statutes,  429. 

b.  Under  Circuit  Court  of  Appeals  Act,  430. 

(1)  In   Cases   in   Which   the  Jurisdiction   of   the  Coitrt 

Is  in  Issue,  430. 

(2)  In  Prize  Causes,  431. 

(3)  In  Cases  of  Conviction  of  Infamous  Crimes,  431. 

(4)  In  Cases  Involving  the  Construction  or  Application 

of  the  Federal  Constitution,  431. 

(5)  In  Cases    Involving    the    Constitutionality    of    Any 

Law  of  the  United  States,  or  the  \'aiidity  or  Con- 
struction of  Treaties,  451. 

(6)  In   Cases   Involving  the   Constitutionality  of   vState 

Laws  and  Constitutions,  431. 

(7)  Appeals  by  L^nited  States  from  District  Court  for 

Florida,  431. 

c.  Review  of    Judgments  of    the    District    Court    for    Porto 

Rico,  432. 

d.  Judgments  and  Decrees  of  District  Courts  in  Cases  Trans- 

ferred from  Territorial  Courts,  432. 

e.  Judgments  and  Decrees  of  District  Court  of  Alaska,  432. 

2.  Over  Circuit  Courts,  433. 

a.  Lender  Early  Statutes,  433. 

(1)  In  General,  433. 

(2)  Cases  Removed  from  District  to  Circuit  Courts,  433. 

b.  By  Direct  Appeal,  433. 

(1)   Lender  Circuit  Court  of  Appeals  Act,  433. 
aa.  In  General,  433. 
bb.  In  ^^'hat  Cases  Allowable,  434. 

aaa.  In  Cases  in  Which  the  Jurisdiction  of  the 
Court  Is  in  Issue,  434. 
aaaa.  In    General,    434. 
bbbb.  Jurisdiction    of  Court  As    a  Federal 

"Court  Must  Be  Involved,  434. 
cccc.  Jurisdiction   over   Separate  and    D-s- 

tinct  Cases,  437. 
dddd.  Jurisdiction  Challenged  Must  Be  Tliat 

of  Court  Rendering  Decree.  438. 
eeee.  What  Are  Questions  of  Jurisdiction. 
438. 


336  APPEAL  AND  ERROR. 


aaaaa.  In  General.  438. 
bbbbb.  Specific   Applications   of   Gen- 
eral Rule,  439. 
ffff.  Necessity  for    Finality  of  Judgment. 

442. 
gggg-  What  Judge   IMav   Certify,  443. 
hhhh.  The    Certificate.  '443. 
aaaaa.  In  General.  443. 
bbbbb.  Necessity   for,  443. 
ccccc.  Time   of    Granting     Certificate. 

444. 
ddddd.  Form  and  Requisites,  445. 
iiii.   Simultaneous    Appeal   and  Certifica- 
tion, or  the  Rule  in  Jahn's  Case,  448. 
jjjj.  Double   Appeals,   -!30. 
kkkk.  Hearing  and  Determination,  430. 
1111.  Scope  of  Review,  452. 
mmmm.  Waiver,  453. 
bbb.  In  Prize  Causes.  454. 
ccc.  In  Cases  of  Conviction  of  Capital  or  In- 
famous Crimes.  454. 
aaaa.  By  Act  of  March  3rd,  1891,  454. 
aaaaa.  In  General,  454. 
bbbbb.  Infamous  Crimes  Defined,  455. 
ccccc.  Remedies      for     Transfer      of 

Cause,  556. 
ddddd.  Scope  of  Review,  456. 
eeeee.  Reversal.  456. 
bbbb.  By  Act  of  January  20.  1898. 
ddd.  In  Cases  Involvins:  the  Construction  or  Ap- 
plication of  the  Federal  Constitution.  457. 
aaaa.  In  General.  457. 
bbbb.  Determination  of  Question,  459. 
cccc.  Proceedings    Reviewable,    463. 
dddd.  Time      of     Raising      Constitutional 

Question,  463. 
eeee.  Double  Appeals,  464. 
eee.  In   Cases    Involving  the    Canstitutionality 
of  Any  Law  of  the  United  States  or  the 
\"alidity  or  Construction  of  Treaties,  464. 
aaaa.  In  General.  464. 
bbbb.  Determination  of  Question,  465. 
cccc.  Scope  of  Review.  468. 
fff.  In  Cases    Involving    the    Con'^fitutionality 
of  State  Laws  and  Constitutions,  469. 
aaaa.  In   General,  469. 
bbbb.  What  Is  a  "Law  of  a  State,"  470. 
cccc.  Who  May  Raise  the  Question?  470. 
dddd.  Showing  As  to  Jurisdiction,  471. 
eeee.  Hearing  and    Determination,   473. 
cc.  ^^'hen  Jurisdiction  is  Exclusive  and  When  Con- 
current, 474. 
dd.  Transfer  of  Cause,  475. 
ee.  Cross  Appeals.  475. 
ff.  Limitations.  475. 
gg.  Showing  As  to  Jurisdiction.  475. 
hh.  Scope  of  Review,  476. 


APPEAL  AND  ERROR.  337 

ii.  Necessity  for  Firality  of  Decision.  477. 
(2)   Proceedings  by  the  Interstate  Commerce  Commis- 
sion, 478. 

3.  Over  Circuit  Court  of  Appeals,  478. 

a.  In  General,  478. 

b.  By  Appeal  or  Writ  of  Error,  478. 

(1)  In  General.  478. 

(2)  Jurisdiction  as    Dependent    on  Amount  in  Contro- 

versy, 479. 

(3)  Jurisdiction  as   Dependent    on    Finality    of    Deci- 

sion. 480. 

(4)  Decisions  Reviewable,  481. 
aa.  In  General.  481. 

bb.  Cases  in  Which  United  States  Is  a  Party,  482. 
cc.  Bankruptcy  Decisions,  482. 
dd.  Cases   Arising  under   the   Revenue  Laws,  482. 
ee.  Cases    Dependent    upon    Citizenship    of    Par- 
ties, 482. 
ff.  Copyright  Cases,  488. 

(5)  Hearing  and   Determination,  488. 

(6)  Supersedeas.  488. 

(7)  Reversal  or  Affirmance,  489. 

(8)  Mandate.  489. 

c.  Bv  Mandamus,  489. 

d.  Bv  Certiorari.  489. 

d)   In   General,  4S9. 

(2)  Allowance  of  Writ,  491. 

(3)  In  What  Cases  the  Writ  May  Issue,  491. 
aa.  In    General.   491. 

bb.  Particular   Cases    as    Involving    Questions    of 
Sufficient   Importance   Considered,   492. 

cc.  Habeas   Corpus    Proceedings,   494. 

dd.  Admiralty   Cases.  494. 

ee.  Bankruptcy    Proceedings,    494. 

ff.  Where  There  Is  No  Judgment  in  Court  of  Ap- 
peals, 494. 
f4)   Limitations  unon   Time  of   AnDlicati^n,   494. 

(5)  Review  of  Interlocutory  Orders,  495. 

(6)  Review   of  Questions  of  Fact,  497. 

(7)  Assignment   of    Errors,   497. 

(8)  The  Record,  497. 

(9)  Scope  of  Review,  497. 

nO)   Rendering  and  Ordering  Final  Judgment,  497. 

e.  Simultaneous  Appeal   and   Certiorari.  497. 

f.  Construction  of  Words   "Or   Otherwise."  498. 

4.  Over  Courts  of  the  District  of  Columbia.  498. 

a.  Right  to  Appellate   Review.  498. 

b.  \\'hat   Law   Governs.   499. 

(1)  In  General.  499. 

(2)  Effect  of  State  Laws,  499. 

(3)  Review  of  Decisions  of  Court  of  Appeals,  500. 

c.  Proceedings  Reviewable,  500. 

(1)  Probate  Proceedings,  500. 

(2)  Criminal    Proceedings,    5C0. 

(3)  Habeas  Corpus   Proceedings,  502. 

(4)  Patent   Proceedings,   503. 
1  U  S  Enc-:2 


338  APPEAL  AND  ERROR. 

d.  Decisions   Reviewable,    503. 

(1)  Cases  Involving  the  \'aliditv  of  Federal    Statutes. 

503. 

(2)  Necessity  for  Finality  of  Judgments  and  Decrees, 

503. 

(3)  Summary  and   Special   Proceedings,   504. 

(4)  Discretionary    Matters    Not    Involving    the    Merits, 

504. 

e.  Effect  of  Appeal  or  Scope  of  Review,  505. 

f.  Judgment  on  Reversal.  505. 
5.  Over  Court  of  Claims,  505. 

a.  In  General.  505. 

b.  Right  of   Appeal,   506. 

c.  What  Law  Governs.   508. 

d.  Special  Acts  Conferring  Jurisdiction,  508. 

e.  Appeal  as  a  Matter  of  Right,  509. 

f.  Decisions   Reviewable,   510. 

(1)  Jurisdiction  as  Dependent  upon  Question  ^Vhether 

Decision  Will  Affect  a  Class  of  Cases,  510. 

(2)  Jurisdiction  as  Dependent    upon    Amount  in  Con- 

troversy.   510. 

(3)  Jurisdiction  as  Dependent  upon  Nature  and  Form 

of  Judgment,   511. 
aa.  In  General,  511. 

bb.  Decision  Must  Be  Judicial  in  Its  Nature,  511. 
cc.  Judgments   Pro   Forma,    512. 
dd.  Judgments  for  Money,  512. 

(4)  Judgment  Rejecting  Setoffs  and  Counterclaims.  512. 

g.  Finding  of  Facts,  512. 

(1)  In  General,  512. 

(2)  In  Cases  of  Equity  Jurisdiction,  513. 

(3)  Form,  Sufficiency  and  Contents,  513. 

(4)  Right  to   Bring  Up   Evidence   on  Which   Findings 

Are  Based,  514. 
aa.  In  General.  514. 

bb.  Where  Rights  of  Parties  Depend  upon  Circum- 
stantial  Facts,   514. 

(5)  Requests  for  Findings,  515. 

(6)  Time  of  Filing  Findings,   515. 

(7)  Remedy  in  Case  of  Mistakes  as  to  Findings,  515. 

(8)  Conclusiveness   of   Findings,   516. 

(9)  Construction  of  Findings,  516. 

h.  Review  of  Findings  on  Questions  of  Fact,  515. 

(1)  In  General, '516. 

(2)  Limitations  of  General  Rule,  517. 
i.  Assignment  of  Errors,  518. 

j.  Transfer  of  Cause,  518. 

.     (1)   Allowance  of  Appeal,  518. 

(2)  Remedies,  518. 

(3)  Limitations.   519. 

(4)  The  Record,  519. 
k.  Certiorari,  520. 

1.  Grant  of   New  Trial   Pending  Appeal,   521. 
m.  Conclusiveness  of  Judgment.   521. 
n.  Continuance,  Dismissal  and  Reinstatement,  522. 
o.  Mandamus,  5^2. 
p.  Mandate.   522. 


APPEAL  AND  ERROR.  339 

6.  Over  Territorial  Courts,  522. 

a.  In  General,  522. 

b.  Under  Circuit  Court  of  Appeals  Act,  523. 

c.  Over  the  Indian  Territory,  525. 

d.  Over  Territory  of  Hawaii,  527. 

e.  Effect  of  Admission  of  Territory  as  State,  528. 

(1)  In  Absence  of  Statute,  528. 

(2)  Statutory  Provisions,  528. 

f.  Over  Particular  Proceedings,  529. 

(1)  In  Criminal  Cases,  529. 

(2)  In   Habeas  Corpus  Proceedings,  530. 

(3)  Findings  of   Court,   531. 

(4)  Miscellaneous  Proceedings,  533. 

g.  Transfer  of  Cause,  533. 

(1)  In  General,  533. 

(2)  What    Law  Governs.  SZZ. 

(3)  Allowance  of  Appeal,  S32>. 

(4)  Kennedies  for  Reviewing,   SZZ. 

(5)  Time  for  Taking  Appeal,  533. 

(6)  Writ  of  Error,  Citation  and  Bond,  534. 
h.  Assignment  of  Errors,  534. 

i.  Scope  and  Extent  of  Review,   534. 

(1)  In  General,  534. 

(2)  Necessity   for    Finality   of   Decision,   535. 

(3)  Review  of  Questions  of  Fact,  535. 
aa.  In  General.  535. 

bb.  Review    of    Findings    of    Fact    by    Territorial 
Court,   536. 

(4)  Review  of  Discretionary  Matters,  541. 

(5)  Questions  of  Practice,  541. 
j.  The  Statement  of  the  Facts,  541. 

k.  Exceptions  and  Objections,  544. 
1.  Mandate,  545. 

7.  Over  State  Courts,  546. 

a.  In  General,  546. 

b.  Construction  of  Statute,  548. 

(1)  In  General,  548. 

(2)  Words  "Statute  of  a  State"  Defined,  548. 

(3)  Meaning  of  Term  "Suit"  in  Statute,  548. 

(4)  The     Words     "Authority     Exercised     under     An;j 

State"  Defined,  550. 
.  (5)   Validity  of  Statute  or  "Authority  Exercised  under 
the  United  States,"  550. 

c.  Constitutionality  of  Statute,  554. 

d.  Efifect  of  Ordinance  of  Secession,  554. 

e.  Consent  as  Conferring  Jurisdiction,  555. 

f.  Laws  Drawn  in  Question  Must  Be  Those  of  "State,"  555. 

(1)  In  General,   555. 

(2)  Decisions  of  Political  Bodies,  555. 

(3)  Decisions  of  Territorial  Courts,  555. 

g.  Decision  Must  Be  That  of  "Highest  Court"  in  State,  556. 
h.  What  Is  the  Assertion  of  "A  Right  or  Immunity,"  558. 
i.  Decisions   Reviewable,   559. 

(1)  In  General,  5.^9. 

(2)  Necessity  for  Finality  of  Judgment  or  Decree,  559. 

(3)  Orders  at  Chambers.  560. 


340  APPEAL  AND  ERROR. 


j.  Plaintiff   in   Error   Must   Have   Personal   Interest   in   ilic 

Litigation,  560. 
k.  Necessity  for  Adverse  Decision,  564. 

(1)  Under  First  Clause  of  the   Statute,  564. 

(2)  Under  Second  Clause  of  the  Statute,  567. 

(3)  Under  Third  Clause  of  the  Statute,  568. 
1.  Parties,  569. 

(1)  In  General,  569. 

(2)  Effect  of  Eleventh    Amendment   to   the    Constito 

tion,   570. 
m.  Who  May  Make  the  Objection.  570. 
n.  Where    Both    Parties    Claim    under    Same    Act  of    Con- 
gress, 570. 
o.   Power  of  State  Courts  to  Decide  Federal  Questions,  570, 
p.   Showing  as  to  Jurisdiction,  571. 

(1)  In  General,  571. 

(2)  That  Federal  Question  Was  Actually  or  Necessa-^ 

rily  Raised  and  Decided,  571. 
aa.  In  General,   574. 
bb.  Where  Federal  Question  Only  CollateraHy  In» 

volved,  580. 
cc.  Dismissal   for   Want  of  Jurisdiction,   580. 
dd.  Dismissal  bv  State  Court  for  Want  of  Proper 

Appeal,  580. 
ee.  Reasons  of  Rule,  581. 

ff.  Limitations     of     and    Exceptions    to     General 
Rule,   581. 

(3)  Where      Decision      Is      Based      on      Independent 

Grounds,  585. 

(4)  Question    Must    Be    Real    and    Not    Fictitinus    or 

Frivolous,   593. 

(5)  Necessitv  of  Showing  Error  in  Judgment  of  State 

Court,'  597. 

(6)  Effect  of  Failure  to  Comply  with  State  Practice,  597. 

(7)  Where  Decree  Is  Silent  as  to  Grounds  of  Decision^ 

597. 

(8)  Error  to  Supreme  Court  of  Louisiana,  597. 

(9)  Judicial   Notice,   597. 

(10)   Time  and  Manner  of  Showing  Existence  of  Fed* 
eral  Question,  599. 
aa.  In  General,  599. 

bb.  Must  Be  "Speciallv  Set  Up  or  Claimcl."  60L 
aaa.  In  General,  601. 

bbb.  Qualifications  of  General   Rule.  r>0"). 
cc.  Assignmert  of  Reasons  for  Rehearing  rr  New 

Trial,  613. 
dd.  In  Briefs  of  Counsel  and  Oral  Areumeir.  ^13. 
ee.  Certificate  of  Presiding  Judge  of    State    Courts 
614. 
aaa.  Ofifice  of  Certificate,  614. 
bbb.  Necessity  of  Certificate,  615. 
ccc.  Form   and   Sufficiency  of   Certificate.  615. 
ddd.  Weight  and   Sufficiency,  615. 
ff.  Time  of  Claiming  Federal  Question,  618. 
aaa.  In  General.  618. 
bbb.  Prior  to  Judgment  in  State  Court,  620. 


APPEAL  AXD  ERROR.  341 

ccc.  Where    Question    Was   Not    Existent    at 

Time  of  Judgment,  621. 
cl  Id.  Motion  to  Set  zA.side  Judgment  and  Trans- 
fer Cause,  621. 
eee.  In  Assignment  of  Errors  in  Highest  State 

Court,  621. 
fff.  Motion  for  New  Trial,  621. 
ggg.  After  Remand  by   State  Court,  621. 
hhh.  On  Second  Hearing  in  State  Court,  623. 
iii.  On  Second  Appeal,  623. 
jjj.   In    Petition  for    Writ  of  Error    to    State 
Court,  623. 
k':k.  In  Petition  for    Writ  of    Error    to    This 
Court,  623. 
111.  In  Briefs  of  Counsel,  624. 
mnim.  In  Petition  for  Rehearing,  624. 
aaaa.  In  General,  624. 
bbbb.  Qualifications  of  General  Rule,  627. 
nnn.  Upon   Motion   to  Quash  Execution,   628. 
ooo.  Raising  Federal  Question  for  First  Time 

in   This   Court,  628. 
ppp.  Binding  Effect  of   State   Practice,  629. 

(11)  Determination    of   Jurisdiction,   632. 

(12)  Federal     Questions    Raised    Must    Be    Identical    in 

Both  Courts.  632. 
Derisions   Reviewable.   f33. 

(1)  In  General.  633. 

(2)  Criminal    Cases,    634. 
aa.  In    General,   634. 

bb.  Habeas  Corpus  to  State  Courts,  636. 

(3)  Defenses  Arising  under  Act  of  Congress,  640. 

(4)  Denial  of  Rights  under  National  Bank  Act,  640. 
aa.  In   General. 

bb.  Showing  as   to   Jurisdiction.  641. 

(5)  Denial  of  Rights  under  Bankrupt  Act,  643. 

(6)  Denial   of   Right  to    Remove    Causes    to    Federal 

Courts,  647. 
aa.  In  General.  647. 
bb.  Eflfect  of  Act  of  March  3rd,   1887,  649- 

(7)  Denial    of    Full    Faith    and    Credit    to   Judgments. 

Records     and     Judicial     Proceedings     of     Sister 
States.  650. 

(8 )  Denial   of   Faith    and    Credit    to    Judgments    and 

Decrees  of  Federal  Courts.  654. 
aa.  In   General.  654. 

bb.  Rights  of  Purchasers  at  Marshals'   Sales.  658. 
cc.  Liability  on  Injunction  Bond    Executed    under 

Order  of  Federal  Courts.  660. 
dd.  Construction   of   Judgments   and   Decrees.   661. 
ee.   Showing  as  to  Jurisdiction.  661. 

(9)  Denial   of    Rights    under    Clause   Guaranteeing    a 

Republican   Form  of   Government.   663- 

(10)  Denial  of  Reliq-ious  Liberty.  663. 

(11)  Abridging  the  Freedom  of  Speech  or  of  the  Press. 

663. 

(12)  Denial  of  Rights  to  Ambassadors  and   Consuls,  663. 


342  APPEAL  AND  ERROR. 


(13)  Denial  of  Rights  Claimed  under  the  Duty  or  Bounty 

Acts,  664. 

(14)  Denial  of  Equal  Privileges  to  Citizens  of  the  Sev- 

eral States,  664. 

(15)  Denial    of    Right    Claimed    under    the     President's 

Proclamation,  664. 

(16)  Denial  of  Right  under  Naturalization  Laws,  664. 

(17)  Denial  of  Due  Process  of  Law  or  Equal  Protectioii 

of  the  Laws,  664. 
aa.  In  General,  664. 
bb.  Condemnation  Proceedings,  668. 
cc.  Regulation   of   Railroad   Rates,   668. 
dd.  Election  of   State   Officers,   669. 
ee.  Persons  Not  Parties  to  a  Proceeding.  670. 
ff.  Denial  of  Right  to  Offer  Defenses,  670. 
gg.  Jury  and  Jury  Trial,  670- 
hh.  Denial  of  Rights  to  Foreign  Corporations,  672, 

ii.  Erroneous  Decisions  of  State  Courts,  672. 

jj.   Showing  as  to  Jurisdiction.  672. 

(18)  Denial  of  Rights  Claimed  under  Treaties,  674. 

(19)  Denial  of  Rights  under    the    Commerce  Clause  of 

the  Constitution,  677. 

(20)  Denial  of  Rights  under  the  Fifteenth  Amendmentj 

679. 

(21)  Jurisdiction  over  Navigable  Waters,   679. 

(22)  Acts  of  Congrcrs  Regulating  Common  Carriers.  680. 

(23)  Decisions    Relating    to    Boundaries  between   Lan4 

Granted  by  United  States,  680. 

(24)  Claim  of  Title  to  Land  under  United  States,  681, 
aa.  In  General,  681. 

bb.  Construction  of  Patents,  685. 
cc.  Titles  Claimed  under  Patents  Based  upon  Span^ 
ish  or  Mexican  Grants.  686. 

(25)  Claim  of  Right  under  Automatic  Coupler  Act,  688, 

(26)  Denial  of  Title  of  United  States  to  Land,  688. 

(27)  Denial  of  Rights  under  Swamp  Land  Act.  688- 

(28)  Illegal  or  Unenforceable  Contracts,  688. 

(29)  Validity  of  Confederate  Transactions,  689. 

(30)  Decisions  of  State    Court  under    Ordinance  of  Se^ 

cession,  690- 

(31)  Denial  of  Rights  under  the  Fifth  Amendment,  690, 

(32)  Denial  of  Right  to  Trial  by  Jury  under  the  Seventh 

Amendment,  690. 

(33)  Questions  Arising  under  the  Stamp  Acts,  690. 

(34)  Questions  Arising  under  the  Quarantine  Laws,  6'^L 

(35)  Power  of  the  States  to  Emit  Bills  of  Credit,  695. 

(36)  Power  of  States  to  Coin  Money,  692. 

(37)  Compacts  between  States,  692. 

(38)  Sovereignty  of  the  States,  692. 

(39)  Questions  Arising  under  Federal   Mining  Statutes, 

693. 

(40)  Questions  Relating  to  Public  Officers  and  Member.s, 

of  the  Cabinet,  696. 

(41)  Validity  of  State  Election  Laws,  697. 

(42)  Questions   Relating  to   Federal    Securities,   697. 

(43)  Claim  of  Right  under  Legal  Tender  Act,  697. 

(44)  Claim  of  Right  under  Internal  Revenue  Act,  693.. 


API  EAL  AXD  ERROR.  343 

(45)  State   Legislation    Regulating    Sale   of    Intoxicating 

Liquors,  698. 

(46)  Questions  Arising  under  the  Public  Land  Acts,  698. 

(47)  Constitutional     Provisions    Defining     the      Judicial 

Power,  699. 

(48)  Claim  of  Title    or  Right  under  the  Patent    Laws, 

699. 

(49)  Questions  Relating  to  the  Indian  Tribes,  701. 

(50)  Federal   Statutes  Relating  to   Rivers  and  Harbors, 

701. 

(51)  Ordinance     for     Government   of     Northwest     Ter- 

ritory. 702. 

{52)  Federal  Statutes  Relating  to  Administration  of  Es- 
tates, 702. 

{S2))  Domestic  and  Social  Status  of  Persons,  Such  as 
Slaves.  702. 

(54)  Slave  Contracts  and  Transactions,   703. 

(55)  Impairment  of  Obligation  of  Contract,  703. 
aa.  In  General.  703. 

bb.  Prior  or  Subsequent   Legislation.  704. 

cc.  Distinction  between   \'iolation  and   Impairment, 

707. 
dd.  Whether  a  Subsequent  Statute  Has  Repealed  a 

Contract.   708- 
ee.  By-Laws,   and    Ordinances.    708. 
ff.   Impairment  by    P.idicial   Department,  708. 
gg.  Acts  of  State"  Officers.  712. 

hh.   Misconstruction    of    State    Statutes    by     State 
Court,  712. 
ii.  Where  Court  Applies  General  Law,  713. 
jj.  Exemptions  from  Taxation,  713. 
kk.  Determination    as    to    Validity,    Interpretation 
and  Existence  of  Contract,  715. 
11.  Showing  as  to  Jurisdiction,  720. 

(56)  Questions  Arising  under  the   Shipping   Laws,  724. 
{57)   Review  of  Mandamus   Proceedings,  724. 

(58)  Denial  of    Immunities  to    Receivers  Appointed    by 

Federal  Courts,  72S. 

(59)  Assignment  of  Claims  against  Government,  726. 

(60)  Cruel  and  L^nusual  Punishment,  726. 

(61)  Questions  of  General  Law,  726. 
aa.  In  General,  726. 

bb-  Various   Specific    Applications  of    the    General 

Rules.  727. 
cc.  Administration  of  the  Common  Law,  732. 
dd.  General   Principles  of  Equity.  7c>2). 
ee.  Principles  of   Comity.  7?>2). 
ff.  Res  Adjudicata.  Laches  and  Estoppel.  7oZ. 
gg.  Qualifications  of  General  Rules.  72)5. 

(62)  Where  Decision  of  State  Court  Depends  upon  the 

Construction    of     State     Statutes    and    Constitu- 
tions. 736. 
aa-  In  General.  736. 
bb.  Various    Specific    Applications  of    the    General 

Rules.  740. 
cc.  Enactment  of  Sta^e  Statutes.  746. 
dd.  Construction   of  Ohjxtion   Tha!^   State   Statute 
Is  "L^nconstitutional  and  Void,"  746. 


344  APPEAL  AND  ERROR. 


ee.  Qualifications  of  General  Rules,  748. 

(63)  Where    Decision    of    State    Court    Depends     upon 

Questions  of' State  Practice  and  Procedure,  748. 

(64)  Decision  That  Right  under  Constitution  Has  Been 

Waived,  750. 

(65)  Sufficiency  of  Showing  in  State  Court,  751. 
r.  Amount  in  Controversy,  751. 

s.  Transfer  of  Cause,  751. 

(1)  In  General,  751. 

(2)  What  Law  Governs,  751. 

(3)  Remedy  for  Transferring  Cause,  752. 

(4)  Allowance  of  Writ  of  Error,  753. 
aa.  In  General,  753- 

bb.  Necessity  for  Allowance,  753. 
cc.  By  Whom  Allowed,  754. 
dd.  Proof  of  Allowance,  755. 

(5)  Form  and  Requisites  of  Writ  of  Error,  755. 
aa.  In  General,  755. 

bb.  Specifications  in  Writ,  755. 
cc  Teste  of  Writ,  755. 
dd.  Signature,  755. 

(6)  Issuance  and  Service  of  Writ  of  Error,  755. 
aa.  In  General,  755. 

bb.  From  Whence  Issued,  755. 
cc.  To  What  Court  the  Writ  Should  Be  Directed, 
755. 

(7)  Return  of  Writ,  758. 

(8)  Amendment  of  Writ,  759. 

(9)  The  Citation,  759. 
aa.  Signature,   759- 
bb.  Service,  760. 

(10)  Appeal  Bond,  760. 

(11)  Limitations.  760. 

(12)  Parties  to  Proceedings,  761. 
aa.  In  General,  761. 

bb.  Appealable  Interest.  761. 

(13)  Assignment  of  Errors,  762. 
t.  The  Record,  763. 

(1)  In  General,  763. 

(2)  Form  and   Contents  of  Record,  764- 
aa,.  In  General,  764. 

bb.  Necessity  for  Setting  out  Treaty,  Act  of  Con- 
gress or  Constitutional  Provision,  764. 
cc.  Orders  in  State  Court  Subsequent  to  Removal, 

765. 
dd.  Petition  for  Rehearing,  765. 
ee.  Petition  for  Writ  of  Error,  765. 
ff.  Arguments  of   Counsel,   766- 
gg.  Opinion  of  the   State   Court,   766. 

aaa.  Lender  the  25th   Section  of  the  Judiciary 

Act,  766. 
bbb.  Under  Later  Statutes,  766. 
ccc.  Review  of  Cases  from  Louisiana,  769. 
hh.  Assignment  of  Errors,  770. 
ii.  Instructions,  770. 

jj.  Certificate  of  Chief  Judge  of  State  Court,  770. 
kk.  Certificate  or  Statement  of  Clerk  or  Judge,  770. 


APPEAL  AND  ERROR.  345 

11-   Supplemental  Transcript,  770. 

(3)  Examination  of  Record.  771. 

(4)  Impeachment  or  Contradiction  of  Record,  771. 

(5)  Authentication  of  Record,  771. 

(6)  Certiorari.  771. 

(7)  Amendment,   771. 
u.  Scope  of  Review,  771. 

(1)  In  General,  771. 

(2)  Irregularities  and  Mere  Errors,  773. 

(3)  Discretionary  Matters.  773. 

(4)  Questions  of  Fact.  774. 
aa.  In  General.  774. 

bb-  Rulings  on  Questions  of  Evidence,  778, 

cc.  Findings  of  Fact  by  Referee.  780. 

dd.  Findings  of  Court,  780. 

ee.  Rule  in  Equity  Proceedings,  781. 

ff.  Rule  Where  Court   Directs  a  Verdict,   781. 

(5)  Denial  of  Right  by  Municipal  Ordinance.  782. 

(6)  Denial  of  Right  to  Remove  Causes,  782. 
V.  Affirmance.   Reversal  or  Dismissal.  782- 

(1)  In  General,  782. 

(2)  Affirmance,  782. 

aa.  In  General,  7S2. 

bb.  Want  of  Substantiality  in  Claim,  783. 
cc.  Moot  Cases.  783. 

dd.  Division  of  Opinion  in  State  Court,  783. 
ee.  Uniting  Motion  to  Affirm  with  Motion  to  Dis- 
miss. 784. 
ff-   Damages  Awarded  for  Frivolous  Appeal,  786. 

(3)  Reversal.  786. 

aa.  In  General.  786. 

bb.  Harmless  Error.  787. 

(4)  Dismissal.  787. 

aa.  Grounds  for  Dismissal,  787. 

aaa.  Want  of  Jurisdiction.   787. 

bbb.  When    State    Court    Proceeds    on     Xon- 
Federal  Ground,  787. 

ccc.  Frivolous  Appeals,  788- 

ddd.  Want  of  Substantialitv  in  Claim,  788. 

eee.  Moot  Cases,  789. 
bb.  Operation  and  Effect  of  Decree,  790. 
cc.  Hearing   and   Determination   of   Motion,   790. 

(5)  Hearing  and   Determina<^ion.   791. 
w.  Effect  of  Transfer  of  Cause,  791- 

(1)  In    General.    791. 

(2)  Supersedeas.  791. 

(3)  Execution   on   Judgment  of   State   Court,   792. 

(4)  Effect   on   Injunct^ion    Proceedings,   792. 
X.   T^resumptions  on  Appeal,  793. 

y.  Mandate.  793. 

(1)  Remand    for  Further   Proceedings,   7'^3. 

(2)  Rendering   and    Ordering    Judgment,   794. 

(3)  Direction   of   Mandate.   795. 

(4)  Compliance  with   M.indate.  796. 

(5)  Recalling  Mandate,  796. 

8-  Over   Military  Courts  and   Tribunals,  79o. 

9.  Over   Supreme  Court  of   Philippine  Islands,  797. 


346  APPEAL  AND  ERROR. 

a.  In  General,  797. 

b.  Amount  in  Controversy,  797- 

c.  Remedies   for  Transferring   Cause,   798. 

d.  Re-Examination  of  Facts,  798. 

e.  Appeals  by  the  Government  in  Criminal  Cases,  799. 

f.  Assignment  of  Errors,  799. 

g.  Reversal,  799. 

J[0-  Over  Court  of  Private  Land  Claims,  799 

a.  Right  of  Appeal,  799. 

b.  The   Remedy   for   Reviewing,   800. 

c.  Questions  Reviewable,  800. 

(1)  In  General,  800. 

(2)  Necessity    for    Finality   of    Decision,   801. 

(3)  Discretionary   Matters,   801. 

(4)  Questions  of  Fact,  801. 

d.  Transfer  of  Cause,  801- 

(1)  In  General,  801. 

(2)  WTiat  Law  Governs.  801. 

(3)  Allowance  of  Appeal.  802. 

(4)  Parties  to  the  Appeal,  802. 

(5)  Notice  of  Intention  to  Appeal.  802. 

(6)  Limitations  of   Appeal.   803. 

e.  Exceptions  and  Objections,  803. 

f.  Efifect  of  Appeal,  804. 

g.  Wlio  May  Allege  Error,  804. 
h.  Dismissal  of  Appeal,  804. 

11.  Over  Supreme  Court  of    Porto    Rico    and    the  United  Slates 

District   Court,  805. 

a.  In  General,  805. 

b.  Jurisdiction  as  Dependent  on  Amount  in  Controversy,  806. 

c.  Jurisdiction  as  Dependent  on  Claim  of  Federal  Right,  806. 

d.  Scope  of  Review,  808- 

12.  Review  of  Decisions  of  Interstate  Commerce  Commission,  808 
E.  I  nder  Circuit  Court  of  Appeals  Act.  810. 

1.  Causes   That   Brought   About   the   Legislation,   810. 

2.  Effect  on  Prior,  Inconsistent  Legislation,  810. 

3.  Purpose  or  Object  of  Statute,  811. 
4-  Construction  of   Statute.   811. 

a.  In    General,   811. 

b.  Retroactive   Operation    of    Statute,   811. 

5.  Time  of  Taking  Efifect.  812. 

6.  Effect  on  Pending  Cases,  812. 

7.  Remedies,  813. 

8-   Review  by  Certificate,  813. 

9.  Appellate  Jurisdiction  of  Circuit  Court  of  Appeals,  813. 

a.  In  General,  813. 

b.  Construction   of   Words   "Unless   Otherwise    Provided   bv 

Law."  814. 

c.  Admiralty  Cases,  814. 

d.  Revenue  Cases,  814. 
e-  Criminal   Cases,  815. 

(1)  In  General,   815. 

(2)  Contempt  Cases.  816. 

(3)  Writ  of   Scire   Facias  upon   Recognizance,  817. 

f.  Cases   Arising  under   Patent   Laws.   817. 

g.  Jurisdiction    Dependent    on    Citizenship.    817. 

(1)    In  General,  817. 


APPEAL  AND  ERROR.  647 

(2)  Construction  of  Term  "Aliens,"  819. 

(3)  Rule  Where  Jurisdiction  Ts  Not  Dependent   Solely 

on  Diversity  of  Citizenship,  819. 

(4)  Review  of   Ancillary,    Auxiliary    or    Supplemental 

Proceedings.   812. 
h-  nffect  of  Bankruptcy  Act,  823. 
i.  Finality  of  Judgments  and  Decrees,  823. 

(1)  In  General,  823. 

(2)  Interlocutory   Orders    Granting    or     Refusing     In- 

junctions,  824. 
j.  Limitations  upon  Appeal,  827. 
k.  Double  Appeals.  827. 
1.  Rule  in  Jahn's  Case,  830. 
m-  Mandate,   831. 
F.  Appellate   Jurisdiction   as    Dependent   upon   Amount   or   Value   in 
Controversy.   831. 

1.  History  of  Legislation,  831. 

a.  Under  the  Early  Statutes,  831. 

b.  Under  Circuit  Court  of  Appeals  Act.  832. 

2.  What  Law  Governs,  833. 

a.  In  General,  833- 

b.  Rule  Governing  Appeals,  833. 

3.  Review  of  Proceedings  in  Particular  Courts,  834. 

a.  Appeals   from  Territorial  Courts.  834. 

b.  Appeals  in  Admiralty,  835. 

c.  Appeals  from  Circuit  Courts,  835. 

d.  Appeals   from  District  of  Columbia,  835. 

e.  Original  Jurisdiction  of  Circuit  Courts.  836. 

4.  The  Phrase  "Matter  in  Dispute"  Defined,  837. 

5.  Must  Exceed  Jurisdictional   Amount.  838. 

6.  EflFect  of  Repeal  Pending  Appeal,  838. 

7.  General  Construction  of  Statute,  838- 

8.  Consent  or  Agreement  of  Parties,  839. 

9.  To  What   Parties  Applicable,  839. 

10.  Cross  Appeals,  840. 

11.  Amount   Actually  in  Dispute  Controls,  840. 

a.  In  General,  "840. 

b-  Value  of  Property.  841. 

c.  Usurious   Claims,  841. 

d.  Settlement  of   Decedents'   Estates.  842. 

e.  Collateral  Effect  of  Judgment,  842. 

f.  Where  There  Is  a  A  alid  Defense  to  the  Action,  847. 

g.  Where  Part  of  Demand  Is  Not  Due,  847. 

12.  Matter  in  Dispute   Not   Susceptible  of   Pecuniary  Estimaiion, 

848. 

a.  In  General,  848. 

b.  Appeals   from   the  District  of    Columbia    and   the  Terri- 

tories, 849. 

c.  Criminal    Prosecutions,   851. 

d.  Habeas  Corpus.  852. 

e.  Title  and   Right  to  Office,  853. 

f.  Right  to  Have  Goods  Transported  by  a  Carrier,  854. 

g.  Custody  of  Children,  854. 
h.  Guardian  and   \\'ard,   855. 

i.  Registration  of   Tratlemarks,   855. 

j.  Denial  of  Application   for  a   Patent,   855. 

k.  Divorce  and   Alimonv.  855. 


348  APPEAL  AND  ERROR. 

13.  Aggregate  Amount  of  Demand,  856- 

a.  In  General,  856. 

b.  Several  Liabilities  of  Different  Defendants,  858. 

c.  Bill  by  Single  Plaintiff  to  Enforce  Distinct  Liabilities,  862. 

d.  Decree  against  Appellant  for  Several  Distinct  Claims,  862. 

e.  Distinct  Judgments  and  Decrees  against  Distinct  Parties 

on  Distinct  Causes,  863. 

f.  Appeals  in  Admiralty,  864. 

g-  Suit  to  Recover  Possession  of  Land,  865. 

h.  Hearing  Causes  Together,  866. 

i.  Qualifications   of   General    Rule,   867. 

(1)  Persons   Having   Common    and    Undivided    Inter- 

est, 867. 

(2)  Claimants  under  a  Common  Title,  871. 

(3)  Aggregation  to  Avoid  Multiplicity  of  Suits,  872. 
>.  Practice,  872. 

14.  Set-Off  and  Counterclaim,  872. 

15.  Interest  and  Costs,  873. 

a-  In  General,  873. 

b.  Interest,  874. 

c.  Costs,  875. 

d.  Limitations   of   General   Rule,   875. 

16.  Showing  and   Determination  of  Amount.  877. 

a.  In   General.  877. 

b.  Burden  of  Proof  and  Weight  of  Evidence,  878. 

c.  Risrht  to  Introduce  Evidence  to  Prove  Amount,  879- 

d.  Affidavits,  879. 

e.  Order  of  Court,  883. 

f.  Determination  from  Pleadings,  883. 

(1)  In  General,  883. 

(2)  In  Tort  Actions,  885. 

(3)  Where  Damages  Are  Liquidated,  885. 

(4)  From  Prayer  of  Bill,  886. 

(5)  Amended   Pleadings,  886. 

(6)  Cross  Bills.  887. 

(7)  Oualifications  of  General  Rule,  8S7. 

(8)  Sufficiency  of  Pleadings.  890. 

g.  From  Exceptions  to  Master's  Report,  890. 

h.  Jurisdiction    Dependent    upon    Sum  in    Dispute    as    Case 

Stands  in  This  Court,  890. 
i.  Distinction  between  Appeals  bv  Plaintiff  and  by  Defend- 
ant, 891. 
j.  Amount  or  Kind  of  Money,  893 
k.  Value  of  Property  or  Riglit,  893. 
(\)   In  General",  893. 

(2)  Removal  of  Trustees,  895. 

(3)  Nuisances.  895. 

(4)  In  Suits   for  Partition.  896. 

(5)  In     Suits     to     Restrain     Levy    and     Collection    of 

Tax.  896. 

(6)  Funds  and  Deposits  in  Court.  806. 

(7)  In  Detinue  and  Replevin.  896. 

(8)  Right  of  Possession  of  Property.  897. 

(9)  Interference  with  Exclusive  Privileges,  898. 
(10)   Proof  of  Value.  898. 


APPEAL  AND  ERROR.  349 

1.  Amount  of  Debt,  8^S. 
m.  Determination  as  of  What  Time,  899. 
n.  Subsequent    Change    in    Vakie  of    Subject    of    Contro- 
versy, 899. 
o.  Determination  of  Amount  in  Particular  Proceedmgs,  900- 

(1)  In   Injunction    Proceedings,  900. 

(2)  In  Actions  on  Official  Bonds,  900. 

(3)  In  Probate  Proceedings,  900. 

(4)  In  Suits  for  Specific  Performance.  900. 

(5)  In  Suits  to  Foreclose  Mortgages,  900. 
p.  Appeals  after  Issuance  of  Mandate,  9(X). 

q.  Reduction  of  Amount,  900. 

(1)  Reduction  by  Remission,  900. 

(2)  Reduction  Authorized  by  Act  of  Congress.  902. 

(3)  Reduction  by  Payment  and  Settlement,  902- 

(4)  Reduction   by   Amendment   or   Set-Off,   903. 
r.  Effect  of  Admissions  by  Parties,  903. 

s.   Stipulations  of  Parties,  904. 

17.  Jurisdiction  without  Regard  to  Sum  or  Value  in  Dispute,  904- 

a.  Review   of  Judgments  or  Decrees  of   Supreme  Court  or 

Court  of  Appeals  of  District  of  Columbia  or  of  Any 
of  the  Territories,  904. 

b.  Revenue  Cases,  905. 

c.  Cases   Touching  Patent   Ri^lits  and   Cases  Involving  Va- 

lidity of  Patents  and  Copyrights,  907. 

d.  Suits   for   Infringement  of  Trademarks,  908. 

e.  Cases  in  Which  the  Validity  of  a  Treaty  or  a  Statute  of, 

or   an   Authority   Exercised   under  the   United    States 
Is  Drawn  in  Question,  908. 

f.  Deprivation  of  Constitutional  Rights  and  Immunities,  915. 

g.  Action  for  Dower,  915. 

h.  Cases  of  Violation  of  or  Departure  from  Mandate,  916- 
i.  Cases  Certified  from  Circuit  Courts,  916. 
j.  Suits  against  United   States,  916. 

k.  Cases  from  Territory  of  Florida,  916. 
1.  Review  of    Orders  Remanding    Causes    Removed     from 
State  Courts,  916. 

m.  Cases   Involving  Jurisdiction   of  Circuit  Courts,  ^17. 

n.  Error  to  State  Court,  919. 

o-  Effect  of  Circuit  Court  of  Appeals  .Act,  919. 

18.  Dismissal  and   Reinstatement,  91Q.  ■« 
G.    \ppcals  from  District  to  Circuit  Courts,  920. 

H.  General  Power  to  Issue  Writs,  921. 

• 

IV.   Decisions  Reviewable,  921. 

A.  What  Law  Governs,  921. 

B.  Nature,   Form  and   Validity  of  Judc^ment  as  Governing  Right   of 

Review,  922. 

1.  In  General,  922. 

2.  Decision  Must  Be  Exercise  of  Judicial  Power,  923. 

3.  Decisions  of   Special  Tribunals,  926. 

4.  Judgments  by  Default  and  Decrees  Pro  Confesso,  925. 

5.  Orders  Disbarring  Attorneys,  927. 

6.  Consent  Decrees,  927. 

7.  Judgment  or  Decree  Pro  Forma.  027. 

8.  Judgments  Awarding   Peremptory   Mandamus.  927. 


3oO  ^  APPEAL  AND  ERROR. 

9.  Judgments  or  Decrees  in  Ancillary  Proceedings,  927. 

10.  Judgments  in  Summary  Proceedings,  928. 

a.  in  General,  928. 

b.  Judgments  on  Motions,  928. 

c.  Judgments   Awarding   Peremptory   Mandamus,  928. 

11.  Judgments  in  Habeas  Corpus  Proceedings,  928- 

12.  Proceeding  Must  Be  a  Case  at  Law  or  in  Equity,  929. 
C.  Fir.ality  of  Decision  as  Governing  Riglit  of  Review,  929. 

1.  Introductory,  929. 

2.  Necessity  for  Finality,  929. 

a.  In  General,  929. 

b.  Under  Circuit  Court  of  Appeals  Act,  931. 
c-  What  Law  Governs,  931. 

3.  Statement  of  General  Rules  or  Tests,  932. 

a.  In  General,  932. 

b.  Effect  of  Motion  to  Vacate  Judgment  or  Deciee,  935. 

c.  Effect  of  Motion  for  New  Trial.  936. 

d.  Decrees  Subject  to  Future  Modifications  and  Directions, 

936. 

e.  Decrees  with  Superadded  Reservations.  936. 

f.  Contingent  or  Conditional   Decrees.  936. 

g.  Where  Decree  Is  Final  Only    as  to  Some  of  the  Parties,  937. 

(1)  In   General,  937- 

(2)  Dismissal  as  to  Some  of  the  Defendants  Only,  937. 
h.  Failure  to  Dispose  of  Severable  Matters,  939. 

i.  Orders    Disposing    of    Matters     Arising    Subsequent    to 
Principal  Decree,  939. 

j.  Decrees  Disposing  of  Collateral  Matters.,  939. 

k.  Supplemental   Decree   in   Execution  of  the   Original  De- 
cree, 940. 

1.  Entry  and  Signing  of  Judgment  or  Decree,  941. 
4-  Particular  Judgments.  Orders  and  Decrees  Considered,  941. 

a.  Judgments  or  Orders  of  Quashal.  941. 

b.  Decisions  in  Injunction  Proceedings,  942. 

(1)  In  General,  942. 

(2)  Writ  of  Error  to  State  Court,  943. 

(3)  Under  Circuit  Court  of  Appeals  Act,  943. 

c.  Judgments  Awarding  or  Refusing  to  Award  Writs,  943. 

d.  Judgments  by  Divided  Court.  944. 

e.  Orders  and  Decrees  at  Chambers,  944- 

(1)  In  General.  944. 

(2)  Error  to   State   Court,  944. 

(3)  Habeas   Corpus    Proceedings,   944. 

f.  Judgments,    Orders  and  Decrees  of    Dismissal  and    Non- 

suit, 945. 

(1)  Judgments  of  Dismissal.  945. 
aa.  In  General.  945. 

bb.  Dismissal  of  Cross  Bill.  945. 

cc.  Dismissal  of  Libel  or  Cross  Libel.  946. 

(2)  Judgments  of  Nonsuit.  946. 

g-  Refusal  to  Enter  Exoneretur  on  Bail  Bond,  946. 
h.  Decrees  in  Foreclosure  Proceedings,  947. 

(1)  In  General,  947. 

(2)  Decree  in    Suit   to  Restrain   Foreclosure  of   Mort- 

gage, 948. 

(3)  Executory  Process  in  Louisiana,  948. 


APPEAL  A.VU  ERROR.  351 

(4)   Limitations  of  General  Rule,  949. 
i.  Order  Certifying  Finding  upon  Issue  to  Jury,  950. 
i    Judgments,  Orders  and   Decrees  of'  .Vffirmance,  951. 
k.  Decisions  with  Respect  to  Reference,  952. 

(1)  Decree  Ordering  a  Reference,  952. 

(2)  Decision  on  Report  of  Referee,  957. 
1.  Order  Refusing  Rehearing.  957. 

ni.  Judgment  Affirming  Order  of  Probate,  957. 
n.  Decisions  Affecting  Pleadings,  958. 

(1)  Judgments  on   Demurrers,  958. 

(2)  Striking  out   Pleadings,  958. 

(3)  Judgments  on   Pleas   in  xAbatement.  9'S. 

o-  Orders  Remanding  Causes   Removed   from   State  Courts, 
959. 

(1)  Prior  to  the  Act  of  March  3rd.  1875.  959. 

(2)  Under  Act  of  March  3rd,  1875,  9fi0. 

(3)  Under  the  Act  of  March  3rd,  1887,  960. 

(4)  Under  the  Act  of  February  25th,  1889,  963. 

(5)  Under  Circuit  Court  of  Appeals  Act,  963 
p.  Vacating  and  Setting  Aside  Judgment,  964. 

q.  Carders   for   Distribution  of  Property,  964. 

r.  Judgments  on    Rules  or  Motions,  964- 

s.  Juilgments  Reversing  and  Remanding  Causes,  966. 

(1)  In  General,  966. 

(2)  Error  to  State  Courts,  968. 

(3)  Judgments  Awarding  New  Trials,  972. 
t.  Orders  Made  in  Progress  of  Cause,  972. 

(1)  In  General.  972. 

(2)  Orders  Directing  That  Property  Be  Delivered  to  a 

Receiver,  973. 

(3)  Orders  Directing  Pavment  of  Money  into  and  out 

Court,  973. 

(4)  Decrees   upon    Matters   Arising   after   Transfer   of 

Cause,  974. 

(5)  Rulings  on  Applications  for  Receivers,  974. 

(6)  Order   Directing  Witness   to   Testify   and   Produce 

Documents,  974- 
u.  Judgments  in  Simimary  Proceedings,  974. 

(1)  In  General,  974. 

(2)  Mandamus    Proceedings.   975. 

y.  Orders  Reviving  Suits  and  Actions,  975. 
w.  Judgments,  Orders  and  Decrees  in  Particular  Cases  Con- 
sidered, 975. 

(1)  Decisions  Affecting  Judicial  Sales.  975. 

(2)  Decisions  Affecting  Receivers,  975. 

(3)  Decisions  Affecting  Trustees,  976. 

(4)  Orders  in  Proceedings  in  Aid  of  Execution.  976. 

(5)  Orders   in    Contempt   Proceedings,   977. 

(6)  Orders  in   Habeas  Cofpus  Proceedings,  979. 
(?•)   Decrees   in    Sui's  to  Dissolve  Corporations,  979. 

(8)  Decrees  in  Admirnltv.  979. 

(9)  Judgments  and  Deciccs  in  Condemnation  Proceed- 

ings, 980. 
X.  Decrees  Respecting  Costs,  981. 
Practice,  981. 

a.  Raising  and  \\'aiving  Objections,  981. 

b.  Dismissal,  982. 


352  APPEAL  AND  ERROR. 

c.  Reinstatement,  982. 

d.  Examination  of  the  ^Merits,  983. 
D.  Discretionary  Ma^^ers,  983. 

1.  In  General,  983. 

2.  Amendments,  984- 

3.  Tail,  986. 

4.  Bills  of  Review,  986. 

5.  Certiorari.  986. 

6.  Change  of  Venue,  986. 

7.  Consolidation  of  Actions,  987. 

8.  Continuances,  987. 
9-  Costs,  988. 

10.  Allowance  of  Counsel  Fees  and   Damages,  989. 

11.  Dismissal  and  Nonsuit,  989. 

12.  Election  between  Counts  in  Indictment,  989. 

13.  Evidence.  990. 

a.  Order  of  Proof,  990. 

b.  Admission  or  Rejection  of  Evidence,  990. 

c.  Manner  of   Taking   Down  Testimony,  991- 

d.  Witnesses,  991. 

e.  Interpreters,  992. 

f.  Demurrer  to  the  Evidence,  992. 

14.  Fines,  992. 

LS.  Indictments,  992. 

16.  Injunctions,  993. 

17.  Interest,  993. 

18.  Intervention,  993. 

19.  Judgments  and  Decrees,  994. 

a.  Arrest  of  Judgment,  994. 

b.  Opening.  Amending  and  \^acating,  994. 

(1)  Opening,  994. 

(2)  Amending.  994. 

(3)  Vacating,  994. 

c.  Motion  and  Order  for   Judgment.  995. 
?0.  Judicial  Sales,  995. 

21.  Jury,  995. 

22.  Lost  Instruments  and  Records,  996. 

23.  Mandamus,  996. 

24.  Decisions  on  Motions,  996. 

a.  In  General,  996. 

b.  Motion  to  Quash  Execution  or  Iridlctment.  ^96. 

c.  Motion  for  Stay  of  Execution.  997. 

d.  Motion  for  Leave  to  Di.'.continue,  997. 

e.  Motion  to  Enter  Exoneretur  of  Bail,  997. 

25.  X?w  Trials.  997. 

a.  In  General.  997. 

b.  Binding  Effect  of  State  Practice.   1000. 

c.  Effect  of  Uniformitv  Act.  1000. 

d.  Rule  in  Territorial  Courts,   1000. 
?^.  Onen  and  Close,  1000. 

27.  rieadirgs.  1001. 

a.  Sunplemental  Pleadings.     001. 

b.  .Allowance  of  New  pnd  Additional  Pleas.  1001. 

c.  Filing  Pleadings.   1001. 

d.  Order  to  Make  More  Definite  and  Certain,   "^"il. 

e.  Withdrawal  and  Striking  Out  Pleadings,   lOCl. 
23.  Prohibition,  1002. 


APPEAL  AND  ERROR.  353 

29.  Receivers,  1002. 

30.  Rehearing.   1003. 

31.  Rules  of  Court,   1003. 

32.  Salvage,   1003. 

33.  Separate  Trials,  1004. 

34.  Special   Interrogatories  to  the   Jury,   1004, 

35.  Surprise,  1004. 

36.  Venditioni  Exponas,  1004. 

37.  Appeal  and  Supersedeas  Bond.  1004. 

38.  Review  of  Action  of  Court  in  Expressing  Opinion  upon  Facts, 

1004. 

39.  Acts  of  Officers  of  the  Various  Departments,   1004. 
E.  Review  of  Questions  of  Fact,  1005. 

1.  In  General,  1005. 

2.  Constitutional   and   Statutory   Provisions,    1010. 

3.  Concurrent  Decisions  of  Two  Inferior  Courts,   1012. 

a.  In  General,   1012. 

b.  Limitations  of   General  Rule.   1015. 

4.  What  Law  Governs.   1015. 

a.  In  General,  1015. 

b.  Louisiana   Practice,   1015, 

5.  Agreement  of  Parties.  1016. 

6.  Construction  of  Statutes,  1017. 

7.  Weight  and  Sufficiency  of  Evidence.  1018. 

8.  Excessiveness  of  Damages,   1020. 

9.  Limitations  of  and  Exceptions  to  General  Rule.  1020. 

a.  In  General,   1020. 

b.  Appeals  in  Admiralty.  1020. 

c.  Appeals  in  Equitv.  1021.  ♦ 

10.  Decisions  of  Land  Department.   1022. 

11.  Effect  of  Bankruptcy  Act,  1023. 

12.  How  Findings  of  Fact  by  the  Court  May  Be  Reviewed,  1023. 

a.  In  General.   1023. 

b.  Review  of  Findings  of  Court,  1023. 

(1)  Rule  Prior  to  Statute,  1023. 
aa.  In  General,   1023. 

bb.  Bill  of  Exceptions,  1025. 

aaa.  Necessity    for    Bill    of    Exceptions,    1025. 
bbb.  Review   of   Admission    and    Exclusion   of 

Evidence,    1026. 
ccc.   Separation     of    Questions    of    Law     from 
Questions   of   Fact,    1026. 
cc.  Louisiana  Practice.  1027. 
dd.  \\^aiver  of   Jury.   1028. 

(2)  Statutory  Rule.  1028. 
aa.  In  General.   1028. 

bb.  To  \\Tiat  Courts   Apnlicable.    1030. 
cc.  Nature  of  Finding,  1031. 
dd.  Kinds  of  Findings,   1031. 
ee.  Necessity  for  Presence  of  Counsel.   1031. 
ff.  Form  and  Sufficiency  of  Findings,  1031. 

aaa.  In   General,   1031. 

bbb.  'P?r^'^   Must  Be  Found  bv  Circuit  Court, 
1032. 

ccc.  Ultimate  Facts,   1032. 

ddd.  Completeness   of  Findings.    1032. 


U  S  Enc— 23 


354  APPEAL  AND  ERROR. 

gg.  Waiver  of  the  Jury,  1033. 

aaa.  Constitutional      Riglit      to      Waive      Jur\ 

Trial.   1033. 
bbb.  Necessity  for  Waiver,  1033. 
ccc.  What   Constitutes   a   Waiver,    1033. 
.  aaaa.  In  General,   1034. 

r  bbbb.  Statement    of   Facts     by    Judge    a-^ 

Evidence  of  Waiver,   1034. 
cccc.  Presumption   as   to    \A^aiver,    1034. 
;  ddd.  The   Written    Stipulation,    1035. 

.f  aaaa.  Necessity    for   Filing,    1035. 

I  bbbb.  Form    and    Sufficiency    of    Stipula- 

i  tion,    1036. 

cccc.  How       Existence       of       Stipulation 
Shown,  1036. 
hh.  Review  of  General   Findings,   1037. 
aaa.  In  General,  1037. 

bbb.  Assignment  of   Error  on    General    Find- 
ing.   1040. 
ii.  Review  of   Special   Findings,   1040. 
aaa.  Nature  of  Special  Finding,  1040. 
bbb.  Duty   to    Make    Special    Finding.    1040. 
ccc.  Form   and    Sufficiency,    1041. 
ddd.   Scope  of  Review,   1043. 
jj.  Rulings  of  Court  in  Progress  of  Trial.  1044. 
aaa.  In   General.    1044. 

bbb.   Meaning    of     Phrase     "R'lHnp-s      ^.f      t^.' 
Court  in  the  Progress  of  tbe  Trial,"  1045. 
ccc.  RemccHes.    1045. 
kk.  Review  of  Findings  upon  Questions  of  Fact.  1045. 
11.  The  Record.   1050. 

aaa.  In    General.    1050. 

bbb.  Necessity   of  Bill  of  Exceptions.   1051. 
ccc.  Stipulation   of    Parties.    1053. 
mm.  Vacating  Submission  of  Cause,   1053. 
nn.  Presumptions  on  Appeal,   1053. 
oo.  Hearing  and   Determination,   1054. 
aaa.  Affirmance,    1054. 
bbb.  Dismissal  or   Reversal.   1054. 
.,  ccc.  Rendering  or  Ordering  Final  Judgment,   1055. 

(3)  In   Actions  against  the   Government,   1055. 

(4)  Construction  of  Findings,   1056. 

c.  Review   of    Judgments   Founded  upon   Agreed   Statement 

of  Facts.  1056. 

(1)  In   General.    1056. 

(2)  Nature  of  Agreed  Case.   1057. 

(3)  Form.   Sufficiency   and   Contents   of  Agreed   State- 

ment.   1057. 

(4)  The  Record — Necessity  for  Bill  of  Exceptions.  1057, 

d.  Review  of  Judgments  Founded  upon  Special  \''erdict.  1058. 

(1)  In   General.   1058. 

(2)  Definition  and  Nature.  1059. 

(3)  Form  and  Requisites.  1059. 
aa.  In   General.   1059. 

bb.  Reference  of  Cause  to   Court.    1060. 
cc.   Presence  and  Assent  of  Court.   1060. 

(4)  Review,  1060. 


APPEAL  AND  ERROR.  ZbS 

aa.  In   General.    1060. 

bb.  Exceptions  and  Objectiojis.   1061. 

aaa.  In  General,   1061. 

bbb.  Necessity  of  Bill  of  Exceptions,  1061. 
CO.  Scope   of   Review.    1061. 
dd.  Reversal   or   Affirmance.    1062. 

e.  Review  of  Findings  by  Referees.  Arbitrators,  etc.,   1062. 

f.  Other    Methods   Considered,    1065. 


VOL.   2.   U.   S.   E. 

[Divisions  V  to  XVIII.  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.] 

V.    Certificate  of  Division  of  Opinion. 

A.     Under  the  Acts  of  1802  and  1872. 

1.  In  General. 

2.  To  What  Courts  Applicable. 

3.  General  Requisites. 

a.  In  General. 

b.  Must  Be  a  Suit  or  Cause. 

c.  Questions  Must  Arise  at  Trial  qf  Cause. 

d.  "Upon  the  Request  of  Either  Party  or  Their  Counsel." 

e.  Invalidity  of  Proceedings  Below. 

f.  Necessity  for  Finality  of  Judgment. 

g.  Competency  of  Judges  of  Circuit  Court. 

4.  Where  Disagreement  Is  as  to  Part  ©f  Case  Only. 

5.  Certifying  Whole  Case  for  Decision. 

6.  Questions  That  May  Be  Brought  Up  and  Considered. 

a.  In  General. 

b.  Abstract  or   Hypothetical   Questions. 

c.  Questions  of  Law  or  Fact. 

d.  Questions  Relating  to  Matters  of  Discretion. 

(1)  In  General. 

(2)  Division  on  a  Motion, 
aa.  In   General 

bb.   Motion  for  New  Trial. 

cc.  Motion  to  Quash  Indictment  or  Information. 

dd.  Motions  to  Revive. 

(3)  Separate  Trials. 

(4)  Opening  and  Vacating  Judg^uents  and  Decrees. 

(5)  Matters  of  Practice. 

e.  Jurisdiction  of  Circuit  Court. 

7.  Review  of  Particular  Proceedings. 

a.  Cases  in   Bankruptcy. 

b.  Criminal  Cases. 

c.  W^here   Disagreement  Arises  on   Special  Verdict  or  Mo- 

tion in  Arrest  of  Judgment. 
»  8.  Division  Pro  Forma. 

9.  Form,   Sufficiency  and  Contents  of  Certificate. 

a.  In  General. 

b.  Certificate    Must   Contain    Distinct    Prc^position    of    Law 

Clearly  Stated. 

c.  Rule  in  Criminal  Cases. 
10.  Transfer  of  Cause. 

a.  Proceedings  for  Transfer. 

b.  Effect  of  Transfer 


356  APPEAL  AND  ERROR. 

(Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.] 

(1)  On  Proceedings  in  Circuit  Court. 

(2)  How  Much  of  Cause  Transferred. 

(3)  Certificate  as  Precluding  Right  to  Writ  of  Error. 

(4)  Abiding  the  Event. 

c.  Hearing  Confined  to  Questions  Certified. 

d.  Right  to  Withdraw  Record  or  Discontinue  Cause. 

e.  Rule  of  Decision  in  Supreme  Court. 

11.  Affirmance  or  Reversal. 

a.  In  General. 

b.  Division  of  Opinion. 

12.  Jurisdictional  Amount. 

B.  Under  Circuit  Court  of  Appeals  Act. 

1.  In  General. 

2.  Effect  on  Pre-Existing  Statutes. 

3.  Rule  of  Decision. 

4.  Constitution  of  Circuit  Court  of  Appeals. 

5.  Questions  to  Be  Brought  Up  and  Considered. 

a.  In  General. 

b.  Criminal  Cases. 

c.  Conflict  between  Supreme  Court  Decisions. 

d.  Conflict  between  Courts  of  Appeals. 

e.  Discretionary  Matters. 

6.  Form,  Contents  and  Sufficiency  of  Certificate. 

a.  In  General. 

b.  Statement  of  Facts. 

c.  Questions  Must  Be  Clearly  and  Distinctly  Certified. 

d.  Certificate  Must  Present  a  Distinct  Point  or  Proposition 

of  Law. 

7.  Review  of  Questions  of  Fact. 

8.  Right  to  Certify  the  Whole  Case  to  This  Court. 

9.  Presumptions  on  Appeal. 

10.  Rules  of  Court  as  to  Bringing  Up  the  Record. 

VI.   Parties  and  Persons  Entitled  to  Appeal. 
A.  Who  Entitled  to  Appeal. 

1.  In  General. 

2.  Mutuality  of  Right. 

3.  Party  Aggrieved. 

4.  Appealable  Interest. 

a.  In  General. 

b.  Devolution  of  Interest. 

5.  Particular  Parties  and  Persons  Considered. 

a.  Claimants  to  Funds  and  Deposits  in  Court. 

b.  Parties  by  Representation. 

c.  Municipal    Corporations. 

d.  Natural  and  Artificial  Persons. 

e.  Parties  to  Bankruptcy  Proceedings. 
'                                      f.  Parties  to  Consolidated  Actions. 

g.  Persons  Holding  Railroad  Securities. 

h.  Public  Officers. 

i.  Purchasers  at  Judicial  Sales. 

j.  Receivers. 

k.  States. 

(1)  In  General. 

(2)  The  State  or  United   States  in  Criminal  Cases. 

(3)  The  United  States  in  Civil  Cases. 


APPEAL  AND  ERROR.  357 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol  2.] 

I.  E>efendants  in  Default  Judgment, 
m.  Mortgagor  and  Mortgagee. 

B.  Proper  and  Necessary  Parties. 

1.  Plaintiffs  in  Error. 

a.  In  General. 

b.  Real  Parties  in  Interest. 

c.  Parties  to  Joint  Judgments  and  Decrees. 

(1)  In  General. 

(2)  Principal  and   Surety. 

■  (3 )    Summons   and   Severance  or  Equivalent   Proceed- 
ings. 

(4)  Limitations  of  General  Rule. 

(5)  Reversal. 

(6)  Dismissal. 

2.  Defendants  in  Error. 

a.  In  General. 

b.  Husband  and  Wife. 

c.  Municipal  Corporations, 

C.  Intervention. 

1.  Who  May  Intervene. 

2.  California  Land  Cases. 

3.  From   Final   Judgments  and   Decrees. 

4.  Petition. 

5.  Rights  of  Interveners. 

D.  Desigi  ation  and  Description  of  Parties. 

1.  Necessity  for. 

2.  Sufficiency. 

a.  In  General. 

b.  Christian   Nam-'s  of   Parties. 

c.  Must  Be  Described  by  Individual  Names. 

d.  Partnersh'ps. 

3.  Presumptions  on  Appeal. 

4.  Variance. 

5.  Exceptions  and  Objections. 

E.  Death  of  Party. 

L  In  General. 

2.  Of  Plaintiff  in  F-ror. 

3.  Of  Defendant  in  Error. 

4.  Of  One  of  Several  Plaintiffs  or  Defendants. 

5.  Place  of  Revival. 

6.  Persons  to  Be  Substituted. 

Vn.   Waiver  of  Right. 

A.  By  Release  of  Errors. 

1.  In  General. 

2.  Consent  Decrees. 

3.  Who  May  Release  Errors. 

4.  Hearing  and  Determination. 

B.  Implied  Wa'ver  or  Release  of  Errors. 

L  In  General. 

2.  Acceptance  of  Benefits. 

a.  In  General. 

b.  Payments  on  Ji^dgment. 

(1)  In  General. 

(2)  Partial  Satisfa^^t'on. 

3.  Enforcement  of  Judgment  by  Execution. 

4.  Performance  of  Judgment  or  Decree. 


358  APPEAL  AXD  ERROR. 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.] 

5.  Motion  for  New  Trial. 

6.  Obtaining  Leave  to  Amend. 

7.  Seeking  Other  Modes  of  Relief. 

Vin.   Exceptions  and  Objections. 

A.  General  Principles. 

1.  Object  of  Objections. 

2.  Necessity  for  Objections. 

a.  In  General. 

b.  Limitations  of  and  Exceptions  to  General  Rule. 

(1)  In  General. 

(2)  Errors  Apparent  on  the  Record. 

(3)  Illegal  Contracts  and  Transactions. 

3.  Necessity   for   Exceptions. 

4.  Time  for  Perfecting  Exceptions. 

5.  Form  and  Sufficiency. 

B.  Applications  of  Rules  to  Particular  Instances. 

L   Form  of  Action,    Modes  or   Procedure  and   Irregularities  at 
the  Trial. 

2.  Arbitration  and  Award. 

3.  Arguments  of  Counsel. 

4.  Assignments  for  Benefit  of  Creditors. 

5.  Questions  Relating  to  Corporations. 

6.  Matters  of  Defense. 

7.  Depositions. 

8.  Dismissal  and  Nonsuit. 

9.  Duties.  Imports  and  Internal  Revenue. 
10.  Evidence. 

a.  Necessity  for  Objections  and  Exceptions. 

b.  Objections  Must  Be  Taken  Below. 

(1)  In  General. 

',  (2)   Illustrative  Cases. 

c.  Form  and  Sufficiency  of  Exceptions  and  Objections. 

d.  Time  to  Take  and   Perfect  Exceptions, 
n.  Findings  of  Court. 

12.  Public  Lands  and   Spanish  and  Mexican  Grants. 

13.  Instructions. 

a.  Right  to  Except. 

b.  Objections   Must   Be   Made  below. 

c.  Necessity  for  Excepting. 

d.  Form  and   Sufficiency  of  Exceptions  and  Objections. 

e.  Time  for  Excepting. 

14.  Interest. 

15.  Issues  to  the  Jury. 

16.  Judgments   and   Decrees. 

17.  Jurisdiction  and  Venue. 

a.  In   General. 

b.  Equitv  Jurisdiction. 

(1)'  In   General. 

(2)  Adequate    Remedy    at   Law. 

c.  Defects  in  Appeal  or  Writ  of  Error. 

d.  Power  of  Court  to  Render  a  Judgment. 

e.  Sufficiency  of  Amount  in   Controversy. 

f.  Venue. 

18.  Parties. 

a.  For  Want  of  Proper  Parties. 

b.  For   Misjoinder   of    Parties. 


APPEAL  AND  ERROR.  359 

^Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.] 

c.  Multifariousness. 

d.  For  Misnomer. 

e.  Capacity  to  Sue. 

f.  Substitution  or  Intervention. 

19.  Pleadings. 

a.  Declaration. 

b.  Plea  or  Replication. 

c.  Filing    Pleadings. 

d.  \  ariance. 

20.  The  Record. 

21.  Reference. 

a.  Exceptions  to  Master's  Report. 

(  1 )    Necessity   for   Excepting  below. 
(2)   Form  and  Sufficiency  of  Exceptions. 

22.  Removal  of  Causes. 

23.  Sheriffs'  Sales. 

24.  Equity,  Admiralty  and  Maritime  Causes. 

25.  Statute  of  Limitations. 

26.  Stipulations. 

27.  Verdict. 

28.  Questions    Relating    to    Wills. 

29.  \Vitnesses. 

a.  Competency. 

b.  Exanlinalion. 

30.  Criminal    Proceedings. 

31.  Theory  of  the  Case. 

32.  Peremptory   Exceptions   in    Louisiana. 

33.  Waiver  of  Exceptions  and  Objections. 

IX.   Transfer  of  Cause. 

A.  In    General. 

B.  Entitling  the   Cause. 

C.  Prayer   for  and  Allowance  of  Appeal. 

1.  Necessity  for  Allowance. 

2.  The   Petition  or   Application. 

a.  Necessity   for. 

b.  Right  to   File. 

c.  Form. 

d.  Amendment  of  Petition. 

e.  Petition  as  Part  of  Record. 

3.  Special  Allowance. 

4.  Form  and  Sufficiency  of  Allowance. 

5.  Allowance  by  Whom. 

6.  Time  of  Allowance. 

a.  .\t  Term  or  in  Vacation. 

b.  Allowance  Nunc  Pro  Time. 

c.  Presumptions  on  Appeal. 

7.  Carder  of  .Allowance. 

a.  Form  and  Requisites. 

b.  Entry  of  Order. 

c.  Opening  and   X'acating  Order. 

(1 )  Power  of   Court. 

(2)  Grounds    for   Vacating. 

(3)  At  What  Stage  of  Proceedings. 

(4)  Remedies. 

d.  Relation. 

e.  Conclusiveness  of  Order. 


360  APPEAL  AND  ERROR. 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  v^rill  be  found  in  Vol.  2.] 

8.  Effect  of  Allowance. 

9.  Proof  of  Allowance. 

10.  Mandamus  to   Compel  Allowance 

11.  Vacation  or  Revocation  of  Allocatur. 

D.  Limitations  upon  Time  for  Taking. 

1.  In   General. 

2.  In  Particular  Proceedings  and  Courts. 

a.  In   General. 

b.  Bills  of  Review. 

c.  Causes  of  Admiralty  and  Maritime  Jurisdiction. 

d.  Appeals    from    Territorial    Courts. 

e.  From   Court   of   Claims 

f.  From  District  to  Circuit  Courts. 

i  g.  Settlement  of  Private  Land  Claims  in  California- 

h.  In  Criminal  Cases, 
i.  Cross  Appeals. 

3.  When  Statute  Begins  to  Run. 

'  4.  Postponement,   Suspension  or   Interruption. 

a.  When  Is  an  Appeal  Taken. 

b.  Motion  for  New  Trial  or  Petition  for  Rehearing. 

c.  War  and  Stay  Law  Period. 

d.  Disabilities. 

5.  Computation  of  Time. 
.  .1  6.  Pleading  the  Statute. 

7.  Effect  of  Circuit  Court  of  Appeals  Act. 

E.  The  Writ  of  Error. 

1.  Purpose  or  Object  of  W^rit. 

2.  Necessity  of  Writ. 

3.  Form  and  Requisites. 

a.  Form. 

b.  Requisites  and  Sufficiency. 

(1)  In  General. 

(2)  Description  of  Judgment. 

(3)  Naming    Return   Day. 

(4)  Teste. 

(5)  Sealing. 

(6)  Date. 

(7)  Indorsement. 

c.  Exceptions  and  Objections. 
*             4.  Issuance  and  Service  of  Writ. 

a.  In  General. 

b.  Issuance. 

c.  Service. 

(1)  Necessity   for   Service. 

(2)  Time  of  Service. 

(3)  Manner  of   Serving. 

(4)  Effect  of  Failure  to  Serve. 

5.  Return. 

a.  In  General. 

b.  Sufficiency  of  Return 

(1)  In  General. 

(2)  Original  or  Copy. 

c.  Time  and  Place  of  Return. 

d.  Specification  of  Return  Day  in  Writ. 

e.  Compelling  Return. 

f.  Waiver. 

6.  Amendment  of  Writ. 


APPEAL  AND  ERROR.  361 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.] 

a.  Right  to  Amend. 

b.  Discretion  of  Court. 

c.  Amendable  Defects. 

(1)  In  General 

(2)  Error  as  to  Return  Day. 

(3)  Absence  of  or  Mistake  in  Teste. 

(4)  Absence  of  or  Mistake  in   Seal. 

(5)  Mistake  in  Title  of  Writ. 

(6)  Defects  with  Respect  to  the  Parties. 

(7)  Omission  to  Allege  Jurisdiction. 

d.  Amendments  by  Record. 

e.  Motion  for  Leave. 

7.  Dismissal. 

8.  Variance. 
F,   The  Citation. 

1.  Definition,  Distinctions  and  Office. 

2.  What  Law  Governs. 

3.  Necessity  for. 

a.  In  General. 

b.  Appeals  Allowed  in  Open  Court. 

(1)  In   General. 

(2)  Appeals  Perfected  after  the  Term. 

c.  In  Admiralty  and  Prize  Causes. 

d.  Legal   Equivalents  of  Citation. 

e.  Effect  of  Want  of  Notice  on  Judgment  or  Decree. 

f.  Dismissal. 

4.  Form  and  Requisites. 

a.  In  General. 

b.  Date. 

c.  Statement  of   Names  of   Parties. 

d.  Signing  of  Citation. 

5.  Issuance. 

a.  Whence  Issued. 

b.  To  Whom  Addressed. 

c.  By  Whom  Issued. 

6.  Service. 

a.  Necessity. 

b.  Constructive  Service.  < 

c.  Time  of  Service. 

(1)  In  General. 

(2)  Before   Return   Day. 

d.  Manner  and  Place  of  Service. 

e.  L^pon  Whom  Served 

f.  Proof  of  Service. 

7.  Return. 

8.  Waiver. 

a.  In  General. 

b.  By  Appearance. 

(1)  Defects  and  Irregularities. 

(2)  Want  of  Citation. 

aa.  General  Appearance. 
bb.  Special  Appearance. 
cc.  Altering  General  to  Special   Appearance, 

(3)  Withdrawing  or   Striking  Out  Appearance, 

c.  By  Acceptance  of  Defective  Service. 

d.  By  Acknowledgment  of  Notice. 


362  APPEAL  AND  ERROR. 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.i 

9.  Amendment. 
10.  Presumptions  on  Appeal. 
G.  Appeal  Bond. 

1.  Definition  and   Nature. 

2.  Necessity  for. 

a.  In  General. 

b.  Appeals  by  United  States. 

c.  Appeals  in   Forma   Pauperis. 

d.  Under  Circuit  Court  of  Appeals  Act. 

e.  Waiver. 

3.  Discretion  of  Court. 

4.  Form  and   Sufficiency. 

a.  In  General. 

b.  Signing. 

c.  Condition  of  Bond. 

d.  Parties. 

(1)  Obligors. 

(2)  Obligees. 

(3)  Sureties. 

e.  Description  of  Judgment. 

f.  Must  Contain  Security  for  Costs. 

g.  Dismissal. 

5.  Approval  of   Bond. 

a.  Necessity   for. 

b.  Approval  by  Whom. 

c.  Form   and    Evidence   of    Approval. 

d.  \'acatint.'  Approval. 

6.  Time  of  Fili'^g  Security. 

7.  Additional  Security. 

8.  Obviating  Defects  in  Bonds  and  New  Bonds. 

9.  Amount  of  Bond. 

10.  Appeals  in  Admiralty. 

11.  Appeals  in  Bankruptcy. 

12.  Actions  on  Bond. 

a.  Liability  of   Sureties  on  Appeal   Bonds. 

(1)  Di.scharge   of   Sureties. 

(2)  Extent    of   Liability   of    Sureties. 

(3)  Pleas  and  Defenses. 

(4)  Liabilitv    Fixed   by   Affirmance   of    Tuderment. 

b.  Pleas. 

c.  Damages. 

d.  Interest. 

e.  Joint  Judgment  against  Principal  and  Sureties- 

f.  Summary  Judgment. 

g.  Necessity  for  Execution. 
H.     The  Record  or  Transcript. 

1.  Definition. 

2.  Original  Record  or  Transcript. 

3.  What  Constitutes  the  Record  Proper. 

a.  In  General. 

b.  Assignment    of   Errors. 

c.  Certificates   and    Statements   of   Clerk. 

d.  Citation. 

e.  Depositions.    .Affidavits   and  Exhibits. 

f.  Findings  of  C'uirt. 

g.  Minutes. 


APPEAL  AND  ERROR.  363 

Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.\ 

h.  Opinions  of  Court. 
i.  Matters  Resting  in  Parol. 
j.  Pleadings. 

k.  Petition   for   Rehearing. 
1.  Petition  for  Appeal  or  Removal  of  Causes, 
m.  Proceeding  before  Commissioners, 
n.  Process. 

0.  Report  of  Judge. 

p.  Verdict  and  Judgment. 

(1)  In  General. 

(2)  Issues  to  the  Jury. 

q.  Papers  Filed  after  Issuance  of  Writ. 
r.  Record  in  Another  Suit. 

4.  Errors  Not  Apparent  on  Face  of  Record  and  Matters  to  Be 

Shown  by  Record. 

a.  In  General. 

b.  Record  in  Criminal  Cases. 

c.  Review  of  Order  of  Remand. 

d.  Amendments. 

e."  Laws  and  Statutes. 

f.  Jurisdiction  of  Court  below. 

(1)  In  General. 

(2)  In  Summary  Proceedings. 

(3)  Citizenship  of  Parties. 

(4)  Service  of  Process. 

(5)  Validity    of    Judgment     Where     Jurisdiction     Not 

Shown. 

g.  Jurisdiction  of  Appellate  Court. 

(1)  Steps   Necessary  to  Give  Jurisdiction  to  Appellate 

Court, 
aa.  Prayer  for  and  Allowance  of  Appeal, 
bb.  Issuance  and  Service  of  Citation, 
cc.  Taking  of  Security  or  Appeal  Bond. 

(2)  Amount  in  Controversy, 
h.  Evidence. 

(1)  In  General. 

(2)  In  Chancery  Cases. 

(3)  Modes  of  Putting  Evidence  on  the  Record. 
(4),  Witnesses. 

i.  Reasons   for  Decision. 

j.   Papers  and  Documentary  Evidence. 

(1)  In  General. 

(2)  Admission  or  Rejection  of  Documentary  Evidence, 
k.  Rules  of  Court. 

1.  Stipulations. 

m.  Exceptions  and  Objections. 

(1)  To  the  Evidence. 

(2)  To  the  Instructions. 

(3)  To  Master's  Report. 

n.  Allowance  of  Counsel  Fees  as  Damages, 
o.  Instructions, 
p.  Judicial  Notice. 

5.  Necessity  for  Bill  of  Exceptions,  Agreed  Statement  of  Facts 

or   Special   Verdict. 

a.  Bill  of  Exceptions. 

b.  Other  Modes  than  Bill  of  Exceptions. 


364  APPEAL  AND  ERROR. 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2. J 

c.  Stipulation  or  Agreement  of  Parties. 

6.  Requisites,   Sufficiency  and  Contents. 

a.  Contents  of  Record. 

(1)  In  General. 

(2)  Pleadings. 

(3)  Names  of   Jurors. 

(4)  The  Citation. 

(5)  Remedying   Incomplete  Transcripts. 

(6)  Stipulation   of   Parties. 

b.  Form  and  Sufficiency. 

(1)  Statement  of   Pleadings. 

(2)  Incorporating  Rules  of  Court. 

(3)  Dismissal  and  Reinstatement. 

7.  Filing. 

a.  Necessity  for  Filing. 

b.  Duty  of  Appellant. 

c.  Time  for  Filing. 

(1)  In  General. 

(2)  Waiver. 

(3)  Effect  of  Filing  Record  before  Motion  to  Dismiss. 

(4)  Dismissal  and  Reinstatement. 

(5)  Excuses  for  Delay  in  Filing. 

(6)  Limitations  of  General  Rule. 

(7)  Docketing  and  Dismissing  Causes, 
aa.  The  Rules  of  Court  Stated. 

bb.  Filing  of  Record  by  Defendant  in  Error. 

cc.  Time  of  Rendition  of  Judgment. 

dd.  Where    Cause    Is    Docketed   before    Motion  to 

Dismiss, 
ee.   Sufficiency  of  Record, 
ff.  Certificate  of  Clerk. 

aaa.  Necessity  for. 

bbb.  Form  and  Requisites. 
gg.  Operation  and  Effect  of  Rule. 
hh.  Reinstatement, 
ii-  Supersedeas. 

(8)  Extension  of  Time. 

(9)  How   Objection   Made. 

d.  Remedies  in  Case  of  Failure  or  Refusal  to  File. 

(1)  Motion  for  Rule  to  File. 

(2)  Mandamus. 

e.  Withdrawal  of  Transcript. 

8.  Authentication  and  Certification. 

a.  Necessity  for. 

b.  Who  May  Certify. 

c.  The  Certificate  of  Authentication. 

(1)  Necessity  for  Certificate. 

(2)  Form  and  Sufficiency. 

d.  Transfer  of  Causes  from  Territorial  Courts. 

9.  Printing. 

a.  Necessity  for  Printing  Record. 

b.  Duty  of  Plamtiff  in  Error. 

c.  Right  to  Take  Original  Records  to  Printer. 

d.  How  Much  to  Be   Printed. 

e.  Clerk's  Fees  and  Costs  of  Printing. 

(1)   In  General. 


APPEAL  AND  ERROR.  365 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.] 

(2)  Payment  by   Whom. 

aa.  Appellant  or  Plaintiff  in  Error. 
bb.  Against  Losing  Party, 
cc.  Party  Appealing  in  Cross  Suit, 
dd.   Party    Causing    Unnecessary    Matter    to     Be 
Printed. 

(3)  In  Cases  of  Dismissal  or  Affirmance. 

(4)  Time  of   Payment. 

(5)  Remission  of  Fees  and  Costs. 

f.  Duty   of   Clerk   with   Respect   to    Indexing   and    Delivery 

of  Copies. 

g.  Stipulation  of  Parties. 

10.  Construction  of  Record. 

11.  Amendment  and  Correction  of  Recora. 

a.  Power  of  Court. 

b.  What  Law  Governs. 

c.  Consent  of  Parties. 

d.  Amendable  Defecth. 

(1)  Clerical   Errors. 

(2)  Defects   in   Findings  of   Court. 

e.  Amendments  in  Appellate  Court. 

(1)  Power  of  Court  to  Allow. 

(2)  In  Admiralty. 

(3)  Consent  of  Parties. 

(4)  Amendable  Defects. 
aa.  Clerical  Errors. 

bb.  Failure  of  Record  to  Show  Jurisdiction. 

(5)  Venire  De  Novo. 

f.  The  Motion  or  Application. 

g.  At  What  Stage  of  Proceedings. 

h.  Waiver  of  Errors  and  Imperfections  in  Record. 

12.  Impeachment  or  Contradiclion  of  Record. 

13.  Return  of  Record  to  Court  below. 
I.  Docketing  and  Entry  of  Appeals. 

1.  In  General. 

2.  Time  of  Docketing. 

a.  In  General. 

b-  Excuses  for  Failure  to  Docket  in  Time. 

3.  Where  Cause  Is  Brought  Up  by  Appeal  and  Writ  of  Error. 

4.  How  Objection  Taken. 

5.  Dismissal. 

6.  Waiver. 
J.  Clerks'  Fees. 

1.  In  General. 

2.  Who  Entitled. 

3.  Liability  for. 

4.  Service  with  Respect  to  Record. 

5.  Docketing  and   Dismissing   Causes     for    Failure    to   File    Fee 

Bond. 

6.  Right  to  Withhold  Man^late  until  Payment, 
K.  Waiver  of  Irregularities  in  Transfer  of  Cause. 

X.   Assignment  of  Errors. 

A.  The  Rules  of  Court  Stated. 

B.  Office  of  Assignment. 

C.  Necessity  for. 

1.  In  General. 


J60  APPEAL  AND  ERROR. 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.] 

2.  Rule  Requiring  Its  Annexation  to  and  Return  with  Writ  of 

Error. 

3.  Effect  of  Its  Omission. 

D.  Reason  and  Object  of  Rule. 

E.  Form  and  Sufficiency. 

1.  In  General. 

2.  As  to  the  Instructions. 

3.  As  to  the  Evidence. 

4.  As  to  the  Judgment. 

5.  As  to  Rulings  upon  Report  of  Master, 
^.  As  to  Demurrer. 

F.  Construction  of  Assignment. 

G.  Scope  of  Assignment. 
H.  Striking  Out. 

XI.   Briefs. 

A.  Necessity  for  Briefs. 

B.  Form  and  Contents  of  Brief. 

1.  The  Rules  of  Court  Stated. 

2.  Abstract  or  Statement  of  Case. 

a.  In  Brief  of  Plaintiff  in  Error. 

b.  In  Brief  of  Defendant  in  Error. 

3.  Specification  of  Errors. 

a.  In  Brief  for  Plaintiff  in  Error. 

(1)  In    General. 

(2)  As  to  Instructions. 

(3)  As  to  the  Evidence. 

(4)  As  to  Master's  Report. 

(5)  Effect  of  Omission  of  Specification. 

b.  In  Brief  for  Defendant  in  Error. 

4.  The  Argument. 

5.  Incorporation  of  State  Statutes  in  Brief. 

6.  Scandal  and  Impertinence. 

C.  Filing. 

1.  Who  May  File. 

2.  Time  of  Filing. 

a.  Brief  of  Counsel   for  Plaintiff  in   Error. 

b.  Brief  of  Counsel  for  Defendant  in  Error. 

3.  Notice  of  Filing. 

4.  Effect  of  Failure  to  File. 

a.  Brief  of  Plaintiff  in  Error. 

b.  Brief  of  Defendant  in  Error. 

D.  Printing  Briefs. 

E.  Admissibility  in  Evidence. 
Xn.   Effect  of  Appeal. 

A.  In  General. 

B.  On  Jurisdiction  of  Trial  Court. 

1.  In  General. 

2.  Appeals   in  Chancery. 

3.  Appeals  from  District  of  Columbia. 

4.  Effect  on  Injunctions  below. 

5.  Amendments  and  Directions. 

6.  Enforcement  of  Judgment  or  Decree. 

7.  In  Criminal  Cases. 

a.  In  Capital  Cases. 

b.  In  Habeas  Corpus  Proceedings. 

c.  Right  of  Trial  Court  to  Bail  Acci^ed. 


APPEAL  AND  ERROR.  367 

(Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error."  will  be  found  in  Vol.  2.] 

C.  On  Decision  of  Court  below- 

1.  \'acation  of  Judgment. 

2.  Appeals   in    Eminent   Domain   Proceedings. 

3.  Availability  as  Estoppel   Pending  Appeal. 

D.  Trials  De  Novo. 

1.  Proceedings  for  Settlement  of  Private  Land  Claims. 

2.  Appeals  from  Nevada. 

3.  Appeals   in   Admiralty. 

4.  Appeals  to  Supreme  Court    of    Philippine    Islands. 

E.  Effect  on  Liens. 

F.  Effect   on    Subject   Matter   or   Property   in   Litigation. 

L  In  General. 

2.  Appeals  in  Admiralty. 

G.  Patent   Cases. 

H.   Power  to  Issue  Writs. 

Xni.   Appearance. 

A.  Necessity   for  Entering  Appearance. 

1.  Of  Appellant. 
2. 'Of  Appellee. 

B.  Time    for    Entering   Appearance. 

C.  Authority   to   Enter    Ajipearance. 

1.  In  General. 

2.  Of  Attorney  General. 

3.  Of  Partner's. 

4.  Proof  of  Authority. 

D.  Effect  of  Failure  to  Appear. 

1.  Failure  of  Plaintiff  in  Error. 

2.  Failure  of   Defendant   in   Error. 

3.  Failure  of  Both  Parties. 

E.  Effect  of  Appearance  as  Waiver. 

F.  Withdrawal   and   Striking  Out  of  Appearance. 

XIV.   Dismissal  and  Reinstatement. 
A.  Dismissal. 

L  Grounds   for   Dismissal. 

a.  No    Actual    Controversy   Existing. 

(1)  In    General. 

(2)  Fictitious  or   Frivolous   Issues. 

(3)  Specific   Applications   of   General    Ruks. 

aa.  Controversy  between  Parties  on  Same  Side, 
bb.  Compromise  or   Settlement  of   Controversy. 

aaa.  Controversies  between  Private  Individuals. 

bbb.  Criminal    Prosecutions. 
cc.  Criminal    Prosecutions. 

aaa.   In  General. 

bbb.  Habeas    Corpus    Proceedings, 
dd.   Surrender  of  Letters   Patent, 
ee.   Reversal    of    Decree    Pending    Appeal, 
ff.   Suit  to  Try  Title  to  Office, 
gg.  Dissolution  of  Corporations, 
hh.  Compliance  with  Judgment  Pending  Appeal, 
ii.   Failure  to  Mature  Cause  or  Perfect  Appc.d. 
jj.  Proceedings  to  Test    Constitutionality    of    Stat- 
utes, 
kk.  Repeal  of  Statute  Pending  Appeal. 

(4)  Stipulations. 

(5)  Conteinpt   of   Court. 


368  APPEAL  AND  ERROR. 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  fourKi  in  Voi.  2.] 

(6)  Practice  and  Procedure. 
aa.  Rule  to   Show  Cause, 
bb.  Parties    to    Motion. 

(7)  Hearing  and  Determination. 

aa.  Evidence   in    Support   of   Motion, 
aaa.   In   General, 
bbb.  Extrinsic   Evidence. 
aaaa.  In  General, 
bbbb.  Affidavits. 
ccc.  Time    of    Introducing    Evidence, 
ddd.  \\'eight   and    Sufficiency   of   Evidence, 
bb.  Evidence  in  Rebuttal. 

(8)  Rehearing. 

b.  Want  of  Jurisdiction. 

c.  Premature  Appeals. 

d.  Want  of  Prosecution. 

e.  Faflure  to  Take  Appeal. 

f.  Failure  to  Specify  Errors  on  Record. 

g.  Failure  to  Annex  Bill  of  Exceptions  or  Statement  of  Facts, 
h.  Double  Appeals. 

i.  Hearing  and  Determination  of  Post  Belltwn  Transactions. 

2.  Dismissal  of  Cross  Appeals. 

3.  Dismissal  by  Agreement  or   Stipulation. 

4.  Right  of  Court  to  Annex  Conditions. 

5.  Simultaneous  Dismissal  and  Affirmance. 

6.  The  Motion. 

a.  Uniting  Motion  to  Affirm  with  Motion  to  Dismiss. 

(1)  In   General. 

(2)  When    Proper. 

(3)  Printing  the  Record. 

b.  Time  of  Making  Motion. 

(1)  Before  or  after  Return  Day  of  "V\>it. 

(2)  After    Entering    Appearance. 

(3)  Before  Regular  Call  of  Docket. 

(4)  Want  of  Citation  or  Irregularities  therein. 

(5)  At   Hearing   on   the    Merits. 
f6)  Laches. 

c.  Notice  of  Motion. 

( 1 )  Necessity    for. 

(2)  Requisites  and   Sufficiency. 

(3)  Briefs   of   Counsel. 

d.  Parties  to  Motion. 

(1)  Who    May    Make    Motion. 

(2)  Persons  Opposing  INIotion. 

e.  Hearing  of  Motion. 

(1)  Time  for  Hearing. 

(2)  Scope    of    Review. 

aa.  Matters  of  Fact  Alleged  in  Motion. 

bb.  Regularity  of   Writ   and   Fact   of  Jurisdiction 

cc.  Consideration   of    Merits   of   Controversy. 

(3)  Sufficiency  of  the  Motion  Papers. 

(4)  The  Record. 

aa.  Necessity    for. 

bb.  Printing  the  Record. 

7.  Waiver  of  Right  to  Dismiss. 
8-  The  Order  of  Dismissal. 

9.  Process. 


APPEAL  AND  ERROR.  369 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.] 

B.  Reinstatement. 

1.  Distinction  between  New  Appeal  and  Reinstatement. 

2.  Discretion   of   Court. 

3.  When   Allowed. 

4.  Stipulation  of  Parties. 

5.  At   WTiat   Stage   of   Proceedings. 

6.  The  Motion. 

7.  Review  of  Refusal  to  Reinstate. 

8.  Mandamus. 

XV.   Presumptions  on  Appeal. 

A.  In  Support  of  Proceedings  below. 

1.  In  General. 

2.  Duty  of  Plaintiff  in  Error  to  Show  Error. 

3.  As  to  Instructions. 

4.  As  to  Evidence 

a.  Admission   or   Rejection. 

b.  Loss  or  Destruction  of  Documentary  Evidence, 

c.  Execution  and  Proof  of  Documents. 

d.  Witnesses. 

e.  Sufficiency  of  Evidence. 

5.  As  to    Jurisdiction. 

a.  Of  Trial  Court. 

(1)  Distinction  between  Courts  of  General  and  Limited 

Jurisdiction. 

(2)  Courts  of  General  Jurisdiction. 

(3)  Courts  of  Limited  or  Special  Jurisdiction. 

(4)  Service  of  Process. 

b.  Of  Appellate  Court. 

6.  As   to   the    Pleadings. 

a.  In   General. 

b.  Plea. 

c.  Demurrers. 

d.  Replication. 

7.  As   to   the   Verdict. 

8.  Reference. 

B.  Presumptions  as  to  the  Record. 
XVI.   Reversible  Error. 

A.  Right  to  Complain  of  Error. 

1.  Parties   Not  Appealing. 

a.  In  General. 

b.  The  Appellee. 

2.  Errors  Affecting  Co-Partv. 

3.  The  Party  \Mio  Recovered  Judgment. 

B.  Statement  of  General   Principles. 

1.  Error  Must  Be  Prejudicial. 

a.  In  General. 

b.  Illustrative   Cases. 

(1)  Miscellaneous   Cases. 

(2)  Defects  and    Irregularities   in   the   Pleadings. 
aa.  In  General. 

bb.  Striking  O'lt  Pleadings. 

(3)  Errors  witli  Respect  to  the  Evidence. 
aa.  In    General. 

bb.  Admission    of    Hvidence. 
aaa.  In  General. 
1  U  s  Enc— 24 


370  APPEAL  AND  ERROR. 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.] 

bbb.  Trials  by  Court   without  Jury. 
cc.  Exclusion  of  Evidence. 

aaa.  Harmless  Error. 

bbb.  Reversible   Error, 
dd.  Witnesses. 

aaa.  In  General. 

bbb.  Competency. 

ccc.  Examination, 
ee.  Curing  Errors. 

(4)  Errors   with   Respect   to   the   Instructions. 
aa.  In  General. 

bb.   Inaccuracies   in   Expression. 
cc.  Giving   Instructions    More   Favorable   than   Re- 
quested, 
dd.  Invasion  of  Province  of  Jury. 

aaa.  In   General. 

bbb.  Direction  of  Verdict. 
ee.  Misleading   Instructions, 
ff.  Instructions  Not   Based  on  the  Evidence. 

(5)  Rule  in  Criminal   Cases. 

c.  Change  in  Law  Pending  Appeal. 

2.  Presumption  as  to  Prejudice. 

a.  In  General. 

b.  Illustrative  Cases. 

3.  Other   Kinds  of  Harmless  Errors  Considered. 

a.  Invited  Errors. 

(1)  In   General. 

(2)  Admission   or   Exclusion  of  Evidence. 

(3)  Instructions. 

(4)  Jurisdiction  of  Court. 

b.  Errors  Favorable  to  the  Complainant. 

(1)  In  General. 

(2)  Errors  with  Respect  to  the  Evidence. 

(3)  Errors  with  Respect  to  the  Instructions. 

(4)  Exceptions  to   General  Rule. 
C.  Waiver  of  Error. 

1.  Express  Waiver. 

2.  Implied  Waiver. 
XVII.   Hearing  and  Determination, 

A.  Stipulations. 

1.  In   General. 

2.  Withdrawal   from  Stipulations. 

B.  Order  in  Which  Causes  Should  Be  Heard. 

C.  Advancement  of  Causes. 

1.  Statutes  and  Rules  of  Court  Stated. 

2.  What   Causes   Advanced. 

a.  Questions  of  Public  Importance. 

(1)  In  General. 

(2)  Where  Execution  of  Revenue  Laws  Is  Enjoined  or 

Stayed. 

b.  Causes   Involving  Private  Interests. 

c.  Causes  Involving  Great  Hardships. 

d.  Jurisdiction  of  Court  below. 

(1)  Rules  of  Court   Stated. 

(2)  Appeals  from  Decree  on  IMerits. 

(3)  Writs  of  Error  to  State  Courts. 

(4)  The   Motion.     ' 


M 


APPEAL  AXD  ERROR.  371 

(Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  Z.] 

(5)   Hearing    and    Determination. 

e.  Criminal  Cases. 

f.  Where  a  State  Is  a  Party. 

g.  Causes  withotit   Merits. 

h.   Direct  Appeals  under  Act  of  March  3rd   1891. 
i.  Appeals  from  Interlocutory  Orders  under  §  7  of  Court  of 
Appeals  Act. 
3.  Hearing  and  Determination  of  Motion. 

a.  In  General. 

b.  Consolidation  of  Causes. 

c.  Briefs    and    Arguments. 

d.  The  Record. 

e.  Sufficiency  of  ]\lotion  Papers. 

f.  The   Order. 

D.  Arguments  of  Counsel. 

1.  Latitude. 

2.  Time  for  Hearing  Arguments. 

a.  Rules  of  Court. 

b.  Assigning  Days  for  Argument. 

c.  Neither  Party  Ready  at  Second  Term. 

3.  Oral  Arguments. 

4.  Effect  of  Failure  to  Submit  Argument. 

5.  Submission  of  Causes  on  Printed  Arguments. 

6.  Opening   and   Closing  Argument. 

E.  Submission  of  Cause. 

F.  Consolidation  of  Causes. 

G.  Continuance  or  Postponement  of  Hearing. 

1.  In  General. 

2.  Absence  of  Counsel. 

3.  Death  of  Counsel. 

4.  Abiding  the  Event. 

H.  \\'ithdra\val   or    Discontinuance. 
1-  In  General. 

2.  Grotmds   for   .Allowance. 

3.  Time  of  Allowance. 
1.  Double  Appeals. 

J.  Mandamus  to  Compel  Hearing. 

K.  Right  to  Introduce  Xew  Evidence  in  Appellate  Cmirt. 

1.  In  General. 

2.  Affidavits    to    Support    Motion    for    Xew    Trial. 

3.  Appeals  in  Equity. 

a.  In  General. 

b.  Limitations   of   General    Rule. 

4.  Admiralty  and   Prize  Causes. 
L.  Right  of  Parties  to  a  Decision. 

M.  Effect  of  Change  in  Law  Pending  Appeal. 
\.  In  General. 

2.  Repeal  of  Statutes. 

3.  \\'rit  of  Error  to  State  Court. 

N.  Effect  of  Destruction  or  Abolition  of  Court  Pending  Appeal. 
O.  Scope  of  Review. 

1.  In  General. 

2.  Cases  Dismissed  for  \\'ant  of  Jurisdiction. 

3.  Cases  Pending  in   Law  and   Equity. 

4.  Where  Part  Only  of  Decision  Is  .Appealed   from. 

5.  Matters  Unnecessary  to  Decide  in  This  Court. 

6.  Constitutional  Ouestions. 


372  APPEAL  AND  ERROR. 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  3.] 

7.  Matters  Not  Decided  below. 

8.  In  Particular  Cases. 

a.  Damages  for  Breach  of  Contract. 

b.  Appeals  from  Orders  Confirming  Foreclosure  Sales. 

c.  Appeal  from  Order  of  Revival. 

d.  Appeals  in  Habeas  Corpus  Proceedings. 

e.  Under  Circuit  Court  of  Appeals  Act. 

f.  Appeals   from  Indian   Territory. 

9.  Reasons  for  Decision. 

10.  Orders  Previously  Made  in  Cause. 

11.  Orders  Subsequent  to  Decision  Appealed   from. 

12.  Where  Jurisdictional  Amount  Is  Insufficient. 
P.  Opinions  of  Court. 

1.  Duty  to  Deliver. 

2.  Majority  of  Court. 

a.  Constitutional  Questions. 

b.  Questions  of  Reversal. 

3.  Certified  Copies  of  Opinions. 

4.  Recordation. 

5.  Disposition  of  Original  Opinion. 
Q.  Reversal. 

1.  In   General. 

2.  Grounds  for  Reversal. 

a.  In  General. 

b.  Want  of  Jurisdiction. 

c.  Admission  or  Exclusion  of  Evidence. 

d.  No  Actual  Controversy. 

e.  Errors  Cvired  by  the  Verdict  or  Statute  of  Jeofails. 

f.  Changing  Theory  of  Case  on  Appeal. 

g.  Reasons  for  Decision. 
h.  Instructions. 

i.  De  Minimis  Lex  Non  Curat, 
j.  Upon  Question  of  Costs. 
k.  Remittitur. 

3.  Reversal  of  Void  Judgments. 

4.  Reversal  by  Agreement  or  Stipulation. 

5.  Partial   Reversal. 

a.  In  General. 

b.  Rule  in  Criminal  Cases. 

6.  Judgments  by  Default. 

7.  Effect  of  Reversal. 

a.  In  General. 

b.  On  Judicial  Sales. 

8.  Rendition  and  Entry  of  Judgment. 

a.  Rendering  and  Ordering  Final  Judgment. 

(1)  In  General. 

(2)  In  Criminal  Cases. 

(3)  Appeals  in  Equity. 

(4)  Special  Findings. 

b.  Necessity  for  Presence  of  Parties. 

c.  Entry  Nunc  Pro  Tunc. 

9.  Restitution. 

a.  Rieht  to  Restitution. 

(1)  In  General. 

(2)  In  Case  of  Reversals  for  Want  of  Jurisdiction^ 

(3)  In  Prize  Causes. 

I  b.  Who  Liable  to  Make  Restitution. 


APPEAL  AND  ERROR.  373 

(Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.] 

(1)  In  General. 

(2)  Agents. 

(3)  Assignees  of  Judgments. 

(4)  The  United  States. 

(5)  Third  Parties  or  Strangers. 

(6)  Purchasers  at  Judicial  Sales. 

c.  Extent  of  Restitution. 

d.  Proceedings  to  Obtain  Restitution. 

(1)  Scire  Facias. 

(2)  Summary   Proceedings  by  Motion. 

(3)  Assumpsit. 

(4)  Attachment  for  Contempt. 

e.  The   Motion. 
R.  Affirmance. 

1.  In  General. 

2.  Grounds   for  Affirmance. 

a.  In  General. 

b.  \Miere  Proceedings  below  Were  Correct. 

(1)  In  General. 

(2)  Error  to  State  Court. 

c.  Where  Record  Is  Defective. 

d.  Causes  Tried  by  the  Court. 

e.  Where  Errors  below  Were  Committed  by  Jury. 

f.  Where  Writ  of  Error  Is  Frivolous  or  Taken  for  Delay. 

g.  Division  of  Opinion. 

(1)  In  General. 

(2)  Applications  of  Rule  in  Particular  Cases, 
aa.  Division  on  Questions  of  Jurisdiction. 

bb.  Division  on  Alotion  in  Arrest  of  Judgment, 
cc.  Division  on  Motion  for  Rehearing, 
dd.  Division  in  Case  of  Special  Verdict. 
ee.  Division  in  Case  of  Demurrer. 

(3)  Powers  of  Appellate  Court. 
aa.  In  General. 

bb.  Right  to  Grant  New  Trial. 
'  (4)   Force  and  Effect  of  Judgment. 

aa.  As  an   Estoppel. 
bb.  The  Rule  of  Precedents  or  S*are  Deo-iS. 

(5)  Necessity   for  Entry  of  Judgment. 

(6)  Opinion  of  Court. 

(7)  Costs. 

(8)  Reargument  or  Rehearing. 
h.  No  Actual  Controversy  Existing, 
i.  Want  of  Jurisdiction. 

3.  Rule  in  Territorial  Courts. 

4.  Affirmance  by  Agreement  or  Stipulation. 

5.  Conditional   Affirmance. 

6.  Simidtaneous  Affirmance  and  Reversal. 

7.  Affirmance  Nunc   Pro  Tunc. 

8.  Hearing  and  Determination  of  Alotion. 

9.  Interest  and  Damages  on  Affirmance. 

a.  Statutes  and  Rules  of  Court  Stated. 

b.  Construction  of  Rules. 

c.  Where  Writ  Is  Sued  Out  Merely  for  Delay. 

(1)   Writs  of  Error. 

(?)   Appeals. 

(3)   Instances  of  Proceedings  Taken  for  Delay. 


374  APPEAL  AND  ERROR. 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "'Appeal  and  Error,"  will  be  found  in  Vol.  8,) 

d.  Decrees  in  Equity. 

e.  Determination  of  Riglit. 

f.  Agreement  or  Stipukuion  of  Parties. 

g.  Measure  and  Elements  of  Damages. 

( 1 )  Measure. 

(2)  Elements. 

h.  Computation  of  Damages. 
i.  Interest. 

(1)  Statutory  Provisions. 

(2)  Right  to  Recover, 
aa.  In  General. 

bb.  Rule  in  Pennsylvania. 

cc.  Cases  Removed  by  Appeal. 

dd.  Rule  in  Chancery  and  Admiralty. 

ee.  On  Judgment  of  This  Court. 

ff.  Determination  of  Right. 

(3)  Computation  of  the  Interest. 

aa.  Time  from  and  to  Which  Computed, 
bb.  Rate  of  Interest. 

aaa.   Statutes  and  Rules  of  Court  Stated. 

bbb.  Object  of  Rule. 

ccc.  Rules  as  to  Decrees  in  Chancery. 

ddd.  Rule  as  to  Cases  in  Admiralty. 

(4)  Amendments. 

(5)  Mandate. 

10.  Power  to  Change  Judgments  of  Dismissal  to  Judgments  of 
Affirmance. 
S.  Modification. 
T.  Opening,  Amending  and  Vacating. 

1.  Control  of  Court  over  Its  Judgments. 

a.  In  General. 

b.  At  Subsequent  Term. 

2.  Grounds  for  Amending  and  Vacating. 
U.  Force  and  Efifect  of  Decision. 

1.  On  Second  Appeal. 

a.  In  General. 

b.  Application  of  Rule  to  Decrees  in  Chancery.  , 

c.  Application  of  Rule  to  Judgments  by  Divided  Courts. 

d.  Persons  Concluded. 

e.  Matters  Concluded. 

(1)  Jurisdictional  Matters. 

(2)  Matters  Unnecessary  to  the  Decision. 

(3)  Priority  of  First  Judgment. 

(4)  Allowance  of  Interest  and  Damages. 

(5)  How  Determined.  ' 

f.  When  Second  Appeals  Allowed. 

2.  Operation  of  Appealed  Judgment  as  an  Estoppel.  .'. 

3.  Rule  of  Precedents  or  Stare  Decisis. 
XVIII.    Costs. 

A.  Nature  and  Extent  of  Right  to  Costs. 

1.  Discretion  of  Court. 

2.  On  Affirmance. 

a.  In  General. 

b.  Affirmance  upon  Agreement  of  Parties. 

3.  On  Reversal. 

a.  In  General. 

b.  For  Want  of  Tnrisdiction. 


APPEAL  AND  ERROR.  375 

[Divisions  V  to  XVIII,  inclusive,  of  the  title  "Appeal  and  Error,"  will  be  found  in  Vol.  2.] 

c.  Where  Judgment  Is  Affirmed  in    Part    and  Reversed  or 

Modified  in  Part. 

d.  Where  Remittitur  Is  Entered. 

e.  Apportionment. 
f:  Enforcement. 

g.  Entry  of  Judgment  below. 

4.  On  Dismissal. 

a.  In  General. 

b.  For  Want  of  Prosecution. 

(1)  In  General. 

(2)  Failure  to  Appear. 

c.  For  Want  of  Jurisdiction. 

(1)  In  General. 

(2)  Exceptions  to  General   Rule. 

d.  No  Actual  Controversy  Existing. 

e.  Dismissal   upon   the  ^lerits. 

5.  On  ^Modification. 

B.  Right  to  and  Liability  for  Costs. 

1.  Who  Entitled  to  Costs. 

2.  Who  Liable  for  Costs. 

a.  In  General. 

b.  Appeals  in  Forma  Pauperis. 

3.  The  United   States. 

4.  As  Affected  by  Negligence  or  Omission  of  Party. 

5.  Where  Judgment  wSilent  as  to  Costs. 

6.  Assignees. 

C.  Particular  Items. 

1.  Printing. 

a.  In  General. 

b.  Printing  the   Record. 

c.  Printing  Briefs. 

d.  Printing  Objections. 

2.  Docket  Fees. 

3.  Counsel  Fees. 

4.  Transcript  or  Copy  of  the  Record. 

D.  Taxation. 

1.  In  General. 

2.  Time  of  Taxing  Costs. 

3.  Re-Taxation. 

E.  Proceedings  for  Enforcement. 

F.  Reversal. 

CROSS  REFERENCES. 

See  the  titles  Bill  of  Review  ;  Certiorari  ;  Exceptions.  Bill  of,  and  State- 
ment OF  Facts  on  Appeal  ;   Supersedeas  and  Stay  of  Proceedings. 

As  to  review  of  proceedings  in  justice's  court,  see  the  title  Justices  of  the 
Peace.  As  to  review  of  bankruptcy  proceedings,  see  the  title  Bankruptcy.  As 
to  review  of  admiralty  proceedings,  see  the  title  Admiralty,  ante,  p.  119.  As  to  the 
mandate  of  the  appellate  court,  and  when  proceedings  will  be  remanded  for  further 
proceedings  in  the  court  below,  see  the  title  Mandate  and  Proceedings  Thereon. 
As  to  review  of  revenue  causes,  see  the  title  Revenue  Laws.  As  to  review  of 
condemnation  proceedings,  see  the  title  Eminent  Domain. 

I.   Right  to  Appellate  Review. 

A  party  to  a  suit  has  no  vestetl  right  to  an  appeal  or  a  writ  of  error  from  one 
court  to  another.  Such  a  privilege  once  granted  may  be  taken  away,  and  if  taken 
away,  pending  proceedings  in  the  appellate  court  stop  just  where  the  rescinding 


376 


APPEAL  AND  ERROR. 


act  finds  them,  unless  special  provision  is  made  to  the  contrary.^  And  if  at  the 
time  of  final  judgment  there  is  no  right  of  appeal  whatever,  a  party  cannot 
evoke  a  new  one  by  filing  a  petition  for  rehearing,  even  if.  by  accident,  it  is  kept 
along  until  an  act  giving  an  appeal  is  passed. 2 

II.  The  Various  Remedies  Considered. 
A.  In  General. — There  are  two  principal  methods  known  to  English  jurispru- 
dence, and  to  the  jurisprudence  of  the  federal  courts,  by  which  cases  may  be  re- 
moved from  an  inferior  to  an  appellate  court  for  review.  These  are  the  writ  of 
error  and  the  appeal.  There  may  be,  and  there  are.  other  exceptional  modes,  such 
as  the  writ  of  certiorari  at  common  law,  and  a  certificate  of  division  of  opinion 
under  the  acts  of  congress.  The  appeal,  which  is  the  onl}-  mode  by  which  a  de- 
cree in  chancery  or  in  admiralty  can  be  brought  from  an  inferior  federal  court 
to  this  court,  does  bring  up  the  whole  case  for  re-examination  on  all  the  merits, 
whether  of  law  or  fact,  and  for  consideration  on  these,  as  though  no  decree  had 
ever  been  rendered.  The  writ  of  error  is  used  to  bring  up  for  review  all  other 
cases,  and  when  thus  brought  here,  the  cases  are  not  open  for  re-examination  on 
their  whole  mefits,  but  every  controverted  question  of  fact  is  excluded  from  con- 
sideration, and  only  such  errors  as  this  court  can  see  that  the  inferior  court 
committed,  and  not  all  of  these,  can  be  the  subject  of  this  court's 
corrective  power.^  The  regulation  of  the  appellate  power  of  this  court  being  con- 
ferred upon  congress,  and  congress  having  given  an  appeal  or  writ  of  error  in 
only  certain  specified  cases,  the  implication  is  irresistible,  that  those  errors  and 
irregularities,  which  can  only  be  reviewed  by  appeal  or  writ  of  error,  cannot  be 
reviewed  in  this  court  in  any  other  cases  than  those  in  which  those  processes  are 
given.* 


1.  Baltimore,  etc..  R.  Co.  v.  Grant,  98 
U.  S.  398,  401,  25  L.  Ed.  231;  Freeborn  v. 
Smith,  2  Wall.  160,  173,  17  L.  Ed.  923; 
United  States  v.  Klein,  13  Wall.  128,  20 
L.    Ed.    519. 

A  party  to  a  suit  has  no  vested  right  to 
an  appeal  or  a  writ  of  error  from  one 
court  to  another.  Such  a  privilege  once 
granted  may  be  taken  away,  and  if  taken 
away,  pending  proceedings  in  the  ap- 
pellate court  stop  just  where  the  rescind- 
ing act  finds  them,  unless  special  provi- 
sion is  made  to  the  contrary.  The  Re- 
vised Statutes  gave  parties  the  right  to 
remove  their  causes  to  this  court  by  writ 
of  error  and  appeal,  and  gave  us  the  au- 
thority to  re-examine,  reverse,  or  affirm 
judgments  or  decrees  thus  brought  up. 
The  repeal  of  that  law  does  not  vacate  or 
annul  an  appeal  or  a  writ  already  taken  or 
sued  out,  but  it  takes  away  our  right  to 
hear  and  determine  the  cause,  if  the  mat- 
ter in  dispute  is  less  than  the  present 
jnrisdictional  amount.  Railroad  Co.  v. 
Grant,  98  U.  S.  398,  401,  25  L.  Ed.  231; 
Sherman  v.  Grinnell,  123  U.  S.  679,  31  L. 
Ed.    278. 

An  appeal  which  had  been  allowed  from 
a  district  court  having  circuit  court  pow- 
ers dismissed;  it  having  been  allowed  just 
after  an  act  had  passed,  which  created  a 
circuit  court  for  the  same  district,  and 
which  repealed  so  much  of  any  act  as 
gave  to  the  district  court  circuit  court 
powers.  The  Lucy,  8  Wall.  307,  19  L. 
Ed.  394. 

2.  Harrison  7'.  Magoon.  205  U.  S.  501, 
503.    51    L.    Ed.    900. 

3.  Murdock   v.    Memphis,   20   Wall.    590, 


621,   22   L.   Ed.    429. 

"The  appellate  power  of  this  court  is 
broader  than  its  original,  and  generally — 
that  is.  in  most  cases — it  may  be  said  that 
the  issue  of  a  writ  of  habeas  corpus  by 
us,  when  it  is  directed  to  one  of  our  in- 
ferior courts,  is  an  exercise  of  our  appel- 
late jurisdiction.  Without  going  at  large 
into  a  discussion  of  its  extent,  it  is  sufifi- 
cient  for  the  present  to  notice  the  fact 
that  the  exercise  of  the  appellate  power  is 
not  limited  by  the  constitution  to  any  par- 
ticular form  or  mode.  It  is  not  alone  by 
appeal  or  by  writ  of  error  that  it  may  be 
invoked.  In  Re  Metzger,  5  How.  176,  12 
L.  Ed.  104,  it  was  indeed  ruled  that  an 
order  of  commitment  made  by  a  district 
judge,  at  chambers,  cannot  be  revised  here 
by  habeas  corpus.  But  such  an  order  was 
reviewable  in  no  form;  and  besides,  the 
authority  of  that  case  has  been  much 
shaken.  In  re  Kaine,  14  How.  103.  14 
L.  Ed.  345;  Ex  parte  Yerger.  8  Wall.  85, 
19  L.  Ed.  332."  Ex  parte  Virginia,  100 
U.    S.    339,    341,    25    L.    Ed.    676. 

4.  Ex  parte  Parks,  93  U.  S.  18,  21,  23 
L.    Ed.    787. 

By  the  constitution  of  the  United 
States,  the  supreme  court  possesses  no 
appellate  power  in  any  case,  unless  con- 
ferred upon  it  by  act  of  congress;  nor 
can  it,  when  conferred,  be  exercised  in 
any  other  form,  or  by  any  other  mode  of 
proceeding,  than  that  which  the  law  pre- 
scribes. Barrv  f.  Mercein.  5  How.  103. 
119,    12    L.    Ed.   70. 

V.   Curry,   6   How.   106,   12   L.   Ed.  363,  t!ic 
court   held,   tnat   wnere   tue  puwci    ^i    i.ie 


APPEAL  AND  ERROR. 


377 


B.  Appeal  and  Writ  of  Error.— 1.  Appeal— a.  Origin  and  Nature.— An 
appeal  was  a  civil-law  proceeding  in  its  origin.s  It  was  unknown  to  the  common 
law.  In  the  civil  law  and  equity  jurisprudence,  its  object  was  to  take  the  whole 
case  to  the  higher  tribunal,  there  to  be  tried  and  determined  de  novo,  upon  the 
issues  between  the  parties,  as  though  the  cause  had  originated  in  the  appellate 
court.^ 

b.  Definitions  and  Distinctions. — Definition. — An  appeal  is  the  removal  of  a 
cause  from  an  inferior  to  a  superior  court."  It  has  been  decided,  by  the  supreme 
court,  that  the  term  appeal  in  the  judiciary  act  of  1789  must  be  understood  in  its 
technical  sense  as  expressive  of  the  civil-law  mode  of  removing  a  cause  to  a 
higher  tribunal,  and  not  in  its  popular  sense  as  descriptive  of  appellate  jurisdic- 

court    to    hear    and    determine    a    case    is       Cranch    212,   2   L.   Ed.   85. 

5.  United  States  v.  Guinet,  2  Dall.  321, 
1  L.  Ed.  398;  United  States  v.  Goodwin, 
7  Cranch  108,  3  L,.  Ed.  284;  The  San 
Pedro,  2   Wheat.   132.   4   L.    Ed.   202. 

6.  An  appeal  is  a  process  of  civil-law 
origin,  and  removes  causes,  entirely  sub- 
jecting the  facts  as  well  as  the  law  to 
review  and  retrial;  but  a  writ  of  error  is 
a  process  of  common-law  origin,  and  it 
removes  nothing  for  re-examination  but 
the  law.  Wiscart  v.  Dauchy,  3  Dall.  321, 
327.  1  L.  Ed.  619,  quoted  with  approval  in 
United  States  z'.  Goodwin.  7  Cranch  108. 
110,  3   L.   Ed.  284. 

7.  United  States  v.  Guinet,  2  Dall.  321, 
1  L.  Ed.  398;  United  States  v.  Goodwin, 
7  Cranch   108,  110,  3  L.  Ed.  284. 

Appeal  in  criminal  cases. — In  Louisville, 
etc.,  R.  Co.  V.  Clarke,  152  U.  S.  230,  239, 
38  L.  Ed.  422,  it  is  said:  "An  appeal, 
when  spoken  of  as  a  criminal  prosecution, 
denoted,  according  to  Blackstone.  an  ac- 
cusation by  a  private  subject  against  an- 
other for  some  heinous  crime — a  'private 
process  for  the  punishment  of  public 
crimes.'  having  its  origin  in  a  custom,  de- 
rived from  the  ancient  Germans,  of  allow- 
ing a  pecuniary  satisfaction,  called  a 
weregild,  to  the  party  injured  or  his  re- 
lations, 'to  expiate  enormous  offenses.' 
4  Bl.  Com.  312,  313.  Bacon  defines  it  to 
be  a  'vindictive'  action,  'the  party's  private 
action  seeking  revenge  for  the  injury 
done  him.  and,  at  the  same  time,  prose- 
cuting for  the  Crown  in  respect  of  the 
offense  against  the  public'  Bacon 
Abridg.,  tit..  Appeal.  These  appeals  could 
be  brought  'previous  to  an  indictment  and 
if  the  appellee  be  acquitted  thereon,  he 
could  not  be  afterwards  indicted  for  tlic 
same  offense.'  4  Bl.  Com.  315;  Comyn's 
Dig.,  tit.  Appeal.  G.  11.  16.  While, 
during  the  continuance  of  the  custom  re^ 
ferred  to,  a  process  was  given  for  recover- 
ing the  weregild  by  the  party  to  whom 
it  was  due,  'it  seems  that  when  these 
offenses  by  degrees  grew  no  longer  re- 
deemable, the  private  process  was  still 
continued,  in  order  to  insure  the  inflic- 
tion of  punishment  on  the  offender, 
though      the      party      was      allowed       no 


conferred  by  acts  of  congress,  and  the 
same  authority  which  gives  the  jurisdic- 
tion points  out  the  inanner  in  which  it 
shall  be  brought  before  us,  we  have  no 
power  to  dispense  with  the  provisions  of 
the  law,  nor  to  change  or  modify  thein. 
Cited  in  Carroll  v.  Dorse3%  20  How.  204, 
15  L.   Ed.   803. 

Right  of  court  to  create  other  processes. 
— A  writ  of  error  does  not  lie  from  the 
supreme  court  of  the  United  States  to 
the  general  court  for  the  territory  north- 
west of  the  Ohio.  "The  very  existence 
of  the  court  whose  judgment  is  com- 
plained of  is  derived  from  the  United 
States.  The  laws  adopted  for  the  North- 
western Territory  derive  their  whole  ob- 
ligatory effect  from  the  ordinance  of  the 
old  congress,  and  are,  in  fact,  laws  of 
the  United  States,  although  copied  from 
state  laws.  All  power  and  authority  ex- 
ercised in  that  territory  have  emanated 
from  the  United  States;  and  all  offenses 
there  committed  are  against  the  authority 
of  the  United  States.  If.  then,  this  is  a 
case  by  the  constitution  cognizable  by  the 
judicial  authority  of  the  United  States; 
if  by  the  constitution,  this  court  has  ap- 
pellate jurisdiction  in  all  such  cases,  and 
if  this  case  is  not  within  any  exception 
made  by  the  constitution,  or  by  any  act 
of  congress,  nothing  is  wanting  but  to 
devise  a  mode  to  bring  the  cause  before 
this  court.  The  writ  of  errrr  is  the  com- 
mon and  well-known  process  in  like  cases, 
and  by  the  fourteenth  section  of  the 
judiciary  act  of  1789,  every  court  of  the 
United  States  is  expressly  authorized  "to 
issue  writs  of  scire  facias,  habeas  cornus. 
and  all  other  writs  not  specially  provided 
for  by  statute,  which  may  be  necessary 
for  the  exercise  of  their  respective  juris- 
dictions, and  agreeable  to  the  principles 
and  usages  of  law."  If,  then,  the  court 
has  jurisdiction,  no  difficulty  can  occur  as 
to  a  mode  of  exercising  it.  The  court 
nuashed  the  writ  of  error  on  the  ground 
that  the  act  of  congress  had  not  au- 
thorized an  appeal  or  writ  of  error  from 
the  general  court  of  the  Northwestern 
Territory,  and.  therefore,  although  from 
the    manifest    errors    on    the    face    of    the 


record,  they  felt  every  disposition  to  sup-  pecuniary   compensation    for    the    offense, 

port    the    writ     of    error,     they    were     of  Bk.    4.    314.      By    statute    of    59    Geo.    3,    c. 

opiir'on    they    could    P'^t    tal-i-    cofuizTirc  46,    appeals    of    murder,    treason,    felony, 

of     the     case."       Clarke    v.    Bazadone,     1  and    other    offenses    were    abolished.** 


378 


APPE/iL  AXD  ERROR. 


tion  without  regard  to  the  manner  in  which  the  cause  was  transmitted  to  that  ju- 
risdiction.^ 

Cistinctions. — Appeals  are  distinguished  from  writs  of  error  in  that  the  for- 
mer subjects  both  the  facts  and  the  law  to  a  re-examination,  while  the  latter 
is  confined  to  a  re-examination  for  review  of  questions  of  law.^ 

c.  Proceedings  Reviewable  by  Appeal — (1)  Proceedings  in  Equity — aa.  In 
General. — A  writ  of  error  in  equity  proceedings  was  given  by  the  act  of  1789.^'^ 
But  much  inconvenience  and  embarrassment  resulted  from  the  use  of  this  process 
to  remove  decrees  in  chancery,  and  so  it  was  repealed  by  the  act  of  March  2,  1803, 
and  the  ordinary  mode  of  appeal  substituted  in  the  place  of  the  writ  of  error. ^^ 
And  ever  since  cases  of  chancery  jurisdiction  have  been  removable  to  tiiis  court 
by  technical  appeal  alone. ^^     fhe  remedy  by  appeal  in  its  original  sense  was  con- 


8.  United  States  v.  Goodwin,  7  Cranch 
108,  110,  3  L.  Kd.  284;  United  States  v. 
Tenbroek,  2  Wheat.  247,  248,  4  L.  Ed. 
231 

9.  United  States  v.  Guinet.  2  Dall.  321, 
1  L.  Ed.  398;  United  States  v.  Goodwin, 
7  Cranch  108,  110.  3  L-  Ed.  284;  Dean  v. 
Mason,  20  How.  198,  15  L.  Ed.  876;  Wis- 
cart  V.  Dauchy,  3  Dall.  321,  327,  1  L.  Ed. 
619.  See  post,  "Distinction  between  Ap- 
peals and  Writs  of  Error  as  Regards  the 
Scope   of  the   Remedies,"   II,   B,   9. 

10.  Proceedings  in  equity. — Hemmen- 
way  V.  Fisher,  20  How.  255.  ]5  L.  Ed.  799. 

Originally,  decrees  in  equity  and  ad- 
miralty were  brought  here  for  re-examina- 
tion by  a  writ  of  error,  under  the  twenty- 
second  section  of  the  judiciary  act.  This 
was  changed  by  the  act  of  March  3,  1803. 
by  which  appeals  were  substituted  in 
place  of  the  writs  of  error  in  cases  of 
equity,  admiralty,  and  prize;  but  the  act 
provides  "that  the  appeals  shall  be  sub- 
ject to  the  same  rules,  regulations,  and 
restrictions  as  are  prescribed  in  law 
in  cases  of  writs  of  error.  The  Protector, 
11  Wall.  82,  86,  20  L.  Ed.  47. 

This  provision  in  the  act  of  1789  was 
repealed  by  the  act  of  March  2,  1803,  and 
the  ordinary  mode  of  appeal  substituted 
in  the  place  of  the  writ  of  error.  Hem- 
menway  v.  Fischer,  20  How.  255,  15  L. 
Ed.    799. 

11.  Kenaday  v.  Sinnott,  179  U.  S.  606. 
613,  45  L-  Ed.  339,  citing  and  approving 
Ormsby  v.  Webb.  134  U.  S.  47,  33  L.  Ed. 
805;  Hayes  v.  Fischer,  102  U.  S.  121,  26 
L.  Ed.  95;  Bessette  v.  Conkey,  194  U.  S. 
324,  48  L.  Ed.  997,  reaffirmed  in  In  re 
Lewis,  202   U.   S.   614,  50  L.   Ed.   1172. 

The  writ  of  error,  from  its  form,  and 
the  principles  which  govern  it.  is  pecul- 
iarly appropriate  to  judgments  at  com- 
mon law,  and  is  inconvenient  and  em- 
barrassing when  used  as  process  to  re- 
move decrees  in  chancery  and  admiralty 
to  a  superior  court.  The  ordinary  and 
uniform  mode  of  removing  such  decrees 
to  the  appellate  and  revising  court,  wher- 
ever such  jurisdictions  have  been  estab- 
lished, has  been  by  appeal,  with  the  single 
exception  of  this  act  of  congress.  And 
in  order  to  remove  the  inconvenience  and 
errjbarrassment  which  this  provision  in  the 
act  of  1789  created,  it  was  repealed  by  the 
act    of    March    2,    1803,    and    the    ordinary 


mode  of  appeal  substituted  in  the  p*ace  of 
the  writ  of  error.  Hemmenway  v. 
Fischer,  20  How.  255,  15  L.   Ed.  799. 

Where  a  writ  of  error  was  brought  to 
revise  a  decree  in  a  suit  in  equity  ren- 
dered in  the  United  States  circuit  court, 
where  the  defendant  in  error  consents  to 
the  dismissal  of  the  writ,  this  court  will 
issue  its  mandate  that  if  the  plaintiffs  in 
error  seasonably  take  and  prosecute  an 
appeal  from  that  rendered  by  the  circuit 
court,  leave  will  be  granted  them  to  file  as 
part  of  the  return  on  such  appeal  the 
transcript  of  the  record  in  this  cause. 
Williams  v.  Passumpsic  Sav.  Bank,  141  U. 
S.   249.   35   L.    Ed.   740. 

12.  Phillips  V.  Preston,  5  How.  278,  289, 
12  L.  Ed.  152,  citing  Livingston  v.  Story, 
9  Pet.  632,  9  L.  Ed.  255;  McCollum  v. 
Eager,  2  How.  61.  64.  11  L.  Ed.  179;  Bay- 
ard V.  Lombard,  9  How.  530.  13  L.  Ed. 
245;  The  San  Pedrc^.  2  Wheat.  133.  4  L  Ed. 
202,  205;  Hayes  v.  Fischer,  102  U.  S.  121, 
26  L.  Ed.  95;  Marin  v.  Lalley,  17  Wall. 
14.  21  L.  Ed.  596;  Surgett  V.  Lapice,  8 
How.  48,  12  L  Ed.  982;  Idaho,  etc..  Land 
Co.  r.  Bradbury,  132  U.  S.  509,  33  L  Ed. 
433;  Erwin  v.  Lowry.  7  How.  172.  183,  12 
L.    Ed.    655. 

Cases  in  equity  come  here  from  the  cir- 
cuit courts,  and  the  district  courts  sitting 
as  circuit  courts,  by  appeal,  and  not  by 
writ  of  error.  Rev.  Stat.,  §  692.  Blease 
V.  Garlington,  92  U.   S.  1,  4,  23  L.  Ed.  521. 

Errors  in  equity  suits  can  only  be  cor- 
rected in  this  court  on  appeal,  and  that 
after  a  final  decree.  It  cannot  be  brought 
here  for  review  by  writ  of  error.  Hayes 
V.   Fischer.  102  U.  S.  121,  26  L.  Ed.  95. 

Proceedings  in  chancery  can  only  be 
reviewed  by  an  appeal.  Surgett  v.  Lapice, 
8  How.  48,  12  L.  Ed.  982,  distinguishing 
United  States  v.  King,  3  How.  773,  11  L 
Ed.  824,  7  How.  833.  884.  12  L.  Ed.  934, 
on  the  ground  that  in  this  case  the  suit 
was  in  the  nature  of  an  ejectment  in  the 
court  of  common  law,  and  was  therefore 
strictly   an   action    at   law. 

"We  dismiss  every  day  (chancery  and 
admiralty)  cases  brought  here  by  writ  of 
error  to  a  circuit  court,  because  they  can 
only  be  brought  here  by  appeal,  and  the 
writ  of  error  does  not  extend  to  them. 
The  SanPedro,  2  Wheat.  132,  4  L.Ed.  202; 
McCollum  V.  Eager,  2  How.  61,  11  L  Ed. 
179;  Minor  v.  Tillotson,  2  How.  392,  11  L 


APPEAL  AND  ERROR.  379 

fined  to  causes  in  equity,  ecclesiastical,  and  admiralty  jurisdiction.^-'^ 

On  the  other  hand  where  a  proceeding  is  of  a  mixed  character,  partak- 
ing more  of  the  nature  of  a  proceeding  in  ecjuity,  than  one  at  law,  it  may.  be 
brought  here  by  writ  of  error.  A  writ  of  error  in  equity  proceedings  was  allowed 
by  the  twenty-second  section  of  the  judiciary  act  of  17S9.^* 

bb.  Particular  Instances  Considered. — When  a  proceeding  below  is  in  its  es- 
sential nature  a  foreclosure  of  a  mortgage  in  chancery,  an  appeal  is  the  only  proper 
mode  of  bringing  it  here.^^ 

An  executory  process,  according  to  the  Civil  Code  of  Louisiana,  made 
without  previous  notice,  for  the  seizure  and  sale  of  mortgaged  land  to  pay  the 
mortgage  debt,  though  in  summary  form,  is  in  the  nature  of  a  bill  in  equity  for 
the  foreclosure  of  a  mortgage,  and  clearly  belongs  on  the  equity  side  of  that  court. 
Therefore,  it  must  be  removed  to  this  court  by  appeal  and  not  by  writ  of  error. ^® 

Causes  in  the  court  of  private  land  claims  are  in  effect  equity  causes  and 
brought  to  this  court  by  appeal.''' 

Where  an  "action  of  jactitation"  or  "slander  of  title"  was  brought 
in  a  state  court  of  Louisiana  and  removed  into  the  circuit  court  of  the  United 
States  by  the  defendant,  who  was  a  citizen  of  Mississippi  (the  persons  who 
brought  the  action  being  in  possession  of  the  land  under  a  legal  title),  and  the 
defendant  pleaded  in  reconvention,  setting  up  an  equitable  title,  and  the  court  be- 
low decreed  against  the  defendant,  it  was  proper  for  him  to  bring  the  case  to 
this  court  by  appeal,  and  not  by  writ  of  error  on  the  ground  that  "that  was  not  an 
action  of  title  to  quiet  the  plaintiff  in  possession  of  his  land,  but  was  a  petitory  ac- 
tion brought  by  the  United  States  to  recover  land  which  was  in  the  possession  of 
the  defendant,  and  to  which  the  United  States  claimed  a  legal  title.  The  suit 
was  in  the  nature  of  an  ejectment  in  a  court  of  common  law.  and  was  therefore 
strictly  an  action  at  law,  and  in  no  respect  analogous  to  a  proceeding  in  equity 
to  remove  a  cloud  from  the  title  of  a  party  who  not  only  holds  the  legal  title,  but 
is  also  actually  in  possession  of  the  land  in  dispute." ^^ 

A  suit  brought  to  enforce  a  mechanic's  lien  created  by  the  statutes  of  a 
territory,  which  autliorize  the  court  in  such  a  suit  to  order  both  a  sale  of  the  real 
estate  that  is  subject  to  the  lien,  and  judgment  against  the  owner  thereof  for  any 
deficiency  in  the  proceeds  of  the  sale,  "in  like  manner  and  with  like  effect  as  in 
actions  for  the  foreclosure  of  mortgages,"  is  in  the  nature  of  a  suit  in  equity, 
and  is  therefore  reviewable  by  appeal  and  not  by  writ  of  error. '^ 

Ed.    312;  Brewster   v.  Wakefield.  22    How.  missed.     'Walker  z'.  Dreville.  12  Wall.  440, 

118,  16  L.  Ed.  301."  Murdock  v.  Memphis,  20    L.    Ed.    429. 

20  Wall.   590.  622,  22  L.   Ed.   429.  16.    Fleitas  v.  Richardson,  147  U.  S.  538, 

13.    United   States  v.   Coe,   155  U.   S.   76.  37   L.    Ed    272,   citing   Brewster   z^    Wake- 

83.  39  L.   Ed.  76.  .^'.f^;    ^2    How.    118,    128     16    E-    Ed.    301; 

,.      ^      .            T                r-    u           i^o     1QO  Walker   v.    Dreville,    12    Wall.    440.    20    L. 

i.>  t'    ?ryi/-    ^°^'^-                          '         '  Ed.    429;    Marin    v.    Lalley,    17    Wall.    14. 

13  U  ltd.  655.  oj    L     Ed.    596;    Idaho,   etc.,    Land    Co.    v. 

15.    Marin  v.  Lalley,   17  Wall.   14.  21   L.  Bradbury,   132    U.    S.    509,    515.   33    L.    Ed, 

Ed.    596,    citing    Walker     t-.     Dreville,      12  433, 

Wall.  440,  20  L.   Ed.  429,  and  distinguish-  17.    As   observed   by  Chief  Justice   EUs- 

ing   Levy  v.   Fitzpatrick.   15    Pet.   167,   170,  worth,  in  Wiscart  v.  Dauchy,  3   Dall.  321, 

10   L.   Ed.   699.  1   L.  Ed.  619:     "An  appeal  is  a  process  of 

A  proceeding  in   the  nature   of   a  bill   in  civil    law    original    and    removes   a   cause 

equity  to  foreclose   a  mortgage,   in   which  entirely;    subjecting   the    fact,    as    well    as 

the  facts  as  well  as  the  law  are  to  be  de-  the  law  to  a  review  and  retrial;  but  a  writ 

cided  by  the   court,   is   to   be   brought   be-  of  error  is  a  process  of  common  law  and 

fore    this    court    by    an    appeal    and    not   a  it    removes    nothing    for    examination    but 

writ  of  error.     Brewster  v.   Wakefield,   22  the    law."      United    States   v.    Coe,    155    U, 

How.  118,   16  L.   Ed.  301,   304.  S.    76,   83,   39   L.    Ed.   76. 

A   proceeding   which   is    in    its    essential  18.    Surgett  v.  Lapice,  8  How.  48,  65.  12 

n?iture   a   foreclosure   of   a   mortgage   as   a  L.    Ed.    982,   distinguishing    United    States 

mortgage  is  foreclosed  in  a  court  of  chan-  v.  King,  3  How.  773,  11   L.  Ed.  824;  S.  C, 

eery,  is  a  suit  in  equity,  by  whatever  name  7   How.  833,  844.  12  L.  Ed.  934. 

it  may  be  called;  and  when  brought  here  19.    Idaho,   etc..   Land   Co.   v.   Bradbury, 

by   writ   of    error,    the   writ    must    be    dis-  132  U.  S.  509,  33  L.   Ed.  433,  citing  Canal 


380 


APPEAL  AXD  ERROR. 


It  would  seem  that  proceedings  upon  writs  of  prohibition  being  in 
equity,  are  reviewable  only  by  appeal.-*^ 

Proceeding'  for  Enforcing  Mandate. — The  question  as  to  the  form  of  pro- 
ceeding which  this  court  should  adopt  to  enforce  the  execution  of  its  own  mandate 
in  the  court  below  may  be  reviewed  by  appeal,  though  the  subject  might  without 
doubt  be  brought  before  us  upon  motion.  But  an  appeal  is  more  convenient  and 
suitable,  as  it  gives  the  adverse  party  notice  that  the  question  will  be  brought 
before  this  court,  and  affords  him  the  opportunity  of  being  prepared  to  meet  it 
at  an  early  day  of  the- term. 21 

(2)  Cases  of  Admiralty  and  Maritime  Jurisdiction. — Final  decrees  in  cases 
of  equity  and  of  admiralty  and  maritime  jurisdiction  were  formerly  required  to  be 
removed  here  for  re-examination  by  a  writ  of  error,  but  congress  subsequently 
repealed  those  regiilations,  and  provided  that  appeals  should  be  allowed  in  all  such 
cases. 22  Appeal  and  not  writ  of  error  is  the  proper  process  for  removing  a  cause 
of  admiralty  and  maritime  jurisdiction  into  this  court  for  re-examination. 23     It 


Co.  V.  Gordon,  6  Wall.  561,  18  L.  Ed.  894; 
Davis  V.  Alvord,  94  U.  S.  545,  24  L.  Ed. 
283-  Brewster  v.  Wakefield,  22  How,  118, 
16  L.  Ed.  301;  Walker  v.  Dreville,  12  Wall. 
440.  20  L.  Ed.  429;  Marin  v.  Lalley,  17 
Wall     14.    21    L.    Ed.    596. 

20.  Prohibition. — "The  supreme  court  of 
the  District  of  Columbia  having  both  com- 
mon-law   and    equity     powers,     it      would 
seem    that    the    proceedings    in    this    case 
must    be    considered    as    on   the    common- 
law  side  of  that  court,  and  that  the  proper 
mode    of   invoking   the    appellate   jurisdic- 
tion of  this  court  is  by  writ  of  error.     In 
England,    from    long   before    the    Declara- 
tion of  Independence,  writs  of  prohibition 
have    usually    issued    from    the    courts    of 
common  law,  and  do  not  appear   to  have 
issued   from    a    court   of   chancery   in    any 
case  in  which  a  court  of  law  might  issue 
them,    except    during   vacation,    when    the 
courts   of  common  law  were  not   open.    2 
Hale   P.   C.   147;    Lord    Holt,     in      Black- 
borough    V.    Davis,    1    P.     Wms.      41,      43; 
Anon.,    1    P.    Wms.    476;    Montgomery    v. 
Blair,  2   Sch.  &  Lef.  136;  In  re  Foster,  24 
Beavan,  428;   In  re  Bateman,  L.   R.  9  Eq. 
660.     And  in  this  country,  so  far  as  we  are 
informed,  these  writs  have  never  been  is- 
sued but  by  a  court  of  common-law  juris- 
diction.     But    as    the    petitioner    has    both 
taken    an    appeal   and    sred   out   a   writ   of 
error,  it  is  immaterial  which  is  the  proper 
form   of  bringing  up   the   case."      Smith  v. 
Whitney,    116    U.    S.    167,    174.    29    L.    Ed. 
601. 

21.  Perkins  v.  Fourniquet,  14  How.  313. 
14   L.   Ed.  435. 

22.  The  Lady  Pike.  21  Wall.  1,  22  L. 
Ed.  499;  The  Protector,  11  Wall.  82,  20 
L.  Ed.  47. 

Tbe  18th  rule  never  applied  to  ad- 
miralty cases.  By  the  judiciary  act  of 
1789,  decrees  in  chancery  and  admiralty, 
as  well  as  judgments  at  common  law  in 
the  circuit  courts,  were  removable  to  this 
court  by  writ  of  error,  and  not  in  any 
other  manner.  Hemmenway  v.  Fisher,  20 
How.  255.  15   L.   Ed.  799. 

Btit  so  much  of  the  20th  section  of  the 
judiciary  act  as   provided  that   such  cases 


should  be  removed  into  this  court  by 
writs  of  error  are  repealed  by  the  amen- 
datorv  act.  The  Baltimore,  8  Wall.  377, 
19  L.   Ed.  463. 

23.  The  San  Pedro,  2  Wheat.  132,  142,  4 
L.   Ed.  202,  205. 

An  appeal  is  the  natural  and  proper 
mode  of  removing  an  admiralty  cause, 
and.  in  that  case,  there  can  be  no  doubt, 
that  all  the  testimony  which  was  pro- 
duced in  the  court  below,  should  also  be 
produced  in  this  court.  Such  an  appeal  is 
expressly  sanctioned  by  the  constitution; 
it  may,  therefore,  clearly  in  the  first  view 
of  the  subject,  be  considered  as  the  most 
regular  process;  and  as  there  are  not  any 
words  in  the  judicial  act  restricting  the 
power  of  proceeding  by  appeal,  it  must 
be  regarded  as  still  permitted  and  ap- 
proved. Wiscart  v.  Dauchy,  3  Dall.  321, 
325,    1    L.    Ed.    619,    621. 

Cases  of  admiraltj'-  and  maritime  juris- 
diction, since  the  passage  of  the  act  of 
the  3d  of  March.  l.'^OS,  cannot  be  brought 
here  for  re-examination  in  any  other 
mode  than  by  appeal;  and  the  provision 
is.  "that  upon  such  appeal,  a  transcript  of 
the  libel,  answer,  depositions,  and  all  other 
proceedings,  of  what  kind  soever  in  the 
cause,  shall  be  transmitted  to"  this  court. 
Prior  to  that  time,  the  judgments  and  de- 
crees of  the  circuit  courts  in  civil  actions 
and  suits  in  equity,  whether  brought 
there  by  original  process,  or  transferred 
there  from  the  courts  of  the  several 
states,  or  from  the  district  courts,  could 
only  be  removed  into  this  court  for  re- 
vision by  writ  of  error;  and  the  further 
provision  was.  that  there  should  be  no  re- 
versal in  this  court  for  any  error  in  fact, 
which  still  continues  to  be  the  rule  of 
law  in  respect  to  all  cases  brought  here 
from  the  circuit  c^^rts  by  writs  of  error. 
The  Baltimore,  8  Wall.  377.  381,  19  L. 
Ed.    4''^^. 

An  ixiformation  filed  against  a  privateer 
in  the  district  court,  for  the  forfeiture  of 
a  schooner  for  exnort,i^T:T  in  her  cf-t-^'M 
arms  and  ammunition,  is  a  cause  of  ad- 
miralty and  maritime  juri  =  rHctii^;!.  rnd  s 
a  civil  cause  in  which  no  jury  was  neces- 


APPEAL  AXD  ERROR. 


381 


has  been  held,  that  the  term  "civil  actions"  as  used  in  the  22nd  section  of  the 
judiciary  act  providing  that  final  judgments  and  decrees  in  civil  actions  in  a  dis- 
trict court  may  be  removed  into  the  circuit  court  upon  a  writ  of  error,  includes 
causes  of  admiralty  and  maritime  jurisdiction. 2-* 

(3)  Decisions  of  Court  of  Claims.— From  the  judgments  of  the  court 
of  claims  appeals  are  allowed  to  this  court  (§  707,  Rev.  Stat.),  but 
no  provision  has  been  made  for  writs  of  error.  Consequently,  we 
cannot  proceed  by  writ  of  error  to  review  the  decisions  of  that  court.^^  Ac- 
cordingly, where  an  appeal  from  the  court  of  claims  has  been  dismissed  on  the 
motion  of  the  United  States,  because  the  co.urt  of  claims  has  granted  a  new  trial 
during  the  pendency  of  the  appeal  in  this  court,  a  writ  of  error  will  not  be  granted 
to  compel  that  court  to  send  here  the  proceedings  subsequent  to  the  appeal ;  but 
the  appeal  will  be  dismissed.  After  judgment  has  been  finally  rendered  by  the 
court  of  claims,  the  proceedings  in  which  the  new  trial  was  obtained  may  be 
brought  here  by  appeal  alone  and  not  bv  writ  of  error.-^ 

(4)  Habeas  Corpus  Proceedings. — Final  orders  of  the  circuit  courts  or  dis- 
trict courts  of  the  United  States  in  habeas  corpus  can  only  be  reviewed  by  appeal 
and  not  by  writ  of  error. 2"  Likewise,  appeal  and  not  writ  of  error  is  the  prop>er 
remedy  to  review  a  judgment  of  the  district  or  circuit  court  in  habeas  corpus 
cases,  even  since  the  passage  of  the  act  of  March  3,   1801.28 

d.  What  Lazv  Governs  Appeals.— kci  of  March  3d,  1803.— The  act  of  con- 
gress of  March  3d,  1803,  provides  that  appeals  in  the  federal  courts  shall  be  subject 
to  the  same  rules,  regulations  and  restrictions  as  are  prescribed  in  law  in  case  of 
writs  of  error. 29  The  words  of  the  act  of  congress  of  March  3rd,  1803  (2  U, 
S.  Stat.  244),  are,  "that  from  all  final  judgments  or  decrees,  rendered,  or  to  be 
rendered,  in  any  circuit  court,"  "in  any  cases  of  equity,"  etc.,  "an  appeal  shall  be  al- 
lowed," subject  to  the  same  rules,  regulations  and  restrictions  as  are  prescribed 
in  case  of  writs  of  error."  A  perfect  analogy  exists  between  the  cases  of  appeals 
and  of  Avrits  of  error,  as  to  the  time  in  which  they  may  be  granted,  and  the  judge 
who  can  grant  the  one  may  allow  the  other.  The  act  of  congress  comprehends 
past  cases  as  well  as  future.-'^o 


sary;  and  an  appeal  therein  to  the  circuit 
court  is  resru'ar.  United  States  v.  La 
Vengeance,  3  Ball.  297.  1  L.  Ed.  610. 

24.  Wiscart  v.  D'Auchy,  3  Ball.  321,  1 
L.  Ed.  619. 

25.  United  States  v.  Young.  94  U.  S. 
258,  2.59,   24   L.    Ed.    153. 

26.  United  States  v.  Young.  94  U.  S. 
258.  24   L.    Ed.    153. 

27.  In  re  Morrissey,  137  U.  S.  157.  34 
L.  Ed.  644.  citing  In  re  Neagle,  135  U.  S. 
1.  34  L.  Ed.  55;  Rice  v.  Ames,  180  U.  S. 
371,  373.  45  L.  Ed.  577;  Fisher  v.  Baker. 
203  U.   S.   174.   1S2,   51    L.    Ed.    142. 

Review  of  iudctments  of  supreme  court 
of  Philippine  Islands. — Under  that  part  of 
§  10  r,f  tlie  Philippine  Island  act  of  July 
1,  1902,  32  Stat.,  c.  1369,  pp.  691.  695,  pro- 
viding that  final  judgments  or  decrees  of 
the  supreme  court  of  the  Philippine 
Islands  may  and  can  be  reviewed,  re- 
vised, reversed,  modified  or  affirmed  b}' 
the  supreme  court  of  the  United  States 
on  appeal  or  writ  of  error  by  the  party 
aggrieved,  in  the  same  manner  under  the 
same  regulations  and  by  the  same  pro- 
cedure, as  far  as  applicable,  as  the  final 
judgments  and  decrees  of  the  circuit 
courts  of  the  United  States,  final  orders 
of  the  supreme  court  of  the  Philippine 
Islands  in  habeas   corpus  can  only  be  re- 


viewed by  appeal  and  not  by  writ  of  er- 
ror, because  a  proceeding  in  habeas  cor- 
pus is  a  civil  and  not  a  criminal  proceed- 
ing, and  final  orders  of  the  circuit  courts 
or  district  courts  of  the  United  States  in 
habeas  corpus  can  only  be  reviewed  by 
appeal  and  not  by  writ  of  error.  Fisher 
V.   Baker,  203  U.  S.  174,  51  L.  Ed.  142. 

28.  Rice  v.  Ames,  180  U.  S.  371,  45  L. 
Ed.  577,  distinguishing  Buckb'n  v.  United 
States,   159   U.   S.   682,  40  L.    Ed.  305. 

29.  2  Stat,  at  Large  244.  Slaughter 
House  Cases,  10  Wall.  273,  296.  19  L.  Ed. 
915;  Hudgins  v.  Kemp,  18  How  530,  15 
L.  Ed.  511:  Merrill  v.  Petty.  16  Wall.  338, 
342,  21  L.  Ed.  499;  The  San  Pedro.  2  Wheat 
132.  140,  4  L.  Ed.  202;  United  States  v. 
Goodwin,  7  Cranch  108.  Ill,  3  L.  Ed.  284; 
Wiscart  v.  B'.\uchy,  3  Ball.  321,  328.  1  L. 
Ed.  619;  The  Sloop  Betsev,  3  Ball.  6.  Id, 
1  L.  Ed.  485;  The  Admiral,  3  Wall.  603, 
612,  18  L.  Ed.  58;  Board  of  Commission- 
ers V.  Gorman.  19  Wall.  661.  664.  22  L. 
Ed.  226:  Simpson  7-.  Gr'>eley.  20  Wall. 
152,  22  L.  Ed.  338;  The  Maria  Martin,  12 
Wall.  31,  40.  20  L.  Ed.  251;  Jerom-  V. 
IMcCarter,  21  Wall.  17,  28,  22  L.  Ed.  515? 
Grie-sbv  v.  Purcell.  99  U.  S.  505,  506,  25 
L.    Ed.    3.'^4;    Rev.    Stat.,    §    1012. 

30.  United  States  7'.  Hooe,  3  Cranch 
7n     79.  2   L.    Ed.   370.  372. 

Under  the  judiciary   act   of   the   24th   of 


382 


APPEAL  AND  ERROR. 


Section  1012  of  the  Revised  Statutes  declares  that  appeals  from  the  cir- 
cuit courts,  etc.,  shall  be  subject  to  the  same  rules,  regulations,  and  restrictions  as 
are  or  may  be  prescribed  in  law  in  cases  of  writs  of  error .^^ 

By  the  act  of  May  23d,  1828  (4  Stat,  at  Large  284),  relating  to  private 
land  claims  in  Florida,  appeals  from  the  superior  court  of  the  territory  of 
Florida  are  governed  by  the  laws  of  1789  and  1803,  and  the  act  of  1803  subjects 
appeals  to  the  rules  and  regulations  prescribed  by  law  in  cases  of  writs  of  error. 22 

2.  Writ  01''  Error — a.  Definition,  Nature  and  Distinctions — (1)  Definition. — 
A  writ  of  error  is  an  original  writ,  and  lies  only  when  a  party  is  aggrieved  by 
some  error  m  the  foundation,  proceedings,  judgment,  or  execution,  of  a  suit  in 
a  court  of  record,  and  is  defined  to  be  a  commission,  by  which  the  judges  of  one 
court  are  authorized  to  examine  a  record  upon  which  a  judgment  was  given  in 
another  court,  and,  on  such  examination,  to  affirm  or  reverse. '^-^ 

(2)  Nature. — The  words  "action"  and  "cause  of  action"  are  not  ordinarily 
applicable  to  writs  of  error.  And  this  is  so  whether  a  writ  of  error  be  considered 
a  new  proceeding  or  a  continuation  of  the  original  proceeding,  as  it  is  usually  re- 
garded in  the  federal  courts.^'*     But  a  writ  of  error  to  a  judgment  by  an  assignee 


September,  1789.  ch.  20,  and  the  act  of 
the  3d  of  March,  1803,  ch.  93,  causes  of 
admiralty  and  maritime  jurisdiction,  or 
in  equity  cannot  be  removed,  by  writ  of 
error,  from  the  circuit  court  for  re-ex- 
amination in  the  supreme  court.  The  ap- 
propriate mode  of  removing  such  causes 
is  by  appeal;  and  the  rules,  regulations, 
and  restrictions  contained  in  the  22d  and 
23d  sections  of  the  judiciary  act,  respect- 
ing the  time  within  which  a  writ  of  error 
shall  be  brought,  and  in  what  instance  it 
shall  operate  as  a  supersedeas;  the  cita- 
tion to  the  adverse  partjr,  the  security  to 
be  given  by  the  plaintiffs  in  error  for 
prosecuting  his  suit,  and  the  restrictions 
upon  the  appellate  court  as  to  reversals 
in  certain  enumerated  cases,  are  appli- 
cable to  appeals  under  the  act  of  1803,  and 
are  to  be  substantially  observed;  except 
that  where  the  appeal  is  prayed  at  the 
same  term  when  the  decree  or  sentence 
is  pronounced,  a  citation  is  not  neces- 
sary. The  San  Pedro,  2  Wheat.  132.  4  L.  Ed. 
202. 

31.  Kountze  v.  Omaha  Hotel  Co.,  107 
U.  S.  378,  381,  27  L.  Ed.  609;  Farrar  v. 
Churchill.  135  U.  S.  609,  612,  34  L.  Ed. 
246. 

Appeals  from  the  circuit  courts  are 
"subject  to  the  same  rules,  regulations, 
and  restrictions  as  are  or  may  be  pre- 
scribed by  law  in  cases  of  writs  of  er- 
ror." Rev.  Stat.,  §  1012.  Danville  v. 
Brown,   128  U.   S.   503,  504,   32  L.   Ed.   507. 

"Appeals  to  this  court  from  the  cir- 
cuit and  district  courts  are  'subject  to  the 
same  rules,  regulations,  and  restrictions 
as  are  or  may  be  prescribed  by  law  in 
cases  of  writs  of  error.'  Revised  Stat- 
utes, §  1012."  Moses  V.  Wooster,  115  U. 
S.   285.  287,   29   L.    Ed.   391. 

32.  Villabolos  v.  United  States,  6  How. 
81,    12    L.    Ed.   352. 

33.  Suydam  v.  Williamson.  20  How. 
427,  15  L.  Ed.  978,  982;  Cohens  v.  Vir- 
ginia, 6  Wheat.  264,  410,  5  L.  Ed.  257. 

34.  Cohen    v.    Virginia,    6    Wheat.    264. 


410,  5  L.  Ed.  257,  292;  Nations  v.  Johnson, 
24  How.  195,  205,  16  L.  Ed.  628,  632;  In 
re  Chetwood,  165  U.  S.  443.  461,  41  L. 
Ed.  782,  788;  Bradford  v.  Southern  R.  Co., 
195   U.   S.   243,   49   L.   Ed.   178. 

A  writ  of  error  is  defined  to  be  a  com- 
mission by  which  the  judges  of  one  court 
are  authorized  to  examine  a  record  upon 
which  a  judgment  was  given  in  another 
court,  and.  on  such  examination,  to  affirm 
or  reverse  the  same  according  to  law.  If, 
sajs  iny  Lord  Coke,  by  the  writ  of  error, 
the  plaintiff  may  recover  or  be  restored 
to  anything,  it  may  be  released  by  the 
name  of  an  action.  In  Bacon's  Abridg- 
ment, tit.  Error,  L.,  it  is  laid  down,  that 
"where,  by  a  writ  of  error,  the  plaintiff 
shall  recover,  or  be  restored  to  any  per- 
sonal thing,  as  debt,  damage,  or  the  like, 
a  release  of  all  actions  personal  is  a  good 
plea;  and  when  land  is  to  be  recovered 
or  restored  in  a  writ  of  error,  a  release  of 
actions  real  is  a  good  bar;  but  where  by 
a  writ  of  error  the  plaintiff  shall  not  be 
restored  to  any  personal  or  real  thing,  a 
release  of  all  actions,  real  or  personal,  is 
no  bar.  And  for  this  we  have  the  au- 
thority of  Lord  Coke,  both  in  his  Com- 
mentary on  Littleton  and  in  his  reports. 
A  writ  of  error,  then,  is  in  the  nature  of 
a  suit  or  action  when  it  is  to  restore  the 
party  who  obtains  it  to  the  possession  of 
anything  which  is  withheld  from  him.  not 
when  its  operation  is  entirely  defensive." 
Cohens  v.  Virginia,  6  Wheat.  264,  409,  5 
L.    Ed.   257.    292. 

"Strictly  speaking,  an  error  on  which 
a  writ  lies  is  not  a  cause  of  action;  for, 
as  Lord  Coke  says,  there  is  a  distinction 
between  writs  and  actions;  and  under  this 
distinction  he  instances  actions  and  writs 
of  error.  (2  Inst.  39,  40.)  And  yet,  a 
release  of  all  actions  extends  to  writs  of 
error,  when  anything  may  be  recovered 
or  taken  by  waj^  of  restitution  under  or 
in  consequence  of  the  writ  of  error.  (Co. 
Litt.  288,  b.  Bac.  Abr.  Release  (1)  (2). 
This,  however,   I   take   it,   proceeds   rather 


APPEAL  AND  ERROR. 


383 


of  a  judgment  rendered  against  a  bankrupt  in  a  state  court  is  a  suit  within  § 
5057  of  the  Revised  Statutes.-^"' 

As  New  Action. — According  to  the  practice  in  this  court,  a  writ  of  error  has 
been  treated  rather  as  a  continuation  of  the  original  litigation  than  the  commence- 
ment of  a  new  action.s*^ 

A  writ  of  error  is  said  to  be  an  original  writ,  because,  at  common  law,  it 
was  issued  out  of  the  court  of  chancery;  but  its  operation  is  rather  upon  the 
record,  than  the  person.-^" 

But  in  Illinois  a  writ  of  error  is  the  beginning  of  a  new  suit.'^s 

(3)  Distinguished  from  Motion  for  Xezv  Trial. — The  writ  of  error  is  distin- 
guishable from  a  motion  for  a  new  trial.-"^^ 

b.  Proceedings  Reviewable  by  Writ  of  Error — (1)  Common-Lazv  Proceedings — 
aa.  In  General. — The  proper  mode  of  bringing  a  civil  action  on  the  common  law- 
side  of  the  court  to  this  court,  is  by  writ  of  error,  and  not  by  appeal.-*^  In  a 
recent  case  it  was  said :  Errors  alleged  to  have  been  committed  in  an  action  at 
law  can  be  reviewed  here  only  by  writ  of  error.  This,  in  the  absence  of  modifica- 
tion by  statute,  is  the  rule  in  respect  to  all  courts  whose  records  are  brought  here 
for  review.^  1     Where  a  case  is  brought  up  by  an  appeal  from  a  judgment  on  the 


106 


19  = 


upon  an  equitable,  and  therefore  extended 
construction  of  the  words  in  the  release 
beyond  their  strict  meaning;  for  they 
generally  reach  the  original  matter  out  of 
which  the  error  arose,  that  being  the  di- 
rect subject  of  an  action  if  the  matter  be 
thrown  open  by  the  writ  of  error.  The 
original  matter  being  released,  therefore, 
the  words  are  very  properly  construed  as 
reaching  indirectly  and  in  liberal  con- 
struction to  the  writ  of  error  itself,  be- 
cause that  depends  upon  the  original  mat- 
ter. Yet,  in  strictness,  no  book  holds  the 
word  action,  or  words  cause  of  action,  to 
be  identical  with  a  writ  of  error  or  cause 
of  a  writ  of  error."  Bradford  v.  South- 
ern Ry.  Co.,  195  U.  S.  243,  249,  49  L.  Ed. 
178. 

35.  Jenkins   v.    International    Bank. 
U.   S.   571,  27   L.   Ed.   304. 

36.  Nations  v.  Johnson,  24  How. 
205,  16  L.  Ed.  628;  Cohens  v.  Virginia,  6 
Wheat.  264,  410.  5  L.  Ed.  257;  In  re  Chet- 
wood,  165  U.  S.  443,  461,  41  L.  Ed.  782; 
Clarke  v.  Mathewson,  12  Pet.  164,  170,  9  L. 
Ed.  1041;  Pennoyer  v.  Neflf,  95  U.  S.  714, 
734,  24  L.  Ed.  565;  Bradford  v.  Southern 
R.  Co.,  195  U.  S.  243,  248,  49  L.  Ed.  178. 

37.  Nations  v.  Johnson,  24  How.  195. 
16    L.    Ed.    628,    631. 

38.  Jenkins  v.  International  Bank,  106 
U.    S.   571,   27    L.    Ed.   .304. 

39.  In  the  argument  of  the  case,  the 
counsel  for  the  defendant  objected  to  the 
proceeding  by  writ  of  error,  alleging  that, 
as  the  jury  had  found  for  the  plaintiffs  in 
the  circuit  court,  the  proper  course  would 
have  been  to  move  the  court  for  a  new 
trial,  on  the  ground  of  the  insufficiency  of 
the  damages;  and  that  error  would  not 
lie,  as  this  was  no  more  than  an  applica- 
tion to  the  court  for  a  new  trial,  on  that 
ground.  The  objection  that  the  proper 
remedy  of  the  plaintiffs  was  by  a  motion 
lor  a  new  trial,  and  that  the  question  now 
made  on  this  writ  of  error  is  substantially 


a  motion  for  a  new  trial  seems  not  to  be 
well  founded;  the  amount  of  damages 
found  by  the  jury  is  only  referred  to  as 
show-ing  that  they  considered  their  ver- 
dict as  controlled  by  the  direction  of  the 
court.  Tracy  v.  Swartwout.  10  Pet.  80, 
81.   9    L.    Ed.   354. 

40.  United  States  v.  Emholt,  105  U.  S. 
414,  26  L.  Ed.  1077,  citing  Bevins  v.  Ram- 
sey, 11  How.  185,  13  L.  Ed.  657;  Jones  v. 
La  Vallette,  5  Wall.  579.  18  L.  Ed.  55©; 
Comstock  V.  Eagleton,  196  U.  S.  99,  49 
L.  Ed.  402;  Act  of  July  4,  1840,  c.  43,  §  3; 
5  Stat.  393;  Rev.  Stat.,  §  691;  Dower  v. 
Richards,  151  U.  S.  658.  664,  38  L.  Ed. 
305;  Saltmarsh  v.  Tuthill,  12  How.  387,  13 
L.    Ed.    1034. 

This  court,  having  separate  jurisdiction 
in  law  and  equity,  can  review  cases  ia 
common  law  by  writ  of  error  only,  and 
on  bill«  of  exception  presenting  questions 
of  law.  Graham  v.  Bayne,  18  How.  60.  15 
L.    Ed.    265. 

There  can  be  no  question  that  the  only 
mode  of  giving  this  court  jurisdiction  for 
the  correction  of  errors  in  a  law  case  is 
by  writ  of  error.  An  appeal  cannot  have 
this  result.  Brooks  v.  Norris,  11  How. 
204,  13  L.  Ed.  665;  Barrv  v.  Mercein,  5 
How.  103,  12  L.  Ed.  70;  United  States  v. 
Curry.  6   How.   106.   12   L.   Ed.   363.    ' 

Chief  Justice  Tanej'  held  in  Sarchet  v. 
United  States.  12  Pet.  143,  9  L.  Ed.  1033, 
that  an  action  at  law  could  not  be  brought 
to  the  supreme  court  by  an  appeal,  but 
must  come  up  on  writ  of  error;  in  no 
other  way  could  the  court  get  jurisdic- 
tion. So,  also,  we  have  the  same  con- 
clusion in  Ballance  v.  Forsyth.  21  How. 
389.  16  L.  Ed.  143.  See,  also.  Chase  v. 
United  States,  155  U.  S.  480,  496,  39  L. 
Ed.    234. 

41.  Walker  v.  Drcville.  12  Wall.  440, 
20  L.  Ed.  429;  United  States  v.  Hailey, 
lis  U.  S.  233,  30  L.  Ed.  173;  Deland  V. 
Platte  Countv.  155  U.  S.  221.  39  L.  Ed. 
128;   Comstock  v.   Eagleton,  196  U.   S.  99, 


384  APPEAL  AND  ERROR. 

common-law  side  of  the  circuit  court,  instead  of  by  a  writ  of  error,  it  must  be  dis- 
missed."* ^ 

The  acts  of  congress,  relating  to  judicial  proceedings  in  the  territory 
of  Florida,  give  the  right  of  appeal  to  the  supreme  court  of  the  United  States, 
in  cases  of  equity,  of  admirahy  and  maritime  jurisdiction,  and  prize  or  no  prize; 
but  cases  at  law  are  to  be  brought  up  by  writ  of  error,  as  provided  for  by  the 
judiciary  act  of  1789.  It  has  always  been  held,  that  a  case  at  law  cannot,  under 
the  act  of  1803,  be  brought  to  the  supreme  court  by  appeal .^^ 

Cases  in  Circuit  Court. — It  has  been  repeatedly  determined  that,  under  the 
acts  of  congress  regulating  the  appellate  jurisdiction  of  this  court  from  the  cir- 
cuit courts,  cases  must  be  brought  here  by  writ  of  error,  and  cannot  b*2  brought 
by  appeal.^^  The  removal  of  suits  from  the  circuit  court  into  the  supreme. court 
must  be  by  writ  of  error  in  every  case,  whatever  may  be  the  original  nature  of 
the  suits.45 

bb.  Illustrative  Cases. — A  suit  at  law  on  a  bond  cannot,  under  any  circum- 
stances, legally  come  before  us  on  appeal ;  but  must  come  up  by  writ  of  error 
in  order  to  give  us  jurisdiction  to  try  it.*^ 

Since  a  mandamus  is  nothing  more  than  an  action  at  law  between  the  par- 
ties, it  cannot  be  reviewed  on  appeal ;  actions  at  law  can  be  reviewed  only  by 
writ  of  error.'*'^ 

Order  Discharging  Rule  to  Show  Cause. — No  appeal  lies  to  this  court 
from  the  circuit  court  for  the  discharge  of  a  rule  on  the  marshal,  to  show  cause 
why  he  should  not  make  to  one — asserting  himself  to  be  a  purchaser  on  ex- 
ecution, under  a  judgment,  at  a  marshal's  sale — a  deed  for  real  estate  sold ;  and 
for  an  order  on  the  person  seeking  to  pay  the  costs.  "Such  a  motion  as  the  one 
first  described  and  the  rule  granted  under  it  are  proceedings  at  law,  and  so.  also, 
are  the  judgment  and  the  order  of  the  court  directing  that  the  petitioner  should 
pay  all  costs,  and  the  judgment  cannot  be  removed  into  this  court  in  any  other 
way  than  ty  a  writ  of  error. "•^^ 

The  proceedings  under  the  act  relating  to  a  seizure  of  land  present  a 
case  of  common-law  jurisdiction,  the  proceedings  in  which  are  to  be  conformed, 
in  respect  to  trial  by  jury  and  exceptions  to  evidence,  to  the  course  of  the  com- 
mon law,  and  a  final  decision  in  which  can  be  reviewed  here  only  on  writ  of 
err  or  .^9 

49  L.   Ed.    402;    Behn   v.   Campbell.   205   U.  States,  12  Pet.   143.  9  L.   Ed.  1033. 

S.   403,  407,   51   L.    Ed.   857.  47.    Ward    i'.    Gregory,    7    Pet.   633,   8   L. 

42.  Bevins  v.  Ramsey.  11  How.  185,  13  Ed.  810;  Kentucky  v.  Dennison,  24  How. 
L.    Ed.    657.  66,  97,    16   L.   Ed.   717.  _ 

43.  Parish  v.  Ellis,  16  Pet.  451,  10  L.  A  mandamus  was  issued  by  the  su- 
Ed.   1028.  perior    court    of    appeals    of     the     Eastern 

44.  Sarchet  v.  United  States,  12  Pet.  Middle  District  of  Florida,  directed  to  the 
143,  9  L.  Ed.  1033;  United  States  v.  Gi-  register  and  receiver  of  the  western  land 
rault,  11  How.  22,  32,  13  L.  Ed.  587;  Com-  district  of  Florida,  commanding  them  to 
stock  V.  Eagleton,  196  U.  S.  99,  49  L.  Ed.  permit  the  entry  and  purchase  of  certain 
402.  lands.     From  this  proceeding  the  register 

45.  Blaine  v.  Carter,  4  Dall.  22.  1  E-  and  receiver  appealed  to  this  court.  The 
Ed.   724.  appeal   was    dismissed,    the   proceeding   at 

46.  The  United  States  instituted  a  suit  mandamus  being  at  common  law,  and 
at  law  on  a  bond  for  duties  in  the  dis-  therefore  the  removal  to  this  court  should 
trict  court  of  the  southern  district  of  New  have  been  by  writ  of  error.  Ward  v. 
York  and  after  a  trial  and  verdict  for  the  Gregory.  7  Pet.  633.  8  L.  Ed.  810. 
United  States,  judgment  was  given  against  48.  The  Lucille,  15  Wall.  676,  682,  21  L- 
the   defendant;  who  thereupon  prosecuted  Ed.  247. 

a  writ  of  error  to  the  circuit  court  for  the  49.    Armstrong's    Foundry,    6    Wall.    766, 

southern  district  of  New  York,  where  the  18    L.    Ed.    882,   followed     in      Garnett     v. 

judgment    of    the    district    court    was    af-  United    States,    11    Wall.    256,    258,    20    L. 

firmed.     The   defendant    then   appealed   to  Ed.    79. 

the    supreme    court.      Held,    that    cases    at  Where   a  seizure   of  property  on  land  is 

law  can  only  be  brought  from  the  circuit  made  under  the  acts  of  Julv  13th,  1861.  or 

court    by    writ    of    error,    and     cannot     be  of    August    6th.    1861,    or    July    17th,    1862, 

brought    by    appeal.      Sarchet    v.      United  passed  in  suppression  of  the  rebellion,  the 


APPEAL  AXD  ERROR.  385 

Final  judgments  of  the  circuit  court  in  actions  of  assumpsit  can  only 
be  revised  on  writ  of  error,  and  not  on  appeal.^'* 

It  is  well  settled  that  a  proceeding  involving  the  exercise  of  the  power 
of  eminent  domain  is  essentially  but  the  assertion  of  a  right  legal  in  its  nature, 
and  therefore  is  reviewable  only  by  writ  of  error.  So,  also,  it  has  been  settled, 
that  a  condemnation  proceeding  initiated  before  a  court,  conducted  under  its 
supervision,  with  power  to  review  and  set  aside  the  verdict  of  the  jury,  and 
with  the  right  of  a  review  vested  in  an  appellate  tribunal,  is,  in  its  nature,  an 
action  at  law/^^ 

A  petition  of  intervention  and  of  third  opposition  under  the  Louisiana 
practice  by  a  person  claiming  certain  proi^erty  to  have  been  exempt  from  seizure 
and  sale  on  execution,  is  a  proceeding  at  law,  and  not  a  cause  in  equity,  and  is 
therefore  properly  brought  up  by  writ  of  error. ^2 

Proceeding  Involving  Original  Probate  of  Will. — It  is,  of  course,  undis- 
puted that  a  final  decree  in  equity,  in  the  court  below,  cannot  be^  reviewed  here 
by  means  of  a  writ  of  error.  But  a  proceeding  involving  the  original  probate  of 
a  last  will  and  testament  is  not  strictly  a  proceeding  in  equity,  although  rights 
arising  out  of,  or  dependent  upon,  such  probate  have  often  been  determined  by 
suits  in  equity.  In  determining  the  question  of  the  competency  of  the  deceased 
to  make  a  will,  the  parties  have  an  absolute  right  to  a  trial  by  jury,  and  to  bills 
of  exceptions  covering  all  the  rulings  of  the  court  during  the  progress  of  such 
trial.     These  are  not  the  ordinary  features  of  a  suit  in  equity. ^^ 

A  proceeding  for  the  probate  of  a  will  in  the  District  of  Columbia  is  not 
a  suit  in  equity,  but  is  a  case  in  which  the  parties  have  a  right  to  claim  a  trial 
by  jury,  and  therefore  is  properly  brought  to  this  court  by  writ  of  error.^^ 

Bankruptcy  Proceedings. — Where  a  trial  by  jury  is  claimed  by  a  person 
against  whom  an  involuntary  petition  of  bankruptcy  has  been  filed  under  §  19 
of  the  bankrupt  act,  on  an  issue  of  fact  as  to  the  existence  of  ground  for  ad- 
judication, and  the  trial  was  a  trial  according  to  the  course  of  common  law,  judg- 
ments therein  rendered  are  revisable  only  on  writ  of  error.'""' 

Contempt  Proceedings. — A  person  adjudged  in  contempt  and  fined  therefor, 
who  is  not  a  party  to.the  suit,  can  bring  the  matter  to  the  circuit  court  of  appeals 
only  by  writ  of  error  and  not  by  appeal.^^ 

cc.  Actions  Tried  by  Court. — In  an  action  at  law  where  a  jury  has  been  waived 
and  a  trial  had  before  the  court,  it  is  nevertheless  an  action  at  law  although  tried 
by  the  court  upon  a  waiver  of  the  jury,  and  must  therefore  be  reviewed  by  writ 
of  error  and  not  appeal.^"     The  manner  of  reviewing  judgments,  in  civil  cases. 

claimants    are    entitled    to    trial     by     jury,  53.    Ormsby  x'.  Webb.   tSt  U.   S.  47,  64, 

though  the  suit  be  in  form  a  libel   of  in-  33    L.    Ed.    805,    followed    in    Kenaday   v. 

formation;   and   the    suit   can    be    removed  Sinnott.  179  U.  S.  606,  613,  45  L.  Ed.  339. 

into    this    court    by    writ    of    error    alone.  54.    Campbell  v.   l^orter,   162   U.    S.   478, 

Union   Ins.   Co.   v.  United   States,   6  Wall.  40    L.    Ed.     1044.     following      Ormsby     v. 

759,  765,   18   L.    Ed.   879,   and    Armstrong's  Webb,    134   U.    S.    47,   33    L.    Ed.    805,    dis- 

Foundry,  6  Wall.  766.  769,   18   L.   Ed.  88:2.  tinguished   in   Kenaday  v.   Sinnott,  179   U. 

affirmed   in    Morris'    Cotton,    8    Wall.    507,  5.  606,  613,  45   L.   Ed.   339. 

19  L.   Ed.   481.  55      Elliott   v.   Toeppner,    187   U.    S.   327. 

50.  Deland  v.  Platte  Countv.  155  U.  S.  47  l  Ed.  200.  citing  Insurance  Co.  v. 
221,   39    L.    Ed.    128.  Comstock,    16    Wall.    258.    21    L.    Ed.    493; 

51.  Metropolitan  R.  Co.  r.  Mc^arland.  Parsons  r.  Bedford.  3  Pet.  433,  448,  7  L. 
195  U.    S.    322,    49    L.    Ed.    219;      Kohl      v.  Ed.  732. 

United  States.  91  U.  S.  367,  376.  23  L.  Ed.  56.     Walker   z:    Dreville.    12    Wall.    440. 

449;    Searl   v.    School    District    No.    2,    124  20   L.    Ed.   429;   Deland  v.   Platte    County, 

U.   S.    197,    31    L.    Ed.     415;      Chappell      v.  155    U.    S.   221,   39    L.    Ed.    128;    Bucklin   z: 

United    States.    160    U.    S.    499,    513,    40    L.  United    States.    159    U.    S.    682.    40    L.    Ed. 

Ed.  510.  305;    Bessette    f.    Conkey.    194    U.    S     :'>24. 

52.  New  Orleans  f.  Louisiana  Construe-  S26,  48  L.  Ed  997,  reaffirmed  in  In  re 
tion  Co.,  129  U.   S.   45,  32   L.   Ed.  607,   cit-  Lewis,   202  U.  S.   614.   .50   L.    Ed.   11-2. 

itig  Van  Norden  v.  Morton,  99  U.  S.  378,  57.     Deland  7:    Platt    County,    155   U.   S. 

25  L.   Ed.   453.  ^  '""   ■      ~  221,  39  L.  Ed.  128;  Oklahoma  City  ?'.  Mc- 

1  U  S  Enc-2S 


386 


APPEAL  AXD  ERROR. 


of  the  supreme  court  of  the  territory  of  Oklahoma  is  specially  provided  for  by 
the  9th  section  of  the  act  of  May  2,  1890,  26  Stat.  81,  85,  providing  a  territorial 
government  for  Oklahoma,  and  is  not  governed  by  the  act  of  congress  of  1874, 
18  Stat.  27,  28,  providing  that  where  a  case  is  tried  by  the  court  in  a  territorial 
court,  and  a  jury  has  been  waived  by  the  parties,  and  appeal  to  this  court  is  the 
only  proper  proceeding  to  obtain  a  review.  The  9th  section  of  the  act  of  1890 
provides  that  writs  of  error  and  appeal  from  the  final  decision  of  the  supreme 
court  of  the  territory  will  be  allowed  and  may  be  taken  to  the  supreme  court 
-of  the  United  States  "in  the  same  manner  and  under  the  same  regulations  as  from 
the  circuit  courts  of  the  United  States."  And  an  action  tried  before  the  court, 
a  jury  having  been  waived  by  consent,  is  an  action  at  law,  and  can  only  be 
reviewed  by  writ  of  error  because  of  the  rule  that  a  final  judgment  in  an  action 
at  law  in  the  circuit  court  of  the  United  States  can  only  be  reviewed  by  writ 
of  error.'''^ 

(2)  Proceedings  in  Equity. — A  writ  of  error  in  equity  proceedings  is  not 
peculiar.  The  twenty-second  section  of  the  judiciary  act  of  1789  gave  a  writ  of 
error  in  chancery  cases,  and  so  the  law  continued  until  1803.'^^  when  it  was  re- 
pealed.^^  And  the  rule  is  well  settled  now  that  a  writ  of  error  is  not  the  ap- 
propriate mode  of  bringing  up,  for  review,  a  decree  in  chancery.  It  should  be 
brought  up  by  an  appeal.''^ 

c.  Reviezv  of  Proceedings  under  Circuit  Court  of  Appeals  Act. — By  §  5  of  the 
act  of  March  3,  1891,  c.  517,  26  Stat.  826,  "appeals  or  writs  of  error  may  be 
taken  from  the  district  courts  or  from  the  existing  circuit  courts"  of  the  United 
States  directly  to  this  court,  in  certain  enumerated  cases,  civil  and  criminal, 
among  others,  "in  cases  of  conviction  of  a  capital  or  otherwise  infamous  crime." 
There  was  no  purpose  by  that  act  to  abolish  the  general  distinction,  at  common 
law,  between  an  appeal  and  a  writ  of  error.^^  Therefore,  the  final  judgment 
of  a  court  of  the  United  States  in  a  case  of  the  conviction  of  a  capital  or  other- 
wise infamous  crime  is  not  reviewable  here  except  upon  writ  of  error."-'     And  this 


Master.  196  U.  S.  529,  49  L.  Ed.  587;  Corn- 
stock  V.  Eagleton.  196  U.  S.  99,  49  L.  Ed. 
402. 

58.  Oklahoma  City  v.  McMaster,  196  U. 
S.  529,  533,  49  L.  Ed.  587.  citing  Deland 
V.  Piatt  County,  155  U.  S.  221,  39  L.  Ed. 
128. 

Where  an  action  of  ejectment  was  tried 
in  the  district  court  of  Oklahoma  terri- 
tory, a  jury  having  been  waived  by  the 
parties,  the  manner  of  reviewing  this 
judgment,  under  the  9th  section  of  the 
act  of  May  2,  1890  (26  Stat,  at  L.  81,  85, 
ch.  182).  providing  that  writs  of  error  and 
appeal  from  the  final  decision  of  the  su- 
preme court  of  the  territory  will  be  al- 
lowed and  inay  be  taken  to  the  supreme 
court  of  the  United  States  in  the  same 
manner  and  under  the  same  regulations 
as  from  the  circuit  courts  of  the  United 
States,  it  was  held,  that  this  case  may  be 
reviewed  by  a  writ  of  error  because  it  is 
an  action  at  law,  although  tried  by  the 
court  upon  a  waiver  of  a  jury.  Okla- 
homa City  V.  McMaster.  196  U.  S.  529, 
49    L.    Ed.    587. 

59.  Erwin  v.  Lowry,  7  How.  172,  183, 
12   L.    Ed.    C55. 

60.  Hemmenway  v.  Fisher,  20  How. 
255.    15    L.    Ed.    799'. 

61.  McCollum  V.  Eager,  2  How.  61,  11 
L.  Ed.  179;  Haves  v.  Fischer,  102  U.  S. 
121,  26  L.  Ed.  95;  Brewster  v.  Wakefield, 
22  How.  118.  16  L.  Ed.  301. 


62.  Bucklin  v.  United  States,  159  U.  S. 
680,  681.  40  L.  Ed.  304,  distinguished  in 
Rice  V.  Ames,  180  U.  S.  371,  45  L.  Ed. 
577;  Fisher  v.  Baker.  203  U.  S.  174,  182, 
51    L.    Ed.    142. 

63.  Bucklin  v.  United  States,  159  U.  S. 
680,    681,    40    L.    Ed.    304. 

In  the  case  of  Bucklin  v.  United  States, 
159  U.  S.  680,  40  L.  Ed.  304,  the  appellant 
was  convicted  of  the  crime  of  perjury, 
and  sought  a  review  of  the  judgment 
against  him  by  an  appeal,  which  we  held 
must  be  dismissed,  upon  the  ground  that 
criminal  cases  were  reviewable  here  only 
by  writ  of  error.  Rice  v.  Ames,  180  U. 
S.   371,  373.   374,  45    L.   Ed.   577. 

The  observation  in  reference  to  the 
court  of  appeals  act  of  March,  1891,  in 
the  case  of  Bucklin  v.  United  States,  159 
U.  S.  680.  40  L.  Ed.  304.  that  "  'There  was 
no  purpose  by  that  act  to  abolish  the  gen- 
eral distinction,  at  common  law,  between 
an  appeal  and  a  writ  of  error,'  may  be 
supplemented  by  saying  that  it  was  no 
purpose  of  the  act  of  1891  to  change  thq 
forms  and  reinedies  theretofore  pursued." 
Ex  partp  Lennon.  l.SO  U.  S.  393,  37  L.  Ed. 
1120;  Ekiu  v.  United  States,  142  U.  S. 
651.  35  L.  Ed.  1146;  Gonzales  v.  Cunning- 
ham, 164  U.  S.  612.  41  L.  Ed.  572;  Rictv. 
Ames,  180  U.  S.  371,  374,  45  L.  Ed.  577, 
reaffirmed  in  Fisher  v.  Bacon,  203  U.  S- 
174,    51    L.    Ed.    142. 


APPEAL  AND  ERROR. 


387 


rule  has  been  applied  to  the  review  of  contempt  cases  by  the  court  of  appeals.^^ 

3.  Review  of  Proceedings  in  District  of  Columbia.— Writs  of  error  from 
this  court  to  the  supreme  court  of  the  District  of  Columbia  are  sued  out  under  the 
same  regulations  as  in  cases  of  judgments  in  the  circuit  court  of  the  United 
States.'i^ 

The  final  judgment  or  decree  of  the  supreme  court  of  the  District  of  Columbia 
in  any  case  in  which  the  matter  in  dispute,  exclusive  of  costs,  exceeds  the  suui 
of  five  thousand  dollars,  may  be  reviewed  and  reversed  or  affirmed  in  this  court 
upon  writ  of  error,  if  the  judgment  is  at  law;  or  upon  appeal,  if  the  decree  is 
in  equity.*^^ 

By  §  8  of  the  act  of  February  9,  1893,  27  Stat.  434,  ch.  74,  final  judg- 
ments or  decrees  of  the  court  of  appeals  are  to  be  re-examined  by  this  court  on 
writ  of  error  or  apj)eal  in  the  same  manner  and  under  the  same  regulations  as 
theretofore  provided  in  cases  of  writs  of  error  or  appeals  from  judgments  in 
the  supreme  court  of  the  District  of  Columbia.**'  It  has  also  been  settled  that 
the  jurisdiction  of  this  court  prior  to  the  act  of  1893,  to  review  the  final  judg- 
ments or  decrees  of  the  supreme  court  of  the  District  of  Columbia,  did  nut  give 
power  to  review  by  appeal  a  matter  not  of  equitable  cognizance.*''* 

4.  Review  of  Order  Remanding  Cause  to  State  Court. — Prior  to  the  act  of 
congress  taking  away  the  right  of  this  court  to  re-examine  an  order  of  the  circuit 
court  remanding  a  cause  removed  from  a  state  court,  such  an  order  of  a  circuit 
court  made  in  a  suit  at  law,  remanding  a  cause  to  a  state  court,  was  to  be  brought 
here  by  writ  of  error ;  and  where  the  suit  was  in  equity,  an  appeal  was  to  be 
taken.  That  is  the  fak-  import  of  the  phrase,  "writ  of  error  or  appeal  as  the 
case  may  be."^^     But  where  no  objection  was  made  in  the  circuit  court  to  the 


64.  Bessette  v.  Conkey  Co.,  194  U.  S. 
:^24,  48  L.  Ed.  907,  reaffirmed  in  In  re 
Lewis,  202  U.    S.   614,   50   L.    Ed.  1172. 

65.  Brightly's  Digest  234,  §  5;  12  Stat, 
at  Large,  764,  §  11;  Washington  v.  Denni- 
son.   6  Wall.   495.   496.   18   L.   Ed.   863. 

66.  Rev.  Stat..  §§  691,  692.  705;  Rev. 
Stat.,  D.  C,  §§  846,  847;  Act  of  March  3, 
1885,  ch.  366,  23  Stat.  443;  Smith  v.  Whit- 
ney.   116    U.    S.    167,    172,   29    L.    Ed.    601. 

The  controversy  raised  by  exceptions 
of  the  next  of  kin  to  the  final  decree  of 
the  court  of  appeals  of  th«  District  of 
Columbia  sitting  as  an  orphans'  court, 
approving  the  final  account  of  an  execu- 
trix, presents  a  case  which  is  in  itself  of 
equitable  cognizance  and  is  properly  re- 
viewable on  appeal  rather  than  on  writ  of 
error.  Kenaday  v.  Sinnott,  179  U.  S.  606, 
613.  45  L.  Ed.  339,  distinoruishing  Ormsby 
r.  Webb,   134  U.   S.    47.   33    L.    Ed.   805. 

"In  Ormsby  v.  Webb.  134  U.  S.  47,  33 
L.  Ed.  805.  it  was  ruled  that  a  writ  of 
error  would  lie  to  review  a  judgment  of 
the  supreme  court  of  the  District  of  Co- 
lumbia, admitting  a  will  to  probate,  not 
merely  because  in  that  ca«e  a  trial  by 
jury  had  been  actually  had,  but  upon  the 
more  general  grounds,  thus  stated  by  Mr. 
Justice  Harlan:  'It  is,  of  course,  un- 
disputed that  a  final  decree  in  equity,  in 
the  court  below,  cannot  be  reviewed  here 
by  means  of  a  writ  of  error.  But  a  pro- 
oe'^ding  involving  the  orip^inal  probate  of 
n  last  will  and  testament  is  not  strictly  a 
proceeding  in  equ'ty.  although  rights 
arising  out  of.  or  dencndent  upon,  such 
probate    have    often    been    determined    by 


-suits  in  equity.  In  determining  the  ques- 
tion of  the  competency  of  the  deceased  to 
rnake  a  will,  the  parties  have  an  absolute 
right  to  a  trial  by  jury,  and  to  bills  of  ex- 
ceptions covering  all  the  rulings  of  the" 
court  during  the  progress  of  such  trial. 
These  are  not  the  ordinary  features  of  a 
suit  in  equity.  A  proceeding  in  this  dis- 
trict for  the  probate  of  a  will,  although  of 
a  peculiar  character,  is  neyertheless  a  case 
in  which  there  may  be  adversary  pa'-ties, 
and  in  which  there  may  be  a  final  judg- 
ment affecting  rights  of  property.  It 
comes  within  the  very  terms  of  the  act 
of  congress  defining  the  cases  in  the  su- 
preme court  of  this  district,  the  final  judg- 
ments in  which  may  be  re-examined  here- 
If  it  be  not  a  case  in  equity,  it  is  to  be 
brought  to  this  court  upon  writ  of  error, 
although  the  proceeding  may  not  be  tech- 
nically one  at  law,  as  distinguished  from 
equity.'  And  see  Campbell  r".  Porter.  162 
U.  S.  478.  40  L.  Ed.  1044."  Kenaday  7: 
Sinnott.  179  U.  S.  606.  613.  45  L.  Ed. 
33?*. 

67.  Kenaday  v.  Sinnott,  179  U.  S.  606, 
613.   45   L.    Ed.   339. 

68.  Ormsby  v.  Webb.  134  TJ.  S.  47,  64. 
33"!..  Ed.  805.  812;  Metropob'tan  R.  Co. 
r.    MacEarland.   195   U.    S.   322.    49   L.    Ed. 

91  '^ 

8'^.  Rnbbitt  7\  Clark,  I03  TI.  S.  6O6,  2fi 
L.  Ed.  .-07;  Kp<rlpr,r1  7'.  Gebhardt,  112  U. 
S.   502.   504.  28   L.   Ed.   811. 

Under  the  act  of  ^-ongress  giving  this 
court  a  ri!7ht  to  rey'f'w  an  order  of  the 
circuit  court  remanding  an  action  re- 
moved   thereto    from    a    state    court,    it    is 


388 


APPEAL  AND  ERROR. 


form  of  the  proceeding  for  reviewing  in  this  court  an  order  of  the  circuit  court 
remanding  a  suit  removed  thereto  from  a  state  court,  this  court  will  not  delay  a 
decision  on  the  merits  because  of  the  irregularity  which  appears/^ 

5.  Review  oe  Proceedings  in  State  Courts. — It  has  been  the  unquestioned 
practice  under  the  act  of  1789  from  its  passage  until  now.  that  decrees  in  chan- 
cery, and  in  admiralty  also,  if  a  state  court  shall  entertain  jurisdiction  of  a  case 
essentially  of  admiralty  cognizance,  are  to  be  removed  into  this  court  from  the 
state  court  by  writ  of  error  as  well  as  judgments  at  law.'^ 

6.  Review  of  Proceedings  in  Territorial  Courts — a.  In  General. — Although 
the  laws  of  the  territory  abolished  the  distinction  between  cases  at  law  and  cases 
in  equity,  and  required  all  cases  to  be  moved  from  an  inferior  to  a  higher  court 
by  writ  of  error,  and  not  by  appeal,  yet  such  laws  cannot  regulate  the  process 
of  this  court. '- 

b.  Cases  at  Law  and  in  Equity. — The  acts  of  congress,  relating  to  judicial  pro- 
ceedings in  the  territory  of  Florida,  give  the  right  of  appeal  to  the  supreme  court 
of  the  United  States,  in  cases  of  equity,  of  admiralty  and  maritime  jurisdiction, 
and  prize  or  no  prize ;  but  cases  at  law  are  to  be  brought  up  by  writ  of  error, 
as  provided  for  by  the  judiciary  act  of  1789;  it  has  always  been  held,  that  a  case 
at  law  cannot,  under  the  act  of  1803,  be  brought  to  the  supreme  court  by 
appeal.'^ -^ 

The  manner  of  reviewing  final  judgments  at  law,  of  the  supreme  court 
of  the  territory  of  Oklahoma,  under  the  9th  section  of  the  act  of  May  2,  1890 
(26  Stat,  at  L.  81.  85  ch.  182).  is  by  writ  of  error  and  not  appeal.'''-*  Therefore, 
an  appeal  is  not  the  proper  method  to  review  a  judgment  in  the  supreme  court 
of  the  territory  of  Oklahoma,  affirming  a  judgment  of  the  district  court  of  Pawnee 


held,  that  actions  at  law  should  be 
brought  here  bj'  writ  of  error,  and  that 
where  the  suit  is  in  equity  an  appeal 
.should  be  taken.  That  is  a'  fair  import 
of  the  phrase  "on  writ  of  error  or  appeal, 
as  the  case  may  be."  Babbitt  v.  Clark, 
103,  U.  S.  606,  26  L.   Ed.   507. 

70.  Babbitt  v.  Clark,  103  U.  S.  606,  26 
L.    Ed.    507. 

71.  Murdock  v.  Memphis,  20  Wall.  590, 
622.  22  L.  Ed.  429.  See  post,  "Over  State 
Courts,"   III,   D,   7. 

72.  Brewster  v.  Wakefield,  22  How.  118. 
16   L.   Ed.  301. 

The  laws  of  the  territory  have  abolished 
the  distinction  between  cases  at  law 
and  cases  in  equity,  and  both  are  blended 
in  the  same  proceeding,  without  any 
regard  to  forms  and  rules  of  pro- 
ceeding, either  at  law  or  in  equity, 
and  a  case  cannot  be  removed  from  an 
inferior  to  an  appellate  territorial  court, 
except  by  writ  of  error.  "And  it  is  urged 
that  this  case,  under  the  laws  of  Minne- 
sota, ought  to  be  regarded  as  a  case  at 
law.  and  removable  to  this  court  by  writ 
of  error  only,  and  not  by  appeal.  But  the 
case  presented  bj'  the  record  is  not  a  case 
at  law,  according  to  the  meaning  of  those 
words,  in  courts  which  recognize  the  dis- 
tinction between  law  and  equity.  On  the 
contrary,  it  is  a  proceeding  in  the  nature 
of  a  bill  in  equity  to  foreclose  a  mort- 
gage, in  which  the  facts  as  well  as  the 
law  are  to  be  decided  by  the  court;  and 
an  appeal,  and  not  a  writ  of  error,  was 
the  appropriate  mode  of  bringing  the  case 
before   this   court.      The    laws   or   practice 


of  the  territory  cannot  regulate  the  proc- 
ess by  which  this  court  exercises  its  ap- 
pellate power.  Nor,  indeed,  can  there  be 
any  such  thing  as  a  suit  at  law,  as  con- 
tradistinguished from  a  suit  in  equity,  in 
the  courts  of  the  territorj',  where  legal 
rights  and  equitable  rights  must  be 
blended  together  and  prosecuted  in  the 
same  suit,  without  any  regard  to  the  rules 
and  practice  of  courts  of  common  law  or 
courts  of  equity."  Brewster  v.  Wake- 
field. 22   How.    118,   16   L.   Ed.   301,   304. 

Where  the  jurisdiction  of  the  court  ap- 
pears of  record,  the  subsequent  action  of 
the  court  is  the  exercise  of  its  judicial  au- 
thority, and  can  only  be  questioned  on 
appeal;  the  mode  provided  by  the  law  of 
the  territory  for  review  of  the  determi- 
nation of  the  court.  Comstock  v.  Craw- 
ford, 3  Wall.  396.  18  L.  Ed.  34. 

73.  Parish  v.  Ellis.  16  Pet.  431,  10  h. 
Ed.   1028. 

74.  Oklahoma  City  v.  McMaster,  196  U. 
S.  529,  49  L.  Ed.  587.  reaffirmed  in  Meyer 
V.  Campbell  &  Tauco,  200  U.  S.  611,  50  L. 
Ed.  619;  Comstock  z\  Eagleton,  196  U. 
S.  99,  49  L.  Ed.  402. 

In  actions  at  law  coming  from  the  ter- 
ritory of  Oklahoma  where  the  case  is 
tried  without  a  jury,  the  proper  way  to 
review  the  judgments  of  the  supreme 
courts  of  that  territory  is  by  writ  of  error. 
National,  etc..  Bank  z'.  First  National 
Bank.  203  U.  S.  296,  51  L.  Ed.  192,  citing 
Comstock  i:  Eagleton,  196  U.  S.  99.  49 
L.  Ed.  402;  Oklahoma  City  v.  McMaster, 
196  U.  S.  529.  49  L.  Ed.  587;  Guss  V.  Nel- 
son,  200   U.   S.  298.   50   L.   Ed.   489. 


APPEAL  AND  ERROR.  389 

county  in  that  territory,  sustaining  a  demurrer  to  and  dismissing  a  petition  in  an 
action  to  recover  damages  for  false  imprisonment.  Because  the  act  of  May  2, 
1890,  26  Statutes  at  Large  81.  ch.  182,  provides  that  writs  of  error  and  appeals 
from  the  final  decisions  of  the  supreme  court  of  the  territory  of  Oklahoma  shall 
be  allowed  and  may  be  taken  to  the  supreme  court  of  the  United  States  in  the 
same  manner  and  under  the  same  regulations  as  from  the  circuit  courts  of  the 
United  States,  and  it  is  well  settled  that  final  judgments  of  the  circuit  courts  of 
the  United  States  in  actions  at  law  can  only  be  revised  on  writs  of  error." ^  The 
act  of  1874  regarding  territorial  courts  is  not  applicable.'*^ 

c.  Form  of  Proceeding  as  Dependent  on  Whether  or  Not  There  Has  Been  Trial 
by  Jury. — By  the  act  of  congress  "concerning  the  practice  in  territorial  courts  and 
appeals  therefrom,"  approved  April  7,  1874  (18  Stat.,  pt.  3,  p.  27),  the  appellate 
jurisdiction  of  this  court  over  the  judgments  and  decrees  of  the  territorial  courts 
in  cases  of  trial  by  jury  is  to  be  exercised  by  a  writ  of  error,  and  in  all  other  cases 
by  appeal.'^" 

In  Cases  of  Trial  by  Jury. — The  only  proper  way  of  bringing  here  for  review 
a  suit  at  law  tried  by  a  jury  in  the  territorial  court,  is  bv  writ  of  error.'^**  But  the 
provision  of  the  act 'of  April  7,  1874,  c.  80,  §  2,  18  Stat.' 27,  28,  regulating  the  ap- 
pellate jurisdiction  of  this  court  over  the  territorial  courts  and  permitting  a  writ 
of  error  "in  cases  of  trial  by  jury"  only,  evidently  has  regard  to  a  trial  by  jury,  as 
in  an  action  at  common  law,  in  which  there  is  and  must  be  a  trial  by  jury,  and  the 
court  is  not  authorized  to  try  and  determine  the  facts  for  itself,  unless  a  jury  is 
waived  by  the  parties  according  to  statute ;  and  has  no  application  to  a  trial  of  spe- 
cial issues  submitted  to  a  jury  in  a  proceeding  in  the  nature  of  a  suit  in  equity, 
not  as  a  matter  of  right,  or  to  setde  the  issues  of  fact,  but  at  the  discretion  of  the 
court,  and  simply  to  inform  its  conscience,  and  to  aid  it  in  making  up  its  own 
judgment  upon  the  facts,  and  the  real  trial  of  the  facts  is  by  the  court  and  not  by 
a  jury.  In  all  proceedings  in  the  territorial  courts  in  the  nature  of  suits  in  equity, 
therefore,  as  well  as  in  those  proceedings  in  the  nature  of  actions  at  common 
law  in  which  no  trial  by  jury  is  had  (either  because  a  jury  has  been  duly  waived, 
or  because  the  issues  tried  are  issues  of  law  only),  the  appellate  jurisdiction  of 
this  court  must  be  invoked  by  appeal,  and  not  by  writ  of  error." ^ 

Where  There  Is  No  Trial  by  Jury. — Under  the  act  of  April  7,  1874,  c.  80,  § 
2,  18  Stat.  27,  the  appropriate  remedy  to  review  the  judgment  of  a  territorial 
court,  where  there  is  no  trial  by  jury,  is  by  appeal  and  not  by  writ  of  error. ^^     A 

75.  Comstock  v.  Eagleton,  196  U.  S.  99,  78.  United  States  v.  Hailey,  118  U.  S. 
49    L.    Ed.   402.                                                                 233.   30   L.    Ed.    173,   citing   Stringfellow  v. 

76.  Oklahoma  City  v.  McMaster,  196  Cain,  99  U.  S.  610,  25  L.  Ed.  421;  United 
U.  S.  529,  49  L.  Ed.  587;  Guss  v.  Nel-  States  v.  Railroad  Co.,  105  U.  S.  263,  26 
son,  200  U.   S.   298,  50  L.  Ed.  489.  L.   Ed.    1021;    Hecht   v.    Boughton,  105    U. 

77.  Stringfellow  v.  Cain,  99  U.  S.  610,  S.  235,  26  L.  Ed.  1018;  Woolf  v.  Hamil- 
611,  25   L.    Ed.   421,  reaffirmed   in   Cannon  ton,  108  U.   S.  15,  27  L.  Ed.   635. 

V.   Pratt.  99  U.   S.   619,  25   L.   Ed.  446.  79.   Davis  v.  Alvord,  94  U.   S.  545,  24  L. 

In    allowing    legal    and    equitable    reme-  Ed.   283;      Davis   zf.    Fredericks,   104   U.   S. 

dies   to  be   sought   in  the  same   action   be-  618.   26    L.    Ed.   849;      Story   v.    Black,   119 

fere   the    territorial    courts,    congress    saw  U.    S.    235,    30    L.    Ed.    341;      Idah^.    etc.. 

fit  to  establish  an  inflexible  rule  by  which  Land  Co.  v.  Bradbury.   123  U.  S.  509,  514, 

it    could    be    determined    whether    a    case  33   L.   Ed.   433. 

should  be  brought  here  from  those  courts  80.    Bonnefield  v.   Price,   154   U.   S.,  Ap- 

for  review  by  writ  of  error  or  appeal,  and  pendix,    672,    26    L.    Ed.    1022;      Upton    v. 

provided  that  cases  tried  by  a  jury  should  Steele,    154    U.    S.,    Appendix,    675,    26    L. 

come  on  writ   of  error,  and   all  others  by  Ed.    1069;      Upton    v.    Mason,    154    U.    S., 

appeal.      This    makes    the    form    of    pro-  .Appendix.  675,  26  L.   Ed.   1069;     Hecht  V. 

ceeding     depend     on     the     single    fact    of  Boughton.   105  U.   S.  235,  26  L.   Ed.   1018; 

whether  there  has  been,  or  not.  a  trial  by  United   Stafes   v.   Railroad    Co.,   105   U.   S. 

jury.     Stringfellow   v.   Cain.   99   U.    S.    610,  263,   26    L.    Ed.    1021;    Naeglin    v.    De    Cor- 

25   L.    Ed.   421;      Hecht   v.    Boughton.    105  doba.   171  U.   S.   638,   43   L.    Ed.   315;     Ar- 

U.  S.  235.  236.  26  L.  Ed.  1018.  followed  in  mijo  v.   Armijo.    181   U.   S.   558,   561,  45    L. 

Kahn  V.  Hamilton,  154  U.  S.  appx.  677,27  Ed.   1000;     Woolf  v.   Hamilton,   108  U.   S. 

L.   Ed.   635.  15,  27  L.   Ed.  635;     Story  v.  Black,  119  U. 


390 


APPEAL  AND  ERROR. 


writ  of  error  to  a  territorial  court  where  the  case  is  not  tried  in  the  court  below 
by  a  jury  will  be  dismissed,  because  the  act  of  April  7th,  1874,  c.  80.  §  18,  Stat.  27, 
makes  it  necessary  to  bring  the  judgment  here  for  review  by  appeal  and  not  by 
writ  of  error. ^^ 

7.  Agreement  of  Parties  or  Counsel. — Several  cases  decide  that  the  agree- 
ment of  the  parties  cannot  authorize  this  court  to  revise  a  judgment  of  an  inferior 
court  in  any  other  mode  of  proceeding  than  that  which  the  law  prescribes.^^  f  ^^ 
distinction  between  writs  of  error  and  appeals  cannot  be  overthrown  by  an  agree- 
ment of  counsel  in  the  court  below,  that  all  the  evidence  in  the  cause  shall  be 
introduced  and  considered  as  a  statement  of  facts. ^^ 

8.  Rules  of  Practice  in  State  Courts — a.  In  General. — The  mode  of  re- 
moving a  case  from  an  inferior  to  an  appellate  court  is  regulated  by  acts  of  con- 
gress, and  does  not  depend  on  the  laws  or  practice  of  the  state  in  which  the  court 
may  happen  to  be  held.^-*  Neither  the  laws  nor  the  practice  of  any  state  can  au- 
thorize a  proceeding  in  the  courts  of  the  United  States  different  from  that  which 
was  established  by  the  acts  of  1789  and  1803.^5     And  although  the  state  in  which 


S.  235,  236.  30  L.  Ed.  341;  Gregorj%  etc., 
Min.  Co.  V.  Starr,  141  U.  S.  232,  35  L.  Ed. 
715;  Bierce  v.  Hutchins,  205  U.  S.  340, 
51  L.  Ed.  828;  Stringfellow  v.  Cain,  99  U. 
S.  610,  25  L.  Ed.  421;  Murphy  v.  Ram- 
sey, 114  U.  S.  15,  35,  29  L.  Ed.  47. 

Under  the  second  section  of  the  act  of 
April  7.  1874,  c.  80  (18  Stat.,  pt.  3.  p.  27), 
an  appeal  is  the  proper  proceeding  by 
which  to  review  in  this  court  a  judgment 
of  a  territorial  court  in  a  suit  where  there 
was  not  a  trial  by  jury.  Hecht  v.  Bough- 
ton,  105  U.  S.  235.  26  L.  Ed.  1018,  re- 
affirmed in  United  States  v.  Railroad  Co., 
105  U.  S.  263,  26  L.   Ed.  1021. 

A  writ  of  error  is  not  the  appropriate 
remedy  to  bring  here  for  review  a  judg- 
ment of  the  supreme  court  of  the  terri- 
tory of  Wyoming  in  a  case  where  the 
trial  was  not  by  jury.  The  appropriate 
remedy  under  the  act  of  April  7th.  1874, 
was  by  appeal.  Bonnefield  v.  Price,  154 
U.  S.  App.  672,  26  L.  Ed.  1022,  citing 
Hecht  r.  Boughton.  105  U.  S.  235,  26  L. 
Ed.  1018;  Upton  v.  Steele.  154  U.  S.  Appx. 
675,  26  L.  Ed.  1069;  Upton  v.  Macon,  154 
U.   S.   Appx.   675,   26   L.    Ed.   1069. 

81.  Woolf  V.  Hamilton,  108  U.  S.  15,  27 
L.  Ed.  635,  citing  Hecht  v.  Boughton,  105 
U.   S.   235.  26  L.   Ed.   1018. 

82.  Mordecai  v.  Lindsay.  19  How.  119, 
200.  15  L.  Ed.  624;  Merrill  v.  Petty,  16 
Wall.  338,  346,  21  L.  Ed.  499;  Scott  v. 
Sandford,  19  How.  393.  15  L.  Ed.  691; 
Kelsev  v.  Forsyth,  21  How.  85,  16  L.  Ed. 
32;  Montgomery  v.  Anderson,  21  How. 
386,    16    L.    Ed.    160. 

Neither  the  consent  of  parties  nor  the 
allowance  of  the  appeal  in  the  court  ap- 
pealed from  can  enable  this  court  to  re- 
view the  judgment  of  the  circuit  court  in 
any  other  form  of  proceeding  than  the 
law  prescribes.  Kelsey  v.  Forsvth,  21 
How.  85,  16  L.  Ed.  32;  Callan  t'. 'May,  2 
Black  541.  17  L.  Ed.  281;  United  States 
V.  Emholt,  105  U.  S.  414,  416.  26  L.  Ed. 
1077. 

83.  Minor  v.  Tillotson,  2  How.  392.  11 
L.   Ed..  312. 


84.  Hudgins  v.  Kemp,  18  How.  530,  IS 
L.  Ed.  511;  New  Orleans  v.  Louisiana 
Construction  Co.,  129  U.  S.  45,  32  L.  Ed. 
607. 

Circuit  courts  may  adopt  the  forms  of 
pleading  and  practice  of  state  courts,  but 
no  state  legislation  can  be  applied  to  the 
practice  of  this  court,  and  the  mode  in 
which  causes  shall  be  brought  into  it  for 
review.  Graham  v.  Bayne,  18  How.  60.  IS 
L.   Ed.  265. 

The  decisions  or  practice  of  the  courts 
of  Virginia  cannot  affect  the  mode  of  re- 
moving a  case  from  an  inferior  to  an  ap- 
pellate court  of  the  United  States.  Hud- 
gins V.  Kemp,  18  How.  530,  15  L.  Ed.  511,. 
512.    514. 

In  Van  Norden  v.  Morton.  99  U.  S.  378^ 
25  L.  Ed.  453,  where  a  bill  addressed  to 
the  circuit  court  of  the  United  States  for 
the  District  of  Louisiana,  sitting  in  chan- 
cery, alleged  that  complainant  was  the 
owner  of  a  dredge  boat,  which  had  been 
seized  on  an  execution  against  another 
party,  and  prayed  for  an  injunction,  for 
the  quieting  of  title  and  possession  and 
for  damages,  it  was  held,  that,  under  the 
provisions  of  the  Louisiana  Code  of  Prac- 
tice pertaining  to  the  subject,  the  remedy 
was  at  law  and  not  in  equity,  and  the  bill 
was  for  that  reason  dismissed.  New  Or- 
leans V.  Louisiana  Construction  Co.,  129' 
U.  S.  45,  46.  32  L.  Ed.  607. 

"In  many  jurisdictions  an  appeal  from 
a  court  of  general  jurisdiction  is  in  the 
nature  of  a  writ  of  error,  but  that  is  not 
so  in  respect  of  the  circuit  courts  of  the 
United  States,  as  to  which  the  distinction 
between  the  two  modes  of  review  has 
generally,  if  not  always,  been  observed 
in  the  acts  of  congress.  Whatever  the 
course  pursued  in  the  courts  of  the  state 
of  Missouri  under  the  statutes  of  that 
state  in  relation  to  the  allowance  of  ap- 
peals, the  appellate  jurisdiction  of  this 
court  is  regulated  by  the  acts  of  congress." 
Deland  v.  Platte  County,  155  U.  S.  221, 
222.  39   L.   Ed.   128. 

85.  Campbell  v.  Boyreau,  21  How.  223, 
16    L.   Ed.   96. 


APPEAL  AXD  ERROR. 


391 


the  judgment  was  given  allowed  appeals,  by  statute,  in  similar  cases  arising  in  the 
courts  of  the  state,  yet  it  does  not  follow  from  the  adoption  of  the  forms  of  proc- 
ess in  execution  that  the  courts  of  the  United  States  adopted  the  modes  of  review- 
ing the  decisions  of  inferior  courts. ^^ 

Effect  of  Uniformity  Act. — Since  the  act  of  June  1,  1872.  c.  255,  §  5.  indeed, 
the  practice,  pleadings,  and  forms  and  modes  of  proceeding,  in  actions  at  law 
in  the  circuit  and  district  courts  of  the  United  States,  are  required  to  conform,  as 
near  as  may  be.  to  those  existing  at  the  time  in  like  causes  in  the  courts  of  record 
of  the  state  within  which  they  are  held,  any  rule  of  court  to  the  contrary  notwith- 
standing.^" But  this  act  does  not  include  the  manner  of  bringing  cases  from  a 
lower  court  of  the  United  States  to  this  court. ^^'^ 

b.  Review  of  C<auses  from  Louisiana. — This  court  has  so  often  decidefl  that 
notwithstanding  the  peculiarities  of  the  Civil  Code  of  Louisiana,  the  distinctions 
between  law  and  equity  must  be  preserved  in  the  federal  courts,  and  that  equity 
causes  from  that  circuit  must  come  here  by  appeal,  and  common-law  causes  by 
writ  of  error,  that  we  cannot  now  depart  ffom  that  rule  without  overruling  nu- 
merous decisions  and  a  well-settled  course  of  practice. ^^  As  the  pleadin.gs  in  the 
circuit  court  for  the  district  of  Louisiana  are  by  petition  and  answer,  both  at  law 
and  in  equity,  the  court  must  look  at  the  essential  nature  of  the  proceeding  to  de- 
termine whether  it  belongs  to  the  one  or  to  the  other. ^'  Therefore,  a  judgment 
in  the  circuit  court  of  Louisiana  in  the  ordinary  action  by  petition  and  summons 
upon  a  promissory  note  cannot  be  brought  into  ^his  court  by  appeal.  It  must  come 
here,  if  at  all.  on  writ  of  error. ^^ 

9.  Distinction  between  Appeal.s  and  \\^rits  of  Error  as  Regards  the 
Scope  of  the  Remedies. — In  General. — The  appropriate  and  only  mode  of  bring- 
ing cases  of  law  for  review  before  this  court  is  a  writ  of  error.  An  appeal  is  ap- 
plicable only  in  chancery  cases.  The  distinction  is  obvious,  and  has  been  steadily 
observed  and  maintained  by  the  United  States  supreme  court  for  a  century.    Equity 


86.  Bayard  v.  Lombard,  9  How.  530,  13 
L.  Ed.  245. 

87.  17  Stat.  197;  Rev.  Stat.,  §  914;  Hud- 
son r.  Parker,  156  U.  S.  277.  281,  39  L. 
Ed.    4'?4. 

88.  In  re  Chateaugay  Co.,  128  U.  S.  544, 
32  L.  Ed.  508;  Fishburn  z:  Chicago,  etc., 
R.  Co.,  137  U.  S.  60,  34  L.  Ed.  585;  Hud- 
son V.  Parker,  156  U.  S.  277,  281,  39  L. 
Ed.  424. 

89.  The  San  Pedro,  2  Wheat.  132,  4  L. 
Ed.   202;   McCollum  v.   Eager,  2   How.   61, 

11  L.  Ed.  179;  Minor  v.  Tillotson,  2  How. 
392,  11  L.  Ed.  312;  Surgett  v.  Laplice,  8 
How.  48,  12  L.  Ed.  982;  Brewster  v. 
Wakefield.  22  How.  118,  16  L.  Ed.  301; 
Thompson  v.  Railroad  Companies,  6  Wall. 
134.    18    L.    Ed.    765;      Walker   v.    Drevil'.e. 

12  Wall.  440,  442,  20  L.  Ed.  429;  Marin  v. 
Lalley,  17  Wall.  14,  21  L.  Ed.  596;  Flei- 
tas  V.  Richardson,  147  U.  S.  538,  547,  37 
L.    Ed.   272. 

In  Louisiana,  the  courts  of  the  United 
States  have  been  compelled  to  adopt  the 
forms  of  pleading  and  practice  peculiar 
to  the  civil  law  and  the  Code.  That  sys- 
tem knows  no  distinction  between  law  and 
equity.  All  cases  are  tried  alike,  on  pe- 
tition and  answer,  with  or  without  the 
intervention  of  a  jury,  as  the  parties  may 
elect.  But  this  court  having  separate  ju- 
risdiction, both  in  equity  and  law,  is  com- 
pelled   to    distinguish.      They    can    review 


cases  in  common  law  by  writ  of  error 
only,  and  on  bills  of  exception  presenting 
questions  of  law.  The  circuit  courts  may 
adopt  the  forms  of  pleading  and  practice 
of  the  state  courts,  but  no  state  legisla- 
tion can  be  applied  to  the  practice  of  this 
court,  and  the  mode  in  which  causes  shall 
be  brought  into  it  for  review.  Graham  v. 
Bayne.  18  How.  60,  61,  15  L.   Ed.  365. 

In  Walker  v.  Dreville,  12  Wall.  440, 
20  L.  Ed.  429.  the  court,  by  Mr.  Justice 
Miller,  says:  "We  have  so  often  decided 
that,  notwithstanding  the  peculiarities  of 
the  Civil  Code  of  Louisiarra,  the  distinc- 
tion between  law  and  equity  must  be  pre- 
served in  the  federal  courts,  and  that  eq- 
uity causes  from  that  circuit  must  come 
here  by  appeal,  and  common-law  causes 
by  writ  of  error,  that  we  cannot  now  de- 
part from  that  rule  without  overruHtrg 
rmmerous  decisions  and  a  well-established 
course  of  practice.  The  present  case  being 
a  proceeding  in  equity  brought  here  by 
writ  of  error,  and  not  bv  appeal,  the  writ 
must  be  dismissed."  In  Bondurant  r. 
Watson,  103  U.  S.  281.  26  L.  Ed.  447,  and 
Ex  parte  Ralston,  119  U.  S.  613.  30  L. 
Ed.  506,  the  same  doctrine  is  reaffirmed, 
Chief  Justice  Waite  in  each  case  deliver- 
ing   the    opinion. 

90.  Walker  v.  Dreville,  12  Wall.  440,  20 
L.  Ed.  429. 

91.  Jones  v.  La  Vallette,  5  Wall.  579, 
18   L.    Ed.    550. 


392 


APPEAL  AND  ERROR. 


cases  must  be  brought  up  by  appeal,  which  brings  up  the  entire  record  upon  the 
facts  as  well  as  the  law.  Cases  at  law  can  only  be  brought  up  by  writ  of  error, 
which  simply  brings  up  the  record  for  the  correction  of  errors  of  law ;  that  is  to 
say,  a  writ  of  error  carries  up  nothing  but  questions  of  law,  and  these  questions 
are' to  be  determined  according  to  the  facts  found  in  the  record.  An  appeal  car- 
ries up  everything.  It  substitutes  the  higher  court  in  place  of  the  lower,  and  all 
questions,  whether  of  fact  or  of  law,  depending  upon  evidence  or  law,  may  be  re- 
examined by  the  appellate  court,  just  as  they  were  originally  examined  by  the 
lower  court  having  original  jurisdiction.  This  was  the  practice  in  England  at  the 
time  of  the  adoption  of  our  constitution,  and  had  been  for  a  long  time;  but  by 
some  oversight  or  omission  in  the  original  judiciary  act  of  September  24,  1789 
(1  Stat.  c.  20),  this  distinction  was  not  preserved,  and  that  statute  (§22)  pro- 
vided generally  for  the  review  of  cases  going  up  from  the  circuit  court,  whether 
legal  or  equitable,  by  writ  of  error ;  so  that  in  all  cases,  whether  at  law  or  in  equity 
or  admiralty,  a  writ  of  error  was  the  proper  proceeding  to  obtain  a  review  in  the 
supreme  court.  After  this  law  load*  remained  in -force  about  14  years,  from  Sep- 
tember, 1789,  to  March,  1803,  this  distinction,  which  had  always  existed  in  the 
English  practice,  was  found  so  important  that  congress  changed  the  law,  by  act 
of  March  3,  1803  (2  Stat.  c.  40),  by  providing  that,  in  cases  of  equity  and  admi- 
ralty and  maritime  jurisdiction,  and  of  prize  and  no  prize,  an  appeal  should  be  al- 
lowed to  the  supreme  court.  The  effect  of  this  provision  was  to  repeal,  by  implica- 
tion, the  law  of  1789,  so  far  as  that  allowed  a  writ  of  error  in  a  case  in  equity 
or  admiralty,  and  to  harmonize  the  system  of  appellate  jurisdiction,  and  make  it 
conform  to  the  ancient  and  well-established  principles  of  judicial  proceedings. 
The  writ  of  error,  in  cases  at  common  law,  remains  in  force,  and  submits  to  the 
revision  of  the  supreme  court  only  the  law.  The  remedy  by  appeal  is  confined  to 
equity  and  admiralty  cases,  and  brings  before  the  appellate  court  the  facts  as  well 
as  tlie  law.  These  remedies  could  never  in  the  United  States  courts  be  used  inter- 
changeably.^^ 


»2.  The  San  Pedro,  2  Wheat.  123.  4  L. 
Ed.  202;  The  Francis  Wright,  105  U.  S. 
3S1,  384,  26  L.  Ed.  1100;  Bessette  v.  Con- 
key  Co..  194  U.  S.  324,  48  L.  Ed.  997,  re- 
affirmed in  In  re  Lewis,  202  U.  S.  614,  50 
L.   Ed.   1172. 

"An  appeal  is  a  process  of  civil-law 
origin,  and  removes  a  cause  entirely,  sub- 
jecting the  facts  as  well  as  *^he  law  to  a 
review  and  retrial;  but  a  writ  of  error  is 
a  suit  of  common-law  origin,  and  it  re- 
Hioves  nothing  for  retrial  but  the  law." 
Wiscart  v.  D'Auchy,  3  Dall.  321.  1  L.  Ed. 
619;  Dower  v.  Richards,  151  U.  S.  658, 
38  L.  Ed.  305;  Elliott  v.  Toeppner,  187 
U.  S.  327,  47  L.  Ed.  200;  Minor  v.  Til- 
lotson,  2  How.  392.  11  L.  Ed.  312;  Pren- 
tice V.  Zanc.  8   How.  470,  12   L.   Ed.  1160. 

This  question  appears  to  have  been  con- 
sidered by  the  supreme  court  so  early 
as  the  year  1796,  in  the  case  of  Wiscart 
V.  D'Auchy.  3  Dall.  321,  1  L.  Ed.  619.  Chief 
Justice  Ellsworth,  in  delivering  the  opin- 
ion of  the  court  in  that  case,  expresses 
himself  as  follows:  "The  act  of  1789 
speaks  of  appeal  and  writ  of  error,  but 
does  not  confound  them.  They  are  to  be 
understood  according  to  their  ordinary 
acceptation.  An  appeal  is  a  civil-law  proc- 
ess, and  removes  a  cause  entirely,  sub- 
jecting the  law  and  fact  to  review  and 
retrial.  A  writ  of  error  is  a  common-law 
process,    and   removes   for   re-examination 


nothing  but  the  law.  This  statute  ob- 
serves this  distinction."  Unted  States  v. 
Goodwin,  7  Cranch  108,  110,  3  L.  Ed.  284. 
285. 

The  appeal,  which  is  the  only  mode  by 
which  a  decree  in  chancery  or  in  admi- 
ralty can  be  brought  from  an  inferior 
federal  court  to  this  court,  does  bring 
up  the  whole  case  for  re-examination  on 
all  the  merits,  whether  of  law  or  fact,  and 
for  consideration  on  these,  as  though  no 
decree  had  ever  been  rendered.  The  writ 
of  error  is  used  to  bring  up  for  review 
all  other  cases,  and  when  thus  brought 
here,  the  cases  are  not  open  for  re-ex- 
amination on  their  whole  merits,  but 
every  controverted  question  of  fact  is  ex- 
cluded from  consideration,  and  only  such 
errors  as  this  court  can  see  that  the  in- 
ferior court  committed,  and  not  all  of 
these,  can  be  the  subject  of  this  court's 
corrective  power.  Murdock  v.  Memphis, 
20  Wall.   590,  621,  22  L.   Ed.   429. 

The  word  appeal  in  the  22d  section  of 
the  judicial  law  of  1789  which  provides  for 
the  review  of  final  judgments  and  de- 
crees in  civil  actions  in  the  district  and 
circuit  court,  is  to  be  understood  technic- 
ally. Chief  Justice  Ellsworth,  in  deliv- 
ering the  opinion  of  the  court  in  Wis- 
cart V.  D'Auchy,  3  Dall.  321,  1  L.  Ed.  619, 
expresses  himself  as  follows:  "The  act  of 
1789,  speaks   of  appeal  and  writ   of  error, 


APPEAL  AND  ERROR. 


393 


In  the  language  of  Mr.  Chief  Justice  Fuller:  "The  distinction  between  a 
writ/of  error  which  brings  up  matter  of  law  only,  and  an  appeal,  which,  unless  ex- 
pressly restricted,  brings  up  both  law  and  fact,  has  always  been  observed  by  this 
court,  and  been  recognized  by  the  legislation  of  congress  from  the  foundation  of 
the  government. "^^ 

Mr.  Powell,  in  his  work  on  Appellate  Procedure  (§  4,  ch.  6),  says:  "Al- 
though the  various  modes  of  proceedings  are  prosecuted  in  different  ways  and 
called  by  different  appellations,  as  'appeal,'  'review,'  'error,'  and  the  like,  and  these 
names  often  confounded  and  misapplied,  yet  the  object  to  be  attained  is  one  or 
the  other  of  two  results,  either  by  an  appeal  to  obtain  a  rehearing  and  new  trial 
of  the  case  upon  its  facts  and  merits,  or  a  review  of  alleged  errors  in  law  in  the 
record  of  the  judgment  and  proceedings  which  will  result  either  in  the  reversal  or 


but  does  not  confound  them.  They  are  to 
be  understood  according  to  their  ordinary 
acceptation.  An  appeal  is  a  civil-law 
process,  and  removes  a  cause  entirely, 
subjecting  the  law  and  fact  to  a  review 
and  retrial.  A  writ  of  error  is  a  common- 
law  process,  and  removes  for  re-examina- 
tion nothing  but  the  law.  This  statute 
observes  this  distinction.  In  admiralty 
and  maritime  cases  an  appeal  is  allowed 
from  the  district  to  the  circuit  court,  if 
the  matter  in  dispute  exceeds  $300,  and 
yet  decrees  and  judgments  in  civil  actions 
may  be  removed  by  writ  of  error,  from 
the  district  to  the  circuit  court  though 
the  value  barely  exceeds  $50."  And  this 
technical  distinction  between  a  writ  of  er- 
ror and  an  appeal,  and  between  the  differ- 
ent cases  to  which  they  were  applicable, 
was  clearly  marked  in  the  act  of  February 
13,  1801,  which  was  afterwards  repealed 
by  the  act  of  March  8,  1802.  United 
States  V.  Goodwin,  7  Cranch  108,  3  L.  Ed. 
284. 

Under  the  first  judiciary  act  passed  Sep- 
tember 24th,  1789,  it  was  held,  that  a  de- 
cree in  admiralty  could  not  be  reviewed 
by  this  court  in  matter  of  fact;  and  Chief 
Justice  Ellsworth,  after  laying  down  the 
rule  that  the  appellate  jurisdiction  of  this 
court  could  only  be  exercised  within  the 
regulations  prescribed  by  congress,  said: 
"It  is  to  be  considered,  then,  that  the  ju- 
dicial statute  of  the  United  States  speaks 
of  an  appeal  and  of  a  writ  of  error;  but  it 
does  not  confound  the  terms,  nor  use 
them  promiscuously.  They  are  to  be  un- 
derstood, when  used,  according  to  their 
ordinary  acceptation,  unless  something  ap- 
pears in  the  act  itself  to  control,  modify 
or  change  the  fixed  and  technical  sense 
which  they  have  previously  borne.  An 
appeal  is  a  process  of  civil-law  origin,  and 
removes  a  cause  entirely,  subjecting  the 
fact,  as  well  as  the  law,  to  a  review  and 
retrial;  but  a  writ  of  error  is  a  process  of 
common-law  origin,  and  it  removes  noth- 
ing for  re-examination  but  the  law."  Wis- 
cart  V.  D'Auchy,  3  Dall.  321,  327.  1  L.  Ed. 
619;  The  Perseverance,  3  Dall.  336,  1  L. 
Ed.  625;  The  Charles  Carter,  4  Dall.  22,  1 
L.  Ed.  724;  Dower  t'.  Richaras,  151  U.  S. 
658,  664,  38  L.   Ed.   305. 

In  a  late  case   Mr.  Justice  Woody  said: 


"The  defendant,  having  failed  in  its  ap- 
peal, has  now  brought  a  writ  of  error 
and  asks  this  court  to  review  the  facts 
to  the  same  extent  that  they  would  be 
reviewed  on  appeal.  But  this  overlooks 
the  vital  distinction  between  appeals  and 
writs  of  error  which  has  always  been  ob- 
served by  this  court,  and  recognized  in 
legislation.  An  appeal  brings  up  ques- 
tions of  fact  as  well  as  of  law,  but  upon 
a  writ  of  error  only  questions  of  law  ap- 
parent on  the  record  can  be  considered, 
and  there  can  be  no  inquiry  whether  there 
was  error  in  dealing  with  questions  of 
fact.  Wiscart  v.  D'Auchy,  3  Dall.  321,  1 
L.  Ed.  619;  Generes  v.  Campbell,  11  Wall. 
193,  20  L.  Ed.  110;  United  States  z;.  Daw- 
son, 101  U.  S.  569,  25  L.  Ed.  791;  Eng- 
land v.  Gebhardt,  112  U.  S.  502,  28  L.  Ed. 
811;  Martinton  v.  Fairbanks.  112  U.  S. 
670,  28  L.  Ed.  862;  Dower  v.  Richards, 
151  U.  S.  658,  38  L.  Ed.  305  (where  the 
cases  are  reviewed  by  Mr.  Justice  Gray); 
Elliott  V.  Toeppner,  187  U.  S.  327.  47  L- 
Ed.  200;  §  1011,  Rev.  Stat."  Behn  v. 
Campbell,  205  U.  S.  403.  407,  51  L.  Ed. 
857. 

93.  Dower  v.  Richards.  151  U.  S.  658, 
663,  38  L.  Ed.  305;  Wiscart  v.  D'Auchy,  3 
Dall.  321,  1  L.  Ed.  619;  Elliott  v.  Toepp- 
ner,   187    U.   S.   327,   334,   47    L.    Ed.   200. 

In  the  legislation  of  congress,  from  the 
foundation  of  the  government,  a  writ  of 
error,  which  brings  up  matter  of  law  only, 
has  always  been  distinguished  from  an 
appeal,  which,  unless  expressly  restricted, 
brings  up  both  law  and  fact.  Wiscart  v. 
D'Auchy,  3  Dall.  321,  1  L.  Ed.  619;  United 
States  V.  Goodwin.  7  Cranch  108,  3  L.  Ed. 
284;  Cohens  v.  Virginia,  6  Wheat.  264,  410, 
5  L.  Ed.  257;  Hemmenway  v.  Fisher,  20 
How.  255,  258.  15  L.  Ed.  799;  In  re  Neagle, 
135  U.  S.  1,  42,  34  L.  Ed.  55;  Dower  v. 
Richards,  151  U.  S.  658,  663,  38  L.  Ed. 
305. 

The  question  of  infringement  or  no  in- 
fringement of  a  patent  is  one  of  law  and 
susceptible  of  determination  on  a  writ  of 
error.  Heald  v.  Rice,  104  U.  S.  737,  26  L. 
Ed.  910;  Market,  etc.,  R.  Co.  v.  Rowley, 
155  U.  S.  621.  625,  39  L.  Ed.  284;  Singer 
Mfg.  Co.  r.  Cramer,  192  U.  S.  265,  275, 
48  L.   Ed.  437. 


394  APPEAL  AND  ERROR. 

affirming  of  the  judgment,  which  are  properly  called  'proceedings  in  error.'     By 

the  first appeal — when  perfected  in  accordance  with  the  statute  and  the  rules  of 

the  court,  the  whole  case  with  its  record  and  proceedings  is  taken  from  the  court 
below  into  the  appellate  court,  there  to  be  again  tried  upon  the  issues  between 
Xht  parties  as  though  the  case  orignated  in  such  appellate  court ;  which  appeal  has 
the  effect  to  set  aside  and  vacate  the  original  verdict  and  judgment  in  the  case; 
and  the  result  remains  wholly  dependent  on  the  future  judgment  which  may  be 
rendered  in  the  case  upon  the  appeal  and  new  trial.  By  the  second  proceedings — 
review  and  error — the  result  depends  entirely  upon  the  question  whether  the  ap- 
pellate court  finds  the  alleged  error  in  the  record  of  the  judgment  and  proceedings 
of  the  court  below." 

Agreement  of  Counsel. — The  distinctions  between  writs  of  error  and  appeals 
cannot  be  overthrown  by  an  agreement  of  counsel  in  the  court  below,  that  all 
the  evidence  in  the  cause  shall  be  introduced  and  considered  as  a  statement  of 
facts.  04 

And  although  under  the  Louisiana  practice  a  writ  of  error  is  considered 
as  bringing  all  the  facts  before  this  court,  as  they  stood  before  the  circuit  court, 
no  such  practice  prevails  in  this  court,  in  which  a  writ  of  error  issues  according 
to  the  course  of  the  common  law.^'^ 

The  statute  of  Louisiana,  requiring  their  courts  to  have  the  testimony  taken 
down  in  all  cases  where,  an  appeal  lies  to  the  supreme  court,  and  the  adoption  of 
this  rule  by  the  court  of  the  United  States,  includes  only  cases  where  an  appeal 
(technically  speaking)  lies,  and  not  cases  which  are  carried  to  an  appellate  court 
by  writ  of  error. ^^ 

Under  Circuit  Court  of  Appeals  Act. — Our  review  of  a  final  judgment  of 
a  court  of  the  United  vStates  in  a  case  of  the  conviction  of  a  capital  or  otherwise 
infamous  crime,  brought  here  under  the  circuit  court  of  appeals  act  by  wTit  of 
error,  is  confined  to  questions  of  law,  properly  presented  by  a  bill  of  exceptions,  or 
arising  upon  the  record. ^^ 

10.  EivEcfiON  OP  Remedies.' — Where,  for  any  reason,  a  partv  is  in  doubt 
whether  his  case  is  one  to  be  brought  here  by  appeal  or  by  writ  of  error,  he  may 
sue  out  a  writ  of  error,  and  also  obtain  the  allowance  of  an  appeal,  and  this  court, 
when  it  comes  to  examine  the  case,  will  determine  whether  it  is  properly  here  by 
appeal  or  bv  writ  of  error,  and  will  proceed  accordinglv.*^"*  Thus,  in  an  action 
brought  under  Rev.  Stat.,  §  2326,  for  an  adjudication  of  contested  mining  claims, 
there  having  been  conflicting  decisions  as  to  whether  such  suits  were  at  law  or  in 
equity,  the  defeated  party  is  justified  in  taking  the  case  up  for  review  both  by 
appeal  and  writ  of  error,  to  guard  against  a  possible  dismissal. ^^ 

C.  Writ  of  Prohibition. — Where  a  remedy  by  appeal  is  open  and  available, 
the  writ  of  prohibition  will  not  issue,  since  the  writ  cannot  be  made  to  serve  the 
purpose  of  a  writ  of  error  or  certiorari. ^ 

94.  Minor  v.  Tillotson,  2  How.  392.  11  for,  and  obtniiiod  the  allowance  of  an  ap- 
L.  Ed.  312,  citing  Parsons  v.  Bedford,  3  peal,  and  duly  filed  a  transcript  of  the 
Pet.  433.  445,  7  L.   Ed.  732.  record  here,  the  court  will  not,  on  motion. 

95.  Minor  z^.  Tillotson.  2  How.  392,  11  dismiss  the  cause,  but,  when  it  comes  on 
L.  Ed.  312,  citinec  Parsons  v.  Bedford,  3  to  be  heard,  will  determine  whether  it  is 
Pet.    433.    445,    7    L.    Ed.   732.  properly    here    by    appeal    or    by    writ    of 

96.  Phillips  V.  Preston,  5  How.  278,  12  error,  and  proceed  accordingly.  Hurst 
L.  Ed.  152.  citing  Parsons  v.  Armor.  3  v.  Hollingsworth,  94  U.  S.  Ill,  34  L- 
Pet.  413.  425,  7  L.   Ed.  724;  Minor  v.  Til-  Ed.  31. 

lotson.  2   How.   392,   394,    11   L    Ed.   312.  99.     McFadden   v.    Mountain  View   Min.. 

97.  Bucklin  v.  United  States,  159  U.  S.  etc..  Co.,  97  Fed.  Rep.  670,  citing  Hurst  r. 
r,80,    40    L.    Ed.    304.  Hollingsworth.    94    U.    S.    Ill,    24    L.    Ed. 

98.  Hurst  7'.  Hollingsworth,  94  U.  S.  31;  Hurst  t'.  HollinP-swortli,  100  U.  wS. 
Ill,  24  L.  Ed.  31;  Plymouth  Gold  Min.  100,  25  L.  Ed.  569;  Plymouth  Gold  Min. 
Co.  V.  Amador,  etc..  Canal  Co..  lis  U.  S.  Co.  v.  Amador,  etc..  Canal  Co..  118  U. 
^^64.  30  L.  Ed.  232;   Smith  v.  Whitney,  116  S.   264,   269.   30  T,.   Ed.   232. 

''.   S.  167,  29  L.  Ed.  601.  '  1.    Smith  7'.   Whitney,   116   IT.   S.    167,   29 

Where    a   party    sued    out    a   writ    of   er-        L.    Ed.    601;    Ex    parte    Pennsylvania,    109 


APPEAL  AXD  ERROR. 


395 


D.  Mandamus — 1.  In  General.— It  is  an  elementary  principle  that  a  manda- 
mus caimot  be  used  to  perform  the  office  of  an  appeal  or  writ  of  error. ^  Power 
is  given  to  this  court  by  the  judiciary  act,  under  a  writ  of  error,  or  appeal,  to  af- 
firm or  reverse  the  judgment  or  decree  of  the  circuit  court,  and  in  certain  cases 
to  render  such  judgment  or  decree  as  the  circuit  court  should  have  rendered  or 
passed,  but  no  such  power  is  given  under  a  writ  of  mandamus,  nor  is  it  competent 
for  the  superior  tribunal,  under  such  a  writ,  to  re-examine  the  judgment  or  de- 
cree of  the  subordinate  court.  Such  a  writ  cannot  perform  the  functions  of  an 
appeal  or  writ  of  error,  as  the  superior  court  will  not,  in  any  case,  direct  the  judge 
of  the  subordinate  court  what  judgment  or  decree  to  enter  in  the  case,  as  the 
writ  does  not  vest  in  the  superior  court  any  power  to  give  any  such  direction  or  to 
iiiterfere  in  any  manner  with  the  judicial  discretion  and  judgment  of  the  subordi- 
nate court. 3 


U.  S.  174,  27  L.  Ed.  894;  In  re  Cooper, 
143  U.  S.  472,  \i6  L.  Ed.  232;  In  re  Hugu- 
ley  Mfg.  Co.,  184  U.  S.  297,  46  L.  Ed.  549; 
Alexander  v.  Crollott,  199  U.  S.  580,  50 
L.    Ed.    317. 

A  writ  of  prohibition  is  never  to  be 
issued  unless  it  clearly  appears  that  the 
inferior  court  is  about  to  exceed  its  ju- 
risdiction. It  cannot  be  made  to  serve 
the  purpose  of  a  writ  of  error  or  cer- 
tiorari, to  correct  mistakes  of  that  court 
in  deciding  any  question  of  law  or  fact 
within  its  j-urisdiction.  These  rules  have 
been  always  adhered  to  by  this  court,  in 
the  exercise  of  the  power  expressly  con- 
ferred upon  it  by  congress  to  issue  writs 
of  p-rohfbition  to  the  district  courts  sit- 
ting as  courts  of  admiralty.  United  States 
V.  Peters,  3  Dall.  121,  1  L.  Ed.  535;  Ex 
parte  Easton,  95  U.  S.  68,  24  L.  Ed.  373; 
Ex  parte  Gordon.  104  U.  S.  515,  26  L. 
Ed.  814:  Ex  parte  Eerry  Co.,  104  U.  S. 
519,  26  L.  Ed.  815;  Ex  parte  Pennsylvania. 
109  U.  S.  174,  37  L.  Ed.  894;  Smith  v. 
Whitney,  116  U.  S.  167,  176,  29  L.  Ed. 
6«1. 

2.  Ex  parte  Loring,  94  U.  S.  418,  24  L. 
Ed.  165;  Ex  parte  Schwab,  98  U.  S.  240. 
241,  25  L.  Ed.  105;  Ex  parte  Perry.  102 
U.  S.  183,  186.  26  L.  Ed.  43;  Ex  parte 
Flippin,  94  U.  S.  348,  350.  24  L.  Ed.  194; 
Ex  parte  Hoard,  105  U.  S.  578.  580,  26  L- 
Ed.  1176;  Ex  parte  Baltimore,  etc.,  R.  Co., 
108  U.  S.  566,  567,  27  L.  Ed.  812;  Ex  parte 
Morgan,  114  U.  S.  174.  29  L.  Ed.  135;  In 
re  Rice.  155  U.  S.  396,  39  L.  Ed.  198;  In 
re  Pollitz.  206  U.  S.  323,  51  L.  Ed.  1081; 
Ex  parte  Whitney,  13  Pet.  404.  10  L.  Ed. 
221;  American  Construction  Co.  v.  Jack- 
sonville, etc.,  R.  Co.,  148  U.  S.  372.  379, 
37  L.  Ed.  486;  In  re  Grossmayer,  177  U. 
S.  48,  49,  44  L.  Ed.  665;  In  re  Blake,  175 
U.  S.  114,  44  L.  Ed.  94;  In  re  Atlantic 
City  Railroad  Co..  164  U.  S.  633,  41  L- 
Ed.  579;  In  re  Huguley  Mfg.  Co..  184  U. 
S.  297,  301,  46  L.  Ed.  549;  Holloway 
v.  Whitely.  4  Wall.  522.  18  L.  Ed.  335; 
Ex  parte  Des  Moines  R.,  etc.,  Co.,  103  U. 
S.  794,  796,  26  L.  Ed.  461;  In  re  Pennsvl- 
vania  Co.,  137  U.  S.  451,  453,  34  L.  Ed. 
738;  In  re  Morrison,  147  U.  S.  14,  26,  37 
L.  Ed.  60;  Virginia  v.  Paul,  148  U.  S.  107, 
124.  37  L.  Ed.  386. 
The   general  power   of   the   court    to    i-- 


sue  a  writ  of  mandamus  to  an  inferior 
court,  to  take  jurisdix:tion  of  a  cause 
when  it  refuses  to  do  so.  is  settled  by  a 
long  train  of  decisions;  but  mandamus 
only  lies,  as  a  general  rule,  where  there 
is  no  other  adequate  remedy;  nor  can  it 
be  availed  of  as  a  writ  of  error.  In  re 
Pennsylvania  Co..  137  U.  S.  451,  34  L. 
Ed.  738;  In  re  Morrison,  147  U.  S.  14.  »T 
L.  Ed.  60;  Ex  parte  Des  Moines  R.,  etc, 
Co.,  103  U.  S.  794.  26  L.  Ed.  461;  Ex  parte 
Baltimore,  etc.,  R.  Co.,  108  U.  S.  566,  27 
L.  Ed.  812;  In  re  Atlantic  City  Railroad, 
164    U.    S.    633,    635,   41    L.    Ed.    579. 

The  decision  of  a  court  of  competent 
jurisdiction  refusing  to  do  an  act  that 
involves  the  exercise  of  a  judicial  dis- 
cretion, and  not  a  ministerial  duty, 
whether  such  decision  be  erroneous  or 
not.  cannot  be  examined  by  the  supreme 
court  in  a  proceeding  by  mandamus.  Ex 
parte   Manv.  14   How.   24,  14  L.   Ed.  311. 

Nonjoinder  of  parties. — A  judgment  of 
a  circuit  court  to  which  a  writ  of  error 
had  been  sued  out,  with  a  supersedeas 
bond  given,  being  affirmed  here  and  re- 
manded to  the  trial  court  in  the  usual 
way.  that  conrt,  on  motion,  summoned  in 
the  sureties,  and,  although  they  proposed 
to  interpose  a  plea  of  partial  payment, 
proceeded  to  render  judgment  against 
them  and  the  principal  for  the  full  amoimt 
of  the  original  judgment  with  interest  and 
costs.  .\n  appeal  to  the  circuit  co«Tt  of 
appeals  having  been  dismissed  for  non- 
joinder of  the  original  defendant,  tiiey 
applied  to  this  court  for  a  writ  of  man- 
damus, commanding  the  court  below  to 
vacate  its  judgment  in  so  far  as  it  was 
rendered  against  the  sureties,  and  to  ex- 
ecute the  mandate  by  entering  judgment 
and  ordering  execution  against  the  prin- 
cipal only.  Held,  that  that  judgment  was 
rendered  in  the  exercise  of  judicial  de- 
termination, and  not  in  the  discharge  of 
a  ministerial  duty,  and  that  the  petition- 
ers' remedy,  if  they  deemed  themselves 
affgrieved.  was  by  writ  of  error.  In  re 
Humes,  149  U.  S.  192.  37  L.  Ed.  698.  cit- 
ing Ex  parte  Flippin,  94  U.  S.  348.  24  L. 
Ed.    194. 

3.  Ex  parte  Crane.  5  Pet.  190.  194,  8 
L.  Ed.  02:  Ex  parte  Bradstrect,  7  Pet. 
634.  8   L.   Ed.  810;   Life  and   Fire   Ins.   Co, 


396 


APPEAL  AND  ERROR. 


It  is  an  elementary  rule  that  a  writ  of  mandamus  may  be  used  to  require  an 
inferior  court  to  decide  a  matter  within  its  jurisdiction  and  pending  before  it  for 
judicial  determination,  but  not  to  control  the  decision^  If  there  is  error  in  the 
judgment  as  rendered,  it  cannot  be  corrected  by  mandamus,  but  resort  must  be 
had  to  a  writ  of  error  or  an  appeal.^  This  court  cannot,  by  mandamus,  compel  an 
inferior  court  to  reverse  a  decision  made  by  it  in  the  exercise  of  its  legitimate 
jurisdiction.  "That  is  the  office  of  a  writ  of  error  or  an  appeal,  in  cases  to  which 
such  proceeding  applies,  but  not  of  a  writ  of  mandamus."^ 

Judgment  Sustaining'  Plea  to  Jurisdiction. — It  does  not,  therefore,  lie  to 
review  a  final  judgment  or  decree  of  the  circuit  court,  sustaining  a  plea  to  the 
jurisdiction,  even  if  no  appeal  or  writ  of  error  is  given  by  law.'^ 

In  the  language  of  Mr.  Chief  Justice  Fuller,  the  writ  of  mandamus  cannot 
be  used  to  perform  the  office  of  an  appeal  or  writ  of  error,  and  does  not  lie  to  re- 
view a  final  judgment  or  decree  sustaining  a  plea  to  the  jurisdiction,  even  if  no  ap- 
peal or  writ  of  error  is  given  by  law.  It  is  not  granted  in  doubtful  cases,  or  where 
there  is  another  adequate  remedy,  and  whether  it  shall  go  or  not  usually  rests  in 
the  sound  discretion  of  the  court. ^ 


V.  Wilson,  8  Pet.  291,  304,  8  L.  Ed.  949; 
Ex  parte  Many,  14  How.  24,  25,  14  L. 
Ed.  311;  Ex  parte  Newman,  14  Wall.  152. 
169,   20    L.    Ed.    877. 

We  cannot  by  writ  of  mandamus  com- 
pel the  court  below  to  decide  a  matter 
before  it  in  a  particular  way.  nor  can  we, 
through  the  instrumentality  of  that  writ, 
review  its  judicial  action  had  in  the  exer- 
cise of  legitimate  jurisdiction.  Ex  parte 
Flippin,  94  U.  S.  348,  24  L.  Ed.  194;  Ex 
parte  Burtis.  103  U.  S.  238,  26  L.  Ed.  392; 
In  re  Morrison,  147  U.  S.  14,  26,  37  L.  Ed. 
©0;  In  re  Hawkins,  147  U.  S.  486,  490,  37 
L.  Ed.  251;  American  Construction  Co.  z^. 
Jacksonville,  etc.,  R.  Co..  148  U.  S.  372, 
379,  37  L.  Ed.  486;  In  re  Humes,  149  U. 
S.  192.  37  L.  Ed.  698;  In  re  Parsons.  150 
U.   S.    150,   156,   37   L.    Ed.    1034. 

4.  Ex  parte  Flippin,  94  U.  S.  348.  350, 
24  L.  Ed.  194;  Ex  parte  Railway  Co.,  101 
U.  S.  720,  25  L.  Ed.  872;  Ex  parte  Burtis, 
103  U.  S.  238,  26  L.  Ed.  392;  Ex  parte 
Morgan,  114 'U.  S.  174,  175.  29  L.  Ed.  135; 
In  re  Blake,  175  U.  S.  114,  117,  44  L. 
Ed.    94. 

It  was  held,  in  Ex  parte  Whitney.  13 
Pet.  404.  10  L.  Ed.  221,  that  a  writ  of 
mandamus  ought  not  to  be  used  to  cor- 
rect orders  made  by  a  judge  in  the  exer- 
cise of  his  authority,  even  though  such 
orders  "may  seem  to  bear  harshly  or  op- 
pressively upon  the  party"  complaining. 

The  writ  of  mandamus  properly  lies  in 
cases  where  the  inferior  court  refuses  to 
take  jurisdiction  where  by  law  it  ought 
so  to  do,  or  where,  having  obtained  juris- 
diction in  a  cause,  it  refuses  to  proceed 
in  the  due  exercise  thereof;  but  it  will 
not  lie  to  correct  alleged  error  occurring 
in  the  exercise  of  its  judicial  discretion 
while  acting  within  its  jurisdiction.  Ex 
parte  Parker,  120  U.  S.  737,  30  L.  Ed. 
818,  citing  Ex  parte  Brown,  116  U.  S. 
401.    29    L.    Ed.    676. 

The  mere  fact  that,  in  the  administra- 
tion of  the  assets  of  an  insolvent  corpora- 
tion in  the  custody  of  receivers,  summary 
proceedings   are   resorted   to,   does   not   in 


itself  affect  the  jurisdiction  of  the  circuit 
court  as  having  proceeded  in  excess  of 
its  powers,  and,  where  notice  has  been 
given  and  hearing  had.  the  result  cannot 
properly  be  interfered  with  by  mandamus. 
In  re  Parsons,  150  U.  S.  150,  37  L.  Ed. 
1034;  In  re  Rice.  155  U.  S.  397,  403.  39  L. 
Ed.    198. 

5.  Ex  parte  Loring,  94  U.  S.  418,  24  L. 
Ed.  165;  Ex  parte  Perry,  102  U.  S.  183, 
26  L.  Ed.  43;  Ex  parte  Morgan,  114  U.  S. 
174,    175.   29   L.    Ed.   135. 

6.  Ex  parte  Flippin,  94  U.  S.  348,  24 
L.    Ed.    194. 

This  court  cannot  by  mandamus  cor- 
rect the  judicial  errors  committed  by  an 
inferior  court  in  the  progress  of  a  cause. 
If  the  object  of  the  proceeding  is  to  ob- 
tain from  this  court  an  order  requiring 
the  circuit  court  to  reverse  its  former  de- 
cision and  grant  the  relief  that  was  once 
refused,  the  petition  for  mandamus  will 
be  denied.  This  is  the  office  of  a  writ  of 
error  or  an  appeal,  and  not  of  a  writ  of 
mandamus.  Nor  is  the  case  changed  be- 
cause the  appropriate  remedy  may  in- 
volve an  inconvenient  delay.  Ex  parte 
Perry.  102  U.  S.  183,  26  L.  Ed.  43,  citing 
Ex  parte  Schwab.  98  U.  S.  240.  25  L.  Ed. 
105;  Ex  parte  Flippin,  94  U.  S.  348.  24  L. 
Ed.  194;  Ex  parte  Loring,  94  U.  S.  418, 
24    L.    Ed.    165. 

7.  Ex  parte  Newman,  14  Wall.  152,  20 
L.  Ed.  877;  Ex  parte  Baltimore,  etc.,  R. 
Co.,  108  U.  S.  566,  27  L.  Ed.  321;  In  re 
Burdett,  127  U.  S.  771.  32  L.  Ed.  321;  In  re 
Pennsylvania  Co.,  137  U.  S.  451,  453.  34 
L.  Ed.  738;  American  Construction  Co.  ■y. 
Jacksonville,  etc..  R.  Co.,  148  U.  S.  372, 
379,  37  L.  Ed.  486;  In  re  Grossmayer,  177 
U.    S.   48,   49,   44    L.   Ed.   665. 

Judgment  on  plea  to  jurisdiction. — The 
judgment  of  the  circuit  court,  on  a  plea 
to  the  jurisdiction,  will  not  be  reviewed 
here  upon  a  petition  for  a  mandamus. 
Ex  parte  Des  Moines,  etc.,  R.  Co.,  103  U. 
S.  794.   26   L.   Ed.   461. 

8.  American  Construction  Co.  v.  Jack- 
sonville, etc.,  R.   Co.,  148  U.  S.  372,  379,37 


APPEAL  AXD  ERROR.  397 

Reversal  of  Decision  Denjdng  Motion  to  Remand. — According  to  well- 
settled  principles,  a  writ  of  mandamus  will  not  issue  from  this  court  to  compel  a 
circuit  court  to  reverse  its  decision  denying  a  motion  to  remand  a  cause  removed 
to  it  from  a  state  court. ^ 

Review  of  Interlocutory  Decrees. — Least  of  all,  can  a  writ  of  mandamus  be 
granted  to  review  a  ruling  or  interlocutory  order  made  in  the  progress  of  a  cause ; 
for,  as  observed  by  Chief  Justice  Marshall,  to  do  this  "would  be  a  plain  evasion  of 
the  provision  of  the  act  of  congress  that  final  judgments  only  should  be  brought 
before  this  court  for  re-examination ;"  would  "introduce  the  supervising  power 
of  this  court  into  a  cause  while  depending  in  an  inferior  court,  and  prematurely  to 
decide  it ;"  would  allow  an  appeal  or  writ  of  error  upon  the  same  question  to  be 
"repeated,  to  the  great  oppression  of  the  parties ;"  and  "would  subvert  our  whole 
system  of  jurisprudence. "^^ 

Circuit  Court  of  Appeals. — This  court  cannot,  by  mandamus,  review  the  ju- 
dicial action  of  a  circuit  court  of  appeals  had  in  the  exercise  of  legitimate  jurisdic- 
tion. As,  for  example,  upon  an  application  for  a  writ  of  mandamus  to  compel  the 
circuit  court  of  appeals  to  receive  and  duly  consider  certain  depositions  or  further 
proofs  taken  by  petitioner  on  appeal  in  an  admiralty  cause  pending  in  that  court 
wherein  he  is  the  libelant  and  appellee. ^^ 

When  the  amount  in  controversy  in  a  case  decided  in  the  circuit  court 
is  too  small  to  come  here  by  writ  of  error,  this  court  is  without  power  by  writ  of 
mandamus  to  compel  the  judge  of  the  circuit  court  to  reverse  his  own  judgment. ^2 

To  Compel  Vacation  of  Judgment. — This  court  will  not  by  mandamus  com- 
pel an  inferior  court  to  grant  a  motion  to  vacate  an  order  setting  aside  a  judgment 
of  nonsuit.  "For  that,  resort  must  be  had  to  a  writ  of  error  after  a  final  judg- 
ment has  been  rendered.    The  writ  of  mandamus  has  no  such  office  to  perform. "^^ 

Issuance  of  Execution  in  Conformity  with  Mandate. — Where  no  decree 
is  entered  against  certain  parties  to  an  appeal  before  the  appeal  is  taken  to  this 
court,  this  court  will  not  review  the  decision  of  the  circuit  court  under  the  man- 
damus in  deciding  whether  execution  should  issue  against  those  parties  or  not 
in  conformity  with  the  mandate.  Error  or  appeal  not  mandamus  is  the  only 
remedy  to  review  this  decision.^'* 

Order  of  Dismissal  for  Want  of  Proper  Assignment  of  Errors. — Where 
the  court  below  entertains  jurisdiction  of  the  cause,  but  dismisses  it  for  w^ant  of 
due  prosecution ;  that  is  to  say,  because  errors  had  not  been  assigned  in  accordance 
with  the  rules  of  practice  applicable  to  the  form  of  the  action,  this  is  a  judgment 
which  can  only  be  reviewed  by  writ  of  error  or  appeal,  as  the  case  may  be.    Man- 

L.  Ed.  486;  In  re  Rice,  15?;  U.  w'^    '^"~     "^T.  interest   calculated   at   the   rate   of   six   per 

39   L.   Ed.   198;   High   on   Extr.   Remedies,  cent,  per  annum  from   December  18,  1885. 

3d  ed.,  §  9;  In  re  Key.  189   i_ .   ii.  .  -1,  o^,  -a  to    June    9,    1890,    was     not     quite      $1,700. 

L.   Ed.   720.  The   amount   involved   was,   therefore,   too 

9.  In  re  Pollitz,  206  U.  S.  323.  51  L.  small  to  be  the  subject  of  a  writ  of  error 
Ed.  1081,  citing  In  re  Hohorst,  150  U.  S.  from  this  court.  The  only  relief  which 
653,  37  L.   Ed.   1211.  the   railroad   company  could   obtain   in  the 

10.  Bank  of  Columbia  v.  Sweeney.  1  premises  was.  therefore,  bv  -^  ^vr;t  '^f 
Pet.  567,  569,  7  L.  Ed.  265;  Life,  etc.,  Ins.  mandamus.  A  mandamus  will  lie  to  cor- 
Co.  V.   Adams,   9    Pet.    573,    602.    9    L.    Ed.        rect    such    an    error.     ■.!.    t- 

234;   American    Construction    Co.  v.   Jack-  other   adequate   remedy,   and   where   there 

sonville.  etc.,   R.    Co.,   148   U.    S.    372.   379,  is  no  discretion  to  be  exercised  by  the  in- 

37  L.    Ed.   486.  ferinr    court."      S'bhald    v.    United    States, 

11.  In  re  Hawkins,  147  U.  S.  486,  37  12  Pet.  488,  9  L.  Ed.  1167;  Ex  parte  Brnd- 
L.  Ed.  251,  citing  In  re  Morrison,  147  U.  ley,  7  Wall.  364.  376,  19  L.  Ed.  214;  Vir- 
S.  14,  37  L.  Ed.  60;  Ex  parte  Morgan.  114  g'^a  v.  Rives,  100  U.  S.  313,  329  2oL. 
U.  S.  174,  29  L.  Ed.  135;  Ex  parte  Burtis,  Ed.  667;  In  re  Washington,  etc.,  R.  Co., 
leS  U.  S.  238,  26  L.  Ed.  392;  Ex  parte  l-^O  U.  S.  91,  95,  35  L.  Ed.  339. 
Schwab,  98  U.    S.   240.   25    L.    Ed.   105.  13.     Ex   parte    Loring,   94    U.    S.    418,    24 

12.  In  re  Burdett,   127  U.   S.   771,   32   L.  L.   Ed.   165. 

Ed.  321.  14.    Ex  parte   Sawyer,   21   Wall.   235,  22 

But   in   a    late    case   the    court    uses    the       L.    Ed.   617. 
following  language:     "The  amount  of  such 


398 


APPEAL  AA'D  EkkOR. 


damns  lies  to  compel  a  court  to  take  jurisdiction  in  a  proper  case,  but  not  to  con- 
trol its  discretion  while  acting  within  its  jurisdiction.     This  rule  is  elementary.is 

If  the  court,  after  sufficient  service  on  the  defendant,  erroneously  de- 
clines to  take  jurisdiction  of  the  case  or  to  enter  judgment  therein,  a  writ  of 
mandamus  lies  to  compel  it  to  proceed  to  a  determination  of  the  case,  except 
where  the  authority  to  issue  a  writ  of  mandamus  has  been  taken  away  by  stat- 
ute.16 

The  refusal  of  the  lower  court  to  strike  off  a  plea  which  the  court  had 
permitted  the  defendant  to  put  in,  and  compel  the  defendant  to  enter  another  plea, 
which  the  plaintiiT's  counsel  deemed  the  proper  plea,  is  not  a  proper  case  for 
mandamus.  The  revising  power  of  this  court  in  such  case  can  be  exercised  only 
by  a  writ  of  error. ^" 

Judgment  Refusing  Mandamus. — Mandamus  from  this  court  will  not  lie 
to  reverse  a  judgment  of  a  court  below,  refusing  a  mandamus  against  the  secre- 
tary of  the  treasury,  commanding  him  to  pay  a  sum  of  money  awarded  to  the 
relator  by  the  secretary  of  war,  in  pursuance  of  a  joint  resolution  of  congress, 
and  to  compel  such  court  below  to  issue  one.  "The  party  has  mistaken 
his  remedy,  if  he  has  any,  which  is  by  writ  of  error  to  the  court  below  to  reverse 
the  judgment  there  rendered  in  the  case.  The  authorities  are  uniform  on  the 
question. "1'* 

To  Compel  Reissue  of  Patents. — Where  a  statute  directed  the  commissioner 
of  patents  to  grant  a  reissue  of  patents  in  certain  cases,  to  "assignees,"  it  is  the 
duty  of  the  commissioner  to  decide  whether  the  applicant  is  an  assignee  with 
such  an  interest  as  entitled  him  to  a  reissue  within  the  meaning  of  the  statutory 
provision  on  the  subject;  and  if  he  has  thoroughly  examined  and  decided  tliat 
the  applicant  is  not  so,  a  mandamus  will  not  lie  commanding  him  to  refer  the 
application  to  "the  proper  examiner  or  otherwise  examine  or  cause  the  same  to 
be  examined  according  to  law."  The  preliminary  question  was  within  the  scope 
of  his  authority.  If  the  mandamus  had  ordered  the  commissioner  to  allow  an 
appeal,  the  order  under  which  it  issued  would  have  been  held  correct.  ^^ 

2.  Ara;QUACY  of  Other  Remedies. — It  is  well  settled,  that  a  writ  of  manda- 
mus, as  a  general  rule,  lies  only  where  there  is  no^  other  adequate  remedy  and  it 
cannot  be  availed  of  as  a  writ  of  error. 2<^  Mandamus  cannot  be  resorted  to  where 
the  parties  have  ample  remedy  by  appeal  or  writ  of  error. ^i     Mandamus  will  not 

15.  Ex  parte  Morgan,  114  U.  S.  174,  29  108  U.  S.  566.  27  L.  Ed.  812;  In  re  x\tlantM: 
L.  Ed.  135;  Ex  parte  Brown,  116  U.  S.  City  R.  Co..  164  U.  S.  633,  41  L.  Ed.  579; 
401,   402.   29   L.   Ed.   676.  Ex    parte    Union    Steamboat    Co.,    178    U. 

16.  Ex    parte    Schollenberger,    96    U.    S.  S.    317.    319,    44    L.    Ed.    1084. 

369.  24  L.  Ed.  853;  In  re  Pennsylvania  Co.,  Where  mandamus  is  the  proper  remedy, 

137   U.   S.   451,  453,  34  L.   Ed.  738;   Ameri-  error  will  not   lie.     Insurance  Co.  v.   Com- 

can   Construction   Co.  v.  Jacksonville,  etc.,  stock,  16  Wall.   258,   21    L.   Ed.  493,  citing 

R.  Co.,   148  U.   S.   372,  379,  37   L.   Ed.  486;  Avres   v.   Carver,    17    How.   591,   15  L.   Ed. 

In  re  Hohorst,  150  U.  S.  653.  664.  37  L.  Ed.  179. 

1211;   In  re   Grossmayer,  177  U.   S.  48,  49,  21.    In  re   Connecticut  Mutual   Life  Ins. 

44  L.   Ed.   665.  Co..  131  U.   S.  App.   clxxx,   26  L.   Ed.  561; 

17.  Bank  v.  Sweeney,  1  Pet.  567.  7  L.  United  States  v.  Addison,  22  How.  174. 
Ed.   265.  ]83,    16    L.    Ed.    304;    In    re    Blake,    175   U. 

18.  Decatur  v.  Paulding,  14  Pet.  497,  10  S.  114,  44  L.  Ed.  94;  In  re  Pennsylvania 
L.  Ed.  559;  Kendall  v.  United  States,  12  Co.,  137  U.  S.  451.  453,  34  L.  Ed.  738;  In 
Pet.  524.  527,  9  L.  Ed.  1181;  Brashear  v.  re  Morrison,  147  U.  S.  14,  26,  37  L.  Ed.  60. 
Mason.  6  How.  92,  12  L.  Ed.  357;  United  In  the  case  of  Ex  parte  Baltimore,  etc., 
States  V.  Guthrie,  17  How.  284,  15  L.  Ed.  R.  Co.,  108  U.  S.  566,  27  L.  Ed.  812,  it 
102;  Ex  parte  De  Groot,  6  Wall.  497,  18  was  sought  to  obtain  a  mandamus  to  com- 
L.   Ed.   887.  pel  a   circuit  court  to  take  jurisdiction  of 

19.  Commissioner  v.  Whitely,  4  Wall.  a  proceeding  in  replevin  in  which  the  su- 
522.  18  L.  Ed.  335.  preme    court    had    quashed    the    writ.      It 

20.  In  re  Pennsylvania  Co.,  137  U.  S.  was  held,  that  error  would  lie.  and  fur- 
451.  34  L.  Ed.  738;  In  re  Morrison,  147  nished  an  adequate  remedy,  and  there- 
TT.  S.  14.  26,  37  I,.  Ed.  60:  Ex  parte  Ues  fore,  mnndrmrs  would  not 'lie.  Still  the 
M'^ipps,  etc.,  R.  Co..  103  U.  S.  794.  26  L.  fact  that  arpeal  or  error  wi'l  lie  dees  not 
Ed.  461;  Ex  pairte  Baltimore,  etc..  R.  Co.,  always  prevent  the  issuance  of  mandamus, 


APPEAL  AXD  ERROR.  399 

lie  to  compel  a  circuit  court  to  hear  and  determine  whether  a  master  of  the  court 
shall  execute  to  the  relator  a  deed  for  certain  lands  bought  under  a  sale  ordered 
by  that  court,  it  nowhere  appearing  from  the  relator's  own  showing  that  the  court 
had  expressly  refused  such  an  order,  and  this  on  the  ground  that  mandamus  can 
only  be  resorted  to  when  other  remedies  fail,  and  here  the  parties  have  ample 
remedy  by  appeal. -- 

That  the  remedy  by  writ  of  error  is  inappropriate  and  ineffectual  will 
not  entitle  th.e  parlies  to  mandamus  ;  it  "may  be  a  defect  in  the  law  ;  but  we  must 
administer  the  law  as  we  find  it."-'' 

The  mere  fact  that  the  parties  are  without  remedy  by  appeal  or  writ 
of  error,  because  the  sum  or  value  in  controversy  is  less  than  the  amount  re- 
quired to  give  that  right,  does  not  on  that  account  entitle  the  parties  to  a  writ  of 
mandamus.  "Mandamus  will  not  lie,  it  is  true,  where  the  party  may  have  an  ap- 
peal or  writ  of  error,  but  it  is  equally  true  that  it  will  not  lie  in  many  other  cases 
where  the  party  is  without  remedy  by  appeal  or  writ  of  errar.  Such  remedies 
are  not  given  save  in  patent  and  revenue  cases,  except  when  the  sum  or  value 
exceeds  two  thousand  dollars,  but  the  writ  of  mandamus  will  not  lie  in  any  case 
to  a  subordinate  court  unless  it  appears  that  the  court  of  which  complaint  is 
made  refused  to  act  in  respect  to  a  matter  within  the  jurisdiction  of  the  court 
and  where  it  is  the  duty  of  the  court  to  act  in  the  premises. "2-*  But  a  mandamus 
will  lie  to  correct  an  error,  where  there  is  no  other  adequate  remedy,  and  where 
there  is  no  discretion  to  be  exercised  by  the  inferior  court. -"^ 

E.  Habeas  Corpus — 1.  Ix  General. — It  has  been  too  frequently  decided, 
to  be  now  open  to  question,  that  a  writ  of  habeas  corpus  cannot  be  made  use  of 
to  perform  the  functions  of  a  writ  of  error  or  an  appeal. ^^     Habeas  corpus  is  not 

because    the    former,    though    it    exist,    is  38   L.    Ed.   631;    In    re   Lennon,    166   U.    S. 

not   always   an    adequate    remedy.  .548,  552,  41  L.  Ed.  1110;   In  re  Wio'ht,  134 

The  writ  of  mandamus  cannot  be  issued  U.  S.  136,  33  L.  Ed.  865;  In  re  Green,  134 

to   compel    the    court    below    to    decide    a  U.  S.  377,  33  L.  Ed.  951;  Stevens  v.  Fuller, 

matter   before    it   in    a   particular   way,    or  136  U.   S.  468,  478,  34  L.  Ed.  461;   Ander- 

to   review    its    judicial    action    had    in    the  sen  v.  Treat,  172  U.  S.  24,  43  L,.  Ed.  351; 

exercise    of    legitimate    jurisdiction.      The  In    re    Eckart,    166    U.    S.    481,    485.    41    L. 

writ  cannot  be  used  to  perform  the  office  Ed.    1085;    Day   v.    Conley.    179    U.    S.    689, 

of  an  appeal   or  writ   of  error,   even  if  no  45  L.   Ed.  383;   Crossley  v.  California,   168 

appeal   or   writ   of   error   is   given   bv   law.  U.  S.  640,  42  L.  Ed.  610;  Whitney  v.  Dick, 

American    Construction    Co.     t'.     Jackson-  202    U.    S.    132,    50    L.    Ed.    963;    Ex   parte 

ville,  etc.,  R.  Co.,  148  U.  S.  372,  379,  37  L.  Mirzan,    119   U.   S.    584,  30   L.   Ed.    513;    In 

Ed.  486;  In  re  Rice,  155  U.  S.  396,  403,  39  re    Huntington,    137    U.    S.    63.    34    L.  'Ed. 

L.    Ed.    198.  567;   In  re   Lancaster,   137  U.   S.  393,  34  h. 

22.  In  re  Connecticut  Mutual  Life  Ins.  Ed.  713;  In  re  Chapman,  156  U.  S.  211. 
Co..  131   U.   S.  App.  clxxx.  26   L.   Ed.   561.  39   L.    Ed.   401;    Riggms   v.   United   States, 

23.  United  States  v.  Addison,  22  How.  1^9  U.  S.  547.  50  L.  Ed.  303;  In  re  Lin- 
174,   16   L    Ed     304  coin,    202    U.    S.    178,    182,    50    L.    Ed.    984; 

24.  Ex  parte  Newman.  14  Wall.  152,  Ex  parte  Tyler.  149  U.  S.  164,  37  L.  Ed. 
168.   20   L.    Ed.    877.  ^^^'    I"    ^^    Lennon,    150    U.    S.    393,    400, 

25.  Sibbald  v.  Un-'ted  States,  12  Pet.  37  L.  Ed.  1120;  Felts  v.  Murphy.  201  U. 
488,  9  L.  Ed.  1167;  Ex  parte  Bradley,  7  S.  123,  50  L.  Ed.  689.  citing  Ex  parte 
Wall.  364,  376,  19  L.  Ed.  214;  Virginia  v.  Bigelow,  113  U.  S.  328,  28  L.  Ed.  1005; 
Rives,  100  U.  S.  313,  329,  25  L.  Ed.  667;  Valentina  v.  Mercer,  201  U.  S.  131,  50  L. 
Perkins  v.  Fourniquet,  14  How.  313,  328.  Ed.  693;  Baker  z'.  Grice,  169  U.  S.  284, 
14  L.  Ed.  435;  Ex  parte  Dubuque,  etc.,  42  L.  Ed.  748;  Tmsley -z;.  Anderson,  171 
R.  Co.  V.  Litchfield.  1  Wall.  69,  17  L.  Ed.  U.  S.  101,  104,  43  L.  Ed.  91;  Markuson 
514;  Durant  v.  Essex  Co.,  101  U.  S.  555.  '-•■  Boucher.  175  U.  S.  184,  44  L.  Ed.  124; 
556.  25  L.  Ed.  961;  Boyce  r.  Grundy,  9  Minnesota  z:  Brundage.  180  U.  S.  499,  45 
Pet.  275.  9  L.  Ed.  127;  Gaines  r.  Rugg,  E.  Ed.  639;  Storti  v.  Massachusetts.  183 
148   U.   S.    228     243    37    L     Ed     432  U-    S-    138.    141.    46    L.    Ed.    120;    Bissert   V. 

26.  Ex  parte  Kearney.' 7  Wheat.  38.  43.  Ha-an.  183  U.  S.  694,  46  L.  Ed.  3«3; 
5  L.  Ed.  391;  Ex  parte  Terry.  128  U.  S.  Efall  v.  Johnson.  186  U.  S.  480,  46  L.  Ed. 
289,  32  L.  Ed.  405;  Ex  parte  Cuddy,  131  ^259;  In  re  Swan,  150  U.  S.  637,  648.  37 
U.   S.  280,   33   L.    Ed.   154;    In   re   Nielsen,  L.    Ed.    1207. 

131   U.   S.    176,   33    L.    Ed.    118;    Ex   parte  While  the  writ  of  habeas  corpus  is  one 

Tyler,  149  U.  S.  164.  167.  37  L.  Ed.  689;  of  the  remedies  for  the  enforcement  of 
United   States   v.   Pridgenn.    153   U.    S.   48.       the   right  to  personal  freedom,  it  will   not 


400 


APPEAL  AND  ERROR. 


treated  as  a  writ  of  error,  and  while  it  may  be  issued  by  one  court  to  inquire  into  the 
action  of  a  court  of  co-ordinate  jurisdiction,  yet  the  inquiry  is  only  whether  the 
action  of  the  court  in  imposing  punishment  was  within  its  jurisdiction. 2"     And 


issue,  as  a  matter  of  course,  and  it  should 
be  cautiously  used  by  the  federal  courts 
in  reference  to  state  prisoners.  Being  a 
civil  process,  it  cannot  be  converted  into 
a  remedy  for  the  correction  of  mere  er- 
rors of  judgment  or  of  procedure  in  the 
court  having  cognizance  of  the  criminal 
offense.  Under  the  w^rit  of  habeas  corpus, 
this  court  can  exercise  no  appellate  juris- 
diction over  the  proceedings  of  the  trial 
court  or  courts  of.  the  state,  nor  review 
their  conclusions  of  law  or  fact,  and  pro- 
nounce them  erroneous.  The  writ  of 
habeas  corpus  is  not  a  proceeding  for  the 
correction  of  errors.  Ex  parte  Lange,  18 
Wall.  163.  21  L.  Ed.  872;  Ex  parte  Siebold, 
100  U.  S.  371.  25  L.  Ed.  717;  Ex  parte 
Curtis,  106  U.  S.  371,  27  L.  Ed.  232;  Ex 
parte  Carll,  106  U.  S.  521,  27  L.  Ed.  288; 
Ex  parte  Bigelow.  113  U.  S.  328,  28  L. 
Ed.  1005;  Ex  parte  Yarbrough,  110  U.  S. 
651,  28  L.  Ed.  274;  Ex  parte  Wilson,  114 
U.  S.  417.  29  L.  Ed.  89;  Ex  parte  Royall, 
117  U.  S.  241,  29  L.  Ed.  868;  In  re  Snow. 
120  U.  S.  274,  30  L.  Ed.  658;  In  re  Coy, 
127  U.  S.  731,  32  L.  Ed.  274;  In  re  Wight. 
134  U.  S.  136.  33  L.  Ed.  865;  Stevens  v. 
Fuller,  136  U.  S.  468,  34  L.  Ed.  461;  In 
re  Frederich,  149  U.  S.  70,  75,  37  L.  Ed. 
653. 

The  writ  of  habeas  corpus  is  not  a  writ 
of  error,  though  in  some  cases  in  which 
the  court  issuing  it  has  appellate  power 
over  the  court  by  whose  order  the  pe- 
titioner is  held  in  custody,  it  may  be  used 
with  the  writ  of  certiorari  for  that  pur- 
pose. Wales  V.  Whitney,  114  U.  S.  564, 
571,   29   L.    Ed.   277. 

Where  an  inferior  court  has  jurisdic- 
tion of  the  cause  and  the  person  in  a 
criminal  suit,  and  no  writ  of  error  lies 
from  this  court,  it  will  not,  on  habeas  cor- 
pus, review  the  legality  of  the  proceed- 
ings. It  is  only  where  the  proceedings 
below  are  entirely  void,  either  for  want 
of  jurisdiction,  or  other  cause,  that  such 
relief  will  be  given.  Ex  parte  Parks.  93 
U.    S.    18,    23   L.    Ed.   787. 

When  the  court  below  has  jurisdiction 
of  the  cause,  and  the  matter  charged  is 
indictable  under  a  constitutional  law,  any 
errors  committed  by  the  inferior  court 
can  only  be  reviewed  by  writ  of  error; 
and.  of  course,  cannot  be  reviewed  at  all 
if  no  writ  of  error  lies.  Ex  parte  Siebold. 
100  U.  S.  371,  25  L.  Ed.  717. 

Mere  error  in  the  judgment  or  irregu- 
larity in  the  proceedings  under  and  by 
virtue  of  which  the  party  is  imprisoned, 
constitutes  no  ground  for  the  issuance  of 
the  writ  of  habeas  corpus.  In  other 
words  a  conviction  and  sentence  by  a 
court  of  competent  jurisdiction  is  a  law- 
ful cause  of  imprisonment  and  such  mo- 
tion cannot  be  reviewed  by  habeas  corpus. 


But  this  court  will  give  relief  on  habeas 
corpus  to  a  prisoner  under  conviction  and 
sentence,  in  a  case  where  there  is  want 
of  jurisdiction  in  such  court  over  the  per- 
son or  the  cause,  or  some  other  matter 
redering  its  proceedings  void.  In  short 
the  distinction  is  between  an  erroneous 
judgment  and  one  that  is  illegal  or  void. 
Ex  parte  Siebold,  100  U.  S.  371,  25  L. 
Ed.    717. 

The  writ  of  habeas  corpus  cannot  be 
used  as  a  mere  writ  of  error.  Mere  er- 
ror in  the  judgment  or  proceedings,  un- 
der and  by  virtue  of  which  a  party  is  im- 
prisoned, constitutes  no  ground  for  the 
issue  of  the  writ.  Hence,  upon  a  return 
to  a  habeas  corpus,  that  the  prisoner  is 
detained  under  a  conviction  and  sentence 
by  a  court  having  jurisdiction  of  the 
cause,  the  general  rule  is.  that  he  will  be 
instantly  remanded.  No  inquiry  will  be 
instituted  into  the  regularity  of  the  pro- 
ceedings, unless,  perhaps,  where  the 
court  has  cognizance  by  writ  of  error  or 
appeal  to  review  the  judgment.  In  such 
a  case,  if  the  error  be  apparent  and  the 
imprisonment  unjust,  the  appellate  court 
may.  perhaps,  in  its  discretion,  give  im- 
mediate relief  on  habeas  corpus,  and  thus 
save  the  party  the  delay  and  expense  of 
a  writ  of  error.  Ex  parte  Siebold,  100  U. 
S.   371,   375,   25   L.    Ed.   717. 

Whether  a  matter  for  which  a  party  is 
indicted  in  the  district  court  is.  or  is  not, 
a  crime  against  the  laws  of  the  United 
States,  is  a  question  within  the  jurisdic- 
tion of  that  court,  which  it  must  decide. 
Its  decision  will  not  be  reviewed  here  by 
habeas  corpus.  Ex  parte  Parks.  93  U. 
S.    18.   23    L.    Ed.   787. 

27.  Bessette  v.  Conkey  Co.,  194  U.  S. 
324,  335.  48  L.  Ed.  997,  reaffirmed  in  In 
re   Lewis,  202  U.   S.  614,  50  L.   Ed.  1172. 

Povtrer  to  order  change  of  venue. — 
Whether  the  judge  who  made  an  order 
for  the  removal  of  a  defendant  to  a  dis- 
trict in  another  state,  for  trial,  had  juris- 
diction to  make  it,  and  if  he  had,  the 
question  whether  upon  the  merits  he 
ought  to  have  made  it,  is  not  one  which 
can  be  reviewed  by  means  of  the  writ  of 
habeas  corpus.  Greene  v.  Henkel.  183 
U.  S.  249,  261.  46  L.  Ed.  177,  reaffirmed 
in  Green  v.  MacDougall.  199  U.  S.  601, 
50    L.    Ed.    328. 

Waiver  of  trial  by  jury. — The  supreme 
court  of  the  district  has  jurisdiction  and 
authority  to  determine  the  validity  of  the 
act  which  authorizes  the  waiver  of  a  jury 
and  to  dispose  of  the  question  as  to 
whether  the  record  of  a  conviction  be- 
fore a  judge  without  a  jury,  where  the 
prisoner  waived  trial  by  jury  according 
to  statute,  was  legitimate  proof  of  a  first 
offense,  and  this  being  so,  we  cannot  re- 


APPEAL  AND  ERROR. 


401 


this  doctrine  applies  not  only  to  original  writs  of  habeas  corpus  issued  by  this 
court,  but  on  appeals  to  it  from  courts  below  in  habeas  corpus  proceedings. ^^  The 
general  rule  is  that  the  writ  of  habeas  corpus  will  not  issue  unless  the  court,  un- 
der whose  warrant  the  petitioner  is  held,  is  without  jurisdiction,  and  that  it  can- 
not be  used  to  correct  errors. ^^  Therefore,  leave  to  file  petition  for  a  writ  of 
habeas  corpus  will  be  denied  where  the  ground  of  the  application  does  not  go  to 
the  jurisdiction  or  authority  of  the  court,  but  relates  merely  to  errors  in  its  pro- 
ceeding.'^'^ 

Decision  of  Committing  Magistrate  in  Extradition  Proceedings. — By 
repeated  decisions  of  this  court  it  is  settled  that  a  writ  of  habeas  corpus  cannot 
perform  the  office  of  a  writ  of  error,  and  that,  in  extradition  proceedings,  if  the 
committing  magistrate  has  jurisdiction  of  the  subject  matter  and  of  the  accused, 
and  the  offense  charged  is  within  the  terms  of  the  treaty  of  extradition,  and  the 


view  the  action  of  that  court  and  the  court 
of  appeals  in  this  particular  on  habeas 
corpus.  Ex  parte  Belt,  159  U.  S.  95,  99, 
100.   40   L.    Ed.   88. 

A  decision  of  the  supreme  court  of  the 
District  of  Columbia  that  the  act  of  con- 
gress of  July  23,  1892,  c.  236,  27  Stat.  261, 
providing  that  in  prosecutions  in  the 
police  court  of  the  district,  in  which,  ac- 
cording to  the  constitution,  the  accused 
would  be  entitled  to  a  jury  trial,  the  ac- 
cused might  in  open  court  expressly 
waive  such  trial  by  jury  and  request  to  be 
tried  by  the  judge,  in  which  case  the 
trial  should  be  by  the  judge,  and  the 
judgment  and  sentence  should  have  the 
same  force  and  effect  as  if  entered  and 
pronounced  upon  the  verdict  of  a  jury, 
was  constitutional  and  valid;  and  that  the 
record  of  a  trial,  conviction,  and  sentence 
by  a  judge  under  such  a  waiver  was  com- 
petent evidence  on  an  indictment  for  a 
similar  offense  to  prove  that  it  was  the 
defendant's  second  offense  of  the  same 
kind  cannot  be  reviewed  in  a  habeas  cor- 
pus proceeding,  because  the  ground  of 
the  application  is  based  on  a  mere  allegj<- 
tion  of  error.  Ex  parte  Belt,  159  U.  S. 
95,  97,  40  L.  Ed.  88,  citing  In  re  Schneider, 
148   U.    S.    157,    162,    37    L.    Ed.    404. 

Insufficiency  of  indictment.  — ^  E  v  e  n 
though  there  is  a  lack  of  technical  pre- 
cision in  the  indictment  in  failing  to 
charge  with  sufficient  certainty  and  full- 
ness some  particular  fact,  the  holding  by 
the  trial  court  that  the  indictment  was 
sufficient  is  simply  an  erhor  of  law,  and 
not  one  which  can  .be  re-examined  on  ha- 
beas corpus.  Ex  parte  Parks,  93  U.  S. 
18.  23  L.  Ed.  787;  In  re  Coy,  127  U.  S. 
731.  32  L.  Ed.  274;  In  re  Eckart,  166  U. 
S.  481,  41  L.  Ed.  1085;  Dimmick  v.  Tomp- 
kins. 194  U.  S.  540,  552.  48  L.  Ed.  lUO; 
Munsey  v.  Clough,  196  U.  S.  364,  373.  49 
L.  Ed.  515;  Ex  parte  Reggel,  114  U.  S. 
642,  29  L.  Ed.  250;  Pearce  v.  Texas,  155 
U.   S.  311,   39   L.    Ed.   164. 

Hcmicide.^ — This  court  cannot  review 
by  writ  of  habeas  corpus  the  decision  of 
a  state  court  in  a  trial  for  murder  com- 
mitted within  the  state  whether  there  was 
sufficient   evidence    that    the    accused    was 

1  U  S  Kt3C-26 


guilty  of  murder  in  the  first  degree; 
whether  the  evidence  showed,  or  tended 
to  show,  that  he  was  guilty,  at  most,  of 
murder  in  the  second  degree,  because 
these  are  mere  matters  of  error.  And  it 
is  well  settled  that  a  writ  of  habeas  cor- 
pus cannot  be  made  use  of  as  a  writ  of 
error.  Crossley  v.  California,  168  U.  S. 
640,    42    L.    Ed.    610. 

Sale  of  liquor  in  Indian  Territory. — A 
person  convicted  in  the  district  court  of 
introducing  and  selling  liquor  in  an  In- 
dian reservation  should  proceed  by  writ 
of  error  from  the  circuit  court  of  appeals, 
and  habeas  corpus  is  not  to  be  substi- 
tuted for  writ  of  error  in  such  case.  In 
re   Lincoln,   202  U.    S.   178,   50   L.    Ed.   984. 

28.  In  re  Schneider,  148  U.  S.  157,  162, 
37  L.  Ed.  404;  Benson  z'.  McMahon,  127 
U.  S.  457,  462,  32  L.  Ed.  234;  Stevens  v. 
Fuller,  136  U.  S.  468,  478,  34  L.  Ed.  461; 
Gonzales  v.  Cunningham,  164  U.  S.  612, 
621,   41   L.   Ed.   572. 

29.  Ex  parte  Watkins,  3  Pet.  193,  197, 
7  L.  Ed.  650;  Ex  parte  Parks,  93  U.  S. 
18,  23  L.  Ed.  787;  Ex  parte  Yarbrough, 
110  U.  S.  651,  28  L.  Ed.  274;  Ex  parte 
Bigelow.  113  U.  S.  338,  28  L.  Ed.  1005; 
In  re  Coy,  127  U.  S.  731,  756,  32  L.  Ed. 
274;  In  re  Schneider,  148  U.  S.  157,  162, 
37  L.  Ed.  404;  In  re  Chapman,  156  U.  S. 
211,  215,  39  L.  Ed.  401;  Riggins  v.  United 
States,  199  U.  S.  547,  50  L.  Ed.  303;  Ex 
parte  Belt.  159  U.  S.  95,  100,  40  L.  Ed.  88. 

The  writ  of  habeas  corpus  cannot  be 
availed  of  as  a  writ  of  error.  Unless  the 
writ  or  orders  of  a  court  for  a  violation 
of  which  petitioner  in  habeas  corpus  is 
being  punished  were  absolutely  void,  an 
application  for  the  writ  of  habeas  corpus 
to  relieve  from  restraint  in  punishment 
for  contempt  in  the  violation  of  such  or- 
ders must  be  denied.  In  re  McKenzie, 
180   U.    S.    536,    45    L.    Ed.    657. 

30.  In  re  Schneider,  148  U.  S.  157,  162, 
37  L.  Ed.  404,  citing  Ex  parte  Parks,  93 
U.  S.  18,  23  L.  Ed.  787;  Ex  parte  Bigelow, 
113  U.  S.  328,  28  L.  Ed.  1005:  Ex  parte 
Wilson,  114  U.  S.  417,  29  L.  Ed.  89;  In 
re  Nielson,  131  U.  S.  176,  33  L.  Ed.  118; 
Dimmick  v.  Tompkins,  194  U.  S.  540,  552, 
48   L.   Ed.   1110. 


402 


APPEAL  AND  ERROR. 


ma<yistrate,  in  arriving  at  a  decision  to  hold  the  accused,  has  before  him  com- 
petent legal  evidence  on  which  to  exercise  his  judgment  as  to  whether  the  facts 
are  sufficient  to  establish  the  criminality  of  the  accused  for  the  purposes  of  extra- 
dition, such  decision  cannot  be  reviewed  on  habeas  corpus.^i 

2.  Limitations  op  General  Rule. — While  it  is  true  that  a  writ  of  habeas 
corpus  cannot  generally  be  made  to  subserve  the  purposes  of  a  writ  of  error,  yet 
when  a  prisoner  is  held  without  any  lawful  authority,  and  by  an  order  beyond 
the  jurisdiction  of  an  inferior  federal  court  to  make,  this  court  will,  in  favor  of 
liberty,  grant  the  writ,  not  to  review  the  whole  case,  but  to  examine  the  authority 
of  the  court  below  to  act  at  all.-^^ 

3.  Adequacy  of  Other  Remedies. — Ordinarily  the  writ  will  not  lie  where 
there  is  a  remedy  by  writ  of  error  or  appeal.-^-^  Yet  in  rare  and  exceptional  cases 
it  may  be  issued  although  such  remedy  exists.^*  Accordingly  when  no  writ  of 
error  or  appeal  will  lie,  if  a  petitioner  is  imprisoned  under  a  judgment  of  the 
circuit  court  which  had  no  jurisdiction  of  the  person  or  of  the  subject  matter,  or 
authority  to  render  the  judgment  complained  of,  then  relief  may  be  accorded.^-^ 


31.  In  re  Lewis  Oteiza  Y.  Cortes,  136 
U.  S.  330,  34  L.  Ed.  464;  Benson  v.  Mc- 
Mahon,  127  U.  S.  457,  32  L.  Ed.  234; 
Fong  Yue  Ting  v.  United  States,  149  U. 
S.  698.  714,  37  L.  Ed.  905;  Ornelas  v. 
Ruiz,    161  U.   S.   502,  509,  40  L.   Ed.   787. 

"The  writ  of  habeas  corpus  cannot  per- 
form the  office  of  a  writ  of  error,  but  the 
court  issuing  the  writ  may  inquire  into 
the  jurisdiction  of  the  committing  magis- 
trate in  extradition  proceedings.  Ornelas 
V.  Ruiz,  161  U.  S.  502,  40  L.  Ed.  787; 
Terlinden  v.  Ames,  184  U.  S.  270,  46  L. 
Ed.  534."  Wright  v.  Henkel,  190  U.  S.  40, 
57,    47    L.    Ed.    948. 

32.  Ex  parte  Virginia,  100  U.  S.  339, 
343,  25  L.  Ed.  676,  citing  United  States 
V.  Hamilton,  3  Dall.  17,  1  L.  Ed.  490;  Ex 
parte  Burford.  3  Cranch  448,  2  L.  Ed. 
495;  Ex  parte  Jackson,  96  U.  S.  727,  24 
L.  Ed.  877;  Ex  parte  Lange,  18  Wall.  163, 
21    L.    Ed.   872. 

"While  the  writ  of  habeas  corpus  can- 
not be  converted  into  a  writ  of  error,  yet 
unless  the  court  which  tried  the  prisoner 
has  jurisdiction  to  try  and  punish  him 
for  the  offense,  the  prisoner  may  be  dis- 
charged on  such  writ.  In  re  Coy,  127  U. 
S.  731.  757.  32  L.  Ed.  274."  McClaughry 
V.  Deming,  186  U.  S.  49,  69,  46  L.  Ed. 
1049. 

Where  personal  liberty  is  concerned, 
the  judgment  of  an  inferior  court  affect- 
ing it  is  not  so  conclusive  but  that  the 
question  of  its  authority  to  try  and  im- 
prison the  party  may  be  reviewed  on  ha- 
beas corpus  by  a  superior  court  or  judge 
having  power  to  award  the  writ.  Ex 
parte  Siebold.  100  U.  S.  371,  25  L.  Ed. 
717. 

It  has  always  been  held,  that  a  mere 
error  in  point  of  law,  committed  by  a 
court  in  a  case  properly  subject  to  its 
cognizance,  can  only  be  reviewed  by  the 
ordinary  methods  of  appeal,  or  writ  of 
error;  but  that  where  the  proceedings  are 
not  only  erroneous,  but  entirely  void — 
as  where  the  court  is  without  jurisdic- 
tion of  the  person  or  of  the  cause,  and  a 
pary  is   subjected  to  illegal  imprisonment 


in  consequence — the  superior  court,  or 
judge  invested  with  the  prerogative 
power  of  issuing  a  habeas  corpus,  may 
review  the  proceedings  by  that  writ,  and 
discharge  from  illegal  imprisonment. 
This  is  one  of  the  modes  in  which  this 
court  exercises  supervisory  power  over 
inferior  courts  and  tribunals;  but  it  is 
a  special  mode,  and  confined  to  a  limited 
class  of  cases.  Ex  parte  Parks,  93  U.  S. 
18.    21,   23    L.    Ed.    787. 

33.  In  re  Frederich,  149  U.  S.  70,  37 
L.  Ed.  653;  Ex  parte  Tyler,  149  U.  S. 
164,  180,  37  L.  Ed.  689;  In  re  Swan.  150 
U.  S.  637,  648.  37  L.  Ed.  1207;  In  re  Chap- 
man, 156  U.  S.  211,  215,  39  L.  Ed.  401; 
Riggins  V.  United  States,  199  U.  S.  547, 
50  L.  Ed.  303;  Ex  parte  Belt,  159  U.  S. 
95.    100.    40    L.    Ed.    88. 

Recourse  to  the  courts  by  habeas  cor- 
pus is  inadmissible  to  review  the  decision 
of  a  collector  of  customs  denving  the 
privilege  of  transit  across  the  territory  of 
the  United  States  to  a  citizen  of  the  Em- 
pire of  China  in  the  course  of  a  journey 
to  or  from  other  countries,  although  he 
held  a  ticket  from  a  point  in  a  foreign 
country  to  a  point  of  destination  in  an- 
other foreign  country,  since  under  the 
regulations  of  the  treasury  department  of 
the  United  States  in  pursuance  of  the 
treaty  with  China  made  March  17,  1897 
(28  Stat.  1211),  the  final  decision  as  to 
permitting  such  transit  is  devolved  on  the 
collector  of  customs  and  no  appeal  pro- 
vided for.  Fok  Yunk  Yo  z'.  United 
States,  185  U.  S.  296,  46  L.  Ed.  917,  re- 
affirmed in  Lee  Gon  Yung  v.  United 
States,  185  U.   S.   306.  46  L.    Ed.   921. 

34.  Ex  parte  Royall,  117  U.  S.  241.  29 
L.  Ed.  868;  New  York  v.  Eno,  155  U.  S. 
89,  39  L.  Ed.  80;  In  re  Chapman,  156  U. 
S.    211,   215,    39   L.    Ed.    401. 

35.  In  re  Frederich.  149  U.  S.  70.  37 
L.  Ed.  653;  Ex  parte  Tyler,  149  U.  S.  164. 
180,  37  L.  Ed.  689;  In  re  Swan,  150  U.  S. 
637.  648,  37  L.  Ed.  1207;  Ex  parte  Parks, 
93  U.  S.  18.  23  L.  Ed.  787;  Ex  parte  Terrv, 
128  U.  S.  289.  32  L.  Ed.  405;  In  re  Neil- 
son,    131   U.    S.    176,    33    L.    Ed.    118. 


APPEAL  AND  ERROR. 


403 


F.  Certiorari — 1.  In  Ghnkral. —  F5y  §  14  of  the  judiciary  act  of  Sep- 
tember 24,  1789  (1  Stat.  81.  c.  20),  carried  forward  as  §  716  of  the  Revised  Stat- 
utes, this  court  and  the  circuit  and  district  courts  of  the  United  States  were  em- 
powered by  congress  "to  issue  all  writs,  not  specifically  provided  for  by  statute, 
which  may  be  agreeable  to  the  usages  and  principles  of  law."-""^  And,  under  this 
provision,  we  can  undoubtedly  issue  writs  of  certiorari  in  all  proper  cases.-'*"  But 
the  writ  of  certiorari  has  not  been  issued  as  freely  by  this  court  as  by  the  court 
of  Queen's  Bench  in  England.-"^  It  was  never  issued  to  bring  up  from  an  inferior 
court  of  the  United  States  for  trial  a  case  within  the  exclusive  jurisdiction  of 
a  higher  court. -'^^  It  was  used  by  this  court  as  an  auxiliary  process  only,  to  sup- 
ply imperfections  in  the  record  of  a  case  already  before  it;  and  not,  like  a  writ 
of  error,  to  review  the  judgment  of  an  inferior  court.^*^  In  conclusion  it  may  be 
said  that  this  court  has  never  decided  that  certiorari  was  to  be  resorted  to  in  place 
of  a  writ  of  error  whenever  it  suited  the  convenience  of  parties.  There  must  be 
"circumstances  imperatively  demanding"  a  departure  from  the  ordinary  remedy 
by  writ  of  error  or  appeal.^ ^ 

2.  Adequacy  of  Other  Rf;me:die:.s. — When  sought  as  between  private  persons, 
the  general  rule  is  that  the  writ  of  certiorari  will  be  granted  or  denied,  in  tbe 
sound  discretion  of  the  court,  on  special  cause  or  ground  shown ;  and  will  be  re- 
fused where  there  is  a  plain  and  equally  adequate  remedy  by  appeal  or  other- 


36.  In  re  Chetwood,  165  U.  S.  443,  461, 
41  L.  Ed.  782;  Act  of  September  24,  1789. 
c.  20.  §  14.  1  Stat.  81;  Rev.  Stat..  §  716; 
American  Construction  Co.  z'.  Jackson- 
ville, etc.,  R.  Co.,  148  U.  S.  372,  379,  37 
L.    Ed.    486. 

37.  American  Construction  Co.  v.  Jack- 
sonville, etc..  Co.,  148  U.  S.  372,  37  L.  Ed. 
486;  In  re  Chetwood,  165  U.  S.  443,  462, 
41  L.  Ed.  782;  Whitney  V.  Dick,  202  U. 
S.   132.   138,    50    L.    Ed.   963. 

By  §  716  of  the  Revised  Statutes  it  is 
provided  that:  "The  supreme  court  and 
the  circuit  and  district  courts  shall  have 
power  to  issue  writs  of  scire  facias.  They 
shall  also  have  power  to  issue  all  writs 
not  specifically  provided  for  by  statute, 
which  may  be  necessary  for  the  exercise 
of  their  respective  jurisdictions,  and  agree- 
able to  the  usages  and  principles  of  law." 
This  undoubtedly  authorized  the  issue  of 
writs  of  certiorari  in  all  proper  cases. 
American  Construction  Co.  ■^^  Jackson- 
ville, etc.,  Ry.  Co.,  148  U.  S,  372,  37  L. 
Ed.  486;  In  re  Tampa  Suburban  R.  Co.. 
168  U.   S.  583,  587,  42   L.   Ed.   589. 

38.  Ex  parte  Vallandigham,  1  Wall. 
243.  249,  17  L.  Ed.  589;  American  Con- 
struction Co.  V.  Jacksonville,  etc.,  R.  Co., 
148  U.  S.  372,  37  L.  Ed.  486;  Whitney  V. 
Dick,  202  U.   S.   132.   139,  50  L.   Ed.   963. 

39.  Fowler  z:  Lindsey.  3  Dall.  411,  413, 

1  L.  Ed.   558;   Patterson  v.  United   States, 

2  Wheat.  221.  225,  226.  4  L.  Ed.  324;  Ex 
parte  Hitz,  111  U.  S.  766,  28  L.  Ed.  592; 
American  Construction  Co.  v.  Jackson- 
ville, etc..  R.  Co.,  148  U.  S.  372,  37  L.  Ed. 
486;  Whitnev  v.  Dick,  202  U.  S.  132,  139, 
50  L.   Ed.   963. 

40.  Barton  -'.  Petit.  7  Cranch  288,  3  L. 
Ed.  347;  Ex  parte  Gordon,  1  Black  503, 
n  L.  Ed.  134;  United  States  z'.  Adams.  9 
Wall.   661,    19    L.    Ed.   808;    United    States 


V.  Young,  94  U.  S.  258,  24  L.  Ed.  153;  Lux- 
ton  z'.  North  River  Bridge  Co..  147  U. 
S.  337,  341,  37  L.  Ed.  194;  American  Con- 
struction Co.  V.  Jacksonville,  etc.,  R.  Co^ 
148  U.  S.  372,  37  L.  Ed.  486;  Whitney  V. 
Dick,  202   U.   S.   132,  139,   50  L.   Ed.   963. 

And  although  this  writ  has  not  been 
issued  as  freely  by  this  court  as  by  the 
court  of  Queen's  Bench  in  England,  and, 
prior  to  the  act  of  March  3,  1891,  ch.  51l'. 
26  Stat.  826,  had  been  ordinarily  used  as 
an  auxiliary  process  merely,  yet,  when- 
ever the  circumstances  imperatively  de- 
mand that  form  of  interposition,  the  writ 
may  be  aHowed,  as  at  commo-n  hiw,  to 
correct  excesses  of  jurisdiction  and  in 
furtherance  of  justice.  Tidd's  Prac.  398; 
Bac.  Ad..  Certiorari.  In  re  Chetwood, 
165   U.  S.   443,   462,  41  L.  Ed.  782. 

The  writ  of  certiorari  is  only  us«d  in 
this  ccHirt  as  auxiliary  process  to  enable 
a  court  to  obtain  further  information  in 
respect  to  some  matter  already  before  it 
for  adjudication.  It  cannot  be  used  as  an 
appellate  proceeding  for  the  re-examina- 
tion of  some  action  of  an  inferior  tribu- 
nal. United  States  z'.  Young,  94  U.  S.  258, 
24  L.  Ed.  153;  Luxton  v.  North  River 
Bridge  Co.,  147  U.  S.  337.  341,  37  L.  Ed. 
194. 

Leave  to  file  petition  for  a  writ  of  cer- 
tiorari will  be  denied  where  the  ground 
of  the  application  does  not  go  to  the  ju- 
risdiction or  authority  of  the  court,  but 
relates  to  mere  errors  in  its  proceeding. 
In  re  Schneider,  148  U.  S.  157,  162,  37  L. 
Ed.  404,  citing  Ex  parte  Parks,  93  U.  S. 
18.  23  L.  Ed.  787;  Ex  parte  Bigelow,  113 
U.  S.  328,  28  L.  Ed.  1005;  Ex  parte  Wil- 
son, 114  U.  S.  417.  29  L.  Ed.  89;  In  re 
Nielsen,   131   U.  S.   176,  33   L.   Ed.   118. 

41.  Whitney  v.  Dick,  202  U.  S.  13.2,  140, 
50   L.    Ed.   963. 


404  APPEAL  AND  ERROR. 

wise.-*2  A  writ  of  certiorari  will  not  be  allowed  by  this  court  to  bring  up  an  in- 
terlocutory preliminary  restraining  order  granted  by  a  circuit  court  and  an  or- 
der appointing  a  receiver  and  continuing  the  injunction  in  aid  of  the  receivership, 
on  the  ground  that  both  these  orders  were  void  for  want  of  power  in  the  circuit 
judge  to  grant  them  outside  of  his  circuit,  because  the  parties  have  a  plain  and 
adequate  remedy  by  appeal  under  the  seventh  section  of  the  judiciarv  act  of 
March  3,  1891.  c.  517.  26  Stat.  826.  828.43 

3.  Proceedings  of  Military  Tribunals. — This  court  is  not  thereby  empow- 
ered to  review  the  proceedings  of  military  tribunals  by  certiorari.'*^ 

4.  Under  Circuit  Court  of  Appeals  Act. — As  appeal  and  writ  of  error  are 
specifically  prescribed  in  the  court  of  appeals  act  as  the  process  to  bring  up  final 
decisions  to  that  court  for  review,  the  authority  to  issue  a  certiorari  must  be 
found  in  the  grant  of  power,  "to  issue  all  writs  not  specifically  provided  for  by 
statute,  which  may  be  necessary  for  the  exercise  of  their  respective  jurisdiction, 
and  agreeable  to  the  usages  and  principles  of  law."^^  The  only  instance  in  which 
certiorari  is  named  as  the  writ  for  the  removal  of  cases  from  a  lower  to  a  higher 
court  is  in  the  authority  given  to  the  supreme  court  to  bring  up  cases  from  the 
courts  of  appeals  by  certiorari. -''^ 

Power  of  Conrt  of  Appeals  to  Issue. — The  procedure  prescribed  by  the  stat- 
ute for  bringing  to  the  courts  of  appeals  those  final  decisions  of  courts  which 
they  are  authorized  to  review  is  by  appeal  or  writ  of  error,  and  that  in  this  coun- 
try is  the  ordinary  method  by  which  review  is  obtained  in  an  appellate  court. 
Accordingly,  although  the  power  may  sometimes  exist  in  the  court  of  appeals  to 
issue  a  writ  of  certiorari  to  put  an  end  to  litigation,  which  power  has  sometimes 
been  exercised  by  this  court,  yet  as  a  rule  the  orderly  way  is  to  proceed  by  writ 
of  error.  And  this  court  has  never  decided  that  certiorari  was  to  be  resorted  to 
in  place  of  a  writ  of  error  whenever  it  suited  the  convenience  of  the  parties. 
There  must  be  circumstances  imperatively  demanding  a  departure  from  the  or- 
dinary remedy  by  writ  of  error  or  appeal.*'^  That  certiorari  may  be  used  to  bring 
up  portions  of  a  record  not  originally  returned  to  a  court  of  appeals  is  undoubted, 
few  it  may  be  necessary  for  the  complete  exercise  of  its  appellate  jurisdiction, 
but  not  otherwise,  for  every  case  of  which  that  court  may  take  jurisdiction  can 
be  carried  up  by  appeal  or  writ  of  error.'*^ 

G.  Bill  in  Equity. — \Mth  the  proceedings  and  determinations  of  inferior 
boards  or  tribunals  of  special  jurisdiction,  courts  of  equity  will  not  interfere,  un- 
less it  should  become  necessary  to  prevent  a  multiplicity  of  suits  or  irreparable 
injury,  or  unless  the  proceeding  sought  to  be  annulled  or  corrected  is  valid  upon 
its   face,  and  the  alleged  invalidity  consists  in  matters  to  be  established  by  ex- 

42.    In   re  Tampa  Suburban   R.   Co..  168  47.    Whitney  v.   Dick,  202  U.   S.   132,  50 

U.    S.    583,    587.    42    L.    Ed.     589;      In      re  L.    Ed.    963. 

Huguley  Mfg.   Co.,   184  U.   S.  297,   301,  46  An  indictment  in  the  United  States  dis- 

L.   Ed.   549.  trict    coort    charged    the    introduction    of 

And    In    re    Tampa    Suburban    R.    Co.,  liquor    into    the    Indian    country.      It    was 

168  U.  S.  583,  42  L.  Ed.   589,  it  was   held,  not    questioned    that    this   was    a    criminal 

that  "a  writ  of  certiorari,  such  as  is  asked  oflFense    under    the    laws    of     the      United 

for    in    this    case,    will    be    refused    when  States,  but  it  was  contended  that  the  place 

there  is  a  plain  and  adequate  remedy,  by  of    the    alleged    ofifense    was    not    Indian 

appeal    or   otherwise."     Whitney   z\    Dick,  country.      The    trial    court    ruled    that    it 

202  U.   S.   132,   140,   50   L.   Ed.   963.               '  was.     This   ruling  was  excepted  to,  a  bill 

«.    In  re  Tampa  Suburban   R.   Co     168  °l    exceptions    prepared    and    signed    and 

U.   S.    583,    42   L.    Ed.    589                         '  ^"^    ^^^^   P"^    *"    proper    condition    for   re- 

'                               '  view   in    the   court   of   appeals   on   writ   of 

^H        ^^  ^~^  ^'   ^"   ^~^'  ■^~^'  ^^       ^^^°^-     ■^^'^'  ^^^^  ^^^^^  "^^^  "°  necessity 

L,.   Ed.   118.  fQi-   a   certiorari  from   the   circuit  court  of 

46.    Whitney  v.  Dick,  202  U.  S    132    138  appeals,  and  no  reason   why  the   ordinary 

50    L.    Ed.    963.      See   po^st^  "Over    Circuit  Procedure  by  the  writ  of  error  should  not 

Court   of   Appeals."    Ill     D    3  obtam.     Whitney   v.    Dick,   202   U.    S.   132, 

.^    „,^.  ^.        '       '      '  1^'  50   L.   Ed.  963. 

46    Whitney  v.  Dick,  202  U.  S.   132,  138,  48.    Whitnev  i;.  Dick,  202  U.   S.  132,  138, 

50    1^.    Ed.    963.  50    L.    £d.    963. 


APPEAL  AND  ERROR. 


405 


Irinsic  evidence.  In  other  cases,  the  review  and  correction  of  the  proceedings 
must  be  obtained  by  the  writ  of  certiorari  at  law,  and  not  by  bill  in  equity>^  The 
settled  doctrine  of  this  court  is  that  a  bill  in  chancery,  brought  by  the  United 
States  to  set  aside  and  vacate  a  patent  issued  under  its  authority,  is  not  to  be 
treated  as  a  writ  of  error .^'' 

H.  Motions. — A  motion  made  in  an  inferior  United  States  court  for  a  rule 
to  show  cause  is  not  the  proper  form  of  proceeding  for  revising  the  decisions  of 
such  court,  whether  they  be  correct  or  not.^^ 

I.  Cross  Appeals.— In  General.— Cross  appeals  to  this  court  must  be  pros- 
ecuted like  other  appeals. •^- 

Cross  Writs  of  Error.— By  rule  22  of  this  court  appeals  and  cross  appeals 
are  heard  together,  and  the  practice  is  the  same  as  to  writs  and  cross  writs 
of  error .^-^ 

Under  Circuit  Court  of  Appeals  Act. — Where  there  are  cross  appeals  or 
cross  writs  of  error  in  the  circuit  courts  of  appeals  in  cases  in  which  the  decrees 
or  judgments  are  made  final  in  that  court  by  statute,  and  the  case  is  brought  here 
on  certiorari,  this  court  considers  only  the  errors  assigned  by  petitioner,  unless 
a  cross  writ  of  certiorari  is  applied  for  and  allowed.'"* 

J.  Successive  or  Double  Appeals. — In  General. — Two  appeals  are  not  al- 
lowed in  the  same  case  on  the  same  question.''-"* 

Under  Circuit  Court  of  Appeals  Act. — But  where  an  appeal  is  given  to  this 
court  as  well  as  to  the  circuit  court  of  appeals,  counsel  by  taking  an  appeal  to  the 
circuit  court  of  appeals,  do  not  waive  anv  right  of  appeal  which  they  may  have 
to  this  court.56  The  act  of  March  3,  1891,  ch.  517,  26  Stat.  826.  does  not  con- 
template several  separate  appeals  or  writs  of  error,  on  the  merits,  in  the  same 
case  and  at  the  same  time  to  two  appellate  courts,  and,  therefore,  a  writ  of  error 
to  this  court,  which  was  taken  while  the  case  was  pending  in  the  circuit  court 
of  appeals,  ought  to  be  dismissed.''''  Where  both  defendants  in  the  consolidated 
actions  have  brought  a  writ  of  error,  but  the  verdicts  and  judgments  are  several, 
the  writ  of  error  sued  out  by  the  defendant  jointly  is  superfluous,  and  may  be 
dismissed  without  costs. ^^ 


49.  Ewing  V.  St.  Louis,  5  Wall.  413,  18 
L.    Ed.    657. 

50.  United  States  v.  Marshall  Mining 
Co..    129   U.   S.    579,    589.   32    L.    Ed.    734. 

51.  Ex  parte  Many,  14  How.  24,  14  L. 
Ed.    311. 

52.  Hilton  -■.  Dickinson,  108  U.  S.  165, 
168,  27  L.  Ed.  688,  citing  The  S.  S.  Os- 
borne, 105  U.  S.  447.  26  L.  Ed.  1065;  Far- 
rer  v.  Churchill.  135  U.  S.  609,  34  L.  Ed. 
246. 

58.  Montana  Min.  Co.  v.  St.  Louis,  etc., 
Co..   186  U.  S.  24,   31,  46   L.    Ed.    1039. 

54.  Hubbard  v.  Tod.  171  U.  S.  474,  43 
L.  Ed.  246;  Montana  Min.  Co.  v.  St.  Louis, 
etc.,  Co.,  186  U.  S.  24,   31,  46  L.   Ed.   1039. 

55.  Wheeler  v.  Harris,  13  Wall.  51,  20 
L.   Ed.   531. 

On  appeal  to  the  circuit  court  from  a 
decree  in  the  district  court  for  the  pay- 
ment of  money,  the  circuit  court  affirmed 
the  judgment  of  the  district  court  with 
costs  to  be  taxed,  from  which  affirmance 
the  respondent  took  an  appeal  here.  After 
the  appeal  here,  another  decree  was  ren- 
dered by  the  circuit  court,  in  which,  after 
reciting  the  former  decree  and  taxation 
of  costs,  it  was  decreed  in  form  that  the 
appellee  have  judgment  against  the  ap- 
pellant  for   the    amount   decreed,   together 


with  costs,  amounting  to  the  sum  of 
$5,444.  On  motion  to  dismiss  this  last  ap- 
peal, on  the  ground  of  a  former  one  pend- 
ing in  the  same  case.  held,  that  under  the 
circumstances,  the  first  decree  was  not  a 
final  decree;  and  that  it  was  the  first  ap- 
peal and  not  the  second  which  should  be 
dismissed.  Wheeler  v.  Harris,  13  Wall. 
51.  20   L.    Ed.   531. 

56.  Pullman's  Palace  Car  Co.  v.  Cen- 
tral Transportation  Co.,  171  U.  S.  138,  43 
L.  Ed.  108;  Montana  Min.  Co.  '•.  St. 
Louis  Min.  Co.,  204  U.  S.  214.  51  L.  Ed. 
444. 

57.  Columbus  Const.  Co.  v.  Crane  Co., 
174  U.  S.  600,  43  L.  Ed.  1102.  distinguish- 
ing Pullman's  Palace  Car  Co.  v.  Central 
Transportation  Co..  171  U.  S.  138,  43  L. 
Ed.  108,  in  the  following  words:  "An  ob- 
vious distinction  between  that-  case  and 
this  is  that  there  the  appeal  was  first 
taken  to  this  court.  Accordingly  the  cir- 
cuit court  of  appeals  declined  either  to 
decide  the  case  on  its  merits  or  to  dis- 
miss the  appeal,  while  the  case  was  pend- 
ing on  a  prior  appeal  to  this  court,  and 
continued  the  cause  to  await  the  result 
of  the  appeal  to  the  supreme  court.  39 
U.    S.    App.   307." 

58.  New  York,  etc.,  Ins.  Co.  v.  Hillmon, 
145   U.   S.  285,  36  L.    Ed.   706. 


406 


APPEAL  AND  ERROR. 


K.  Joinder  of  Separate  Suits  in  One  Appeal. — Two  separate  suits  cannot 
be  removed  to  this  court  by  one  appeal  or  writ  of  error,  without  consolidating 
them.5» 

III.   Appellate  Jurisdiction. 

A.  Acquisition  and  Extent — 1.  Definition  and  General  Consideration. 
— Appellate  jurisdiction  is  the  jurisdiction  which  a  superior  court  has  to  rehear 
causes  which  have  been  tried  in  inferior  courts.^^  It  is  the  essential  criterion  of 
appellate  jurisdiction,  that  it  revises  and  corrects  the  proceedings  in  a  cause  al- 
ready instituted  and  does  not  create  that  cause. "^^  This  court  has  appellate  power 
in  all  cases  arising  under  the  constitution  and  laws  of  the  United  States,  with 
such  exceptions  and  regulations  as  congress  may  make,  whether  the  cases  arise 
in  a  state  court  or  an  inferior  court  of  the  United  States.  And,  under  the  act  of 
congress  of  1789,  when  the  decision  of  the  state  court  is  against  the  right  claimed 
under  the  constitution  or  laws  of  the  United  States,  a  writ  of  error  will  lie  to 
bring  the  judgment  of  the  state  court  before  this  court  for  re-examination  and 
revision.^2  In  other  words,  the  judicial  action  of  all  inferior  federal  courts  may 
be  subjected  to  the  appellate  jurisdiction  of  this  court.*'^ 


59.  "The  court  condemns  as  irregular, 
proceedings  whereby  the  defendant  in  two 
separate  suits,  in  the  former  of  which 
judgment  had  been  rendered  before  the 
latter  had  gone  to  trial,  was  permitted  to 
file  bills  of  exception  purporting  to  be 
applicable  to  each  case,  and,  without  con- 
solidating them,  remove  them  to  this 
court  by  one  writ  of  error."  Brown  v. 
Spofford,   95   U.    S.    474,   24   L.   Ed.    508. 

Where  a  motion  is  made  by  the  de- 
fendants in  the  appeal  to  dismiss  it,  on 
the  ground  that  "it  is  an  appeal  from  sev- 
eral distinct  decrees,  in  several  separate 
suits,  which  are  attempted  to  be  united 
in  this  appeal;  when  there  is  no  such 
record  filed  as  is  described  in  the  appeal 
and  citation  thereon."'  the  motion  will  be 
dismissed  if  it  appears  that  by  consent  of 
tbe  parties  the  suits  above  named  were 
to  be  heard  at  the  same  time,  and  the 
papers  and  pleadings  filed  in  one  case 
should  be  considered  and  have  full  eflfect 
in  all  the  cases,  to  enable  the  court  to 
decide  the  controversies  in  all  the  cases 
on  their  respective  merits.  Walden  v. 
Bodlev.   14   Pet.    156.   10   L.   Ed.   398. 

Consolidation  of  appeals. — A  motion  is 
made  by  the  defendants  in  the  appeal,  to 
dismiss  it,  on  the  ground  "that  it  is  an 
appeal  from  several  distinct  decrees,  in 
several  separate  suits,  which  are  attempted 
to  be  united  in  this  appeal;  when  there 
is  no  such  record  filed  as  is  described  in 
the  appeal  and  citation  thereon."  In  the 
decree  of  the  circuit  court,  it  is  stated 
that  by  consent  of  the  parties,  the  suits 
above  named  were  to  be  heard  at  the  same 
time;  and  the  papers  and  pleadings  filed 
in  one  case  should  be  considered  and  have 
full  effect  in  all  the  cases,  to  enable  the 
court  to  decide  the  controversies  in  all 
the  cases  on  their  respective  merits."  And 
it  was  expressly  agreed  "that  the  bill,  an- 
swers, and  orders,  the  entries,  surveys, 
and  patents,  in  the  case  of  Bodley  and 
Pogue  should  be  sufficient,  without  re- 
cording   the    whole    suits    and    papers    in 


each  of  the  cases;  and  that  in  the  event 
of  either  party  appealing,  the  clerk  may 
copy  all  the  papers  in  all  the  records;  and 
that  when  they  are  so  copied  and  certified, 
the  transcript  shall  have  the  same  effect 
as  if  there  were  full  and  separate  records 
made  out  in  each  and  all  of  the  cases; 
and  this  agreement  was  declared  to  be 
entered  into,  with  the  leave  of  the  court, 
to  avoid  expenses  in  the  cases,  as  they  all 
involve  the  same  questions."  These 
agreements  cover  the  apparent  irregulari- 
ties in  the  record,  as  it  regards  the  de- 
crees and  the  proceedings  in  the  different 
cases  stated,  and  obviate  the  objections 
on  which  the  motion  to  dismiss  is 
founded.  Walden  v.  Bodley,  14  Pet.  156, 
10  L.  Ed.  398. 

"We  are  advised  that,  according  to  the 
practice  in  Mississippi,  as  authorized  by 
its  statutes  (Code  of  Miss,  of  1880.  § 
2434),  which,  by  §§  914  and  915,  Rev. 
Stat.,  are  adopted  as  the  practice  of  the 
circuit  court  of  the  United  States  in  that 
district,  the  proceeding  which  resulted  in 
the  verdict  sustaining  the  attachment,  and 
the  verdict  and  judgment  on  the  merits  of 
the  cause  of  action  are  separate,  and, 
consequently,  may  be  separately  con- 
sidered on  error."  Fitzpatrick  v.  Flan- 
nagan.    106   U.    S.   648.   660,   27    L.   Ed.  211. 

60.  1    Bouv.    L.    Diet.    151. 

61.  Ex  parte  Bollman,  4  Cranch  75,  105, 
2  L.  Ed.  554,  565,  following  Marbury  V. 
Madison,  1  Cranch  137,  175.  2  L.  Ed.  60. 

Power  to  review  and  reverse  the  de- 
cision of  the  court  below  authorizing  a 
sale  of  a  decedent's  estate,  is  clearly  ap- 
pellate in  its  character,  and  can  be  ex- 
ercised only  by  an  appellate  tribunal  in 
a  proceeding  had  directly  for  that  pur- 
pose. Cornett  v.  Williams,  20  Wall.  226. 
250.   22    L.    Ed.    254. 

62.  Ahleman  v.  Booth,  21  How.  506, 
16    L.    Ed.    169. 

63.  "As  wherever  the  United  States 
exercise  the  power  of  government,' 
whether  under   specific   grant,   or   through 


APPEAL  AXD  ERROR. 


407 


Original  and  Appellate. — The  constitution,  distributing  the  judicial  power 
of  the  United  States,  vests  in  the  supreme  court  an  original  as  well  as  an  appel- 
late jurisdiction.  The  original  jurisdiction,  however,  is  confined  to  cases  affect- 
ing ambassadors,  other  public  ministers  and  consuls,  and  those  in  which  a  state 
shall  be  a  party.  In  all  other  cases,  only  an  appellate  jurisdiction  is  given  to  the 
court;  and  even  the  appellate  jurisdiction  is,  likewise,  qualified;  inasmuch  as  it  is 
given  "with  such  exceptions,  and  under  such  regulations,  as  the  congress  shall 
make.'"^^  The  constitution  defines  the  jurisdiction  of  none  of  the  federal  courts 
but  the  supreme  court.  Of  that  court  it  is  said,  after  giving  it  a  very  limited 
original  jurisdiction,  that  "in  all  other  cases  before  mentioned,  the  supreme  court 
shall  have  appellate  jurisdiction  both  as  to  law  and  fact,  with  such  exceptions  and 
under  such  regulations  as  the  congress  may  prescribe."  This  latter  clause  has 
been  the  subject  of  construction  in  this  court  many  times,  and  the  uniform  and 
established  doctrine  is,  that  congress  having  by  the  act  of  1789  defined  and  regu- 
lated this  jurisdiction  in  certain  classes  of  cases,  this  affirmative  expression  of  the 
will  of  that  body  is  to  be  taken  as  excepting  all  other  cases  to  which  the  judicial 
power  of  the  United  States  extends,  than  those  enumerated.^-^ 

2.  Burden  of  Showing  Jurisdiction. — It  is  incumbent  upon  the  plaintiff  in 
error  to  sliow  that  this  court  has  jurisdiction  of  the  case.^^  Accordingly,  the  su- 
preme court  of  the  United  States  are  precluded  from  an  inquiry  into  the  merits 
or  even  into  the  jurisdiction  taken  by  the  circuit  court  under  Rev.  Stat.,  §§  1977, 
1979,  until  the  jurisdiction  of  this  court  to  entertain  the  appeal  is  established.*'^ 

3.  Source  of  Appellate  "Power.— By  article  III  of  the  constitution,  the  judi- 
cial power  of  the  United  States  was  "vested  in  one  supreme  court,  and  in  such  in- 
ferior courts  as  the  congress  may  from  time  to  time  ordain  and  establish. "^^ 
Thus  it  will  be  seen,  that  the  appellate  powers  of  the  supreme  court  of  the  United 
States  are  given  by  the  constitution.*'^  The  supreme  court  alone  possesses  ju- 
risdiction derived  immediately  from  the  constitution,  and  of  which  the  legislative 
power  cannot  deprive  it.'^*'  But  its  appellate  powers  are  limited  and  regulated 
by  the  judicial  act  and  other  acts  passed  by  congress  on  the  subject.  Accordingly, 
it  is  well  settled  that  this  court  has  an  appellate  jurisdiction  only  in  those  cases 
in  which  it  is  affirmatively  given  by  the  acts  of  congress."^ 


the  dominion  and  sovereignty  of  plenary 
authority  as  over  the  territories,  Shively 
V.  Bowlby,  1.52  U.  S.  1.  48,  38  L.  Ed.  331, 
that  power  includes  the  ultimate  execu- 
tive, legislative,  and  judicial  power,  it 
follows  that  the  judicial  action  of  all  in- 
ferior courts  established  by  congress 
may.  in  accordance  with  the  constitution, 
be  subjected  to  the  appellate  jurisdiction 
of  the  supreme  judicial  tribunal  of  the 
government."'  United  States  v.  Coe,  155 
U.  S.  76,  86,  39   L.    Ed.   76. 

64.  Wiscart  v.  D'Auchy,  3  Dall.  321,  1 
L.   Ed.   619,   622. 

65.  Wiscart  v.  D'.^uchy,  3  Dall.  321.  1 
L.  Ed.  619;  Durousseau  7'.  United  States. 
6  Cranch  307,  3  L.  Ed.  232:  The  Lucy,  8 
Wall.  307,  19  L.  Ed.  394;  Ex  parte  Mc- 
Cardle,  6  Wall.  318,  18  L.  Ed.  816;  Ex 
parte  McCardle,  7  Wall.  506,  19  L.  Ed. 
264;  Murdock  v.  Memphis,  20  Wall.  590. 
619.   22    L.    Ed.    429. 

66.  United  States  v.  The  Brig  Union.  4 
Crpnch   216.  2   L.    Ed.   600. 

The  burden  is  on  the  appellants  to 
show  the  jurisdiction  of  this  court,  and 
we  cannot  entertain  the  case  unless  they 
have  done  so.  Dueger  v.  Bocock,  104  U. 
S.  596.  26  L.   Ed.  846. 

67.  Mansfield,  etc.,  R.  Co.  r.  Swan.  Ill 


U.  S.  379,  382,  28  L.  Ed.  462;  Anglo-Ameri- 
can Provision  Co.  v.  Davis  Provision  Co., 
191  U.   S.   373,  376.  48   L.   Ed.  225. 

68.  Ex  parte  Wisner,  203  U.  S.  449,  455. 
51    L.    Ed.    264. 

69.  Durousseau  v.  United  States,  6 
Cranch  307,  3  L.   Ed.  232. 

The  appellate  jurisdiction  of  this  court, 
conferred  by  the  constitution,  extends  to 
all  other  cases  within  the  judicial  power 
of  the  United  States.  This  appellate  ju- 
risdiction is  subject  to  stich  exceptions, 
and  must  be  exercised  under  such  regu- 
lations as  congress,  in  the  exercise  of  its 
discretion,  has  made  or  may  see  fit  to 
make.  Ex  parte  Yerger.  8  Wall.  85,  98. 
19    L.    Ed.    332. 

70.  United  States  v.  Hudson,  7  Cranch 
32,  3  L.  Ed.  259;  Ex  parte  Wisner,  203 
U.    S.    449.   455,   51   L.    Ed.   264. 

71.  Wiscart  t-.  D'Auchy.  3  Dall.  321,  1 
L.  Ed.  619;  Clarke  v.  Bazadone,  1  Cranch 
212.  2  L.  Ed.  85;  United  States  v.  More, 
3  Crarvch  159,  2  L.  Ed.  397;  Ex  parte 
Kearney.  7  Wheat.  38,  5  L.  Ed.  391;  Barry 
r.  Mercin,  5  How.  103,  12  L.  Ed.  70; 
TTnited  States  v.  Cox.  11  Pet.  162.  9  L. 
Ed.  671 ;  Walker  v.  United  States.  4  Vv'all. 
163,  18  L.  Ed.  319;  Crawford  v.  Points, 
13    How.    11,    14   L.    Ed.   29;    Chapman   v. 


408 


APPEAL  AND  ERROR. 


The  statement  of  Mr.  Chief  Justice  Ellsworth  in  Wiscart  v.  D'Auchy,  3 
Dall.  321,  1  L.  Ed.  619,  that  the  appellate  jurisdiction  of  the  supreme  court  can 
only  be  exercised  in  conformity  with  the  regulations  prescribed  by  congress,  was 
the  beginning  of  the  rule,  which  has  always  been  acted  on  since,  that  while  the 
appellate  power  of  this  court  under  the  constitution  extends  to  all  cases  within 
the  judicial  power  of  the  United  States,  actual  jurisdiction  under  the  power  is 
confined  within  such  limits  as  congress  sees  fit  to  prescribe.  As  was  said  by  Mr. 
Chief  Justice  Marshall  in  Durousseau  v.  United  States,  6  Cranch  307,  314,  3  L. 
Ed.  232 :  "The  appellate  powers  of  this  court  are  not  given  by  the  judicial  act. 
They  are  given  by  the  constitution.  But  they  are  limited  and  regulated  by  the 
judicial  act.  and  by  such  other  acts  as  have  been  passed  on  the  subject."  The  lan- 
guage of  the  constitution  is  that  "the  supreme  court  shall  have  appellate  juris- 
diction, both  as  to  law  and  fact,  with  such  exceptions  and  under  such  regulations 
as  congress  shall  make."  Undoubtedly,  if  congress  should  give  an  appeal  in  ad- 
miralty causes,  and  say  no  more,  the  facts  as  well  as  the  law.  would  be  subjected 


United  States,  164  U.  S.  436,  446,  41  L. 
E^.  504;  Falk  7:  United  States.  180  U.  S. 
636,  45  L.  Ed.  T09;  Durousseau  v.  United 
States,  6  Cranch  307,  3  L.  Ed.  232;  United 
States  V.  Nowrse,  6  Pet.  470,  495.  8  L.  Ed. 
467;  Ex  parte  Dorr,  3  How.  103,  11  L.  Ed. 
514;  Ex  parte  Christy,  3  How.  292.  317.  11 
L.  Ed.  603;  Nels&n  v.  Carland,  1  How. 
365,  368,  11  L.  Ed.  126;  Ex  parte  Watkins, 
7  Pet.  568,  8  L.  Ed.  786;  Ex  parte  Wat- 
kins,  3  Pet.  193.  7  L.  Ed.  630;  United 
States  V.  Boisdore,  8  How.  113,  116,  12 
L.  Ed.  10O9;  United  States  f.  Curry.  6 
How.  106.  113,  12  L.  Ed.  363;  Ex  parte 
Vallandigham.  1  Wall.  243,  251.  17  L.  Ed. 
&B9\  United  States  v.  Young.  94  U.  S. 
258,    259,   24    L.    Ed.    153. 

The  appellate  jurisdiction  of  this  court 
is  defined  by  the  acts  of  congress.  United 
States  z:  Rvder,  163  U.  S.  132,  135.  41  L. 
Ed.   101. 

By  the  constitution  of  the  United  States, 
in  cases  to  which  the  judicial  power  of 
the  United  States  extends,  and  of  which 
original  jurisdiction  is  not  conferred  on 
this  court,  "the  supreme  court  shall  have 
appellate  jurisdiction,  with  such  excep- 
tions and  under  such  regulations  as  the 
congress  shall  make."  Constitution,  art. 
3,  §  2.  This  court,  therefore,  as  it  has 
always  held,  can  exercise  no  appellate  ju- 
risdiction, except  in  the  cases,  and  in  the 
manner  and  form,  defined  and  prescribed 
by  congress.  Wiscart  z\  D'Auchy,  3  Dall. 
321.  1  L.  Ed.  619;  Durousseau  v.  United 
States,  6  Cranch  307,  314,  3  L.  Ed.  232; 
Barry  v.  Mercein,  5  How.  103,  119,  12  L. 
Ed.  70;  United  States  v.  Young.  94  U.  S. 
258,  24  L.  Ed.  ]53;  The  Francis  Wright, 
105  U.  S.  381.  26  L.  Ed.  IIOO;  National 
Exchange  Bank  v.  Peters,  144  U.  S.  570, 
572,  36  L.  Ed.  545;  .American  Construc- 
tion Co.  V.  Jacksonville,  etc.,  R.  Co.,  148 
U.    S.    372,    378.    37    L.    Ed.    486. 

Tke  supreme  court  has  appellate  juris- 
diction, under  the  constitution,  in  all 
cases  to  which  the  judicial  power  extends 
(other  than  those  in  respect  of  which  it 
has  original  jnri^diction),  "with  such  ex- 
ceptions and  imHer  such  regulations  as 
the  congress   shall  make."     United  States 


V.  American  Bell  Telephone  Co.,  159  U. 
S.   548,   549,  40   L.   Ed.   255. 

To  come  properly  before  us.  the  case 
must  be  within  the  appellate  jurisdiction 
of  this  court.  In  order  to  create  such  ju- 
risdiction in  any  case,  two  things  must 
concur;  the  constitution  must  give  the  ca- 
pacity to  take  it,  and  an  act  of  congress 
must  supply  the  requisite  authority.  Mar- 
burv  V.  Madison.  1  Cranch  137,  2  L.  Ed. 
60; 'Sheldon  v.  Sill,  8  How.  441,  448,  12 
L.  Ed.  1147.  The  original  jurisdiction  of 
this  court,  and  its  power  to  receive  ap- 
pellate jurisdiction,  are  created  and  de- 
fined by  the  constitution;  and  the  legis- 
lative department  of  the  government  can 
enlarge  neither  one  nor  the  other.  But 
it  is  for  congress  to  determine  how  far. 
within  the  limits  of  the  capacity  of  this 
court  to  take,  appellate  jurisdiction  shall 
be  given,  and  when  conferred,  it  can  be 
exercised  onlj^  to  the  extent  and  in  the 
manner  prescribed  by  law.  In  these  re- 
spects it  is  wholly  the  creature  of  legis- 
lation'. Durousseau  z'.  United  States,  6 
Cranch  307,  314,  3  L.  Ed.  232;  United 
States  V.  More,  3  Cranch  159,  2  L.  Ed. 
397;  Barry  v.  Mercein,  5  How.  103,  119,  12 
L.  Ed.  70;  Daniels  z'.  Chicago,  etc.,  R. 
Co.,  3  Wall.  250,  254,  18   L.   Ed.  224. 

We  have  no  jurisdiction  of  this  ap- 
peal, unless  it  has  been  allowed  by  some 
act  of  congress,  and  has  been  brought  in 
substantial  conformity  with  the  legisla- 
tive directions.  The  appellate  jurisdic- 
tion of  this  court  is,  indeed,  derived  from 
the  constitution;  but,  by  the  express  terms 
of  the  constitutional  grant,  it  is  subjected 
to  such  exceptions  and  to  such  regula- 
tions as  congress  may  make.  In  the  ju- 
diciarjr  act  of  1789,  and  in  many  acts 
since,  congress  has  provided  for  its  exer- 
cise in  such  cases  and  classes  of  cases. 
and  under  such  regulations  as  seemed  to 
the  legislative  wisdom  convenient  and  ap- 
propriate. The  court  has  always  regarded 
appeals  in  other  cases  as  excepted  from 
the  grant  of  appellate  power,  and  has  al- 
wa3'S  felt  itself  bound  to  give  effect  to  the 
regulations  by  which  congress  has  pre- 
scribed  the    manner   of   its   exercise.      We 


APPEAL  AND  ERROR.  409 

to  review  and  retrial ;  but  the  power  to  except  from — take  out  of — the  jurisdic- 
tion, both  as  to  law  and  fact,  clearly  implies  a  power  to  limit  the  effect  of  an  ap- 
peal to  a  review  of  the  law  as. applicable  to  facts  finally  determined  below.  Ap- 
pellate jurisdiction  is  invoked  as  w^ell  through  the  instrumentality  of  writs  of  er- 
ror as  of  appeals.  Whether  the  one  form  of  proceeding  is  to  be  used  or  another 
depends  ordinarily  on  the  character  of  the  suit  below ;  but  the  one  as  well  as  the 
other  brings  into  action  the  appellate  powers  of  the  court  whose  jurisdiction  is 
reached  by  what  is  done.  What  those  powers  shall  be,  and  to  what  extent  they 
shall  be  exercised  are,  and  always  have  been,  proper  subjects  of  legislative  con- 
trol. Authority  to  limit  the  jurisdiction  necessarily  carries  with  it  authority  to 
limit  the  use  of  the  jurisdiction.  Not  only  may  whole  classes  of  cases 
be  kept  out  of  the  jurisdiction  altogether,  but  particular  classes  of  ques- 
tions may  be  subjected  to  re-examination  and  review,  while  others  j-re 
not.  To  our  minds  it  is  no  more  unconstitutional  to  provide  that  issues 
of  fact  shall  not  be  retried  in  any  case,  than  that  neither  issues  of  law 
nor  fact  shall  not  be  retried  in  cases  where  the  value  of  the  matter  in  dis- 
pute is  less  than  $5,000.  The  general  power  to  regulate  implies  power  to  regu- 
late in  all  things.  The  whole  of  a  civil-law  appeal  may  be  given,  or  a  part.  The 
constitutional  requirements  are  all  satistied  if  one  opportunity  is  had  for  the  trial 
of  all  parts  of  a  case."- 

Northwest  Territory. — In  accordance  with  these  rules  it  was  held,  that  a  writ 
of  error  did  not  lie  from  the  supreme  court  of  the  United  States  to  the  general 
court  for  the  territory  northwest  of  the  Ohio,  because  the  act  of  congress  had  not 
authorized  it.'^ 

For  the  same  reason,  no  appeal  or  writ  of  error  would  lie  in  a  criminal 
case,   from  the  judgment  of  the  circuit  court  of  the  District  of  Columbia.'''* 

Bankruptcy. — Formerly  an  appeal  would  not  lie  to  this  court,  from  the  de- 
cision of  a  district  court  in  a  case  of  bankruptcy.  "For  we  can  exercise  no  ap- 
pellate power,  unless  it  is  conferred  by  law  ;  and  there  is  no  act  of  congress  au- 
thorizing an  appeal  to  this  court  from  the  decision  of  a  district  court  in  a  case 
of  bankruptcy.""^ 

4.  Jurisdiction  of  Inferior  Court. — For  the  purpose  of  an  appeal,  this  court 
need  not  inquire  when  the  circuit  court  first  obtained  jurisdiction  of  the  suit.  It 
is  sufficient  if  that  court  had  jurisdiction  when  the  decree  appealed  from  was 
rendered."^ 

5.  Consent  as  Conferring  Jurisdiction. — In  General. — Consent  cannot 
confer  jurisdiction  upon  an  appellate  court;  the  regulations  prescribed  by  con- 
gress must  be   followed.'^^ 

here  use  the  word  appeals  in  its  largest  writ  of  error  or  appeal  should  lie  from 
sense,  comprehending  writs  of  error,  and  such  courts  to  this,  your  argument  would 
every  other  form  in  which  appellate  ju-  be  irresistible;  but  when  the  constitution 
risdiction  may  be  invoked  or  brought  into  has  given  congress  power  to  limit  the  ex- 
action. Castro  V.  United  States,  3  Wall.  ercise  of  our  jurisdiction,  and  to  make 
46,  49,  18  L.  Ed.  163.  regulations  respecting  its  exercise;  and 
"From  Wiscart  v.  D'Auchy,  3  Dall.  321,  congress,  under  that  power,  has  proceeded 

1  L.  Ed.  619,  to  American  Construction  to  erect  inferior  courts,  and  has  said  in 
Co.  V.  Jacksonville,  etc.,  R.  Co..  148  U.  S.  what  cases  a  writ  of  error  or  appeal  shall 
372,  37  L.  Ed.  486,  it  has  been  held,  in  an  lie,  an  exception  of  all  oth«r  cases  is  im- 
uninterrupted  series  of  decisions,  that  this  plied.  And  this  court  is  as  much  bound 
court  exercises  appellate  jurisdiction  only  by  an  implied  as  an  express  exception." 
in  accordance  with  the  acts  of  congress  United  States  v.  More,  3  Cranch  159,  2 
upon   that   subject."      Colorado,   etc..  Iviin-  L.   Ed.   397. 

ing   Co.   f.   Turck,    150    U.   S.    138,    141,   37  75.    Nelson   v.    Carland,    1    How.   265,   11 

L.    Ed.    1030.  L.   Ed.  126;  Ex  parte  Christy,  3  How.  292, 

72.  The  "Francis  Wright,"  105  U.  S.  314,  315,  11  L.  Ed.  603;  Crawford  v. 
381.  385,  26  L.  Ed.  1100,  opinion  of  Mr.  Points.  13  How.  11,  14  L.  Ed.  29.  See  the 
Chief  Justice   Waite.  title    BANKRUPTCY. 

73.  Clarke   v.    Bazadone,   1    Cranch   212,  76.  Pacific  R.  Co.  v.  Ketchum,  101  U.  S. 

2  L.  Ed.  85.  283.   25    L.    Ed.    932. 

74.  "If  Congress  had  erected  inferior  77.  Kelsey  v.  Forsyth.  21  How.  85.  16 
courts,    without    saying    in    what    cases    a       L.    Ed.    32;    Sampson   v.   Welch,    24    How. 


410 


APPEAL  AND  ERROR. 


For  example,  consent  cannot  give  this  court  jurisdiction  over  an  interlocutory 
decreeJ^  Nor  dispense  with  the  necessity  for  taking  an  appeal  in  the  district 
courtJ^  Several  cases  expressly  decide  that  the  agreement  of  the  parties  cannot 
authorize  this  court  to  revise  a  judgment  of  an  inferior  court  in  any  other  mode  of 
proceeding  than  that  which  the  law  prescribes. ^^  No  mere  agreement  of  counsel 
can  substitute  evidence  of  facts  in  place  of  facts,  or  require  the  opinion  of  this 
court  on  an  imperfect  statement  of  them.  A  writ  of  error  cannot  by  these 
methods  be  converted  into  a  chancery  appeal,  nor  a  court  of  appeal  into  appellate 
arbitrators.^^  Nor  can  a  case  be  brought  to  this  court  by  agreement  of  parties, 
without  the  issuing  or  service  of  a  writ  of  error.  An  appeal  allowed  or  a  writ 
of  error  served  is  essential  to  the  exercise  of  appellate  jurisdiction  of  this  court.^2 


207,  16  L.  Ed.  632;  Ex  parte  McCardle,  7 
Wall.  506,  512,  19  L.  Ed.  264;  Washing- 
ton County  V.  Durant.  7  Wall.  694,  19  L. 
Ed.  164;  The  Lucy,  8  Wall.  307,  19  L.  Ed. 
394;  M-errill  v.  Petty,  16  Wall.  338,  342, 
21  L.  Ed.  499.  And  see  Hudgins  v.  Kemp, 
18  How.  530.  15  L.  Ed.  511;  New  Orleans 
V.  Gaines,  22  How.  141,  16  L.  Ed.  295; 
Mills  V.  Brown.  16  Pet.  525.  10  L.  Ed. 
1055;  Ballance  v.  Forsyth,  21  How.  389, 
16  L.  Ed.  143;  Montgomery  v.  Anderson, 
21  How.  386,  16  L.  Ed.  160;  Oliver  v. 
Alexander,  6  Pet.  143,  148.  8  L.  Ed.  349, 
351;  Gruner  v.  United  States,  11  How. 
163,    13    L.    Ed.    647. 

No  consent  of  counsel  can  give  jurisdic- 
tion.— Appellate  jurisdiction  in  the  fed- 
eral courts  depends  on  the  constitution 
and  t+he  acts  of  congress.  When  these  do 
not  confer  it,  courts  of  the  United  States 
cannot  exercise  it.  The  Lucy,  8  Wall. 
307,   19   L.    Ed.   394. 

The  court  has  no  jurisdiction  of  a 
cause  transferre-d  here  from  the  circuit 
court  by  consent  of  parties.  The  Alicia. 
7  Wall.  571,  572,  19  L.  Ed.  84.  affirmed 
in  The  Nonesuch.  9  Wall.  504,  19  L.  Ed. 
663. 

Tlie  judicial  power  of  the  United  States 
must  not  be  exerted  in  a  case  to  which  it 
does  not  extend,  even  if  both  parties  de- 
sire to  have  it  exerted.  Cutler  z\  Rae,  7 
How.  729,  12  L.  Ed.  890:  Mansfield,  etc.. 
R.  Co.  V.  Swan,  111  U.  S.  379,  384,  28  L. 
Ed.    462. 

For  the  purposes  of  an  appeal,  we  need 
not  inquire  when  the  circuit  court  first 
got  jurisdiction  of  this  suit.  It  is  suffi- 
cient if  it  had  jurisdiction  when  the  de- 
cree appealed  from  was  rendered.  As  no 
objections  were  made  by  the  parties  in 
the  progress  of  the  cause  to  the  right  of 
the  court  to  proceed,  and  the  decree  when 
rendered  was  consented  to,  it  is  enough 
for  the  purposes  of  this  appeal  if  the 
record  shows  that  when  the  consent  was 
acted  on  bv  the  court  jurisdiction  was 
complete.  Consent  cannot  give  the  courts 
of  the  United  States  jurisdiction,  but  it 
may  bind  the  parties  and  waive  previous 
errors,  if  when  the  court  acts,  jurisdic- 
tion has  been  obtained.  Pacific  R.  Co.  v. 
Ketchum,  101  U.  S.  289,  298,  25  L.  Ed. 
932. 

Consent  of  parties  can  never  confer  ju- 
risdiction   upon    a    federal    court.      If    the 


record  does  not  affirmatively  show  juris- 
diction in  the  circuit  court,  we  must,  upon 
our  own  motion,  so  declare,  and  make 
such  order  as  will  prevent  that  court  from 
exercising  an  authority  not  conferred  upon 
it  by  statute.  Mansfield,  etc.,  R.  Co. 
V.  Swan,  111  U.  S.  379,  382.  28  L.  Ed. 
462;  Robertson  v.  Cease,  97  U.  S.  646,  24 
L.  Ed.  1057;  King  Bridge  Co.  v.  Otoe 
County,  120  U.  S.  225,  30  L.  Ed.  623; 
Parker  v.  Ormsby,  141  U.  S.  81,  35  L. 
Ed.  654;  Mattingly  v.  Northwestern  Va. 
R.  Co..  158  U.  S.  53,  57,  39  L.  Ed.  894; 
Great  Southern  Fire  Proof  Hotel  Co.  v. 
Jones,  177  U.  S.  449,  453.  44  L.  Ed.  842; 
Continental  National  Bank  v.  Buford,  191 
U.  S.  119.  48  L.  Ed.  119;  Defiance  Water 
Co.  V.  Defiance,  191  U.  S.  184,  194,  48  L. 
Ed.  140;  Minnesota  v.  Northern  Securi- 
ties Co.,  194  U.  S.  48,  63,  48  L.  Ed.  870. 

According  to  the  practice  in  Illinois  an 
infant's  next  friend  or  guardian  ad  litem 
may  consent  to  the  hearing  of  his  case  in 
some  other  grand  division  from  the  one 
in  which  it  was  decided,  or  at  a  term  of 
the  supreme  court  earlier  than  such  ap- 
peal or  writ  of  error  would  ordinarily  be 
heard.  Kingsbury  v.  Buckner,  134  U.  S. 
650,   33    L.    Ed.    1047. 

78.  Montgomery  v.  Anderson,  21  How. 
386,   16    L.    Ed.    160. 

79.  Where  an  appeal  is  dismissed  by 
the  United  States  supreme  court  because 
it  did  not  appear  that  an  appeal  had  been 
taken  in  the  district  court,  such  appeal 
will  not  be  reinstated,  on  a  motion  sup- 
ported by  a  written  agreement,  signed  by 
the  counsel  for  the  appellant  and  appel- 
lee, consenting  to  reinstate  the  case,  to 
waive  all  irregularities,  and  try  the  case 
on  the  merits,  because  consent  of  parties 
cannot  give  jurisdiction  to  the  United 
States  supreme  court,  where  the  law  does 
not  give  it.  Ballance  v.  Forsyth,  21  How. 
389,    16   L.    Ed.    143. 

80.  Scott  V.  Sandford,  19  How.  393,  15 
L.  Ed.  691;  Kelsey  v.  Forsyth,  21  How. 
85,  16  L.  Ed.  32;  Montgomery  v.  Ander- 
son, 21  How.  386,  16  L.  Ed.  160;  Mordecai 
r.  Lindsay,  19  How.  199,  200,  15  L.  Ed. 
624;  Merrill  v.  Petty,  16  Wall.  338,  346, 
21   L.   Ed.   499. 

81.  Graham  v.  Bayne,  18  How.  60.  15 
L.    Ed.    265.    267. 

82.  Washington  Countv  v.  Durant,  131 
U.  S.,  Appx.  Ixxx,  18  L.  Ed.  169. 


APPEAL  AND  ERROR.  4U 

Although  consent  of  the  parties  to-  a  suit  cannot  give  jurisdiction  to  the 

courts  of  the  United  States,  the  parties  may  admit  the  existence  of  facts  which 
show  jurisdiction,  and  the  courts  may  act  judicially  upon  such  an  admission.** 

6.  Construction  of  Statutes  CoNFeRRiNG  Right  of  Appeal. — a.  In  Gen- 
eral.— When  an  instrument  organizing  fundamentally  a  judicial  system,  divides 
it  into  one  supreme  and  so  many  inferior  courts  as  the  legislature  may  ordain  and 
establish ;  then  enumerates  its  powers,  and  proceeds  so  far  to  distribute  them,  as 
k)  define  the  jurisdiction  of  the  supreme  court  by  declaring  the  cases  in  which  it 
shall  take  original  jurisdiction,  and  that  in  others  it  shall  take  appellate  jurisdic- 
tion ;  the  plain  import  of  the  words  seem  to  be,  that  in  one  class  of  cases  its  ju- 
risdiction is  original,  and  not  appellate ;  in  the  other  it  is  appellate,  and  not  orig- 
inal. If  any  other  construction  would  render  the  clause  inoperative,  that  is  an 
additional  reason  for  rejecting  such  other  construction,  and  for  adhering  to  their 
obvious  meaning.*-*  Where  an  act  of  congress  gives,  as  part  of  the  general  sys- 
tem of  organization  of  a  court,  an  appeal  from  any  final  judgment  or  decree  which 
may  hereafter  be  rendered  by  it,  an  appeal  lies  from  a  judgment  rendered  under 
an  act  which  gives  the  court  jurisdiction  to  pass,  in  the  usual  way,  and  not  by  any 
special  proceedings,  upon  a  class  of  cases  additional  to  those  of  which  it  already 
had  jurisdiction,  even  though  nothing  be  said  in  such  act  about  an  appeal.*^  Where 
the  appellate  jurisdiction  is  described  in  general  terms  so  as  to  comprehend  the 
particular  case,  no  presumption  can  be  indulged  of  an  intention  to  oust  or  to  re- 
strict such  jurisdiction ;  and  any  statute  claimed  to  have  that  effect  must  be  ex- 
amined in  the  light  of  the  objects  of  the  enactment,  the  purposes  it  is  to  serve  and 
the  mischiefs  it  is  to  remedy,  bearing  in  mind  the  rule  that  the  operation  of  such  a 
statute  must  be  restrained  within  narrower  limits  than  its  words  import,  if  the 
court  is  satisfied  that  the  literal  meaning  of  its  language  would  extend  to  cases 
which  the  legislature  never  intended  to  include  in  it.'**' 

A  right  of  appeal,  though  not  given  in  terms  in  a  special  act,  authorizing 
the  submission  of  a  suit  to  a  particular  tribunal,  may  be  inferred  from  the  gen- 
eral character  of  the  act  and  its  particular  indications.*" 

b.  Affirmative  and  Negative  Description. — It  was  early  held,  that  in  the  pas- 
sage of  the  judiciary  act  of  1789.  congress  was  executing  the  power  of  making 
exceptions  to  the  exercise  of  appellate  jurisdiction,  and  that  the  affirmative  de- 
scription of  the  cases  to  which  the  appellate  power  extended  was  to  be  under- 
stood as  implying  a  negative  on  the  exercise  of  such  appellate  power  as  was  not 
comprehended  within  it,  but  that  as  this  restriction  rested  on  implication  founded 
on  the  manifest  intent  of  the  legislature,  it  could  be  sustained  only  when  that 
manifest  intent  appeared.**    Nearly  seventy  years  ago,  Mr.  Chief  Justice  Marshall 

83.  Railway  Co.  v.  Ramsey,  22  Wall.  Negative  and  affirmative  descriprion.^ 
322,  22   L.   Ed.   823.  Inasmuch    as    the    appellate   power    of   the 

84.  Marbury  v.  Madison,  1  Cranch  137,  court  is  conferred  by  the  constitution, 
2  L.   Ed.   60.  with  such  exceptions  and  under  such  regu- 

85.  Ex  parte  Zellner,  9  Wall.  244,  19  lations  as  congress  shall  make,  the  rule  of 
L.  Ed.  66.5.  followed  in  Ex  parte  Pargoud,  construction  is  that  the  negative  of  any 
154   U.    S.   567,   19    L.    Ed.    620.  other    jurisdiction    in    that    respect    is    im- 

86.  Petri  v.  Commercial  Nat.  Bank,  plied  from  the  intent  manifested  by  the 
142  U.  S.  644,  650.  35  L.  Ed.  1144;  Brewer  affirmative  description  contained  in  that 
V.  Blougher.  14  Pet.  178.  10  L.  Ed.  408;  section  of  the  judiciary  act.  Durousseaa 
Reiche  v.  Smvthe.  13  Wall.  162,  164.  20  v.  United  States,  6  Cranch  307.  318,  3 
L.  Ed.  566;  Market  Company  v.  Hoffman,  L.  Ed.  232;  Merrill  v.  Petty,  16  Wall.  338. 
101  U.  S.  112,  25  L.  Ed.  782;  United  States  346,  21  L.  Ed.  499;  Ex  parte  McCardle,  T 
V.  American  Bell  Telephone  Co.,  159  U.  Wall.  506,  513,  19  L.  Ed.  264;  Maynard  v. 
S.    548,   550,   40    L.    Ed.    255.  Hecht,    151   U.   S.   324.   325,    38   L.    Ed.    179. 

87.  Vigo's  Case,  21  Wall.  648,  22  L.  fallowed  in  Moran  v.  Hagerman,  151  U. 
Ed.    690.  S.    329,    38    L.    Ed.    181. 

88.  Durousseau  v.  United  States,  6  The  appellate  jurisdiction  of  this  court 
Cranch  307.  3  L.  Ed.  232;  United  States  is  conferred  by  the  constitution,  and  not 
7'.  American  Bell  Telephone  Co.,  159  U.  derived  from  acts  of  congress;  but  is  con- 
S.  548,  549.  40  L.  Ed.  255;  United  States  f erred  "with  such  exceptions,  and  under 
V.   More,   3   Cranch   159,   2    L.   Ed.   397.  such  regulations,  as  congress  may  make;" 


412  APPEAL  AND  ERROR. 

said,  in  Durousseau  v.  United  States,  6  Cranch  307,  3  L.  Ed.  232,  that  this  "court 
implies  a  legislative  exception  from  its  constitutional  appellate  power  in  the 
legislative  afftrmative  description  of  those  powers.  Thus,  a  writ  of  error  lies  to 
the  judgment  of  a  circuit  court,  where  the  matter  in  controversy  exceeds  tlic 
value  of  $2,000.  There  is  no  express  declaration  that  it  will  not  lie  where  the 
matter  in  controversy  shall  be  of  less  value.  But  the  court  considers  this  affirm- 
ative description  as  manifesting  the  intent  of  the  legislature  to  except  from  its 
appellate  jurisdiction  all  cases  decided  in  the  circuits  where  the  matter  in  contro- 
versv  is  of  less  value  and  implies  negative  words."  There  has  been  no  departure 
from  this  rule,  and  it  has  universally  been  held,  that  our  api>ellate  jurisdiction 
can  o»ly  be  exercised  in  cases  where  authority  for  that  purpose  is  given  by  con- 
gress.** In  accordance  with  the  general  rule  that  the  affirmative  description  of 
the  cases  in  which  appellate  jurisdiction  may  be  exercised  implies  a  negative  on 
the  exercise  of  such  power  in  other  cases,  it  was  held,  that  §  846  of  the  Revised 
Statutes  of  the  District  of  Columbia  providing  that  "Any  final  judgment,  order 
or  decree  of  the  supreme  court  of  the  district  may  be  re-examined  and  reversed 
or  affirmed  in  the  supreme  court  of  the  United  States,  upon  writ  of  error  or  ap- 
peal, in  the  same  cases  and  in  like  manner  as  provided  by  law  in  reference  to  the 
final  judgments,  orders  and  decrees  of  the  circuit  court  of  the  United  States," 
cannot  be  construed  so  as  to  make  it  include  all  subsequent  legislation  touching 
jurisdiction  over  circuit  courts  of  the  United  States ;  as,  for  example,  to  the  ex- 
tent of  giving  this  court  jurisdiction  over  judgments  of  the  supreme  court  of 
the  restrict  of  Columbia  in  criminal  cases  by  virtue  of  that  section  of  the  circuit 
court  of  appeals  act  providing  that  appeals  arwl  writs  of  error  may  be  taken  from 
the  district  courts  or  from  the  existing  circuit  courts  directly  to  this  court  in  cases 
of  ■  conviction  of  a  capital  or  otherwise  infamous  crime. ^*^ 

c.  Repealing  Acts. — Where  a  statute  provides  for  a  writ  of  error  to  a  specified 
court  of  appeals,  it  must  be  regarded  as  a  repeal  of  any  previous  statute  which 
provided  for  a  writ  of  error  to  another  and  different  court. ^^  When  congress 
enacts  that  this  court  shall  have  appellate  jurisdiction  over  final  decisions  of  the 
circuit  courts,  in  certain  cases,  the  act  operates  as  a  negation  or  exception  of  such 
jurisdiction  in  other  cases  ;  and  the  repeal  of  the  act  necessarily  negatives  juris- 
diction under  it  of  these  cases  also.  The  repeal  of  such  an  act,  pending  an  appeal 
IM"ovided  for  by  it,  is  not  an  exercise  of  judicial  power  by  the  legislature,  no  mat- 
ter whether  the  repeal  takes  eflfect  before  or  after  argument  of  the  appeal. ^^ 
Therefore,  the  act  of  27th  of  ]\Iarch,  1868,  repealing  that  provision  of  the  act 
of  5th  of  February,  1867,  to  amend  the  judicial  act  of  1789,  which  authorized 
appeals  to  this  court  from  the  decisions  of  the  circuit  courts,  in  cases  of  habeas 
corpus,  does  not  except  from  the  appellate  jurisdiction  of  this  court  any  cases 
but  appeals  under  the  act  of  1867.  It  does  not  affect  the  appellate  jurisdiction 
which  was  previously  exercised  in  cases  of  habeas  corpus.^''  The  general  rule, 
supported  by  the  best  elementary  writers,  is,  that  "when  an  act  of  the  legislature  is 
repealed,  it  must  be  considered,  except  as  to  transactions  past  and  closed,  as 
if  it  never  existed."     And  the  effect  of  repealing  acts  upon  suits  under  acts  re- 

and,   therefore,  acts  of  congress   affirming  late  power  as  is  not  comprehended  within 

such   jurisdiction,   have    always   been   con-  it."      National    Exchange    Bank   v.    Peters, 

strued   as   excepting  from  it   all   cases   not  144  U.   S.   570.  573.  36   L.    Ed.   545. 

expressly  described  and  provided  for.    Ex  89.   Baltimore,   etc.,   R.   Co.   v.   Grant,  98 

parte    McCardle.    7    Wall.    506.    19    L.    Ed.  U.  S.  398,  401,  35  L.  Ed.  231. 

264.  90.  In  re  Heath.  144  U.  S.  92.  36  L.  Ed. 

Although    th<"    appellate   powers    of   this  358.  distinguishing  Wales  v.  Whitney,  114 

court   are    given  by   the   constitution,  they  U.  S.  564,  29  L.  Ed.  277. 

are  nevertheless  limited  and  regulated  by  91.    Brown   v.    United    States.    171   U.    vS. 

acts    of    congress.      Durousseau    v.    United  631.    637,   43    L     Ed    312. 

States,    6    Cranch    307,    314.    3    L.    Ed.    232.  92.    Ex  parte    McCardle,  7   Wall.   506.  19 

In  that  case  it  was  held  that  the  affirma-  L.   Ed.   264. 

live    description   of  jurisdiction    implied   a  93.   Ex  parte   McCardle,  7  Wall.   506,  19 

"negative   on   the  exercise   of   such   appel-  L.   Ed.  264. 


APPEAL  AND  ERROR. 


413 


pealed,  has  been  determined  by  the  adjudications  of  this  court.  In  these  cases, 
it  was  held,  that  no  judgment  could  be  rendered  in  a  suit  after  the  repeal  of 
the  act  under  which  it  was  brought  and  prosecuted. ^^ 

7.  What  Law  Governs. — In  General. — The  appellate  jurisdiction  of  this 
court  is  regulated  by,  and  is  altogether  dependent  upon,  the  acts  of  congress, 
and  the  mere  adoption  of  a  state  statute  as  to  the  mode  of  procedure  in  a  par- 
ticular case  will  not  govern  the  right  of  appeal  in  opposition  to  the  acts  of  con- 
gress in  defining  its  appellate  jurisdiction.^'' 

Where  a  jury  is  waived,  and  questions  of  law  and  fact  decided  by 
the  court  in  Louisiana,  the  rules  of  the  state  appellate  court  require  that  the 
whole  evidence  should  be  put  into  the  record.  But  where  a  case  is  brought  up 
to  this  court,  by  writ  of  error  from  the  circuit  court  of  the  United  States  for 
Louisiana,  the  rules  of  this  court  only  require  that  so  much  of  the  evidence  should 
be  inserted  as  is  necessary  to  explain  the  legal  questions  decided  by  the  court. 
Consequently,  the  mere  fact  that  some  of  the  evidence  given  below  is  omitted 
fiom  the  record,  is  not  of  itself  sufficient  to  prevent  this  court  from  examining 
the  questions  of  law  presented  by  the  record.''*' 

The  Uniformity  Act.— While,  since  the  act  of  1872,  ch.  255  (17  Stat.  196, 
now  §  914,  Rev.  Stat.),  the  practice,  pleadings,  and  forms  and  modes  of  pro- 
ceedings in  civil  causes,  other  than  equity  and  admiralty  causes,  in  the  circuit 
and  district  courts,  must  conform,  as  near  as  may  be,  to  the  practice,  pleadings, 
and  forms  and  modes  of  proceeding  existing  at  the  time  in  like  causes  in  the 
courts  of  record  of  the  state  within  which  such  circuit  or  district  courts  are  held, 
the  review  of  a  case  in  this  court  is  regulated  by  the  acts  of  congress  and  not 
by  the  laws  of  the  states.'''' 

The  laws  of  practice  of  a  territory  cannot  regulate  the  process  by  which 
this  court  exercises  its  appellate  power. -'^ 

In  regard  to  motions  for  a  new  trial,  and  bills  of  exceptions,  the  courts 
of  the  United  States  are  independent  of  any  statute  or  practice  prevailing  in 
the  courts  of  the  state  in  which  the  trial  is  had.^^ 


94.  Ex  parte  McCardle,  7  Wall.  506,  .514, 
19  L.  Ed.  264,  citing  Norris  v.  Crocker, 
l."?  How.  429,  14  L.  Ed.  210;  Insurance 
Company  v.  Ritchie,  5  Wall.  541.  18  L. 
Ed.   540. 

95.  Baltimore,  etc.,  R.  Co.  v.  Sixth  Pres- 
byterian Church,  19  Wall.  62,  23  L.  Ed.  97. 

Questions  reviewable. — The  authority  of 
this  court  to  review  the  judgments  of  the 
circuit  court  by  bill  of  exceptions  and 
writ  of  error  is  regulated  exclusively  by 
the  acts  of  congress  and  the  practice  of 
the  courts  of  the  United  States,  without 
regard  to  the  statutes  of  the  state  or  the 
practice  of  its  courts.  In  re  Chateaugay 
Co.,  128  U.  S.  544.  32  L.  Ed.  508.  The 
right  of  review  is  limited  to  questions  of 
law  appearing  on  the  face  of  the  record, 
and  does  not  extend  to  matters  of  fact 
or  of  discretion;  questions  of  law  arising 
upon  the  trial  of  an  issue  of  fact  cannot 
be  made  part  of  the  record  by  bill  of  ex- 
ceptions, unless  the  trial  is  by  jury,  or 
by  the  court  after  due  waiver  in  writing 
of  a  jury  trial.  Andes  z'.  Slauson,  130 
U.   S.   435,   438,   32    L.    Ed.    989. 

96.  .\rthurs  v.  Hart,  17  How.  6,  15  L. 
Ed.  30. 

97.  "The  doubt  we  have  is  whether  the 
act  of  1872  enlarged  the  existing  modes 
of  subjecting  cases  to  review  here.  There 
IS  no  express  provision  of  that  kind,  and 
on  its  face  the  act  is  confined  to  the  prac- 


tice, pleadings  and  modes  of  proceedings 
in  the  circuit  and  district  courts.  Any 
allusion  to  a  review  here  seems  to  have 
been  studiously  avoided."  Boogher  t^.  New 
York  Life  Ins.  Co..  103  U.  S.  90,  26  L. 
Ed.  310,  citing  United  States  v.  King,  7 
How.   833.   12   L.    Ed.   934. 

The  practice  and  rules  of  the  state 
court  do  not  apply  to  proceedings  in  a 
circuit  court  taken  for  the  purpose  of  re- 
viewing in  this  court  the  judgment  of  the 
circuit  court.  Section  914  of  the  Revised 
Statute  which  requires  "the  practice, 
pleadings  and  forms  and  modes  of  pro- 
ceeding to  conform  as  near  as  may  be  to 
those  existing  at  the  time  in  like  causes 
in  the  courts  of  record  in  the  state,"  does 
not  extend  to  the  means  of  enforcing  or 
revising  a  decision  once  made  by  the  cir- 
cuit court.  The  manner  or  the  time  of 
taking  proceedings  as  a  foundation  for 
the  removal  of  a  case  by  a  writ  of  error 
from  one  federal  court  to  another,  .is  a 
matter  to  be  regulated  exclusively  by  acts 
of  congress,  or,  when  they  are  s'lent,  by 
methods  derived  from  the  common  law, 
from  ancient  English  statute,  or  from  the 
rules  and  practice  of  the  courts  of  the 
United  States.  In  re  Chateaugay  Co.,  128 
U.   S.   544,  32  L.  Ed.  508. 

98.  Brewster  v.  Wakefield,  22  How.  118, 
16    L.    Ed.    301. 

99.  Indianapolis,   etc.,    R.    Co.   v.   Horst, 


414 


APPEAL  AND  ERROR. 


8.  Where  Jurisdiction  Is  Assumed  Sub  SilEntio.— Although  this  court  may 
have  exercised  jurisdiction  in  a  certain  case,  yet  if  no  question  was  made  in  that 
case  as  to  the  jurisdiction,  but  it  is  passed  sub  silentio,  we  do  not  consider  that 
case  as  binding  precedent.  ^ 

9.  Determination  of  This  Court's  Jurisdiction. — Without  attemptmg  to 
cite  the  many  authorities  in  which  this  proceeding  has  been  followed,  it  may 
be  merely  stated  that  the  question  of  jurisdiction  always  precedes  any  inquiry 
into  the  merits. ^  It  is  not  in  the  power  of  the  circuit  court  to  determine  the 
extent  and  limits  of  our  jurisdiction,  for  that  is  a  matter  which  this  court  must 
finally  decide  for  itself.-^ 

B.  Loss  or  Divesture  of  Jurisdiction. — In  General. — It  has  long  been 
established,  that  when  the  jurisdiction  of  a  court  of  the  United  States  has  once 
attached,  no  subsequent  change  in  the  condition  of  the  parties  would  oust  it.* 
Appellants  are  not  entitled  to  insist  upon  an  objection  in  this  court,  to  sustain 
which  would  curtail  the  relief  to  which  appellee  was  entitled  as  against  them  or 
overthrow  the  jurisdiction  of  the  circuit  court.^ 

From  Courts  Since  Dissolved. — A  decree  of  the  provisional  court  of  Louis- 
iana, which  was  established  by  order  of  the  president,  during  the  rebellion,  hav- 
ing been  transferred  into  the  circuit  court,  in  pursuance  of  an  act  of  congress, 
must  be  regarded,  in  respect  to  appeal,  as  a  decree  of  the  circuit  court.*"^ 

Where  Statute  Giving  jurisdiction  Expires  Pending  the  Appeal. — If 
laws  which  give  this  court  jurisdiction  have  expired,  its  jurisdiction  over  them 


93  U.  S.  291,  23  L.  Ed.  898;  Newcomb 
V.  Wood,  97  U.  S.  581.  24  L.  Ed.  1085; 
In  re  ChateauRay  Co.,  128  U.  S.  544,  32 
t,.  Ed.  508;  Missouri  Pacific  R.  Co.  v. 
Chicago,  etc..  R.  Co.,  132  U.  S.  191,  33  L. 
Ed.  309;  Fishburn  v.  Chicago,  etc.,  R. 
Co.,  137  U.   S.  60,  61,  34  L.   Ed.  585. 

Nothing  is  better  settled  in  this  court 
than  the  proposition  that  "in  regard  to 
*  *  *  bills  of  exceptions,  courts  of  the 
United  States  are  independent  of  any 
statute  or  practice  prevailing  in  the  courts 
of  the  state  in  which  the  trial  was  had." 
Fishburn  v.  Chicago,  etc.,  R.  Co.,  137  U. 
S.  60.  34  L.  Ed.  585;  Van  Stone  v.  Still- 
well,  etc..  Mfg.  Co..  142  U.  S.  128,  133,  35 
L.   Ed.  961. 

1.  New  V.  Oklahoma,  195  U.  S.  252.  49  L. 
Ed.  182.  citing  Queenan  v.  Oklahoma,  190 
U.  S.  548,  47  L.  Ed.  1175;  United  States 
V.  Simms,  1  Cranch  252,  2  L.  Ed.  98; 
United  States  v.  More,  3  Cranch  159.  2 
L.  Ed.  397. 

In  United  States  v.  More,  3  Cranch  159, 
172,  2  L.  Ed.  397.  it  was  held,  that  this 
court  was  without  jurisdiction,  under  the 
law  as  it  then  was,  to  review  the  final 
judgment  of  the  circuit  court  of  the  Dis- 
trict of  Columbia  in  a  criminal  case.  It 
was  suggested  at  the  bar,  in  that  case, 
that  this  court  had,  in  a  previous  case, 
exercised  appellate  jurisdiction  in  a  crim- 
inal case.  Chief  Justice  Marshall  met 
that  suggestion  by  saying:  ''No  question 
was  made  in  that  case  as  to  the  jurisdic- 
tion. It  passed  sub  silentio.  and  the  court 
does  not  consider  itself  as  bound  by  that 
case."  To  the  same  effect,  substantially, 
are  United  States  v.  Sanges,  144  U.  S.  310. 
"119,  36  L.  Ed.  445.  and  Cross  v.  Burke, 
'46    U.    S.    82,    36    L.    Ed.    896.      Louisville 


Trust  Co.  V.  Knott.  191  U.  S.  225,  236,  48 
L.  Ed.  159,  reaffirmed  in  Shoesmith  v. 
Boot  &  Shoe  Mfg.  Co.,  198  U.  S.  582,  49 
L.    Ed.    1172. 

2.  See  Oregon  v.  Hitchcock,  202  U.  S. 
60,  68.  50  L.  Ed.  935;  Whitney  v.  Dick, 
202   U.    S.    132,   50    L.    Ed.   963. 

3.  Rector  v.  Lipscomb.  141  U.  S.  557, 
558,  35  L.  Ed.  857. 

4.  Morgan  v.  Morgan,  2  Wheat.  290,  4 
L.  Ed.  242;  Clarke  r.  Mathewson,  12 
Pet.  164,  165,  9  L.  Ed.  1041;  Kanouse  V. 
Martin.  15  How.  198,  208,  14  L.  Ed.  660; 
Kirby  v.  American  Soda  Fountain  Co.. 
194  U.  S.  141,  145,  48  L.  Ed.  911. 

5.  Keller  v.  Ashford.  133  U.  S.  610,  626, 
33  L.  Ed.  667;  McGahan  v.  Bank,  156  U. 
S.   218.  237,  39  L.    Ed.  403. 

6.  The  Grapeshot,  7  Wall.  563,  19  L. 
Ed.   83. 

When,  upon  the  close  of  the  war,  and 
the  consequent  dissolution  of  the  provi- 
sional court  established  bj'-  the  president, 
congress,  in  the  exercise  of  its  general 
authority  in  relation  to  the  national 
courts,  directed  that  causes  pending  in 
the  provisional  court,  and  judgments,  or- 
ders and  decrees  rendered  by  it,  which, 
under  ordinary  circumstances,  would  have 
been  proper  for  the  jurisdiction  of  the 
circuit  court  of  the  United  States,  should 
be  transferred  to  that  court  and  have  ef- 
fect as  if  originally  brought,  or  rendered 
therein,  a  decree  in  admiraltjr  rendered  in 
the  provisional  court,  as  upon  appeal  from 
the  district  court,  became  at  once,  upon 
transfer,  the  decree  of  the  circuit  court; 
and  an  appeal  was  properly  taken  from 
it  to  this  court.  The  Grapeshot,  9  Wall. 
129,  19  L.  Ed.  651. 


APPEAL  AND  ERROR. 


415 


ceases,  although  the  appeal  is  actually  pending  in  this  court  when  they  expired 
C.  Jurisdiction  In  Particular  Proceedings — 1.  In  Criminal  Cases^ 
a.  //;  General. — The  judiciary  act  made  no  provision  for  the  revision  of  judg- 
ments of  the  circuit  or  district  courts  in  criminal  cases;  and  as  the  cases 
in  which  the  appellate  jurisdiction  of  this  court  can  be  exercised  depend 
upon  the  regulation  of  congress,  it  followed  that  no  appeal  or  writ  of  error  would 
lie.^     In  short,  this  court  has  no  appellate  jurisdiction  confided  to  it  in  criminal 


7.  United  States  v.  Boisdore,  8  How. 
113.  120.  12  L.  Ed.  1009;  McNulty  v. 
Batty.  10  How.  72,  79,  13  L.  Ed.  333. 

"In  the  case  of  the  United  States  v. 
Boisdore,  8  How.  113,  121.  12  L-  Ed.  1009, 
it  is  said,  that,  as  this  court  can  exercise 
no  appellate  power,  over  cases,  unless 
conferred  upon  it  by  act  of  congress,  if 
the  act  conferring  the  jurisdiction  has 
expired,  the  jurisdiction  ceases,  although 
the  appeal  or  writ  of  error  be  actually 
pending  in  the  court  at  the  time  of  the 
expiration  of  the  act.  The  cases  on  this 
point  are  referred  to  in  the  brief  in  that 
case,  and  afford  full  authority  for  the  prin- 
ciple, if  any  were  needed.  (1  Hill,  328; 
9  Barn.  &  Cress.,  750;  3  Burr.,  1456;  4 
Moore  &  Pajne.  341.)  The  writ  of  error, 
therefore,  fell  with  the  abrogation  of  the 
statute  upon  which  it  was  founded."  Mc- 
Nulty V.  Batty,  10  How.  72,  13  L.  Ed.  333, 
reaffirmed  Preston  v.  Bracken,  10  How. 
81,  13  L.  Ed.  336. 

In  1824,  congress  passed  an  act  (4  Stat, 
at  Large,  52).  entitled  "An  act  enabling 
the  claimants  to  lands  within  the  limits 
of  the  state  of  Missouri  and  territory  of 
Arkansas  to  institute  proceedings  to  try 
the  validity  of  their  claims."  The  sec- 
ond section  provided  that,  in  ''all  cases, 
the  part)-  against  whom  the  judgment  or 
decree  of  the  said  district  court  may  be 
finalh'  given,  shall  be  entitled  to  an  ap- 
peal, within  one  year  from  the  time  of  its 
rendition,  to  the  supreme  court  of  the 
United  States;"  and  the  fifth  section  en- 
acted that  any  claim  which  shall  not  be 
brought  by  petition  before  the  said  courts 
within  two  3-ears  from  the  passing  of  the 
act.  or  which,  after  being  brought  before 
the  said  courts,  shall,  on  account  of  the 
neglect  or  delaj^  of  the  claimant,  not  be 
prosecuted  to  a  final  decision  within  three 
years,  shall  be  forever  barred.  In  1844, 
congress  passed  another  act  (5  Stat,  at 
Large  676).  entitled:  "An  act  to  provide 
for  the  adjustment  of  land  claims  within 
the  state  of  Missouri,  Arkansas,  and  Lou- 
isiana, and  in  those  parts  of  the  states  of 
Mississippi  and  Alabama,  south  of  the 
thirty-first  degree  of  north  latitude,  and 
between  the  Mississippi  and  Perdido  riv- 
ers." It  enacted,  "that  so  much  of  the  ex- 
pired act  of  1824  as  related  to  the  state  of 
Missouri  be,  and  is  hereby  revived  and 
re-enacted,  and  continued  in  force  for 
the  term  of  five  years,  and  no  longer;  and 
the  provisions  of  that  part  of  the  afore- 
said act  hereby  revived  and  re-enacted 
shall  be,  and  hereby  are,  extended  to  the 


states  of  Louisiana  and  Arkansas,  and 
to  so  much  of  the  states  of  Mississippi  and 
Alabama  as  is  included  in  the  district  of 
country  south  of  the  thirty-first  degree 
of  north  latitude,  and  between  the  Mis- 
sissippi and  Perdido  rivers."  The  act  of 
1824,  revived  and  re-enacted  by  the  act 
of  1844,  did  not  expire  in  five  years  from 
the  passage  of  the  act  of  1844,  so  far  as 
regards  appeals  from  the  district  court 
to  this  court.  It  will  continue  in  force 
until  all  the  appeals  regularly  brought 
up  from  the  district  courts  shall  be  finally 
disposed  of.  United  States  v.  Boisdore, 
8    How.    113,    12    L.    Ed.    1009. 

8.  United  States  v.  More,  3  Cranch  159, 
2  L.  Ed.  397;  Ex  parte  Kearney,  7 
Wheat.  38,  5  L.  Ed.  391;  Forsyth  z;.  United 
States,  9  How.  571,  578,  13  L.  Ed.  262, 
reafifirmed  in  Simpson  v.  United  States.  9 
How.  578,  13  L.  Ed.  265;  Cotton  v.  United 
States,  9  How.  579,  13  L.  Ed.  265;  Tin- 
sley  V.  Anderson,  171  U.  S.  101,  105.  43 
L.  Ed.  91;  New  Orleans  v.  Steamship 
Co.,  20  Wall.  387,  392,  22  L.  Ed.  354; 
United  States  v.  Sanges,  144  U.  S.  310, 
319.  36  L.  Ed.  445;  Ex  parte  Gordon,  1 
Black.  503,  17  L.  Ed.  134;  Ex  parte  Wat- 
kins,  3  Pet.   193,  7  L.   Ed.  650. 

No  jurisdiction  ever  existed  in  this 
court  to  review  by  writ  of  error  or  ap- 
peal the  judgment  of  a  circuit  court  in  a 
criminal  case.  Farnsworth  v.  Montana. 
129  U.   S.  104,  113,  32  L.   Ed.  616. 

We  have,  of  course,  no  general  author- 
ity to  review,  on  error  or  appeal,  the  judg- 
ments of  the  circuit  courts  of  the  United 
States  in  cases  within  their  criminal  juris- 
diction, or  those  of  the  supreme  court  of 
the  District  of  Columbia  or  of  the  terri- 
tories; and  when  such  jurisdiction  is  in- 
tended to  be  conferred,  it  should  be  done 
in  clear  and  explicit  language.  Farns- 
worth V.  Montana.  129  U.  S.  104.  32  L.  Ed. 
616;  United  States  v.  Sanges,  144  U  S. 
310,  320.  36  L.  Ed.  445;  United  States  V. 
More,  3  Cranch  159,  2  L.  Ed.  397;  Cross  v. 
United  States,  145  U.  S.  571,  574,  36  L  Ed 
821. 

The  judiciary  act  of  1789  made  no  pro- 
vision for  the  revision,  by  this  court,  of 
judgments  of  the  circuit  or  district  courts 
in  criminal  cases;  and  the  act  of  1802  (2 
Stat,  at  Large,  156)  only  embraced  cases 
in  which  the  opinions  of  the  judges  were 
opposed  in  criminal  cases.  There  is, 
therefore,  no  general  law  giving  appellate 
jurisdiction  to  this  court  in  such  cases, 
"The  judiciary  act  of  1789  (1  Stat,  at 
Large,  73)   made  no  provision  for  the  re- 


416 


APPEAL  AND  ERROR. 


cases,  by  the  laws  of  the  United  States.  It  cannot  entertain  a  writ  of  error,  to 
revise  the  judgment  of  the  circuit  court,  in  any  case  where  a  party  has  been  con- 
victed of  a  pubhc  ofifense.^ 


vision  of  judgments  of  the  circuit  or  dis- 
trict courts  in  criminal  cases;  and  as  the 
cases  in  which  the  appellate  jurisdiction 
of  this  court  can  be  exercised  depend  upon 
the  regulation  of  congress,  it  followed 
that  no  appeal  or  writ  of  error  would  lie. 
(United  States  v.  More.  3  Cranch  159,  2 
L.  Ed.  397;  Ex  parte  Kearney,  7  Wheat. 
38,  5  L.  Ed.  391;  Ex  parte  Watkins,  3  Pet. 
201.  7  L.  Ed.  650.)  The  act  of  congress 
passed  29th  of  April,  1802  (2  Stat,  at 
Large,  156),  which  provided  for  a  cer- 
tificate to  this  court  of  the  point,  in  case 
of  a  division  of  opinion  in  the  circuit 
court,  embraced  cases  in  which  the  opin- 
ions were  opposed  in  criminal  as  well  as 
in  civil  trials;  and  since  that  act,  ques- 
tions of  law  in  criminal  cases  have  oc- 
casionally been  the  subject  of  examina- 
tion here  for  the  instruction  of  the  courts 
below.  (Ibid.,  p.  159,  §  6,  United  States 
V.  Tyler,  7  Cranch  285,  3  L.  Ed.  344; 
United  States  v.  Wiltberger,  5  Wheat.  76. 
5  L.  Ed.  37;  United  States  v.  Smith.  5 
Wheat.  153,  5  L.  Ed.  37;  United  States 
V.  Holmes,  5  Wheat.  412.  5  L.  Ed.  122; 
United  States  v.  Marigold,  9  How.  560, 
13  L.  Ed.  257.)  There  is  no  general  law, 
therefore,  upon  which  a  revision  of  the 
judgment  in  this  ca?e  can  be  maintained; 
and  the  only  question  is.  whether,  in  a 
peculiar  class  of  cases,  to  which  this  be- 
longs, a  writ  of  error  is  specially  provided 
for  by  the  act  of  congress  passed  Feb- 
ruary'22,  1847  (Sess.  Laws,  1847,  ch.  17). 
It  is  insisted,  on  the  part  of  the  plaintif? 
in  error,  that  the  case  is  embraced  in  the 
eighth  section  of  that  act."  Forsvth  v. 
United  States,  9  How.  571.  572,  13  L- 
Ed.  262.  reaffirmed  Simpson  v.  United 
States,  9  How.  578,  13  L.  Ed.  265;  Cot- 
ton T.  United  Stafes,  9  How.  579,  13  L. 
Ed.    265. 

"With  what  propriety  can  this  court 
look  into  an  indictment  found  in  the  cir- 
cuit court,  and  which  has  passed  into  judg- 
ment before  that  court?  We  have  no 
power  to  examine  the  proceedings  on  a 
writ  of  error,  and  it  would  be  strange,  if, 
under  color  of  a  writ  to  liberate  an  in- 
dividual from  ah  unlawful  imprisonment, 
the  court  could  substantially  reverse  a 
judgment  which  the  law  has  placed  be- 
yond its  control;  an  imprisonment  under 
a  judgment  cannot  be  unlawful,  unless 
that  judgment  be  an  absolute  nullity;  and 
it  is  not  a  nullity,  if  the  court  has  gen- 
eral jurisdiction  of  the  subject,  although 
it  should  be  erroneous."  Fx  parte  Wat- 
kins,   3    Pet.    193,    7   L.    Ed.   650. 

Forfeiture  under  excise  laws. — It  was 
held,  in  United  States  v.  Emholt.  105  U. 
S.  414,  26  L.  Ed.  1077.  that  where  the 
judges  of  the  circuit  court  are  divided  in 
opinion  upon   the   trial   of  an    information 


or  forfeiture  under  the  e.xcise  laws,  such 
a  case  cannot  be  brought  to  this  court 
from  the  circuit  court  by  appeal.  The 
court  said  that  if  it  is  to  be  considered  as 
a  civil  action,  the  proper  mode  of  bring- 
ing it  up  is  by  writ  of  error,  and  not  by 
appeal.  On  the  other  hand,  if  it  should 
be  treated  as  in  the  nature  of  a  criminal 
proceeding,  it  is  hard  to  see  how  it  could 
be  brought  to  this  court  at  all,  except 
upon  a  certificate  of  division  of  opinion. 
Citing  Bevins  v.  Ramsey.  11  How.  185, 
13  L.  Ed.  657;  Jones  v.  La  Vallette,  5 
Wall.  579.  18  L.  Ed.  550;  Clifton  v. 
United  States,  4  How.  242.  11  L.  Ed. 
957;  Ex  parte  Gordon,  1  Black  503,  17  L. 
Ed.    134. 

Case  overruled. — The  appellate  jurisdic- 
tion of  this  court  rests  whollj'  on  the  acts 
of  congress.  For  a  long  time  after  the 
adoption  of  the  constitution.  congress 
made  no  provision  for  bringing  any 
criminal  case  from  a  circuit  court  of  the 
United  States  to  this  court  by  writ  of 
error.  At  February  term,  1803.  indeed, 
this  court,  no  objection  being  made,  took 
jurisdiction  of  a  writ  of  error  sued  out 
by  the  United  States  to  the  circuit  court 
for  the  District  of  Columbia  in  a  criminal 
case.  United  States  v.  Simms,  1  Cranch 
252,  2  L.  Ed.  98.  But  at  February  term, 
1805,  in  a  like  case,  this  court,  upon  full 
argument  and  consideration,  held  that  it 
had  no  jurisdiction  of  a  writ  of  error  in 
a  criminal  case,  and  overruled  United 
States  V.  Simms,  Chief  Justice  Marshall 
sajnng:  "No  question  was  made  in  that 
case  as  to  the  jurisdiction.  It  passed  sub 
silentio,  and  the  court  does  not  consider 
itself  as  bound  by  that  case."  L^nited 
States  V.  More,  3  Cranch  1.59,  172.  2  L. 
Ed.  397.  And  it  was  thenceforth  held  to 
be  settled  that  criminal  cases  could  not 
be  brought  from  a  circuit  court  of  the 
United  States  to  this  court  by  writ  of 
error,  but  only  by  certificate  of  division 
of  opinion  upon  specific  questions  of  law. 
Ex  parte  Kearney.  7  Wheat.  38,  42,  5  L. 
Ed.  391;  Ex  parte  Gordon,  1  Black  503,  17 
L.  Ed.  134;  Ex  parte  Yarbrough,  110  U. 
S.  651,  28  L.  Ed.  274;  Farnsworth  v. 
Montana.  129  U.  S.  104,  113,  32  L.  Ed. 
616;  United  States  v.  Perrin,  131  U.  S. 
55.  33  L.  Ed.  88;  United  States  v.  Sanges, 
144  U.  S.  310.  319,  36  L.  Ed.  445.  See 
Louisville  Trust  Co.  v.  Knott.  191  U.  S. 
225,  236,  48  L.  Ed.  159,  explaining  United 
States  V.  More,  3  Cranch  159.  2  L.  Ed. 
397. 

9.  Ex  parte  Kearney,  7  Wheat.  38,  5  L. 
Ed.  391;  Bessette  v.  Conkey  Co.,  194  U. 
S.  324,  331,  48  L.  Ed.  997,  reaffirmed  in 
In  the  Matter  of  Lewis,  202  U.  S.  614,  50 
L.  Ed.   1172. 


APPEAL  AND  ERROR. 


4i; 


b.  Treason. — "It  is  necessary  to  premise  that  the  case  of  treason  is  one  in 
which  this  court  possesses  neither  original  nor  appellate  jurisdiction."^^ 

c.  Contempt  Proceedings — (1)  In  General. — At  common  law  it  was  undoubted 
that  no  court  reviewed  the  proceedings  of  another  court  in  contempt  matters. ^^ 
It  is  a  general  rule  of  law  that  judgments  committing  a  person  for  contempt  are 
not  reviewable  either  on  appeal  or  error  in  this  court.^^  Qr  to  state  the  rule 
more  fully,  the  judgments  in  independent  proceedings  for  contempt  in  the  cir- 
cuit courts  of  the  United  States  are  not  reviewable  here  on  appeal  or  error, 
because  such  judgments  are  considered  as  judgments  in  criminal  cases,  in  wliich 
this  court  has  no  appellate  jurisdiction. ^3  f  ^jg  court  has  no  power  to  reverse,  on 


10.  Ex  parte  Bollman,  4  Cranch  7.5.  105. 
2  L.  Ed.  554,  564.  See  the  title  TREA- 
SON. 

11.  Bessette  v.  Conkey  Co.,  194  U.  S. 
324,  3,30,  48  L.  Ed.  997,  reaffirmed  in  In 
the  Matter  of  Lewis.  202  U.  S.  614,  50 
L.    Ed.    1172. 

12.  In  re  Chetwood.  165  U.  S.  443,  41 
L.  Ed.  782;  Hayes  r.  Fischer,  102  U.  S. 
121,  26  L.  Ed.  95;  In  re  Debs,  158  U.  S. 
564,  39  L.  Ed.  1092;  Tinsley  v.  Anderson, 
171  U.  S.  101.  43   L.  Ed.  91. 

A  judgment  committing  a  prisoner  for 
contempt  is  considered  a  judgment  in  a 
criminal  case,  and  hence  this  court  has 
no  jurisdiction  to  review  by  appeal  or 
error  a  judgment  of  the  circuit  court  of 
the  United  States.  Tinsley  z'.  Anderson. 
171  U.   S.   101,  43   L.   Ed.  91. 

13.  Tinsley  r.  Anderson,  171  U.  S.  101, 
43  L.  Ed.  91,  citing  In  re  Chetwood,  165  U. 
S.  443,  41  L.  Ed.  782;  Haves  v.  Fischer. 
102  U.  S.  121.  26  L.  Ed.  95;  In  re  Debs, 
158  U.  S.  564,  39  L.  Ed.  1092;  159  U.  S. 
251;  Ex  r^rte  Kearnej%  7  Wheat.  38,  5  L. 
Ed.  301;  Xew  Orleans  v.  Steamship  Co., 
20  Wall.  387,  22  L.  Ed.  354;  Newport 
Light  Co.  r.  Newport.  151  U.  S.  527.539. 
3S  L.  Ed.  2.59;  Bessette  v.  Conkev  Co., 
194  U.  S.  324,  48  L.  Ed.  997,  reaffirmed 
in  In  the  ]\Iattrr  of  Lewis,  202  U.  S.  614, 
50  L.  Ed.  1172;  Ex  parte  Fisk,  113  U. 
S.  713.  28  L.  Ed.  1117;  Worden  v.  Searls, 
121  U.  S.  14.  30  L.  Ed.  8.52;  O'Neal  v. 
United  States,  190  U.   S.  36,  47  L.  Ed.  945. 

A  proceeding  in  the  court  below  for 
contempt,  which  is  independent  of  and 
separate  from  the  original  suit,  cannot 
be  re-examined  here  either  by  writ  of 
error  or  appeal,  because  such  judgments 
are  considered  as  judgments  in  criminal 
cases.  Hayes  r.  Fischer,  102  U.  S.  121,  26 
L.  Ed.  95.  citing  Ex  parte  Kearney,  7 
Wheat.  38.  5  L.  Ed.  591;  New  Orleans  v. 
Steamship  Co.,  20  Wall.  387.  22  L.  Ed. 
354;  In  re  Chetwood,  165  U.  S.  443.  41  L. 
Ed.  782;  Tn  re  Debs.  158  U.  S.  564,  39  L. 
Ed.  1092;  Tinsley  7'.  Anderson,  171  U.  S. 
101,  43  L.   Ed.  91. 

In  Ex  parte  Fisk.  a  case  of  habeas  cor- 
pus, 113  U.  S.  713.  718.  28  L.  Ed.  1117, 
Mr.  Justice  ^Tiller,  speaking  for  the  court, 
declared:  "There  can  be  no  doubt  of  the 
proposition,  that  the  exercise  of  the 
power  of  punishment  for  contempt  of 
their  orders  by  courts  of  general  jurisdic- 
tion is  not  subject  to  review  by  writ  of 
1  U  S  Enc— 27 


error  or  appeal  to  this  court.  Nor  is 
there,  in  the  system  of  federal  jurispru- 
dence, any  relief  against  such  orders, 
when  the  court  has  authority  to  make 
them,  except  through  the  court  making 
the  order,  or  possibly  by  the  exercise  of 
the  pardoning  power.  This  principle  has 
been  uniformly  held  to  be  necessary  to 
the  protection  of  the  court  from  insults 
and  oppressions  while  in  the  ordinary  ex- 
ercise of  its  duties,  and  to  enable  it  to 
enforce  its  judgments  and  orders  neces- 
sary to  the  due  administration  of  law  and 
the  protection  of  the  rights  of  suitors." 
Bessette  v.  Conkey  Co.,  194  U.  S.  324,  333, 
48  L.  Ed.  997,  reaffirmed  in  In  the  Mat- 
ter of  Lewis,  202  U.  S.  614,  50  L.  Ed. 
1173. 

In  McMicken  f.  Perin,  20  How.  133,  15 
L.  Ed.  857,  the  plaintiff  in  error  was  at- 
tached for  contempt  in  refusing  to  make 
a  conveyance  after  a^  tender  and  deposit 
of  money  in  court  haci  been  made  in  com- 
pliance with  a  mandate  of  this  court.  He 
appealed  to  this  court,  and  it  was  held. 
that  the  proceedings  in  contempt  involved 
no  new  question  or  decision,  but  were  the 
ordinary  means  of  enforcing  the  original 
decree,  and  in  no  sense  was  it  a  final  de- 
cree upon  which  an  appeal  could  be  sus- 
tained. It  was.  in  effect,  the  same  as  or- 
dering an  execution  on  a  judgment  at  law 
which  had  been  affirmed  on  error  and  re- 
manded for  execution  to  the  circuit  court. 
New  Orleans  z'.  Steamship  Co.,  20  Wall. 
387,  22  L.  Ed.  354,  was  a  suit  by  a  steam- 
ship company  in  the  circuit  court  of  the 
United  States  for  an  injunction  restrain- 
ing a  city  from  interfering  with  its  pos- 
session of  certain  premises.  Pending 
this  suit,  the  mayor  of  the  city  applied  to 
a  state  court  for  an  injunction  restraining 
the  company  from  rebuilding  an  inclosure 
of  the  premi'^es  which  the  city  had  de- 
stroved,  and  the  injunction  was  granted. 
.\t  this  time  the  city  was  the  only  party 
defendant  in  the  circuit  court,  although 
service  upon  it  had  been  made  by  deliver- 
ing process  to  the  mayor.  Subsequently 
the  mavor  was  made  a  party  defendant  by 
a  supplemental  bill.  A  final  decree  was 
entered  against  the  defendants,  and.  as  a 
part  thereof,  was  an  order  adji'dtiing  the 
mayor  guilty  of  contempt  in  suing  out  the 
injunction  in  the  state  court  and  impos- 
ing n  fine  therefor.  Held,  not  reviewable 
by    this    court.      Bessette    v.    Conkey    Co., 


418 


APPEAL  AND  ERROR. 


appeal,  the  imposition  of  a  fine  decreed  by  the  circuit  court  for  contempt  of  it. 
"Contempt  of  court  is  a  specific  criminal  ofifcnse.  The  imposition  of  the  fine 
was  a  judgment  in  a  criminal  case.''^^  But  they  may  be  reached  by  certiorari  in 
the  absence  of  any  other  adequate  remedy. ^^ 

Summary. — From  these  decisions  it  is  apparent  that  the  uniform  ruling  of  this 
court  has  been  against  the  right  to  review  the  decisions  of  the  lower  court  in  con- 
tempt proceedings  by  writ  of  error,  or  by  appeal  except  in  cases  of  purely  re- 
medial and  interlocutory  orders. ^^  The  thought  underlying  the  denial  by  this 
■court  of  the  right  of  review  by  writ  of  error  or  appeal  has  not  been  that  there  was 
something  in  contempt  proceedings  which  rendered  them  not  properly  open  to 
review,  but  that  they  were  of  a  criminal  nature  and  no  provision  had  been  made 
for  a  review  of  criminal  cases.  This  was  true  in  England  as  here.  In  that 
■country,  as  is  well  known,  there  was  no  review  of  criminal  cases  by  appeal  or 
writ  of  error.  1" 

Limitations  of  General  Rule. — It  is  established  by  the  decisions  of  this  court, 
that  while  "the  exercise  of  the  power  of  punishment  for  contempt  of  their  orders, 
by  courts  of  general  jurisdiction,  is  not  subject  to  review  by  writ  of  error 
or  appeal  to  this  court,"  yet,  when  "a  court  of  the  United  States  under- 
takes by  its  process  of  contempt,  to  punish  a  man  for  refusing  to  com- 
ply with  an  order  which  that  court  had  no  authority  to  make,  the 
order  itself,  being  without  jurisdiction,  is  void,  and  the  order  punishing 
for  the  contempt  is  equally  void ;"  and  that,  "when  the  proceeding  for  contempt 
in  such  a  case  results  in  imprisonment,  this  court  will,  by  its  writ  of  habeas  cor- 
pus, discharge  the  prisoner. "^^     Where  in  a  suit  in  equity  on  a  patent  a  prelim- 


]94  U.  S.  324,  332.  48  L.  Ed.  997,  reaf- 
fin-  d  in  In  the  Matter  of  Lewis.  202  U. 
S.    614.    50    L.    Ed.    1172. 

Hayes  v.  Fischer,  102  U.  S.  121,  26  L. 
Ed.  95,  was  a  suit  in  equity  to  restrain 
the  use  of  a  patented  device.  An  inter- 
locutory injunction  was  granted.  The  de- 
fendant was  fined  for  contempt  in  violat- 
ing this  injunction,  and  the  entire  amount 
of  the  fine  ordered  to  be  paid  over  to  the 
plaintiff  in  reimbursement.  Held,  not  re- 
viewable by  this  court  on  writ  of  error 
or  appeal.  Bessette  v.  Conkey  Co.,  194 
U.  S.  324,  332,  48  L.  Ed.  997,  reaf^rmed 
in  In  the  Matter  of  Lewis.  202  U.  S.  614, 
50  L.    Ed.    1172. 

In  Worden  v.  Searls,  121  U.  S.  14,  30 
L-  Ed.  853,  a  final  decree  was  entered  in 
a  suit  for  infringement  of  a  patent,  in 
favor  of  the  plaintiff,  and  from  that  de- 
cree the  defendants  appealed.  A  prelimi- 
nary injunction  had  been  granted,  and 
prior  to  the  final  decree  the  defendants 
were  adjudged  guilty  of  a  contempt  in 
violating  it.  and  ordered  to  pay  the  com- 
plainant the  sum  of  $250  as  a  fine  there- 
for together  with  the  costs  of  the  con- 
temnt  proceedings.  This  court  was  of 
opinion  that  the  decree  in  favor  of  the 
plaintiff  was  erroneous,  and  reversed  it; 
and  in  addition  to  directing  a  dismissal 
of  the  bill,  set  aside  the  order  imposing 
the  fines  in  the  contempt  proceedings, 
saying  in  respect  thereto  (p.  25) :  "We 
have  jurisdiction  to  review  the  final  de- 
cree in  the  suit  and  all  interlocutory  de- 
crees and  orders.  These  fines  were  di- 
rected to  be  paid  to  the  plaintiff.  We 
say    nothing    as     to      the      lawfulness      or 


propriety  of  this  direction.  But  the  fines 
were,  in  fact,  measured  by  the  damages 
the  plaintiff  had  sustained  and  the  ex- 
penses he  had  incurred.  They  were  in- 
cidents of  his  claims  in  the  suit.  His 
right  to  them  was,  if  it  existed  at  all, 
founded  on  his  right  to  the  injunction, 
and  that  was  founded  on  the  validity  of 
his  patent."  But,  while  setting  aside  the 
orders  imposing  the  fines,  it  was  "with- 
out prejudice  to  the  power  and  right  of 
the  circuit  court  to  punish  the  contempt 
referred  to  in  those  orders  by  a  proper 
proceeding."  Bessette  t'.  Conkey  Co..  194 
U.  S.  324,  333.  48  L.  Ed.  997,  reaffirmed 
in  In  the  Matter  of  Lewis,  202  U.  S.  614, 
50  L.  Ed.  1172. 

14.  New  Orleans  v.  Steamship  Co.,  20 
Wall.   387,  22   L.   Ed.   354. 

15.  In  re  Chetwood.  165  U.  S.  443,  462, 
41  L.  Ed.  782;  Bessette  v.  Conkey  Co., 
194  U.  S.  324,  332.  48  L.  Ed.  997,  reaf- 
firmed in  In  the  Matter  of  Lewis,  202  U. 
S.  614,  50  L.  Ed.  1172;  In  re  Watts  and 
Saches,  190  U.  S.  1,  47  L.  Ed.  933. 

16.  Bessette  v.  Conkey  Co..  194  U.  S. 
324,  335,  48  L.  Ed.  997.  reaffirmed  in  In 
the  Matter  of  Lewis,  202  U.  S.  614,  50 
L.   Ed.   1172. 

17.  Bessette  v.  Conkey  Co..  194  U.  S. 
324,  335,  48  L.  Ed.  997.  reaffirmed  in  In 
the  Matter  of  Lewis.  20-^  U.  S.  614.  50  L. 
Ed.  1172,  reviewed  in  Doyle  v.  London 
Guarantee,  etc.,  Co.,  204  U.  S.  599.  51  L. 
Ed.   641. 

18.  Ex  parte  Fisk.  113  U.  S.  713.  718, 
28  L.  Ed.  1117;  In  re  Ayers,  123  U.  S. 
443,   485.    31    L.    Ed.    216. 


APPEAL  A\D  ERROR.  419 

inary  injunction  has  been  granted  and  violated,  and  the  circuit  court  enters  two 
orders,  by  one  of  which  the  defendants  are  directed  to  pay  a  fine  to  the  plaintiffs, 
and  by  the  other  the  defendants  are  directed  to  pay  a  fine  to  the  clerk,  the  fine  be- 
ing made  up  partly  of  the  profits  made  by  the  infringement,  and  partly  by  the  ex- 
penses of  the  plaintiff  in  the  contempt  proceedings,  this  court  has  jurisdiction  to  re- 
-\  iew  the  orders  imposing  such  fine.  Because  the  proceedings,  though  nominally 
those  of  contempt,  were  really  proceedings  to  award  damages  to  the  plaintiff,  and 
to  reimburse  him  his  expenses.  The  fines  were  in  fa>^i;  measured  by  the  damages 
the  plaintiff'  had  sustained  and  the  expenses  he  had  incurred.  They  were  in- 
cidents of  his  claims  in  the  suit.^^ 

(2)  Error  to  State  Court. — The  proposition  that  judgments  in  contempt  cases 
are  not  reviewable  here  on  appeal  or  error  applies  only  to  such  judgments  in 
independent  proceedings  for  contempt  in  the  circuit  courts  of  the  United  States, 
.and  does  not  apply  to  a  judgment  of  the  highest  state  court  depriving  a  person  of 
rights  claimed  under  the  constitution,   treaties  or  laws  of  the   United   States. 2® 

(3)  Effect  of  Circuit  Court  of  Appeals  Act. — While  the  act  creating  the  court 
of  appeals,  March  3,  1891,  26  Stat.  826,  authorized  a  review  of  criminal  cases, 
yet  it  limited  the  jurisdiction  of  this  court  to  cases  of  a  conviction  for  a  capital 
or  otherwise  infamous  crime — since  limited  to  capital  cases — (29  Stat.  492), 
and  gave  the  right  of  review  of  all  other  criminal  cases  to  the  circuit  courts  of  ap- 
peal, and  of  course,  a  proceeding  in  contempt  cannot  be  considered  as  an  infamous 
crime. 21  Under  the  act  of  ^March  3rd,  1891,  the  final  decisions  in  contempt  cases 
in  the  circuit  and  district  courts  are  subject  to  review  by  the  circuit  courts  of  ap- 
peals.22 

d.  Bxceptio<tvs  to  General  Rule — (1)  Appeals  from  State  Courts. — But  the  rule 
that  this  court  has  no  jurisdiction  in  criminal  cases  applies  to  proceedings  in  the 
circuit  court  of  the  United  States.  The  appellate  jurisdiction  of  this  court  from 
a  state  court  applies  to  criminal  as  well  as  civil  cases. ^-'^ 

(2)  Appeals  by  the  State. — An  order  discharging  a  prisoner  after  conviction  is 
appealable  by  the  state. ^^ 

(3)  Proceedings  on  Writ  of  Prohibition. — In  accordance  with  the  general  rule 
that  a  writ  of  prohibition  cannot  issue  from  this  court  in  cases  where  there  is  no 
appellate  power  given  by  law,  nor  any  special  authority  to  issue  the  writ,25  it  will 

19.  Worden  v.  Sealrs.  121  U.  S.  14,  15,  ship  Co..  20  Wall.  387,  392,  22  L.  Ed.  35-1." 
.■".O  L.  Ed.  8.53,  distinguishing  Ex  parte  Tinsley  v.  Anderson,  171  U.  S.  101.  105, 
Kearney,    7   Wheat.    38.    39,    5    L.    Ed.    391;        43    L.    Ed.  91. 

New   Orleans   t'.   Steamship   Co.,   20   Wall.  21.     Bessette   v.    Conkey    Co.,   194  U.   S. 

387.   22   L.    Ed.   354.  324,    335,    48    L.    Ed.    997,    reaffirmed  in    In 

20.  Tinsley  v.  Anderson.  171  U.  S.  101,  the  Matter  of  Lewis.  202  U.  S.  614,  50  U 
43  L.   Ed.   91.  Ed.    1172. 

"It  was  argued  in  behalf  of  Tinsley  that  22.    Bessette    r.    Conkey   Co.,    194   U.    Sv 

the    judgment    committing    him    for    con-  324,    326,    48    L.    Ed.    997,    reaffirmed    in    In 

tempt   was   not   reviewable   by   this   court;  the   Matter  of  Lewis.  202  U.   S.  614,  50  L. 

citing   the    statement   in   In   re    Chetwood,  Ed.   1172. 

165    U.    S.    443,    462.    41    L.    Ed.    782.    that  23.    Tinsley  v.  Anderson,   171   U.    S.   lOi. 

'judgments    in    proceedings     in      contempt  105,   43    L.    Ed.   91. 

are  not   reviewable   here   on  appeal   or  er-  24.    Holmes  v.  Jennison,  14   Pet.   540,   10 

ror.    Hayes    z:    Fischer,    102    U.    S.    121.   26  L.    Ed.    579. 

L.  Ed.  95;   In  re   Debs.  158  U.   S.   564,  573,  25.    The    jurisdiction    of    this    court    wa.s 

39   L.    Ed.    1092,   and   in   re    Debs    (mem.).  maintained  in  one  case  under  the  first  sec- 

159   U.    S.    251.'      But    that    statement    was  tion  of  the  act  of  1885,  of  an  appeal  froms 

made  in  regard  to  such   judgments  in  in-  and  a  writ  of  error  to.  the  supreme  court 

dependent    proceedings    for    contempt    in  of    the    District    of    Columbia,    in    a    case 

the    circuit    courts    of    the    United    States.  where    that    court,    by    its    judgment,    had 

and  the  reason  is,   as  in  cases  referred   to  dismissed  a  petition  for  a  writ  of  prohibi- 

in  Hayes  v.  Fischer  above  cited,  tliat  such  tion   to   a   court   martial,   convened   to   trr- 

judgments   were   considered   as   judgments  an  officer  for  an  ofTense  punishable  by  drs- 

in  criminal  cases,  in   which  this  court  had  missal   from   the   service   and   the   depriva- 

no     appellate     jurisdiction       from       those  tion  of  a  salaVy  which,  during  the  term  of 

courts.      Fx   parte    Kearney.    7   Wheat.    38.  his  office,  would  exceed  the  sum  of  $5,000.. 

-42,  5  L.  Ed.  391;   New  Orleans  v.  Steam-  A   writ    of   prohibition    is    a    civil   remedi^ 


420 


APPEAL  AND  ERROR. 


nol  lie  in  a  criminal  case.* 

(4)  Habeas  Corpus  Proceedings. — That  this  court  has  no  general  authority 
to  review  on  error  or  appeal  the  judgments  of  the  circuit  courts  of  the  United 
States  in  cases  within  their  criminal  jurisdiction  is  beyond  question ;  but  it  is 
equally  well  settled,  when  a  prisoner  is  held  under  the  sentence  of  any  court  of 
the  United  States  in  regard  to  a  matter  wholly  beyond  or"  without  the  jurisdic- 
tion of  that  court,  it  is  not  only  within  the  authority  of  the  supreme  court,  but 
it  is  its  duty  to  inquire  into  the  cause  of  commitment  when  the  matter  is  properly 
brought  to  its  attention,  and  if  found  to  be  as  charged,  a  matter  of  which  such 
a  court  had  no  jurisdiction,  to  discharge  the  prisoner  from  confinement.-^ 

(5)  Certificate  of  Division  of  Opinion. — Formerly  the  only  mode  of  bringing  a 
criminal  case  to  this  court  from  the  circuit  court  was  upon  a  certificate  of  the  judges 
of  the  circuit  court  that  their  opinions  are  opposed  upon  a  question  raised  at  the 
trial. 2"^  But  even  this  is  no  longer  allowable  under  the  circuit  court  of  appeals 
act.     See  post,  "Certificate  of  Division  of  Opinion,"  \'. 

(6)  Territorial  Courts  of  Florida. — The  judiciary  act  of  1789  made  no  pro- 
vision for  the  revision,  by  this  court,  of  judgments  of  the  circuit  or  district  courts 
in  criminal  cases;  and  the  act  of  1802  (2  Stat,  at  Large  156)  only  embraced 
cases  in  which  the  opinions  of  the  judges  were  opposed  in  criminal  cases.  There 
is  therefore,  no  general  law  giving  appellate  jurisdiction  to  this  court  in  such 
cases.  But  the  act  of  congress  passed  on  the  22d  of  February.  1847  (Sess.  Laws, 
18^7,  ch.  17),  providing  that  certain  cases  might  be  broug"  from  territorial 
courts  of  Florida  to  this  covirt,  included  all  cases,  whether  of  civil  or  criminal 
jurisdiction.  Lender  this  act,  this  court  can  revise  a  judgment  of  the  superior 
court  of  the  district  of  West  Florida  in  a  criminal  case,  which  originated  in  Oc- 
tober, 1845,  and  was  transferred  to  the  district  court  of  the  United  States  for  the 
northern   district   of  Florida. ^^ 


given  in  a  civil  action,  as  much  so  as  a 
writ  of  habeas  corpus,  which  tliis  court 
has  held  to  be  a  civil  and  not  a  criminal 
proceeding,  even  when  instituted  to  arrest 
a  criminal  prosecution.  Smith  v.  Whit- 
ney, ]]6  U.  S.  167,  29  L.  Ed.  601;  Ex  parte 
Tom  Tong,  108  U.  S.  5.56,  27  L.  Ed.  826; 
cited  in  Farnsworth  v.  Montana,  129  U.  S. 
104.  113,  32  L.  Ed.  606;  Chesapeake,  etc., 
R.  Co.  V.  White,  111  U.  S.  134.  28  L.  Ed. 
378;  Ex  parte  Christy.  3  How.  292,  11  L. 
Ed.    603. 

1.  Ex  parte  Gordon,  1  Black  .503,  17  L. 
Ed.   134. 

26.  Ex  parte  Kearnev,  7  Wheat.  38,  5 
L.  Ed.  391;  Ex  parte  Wells.  18  How.  307, 
15  L.  Ed.  421;  Ex  parte  Lange,  18  Wall. 
163,  21  L.  Ed.  872;  Ex  parte  Parks,  93  U. 
S.  18,  23  L.  Ed.  787;  Ex  parte  Yar- 
brough,  110  U.  S.  651,  653,  28  L.  Ed.  274. 
See  post.  "In  Habeas  Corpus  Proceed- 
ings."  TIT.  C,  3. 

27.  Ex  parte  Gordon,  1  Black  503,  17 
L.  Ed.  134;  Clifton  z:  United  States,  4 
How.  242,  ]1  L.  Ed.  957. 

This  court  can  take  cognizance  of  a 
criminal  case  only  upon  a  certificate  of 
division  in  opinion.  New  Orleans  v. 
Steamship  Co.,  20  Wall.  387,  392,  22  L. 
Ed.   354. 

This  court  have  repeatedly  decided  that 
they  have  no  appellate  jurisdiction  in 
criminal  cases  from  the  circuit  courts  of 
the  United  States;  writs  of  error  and  ap- 
peals are  given  from  those  courts  only  in 


civil  cases.  But,  even  in  those  courts^ 
where  the  judges  are  divided  on  any  point 
in  a  criminal  case,  the  point  may  be 
brought  before  this  court,  under  a  gen- 
eral provision  in  cases  of  division  of 
opinion.  Worcester  v.  State  of  Georgia, 
6   Pet.   515,    8    L.    Ed.    483,    503. 

When  the  circuit  court  renders  a  final 
judgment  refusing  to  discharge  the  pris- 
oner, he  may  bring  the  case  here  by  writ 
of  error;  and  if  the  judges  of  the  circuit 
court  being  opposed  in  opinion,  can  rai- 
der no  judgment,  he  may  have  the  p'  .nt 
upon  which  the  disagreement  happens- 
ceitified  to  this  tribunal.  Ex  parte  Milli- 
gan,  4  Wall.  2.  3,   18   L.  Ed.  281. 

Neither  a  writ  of  error,  nor  certiorari 
will  -lie  from  tb's  court  to  a  circuit  court 
of  the  United  States,  in  a  criminal  case. 
The  only  mode  of  bringing  a  criminal 
case  into  this  court  is  upon  a  certificate 
of  the  judges  of  the  circuit  court  that 
their  opininns  are  opposed  upon  A  ques- 
tion raised  at  the  trial.  No  party  has  a 
right  to  ask  for  such  certificate,  nor  can 
it  be  made  consistently  with  the  duty  of 
the  court,  if  the  judges  are  agreed  and  do 
not  think  there  is  doubt  enough  upon  the 
question  to  justify  them  in  submitting  it 
to  the  judgment  of  this  court.  Ex  parte 
Gordon.   1    Black  503,  17  L.   Ed.   134. 

28.  Forsvth  r.  United  States,  9  How, 
571,  13  L.  Ed.  262,  reafiftrmed  in  Simpson 
V.  United  States,  9  How.  578,  13  L.  Ed. 
265;  Cotton  v.  United  States,  9  How.  579. 
1.1    L.    Ed.   265. 


APPEAL  AND  ERROR. 


421 


e.  Statutory  Provisions. — In  General. — Nor  was  there  in  our  federal  system  a 
review  in  criminal  cases  prior  to  the  act  of  February  6,  1889,  25  Stat.  656,  which 
provided  for  a  writ  of  error  from  this  court  in  capital  cases. ^^ 

The  first  act  of  congress  which  authorized  a  criminal  case  to  be  brought 
from  the  circuit  court  of  the  United  Slates  to  this  court,  except  upon  a  certificate 
of  division  of  opinion,  was  the  act  of  February  6,  1889,  c.  113,  §  6,  25  Stat.  655, 
by  which  it  was  enacted  that  "in  all  cases  of  conviction"  of  a  "capital  crime  in  any 
court  of  the  United  States,"  the  final  judgment  "against  the  respondent"  might, 
on  his  application,  be  examined,  reversed  or  affirmed  by  this  court  on  writ  of  er- 
ror. Up  to  that  time  this  court  had  no  general  authority  to  review  on  error  or 
appeal  the  judgments  of  the  circuit  courts  of  the  United  States  in  cases  within 
their  criminal  jurisdiction.-'^'^  The  act  of  congress  of  February  6,  1889,  entitled 
"An  act  to  abolish  circuit  court  powers  of  certain  district  courts  of  the  United 
States  and  to  provide  for  writs  of  error  in  capital  cases  and  for  other  purposes," 
refers  only  to  circuit  and  district  courts  of  the  United  States.^^ 

Over  Territories. — In  view  of  the  terms  of  this  whole  section,  the  allowance 
of  a  writ  of  error  to  any  appellate  tribunal  was  not  contemplated,  but  merely  to 
review  the  judgment  of  the  trial  court.  Therefore,  this  court  cannot  exercise  ap- 
pellate jurisdiction  over  the  judgments  of  the  supreme  court  of  Oklahoma  in 
capital  cases  by  virture  of  this  statute.-'^^  /^j^j  (\qq^  j-,q^  gjyg  ^\-^q  supreme  court 
appellate  jurisdiction  over  capital  cases  from  the  United  States  court  for  the 
northern  district  of  the  Indian  Territory .-^-^ 

The  act  of  congress  approved  on  the  third  of  March,  1885,  entitled  "An 
act  regulating  appeals  from  the  supreme  court  of  the  District  of  Columbia  and 
the  supreme  courts  of  the  several  territories,"  23  Stat.  443,  c.  355,  provides  in 
the  first  section.  "That  no  appeal  or  writ  of  error  shall  hereafter  be  allowed  from 
any  judgment  or  decree  in  any  suit  at  law  or  in  equity  in  the  supreme  court  of 
the  District  of  Columbia,  or  in  the  supreme  court  of  any  of  the  territories  of  the 
United  States,  unless  the  matter  in  dispute,  exclusive  of  costs,  shall  exceed  the  sum 
of  five  thousand  dollars ;"  and  the  second  section,  that  the  first  section  should  not 


29.  Bessette  z:  Conkey  Co.,  194  U.  S. 
324,  33.5,  48  L.  Ed.  997.  reaffirmed  in  Tn 
the  Matter  of  Lewis,  202  U.  S.  614,  50  L. 
Ed.   1172. 

30.  United  States  v.  Sanges,  144  U.  S. 
310.  319,  36  L.  Ed.  445;  Cross  v.  United 
States.  145  U.  S.  571.  574.  36  L.  Ed.  821; 
United  States  v.  Rider,  163  U.  S.  132,  138, 
41   L.   Ed.   101. 

31.  Obiter  opinion  of  Mr.  Chief  Jus- 
tice Fuller  in  Cros=  t'.  United  States,  145 
U.  S.  571.  36   L.   Ec'     821. 

In  Cross  T'.  United  States,  145  U.  S. 
57],  36  L.  Ed.  821.  Mr.  Chief  Justice  Ful- 
ler, in  deciding  that  the  act  of  congress 
of  February  6.  1889,  entitled  "An  act  to 
abolish  circuit  court  powers  of  certain 
district  courts  of  the  United  States  and 
to  provide  for  writs  of  error  in  capital 
cases  and  for  other  purposes,"  did  not 
apply  to  the  review  of  capital  cases 
in  the  ?upreme  court  of  the  Di=;trict 
of  Columbia,  uses  the  following  language: 
''The  difficulty  with  the  section  is  that  it 
manifestly  docs  not  contemplate  the  al- 
lowance of  a  writ  of  error  to  any  appel- 
late tribunal,  but  only  to  review  the  final 
judgment  of  the  court  before  which  the 
respondent  was  tried,  where  such  jndg- 
ment  could  not  otherwise  be  reviewed  by 
writ    of   error   or   appeal.      It   is    the    final 


judgment  of  the  trial  court  that  may  be 
re-examined  upon  the  application  of  the 
respondent,  and  it  is  to  that  court  the 
cause  is  to  be  remanded,  and  by  that 
court  that  the  judgment  of  this  court  is 
to  be  carried  into  execution.  The  obvious 
object  was  to  secure  a  review  by  some 
other  court  than  that  which  passed  upon 
the  case  at  nisi  prius.  Such  review  by 
two  other  courts  was  not  within  the  in- 
tention, as  the  judiciary  act  of  March  3, 
1891,  shows.  This  is  made  still  clearer 
bv  the  further  provision  that  no  such  writ 
of  error  'shall  be  sued  out  or  granted  un- 
less a  petition  therefor  shall  be  filed  with 
the  clerk  of  the  court  in  which  the  trial 
shall  have  been  had  during  the  same  term 
or  within  such  time,  not  exceeding  sixty 
days  next  after  the  expiration  of  the 
term  of  the  court  at  which  the  trial  shall 
have  been  had,  as  the  court  may  for  cnuse 
allow  by  order  entered  of  record.'  This 
language  is  entirelv  inapplicable  to  the 
prosecution  of  a  writ  of  error  to  the  judg- 
ment of  an  appellate  tribunal  affirming 
the   ii'd<^ment  of  the  trial  court." 

32.  New  V.  Oklahoma,  195  U.  S.  252. 
49  L.  Ed.  182.  citing  Cross  v.  United 
States.   145  U.  S.   571,   36   L.    Ed.   821. 

33.  Brown  7'.  United  States,  171  U.  S. 
631.  43  L.  Ed.  312;  Binvon  v.  United 
States,   195  U.   S.   623,   49   L.   Ed.   349. 


422  APPEAL  AND  ERROR. 

apply  to  any  case  "wherein  is  involved  the  validity  of  any  patent  or  copyright,  or 
in  which  is  drawn  in  question  the  validity  of  a  treaty  or  statute  of  or  authority 
exercised  under  the  United  States;  but  in  all  such  cases  an  appeal  or  writ  of  er- 
ror may  be  brought  without  regard  to  the  sum  or  value  in  dispute. "^^  The  act 
does  not  apply  in  either  section  to  any  criminal  case.^^  But  is  applicable  to  all 
judgments  or  decrees  in  suits  at  law  or  in  equity  in  wdiich  there  is  a  pecuniary 
matter  in  dispute,  and  it  inhibits  any  appeal  or  writ  of  error  therefrom  except  as 
stated.3«  Clearly,  the  act  of  March  3,  1885,  amending  §  764  of  the  Revised  Stat- 
utes, in  respect  of  circuit  courts,  cannot  be  held  to  give  a  jurisdiction  in  respect 
of  the  supreme  court  of  the  district  denied  by  the  act  of  ]\Iarch  3,  1885,  relating 
to   the   latter  court.-^" 

By  the  circuit  court  of  appeals  act  appellate  jurisdiction  was  given  in  al! 
criminal  cases  by  writ  of  error  either  from  this  court  or  from  the  circuit  courts 
of  appeals. -^^ 

2.  In  Prize  Causes.-^^ — Prior  to  the  passage  of  the  act  of  March  3,  1863,  tfie 
supreme  court  had  no  appellate  jurisdiction  in  prize  causes,  except  where  the 
same  were  removed  here  from  the  circuit  court.'**'  A  case  in  prize,  carried  by  ap- 
peal from  a  district  court  into  a  circuit  court,  before  the  statute  of  March  3, 
1863,  allowing  appeals  in  prize  directly  from  the  district  courts  to  this  court,  is 
properly  here  on  appeal  from  the  circuit  court.^^  But  since  the  act  of  ]March  3. 
1863.  appeals  in  prize  lie  directly  from  the  district  courts  to  this  court.*^ 

It  is  well  settled  that  this  court  has  no  original  jurisdiction  in  prize 
causes;  the  jurisdiction  in  such  causes  is  appellate  only.^-"  Under  the  constitu- 
tion, this  court  can  exercise,  in  prize  causes,  appellate  jurisdiction  only.'*^  In 
prize  causes  this  court  has  an  appellate  jurisdiction  only,  and  a  claim  cannot  for 
the  first  time  be  interposed  here ;  but  where  the  court  below  had  proceeded  to 
adjudication  before  the  above  period  had  elapsed,  the  cause  was  remanded  to- 
that  court,  with  directions  to  allow  a  claim  to  be  filed  therein,  and  the  libel  to  be 
amended,  etc*^ 

It  is  the  practice  of  this  court,  in  prize  causes,  to  hear  the  cause,  in 
the  first  instance,  upon  the  evidence  transmitted  from  the  circuit  court,  and  to  de- 
cide, upon  that  evidence,  whether  it  is  proper  to  allow  further  proof.**' 

Under  §  5  of  the  act  of  March  3,  1891,  appeals  or  writs  of  error  may  be 
taken  from  the  district  courts  or  from  the  existing  circuit  courts  direct  to  the 
supreme  court,  from  final  sentences  and  decrees  in  prize  causes,  without  regard  to 
the  matter  in  dispute.*" 

3.  In  Habeas  Corpu.s  Proceedings** — a.  Power  of  This  Court  to  Issue 
the  Writ. — In  General. — That  this  court  is  authorized  to  exercise  appel- 
late jurisdiction  by  habeas  corpus  directly  is  a  position  sustained  by 
abundant  authority.  It  has  general  power  to  issue  the  writ,  subject 
to  the  constitutional  limitations  of  its  jurisdiction,  which  are,  that  it  can  only 
exercise  original    jurisdiction    in    cases    atTecting    ambassadors,    public  ministers 

34.  Cross  V.  Burke,  146  U.  S.  82,  87,  42.  The  Admiral,  3  Wall.  603,  18  L.  Ed. 
36   L.   Ed.   896.  58;  12  Statutes  at  Large  760. 

35.  Farnsworth  v.  Montana.  129  U.  S.  43.  The  William  Bagaley.  5  Wall.  377, 
104.  32  L.  Ed.  616;  United  States  v.  410.  ig  L.  Ed.  583,  citing  The  Harrison, 
Sanges  144  U.  S.  310,  36  L.  Ed.  445;  Cross  j  Wheat.  298,  4  L.  Ed.  95;  Marbiiry  v. 
V.   Burke.  146  II   S    82,   87    36   L.   Ed.   896.  Madison.    1    Cranch   137,   173.  2   L.   Ed.   60 

36.  Cross  V.  Burke,  146  U.  S.  82,  87,   36  .»      n^x        m-   •       n   ^xr   u     -r,-,     .«o     .<.  t 
L     Ed     896                                                  '       '  44.    The    .\licia,   7   Wall.   571,   573,    19  L 

37.  Cross  V.   Burke.  146  U.  S.  82,  87,  36       ^^-  ^^■ 

L.    Ed.    896.  45.    The    Harrison.    1    Wheat.    298,    4   L 

38^    United    States    v.    Rider,   163    U.    S.       Ed.   95. 

132.   138.   41   L.   Ed.    101.  46.    The   London  Packet,  2  Wheat.   371. 

39.  See   the   title   PRIZE.  4   L.   Ed.   264. 

40.  The  Admiral,  3  Wall.  603.  18  L.  47.  The  Paquete  Habana,  175  U.  S. 
Ed.    58.  g~y    44   -^    gjj    goQ 

41.  The  Admiral.  3  Wall.  603,  18  L.  43.  See  the  title  HABEAS  CORPUS. 
Ed.   58. 


APPEAL  AND  ERROR. 


423 


and  consuls,  and  cases  in  which  a  state  is  a  party;  but  has  appellate  jurisdiction 
in  all  other  cases  of  Federal  cognizance,  "with  such  exceptions  and  under  such 
regulations  as  congress  shall  make."  Having  this  general  power  to  issue  the  writ, 
the  court  may  issue  it  in  the  exercise  of  original  jurisdiction  where  it  has  original 
jurisdiction;  and  may  issue  it  in  the  exercise  of  appellate  jurisdiction  where  it  has 
such  jurisdiction,  which  is  in  all  cases  not  prohibited  by  law  except  those  in  which 
it  has  original  jurisdiction  only .^ 9  Congress  not  only  has  not  excepted  writs  of 
habeas  corpus  and  mandamus  from  this  appellate  jurisdiction,  but  has  expressly 
provided  for  the  exercise  of  this  jurisdiction  by  means  of  these  writs.^" 

In  What  Cases. — The  appellate  jurisdiction  of  this  court,  exercisible  by  the 
writ  of  habeas  corpus,  extends  to  a  case  of  imprisonment  upon  conviction  and 
sentence  of  a  party  by  an  inferior  court  of  the  United  States,  under  and  by  virtue 
of  an  unconstitutional  act  of  congress,  whether  this  court  has  jurisdiction  to  re- 
view the  judgment  of  conviction  by  writ  of  error  or  not.^^  In  all  cases  where  a 
circuit  court  of  the  United  States  has,  in  the  exercise  of  its  original  jurisdiction, 
caused  a  prisoner  to  be  brought  before  it,  and  has,  after  inquiring  into  the  cause 
of  detention,  remanded  him  to  the  custody  from  which  he  was  taken,  this  court, 
in  the  exercise  of  its  appellate  jurisdiction,  may,  by  the  writ  of  habeas  corpus, 
aided  by  the  writ  of  certiorari,  revise  the  decision  of  the  circuit  court,  and  if  it 
be  found  unwarranted  by  law,  relieve  the  prisoner  from  the  unlawful  restraint 
to  which  he  has  been  remanded.^-  Where  a  person  under  a  conviction  of  the  cir- 
cuit court,  sues  out  a  habeas  corpus  for  discharge  from  the  conviction,  the  writ, 
if  rightfully  issued  by  a  justice  of  this  court,  is  returnable  before  himself,  and  he 
has  the  right,  if  it  can  be  done  without  injury  to  the  prisoner,  to  refer  the  matter 
to  this  court  for  its  determination,  it  being  a  case  which  involves  the  exercise  of 
appellate  jurisdiction.  Had  the  case  involved  original  jurisdiction  only,  this  court 
could  not  have  taken  jurisdiction  of  it.^^ 


49.  Ex  parte  Bollman,  4  Cranch  75.  100, 
101,  2  L.  Ed.  .5.54;  Ex  parte  Watkins.  3 
Pet.  193,  202.  7  L.  Ed.  650;  Ex  parte  Wat- 
kins,  7  Pet.  568,  8  L.  Ed.  786;  Ex  parte 
Wells.  18  How.  307,  328,  15  L.  Ed.  421; 
Ableman  v.  Booth,  21  How.  506,  16  L. 
Ed.  169;  Ex  parte  Yerger.  8  Wall.  85,  19 
L.  Ed.  332;  Ex  parte  Siebold,  100  U.  S. 
371,    374,    25    L.    Ed.    717. 

50.  Ex  parte  Yerger.  8  Wall.  85,  98.  19 
L.    Ed.    332. 

51.  "It  is  objected  that  the  case  is  one 
of  original  and  not  appellate  jurisdiction, 
and,  therefore,  not  within  the  jurisdiction 
of  this  court.  But  we  are  clearly  of  opin- 
ion that  it  is  appellate  in  its  character.  It 
requires  us  to  revise  the  act  of  the  cir- 
cuit court  in  makinjf  the  warrants  of  com- 
mitment upon  the  convictions  referred  to. 
This,  according  to  all  the  decisions,  is  an 
exercise  of  appellate  power.  Ex  parte 
Burford,  3  Cranch  448,  2  L.  Ed.  495;  Ex 
parte  Bollman,  4  Cranch  75,  100,  101,  2 
L.  Ed.  554;  Ex  parte  Yerger,  8  Wall.  85, 
19  L.  Ed.  332."  Ex  parte  Siebold,  100 
U.  S.  371.  374,  25  L.  Ed.  717. 

52.  Ex  parte  Yerger.  8  Wall.  85,  19  L. 
Ed.  332. 

The  only  ground  on  which  this  court, 
or  any  court,  without  some  special  stat- 
ute authorizing  it,  will  give  relief  on  ha- 
beas corpus  to  a  prisoner  under  convic- 
tion and  sentence  of  another  court  is  the 
want  of  jurisdiction  in  such  court  over 
the  person    or    the    cause,    or   some    other 


matter  rendering  its  proceedings  void. 
This  distinction  between  an  erroneous 
judgment  and  one  that  is  illegal  or  void 
is  well  illustrated  by  the  two  cases  of  Ex 
parte  Lange,  18  Wall.  163,  21  L.  Ed.  872; 
and  Ex  parte  Parks,  93  U.  S.  18,  23  L. 
Ed.  787.  In  the  former  case,  we  held  that 
the  judgment  was  void,  and  released  the 
petitioner  accordingly;  in  the  latter,  we 
held  that  the  judgment,  whether  erro- 
neous or  not,  was  not  void,  because  the 
court  had  jurisdiction  of  the  cause;  and 
we  refused  to  interfere.  Ex  parte  Siebold, 
100   U.   S.    371.   375,    25   L.   Ed.    717. 

In  ex  parte  Yerger.  8  Wall.  85,  103.  19 
L.  Ed.  332,  it  was  held,  "that,  in  all  cases 
where  a  circuit  court  of  the  United  States 
has,  in  the  exercise  of  its  original  juris- 
diction, caused  a  prisoner  to  be  brought 
before  it,  and  has,  after  inquiring  into  the 
cause  of  detention,  remanded  him  to  the 
custody  from  which  he  was  taken,  this 
court,  in  the  exercise  of  its  appellate  ju- 
risdiction, may,  by  the  writ  of  habeas 
corpus,  aided  by  the  writ  of  certiorari, 
review  the  decision  of  the  circuit  court, 
and  if  it  be  found  unwarranted  by  law.  re- 
lieve the  prisoner  from  the  unlawful  re-* 
straint  to  which  he  has  been  remanded." 
The  jurisdiction  is  acquired  by  this  court 
in  such  a  case  through  its  own  writ  of 
habeas  corpus,  and.  until  that  is  issued, 
there  is  no  power  to  proceed.  Ex  parte 
Rovall,   112   U.   S.   181,   182,   28    L.   Ed.   690. 

53.     Ex   parte    Clarke,    100   U.    S.    399,  25 
L.    Ed.    715. 


424 


APPEAL  AND  ERROR. 


Rules  Governing  Allowance  of  Writ.— When  application  is  made  to  this 
court  for  the  allowance  of  a  writ  of  error  to  the  highest  court  of  a  state,  the  writ 
will  not  be  allowed  if  it  appear  from  the  face  of  the  record  that  the  decision  of  the 
federal  question  which  is  complained  of  was  so  clearly  right  as  not  to  require 
argument.^*  And  the  same  rule  governs  an  application  to  us  for  the  writ  of  ha- 
beas corpus,  which  must  be  denied,  if  it  be  apparent  that  the  only  result,  if  the 
writ  were  issued,  would  be  the  remanding  of  the  petitioner  to  custody,  for  the  ob- 
ject of  the  writ  is  to  ascertain  whether  the  prisoner  applying  for  it  can  legally  be 
detained,  and  it  is  the  duty  of  the  court,  justice  or  judge,  granting  the  writ,  on 
hearing,  "to  dispose  of  the  party  as  law  and  justice  may  require. ''-^^ 

Original  Jurisdiction.- — It  has  long  beea  settled  that  ordinarily  this  court  can- 
not issue  a  writ  of  habeas  corpus  except  under  its  appellate  jurisdiction. ^^ 

Effect  of  Issuance  of  Writ. — It  is  for  the  trial  judge  or  the  supreme  court 
of  a  state  to  determine  whether  or  not  its  judgment  shall  be  stayed  or  superseded 
by  an  appeal  to  the  highest  tribunal  of  the  state,  and  with  such  determination  it  is 
not  our  province  through  a  writ  of  habeas'  corpus  to  interfere,  nor  do  the  stat- 
utes of  a  state  which  provide  that  execution  under  a  sentence  of  death  shall  not 
be  stayed  by  an  appeal  to  the  highest  tribunal  of  the  state  unless  a  certificate  of 
probable  cause  be  granted  as  provided,  in  themselves,  involve  any  infraction  of 
the  constitution  or  laws  of  the  United  States.''"  Where  an  appeal  from  a  final 
order  of  the  circuit  court,  denying  a  writ  of  habeas  corpus  and  dismissing  the 
petition  therefor  of  a  person  confined  under  state  authority,  has  been  sued  out  to 
this  court,  and  the  order  of  the  circuit  court  affirmed,  this  court  will  not  grant  a  writ 
of  habeas  corpus  because  the  state  court  after  judgment  here  proceeds  before  our 
mandate  issues.^^ 

b.  Revieiv  of  Judgiiiciits  of  the  Circuit  Courts. — Under  the  act  of  February  5th, 
1867  (14  Stat,  at  Large  385),  to  amend  the  judiciary  act  of  178^,  an  appeal  lies 
to  this  court  on  judgments  in  habeas  corpus  cases  rendered  by  circuit  courts  in 
the  exercise  of  original  jurisdiction.^ 

But  this  right  of  apneal  was  taken  awav  by  the  act  of  March  27,  1868, 
ch.  34,  15  Stat.  44.^^  The  act  of  27th  of  March.  1868.  repealing  that  provision 
of  the  act  of  5th  of  February.  1867.  to  amend  the  judicial  act  of  1789.  which  au- 


54.  Spies  v.  Illinois,  123  U.  S.  131.  31 
L.    Ed.    80. 

55.  Rev  Stat.,  §  761;  lasigi  v.  Van  De 
Carr,  166  U.  S.  391,  41  L.  Ed.  1045;  Ekiu 
V.  United  States.  143  U.  S.  6.51,  35  L.  Ed. 
1146;  In  re  Boardman,  169  U.  S.  39.  43. 
42    L.    Ed.   653. 

The  action  of  the  circuit  court  in  re- 
fusing to  grant  an  appeal  from  a  final 
order  denying  a  petition  for  habeas  cor- 
pus, cannot  be  revised  by  this  court  on 
.application  for  a  writ  of  habeas  corpus. 
In  re  Boardman.  169  U.  S.  39.  42  L.  Ed. 
653. 

56.  Ex  parte  Bollman.  4  Cranch  75.  2 
L.  Ed.  554;  Ex  parte  Watkins,  7  Pet.  568. 
8  L.  Ed.  786;  Ex  parte  Yerger.  8  Wall.  85, 
19  L.  Ed.  332;  Ex  parte  Lance,  18  Wall. 
163,  21  L.  Ed.  872;  Ex  parte  Parks.  93  U. 
S.  18.  23  L.  Ed.  787;  Ex  parte  Virginia. 
.100  U.  S.  339.  25  L.  Ed.  676;  Ex  parte 
Siebold.  100  U.  S.  371.  25  L.  Ed.  717. 
Section  751  of  the  Revised  Statutes,  which 
re-enacts  a  similar  provision  in  the  jtidi- 
ciary  act  of  1780  f§  14),  gives  this  court 
authoritv  to  issue  the  writ,  but  except  in 
cases  affecting  ambassadors,  other  public 
ministers,  or  consuls,  and  those  in  which 
n  state  is  a  party,  it  can  onlv  be  done  for 
a  review  of  the  judicial   decision   of  some 


inferior  officer  or  court.     Ex  parte  Hung 
Hang,   108  U.   S.   552,  27   L.   Ed.   811. 

57.  In  re  Boardman.  169  U.  S.  39,  42 
L.  Ed.  653,  citing  Kohl  r.  Lehlback.  160 
U.  S.  293.  40  L.  Ed.  432;  Bergemann  v. 
Barker.  157  U.  S.  655.  39  L.  Ed.  845; 
Andrews  7'.  Swartz,  156  U.  S.  272,  39  L. 
Ed.    422. 

58.  In  re  Boardman.  169  U.  S.  39,  43 
L.  Ed.  653.  citine  In  re  Shibuya  Jugiro, 
140  U.   S.  291.   35   L.   Ed.   510. 

1.  Ex  parte  McCardle.  6  Wall.  318.  16 
L.  Ed.  816. 

59.  This  court  has  no  jurisdiction,  un- 
der the  form  of  an  appeal  or  writ  of  er- 
ror, to  review  a  decision  of  a  circuit  court 
upon  a  writ  of  habeas  corpus  in  the  case 
of  a  person  "alleged  to  be  restrained  of 
his  liberty  in  violation  of  the  constitu- 
tion or  of  any  law  or  treaty  of  the  United 
States."  Such  an  appeal  was  given  by 
the  act  of  February  5.  1867,  ch.  28,  14 
Stat.  TS5.  but  it  was  taken  awav  bv  the 
act  of  INIarch  27.  1868.  ch.  34,  15  Stat.  44. 
Ex  pprtc  Rovall.  112  U.  S.  181.  182,  28  L. 
Ed.    690. 

The  pct  of  Februarv  5.  1867.  ch.  28,  § 
1.  cnferrinsr  power  upon  the  judges  of 
the  national  courts  to  issue  writs  of 
habeas    corpus    in    cases    of     persons      re- 


APPEAL  AND  ERROR. 


425 


thorized  appeals  to  this  court  from  the  decisions  of  the  circuit  courts,  in  cases 
of  habeas  corpus,  does  not  except  from  the  appellate  jurisdiction  of  this  court 
any  cases  but  appeals  under  the  act  of  1867.  It  does  not  affect  the  appellate  ju- 
risdiction which  was  previously  exercised  in  cases  of  habeas  corpus.*'" 

An  act  approved  March  3,  188  5,  Laws  2d  Sess.  48th  Cong.,  ch.  353, 
page  437,  restored  the  appellate  jurisdiction  to  this  court  in  habeas  corpus  cases 
over  decisions  of  the  circuit  courts  and  this  necessarily  included  jurisdiction  over 
similar  judgments  of  the  supreme  court  of  the  District  of  Columbia.^i  The  act 
of  March  3,  1885,  c.  353,  23  Stat.  437,  gives  an  appeal  to  this  court  in  habeas 
corpus  proceedings  only  from  the  final  decision  of  the  circuit  court  sitting  as  a 
court  and  not  when  sitting  as  a  judge.  And  the  mere  form  of  the  docket  entry 
does  not  change  the  character  of  the  proceeding,  and  the  order  of  the  judge  that 
the  papers  be  filed,  and  the  order  recorded  in  the  circuit  court  does  not  make 
his  decision  as  judge  a  decision  of  the  court.«2  Aj-,  appeal  may  be  taken  to  the  su- 
preme court  from  a  final  decision  on  a  habeas  corpus  in  the  United  States  circuit 
court,  in  the  case  of  any  person  alleged  to  be  restrained  of  his  liberty  in  violation 
of  the  constitution  or  of  any  law  or  treaty  of  the  United  States.*^-^ 


strained  of  their  liberty  in  violation  of  the 
constitution,  or  of  any  treaty  or  law  of 
the  United  States,  expressly  gave  an  ap- 
peal to  this  court  from  the  judgment  of 
a  circuit  court  in  such  cases.  14  Stat. 
385.  Shortly  after  the  passage  of  this 
act,  Mr.  Justice  Nelson  refused  to  allow 
an  appeal  from  a  judgment  of  the  circuit 
tourt  for  the  Southern  District  of  New 
York  upon  a  writ  of  habeas  corpus  issued 
under  the  14th  section  of  the  judiciary  act 
of  1789,"  because  no  appeal  was  provided 
by  law  in  the  case  of  a  habeas  corpus  is- 
sued under  that  act,  and  the  appeal  given 
by  the  act  of  1867  was  confined  to  cases 
b^gun  under  it.  In  re  Heinrich,  5  Blatch- 
ford  414,  427.  And  within  two  years  after- 
wards it  was  determined  by  this  court 
that,  independently  of  the  act  of  1867 
(which  was  repealed  by  the  act  of  March 
27,  1868.  ch.  34.  15  Stat.  44),  this  court 
(except  in  a  small  class  of  cases  of  com- 
mitments for  acts  done  or  omitted  under 
alleged  authority  of  a  foreign  government, 
as  to  which  provision  was  made  by  the 
act  of  August  29.  1842,  ch.  257,  5  Stat. 
539),  had  no  jurisdiction  by  direct  ap- 
peal to  revise  the  judgments  of  inferior 
courts  in  cases  of  habeas  corpus,  but 
could  only  do  so  by  itself  issuing  writs  of 
habeas  corpus  and  certiorari  under  the 
general  powers  conferred  by  the  judiciary 
act  of  1789.  Ex  parte  McCardle,  6  Wall. 
318,  18  L.  Ed.  816;  and  7  Wall.  506,  19  L. 
Ed.  264;  Ex  parte  Yerger.  8  Wall.  85.  19 
L.  Ed.  332.  See.  also.  Ex  parte  Royall, 
112  U.  S.  181,  28  L.  Ed.  690;  Wales  v. 
Whitney.  114  U.  S.  564.  29  L.  Ed.  277; 
Kurtz  V.  Moffitt,  115  U.  S.  487,  497,  29  L. 
Ed.  458. 

60.  Ex  parte  McCardle,  7  Wall.  506.  19 
L.      d.  264. 

The  second  section  of  the  act  of  March 
27th.  1868,  repealing  so  much  of  the  act 
of  February  5th,  1867,  as  authorized  ap- 
peals from  the  circuit  courts  to  the  su- 
preme court,  does  not  take  away  or  af- 
fect the  appellate  jurisdiction  of  this  court 


by  habeas  corpus,  under  the  constitution 
and  the  acts  of  congress  prior  to  the  date 
of  the  last  named  act.  Ex  parte  Yerger, 
8   Wall.    85,    19    L.    Ed.    332. 

61.  Wales    v.    Whitney,    114    U.    S.    564, 

29  L.    Ed.    277. 

Since  the  act  of  March  3,  1885,  23  Stat. 
437.  however,  an  appeal  lies  to  this  court 
from  the  judgments  of  the  circuit  courts 
in  habeas  corpus  cases.  Ex  parte  Mirzan, 
119   U.    S.    584,    586,    30    L.    Ed.    513. 

Under  the  statutes  of  the  United  States 
an  appeal  may  be  taken  to  this  court  from 
the  final  decision  upon  habeas  corpus  of 
a  circuit  court  of  the  United  States,  in 
the  case  of  any  person  alleged  to  be  re- 
strained of  his  liberty  in  violation  of  the 
constitution  or  any  law  or  treaty  of  the 
United  States.  In  re  Shibuya  Jugiro,  140 
U.  S.  291,  294,  295,  35  L.  Ed.  510;  Rev. 
Stat..  §§  751,  752,  753,  761.  762,  763,  765; 
Act  of  March  3,  1885,  c.  353.  23  Stat.  437; 
McKane  v.  Durston.  153  U.  S.  684,  685,  38 
L.    Ed.    867. 

62.  Carper   v.    Fitzgerald,   121    U.   S.   87, 

30  L.    Ed.    882. 

63.  In  re  Jugiro,  140  U.  S.  291,  35  L. 
Ed.  510;  McKane  v.  Durston,  153  U.  S. 
684.    38    L.    Ed.    867. 

Under  existing  statutory  provisions  ap- 
peals may  be  taken  to  this  court  from 
final  decisions  of  the  circuit  courts  in 
habeas  corpus,  in  cases,  among  others, 
where  the  applicant  for  the  writ  is  al- 
leged to  be  restrained  of  his  liberty  in  vio- 
lation of  the  constitution  or  of  some  law 
or  treaty  of  the  United  States,  and  if  the 
restraint  is  by  any  state  court  or  by  or 
under  the  authority  of  any  state, 
further  proceedings  cannot  be  had  against 
him  pending  the  appeal.  Rev.  Stat.,  §§ 
763,  764,  766;  act  of  March  3.  1885.  ch. 
353,  23  Stat.  437;  Craemer  v.  Washing- 
ton State.  168  U.  S.  124,  127,  42  L.  Ed. 
407,  reaffirmed  in  Durrant  p.  Hale.  168 
U.  S.  705.  42  L.  Ed.  1213;  and  Nordstrom 
V.  Moyer,  170  U.  S.  703.  704,  42  L-  Ed. 
1218. 


426  APPEAL  AND  ERROR. 

Under  the  judiciary  act  of  March  3,  1891,  26  Stat.  826,  appeals  from 
decrees  of  circuit  courts  on  habeas  corpus  can  no  longer  be  taken  directly  to  this 
court,  but  only  in  the  classes  mentioned  in  the  fifth  section  of  that  act.^-*  While 
the  right  of  appeal  from  the  judgments  of  circuit  courts  on  habeas  corpus  directly 
to  this  court,  in  all  cases,  is  taken  away  by  the  act  of  March  3,  1891,  that  right 
still  exists  in  the  cases  designated  in  §  5  of  that  act,  and  upon  such  appeals  the 
amendment  may  operate.^s  gy  the  act  of  March  3,  1891.  establishing  the  circuit 
court  of  appeals,  it  was  provided  that  appeals  or  writs  of  error  may  be  taken  from 
the  district  courts  or  from  the  circuit  courts  direct  to  the  supreme  court  of  the 
United  States  in  certain  cases,  among  others  "in  any  case  that  involves  the  con- 
struction or  application  of  the  constitution  of  the  United  States."  26  Stat.  826, 
828,  c.  517,  §  5.^^  An  appeal  lies  directly  to  the  supreme  court  of  the  United 
States  from  the  decision  of  a  district  court  of  the  United  States  in  a  habeas  cor- 
pus case  in  which  the  constitutionality  of  any  law  of  the  United  States  or  the 
validity  or  construction  of  any  treaty  made  under  its  authority  is  drawn  in  ques- 
tion.^''' Accordingly,  an  appeal  directly  to  this  court  from  the  decision  of  the 
circuit  court  denying  the  writ  of  habeas  corpus  is  proper  under  the  averments 
contained  in  a  petition,  that  the  imprisonment  of  the  appellant  is  in  violation  of 
the   federal  constitution.^'^ 

Custody  of  Prisoners  on  Habeas  Corpus. — Pending  an  appeal  from  the 
final  decision  of  any  court  or  judge  declining  to  grant  the  writ  of  habeas  corpus, 
the  custody  of  the  prisoner  shall  not  be  disturbed.  Pending  an  appeal  from  the 
final  decision  of  any  court  or  judge  discharging  the  writ  after  it  has  been  issued, 
the  prisoner  shall  be  remanded  to  the  custody  from  which  he  was  taken  by  the 
writ,  or  shall,  for  good  cause  shown,  be  detained  in  custody  of  the  court  or  judge, 
or  be  enlarged  upon  recognizance,  as  hereinafter  provided.  Pending  an  appeal 
from  the  final  decision  of  any  court  or  judge  discharging  the  prisoner,  he  shall 
be  enlarged  upon  recognizance,  with  surety,  for  appearance  to  answer  the  judg- 
ment of  the  appellate  court,  except  where,  for  special  reasons  sureties  ought  to 
be  required.'''^ 

Decisions  Reviewable. — This  rule  does  not  have  the  effect  of  giving  this 
court  jurisdiction  of  an  appeal  from  the  circuit  court  in  habeas  corpus  proceed- 
ings where  the  judge  is  sitting  as  a  judge,  and  not  as  a  co'^rt.  "The  purpose  of 
that  rule  was  to  regulate  proceedings  on  appeals  under  §  7(^3.  from  the  decision 
of  a  judge  to  the  circuit  court  of  the  district,  as  well  as  under  §  764.  as  amended 
by  the  act  of  ]March  3,  1885,  from  a  circuit  court  to  this  court.     Power  to  make 

64.  Lau  Ow  Bew  i'.  United  States,  144  the  case  turned  upon  such  constitution 
U.  S.  47,  36  L.  Ed.  340;  Horner  z:  United  or  law.  These  would  be  cases  within  the 
States.  143  U.  S.  570.  36  L.  Ed.  266;  Cross  classes  eni^merated  in  §  5.  Ex  parte  Len- 
V.  Burke,  146  U.  S.  82,  88,  36  L.  Ed.  896;  non,  150  U.  S.  393,  399.  37  L.  Ed.  1120. 
Ex  parte  Lennon,  150  U.  S.  393,  37  L.  Ed.  67.  Rice  v.  Ames,  180  U.  S.  371,  45  L. 
ll'?f*.                                                                               «  Ed.    577,    reaffirmed    in    Fisher    f.    Baker, 

65.  In  re   Lennon,  150  U.  S.  393.  399,  37  203    U.    S.    174,   51   L.   Ed.   142. 

L.   Ed.  1120.  '"Prior    to    the    court    of    appeals    act    of 

66.  Boske  ?'.  Comingore,  177  U.  S.  459,  1891.  provision  was  made  for  an  appeal 
465,  44   L-   Ed.   846.  to  the  circuit  court  in  habeas  corpus  cases 

In  Ekiu  z'.  United  States,  142  U.  S.  'from  the  final  decision  of  any  court,  jus- 
651,  35  L.  Ed.  1146.  jurisdiction  of  an  ap-  tice  or  judge  inferior  to  the  circuit  court.' 
peal  on  habeas  corpus  directly  from  the  Rev.  Stat.,  §  763;  and  from  the  final  de- 
circuit  court  was  taken,  as  it  was  in  cision  of  such  circuit  court  an  appeal 
Horner  v.  United  States  (No.  2),  143  U.  mi.eht  be  taken  to  this  court.  Rev.  Stat., 
S.  570.  36  L.  Ed.  266.  upon  the  ground  §  764,  as  amended  March  3.  1885,  ch.  353, 
that  the  constitutionality  of  a  law  of  the  23  Stat.  437."  Rice  v.  Ames.  180  U.  S. 
United  States  was  drawn  in  Question;  and  371.  373,  45  L.  Ed.  577. 
this  woiild  be  so  in  any  case  that  involves,  68.  Craemer  v.  Washington  State,  168 
within  the  intent  and  meaning  of  the  stat-  U.  S.  124,  127.  42  L.  Ed.  407;  Dimmick  v. 
ute,  the  construction  or  application  of  Tompkins,  194  U.  S.  540,  546,  48  L.  Ed. 
the   constitution   of  the   United   States,   or  1110. 

where   the   constitution   or   law   of   a   state  69.    Rule  34,  117  U.  S.  App.  708.  promul- 

was    claimed    to    be    in    contravention    of  gated    March    29,    1886,    and    as    amended 

the    -'^rstitution,    and    the    disposition    of  May    10,    1886. 


APPEAL  AXD  ERROR.  427 

such  a  regulation  was  given  to  this  court  by  §  765  of  the  Revised  Statutes."^ 
But  ahhough  the  original  order  was  made  at  chambers,  yet  if  the  final  order 
overruling  the  return  of  the  sheriff  and  discharging  tlie  prisoner  from  custody  was 
a  decision  of  the  circuit  court,  an  appeal  will  lie  to  this  court.' ^ 

Hearing-  and  Determination. — An  appeal  to  the  supreme  court  of  the  United 
States  from  a  judgment  of  a  circuit  court  dismissing  a  petition  for  habeas  corpus 
for  want  of  jurisdiction  is  governed  by  §  761  of  the  Revised  Statutes,  which  pro- 
vides, as  to  habeas  corpus  cases,  that  the  court  "shall  proceed  in  a  summary  wav 
to  determine  the  facts  of  the  case  by  hearing  the  testimony  and  arguments,  and 
thereupon  to  dispose  of  the  party  as  law  and  justice  require."^ 

Scope  of  Review. — Every  question  of  substance  which  the  circuit  court  could 
decide  upon  the  return  of  the  habeas  corpus,  including  the  question  of  its  own  ju- 
risdiction, may  be  revised  here  on  appeal  from  its  final  judgment.'^ ^  j^  ^^\\\  ^g  q^, 
served  that  in  both  the  provisions  of  the  Revised  Statutes  and  of  the  act  of  Con- 
gress of  March  3rd,  1885,  23  Stat.  434,  giving  appeals  in  habeas  corpus  pro- 
ceedings, the  mode  of  review,  whether  by  the  circuit  court  of  the  judgment  of  an 
inferior  court  or  justice  or  judge,  or  by  this  court  of  the  judgment  of  a  circuit 
court,  the  word  "appeal."  and  not  "writ  of  error,"  is  used,  and  as  congress  has  al- 
ways used  these  words  with  a  clear  understanding  of  what  is  meant  by  them, 
namely,  that  by  a  writ  of  error  only  questions  of  law  are  brought  up  for  review, 
as  in  actions  at  common  law,  while  on  appeal,  except  when  specially  provided 
otherwise,  the  entire  case  on  both  law  and  facts  is  to  be  reconsidered,'^^  this  court 
may  review  the  law  and  facts  in  habeas  corpus  proceedings. 

c.  Rcznezv  of  Judgment  of  District  Courts. — Prior  to  the  passage  of  the  act  of 
March  3.  1891,  establishing  the  circuit  court  of  appeals,  an  appeal  from  the  final 
judgment  of  a  district  court  on  an  application  for  a  writ  of  habeas  corpus  by  or 
on  behalf  of  one  alleged  to  be  restrained  of  his  liberty  in  violation  of  the  con- 
stitution or  any  law  of  the  United  States,  went  first  to  the  circuit  court.'^^ 

4.  In  Mandamus  Procredixgs. — In  General. '^ — The  judicial  act,  §  13, 
enacted  that  the  supreme  court  shall  have  the  power  to  issue  writs  of  prohibition 
to  the  district  courts  when  proceeding  as  courts  of  admiralty  and  maritime  juris- 
diction, and  writs  of  mandamus  in  cases  warranted  by  the  principles  and  usages 
of  law,  to  any  courts  appointed,  or  persons  holding  offices  under  the  authority  of 
the  United  States.  A  mandamus  to  an  officer  is  said  to  be  the  exercise  of  original 
jurisdiction,  but  a  mandamus  to  an  inferior  court  of  the  United  States  is  in  the 
nature  of  appellate  jurisdiction."®  Repeated  decisions  of  this  court  have  estab- 
lished the  rule  that  this  court  has  power  to  issue  a  mandamus,  in  the  exercise  of 

70.  Carper  v.  Fitzgerald,  121  U.  S.  87,  whether  it  is  exercising  its  original  or 
89.  30  L.  Ed.  882,  cited  in  McKnight  v.  appellate  jurisdiction.  Storti  v.  Massa- 
James.  155  U.  S.  685.  687.  39  L.  Ed.  310;  chusetts,  183  U.  S.  138,  143,  46  L.  Ed.  120, 
Lambert  v.  Barrett.  157  U.  S.  697,  39  L.  reaffirmed  in  Bissert  v.  Hagan.  183  U.  S. 
Ed.  865;  In  re  Lennon,  150  U.  S.  393,  37  694.  46  L.  Ed.  393;  Hall  v.  Johnson,  186 
L.    Ed.    1120;    Whitten    v.    Tomlinson,    160  U.   vS.   480.  46   L.   Ed.    1259. 

U.  S.  231.  244.  40  L.  Ed.  406.  72.     Ex    parte    McCardle.    6    Wall     318, 

71.  Harkrader  v.  Wadley,  172  U.   S.  148,        337     is    L     Ed     816 

43  L.  Ed.  .399,  citing  In  re  Palliser.  136  U.  „„     .^   ^^   v^oo-lJ   iq-  tt    c    1     ,.0    -,.,    t 

o    .-.--»    o..    T      T^j     ^^A          J    J-  .-•         •   1  •  73.    In  re   JNeagle,  13.'5    U.  S.   1.  42,  34  L, 

S.  2.-)7,  34   L.    Ed.   514,   and   distinguishmg  rr,     ...    t^u„o^„   .-,    c           1-0   tt    o    -,/w^ 

r;,rn.r  ..    V\,.rr^r.\A    191    TT    c;    87    on   T  Ed.   .,D     Tohnson   V.   Sayre,   lo8   U.   S.   109, 


Carper  r.   Fitzgerald,   121   U.   S.   87.   30   L.       ^g  '^    ^^    9,^ 
rL.(l.    882. 
1.     Storti    V.    Massachusetts,    183    U.    S. 


There   seems  to  be  little  doubt  that,   so 


138.  46  L.  Ed.  120;  Bissert  v.  Hagan.  183  ^^\l\'lZ  I  l  '?  ^  ^'^^^'  ^T^'^'^ 
U.  S.  694.  46  L.  Ed.  393;  Hall  f:  John-  °^  this  case,  the  appeal  requires  us  to  ex- 
son.  186  U.   S.    480,   46   L.    Ed.   1259.  f^TL   H   f  I^'t,''      '",.?    ^/*^^'^^'    %  '"" 

Section   761.    Re^.    Stat.,   provides    as   to  ^'"u:f  I'Jt'             7^       °L'^' ,P"''ITt7 

i,.,u  „                               ^1     ]    7,,,                ^  to    his    (kscharp^e.      In    re    Neasrle,    135    U. 

habeas    corpus    cases    that      the    court,    or  ^    ^    ^.,    „.  t     T?d    55 

justice,  or  judee   shall  proceed   in   a  sum-  ■•■-'•           ^ 

mary  wav   to  "determine    the   facts   of   the  74.     Rev.    Stat..    §    763;    Boske    v.    Corn- 
case  by  hearing   the   testimony   and   argu-  mgore.    177   U.   S.  459.   465,  44   L.    Ed.   846. 
ments,   and    thereupon    to    dispose    of    the  75.     See    the    title    MA\DAMl''S. 
party  as   law   and    justice    require."      That  76.     Ex    parte    Crane,    5    Pet.    190.    8    L. 
mandate     is     applicable     to      this      court,  Ed.    92. 


428 


APPEAL  AND  ERROR. 


its  appellate  jurisdiction,  and  that  the  writ  will  lie  in  a  proper  case  to  direct  a 
Mibordinate  federal  court  to  decide  a  pending  cause.  The  mandamus  does  not 
direct  the  inferior  court  how  to  proceed,  but  only  that  it  must  proceed  according 
to  its  own  judgment  to  a  final  determination,  otherwise  it  cannot  be  reviewed  in 
the  appellate  court.'"' 

In  What  Cases  Allowable. — But  this  court  cannot  grant  mandamus  in  cases 
over  which  they  do  not  possess  appellate  jurisdiction.'^  This  court  is  empowered 
to  issue  writs  of  mandamus,  "in  cases  warranted  by  the  principles  and  usages  of 
law,  to  any  courts  appointed  under  the  authority  of  the  United  States."'^  Like- 
wise a  writ  of  mandamus  may  be  used  to  compel  an  inferior  tribunal  to  act  on  a 
matter  within  its  jurisdiction,  but  not  to  control  its  discretion  while  acting,  nor 
reverse  its  decisions  when  made.^''  Power  to  issue  the  writ  of  mandamus  to  the 
circuit  courts  is  exercised  by  this  court  to  compel  the  circuit  court  to  proceed 
to  a  final  judgment  or  decree  in  a  cause,  in  order  that  this  court  may  exercise  the 
jurisdiction  of  review  given  by  law.^^ 

Adequacy  of  Other  Remedies. — But  after  a  case  has  proceeded  to  the  fil- 
ing of  a  declaration  and  a  plea  to  the  jurisdiction,  or  its  equivalent,  and  a  judg- 
ment is  rendered  in  favor  of  the  plea  and  a  consequent  dismissal  of  the  action, 
this  court  has  held,  that  the  plaintifif  is  confined  to  his  remedy  by  writ  of  error, 
and  cannot  have  a  mandamus,  which  only  lies,  as  a  general  rule,  where  there 
is  no  other  adequate  remedy. ^^ 

5.  Proceedings  to  Condemn  Property  of  Insurrectionists. — Where  a  pro- 
ceeding, under  the  act,  "to  confiscate  property  used  for  insurrectionary  purposes" 
to  enforce  the  forfeiture  of  real  estate,  was  carried  on  in  a  circuit  court  by  libel, 


77.  Marbtiry  f.  Madison.  1  Cranch  137, 
1T5.  2  L.  Ed.  60;  Kendall  r.  United  States, 
12  Pet.  524,  622,  9  L.  Ed.  1181;  Insurance 
Co.  V.  Comstock.  16  Wall.  258,  270,  21 
L.    Ed.   493. 

To  enable  this  court  then,  to  issue  a 
mandamus,  it  must  be  shown  to  be  an 
exercise  of  appellate  jurisdiction,  or  to  be 
necessary  to  enable  them  to  exercise  ap- 
pellate jurisdiction.  It  has  been  stated  at 
the  bar  that  the  appellate  jurisdiction  may 
be  exercised  in  a  variety  of  forms,  and 
that  if  it  be  the  will  of  the  legislature  that 
a  mandamus  should  be  used  for  that  pur- 
pose, that  will  must  be  obeyed.  This  is 
true,  yet  the  jurisdiction  must  be  appel- 
late, not  original.  It  is  the  essential 
criterion  of  appellate  jurisdiction,  that  it 
revises  and  corrects  the  proceedings  in  a 
cause  already  instituted,  and  does  not 
create  that  cause.  Although,  therefore,  a 
mandamus  may  be  directed  to  courts,  yet 
to  issue  such  a  writ  to  an  officer  for  the 
delivery  of  a  paper  is,  in  effect,  the  same 
as  to  sustain  an  original  action  for  that 
paper,  and,  therefore,  seems  not  to  be- 
long to  appellate,  but  to  original  jurisdic- 
tion. Neither  is  it  necessary  in  such  a 
case  as  this  to  enable  the  court  to  exer- 
cise its  appellate  jurisdiction.  The  au- 
thority, therefore,  given  to  the  supreme 
court  by  the  act  establishing  the  judicial 
courts  of  the  United  States,  to  issue  writs 
of  mandamus  to  public  officers,  appears 
not  to  be  warranted  by  the  constitution; 
and  it  becomes  necessary  to  inquire 
whether  a  jurisdiction  so  conferred  can 
be  exercised.  Marbury  v.  Madison,  1 
Cranch   137,  175,  2  L.  Ed.  60,  73. 


78.  Ex  parte  Glaser,  198  U.  S.  171,  49 
L.    Ed.   1000. 

79.  Act  of  September  24,  1789,  c.  20, 
§  13,  1  Stat.  81;  Rev.  Stat..  §  688;  Ameri- 
can Construction  Co.  v.  Jacksonville,  etc., 
R.   Co.,   148   U.   S.  372,  378,   37  L.   Ed.   486. 

80.  Ex  parte  Burtis,  103  U.  S.  238,  26 
L.  Ed.  392,  citing  Ex  parte  Denver,  etc.,  R. 
Co..  101  U.  S.  711,  25  L.  Ed.  872;  Ex  parte 
Flippin,  94  U.  S.  348,  24  L.  Ed.  194. 

The  general  power  of  the  court  to  is- 
sue a  writ  of  mandamus  to  an  inferior 
court,  to  take  jurisdiction  of  a  cause  when 
it  refuses  to  do  so,  is  settled  by  a  long 
train  of  decisions.  Ex  parte  Bradstreet, 
7  Pet.  634.  8  L.  Ed.  810;  Life  and  Fire 
Ins.  Co.  7'.  Wilson,  8  Pet.  291,  8  L.  Ed. 
949;  United  States  v.  Gomez,  3  Wall.  752, 
18  L.  Ed.  212;  Ex  parte  Roberts,  15  Wall. 
384.  21  L.  Ed.  131;  Ex  parte  United  States, 
16  Wall.  699.  702,  21  L.  Ed.  504;  Insur- 
ance Co.  V.  Comstock,  16  Wall.  258,  271, 
21  L.  Ed.  493;  Railroad  Co.  v.  Wiswall, 
23  Wall.  507,  22  L.  Ed.  103;  Ex  parte 
Schollenberger,  96  U.  S.  369,  24  L.  Ed. 
853;  Harrington  v.  Holler,  111  U.  S.  796, 
28  L.  Ed.  602;  Ex  parte  Brown,  116  U.  S. 
401.  29  L.  Ed.  676;  Ex  parte  Parker,  120 
U.  S.  737,  30  L.  Ed.  818;  Ex  parte  Parker, 
131  U.  S.  221,  33  L.  Ed.  123;  In  re  Penn- 
sylvania Co.,  137  U.  S.  451,  452,  453,  34 
L.    Ed.    738. 

81.  Insurance,  etc.,  R.  Co.  v.  Comstock, 
16   Wall.   258,   270,  21   L.   Ed.   493. 

82.  Ex  parte  Bait.  &  Ohio  Railroad, 
108  U.  S.  566,  27  L.  Ed.  812;  Ex  parte 
Railway  Co.,  101  U.  S.  711,  25  L.  Ed. 
872;  In  re  Pennsylvania  Co.,  137  U.  S. 
451,    453,    34   L.    Ed.    738. 


APPEAL  AXD  E^ROR.  429 

monition,  claim  interposed,  and  testimony  taken  in  conformity  with  the  practice 
of  courts  of  admirahy,  and  without  a  jury  anywhere,  jurisdiction  of  the  decree 
was  taken  by  this  court  on  appeal,  but  only  for  the  purpose  of  reversing  the  de- 
cree as  irregular,  and  directing  a  new  trial. ^^  The  owner  of  property,  for  the 
forfeiture  of  which  a  libel  is  filed  under  the  act  of  congress  of  July  17th,  1862, 
entitled  "An  act  to  suppress  insurrection,  to  punish  treason  and  rebellion,  to  seize 
and  confiscate  the  property  of  rebels,  and  for  other  purposes,"  is  entitled  to  ap- 
pear and  to  contest  the  charges  upon  which  the  forfeiture  is  claimed,  although  he 
was  at  the  time  of  filing  the  libel  a  resident  within  the  confederate  lines,  and  a 
rebel ;  and  he  can  sue  out  a  writ  of  error  from  this  court  to  review  any  final  de- 
cree of  the  court  below  condemning  his  property. *"* 

6.  Injunctions  against  Judgments  of  State  Courts. ^^ — This  court  has  no 
jurisdiction  on  appeal  to  annul,  revise,  or  change  the  decree  of  a  state  court  of 
general  jurisdiction,  having  complete  control  of  the  parties  and  of  the  subject  mat- 
ter of  controversy.  Where  there  is  error  in  the  proceedings  of  such  a  court,  a 
review  can  be  had  in  the  appellate  tribunals  of  the  state. ^^ 

7.  Review  of  Judgments  on  a  Caveat. — Under  the  act  of  congress  passed  in 
pursuance  of  the  constitution  vesting  in  this  court  an  appellate  jurisdiction,  a  writ 
of  error  upon  a  caveat  lies  from  the  district  court  of  the  Kentucky  district,  to 
the  supreme  court  of  the  United   States.^' 

D.  Appellate  Jurisdiction  over  Particular  Courts  and  Tribunals — 1. 
Over  District  Courts — a.  Under  Early  Statutes.— District  Court  for  Ter- 
ritory of  Orleans. — Under  an  early  statute  it  was  held,  that  an  appeal  lies  from 
the  district  court  of  the  United  States,  for  the  territory  of  Orleans,  to  this  court. ^^ 

District  Court  for  Maine. — But  a  writ  of  error  did  not  lie  directly  from  the 
supreme  court  of  the  United  States  to  the  district  court  of  the  district  of  ]\Iaine, 
although  the  latter  has  all  the  original  jurisdiction  of  a  circuit  court. ^^  In  all 
cases  where  the  district  of  Maine  acts  as  a  district  court,  the  appeal  was  to  the 
circuit  court  for  the  District  of  ^lassachusetts.^" 

When  Sitting-  as  Circuit  Courts. — An  act  of  congress.  May,  1826.  enacted 
"that  appeals  and  writs  of  error  shall  lie  from  decisions  in  the  district  court  for 
the  northern  district  of  New  York,  when  exercising  the  powers  of  a  circuit  court ; 
and  which  may  be  made  by  the  circuit  court  for  the  southern  district  of  said  state, 
in  causes  heretofore  removed  to  said  circuit  from  the  said  district  court,  sitting 
as  a  circuit  court,  to  the  supreme  court  of  the  United  States,  in  the  same  manner 
as  from  circuit  courts."  Under  this  statute  it  was  held,  that  a  district  court  of 
the  United  States,  performing  the  appropriate  duty  of  a  district  court,  is  not  sit- 
ting as  a  circuit  court,  within  the  meaning  of  this  statute,  because  it  possesses  the 
powers  of  a  circuit  court  also.**^ 

Where  District  Judge  Exercises  a  Special  Jurisdiction. — The  general 
law  allowing  appeals  did  not  authorize  this  court,  by  appeal  or  writ  of  error,  to 

83.  Union  Ins.  Co.  v.  United  States.  6  87.  Wilson  v.  Mason,  1  Cranch  45,  2  L, 
Wall.   759.    18    L.    Ed.    879.                                         Ed.    2». 

"The    constitution    gives    to    this    court  gg,    Morean  v.   Callender,  4  Cranch  370. 

appellate  jurisdiction  in  all  cases  of  which       9   L.  Ed.   650. 

the   inferior    courts    of    the    United    States  „„     tt    •.     .    Ci.  ^  w-     ^        -    r^       ^u 

v„  ..,..,.,.  u-     4-  <-  u  89-     United    States   v.    Weeks,    o    Cranch 

nave  original  jurisdiction,   subject  to  such       1     o    t     -pA     in 

exceptions    and    regulations    as     congress         '   .       '         '  ,    j  ,,        j-  ^  •  4.      „   _..    ^^ 

ru^ii         1  J    ♦u  4.      f    ior,o     o    c<-  ..  An    appeal    trom    the    district    court    01 

snail   make;    and   the   act   of    1803,   2    Stat.  ^u      j-  !  ■  4.      c    -xr   ■         ■  ^        ^(    ..a 

^^  T  „'  •,  u      c  the    district    of    Maine,    in    a    case    of    ad- 

at  Large.  244.  provides,  generally,  for  ap-  .'-,..,..  ,  ,.      j-  ^^(.i., 

„„„i     c  J      •   -  •        J     •     u     •>  TT     X  miralty   jurisdiction,    does    not   lie    directly 

peals  from  decisions  in  admiralty.     Union  4.     4.1,  \.     e  tu     tt    v^,i  ctof<»c 

T„<-    n^         TT    -v    1  C4-  *        a  \\T  11    -rrn  r>as:  to  the  Supreme  court  of  the  United  States, 

Ins.  Co.  V.  United  States,  6  Wall.  759,765,  u    4.   4.      ti         •        -4.  ,.   ^t  *-u      ^•.f..;,^   r.: 

18   L    Fd     S~Q  circuit   court   of   the  district  01 

QA  '  HT  AT-   •'  u        TT    -4.  J   c  t        11   w'  It        Massachu sc tt s.      Sloop    Sallv     r.      United 

84.  McVeiffh  v.  United  States,  11  Wall.       ^.    .         .   ^         .    o~o    •>   t      t:a    ion 
259    ''O   L    Ed    80  States,   o   Cranch  3/2.  3   L.   Ed.   129. 

85. ~  See    the   title    TUDGME^TTS    AND  90-     Sloop    Sally    v.    United     States,      5 

DECREES.  Crnnch   372.   3   L.    Ed.   129. 

86.    Randall  v.   Howard.  2  Black  585,  17  91.    Southwick    v.      Postmaster  General, 

L.  Ed.   269.  2    Pet.    442,    7    L.    Ed.    479. 


430 


APPEAL  AND  ERROR. 


reverse  the  proceedings  of  the  district  judge,  under  a  statute,  passed  May  5th, 
1820,  entitled  "an  act  for  the  better  organization  of  the  treasury  department." 
The  act  of  congress  gives  to  the  district  judge  a  special  jurisdiction,  which  he  may 
exercise  at  his  discretion  while  holding  the  district  court  or  at  any  other  time.  Or- 
dinarily, as  district  judge,  he  has  no  chancery  powers  ;  but  in  proceeding  under 
this  statute  he  is  governed  by  the  rules  of  chancery,  which  apply  to  injunctions, 
except  as   to   the  answer   of   the   government. ^^ 

Appeals  by  the  Government. — The  special  jurisdiction  created  by  the  act  of 
congress  must  be  strictly  exercised  within  its  provisions.  A  particular  mode  is 
pointed  out  by  which  an  appeal  from  the  decision  of  the  district  judge  may  be 
taken  by  the  person  against  whom  proceedings  have  issued ;  consequently,  it  can 
be  taken  in  no  other  way.  No  provision  is  made  for  an  appeal  by  the  government ; 
of  course  none  was  intended  to  be  given  to  it.^^  No  appeal  lies  from  the  decree 
of  a  district  judge  of  the  United  States  on  a  petition  presented  by  the  defendant 
under  the  second  section  of  the  "Act  providing  for  the  better  organization  of  the 
treasury  department,"  where  an  order  had  issued  by  the  solicitor  of  the  treasury 
to  the  marshal  of  the  United  States,  and  the  property  of  an  alleged  debtor,  the 
petitioner,  had  been  seized  and  was  about  to  be  sold  to  satisfy  the  alleged  debt. 
No  appeal  by  the  government  is  authorized  by  the  act,  and  the  general  law  giv- 
ing appeals  does  not  embrace  the  case.  The  law  is  the  same  where  an  appeal  was 
laken  from  the  district  judge  to  the  circuit  court,  and  an  appeal  taken  thence  to 
the  supreme  court ,  and  where  an  appeal  was  taken  to  the  supreme  court,  from 
the  district  judge  of  Louisiana,  having  the  powers  of  a  circuit  court. ^^ 

b.  Under  Circuit  Court  of  Appeals  Act'^'^ — (1)  In  Cases  in  IVhich  the  Juris- 
diction of  the  Court  Is  in  Issue. — Section  5  of  the  act  of  March  3,  1891,  provides 


92.  United  States  v.  Cox,  11  Pet.  162, 
9   L.   Ed.  671. 

93.  United  States  v.  Nourse.  6  Pet.  470, 
8  L.  Ed.  467,  cited  and  confirmed  in  9  L. 
Ed.  671.  citing  United  States  v.  Good- 
win,  7    Cranch    108,   3    L.    Ed.   284. 

The  agent  of  the  treasury  of  the  United 
States,  under  the  provisions  of  the  act  of 
congress  passed  on  the  15th  of  May,  1820, 
entitled  "An  act  for  the  better  organiza- 
tion of  the  treasury  department,"  issued 
a  warrant  to  the  marshal  of  the  District 
of  Columbia,  under  which  the  goods  and 
chattels,  lands  and  tenements  of  Joseph 
Nourse,  late  register  of  the  treasury  of 
the  United  States,  were  attached  for  the 
sum  of  eleven  thousand,  seven  hundred 
and  sixty-nine  dollars  and  thirteen  cents, 
alleged  to  be  due  to  the  United  States 
upon  a  settlement  of  his  accounts  at  the 
treasury  of  the  United  States.  Mr. 
Nourse,  under  the  authority  of  the  fourth 
section  of  that  act,  applied  to  the  district 
judge  of  the  District  of  Columbia  for  an 
injunction  to  stay  proceedings  under  the 
warrant,  and  alleging  that  a  balance  was 
due  to  him  by  the  United  States,  as  com- 
missions for  the  expenditure  of  large  sums 
of  money  for  the  United  States,  and  as  a 
compensation  for  other  duties  than  those 
of  register  of  the  treasury,  in  the  disburse- 
ment of  the  said  sums  of  money,  to  which 
commissions  and  compensation  he  claimed 
to  be  entitled,  according,  as  he  alleged,  to 
the  established  practice,  and  by  the  ap- 
plication to  his  claims  of  the  same  rules 
which  had  been  anplied  to  other  and 
similar  cases  in  the  adjustment  of  ac- 
counts  at   the   treasury   department.     The 


district  judge  granted  an  injunction  to 
stay  proceedings  under  the  warrant;  and 
the  United  States  having  filed  an  answer 
to  the  bill  of  Mr.  Nourse,  auditors  were 
appointed  to  the  district  judge  to  audit 
and  settle  the  accounts  of  Mr.  Nourse 
with  the  United  States.  The  auditors  re- 
ported the  sum  of  twenty-three  thousand, 
five  hundred  and  eighty-two  dollars  and 
seventy-two  cents  due  to  Mr.  Nourse  by 
the  United  States,  for  extra  services  ren- 
dered to  the  United  States  in  receiving 
and  disbursing  public  monej'.  Allowing 
credit  in  the  audit  of  the  accounts  of  the 
sum  of  eleven  thousand,  seven  hundred 
and  sixty-nine  dollars  and  thirteen  cents, 
claimed  by  the  United  States,  a  balance 
of  eleven  thousand  and  eight  hundred  and 
thirteen  dollars  and  fifty-nine  cents  would 
be  due  to  Mr.  Nourse.  The  district  judge 
made  a  decree  that  the  injunction  should 
be  perpetual.  The  United  States  ap- 
pealed to  the  circuit  court,  and  the  decree 
for  a  perpetual  injunction  was  affirmed  in 
that  court.  The  United  States  appealed 
to  the  supreme  court;  and  on  a  motion  by 
the  appellee  to  dismiss  the  appeal  for 
want  of  jurisdiction,  it  was  held,  that  no 
appeal  is  given  by  the  act  of  congress 
from  a  decree  of  the  district  judee  to  the 
circuit  court.  United  States  7'.  Nourse,  6 
Pet.  470.  8  L.  Ed.  467,  cited  and  confirmed 
in  9  L.  Ed.  671.  See.  also.  United  States 
V.  Cox,  11  Pet.  162,  9  L.  Ed.  671. 

94.  United  States  v.  Cox.  11  Pet.  162, 
9  L.  Ed.  671,  following  United  States  v. 
Nourse.   6   Pet.   470,   8   L.   Ed.   467. 

95.  For  the  cases  construing  these  sec- 
tions, see  the  next  division  treating  of  the 


APPEAL  AND  ERROR.  431 

that  appeals  or  writs  of  error  may  be  taken  from  the  district  courts  direct  to  the 
supreme  court  in  any  case  in  which  the  jurisdiction  of  the  court  is  in  issue;  in 
such  case,  the  question  of  jurisdiction  alone  shall  be  certified  to  the  supreme  court 
from  the  court  below  for  decision. ^^  The  question  of  whether  or  not  the  district 
court  acquired  jurisdiction  by  a  proper  service  of  process  involves  the  jurisdiction 
of  the  court  within  the  meaning  of  §  5  of  the  act  of  March  3,  18)1,  and  hence 
may  be  reviewed  on  a  writ  of  error  directly  sued  out  to  this  court/*' 

(2)  In  Prize  Causes. — Section  5  of  the  act  of  Alarch  3,  1891,  provides  that 
appeals  or  writs  of  error  may  be  taken  from  the  district  courts  direct  to  the  su- 
preme court  from  the  final  sentences  and  decrees  in  prize  causes. 

(3)  In  Cases  of  Conviction  of  Infamous  Crimes. — Appeals  or  writs  of  error 
may  be  taken  from  a  district  court  direct  to  the  supreme  court  in  cases  of  convic- 
tion of  a  capital  or  otherwise  infamous  crime. 

(4)  In  Cases  Involving  the  Construction  or  Application  of  the  Federal  Con- 
stitution.— Section  5  of  the  act  of  March  3,  1891,  provides  that  appeals  or  writs 
of  error  may  be  taken  from  the  district  courts  direct  to  the  supreme  court  in  any 
case  that  involves  the  construction  or  application  of  the  constitution  of  the  United 
States. 

Privilege  of  Senators  and  Representatives  from  Arrest. — Thus,  the  su- 
preme court  of  the  United  States  may  issue  a  writ  of  error  direct  to  the  district 
court,  in  a  case  involving  the  construction  and  application  of  §  6,  art.  1,  of  the 
constitution  of  the  United  States,  providing  that  senators  and  representatives  shall, 
in  all  cases  except  treason,  felony,  and  breach  of  peace,  be  privileged  from  arrest 
during  their  attendance  at  the  sessions  of  their  respective  houses,  and  in  going 
to  and  returning  from  the  same,  provided  these  questions  were  raised  in  the  court 
below. ^^ 

(5)  In  Cases  Invohnng  the  Constitiitionality  of  Any  Law  of  the  United  States, 
or  the  Validity  or  Construction  of  Treaties. — Section  5  of  the  act  of  March  3, 
1891,  provides  that  appeals  or  writs  of  error  may  be  taken  from  the  district  court 
direct  to  the  supreme  court  in  any  case  in  which  the  constitutionality  of  any  law 
of  the  United  States  or  the  validity  or  construction  of  any  treaty  made  under  its 
authority,  is  drawn  in  question. 

(6)  In  Ceases  Involving  the  Constitutionality  of  State  Laivs  and  Constitutiofis. 
— Section  5  of  th€  act  of  March  3,  1891,  provides  that  appeals  or  writs  of  error 
may  be  taken  from  the  district  court  direct  to  the  supreme  court  in  any  case  in 
which  the  constitution  or  law  of  any  state  is  claimecl  to  be  in  contravention  of 
the  constitution  of  the  United  States. 

(7)  Appeals  by  United  States  from  District  Court  for  Florida. — There  is  no 
doubt  that  this  enactment  was  intended  to  supersede  previous  general  provisions, 
and  to  establish  in  what  cases  and  to  what  courts  appeals  might  be  taken  from 
the  district  courts. ^  While  the  words  "unless  otherwise  provided  by  law" 
as  used  in  §  6  of  the  act  of  March  3,  1891,  providing  that  the  cir- 
cuit court  of  appeals  shall  exercise  appellate  .  jurisdiction  to  review  final  de- 
cisions in  the  district  courts,  etc..  in  all  cases  other  than  those  provided  for  in  the 
preceding  section  "unless  otherwise  provided  by  law,"  do  not  save  every  existing 
provision,  or  the  act  would  fail  of  its  purpose,  yet  they  save  some.  And  there  is  no 
case  to  which  they  can  apply  more  clearly  than  one  in  which,  by  reason  of  its  interest, 
the  United  States  has  manifested  its  will  to  submit  to  no  judgment  not  sanctioned 
by  its  highest  court.     Accordingly  an  appeal  will  lie  to  this  court  on  behalf  of  the 

jurisdiction   of   this    court   over   the   circuit  98.     Burton   v.   United   States.    196    U.    S. 

court.  283,   49    L.    Ed.   482.   2.5   Sup.    Ct.    Rep.   24.3, 

96.  In  re  Morrison,  147  U.  S.  14.  3T  citing  Horner  v.  United  States,  143  U.  S. 
L.    Ed.    60.  570.    36    L.  ■  Ed.    266. 

97.  Shepard  t'  ^dams.  168  U.  S.  618,  1-  The  Paquete  Habana.  175  U.  S.  677, 
42  L.  Ed.  602.  distineuishine  Smith  r.  Mc-  686,  44  L.  Ed.  320;  United  States  v.  Dai- 
Kay,  161   U.   S.   355,   40   L.   Ed.  731.  cour,  203   U.   S.   408,  420,   51   L.    Ed.  248. 


432 


APPEAL  AND  ERROR. 


United  States  under  §  11  of  the  act  of  June  11.  1860,  from  an  adverse  decision 
of  the  United  States  district  court  in  cases  to  eslabhsh  land  titles  in  Florida. ^ 

c.  Rei'iezu  of  Judgments  of  the  District  Court  for  Porto  Rico. — See  post,  "Over 
Supreme  Court  of  Porto  Rico  and  the  United  States  District  Court,"  III,  D,  11. 

d.  Jiidgiuents  and  Decrees  of  District  Courts  in  Cases  Transferred  from  Ter- 
ritorial Courts. — The  judgments  or  decrees  of  any  district  court,  in  cases  trans- 
ferred to  it  from  the  superior  court  of  any  territory,  upon  the  admission  of  such 
territory  as  a  state,  under  sections  five  hundred  and  sixty-seven  and  five  hundred 
and  sixty-eight,  may  be  reviewed  and  reversed  or  afltirmed  upon  writs  of  error 
sued  out  of,  or  appeals  taken  to,  the  supreme  court,  in  the  superior  court  of  such 
territory.  And  the  mandates  and  all  writs  necessary  to  the  exercise  of  the  ap- 
pellate jurisdiction  of  the  supreme  court  in  such  cases  shall  be  directed  to  such 
district  court,  which  shall  cause  the  same  to  be  duly  executed  and  obeyed.  Rev. 
Stat.,  §  704. 

e.  Judgments  and  Decrees  of  District  Court  of  Alaska. — In  General. — This 
court  has  jurisdiction  to  review  the  final  judgments  and  decrees  of  the  district 
court  of  Alaska.^ 


2.  United   States   v.   Dalcour,   203   U.    S. 
408,    51    L.    Ed.    248. 

3.  "Under  §§  690,  691,  692,  695  and  699,  of 
the  Revised  Statutes,  this  court  has  ap- 
pellate jurisdiction  to  re-examine  the  linal 
judgments  of  any  circuit  court,  or  of  any 
district  court  acting  as  a  circuit  court,  in 
civil  actions,  where  the  matter  in  dispute, 
exclusive  of  costs,  exceeds  the  sum  or 
value  of  $5,000;  all  final  decrees  of  any 
circuit  court,  or  of  any  district  court  act- 
ing as  a  circuit  court,  in  cases  of  equity 
and  of  admiralty  and  maritime  jurisdic- 
tion, within  the  same  limit  of  amount  in- 
volved; all  final  decrees  of  any  district 
court  in  prize  causes;  all  final  judgments 
at  law  and  final  decrees  in  equity  of  any 
circuit  court  or  of  any  district  court  act- 
ing as  a  circuit  court,  in  any  case  touch- 
ing patent  rights  or  copyrights;  in  any 
civil  action  brought  by  the  United  States 
for  the  enforcement  of  any  revenue  law 
thereof;  in  actions  against  revenue  ofii- 
cers;  in  cases  brought  on  account  of  dep- 
rivation of  rights  of  citizens  or  of  rights 
under  the  constitution;  and  in  suits  for 
injuries  by  conspirators  against  civil 
rights.  Under  §  701  this  court  may  affirm, 
modify  or  reverse  any  judgment,  decree 
or  order  of  a  circuit  court,  or  district 
court  acting  as  a  circuit  court,  or  of  a  dis- 
trict court  in  prize  causes,  lawfully 
brought  before  it  for  review,  or  may  di- 
rect such  judgment,  decree  or  order  to  be 
rendered,  or  such  further  proceedings  to 
be  had  by  the  inferior  court  as  the  jus- 
tice of  the  case  inay  require.  And  it  is 
argued  that  the  words  "as  in  other  cases," 
in  §  7  of  the  act  of  1884  can  mean  noth- 
ing else  than  other  cases  of  appeals  from 
district  courts  and  district  courts  acting 
as  circuit  courts;  and  that  the  right  of 
appeal  from  the  decrees  of  district  courts 
is  confined  to  prize  causes  under  §  695. 
It  is  said  that  if  there  could  be  such  a 
thing  as  an  appeal  from  the  district  court 
of  Alaska  in  an  ordinary  admiralty  case 
direct  to  this  court,  this  court  would  be 
obliged  to  try  the  case  de  novo;  that  the 


district  court  of  Alaska,  sitting  as  an  ad- 
miralty court,  would  supply  and  take  the 
place  of  a  circuit  court  in  admiralty  sit- 
ting in  appeal,  although  all  the  statutes 
authorizing  district  courts  to  exercise  tht 
functions  of  circuit  courts  expressly  ex- 
clude the  power  of  appeal;  that  the  only 
foundation  of  a  right  of  appeal  from  the 
Alaska  court,  based  upon  this  right  to 
exercise  the  jurisdiction  of  a  circuit 
court,  in  §  692  of  the  Revised  Statutes, 
and  that  only  extends  to  the  final  decrees 
of  such  district  court  when  exercising  the 
jurisdiction  of  a  circuit  court,  while  the 
exercise  of  admiralty  and  maritime  juris- 
diction by  the  district  court  for  Alaska 
was,  by  the  act  creating  it  and  the  Re- 
vised Statutes,  the  exercise  of  purely  dis- 
trict court  jurisdiction  as  such;  nor  could 
the  Alaska  court  be  supposed  to  have 
acted  in  the  exerci.'^e  of  both  jurisdictions, 
as  the  only  admiralty  and  ma'  time  juris- 
diction which  belongs  to  the  circuit  court* 
is  appellate.  But  the  district  court  of 
Alaska  is  not  alone  a  district  court  of  the 
United  States,  and  a  district  court  exer- 
cising circuit  court  powers;  it  is  also  a 
court  of  general  law  and  equity  jurisdic- 
tion. If  the  contention  of  petitioner  were 
correct,  any  power  of  review  in  this  court 
over  judgments  and  decrees  of  the  Alaska 
court  in  law  and  equity,  except  when  en- 
tered as  a  circuit  court,  would  be  ex- 
cluded. We  do  not  think  it  was  the  in- 
tention of  congress  to  give  such  finality 
to  its  judgments  and  decrees.  It  seems  to 
us  that  the  words  "as  in  other  cases" 
mean,  as  in  similar  cases  from  other 
courts;  and  we  concur  in  the  construc- 
tion contended  for  on  the  part  of  the  re- 
spondent, that  the  meaning  of  the  pro- 
vision is,  that  this  court  may  review  the 
final  judgments  or  decrees  of  the  districf 
court  of  Alaska  as  in  cases  of  the  same 
kind  from  other  courts."  In  re  Cooper, 
143  U.  8.  472,  510,  36  L.  Ed.  232.  See 
Steamer  Coquitlam  z'.  United  States,  16.'^ 
U.    S.   346.   41    L.    Ed.    184. 

The  latter  part  of  §  7  of  the  act  of  May 


APPEAL  AXD  ERROR.  433 

The  act  of  February  16,  1875  (c.  77,  §  1,  18  Stat.  315),  applies  to 
appeals  taken  from  decrees  of  the  district  court  of  the  United  States  for  the  dis- 
trict of  Alaska  sitting  in  admiralty,  and  we  are  therefore  limited  upon  this  appeal 
to  a  determination  of  the  questions  of  law  arising  upon  the  record,  and  to  such 
rulings  of  the  court,  excepted  to  at  the  time,  as  may  be  presented  by  a  bill  of 
exceptions  prepared  as  in  actions  at  law>  The  act  of  congress  (30  St.,  p.  728), 
providing  for  the  transfer  of  all  cases,  civil  and  criminal,  filed  on  appeal  from  the 
district  court  of  the  United  States  for  the  district  of  Alaska,  in  the  United  States 
circuit  court  of  appeals  for  the  ninth  judicial  district,  and  pending  on  appeal 
therein,  on  and  prior  to  the  30th  day  of  December,  1897,  etc.,  is  by  its  terms  to 
operate  only  upon  those  cases  of  which  the  supreme  court  would  have  had  juris- 
diction under  the  law  existing  at  the  time  the  case  was  taken  to  the  circuit  court 
of  appeals,  if  a  proper  appeal  had  been  taken  to  the  supreme  court  of  the  United 
States  at  the  time  the  case  was  filed  in  the  circuit  court  of  appeals. •'' 

2.  Over  Circuit  Courts — a.  Under  Early  Statutes — (1)  In  General. — This 
court  formerly  had  appellate  jurisdiction  over  all  final  judgments  and  decrees  of 
any  circuit  court,  or  of  any  district  court  acting  as  a  circuit  court,  in  civil  actions 
where  the  matter  in  dispute  exceeded  the  sum  or  value  of  five  thousand  dollars.^ 
Express  jurisdiction  was  conferred  upon  this  court  by  the  twenty-second  section 
of  the  judiciary  act  to  re-examine,  upon  writ  of  error,  and  reverse  or  affirm 
final  judgments  in  civil  actions  rendered  in  a  circuit  court,  where  the  matter  in 
dispute  exclusive  of  costs,  exceeded  the  sum  or  value  of  two  thousand  dollars, 
whether  the  same  was  brought  there  by  original  process  or  was  removed  there 
from  courts  of  the  several  states,  or  from  a  district  court.'  Where  the  circuit 
court  of  the  United  States  proceeded  ^  exercise  jurisdiction  under  the  twenty- 
tlurd  section  of  the  act  of  May  31st,  1870,  entitled  "An  act  to  enforce  the  rights 
of  citizens  of  the  United  States  to  vote  in  the  several  states  of  this  Union,  and 
for  other  purposes,"  an  appeal  would  lie  to  this  court  from  its  final  decree.^ 

(2)  Cases  Removed  from  District  to  Circuit  Courts. — According  to  the  former 
decisions  of  this  court,  a  writ  of  error  does  not  lie  to  carry  to  this  court  a  civil 
cause,  which  has  been  carried  from  the  district  to  the  circuit  court,  by  writ 
of  error. ^ 

b.  By  Direct  Appeal — (1)  Under  Circuit  Court  of  Appeals  Act — aa.  In  Gen- 
eral—By §  4  of  the  judiciary  act  of  March  3,  1891,  c.  517,  26  Stat.  826.  it  was 

17.   1884,  23   Stat.  24.   2fi.    i^     as     fnl1-ws:  44  L.   Ed.   6.12,  reaffirmed  in   Pacific  Coast 

''Writs  of  error  in  criminal  cases  shall  is-  Steamship    Co.    v.    Pande,    180    U.    S.    636. 

sue    tn    the    said    district    court    from    me  45   L.    Ed.   709. 

United  States  circuit  court  for  the  district  6.    Rev.   Stpt..   §§   600.   fioi.   690.   is   Stat, 

of  Oregon  in  the  cases  provided  in  chap-  315;   United   States  t'.  American   Bell  Tele- 

ter   one    hundred    and    seventj^-six    of    the  phone   Co.,   159  U.   S.   548.  550.   551,   40   L. 

laws    of    eighteen    hundred    and    seventy-  Ed.   255. 

nine;    and    the    jurisdiction    thereby     con-  7.     1    Stat,    at    Large    84;    New    Orleans 

ferred  upon  circuit  courts  is  hereby  given  Rai'road  v.  Morgan.  10  Wall.  256.   260.   19 

to  the  circuit  court   of  Oregon.     And   the  L.    Ed.   892. 

final  judgments   or  decrees  of  said   circuit  8.    Ex  parte  Warmouth,   17  Wall.  64.  21 

and  district  court  may  he  reviewed  by  the  L.  Ed.  543. 

supreme  court  of  the  United  States  as  in  9.    United   States  t'.  Goodwin.   7   Cranch 

other  cases.''     We  are  of  opinion  that  the  108,   3   L.    Ed.   284;   United    States  v.   Gor- 

word    circuit    as    here    used    refers    to    the  don,   7   Cranch   287.  3   L.    Ed.   347;   United 

circuit  court  of  Oregon,  and.  for  the  pur-  J^^tPtes    v.    T^nbroek,    2   Wheat.    247,    4    L. 

poses  of  the  matter  in  hand,    the     clause  t:"^'.      231:     United      States     v.    Barker.     2 

may  be   read:      ".^nd   the   final   judgments  Wheat.   395,  4   L.   Ed.   271.      (In   this   case 

or  decrees  of  said  district  court  of  Alaska  the   court   said:     "It   appears    not  to   have 

may   be   reviewed    by   the    supreme    court  been  the  policy  of  the   legislature  at  that 

of   the   United   States   as   in   other   cases."  time   to   subiect   the   decisions   of  the    dis- 

In   re   Cooper,    143    U.    S.    472.    509,    36   L.  trict   court,  in  civil  cases  at  common   law, 

Ed.  232.  to    more    than    oik;    re-examination    in    an 

_  4.     The    Sylvia    Handy.    143    U.    S.    513,  apnellate    court.") 

515.   36   L.    Ed.   246,    citing   In   re    Cooper,  A  writ  of  error  does  not  lie  to  carrv  to 

H3  U.  S.  472.  36  L.   Ed.  232.  the      -preme    court    of    the    United    States 

5.    Thorp    V.    Bonnifield.    177    U.    S.    15,  a  civil  cause  which  has  been  carried  from 
1  U  S  Enc-28 


434 


APPEAL  AND  ERROR. 


provided  that  "the  review,  by  appeal,  by  writ  of  error  or  otherwise,  from  the 
existing  circuit  courts  shall  be  had  only  in  the  supreme  court  of  the  United  States, 
or  in  tne  circuit  courts  of  appeals  hereby  established,  according  to  the  provisions 
of  this  act  regulating  the  same."i'^ 

bb.  In  What  Cases  Allowable — aaa.  /;/  Cases  in  Which  the  Jiirisdictio)i  of  the 
Court  Is  in  Issue — aaaa.  In  General. — Section  5  of  the  act  of  March  3,  1891, 
provides  tliat  appeals  or  writs  of  error  may  be  taken  from  the  existing  circuit 
courts  direct  to  the  supreme  court  in  any  case  in  which  the  jurisdiction  of  the 
court  is  in  issue;  in  such  case,  the  question  of  jurisdiction  alone  shall  be  certified 
to  the  supreme  court  from  the  court  below  for  decision.^ ^  According  to  that 
provision  the  question  involving  the  jurisdiction  of  the  circuit  court  must  have 
been  in  issue  and  decided  against  the  party  seeking  to  bring  it  before  this  court 
for  determination,  and  must  be  certified  for  decision. i- 

bbbb.  Jurisdiction  of  Court  as  a  Federal  Court  Must  Be  Involved. — In  Gen- 
eral.— It  is  also  settled  that  the  question  of  jurisdiction  thus  to  be  certified  is 
the  jurisdiction  of  the  circuit  court  as  a  court  of  the  United  States,  and  not  in 
respect  of  its  general  authority  as  a  judicial  tribunal. ^^     The  act  of  March  3, 


the  district  court  to  the  circuit  court  by 
writ  of  error.  United  States  v.  Gordon, 
7  Cranch  287,  3  L.  Ed.  347^  following 
United  States  v.  Goodwin,  7  Cranch  108, 
3  L.   Ed.  284. 

"It  appears  that  no  provision  is  made  in 
the  general  act  organizing  the  courts  of 
the  United  States  to  authorize  an  appeal 
from  the  judgment  or  decree  of  the  dis- 
trict court  to  the  circuit  court  except  in 
cases  of  admirahy  and  maritime  jurisdic- 
tion. On  the  principle  of  the  case  of  the 
United  States  v.  Goodwin.  7  Cranch  108, 
3  L.  Ed.  284,  the  appeal  in  this  case  can- 
not be  maintained.  If  it  be  a  case  in 
chancery,  no  provision  is  made  in  the 
general  law  to  appeal  such  a  case  from 
the  district  to  the  circuit  court."  United 
States  V.  Nourse,  6  Pet.  470,  8  L.  Ed. 
467,  cited  and  confirmed  in  9   L.   Ed.   671. 

In  cases  at  law  removed  from  the  dis- 
trict court  to  the  circuit  court,  the  judg- 
ment of  the  circuit  court  is  final  between 
the  parties.  It  is  otherwise  in  cases  in 
equity,  and  of  admiralty  and  maritime  ju- 
risdiction, and  although  the  reason  for 
this  distinction  may  not  be  entirely  ob- 
vious, yet  it  is  our  duty  to  conform  to 
tile  provisions  of  the  law;  and  this  court 
have  repeatedly  decided  that,  in  civil  cases 
at  law.  the  judgment  of  the  circuit  court 
is  final  where  the  case  is  removed  by 
writ  of  error  from  the  district  court  to 
the  circuit  court.  The  point  was  fully 
considered  and  decided  in  the  case  of  The 
United  States  v.  Goodwin  (7  Cranch 
108),  and  the  opinion  there  given  has 
been  since  reaflfirmed  in  several  cases. 
(7  Cranch  287;  2  Wheat.  248,  395.)  The 
question  must  be  regarded  as  too  well 
settled  to  be  now  open  for  argument. 
Sarchet  v.  United  States,  12  Pet.  143,  9 
L.   Ed.  1033. 

10.  United  States  v.  Rider,  163  U.  S. 
132,  138,  41   L.   Ed.  101. 

11.  Carey  v.  Houston  etc.,  R.  Co.,  161  U. 
S.  115.  126,  40  L.  Ed.  638,  reaffirmed  in 
Murphy   v.    Colorado   Paving   Co.,   166   U. 


S.  719,  41  L.  Ed.  1118;  Darragh  v.  Manu- 
facturing Co.,  169  U.  S.  735.  42  L-  Ed. 
1216;  Blythe  Co.  v.  Blythe,  172  U.  S.  644, 
43  L.  Ed.  1183;  Transportation  Co.  v. 
Mobile,  199  U.  S.  604,  50  L.  Ed.  330;  In 
re  Morrison.  147  U.  S.  14,  37  L.  Ed.  60; 
McLish  V.  Rofif,  141  U.  S.  661,  35  L.  Ed. 
893;  Schunk  v.  Moline,  etc.,  Co.,  147  U. 
S.  500,  503,  37  L.  Ed.  255;  In  re  Lennon, 
150   U.    S.   393.   37    L.    Ed.   1120. 

12.  Maynard  v.  Hecht,  151  U.  S.  324, 
325,  38  L.  E<1.  179,  followed  in  Moran  v. 
Hagerman,  151  U.  S.  329,  38  L.  Ed.  181. 

In  order  to  bring  an  appeal  or  writ  of 
error  directly  to  this  court  in  a  case  in 
which  the  jurisdiction  of  the  court  is  in 
issue,  the  jurisdiction  of  the  circuit  court 
must  have  been  in  issue  in  the  case,  and, 
as  appeals  or  writs  of  error  lie  here  only 
from  final  judgments  or  decrees,  must 
have  been  decided  against  appellants;  and 
the  question  of  jurisdiction  must  have 
been  certified.  Carey  v.  Houston,  etc., 
R.  Co.,  150  U.   S.  170,  179.  37   L.  Ed.  1041. 

13.  Courtney  r.  Pradt,  196  U.  S.  89,  49 
L.  Ed.  398.  citing  Blythe  v.  Hinckley.  173 
U.  S.  501,  43  L.  Ed.  783;  Mexican  Central 
R.  Co.  V.  Eckman,  187  U.  S.  429,  47  L.  Ed. 
245;  Louisville  Trust  Co.  v.  Knott,  191 
U.  S.  225,  48  L.  Ed.  159;  O'Neal  v.  United 
States,  190  U.  S.  36.  47  L-  Ed.  945;  Bache 
V.  Hunt,  193  U.  S.  523,  525,  48  L.  Ed.  774, 
reaffirmed  in  Fowler  v.  Osgood.  205  U. 
S.   535,   51    L.   Ed.   919. 

The  question  of  jurisdiction  which  the 
statute  permits  to  be  certified  to  this  court 
directly  must  be  one  involving  the  juris- 
diction of  the  circuit  court  as  a  federal 
court,  and  not  simply  its  general  au- 
thority as  a  judicial  tribunal  to  proceed 
in  harmony  with  established  rules  of 
practice  governing  courts  of  concurrent 
jurisdiction  as  between  each  other.  This 
question  was  substantially  so  determined 
in  Smith  v.  McKav.  161  U.  S.  355,  357.  40 
L.  Ed.  731;  Louisville  Trust  Co.  v.  Knott. 
191    U.    S.    225,    233,    48    L.    Ed.    159,    reaf- 


APPEAL  AND  ERROR. 


435 


1891,  providing  that  a  case  may  be  brought  to  the  supreme  court  in  any  case  in 
which  the  jurisdiction  of  the  court  is  in  issue,  means  in  any  case  where  the  ju- 


firmed  in  Shoesmith  v.  Boot  &  Shoe  Mfg. 
Co.,  198  U.   S.  582,   49   L.   Ed.   1172. 

In  Blythe  v.  Hinckley.  173  U.  S.  501, 
506,  43  L.  Ed.  783,  this  court  said:  "Ap- 
peals or  writs  of  error  may  be  taken  di- 
rectly from  the  circviit  courts  to  this  court 
in  cases  in  which  the  jurisdiction  of  those 
courts  is  in  issue,  that  is,  their  jurisdic- 
tion as  federal  courts,  the  question  alone 
of  jurisdiction  being  certified  to  this  court. 
The  circuit  court  held,  that  the  remedy 
was  at  law  and  not  in  equity.  That  con- 
clusion was  not  a  decision  that  the  cir- 
cuit court  had  no  jurisdiction  as  a  court 
of  the  United  States.  Smith  v.  McKay, 
161  U.  S.  355.  40  L.  Ed.  731;  Blythe  Co. 
V.  Blythe,  172  U.  S.  644,  43  L.  Ed.  1183. 
The  circuit  court  dismissed  the  bills  on 
another  ground,  namely,  that  the  judg- 
ments of  the  state  courts  could  not  be 
reviewed  by  that  court  on  the  reasons  put 
forward.  This,  also,  was  not  in  itself  a 
decision  of  want  of  jurisdiction  because 
the  circuit  court  was  a  federal  court,  but 
a  decision  that  the  circuit  court  was  un- 
able to  grant  relief  because  of  the  judg- 
ments rendered  by  those  other  courts. 
If  we  were  to  take  jurisdiction  on  this 
certificate,  we  could  only  determine 
T^-hether  the  circuit  court  had  jurisdiction 
ss  a  court  of  the  United  States,  and  as 
tile  decree  rested  on  no  denial  of  its  juris- 
diction as  such,  but  was  rendered  in  the 
exercise  of  that  jurisdiction,  it  is  obvious 
thnt  this  appeal  cannot  be  maintained  in 
that  aspect."  Louisville  Trust  Co.  v. 
Kr  tt,  J91  U.  S.  225,  235,  48  L.  Ed.  159. 
rer^ffirmed  in  Shoesmith  r.  Boot  &  Shoe 
Mf-.   Co.,  198  U.   S.   5S2,   49»L.    Fd.    1172. 

Parties  to  ancillary  proceeding. — The 
jrr'sdiction  of  a  circuit  court  of  the 
United  States  was  nnh'  questioned  in  re- 
spect of  its  authority  under  the  estab- 
lished rules  of  nractice  as  to  bringing  in 
parties  to  ancillary  or  pro  interesse  suo 
proceedings,  and  those  governing  courts 
of  concurrent  jurisdict'rn  as  between 
themselves.  Tt  was  held,  that  this  is  not 
a  ouestion  of  jurisdiction  which  the  act 
of  March  3,  1891,  provides  mav  be  cer- 
tified to  the  supreme  court  of  the  United 
States  directlv.  Bache  v.  Hunt.  193  U. 
S.  523,  48  L.  Ed.  774,  reaffirmed  in  Fowler 
V.  Osgood.  205  U.  S.  535,  51  L.   Ed.  919. 

"Tn  Bache  v.  Hunt,  193  U.  S.  523.  48 
L.  Ed.  774.  Hunt,  as  receiver,  filed  an  in- 
tervening petition  for  the  reimbursement 
of  certain  amounts  paid  by  him  as  receiver 
m  the  extinofuishment  of  orior  claims, 
wb'ch  certain  rai'r'->ad  bonds  and  stocks 
had  been  deposited  to  secure.  A  decree 
was  made  in  his  favor,  and  an  appeal  was 
taken  to  this  court.  It  was  said  that  'the 
jurisdiction  of  the  circuit  court  was  only 
questioned  in  respect  to  its  general  au- 
thority as  a  judicial  tribunal,  and  not  in 
respect    of    its    power    as    a    court    of    the 


United  States.  The  established  rules  of 
practice  as  to  bringing  in  parties  to  an- 
cillary or  pro  interesse  suo  proceedings, 
and  those  governing  courts  of  concurrent 
jurisdiction  as  between  themselves,  were 
alone  involved.'  The  appeal  was  dis- 
missed." Board  of  Trade  v.  Hammond 
Elevator  Co.,  198  U.  S.  4S4,  433,  49  L. 
Ed.    1111. 

Equity  jurisdiction  of  the  court. — "The 
earliest  reported  case  on  this  subject  is 
that  of  the  World's  Columbian  Exposi- 
tion. 18  U-  S.  Appeals  42,  in  which  the 
circuit  court,  sifting  in  equity,  granted  an 
injunction  to  prevent  the  opening  of  the 
exposition  grounds  on  Sunday.  On  ap- 
peal to  the  circuit  court  of  appeals  the 
chief  justice  held,  that  as  the  power  of 
the  circuit  court  to  hear  the  cause  was 
not  denied,  the  appellant  contendin.g  only 
that  the  United  States  had  not  made  a 
case  cognizable  in  a  court  of  equity,  the 
jurisdiction  of  the  circuit  court  was  not 
in  issue  within  the  intent  and  meaning  of 
the  act.  In  Smith  v.  McKay.  161  U.  S. 
355.  40  L.  Ed.  731,  it  was  held,  following 
the  prior  case,  that  the  question  whether 
the  remedy  was  at  law  or  in  enuity  did 
not  involve  the  jurisdiction  of  the  Fed- 
eral court  as  such,  and  the  case  was  dis- 
missed. A  similar  ruling  was  made  in 
Blythe  v.  Hinckley,  173  ij.  S.  .'^Ol,  43  L. 
Ed.  783."  Board  of  Trade  v.  Hammond 
Elevator  Co.,  198  U.  S.  424.  432,  49  L. 
Ed.  nil. 

This  court  has  no  jurisdiction  to  re- 
view by  direct  appeal  a  decree  of  the  cir- 
cuit court  of  the  United  States  dismissing 
a  suit  to  quiet  title  for  want  of  jurisdic- 
tion, the  question  being  whether  the  pro- 
ceedings in  any  or  all  of  the  suits,  at 
law  or  in  eauity,  in  the  state  court  af- 
forded a  defense  (either  by  way  of  res 
adiudicata,  or  because  of  any  control  ac- 
quired by  the  state  court  over  the  sub- 
ject matter),  "to  tkis  bill  in  the  circuit 
court  of  the  United  States,  because  this 
is  not  a  question  affecting  the  jurisdiction 
of  that  court,  but  is  a  question  affecting 
the  merits  of  the  cause,  and  as  such  to  be 
tried  and  determined  bv  that  court  in  the 
exercise  of  its  jurisdiction.  The  circuit 
court  of  the  United  States  cannot,  by 
treating  a  nuestion  of  merits  as  a  ques- 
tion of  jurisdiction,  enable  this  court,  upon 
a  direct  appeal  on  the  question  of  jurisdic- 
ti-^n  onlv,  to  decide  the  question  of  merits, 
except  in  so  far  as  it  bears  upon  the  ques- 
tion whether  the  court  below  had  or  had 
not  jurisdiction  of  the  case."  Hunting- 
ton V.  Lairllev.  176  U.  S.  668,  679.  44  L 
Ed.  630.  distinp-uishing  Blvthe  v.  Hinck- 
ley, 173  U.  S.  501.  43  L.  Ed.  783.  Mr.  Jus- 
tice  Brewer  di«sentinar. 

S^ith  V.  McKay.  161  U.  S.  3-5.  357,  40 
L.  Fd.  731,  was  a  suit  in  equ'ty  for  an 
injunction  to  restrain  the  defendants  from 


436 


APPEAL  AND  ERROR. 


risdiclion    of    the    circuit    or  district  court    of    the    United    States,    as    such,    is 


using  certain  patented  machines  until  they 
had  fully  pakl  the  fees  they  had  agreed 
to  pay  to  the  patentee.  The  defendants 
moved  to  dismiss  the  bill  upon  the  ground 
that  there  was  a  plain,  adequate,  and  com- 
plete remedy  at  law— thus  raising^  only  a 
question  of  equity  jurisdiction.  The  mo- 
tion to  dismiss  was  denied.  After  final 
decree  for  the  plaintiff,  the  case  was 
brought  directly  to  this  court  by  appeal, 
and  it  was  assigned  for  error  that  the  cir- 
cuit court  erred  in  not  dismissing  the  suit 
for  want  of  jurisdiction.  The  position  of 
th-e  appellee  in  that  case  was  that  only 
questions  of  federal  jurisdiction  could  be 
brought  directly  here;  and  that  if  the  cir- 
cuit court  had  jurisdiction  of  the  parties 
and  of  the  matters  in  dispute,  the  fact 
ttet  the  remedy  of  the  plaintiff  was  at 
law,  ratlier  than  in  equity,  raised  no  ques- 
tion of  jurisdiction  within  the  meaning  of 
the  fifth  section  of  the  judiciary  act  of 
March  3d,  1901,  under  which  the  appeal 
was  taken.  The  court  observed  that  the 
question  had  never  been  directly  decided 
by  it,  but  held  that:  "When  the  requisite 
citizenship  of  the  parties  appears,  and  the 
subject  matter  is  such  that  the  circuit 
court  is  competent  to  deal  with  it,  the  ju- 
risdiction of  that  court  attaches,  and 
whether  the  court  should  sustain  the  com- 
plainant's prayer  for  equitable  relief,  or 
sliould  dismiss  the  bill  with  leave  to  bring 
an  action  at  law,  either  would  be  a  valid 
exercise  of  jurisdiction.  If  any  error 
were  committed  in  the  exercise  of  such 
jurisdiction,  it  could  only  be  remedied  by 
an  appeal  to  the  circuit  court  of  appeals. 
161  U.  S.  355.  358."  Louisville  Trust  Co. 
V.  Knott,  191  U.  S.  225,  233.  234,  48  L. 
Ed.  159,  reaffirmed  in  Shoesmith  v.  Boot 
&  Shoe  Mfg.  Co..  198  U.  S.  582,  49  L. 
Ed.   1172. 

Respective  rights  of  receivers  of  state 
amd  federal  courts. — "The  cases  were 
fully  reviewed  in  Louisville  Trust  Co.  v. 
Knott,  191  U.  S.  225,  48  L.  Ed.  159,  in 
which  the  question  involved  was  the  re- 
spective rights  of  a  receiver  appointed  by 
the  state  court  and  one  appointed  by  the 
circuit  court  of  the  United  States.  It  was 
held  that  the  question  was  not  one  of 
jurisdiction  within  the  meaning  of  the 
act  of  March  3,  1891.  the  court  observing: 
The  question  of  jurisdiction  which  the 
statute  permits  to  be  certified  to  this  court 
directly  must  be  one  involving  the  juris- 
diction of  the  circuit  court  as  a  federal 
court,  and  not  simply  its  general  au- 
thority as  a  judicial  tribunal  to  proceed 
in  harmony  with  established  rules  of  prac- 
tice governing  courts  of  concurrent  juris- 
diction as  between  each  other.'  "  Board 
of  Trade  v.  Hammond  Elevator  Co..  198 
U.    S.    424.    4.33.    49    L.    Ed.    1111. 

Res  adjudicata. — Where  the  circuit 
court  dismisses  a  bill  in  equity  on  the 
ground    that    the    judgments    of   the    state 


courts  could  not  be  reviewed  by  that 
court,  because  the  questions  involved  had 
been  decided  by  their  judgments,  which 
could  not  be  reviewed,  this  is  not  in  it- 
self a  decision  of  want  of  jurisdiction  be- 
cause the  circuit  court  is  a  federal 
court,  but  a  decision  that  the  circuit  court 
was  unable  to  gran-t  relief  because  of  the 
judgments  rendered  by  those  other  courts. 
Blythe  v.  Hinckley,  173  U.  S.  501,  43  L. 
Ed.  783,  reaffirmed  in  Kittaning  Coal  Co. 
V.   Zabriskie,  176   U.   S.  681,  44  L.   Ed.  637. 

Summary  jurisdiction  of  bankrupt 
courts. — .\ccording  to  the  well-settled 
rule  that  the  first  of  the  classes  of  cases 
enumerated  in  §  5  of  the  judiciary  act  of 
March  3,  1891,  only  includes  cases  where 
the  question  is  as  to  the  jurisdiction  of  the 
United  States  courts  as  such,  and  the 
question  has  to  be  certified,  a  direct  ap- 
peal cannot  be  taken  to  tljis  court  where 
the  question  is  whether  a  summary  pro- 
ceeding in  bankruptcy  in  a  district  court 
is  proper  to  determine  whether  any  ad- 
\erse  claim  to  the  money  was  asserted 
at  the  time  the  petition  was  filed.  Schweer 
V.  Brown.  195  U.  S.  171,  49  L.  Ed.  144. 

Exemption  of  bankrupt.— While  an  er- 
roneous decision  against  a  right  of  exemp- 
tion asserted  by  a  bankrupt,  and  a 
consequently  erroneous  decision  holding 
that  the  property  forms  assets  of  the  es- 
tate in  bankruptcy,  to  be  administered 
under  the  direction  of  the  bankruptcy 
court,  is  subject  to  correction  in  the  ap- 
propriate mode  for  the  correction  of  er- 
rors, it  does  not  create  a  question  of  ju- 
risdiction proper  to  be  passed  upon  by 
this  court  under  the  provisions  of  the  act 
of  March  3.  J891.  Lucius  v.  Cawthon- 
Coleman  Co.,  196  U.  S.  149.  49  L.  Ed.  425, 
citing  Denver  First  Nat.  Bank  v.  Klug, 
186    U.    S.    203,    46    L.    Ed.    1127. 

Authority  of  state  over  trust  estates. — 
Where  a  circuit  court  of  the  United  States 
has  jurisdiction  of  a  cause  on  the  grounds 
of  diversity  in  citizenship  of  the  parties 
to  the  suit,  and  appoints  a  receiver,  the 
question  of  jurisdiction  to  administer  a 
trust  estate  or  whether  a  state  court  had 
prior  authority  over  the  trust  estate  in- 
volved in  the  litigation,  raised  by  the  in- 
tervention of  a  receiver  appointed  by  the 
state  court,  cannot  be  certified  directh'  to 
the  supreme  court  of  the  L^nited  States 
as  a  case  in  which  the  jurisdiction  of  the 
court  is  in  issue.  Louisville  Trust  Co. 
V.  Knott,  191  U.  S.  225.  48  L.  Ed.  159, 
reaffirmed  in  Shoesmith  v.  Boot  &  Shoe 
Mfg.  Co.,  198  U.  S.  582,  49  L.  Ed.  1172, 
explaining  the  action  of  this  court  in  tak- 
ing jurisdiction  of  Shields  v.  Coleman, 
157  U.  S.  168,  39  L.  Ed.  660. 

A  case  distinguished  and  explained.— 
This  court  in  Shields  z'.  Coleman.  157  U. 
S.  168.  177.  39  L.  Ed.  660.  assumed  juris- 
diction upon  direct  appeal  from  a  circuit 
court    in    a    case    involving    the    question 


APPEAL  AND  ERROR. 


437 


in  issue. ^-^  Questions  of  jurisdiction  applicable  to  the  state  courts,  as  well  as  to 
the  federal  courts,  are  not  within  its  scope. ^^ 

Service  of  Process. — There  is  a  distinction,  however,  between  these  cases 
which  turn  upon  questions  arising  after  a  valid  service  of  process  upon  the  de- 
fendant, with  respect  to  the  mode  of  procedure,  or  the  conflicting  claims  of  the 
state  and  federal  courts,  and  certain  other  authorities  which  turn  upon  the 
validity  of  the  service  of  process  itself  upon  the  defendants;  in  other  words,  which 
involve  the  jurisdiction  of  the  court  in  any  form  over  the  defendant. ^^ 

cccc.  Jurisdiction  over  Separate  and  Distinct  Cases. — In  General. — But  the 
fifth  section  of  the  act  of  March  3,  1891,  does  not  authorize  a  direct  appeal  to 
this  court  in  a  suit  upon  a  question  involving  the  jurisdiction  of  the  circuit  court 
over  another  suit  previously  determined  in  the  same  court.  It  is  the  jurisdiction 
of  the  court  below  over  the'  particular  case  in  which  the  appeal  from  the  decree 
therein  is  prosecuted  ;  that,  being  in  issue  and  decided  against  the  partv  raising  it 
and  duly  certified,  justifies  such    appeal    directly    to    this    court.^"     Since  a  bill 


whether  that  court  had  authority  to  ap- 
point a  receiver  of  property  which  was  at 
the  time  in  the  possession  of  a  receiver 
appointed  by  a  state  court.  As  the  fed- 
eral court  had,  in  that  case,  taken  prop- 
erty out  of  the  physical  possession  of  a 
receiver  of  the  state  court,  this  court  ex- 
pressed its  views  upon  the  question 
whether  the  possession  of  the  state  court 
should  have  been  disturbed  by  the  federal 
court,  and  it  rendered  judgment  accord- 
ingly. But-  the  precise  question  here  pre- 
sented as  to  the  jurisdiction  of  this  court 
under  the  act  of  1891,  on  direct  appeal 
from  the  circuit  court,  was  not  there 
raised  or  considered.  Louisville  Trust  Co. 
r.  Knott.  191  U.  S.  225.  236,  48  L.  Ed. 
159,  reaffirmed  in  Shoesmith  v.  Boot  & 
Shoe  Mfg.  Co.,  198  U.  S.  582,  49  L.  Ed. 
1172. 

Jurisdiction  of  state  court  over  foreign 
executor. — No  appeal  will  lie  from  the 
decision  of  the  circuit  court,  holding  that 
a  state  court  has  no  jurisdiction  over  a 
suit  against  a  foreign  executor,  and  the 
court  is  not  bound  to  remand  the  case 
that  the  state  court  might  determine  that 
question.  Courtney  v.  Pradt,  196  U.  S.  89, 
49   L.   Ed.  398. 

14.  Mexican  Cent.  R.  Co.  v.  Eckman, 
187  U.  S.  429,  47  L.  Ed.  245.  ctting  Smith 
V.  McKay,  161  U.  S.  355.  40  L.  Ed.  731, 
Blythe  v.  Hinckley,  173  U.  S.  501,  43  L. 
Ed.  783. 

15.  Board  of  Trade  ?■.  Hammond  Eleva- 
tor Co..  198   U.   S.  424,  432,  49  L.   Ed.   1111. 

16.  Board  of  Trade  v.  Hammond  Eleva- 
tor Co.,  198  U.  S.  424,  434,  49  L.   Ed.   1111. 

Where  a  judgment  of  a  circuit  court 
dismissed  an  action  removed  to  it  from 
a  state  court  on  the  ground  of  absence  of 
service  on  the  defendant,  and  also  on  the 
ground  that  the  plaintifif  denied  the  va- 
lidity of  the  attempt  to  remove,  it  was 
lield,  that  it  sufficiently  appeared  that 
want  of  jurisdiction  of  the  court  below 
as  a  federal  court  was  the  ground  of  the 
judgment.  Remington  v.  Central  Pacific 
^.  Co.,  198  U.  S.  95,  49  L.  Ed.  959,  citing 
Ex'-elsior  Wooden  Pipe  Co.  r.  Pacific 
Bridge  Co.,  185  U.   S.  282,   46   L.    Ed.  910; 


Shepard  v.  Adams.  168  U.  S.  618,  42  L.  Ed. 
602;  Powers  v.  Chesapeake,  etc.,  R.  Co., 
169  U.   S.   92.  42   L.   Ed.   673. 

In  Remington  z'.  Central  Pac.  R.  Co.. 
198  U.  S.  95,  49  L.  Ed.  959,  validity  of  a 
summons  from  a  state  court,  served  upon 
a  director  of  a  railroad  company,  in  a 
state  other  than  that  in  which  the  com- 
pany was  incorporated,  was  questioned. 
The  court  denied  a  motion  to  set  the  service 
aside,  whereupon  the  case  was  removed 
into  the  circuit  court  of  the  United  States, 
and  the  defendant  renewed  its  motion  to 
set  aside  the  summons.  The  motion  was 
granted,  and  the  action  was  dismissed 
for  want  of  jurisdiction  of  the  defendant. 
It  was  held,  upon  the  authority  of  Shep- 
ard V.  Adams.  168  U.  S.  618,  42  L.  Ed. 
602,  that  this  court  had  authority  to  re- 
view the  judgment  on  writ  of  error. 
Followed  in  Board  of  Trade  v.  Hammond 
Elevator  Co.,  198  U.  S.  424.  435.  49  L.  Ed. 
1111. 

Jurisdiction  over  foreign  corporations. — 
A  judgment  of  the  circuit  court  dismiss- 
ing an  appeal  upon  the  ground  that  it 
had  never  acquired  jurisdiction  over  a 
foreign  corporation  by  proper  service  of 
process,  involves  the  jurisdiction  of  the 
court  within  the  meaning  of  the  act  of 
March  3.  1891.  Shepard  v.  Adams,  168 
U.  S.  618.  42  L.  Ed.  602;  Remington  v. 
Central  Pac.  R.  Co.,  198  U.  S.  95.  49  L. 
Ed.  959;  Board  of  Trade  v.  Hammond 
Elevator  Co..  198  U.  S.  424.  435,  49  L.  Ed. 
1111;  Kendall  v.  American  Automatic 
Loom   Co.,   198  U.    S.  477,  49    L.   Ed.   1133. 

17.  Carey  v.  Houston,  etc..  R.  Co.,  150 
U.  S.  170.  37  L.  Ed.  1041,  reaffirmed  in 
Carey  v.  Houston,  etc..  Ry.  Co.,  161  U.  S. 
115,    40  L.    Ed.   638. 

And  we  held  in  respect  of  the  direct 
appeal  to  this  court  taken  from  the  decree 
of  the  circuit  court  in  this  cause  that 
such  an  appeal  was  not  authorized  simply 
because  the  jurisdiction  of  the  circuit 
court  over  another  suit,  previously  de- 
termined by  the  same  court,  might  be 
involved,  and  we  said:  "It  is  the  juris- 
diction  of   the   court  below   over   the   par- 


438 


APPEAL  AND  ERROR. 


m  equity  to  impeach  and  set  aside  a  decree  of  foreclosure  of  a  railroad  iiwrtgage, 
on  the  ground  of  fraud,  and  to  prevent  the  consummation  of  a  scheme  for  the 
reorganization,  is  a  separate  and  distinct  case  from  the  foreclosure  suit,  no 
question  of  jurisdiction  over  that  suit,  or  over  the  rendition  of  the  decree  passed 
therein,  can  be  availed  of  to  sustain  an  appeal  to  this  court  from  a  decree  of  a 
circuit  court  under  the  provisions  of  the  first  class  of  the  six  cases  specified 
in  §  5  of  the  act  of  March  3,  1891.18 

dddd.  Jurisdiction  Challenged  Must  Be  That  of  Court  Rendering  Decree. — A 
case  cannot  be  brought  here  by  direct  appeal  from  the  circuit  court  as  a  case  in 
which  the  jurisdiction  of  the  court  is  in  issue,  where  the  jurisdiction  challenged 
is  not  that  of  the  court  rendering  the  decree  from  which  the  appeal  is  taken,  but 
is  that  of  the  court  rendering  the  former  decree,  which  is  set  up  in  the  complaint 
as  the  basis  of  the  title  sued  upon.^^ 

eeee.  What  Are  Questions  of  Jurisdiction  ? — aaaaa.  In  General. — Where  a  case 
is  brought  to  the  United  States  supreme  court  from  a  circuit  court  under  the 
first  subdivision  of  §  5  of  the  judiciary  act  of  March  3,  1891,  providing  that  that 
may  be  done  in  any  case  in  which  the  jurisdiction  of  the  court  is  in  issue,  the 
whole  case  is  not  open  for  review  but  only  the  question  of  jurisdiction. 2<*  In  order 


ticular  case  in  which  the  appeal  from  the 
decree  therein  is  prosecuted,  that,  being 
in  issue  and  decided  against  the  party 
raising  it  and  duly  certified,  justifies  such 
an  appeal  directly  to  this  court.  This 
suit  to  impeach  the  decree  of  May  4, 
1888,  and  to  prevent  the  consummation 
of  the  alleged  plan  of  reorganization,  was 
a  separate  and  distinct  case,  so  far  as 
this  inquiry  is  concerned,  from  a  suit  to 
foreclose  the  mortgages  on  the  railroad 
property;  and  no  question  of  jurisdiction 
over  the  foreclosure  suit  or  the  rendition 
of  the  decree  passed  therein  can  be  availed 
of  to  sustain  the  present  appeal  from  the 
decree  in  this  proceeding."  Carey  v. 
HoHSton.  etc.,  R.,  150  U.  S.  170,  37  L.  Ed. 
1041.  reaffirmed  in  Carey  v.  Houston,  etc., 
Ry.  Co.,  161  U.  S.  115,  40  L.  Ed.  638.  re- 
affirmed in  Murphy  v.  Colorado  Paving 
Co.,  166  U.  S.  719,  41  L.  Ed.  1188;  Dar- 
ragh  V.  Manufacturing  Co.,  169  U.  S.  735, 
42    L.    Ed.    1216. 

Jurisdiction  over  habeas  corpus. — The 
Toledo  and  Ann  Arbor  Railway  Company, 
which  connected  with  Michigan  South- 
ern Railway  in  the  carrying  on  of  inter- 
state commerce,  filed  a  bill  in  the  circuit 
court  to  restrain  the  Michigan  Southern 
from  refusing  to  receive  its  cars  used  in 
such  commerce,  and  discriminating 
against  it,  on  the  ground  that  it  employed 
engineers  who  were  not  members  of  the 
Brotherhood  of  Locomotive  Engineers. 
An  injunction  was  issued,  and  a  few  days 
later  the  Lake  Shore  applied  for  an  or- 
der of  attachment  against  some  of  its  em- 
ployees who  had  refused  to  haul  cars 
and  perform  service  for  them,  thus  hin- 
dering them  from  complying  with  the 
order  of  the  court  in  respect  to  the  To- 
ledo and  Ann  Arbor  Company.  A  rule 
to  show  cause  was  i'=sued.  and  such  pro- 
ceedings had  thereunder  that  one  of  the 
employees  was  adjud-ged  guilty  of  con- 
tempt, was  fined,  and  was  ordered  to  be 
committed  until  payment  of  the  fine.  This 


employee  applied  to  the  circuit  court  for 
a  writ  of  habeas  corpus.  The  petition^ 
after  setting  the  facts  forth,  claimed  that 
the  circuit  court  had  no  jurisdiction  of 
the  cause  in  which  the  original  order  of 
injunction  had  been  issued,  for  reasons 
stated,  and  further,  that  it  had  no  juris- 
diction of  the  petitioner's  person,  because 
he  was  no  party  to  that  suit,  and  had  not 
been  served  with  process.  The  applica- 
tion was  denied  and  the  petition  dis- 
missed, from  which  judgment  the  peti- 
tioner appealed  to  this  court.  Held: 
"The  jurisdiction  of  the  circuit  court  over 
the  petition  for  habeas  corpus  was  not 
in  issue,  and  a  decision  in  respect  thereof 
was  not  rendered  against  appellant,  but, 
on  the  contrary,  jurisdiction  was  enter- 
tained. Granted,  as  contended,  that  the 
jurisdiction  to  discharge  the  prisoner  in 
this  case  depended  upon  a  want  of  juris- 
diction to  commit  him  in  the  other,  j'et 
the  jurisdiction  invoked  by  the  petitioner 
was  the  jurisdiction  to  remand  as  well  as 
to  discharge,  or,  in  other  words,  the 
power  to  hear  and  determine  whether  he 
was  lawfully  held  in  custody  or  not.  This 
appeal,  therefore,  as  ruled  in  Carey  v. 
Houston,  etc..  R.  Co.,  150  U.  S.  170,  37 
L.  Ed.  1041,  and  for  the  reasons  therein 
given,  does  not  come  within  the  first  of 
the  classes  specified  in  the  fifth  section." 
In  re  Lennon,  150  U.  S.  393,  400.  37  L. 
Ed.   1120. 

18.  Carey  v.  Houston,  etc.,  R.  Co.,  150 
U.    S.    170.   37   L.    Ed.   1041. 

19.  Empire,  etc.,  Min.  Co.  7'.  Hanley^ 
205  U.  S.  225.  51  L.  Ed.  779.  citing  Tn  re 
Lennon,  1.50  U.  S.  393,  37  L.  Ed.  1120. 

20.  Mexican  Central  R.  Co.  v.  Eckman, 
187  U.  S.  429,  47  L.  Ed.  245.  citing  Hor- 
ner V.  United  State";,  143  U.  S.  570,  36  L. 
Ed.  266;  United  States  v.  Jahn,  155  U. 
S.  109.  39  L.  Ed.  87;  Tn  re  Lehigh,  etc., 
Mfe-.  Co..  156  U.  S.  322.  39  L.  Ed.  438; 
Huntington  v.  Laidly,  176  U.  S.  668.  44 
L.  Ed.  630;     Wecker  v.  National  Enamel- 


APPEAL  AND  ERROR. 


439 


to  bring  a  case  within  the  first  class,  not  only  must  it  appear  of  record  that  a 
question  of  jurisdiction  was  involved  in  the  decision  below,  but  that  question, 
and  that  alone,  must  be  certified  to  this  court.  If  both  a  question  of  jurisdiction 
and  other  questions  were  before  the  court  below,  and  a  writ  of  error  is  allowed 
in  the  usual  and  general  form  to  review  its  judgment,  without  certifying  or 
specifying  the  question  of  jurisdiction,  this  court  cannot  take  jurisdiction  under 
this  clause  of  the  statute. 21  The  power  to  certify  to  the  supreme  court  of  the 
United  States  other  than  jurisdictional  question  is  vested  only  in  the  circuit  court 
of  appeals. -2 

bbbbb.  Specific  Applications  of  General  Rule. — Diverse  Citizenship. — The 
question  whether  a  circuit  court  has  jurisdiction  of  an  action  by  a  citizen  of  one 
state  against  a  citizen  of  another  state  brought  under  a  state  statute  authorizing 
a  creditor  in  certain  cases  to  bring  an  action  on  a  claim  before  it  is  due,  and  to 
have  an  attachment  against  the  property  of  the  debtor,  gives  this  court  jurisdiction 
under  §  5  of  the  circuit  court  of  appeals  act  of  March  3,  1891.23 

Action  of  Court  in  Allowing  Attorney's  Fees. — Of  course  an  assignment  of 
error  to  the  action  of  the  ch-cuit  court  in  allowing  an  attorney's  fee,  presents  no 
question  of  jurisdiction,  and  therefore  the  action  of  the  circuit  court  in  this  re- 
gard cannot  be  reviewed. ^^ 

Jurisdiction  Regardless  of  Amount. — The  question  whether  the  circuit 
courts  of  the  United  States  have  jurisdiction  of  actions  in  which  the  United 
States  is  plaintiff,  without  regard  to  the  sum  or  valu€  in  dispute,  may  be  certified 
up  under  the  fifth  section  of  the  Act  of  March  3,  1891,  c.  517,  2  Stat.  826.2^ 

Jurisdiction  of  Cause  Removed  from  State  Oourt. — Where  the  plaintiff 
contends  that  the  circuit  court  of  the  United  States  has  no  jurisdiction  to  enter- 
tain the  case  and  to  render  final  judgment  complained  of,  because  the  case  has 
not  been  duly  removed  into  the  court  from  the  state  court  in  which  it  has  been 
commenced,  the  question  whether  the  circuit  court  of  the  United  States  has  any 
jurisdiction  whatever  of  the  case  is  thus  in  issue,  and  if  the  question  of  its  juris- 
diction has  been  duly  certified,  the  case  is  rightly  brought  from  the  circuit  court 
of  the  United  States  directly  to  this  court  under  the  act  of  March  3,  1891,  c.  517, 
§  5,  upon  the  question  of  jurisdiction  only.-^ 


ing  Co..  204  U.  S.  176,  51  L.  Ed.  4.S0; 
Excelsior  Wooden  Pipe  Co.  v.  Pacific 
Bridge  Co.,  185  U.  S.  282,  46  L.  Ed.  910, 
citing  and  approving  Shields  z'.  Coleman, 
157    U.    S.    168,    39    L.    Ed.    660. 

It  is  essential  that  the  question  of  ju- 
risdiction alone  should  be  certified  to  this 
court  from  the  trial  court.  Shields  z'. 
Coleman.  157  U.  S.  168,  176.  39  L.  Ed. 
660;  Maynard  v.  Hecht,  151  U.  S.  324, 
38    L.    Ed.    179. 

Where  a  case  is  brought  from  the  cir- 
cuit to  the  supreme  court  under  the  first 
«i'bd'visinn  of  §  5  of  the  judiciary  act  of 
March  3,  1891,  providing  that  this  may- 
be done  'n  any  case  in  which  the  jurisdic- 
tion of  the  court  is  in  issue,  the  question 
of  jrr'sdiction  alone  is  certified  to  that 
court  from  the  court  below  for  decision. 
Mexican  Central  R.  Co.  r.  Eckman..lS7 
TT.  S.  42^1.  47  L.  Ed.  ''45.  citing  Smith  v. 
McKay.  IRI  U.  S.  355.  40  L.  Ed.  731; 
P.hthe  f.  Hincklev,  173  U.  S.  501,  43  L. 
Ed.  783. 

After  the  dismissal  of  a  bill  by  the  cir- 
cuit court,  on  the  ground  of  lack  of  ju- 
rrsHiction,  since  no  diversity  of  citizen- 
ship appears,  and  the  question  of  jurisdic- 
tion is  certified  to  this  court,  on  an  appeal 
under  the   first  of  the   class   of  cases  enu- 


merated in  §  5  of  the  judiciary  act  of 
March  3,  1891,  we  are  confined  to  a 
consideration  of  the  question  of  jurisdic- 
tion alone.  Hennessy  v.  Richardson  Drug 
Co..    189   U.    S.   25,   47   L.   Ed.   697. 

21.  Maynard  z'.  Hecht,  151  U.  S.  324. 
38  L.  Ed.  17«;  Moran  v.  Hagerman.  151 
U.  S.  329,  38  L.  Ed.  181;  Colvin  v.  Jack- 
sonville. 157  U.  S.  368,  39  L.  Ed.  736^^ 
Davis  Mfg.  Co.  z>.  Barber,  157  U.  S. 
673,  39  L.  Ed.  8,53;  The  Bayonne.  159 
U.  S.  687,  40  L.  Ed.  306;  Van  .Wagcnea 
z:  Sewall,  160  U.  S.  369,  40  L.  Ed.  460; 
Chappell  z:  United  States,  160  U.  S.  4&9, 
507,  40  L.  Ed.  51©,  reaffirmed  in  Merritt  t/. 
Bowdoin  College.  167  U.  S.  745,  42  L. 
Ed.    1209. 

22.  Arkansas  v.  Schlierholz.  179  U.  S. 
598,  45  L.  Ed.  335,  reaffirmed  in  Richards 
z\  Michigan,  etc..  R.  Co.,  186  U.  S.  479, 
46  L.  Ed.  1259.  citing  and  approving  Bar- 
des  7'.  Hawarden  First  Nat.  Bank,  175  U. 
S.    526.    .528,  44  L.   Ed.  261. 

23.  Schunk  v.  Moline,  etc..  Co.,  147  U. 
S.  500,  37  L.   Ed.  255. 

24.  Schunk  v.  Moline,  etc.,  Co..  147  U. 
S.   .500.   37   L.    Ed.   255. 

25.  United  States  r.  Savward,  160  U. 
S.   -193.    40   L..  Ed.    508. 

26.  Powers  v.    Chesapeake,  etc.,   R.    Co., 


440 


APPEAL  AND  ERROR. 


STifficiency  of  Service  of  Process. — The  question  of  whether  or  not  the  dis- 
trict court  acquired  jurisdiction  by  a  proper  service  of  process  involves  the  juris- 
diction of  the  court  within  the  meaning  of  §  5  of  the  act  of  March  3,  1891,  and 
lience  may  be  reviewed  on  a  writ  of  error  directly  sued  out  to  this  court.-' 

Equity  Jurisdiction  of  Circuit  Court. — Appeals  or  writs  of  error  may  be 
taken  directly  from  the  circuit  courts  to  this  court  only  in  cases  in  which  the  ju- 
risdiction of  those  courts  is  in  issue,  that  is,  their  jurisdiction  as  federal  courts, 
the  question  alone  of  jurisdiction  being  certified  to  this  court.  Where  the  circuit 
court  holds  that  the  remedy  is  at  law  and  not  in  equity,  that  construction  is  not 
a  decision  that  the  circuit  court  had  no  jurisdiction  as  a  court  of  the  United 
States. 2s  Whether  the  bill  shows  facts  sufficient  to  invoke  the  consideration  of 
a  court  of  equity  is  not  such  a  question  of  jurisdiction  as  is  referred  to  in  the  ju- 
diciary act  of  March  3,  1891,  c.  517,  and  we  have  therefore  no  concern  with  that 
question. -9 

Adequate  Remedy  at  Law. — W^here  the  circuit  court  has  jurisdiction  of  the 
parties  and  of  the  matters  in  dispute,  the  fact  that  it  is  contended  that  it  has  no 
jurisdiction  on  its  equity  side  because  the  complainant  has  a  plain,  adequate  and 
complete  remedy  at  law,  raises  no  question  of  jurisdiction  wutiiin  the  meaning  of 
the  act  of  March  3,  1891.  providing  that  "in  any  case  in  which  the  question  of  the 
jurisdiction  of  the  court  is  in  issue,  in  such  case  the  question  of  jurisdiction  alone 
shall  be  certified  to  the  supreme  court  from  the  court  below  for  decision."  Be- 
cause whether  a  case  has  been  made  out  by  the  plaintiff  in  equity  or  at  law  is  not 
a  question  that  puts  in  issue  the  jurisdiction  of  the  court  in  the  sense  in  which  that 
phrase  is  used  in  the  judiciary  act.-"° 

Demurrer  to  Bill  in  Equity. — Where  the  only  question  of  jurisdiction  is 
raised  by  a  demurrer  to  a  petition,  which  is  upon  two  grounds ;  first,  that  a  proper 
and  final  decree  had  been  made  adjudicating  all  the  issues  in  the  cause;  and  sec- 
ond, that  the  court  had  no  power  or  jurisdiction  to  grant  the  petitioners  relief, 
this  is  in  substance  only  a  general  demurrer  to  the  bill  for  want  of  equity,  and 
presents  no  question  of  jurisdiction  within  the  meaning  of  the  act  of  March  3, 
1891.31 

Judgment  of  Dismissal  for  Want  of  Jurisdiction. — The  provisions  of  the 


169  U.  S.  92,  42  L.  Ed.  67.3,  distinguishing 
Smith  V.  McKay,  161  U.  S.  355.  40  L.  Ed. 
731. 

27.  Shepard  r.  Adams,  168  U.  S.  618. 
42  L.  Ed.  602,  distinguishing  Smith  v. 
McKay,  161  U.   S.   355,  40   L.    Ed.   731. 

28.  Smith  v.  McKay,  161  U.  S.  355,  40 
L.  Ed.  731;  Blythe  Co.  v.  Blythe,  172  U. 
S.  644,  43  L.  Ed.  1183;  Blythe  v.  Hinck- 
ley, 173  U.  S.  501,  506,  43  L.  Ed.  783.  re- 
affirmed in  Kittaning  Coal  Co.  v.  Zab- 
riskie.  176  U.  S.  681,  44  L.  Ed.  637;  Ill- 
inois Central  R.  Co.  v.  Adams,  180  U.  S. 
28.  45  L.  Ed.  410;  Giles  v.  Harris,  189  U. 
S.  475,  47  L.  Ed.  909;  Louisville  Trust 
Co.  V.  Knott,  191  U.  S.  225,  48  L.  Ed.   159. 

If  complainant  brings  an  action  at  law. 
and  the  question  of  federal  jurisdiction 
is  in  issue,  or  if  this  decree  should  be  here- 
after reversed  and  federal  and  equity  ju- 
risdiction sustained,  it  will  be  time  enough 
if  final  judgment  or  decree  passes  against 
defendant  in  the  circuit  court  for  the 
question  of  jurisdiction  to  be  certified. 
United  States  v.  Jahn,  155  U.  S.  109,  39 
L.  Ed.  87;  Smith  r.  McKay.  161  U.  S. 
35.'-  40  L.  Ed.  731;  New  Orleans  v.  Em- 
sheixner.  181  U.  S.  153,  154,  45  L.  Ed.  794. 

29.  26   Stat.   826.   §   5;   Smith  v.   McKay, 


161  U.  S.  355,  40  L.  Ed.  731;  Building 
and  Loan  Association  z\  Price,  169  U.  S. 
45,  46.  42  L.  Ed.  655.  Smith  f.  McKay,  is 
reviewed  at  length  and  affirmed  in  Louis- 
ville Trust  Co.  V.  Knott,  191  U.  S.  225, 
48   L.   Ed.   159. 

36.  Smith  v.  McKay,  161  U.  S.  355,  40 
L.  Ed.  731.  citing  Murphy  r.  Colorado 
Paving  Co..  166  U.  S.  719,  41  L.  Ed.  1188; 
World's  Columbian  Exposition  Case,  18 
U.  S.  App.  42,  reaffirmed  in  Black  r.  Black, 
163  U.  S.  678,  41  L.  Ed.  318;  Tucker  v. 
McKay.  164  U.  S.  701,  41  L.  Ed.  1180, 
distinguished  in  Shepard  v.  Adams,  168 
U.  S.  618,  42  L.  Ed.  602.  In  this  case  the 
court  said:  "When  the  requisite  citi- 
zenship of  the  parties  appears,  and  the 
subject  matter  is  such  that  the  circuit 
court  is  competent  to  deal  with  it.  the 
jurisdiction  of  that  court  attaches,  and 
whether  the  court  should  sustain  the  com- 
plainant's prayer  for  equitable  relief,  or 
should  dismiss  the  bill  with  leave  to  bring 
an  action  at  law,  either  would  be  a  valid 
exercise  of  jurisdiction.  If  any  error  were 
committed  in  the  exercise  of  such  juris- 
diction, it  could  only  be  remedied  by  an 
appeal  to  the  circuit  court  of  appeals." 

ft.  Vpn  Wpeepen  v.  Sewall,  160  U.  S. 
369,  40  L.   Ed.   460. 


APPEAL  AND  ERROR. 


441 


act  of  February  25,  1889,  c.  236,  25  Stat.  693,  entitled  an  act  to  provide  for  writs 
of  error  or  appeals  to  the  supreme  court  of  the  United  States  in  all  cases  involv- 
ing the  jurisdiction  of  the  courts  below,  and  the  provisions  of  the  act  of  March  3, 
1891,  c.  517,  26  Stat.  826,  providing  that  appeals  or  writs  of  error  may  be  taken 
from  the  circuit  courts  direct  to  the  supreme  court  in  any  case  in  which  the  ju- 
lisdiction  of  the  court  is  in  issue,  "plainly  disclose  the  intent  of  congress  that  a 
party  whose  suit  has  been  dismissed  by  a  circuit  court  for  want  of  jurisdiction 
shall  have  the  right  to  have  such  judgment  reviewed  by  this  court.  And  we  have 
accordingly  heretofore  held  that  the  action  of  the  circuit  courts  in  such  cases  is 
subject  to  our  revision. "^^ 

And  although  the  question  whether  the  amount  in  controversy  was  suf- 
ficient to  give  the  circuit  court  jurisdiction  is  purely  one  of  fact,  and  although 
that  question  was  not  submitted  to  the  jury,  but  was  passed  on  by  the  court  upon 
affidavit,  upon  a  writ  of  error,  this  court  may  nevertheless  consider  the  facts  dis- 
closed by  the  affidavits,  and  is  not  restricted  to  the  errors  of  law  shown  by  the  rec- 
ord in  determining  whether  the  judgment  of  the  circuit  court,  dismissing  the  suit 
for  want  of  jurisdiction,  was  warranted  by  the  facts  of  the  case  as  they  are  dis- 
closed in  the  record. '^•^ 

Vacation  of  Judgments  and  Decrees. — Where  in  a  petition  for  a  rehearing 
it  is  alleged  that  a  final  decree  was  rendered,  fully  and  finally  disposing  of  the 
cause,  which  exhausted  all  the  jurisdiction  of  the  court,  and  that  it  was  beyond  its 
power  and  jurisdiction  to  vacate  such  former  decree  by  subsequent  proceedings, 
it  would  seem  that  the  question  thus  raised  of  the  authority  to  vacate  and  set  aside 
a  previous  decree  of  the  court  involved  a  power  to  exercise  the  jurisdiction  already 
vested  rather  than  the  cjuestion  of  jurisdiction  itself,  within  the  meaning  of  the 
act  of  March  3,  1891.34 


32.  Williams  v.  Nottawa,  104  U.  S.  209, 
26  L.  Ed.  719;  Barry  v.  Edmunds,  116  U. 
S.  550,  29  L.  Ed.  729;  Hartoa:  v.  Memory, 
116  U.  S.  588,  29  L.  Ed.  725;  Morris  v. 
Gilmer.  129  U.  S.  315,  32  L.  Ed.  690;  De- 
putron  V.  Young,  134  U.  S.  241.  33  L.  Ed. 
923;  Lehigh  Min.,  etc.,  Co.  v.  Kelly,  160 
U.  S.  327,  40  L.  Ed.  444;  Wetmore  v. 
Rymer,  169  U.  S.  115,  118.  42  L.  Ed.  682; 
Merritt  v.  Bowdoin  College.  169  U.  S. 
r.51,  42  L.  Ed.  850. 

A  final  decree  of  the  circuit  court  dis- 
missing for  want  of  jurisdiction  a  cause 
under  the  act  of  March  3,  1875.  c.  137, 
§  5  which  "provides  that  if  in  any  suit  com- 
menced in  a  circuit  court  of  the  United 
States,  it  appear  to  the  satisfaction  of 
that  court,  at  any  time  after  the  suit  is 
brought,  'that  such  suit  does  not  really 
and  substantially  involve  a  dispute  or  con- 
troversy properly  within  the  jurisdiction 
of  said  circuit  court,'  that  court  shall  dis- 
miss the  suit,"  is  reviewable  by  this  court 
under  the  act  of  March  3,  1891,  c.  517. 
§  5.  Huntington  v.  Laidley,  176  U.  S.  668, 
44  L.  Ed.  630,  citing  Wetmore  v.  Rymer, 
169  U.  S.  115,  42  L.  Ed.  682. 

The  grounds  upon  which  a  judge  of  a 
circuit  court  of  the  United  States  bases 
his  decision  dismissing  the  suit  upon  ex- 
ceptions to  allegations  of  damage  for 
breach  of  a  contract,  that  the  damages 
had  been  claimed  and  magnified  fraudu- 
lentU-  for  the  purpose  of  giving  the 
United  States  circuit  court  jurisdiction, 
when  in  truth  they  were  less  than  $2,000, 
are   re-examinable    in    the    supreme    court 


of  the  United  States  on  writ  of  error. 
Globe  Refining  Co.  v.  Landa  Cotton  Oil 
Co..  190  U.  S.  540,  47  L.  Ed.  1171,  citing 
Wetmore  v.  Rymer,  169  U.  S.  115,  42  L. 
Ed.    682. 

33.  Wetmore  v.  Rymer,  169  U.  S.  115, 
42    L.    Ed.    682. 

Where  an  action  is  dismissed  bj'  the 
circuit  cotirt  by  the  authority  given  by  § 
5  of  the  act  of  March  3,  1875,  in  which  it 
is  provided  that  "if  in  any  suit  commenced 
in  a  circuit  court  *  *  *  Jt  shall  appear 
to  the  said  circuit  court,  at  any  time  after 
such  suit  has  been  brought  *  *  *  t\\Bit 
such  suit  does  not  really  and  substantially 
involve  a  dispute  or  controversy  properly 
within  the  jurisdiction  of  said  circuit 
court,  or  that  the  parties  to  such  suit  have 
been  improperly  or  collusively  made  or 
joined  either  as  plaintiffs  or  defendants  for 
the  purpose  of  creating  a  case  cognizable 
*  *  *  under  this  act."  the  court  shall 
dismiss  the  suit,  the  propriety  of  the  dis- 
missal may  be  brought  here  for  review  by 
virtue  of  §  5  of  the  act  of  March  3,  1891. 
"The  order  of  the  court  is  subject  to  re- 
view in  this  court  in  respect  of  the  rul- 
ings of  law  and  findings  of  fact  upon  the 
evidence.  Wetmore  v.  Rymer,  169  U.  S. 
115,  42  L.  Ed.  682."  Smithers  v.  Smith, 
204   U.    S.    632.    640.    51    L.    Ed.    656. 

34.  Van  Wagenen  v.  Sewall,  160  U.  S. 
369,  40  L.  Ed.  460;  Carey  v.  Houston,  etc., 
R.  Co.,  150  U.  S.  170,  37  L.  Ed.  1041; 
Water  Co.  v.  Babcock,  173  U.  S.  702,  43 
L.  Ed.  1186. 


AA2 


APPEAL  AND  ERROR. 


Discretionary  Matters. — Upon  an  appeal  to  this  court  from  the  decision 
of  the  circuit  court  under  this  section  mere  matters  of  procedure,  such  as  the 
granting  or  refusing  of  motions  for  new  trials,  and  questions  respecting  amend- 
ments to  the  pleadings,  even  if  such  questions  were  reviewable  here  generally  on 
a  writ  of  error,  are  not  reviewable  in  this  proceeding,  because  they  do  not  go  to 
the  question  of  jurisdiction  in  the  court  below,  which  is  the  only  question  we  can 
consider  upon  the  writ  of  error.^s 

ffff.  Necessity  for  Finality  of  Judgment. — It  was  settled,  soon  after  the  pas- 
sage of  the  act  of  1891,  that  cases  in  which  the  jurisdiction  of  the  district  or 
circuit  courts  was  in  issue  could  be  brought  to  this  court  only  after  final  judgment. 
The  subject  was  carefully  considered  in  the  opinion  of  Air.  Justice  Lamar,  and  the 
conclusion  reached  was  in  accordance  with  the  general  rule  that  a  case  cannot  be 
brou^^ht  to  this  court  in  parcels.^^'     There  is  no  provision  in  the  act  which  can  be 


35.   Mexican   Central   R.   Co.  v.  Pinkney, 
149  U.   S.  194,  37  L.  Ed.  699. 

S6.   McLish  V.   Roff.   141   U.    S.    661,   666, 
35    L.    Ed.    893;    Chicago,    etc.,    R.    Co.    v. 
Roberts.    141    U.    S.    690,    35    L.    Ed.    90.5; 
American    Construction    Co.    v.    Jackson- 
ville, etc.,  R.  Co.,  148  U.  S.  372,  378,  37  L. 
Ed.   486;  Hurlbut  Land,  etc.,  Co.  v.  Trus- 
cott,  165  U.  S.  719.  41  L.  Ed.  1185;  Illinois 
Central  R.  Co.  v.  Brown.  156  U.  S.  386.  39 
L   Ed.  461;  Wecker  v.  National  Enameling 
Co.,  304  U.  S.  176,  51  L.  Ed.  430;  Reaves  z^. 
Oliver,  168  U.  S.  704,  42  L.   Ed.   1212;  Lu- 
bin  V.  Edison,  195  U.  S.  624,  625.  49  L.  Ed. 
349;   Wirgman  v.   Persons,   196   U.   S.   636, 
49  L.  Ed.  62<);   Farmers'  Bank  v.   Roselle, 
172  U.  S.  641.  43  L.  Ed.  1180;  Jeske  v.  Cox, 
171    U.    S.    685.   43    L.    Ed.    1179;    Perea    v. 
Perea  de  Harrison,  195  U.  S.  623,  49  L.  Ed. 
349;  International  Trust  Co.  v.  Weeks,  193 
U.     S.     667,    48    L.     Ed.     839;    Johnson    v. 
Thomas.    197    U.    S.    619.    49    L.    Ed.    909; 
Shoesmith  v.  Boot   &  Shoe   Mfg.   Co.,   198 
U.  S.  582,  49  L.  Ed.  1172;  Wishkah  Boom 
Co.  V.  United   States,  202  U.   S.  .613,  50  L. 
Ed.  1171;  Smith  v.  Iverson,  203  U.   S.  586, 
51  L.  Ed.  329;  Ex  parte  National  Enamel- 
ing Co.,  201  U.  S.  156,  161,  50  L.  Ed.  707; 
Bowker  v.   United    States.    186   U.    S.    135, 
138,  46  L.  Ed.  1090,  reaffirmed  in  Smith  v. 
Iverson,  203  U.  S.  586,  51  L.  Ed.  329:  Ger- 
man Nat.  Bank  z'.  Speckert.  181  U.  S.  405, 
409,  45  L.  Ed.  926;  United  States  r.  Rider, 
163    U.    S.    132,   41    L.    Ed.    101;    Blythe    v. 
Hinckley,    173    U.    S.    501.    506,    43  L.  Ed. 
783,    reaffirmed    in    Kittaning   Coal    Co.    v. 
Zabriskie,   176   U.    S.    681,    44   L.    Ed.    637; 
Railroad   Co.  v.   Wiswall.  23  Wall.  507.  22 
L.    Ed.    103;    Richmond,    etc.,    R.    Co.    v. 
Thoumn,  134  U.  S.  45.  33  L.  Ed.  871;  Mis- 
souri Pac.  P.  Co.  7'.   Fitzgerald,  160  U.   S. 
556.    40    L.    Ed.    536. 

"We  have  heretofore  d-^termined  that  re- 
view by  certificate  is  limited  by  the  act  of 
March  3,  1891.  to  certificates  by  the  cir- 
cuit coi^rts,  made  after  final  judgment,  of 
a  question  'n  issue  as  to  their  own  iuris- 
diction;  and  to  certificates  by  the  circuit 
courts  of  appeal  of  questions  of  law  in  re- 
lation to  which  the  advice  of  this  court  is 
sought.  United  Spates  ?'.  Rider,  163  U.  S. 
132,  41  L.  Ed.  101."  Blvthez'.  Hinckley.  173. 
U.  S.  501,  506,  43  L.  Ed.  783,  realT.rmed  in 


Kittaning  Coal  Co.  v.  Zabriskie,  176  U.  S. 
681,   44    L.    Ed.    637. 

Order  of  remand. — It  has  been  adjudged 
that  a  writ  of  error  or  appeal  to  this  court 
under  §  5,  in  a  case  concerning  the  juris- 
diction of  the  circuit  court,  does  not  lie 
until  after  final  judgment,  and  cannot, 
therefore,  be  taken  from  an  order  of  the 
circuit  court  remanding  a  case  to  a  state 
court,  there  being,  as  said  by  Mr.  Justice 
Lamar,  speaking  for  this  court,  "no  pro- 
vision in  the  act,  which  can  be  construed 
into  so  radical  a  change  in  all  the  exist- 
ing statutes  and  settled  rules  of  practice 
and  procedure  of  federal  courts,  as  to 
extend  the  jurisdiction  of  the  supreme 
court  to  the  review  of  jurisdictional  cases 
in  advance  of  the  final  judgments  upon 
them."  McLish  v.  Roff.  141  U.  S.  661.  3.5 
L.  Ed.  893;  Railroad  Co.  v.  Wiswall,  23 
Wall.  507,  22  L.  Ed.  103;  Richmond,  etc.. 
R.  Co.  r.  Thouron,  134  U.  S.  45,  33  L. 
Ed.  871;  Chicago,  etc..  R.  Co.  v.  Roberts. 
141  U.  S.  690,  35  L.  Ed.  905;  Missouri  Pac. 
R.  Co.  r.  Fitzgerald,  160  U.  S.  556,  40  L. 
.  Ed.    536. 

Where  after  removal,  plaintiff  files  his 
motion  to  remand  the  case  to  the  state 
court,  on  the  ground  that  there  was  not 
in  the  case  a  controversy  between  citizens 
of  different  states  and  no  separable  con- 
troversy between  the  plaintiff  and  the  de- 
fendant within  the  meaning  of  the  re- 
moval act,  but  the  court,  upon  hearing 
the  motion,  refuses  to  remand  the  cause, 
and  afterward,  plaintiff  electing  to  stand 
upon  his  motion  to  remand,  and  refusing 
to  recognize  the  jurisdiction  of  the  United 
States  court  or  to  proceed  with  the 
prosecution  of  his  case  therein,  upon  mo- 
tion of  the  defendant  the  court  orders  the 
case  to  be  dismissed,  and  renders  judg- 
ment that  the  plaintiff  take  nothing  by 
the  suit,  and  that  the  defendants  go  hence 
without  day  and  recover  their  costs 
against  the  plaintiff,  this  is  such  a  final 
judgment  that  the  question  of  jurisdic- 
tion may  be  certified  to  this  court  under 
§  5  of  the  circuit  court  of  appeals  ,act. 
Wecker  v.  National  Enameling  Co.,  204 
U.  S.  176,  51  L.  Ed.  430.  citing^McLish  V. 
Roff,    141   U.    S.   661,  35   L.    Ed.    893. 


APPEAL  AND  ERROR. 


443 


construed  into  so  radical  a  change  in  all  the  existing  statutes  and  settled  rules  of 
practice  and  procedure  of  federal  courts  as  to  extend  the  jurisdiction  of  the  su- 
preme court  to  review  of  jurisdictional  cases  in  advance  of  the  final  judgments 
upon  them,^'  The  rule  that  under  the  act  of  March  3rd,  1891,  the  trial  court  can- 
not send  up  a  question  by  certificate,  as  to  its  own  jurisdiction  until  after  the 
rendition  of  final  judgment,  is  applicable  to  a  question  arising  under  the  bankruptcy 
act  of  July  1,  1898;--^  ^    ^ 

gggg.  IVhat  Judge  May  Certify.— The  district  judge,  who  as  a  judge  of  the 
circuit  court  lawfully  allowed  the  appeal  and  signed  the  citation,  is  also  authorized 
to  certify  to  this  court  a  question  decided  by  the  circuit  judge,  or  allow  an  appeal 
from  his  decree;  because  the  district  judge  is  a  judge  of  the  circuit  court  of  the 
United  States,  and  as  such  has  authority  to  allow  the  appeal  and  to  sign  the  cita- 
tion, even  if  the  decree  was  rendered  by  the  circuit  judge.^^ 

hhhh.  The  Certificate — aaaaa.  In  General. — The  rules  in  relation  to  certifi- 
cates of  division  of  opinion  in  civil  cases  under  §§  650,  652,  693,  of  the  Revised 
Stattites  will  be  applied  in  the  certification  of  cases  uixier  this  statute.-^f* 
In  the  language  of  Mr.  Chief  Justice  Fuller,  the  intention  of  congress  as 
to  the  certification  mentioned  in  that  section,  and  also  in  section  six  in  relation  to 
the  circuit  courts  of  appeals,  is  to  be  arrived  at  in  the  light  of  the  rules  therelo- 
lore  prevailing  in  reference  to  certificates  on  division  of  opinion.^i 

bbbbb.  Necessity  for. — The  general  rule  is  that  the  certificate  is  an  absolute 
prerequisite  to  the  exercise  of  jurisdiction  here  under  this  section.-^s  and  if  it  be 


37.  McLish  V.  RofiF.  141  U.  S.  661,  35 
L.  Ed.  893,  reaffirmed  in  Chicago,  etc., 
R.  Co.  V.  Robefts,  141  U.  S.  690.  35  L. 
Ed.  905;  Smith  v.  Iverson,  203  U.  S.  586, 
51  L.  Ed.  329;  Bowker  v.  United  States, 
18«  U.    S.    135,    46    L.    Ed.    1090. 

38.  Bardes  v.  Hawarden  First  Nat. 
Bank,  175  U.  S.  526,  44  L.  Ed.  261.  citing 
McLish  V.  Roff,  141  U.  S.  661,  35  L.  Ed. 
893. 

"It  was  early  held  under  that  act  (act 
of  March  3rd,  1891),  McLish  v.  Rofif.  141 
U.  S.  661,  35  L.  Ed.  893,  that  appeals  or 
writs  of  error  in  cases  in  which  the  juris- 
diction of  the  court  was  in  issue  could 
only  be  taken  directly  to  this  court  after 
(in,Tl  judgment;  and  subsequently  in 
United  States  v.  Rider,  163  U.  S.  132,  41 
L.  Ed.  101,  that  review  by  appeal,  writ  of 
error,  or  otherwise,  must  be  as  pre- 
scribed by  that  act,  and  that  the  use  of 
certificate  was  limited  by  it  to  the  cer- 
tificate by  the  courts  below,  after  final 
judgment,  of  questions  made  as  to  their 
own  jurisdiction,  and  to  the  certificate  by 
the  circuit  courts  of  appeals  of  questions 
of  law  in  relation  to  which  the  advice  of 
this  court  was  sought  as  therein  pro- 
vided. We  there  held  that  the  act  of 
March  3,  1891,  covered  the  whole  subject 
matter,  and  furnished  the  exclusive  rule  in 
respect  of  appellate  jtirisdiction,  on  ap- 
peal, writ  of  error  or  certificate."  Bardes 
T'.  Hawarden  First  Nat.  Bank,  175  U. 
S.    .526,    528,    44    L.    Ed.    261. 

"The  bankruptcy  act  has  made  no 
change  in  this  regard,  and  as  this  case  has 
not  gone  to  Judgment,  the  certificate  mu'^t 
be  dismissed  Bardes  z'.  Hawarden  First 
Nat.  Bank,  175  U.  S.  526,  528,  44  L.  Ed. 
261. 

39.  Huntington    v.    Laidley,    176    U.    S. 


668,  44  L.  Ed.  630,  citing  Rodd  v.  Heartt, 
17  Wall.  354,   21   L.   Ed.   627. 

40.  Maynard  v.  Hecht,  151  U.  S.  324, 
38  L.  Ed.  179;  Moran  v.  Hagerman,  151 
U.   S.   329,  38   L.   Ed.   181. 

41.  Rev.  Stat..  §§  650,  651,  652,  693,  697; 
In  re  Lehigh,  etc.,  Mfg.  Co.,  156  U.  S 
322,   327,  39  L.   Ed.   438. 

42.  Maynard  v.  Hecht,  151  U.  S.  324, 
38  L.  Ed.  179;  Courtney  v.  Pradt.  196  U.' 
S.  89,  49  L.  Ed.  398;  Ansbro  z:  United 
States,  159  U.  S.  695.  40  L.  Ed.  310; 
Filhiol  V.  Torney,  194  U.  S.  356,  48  L.  Ed! 
1014;  Excelsior  Wooden  Pipe  Co.  v.  Pa- 
cific Bridge  Co.,  185  U.  S.  282,  284,  46  L. 
Ed.  910;  Colvin  r.  Jacksonville.  157  U 
S.  368,  39  L.  Ed.  736;  Van  Wagenen  v 
Sewall,  160  U.  S.  369.  40  L.  Ed.  460;  Chao- 
pell  V.  United  States,  160  U.  S.  499,  507, 
40  L.  Ed.  510;  Davis  v.  Geissler,  162  u' 
S.  290.  40  L.  Ed.  972;  Moran  z-'.  Hager- 
n-an,  151  U.  S.  329.  38  L.  Ed.  181;  Davis, 
Mfg.  Co.  V.  Barber,  157  U.  S.  673.  39  L. 
Ed.    853. 

In    Maynard   v.    Hecht,    151    U.    S.    324, 

38  L.  Ed.  179.  we  held  that  in  the  in- 
stance of  an  appeal  or  writ  of  error  from 
a  circuit  court  upon  the  question  of  ju- 
risdiction under  the  fifth  section  of  the 
judiciary  act  of  March  3,  1891.  a  certifi- 
cate by  the  circuit  court  presenting  such 
question  for  determination  was  required 
in  order  to  invoke  the  exercise  by  this 
court  of  its  apnellate  jurisdiction.  In  re 
Lehigh,  etc.,   Mfg.   Co.,  156  U.  S.  322,  326, 

39  L.    Ed.    438. 

In  Maynard  z'.  Hecht.  151  U.  S.  324.  38 
L.  Ed.  179.  we  held  that  a  certificate  from 
the  court  below  of  the  question  of  juris- 
diction to  be  decided  was  an  absolute  pre- 
requisite to  the  exercise  of  jurisdiction 
here,    and    indicated    bj^   reference    to    the 


444 


APPEAL  AXD  ERROR. 


wanting,  the  writ  of  error  will  be  dismissed  without  discussing  whether  the  ques- 
tion of  jurisdiction  should  properly  be  h-eld  to  have  been  in  issue,  or  whether,  if 
so,  the  case  would  fall  within  the  fifth  section.-*^ 

ccccc.    Time  of  Granting  Certificate. — Where  the  jurisdiction  of  the  court  be- 
low is  in  issue  and  the  case  is  certified  to  us  for  decision,  the  certificate  must  be 


settled  rules  in  relation  to  certificates  of 
division  of  opinion  in  what  manner  we 
thought  the  certificate  should  be  framed. 
The  Bayonne.  159  U.  S.  687,  692,  40  L. 
Ed.  306,  reaffirmed  in  Merritt  v.  Bowdoin 
College,  167   U.    S.   745.   42    L.    Ed.   1209. 

In  order  to  bring  an  appeal  or  writ  of 
error  directly  to  this  court  under  that  sec- 
tion of  the  circuit  court  of  appeals  act 
which  provides  that  such  an  appeal  may 
lie  "in  which  the  jurisdiction  of  the  court 
is  in  issue;  in  such  cases  the  question  of 
jurisdiction  alone  shall  be  certified  to  the 
supreme  court  from  the  court  below  for 
decision."  it  is  held,  that  the  question  of 
jurisdiction  must  have  been  certified.  Mr. 
Chief  Justice  Fuller  said,  however:  "We 
do  not  now  say  that  the  absence  of  a 
formal  certificate  would  be  fatal,  but  it  is 
required  by  the  statute,  and  its  absence 
might  have  controlling  weight  where  the 
alleged  issue  is  not  distinctly  defined.  This 
record  contains  no  such  certificate,  nor 
was  it  applied  for,  nor  does  it  appear  that 
the  jurisdiction  of  the  circuit  court  was 
in  issue."     Carey  v.  Houston,  etc..  R.  Co.. 

150  U.   S.   170,  180,  37   L.   Ed.  1041. 

"We  think  the  intention  of  congress  as 
to  the  certification  mentioned  in  both  sec- 
tions is  to  be  arrived  at  in  the  light  of 
the  rules  theretofore  prevailing  as  to  cer- 
tifying from  the  court  below,  and  since, 
in  the  instance  of  an  appeal  upon  the 
question  of  jurisdiction  under  the  fifth 
section  of  the  act.  a  certificate  by  the  cir- 
cuit court  presenting  such  question  for 
the  determination  of  this  court  is  ex- 
plicitly and  in  terms  required  ,in  order  to 
invoke  the  exercise  by  this  court  of  its 
appellate  jurisdiction,  we  are  of  opinion 
that  the  absence  of  such  certificate  is 
fatal  to  the  maintenance  of  the  writ  of 
error  in   this   cause."     Maynard  v.   Hecht, 

151  U.  S.  324,  327.  38  L.  Ed.  179;  Moran 
V.  Hagerman,  151  U.  S.  329,  38  L.  Ed. 
18t. 

Under  §  5  of  the  judiciary  act  of  March 
3,  1891.  allowing  an  appeal  or  writ  of 
error  directly  to  the  supreme  court,  "in 
any  case  in  which  the  jurisdiction  of  the 
court  is  in  issue;"  and  further  provides 
that  "in  such  cases  the  question  of  juris- 
diction alone  shall  be  certified  to  the  su- 
preme court  from  the  court  below  for 
decision,"  it  has  been  held,  that  the  cer- 
tificate is  an  absolute  prerequisite  to  the 
exercise  of  jurisdiction  here.  Courtney 
V.  Pradt,  196  U.  S.  89.  49  L.  Ed.  398,  cit- 
ing Mavnard  7'.  Hecht,  151  U.  S.  324.  38 
L.  Ed.  179.  The  court  said:  "Although 
we  have  recognized  exceptions  to  this  rule  ' 
when  the  explicit  terms  of  the  decree,  or 
even    of    the    order    allowing    the    appeal, 


might  properly  be  considered  as  equiva- 
lent to  the  formal  certificate.  Hunting- 
ton V.  Laidley.  176  U.  S.  668,  44  L.  Ed. 
630;  Arkansas  v.  Schlierholz,  179  U.  S. 
598,  45  L.  Ed.  335. 

Cases  distinguished. — It  is  true  that  in 
In  re  Lehigh,  etc.,  Mfg.  Co..  156  U.  S. 
322,  39  L.  Ed.  438,  we  held  that  the  cer- 
tificate was  not  necessary,  inasmuch  as  it 
appeared  in  the  decree  that  the  question 
involved  was  only  a  question  of  jurisdic- 
tion, and  the  judgment  not  only  recited 
that  the  court  considered  it  had  no  juris- 
diction of  the  case,  and  therefore  dis- 
missed it  for  want  of  jurisdiction,  but  the 
district  judge  certified  in  the  bill  of  ex- 
ceptions that  it  was  "held,  that  the  court 
did  not  have  jurisdiction  of  the  suit,  and 
ordered  the  same  to  be  dismissed."  and, 
in  the  order  allowing  the  writ  of  error, 
certified  in  effect,  that  it  was  allowed 
"upon  the  question  of  jurisdiction."  Van 
Wagenen  v.  Sewall,  160  U.  S.  369,  372,  40 
L.    Ed.   460. 

So,  also,  in  Shields  v.  Coleman,  157  U. 
S.  168,  39  L.  Ed.  660.  where  the  court  be- 
low, granting  the  appeal,  said,  "this  ap- 
peal is  granted  solely  upon  the  question 
of  jurisdiction,"  and  made  further  pro- 
visions for  determining  what  part  of  the 
record  should  be  certified  to  this  court 
under  the  appeal,  we  held  this  to  be  a 
sufficient  certificate  of  a  question  of  ju- 
risdiction under  the  act.  Van  Wagenen 
r.  Sewall,  160  U.  S.  369.  372,  40  L.  Ed. 
460. 

43.  Maynard  v.  Hecht.  151  U.  S.  324, 
38  L.  Ed.  179;  Moran  v.  Hagerman.  151 
U.  S.  329,  38  L.  Ed.  181;  Carey  v.  Hous- 
ton, etc..  R.  Co.,  150  U.  S.  170.  37  L.  Ed. 
1041. 

The  lack  of  the  proper  certificate  is  a 
defect  which  cannot  be  supplied,  and  the 
appeal  will  be  dismissed  in  such  case  for 
want  of  jurisdiction.  The  Bayonne,  159 
U.  S.  687,  40  L.  Ed.  306,  reaffirmed  tn 
Merritt  v.  Bowdoin  College.  167  U.  S. 
745,  42   L.   Ed.   1209. 

In  the  instance  of  an  appeal  upon  t^e 
question  of  jurisdiction  under  the  fifth 
section  of  the  act.  a  certificate  by  the  cir- 
cuit court  presenting  svich  question  for 
the  determination  of  this  court  is  e;c- 
plicitly  and  in  terms  required  in  order  xo 
invoke  the  exercise  by  this  court  of  its 
appellate  jurisdiction,  and  the  ab- 
sence of  such  certificate  is  fatal  to  the 
maintenance  of  the  appeal.  Colvin  v. 
Jacksonville.  157  U.  S.  368,'  369,  39  L. 
Ed.  736.  following  Mas'-nard  v.  Hecht.  151 
U.  S.  324,  38  L.  Ed.  179;  Shields  v.  Cole- 
man, 157  U.  S.   168,  39  L.   Ed.  660. 


APPEAL  AXD  ERROR. 


445 


granted  during  the  term  at  which  the  judgment  or  decree  is  entered,  by  analogy 
to  the  statutory  provisions  on  that  subject  which  obtained  in  relation  to  certifi- 
cates of  division  of  opinion,^^  and  in  view  of  the  general  rule  as  to  the  inability 
of  the  court  to  deal  with  matters  of  this  sort  after  the  expiration  ftf  the  term.*^ 
ddddd.  Form  and  Requisites. — In  General. — In  order  to  maintain  the  appellate 
jurisdiction  of  this-  court  under  this  clause,  the  record  must  distinctly  and  un- 
equivocally show  that  the  court  below  sends  up  for  consideration  a  single  and  defi- 
nite question  of  jurisdiction,  that  is,  of  jurisdiction  of  the  court  as  a  court  of 
the  United  States.  This  may  appear  in  either  of  two  ways ;  by  the  terms  of  the 
decree  appealed  from  and  of  the  order  allowing  the  appeal ;  or  by  a  separate  cer- 
tificate of  the  court  below.**^  This  court  cannot  be  required  to  search  the  record 
to  ascertain  whether  the  question  of  the  jurisdiction  of  the  court  itself  was  in- 
volved, within  the  meaning  of  the  act.  "Indeed,  it  appears  to  have  been  the  very 
object  of  the  fifth  section  of  the  act  of  1891  to  have  the  question  of  jurisdiction 
plainly  and  distinctly  certified  to  us,  or  at  least  to  have  it  appear  so  clearly  in  the 
decree  of  the  court  below,  that  no  other  question  was  involved,  that  no  further 
examination  of  the  record  would  be  necessary."^"     We  have,  however,  recognized 


44.  Rev.  Stat..  §§  650,  651.  652,  693,  397; 
Maynard  v.  Hecht.  151  U.  S.  324,  38  L. 
Ed.  179;  Colvin  v.  Jacksonville,  158  U. 
S.  456.  457,  39  L.  Ed.  1053;  Merritt  v. 
Bowdoin  College,  169  U.  S.  551.  556,  42 
L-  Ed.  850;  Excelsior  Wooden  Pipe  Co. 
V.  Pacific  Bridge  Co..  185  U.  S.  282,  46 
L.    Ed.    910. 

In  Colvin  v.  Jacksonville,  158  U.  S. 
456,  39  L.  Ed.  1053,  it  was  decided  that 
such  certificate  must  be  granted  during 
the  term  at  which  the  judgment  or  de- 
cree is  entered.  The  Bayonne,  159  U.  S. 
687,  692,  40  L.  Ed.  306.  reaffirmed  in 
Merritt  v.  Bowdoin  College,  167  U.  S. 
745.    42    L.    Ed.    1209. 

45.  Hickman  r.  Fort  Scott,  141  U.  S. 
415,  35  L.  Ed.  775:  Morse  v.  Anderson. 
150  U.  S.  156.  37  L.  Ed.  1037;  Colvin  v. 
Jacksonville.  158  U.  S.  456,  458,  39  L.  Ed. 
1053.  reaffirmed  in  Merritt  v.  Bowdoin 
College.  167  U.   S.  745.  4'^   L.   Ed.   1209. 

Time  of  making  certification. — It  would 
seem  that  the  certificate  of  the  circuit 
courts,  under  the  act  of  March  3,  1891,  c. 
517,  26  Stat.  826.  must  be  made  at  the 
term  at  which  the  final  judgment  or  de- 
cree is  entered;  and,  moreover,  that  as, 
after  the  close  of  such  term,  the  parties 
are  out  of  court  and  the  litigation  there 
at  an  end.  the  court  has  no  power  to 
grant  such  certificate,  and  cannot  certify, 
nunc  pro  tunc,  if  no  such  certificate  was 
made  or  intended  to  be  made  at  the 
term.  In  re  Lehigh,  etc..  Mfg.  Co.,  156 
U.   S.   3'>2.   327,   30    L.    Ed.   438. 

The  district  court  of  the  United  States 
for  the  southern  district  of  New  York  has 
monthly  terms.  Rev.  Stat.  572.  The  de- 
cree here  was  entered  December  21,  and 
the  appeal  allowed  December  31,  1892. 
On  the  seventeenth  of  the  following  Jan- 
t'ary.  during  a  new  term  of  the  court  the 
assignment  of  errors  was  directed  to  be 
filed  nunc  pro  tunc  as  of  December  31, 
1892.  Held,  if  that  assisrnment  could  be 
treated  as  a  certificate,  it  came  too  late, 
"nd,   as   there    is    nothing   in     the     record 


prior  to  the  expiration  of  the  December 
term,  to  indicate  any  attempt  or  intention 
to  file  a  certificate  during  that  term,  arwi 
there  was  no  omission  to  enter  anything 
which  had  actually  been  done  at  that 
term,  the  case  did  not  come  within  the 
rule  that  permits  an  amendment  of  the 
record  nunc  pro  tunc.  Hickman  v.  Fort 
Scott,  141  U.  S.  415,  418.  35  L.  Ed.  775; 
Michigan  Ins.  Bank  v.  Eldred.  143  U.  S. 
293,    299,    36    L.    Ed.    162;    The    Bayonne, 

159  U.  S.  687,  692.  693.  40  L.  Ed.  306.  re- 
affirmed in  Merritt  v.  Bowdoin  College, 
167  U.  S.  745.  42  L.  Ed.  1209;  Arkansas 
V.  Schlierholz.  179  U.  S.  598,  45  L.  Ed. 
335,  reaffirmed  in  Richards  v.  Michigan, 
etc..  R.  Co.,  186  U.  S.  479,  46  L.  Ed. 
1259. 

46.  Maynard  v.  Hecht.  151  U.  S.  324, 
38  L.  Ed.  179;  In  re  Lehigh,  etc.,  Mfg. 
Co.,  156  U.  S.  322,  39  L.  Ed.  438;  Shields 
V.  Coleman,  157  U.  S.  168,  39  L.  Ed.  660; 
Interior  Construction,  etc..  Co.  v.  Gibney, 

160  U.  S.  217.  40  L.  Ed.  401;  Van  Wag- 
enen  v.  Sewall,  160  U.  S.  369.  40  L.  Ed. 
460;  Chappell  r.  United  States.  160  U  S. 
499.  40  L.  Ed.  510:  Davis  v.  Geissler.  162 
U.  S.  290.  40  L.  Ed.  972:  Huntington  v. 
Laidley.  176  U.  S.  668,  676.  44  L.  Ed.  630; 
Courtney  v.  Pradt,  196  U.  S.  89,  49  L 
Ed.    398. 

47.  Van  Wagenen  v.  Sewall,  160  U.  S. 
369,    40    L.    Ed.    460. 

A  district  coprt  bv  an  order  allowed  an 
appeal  of  the  U^nited  States  from  a  de- 
cision that  a  special  agent  of  the  general 
land  office  was  entitled  to  his  discharge 
from  the  custody  of  a  sheriff  and  pro- 
pounded the  questions  whether  the  court 
had  jurisdiction  to  discharge  the  peti- 
tioner or  whether  it  should  remand  him 
to  the  custody  of  the  sheriff  to  be  dealt 
with  by  the  state  court.  It  was  held,  that 
the  authority  of  the  supreme  court  to  re- 
view the  acti-^n  of  the  court  below  must 
be  found  in  one  of  three  classes  of  cases 
in  which,  by  §  5  of  the  judiciary  act  of 
March   3,  1891.  an  appeal  or  writ  of  error 


446 


APPEAL  AND  ERROR. 


exceptions  to  this  rule  when  the  expHcit  terms  of  the  decree,  or  even  if  the  order 
allowing  the  appeal,  might  properly  be  considered  as  equivalent  to  the  formal  cer- 
tificate.'*^ 

What  Constitutes  a  Sufficient  Certificate. — It  is  not  necessary  that  the 
word  "certify"  be  formally  used.  It  is  sufficient  if  there  is  a  plain  declaration 
that  the  single  matter  which  is  by  the  record  sent  up  to  this  court  for  decision  is  a 
question  of  jurisdiction,  and  the  precise  question  clearly,  fully,  and  separately 
stated.  No  mere  suggestion  that  the  jurisdiction  of  the  court  was  in  issue  will 
answer.  This  court  will  not  of  itself  search  nor  follow  counsel  in  their  search  of 
the  record  to  ascertain  whether  the  judgment  of  the  trial  court  did  or  did  not  turn 
on  some  question  of  jurisdiction.  But  the  record  must  affirmatively  show  that  the 
trial  court  sends  up  for  consideration  a  single  definite  question  of  jurisdiction.'*^ 

The  assignment  of  errors,  and  the  action  of  the  court  in  directing  it  to  be 
filed,  cannot  be  regarded  as  a  compliance  with  the  statutory  provision  and  equiva- 
lent to  the  certificate  required.^  The  record  does  not  show  an  equivalent  of  the 
certifi<:ate  of  jurisdiction,  where  the  assignment  of  errors  is  directed  both  to  the 
jurisdiction  and  the  merits,  and  the  petition  for  the  writ  of  error,  which  was  al- 
lowed generally  and  without  any  limitation  or  specification,  prays  for  a  review  to 
the  end  that  the  rulings  and  judgment  of  the  court  may  be  reversed. -^^ 

Nor  can  the  allowance  of  the  appeal  be  treated  as  a  certificate. "^    Thus, 


may  be  taken  from  a  district  or  circuit 
court  direct  to  this  cotirt.  It  was  further 
held,  that  the  case  at  bar  is  not  embraced 
within  either  of  the  classes  of  cases  just 
mentioned.  Arkansas  v.  Schlierholz,  179 
U.  S.  598,  600,  45  L.  Ed.  335,  reaffirmed 
in  Richards  v.  Michigan,  etc.,  R.  Co.,  186 
U.  S.  479.  46  L.  Ed.  1259,  citing  and  ap- 
proving Bardes  z'.  Hawarden  First  Nat. 
Bank,  175  U.  S.  526,  528,  44  L.  Ed.  261. 

48.  Huntington  v.  Laidley,  176  U.  S. 
668,  44  L.  Ed.  630;  Arkansas  v.  Schlier- 
holz. 179  U.  S.  598,  45  L.  Ed.  335;  Court- 
ney V.   Pradt.   196  U.  S.   89.  49  L.   Ed.  398. 

Authentication. — Where  it  appears 
from  the  record  that  the  only  matters  de- 
cided in  the  circuit  court  were  demurrers 
to  the  pleas  to  the  jurisdiction,  and  the 
petition  to  the  supreme  court  upon  which 
the  writ  of  error  was  allowed  asked  only 
for  the  review  of  the  judgment,  which  de- 
cided that  the  court  had  no  jurisdiction 
of  the  action,  no  bill  of  exception,  or 
formal  certificate  in  respect  to  the  mat- 
ter decided  is  required,  and  a  writ  of  er- 
ror will  not  be  dismissed  because  the  bill 
of  exceptions  filed  below  and  the  certifi- 
cate made  as  to  the  question  of  jurisdic- 
tion were  authenticated  by  a  judge  other 
than  the  trial  judge,  and  because  the  cer- 
tificate was  not  made  at  the  term  at  which 
the  judgment  complained  of  was  entered. 
Petri  V.  Creelman  Lumber  Co.,  199  U.  S. 
487,  50  L.  Ed.  281.  citing  Interior  Con- 
struction, etc.,  Co.  V.  Gibney.  160  U.  S.  217, 
40  L.  Ed.  401;  Chappell  7'.  United  States, 
160   U.    S.    499,    40    L.    Ed.   510. 

49.  Shields  r.  Coi'-man.  157  U.  S.  168, 
176.  39  L.  Ed.  660;  Filhiol  7'.  Torney,  194 
U.  S.  356,  48  L.  Ed.  1014;  Chappell  v. 
United  States,  160  U.  S.  499.  508,  40  L. 
Ed.  510.  reaffirmed  in  Merritt  v.  Bowdoin 
College.    167   U.    S.   745,  42   L.    Ed.    1209. 

50.  The    Bayonne.    159    U.    S.    687,    693, 


40  L.  Ed.  306,  reaffirmed  in  Merritt  v. 
Bowdoin  College,  167  U.  S.  745,  42  L. 
Ed.  1209. 

51.  Filhiol  7'.  Torney.  194  U.  S.  356. 
48  L.  Ed.  1014,  citine  Chappell  v.  United 
States.  160  U.   S.  499,  40  L.  Ed.  510. 

52.  The  Bayonne,  159  U.  S.  687.  695, 
40  L.  Ed.  306,  reaffirmed  in  Merritt  v. 
Bowdoin  College,  167  U.  S.  745,  42  L. 
Ed.  1209,  distinguishing  In  re  Lehigh,  etc., 
Mfg.  Co.,  156  U.  S.  322,  39  L.  Ed.  438; 
Shields  v.  Coleman,  157  U.  S.  168.  39  L. 
Ed.    660. 

The  prayer  for  appeal  did,  indeed,  state 
that  claimant  appealed  "upon  the  ground 
that  this  court  was  without  jurisdiction 
to  make  the  said  decree,"  but  it  specified 
no  question  of  jurisdiction,  and  asked 
"that  a  transcript  of  the  record  and  pro- 
ceedings and  papers  upon  which  said  final 
decree  was  made  shoul-d  be  sent  up,"  as 
if  the  appeal  were  on  the  whole  case.  The 
entry  of  the  district  judge  thereupon  was 
"appeal  allowed."  This  was  wholly  in- 
sufficient to  subserve  any  other  than  the 
ostensible  purpose.  The  Bayonne.  159  U. 
S.  687,  693,  40  L.  Ed.  306,  reaffirmed  in 
Merritt  v.  Bowdoin  College,  167  U.  S. 
745.    42    L.    Ed.    1209. 

The  statements  in  the  order  allowing 
the  appeal,  setting  forth  the  questions 
propounded  for  the  decision  of  this  court, 
whether  considered  by  themselves  or  in 
connection  with  the  record,  cannot  in  rea- 
son be  treated  as  a  plain  declaration  that 
the  single  matter  which  is  by  the  record 
sent  up  to  this  court  for  decision  is  a 
question  of  jurisdiction.  Shields  7'.  Cole- 
man. 157  U.  S.  168,  39  L.  Ed.  660.  As 
declared  in  the  case  just  cited,  no  w-^'C 
suggestion  that  the  jurisdiction  of  the 
cotirt  was  in  issue  will  answPf  'n 
effect,  the  questions  but  imply  thnt  the 
court    assumed    that    it    had    a    discretion 


APPEAL  AND  ERROR. 


447 


where  the  plaintiff  in  error  prays  for  a  writ  of  error  to  this  court  upon  the  question 
of  jurisdiction,  and  in  the  order  allowing  the  writ,  the  court  certified  in  effect  that 
it  was  allowed  "upon  the  question  of  jurisdiction,"  he  is  not  entitled  ta  have  tli« 
question  of  jurisdiction  certified  to  this  court  at  a  subsequent  term,  because  the 
requisition  of  the  statute  has  already  been  sufficiently  complied  with.^s 
But  if  the  writ  of  error  is  allowed  upon  the  petition  of  the  original  plaintiff,  ask- 
ing for  a  review  of  a  judgment  dismissing  the  action  for  want  of  jurisdiction,  and 
the  only  question  tried  and  decided  in  the  court  below  was  a  question  of  juris- 
diction, that  question   is  sufificiently   certified   to  this   court. s*     And,   where   th€ 


either  to  dispose  of  the  case  on  its  merits 
or  to  remand  the  accused  to  the  state 
court  and  require  him  to  resort  to  his 
remedy  by  writ  of  erfor,  and  that  the 
instruction  of  this  court  was  desired  by 
the  court  below  as  to  the  proper  exercise 
of  its  discretion  in  the  premises.  Arkan- 
sas V.  Schlierholz,  179  U.  S.  598.  45  L. 
Ed.  335,  reaffirmed  in  Richards  v.  Michi- 
gan, etc.,  R.  Co.,  186  U.  S.  479,  46  L.  Ed. 
1359. 

An  order  allowing  an  appeal  from  a 
decision  that  a  special  agent  of  the  gen- 
eral land  office  is  entitled  to  his  discharge 
on  habeas  corpus  from  the  custody  of  the 
sheriflF  and  propounding  the  questions 
whether  the  court  has  jurisdiction  to  dis- 
charge the  petitioner,  or  whether  it  should 
remand  him  to  the  custody  of  the  sherifif 
to  be  dealt  with  by  the  state  court,  where 
there  is  not  even  a  suggestion  that  an  is- 
sue was  made  and  decided  by  the  district 
court  as  to  the  jurisdiction  of  that  court 
to  hear  and  determine  the  controversy, 
and  where  there  is  no  intimation  that  the 
court  in  the  judgment  rendered  did  more 
than  pass  upon  the  merits,  is  not  a  suffi- 
cient certification  of  a  question  of  juris- 
diction by  the  di-trict  court.  Arkansas  t'. 
SchHerholz,  179  U.  S.  598,  45  L.  Ed.  335, 
citing  and  approving  Bardes  v.  Hawarden 
First  Nat.  Bank,  175  U.  S.  526,  528,  44  L. 
Ed.  261.  reaffirmed  in  Richards  v.  Michi- 
gan, etc.,  R.  Co.,  186  U.  S.  479,  46  L.  Ed. 
1259. 

53.  In  re  Lehigh,  etc..  Mfg.  Co.,  156 
U.    S.    322.    39    L.    Ed.    438. 

In  re  Lehigh,  etc.,  Mfg.  Co..  156  U.  S. 
332,  39  L.  Ed.  438,  the  defendant  in  an 
action  of  ejectment  filed  two  pleas  to  the 
jurisdiction  of  the  court,  which  pleas  were 
sustained,  and  judgment  thereupon  en- 
tered as  follows:  "And  for  reasons  in 
writing  filed  herewith,  as  part  of  this  or- 
der, the  court  doth  further  consider  that 
it  has  no  jurisdiction  of  this  case,  and 
that  the  said  action  of  ejectment  be  and 
the  same  is  hereby  dismissed  for  want  of 
jurisdiction,  but  without  prejudice  to  the 
parties  to  this  suit."  A  bill  of  exceptions 
was  taken,  in  which  it  was  declared  that 
the  court  "held  that  the  court  did  not 
have  jurisdiction  of  this  suit,  and  or- 
dered the  same  to  be  dismissed,  to  which 
oninion  and  action  of  the  court,  the  plain- 
tiff did  then  and  there  except."  The  plain- 
tiff then  prayed  for  a  writ  of  error  from 
this   court,   which   was   allowed   bv  an   or- 


der under  the  hand  of  the  judge,  and  en- 
tered of  record,  reciting  the  final  judg- 
ment entered,  "dismissing  the  said  case 
because  the  said  court,  in  its  opinion,  did 
not  have  jurisdiction  thereof,"  and  the 
plaintiff  prayed  for  a  writ  of  error  "upon 
the  said  question  of  jurisdiction,"  and 
averring  "that  said  writ  of  error  be  al- 
lowed and  awarded  as  prayed  for."  Un- 
der these  circumstances  it  was  thought 
that  the  question  was  sufficiently  certified. 
The  Bayonne,  159  U.  S.  687,  693,  694,  40 
L.  Ed.  306.  reaffirmed  in  Merritt  v.  Bow- 
doin  College,  167  U.  S.  745.  42  L  Ed 
1209. 

In  Chappell  z'.  United  States,  160  U.  S. 
499,    508,    40    L.    Ed.    510.    it    is    said:  i- 

record  in  the  present  case  falls  far  short 
of  satisfying  the  test  prescribed  in  Shields 
V.  Coleman,  157  U.  S.  168,  177,  39  L.  Ed. 
660.  The  defendant,  among  many  other 
defenses,  and  in  various  forms,  objected 
to  the  jurisdiction  of  the  district  court, 
because  the  act  of  congress  under  which 
the  proceedings  were  instituted  was  un- 
constitutional, because  the  proceedings 
were  not  according  to  the  laws  of  the 
United  States,  and  because  they  should 
have  been  had  in  a  court  of  the  state  of 
IMaryland;  and  the  court,  overruling  or 
disregarding  all  the  objections,  whether 
to  its  jurisdiction  over  the  case,  or  to  the 
merits  or  the  form  of  the  proceedings, 
entered  final  judgment  for  the  petiticners. 
There  is  no  formal  certificate  of  any 
question  of  jurisdiction;  the  allowance  of 
the  writ  of  error  is  general,  and  not  ex- 
pressly limited  to  such  a  question;  and 
the  petition  for  th-e  writ,  after  mention- 
ing all  the  proceedings  in  detail,  asks  for 
a  review  of  all  the  rulings,  judgments  -nd 
orders"  of  the  court  "upon  the  question 
of  jurisdiction  raised  in  said  exceptions, 
pleas  and  demurrers,  and  the  other  pa- 
pers on  file  in  this  cause,"  without  defin- 
ing or  indicating  any  specific  question  of 
jurisdiction.  Here,  certainly,  is  no  such 
clear,  full  and  separate  statement  of  a 
definite  question  of  jurisdiction,  as  will 
supply  the  want  of  a  formal  certificate 
under  the  first  clause  of  the  statute.  Re- 
affirmed in  Merritt  v.  Bowdoin  College, 
167  U.  S.  745,  42  L.  Ed.  1209;  Filhiol  f. 
Torney,  194  U.  S.  356.  48   L.   Ed.  1014, 

54.  In  re  Lehisrh.  etc.,  Mfg.  Co..  156 
U.  S.  322.  39  L.  Ed.  438;  Interior  Con- 
struction, etc..  Co.  V.  Gibnev.  160  U.  S. 
217.    40    L.    Ed.    401;    Chappe'll    v.    United 


448 


APPEAL  AND  ERROR. 


record  shows  that  the  only  matter  tried  and  decided  in  the  circuit  court  was  a  de- 
murrer to  a  plea  to  the  jurisdiction;  and  the  petition,  upon  which  the  writ  of  er- 
ror was  allowed,  asked  only  for  a  review  of  the  judgment  that  the  court  had  no 
jurisdiction  of  the  action,  the  question  of  jurisdiction  alone  is  thus  sufficiently 
certified  to  this  court. ^^  And  if  an  appeal  from  a  decree  of  the  circuit  court  ap- 
pointing a  receiver  is  allowed  by  that  court  "solely  upon  the  question  of  jurisdic- 
tion," and  on  a  petition  praying  an  appeal  from  the  decree  as  "taking  and  exer- 
cising jurisdiction,"  the  question  of  jurisdiction  is  sufficiently  certified.^*' 

iiii.   Simultaneous  Appeal  and  Certification,  or  the  Rule  in  Jahn's  Case. — If  the 
jurisdiction  of  the  circuit  court  is  in  issue  and  decided  in  favor  of  the  defendant, 


States,  160  U.  S.  499,  507,  40  L.  Ed.  510, 
reaffirmed  in  Merritt  z'.  Bowdoin  College, 
167    U.    S.    745.    42    L.    Ed.    1209. 

55.  March  3,  1891.  ch.  517,  §  5;  26  Stat. 
828;  In  re  Lehigh,  etc.,  Mfg.  Co.,  156  U. 
S.  322,  39  L.  Ed.  438;  Shields  z'.  Coleman, 
157  U.  S.  168,  39  L.  Ed.  660;  Interior  Con- 
struction, etc.,  Co.  V.  Gibney,  160  U.  S. 
217,   219,    40   L.    Ed.    401. 

The  original  decree  of  the  circuit  court 
made  November  5,  1900,  recited  "that  said 
suit  does  not  really  and  substantially  in- 
volve a  dispute  or  controversy  properly 
within  the  jurisdiction  of  this  court,  and 
that  this  court  should  not  further  exer- 
cise jurisdiction,  it  is  therefore  ordered 
and  decreed  that  said  suit  be  and  the 
same  is  hereby  dismissed  for  want  of  ju- 
risdiction." An  appeal  was  taken  from 
this  decree,  and  the  order  allowing  the 
appeal  states  that  the  appeal  was  allowed 
"from  the  final  order  and  decree  dismiss- 
ing said  suit  for  want  of  jurisdiction."  It 
was  held,  that  this  is  clearly  a  sufficient 
certificate  of  the  circuit  court  that  the 
jurisd'ction  of  that  court  was  in  issue. 
Excelsior  Wooden  Pipe  Co.  v.  Pacific 
Bridge  Co.,  185  U.  S.  282,  285,  46  L.  Ed. 
910,  c^'ting  Shields  v.  Coleman,  157  U.  S. 
168.  39  L.  Ed.  660;  In  re  Lehigh,  etc., 
Mfg.  Co..  156  U.  S.  322,  39  L.  Ed.  438; 
Huntington  v.  Laidley,  176  U.  S.  668,  44 
L.    Ed.    630. 

56.  Shields  v.  Coleman.  157  U.  S.  168, 
39  L.  Ed.  660;  Chappell  v.  United  States, 
160  U.  S.  499.  507,  40  L.  Ed.  510,  reaf- 
firmed in  Merritt  7'.  Bowdoin  College,  167 
U.    S.    745,    42    L.    Ed.   1209. 

Thus,  where  the  petition  for  an  appeal 
is  upon  the  single  ground  that  the  cir- 
cuit court  of  the  United  States  wrong- 
fully took  jurisdiction  of  the  property 
when  it  was  in  the  possession  of  the  re- 
ceiver appointed  by  the  state  court,  that 
the  circuit  court  of  the  United  States  had 
no  power  to  appoint  another  receiver  and 
take  the  property  out  of  the  former's 
hands,  because  it  was  then  in  possession 
of  the  state  court,  and  in  the  order  allow- 
ing the  appeal  it  is  explicitly  stated  that 
"this  appeal  is  granted  solely  upon  the 
question  of  jurisdiction."  and  the  court 
at  the  same  time  reserved  to  itself  the 
right,  which  it  subsecuently  exercised,  of 
determining  what  portions  of  the  proceed- 
ings should  be  incorporated  into  the 
record  sent  here   for  the  purpose   of  pre- 


senting this  question,  this,  taken  in  con- 
nection with  the  petition  upon  which  it 
was  founded,  is  a  sufficient  certificate. 
Shields  v.  Coleman,  157  U.  S.  168,  39  L. 
Ed.  660.  citing  United  States  v.  Jahn,  155 
U.  S.  109.  39  L.  Ed.  87;  In  re  Lehigh,  etc., 
Mfg.  Co.,  156  U.  S.  322,  39  L.  Ed.  438. 
"In   Shields  v.    Coleman,   157    U.    S.    168, 

39  L.  Ed.  660.  a  receiver  appointed  by  a 
state  court  intervened  in  a  suit  in  the  cir- 
cuit court  of  the  United  States  for  the  re- 
covery of  possession  of  railroad  property 
from  the  receiver  of  the  circuit  court,  and, 
his  application  having  been  denied,  he 
prayed  an  appeal  to  this  court  from  the 
decree  and  interlocutory  orders  by  which 
the  circuit  court  assumed  and  asserted 
jurisdiction  over  the  property.  The  cir- 
cuit court  allowed  the  appeal  by  an  order 
stating  "this  appeal  's  granted  solely  upon 
the  question  of  jurisdiction,"  and  reserv- 
ing to  the  court  the  right,  which  it  sub- 
sequently exercised,  of  determining  what 
portion  of  the  proceedings  should  be  in- 
corporated into  the  record  for  the  purpose 
of  presenting  that  question.  We  enter- 
tained jurisdiction  in  that  case  also.  But 
we  are  of  opinion  that  this  case  cannot 
b-"  broueht  w-'thin  either  of  those  last 
cited."     The   Bayonne,  159  U.   S.  687,  694. 

40  L.  Ed.  306,  reaffirmed  in  Merritt  v. 
Bowdoin  College,  167  U.  S.  745,  42  L. 
Ed.    1209. 

Where  the  record  discloses  that  the  de- 
fendants below  appealed  upon  the  express 
ground  that  the  court  erred  in  taking  ju- 
risdiction of  the  bill  and  in  not  dismissing 
the  bill  for  want  of  jurisdiction,  and 
prayed  that  their  appeal  should  be 
allowed,  and  the  question  of  jurisdiction 
be  certified  to  the  supreme  court,  and  that 
said  appeal  was  allowed,  and  the  certifi- 
cate further  states  that  there  is  sent  a 
true  copy  of  so  much  of  the  record  as  is 
necessary  for  the  determination  of  the 
question  of  jurisdiction,  and  as  part  of 
the  record  so  certified  is  the  opinion  of 
the  court  below,  in  accordance  with 
which  defendants'  motion  to  dismiss  the 
cause  for  want  of  jurisdiction  was  denied, 
it  therefore  appears  that  the  appeal  was 
granted  solely  upon  the  question  of  ju- 
risdiction, and  this  brings  the  case  within 
the  rulings  in  Shields  v.  Coleman,  157 
U.  S.  168.  39  L.  Ed.  660,  and  In  re  Le- 
high, etc.,  Mfg.  Co.,  156  U.  S.  322,  39  L 
Ed.   438;    Smith  v.   McKay,   161   U.   S.  355, 


APFHAL  AND  ERROR. 


449 


as  that  disposes  of  the  case,  the  plaintiff  should  have  the  question  certified  and 
take  his  appeal  or  writ  of  error  directly  to  this  court.^'  If  the  question  of  juris- 
diction is  in  issue,  and  the  jurisdiction  sustained,  and  then  judgment  or  decree  is 
rendered  in  favor  of  the  defendant  oa  the  merits,  the  plaintiff,  who  has  maintained 
the  jurisdiction,  must  appeal  to  the  circuit  court  of  appeals,  where,  if  the  question 
of  jurisdiction  arises,  the  circuit  court  of  appeals  may  certify  it.^^  If  the  ques- 
tion of  jurisdiction  is  in  issue,  and  the  jurisdiction  sustained,  and  judgment  on  the 
merits  is  rendered  in  favor  of  the  plaintiff,  then  the  defendant  can  elect  either 
to  have  the  question  certified  and  come  directly  to  this  court,  or  to  carry  the 
whole  case  to  the  circuit  court  of  appeals,  and  the  question  of  jurisdiction  can  be 
certified  by  that  court.'^^  If,  in  the  case  last  supposed,  the  plaintiff  lias  ground  of 
complaint  in  respect  of  the  judgment  he  has  recovered,  he  may  also  carry  the  case 
to  the  circuit  court  of  appeals  on  the  merits,  and  this  he  m.ay  do  by  w"ay  of  cross 
appeal  or  writ  of  error  if  the  defendant  has  taken  the  case  there,  or  independently, 
if  the  defendant  has  carried  the  case  to  this  court  on  the  question  of  jurisdicdon 
alone,  and  in  this  instance  the  circuit  court  of  appeals  will  suspend  a  decision  upon 


357,  40  L.  Ed.  731,  reaffirmed  in  Murphy 
V.  Colorado  Paving  Co.,  166  U.  S.  719,  41 
L.  Ed.  1188;  Black  v.  Black,  163  U.  S.  678, 
41  L.  Ed.  318;  Tucker  v.  McKay,  164  U. 
S.  701,  41   L.   Ed.   1180. 

57.  United  States  r.  Jahn,  155  U.  S.  100, 
114,  39  L.  Ed.  87;  Robinson  v.  Caldwell, 
165  U.  S.  359.  41  L.  Ed.  745;  In  re  Mor- 
rison. 147  U.  S.  14,  36,  37  L.  Ed.  60;  In 
re  New  York,  etc..  Steamship  Co.,  155  U. 
S.  523,  531,  39   L.    Ed.   246. 

58.  United  States  r.  Jahn,  155  U.  S. 
109,  114,  39  L.  Ed.  87.  following  United 
States  V.  Klingenberg,  153  U.  S.  93,  38  L. 
Ed.  647;  Robinson  v.  Caldwell,  165  U.  S. 
359,    41    L.    Ed.    745. 

Under  the  act  of  March  3.  1891,  the 
plaintiff  cannot  maintain  a  direct  appeal 
from  a  circuit  court  of  the  United  States 
to  the  supreme  court  of  the  United  States 
in  a  case  in  which  the  jurisdiction  of  the 
circuit  court  is  in  issue,  where  the  juris- 
diction is  sustained  and  judgment  or  de- 
cree rendered  in  favor  of  the  defendant 
on  the  merits.  Anglo-American  Pro- 
vision Co.  r.  Davis  Provision  Co.,  191  U. 
S.  373.  48  L.  Ed.  225,  citing  and  approv- 
ing United   StPtes  v.  Jahn,   155   U.   S.   109, 

114.  39    L.    Ed.    87. 

59.  United  States  r.  Jahn.  155  U.  S.  109. 

115,  39  L.  Ed.  87;  Rob'nson  v.  Caldwell, 
165   U.    S.   359,   41    L.    Ed.    745. 

Where,  in  a  suit  against  the  defendants 
in  a  circuit  court,  they  file  a  plea  to  the 
jurisdiction  of  the  court,  if  the  jurisdic- 
tion is  sustained,  and  the  defendants  pre- 
serve the  nuestion  by  certificate  in  the 
form  of  a  bill  of  exceptions  and  the  cause 
has  subsequently  proceeded  to  a  final  de- 
cree against  them,  they  can  bring  the  case 
at  the  proper  time,  on  the  question  of  ju- 
risdiction soleljs  directly  to  this  court,  al- 
though not  compelled  to  do  so.  In  re 
Lehieh.  etc..  Mfg.  Co.,  156  U.  S.  322.  39 
L.  Ed.   438. 

If,  in  a  revenue  case,  a  final  judgment 
were  rendered  because  of  want  of  juris- 
diction, that  judgment  could  be  reviewed 
by  this  court  upon  a  certificate  of  the  cir- 

1  U  S  Enc-2S/ 


cuit  court,  while  if  jurisdiction  were  sus- 
tained and  the  merits  adjudicated,  al- 
though the  ciuestion  of  jurisdiction  might 
be  brought  up  directly,  the  circuit  court 
ot  appeals  would  undoubtedly  have  juris- 
diction to  review  the  case  upon  the 
merits.  The  provision  that  any  case  in 
which  the  question  of  jurisdiction  is  in 
issue  may  be  taken  directly  to  this  court, 
necessarily  extends  to  other  cases  than 
those  in  which  the  final  judgment  rests 
on  the  ground  of  want  of  jurisdiction,  for 
in  them  that  would  be  the  sole  question, 
and  the  certificate,  though  requisite  to  our 
jurisdiction  under  the  statute,  would  not 
be  in  itself  essential,  however  valuable  in 
the  interest  of  brevity  of  record.  But  in 
such  other  cases,  the  requirement  that  the 
question  of  jurisdiction  alone  should  be 
certified  for  decision  was  intended  to 
operate  as  a  limitation  upon  the  jurisdic- 
tion of  this  court  of  the  entire  case  and 
of  all  questions  involved  in  it,  a  jurisdic- 
tion which  can  be  exercised  in  any  other 
class  of  cases  taken  directly  to  this  court 
under  section  five.  Horner  v.  United 
States,  143  U.  S.  570.  577.  36  L.'  Ed.  2G6; 
United  States  v.  Jahn,  155  U.  S.  109.  113, 
39  L.  Ed.  87;  Robinson  v.  Caldwell,  165 
U.    S.   359,   41   L.    Ed.   745. 

"The  act  certainly  did  not  conteni'^late 
two  appeals  or  writs  of  error  at  the  same 
time  by  the  same  party  to  two  different 
courts,  nor  does  it  seem  to  us  that  it  was 
intended  to  compel  a  waiver  of  the  ob- 
jection to  the  jvirisdiction  altogether  or 
of  the  consideration  of  the  merits.  By 
taking  a  case  directly  to  this  court  on  the 
question  of  jurisdiction,  the  contention  on 
the  merits  would  be  waived,  but  it  does 
not  follow  that  the  jurisdictional  question 
could  not  be  considered,  if  the  case  were 
taken  to  the  circuit  court  of  appeals.  The 
act  was  passed  to  facilitate  the  prompt 
disposition  of  cases  in  this  court  and  to 
relieve  it  from  the  oppressive  burden  of 
general  litigation,  but  the  rights  of  re- 
view by  appeal  or  writ  of  error,  and  of 
invoking    the    supervisory    jurisdiction    of 


450  APPEAL  AND  ERROR. 

the  merits  until  the  question  of  jurisdiction  has  been  determined.^^  The  same  ob- 
servations are  appHcable  where  a  plaintiff  objects  to  the  jurisdiction  and  is,  or  both 
parties  are,  dissatisfied  with  the  judgment  on  the  merits.^^  The  circuit  court  of 
appeals  will,  however,  suspend  any  consideration  of  the  case  upon  the  merits  until 
the  question  of  jurisdiction  is  determined  by  this  court.'^^ 

jjjj.  Double  Appeals. — The  act  of  1891  does  not  contemplate  several  separate 
appeals  in  the  same  case  and  at  the  same  time  to  two  appellate  courts.  "The  true 
purpose  of  the  act,  as  gathered  from  its  context,  is  that  the  writ  of  error,  or  the 
appeal,  may  be  taken  only  after  final  judgment,  except  in  the  cases  specified  in 
§  7  of  the  act.  When  that  judgment  is  rendered,  the  party  against  whom  it  is 
rendered  must  elect  whether  he  will  take  his  writ  of  error  or  appeal  to  the  su- 
preme court  upon  the  question  of  JMrisdiction  alone,  or  to  the  circuit  court  of  ap- 
peals upon  the  whole  case;  if  the  latter,  then  the  circuit  court  of  appeals  may, 
if  it  deem  proper,  certify  the  question  of  jurisdiction  to  this  court. "^^  Where 
no  question  of  jurisdiction  is  certified  by  the  circuit  court,  and  the  defendant 
chooses  not  to  await  the  action  of  this  court  upon  the  appeal  to  it  from  the  cir- 
cuit court,  but  invokes  the  jurisdiction  of  the  ciraiit  court  of  appeals  upon  the 
whole  case,  he  will  be  held  to  have  waived  his  right  to  any  decision  here  upon  his 
direct  appeal  from  the  circuit  court.^^ 

kkkk.  Hearing  CMid  Determination. — In  General. — This  court,  moreover,  may 
review  the  judgment  of  the  circuit  court  dismissing  a  suit  for  want  of  jurisdiction, 
under  the  act  of  March  3,  1875,  c.  137,  although  that  judgment  is  either  based 
on  the  verdict  of  a  jury  or  upon  facts  found  in  an  agreed  statement.  "The  stat- 
ute does  not  prescribe  any  particular  mode  in  which  the  question  of  the  jurisdic- 
tion is  to  be  brought  to  the  attention  of  the  court,  nor  how  such  question,  when 
raised,  shall  be  determined.  When  such  a  question  arises  in  an  action  at  law,  its 
decision  would  usually  depend  upon  matters  of  fact,  and  also  usually  involves  a 
denial  of  formal,  but  necessary,  allegations  contained  in  the  plaintiff's  declaration 
of  complaint.  Such  a  case  would  be  presented  when  the  plaintiff's  allegation  that 
the  controversy  was  between  citizens  of  dift'erent  states,  or  when  the  allegation  that 
the  matter  in  dispute  was  of  sufficient  value  to  give  the  court  jurisdiction,  was 
denied.  In  such  cases,  whether  the  question  was  raised  by  the  defendant  or  by 
the  court  on  its  own  motion,  the  court  might  doubtless  order  the  issue  to  be  tried 
by  the  jury.  The  action  of  the  court,  in  the  admission  or  rejection  of  evidence, 
or  in  instructing  the  jury,  would  thus  be  subjected  to  the  review  by  this  court 
which  was  intended  by  congress."*^-'' 

Determination  of  Question  of  Jurisdiction, — In  General. — Where  it  no- 

this    tribunal,  were    sought   to    be    amply  65.    Wetmore   v.   Rymer.   169  U.   S.   115, 

secured   and   should  not  be   circumscribed  120,  42   L.   Ed.  682. 

by   too    narrow    a    construction."      United  But    whether    the    judge    shall    elect    to 

States  V.  Jahn.   155   U.    S.   109,   113.   39   L.  si'hmit  the  issues  to   the  jury,   or  to  him- 

Ed.    87;    Robinson    v.    Caldwell.    165    U.    S.  self    hear    and    determine    them,    it    is    the 

35f*,   41   L.    Ed.   745.  manifest  meaning   of  this   legislation   that, 

60.  United  States  v.  Jahn,  155  U.  S.  in  either  event,  the  parties  are  not  to  be 
109,  115,  39  L.  Ed.  87;  Robinson  v.  Cald-  concluded  by  the  judgment  of  the  circuit 
well,  165  U.   S.  359,   41   L.   Ed.   745.  court.      As    we    have    already    said,    if    the 

61.  United  States  v.  Jahn,  155  U.  S.  109,  questions  are  submitted  to  the  jury,  there 
115.  39  L.  Ed.  87;  Rohinson  v.  Caldwell,  will  be  a  ready  remedy,  by  proper  excep- 
165  U.  S.  359,  41  L.   Ed.  745.  tions   and   a   writ  of   error  to   correct   any 

62.  United  States  v.  Jahn,  155  U.  S.  109,  errors  into  which  the  trial  court  may  have 
39  L.  Ed.  87,  citing  McLish  v.  Rofif.  141  fallen.  And  if  the  court  takes  to  itself 
U.  S.  661,  35  L.  Ed.  893;  New  Orleans  v.  the  determination  of  the  disputed  ques- 
Benjamin.  153  IT.  S.  411,  38  L.  Ed.  764,  tions,  it  is  imperative,  in  order  to  give  ef- 
Rohinson  v.  Caldwell,  165  U.  S.  359.  41  feet  to  the  intention  of  congress.  th?t  'ts 
L.  Ed.   745.  action  must   take  a   form  that  will  enable 

63.  Mrljsh  V.  Rofif.  141  U.  S.  661,  668,  this  court  to  review  it,  so  far  as  to  de- 
35    L.    Ed.    893.  termine    whether    the    conclusion    of    the 

64.  Robinson  v.  Caldwell,  165  U.  S.  359,  court  below  was  warranted  bv  the  evi- 
41  L.  Ed.  745.  reaffirmed  in  Daup-herty  v.  dence  before  that  court.  Wetmore  v. 
Hood,  179  U.  S.  680,  45  L-  Ed.  383.  Rymer,  169  U.  S.   115,   121,  42   L.   Ed.   6«2. 


APPEAL  AND  ERROR.  451 

where  appears  from  the  record  that  the  issue  as  to  jurisdiction  presented  by  the 
motion  to  dismiss,  the  overruhng  of  which  is  the  sole  ground  for  reversal  relied 
upon  in  the  assignment  of  error,  was  made  or  passed  upon  by  the  court,  this 
court  will  generally  dismiss  the  writ  of  error,  on  the  ground  that  the  record  does 
not  disclose  the  presence  in  the  case  of  a  question  of  jurisdiction/'^^  But  although 
the  certificate  does  not  show  whether  the  jurisdictional  question  arose  from  insuffi- 
cient amount,  want  of  diversity  of  citizenship,  collusion  or  otherwise,  this  court 
may  determine  that  fact  from  an  examination  of  the  record,  aided  by  the  opinion 
of  the  court  contained  therein,  and  made  part  thereof. ^''^ 

From  Statement  of  Facts.— As  the  circuit  court  is  without  power  to  make 
a  certificate  containing  a  statement  of  facts  as  the  basis  for  legal  propositions  upoa 
which  it  desires  the  guidance  of  this  court,^^  jj-  followS,  speaking  in  a  general 
sense,  that  our  right  to  review  on  a  direct  proceeding  concerning  tne  juris-liction 
of  that  court  must  depend  upon  the  record  and  not  upon  the  mere  statement  of 
facts  made  in  the  certificate  prepared  by  the  trial  court.^^ 

From  Certificate. — As,  however,  under  the  judiciary  act  of  1891,  on  a  direct 
review  of  a  question  of  jurisdiction,  the  trial  judge  is  authorized  to  certify  as  to 
the  existence  of  such  question,  this  court  we  may  look  at  his  certificate  for  the  pur- 
pose of  ascertaining  when  and  how  the  question  of  jurisdiction  was  raised,  sA- 
tbough,  for  the  purpose  of  deciding  the  question  slwwn  to  have  been  thus  raised, 
we  may  not  resort  to  the  statements  in  the  certificate  for  the  purpose  of  supply- 
ing elements  of  decision  which  we  could  not  properly  consider  in  an  action  at  law 
without  a  bill  of  exceptions^" 

Extraneous  Matter. — Whilst  we  must  consider  the  record  for  the  purpose  of 
determining  the  question  of  jurisdiction  which  the  certificate  shows  adequately  to 
Uave  been  raised,  we  may  not  consider,  in  passing  t>pon  that  question,  in  the  ab- 
sence of  a  bill  of  exceptions,  the  extraneous  matter,  such  as  the  testimony  of  the 
plaintitf,  etc.,  which  forms  no  part  of  the  record.'''^ 

Mr.  Justice  White  states  the  rule  as  follows :  "Whilst  in  a  case  of  direct  re- 
Wew  under  the  jixliciary  act  of  1891,  when  the  record  does  not  otherwise  show^ 
when  an-d  how  the  question  of  jurisdiction  was  raised,  the  certificate  of  the  cir- 
cuit may  be  considered   for  the  purpose  of  supplying  such  deficiency  when  the 

66.  Nichols  Lumber  Co.  v.  Frason,  303  is  implied  in  a  previous  decision  of  the 
U.  S.  278,   51   L.   Ed.   181.  court,  North  American  Trans,  etc..  Co.  v. 

67.  Chicago  v.  Mills.  204  U.  S.  321,  51  Morrison.  178  U.  S.  262,  44  L-  Ed.  1061, 
L.  Ed.  .504.  "We  think  this  brings  the  and  1>ecause  of  the  general  rule  that  it 
case  within  the  ruling  in  Smith  v.  Mc-  would  be  oar  duty,  without  action  of  tire 
Kay,  161  U.  S.  355.  40  L.  Ed.  731,  in  which  trial  court  or  of  the  parties,  to  look  at  the 
the  coHrt,  looking  into  the  character  of  record  to  determine  whether  or  not  tfec 
th*  appeal,  the  certificate  of  the  court  aad  court  below  had  jurisdiction  of  the  ac- 
\ke  certified  copy  of  the  opinion  made  tion."  Thomas  v.  Ohio  State  University, 
part  of  th«  record,  sustained  the  court's  195  U.  S.  207,  49  L.  Ed.  160;  Nichols  Lum- 
jurtsdiction.  citing,  with  approval.  Shields  her  Co.  r.  Frason,  203  U.  S.  278.  282, 
V.  Cole«ian,  157  U.  S.   168,   39   L.   Ed.   660,  51   L.    Ed.   181. 

and   In   re   Lehigh,   etc.,    Mfg.   Co.,   156   U.  71.   Nichols   Lumber   Co.   r.   Frason,   203 

S.   33S,   39   L.   Ed.   438."  U.    S.   278,    282,    51    L.    Ed.    181. 

68     Mexican  Central  ^.  Co.  v.  Eckman  Where    the    certificate    does    not    show 

m    U.    S.    429.    4T    L-     Ed.      245;      Umted  whether   the   jurisdictional    question   arose 

States   ^.   Rider,   1©3  U.   S.   132    41    L.   Ed.  from    insufficient    amount,    want    of   diver- 

101;   Nichols   Uimber   Co.   v.    Frason.    203  ^;^y  of  citizenship,  collusion  or  otherwise, 

L.   S.   278,  281,   51   L.   Ed.   181.  this   court  may  have  recourse  to  portions 

69.  Nichols  Lumber  Co.  v.  Frason,  of  the  proceedings,  including  the  testi- 
203  U.   S.  2T8,   281,  51    L.   Ed.   181.  mony  on  the  question  of  jurisdiction,  duly 

70.  Nichols  Lumber  Co.  v.  Frason,  203  signed  and  sealed  and  made  part  of  the 
U.^  S.   278.  281,   ?82,   51   L.   Ed.   181.  record,    which    are    certified    to    this    court 

"We   have   said   that   we   may   resort    to  by  certificate  in  the  form  of  a  bill   of  ex- 

the  certificate,  in  the  absence  of  a  proper  ceptions.     Chicago  v.  Mills,  204  U.  S.  321, 

showing   on    the    recoiti    as    to    when    and  51    L.    Ed.    504.   citing    In   re    Lehigh,   etc^ 

how    the    question     of      jurisdiction      was  ]\Tfg.    Co.,    156    U.    S.    322,    39   L.    Ed.    438; 

raised    and    decided,    for    the    limited    pur-  Nichols    Lumh'^r    Co.   v.    Frasen,   203    U. 

pose   stated,   because   the   power   to   do   so  S.   278,    51    L.   Ed.   181. 


452 


APPEAL  AND  ERROR. 


elements  necessary  to  decide  the  question  are  in  the  record,  we  deem  it  the  better 
practice  in  every  case  of  direct  review  on  a  question  of  jurisdiction  to  make  ap- 
parent on  the  record  by  a  bill  of  exceptions,  or  other  appropriate  mode,  the  fact 
that  the  question  of  jurisdiction  was  raised  and  passed  upon  and  the  elements 
upon  which  the  decision  of  the  question  was  based. "^^ 

1111.  Scope  of  RezneziK — In  General. — But  the  judiciary  act  of  March  3,  1891, 
provides  that  in  cases  where  the  jurisdiction  of  the  court  below  is  in  issue,  that 
question,  and  that  alone,  shall  be  certified  to  this  coirrt  for  decision,  the  inquiry 
being  limited  to  the  question  thus  certified."^ 

Dismissal  by  Circuit  Court  for  Want  of  Jurisdiction. — On  an  appeal  to 
this  court  solely  upon  the  question  of  the  jurisdiction  of  the  circuit  court  of  the 
United  States,  we  are  only  concerned  with  the  correctness  of  the  conclusion 
reached  in  the  circuit  court  as  to  the  question  of  jurisdiction."* 

Where  the  jurisdiction  of  the  circuit  court  depends  on  diverse  citizen- 
ship, the  only  question  that  can  be  considered  by  this  court  on  a  writ  of  error  to 
the  circuit  court,  is  that  of  the  jurisdiction  of  the  circuit  court.  If  the  defendant 
desires  to  have  any  matter  of  error  considered,  he  must  take  the  case  to  the  cir- 
cuit court  of  appeals."-^ 

Limitation  of  General  Rule. — But  "the  provision  that  any  case  in  which  the 
question  of  jurisdiction  is  in  issue  may  be  taken  directly  to  this  court,  necessarily 
extends  to  other  cases  than  those  in  which  the  final  judgment  rests  on  the  ground 
of  want  of  jurisdiction,  for  in  them  that  would  be  the  sole  question,  and  the  cer- 
tificate, though  requisite  to  our  jurisdiction  under  the  statute,  would  not  be  in 
kself  essential,  however  valuable  in  the  interest  of  brevity  of  record.  But  in  such 
other  cases,  the  requirement  that  the  question  of  jurisdiction  alone  should  be  certi- 
fied for  decision  was  intended  to  operate  as  a  limitation  upon  the  jurisdiction  of 
this  court  ©f  the  entire  case  and  of  all  questions  involved  in  it,  a  jurisdiction  which 


72.  Nichols  Lumber  Co.  v.  Frason,  203 
U.    S.   278,   283,   51    L.    Ed.   181. 

73.  United  States  v.  Jahn.  155  U.  S.  109. 
113,  39  L.  Ed.  87;  The  Bayonne,  159  U. 
S.  687.  692,  40  L.  Ed.  306,  reaffirmed  in 
Merritt  v.  Bowdoin  College,  167  U.  S. 
745,    42    L.    Ed.    1209. 

74.  Chicago  v.  Mills,  204  U.  S.  321.  51 
L.  Ed.  504,  citing  Wetmore  v.  Rjmier,  169 
U.   vS.   115.   42   L.   Ed.   682. 

By  the  act  of  February  25,  1889,  c.  236, 
25  Stat.  683,  it  was  provided:  "That  in  all 
cases  where  a  final  judgment  or  decree 
shall  be  rendered  in  the  circuit  court  of 
the  United  States  in  which  there  shall 
have  been  a  question  involving  the  juris- 
diction of  the  court,  the  party  against 
•whom  the  judgment  or  decree  is  rendered 
shall  be  entitled  to  an  appeal  or  writ  of 
error  to  the  supreme  court  of  the  United 
States  to  review  such  judgment  or  de- 
cree without  reference  to  the  amount  of 
the  same;  but  in  cases  where  the  judg- 
ment or  decree  does  not  exceed  the  sum 
€if  five  thousand  dollars,  the  supreme 
court  shall  not  review  any  question  raised 
npon  the  record  except  such  question  of 
jurisdiction."  The  act  of  1891  was  framed 
in  this  regard  in  view  of  the  former  act, 
and  section  five  restricts  the  power  of 
^is  court,  in  aTl  suits  in  which  its  ap- 
pellate jurisdiction  is  invoked  by  reason 
of  the  existence  of  a  question  involving 
^e  jurisdiction  of  the  circuit  court  over 
the  case  to  the  review  of  that  question 
only.     The   act   did  not   contemplate   sev- 


eral appeals  in  the  same  suit  at  the  same 
time,  but  gave  to  a  party  to  a  suit  in  the 
circuit  court  where  the  question  of  the 
jurisdiction  of  the  court  over  the  parties 
or  subject  matter  was  raised  and  put  in 
issue  upon  the  record  at  the  proper  time 
and  in  the  proper  way,  the  right  to  a  re- 
view by  this  court,  after  final  judgment 
or  decree  against  him,  of  the  decision 
upon  that  question  only,  or  by  the  cir- 
crit  courts  of  appeals  on  the  whole  case. 
McLish  V.  Roff.  141  U.  S.  661,  668,  35  L. 
Ed.  893;  Maynard  v.  Hecht.  151  U.  S. 
324,  38  L.  Ed.  179;  M^^ran  v.  Hagerman, 
151    U.    S.    329,    38    L.    Ed.    181. 

Where  the  question  raised  by  a  writ 
of  error  to  this  court  is  whether  the  cir- 
cuit court  erred  in  dismissing  the  plain- 
tiff's suit  for  the  alleged  reason  that  the 
value  of  the  property  in  dispute  did  not 
amount  to  the  sum  of  $2,000,  exclusive  of 
interest  and  costs,  and  therefore  such  suit 
does  not  really  and  substantially  involve  a 
dispute  or  controversy  properly  within 
the  jurisdiction  of  circuit  courts,  and  pre- 
scribed by  the  fifth  section  of  the  act  of 
March  3,  1891,  such  question  of  the  juris- 
diction of  the  circuit  court  alone  is  pre- 
sented for  our  decision.  Wetmore  v. 
Rvmer.  169  U.  S.  115,  42  L.  Ed.  682,  citing 
Shields  v.  Coleman,  157  U.  S.  168,  39  L. 
Ed.   660. 

75.  Schunk  v.  Moline,  etc.,  Co.,  147  U. 
S.  500.  37  L.  Ed.  255.  following  McLish 
V.   Roff.  141   U.   S.   661,   35   L.    Ed.   893. 


APPEAL  AND  ERROR. 


453 


can  be  exercised  in  any  other  class  of  cases  taken  directly  to  this  court  under  sec- 
tion five."^^ 

The  Merits  of  the  Case. — The  first  of  six  classes  of  cases  enumerated  in  § 
5  of  the  judiciary  act  of  March  3,  1891,  embraces  cases  "in  which  the  jurisdic- 
tion of  the  court  is  in  issue,"  that  is,  where  the  power  of  the  circuit  and  district 
courts  of  the  United  States  to  hear  and  determine  is  denied.'^"  An  erroneous  con- 
clusion in  regard  to  the  merits  of  the  case  can  only  be  reviewed  on  appeal  or  er- 
ror, or  in  such  appropriate  way  as  may  be  provided.'''** 

mmmm.  Waiver. — Where,  on  a  writ  of  error  to  the  United  States  circuit  court 
of  appeals,  the  plaintiff  contends,  on  his.  motion  to  dismiss,  that,  as  under  §  5 
of  the  act  of  1801,  the  jurisdiction  of  the  circuit  court  is  in  issue,  the  case  might 
have  been  brought  by  a  writ  of  error  directly  from  the  circuit  court  to  this  court,  but 
it  does  not  appear  by  the  record  that  the  defendant  on  the  trial  made  any  objec- 
tions to  the  jurisdiction  of  the  circuit  court,  but.  on  the  contrary,  the  pe'iHon  for 
removal  from  the  state  court  to  the  federal  court  recognizes  the  jurisdiction  of 
the  circuit  court,  even  if  a  writ  of  error  in  this  court  could  have  been  taken,  yet 
as  the  defendant  did  not  take  such  writ  of  error  but  took  one  from  the  circuit 
court  of  appeals  to  the  circuit  court,  the  plaintiff  cannot  be  heard  to  assert,  as  the 
ground  of  this  motion  to  dismiss,  the  fact  that  the  defendant  might  have  taken 
a  writ  of  error  from  this  court  to  the  circuit  court.  Nor  can  it  be  objected  as  a 
ground  for  this  motion,  that  the  defendant  has  waived  its  right  to  review  by  this 
court,  because  it  failed  to  take  a  writ  of  error  from  this  court  to  the  circuit  court, 
to  review  the  judgment  of  the  latter  court. '^^  \Miere  in  a  case  pending  in  the 
United  Stages  circuit  court  against  two  defendants,  an  interlocutory  decree  appoint- 
ing a  receiver  and  issuing  a  preliminary  injunction  is  entered,  and  one  of  them 
appeals  to  the  United  States  circuit  court  of  appeals,  which  affirms  the  decree, 
the  right  of  the  other  defendants  to  appeal  from  the  decree  of  the  circuit  court 
of  the  United  States,  an  appeal  to    the    supreme    court,  upon  the    question    of 


76.  In  re  Lehigh,  etc.,  Mfp.  Co..  156  U. 
S.  322,  327,  39  L.  Eel.  438;  United  States 
V.  Jahn,   155   U.   S.   109,  39   L.    Ed.   87. 

77.  Smith  v.  McKay.  161  U.  S.  355.  40 
L.  Ed.  731 ;  Vance  v.  Vandercook  Co. 
(No.  2),  170  U.  S.  468.  472.  42  L.  Ed.  1111; 
Mexican  Central  R.  v.  Eckman,  187  U. 
S.  429.  433.  47  L.  Ed.  245;  O'Neal  v. 
United  States,  190  U.  S.  36.  37.  47  L.  Ed. 
945. 

78.  O'Neal  v.  United  States.  190  U.  S. 
36,  38,  47  L.  Ed.  945;  Louisville  Trust  Co. 
V.  Comminger.  184  U.  S.  18,  26,  46  L.  Ed. 
413;  Ex  parte  Gordon.  104  U.  S.  515.  26 
L.   Ed.    814. 

The  supreme  court  of  tlie  United  States 
cannot  review  on  writ  of  error  a  proceed- 
ing in  a  district  court  imposing  imprison- 
ment for  contempt,  where  the  contention 
was  that  respondent  had  not  committed 
any  act  of  contempt.  The  case  does  not 
come  within  the  first  of  the  six  classes  of 
cases  enumerated  in  §  5  of  the  judiciary 
act  of  March  3,  1891.  Such  a  contention 
is  addressed  to  the  merits  of  the  case  and 
not  to  the  jurisdiction  of  the  court.  An 
erroneous  conclusion  in  that  regard  can 
only  be  reviewed  by  an  appeal  or  writ  of 
error,  or  in  such  aripropriate  way  as  may 
be  provided.  O'Neal  v.  United  States, 
190   U.   S.   36,   47   L.    Ed.    945. 

79.  Northern  Pac.  R.  Co.  v.  Amato,  144 
U.  S.   465,   36   L.   Ed.   506. 


In  Northern  Pac.  R.  Co.  v.  Amato,  144 
U.  S.  465,  36  L.  Ed.  506,  a  suit  was 
brought  in  the  supreme  court  of  New 
York  against  a  railroad  corporation 
created  by  an  act  of  congress,  to  recover 
damages  for  personal  injuries  sustained 
by  the  plaintiflf  from  the  negligence  of 
the  defendant,  and  was  removed  by  the 
defendant  into  the  circuit  court  of  the 
United  States,  where  a  trial  was  had, 
which  resulted  in  a  verdict  and  judgment 
for  the  plaintiflf.  The  defendant  took  a 
writ  of  error  from  the  circuit  court  of 
appeals  for  the  second  circuit,  which  af- 
firmed the  judgment.  On  a  writ  of  error 
taken  by  the  defendant  from  this  court 
to  the  circuit  court  of  appeals,  a  motion 
was  made  bv  the  plaintiflf  to  dismiss  or 
?ffirm;  and  it  was  ruled,  ainong  other 
things,  that  as  it  did  not  appear  by  the 
record  that  on  the  trial  in  the  circuit 
court  the  defendant  made  any  objection 
to  the  jurisdiction  of  that  court,  and  the 
petition  for  removal  recoe^nized  the  ju- 
risdiction, the  plaintiflf  could  not  be  heard 
to  assert,  as  a  ground  for  the  motion  to 
dismiss,  that  the  defendant  might  have 
taken  a  writ  of  error  from  this  court  to 
the  circuit  court  under  section  five  of  the 
said  act  of  IPOl,  and  had.  bv  failing  to  do 
so,  waived  this  risrht.  United  States  v. 
Tnhn.  155  U.  S.  109.  116,  39  L.  Ed.  87; 
'Pobinscn  v.  Caldwell,  165  U.  S.  359,  41  L. 
Ed.   745. 


454  APPEAL  AND  ERROR. 

the  jurisdiction  of  the  circuit  court,  is  not  affected  by  the  affirmance  of  the  inter- 
locutory decree  by  the  circuit  court  of  appeals.^" 

bbb.  In  Prise  Causes. — In  General. — Section  5  of  the  act  of  March  3, 1891,  pro- 
vides that  appeals  or  writs  of  error  may  be  taken  from  the  existing  circuit  courts 
direct  to  the  supreme  court  final  sentences  and  decrees  in  prize  causes. 
This  court  has  held,  in  an  exhaustive  opinion,  in  which  all  the  statutes  were  re- 
viewed, that  the  act  of  1891,  upon  its  face,  read  in  the  light  of  settled  rules  of 
statutory  construction,  and  of  the  decisions  of  this  court,  clearly  manifests  the 
intention  of  congress  to  cover  the  whole  subject  of  the  appellate  jurisdiction  from 
the  district  and  circuit  courts  of  the  United  States,  so  far  as  regards  in  what  cases, 
as  well  as  to  what  courts,  appeals  may  be  taken,  and  to  supersede  and  repeal,  to 
this  extent,  all  the  provisions  of  earlier  acts  of  congress,  including  those  that  im- 
posed pecuniary  limits  upon  such  jurisdiction ;  and,  as  part  of  the  new  scheme,  to 
confer  upon  this  court  jurisdiction  of  appeals  from  all  final  sentences  and  decrees 
in  prize  causes,  without  regard  to  the  amount  in  dispute,  and  witlx)Ut  any  certifi- 
cate of  the  district  judge  as  to  the  importance  of  the  particular  case.^^ 

Section  695  of  the  Revised  Statutes  provides  that  "an  appeal  shall  be  al- 
lowed to  the  supreme  court  from  all  final  decrees  of  any  district  court  in  prize 
causes  where  the  matter  in  dispute,  exclusive  of  costs,  exceeds  the  sum  or  value  of 
two  thousand  dollars ;  and  shall  be  allowed,  without  reference  to  the  matter  in 
dispute,  on  the  certificate  of  the  district  judge  that  the  adjudication  involves  a 
question  of  general  importance. "^^ 

ccc.  In  Cases  of  Conviction  of  Capital  or  Infamous  Crimes — aaaa.  By  Act  of 
March  ^rd,  i8qi — aaaaa.  In  General. — By  the  act  of  March  3rd,  1891,  appeals 
or  writs  of  error  may  be  taken  from  the  existing  circuit  courts  direct  to  the 
supreme  court  in  cases  of  conviction  of  a  capital  or  otherwise  infamous  crime. 
"This  clause  looks  to  the  nature  of  the  crime,  and  not  to  the  extent  of  the  punish- 
ment actually  imposed.  A  crime  which  might  have  been  punished  by  imprisonment 
in  a  penitentiary^is  an  infamous  crime,  even  if  the  sentence  actually  pronounced 
is  of  a  small  fine  only.  *  *  *  Consequently,  such  a  sentence  for  such  a  crime 
was  subject  to  the  appellate  jurisdiction  of  this  court,  under  this  clause,  until  this 
jurisdiction,  so  far  as  regards  crimes  not  capital,  was  transferred  to  the  circuit 
court  of  appeals  by  the  act  of  January  20,  1897,  c.  68.  29  Stat.  492."S3 

A  Matter  of  Rio^ht. — A  writ  of  error  from  this  court  direct  to  a  circuit  court 
imder  the  act  of  March  3,  1891,  in  cases  of  conviction  of  a  capital  or  otherwise 
infamous  crime,  is  a  matter  of  right.*"* 

District  of  Columbia. — But  this  section,  even  when  taken  in  connection  with 
§  846  of  the  Revised  Statutes  of  the  District  of  Columbia,  cannot  be  extended  so 
as  to  give  this  court  jurisdiction  over  judgments  of  the  supreme  court  of  the  Dis- 
trict of  Columbia  in  criminal  cases.*-"' 

Retrospective  Operation  of  Statute. — Under  the  5th  section  of  the  act 
of  March  3,  1891,  providing  that  a  writ  of  error  may  be  taken  from  an  existing 
circuit  court  direct  to  the  supreme  court  of  the  United  States  in  cases  of  con- 
viction of  a  capital  or  otherwise  infamous  crime,  a  writ  of  error  may  issue  from 
this  court  to  a  circuit  court  even  before  July  1,  1891,  to  review  a  conviction  under 
§  5209  of  the  Revised  Statutes,  where  the  accused  was  convicted  May  28.  1890, 
but  before  he  was  sentenced  under  his  conviction,  congress  passed  the  act  of  March 
3,  1891,  although  by  a  joint  resolution  "approved  March  3,  1891,  entitled  'Joint 
resolution  to  provide  for  the  organization  of  the  circuit  court  of  appeals,'  it  was 

80.  Stillman   v.    Combe,    197    U.    S.    436,        677,   680.   44   L.    Ed.   320. 

49   L.    Ed.    822.  83.    The   Paquete  Habana,  175  U.  S.  677, 

81.  The  Paquete  Habana,  175  U.  S.  677,       682.    44    L.    Ed.    320. 

685.   44    L.    Ed.    320;    Woey   Ho   v.    United  84.    In  re   Claasen.   140  U.   S.  200.   35   L. 

States,  191  U.  S.   558,  48  L.   Ed.  301;   Holt  Ed.    409. 

•:    Indiana    Mig.    Co.,   176   U.    S.   68,   44    L.  85.    In  re  Heath.  144  U.  S.  92,  36  L.  Ed. 

Ed.   374.  358.  distinguishing  Wa'ps  v.   Whitnev,  114 

82.  The    Paquete    Habana,    175    U.    S.  U.    S.    564,   29    L.   Ed.   277. 


APPEAL  AND  ERROR. 


455 


provided  that  nothing  in  the  above-mentioned  act  of  March  3,  1891,  should  be 
held  or  construed  in  anywise  to  impair  the  jurisdiction  of  the  supreme  court  or 
any  circuit  court  of  the  United  States  'in  any  case  now  pending  before  it,  or  iu 
respect  of  any  case  wherein  the  writ  of  error'  should  .have  been  sued  out  before 
July  1,  1891. "*«  Where  the  conviction  of  the  defendant  was  before  the  passage 
of  the  judiciary  act  of  March  3^  1891,  ch.  517,  no  bill  of  exceptions  could  be  al- 
lowed by  the  circuit  court  to  the  rulings  and  instructions  at  the  trial. ^' 

bbbbb.  Infamous  Crimes  Defined. — In  General. — In  determining  whether  the 
crime  is  infamous,  the  question  is,  whether  it  is  one  for  which  the  statute  author- 
izes the  court  to  award  an  infamous  punishment,  and  not  whether  the  punishment 
ulrimately  awarded  is  an  infamous  one.^^  A  crime  which  is  punishable  by  im- 
prisonment in  the  state  prison  or  penitentiary,  whether  the  accused  is  or  is  not 
sentenced  or  put  to  hard  labor,  is  an  infamous  crime  within  the  meaning  of  the 
act  of  March  3,  1891,  allowing  a  writ  of  error  from  an  existing  circuit  court  di- 
rect to  the  supreme  court  of  the  United  States  in  cases  of  conviction  of  capital 
or  otherwise  infamous  crimes.^^  A  crime  which  might  have  been  punished  by  im- 
prisonment in  a  penitentiary  is  an  infamous  crime,  even  if  the  sentence  actually 
pronounced  is  of  a  small  fine  only.^^ 

The  test  of  a  capital  crime  under  §  5  of  the  circuit  court  of  appeaL  act  as 
amended  by  the  act  of  January  20.  1897,  specifying  the  cases  in  which  a  writ  of 
error  may  be  issued  directly  to  a  district  court,  is  not  the  punishment  which  is  im- 
posed, but  that  which  may  be  imposed  under  the  statute. ^^ 

A  conviction  for  murder,  punishable  with  death,  is  not  the  less  a  con- 
viction for  a  capital  crime  by  reason  of  the  fact  that  the  jury,  in  a  particular  case, 
qualified  the  punishment,  and  in  such  circumstances,  the  supreme  court  has  juris- 
diction under  §  5  of  the  judiciary  act  of  March  3,  1891,  providing  therefor  "in 
cases  of  conviction  of  a  capital  crime. "''^ 

Specific  Offenses  Considered. — The  offenses  of  making  false  entries  in 
violation  of  the  provision  of  §  5209  of  the  Revised  Statutes  of  the  United  States, 
if  punishable  by  imprisonment  not  less  than  five  nor  more  than  ten  years,  and  is 
therefore  an  infamous  crime. ^-^ 

Bank  ofUcers  issuing  false  and  fraudulent  reports  contrary  to  the  Revised 
Statutes  of  the  United  States,  §§  5209,  5211,  are  guilty  of  an  infamous  crime 
within  the  meaning  of  this  statute. ^^ 


86.  Tn  re  Claasen.  140  U.  S.  200,  .35  L. 
Ed.   409. 

87.  Claasen  f.  United  States.  142  U. 
S.   140,  35  L.  Ed.   966. 

88.  In  re  Claasen,  140  U.  S.  200,  35  L- 
Ed.    469. 

"As  was  observed  in  In  re  Claasen,  140 
U.  S.  200,  205,  35  L.  Ed.  4«9,  with  re- 
spect to  infamous  crimes  under  the  court 
of  appeals  act  prior  to  its  amendment: 
'A  crime  which  is  punishable  by  imprison- 
ment in  the  state  prison  or  penitentiary, 
as  the  crime  of  which  the  defendant  was 
convicted,  is  an  infamous  crime  whether 
the  accused  is  or  is  not  sentenced  or  put 
to  hard  labor;  and  that,  in  determining 
whether  the  crime  is  infamous,  the  ques- 
tion is,  whether  it  is  one  for  which  the 
statute  authorizes  the  court  to  award  an 
infamous  punishment,  and  not  whether 
the  punishment  ultimately  awarded  is  an 
infamous  one.' "  Fitzpatrick  v.  United 
States.  178  U.  S.  304  307,  44  L.  Ed.  1078. 
See,  also,  Ex  parte  Wilson.  114  U.  vS.  417, 
426.  29  L.  Ed.  89;  Log-an  v.  United  States, 
144  U.  S.  263,  308,  36  L.  Ed.  429;  The 
Paquete    Habana,    175    U.    S.    677,    682,    44 


L.    Ed.    320;    Motes   v.    United    States,    178 
U.    S.    458.    44    L.    Ed.    1150. 

89.  In  re  Claasen,  140  U.  S.  200,  35  L. 
Ed.  409;  Ex  parte  Wilson,  114  U.  S.  417, 
29  L.  Ed.  89;  Mackin  v.  United  States, 
117  U.  S.  348,  29  L.  Ed.  909;  Parkinson  v. 
United  States,  121  U.  S.  281.  30  L.  Ed. 
959;  United  States  v.  De  Walt,  128  U.  S. 
393.  32  L.  Ed.  485;  In  re  Medley,  134  U. 
S.  160,  33  L.  Ed.  855;  In  re  Mills,  135  U. 
S.  263,  34  L.  Ed.  107;  Ansbro  v.  United 
States.   159   U.   S.   695.  40   L.    Ed.  310. 

90.  Ex  parte  Wilson,  114  U.  S.  417.  4''6,  2<» 
L.  Ed.  89;  The  Paqtiete  Habana,  175  U. 
S.  677.  682,  44  L.  Ed.  320,  reaffirmed  ifi 
Woey  Ho  v.  United  States,  191  U.  S. 
558    4''    L.    Ed.   301. 

91.  Fitzpatrick  v.  United  States.  178  U. 
S.    304.    44    L.    Ed.    1078. 

92  Good  ^b-t  7'.  United  Stat^^s.  179  U. 
S.  87.  45  L.  Ed.  101.  following  Fitzpatrick 
V.  United  States,  178  U.  S.  304,  44  L.  Ed. 
1078. 

93.  Folsom  V.  Unitf^d  States,  160  U.  S. 
121.  40  L.  Ed.  363.  citin.sr  In  re  Claasen, 
140  U.   S.  200.  35  L.   Ed.  409. 

94.  Ex  parte  Bain,  121  U.  S.  1,  30  L. 
Ed.   849. 


456  APPEAL  AND  ERROR. 

Passing  counterfeit  coin  is  an  infamous  crime.^^ 

Passing  counterfeit  bonds  of  the  United  States  is  an  infamous  crime  within 
the  meaning  of  the  statute. ^"^ 

Embezzlement  and  making  false  entries  by  a  president  of  a  national  bank 
is  an  infamous  crime. ^' 

Unlawful  and  fraudulent  voting  at  an  election  is  an  infamous  crime  within 
the  meaning  of  the  statute. ^^ 

The  crime  of  dumping  injurious  deposits  within  the  harbor  and  ad- 
jacent waters  of  New  York  city,  in  violation  of  the  act  of  congress  of  June 
29,  1888,  25  Stat.  209,  c.  496,  is  not  punishable  by  imprisonment  for  a  term  of 
over  one  year  or  at  hard  labor;  and  persons  convicted  thereof  cannot  be  sentenced 
to  imprisonment  in  a  penitentiary;  therefore,  it  is  not  an  infamous  crime. "^-^ 

A  conviction  of  murder  punishable  with  death  is  a  "conviction  of  a  capital 
crime"  within  the  meaning  of  the  court  of  appeals  act  of  March  3,  1891,  §  5., 
as  amended  by  the  act  of  January  20,  lo97,  specifying  the  cases  in  which  a  writ 
of  error  may  be  issued  directly  to  a  district  court.  This  is  so  even  though  the 
jury  is  given  by  the  act  of  January  15,  1897  the  power  to  qualify  the  verdict  of 
guilty  by  adding  the  words  "without  capital  punishment"  and  by  reason  thereof 
the  prisoner  is  only  subjected  to  the  imposition  of  a  life  imprisonment  as  a  punish- 
ment.^  "A  conviction  for  murder,  punishable  with  death,  is  not  the  less  a  con- 
viction for  a  capital  crime  by  reason  of  the  fact  that  the  jury,  in  a  particular  case, 
qualifies  the  punishment. "^ 

ccccc.  Remedies  for  Transfer  of  Cause. — By  section  five  of  the  act  of  March 
3,  1891,  c.  517,  26  Stat.  826,  "appeals  or  writs  of  error  may  be  taken  from  the 
district  courts  or  from  the  existing  circuit  courts"  of  the  United  States  directly 
to  this  court,  in  certain  enumerated  cases,  civil  and  criminal,  among  others,  "in 
cases  of  conviction  of  a  capital  or  otherwise  infamous  crime."  There  was  no 
purpose  by  that  act  to  abolish  the  general  distinction,  at  common  law,  between  an 
appeal  and  a  writ  of  error .^  The  final  judgment  of  a  court  of  the  United  States 
in  a  case  of  the  conviction  of  a  capital  or  otherwise  infamous  crime  is  not  review- 
able here  except  upon  writ  of  error.* 

ddddd.  Scope  of  Revieiv. — Our  review  of  the  judgment,  when  brought  here  by 
writ  of  error,  is  confined  to  questions  of  law,  properly  presented  by  a  bill  of  ex- 
ceptions, or  arising  upon  the  record.^ 

eeeee.  Reversal. — This  court  has  power  under  this  section,  upon  a  reversal,  to 
enter  a  proper  judgment,  or  to  remand  the  cause  to  the  lower  court  with  such  di- 
rections for  further  proceedings  as  will  promote  substantial  justice.^ 

bbbb.  By  Act  of  January  20,  i8g8. — As  originally  passed,  the  act  of  March  3, 
1891,  gave  to  this  court  jurisdiction  over  cases  of  infamous  crimes  in  addition  to 
that   which  it  theretofore  had   in  capital   cases.' 

But  the  act  of  JanuQ,ry  20,  1897,  c.  68,  withdraws  from  the  consideration  of 
this  court,  upon  appeal  or  writ  of  error  direct  from  the  circuit  court,  cases  of  con- 
viction of  infamous  crimes  not  capital,  and  gives  jurisdiction  in  such  cases,  upon 

95.  United  States  v.  Petit,  114  U.  S.  3.  Bucklin  v.  United  States,  159  U.  S. 
429,   29    L.    Ed.   93.  680,   681,    10   L.   Ed.   304. 

96.  Ex  parte  Wilson,  114  U.  S.  417,  29  4.  Bucklin  v.  United  States,  1.59  U.  S. 
L.   Ed.   89.  680,    681,    40    L.    Ed.    304,    distinguished    in 

97.  United  States  v.  De  Walt.  128  U.  S.  Rice  v.  Ames.  180  U.  S.  371,  375,  45  L. 
393,  32   L.   Ed.   485.  Ed.    577;    Fisher   v.    Baker,    203    U.    S.    174, 

98.  Parkinson  v.   United   States,   121  U.       182,  51  L.   Ed.  142. 

S.  281,  30  L.   Ed.   959.  5.     Bucklin   v.   United    States,   159   U.   S. 

99.  Ansbro  v.  United   States,   159   U.   S.       680,  681.  40  L.  Ed.   304. 

695,  40  L.  Ed.  310.  6.     Ballew   v.    United    States.    160    U.    S. 

1.  Fitzpatnck  v.   United   States,   178   U.       187,  40   L.   Ed.  388. 

S.  304,  44  L.  Ed.  1078.                                                 7_     Bessette    v.    Conkey    Co.,    194    U.  S. 

2.  Fitzpatnck  v.  United  States.  178  U.  324,  ■  336,  48  L.  Ed.  997,  reaffirmed  in  In 
S.  304,  307, -44  L.  Ed.  1078;  Goodshot  v.  the  Matter  of  Lewis,  202  U.  S.  614,  50 
United  States,  179  U.  S.  87,  45  L.  Ed.  101.  L    Ed    1172 


APPEAL  AND  ERROR. 


457 


appeal  or  writ  of  error,  only  to  the  proper  circuit  court  of  appeals. ^ 

Contempt. — This  court  has  no  jurisdiction  on  error  to  review  an  order  of  a 
district  court  punishing  for  contempt.^ 

While  proceedings  in  contempt  may  be  said  to  be  sui  generis,  a  judgment 
in  such  proceedings  in  a  district  court  imposing  imprisonment  is  in  effect  a  judg- 
ment in  a  criminal  case,  over  which  this  court  has  no  jurisdiction  on  error. i" 

But  this  court  may  stiH  take  jurisdiction  of  criminal  cases  not  capital  un- 
der other  jrlauses  of  §  5.  This  court,  under  the  act  of  March  3,  1891,  26  Stat. 
826.  c.  517.  establishing  circuit  courts  of  appeals,  can  take  cognizance  of  a  crim- 
inal case,  upon  writ  of  error  to  review  the  judgment  of  a  circuit  court  in  a  crim- 
inal case,  when  the  case  really  "involves  the  construction  or  application  of  the 
constitution  of  the  United  States."'"  That  act  does  not  make  a  distinction  be- 
tween civil  and  criminal  causes. ^^ 

Right  of  Confrontation. — Where  it  is  necessary  for  the  circuit  court  to  de- 
termine whether  th<?  admission  of  certain  testimony  in  a  criminal  case  was  not  an 
infringement  of  rights  secured  to  the  accused  by, the  6th  amendment  to  the  consti- 
tution, declaring  that  in  all  criminal  prosecutions  the  accused  shall  enjoy  the  rigiit 
to  be  confronted  with  the  witness  against  him,  such  case  involves  the  construc- 
tion and  application  of  the  constitution  of  the  United  States,  and  may  be  taken 
directly  to  this  court  under  the  act  of  January  20,  1897,  c.  68.^-^ 

ddd.  In  Cases  Involving  the  Construction  or  Application  of  the  Federal  Con- 
stitution— aaaa.  In  General. — Section  5  of  the  act  of  March  3,  1891,  provides  that 
appeals  or  writs  of  error  may  be  taken  from  the  exi.sting  circuit  court  direct 
to  the  supreme  court  in  any  case  that  involves  the  construction  or  application 
of  the  constitution  of  the  United  States. ^^ 


8.  Motes  V.  United  States,  178  U.  S. 
458,  466,   44   L.    Ed.   1150. 

A  circuit  court  of  appeals  has  no  juris- 
diction to  review,  upon  writ  of  error,  the 
trial,  judgment  and  sentence  of  an  Indian 
to  imprisonment  for  life,  founded  upon 
a  verdict  rendered  on  a  trial  of  an  in- 
dictment of  the  Indian  for  murder,  by 
which  verdict  the  jury  found  the  defend- 
ant '"guilty  as  charged  in  the  indictment, 
without  capital  punishment."  The  remedy 
is  by  writ  of  err-^r  from  the  supreme 
court  of  the  United  States  to  the  circuit 
court.  Good  Shot  v.  United  States,  179 
U.  S.  87.  45  L.  Ed.  101. 

9.  Section  5,  act  of  March  3.  1891,  26 
Stat.  826,  c.  517,  as  amended  by  the  act 
of  January  20,  1897,  29  Stat.  492,  c.  68; 
In  re  Chetwood,  165  U.  S.  443,  462,  41 
L.  Ed.  782;  Tinsley  v.  Anderson.  171  U. 
S.  101.  105,  43  L.  Ed.  91;  Gary  Mfg.  Go. 
T'.  Acme  Flexible  Glasp  Go..  187  U.  S. 
427,  428,  47  L.  Ed.  244;  O'Neal  v.  United 
States.  190  U.  S.  36,  47  L.  Ed.  945;  Bes- 
sette V.  Gonkey  Go..  194  U.  S.  324,  334, 
48  L.  Ed.  997.  realTirmed  in  In  the  Matter 
of   Lewis,   202    U.    S.    614,    50    L.    Ed.    1172. 

10.  Section  5,  act  of  March  3,  1891, 
26  Stat.  826,  ch.  517.  as  amended  by  the 
act  of  January  30.  1897.  29  Stat.  492,  ch. 
68.  In  re  Ghetwood,  165  U.  S.  443,  462, 
41  L.  Ed.  782;  Tinsley  v.  Anderson,  171 
U.  S.  lOi,  105.  43  L.  Ed.  91;  Gary  Mfg. 
Co.  V.  Acme  Flexible  Gla.sp  Go.,  187  U. 
S.  427.  428,  47  L.  Ed.  244;  O'Neal  v. 
^""'ted  States,  190  U.  S.  36.  38,  47  L.  Ed. 
945. 

xl.  Motes  V.  United  States,  178  U.  S. 
458,   466,  44   L.    Ed.   1150. 


"At  the  present  term  of  this  court,  we 
have  taken  cognizance  of  a  criminal  case 
involving  a  misdemeanor,  broi^ght  here 
directly  from  a  circuit  court  of  the  United 
States.  Rider  v.  United  States.  178  U. 
S.  251.  44  L.  Ed.  1057.  And  we  had 
previously  in  United  States  v.  Rider,  163 
U.  S.  132,  138,  41  L.  Ed.  101,  said:  'By 
section  six  (of  the  circuit  court  of  ap- 
peals act)  the  judgments  or  decrees  of 
the  circuit  courts  of  appeals  were  made 
final  "in  all  cases  arising  under  the  crim- 
inal laws,"  and  in  certain  other  classes 
of  cases,  unless  questions  were  certified 
to  this  court  or  the  whole  case  ordered 
up  by  writ  of  certiorari  as  therein  pro- 
vided. American  Gcnstruction  Go.  v. 
Jacksonville,  etc.,  R.  Go.,  148  U.  S.  372, 
37  L.  Ed.  486.  Thus,  appellate  jurisdic- 
tion was  given  in  all  criminal  cases  b}' 
writ  of  error  either  from  this  court  or 
from  the  circuit  court  of  appeals,  and  in 
all  civil  cases  by  appeal  or  writ  of  error 
without  regard  to  the  amount  in  con- 
troversy, except  as  to  appeals  or  writs 
of  error  to  or  from  the  circuit  courts  of 
appeals  in  cases  not  made  final  as  speci- 
fied in  §  6.'  "  Motes  v.  United  States,  178 
U.  S.   458.  466.  44  L.   Ed.   1150. 

12.  Motes  V.  United  States,  178  U.  S. 
458.  466,  44  L.   Ed.   1150. 

13.  Motes  V.  United  States,  178  U.  S. 
458,  44  L.  Ed.  1150. 

14.  United  States  v.  Sanges,  144  U.  S. 
310,  311,  36  L.  Ed.  445;  In  re  Lennon, 
150  U.  S.  393,  37  L.  Ed.  1120;  Muse  v. 
Arlington  Hotel  Go.,  168  U.  S.  430,  42  L. 
Ed.  531;   Nelson  v.  United  States,  201  U. 


458 


APPEAL  AXD  ERROR. 


Construction  of  Fourteenth  Amendment. — \Micre  it  is  claimed  that  a  judg- 
ment of  the  supreme  court  of  the  United   States  gives  such  unwarranted  effect 


S  93  50  L.  Ed.  673;  Filhiol  v.  Maurice, 
185  U.  S.  108.  46  L.  Ed.  827;  Turner  v. 
Williams,  194  U.  S.  279,  48  L.  Ed.  979;  De- 
liance  Water  Co.  v.  Defiance,  191  U.  S.  184, 
194,  48  L.  Ed.  140;  Cummings  v.  Chicago, 
ISS'U.  S.  410.  426,  47  L.  Ed.  525,  reaffirmed 
in  Jessup  V.  Trustees,  etc.,  of  Southhamp- 
ton, 195  U.  S.  624,  49  L.  Ed.  349. 

Regulations  c£  treasury  department. — A 
court   of   Hmited  jurisdiction   in    Kentucky 
adjudged   a  United   States  collector   of  in- 
ternal revenue  to  be  in   contempt  because 
he    refused,    in    making    a    deposition,    to 
famish    copies    of    reports,    made    by    dis- 
tillers,   an-d    which    were    in    his    custody. 
The   refusal  was  based  upon   a   regulation 
of    the    treasury     department    which     had 
been  made  by  the   secretary  of  the   treas- 
ury  under   authority   conferred   by      §    161. 
Rev.    Stat.,    authorizing    him    to    prescribe 
regulations     for     the     custody,     uses    and 
preservation    of   the    records,   papers,   etc.. 
appertaining    to    his     department.       Upon 
the  arrest  of  the  collector  under  order  of 
the   state  court,  he  sued  out  a  writ  of  ha- 
beas   corpus    before    the    district    court    of 
the   United   States   for   Kentucky.      It   was 
bed,    that    a    direct    appeal    from    a    final 
order   of  the   district   court   of  the   United 
States   for   the   district   of    Kentucky,    dis- 
ehargrng      the      appellee,      was      properly 
brought,  the   c?se  belonging  to  that   class 
of    cases    in    which    it    is   provided   by   the 
act  of  March  3,  1891,  that  appeals  or  writs 
of   error   may   be   taken   from    the   district 
courts    or    from    the    circuit    courts    direct 
to    the    supreme    court    "in   any    case    that 
involves    the    construction    or    application 
of   the  constitution   of  the  Uniteid  States." 
The    appellee,    who    was    discharged    upon 
habeas   corpus,   invoked   the   protection   of 
the     corhstitution     against     his     being     re- 
strained   of    his    liberty    by    the    appellant 
akcting  under  an  order  of  commitment   is- 
sued  by   an   inferior   state    court;    and   the 
judgment   of  the   district   court   proceeded 
upon    the     ground     that    the    proceedings 
against    him    were    inconsistent    w  'h    the 
laws    of   the    United    States    and   with    the 
regulations  of  the  treasury  department  le- 
gally      prescribed       under       those       laws. 
Throughout,    the    contention    of    the    ap- 
pellant has  been  that  the  constitution  for- 
bade   the    giving    of    the    force    of    law    to 
those    regulations   adopted   by   merely   ex- 
ecutive    officers.      The    case    is     prooerly 
before    the    supreme    court    of   the    United 
States    on    appeal    as    one    involving    the 
construction    and    annlication    of    the    con- 
Ftittition    of    the    Ignited    States.    Boske   z'. 
Cominsjore.   177  U.    S.    459,  44   L.    Ed.   846. 
Denial  of  right  to  vote  for  members  of 
congress. — An   action   brought   in   the    cir- 
ciiit    court    of    the    United    States    a^inst 
election  officers  of  a  state  to  rpco\  e^^dam- 
ages    for   refusing   the    plaintiff's   votfe    for 


a  member  of  congress,  is  a  case  which 
involves  the  construction  and  application 
of  the  constitution  of  the  United  States, 
and  is.  therefore,  rightly  brought  directly 
from  the  circuit  court  to  the  supreme 
court  of  the  United  States  under  the  act 
of  March  3,  1891,  ch.  517,  §  5,  cl.  4,  26 
Stat.  828.  Wiley  v.  Sinkler,  179  U.  S.  58, 
45  L.  Ed.  84;  Swafford  v.  Templeton. 
1S5   U.    S.   487.  491,   46    L.    Ed.    1005. 

Power  of  congress  over  navigable  wa- 
ters.— A  case  involving  the  consideration 
of  questions  relating  to  the  power  of 
congress,  under  the  constitution,  over 
navigable  waters  of  the  United  States,  be- 
longs to  that  class  of  cases  which  may  be 
appealed  from  the  circuit  court  direct 
to  the  supreme  court  by  virtue  of  the  act 
of  March  3,  1891,  c.  517.  Cummings  v. 
Chicago,  188  U  S.  410,  426,  47  L.  Ed.  5''5, 
reaffirmed  in  Jessup  v.  Trustees,  etc.,  of 
Southhampton,  195  U.  S.  624,  49  L.  Ed. 
34;>. 

Denial  of  constitutional  right  to  vote. 
— The  supreme  court  of  the  United  States, 
on  direct  writ  of  error  to  a  circuit  court 
of  the  United  States,  has  jurisdiction  to 
review  a  judgment  of  that  court  dismiss- 
ing an  action  to  recover  damages  for  an 
asserted  wrongful  refusal  by  state  elec- 
tion officials  to  permit  the  plaintiif  to 
vote  at  a  national  election  for  members 
of  the  house  of  representatives.  It  is  a 
case  involving  the  construction  or  appli- 
cation of  the  constitution  of  the  United 
States.  Swafford  v.  Templeton,  185  U.  S. 
487,  491,  4G  L.  Ed.  1005,  citing  and  approv- 
ing Wiley  r.  Smkler,  179  U.  S.  58,  45  L. 
Ed.  84,  and  reaffirmed  in  Stuart  v.  Hauser, 
203    U.    S.    585,    51    U    Ed.    328. 

Privileges  cf  representatives  from  ar- 
rest.— A  case  which  involves  the  con- 
struction or  application  of  §  6.  art.  1.  of 
the  constitution  of  the  United  States,  pro- 
viding that  senators  and  representatives 
shall,  in  all  cases  except  treason,  felony 
and  breach  of  the  peace,  be  privileged 
from  arrest  during  their  attendance  at  the 
sessions  of  their  respective  hovises  and 
in  going  to  and  returning  from  the  same, 
may  be  taken  to  this  court  directl}^  from 
a  district  court.  And  in  such  case  the 
statute  grants  this  court  jurisdiction  to 
issue  the  w^it  of  error  directly  to  the 
district  court,  and  then  to  decide  the  case 
without  being  restricted  to  the  constitu- 
tional Question.  Burton  i'.  Un'ted  States, 
196  U.  S.  283,  49  L.  Ed.  482.  citing  Horner 
r.  United  States.  143  U.  S.  570,  36  L.  Ed. 
266. 

Privilege  of  refusing  to  testify. — Where 
a  witn<"ss  claims  an  immunitv  from  testi- 
fying in  answer  to  a  subpoena  duces  tecum 
to  prrdrre  certain  books  and  papers,  bas- 
in'^ his  immunity  en  the  fifth  amendment 
to    the   federal    constitution,    this    involves 


APPEAL  AND  ERROR. 


459 


to  a  judgment  of  the  state  court  as  to  deprive  a  party  of  his  property  without  due 
process  of  law,  it  may  be  reviewed  by  the  supreme  court  of  the  United  States  on 
direct  appeal  from  the  circuit  court  on  the  ground  that  the  case  involves  the  ap- 
plication of  the  constitution  of  the  United  States. ^^ 

Necessity  for  Request  for  Ruling.— In  order  to  bring  a  case  within  this 
clause  of  the  act,  the  circuit  court  must  have  construed  the  constitution,  or  ap- 
plied  it  to  the  case,  or  must,  at  least,  have  been  requested  and  have  declined  or 
omitted  to  construe  or  apply  it.  No  construction  or  application  of  the  constitu- 
tion  can  be  said  to  .  ave  been  involved  in  the  judgment  below,  when  no  construc- 
tion or  application  thereof   was  either  expressed  or  asked   for.^" 

bbbb.  Determination  of  Question. — In  General. — Whether  a  suit  is  one  that 
arises  under  the  constitution  or  laws  of  the  United  States  is  determined  by  the 
questions  involved.  If  from  them  it  appears  that  some  title,  right,  privilege  or 
mimunity  on  which  the  recovery  depends  will  be  defeated  by  one  construction  of 
the  constitution  or  a  law  of  the  United  States,  or  sustained  by  the  opposite  con- 
>>trnctic-'.  then  the  case  is  one  arising  under  th^  constitution  or  laws  of  the  United 
States.^^ 

i^eoision  Must  Necessarily  and  Directly  Involve  the  Construction  or  Ap- 
plication of  the  Federal  Constitution. —  It  is  only  when  a  construction  or  ap- 
phcation  of  the  constitution  of  the  United  States  is  directly  drawn  in  question, 
and  not   merely   incidentally   involved,   that   we   can   take    jurisdiction, ^^  and  the 


questions  under  the  federal  constitution, 
giving  this  court  jurisdiction  by  direct 
^peal  from  the  circuit  court.  Xelson  v. 
United  States,  201  U.  S.  92,  50  L.   Ed.  673. 

16.  Fayerweather  v.  Ritch,  195  U.  S. 
2T6,  49   L.    Ed.    193. 

"In  Chicago,  etc..  R.  Co.  v.  Chicago, 
166  U.  S.  226,  41  L.  Ed.  979,  we  held  that 
a  judgment  of  a  state  court  might  be 
here  reviewed  if  it  operated  to  deprive  a 
party  of  his  property  without  due  process 
of  law.  and  that  the  fact  that  the  parties 
were  properly  brought  into  court  and  ad- 
mitted to  make  defense  was  not  ab^o- 
lutelj'  conclusive  upon  the  question  of  due 
prQcess."  Fayerweather  v.  Ritch,  195  U. 
S.  276.  297,  49"  L.    Ed.   193. 

"If  a  judgment  of  a  state  court  can  be 
reviewed  by  this  court  ©n  error  upon  the 
ground  that,  although  the  forms  of  law 
were  observed,  it  necessarily  operated  to 
wrongfully  deprive  a  party  of  his  property 
(as  indicated  by  the  decision  just  referred 
to)  a  judgment  of  the  circuit  court  of  the 
United  States,  claimed  to  give  such  un- 
warranted effect  to  a  decision  of  a  state 
court  as  to  accomplish  the  same  result, 
may  also  be  considered  as  presenting  the 
question  how  far  it  can  be  sustained  in 
the  view  of  the  prohibitory  language  of 
the  fifth  amendment,  and  thus  involve  the 
application  of  the  constitution."  Fayer- 
weather z\  Ritch.  195  U.  S.  276.  298.  49 
L.  Ed.   193. 

Impairment  of  obligation  of  contract. — 
A  srit  in  equity  in  the  circuit  court  of  the 
United  states  brought  by  the  waterworks 
company  against  a  city  claiming  the  ex- 
clusive right  under  a  contract  with  the 
city  for  the  construction  and  maintenance 
of  the  waterworlcs  and  for  supplving  the 
crty  with  water  for  a  period  rf  thirtv 
years,  and  in  which  it  is  alleged  t-.at  such 


contract  would  be  destroyed  if  subjected 
to  the  competition  of  a  system  of  water- 
works to  be  erected  by  the  city  itsrK, 
which  was  in  contemplation  under  author- 
ity of  an  act  authorizing  the  city  to  issae 
bonds  for  that  purpose,  and  in  which  suit 
it  is  alleged  that  a  resolution  has  been 
passed  authorizing  and  providing  for  no- 
tice to  the  complainant  that  liability  is  de- 
nied under  th€  contract  for  the  use  of 
their  waterworks  hydrants,  presents  a 
federal  question  under  §  5  of  the  act  of 
March  3.  1891,  and  appeal  will  lie  directly 
from  the  decree  of  the  circuit  court  of 
the  United  States  to  the  suprenve  court 
of  the  United  States.  Vicksburg  7'.  Water- 
works  Co..  202   U.   S.  453,   50  L.   Ed.   1102. 

17.  Cornell  v.  Green,  163  U.  S.  75,  78, 
41  L.  Ed.  76,  reaffirmed  in  Consolidated 
Water  Co.  v.  Babcock,  173  U.  S.  702,  43 
L.  Ed.  1186.  Richards  v.  Michigan,  etc., 
R.  Co.,   186  U.  S.   479,  46   L-   Ed.   1259. 

18.  Osborn  c-.  Bank  of  the  United  States, 
9  Wheat.  738,  6  L.  Ed.  204;  Starin  v.  New 
York,  115  U.  S.  248.  257,  29  L.  Ed.  388; 
Cooke  r.  Avery.  147  U.  S.  375,  384,  385, 
37  L.  Ed.  209. 

In  Carson  v.  Dunham,  121  U.  S.  421, 
30  L.  Ed.  992,  it  was  ruled  that  it  was 
necessary  that  the  construction  either  of 
the  constitution  or  some  law  or  treaty 
should  be  directly  involved  in  order  to 
give  jurisdiction,  although  for  the  pur- 
pose of  the  review  of  the  judgments  of 
state  courts  under  §  709  of  the  Revised 
Statutes,  it  would  be  enough  if  the  right- 
in  question  cante  from  a  commission  held 
or  authority  (K^ij"cised  under  the  United 
States.  Cool^  v.  Avery.  147  U.  S.  375. 
385,  37  L.   Ed.  309. 

19.  Bh^the  V.  HincVley.  173  U.  S.  501, 
43     L.     Ed.    783,    reaffirmed    in    Kittaning 


460 


APPEAL  AND  ERROR. 


case  must  be  one  in  which  the  construction  or  appHcation  of  the  constitution  of  the 
United  States  is  involved  as  controlling.^**  \  direct  appeal  from  a  circuit  court 
under  §  S  of  the  act  of  ]\Iarch  3,  1891,  will  not  be  sustained  where  the  construc- 
tion or  application  of  the  constitution  of  the  United  States  was  not  distinctly  pre- 


Coal  Co.  V.  Zabriskie.  176  U.  S.  681,  44  L. 
ha.  637. 

Where  on  appeal  to  the  supreme  court 
of  the  United  States  from  a  district  court 
of  the  United  States,  the  only  suggestion 
of  a  contention  bssed  uprn  the  con'^titu- 
tien  of  the  United  States  is  that  contained 
in  the  assignment  of  errors  made  \^v  iiie 
purpose  of  the  appeal,  the  record  presents 
no  constitutional  question  for  review  bj^ 
that  court,  since  it  fails  to  disclose  that  a 
controversy  on  such  subject  was  called 
to  the  attention  of  the  court  below 
prior  to  the  hearing,  and  when  it  also 
does  not  appear  that  the  court  below  con- 
sidered or  necessarily  i>assed  upon  an 
issr.e  of  that  character.  Arkansas  v.  Schli- 
erholz,  179  U.  S.  598,  45  L.  Ed.  335,  re- 
affirmed in  Richards  v.  Michigan,  etc.,  R. 
Co.,  186  U.  S.  479,  46  L.  Ed.  1259.  citing 
SHid  approving  Chapin  v.  Eye.  179  U.  S. 
127,  45  L.  Ed.  119,  and  Loeb  v.  Columbia 
Township  Trustees,  179  U.  S.  472.  45  L. 
Ed.   2S0. 

20.  Empire,  etc.,  Min.  Co.  7'.  Hanley, 
205    U.   S.    225.   233.   51    L.    Ed.    779. 

Habeas  corpus  proceedings. — In  re  Len- 
ncHi,  150  U.  S.  393,  37  L.  Ed.  1120,  was  a 
proceeding  in  habeas  corpus  to  discharge 
a  party  held  upon  an  order  for  imprison- 
ment for  failing  to  pay  a  fine  imposed 
for  contempt.  The  petitioner  alleged  that 
the  circuit  court  had  no  jurisdiction  of  the 
case  in  which  the  order  of  injunction 
bad  been  issued,  for  violation  of  which 
the  petitioner  was  alleged  to  be  guilty 
of  contempt;  and  that  it  had  no  jurisdic- 
tion either  of  the  subject  matter  or  of  the 
person  of  the  petitioner.  The  application 
being  denied  and  direct  appeal  being  taken 
to  this  court,  it  was  held,  that  it  would 
not  lie  under  §  5,  act  of  March  3,  1891. 
because  the  jurisdiction  of  the  circuit 
court  of  the  petition  for  habeas  corpns 
was  not  in  issue,  nor  was  the  construc- 
tion or  application  of  the  constitution  in- 
volved. Of  the  latter  phase  of  the  case, 
Mr.  Chief  Justice  Fuller,  speaking  for  the 
court,  said:  "Nor  can  the  attempt  be 
successfully  made  to  bring  the  case  within 
the  class  of  cases  in  which  the  construc- 
tion or  application  of  the  constitution  is 
involved  in  the  sense  of  the  statute,  on 
the  contention  that  the  petitioner  was  de- 
prived of  his  liberty  without  due  process 
of  law.  The  petition  does  not  proceed  on 
any  such  theory,  but  entirely  on  the 
ground  of  want  of  jurisdiction  in  the  prior 
case  over  the  subject  matter  and  over  the 
person  of  petitioner,  in  respect  of  inquiry 
into  which  tfci<;  jurisdiction  of  the  circuit 
court  was  sought.  If,  in  the  opinion  of 
that  court,  the  restraining  order  had  been 
absolutely  void,  or  the  petitioner  were  not 


bound  by  it,  he  woitld  have  been  dis- 
charged, not  because  he  would  otherwise 
be  deprived  of  due  process,  but  because 
of  the  in-validity  of  the  proceedings  for 
want  of  jurisdiction.  The  opinion  of  the 
circuit  cotirt  was  that  jurisdiction  in  the 
prior  suit  and  proceedings  existed,  and 
the  discharge  was  refused,  but  an  app€al 
from  that  judgment  directly  to  this  court 
would  not.  therefore,  lie  on  the  ground 
that  the  application  of  the  constitution 
was  involved  as  a  consequence  of  an  al- 
leged erroneous  determination  of  tlie 
questicvns  actually  put  in  issue  by  the  pe- 
titioner." Approved  in  Empire,  etc.,  Min. 
Co.  V.  Hanley,  205  U.  S.  225,  233,  51  L. 
Ed.    77S. 

Validity  of  foreclosure  proceedings. — 
In  Carey  t.  Houston,  etc..  R.  Co.,  150  U. 
S.  170,  37  L.  Ed.  1-041,  in  which  a  biU  in 
equity  had  been  filed  in  order  to  impeach 
and  set  aside  a  decree  of  foreclosure  on 
the  ground  of  fraud  and  want  of  jurisdic- 
tion in  the  foreclosure  suit,  it  was  held, 
that  no  case  for  appeal  directly  to  this 
court  was  made  as  one  that  involved  the 
construction  or  application  of  the  con- 
stitution of  the  United  States.  In  that 
case  Mr.  Chief  Justice  Fuller,  delivering 
the  opinion  of  the  court,  said:  "It  is 
argued  that  the  record  shows  that  com- 
plainants had  been  deprived  of  their 
property  without  due  process  of  law,  by 
means  of  the  decree  attacked,  but  be- 
cause the  bill  alleged  irregularities,  er- 
rors and  j-iirisdictional  defects  in  the  fore- 
closure p-roceedings  and  fraud  in  respect 
thereof  and  in  the  subsequent  transac- 
tions, which  might  have  enabled  the  rail- 
road company  upon  a  direct  appeal  to 
have  avoided  the  decree  of  sale,  or  which, 
if  sustained  on  this  bill,  might  have  justi- 
fied the  circuit  court  in  setting  aside  that 
decree,  it  does  not  follow  that  the  con- 
struction or  application  of  the  constitu- 
tion of  the  United  States  was  involved  in 
the  case  in  the  sense  of  the  statute.  In 
passing  upon  the  validity  of  that  decree, 
the  circuit  court  decided  no  question  of 
the  construction  or  application  of  the  con- 
stitution, and.  as  we  have  said,  no  such 
question  was  raised  for  its  consideration. 
Our  conclusion  is  that  the  motion  to  dis- 
miss the  appeal  must  be  sustained.'"  Ap- 
proved in  Empire,  etc.,  Min.  Co.  v.  Han- 
ley.  205   U.    S.    225.   234,    51    L.    Ed.    779. 

Service  of  process  on  foreign  corpora- 
tions.— In  Cosmopolitan  Min.  Co.  v.  Wal.^h, 
193  U.  S.  460,  48  L.  Ed.  749,  it  was  con- 
tended, in  a  replication  to  an  answer  set- 
ting up  certain  former  judgments  ren- 
dered against  the  complainant  as  a  bar 
to  the  suit  hrought  by  it  to  recover  po.';- 
session    of    the    real    property    sold    under 


APPEAL  AND  ERROR. 


461 


sented  for  decision  in  the  court  below. ^i  In  the  language  of  Mr.  Chief  Justice 
Fuller:  "Cases  in  which  the  construction  or  application  of  the  constitution  is  in- 
volved, or  the  constitutionality  of  any  law  of  the  United  States  is  drawn  in  ques- 
tion, are  cases  which  present  an  issue  upon  such  construction  or  application  or 
constitutionality,  the  decision  of  which  is  controlling ;  otherwise,  every  case  arising 
under  the  laws  of  the  United  States  might  be  said  to  involve  the  construction  or 
application  of  the  constitution,  or  the  validity  of  such  laws."22 

Where  the  suit  does  not  really  and  substantially  involve  a  dispute  or  con- 
troversy as  to  the  effect  or  construction  of  the  constitution  or  laws  of  the  United 
States,  upon  the  determination  of  which  the  result  depends,  it  is  not  a  suit  un- 
der the  constitution  or  laws,  and  jurisdiction  cannot  under  stich  circumstances  be 
maintained  of  a  direct  appeal  to  this  court  from  the  circuit  court. 2- 

A  case  may  be  said  to  involve  the  construction  or  application  of  the 
constitution  of  the  United  States  when  a  title,  right,  privilege,  or  immunity  is 
claimed  under  that  instrument,  but  a  definite  issue  in  respect  of  the  possession  of 
the  right  must  be  distinctly  deducible  from  the  record  before  the  judgment  of  the 
court  below  can  be  revised  on  the  ground  of  error  in  the  disposal  of  such  a  claim 
by  its  decision.  And  it  is  only  when  the  constitutionality  of  a  law  of  the  United 
States  is  drawn  in  question,  not  incidentally  but  necessarily  and  directly,  that 
our  jurisdiction  can  be  invoked  for  that  reason. ^^ 


the  judgments,  that  they  were  awarded 
without  due  process  of  law.  in  violation 
of  the  fourteenth  amendment.  And  this 
was  upon  the  theory  that  the  service  of 
process  in  the  state  courts  upon  the  cor- 
poration's agent  in  the  suits  where  the 
judgments  were  rendered  was  unau- 
thorized by  the  laws  of  the  state  or  the 
general  principles  of  law.  It  was  held, 
that  the  case  was  not  one  dire  'y  involv- 
ing the  construction  or  application  of  the 
federal  constitution  within  the  meaning 
of  §  5  of  the  act  of  March  3,  1891,  and  the 
writ  of  error  was  dismissed.  Approved 
in  Empire,  etc.,  Min.  Co.  r.  Hanley.  205 
U.   S.    2^5,    235,    51    L.    Ed.    779. 

Controlling  effect  of  res  adjudicata. — 
Where  the  real  issue  in  the  circuit  court 
is  whether  a  former  judgment  between 
the  parties  in  another  suit  is  res  judicata, 
or.  as  contended  by  the  plaintifif  in  error, 
rendered  without  jurisdiction,  and  the 
court,  in  deciding  against  the  plaintiff  in 
error,  decided  that  the  court  had  juris- 
diction and  that  the  former  decree  was 
conclusive,  this  does  not  necessarily  and 
directly  involve  the  construction  or  ap- 
plication of  the  constitution  of  the  bnited 
States.  "The  thing  relied  upon  in  this 
case  was  the  controlling  effect  as  res 
judicata  of  a  decree  rendered  between  the 
parties  in  another  suit.  And  the  real  is- 
sue was  as  to  the  jurisdiction  of  the  court 
to  render  the  decree.  The  determination 
of  that  question  did  not  involve  the  con- 
struction or  application  of  the  constitu- 
tion of  the  United  States.  *  *  *  The  court 
thus  really  decided  a  question  of  res  ju- 
dicata between  the  parties  upon  general 
principles  of  law.  And  it  does  not  con- 
vert the  decision  into  one  involving  the 
construction  and  application  of  the  con- 
stitution of  the  United  States  to  aver, 
argumentatively.  that  to  give  such  effect 
to   a    former   adjudication   under    the    cir- 


cumstances amounts  to  depriving  a  party 
of  due  process  of  law."  Empire,  etc., 
Min.  Co.  V.  Hanley,  205  U.  S.  225,  235,  51 
L.    Ed.   779. 

21.  Empire,  State — Idaho,  etc.,  Co.  v. 
Hanley,  198  U.  S.  292,  298,  49  L.  Ed.   1056. 

22.  Empire,  etc.,  Min.  Co.  v.  Hanley, 
205    U.    S.    225,    233,    51    L.    Ed.    779. 

23.  Sloan  v.  United  States,  193  U.  S. 
614,  620.  48  L.  Ed.  814,  citing  Muse  v. 
Arlington  Hotel  Co..  168  U.  S.  430.  42  L. 
Ed.  531;  Western  Union  Telegraph  Co. 
V.  Ann  Arbor  R.  Co.,  178  U.  S.  239,  44 
L.  Ed.  1052;  Lampasas  v.  Bell,  180  U.  S. 
276,   45    L.    Ed.   527. 

If  the  case  does  not  really  involve  the 
construction  or  application  of  the  con- 
stitution of  the  United  States,  in  the 
sense  in  which  that  phrase  is  employed 
in  the  judiciary  act  of  1891,  the  supreme 
court  of  the  United  States  is  precluded 
from  examining  the  merits  upon  a  direct 
writ  of  error.  Cosmopolitan  Min.  Co.  v. 
Walsh,    193   U.   S.  460.   48    L.    Ed.    749. 

24.  Borgmeyer  v.  Idler,  159  U.  S.  408, 
40  L.  Ed.  199;  Carey  v.  Houston,  etc.,  R. 
Co.,  150  U.  S.  170,  37  L.  Ed.  1041;  In  re 
Lennon.  150  U.  S.  393.  395,  37  L.  Ed. 
1120:  Northern  Pac.  R.  Co.  v.  Amato,  144 
U.  S.  465,  472,  36  L.  Ed.  506;  Say  ward  v. 
Denny,  158  U.  S.  180,  39  L.  Ed.  941;  Ans- 
bro  V.  United  States,  159  U.  S.  695,  698, 
40  L.  Ed.  310;  Cornell  v.  Green.  163  U. 
S.  75.  41  L.  Ed.  76;  Water  Co.  v.  Bab- 
cock,  173  U.  S.  702,  43  L.  Ed.  1186;  Rich- 
ards z'.  Michigan,  etc.,  R.  Co.,  1S6  U.  S. 
479.    46    L.    Ed;    1259. 

.As  ruled  in  Ansbro  v.  United  States, 
159  U.  S.  695,  697,  40  L.  Ed.  310,  "a  case 
may  be  said  to  involve  the  construction 
or  application  of  the  constitution  of  the 
United  States  when  a  title,  ight,  privi- 
lege or  immunity  ts  claimed  under  that 
instrument,  but  a  definite  issue  in  re- 
spect to  the  possession  of  the  right  must 


462 


APPEAL  AND  ERROR. 


Mere  allegations  that  the  construction  or  application  of  the  constitution  was 
involved,  not  based  upon  the  facts  of  the  case,  do  not  create  a  case  which  we  are 
authorized  to  review,-^  averments  of  conclusions  as  to  constitutional  rights  do 
not  chan<^e  the  real  character  of  the  controversy  and  make  it  a  case  in  which  the 
controlling  rule  of  decision  involves  the  construction  or  application  of  the  con- 
htitntion  of  the  United  States. ^^ 

Must  be  Controlling  Question. — The  cases  which  can  go  only  to  the  supreme 
court  are  those  in  which  the  construction  or  application  of  the  constitution  is  the 
controlling  question ;  that  is  to  say,  in  which  no  proper  conclusion  can  be  reached 
without  deciding  it.^'^     Although  on  appeal  or  error  all  other  questions  would  be 


be  distinctly  deducible  from  the  record 
before  the  judgment  of  the  court  below 
can  be  revised  on  the  ground  of  error 
in  the  disposal  of  such  a  claim  by  its  de- 
cision." Cornell  v.  Green,  163  U.  S.  75,  78. 
41  L.  Ed.  76;  Muse  v.  Arlington  Hotel 
Co.,  168  U.   S.  430.  435,   42   L.   Ed.   531. 

Where  an  amended  complaint  stated 
thai  plaintififs  would  "rely  upon  the  fol- 
lowieg  written  evidences  of  their  title  for 
the  maintenance  of  this  action,"  and  enu- 
merated, among  them,  "the  3d  article 
of  the  treaty  between  the  United  States 
of  America  and  the  French  Republic  of 
April  30,  1803.  which  was  ratified  on  the 
21st  of  October,  1803,"  8  Stat.  200;  and 
"the  fifth  amendment  to  the  constitution 
of  the  United  States;"  but  nowhere  was 
any  right,  title,  privilege  or  immunity  as- 
serted to  be  derived  from  either  consti- 
tution or  treaty,  and  there  was  nothing 
to  indicate  in  what  way,  if  any,  the  cause 
of  action  was  claimed  to  arise  from  either, 
this  is  not  sufficient  to  give  this  court 
jurisdiction  of  a  writ  of  error  direct  from 
this  court  to  the  circuit  court  either  on 
th«  ground  that  the  construction  or  ap- 
plication of  the  constitution  of  the  United 
States  is  involved,  or  on  the  ground  that 
the  validity  or  construe*'  n  of  any  treaty 
made  under  the  authority  of  the  United 
States  is  drawn  in  question.  Muse  v. 
Arlington  Hotel  Co.,  168  U.  S.  430,  435. 
43    L.    Ed.    531. 

2S.  Budzisz  v.  Hlinois  Steel  Co.,  170 
U.    S.    41,    42    L.    Ed.    941. 

Where  the  object  of  a  plea  in  abate- 
ment to  the  jurisdiction  of  the  court  was 
to  bring  about  a  dismissal  of  the  suit  un- 
der the  fifth  section  of  the  act  of  March 
3,  1875,  ch.  137.  18  Stat.  470,  which  pro- 
vides for  the  dismissal  of  a  suit  in  a  cir- 
cuit court  of  the  United  States  if  it  shall 
appear  to  the  satisfaction  of  the  court  at 
any  time  that  the  parties  to  it  have  been 
improperly  or  collusively  tnade  or  joined, 
either  as  plaintiffs  or  defendants,  for  the 
purpose  of  creating  a  case  cognizable  or 
removable  under  this  act.  this  court  has 
no  jurisdiction  to  review  by  direct  ap- 
peal an  order  of  the  circuit  court  over- 
ruling the  plea  upon  the  ground  that  it 
involves  the  construction  or  application 
of  the  constitution  of  the  United  States, 
where  the  plea  raises  no  question  as  to 
the  constit'-'""nality  of  the  act  of  1875, 
and   ca'ls   for   no   order   or   judgment   that 


would  require  a  construction  or  applica- 
tion of  the  constitution,  altho-ugh  an  al- 
lowance of  the  plea  inay  have  involved 
the  application  of  an  act  of  congress.  "The 
plea  set  out  certain  facts  which,  if  found 
to  be  true,  required  the  dismissal  of  the 
suit  as  one  of  which  the  court  could  not 
take  cognizance  under  the  statute  regu- 
lating the  jurisdiction  of  the  circuit 
courts  of  the  United  States.  While  the 
issue  involved  the  jurisdiction  of  the  cir- 
cuit court,  it  did  not  involve  or  require, 
within  the  meaning  of  the  act  of  March 
3,  1891,  either  the  construction  or  appli- 
cation of  the  constitution."  Merritt  v. 
Bowdoin  College,  169  U.  S.  551,  536.  42 
L.    Ed.   850. 

26.  Empire,  etc.,  ^lin.  Co.  v.  Hanley, 
205    U.    S.    225,    235,    51    L.    Ed.    779. 

27.  Question  must  be  controlling. — In 
Carey  v.  Houston,  etc..  R.  Co.,  150  U.  S. 
170,  37  L.  Ed.  1041,  this  court,  in  dis- 
missing an  appeal  from  a  decree  of  the 
circuit  court  on  a  bill  in  equity  to  im- 
peach and  set  aside  a  decree  of  fore- 
closure of  a  railroad  mortgage,  uses  the 
following  language:  "It  is  argued  that 
the  record  shows  that  complainants  had 
been  deprived  of  their  property  without 
due  process  of  law.  by  means  of  the  de- 
cree attacked,  but  because  the  bill  alleged 
irregularities,  errors,  and  jurisdictional 
defects  in  the  foreclosure  proceedings, 
and  fraud  in  respect  thereof  and  in  the 
subsequent  transactions,  which  might  have 
enabled  the  railroad  company  upon  a  di- 
rect appeal  to  have  avoided  the  decree 
of  sale,  or  which,  if  sustained  on  this  bill, 
might  have  justified  the  circuit  court  in 
setting  aside  that  decree,  it  does  not  fol- 
low that  the  construction  or  application 
of  the  constitution  of  the  United  States 
was  involved  in  the  case  in  the  sense  of 
the  statute.  In  passing  upon  the  validity 
of  that  decree,  the  circuit  court  decided 
no  question  of  the  construction  or  the 
application  of  the  constitution,  and.  as 
we  have  said,  no  such  question  was  raised 
for  its  consideration."  Approved  in  Cos- 
mopolitan Min.  Co.  V.  Walsh,  193  U.  S. 
460,  48   L.   Ed.   749. 

Habeas  corpus. — The  Toledo  and  Ann 
Arbor  Railway  Company,  which  con- 
nected with  the  Michigan  Southern  Rail- 
waj^  in  the  carrying  on  of  interstate  com- 
merce, filed  a  bill  in  the  circuit  court  to 
restrain   the    Michigan    Southern   from   re- 


APPEAL  AND  ERROR. 


4e)3 


open  to  determination,  if  inquiry  were  not  rendered  unnecessary  by  the  rulii>g  on 
that  arising  under  the  constitution.-'* 

Effect  of  Direction  of  Verdict.— Because  the  trial  judge  directs  the  jury  to 
find  a  verdict  for  the  defendant,  will  not  justify  the  writ  of  error  from  this  court 
to  the  circuit  court  of  the  United  States  on  the  ground  that  the  case  "involve.-^ 
the  construction  or  application  of  the  constitution  of  the  United  States."  because 
the  plaintiff  in  error  was  deprived  of  the  right  to  a  trial  by  jury.  If  the  court  errs 
as  matter  of  law  in  so  doing,  the  remedy  lies  in  a  review  in  the  appropriate  court. 29 

cccc.  Proceedings  Reviewable. — Criminal  Prosecutions. — That  act  does  not 
make  a  distinction  between  civil  and  criminal  causes. '^'^ 

dddd.  Time  of  Raising  Constitutiotial  Question. — Under  this  section  the  con- 
stitutional question  must  be  raised  at  the  trial,  and  it  comes  too  late  for  the  first 
time  in  the  assignment  of  errors.^  ^ 


fusing  to  receive  its  cars  used  in  such 
commerce,  and  discriminating  against  it, 
on  the  ground  that  it  employed  engineers 
who  were  not  members  of  the  Brotherhood 
of  Locomotive  Engineers.  An  injunction 
was  issued,  and  a  few  days  later  the  Lake 
Shore  applied  for  an  order  of  attachment 
against  some  of  its  employees  who  had 
refused  to  haul  cars  and  perform  service 
for  them,  thus  hindering  them  from  com- 
plying with  the  order  of  the  court  in  re- 
spect to  the  Toledo  and  Ann  Arbor  Com- 
pany. A  rule  to  show  cause  w-as  is- 
sued, and  such  proceedings  had  there- 
under that  one  of  the  employees  was  ad- 
judged guilty  of  contempt,  was  fined,  and 
was  ordered  to  be  committed  until  pay- 
ment of  the  fine.  This  emploj-ee  applied 
to  the  circuit  court  for  a  writ  of  habeas 
corpus.  The  petition,  after  setting  the 
facts  forth,  claimed  that  the  circuit  court 
had  no  jurisdiction  of  the  cause  in  which 
the  original  order  of  injunction  had  been 
issued,  for  reasons  stated,  and  further, 
that  it  had  no  jurisdiction  of  the  petition- 
er's person,  because  he  was  no  party  to 
that  suit,  and  had  not  been  served  with 
process.  The  application  was  denied  and 
the  petition  dismissed,  from  which  judg- 
ment the  petitioner  appealed  to  this  court. 
Held:  "The  opinion  of  the  circuit  court 
was  that  jurisdiction  in  the  prior  suit  and 
proceedings  existed,  and  the  discharge 
was  refused,  but  an  appeal  from  that  judg- 
ment directly  to  this  court  would  not. 
therefore,  lie  on  the  ground  that  the  ap- 
plication of  the  constitution  was  involved 
4s  a  conseqnrnce  of  an  alleged  erroneous 
determination  of  the  questions  actually 
put  in  issue  by  the  petitioner."  In  re  Len- 
non.  1.50  U.  S.  393.  401.  37  L.  Ed.  1120, 
aporoved  in  Cosmopolitan  Min.  Co.  v. 
Walsh.  193  U.  S.  460.  48  L.  Ed.  749. 

28.  Horner  v.  United  States.  143  U.  S. 
570,  3r,  L.  Ed.  266;  Carey  v.  Houston,  etc., 
R.  Co..  150  U.  S.  170,  181.  37  L.   Ed.  1041. 

There  can  be  no  doubt  that  when  the 
only  question  in  the  case,  or  when  the 
controlling  question  in  the  case,  involves 
the  construction  or  the  application  of  the 
constitution  of  the  United  States,  then  the 
suprerne  court  has  exclusive  appellate  ju- 
risdiction,  and   an    appeal    will    not    lie    to 


the  circuit  court  of  appeals.  And  if,  be- 
sides these,  there  are  other  questions  (not 
controlling  questions,  however),  the  su- 
preme court,  by  virtue  of  its  jurisdiction 
over  the  controlling  question,  will  take 
jurisdiction  of,  and  will  decide,  the  whole 
case.  Horner  v.  United  States,  143  U.  S. 
570.    576.    36    L.    Ed.    266. 

29.  Treat  Mfg.  Co.  v.  Standard  Steel, 
etc.,  Co.,  157  U.  S.  674,  39  L.  Ed.  853; 
Cincinnati,  etc.,  R.  Co.  v.  Thiebaud.  177 
U.   S.   615,   44   L.   Ed.    911. 

30.  Motes  V.  United  States,  178  U  S. 
458,466,   44  L.    Ed.   1150. 

Right  of  confrontation. — Where  it  is 
necessary  for  the  circuit  court  to  de- 
terrnine  whether  the  admission  of  certain 
testimony  in  a  criminal  case  was  not  an 
infringement  of  rights  secured  to  the  ac- 
cused by  the  6th  amendment  to  the  con- 
stitution declaring  that  in  all  criminal 
prosecutions  the  accused  shall  enjoy  the 
right  to  be  confronted  with  the  witness 
against  him,  such  case  involves  the  con- 
struction and  application  of  the  constitu- 
tion of  the  United  States,  and  may  be 
taken  directly  to  this  court  under  the  act 
of  January  20,  1897.  ch.  68.  Mote<^  v. 
United  States,  178  U.  S.  458,  44  L.  Ed. 
1150. 

31.  Ansbro  v.  United  States.  159  U  S. 
695.   40    L.    Ed.   310. 

Time  of  raising  constitutional  question. 
— -'"A  case  may  be  said  to  involve  the  con- 
struction or  application  of  the  constitu- 
tion of  the  United  States,  when  a  title, 
right,  privilege,  or  immunity  is  claimed  un- 
der that  instrument;  but  a  definite  is^ue  in 
respect  of  the  possession  of  the  right 
must  be  distinctly  deducible  from  the 
record,  before  the  judgment  of  the  court 
below  can  be  revised  on  the  ground  of 
error  in  the  disposal  of  such  a  claim  by 
its  decision.  And  it  is  only  when  the  con- 
stitutionality of  a  law  of  the  United  States 
is  drawn  in  question,  not  incidentallv.  hut 
necessarily  and  directly,  that  our  juris- 
diction can  he  invoked  for  that  rea-on. 
An  assignment  of  errors  canu't  be 
availed  of  to  import  questions  into  n  cause 
which  the  record  does  not  show  were 
raised  in  the  court  below  and  rulings 
asked   thereon,    so   as   to   give   jurisdiction 


464 


APPEAL  AND  ERROR. 


eeee.  Double  Appeals. — Where  appellants  appeal  to  this  court,  alleging  diver- 
sity of  citizenship  in  their  bill,  but  jurisdiction  is  also  invoked  on  constitutional 
grounds,  the  case  is  appealable  directly  to  this  court  under  §  5  of  the  act  of 
March  3,  1891,  as  one  which  "involves  the  construction  or  application  of  the 
constitution  of  the  United  States. "•"5-  If  cases  which  are  controlled  by  the  con- 
struction or  application  of  the  constitution  of  the  United  States  are  carried  to  the 
circuit  courts  of  appeals,  those  courts  may  decline  to  take  jurisdiction,  or  where 
such  construction  or  application  is  involved  with  other  questions,  may  certify  the 
constitutional  question  and  afterwards  proceed  to  judgment,  or  may  decide  the 
whole  case  in  the  first  instance.^^  But  when  the  circuit  court  of  appeals  has  acted 
on  the  whole  case,  its  judgment  stands  imless  revised  by  certiorari  to,  or  ap- 
peal from,  that  court  in  accordance  with  the  act  of  March  3,  1891. ^■^ 

eee.  In  Cases  Involving  the  Constitutionality  of  Any  Lazv  of  the  United  States 
or  the  Validity  or  Construction  of  Treaties — aaaa.  In  General. — Section  5  of  the 
act  of  March  3,  1891,  provides  that  appeals  or  writs  of  error  may  be  taken  from 
the  existing  circuit  courts  direct  to  the  supreme  court  in  any  case  in  which  the 
constitutionality  of  any  law  of  the  United  States  or  the  validity  or  construction 
of  any  treaty  made  under  its  authority,  is  drawn  in  question.^^  Where  the  juris- 
diction of  the  circuit  court  is  not  invoked  on  the  ground  of  diverse  citizenship, 
but  on  the  ground  that  the  case  arose  "under  the  constitution  or  laws  of  the  United 


to  this  court  under  the  fifth  section  of 
the  act  of  March  3,  1891.  Ansbro  v. 
United  States,  159  U.  S.  695,  697.  698,  40 
L.  Ed.  310.  In  support  of  that  judgment, 
several  cases  were  cited,  two  of  them  very 
like  the  case  at  bar.  Carey  v.  Houston, 
etc..  R.  Co.,  150  U.  S.  170,  181.  37  L.  Ed. 
1041;  In  re  Lennon,  150  U.  S.  393.  401,  37 
L.  Ed.  1120."  Cornell  v.  Green.  163  U.  S. 
75,  79,  41  L.  Ed.  76,  reaffirmed  in  Water 
Co.  V.  Babcock,  173  U.  S.  702.  43  L.  Ed. 
1186;  Richards  v.  Michigan,  etc.,  R.  Co., 
186   U.    S.   479,    46   L-    Ed.    1259. 

Assignment  of  errors. — Where  this 
court  cannot  find  that  any  constitutional 
question  was  raised  at  the  trial,  as  for  ex- 
ample, where  motions  to  quash,  to  in- 
struct the  jury  to  find  for  the  defendant, 
"for  new  trial,  and  in  arrest  of  judgment 
were  made,  but  in  neither  of  them,  so  far 
as  appears,  nor  by  any  exception  to  rul- 
ings on  the  admission  or  exclusion  of 
evidence,  nor  to  instructions  given  or  the 
refusal  of  instructions  asked,  was  any  sug- 
gestion made  that  defendant  was  being 
denied  any  constitutional  right  or  that  the 
law  under  which  he  was  indicted  was  un- 
constitutional," but  the  first  time  that 
anything  appears  upon  that  subject  is  in 
the  assignment  of  errors,  the  writ  of  er- 
ror will  be  dismissed,  because  an  assign- 
ment of  errors  cannot  be  availed  of  to 
import  questions  into  a  cause  which  the 
record  does  not  show  were  raised  in  the 
court  below  anJ  the  rulings  asked 
thereon,  so  as  to  give  to  this  court  juris- 
diction under  the  5th  section  of  the  act 
of  March  3,  1891.  Ansbro  v.  United 
States,  159  U.  S.  695,  40  L.  Ed.  310. 

A  decree  of  the  circuit  court  dismissing 
upon  general  demurrer  for  want  of  equity 
a  bill  filed  by  a  grantee  of  land  to  redeem 
the  land  from  a  mortgage,  and  to  set  aside 
the    proceedings    for    forecl,.>uxe.    on    the 


ground  that  he  "was  not  sufficiently  made 
a  party  to  bind  him  by  the  decree  in  his 
individual,  as  well  as  in  his  representative 
capacity,  cannot  be  reviewed  by  this 
court  by  direct  appeal  on  the  ground  that 
t]ie  case  "involved  the  construction  or  ap- 
plication of  the  constitution  of  the  United 
States"  within  the  meaning  of  the  ju- 
diciary act  of  March  3,  1891.  ch.  517.  §  5, 
especially  where  the  first  indication  of 
anj'thing  like  an  intention  on  the  part  of 
the  plaintifif  to  invoke  the  protection  of 
the  constitution  of  the  United  States,  is 
in  the  suggestion,  in  the  assignment  of 
errors  "'that  said  findings  deprived  said 
complainant  of  his  property  without  due 
process  of  law."  Cornell  v.  Green,  163 
U.  S.  75,  41  L.  Ed.  76,  Mr.  Justice  Brown 
dissenting,  reaffirmed  in  Water  Co.  v. 
Rabcock,  173  U.  S.  702,  43  L.  Ed.  1186; 
Richards  v.  Michigan,  etc.,  R.  Co.,  186 
U.    S.   479.    46    L.    Ed.   1259. 

22.  Field  v.  Barber  Asphalt  Co., 
194  U.  S.  618.  48  L.  Ed.  1142,  reaffirmed 
in  Fi  :]  v.  Barber  Asphalt  Co.,  203  U.  S. 
585.   51    L.    Ed.   328. 

S3.  Holt  V.  Indiana  Mfg.  Co.,  176  U. 
S.  68,  44  L.  Ed.  374;  United  States  v. 
Tahn,  155  U.  S.  109,  39  L.  Ed.  87;  Xew 
Orleans  v.  Benjamin,  153  U.  S.  411,  38  L. 
Ed.  764;  Benjamin  v.  New  Orleans.  169 
U.   S.   161,  42  L.  Ed.  700. 

34.  Carter  v.  Roberts,  177  U.  S.  496, 
500,  44  L.  Ed.  861;  Cincinnati,  etc.,  R.  Co. 
V.  Thiebaud,  177  U.  S.  615,  44  L.  Ed.  911. 

35.  Chappell  v.  United  States,  160  U. 
S.  499,  40  L.  Ed.  510;  Muse  v.  Arlington 
Hotel  Co..  168  U.  S.  430,  42  L.  Ed.  531; 
Chin  Bak  Kan  v.  United  States,  186  U.  S. 
193,  201,  46  L.  Ed.  1121;  Turner  v.  Wil- 
liams, 194  U.  S  279,  289,  48  L.  Ed.  979; 
Filhiol  V.  Mauri'.<\  185  U.  S.  108.  110,  46 
L.  Ed.  827.  reaffirmed  in  Cueli  v.  Rod- 
riguez,   198   U.   S.   581,   582,  49   L.   Ed.   1172. 


APPEAL  AND  ERROR. 


465 


States,  or  treaties  made,  or  which  shall  be  made,  under  their  authority :"  and  the 
circuit  court  takes  jurisdiction  on  the  latter  rround,  and  decides  the  case  upon 
the  merits,  the  writ  of  error  is  properly  taken  directly  to  this  court,  the  jurisdic- 
tion of  which  is  exclusive  in  such  cases.^^ 

Prospective  Operation  of  Statute.— Where  a  case  involves  the  constitution- 
ality of  a  law  of  the  United  States,  it  is  within  the  appellate  jurisdiction  of  this 
court  by  direct  appeal  from  the  circuit  court,  notwithstanding  the  appeal  was 
taken  since  the  act  establishing  the  circuit  court  of  appeals  took  effect.^''' 

bbbb.  Determination  of  Question. — Where  the  case  depends  entirely  on  the  con- 
struction of  an  ?ct  of  congress,  its  constitutionality  not  being  drawn  in  question, 
it  is  not  one  of  ihose  described  in  the  fifth  section  of  the  act  of  1891,  and  con- 
sequently cannot  come  here  directly  from  the  circuit  court.-'^'* 

Mere  allegations  that  the  construction  or  the  validity  of  a  treaty  of  the  United 
States  or  made  under  its  authority  is  involved,  or  arises,  or  is  drawn  in  question 
in  the  case,  not  based  upon  the  facts  of  the  case,  do  not  create  a  car  vhich  we 
are  authorized  to  review.-''^ 

Must  Be  Directly  in  Issue. — A  case  may  be  said  to  involve  the  validity  or 
construction  of  a  treaty  made  under  the  authority  of  the  United  States  when  a 
title,  right,  privilege  or  immunity  is  claimed  under  that  instrument,  but  a  definite 
issue  in  respect  to  the  possession  of  the  right  must  be  distinctly  deducible  from 
the  record  before  the  judgment  of  the  court  below  can  be  revised  on  the  ground 
of  error  in  the  disposal  of  such  a  claim  by  its  decision.  Some  right,  title,  priv- 
ilege or  immunity  dependent  on  the  treaty  must  be  so  set  up  or  claimed  as  to 
require  the  circuit  court  to  pass  on  the  question  of  validity  or  construction  in 
disposing  of  the  right  asserted.'*^'     And  it  is  only  when  the  constitutionality  of  a 


36.  Filhiol  v.  Maurice,  IS.')  U.  S.  108, 
110.  46  L.  Ed.  827.  reaffirmed  in  Cueli  v. 
Rodriguez,  198  U.  S.  531,  49  L.  Ed.  1172, 
citing  Huguley  Mfg.  Co.  v.  Galeton  Cot- 
ton Mills,  184  U.  S.  290,  46  L.  Ed.  546; 
American  Sugar  Ref.  Co.  v.  New  Or- 
Lans,   181   U.   S.  277,   45   L.   Ed.   859. 

Offenses  against  postal  laws. — An  ap- 
peal will  lie  direct  to  this  court  from  the 
circuit  court  under  §  5  of  the  act  of  March 
3.  1891,  ch.  517  (26  Stat.  826  t  ^528,  1115). 
where  there  is  drawn  in  question  in  the 
circuit  court  the  constitutionality  of  § 
3894  of  the  Revised  Statutes,  as  amended 
by  the  act  of  September  19.  1890,  ch.  908 
(26  Stat.  465),  prohibiting  the  sending  by 
mail  of  circulars  concerning  lotteries. 
Horner  v.  United  States,  143  U.  S.  570. 
36   L.    Ed.    266. 

37.  Ekiu  V.  United  States,  142  U.  S. 
651.   35    L.    Ed.    1146. 

It  is  contended  on  the  part  of  the  United 
States  that,  as  the  appeal  in  this  case  v^s 
taken  on  November  17.  1891,  after  .  i 
act  entitled  "An  act  to  establish  circuit 
courts  of  appeals,  and  to  define  and  regu- 
late in  certain  cases  the  jurisdiction  of 
the  courts  of  the  United  States,  and  for 
other  purposes,"  c.  517,  passed  March  3, 
1891  (26  Stat.  826).  went  into  effect,  this 
court  has  no  jurisdiction  of  this  appeal, 
and  that  it  ought  to  have  been  taken  to 
the  circuit  court  of  ap;  ds  for  the  seccxl 
circuit.  But.  a?  the  constitu^'onality  of 
§  3894,  as  amended,  is  drawn  in  question, 
an  appeal  in  this  case  lies  directly  to  this 
court  from  the  circuit  court,  under  §  5 
of  the  act  of   March  3,   1891,   which   gives 

1  U  S  Enc-30 


such  appeal  "in  any  case  in  which  the  con- 
stitutionality of  any  law  of  the  United 
States  *  *  *  is  drawn  in  question."  This 
is  in  accordance  with  our  decision  in 
Ekiu  V.  United  States,  142  U.  S.  651,  658. 
6.59,  35  L.  Ed.  1146,  where  it  was  said: 
"As  this  case  involves  the  c  nstitution- 
ality  of  a  law  of  the  United  States,  it  is 
witliin  the  appellate  jurisdiction  of  this 
court,  notwithstanding  the  appeal  was 
taken  since  the  act  establishing  circuit 
courts  of  appeals  took  effect.  Act  of 
March  3,  1891,  ch.  517.  §  5;  26  Stat.  827, 
828.  1115."  Horner  v.  United  States,  143 
U.    S.   570,    57P     36    L.    Ed.   266. 

38.  Sprecke!s  Sugar  Refining  Co.  v. 
McClain,  192  U.  S.  397,  407,  48  L.  Ed.  496; 
Pettit  V.  Walshe,  194  U.  S.  205,  216,  48 
L.   E  ■    938. 

39.  jjudzisz  V.  Illinois  Steel  Co..  170  U. 
S.    41,    42    L.    Ed.   941. 

40.  Muse  V.  Arlington  Hotel  Co.,  168 
U.  S.  430,  42  L.  Ed.  531.  citing  Borgmeyer 
V.  Idler,  159  U.  S.  408,  40  L.  Ed.  199; 
P'vthe  V.  Hinckley,  173  U.  S.  501.  43  L. 
Ed.   783. 

"A  case  may  be  said  to  involve  the  con- 
struction or  application  of  the  constitu- 
tion of  the  United  States  when  a  title, 
right,  privilege  or  immunity  is  claimed 
under  that  instrument,  but  a  definite  is- 
sue in  respect  to  the  possession  of  the 
right  must  be  distinctly  deducible  from 
the  record  before  the  judgment  of  the 
court  below  can  be  revised  on  the  ground 
of  error  in  the  disposal  of  such  a  claim 
by  its  decision.  The  same  rule  is  ap- 
plicable in  respect  of  the  validity  or  con- 


466 


APPEAL  AND  ERROR. 


law  of  the  United  States  is  drawn  in  question,  not  incidentally  but  necessarily 
and  directly,  that  our  jurisdiction  can  be  invoked  for  that  reason.^ ^ 

Validity  or  Construction  of  Treaties. — In  General. — A  case  may  be 
brouo"ht  directly  from  a  circuit  court  to  this  court  if  the  construction  of  a  treaty  is 
therein  draw.  Tn  question."* ^  This  court  cannot  take  jurisdiction  on  the  ground  that 
the  validity  or  construction  of  a  treaty  was  drawn  in  question  where  it  was  not  so 
drawn  in  question  directly,  but  was  merely  indirectly  involved.^^  Some  right,  title, 


struction  of  a  treaty.  Some  right,  title, 
privilege  or  immunity  dependent  on  the 
treaty  must  be  so  set  up  or  claimed  as  to 
require  the  circuit  court  to  pass  on  the 
question  of  the  validity  or  construction 
in  disposing  of  the  right  asserted." 
Filhiol  V.  Maurice,  185  U.  S.  108,  110,  46 
L.  Ed.  827,  reaffirmed  in  Cueli  v.  Rod- 
riguez, 198  U.  S.  581,  582,  49  L.  Hd.  1172, 
citing  Muse  v.  Arlington  Hotel  Co.,  168 
U.    S.    430,    42   L.    Ed.    531. 

Where  an  amended  complaint  stated 
that  plaintiffs  would  "rely  upon  the  fol- 
lowing written  evidences  of  their  title  for 
the  maintenance  of  this  action,"  and  enu- 
merated, among  them,  "the  3d  article  of 
the  treaty  between  the  United  States  of 
America  and  the  French  Republic  of 
April  30,  1803,  which  was  ratified  on  the 
21st  of  October,  1803."  8  Stat.  200;  and 
"the  fifth  amendment  to  the  constitution 
of  the  United  States;"  but  nowhere  was 
any  right,  title,  privilege  or  immunity  as- 
serted to  be  derived  from  either  constitu- 
tion or  treaty,  and  there  was  nothing  to 
indicate  in  what  way,  if  any,  the  cause  of 
action  was  claimed  to  arise  from  either, 
this  is  not  sufficient  to  give  this  court 
jurisdiction  of  a  writ  of  error  direct  from 
this  court  to  the  circuit  court  either  on 
the  ground  that  the  construction  or  ap- 
plication of  the  constitution  of  the  United 
States  is  involved,  or  on  the  ground  that 
the  validity  or  construction  of  any  treaty 
made  under  the  authority  of  the  United 
States  is  drawn  in  question.  Muse  v. 
Arlington  Hotel  Co..  168  U.  S.  430,  435. 
43  L.  Ed.   531. 

The  circuit  court  of  appeals  ordered 
that  the  following  question  be  certified  to 
the  supreme  court  of  the  United  States 
for  its  instruction:  "Does  a  record  show- 
ing an  instruction  by  the  circuit  court  di- 
recting a  jury  that  the  plaintiff  is  entitled 
to  recover  in  his  action  under  a  state  law, 
upon  which  the  plaintiff  relies  for  re- 
covery, to  which  instruction  a  general  ex- 
ception is  reserved  by  the  defendant,  dis- 
close a  case  in  which  it  is  claimed  that  the 
law  of  a  state  is  in  contravention  of  the 
constitution  of  the  United  States,  within 
th«  meaning  of  §  5  of  the  act  of  ]\Iarch 
3,  1891.  where  the  record  of  the  circuit 
court  does  not  affirmatively  show  that  any 
issue  as  to  the  statute  was  raised  by  the 
pleadings,  and  where  the  record  does  not 
affirmatively  show  ''^at  said  exception  to 
said  instruction  was  upon  the  ground  that 
said  statute  was  in  contravention  of  the 
constitution  of  the  United  States,  or  that 


the  constitutionality  of  said  statute  was 
otherwise  presented  or  considered  or 
passed  upon  by  the  circuit  court;  '  it 
was  held,  such  record  does  not  disclose 
such  a  case.  Cincinnati,  etc.,  R.  Co.  v. 
Thiebaud,  177  U.  S.  615,  617,  618,  44  L. 
Ed.    911. 

41.  Borgmeyer  v.  Idler.  159  U.  S.  408, 
40  L.  Ed.  199;  Carey  v.  Houston,  etc.,  R. 
Co.,  150  U.  S.  170.  37  L.  Ed.  1041;  In  re 
Lennon,  150  U.  S.  393,  395,  37  L.  Ed.  1120; 
Northern  Pac.  R.  Co.  v.  Amato.  144  U. 
S.  465,  472,  36  L.  Ed.  506;  Sayward  v. 
Denny,  158  U.  S.  180,  39  L.  Ed.  941;  Ans- 
bro  V.  United  States,  159  U.  S.  695,  698,  40 
L.  Ed.  310;  Blvthe  v.  Hinckley,  173  U.  S. 
501,   43    L.    Ed.    783. 

42.  26  Stat.  826.  ch.  517,  §  5;  Pettit  r. 
Walshe.  194  U.  S.'  205.  216.  48  L.  Ed.  938; 
Filhiol  V.  Torney,  194  U.  S.  356,  48  L.  Ed. 
1014. 

•  Where  a  petition  for  a  writ  of  habeas 
corpus  and  the  warrant  under  which  the 
accused  was  arrested  both  refer  to  a 
treaty,  and  the  court  below  properly  pro- 
ceeded on  the  ground  that  the  determina- 
tion of  the  question  involved  'n  the  >  isc 
depended  in  part,  at  least,  on  the  meaning 
of  certnn  provisions  of  the  treatv,  the 
construction  of  a  treaty  is  involved,  giv- 
ing the  court  jurisdiction  of  a  direct  ap- 
peal from  the  circuit  court,  and  the  con- 
struction of  the  treaty  is  none  the  less 
drawn  in  question,  because  it  became 
necessary  or  appropriate  for  the  court  be- 
low also  to  construe  the  acts  of  congress 
passed  to  carry  the  provisions  of  the 
treaty  into  effect.  Pettit  v.  Walshe,  194 
U.    S.    205,    48    L.    Ed.    938. 

43.  Blvthe  v.  Hinckley.  173  U.  S.  -501, 
43  L.  Ed.  783,  reaftirmed  in  Kittaning 
Coal  Co.  V.  Zabriskie.  176  U.  S.  681,  44 
L.   Ed.   637. 

Where  the  question  of  the  capacity  of 
an  alien  to  inherit,  was  not  directly  passed 
on  by  the  circuit  court,  this  court  has  no 
jurisdiction  although  that  question  might 
have  been  indirectK-  involved  in  the  judg- 
ment. Blythe  r.  Hnicklev,  173  U.  S.  501, 
43  L.  Ed.  783.  reafi^rmed  in  Kittaning  Coal 
Co.  V.  Zabriskie,  176  U.  S.  681.  44  L.  Ed. 
637. 

The  bill  alleged  that  the  cause  arises 
under  a  treatv  between  the  United  States 
and  Spain  which  ratified  and  confirmed 
the  gr?nt  in  questi'^n.  And  the  contro- 
versv  involved  in  this  cause  necessarily 
iuA^olves  the  construction  of  said  treaty. 
Tt  was  held,  thpt  p  motion  to  d'sm'ss  a 
direct  appeal  from  the  circuit  court  of  the 


APPEAL  AND  ERROR. 


467 


privilege  or  immunity  dependent  upon  a  treaty  must  be  so  set  up  or  claimed  as  to 
require  the  circuit  court  to  pass  upon  the  question  of  the  validity  or  construction 
of  the  treaty  in  disposing  of  the  right  asserted.  In  order  to  come  within  the  act 
of  1891  the  treaty  must  be  directly  involved,  and  upon  its  construction  the  rights 
of  the  parties  must  rest.^*  The  mere  fact  that  the  matter  in  controversy  in  an 
action  is  a  sum  of  money  received  by  one  of  the  parties  as  an  award  under  a 
treaty  of  the  United  States  with  a  foreign  power,  providing  for  the  submission 
of  claims  against  that  power  to  arbitration,  does  not,  in  any  way.  draw  in  ques- 
tion the  validity  or  construction  of  that  treaty,  so  as  to  confer  jurisdiction  on  this 
court  to  review  the  judgment  of  a  circuit  court  of  the  United  States.-*^  It  cannot 
be  said  that  the  construction  of  any  treaty  is  drawn  in  question  when  the  rights 
of  neither  party  are  necessarily  dependent  upon  such  construction,  but  are  depend- 
ent upon  that  which  may  be  given  an  act  of  congress  and  when  the  construction 
of  that  statute  is  independent  of  that  which  may  be  given  any  of  the  treaties  men- 
tioned,, although  weight  may  be  given  to  the  treaties  in  determining  the  que:stion 


United  States  for  lack  of  jurisdiction, 
must  be  dismissed.  Mitchell  v.  Furman, 
180   U.    S.   402,   45    L.    Ed.    596. 

Considering  the  pleadings,  the  evidence 
pnd  the  master's  report  and  opinion,  the 
supreme  court  of  the  United  States,  upon 
,••  direct  appeal  from  a  circuit  court  of  the 
United  States  in  a  cause  involving  the 
construction  of  a  treaty,  held  that  rights 
under  the  treaty  were  so  far  set  up  and 
relied  on  as  to  give  jurisdiction  to  the 
circuit  court,  and  to  justifj"^  an  appeal 
from  its  decree  directly  to  that  court. 
The  court  said:  "The  record  differs  from 
that  in  Muse  v.  Arlington  Hotel  Co.,  168 
U.  S.  430.  42  L.  Ed.  531.  which  fell  short 
of  affording  adequate  grounds  for  the 
maintenance  of  our  iurisdiction."  Mitchell 
V.   Furman.   180   U.    S.   402,   45    L.    Ed.   596. 

Averments  in  a  complaint  in  ejectment, 
that  the  defendant's  possession  rests  upon 
an  infraction  by  the  United  States  of  its 
obligations  under  its  treaty,  or  an  un- 
lawful act  in  taking  possession  without 
compensation  in  defiance  of  the  consti- 
tution, does  not  bring  the  case  within  the 
jurisdiction  of  this  court  by  direct  appeal, 
either  on  the  ground  that  there  is  in- 
volved in  the  case  the  application  of  the 
constitution  of  the  United  States,  or  the 
nieaning  and  force  of  a  treaty.  Filhiol  v. 
Torney.  194  U.   S.   356,  48   L.    Ed.   1014. 

44.  Sloan  v.  United  States,  193  U.  S. 
614.  620,  48  L.  Ed.  814.  citing  Muse  v. 
.^'•lington  Hotel  Co.,  168  U.  S.  430,  42  L. 
Ed.  531. 

45.  Borgmeyer  v.  Idler,  159  U.  S.  408. 
40  L.  Ed.  199;  Blackburn  v.  Portland  Gold 
Min.  Co..  175  U.  S.  571,  586.  44  L.  Ed. 
276. 

Where  an  award  has  been  obtained  un- 
r'er  a  treaty,  and  both  parties  claim  undeY 
the  award,  the  introduction  of  the  treaty 
and  the  award,  merely  as  part  of  the  his- 
tory of  the  case,  does  not  involve  the 
■^'alidity  or  construction  of  any  treaty, 
borgmeyer  v.  Idler,  159  U.  S.  408,  40  L. 
F.d.  199,  citing  the  following  cases,  which 
;vere  decided  under  that  section  of  the 
judiciary    act    allowing    writs    of    error    to 


the  state  courts  under  similar  circum- 
stances. Gill  V.  Oliver,  11  How.  529,  13 
L.  Ed.  799;  Williams  v.  Oliver,  12  How. 
Ill,  13  L.  Ed.  921.  and  Baltimore,  etc.,  E. 
Co.  z:  Hopkins.  130  U.  S.  210,  32  L.  Ed. 
908,  which  was  decided  under  that  section 
of  the  Revised  Statutes  allowing  a  writ 
af  error  or  appeal  to  the  supreme  court 
of  the  District  of  Columbia  under  similar 
circumstances,  without  regard  to  the  sum 
or   value   of  the   matter  in   controversy. 

In  Gill  V.  Oliver,  11  How.  529,  543,  13 
L.  Ed.  799,  on  error  to  the  court  of  ap- 
peals of  Maryland,  it  was  held,  where  an 
award  had  been  obtained  under  a  treaty 
with  Mexico  and  both  parties  claimed  un- 
der the  award,  that  the  introduction  of 
the  treaty  and  the  award  merely  as  part 
of  the  history  of  the  case  did  not  in  any 
way  involve  the  validity  of  the  treaty  or 
its  construction  and  that  the  writ  of  er- 
mr  could  not  be  maintained.  See  Wil- 
liams V.  Oliver,  12  How.  Ill,  13  L.  Ed. 
921;  Baltimore  &  Potomac  Railroad  v. 
Hopkins,  130  U.  S.  210.  225,  32  L.  Ed. 
908;  Borgmever  v.  Idler,  159  U.  S.  408, 
415.    40    L.    Ed.    199. 

"By  the  fifth  section  of  the  act  of  March 
3.  1891.  appeals  or  writs  of  error  from  the 
district  and  circuit  courts  of  the  United 
States  to  this  court  were  allowed,  among 
other  cases,  "in  any  case  in  which  the 
constitutionality  of  any  law  of  the  United 
States,  or  the  validity  or  constrr-'^-on  of 
any  treaty  made  under  its  authority,  is 
drawn  in  question,"  but  it  was  not  sug- 
gested in  the  summons  and  statement  of 
claim  that  the  validity  or  construction  of 
any  treaty  made  under  the  authority  of 
the  United  States  was  drawn  in  question, 
and  no  such  question  was  decided  either 
by  the  circuit  court  or  the  circuit  court  of 
appeals.  It  is  unreasonable  to  contend  that 
any  question  was  raised  directly  touching 
the  validity  or  construction  of  either  ot 
the  treaties  of  Venezuela  by  plaintiff's 
statement  of  claim  or  by  clear  and  neces- 
sary intendment  therefrom,  and.  this  writ 
nf  error  mu  =  h  be  dismissed."  Borarmeyer  z;. 
Idler,   159  U.  S.  408,  414,  40   L.   Ed.   199. 


468 


APPEAL  AND  ERROR. 


of  the  constriK'ion  of  the  statiite.'*^^ 

Where  the  construction  of  an  extradition  treaty  is  involved  in  a  habeas 
corpus  case  in  the  circuit  court,  an  appeal  will  lie  to  this  court  under  the  circuit 
court  of  appeals  act  which  permits  an  appeal  to  this  court  in  any  case  in  which 
the  constitutionality  of  any  law  of  the  United  States,  or  the  validity  or  construc- 
tion of  any  treaty  made  under  its  authority,  is  drawn  in  question.'*'^ 

Indian  Treaties. — A  decision  by  a  circuit  court  in  an  action  of  ejectment  that 
the  patents  under  which  the  plaintiff  claims  are  invalid  because  the  Indian  title 
to  the  land  had  not  been  extinguished  at  the  time  of  the  inception  of  the  plaintiff's 
title,  and  that  any  patent  or  purported  patent  granted  by  the  tlnited  Slates  while 
the  Indian  title  was  still  existing,  was  null  and  void,  cannot  be  reviewed  by  this 
court  on  direct  appeal  under  the  fifth  section  of  the  act  of  March  3rd,  1891. 
on  the  ground  that  it  is  a  case  in  which  the  validity  or  construction 
of  a  treaty  made  under  the  authority  of  the  United  States  is  drawn 
in  question  by  a  party  having  a  rightful  interest  in  such  question,  because  the  al- 
leged invalidity  of  the  entries  and  of  the  patents  did  not  arise  out  of  any  alleged 
misconstruction  or  breach  of  any  treaty,  but  out  of  the  alleged  misconduct  of  the 
officers  of  the  land  office  in  permitting  the  entries  and  in  issuing  the  patents. 
Moreover,  the  defendants  did  not  connect  themselves  in  any  way  with  the  Indian 
treaties,  or  with  any  of  the  parties  to  them ;  nor  did  they  claim  any  rights  under 
those  treaties,  or  under  any  of  the  parties  to  them.^* 

cccc.  Scope  of  Reviezv. — Where  an  appeal  or  writ  of  error  is  taken  direct  to 
this  court  under  §  5  of  the  act  of  March  3,  1891,  in  a  case  in  which  the  consti' 
tutionality  of  a  law  of  the  United  States  is  drawn  in  question,  this  court  acquires 
jurisdiction  of  the  entire  case,  and  of  all  questions  involved  in  it,  and  not  merely 
of  the  question  of  the  constitutionality  of  the  law  of  the  United  States.  This  is 
shown  by  the  fact  that,  under  §  5,  where  an  appeal  or  writ  of  error  is  taken  direct 
to  this  court,  in  a  case  in  which  the  jurisdiction  of  the  district  court  or  of  the 


46.     Sloan   v.    United    States.    193    U.    S. 
614,   621,   48    L.    Ed.   814. 

Where  an  action  is  brought  under  au- 
thority of  the  acts  of  congress  approved, 
respectively.  August  15,  1894.  and  Feb- 
ruary 6,  1901,  permitting  persons,  in  whole 
or  in  part  of  Indian  blood  and  claiming 
to  be  entitled  to  an  allotment  of  land  un- 
der any  act  of  congress,  to  commence  an 
action  in  the  proper  circuit  court  of  the 
United  States  for  the  purpose  of  main- 
taining their  right  to  such  allotment,  and 
the  complainants'  attempt  to  bring  an  ap- 
peal direct  to  this  court  from  the  circuit 
court  on  the  ground  that  the  construction 
of  a  treaty  or  treaties  of  the  United  States 
with  the  Omaha  Indians  was  drawn  in 
question,  a  motion  to  dismiss  the  appeal 
on  the  ground  that  the  case  does  not  fall 
within  the  provisions  of  §  5  of  the  act  of 
March  3,  1891,  because  the  respective  com- 
plainants neither  assert  nor  claim  any 
right  to  an  allotment  under  or  by  virtue 
of  any  treaty,  and  because  the  validity  or 
construction  of  a  treaty  is  not  drawn  in 
question,  will  be  granted.  "The  com- 
plainants in  their  several  bills  have  based 
their  claims  to  an  allotment  upon  the  act 
of  1882  and  upon  the  proper  construction 
to  be  r'^'en  to  its  language,  which  con- 
struction, they  aver,  would  recognize 
their  rights  to  an  allotmc-t  under  the 
treaties  referred  to.  The  United  States, 
in   defending  against  the   claims   made   '-- 


the  complainants,  also  relies  entirely  upon 
the  proper  construction  of  the  act  of  1882. 
The  construction  of  a  treaty  is  used  only 
as  an  argument  upon  the  issue  directly  in 
question,  viz,  the  construction  of  the  stat- 
ute. The  alleged  right  to  an  allotment 
being  based  upon  the  act  of  1882.  and  the 
defense  being  also  based  upon  the  proper 
construction  of  that  act,  we  cannot  but 
regard  the  case  as  one  simply  resting  on 
such  act.  The  construction  of  these 
various  treaties  was  not  substantially  or 
in  any  other  than  a  merely  incidental  or 
remote  manner  drawn  in  question,  and 
therefore  a  direct  appeal  to  this  court  can- 
not be  sustained."  Sloan  v.  United  StateSj 
193   U.   S.   614.   48   U   Ed.   814. 

47.  Rice  v.  Ames,  180  U.  S.  371,  45  L. 
Ed.  577;  Pettit  v.  Walshe,  194  U.  S.  205» 
48   L.    Ed.   938. 

The  supreme  court  of  the  United  States 
has  held  that  a  direct  review  by  it  is  al« 
lowed  where  the  construction  of  an  ex- 
tradition treaty  is  drawn  in  question  on  a 
habeas  corpus  in  the  United  States  cir- 
cuit court.  Pettit  v.  Walshe,  194  U.  S. 
205,  48  L.  Ed.  938,  citing  Spreckels  Sugar 
Refining  Co.  v.  McLain,  192  U.  S.  397.  48 
U  Ed.  496,  26  Stat.  826,  ch.  517,  §  5; 
Ornelas  v.  Rinz,  161  U.  S.  502.  507.  40  L. 
Ed.   787. 

48.  Bud-isz  v.  Illinois  wteel  Co.,  .70 
U   S.  41,  42  U  Ed.  941. 


APPEAL  AND  ERROR. 


469 


eircuit  court  is  in  issue,  it  is  specifically  directed  that  "the  question  of  jurisdic- 
tion alone  shall  be  certified  to  the  supreme  court  from  the  court  below  for  de- 
cision." Ini*^  there  is  no  kindred  limitation  prescribed  in  regard  to  any  of  the  other 
cases  in  which  jurisdiction  in  this  court  of  appeals  or  writs  of  error  is  given  by 
§  S.*'-*  Although  no  question  of  jurisdiction  has  been  separately  certified  or  speci- 
fied, yet  if  the  writ  of  error  was  allowed  without  restriction  or  cjualification.  and 
this  court  has  acquired  appellate  jurisdiction  under  that  clause  of  the  statute 
giving  it  jurisdiction  by  direct  appeal  in  cases  in  which  the  constitutionality  of  a 
law  of  the  United  States  was  drawn  in  question,  we  have  power  to  dispose,  not 
rnerHv  of  the  ronQtitntioral  question,  but  of  the  entire  case,  including  all  ques- 
tions, whether  of  jurisdiction  or  of  merits.^*^ 

iti.  Jn  Luses  Iiiz'oi-c'iin/  the  Coiistifutionality  of  State  Laws  and  Constitutions — 
aaaa.  ///  General. — By  tlie  fifth  section  of  the  act  of  March  3.  1891,  c.  517,  26 
Stat.  826,  creating  the  circuit  courts  of  appeals,  jurisdiction  is  conferred  upon 
this  court  to  review  by  direct  appeal  any  final  judgment  rendered  by  the  circuit 
court  "in  any  case  in  which  the  constitution  or  law  of  a  state  is  claimed  to  be  in 
contravention  of  the  constitution  of  the  United  States. "^^  This  court  cannot 
take  jurisdiction  on  the  ground  that  the  constitution  or  law  of  a  state  was  claimed 
to  be  in  contravention  of  the  constitution  of  the  United  States,  unless  such  ques- 
tion was  directly  in  issue,  and  not  merely  indirectly  involved  in  the  judgment. ^2 

Claim  Must  Be  Real  and  Substantial. — The  questions  which  can  be  raised 
under  any  of  the  subdivisions  of  §  5  of  the  act  (of  March  3,  1891),  must  be 
real ;  the  controversies  they  present  must  be  substantial,  not  only  from  the  nature 
of  the  principles  invoked,  but  from  the  relation  of  the  party  to  them  by  whom 
they  are  invoked. ^^ 


49.  Horner  v.  United  States,  143  U.  S. 
570,  576,  36  L.  Ed.  266;  Press  Publishing 
Co.  V.  Monroe,  164  U.  S.  105,  41  L.  Ed. 
367;  German  Savings  Society  v.  Dormit- 
zer.   19:2  U.   S.   125,   48   L.   Ed.   373. 

50.  Chappell  v.  United  States,  160  U. 
S.  499,  40  L.  Ed.  510,  citing  Ekiu  v.  United 
States.  142  U.  S.  651,  35  L.  Ed.  1146; 
Horner  v.  United  States,  143  U.  S.  570, 
577.  36  L.  Ed.  266;  United  States  v.  Jahn. 
155  U.  S.  109,  112,  113.  39  L.  Ed.  87.  re- 
affirmed in  Merritt  v.  Bowdoin  College, 
167  U.  S.  745,  42  L.  Ed.  1209;  Filhiol  v. 
Torney.   194   U.    S.   356,   48   L.    Ed.    1014. 

51.  Penn.,  etc..  Ins.  Co.  v.  Austin.  168 
U.  S.  685,  694.  42  L.  Ed.  626;  Fidelity, 
etc..  Ass'n  v.  Mettler.  185  U.  S.  308.  315, 
46  L.  Ed.  922,  citing  and  approving  Loeb 
f.  Columbia  Township  Trustees,  179  U. 
S.  472.  45  L.  Ed.  280;  American  Sugar  Ref. 
Co.  V.  New  Orleans.  181  U.  S.  277,  45  L- 
VA.  8.59;  Giozza  v.  Tiernan,  148  U.  S.  657, 
661,  37   L.   Ed.   599. 

Laws  relating  to  foreign  corporations. 
— Where  an  action  is  brou.ght  in  a  federal 
court  by  a  foreign  corporation,  against 
one  of  its  commission  a.gents,  to  recover 
the  price  of  certain  goods  sold  by  the  de- 
fendant in  the  state  under  a  contract  in 
Writing,  and  the  defendant  sets  up  the 
defense  that  the  foreign  corporation  has 
failed  to  comply  with  the  laws  of  the 
state  and  thereby  the  contract  is  void,  if 
the  circuit  court,  in  giving  judgment  for 
the_  plaintiff,  holds  that  the  statute,  so  far 
as  It  applies  to  the  business  carried  on  by 
the  plaintiff  in  that  state  under  the  con- 
tract,  is   in   conflict   with    the    constitution 


of  the  United  States,  authorizing  congress 
to  regulate  interstate  commerce,  it  is  "a 
case  in  which  the  constitution  or  law  of 
a  state  is  claimed  to  be  in  contravention 
of  the  constitution  of  the  United  States," 
and    is    rightly    brought    directly    to    this 

1  ,-,iri»,-  the  act  of   March  3.   1891,  ch. 

517,  §  5;  26  Stat.  828.  Holder  v.  Aultman, 
16'.'    L'.    S.    81,    42    L.    Ed.    669. 

Insurance  laws. — A  writ  of  error  will 
lie  from  this  court  to  a  United  States  cir- 
cuit court  where  the  validity  of  the  stat- 
utes of  a  state  authorizing  the  recovery 
of  damages  and  attorney's  fees  for  fail- 
ure by  life  and  health  insurance  com- 
panies to  pay  losses,  is  seasonably  drawn 
in  question  by  the  defendant  below  as 
being  in  contravention  of  the  constitution 
of  the  United  States.  Fidelity,  etc.,  Ass'n 
V.  Mettler,  185  U.  S.  308,  46  L.  Ed.  922, 
following  Loeb  v.  Columbia  Township 
Trustees,  179  U.  S.  472,  45  L.  Ed.  280; 
American  Sugar  Ref.  Co.  v.  New  Orleans, 
181    U.    S.  277.  45   L.   Ed.   859. 

52.  Blythe  ?'.  Hinrkley.  173  U.  S.  501, 
43  L.  Ed.  783,  reaffirmed  in  Kittaning 
Coal  Co.  V.  Zabriskie,  176  U.  S.  681.  44 
L.    Ed.    637. 

53.  Lampasas  v.  Bell,  180  U.  S.  276,  284, 
45    L.    Ed.    527. 

"This  court  has  only  jurisdiction  by  ap- 
peal or  writ  of  error  directly  from  the 
circuit  court  in  certain  cases,  one  of  which 
is  when  'the  constitution  or  law  of  a  state 
is  claimed  to  be  in  contravention  of  the 
constitution  of  the  United  States.'  Sec- 
tion 5  of  the  judiciary  act  of  March  3, 
1891,    c.    517,    26    Stat.    826,    828.      But    the 


470 


APPEAL  AXD  ERROR. 


bbbb.  What  Is  a  "Lazv  of  a  State." — Where  the  state  has  delegated  certain 
powers  to  a  city,  the  ordinances  of  the  municipal  authorities  in  this  particular 
are  the  acts  of  the  state,  throsgh  one  of  its  properly  constituted  instrumenialilies, 
and  their  unconstitutionality  is  the  unconstitutionality  of  a  state  law  within  the 
meaning  of  §  5  of  the  circuit  court  of  appeals  act.""* 

cccc.  PVho  May  Raise  the  Question. — In  General. — A  court  will  not  listen  to 
an  objection  made  to  the  constitutionality  of  an  act  by  a  party  whose  rights  it 
does  not  affect,  and  who  has  therefore  no  interest  in  defeating  it.  Therefore,  a 
plaintiff  in  error,  who  has  no  legal  interest  in  the  constitutional  question  raised, 
cannot  come  directly  to  this  court  from  the  circuit  court  under  this  section.^'^^ 

Where  Federal  Question  Is  Raised  by  Defendant. — But  it  was  the  pur- 
pose of  congress  to  give  opportunity  to  an  unsuccessful  litigant  to  come  to  this 
court  directly  from  the  circuit  court  in  every  case  in  which  a  claim  is  made  that 
a  state  law  is  in  contravention  of  the  constitution  of  the  United  States.^^  When 
the  jurisdiction  of  the  circuit  court  is  invoked  by  the  plaintiff  only  on  the  ground 
of  diverse  citizenship,  a  claim  by  the  defendant  of  the  repugnancy  of  a  state  law 
to  the  constitution  of  the  United  States  is  sufficient  to  give  the  supreme  court 
of  the  United  States  jurisdiction,  upon  writ  of  error,  to  review  the  final  judgment 
of  the  circuit  court  sustaining  such  ground. ^'^     In  other  words,  if  a  claim  is  made 


claim  must  be  real  and  substantial.  A 
mere  claim  in  words  is  not  enough.  We 
said  by  the  chief  justice,  in  Western 
Union  Teles?raph  Co.  v.  Ann  Arbor  R. 
Co.,  178  U.  S.  239,  44  L.  Ed.  1052:  'When 
a  suit  does  not  really  and  substantially 
involve  a  dispute  or  controversy  as  to  the 
effect  or  construction  of  the  constitution 
or  laws  of  the  United  States,  up'-^n  riie 
determination  of  which  the  result  de- 
pends, it  is  not  a  suit  ansmg  uii^>-r  ^ue 
constitution  or  laws.  And  it  must  ap- 
pear on  the  record,  by  a  statement  in 
legal  and  logical  form,  such  as  is  required 
in  good  pleading,  that  the  suit  is  one 
which  does  really  and  substantially  in- 
volve a  dispute  or  controversy  as  to  a 
right  which  depends  on  the  construction 
of  the  constitution  or  some  law  or  treaty 
of  the  United  States,  before  jurisdiction 
.-"n  he  nK^ntained  on  this' ground.'  Gold 
Washing  &  Water  Co.  v.  Keyes,  96  U.  S. 
199,  24  L.  Ed.  656;  Blackburn  v.  Portland 
Gold  Min.  Co.,  175  U.  S.  571,  44  L.  Ed. 
276;"  Lampasas  v.  Bell,  180  U.  S.  276. 
282,  283.  45  L.  Ed.  527;  Newburyport 
Water  Co.  v.  Newburyport,  193  U.  S.  561, 
48  L.   Ed.  795." 

54.  Law  of  a  state  defined. — City  R.  Co. 
V.  Citizens'  Street  R.  Co.,  166  U.  S.  557. 
41  L.  Ed.  1114;  Penn.,  etc..  Tns.  Co.  v. 
Austin,  168  U.  S.  685.  694,  42  L.  Ed.  626; 
St.  Paul  Gaslight  Co.  v.  St.  Paul.  181  U.  S. 
142,  148,  45  L.  Ed.  788;  Davis  &  Farnum 
Mfg.  Co.  V.  Los  Angeles,  189  U.  S.  207. 
216.    47    L.    Ed.    778. 

55.  Who  may  raise  the  question. — The 
objection  that,  by  a  new  incorporation 
extending  the  boundaries  of  a  city 
and  bringing  in  people  who  were  nnt 
formerly  in  the  city,  the  residents  of  the 
territory  thus  brought  in  were  not  given 
an  opportunity  to  be  heard,  "whether  they 
should  or  should  not  be  included  in  or 
made  subject  to  taxation  in  the  proposed 
corporations;"    and    that    a    levy    and    col- 


lection of  taxes  from  them  was  in  viola- 
tion of  §  1,  of  the  14th  amendment  to  the 
constitution  of  the  United  States,  cannot 
be  made  by  the  city,  the  plaintiff  in  error, 
on  behalf  of  the  people  who  have  not  ob- 
jected to  the  incorporation,  in  order  to 
obtain  a  direct  appeal  to  the  supreme  court 
of  the  United  States  from  a  circuit  court 
under  §  5.  of  the  judiciary  act  of  1891. 
The  objection  must  be  made  by  one  hav- 
ing a  legal  interest  in  the  question  and 
not  by  a  stranger  to  its  grievance.  The 
plaintiff  in  error  has  no  legal  interest  in 
the  constitutional  question  which  it  raised, 
and  upon  which  it  claims  the  right  to  come 
directly  to  this  court  from'  the  circuit 
court  under  §  5  of  the  act  of  1891.  Lam- 
pasas V.  Bell.  180  U.  S.  276,  45  L.  Ed. 
527. 

56.  Loeb  V.  Columbia  Township  Trus- 
tees,  179   U.    S.   472.   478,   45   L.    Ed.   280. 

57.  Loeb  V.  Columbia  Township  Trus- 
tees.   179   U.   S.    472,    45    L.    Ed.   280. 

"Our  right  of  review,  by  the  express 
words  of  the  statute,  extends  to  'any  case 
of  the  kind  specified  in  the  fifth  section.' 
And  the  statute  does  not  in  terms  ex- 
clude a  case  in  which  the  federal  question 
therein  was  raised  by  the  defendant.  That 
section  differs  from  §  709  of  the  Revised 
Statutes  relating  to  the  review  by  this 
court  of  the  final  judgment  of  the  highest 
court  of  a  state  in  this,  that  under  the 
latter  section  we  can  review  the  final 
judgment  of  the  state  court  upon  writ  of 
error  sued  out  by  the  party  who  is  denied 
a  right,  privilege  or  immunity  specially 
set  up  or  claimed  by  him  under  the  con- 
stitution or  laws  of  the  United  States; 
whereas  the  circuit  court  of  appeals  act 
does  not  declare  that  the  final  judgment 
of  a  circuit  court  in  a  case  in  which  there 
was  a  claim  of  the  repugnancy  of  a  state 
statvite  to  the  constitution  of  the  United 
States  may  be  reviewed  here  only  upon 
writ  of  error  sued  out  by  the  party  mak- 


APPEAL  AXD  ERROR. 


471 


by  one  of  the  parties  in  the  circuit  court  that  a  state  law  is  repugnant  to  the 
constitution  of  the  L  nited  States,  the  supreme  court  may  direct  a  writ  of  error 
to  the  court  to  review  the  judgment  at  the  instance  of  the  unsuccessful 
party,  whetlier  plaintiff  or  defendant.^*^ 

dddd.  Slumnug  as  to  Junsdiction.— In  General.— The  words  of  the  statute 
which  empower  this  cout-t  to  review  directly  the  action  of  the  circuit  court 
are  that  such  power  shall  exist  wherever  it'  is  claimed  on  the  record  that  a 
law  of  a  state  is  in  contravention  of  the  federal  constitution.  Of 
course,  the  claim  must  be  real  and  colorable,  not  fictitious  and  fraudulent.^a 
Moreover,  the  power  of  this  court  to  review,  on.  a  writ  of  error,  the 
action  of  a  state  court,  must  not  be  confounded  "with  the  power  exercised 
by  this  court,  under  the  act  of  1891,, to  review  by  direct  appeal  the  final  action 
of  the  circuit  court  where,  on  the  face  of  the  record,  it  appears  that  the  claim 
was  made  that  the  statute  of  a  state  contravened  the  constitution  of  the  United 
States.  These  classes  of  jurisdiction  are  distinct  in  their  nature,  and  are  em 
braced  in  different  statutory  provisions.  Having  jurisdiction  of  the  cause,  there 
exists  the  power  to  consider  every  question  arising  on  the  record. "^"^ 

Test  of  Jurisdiction. — When  the  question  is  whether  a  judgment  of  the  cir- 
cuit court  of  appeals  is  final  in  a  particular  case,  it  may  well  be  that  the  juris- 
diction of  the  circuit  court  is,  within  the  meaning  of  that  section,  to  be  re^-arded 
as  dependent  entirely  upon  the  diverse  citizenship  of  the  parties  if  the  pfaintiff 
invoked  the  authority  of  that  court  only  upon  that  ground  ;  because  in  such  case 


ing  the  claim.  In  other  words,  if  a  claim 
is  made  in  the  circuit  court,  no  matter  by 
which  party,  that  a  state  enactment  is 
invalid  under  the  constitution  of  the 
United  States,  and  that  claim  is  sustained 
or  rejected,  then  it  is  consistent  with  the 
words  of  the  act,  and,  we  think,  in  har- 
mony with  its  object,  that  this  court  re- 
view the  judgment  at  the  instance  of  the 
unsuccessful  party,  whether  plaintiff  or 
defendant."  Loeb  v.  Columbia  Township 
Trustees,  179  U.  S.  472.  477,  478,  45  L. 
Ed.   280. 

58.  Loeb  ?'.  Columbia  Township  Trus- 
tees.  179   U.    S.    472,   45    L.    Ed.   280. 

This  court  has  jurisdiction  on  writ  of 
error  to  a  circuit  court,  under  the  circuit 
court  of  appeals  act.  where  the  in- 
validity of  a  state  statute  is  claimed, 
under  the  constitution  of  the  United 
States,  to  review  such  question, 
when  decided  against  either  party;  hence, 
includes  a  ca'^e  where  defendant  brin^^s 
up  the  writ  of  error,  who  has  previously 
set  up.  in  defense  of  the  action,  a  state 
statute,  which  the  court  held  unconstitu- 
tional. Connolly  7'.  Union  Sewer  Pipe 
Co.,   Ift4  U.    S.   540.   46   L.   Ed.   679. 

Tn  Loeb  V.  Columbia  Township  Trus- 
tees. 179  U.  S.  472,  477,  45  L.  Ed.  280. 
this  court  said:  "The  circuit  court  of  ap- 
ponls  act  does  not  declare  that  the  final 
ji'dTment  of  a  circuit  court  in  a  case  in 
which  there  was  a  claim  of  the  repug- 
nancy of  a  state  statute  to  the  constitu- 
tion of  the  United  States  may  be  re- 
viewed here  only  upon  writ  of  error  suf'd 
out  by  the  party  making  the  claim.  Tn 
other  words,  if  a  claim  is  made  in  the 
circuit  court,  no  matter  by  whirh  party, 
thnt  a  state  enactment  is  invnlid  under 
the  constitution   of  the  United   States,  and 


that  claim  is  sustained  or  rejected,  then 
it  is  consistent  with  the  words  of  the  act, 
and.  we  think  in  harmony  with  its  ob- 
ject, that  this  court  review  the  judgment 
at  the  instance  of  the  unsuccessful  party, 
whether  plaintiff  or  defendant.  It  was  the 
purpose  of  congress  to  give  opportunity 
to  an  unsuccessful  litigant  to  come  to 
this  court  directly  from  the  circuit  court 
in  every  case  in  which  a  claim  is  made 
that  a  state  statute  is  in  contravention  of 
the  constitution  of  the  United  States." 
Approved  in  Connolly  v.  Union  Sewer 
Pipe  Co.,  184,  U.  S.  540,  544,  46  L  Ed 
679. 

59.  Penn.,  etc.,  Ins.  Co.  v.  Austin,  168 
U.  S.  685,  695.  42  L.  Ed.  626;  Newburyport 
Water  Co.  v.  Newburyport,  193  U  S. 
561.    48    L.    Ed.    795. 

60.  Horner  v.  United  State-,  143  U  S. 
570,  36  L.  Ed.  266;  Penn.,  etc.,  Ins.  Co. 
::  .\ustin.  168  U.  S.  685,  695.  42  L  Ed 
626. 

Where  "the  complainants  in  their  bill 
in  express  terms  predicated  their  right  to 
the  relief  sought  upon  the  averment  that 
certain  ordinances  adopted  by  the  munic- 
ipal authorities  of  the  city  of  Austin,  and 
an  act  of  the  legislature  of  the  state  of 
Texas  referred  to  in  the  bill,  impaired  the 
obligations  of  the  contract  which  the  bill 
alleged  had  been  entered  into  with  the 
complainants  by  the  city  of  Austin,  and 
thnt  both  the  law  of  the  state  of  Texas 
and  the  city  ordinances  were  in  contra- 
vention of  the  constitution  of  the  United 
States,"  it  was  held,  that  no  language 
could  more  plainly  bring  the  case  within 
the  letter  of  a  statute  than  do  these  alle- 
trations  of  the  bill  bring  this  case  within 
the  act  of  March  3,  1891.  c.  517.  26  Stat. 
S26,    giving   this    court    jurisdiction    to    re- 


472 


APPEAL  AND  ERROR. 


\ 


the  jurisdiction  of  the  court  needed  no  support  from  the  averments  of  the  an 
swer,  but  attached  and  became  complete  upon  the  allegations  of  the  petition.  But 
no  such  test  of  the  jurisdiction  of  this  court  to  review  the  final  judgment  of  the 
circuit  court  is  prescribed  by  the  fifth  section.  Our  jurisdiction  depends  only 
on  the  inquiry  whether  that  judgment  was  in  a  case  in  which  it  was  claimed  that 
a  state  law  was  repugnant  to  the  Constitution  of  the  United  States.'^ ^ 

Necessity  for  Adverse  Decision. — L'pon  a  writ  of  error  from  this  court  to 
a  circuit  court  under  the  act  of  March  3,  1891.  c.  517,  §  5,  in  a  case  in  which 
the  constitution  or  law  of  a  state  is  claimed  to  be  in  contravention  of  the  con- 
stitution of  the  United. States,  the  jurisdiction  of  this  court  does  not  depend  upon 
the  question  whether  the  right  claimed  under  the  constitution  of  the  United  States 
has  been  upheld  or  denied  in  the  court  below,  and  therefore  it  differs  in  this  re- 
spect from  a  writ  of  error  to  the  highest  court  of  a  state.*'-  On  the  other  hand, 
under  the  act  of  March  3,  1891,  the  fact  that  the  defeated  party,  in  a  suit  in  a  cir- 
cuit court  of  the  United  States,  alleged  that  a  state  law  is  in  contravention  of 
the  constitution  of  the  United  States,  does  not  authorize  him  to  appeal  directly  to 
the  supreme  court  of  the  United  vStates,  where  the  decision  of  the  circuit  court  on 
that  point  was  in  his  favor  and  a  judgment  or  decree  was  rendered  against  him 
on  the  merits."^     The  words  "in  anv  case  in  which  the  constitution  or  law  of  a 


view  by  direct  appeal  any  final  judgment 
rendered  by  the  circuit  court  in  any  case 
in  which  the  constitution  or  law  of  a 
state  is  claimed  to  be  in  contravention  of 
the  constitution  of  the  United  States.  Not 
only  were  the  averments  of  the  bill,  as 
to  the  invalidity  of  the  state  law  ade- 
quate, but  so  also  were  the  allegations  as 
to  the  nullity  of  the  city  ordinances. 
These  ordinances  were  but  the  exercise 
by  the  city  of  a  legislative  power  which 
ic  assumed  had  been  delegated  to  it  by 
the  state,  and  were,  therefore,  in  legal 
intendment  the  equivalent  of  laws  enacted 
by  the  state.  Penn.,  etc..  Ins.  Co.  v.  Aus- 
tin, 168  U.  S.  685.  42  L.  Ed.  626,  citing 
City  R.  Co.  V.  Citizens'  Street  R.  Co.,  166 
U.   S.    557,  41   L.   Ed.    1114. 

61.  Loeb  7'.  Columbia  Township  Trus- 
tees,  179   U.   S.  472,   479.   45    L.   Ed.   280. 

62.  Holder  2:  Aultman.  169  U.  S.  81.  42 
L.  Ed.  669. 

Holder  v.  Aultman,  169  U.  S.  81,  88, 
42  L.  Ed.  669,  was  an  action  in  the  cir- 
cuit court  of  the  United  States  for  the 
eastern  district  of  Michigan  upon  a  writ- 
ten contract  relating  to  agricultural  ma- 
chines, the  plaintiff  being  a  corporation 
of  Ohio,  and  the  defendant  a  corporation 
of  Michigan.  No  question  of  a  federal 
nature  appeared  in  the  plaintiflf's  petition. 
The  defendant,  however,  claimed  that  a 
certain  statute  of  Michigan  stood  in  the 
way  of  the  plaintiflf  maintaining  its  ac- 
tion. This  court  said:  'The  circuit  court, 
in  giving  judgment  for  the  plaintiff,  held 
that  the  contract  was  made  in  the  state 
of  Ohio,  and  that  the  statute  of  Michigan, 
so  far  as  it  applied  to  the  business  car- 
ried on  by  the  plaintiflf  in  that  state  un- 
der the  contract,  was  in  conflict  with  the 
constitution  of  the  United  States  authoriz- 
ing congress  to  regulate  interstate  com- 
merce. 68  Fed.  Rep.  467.  This  was 
therefore  a  "case  in  which  the  constitu- 
tion or  law  of  a  state  is  claimed  to  be  in 


contravention  of  the  constitution  of  the 
United  States."  and  was  rightly  brought 
directly  to  this  court  by  writ  of  error  un- 
der the  act  of  March  3,  1891,  ch.  517,  § 
5,  26  Stat.  828.  Upon  such  writ  of  error, 
differing  in  those  respects  from  a  writ  of 
error  to  the  highest  court  of  a  state,  the 
jurisdiction  of  this  court  does  not  depend 
upon  the  question  whether  the  right 
claimed  under  the  constitution  of  the 
United  States  has  been  upheld  or  denied 
in  the  court  below;  and  the  jurisdiction 
of  this  court  is  not  limited  to  the  con- 
stitutional question,  but  includes  the  whole 
case.  Whitten  v.  Tomlinson,  160  U.  S. 
231,  238,  40  L.  Ed.  406;  Penn.,  etc..  Ins. 
Co.  V.  Austin,  168  U.  S.  685.  42  L.  Ed. 
626;  Loeb  z\  Columbia  Towns.hip  Trus- 
tees. 179  U.  S.  472,  480,  481.  45  L.  Ed. 
280. 

63.  Anglo-American  Provision  Co.  v. 
Davis  Provision  Co..  191  U.  S.  373,  48  L. 
Ed.  225.  citing  Lampasas  z:  Bell,  180  U. 
S.  276,  45   L.   Ed.  527. 

In  United  States  v.  Jahn,  155  U.  S.  109, 
114,  115.  39  L.  Ed.  87,  it  is  said:  "If  th^ 
question  of  jurisdiction  is  in  issue,  and 
the  jurisdiction  sustained,  and  then  judg- 
ment or  decree  is  rendered  in  favor  of 
the  defendant  on  the  merits,  the  plaintiff, 
who  has  maintained  the  jurisdiction,  must 
appeal  to  the  circuit  court  of  appeals, 
where,  if  the  question  of  jurisdiction 
arises,  the  circuit  court  of  appeals  may 
certify  it."  Anglo-American  Provision 
Co.  V.  Davis  Provision  Co.,  191  U.  S.  373. 
377,  48  L.   Ed.  228. 

".A^s  a  general  rule,  the  court  will  not 
allow  a  party  to  rely  on  anything  as 
cause  for  reversing  a  judgment,  which  was 
for  his  advantage."  Cited  from  Mr.  Jus- 
tice Curtis'  dissent  in  Scott  v.  Sanford, 
19  How.  393.  566,  15  L.  Ed.  691.  in  Mans- 
Peld.  etc.,  R.  Co.  v.  Swan.  Ill  U.  S.  379, 
383,  28  L.  Ed.  462.  This  remark,  to  be  sure, 
is    not    strictly    in    point,    as    the    plaintiff 


APPEAL  AND  ERROR.  473 

Slate  is  claimed  to  be  in  contravention  of  the  constitution  of  the  United  States;" 
are  general  in  form,  but  they  do  not  mean  that,  whenever  a  party  makes  a  case 
of  that  sort,  he  may  appeal  directly  to  this  court  whenever  the  decision  is  against 
him,  no  matter  on  what  grounds,  although  his  contention  about  the  state  law  is 
sustained.  If  a  party  comes  into  the  circuit  court  alleging  that  a  state  law  is 
unconstitutional,  and  the  circuit  court  decides  for  him  on  that  point,  the  mere 
fact  that  there  was  such  a  question  in  the  case  does  not  authorize  him  to  appeal 
to  this  court  on  grounds  that  otherwise  would  not  support  an  appeal.^-* 

eeee.  Hearing  and  Deternmiation. — Where  a  cause  is  brought  directly  to  the 
supreme  court  from  the  circuit  court  of  the  United  States  on  the  ground  that  the 
case  arose  under  the  constitution  of  the  United  States,  it  at  once  becomes  the  duty 
of  that  court  to  inquire  whether  the  circuit  court  should  have  retained  the  case.^^ 
Where  a  cause  is  brought  directly  to  the  supreme  court  of  the  United  States  from 
a  circuit  court  of  the  United  States,  on  the  ground  that  the  case  arose  under  the 
federal  constitution,  that  court,  having  reached  the  conclusion  that  the  circuit  court 
erred  in  retaining  the  cause,  is  vested  with  the  power  to  direct  that  conclusion  to 
1:»€  carried  into  elTect,  and,  in  its  exercise,  it  discharges  one  of  its  essential  func- 
tions, the  determination  of  the  jurisdiction  of  the  courts  below.^^ 

Scope  of  Review. — The  jurisdiction  of  this  court  upon  a  writ  of  error  from 
this  court  directly  to  a  circuit  court  under  the  act  of  March  3,  1891,  c.  517,  §  5,  in 
a  case  in  which  the  constitution  or  law  of  a  state  is  claimed  to  be  in  contravention 
of  the  constitution  of  the  United  States,  is  not  limited  to  the  constitutional  ques- 
tion, but  includes  the  whole  case.^"  Where  a  bill  is  based  not  only  upon  diversity 
of  citizenship,  but  upon  the  alleged  unconstitutionality  of  a  municipal  ordinance 
as  impairing  the  obligation  of  a  contract  with  the  city  under  prior  ordinances, 
an  appeal  lies  directly  to  this  court,  and  upon  such  appeal  the  whole  case  is  opened 
for  consideration."^ 

cc.  Wlven  Jurisdiction  Is  Exclusive  and  When  Concurrent. — When  Exclu- 
sive.— Where  diversity  of  citizenship  does  not  exist,  and  the  jurisdiction  of  the 
circuit  court  rests  solely  on  the  ground  that  the  cause  of  action  arose  under  the 
constitution  of  the  United  States,  an  appeal  lies  directly  to  this  court  under  sec- 
tion five  of  the  judiciary  act  of  March  3,  1891,  and  not  to  the  circuit  court  of 
appeals.^9     But  if  an  appeal  is  nevertheless  prosecuted  to  the  latter  court  and  has 

would  not   ask   to  have   the   judg^ment   re-  etc.,   Ins.   Co.  v.   Austin,  168  U.   S.   685,  42 

versed  on  the  ground  that  this  New  York  L.   Ed.  626;  Home   Lite  Ins.  Co.  v.  Fislier, 

law   was   constitutional.      But   it,   with   the  188  U.  S.  726,  47  L.  Ed.  667;  The  Roanoke, 

quotation  from  United  States  v.  Jahn,  1.5.5  189   U.   S.   185,  192,   47   L.   Ed.   770. 
U.  S.  109,   117.   39  L.   Ed.   87,   helps   to  in-  Under  the  act  of  1891.  ch.  517,  §  5,  this 

dicate  a  principle  to  be  applied  to  the  con-  court    has    jurisdiction    to     consider      the 

struction   of   the   words   "in   any    case     in  whole   case   in  a  case  where   it  is  claimed 

which  the  constitution  or  law  of  a  state  is  that    a    state     constitution      violates      the 

claimed  to  be  in  contravention  of  the  con-  United    States    constitution;    this    jurisdic- 

stitution    of    the    United    States."      Anglo-  tion   cannot  be   narrowed  to  a  review  of  the 

American    Provision     Co.    v.    Davis    Pro-  jurisdiction  of  the   circuit  court  as  a  court 

vision   Co.,   191   U.   S.   373,   378,   48   L.   Ed.  of   the   United   States,    by   a   certificate    of 

225.  the   circuit   court   judge  which   raises   that 

64.  See  Lampasas  v.  Bell,  180  U.  S.  276.  sole  question.  Giles  v.  Harris,  189  U. 
45  L.  Ed.   527;   Anglo-American  Provision  S.  475,  486,  47  L.  Ed.  909. 

Co.  V.  Davis  Provision  Co.,  191  U.  S.  373,  68.    Horner  v.  United   States,   143  U.   S. 

378.  48   L.   Ed.   225.  570,    36    L.    Ed.    266;    Chappell    v.    United 

65.  Defiance  Water  Co.  v.  Defiance,  191  States,  160  U.  S.  499,  40  L.  Ed.  510;  Davis 
U.  S.  1S4.  195.  48   L.   Ed.   140.  &   Farnum   Mfg.   Co.   v.   Los   Angeles,   189 

66.  Defiance  Water  Co.  v.  Defiance,  191  U.   S.   207,  47   L.   Ed.   778. 

U.   S.   184.   195,   48   L.   Ed.    140,   citing   and  69.     American    Sugar    Ref.    Co.    v.    New 

approving    Morris    v.    Gilmer,    129    U.    S.  Orleans,    181    U.    S.    277.    45    L.    Ed.    859; 

315.    32   11,.    Ed.    690;    Wetmore   v.    Rymer,  Union,  etc.,   Bank  v.    Memphis,   189  U.    S. 

169  U.   S.   115,   42    L.   Ed.   682;   .'\ztec    Min.  71,  73,  47   L.   Ed.  712.  reaffirmed  in   Berlin 

Co.  V.  Ripley,  151   U.  S.  79,  38  L.  -Ed.  80.  Iron    Bridge    Co.    v.    Brennan,    194    U.    S. 

67.  Holder    v.    Aultman.    169    U.    S.    81,  630,   48   L.    Ed.   1158. 

42  L.   Ed.   669,   citing  Whitten  v.  Tomlin-  If   the    case,   as   made    by   the   plaintiff's 

son,  160  U.   S.  231,   40   L.    Ed.   406;   Penn.,       statement,     involves     no     other     question 


474 


APPHAL  AND  ERROR. 


there  ^^one  to  decree,  and  an  appeal  is  allowed  to  this  court  because  the  judgment 
was  net  made  final  in  that  court  by  section  six  of  the  act,  the  case  being  here,  and 
the  jurisdiction  of  the  circuit  court  having  depended  on  the  sole  ground  that  ii 
arose  under  the  constitution,  we  will  reverse  the  decree  of  the  circuit  court  of  ap- 
peals, not  on  the  merits,  but  by  reason  of  the  want  of  jurisdiction  in  that  court.'" 
If  this  were  not  so,  the  right  to  two  appeals  would  exist  in  every  similar  case 
notwithstanding,  as  we  have  repeatedly  held,  that  such  was  not  the  intention  of 
the  actJi  Likewise,  where  the  jurisdiction  of  the  circuit  court  rests  solely  on  the 
crround  that  the  controversy  arises  under  the  constitution,  laws  or  treaties  of  the 
United  States,  the  jurisdiction  of  this  court  is  exclusive,  otherwise  there  would 
be  a  right  to  two  appeals  in  every  case  in  which  the  litigated  matter  had  the  req- 
uisite value.' 2  ,        ,       ,         ,  ,111- 

When  Concurrent. — On  the  other  hand,  when  the  ca.se,  made  by  the  plam- 
tiff,  involves  a  question  other  than  those  relating  to  the  constitutionality  of  an  act 


than  the  constitutional  validity  of  an  act 
of  congress,  or  the  construction  or  ap- 
plication "of  the  constitution  of  the  United 
States,  the  supreme  court  alone  will  have 
jurisdiction  to  review  the  judgment  of 
the  circuit  court.  Huguley  Mfg.  Co.  v. 
Galeton  Cotton  Mills,  184  U.  S.  290,  295, 
46  L.  Ed.  546;  Spreckels  Sugar  Refining 
Co.  V.  McClain,  192  U.  S.  397.  407,  48  L. 
Ed.    496. 

If  the  case  depended  entirely  on  the 
construction  of  the  act  of  congress— its 
constitutionality  not  being  drawn  in  ques- 
tion— it  would  not*  be  one  of  those  de- 
scribed in  the  fifth  section  of  the  act  of 
1891,  and,  consequently,  could  not  come 
here  directly  from  the  circuit  court. 
Spreckels  Sugar  Refining  Co.  v.  McClain, 
192   U.    S.   397,    407,  48   L.   Ed.   496. 

"In  Huguley  Mfg.   Co.   v.   Galeton   Cot- 
ton   Mills,    184   U.    S.    290,    295,    46    L.    Ed. 
546.  It  was  said:     'If  after  the  jurisdiction 
of  the  circuit  court  attaches  on  the  ground 
of     diversity      of      citizenship,     issues   are 
raised,   the    decision   of    which   brings    the 
case  within  either  of  the  classes  set  forth 
in    section    five,    then    the    case    may .  be 
brought    directly    to    this    court;    although 
it   may   be   carried  to   the   circuit   court   of 
appeals,    in    which    event    the    final    judg- 
ment  of   that  court   could  not   be  brought 
here      as      of     right.      Loeb    v.    Columbia 
Towtiship   Trustees,    179   U.    S.    472,    45    L. 
Ed.  280.     If  the  jurisdiction  of  the  circuit 
court  rests  solely  on  the  ground  that  the 
suit  arises  under  the  constitution,  laws  or 
treaties    of    the    United    States,    then    the 
jurisdiction  of  this  court  is  exclusive,  but 
if  it  is   placed  on   diverse   citizenship,  and 
also  on  grounds  independent  of  that,  then 
if  carried  to  the  court  of  appeals,  the   de- 
cision   of   that    court   would    not    be    made 
final,   and   appeal   or   writ   of   error   would 
lie      American  Sugar  Ref.  Co.  v.  New  Or- 
leans,  181   U.    S.   277,    45   L.   Ed.   859.   *   *   * 
The   ground   on   which   the  jurisdiction   of 
the   circuit   court   was   invoked   was   solely 
diversity    of    citizenship,    and    the    record 
does  not   show   anything  to   the   contrary, 
so  that  the   decree  of  the   circuit  court  of 
ap-peals  cannot  be  regarded  otherwise  than 
as  made  final  by  the   statute.'  "    Spreckels 


Sugar    Refining    Co.    v.    McClain.    192    U. 
S.    397.    409,    48    L.    Ed.    496. 

70.  Union,  etc.,  Bank  v.  Memphis,  18» 
U.  S.  71,  73.  47  L.  Ed.  712,  reaffirmed  in 
Berlin  Iron  Bridge  Co.  v.  Brennan,  194 
U.   S.  630,  48  L.  Ed.   1158. 

71.  Robinson  v.  Caldwell,  165  U.  S. 
359.  41  L.  Ed.  745;  Loeb  v.  Columbia 
Trustees,  179  U.  S.  472,  45  L.  Ed.  280; 
American  Sugar  Ref.  Co.  v.  New  Orleans, 
181  U.  S.  277,  45  L.  Ed.  859;  Union,  etc.. 
Bank  v.  Memphis,  189  U.  S.  71.  74,  47  L. 
Ed.  712,  reaffirmed  in  Berlin  Iron  Bridge 
Co.  r.  Brennan,  194  U.  S.  630,  48  L.  Ed. 
1158. 

Cases  distinguished In  Pullman's  Pal- 
ace Car  Co.  v.  Central  Transp.rtalion 
Co..  171  U.  S.  138,  43  L.  Ed.  108,  an  ap- 
peal was  taken  to  this  court  and  also  to 
the  circuit  court  of  appeals,  and  a  mo- 
tion was  made  in  each  court  to  dismiss 
the  appeal,  whereupon  by  reason  of  the 
circumstances,  we  granted  a  writ  of  cer- 
tiorari and  brought  up  the  record  from 
the  latter  court  before  it  had  proceeded 
to  decree.  The.  question  as  to  which  was 
the  correct  route  to  reach  this  court  be- 
came immaterial  and  we  disposed  of  the 
case  on  its  merits.  But  in  the  present 
case  the  circuit  court  of  appeals  went  to 
decree,  and  we  are  obliged  to  deal  with 
the  ai^peal  therefrom,  in  doing  which  the 
jurisdiction  of  that  court  necessarily 
comes  under  review.  Union,  etc..  Bank 
V.  Memphis,  189  U.  S.  71,  74.  47  L.  Ed. 
712. 

72.  "As,  however,  a  case  so  arises  un- 
der the  constitution,  laws  or  treaties  of 
the  United  States,  where  it  appears  on 
the  record,  from  plaintiff's  own  state- 
ment, in  legal  and  logical  form,  such  as 
is  required  by  good  pleading,  that  the 
suit  is  one  which  docs  really  and  sub- 
stantially involve  a  dispute  or  contro- 
versy as  to  a  right  which  depends  on  the 
construction  or  application  of  the  con- 
stitution, or  some  law.  or  trcatv  of  the 
United  States.  Gold  Washins:  &  Water 
Co.  T'.  Keves,  96  U.  S.  199.  24  L.  Ed.  656; 
Blackburn  v.  Portland  Gold  Min.  Co..  175 
U.  S.  571,  44  L.  Ed.  276;  Western  Union 
Telegraph   Co.   v.   Ann   Arbor   R.    Co..  178 


AFFINAL  AND  ERROR. 


475 


of  congress  and  to  the  application  and  construction  of  the  constitution,  the  circuit 
court  of  appeals  has  jurisdiction  to  review  the  judgment  of  the  circuit  court, 
aUhough  if  the  plaintilf  elects  to  bring  it  here  directly,  this  court  would  have  had 
jurisdiction  to  determine  all  the  questions  arising  upon  the  record.  The  plaintiff 
is  entitled  to  bring  it  here  directly  from  the  circuit  court,  or  at  hi?  election,  to  go 
(o  the  circuit  court  of  appeals  for  a  review  of  the  whole  case." ^  Where  the  plain- 
litTf  elects  to  go  to  the  circuit  court  of  appeals  for  a  review  of  the  judgment,  he 
cannot  thereafter,  if  unsuccessful  in  that  court  upon  the  merits,  prosecute  a  writ 
of  error  directly  from  the  circuit  court  to  the  supreme  court.'^-* 

dd.  Transfer  of  Cause. — In  General. — As  to  the  methods  and  system  of  review, 
through  appeals  or  writs  of  error,  including  the  citations,  supersedeas,  and  bond 
or  other  security,  in  cases,  either  civil  or  criminal,  brought  to  this  court  from  the 
circuit  court  or  the  district  court,  congress  made  no  provision  in  this  act,  evi- 
dently considering  those  matters  to  be  covered  and  regulated  by  the  provisions  of 
earlier  statutes  forming  parts  of  one  system."^'' 

ee.  Cross  Appeals. — Where,  from  the  allegations  of  the  complaint,  the  whole 
case  can  come  to  this  court  by  direct  appeal,  and  all  the  questions,  federal  or  other- 
wise, may  come  up  on  such  appeal,  it  must  fallow  that  either  party  aggrieved  by 
the  decision  may  appeal,  and  the  complainant  appealing,  a  cross  appeal  may  be  sued 
out  by  the  defendant  as  to  the  matters  decided  in  the  same  case  against  him.  If 
he  fails  to  take  such  appeal,  the  correctness  of  the  decision  as  against  him  will 
be  presumed."*' 

ff.  Limitations. — The  sixth  section  of  the  act  of  March  3,  1891,  does  not  change 
the  two  years  limit  as  regards  the  cases  which  could  be  taken  from  the  circuit  and 
district  courts  of  the  United  States  to  the  supreme  court. '^" 

gg.  Showing  as  to  Jurisdiction. — In  General. — When  our  jurisdiction  is  in- 
voked under  §  5  of  the  judiciary  act  of  March  3,  1891.  c.  517.  on  the  ground  that 
the  case  falls  within  the  fourth,  fifth  or  sixth  of  the  classes  of  cases  therein  enu- 


U.  S.  239.  44  L.  Ed.  1052,  and  as  those 
cases  fall  strictly  within  the  terms  of  § 
5,  the  appellate  jurisdiction  of  this  court 
in  respect  of  them  is  exclu-sive."  American 
Sugar  Ref.  Co.  v.  New  Orleans,  181  U. 
S.    377.    2^1,    45    L.    Ed.    859. 

73.  Spreckek  Sugar  Refining  Co.  v.  Mc- 
Clain,   192   U.  S.   397,  407.  48  L.   Ed.  496. 

"Tn  American  Sugar  Ref.  Co.  v.  New 
Orleans.  181  U.  S.  277,  280.  45  L  .Ed.  859, 
281,  it  was  said:  'Tt  was  held,  in  Loeb 
V.  Columbia  Township  Trustees,  179  U. 
S.  472,  45  L.  Ed.  280.  where  the  jurisdic- 
tion of  the  circuit  court  rested  on  diverse 
ckizenship,  btit  the  state  statute  involved 
was  claimed  in  defense  to  be  in  contra- 
vention of  the  constitution  of  the  United 
States,  that  a  writ  of  error  could  be  taken 
directly  from  this  court  to  revise  the  judg- 
ment of  the  circuit  court,  although  it  was 
also  ruled  that  the  plaintiff  might  have 
carried  the  case  to  the  circuit  court  of 
appeals,  and  that  if  a  final  judgment  were 
rendered  by  that  court  against  him,  he 
could  not  thereafter  have  invoked  the 
jurisdiction  of  this  court  directly  on  an- 
other writ  of  error  to  review  the  judg- 
ment of  the  circuit  court.  *  *  *  If  plain- 
tiff, by  proper  pleading,  places  the  juris- 
dictvon  of  the  circuit  court  on  diverse 
citizenship,  and  also  on  grounds  inde- 
pendent of  that,  a  question  exnressly  re- 
served in  Colorado,  etc..  Mining  Co. 
V.  Turck,  1,50  U.  S.  138.  37  L.  Ed.  1030, 
and  the  case  is  taken  to  the   court  of  ap- 


peals, propositions  as  to  the  latter  grounds 
may  be  certified,  or,  if  that  course  is  not 
pursued  and  the  case  goes  to  judgment 
(and  the  power  to  certify  assumes  the 
power  to  decide),  an  appeal  or  writ  of 
error  would  lie  under  the  last  clause  of 
section  six,  because  the  jurisdiction  would 
not  depend  solely  on  diverse  citizenship. 
Union  Pac.  R.  Co.  v.  Harris.  158  U.  S. 
326.  39  L.  Ed.  1003.'"  Spreckels  Sugar 
Refining  Co.  v.  McClain.  192  U.  S.  397, 
409.    48    L.    Ed.    496. 

74.  Robinson  v.  Caldwell,  165  U.  S. 
359.  41  L.  Ed.  745;  Loeb  v.  Columbia 
Township  Trustees,  179  U.  S.  472.  45  L. 
Ed.  280;  Ayers  v.  Polsdorfer,  187  U.  S. 
585,  47  L.  Ed.  314;  Spreckels  Sugar  Re- 
fining Co.  V.  McClain.  192  U.  S.  397,  408, 
48    L.    Ed.    496. 

75.  Ballew  v.  United  States,  160  U.  S. 
187.  202.  40  L.  Ed.  388;  Hudson  v.  Parker, 
156   U.    S.   277,    39    L.    Ed.    424. 

76.  Cro-ss  appeals  Mail  Co.  v.  Flanders.  13 
Wall.  130,  20  L.  Ed.  249;  Chittenden  3'. 
Brewster,  2  Wall.  191,  196,17  L.  Ed.  839; 
Field  V.  Barber  Asphalt  Co.,  194  U.  S. 
618,  621,  48  L.  Ed.  1142,  reaffirmed  in  FieM 
V.  Barber  Asphalt  Co.,  203  U.  S.  586,  51 
L.   Ed.  328. 

77.  Limitations. — Holt  v.  Indiana  Mfg. 
Co..  176  U.  S.  68,  44  L.  Ed.  374:  Allen  v. 
Southern,  etc..  R.  Co..  173  U.  S.  479.  43  L. 
Ed.  775;  Excelsior  Wooden  Pipe  Co.  z\ 
Pacific  Bridge  Co.,  185  U.  S.  282,  46  L.  Ed 
010, 


476 


APPEAL  AND  ERROR. 


merated,  it  must  appear  that  a  title,  right,  privilege  or  immunity  was  claimed 
under  the  constitution,  and  a  definite  issue  in  respect  to  the  possession  of  the 
right  must  be  distinctly  deducible  from  the  record ;  or  that  the  constitutionality  of 
the  particular  law  or  the  validity  or  construction  of  the  particular  treaty  was 
necessarily  and  directly  drawn  in  question ;  or  that  the  constitution  or  law  of  a 
state  was  distinctly  claimed  to  be  in  contravention  of  the  constitution  of  the  United 
States ;  and  it  is  not  sufficient  that  the  point  is  raised  in  the  assignment  of  errors^* 

An  assignment  of  errors  cannot  be  availed  of  to  import  questions  into  a 
cause  which  the  record  does  not  show  were  raised  in  the  court  below  and  rulings 
asked  thereon,  so  as  to  give  jurisdiction  to  this  court  under  the  fifth  section  of  the 
act  of  March  3,  1891J9 

Certificate  of  Trial  Judge. — In  order  to  determine  whether  the  case  is  one 
which  should  have  gone  to  the  circuit  court  of  appeals  and  not  have  been  brought 
directly  to  the  supreme  court  of  the  United  States,  it  is  necessary  to  look  into 
the  record  without  regard  to  a  certificate  given  by  the  trial  judge.  Indeed,  there 
is  no  authority  for  the  making  of  such  certificate.**' 

hh.  Scope  of  Rcvieiv. — Except  in  cases  under  §  5  of  the  act  of  March  3,  1891, 
where  the  question  of  jurisdiction  alone  is  certified,  the  supreme  court  of  the 
United  States  has  power  to  dispose  of  the  entire  case.^^  Wh€re  an  appeal  or 
writ  of  error  is  taken  directly  from  the  circuit  court  to  this  court  in  cases  in- 
volving the  construction  or  application  of  the  constitution,  or  the  constitutionality 
of  a  law,  or  the  validity  or  construction  of  a  treaty,  of  the  United  States,  or  in 
which  the  constitution  or  a  law  of  a  state  is  claimed  to  be  in  contravention  of  the 
constitution  of  the  United  States ;  in  any  of  these  cases  the  appellate  jurisdiction 
of  this  court  is  not  limited  to  the  constitutional  question,  but  extends  to  the  deter- 
mination of  the  whole  case.*^    \Miere  the  construction  of  a  treaty  made  under  the 


78.  Ansbro  v.  United  States,  159  U.  S. 
695,  40  L.  Ed.  310;  Cornell  v.  Green.  163 
U.  S.  75,  41  L.  Ed.  76;  Muse  v.  Arlington 
Hotel  Company,  168  U.  S.  430,  42  L.  Ed. 
531;  Miller  v.  Cornwall  R.  Co..  168  U.  S. 
131,  42  L.  Ed.  409;  Cincinnati,  etc.,  R.  Co. 
^.  Thiebaud,  177  U.  S.  615.  619,  620.  44 
L.    Ed.    911. 

79.  Ansbro  v.  United  States,  159  U.  S. 
695,    698,    40    L.    Ed.    310. 

80.  Certificate  of  trial  judge. — Cosmo- 
politan Min.  Co.  V.  Walsh,  193  U.  S.  460, 
48  L.  Ed.  749. 

81.  Scope  of  review. — Chin  Bak  Kan  z'. 
United  States,  186  U.  S.  193.  201.  46  L. 
Ed.  1121,  reaffirmd  in  United  States  v. 
Meng.  196  U.  S.  636.  49  L.  Ed.  629;  Ah 
Sou  V.  United  States,  200  U.  S.  611,  50  L- 
Ed.   619. 

82.  Act  of  March  3,  1891,  c.  517,  §  5; 
26  Stat.  82"  828;  Horner  v.  United  States, 
143  U.  S.  570,  36  L.  Ed.  266;  Chappell  v. 
United  States.  160  U.  S.  499,  40  L.  Ed. 
510;  Press  Publishing  Co.  v.  Monroe,  164 
U.  S.  105,  110.  41  L.  Ed.  367;  Holder  v. 
Aultman,  169  U.  S.  81,  89.  42  L.  Ed.  669; 
Burton  v.  United  States.  196  U.  S.  283, 
295,  49  L.  Ed.  482;  Home  Life  Ins.  Co. 
V.  Fisher.  188  U.  S.  726,  47  L.  Ed.  667; 
German  Savings  Society  v.  Dormitzer. 
192  U.  S.  125,  126,  48  L.  Ed.  373;  Field  v. 
Barber  Asphalt  Co..  194  U.  S.  618,  48  L. 
Ed.  1142.  reaffirmed  in  Field  v.  Barber 
Asphalt  Co.,  203  U.  _S.   585,   51  L.   Ed.  328. 

Although  no  question  of  jurisdiction  has 
been  separately  certified  or  specified,  yet 
if  the   writ   of  error  was   allowed  without 


restriction  or  qualification,  and  this  court 
has  acquired  appellate  jurisdiction  under 
that  clause  of  the  statute  giving  it  juris- 
diction by  direct  appeal  in  cases  in  which 
the  constitutionality  of  a  law  of  the 
United  States  was  drawn  in  question,  we 
have  power  to  dispose,  not  merely  of  the 
constitutional  question,  but  of  the  entire 
case,  including  ali  questions,  whether  of 
jurisdiction  or  of  merits.  Chappell  v. 
United  States,  160  U.  S.  499,  40  L.  Ed. 
510,  citing  Ekiu  v.  United  States.  142  U. 
S.  651,  35  L.  Ed.  1146;  Horner  v.  United 
States,  143  U.  S.  570,  577.  36  L.  Ed.  266; 
United  States  v.  Jahn.  155  U.  S.  109,  112, 
113,  39  L.  Ed.  87,  reaffirmed  in  Merritt  v. 
Bowdoin  College.  167  U.  S.  745,  42  L.  Ed. 
1209;  Press  Publishing  Co.  v.  Monroe, 
164   U.   S.    105.   Ill,   41    L.   Ed.    367. 

In  Holder  v.  Aultman,  169  U.  S.  81.  88, 
42  L.  Ed.  669,  discussing  the  act  of  March, 
1891.  Mr.  Justice  Gray  said:  "Upon  such 
a  writ  of  error,  differing  in  these  respects 
from  a  writ  of  error  to  the  highest  court 
of  a  state,  the  jurisdiction  of  this  court 
does  not  depend  upon  the  question 
whether  the  right  claimed  under  the  con- 
stitution of  the  United  States  has  been 
upheld  or  denied  in  the  court  below;  and 
the  jurisdiction  of  this  court  is  not  limited 
to  the  constitutional  question,  but  includes 
the  whole  case.  Whitten  v.  Tomlinson, 
160  U.  S.  231,  238,  40  L.  Ed.  406;  Penn., 
etc.,  Ins.  Co.  v.  Austin.  168  U.  S.  685,  42 
L.  Ed.  626."  Loeb  v.  Cohim.bia  Township 
Trustees,  179  U.  S.  472.  45  L.  Ed.  280. 
See.   also,   Chappell   v.   United   States,   160 


APPEAL  AND  ERROR. 


477 


authority  of  the  United  States  and  the  constitutionality  of  an  act  of  congress  are 
drawn  in  question  in  the  circuit  court,  this  court  having  acquired  jurisdiction  of 
the  cause  by  direct  appeal  from  the  circuit  court,  it  can  determine  any  question  of 
the  jurisdiction  of  the  circuit  court  appearing  upon  the  record,  whether  certified 
or  not.^<* 

ii.  Necessity  far  Finality  of  Decision. — In  General. — Soon  after  the  passage 
of  this  act,  it  was  settled  that  none  of  these  cases  mentioned  in  §  5  could  be  taken 
to  this  court  in  advance  of  the  final  judgment. ^-^  Nor  does  §  14  of  the  act  of 
March  3,  1891,  26  Stat.  826,  c.  517,  repealmg  §  691  of  the  Revised  Statutes  and  § 
3  of  the  act  of  February  16,  1875,  give  a  wider  scope  to  the  revisory  powers  of 
this  court,  and  make  a  final  judgment  unnecessary  to  the  exercise  of  these  powers 
in  the  cases  specified  in  the  fifth  section.  "If  it  was  the  purpose  of  the  act  to  re- 
peal tliat  part  of  those  sections  which  refers  to  final  judgments,  such  intention 
would  have  been  indicated  in  express  and  explicit  terms,  inasmuch  as  there  were, 
when  the  act  was  passed,  other  sections  and  other  statutes  containing  the  same 
limitation  of  appeals  to  final  judgments. "^^  The  only  provision  in  the  act,  au- 
thorizing appeals  from  interlocutory  orders  or  decrees  of  the  circuit  courts,  is 
in  §  7,  which  provides  that  where,  upon  a  hearing  in  equity,  "an  injunction  shall 
be  granted  or  continued  by  an  interlocutory  order  or  decree,  in  a  cause  in  which 
an  appeal  from  a  final  decree  may  be  taken  under  the  provisions  of  this  act  to  the 
circuit  court  of  appeals,  an  appeal  may  be  taken  from  such  interlocutory  order  or 
decree  granting  or  continuing  such  injunction  to  the  circuit  court  of  appeals;" 
"and  the  proceedings  in  other  respects  in  the  court  below  shall  not  be  stayed,  un- 
less otherwise  ordered  by  that  court,  during  the  pendency  of  such  appeal. "^^ 


U.  S.  499,  509,  40  L.  Ed.  510;  Horner  v. 
United  States,  143  U.  S.  570,  577,  36  L. 
Ed.  266;  Field  v.  Barber  Asphalt  Co.,  194 
U.  S.  618,  620,  48  L.  Ed.  1142.  reaflirmed 
in  Field  v.  Barber  Asphalt  Co.,  203  U. 
S.   585,    51    L.    Ed.    328. 

Privilege  of  representatives  from  arrest. 
— A  case  which  involves  the  construction 
or  application  of  §  6,  art.  1,  of  the  con- 
stitution of  the  United  States,  providing 
that  senators  and  representatives  shall, 
in  all  cases  except  treason,  felony  and 
breach  of  the  peace,  be  privileged  from 
arrest  during  their  attendance  at  the  ses- 
sions of  their  respective  houses  and  in 
going  to  and  returning  from  the  same. 
may  be  taken  to  this  court  directly  from  a 
district  court.  And  in  such  case  the  stat- 
ute grants  this  court  jurisdiction  to  issue 
the  writ  of  error  directly  to  the  district 
court,  and  then  to  decide  the  case  with- 
out being  restricted  to  the  constitutional 
question.  Burton  v.  United  States,  196 
U.  S.  283.  49  L.  Ed.  482,  citing  Horner  v. 
United  States.  143  U.  S.  570,  36  L.  Ed. 
266. 

83.  Robinson  z'.  Caldwell,  165  U.  S.  359, 
41  L.  Ed.  745,  citing  Chappell  v.  United 
States,  160  U.  S.  499,  40  L.  Ed.  510,  re- 
affirmed in  Daugherty  v.  Hood.  179  U. 
8.^680.  45   L.    Ed.   383. 

"Although  the  question  of  the  jurisdic- 
tion of  the  court  below  has  not  been  cer- 
tified to  us  in  the  manner  provided  by 
the  fifth  section  of  the  judiciary  act  of 
March  3,  1891,  yet,  as  the  case  is  before 
us,  in  a  case  in  which  the  law  of  a  state 
is  claimed  to  be  in  contravention  of  tlie 
constitution    of    the    United    States,    under 


another  clause  of  that  statute,  we  have 
jurisdiction  of  the  entire  case  and  of  all 
questions  involved  in  it.  Horner  v. 
United  States,  143  U.  S.  570,  36  L.  Ed. 
266;  Carey  v.  Houston,  etc..  R.  Co.,  150 
U.  S.  170,  181,  37  L.  Ed.  1041;  Chappell  v. 
United  States,  160  U.  S.  499,  40  L.  Ed. 
510."  Scott  V.  Donald,  165  U.  S.  58,  71,  41 
L.    Ed.    632. 

84.  Decision  must  be  final. — McLish  v. 
Roff,  141  U.  S.  661,  35  L.  Ed. 
893;  Wishkah  Boom  Co.  v.  United 
States,  202  U.  S.  613.  50  L.  Ed.  1171; 
Smith  V.  Iverson,  203  U.  S.  586,  51  L.  Ed. 
329;  International  Trust  Co.  v.  Weeks, 
193  U.  S.  667,  48  L.  Ed.  839;  Johnson  v. 
Thomas,  197  U.  S.  619.  49  L.  Ed.  909; 
Shoesmith  v.  Boot  &  Shoe  Mfg.  Co.,  198 
U.  S.  582,  49  L.  Ed.  1172;  Perea  v.  Perea 
de  Harrison,  195  U.  S.  623,  49  L.  Ed.  349; 
Reaves  v.  Oliver,  168  U.  S.  704.  42  L.  Ed. 
1212;  Hurlbut  Land,  etc.,  Co.  v.  Truscott, 
165  U.  S.  719,  41  L.  Ed.  1185;  Jeske  V. 
Cox.  171  U.  S.  685,  43  L.  Ed.  1179;  Farm- 
ers Bank  v.  Roselle,  172  U.  S.  641,  43  L. 
Ed.  1180;  Lubin  v.  Edison,  195  U.  S.  624, 
625.  49  L.  Ed.  349;  Wirgman  v.  Persons, 
196    U.    S.    636,    49    L.    Ed.    629. 

85.  McLish  v.  Rofif,  141  U.  S.  661,  667, 
35  L.  Ed.  893.  reaffirmed  in  Chicago,  etc., 
R.  Co.  V.  Roberts,  141  U.  S.  690.  35  L. 
Ed.  905;  American  Construction  Co.  v. 
Jacksonville,  etc.,  R.  Co..  143  U.  S.  372, 
37  L.  Ed.  486;  United  States  v.  Jahn,  155 
U.  S.  109,  114,  39  L.  Ed.  87;  Reaves  v. 
Oliver,    168   U.   S.   704.   42    L.    Ed.    1212. 

86.  American  Construction  Co.  z'.  Jack- 
sonville, etc..  R.  Co.,  148  U.  S.  372,  381,  3T 
L.   Ed.   486. 


478  APPEAL  AND  ERROR. 

Direct  Appeals.^ — It  has  accordingly  been  adjudged  that  a  writ  of  error  or 
appeal  to  this  court  under  §  5.  in  a  case  concerning  the  jurisdiction  of  the  circuit 
court,  does  not  lie  until  after  final  judgment,  and  cannot,  therefore,  be  taken  from 
an  order  of  the  circuit  court  remanding  a  case  to  a  state  court,  there  being,  as  said 
by  Mr.  Justice  Lamar,  speaking  for  this  court,  "no  provision  in  the  act,  which  can 
be  construed  into  so  radical  a  change  in  all  the  existing  statutes  and  settled  rules 
of  practice  and  procedure  of  federal  courts,  as  to  extend  the  jurisdiction  of  the 
supreme  court  to  the  review  of  jurisdictional  cases  in  advance  of  the  final  judg- 
ments  upon   them."^" 

(2)  Proceedings  by  the  Interstate  Commerce  Convniission. — A  direct  appeal  lies 
to  this  court  under  the  act  of  February  19,  1903,  §  3.  from  a  judgment  of  a  cir- 
cuit court,  in  a  proceeding  brought  by  the  interstate  commerce  commission,  by 
authority  of  the  attorney  general,  to  obtain  orders  requiring  the  taking  of  testi- 
mony of  witnesses  and  the  production  of  books  and  documents. ^^  It  was  the 
purpose  of  the  act  to  eliminate  an  appeal  to  the  circuit  court  of  appeals  and  per- 
mit the  litigation  to  be  shortened  by  direct  appeal  to  this  court.  Accordingly,  if 
the  appeal  in  the  first  instance  was  to  the  court  of  appeals  the  judgment  of  that 
court  would  not  be  final  under  the  act  of  March  3,  1891.  and  in  such  case  this 
court  would  still  be  required  to  consider  it  on  final  appeal.*^ 

3.  Over  Circuit  Court  of  Appeals — a.  In  General. — By  §  6,  the  appellate  ju- 
risdiction from  final  decisions  of  the  circuit  court,  in  all  cases  other  than  those 
provided  for  in  §  5,  is  conferred  upon  the  circuit  court  of  appeals,  "unless  other- 
wise provided  by  law ;"  and  its  judgments  or  decrees  "shall  be  final"  in  all  cases 
in  which  the  jurisdiction  depends  entirely  on  the  citizenship  of  the  parties,  as  well 
as  in  cases  arising  under  the  natent  laws,  the  revenue  laws,  or  the  criminal  laws, 
and  in  admiralty  cases. ^"  By  the  same  section,  however,  the  circuit  court  of  ap- 
peals, "in  any  such  subject  within  its  appellate  jurisdiction."  may.  at  any  time. 
certify  to  this  court  questions  or  propositions  of  law.  and  this  court  may  thereupon 
either  instruct  it  on  such  questions,  or  may  require  the  whole  case  to  be  sent  up 
for  decision ;  and  any  case  "made  final  in  the  circuit  court  of  appeals"  may  be 
required  by  this  court,  by  certiorari  or  otherwise,  to  be  certified  "for  its  review 
and  determination,  with  the  same  power  and  authority  in  the  case"  as  if  it  had 
been  brought  up  by  appeal  or  writ  of  error.^^  "In  all  cases  not  hereinbefore,  in 
this  section,  made  final,  there  shall  be  of  right  an  appeal  or  writ  of  error  or  re- 
view of  the  case  by  the  supreme  court  of  the  United  States  where  the  matter  in 
controversy  shall  exceed  one  thousand  dollars  besides  costs. "^^  fiig  jurisdiction 
of  this  court  to  review  the  decisions  of  the  circuit  court  of  appeals  depends  on  the 
statute  (circuit  court  of  appeals  act  of  March  3.  1891)  and  cannot  be  enlarged  by 
the  supposed  hardship  of  particular  cases. ^-^ 

b.  By  Appeal  or  Writ  of  Error — (1)  In  General. — The  last  clause  of  §  6  of 
the  judiciary  act  of  March  3.  1891,  refers  to  the  circuit  court  of  appeals  and  not 
to  the  circuit  court. '^"^  Therefore,  a  writ  of  error  from  this  court  to  the  circuit 
court,  does  not  reach  the  proceedings  in  the  circuit  court  of  appeals  refusing  to 

87.  MrLish  v.  Roflf,  141  U.  S.  661.  666.  91.  .American  Construction  Co.  z.-.  Jack- 
.35  L.  Ed.  803;  Chicasjo.  etc..  Railway  v.  sonville.  etc..  R.  Co.,  148  U.  S.  372,  381, 
Roberts.    141    U.    S.    690.    35    L.    Ed.    905;       37   L.   Ed.   486. 

American    Construction    Co.    v.     Jackson-  92.    26   Stat.   826,  828,  §  6,   ch.  517;   Col- 

Ville,  etc.,  R.  Co.,  148  U.  S.  372,  382.  37  L-  orado.   etc..    Mining    Co.   v.   Turck,    150   U. 

Ed.   486.  S.  138.  141.  37  L.  Ed.  1030;  American  Con- 

88.  Interstate  Commerce  Commission  struction  Co.  v.  Jacksonville,  etc..  R.  Co.. 
V.  Raird.  194  U.  S.  25,  48  L.  Ed.  860._  143   U.    S.   372.   381.   37   L.    Ed.   486. 

89.  Interstate    Commerce    Coinmission  _„     tt        1        »yrr       r<  r^   1  *.„      r*^*- 
r)   •  ^    in^   TT    c    oc     ^o   T      -c-A    o^r.                    93.     Hugtiley  Mfg-.   Co.   v.    Galeton   Cot- 

V.   Baird.  194   U.   S.  25,   48   L.    Ed.   860.  ,         ,,•,,  '^  .„r^  j-,    %     „„„     ,„    -r      j^,     ^.^ 

ni\      \          ■           r>        *-        *•         /"«            T      1  ton    Alills,    184    U.    S.    290,    46    L.    Ed.    546. 

90.  .American   Construction   Co.  z'.  Jack-  rr          i    •      tt     j-              tt     ^    io^   tt    c 
;ii         4-^      r>     r>^      i^o   tt     o     o-fo     ooi  reaffirmed    in    Harding  v.    Hart,   187    U.   o. 

sonville.   etc.,    R.    Co.,    148    U.    b.   37?.    381,        „„„     ..,   j      j^,     „..      '^ 

^7    L.    Ed.    486;    Lau    Ow    Bew   v.    United  ''■^^'   *'    ^-    ^"^^  '^^*-  ^,    ^ 

States,    144    U.    S.    47,    57,    36    L.    Ed.    340;  94.    L'^tcber  v.  United   States,  157  U.  b. 

Northern    Pac.    R.    7-.    Amato,    144    U.    S.  ^27,  39  L.   Ed.   759;   Webster  v.  Daly,  163 

165.    472,    36    L.    Ed.    506.  ^-   S.   155,  41   L.    Ed.    111. 


APPEAL  AXD  ERROR.  47J 

allow  the  cause  to  be  docketed  and  the  record  to  be  filed  therein  on  the  ground 
that  the  cause  should  be  taken  to  this  court  and  not  to  that  court. 

{2)  Junsdiciion  as  Dependent  on  Amount  in  Controversy. — In  General. — 
In  all  cases  in  which  the  judgments  of  a  circuit  court  of  appeals'  are  not  made  final 
by  the  act  of  March  3,  1891,  c.  517,  there  is  of  right  an  appeal,  or  writ  of  error, 
to  this  court,  where  the  matter  in  controversy  exceeds  one  thousand  dollars  in 
value  besides  costs. ^^ 

Must  Be  Susceptible  of  Pecuniary  Estimation.— The  matter  in  dispute 
must  be  susceptible  of  an  estimate  in  money  before  an  appeal  or  writ  of  error  will 
lie  to  this  court  from  the  circuit  court  of  appeals. '•*«  '1  he  matter  in  controversy 
must  have  actual  value,  and  that  cannot  be  supplied  by  speculation  on  the  pos- 
sibility that  if  a  discharge  were  refused,  something  might  be  made  out  of  the 
bankrupt.^'' 

As  a  case  of  habeas  corpus  is  not  one  in  which  the  matter  in  controversy 
involves  a  money  value,  therefore  no  appeal  lies  from  the  circuit  court  of  appeals 
under  this  act.^*' 

Discharge  of  Bankrupt. — This  court  has  no  jurisdiction  to  review  a  refusal 
of  the  circuit  court  of  appeals  to  revise  the  decree  of  the  circuit  court  discharging 
a  bankrupt,  even  though  the  question,  whether  the  bankrupt  was  entitled  to  a  cer- 
tificate of  discharge,  is  in  controversy,  where  there  was  no  evidence  whatever  in 
the  record  tending  to  show  that  the  value  of  the  certificate  was  susceptible  of  an 
estimate  in  money. ^^ 

Aggregate  Amount  of  Demand.— Although  there  is  in  form  a  separate  judg- 
ment in  favor  of  each  of  the  persons  for  whose  benefit  an  action  is  brought  un- 
der the  Texas  statute,  providing  for  an  action  for  wrongful  death,  which 
shall  be  for  the  exclusive  benefit  of  the  surviving  husband,  wife, 
children  and  parents,  and  authorizing  the  action  to  be  brought  by  all  the  parties 
interested,  or  by  any  one  or  more  of  them  for  the  benefit  of  all,  and  requiring  the 
jury  to  divide  the  amount  recovered  among  the  persons  entitled  to  the  benefit 
of  the  action,  the  Texas  statute  creates  a  single  liability  on  the  part  of  the  defend- 
ant, and  contemplates  but  one  action  for  the  sole  and  exclusive  benefit  of  the  sur- 
viving husband,  wife,  children  and  parents,  of  the  person  whose  death  was  caused 
in  any  of  the  specified  modes.  Accordingly  the  matter  in  controversy  within  the 
meaning  of  the  6th  section  of  the  act  of  March  3,  1891.  c.  517,  which  declares 
that  in  all  cases  not  by  that  section  made  final  "there  shall  be  of  right  an  appeal 
or  writ  of  error  or  review  of  the  case  by  the  supreme  court  of  the  United  States 
where  the  matter  in  controversy  shall  exceed  one  thousand  dollars  besides  costs," 
is  the  liability  of  the  defendant  company  in  that  amount  by  reason  of  the  single  in- 
jury complained  of.  If  the  defendant  was  liable  in  that  sum,  and  such  liability 
is  fixed  upon  it  by  the  verdict  and  final  judgment  thereon,  it  is  of  no  concern  to 
it  how  that  amount  was  divided  among  the  parties  entitled  to  sue  on  account  of 
the  single  injury  alleged  to  have  been  committed.^ 

Showing  as  to  Amount. — The  bill  need  not  state,  in  so  many  words,  that  a 
certain   amount  exceeding  one   thousand   dollars  is  in  controversv  in  order  that 

95.  Howard  z\  United  States,  184  U.  r.  Seymour.  153  U.  S.  353,  358  38  L  Ed 
S.    676.    680.    46    L.    Ed.    754;    Whitney    v.       742. 

Dick.  202  U.   S.   132.   135.   50   L.   Ed.  963.  i.    Texas,  etc..  R.  Co.  v.   Gentry.   163  U. 

96.  Huntington  v.  Saunders,  163  U.  S.  S.  353,  41  L.  Ed.  186,  citino-  Shield^;  v 
310.   41    L.    Ed.    174.  Thomas,    17    How.    3,    15    L.    Ed.    93;    Ex 

97.  Durham  v.  Seymour.  161  U.  S.  235,  parte  Baltimore,  etc..  R  Co  106  \]  S 
40  L.  Ed.  682:  Hrntington  v.  Saunders.  5.  27  L-  Ed.  78;  Market  Co.  v.  Hoffman' 
163  U.  S.  319,  321,  41   L.  Ed.  174.  101    U.   S.   112.   "5   L.   Ed.   782;  The  Conne- 

98.  Lau  Ow  Bew  i\  United  States.  144  mara,  103  U.  S.  754.  26  L.  Ed.  322;  Estes 
r.  S.  47.  36  L.  Ed.  340:  Whitnev  v.  Dick,  t.  Gunter.  121  U  S  183,  30  L  Ed  884- 
202  U.  S.  132.  135.  50  L.  Ed.  036;  Kurtz  Gibs'Mi  v.  Shufeldt.  122  U.  S  27  30  h 
f.  Moffitt.   115   U.   S.   487.  Fd.  1083;  Clay  z'.  Field.  138    U.     S.  464.  34  L. 

99.  Huntington  v.  Saunders.  1G3  U.  S.  Fd.  10S3;  New  Orleans  Pa'-.  R.  Co.  v. 
319.  41    L.   Ed.    174,   citing   South   Carolina  Parlrcr.    143   U.   S.   42.   36    L.    Ed.   66. 


480 


APPEAL  AND  BAROR. 


this  court  may  have  jurisdiction  on  appeal.  The  statutory  amount  must  as  a 
matter  of  fact  be  in  controversy,  yet  that  fact  may  appear  by  affidavit  after  the 
appeal  is  taken  to  this  court.^  Or  it  may  be  made  to  appear  in  such  other  manner 
as  shall  establish  it  to  the  satisfaction  of  the  court.^  A  stipulation  between  the 
parties  as  to  the  amount  is  not  controlling,  but  in  the  discretion  of  the  court  it  may 
be  regarded  in  a  particular  case,  and  with  reference  to  the  other  facts  appearing 
in  the  record  as  sufficient  proof  of  the  amount  in  controversy  to  sustain  the  juris- 
diction of  this  courts 

(3)  Jurisdiction  as<  Dependent  on  Pinality  of  Decisiwi.— In  General. — That 
provision  of  the  sixth  section  of  the  act  of  March  3,  1891,  c.  517,  26  Stat.  826, 
providing  that  in  all  cases  not  made  final  in  the  circuit  court  of  appeals,  there  shall 
be  of  right,  within  one  year,  an  appeal  or  writ  of  error  or  review  of  the  case  by 
this  court,  where  the  matter  in  controversy  exceeds  $1,000  exclusive  of  costs,  ap- 
plies only  to  final  judgments,  orders  or  decrees.-''  There  is  no  provision  in  the  act 
of  March  3,  1891,  or  any  other  act,  except  in  section  seven,  which  is  treated  else- 
where in  this  title,  authorizing  an  appeal  to  this  court  from  interlocutory  orders 
or  decrees.^ 

A  decree  of  affirmance,  without  specifying  the  sum  for  which  it  is  rendered, 
is  a  final  decree  for  the  purpose  of  a  writ  of  error  to  the  circuit  court  of  appeals, 
because  it  terminates  the  litigation  between  the  pariies."  But  this  court  has  no 
jurisdiction  to  review  a  judgment  of  the  circuit  court  of  appeals  affirming  an  inter- 
locutory order  of  the  circuit  court  for  the  issue  of  a  temporary  injunction,  because 
such  order  is  not  final. ^ 


2.  Whiteside  v.  Haselton,  110  U.  S. 
296,  28  L.  Ed.  152;  Red  River  Cattle  Co. 
V.  Needham,  137  U.  S.  632,  34  L.  Ed.  799; 
United  States  zk  Freight  Ass'n,  166  U.  S. 
290,   310,  41   L.   Ed.  1007. 

3.  United  States  v.  Freight  Ass'n,  166 
U.   S.  290,  310,  41   L.   Ed.   1007. 

4.  United  States  v.  Freight  Ass'n.  166 
U.    S.   290,   310,    41    L.    Ed.    1007. 

A  suit  is  brought  for  the  dissokition  of 
an  association  of  railroad  companies,  and 
to  enjoin  them  from  further  competing 
together  to  control  rates,  etc.  The  bill 
shows  an  agreement  entered  into  for  the 
purpose  of  maintaining  reasonable  rates 
to  be  received  by  each  company  execut- 
ing the  agreement,  and  the  stipulation  en- 
tered into  between  the  parties  hereto 
shows  that  the  daily  freight  charges  on 
interstate  shipments  collected  by  the  rail- 
way companies  at  points  where  they  com- 
pete with  each  other  were,  at  the  time  of 
the  making  of  the  agreement  mentioned 
in  the  pleadings  herein  and  have  been 
since,  more  than  one  thousand  dollars. 
This  agreement  so  made,  the  government 
alleges,  is  illegal  as  being  in  restraint 
of  trade,  and  was  entered  into  between 
the  companies  for  the  purpose  of  enhanc- 
ing the  freight  rates.  The  companies, 
while  denying  the  illegality  of  the  agree- 
ment or  its  purpose  to  be  other  than  to 
maintain  reasonable  rates,  yet  allege  that 
without  some  such  agreement  the  com- 
petition between  them  for  traffic  would 
be  so  severe  as  to  cause  great  losses  to 
each  defendant  and  possibly  ruin  the  com- 
panies represented  in  the  agreement. 
Such  a  result,  it  is  claimed,  is  avoided  by 
reason  of  the  agreement.  Upon  the  ex- 
istence, therefore,  of  this  or  some  similar 


agreement  directly  depends  (as  is  alleged) 
the  prosperity,  if  not  the  life,  of  each  com- 
pany. It  must  follow  that  an  amount 
much  more  than  a  thousand  dollars  is  in- 
volved in  the  maintenance  of  the  agree- 
ment or  in  the  right  to  maintain  it  or 
something  like  it.  These  facts,  appearing 
in  the  record  and  the  stipulation,  show 
that  the  right  involved  is  a  right  which 
is  of  the  requisite  pecuniary  value.  A 
reduction  of  the  rates  by  only  the  frac- 
tional part  of  one  per  centum  would,  in 
the  aggregate,  amount  to  over  a  thousand 
dollars  in  a  very  few  days.  This  is  suffi- 
cient to  give  the  court  jurisdiction  on  ap- 
peal. South  Carolina  7'.  Seymour.  1."'3 
TT.  S.  353,  357.  38  L.  Ed.  742;  United 
States  V.  Freight  .A.ss'n.  166  U.  S.  290,  310, 
311.  41    L.  Ed.   1007. 

5.  Kirwan  v.  Murphy,  170  U.  S.  205,  42 
L.  Ed.  1009,  citing  Young  ?'.  Grundy,  6 
Cranch  51,  3  L.  Ed.  149;  Keystone  Iron 
Co.  z:  Martin.  132  U.  S.  91,  33  L.  Ed.  275; 
McLish  V.  Rofif,  141  U.  S.  661,  35  L.  Ed. 
893;  American  Construction  Co.  v.  Jack- 
sonville, etc..  R.  Co..  148  U.  S.  372,  37  L. 
Fd.  486.  reaffirmed  in  International  Trrst 
Co.  7'.  Weeks,  193  U.  S.  667,  48  L.  Ed. 
839;  Southern  R.  Co.  v.  Postal  Tel.  Cable 
Co.,  179  U.  S.  641,  45  L.  Ed.  355. 

6.  In  re  Tampa  Suburban  R.  Co.,  168 
U.  S.  583.  42  L.  Ed.  589;  Kirwan  v.  Mur- 
phv,  170  U.  S.  205,  210,  42  L.  Ed.  1009,  re- 
affirmed in  International  Trust  Co.  v. 
W>ek  =  .   193  U.   S.  667,  48  L.   Ed.  839. 

7.  Texas,  etc..  R.  Co.  v.  Gentry.  163  U. 
S.  353.   41  L.   Ed.   186. 

8.  Kirwan  v.  Murphy.  170  U.  S.  205,  43 
L.  Ed.  1009.  reaffirmed  in  Internati'^nal 
Trust  Co.  7'.  Weeks,  193  U.  S.  667,  48  L. 
Ed.    839,    distinguishing    Smith    v.    Vulcan 


APPEAL  AND  ERROR. 


481 


Reversal  and  Remand. — It  has  been  held,  that  a  decree  of  the  circuit  court 
of  appeals,  reversing  the  judgment  of  the  trial  court  and  remanding  the  cause  for 
further  proceedings  in  accordance  with  the  views  expressed  in  its  opinion,  is  not 
a  final  judgment  reviewable  by  this  court. ^ 

Remand  to  State  Court. — Nor  is  an  order  of  a  court  of  appeals  directing  a 
circuit  court  to  remand  a  case  to  a  state  court. ^"^ 

Nor  is  an  order  made  in  condemnation  proceedings,  appointing  commis- 
sioners to  assess  damages. ^^ 

On  the  other  hand,  wh-ere  the  circuit  court  of  appeals  reversed  a  decree  of 
the  circuit  court  with  specific  direction  to  enter  a  decree  in  accordance  with  the 
mandate,  for  the  purpose  of  an  appeal  to  the  supreme  court,  the  decree  of  the 
circuit  court  of  appeals  is  final. ^^ 

(4)  Decisions  Rezncwablc — aa.  In  General. — No  appeal  lies  to  this  court 
from  the  circuit  court  of  appeals  in  those  cases  in  which  the  judgments  or  decrees 
of  the  circuit  court  of  appeals  are  made  final  by  statute.^-" 

Determination  of  Finality  of  Decision  of  Court  of  Appeals. — But  this 
court  has  jurisdiction  to  pass  upon  the  jurisdiction  of  the  circuit  court  of  appeals 
when  involving  the  question  of  the  finality  of  its  judgment  under  §  6  of  the  cir- 
cuit court  of  appeals  act.^"*  For  example,  this  court  has  jurisdiction  to  review  on 
a  M-rit  of  error  the  judgment  of  the  circuit  court  of  appeals  refusing  jurisdiction 


Iron  Works,  16.5  U.  S.  518,  41  L.  Ed.  810, 
on  the  ground  that  here  the  court  of  ap- 
peals did  not  finally  determine  the  case 
by  its  judgment,  and  whether  the  tem- 
porary injunctions  should  be  made  perma- 
nent or  not  was  left  to  the  circuit  court 
to  decide  when  the  final  decree  was  en- 
tered. • 

9.  United  States  i:  Krall.  174  U.  S.  385, 
43  L.  Ed.  1017.  reaffirmed  in  Wishkah 
Boom  Co.  V.  United  States.  202  U.  S.  613. 
50  L.  Ed.  1171. 

A  circuit  court  of  the  United  States  sus- 
tained a  demurrer  to  a  bill  for  specific 
performance  for  the  reason  that  there  was 
an  adequate  remedy  at  law  and  dismissed 
the  bill.  This  decree  was  reversed  by  the 
circuit  court  of  appeals,  and  the  bill  was 
ordered  to  be  dismissed  for  want  of  equity 
without  prejudice  to  an  action  at  law. 
There  was  a  motion  to  dismiss  the  appeal 
to  the  supreme  court  of  the  United  States 
on  the  ground  that  the  decree  was  not 
final  in  form.  It  was  held,  that  the  decree 
of  the  circuit  court  of  app-eals  is  final  and 
can  be  reviewed  under  the  act  of  March 
3.  1891,  and  the  motion  must  be  over- 
ruled. Beasley  v.  Texas,  etc.,  R.  Co..  191 
U.  S.  492,  48  L.  Ed.  274,  citing  and  ap- 
proving Merrill  v.  National  Bank,  173  U. 
S.  131,  43  L.  Ed.  640.  See  Western  Tele- 
graph Co.  v.  Burnham,  162  U.  S.  339,  342, 
40   L.    Ed.    991. 

10.  Morey  v.  Lockhart,  123  U.  S.  56,  31 
L.  Ed.  68;  Sherman  v.  Grinnell.  123  U.  S. 
679,  31  L.  Ed.  278;  Gurnee  v.  Patrick 
County,  137  U.  S.  141,  34  L.  Ed.  601; 
In  re  Pennsylvania  Co.,  137  U.  S.  451,  34 
L.  Ed.  738;  Railroad  Co.  v.  Wiswall,  23 
Wall.  507,  22  L.  Ed.  103;  Richmond,  etc., 
R.  Co.  V.  Thouron,  134  U.  S.  45,  33  L.  Ed. 
871;  Missouri  Pac.  R.  v.  Fitzgerald,  160 
U.  S.  556,  580,  40  L.  Ed.  536;  German  Nat. 

1  U  S  Enc-3l 


Bank  v.  Speckert,  181  U.  S.  405,  45  L.  Ed. 
926,  reaffirmed  in  Cole  v.  Garland.  183 
U.   S.    693.   46   L.    Ed.   393. 

An  order  of  remand  to  a  state  court  by 
a  United  States  circuit  court  of  appeals 
of  its  own  motion,  is  not  subject  to  re- 
view by  the  supreme  court  of  the  United 
States,  in  any  manner  either  by  appeal  from 
that  court,  or  by  mandamus  to  that  court, 
or  by  writ  of  error  to  the  stat-e  court. 
Gf^rman  Nat.  Bank  v.  Speckert,  181  U.  S. 
405,  45  L.  Ed.  926.  reafiirmed  in  Cole  v. 
Garland,   183   U.   S.   693,   46    L.   Ed.   393. 

11.  Southern  R.  Co.  v.  Postal  Tel. 
Cable  Co.,  179  U.  S.  641,  45  L.  Ed. 
355,  following  Luxton  7'.  North  River 
Bridge  Co.,  147  U.  S.  33'  37  L.  Ed.  194, 
and  distinguishing  Wheeling,  etc..  Bridge 
Co.  V.  Wheeling  Bridge  Co..  138  U.  S. 
287.   34   L.   Ed.  967. 

12.  Merrill  v.  National  Bank.  173 
U.    S.    131,    134,      43    L.    Ed.    640. 

13.  Anglo-Californian  Bank  v.  United 
States,  175  U.  S.  37.  44  L.  Ed.  64.  See 
post,  "Under  Circuit  Court  of  Appeals 
Act,"   III,   E. 

14.  Aztec  Mining  Co.  v.  Ripley,  151  U. 
S.  79,  38  L.  Ed.  80;  Southern  R.  Co.  v. 
Postal  Tel.  Cable  Co.,  179  U.  S.  641,  45 
L.    Ed.    355. 

In  Aztec  Mining  Co.  v.  Ripley,  151  U. 
S.  79,  38  L.  Ed.  80,  it  was  held,  that  this 
court  had  jurisdiction  by  appeal  or  writ 
of  error  to  pass  upon  the  jurisdiction  of 
the  circuit  courts  of  appeals  in  cases  in- 
volving the  question  whether  their  judg- 
ments were  made  final  by  §  6  of  the  act 
of  March  3.  1891,  ch.  517,  36  Stat.  836. 
Kuigman  v.  Western  Mfg.  Co..  170  U.  S. 
675,  677.  42  L.  Ed.  1192,  reaffirmed  m 
International  Trust  Co.  v.  Weeks,  193  U. 
S.    607,   48    L.    Ed.   839. 


4S2  APtEAL  AND  ERROR. 

of  an  appeal  from  a  territorial  supreme  court,  on  the  ground  that  the  case  is  not 
of  the  kind  made  final  in  the  circuit  court  of  appeals. ^^ 

bb.  Cases  in  Which  United  States  Is  a  Party. — The  appellate  jurisdiction  of 
this  court  over  controversies  to  which  the  United  States  are  parties  has  not  been  cir- 
cumscribed by  congress  in  respect  to  the  right  of  appeal. ^^  Judgments  or  decrees 
in  cases  in  which  the  ground  of  jurisdiction  of  the  circuit  court  is  that  the  United 
States  are  plaintiffs  or  petitioners  are  not  made  final  in  terms,  and  such  cases  would 
fall  within  the  last  paragraph,  unless  restricted  by  the  previous  enumeration.^'^ 

Suit  by  United  States  to  Cancel  Patents. — That  part  of  the  6th  section  of 
the  circuit  court  of  appeals  act  which  provides  that  "cases  arising  under  the  pat- 
ent laws,"  shall  be  final  in  the  circuit  court  of  appeals,  cannot  be  construed  as 
narrowing  the  appellate  jurisdiction  of  this  court  in  a  suit  brought  by  the  United 
States  as  a  sovereign  in  respect  of  alleged  miscarriage  in  the  exercise  of  one  of 
its  functions  as  such ;  deeply  concerning  the  public  interests ;  and  not  falling  within 
the  reason  of  the  limitations  of  the  act.^^  Accordingly,  this  court  still  has  appellate 
jurisdiction  over  a  judgment  rendered  by  the  circuit  court  of  appeals  of  the  United 
States  in  a  suit  brought  by  the  United  States  to  cancel  a  patent  for  an  invention. ^^ 

cc.  Bankruptcy  Dccisions.^'^ — This  court  has  jurisdiction  to  review  a  deci- 
sion of  the  circuit  court  of  appeals  dismissing  an  appeal  by  a  creditor  from  a 
decision  of  a  circuit  court  dismissing  a  petition  filed  by  one  objecting  to  the 
discl'.arge  of  a  bankrupt. ^i 

dd.  Cases  Arising  under  the  Revenue  Lazvs. — That  interpretation  of  the  act  of 
1891  will  be  adopted  which  enables  the  defeated  party  in  a  case  carried  to  the 
circuit  court  of  appeals,  which,  although  arising  under  the  revenue  laws,  and  in- 
volving a  construction  of  those  laws,  depends  for  a  full  determination  of  the 
rights  of  the  parties  upon  the  construction  or  application  of  the  constitution,  or 
upon  the  constitutionality  of  an  act  of  congress  to  have,  as  of  right,  upon  writ  of 
error  to  that  court,  a  re-examination  in  tht  supreme  court  of  the  judgment,  the 
requisite  amount  being  involved. 22  The  meaning  of  the  words  "arising  *  *  * 
under  the  revenue  laws,"  fn  the  sixth  section,  is  satisfied  if  they  are  held  as  embrac- 
ing a  case  strictly  arising  under  laws  providing  for  internal  revenues  and  which 
does  not,  by  reason  of  any  question  in  it,  belong  also  to  the  class  mentioned  in 
the  fifth  section  of  that  act.  The  words  quoted  do  not  necessarily  embrace  a 
case  carried  to  the  circuit  court  of  appeals,  which,  although  arising  under  the 
revenue  laws,  and  involving  a  construction  of  those  laws,  depends  for  a  full  deter- 
mination of  the  rights  of  the  parties  upon  the  construction  or  application  of  the 
constitution,  or  upon  the  constitutionality  of  an  act  of  congress. ^^  The  judgment 
of  the  circuit  court  of  appeals  is  not  final,  within  the  meaning  of  the  sixth  section 
of  the  act  of  1891,  in  a  case  which,  although  arising  under  a  law  providing  for 
internal  revenue  and  involving  the  construction  of  that  law,  is  yet  a  case  also  in- 
volving, from  the  outset,  from  the  plaintiff's  showing,  the  construction  or  appli- 
cation of  the  constitution  or  the  constitutionaHty  of  an  act  of  congress. ^^ 

ee.  Cases  Dependent  upon  Citizenship  of  Parties. — Under  §  6  of  the  circuit  court 
of  appeals  act,  which  provides  that  judgments  or  decrees  of  the  circuit  court  of 

15.  Aztec  Mining  Co.  v.  Ripley,  151  U.  suit  brought  by  the  United  States  as  a 
S.   79.   38   L.   Ed.  80.  sovereip:n    in    respect    of    alleged    miscar- 

16.  United  States  v.  American  Bell  Tel.  riage  in  the  exercise  of  one  of  its  functions 
Co..  159  U.  S.   548,  550,  40  L.   Ed.  255.  as  such;   deeply  concerning  the  public  in- 

17.  United  States  v.  American  Bell  Tel.  terests;  and  not  falling  within  the  reason 
Co..  159  U.  S.  548.  552,  40  L.   Ed.  255.  of  the  limitations  of  the  act." 

18.  United  States  v.  American  Bell  Tel.  5>0.   S^^e   the   title   BANKRUPTCY. 
Co.,       159       U.       S.      548.      40      L.      Ed.  21.    Huntington    v.    Sanders,    163    U.    S. 
?55;     Arp-lo-Californian    Bank    v.    United  31".  41   L.   Ed.  174. 

States.  175  U.  S.  37,  3D.  44  L.  Ed.  64.  22.   Spreckels   Sugar   Refining   Co.  7'.  Mc- 

19.  ITn'ted  States  v.  American   Bell  Tel.  Clnin.   192  U.   S.   397,  408.  48  L.  Ed.  496. 
Co..  159  U.  S.  548,  40  L.  Ed.  255.   In  this  case,  23.   Spreckels   Sugar   Refining  Co.  z^.  Mc- 
the    court    said:     "We    cannot    impute    to  Clain.  192  U.  S.  397,  408.  48  L.  Ed.  496. 
conp-ress   the    intention    of   narrowing   the           24.  Spre^'-els  Sugar  Refining  Co.  v.  Mc- 
appellate   jurisdiction    of    this    court    in    a  lain,  192  U.  S.  397,  410,  48  L.  Ed.  496. 


APPEAL  AND  ERROR. 


483 


appeals  shall  be  final  in  all  cases  in  which  the  jurisdiction  is  dependent  entirely 
upon  the  opposite  parties  to  the  suit  or  controversy  being  aliens  and  citizens  of 
the  United  States  or  citizens  of  the  different  state,  in  order  to  maintain  a  writ  of 
errw-  from  the  decision  of  the  circuit  court  of  appeals  to  this  court,  k  must  ap- 
pear that  the  jitdgment  of  the  circuit  court  is  not  dependent  entirely  upon  the  op- 
posite parties  being  citizens  of  the*  different  states.^s  When  the  jurisdiction  of  "a 
circuit  court  is  invoked  solely  on  the  ground  of  diverse  citizenship,  the  judgmenr 
of  the  circuit  court  of  appeals  is  final,  although  another  ground  for  jurisdiction 
in  tlie  circuit  court  may  be  developed  in  the  course  of  subsequent  proceedings  in 
the  case.^^ 

Where  Jurisdiction  Rests  on  Independent  Grounds. — But  if  the  plaintiff, 
by  proper  pleading,  places  the  jurisdiction  of  the  circuit  court  on  diverse  citizen- 
ship, and  also  on  grounds  independent  of  tiiat,  and  the  case  is  taken  to  the  cour; 
of  appeals,  propositions  as  to  the  latter  grounds  may  be  certified,  or,  if  that  course 
is  not  pursued  and  the  case  goes  to  judgment  (and  the  power  to  certify  assumes 
the  power  to  decide),  an  appeal  or  writ  of  error  would  lie  under  the  last  clause 
of  §  6,  because  the  jurisdiction  would  not  depend  solely  on  diverse  citizenship.-" 

Where  One  of  the  Parties  Is  a  Foreig-n  State. — As  the  decree  of  a  circuit 
court  of    appeals    in    a    controversy    between    a    citizen    of   a    state    and    a    for- 


25.  Colorado,  etc.,  Min.  Co.  v.  Turck, 
150  U.  S.  138.  rr  L.  Ed.  ICSO;  Bankers' 
Ca.stialty  Co.  v.  Minneapolis,  etc.,  R.  Co., 
193  U.  S.  371,  380.  48  L.  Ed.  484;  Florida, 
etc.,  R.  Co.  V.  Bell.  ]76  U.  S.  321,  44  L.  Ed. 
486,  citing  Press  Pub.  Co.  v.  Monroe.  164 
U.  S.  10.5,  41   L.   Ed.   367. 

".\t  the  last  term  of  this  court  motion 
was  made  to  dismiss  the  writ  of  error 
Upon  the  ground  that  under  §  6  of  the 
act  of  congress  of  March  3,  1891,  estab- 
lishing the  circuit  courts  of  appeals,  the 
judgment  of  the  cowrt  of  appeals  affirm- 
ing the  judgment  of  the  circuit  court  was 
final.  By  this  section  the  judgments  or 
decrees  of  the  circuit  courts  of  appeals 
shall  be  final  in  all  cases  in  which  the  ju- 
risdiction depends  entirely  upon  the  op- 
posite parties  to  the  suit  being  aliens  and 
citizens  of  the  United  States,  or  citizens 
of  different  states.  In  this  case,  the  plain- 
tifif,  Sonnentheil,  was  a  citizen  of  the 
state  of  Texas;  the  defendant  Brewing 
Company  was  a  corporation  created  by 
the  laws  of  Ohio,  and  a  citizen  of  that 
state,  and  Dickerson,  a  citizen  of  the 
state  of  Texas;  but  it  also  appears  upon 
the  face  of  the  original  petition  that  Dick- 
erson was  marst^al  of  the  United  States 
for  the  eastern  district  of  Texas,  and  that 
he  mpf'e  the  sei7vre  of  the  goods  in  ques- 
tion through  his  deputy.  John  H.  Whalen, 
and  under  a  writ  of  attachment  sued  out 
by  the  Brewing  Company  against  Frie- 
berg,  Klein  &  Co.,  as  defendants.  It  thus 
apnears  that  the  jurisdiction  of  the  cir- 
cuit court  did  not  depend  entirely  upon 
diversity  of  citizenship  between  the  plain- 
tiff and  the  Brewing  Company,  but  upon 
the  fact  that  one  of  the  defendants  was 
mprshal  of  the  United  States,  and  was 
acting  in  that  capacity  when  he  seized 
the  goods  in  question."  Sonnentheil  v. 
Moerlein  Brewing  Co.,  172  U.  S.  401.  404, 
43  L.   Kd.  492. 

26.  Borgmeyer   v.    Idler,    159   U.    S.   408, 


413,  40  L.  Ed.  199,  following  Colorado, 
etc..  Mining  Co.  v.  Turck,  150  U.  S.  13  .. 
37  L.  Ed.  1030;  Spencer  v.  Duplan  Silk 
Co.,   191   U.    S.    526,   48    L.   Ed.   287. 

27.  UtiioH  Pac.  R.  Co.  v.  Harris.  15S 
U.  S.  336,  39  L.  Ed.  1003;  American  Sugar 
Ref.  Co.  V.  New  Orleans.  181  U.  S.  277,  281. 
2S2.  45  L.  Ed.  859.  But  see  Ayres  v.  Pols- 
dorfer,   187  U.   S.    5«5,   589,   47   L.    Ed.   314. 

"Motion  was  made  to  dismiss  this  ap- 
peal for  the  reason  that,  as  the  j-urisdk- 
tion  of  the  circuit  court  was  invoked 
upon  the  ground  of  diverse  citizenship, 
the  decree  of  the  circuit  court  of  appeals 
is  final,  under  §  6  of  the  cotwt  of  appe^s 
act  of  1891,  as  interpreted  by  the  deci- 
sions of  this  court  in  Colorado,  etc, 
Mining  Co.  v.  Turck,  150  U.  S.  1.^,  27 
L.  Ed.  103O;  Borgmeyer  v.  Idler,  159  U. 
S.  408,  40  L.  Ed.  199,  and  Press  Pub.  C^. 
?■.  Monroe,  164  U.  S.  105,  41  L.  Ed.  .167, 
but,  to  impress  the  attribute  of  fina-lrty 
upon  a  judgment  of  the  circuit  court  erf 
appeals,  it  must  appear  t-feat  the  original 
jurisdiction  of  the  circuit  court  was  de- 
pendent 'entirely'  upon  diverse  citizen- 
ship." Northern  Pac.  R.  v.  Soderberg, 
188  U.   S.  526,   528,   47  L.   Ed.  575. 

The  jurisdiction  of  the  circuit  court 
rested  on  diverse  citizenship.  One  of  tlie 
defenses^  interpised  asserted  exemption 
from  a  license  tax  soug^ht  to  be  enforced, 
and  another  d-enied  the  constitutionality 
of  the  legislation  by  which  the  ta.x  was 
imposed.  Both  defenses  were  overniJrd 
and  judgment  rendered  for  the  plaintiff. 
The  case  was  then  carried  on  error  to  the 
circuit  court  of  appeals,  which  gave  judg- 
ment dismissing  the  writ  of  error  for 
want  of  juri '■diction.  It  was  held,  that 
in  th's  the  circuit  court  of  appeals  erred, 
and  that  a  certiorari  should  issue  that  its 
jrdement  to  that  effect  may  be  reversed. 
/\.-,-,pric^n  Sugar  Ref.  Co.  z'.  New  Orleans, 
181  U.  S.  377,  45  L.  Ed..  859. 


48  f 


APPEAL  AND  BRROR. 


eign  state  is  not  made  final  by  §  6  of  the  act  of  March  3,  1891,  ch.  517,  26  Stat. 
826,  828,  an  appeal  lies  to  the  supreme  court  of  the  United  States. ^s 

Where  Parties  Claim  under  Grants  from  Different  States. — A  decision 
of  the  circuit  court  of  appeals  in  an  action  between  citizens  of  different  states 
daitnkig  land  under  grants  from  different  states  is  final,  and  is  not  subject  to  re- 
view by  the  supreme  court  of  th€  United  States. -^ 

Cases  Arising  under  the  Federal  Constitution  and  Laws. — Where  the 
jurisdiction  of  the  circuit  court  does  not  depend  entirely  on  diversity  of  citizen- 
ship, but  also  rests  on  the  ground  that  the  case  arose  under  the  constitution  or 
laws  of  the  United  'States,  then  the  decision  is  not  final,  and  that  must  be  tested 
by  the  settled  rule  that  a  suit  does  not  so  arise  unless  it  really  and  substantially 
involves  a  dispitte  or  controversy  as  to  the  effect  or  construction  of  the  constitu- 
tion or  some  law  or  treaty  of  the  United  States,  upon  the  determination  of  which 
the  result  depends,  and  which  appears  on  the  record  by  plaintiff's  own  statement 
of  his  case  in  legal  and  logical  form,  such  as  is  required  in  good  pleading.-^'^  This 
court  has  jurisdiction  to  review  the  judgment  of  the  circuit  court  of  appeals  un- 
der §  6  of  the  judiciary  act  of  March  3,  1891,  where  the  case  turns  on  the  con- 
struction of  the  laws  of  the  United  States,  because  the  jurisdiction  of  the  circuit 
court  is  not  dependent  entirely  upon  the  opposite  parties  being  citizens  of  different 
states.31 


28.  Columbia  v.  Cauca  Co.,  190  U.  S. 
524,   525,   47  L.   Ed.   1159. 

29.  Stevenson  v.  Fain,  195  U.  S.  165, 
49  L.  Ed.  142,  citing  Ayres  v.  Polsdorfer, 
187   U.    S.   585,   47    L.   Ed.   314. 

80.  Tennessee  v.  Union  &  Planters' 
Baak.  152  U.  S.  454.  38  L.  Ed.  511;  Ar- 
bockle  V.  Blackburn,  191  U.  S.  405,  48  L. 
Ey.  239;  Defiance  Water  Co.  v.  Defiance. 
1»1  U.  S.  184.  48  L.  Ed.  140;  Gold-Wash- 
ing &  Water  Co.  v.  Keyes,  96  U.  S.  199, 
24  L.  Ed.  656;  Starin  v.  New  York,  115 
li.  S.  248,  29  L.  Ed.  388;  Bankers'  Casu- 
alrty  Co.  v.  Minneapolis,  etc.,  R.  Co.,  192 
U.  S.  371,  380.  381,  48  L.  Ed.  484;  Bonin 
V.  Gulf  Co.,  198  U.  S.  115,  117,  118,  49  L. 
Ed.  970;  Howard  v.  United  States.  184 
U.  S.   676.  681,  46  L.   Ed.   754. 

"Where  the  jurisdiction  of  the  circuit 
court  is  invoked  on  the  ground  of  di- 
verse citizenship,  it  will  not  be  held  to 
rest  also  on  the  ground  that  the  suit 
arose  under  the  constitution  of  the  United 
States,  unless  it  really  and  substantially 
involves  a  dispute  or  controversy  as  to 
the  effect  or  construction  of  the  consti- 
tution upon  the  determination  of  which 
the  result  depends,  and  which  appears  on 
the  record  by  a  statement  in  legal  and 
logical  form  such  as  good  pleading  re- 
quires; and  where  the  case  is  not  brought 
within  the  rule,  the  decree  of  the  circuit 
court  of  appeals  is  final.  Arbuckle  v. 
Blackburn,  191  U.  S.  405,  48  L.  Ed.  239; 
Western  Union  Tel.  Co.  7'.  Ann  Arbor 
R.  Co.,  178  U.  S.  239,  44  L.  Ed.  1052."  Em- 
pire State-Idaho,  etc..  Co.  t'.  Hanley.  198 
U.   S.  292.  298,  49  L.   Ed.   1056. 

Where  the  complainant  by  proper  plead- 
ings, sets  up  not  only  the  diversity  of 
citizenship,  but  also  a  constitutional  ques- 
tion, the  complain?nt  li^s  the  right  to 
appeal  from  the  jinlgment  of  the  circuit 
court,  to  the  circuit  court  of  appeals,  and 


from  its  decision  in  such  a  case  an  appeal 
or  writ  of  error  may  be  taken  to  this 
court.  Mississippi  Railroad  Commission 
V.  Illinois,  etc.,  R.  Co..  203  U.  S.  335,  51  L 
Ed.  209.  citing  American  Sugar  Ref.  Co, 
t.  New  Orleans,  181  U.  S.  277,  281.  45  L.  Ed. 
859;  Huguley  Mfg.  Co.  v.  Gakton  Cotton 
Mills,  184  U.  S.  290,  2»5,  4€  L.  Ed.  546. 
and  distinguishing  the  case  of  Field  v. 
Barber  Asphalt  Co.,  194  U.  S.  618.  48  L. 
Ed.  1142,  on  the  ground  that  "It  simply 
holds  that  where  the  jurisdiction  of  the 
circuit  court  attaches  on  the  ground  of 
diverse  citizenship,  and  also  upon  a  sep- 
arate and  independent  constitutional 
ground,  the  party  may  take  a  direct  ap- 
peal to  this  court,  bnt  it  does  not  hold 
that  the  defeated  party  must  do  so  and 
that  he  crnnot  go  to  the  circuit  court 
of  appeals." 

31.  Florida,  etc.,  R.  Co.  z:  Bell,  176  U. 
S.  321.  44  L.  Ed.  486;  American  Sugar 
Ref.  Co.  V.  New  Orleans,  181  U.  S.  277, 
45  L.  Ed.  859;  Northern  Pac.  R.  Co. 
z\  Soderberg.  188  U.  S.  526,  528,  47  U 
Ed.    575. 

Where  the  jurisdiction  of  a  circuit  court 
of  the  United  States  is  invoked  on  the- 
ground  of  diverse  citizenship,  and  at  the 
trial  plaintiff  relied  wholly  upon  a  com- 
mon-law right,  but  defendant  invoked  the 
constitution  and  laws  of  the  United  States, 
judgment  having  passed  for  the  plaintiff, 
which  was  ai^rmed  by  the  circuit  court  of 
appeals,  the  action  is  not  one  arising  un- 
der the  constitution  and  laws  of  the 
United  States,  the  judgment  of  the  circuit 
court  of  appeals  is  made  final  by  the  stat- 
ute, and  the  supreme  court  of  the  United 
States  will  dismiss  a  writ  of  error  to  that 
court.  Spencer  v.  Duplan  Silk  Co.,  191  U. 
S.  526,  48  L.  Ed.  287.  citing  Emp^ire,  etc., 
Min.  Co.  7'.  Bunker  Hill,  etc.,  Min.  Co., 
200    U.    S.    613,    50    L.    Ed.    620;    Russell  V. 


APPEAL  AND  ERROR. 


485 


Qualifications  of  Rule. — But  in  a  case  where  the  jurisdiction  of  a  circuit 
court  of  the  United  States  is  invoked  on  the  ground  of  diverse  citizenship,  it  will 
not  be  held  that  jurisdiction  also  rested  on  the  ground  that  the  suif  was  one  aris- 
ing under  the  constitution  of  the  United  States,  etc.,  unless  it  appears  in  the  record 
by  the  plaintiffs  pleading  that  it  really  and  substantially  involved  a  dispute  or  con- 


Russell,  200  U.  S.  613.  50  L.  Ed.  620; 
Warder  v.  Loomis,  197  U.  S.  619,  49  L- 
Ed.  909;  Watkins  v.  American  Nat.  Bank. 
199  U.  S.  599,  50  L.  Ed.  327;  Transporta- 
tion Co.  V.  Mobile.  199  U.  S.  604,  50  L. 
Ed.   330. 

Suits  upon  bond  of  clerk  of  United 
States  court. — "The  suit  was  directly  upon 
a  bond  taken  by  the  circuit  court  in  con- 
formity with  the  statutes  of  the  United 
States,  and  the  case  depends  upon  the 
scope  and  effect  of  that  bond  and  the 
meaning  of  those  statutes.  It  was,  there- 
fore, a  suit  arising  under  the  laws  of  the 
United  States,  of  which  the  circuit  court 
(concurrently  with  the  courts  of  the 
state)  was  entitled  to  take  original  cog- 
nizance, even  if  the  parties  had  been  citi- 
zens of  the  same  state.  Act  of  August 
13,  1888,  25  Stat.  434,  c.  866.  This  court 
has  heretofore  decided  that  a  suit  upon  a 
bond  of  a  marshal  of  the  United  States 
was  one  arising  under  the  laws  of  the 
United  States.  Feibelman  v.  Packard,  109 
U.  S.  421.  423,  27  L.  Ed.  984;  Bachrack  v. 
Norton,  132  U.  S.  337.  33  L.  Ed.  377;  Rea- 
gan V.  Aiken.  138  U.  S.  109,  34  L.  Ed.  892; 
Bock  7'.  Perkins,  139  U.  S.  628.  630,  35 
L.  Ed.  314.  The  same  principle  must  be 
held  to  be  applicable  to  suits  upon  the 
bond  of  a  clerk  of  a  court  of  the  United 
States.  It  could  not  be  that  a  suit  upon 
the  bond  of  a  marshal  was  one  arising 
under  the  laws  of  the  United  States,  and 
that  a  suit  upon  the  bond  of  a  clerk  of  a 
court  of  the  United  States  was  not  of 
that  class.  It  results  that  although  the 
petition  shows  a  case  of  diverse  citizen- 
ship, jurisdiction  was  not  dependent  en- 
tirely upon  such  citizenship.  Jurisdiction 
was  likewise  invoked,  and  rightfully,  upon 
federal  groands.  And  as  the  case  was 
one  which  could  not  have  been  brought 
here  directly  from  the  circuit  court,  the 
final  judgment  of  the  circuit  court  of  ap- 
peals could  be  reviewed  in  this  court 
upon  writ  of  error  sued  out  by  the  de- 
fendants." Howard  v.  United  States,  184 
U.    S.    676,   681,    46    L.    Ed.    754. 

Infringement  of  trademark. — The  aver- 
ments of  a  bill,  which  charge  the  infringe- 
ment of  a  trademark  registered  under  the 
act  of  March  3.  1881.  2f  Stat.,  ch.  138.  p. 
502,  though  quite  defective,  are  sufficient 
to  invoke  the  jurisdiction  of  a  circuit 
court  of  the  United  States  on  the  ground 
that  the  case  arose  under  the  law  of  the 
United  States,  and  a  judgment  of  the  cir- 
cuit court  of  appeals  will  not  be  final  in 
the  sense  that  there  can  be  no  appeal  to 
the  supreme  court  of  the  United  States. 
because  the  jurisdiction  did  not  depend 
entirely      on      diversity      of      citizenship. 


Warner  v.  Searle,  etc.,  Co.,  191  U.  S.  195, 
48    L.    Ed.    145. 

Pure  food  laws. — The  averments  of  a 
bill  filed  in  a  United  States  circuit  court 
to  restrain  the  food  commissioner  of 
Ohio  from  certain  action  on  his  part  as 
such  officer,  including  prosecution  for  vio- 
lation of  the  pure  food  laws  of  that  state 
and  the  institution  of  proceedings  to  pre- 
vent the  sale  of  certain  alleged  adulter- 
ated foods,  does  not  bring  the  case  within 
this  rule,  although  such  averments  are  in 
effect  that  the  construction  which  said 
food  commissioner  places  upon  statute 
will  render  it  in  contravention  of  the  con- 
stitution of  the  United  States.  Arbuckle 
V.  Blackburn.  191  U.  S.  405,  48  L.  Ed.  239; 
Transportation  Co.  v.  Mobile,  199  U.  S. 
604,  50  L.  Ed.  330;  Farmers'  Loan,  etc.. 
Co.  z'.  Souix  Falls.  199  U.  S.  601,  50  L. 
Ed.  328;  Kimball  v.  Chicago  Press  Brick 
Co..  194  U.  S.  631.  48  L.  Ed.  1158;  Warder 
V.  Loomis,   197  U.  S.  619,  49  L.  Ed.  909. 

Due  process  of  law  and  impairment  of 
obligation  of  contract. — Where  a  bill 
avers  that  the  property  of  a  certain  water 
company  was  taken  without  due  process 
of  law  by  the  state  statute  which  enabled 
it  to  sell  its  property  to  a  municipal  cor- 
poration to  defeat  municipal  construction 
of  a  water  supply  sj^stem,  because  such 
statute,  as  constrvied  by  the  highest  court 
of  the  state,  does  not  entitle  any  com- 
pany to  compensation  for  its  franchises 
and  other  incorporeal  rights,  and  the  ad- 
ditional averment  that  the  obligation  of 
the  company's  contract  with  the  city  to 
furnish  water  for  fire  protection  was  im- 
paired by  the  failure  to  value  the  future 
profits  arising  from  such  contract,  where 
it  is  conceded  that  the  charter  of  the 
water  company  is  not  excluded,  but  was 
subject  to  repeal,  alteration,  or  amend- 
ment at  the  will  of  the  legislature,  it  was 
held,  that  the  rights  asserted  in  the  bill 
under  the  constitution  of  the  United 
States,  upon  which  the  jurisdiction  of 
this  court  depends,  are  so  attenuated  and 
unsubstantial  as  to  be  absolutely  devoid 
of  merit.  Newburyport  Water  Co.  v. 
Newburyport.  193  U.  S.  561.  48  L.  Ed. 
795.  reaffirmed  in  Farmers'  Loan,  etc., 
Co.  V.  Souix  Falls,  199  U.  S.  601,  50  L. 
Ed.   328. 

Additional  liability  of  stockholders  of 
national  banks. — A  national  hank  went 
into  liquidation  under  §  5220,  Rev.  Stat., 
and  one  who  held  its  notes  sought  to  en- 
force the  additional  liability  imposed  by 
§  5151,  Rev.  Stat.,  against  a  stockholder 
by  a  suit  in  the  nature  of  a  creditor's  bill 
on  behalf  of  himself  and  all  other  cred- 
itors.    It   was   held,   that  under  these   cir- 


486 


APPEAL  AND  ERROR. 


troversy  as  to  the  effect  or  construction  of  the  constitution,  or  the  vahdity  or  con- 
struction of  the  laws  or  treaties  of  the  United  States,  upon  the  determination  of 
which  the  resuh  depends  ;  and  which  appears  on  the  record  by  a  statement  in  legal 
and  logical  form  such  as  is  required  in  good  pleading.^^    If  no  definite  issue  in  re- 


cunistances  a  case  was  presented  under 
the  laws  of  the  United  States  giving  the 
circuit  court  jurisdiction  independently  of 
diverse  citizenship,  and  the  decree  of  the 
circuit  court  of  appeals  is  not  final  but 
an  appeal  therefrom  will  lie  to  this  court. 
Wyman  7'.  Wallace.  201  U.  S.  230,  50  L. 
Ed.  738;  Frenzer  v.  Wallace,  201  U.  S. 
244,  50  L.  Ed.  742;  Poppleton.  v.  Wallace, 
201    U.    S.    245.    50    L.    Ed.    743. 

Federal  ccrporaticns. — The  judgments 
of  the  circuit  courts  of  appeals  are  final 
in  that  class  of  cases  only  when  the  ju- 
risdiction is  dependent  "entirely  upon  the 
opposite  parties  to  the  suit  or  contro- 
versy, being  aliens  and  citizens  of  the 
United  States  or  citizens  of  different 
states."  The  judgment  is  not  final,  where 
the  jurisdiction  depends  not  solely  on  di- 
verse citizenship,  but  also  upon  the  fact 
that  the  plaintiff  in  error  is  a  federal  cor- 
poration. Union  Pac.  R.  Co.  v.  Harris, 
158  U.  S.  326,  39  L.  Ed.  1003,  explained 
in  Ayres  v.  Polsdorfer,  187  U.  S.  585,  589, 
47    L.    Ed.   314. 

Writs  of  error  lie  to  the  circuit  courts 
of  appeals  in  actions  for  damages  for  neg- 
ligence of  railroad  corporations  if  the 
corporations  are  chartered  under  the  laws 
of  the  United  States.  Union  Pac.  R. 
Co.  V.  Harris,  158  U.  S.  326.  328,  39  L. 
Ed.  1003.  citing  Northern  Pac.  R.  Co.  v. 
Amato,  144  U.  S.  465.  36  L.  Ed.  506. 
These  cases  are  explained  in  Ayres  v. 
Polsdorfer,  187  U.  S.  585.  589,  47  L.  Ed. 
314. 

In  Northern  Pac.  R.  Co.  v.  Amato,  144 
U.  S.  465.  36  E.  Ed.  506.  a  suit  was  brought 
in  the  supreme  court  of  New  York  against 
the  railroad  company  to  recover  damages 
for  personal  injuries  sustained  by  the 
plaintifT,  and  was  removed  by  the  defend- 
ant into  the  circuit  court  of  the  United 
States  for  the  southern  district  of  New 
York  on  the  ground  that  it  arose  under 
an  act  of  congress  in  that  the  defendant 
was  a  corporation  created  thereby,  and  a 
writ  of  error  to  the  circuit  court  of  ap- 
peals for  the  second  district  was  sus- 
tained. In  that  case,  the  citizenship  of 
the  plaintiff  was  not  mentioned  in  the 
complaint  or  in  the  petition  for  removal, 
and  the  petition  stated  that  the  action 
arose  under  an  act  of  congress.  It  was 
accordingly  held,  that  the  judgment  of 
the  circuit  court  of  appeals  was  not  inade 
final  by  §  6  of  the  iudiciarv  act  of  March 
3,  1891,  c.  517,  26  Stat.  826.  Union  Pac. 
R.  Co.  V.  Harris.  158  U.  S.  326.  327,  39  L. 
Ed.    1003. 

Receivers  of  national  banks. — Where  a 
motion  is  made  to  dismiss  a  writ  of  er- 
ror to  the  circuit  court  of  appeals  on  the 
qround   that    the   jurisdiction    of    the    case 


depends  on  diversity  of  citizenship,  and 
hence  that  the  judgment  of  the  circuit 
court  of  appeals  is  final,  the  motion  to 
dismiss  will  be  denied,  if  one  of  the  de- 
fendants, though  a  citizen  of  a  different 
state  from  the  plaintiff  in  the  action,  is 
als'>  a  receiver  of  a  national  bank  ap- 
pointed by  the  comptroller  of  the  cur- 
rency, and  is  an  officer  of  the  United 
States,  because  aa  action  against  him  i& 
one  arising  under  the  laws  of  the  United 
States,  .\uten  t.  National  Bnnk,  174  U, 
S.  125,  43  L.  Ed.  920,  citing  Kennedy  t/. 
Gibson,  8  Wall.  4^8,  19  L.  Ed.  476;  In  re 
Chetwood,  165  U.  S.  443,  41  L.  Ed.  782; 
Sonnentheil  v.  Moerlein  Brewing  Co.,  172 
U.    S.   401,   43   L.   Ed.  492. 

32.  .\rbuckle  r.  Blackburn.  191  U.  S. 
405.  48  L.  Ed.  239,  reaffirmed  in  Transpor- 
tation Co.  V.  Mobile.  199  U.  S.  604,  50  L» 
Ed.  330;  Farmers'  Loan,  etc.,  Co.  v.  Souix 
Falls,  199  U.  S.  601,  50  L.  Ed.  328;  Kim- 
ball V.  Chicago  Press  Brick  Co..  194 
U.  S.  631.  48  L.  Ed.  1158;  Warder  ZK 
Loomis,  197  U.  S.  619,  49  L.  Ed.  909;  De- 
fiance Water  Co.  v.  Defiance,  191  U.  S. 
184,  191.  48  L.  Ed.  140;  Western  Union 
Tel.  Co.  V.  Ann  Arbor  R.  Co.,  178  U.  S. 
239,  44  L.  Ed.  1052;  Gold-Washing  & 
Water  Co.  t'.  Keves,  96  U.  S.  199.  24  L. 
Ed.  656;  Blackburn  v.  Portland  Gold  Min. 
Co.,  175  U.  S.  571,  44  L.  Ed.  276;  Shrevc- 
port  V.  Cole,  129  U.  S.  36.  32  L.  Ed.  589; 
New  Orleans  ?■.  Benjamin,  153  U.  S.  411, 
424,  38  L.  Ed.  764;  Spencer  v.  Duplan 
Silk  Co..  191  U.  S.  526,  530.  48  L.  Ed. 
287,  citing  and  approving  ArbucVde  v, 
Blackburn.  191  U.  S.  405,  48  L.  Ed.  239; 
Western  Union  Tel.  Co.  v.  Ann  Arbor 
R.  Co..  178  U.  S.  239.  44  L.  Ed.  1052; 
Muse  t'.  .Arlington  Hotel  Co..  168  U.  S. 
43t),  42  L.  Ed.  531,  reaffirmed  in  Empire^ 
etc..  Min.  Co.  z:  Bunker  Hill,  etc.,  Min. 
Co.,  200  U.  S.  613,  50  L.  Ed.  620;  Russell 
V.  Russell,  200  U.  S.  613,  50  L.  Ed.  620; 
Warder  v.  Loomis,  197  U.  S.  619,  49  L. 
Ed.  909;  Watkins  z-.  American  Nat.  Bank, 
199  U.  S.  599.  50  L.  Ed.  327;  Transporta- 
tion Co.  V.  Mobile.  199  U.  S.  604,  50  L. 
Ed.  ?30;  Newburyport  Water  Co.  v.  New- 
buryport.  193  U.  S.  561,  4«  L.  Ed.  795, 
citing  Underground  Railroad  v.  Netir 
York  City,  193  U.  S.  416.  48  L.  Ed.  733; 
Owensboro  t'.  Owensboro  Waterworks 
Co.,  191  U.  S.  358.  48  L.  Ed.  217;  Swaff'-rd 
7'.  Templeton,  185  U.  S.  487,  46  L.  Ed. 
1005:  McCain  7'.  T>e-'  Moines.  174  U.  S. 
168.    181,    43    L.    Ed.    936. 

Where  jurisdiction  of  the  circuit  court 
is  invoked  both  upon  the  ground  of  di- 
versity of  citizenship  and  upon  a  con- 
stitutional question,  the  decree  of  the  cir- 
cuit court  of  appeals  will  nevertheless  be 
final,    and    not    subject    to    review    by    the 


APPEAL  AND  ERROR. 


487 


;.pect  of  a  right  claimed  under  the  Constitution  or  any  law  of  the  United  States  is 
'ieducible  from  the  plaintiff's  statement  of  his  case,  the  averments  of  the  com- 
plainant cannot  be  helped  out  by  resort  to  the  other  pleadings  or  to  judicial  knowl- 
cdge.-^'^  The  rule  is  settled  that  a  case  does  not  arise  under  the  constitution  or 
laws  of  the  United  States  unless  it  appears  from  the  plaintiff's  own  statement,  in 
tlie  outset,  that  some  title,  right,  privilege  or  immunity  on  which  recovery  depends 
will  be  defeated  by  one  construction  of  the  constitution  or  laws  of  the  United 
Slates,  or  sustained  by  the  opposite  construction.-^-*  Suits  though  involving  the 
constitution  or  laws  of  the  United  States  are  not  suits  arising  under  the  constitu- 
tion or  laws  where  they  do  not  turn  on  a  controversy  between  the  parties  in  re- 
gard to  the  operation  of  the  constitution  or  laws,  but  on  the  facts.-^^ 

Necessity  for  Adverse  Decision, — An  appeal  will  not  lie  from  the  circuit 
court  of  appeals  to  this  court,  on  the  ground  that  the  suit  arose  under  the  con- 


supreme*  court,  where  the  federal  question 
presented  is  so  wanting  in  merits  as  to 
cause  it  to  be  frivolous  or  without  any 
support  whatever.  Farrell  z'.  O'Brien, 
199  U.  S.  89.  50  L.  Ed.  101,  citing  Fayer- 
woather  v.  Ritch,  195  U.  S.  276.  49  L.  Ed. 
19:?. 

Postal  laws. — A  suit  against  a  railway 
roinpany  engaged  in  carrying  the  United 
States  mails  under  the  federal  laws  and 
postal  regulations,  to  recover  the  value  of 
a  registered  package  alleged  to  have  been 
lost  through  its  negligence,  does  not  arise 
under  the  federal  constitution  and  laws 
so  as  to  deprive  the  judgment  of  the  cir- 
cuit court  of  appeals  therein  of  the  finality 
which  exists  when  the  jurisdiction  of  the 
circuit  court  depends  entirely  on  diverse 
citizenship,  where  plaintiff  relied  on  prin- 
ciples of  general  law,  and  nowhere  as- 
serted a  right  which  might  be  defeated  or 
sustained  by  one  or  another  construction 
of  the  constitution  or  of  any  law  of  the 
United  States.  Bankers'  Casualty  Co.  v. 
Minneapolis,  etc.,  R.  Co.,  192  U.  S.  371, 
48  L.   Ed.  484. 

Denial  cf  due  process  of  law. — An  alle- 
gation by  a  party  claiming  an  interest  in 
a  mining  claim  by  virtue  of  a  purchase 
from  an  administrator  under  a  decree  of 
the  probate  court,  that  a  subsequent  de- 
cree of  that  court  annulling  the  prior  de- 
cree was  invalid  for  want  of  jurisdiction 
to  render  it  at  a  subsequent  term,  for 
want  of  notice  and  for  lack  of  evidence, 
does  not  amount  to  an  assertion  that  he 
WPS  deprived  of  his  interest  by  the  court 
without  due  process  of  law,  which  would 
support  the  jurisdiction  of  a  federal  cir- 
cuit court  irrespective  of  diversity  of 
citizenship,  and  therefore  permit  an  ap- 
peal to  the  supreme  court  from  a  decree 
of  the  circuit  court  of  appeals  in  the 
cnuse.  Emnire  State-Tdaho  Mining,  rt'-,. 
Co.  V.  Hanley,  198  U.  S.  292,  49  L.  Ed. 
lO.-ifi.  See  Farrell  v.  O'Brien.  199  U.  S. 
89    .^n  T..   Ed.  101. 

Probate  of  nuncupative  will. — Asser- 
tions that  the  requirements  of  a  state 
statute  had  not  been  complied  with  in  re- 
spect to  the  preliminary  issue  of  citations 
to  the  next  of  kin  of  the  decedent;  that 
the  hearing  on  the  application  to  probate 


a  nuncupative  will  was  had  before  service 
of  citations  in  the  mode  prescribed  by 
law.  etc.,  and  that  this  amounted  to  a 
deprivation  of  property  without  due  proc- 
ess, of  law.  in  violation  of  the  constitu- 
tion of  the  United  States,  were  held  to 
be  so  unsubstantial  and  devoid  of  merit  as 
to  furnish  no  real  support  to  a  contention 
that  the  decree  of  the  circuit  court  of  ap- 
peals was  not  final  because  not  invoked 
solely  on  the  ground  of  diversity  of  citi- 
zenship. Farrell  v.  O'Brien,  199  U.  S. 
89,   50   L.    Ed.   101. 

33.  Mountain  View,  etc.,  Co.  v.  Mc- 
Fadden,  180  U.  S.  533,  45  L.  Ed.  656; 
Arkansas  v.  Kansas,  etc..  Coal  Co.,  183 
U.  S.  185.  46  L.  Ed.  144;  Bankers'  Cas- 
ualty Co.  V.  Minaeapolis,  etc.,  R.  Co.,  196 
U.    S.   371.   383,   48    L.    Ed.    484. 

34..  Gold-Washing  &  Water  Co.  v. 
Keyes,  96  U.  S.  199,  24  L.  Ed.  656;  Staria 
c'.  New  York,  115  U.  S.  248,  29  L.  Ed.  388; 
New  Orleans  v.  Benjamin.  153  U.  S.  411, 
38  L.  Ed.  764;  Blackburn  v.  Portland  Gold 
Min.  Co.,  175  U.  S.  571,  44  L.  Ed.  276; 
Shoshone  Min.  Co.  v.  Rutter,  177  U.  S. 
505,  44  L.  Ed.  864;  Bankers'  Casualty  Co. 
V.  Minneapolis,  etc.,  R.  Co.,  192  U.  S.  371, 
385.    48    L.    Ed.    484. 

35.  Bankers'  Casualty  Co.  v.  Minne- 
apolis, etc.,  R.  Co.,  192  U.  S.  371,  384,  48 
L.  Ed.  484,  citing  Provident  Savings  So- 
ciety r.  Ford.  114  U.  S.  635,  29  L.  Ed.  261; 
Metcalf  V.  Watertown,  128  U.  S.  586,  32 
L.  Ed.  543;  Colorado,  etc.,  Mining  Co.  v. 
Turck,  150  U.  S.  138,  37  L.  Ed.  1030;  St. 
Joseph,  etc..  R.  Co.  v.  Steele,  167  U.  S. 
659,  42  L.  Ed.  315;  Pratt  ZK  Paris  Gas 
Light  etc.,  Co..  168  U.  S.  255,  42  L.  Ed. 
458;  Western  Union  Tel.  Co.  v.  Ann 
Arbor  T?.  Co..  17S  U.  S.  239.  44  L.  Ed. 
1052:  Gableman  v.  Peoria,  etc.,  R.  Co., 
J  79    U.    S.    335.   45    L.    Ed.    220. 

Assertion  of  title  under  a  patent. — 
Where  the  jurisdiction  of  the  circuit  court 
rests  alone  on  diversity  of  citizenship,  the 
assertion  of  title  under  a  patent  from  the 
Ignited  States,  presents  no  question, 
which,  of  itself,  confers  jurisdiction  on 
this  criurt  over  the  court  of  appeals.  Bonfn 
z:  Gulf  Co.,  198  U.  S.  115,  117,  49  L.  Ed. 
970.  citing  Florida,  etc..  P.  Co.  v.  Bell, 
176   U.   S.    321,   328,   44   L.    Ed.    486. 


488  APPEAL  AND  ERROR. 

stitution  of  the  United  States,  where,  even  if  the  judgment  of  the  court  of  ap- 
peals disposed  of  any  such  question,  it  was  in  their  favor.  The  appellants  cannot 
make  a  grievance  of  their  own  success.^*^ 

ff.  Copyright  Cases. — This  court  has  appellate  jurisdiction  to  review  the  final 
judgments  and  decrees  of  the  circuit  court  of  appeals  in  cases  arising  under  the 
copyright  laws  of  the  United  States,  where  the  matter  in  controversy  exceeds 
$1,000.^"  But  this  court  has  no  appellate  jurisdiction  over  the  decree  of  a  circuit 
court  entered  upon  a  return  of  the  mandate  from  the  circuit  court  of  appeals  m  a 
suit  to  enjoin  the  infringement  of  a  copyright,  and  in  which  it  is  ordered,  ad- 
judged and  decreed  that  the  decree  of  the  circuit  court  of  appeals  be,  and  the  same 
hereby  is,  made  a  decree  of  this  court,  although  copyright  cases  are  not  made 
final  in  the  circuit  court  of  appeals,  and  an  appeal  may  be  taken  from  the  circuit 
court  of  appeals  to  this  court  in  such  cases ;  because  this  is  not  an  appeal  from  the 
circuit  court  of  appeals.  "It  does  not  help  the  matter  that  the  circuit  courts  may, 
by  the  form  of  their  entries,  make  the  judgments  and  decrees  of  the  circuit  court 
of  apjx^ls  their  judgments  and  decrees.  We  cannot  revise  the  judgments  and  de- 
crees of  the  appellate  tribunals  except  when  brought  before  us  by  appeal  there- 
from, writ  of  error  tliereto,  or  by  certiorari, "^^  And  where  the  plaintiff  claims 
no  right  under  the  copyright  laws  of  the  United  States,  or  in  any  way  mentions 
or  refers  to  them,  but  at  the  trial  relies  wholly  upon  a  right  given  by  the  common 
law  to  an  author  in  his  unpublished  manuscript,  and  maintains  the  action  upon 
such  a  right  only,  this  is  insufficient  to  support  the  jurisdiction  of  this  court  to  re- 
view, by  appeal  or  writ  of  error,  the  judgment  of  the  circuit  court  of  appeals. 
The  test  of  the  appellate  jurisdiction  in  such  a  case  is  whether  the  case  was  one 
arising  under  the  copyright  laws  of  the  United  States,  or  was  one  in  which  the 
jurisdiction  of  the  circuit  court  wholly  depended  upon  the  parties  being  citizens 
of  different  states."^^ 

(5)  Hearing  and  Determination. — In  General. — Where  an  apixral  to  this  court 
from  a  decision  of  the  circuit  court  of  appeals  revises  a  ruling  of  the  circuit  court, 
this  court  has  to  determine  whether  in  its  judgment  the  circuit  court  of  appeals 
did  or  did  not  err,  and  afiirm  or  reverse  accordingly,  although  the  point  was  not 
called  to  the  attention  either  of  the  circuit  court  or  the  circuit  court  of  appeals, 
but  is  raised  for  the  first  time  in  the  court.  "It  is  true  that  our  decision  neces- 
sarily reviews  the  decree  of  the  circuit  court  in  reviewing  the  action  of  the  court 
of  appeals  upon  it,  and,  under  the  statute,  or  mandate,  goes  to  the  circuit  court 
directly,  but  it  is,  notwithstanding,  the  judgment  of  the  circuit  court  of  appeals 
that  we  are  called  on  primarily  to  revise.  It  will  be  seen,  then,  that  the  judgments 
of  the  courts  of  appeals  should  not  ordinarily  be  re-examined  on  the  suggestion 
of  error  in  that  court  in  that  it  did  not  hold  action  of  the  circuit  court  erroneous 
which  was  not  complained  of."^*' 

(6)  Supersedeas. — An  appeal  to  this  court  from  the  circuit  court  of  appeals, 
operates  as  a  supersedeas,  notwithstanding  "the  sixteenth  section  of  the  act  of 
February  4,  1887,  c.  104,  to  regulate  commerce,  24  Stat.  379,  as  amended  by  the 
act  of  March  2,  1889,  c.  382.  25  Stat.  855,  under  which  resort  to  the  circuit  courts 
could  be  had  for  the  enforcement  of  lawful  orders  or  requirements  of  the  inter- 
state commerce  commission,  provides  that :  'When  the  subject  in  dispute  shall 
be  of  the  vahie  of  two  thousand  dollars  or  more,  either  party  to  such  proceeding 
before  said  court  may  appeal  to  the  supreme  court  of  the  United  States,  under  the 

36.  Empire,  State-Tdaho  Min.  etc.,  Co.  v.  38.  Wf^hster  v.  Daly,  163  U.  S.  155  41 
Hanky.     198  U.  S.  292,  49  L.  Ed.  1056,  citing       L.    Ed.   111. 

Anglo-American     Provision     Co.    v.  Davis  39.     press    Pub.    Co.   v.    Monroe,   164  U. 

Provision  Co.,  191  U.  S.  373,  376.  48  L.  Ed.  g    105    41    L     Ed     367 

225;    Lampasas   v.    Bell,   180   U.    S.   276,   45  '    -     \r    ■     '    -o     -c       r>      n  nui-^-^rm 

T      T7H     «?97  ^^-     Union    Pacific    R.    Co.    v.    Chicago, 

oi^    T3  -D  u     n  \t  -.c.    TT  etc.,   R.   Co..   163  U.   S.  564,   593.  41   I,.  Ed. 

37.  Press    Pub.    Co.   v.    Monroe,   164   TJ.  „„,'  tt   •        o     -c     tj    r>  nu-  ^     ,    of^ 
c    i«c    Ai   T     -VA    oc-r.  AX7^Kof„.-  „   -n.,!      1     .  3fi5;  Union  Pacific  R.  Co.  v.  Chicago,  etc., 
S.  105.  41  L.  Ed.  367    Webster  v.  Daly,  1    ]  p     r^     iri  tt    c    ah    ai   t     VA    oqo 

lU.   S.    155,   159,   41   L.    Ed.    111.  R-   Co.,  163   U.  S.  611,  41   L.   Ed.  282. 


APPEAL  AND  ERROR.  "489 

same  regulations  now  provided  by  law  in  respect  of  security  for  such  appeals ;  but 
sikIi  appeals  shall  not  operate  to  slay  or  supersede  the  order  of  the  court  or  the 
execution  of  any  writ  or  process  thereon.'  "^^ 

(7)  Rez'crsal  or  Affirmance. — When  this  court  has  jurisdiction  to  examine  the 
proceedings  in  the  circuit  court  of  appeals,  if  the  supreme  court  of  the  United 
States  finds  its  mling  erroneous,  it  will  reverse  it.  But  if  it  holds  that  its  ruling 
was  correct,  its  judgment  will  be  affirmed.^ ^ 

(8)  Mand-atc. — To  What  Court  Directed. — Where,  on  appeal  or  writ  of  er- 
ror from  this  court  to  the  United  States  circuit  court  of  appeals,  the  judgment  is 
affirmed  or  reversed,  the  case  will  bfi  remanded  to  the  circuit  court  for  further  pro- 
ceedings as  required  by  §  10  of  the  act  of  March  3,  1891,  26  Stat.  829.43 

An  appeal  will  not  lie  to  this  court  from  a  decree  entered  by  the  circuit  court 
in  conformity  with  the  mandate  fn>m  the  circuit  court  of  appeals.  If  error  was 
committed  by  the  circuit  court  of  appeals  in  taking  jurisdiction,  it  is  not  for  the 
circuit  court  to  pass  upon  this  question.  But  if  the  circuit  court  of  appeals  erred, 
or  if,  for  any  reason,  its  judgment  could  be  held  void,  the  appropriate  remedy  lay 
in  a  certiorari  from  this  court  to  that  court.-^-* 

Appeal  after  Mandate. — Although  the  mandate  of  the  circuit  court  of  appeals 
has  gone  down  to  the  circuit  court  and  the  circuit  court  has  entered  its  decree  in 
conformity  with  the  mandate,  this  will  not  cut  off  an  appeal  to  the  supreme  court 
from  the  court  of  appeal. ■'^ 

c.  By  Mandamus. — This  court  cannot,  by  mandamus,  review  the  judicial  ac- 
tion of  a  circuit  court  of  appeals  ha^i  in  the  exercise  oi  legitimate  jurisdiction.  As, 
for  example,  upon  an  application  for  a  writ  of  mandamus  to  compel  the  circuit 
court  of  appeals  to  receive  and  dulf  consider  certain  deposition  or  further  proofs 
taken  by  petitioner  on  appeal  in  an  admiralty  cause  pending  in  that  court  wherein 
he  is  the  libelant  and  appellee.'*^  This  court  cannot  issue  a  writ  of  mandamus 
either  to  the  circuit  court  of  appeals  or  to  the  circviit  court,  on  the  ground  that 
the  circuit  court  of  appeals  on  the  hearing  of  an  appeal  from  an  interlocutory  or- 
der of  the  circuit  court  granting  an  injunction,  erred  in  going  beyond  the  modifi- 
cation of  the  injunction,  and  in  setting  aside  so  much  of  the  orders  appealed  from 
as  appointed  a  receiver  and  permitted  him  to  issue  receiver's  notes.-*" 

d.  By  Certiorari — (l)In  General. — While  this  division  of  appellate  power  be- 
tween this  court  and  the  circuit  cotirt  of  appeals  was  the  means  adopted  to  re- 

41.  Louisville,  etc.,  R.  Co.  z\  Behlmer,  of  appeals  may  have  sent  its  own  man- 
169  U.  S.  644,  045,  42  L.  Ed.  SS9.  date    down    before    the    case    was    brought 

42.  Southern  R.  Co.  v.  Postal  Tel.  Cable  to  this  court  by  appeal,  writ  of  error  or 
Co.,  179  U.  S.  641,  45  L.  Ed.  355.  citing  certiorari.  The  Conqueror,  166  U.  S. 
and  approving  Aztec  Min.  Co.  v.  Ripliy,  110,  41  L.  Ed.  937;  Kirwan  v.  Murphy, 
151   U.   S.  79,   38   L.   Ed.   80.  170   U.    S.   205,   42  h.   Ed.   1009;   Louisville, 

43.  Northern  Pac.  R.  Co.  v.  Amato.  lAi  etc..  R.  Co.  v.  Behlmer,  169  U.  S.  644.  648, 
U.  S.  465,  36   L.   Ed.  506;  Lau  Ow  Bew  v.  42    L.    Ed.   889. 

United  States,  144  U.  S.  47,  36  L.  Ed.  310;  44.    Aspen   Mining,  etc.,   Co.  v.  Billings. 

Northern   Pac.   R.    Co.   v.   Walker,    148    I  J.  150  U.  S.  31,  37  L-  Ed.  986,  citing  Ameri- 

S.  391,   392,   37    L.    Ed.   494.  can   Construction  Co.  v.  Jacksonville,  etc., 

Wlien  a  case  reaches  this  court  throu&h  R.  Co..  148  U.  S.  372.  37  L.  Ed.  486. 
the  circuit  court  of  appeals,  by  appe&l.  45.  Merrill  v.  National  Bank,  173  U. 
writ  of  error  or  certiorari,  the  cause  shall  S.  131,  134,  43  L.  Ed.  640. 
be  remanded  to  the  proper  district  or  cii-  46.  In  re  Hawkins.  147  U.  S.  486,  37 
cuit  court  for  further  proceedings  in  pur-  L.  Ed.  251,  citing  In  re  Morrison,  147  U. 
suance  of  the  determination  of  this  court,  S.  14.  37  L.  Ed.  60;  Ex  parte  Morgan,  114 
exactly  as  if  the  case  came  here  directly  U.  S.  174,  29  L.  Ed.  135;  Ex  parte  Burtis, 
from  the  district  or  circuit  court.  Louis-  103  U.  S.  238,  26  L.  Ed.  392;  Ex  parte 
ville,  etc.,  R.  Co.  v.  Behlmer,  169  U.  S.  Schwab,  98  U.  S.  240,  25  L.  Ed.  105. 
644.  646,  42  L.  Ed.  889.  47.  American  Construction  Co.  r.  Jack- 
When  cases  are  brought  here  from  the  sonville,  etc..  R.  Co.,  148  U.  S.  372,  37  L. 
circuit  courts  of  appeals,  we  are,  of  course,  Ed.  486,  citing  In  re  Morrison,  147  U.  S. 
called  on  to  review  the  judgments  of  14.  26,  37  L.  Ed.  60;  In  re  Hawkins,  147 
those  courts  in  revision  of  the  judgments  U.  S.  486,  37  L.  Ed.  251;  In  re  Haberman 
of  the  courts  below,  but  our  mandate  Mfg.  Co..  147  U.  S.  525,  37  L.  Ed.  266; 
Roes  to  the  court  of  first  instance,  and  is  Virginia  r.  Paul,  148  U.  S.  107,  124,  37 
there  carried  into  effect,  though  the  court  L.   Ed.   386. 


490  APPEAL  AND  ERROR. 

duce  the  accumulation  of  business  in  this  court,  it  was  foreseen  that  injurious  re- 
suhs  might  follow  if  an  absolute  finality  of  determination  was  given  to  the  courts 
of  appeal.  Nine  separate  appellate  tribunals  might,  by  their  diiterences  of  opinion, 
unless  held  in  check  by  the  reviewing  power  of  this  court,  create  an  unfortunate 
confusion  in  respect  to  the  rules  of 'federal  decision.  As  the  courts  of  appeal  would 
often  be  constituted  of  two  circuit  judges  and  one  district  judge,  a  division  of  opin- 
ion between  the  former  might  result  in  a  final  judgment  where  the  opinions  of 
two  judges  of  equal  rank  were  on  each  side  of  the  questions  involved.  Cases  of 
a  class  in  which  finality  of  decision  was  given  to  the  circuit  courts  of  appeal  might 
involve  questions  of  such  public  and  national  importance  as  to  require  that  a  con- 
sideration and  determination  thereof  should  be  made  by  the  supreme  tribunal  of 
the  nation.  It  was  obvious  that  all  contingencies  in  which  a  decision  by  this  tri- 
bunal was  of  importance  could  not  be  foreseen,  and  so  there  was  placed  in  the 
act  creating  the  courts  of  appeal,  in  addition  to  other  provisions  for  review  by  this 
court,  this  enactment :  "And  excepting  also,  that  in  any  such  case  as  is  herein- 
before made  final  in  the  circuit  court  of  appeals,  it  shall  be  competent  for  the 
supreme  court  to  require,  by  certiorari  or  otherwise,  any  such  case  to  be  certified 
to  the  supreme  court  for  its  review  and  determination  with  the  same  power  and  au- 
thority in  the  case  as  if  it  had  been  carried  by  appeal  or  writ  of  error  to  the  su- 
preme court. "^^  Thus,  in  the  interest  of  jurisprudence  and  uniformity  of  de- 
cision, the  supervision  of  this  court,  by  way  of  advice  or  direct  revision,  is  se- 
cured .^^ 

The  general  language  of  this  clause  is  noticeable.  It  applies  to  every  case 
in  which,  but  for  it.  the  decision  of  the  circuit  court  of  appeals  would  be  abso- 
lutely final,  and  authorizes  this  court  to  bring  before  it  for  review  and  determina- 
tion the  case  so  pending  in  the  circuit  court  of  appeals,  and  to  exercise  all  the 
power  and  authority  over  it  which  this  court  would  have  in  any  case  brought  to 
it  by  appeal  or  writ  of  error.  I'nquestionably.  the  generality  of  this  provision  was 
not  a  mere  matter  of  accident.  It  expressed  the  thought  of  congress  distinctly  and 
clearly,  and  was  intended  to  vest  in  this  court  a  comprehensive  and  unlimited 
powpr.  The  power  thus  given  is  not  affected  bv  the  condition  of  the  case  as  it 
exists  in  the  court  of  appeals.  It  may  be  exercised  before  or  after  any  decision 
by  that  court  and  irrespective  of  any  ruling  or  determination  therein.  All  that  is 
essential  is  that  there  be  a  case  pending  in  the  circuit  court  of  appeals,  and  of 
those  classes  of  cases  in  which  the  decision  of  that  court  is  declared  a  finality,  and 
this  court  may.  by  virtue  of  this  clause,  reach  out  its  writ  of  certiorari  and  trans- 
fer the  case  here  for  review  and  determination.  Obviously,  a  power  so  broad  and 
comprehensive,  if  careles'^ly  exercised,  might  defeat  the  very  thought  and  pur- 
pose of  the  act  creatine  the  courts  of  appeal.  So  exercised,  it  might  burden  tlie 
docket  of  this  court  with  cases  which  it  was  the  intent  of  coneress  to  terminate 
in  the  courts  of  aoneal.  and  which,  brouofht  here,  would  simplv  prevent  that 
promptriess  of  decision  which,  in  all  judicial  actions,  is  one  of  the  elements  of 
justice. ^*^' 

Adequacy  of  Other  Remedies. — But  a  certiorari  can  be  iss'ipd  only  when  a 
writ  of  error  ^nn'■'o^  It  m'^^t  no^  b^  supposed,  however,  that  it  will  issue  merely 
because  the  writ  of  error  will  not  lie.-''^ 

48.     Forsyth    z'.    Hn'rtmond.    16fi    U.    S.  49.    In   re   Woods.   143  U.   S.   202.   36   L. 

506,    512.    513.    41    L.    Ed.    1095.    reaffirmed  Kd.   125;   Law  O-^'   Bew.  141   U.   S.   5S3.  35 

in    Arcbf-r  v.   Bnild'ns^   &   Loan    Ass'n.    179  L.  Ed.  868;  Lan  Ow  Bew  v.  United  States, 

U.   S.  679.  45  L.  Ed.   383;  Warner  v.   New  144  U.  S.  47.  58.  36  L.  Ed.  340;   Columbus 

Orleans.  167  U.  S.  467,  474.  42  L.  Ed.  239.  Watch   Co.  7:  Robbins.  148  U.  S.  266,  268. 

reaffirmed  in  O'Neill,  etc..  R.  Co.  t-.  Trust  37    L.    Ed.   445. 

Co..  172  U.S.  642,  43  L.Ed.  1180;   Louis-  50.      Porsvth    v.    Hammond.    166    U.    S. 

ville.    etc..   R.    Co.   z^    Behlmer,    169   U.    S.  506.    513.    41    L.    Ed.    1095.     reaffirmed     in 

644.  646.  42  L.  Ed^  889;  Law  Ow  Bew^  141  Archer  v.  BwWv^  fk  Loan   Ass'n,   179  U. 

U.   S.   583.   35   L.  Ed.  868;  Kmo^man  &  Co.  7'.  c    ^70    4=   t     Ed    ^q^ 

Western    Mf-    Co.,   170   U.   S.    675.    42    L.  ^  %    ,^         t^     .  ^    q.  .        on-    tt    q 

Ed.  1192:  Northern  Pac.  R.  Co.  r.  Walker.  .J^./';'^  T   L^'^^"^    ^*''^^''   ~^^   ^^   ^' 

148   U.    S.   391,   392,   37   L.    Ed.   494.  ~^~-    ^^    ^-    ^^-    ^"^- 


ATPEAL  AXD  I-RROR. 


491 


Necf?ssity  for  Eequest.— The  supreme  court  of  the  United  States,  in  the  ab^ 
sence  of  request  for  instructions,  may,  by  certiorari  or  otherwise,  require  any 
cases  made  final  in  the  circuit  court  of  appeals  to  be  certified  to  it  for  review. •''^ 

(2)  AUou'ance  of  Writ. — The  writ  of  certiorari,  authorized  by  the  act  of  1891, 
being  in  the  nature  of  a  writ  of  error  to  bring  up  sor  review  the  decree  of  the 
circuit  court  of  appeals,  the  question  whether  the  writ  should  be  granted  rests  in 
the  discretion  of  this  court ;  but  when  the  writ  has  been  granted,  and  the  record 
certified  in  obedience  to  it,  the  questions  arising  upon  that  record  inust  be  deter- 
mined  according  to  fixed  rules  of  law.""-^ 

Time  of  Allov/ance. — Where  a  cause  is  brought  from  the  circuit  court  of  ap- 
peals to  the  supreme  court  by  writ  of  error,  when  the  proper  course  of  proceeding 
was  to  have  asked  for  a  writ  of  certiorari  to  bring  up  the  final  judgment  of  the 
circuit  court  of  appeals  here  for  review,  the  supreme  court,  under  the  powers  pos- 
sessed by  it  under  the  judiciary  act  of  1891.  may  then  allow  a  writ  of  certiorari, 
and  direct  that  the  copy  of  the  record  heretofore  filed  under  the  writ  of  error  be 
taken  and  deemed  as  a  sufficient  return  to  the  certiorari. ^^ 

(3)  In  Wh-at  Cases  the  Writ  'May  Issue — aa.  In  General. — The  authority 
conferred  on  this  court  by  the  provision,  by  which  it  is  enacted  that  "in  any  such 
case  as  is  h':reinbefore  made  final  in  the  circuit  court  of  appeals,  it  shall  be  com- 
petent for  the  supreme,  court  to  require,  by  certiorari  or  otherwise,  any  such  case 
to  be  certified  to  the  supreme  court  for  its  review  and  determination,  with  the  same 
power  and  authority  in  the  case  as  if  it  had  been  carried  by  appeal  or  writ  of  er- 
ror to  the  supreme  court,"  has  been  held  to  be  a  branch  of  its  jurisdiction  which 
should  be  exercised  sparingly  and  wath  great  caution,  and  only  in  cases  of  pecul- 
iar gravity  and  general  importance,  or  in  order  to  secure  uniformity  of  decision. ^^ 
This  must  necessarily  be  so  in  any  view,  and  especially  when  it  is  considered  that 


52.  United  States  v.  Jahn.  1.55  U.  S.  109, 
39  L.   Ed.  87. 

53.  Harris  v.  Barber,  129  U.  S.  366, 
369.  32  L.  Ed.  697;  American  Construc- 
tion Co.  V.  Jacksonville,  etc.,  R.  Co.,  148 
U.    S.    372,    387.    37    L.    Ed.    486. 

54.  Security  Trust  Co.  v.  Dent,  187  U. 
S.  237,   47   L.    Ed.   158. 

55.  Law  Ow  Bew,  141  U.  S.  583,  35 
L.  Ed.  868,  and  Lau  Ow  Bew  v.  United 
States.  144  U.  S.  47,  36  L.  Ed.  340;  In  re 
Woods,  143  'U.  S.  202,  36  L.  Ed.  125; 
American  Construction  Co.  v.  Jackson- 
ville, etc.,  R.  Co.,  148  U.  S.  372,  383.  37 
L.  Ed.  486;  Fields  v.  United  States.  205  U. 
S.  292,   51  L.    Ed.  807. 

The  general  rule  is  well  settled  that  a 
writ  of  certiorari  can  only  issue  from 
this  court  under  the  circuit  court  of  ap- 
peals act,  where  the  question  involved  is 
one  of  gravity  and  general  importance. 
As,  for  example,  where  there  is  a  con- 
flict between  the  decisions  of  the  state 
and  federal  courts  or  between  those  of 
federal  courts  of  different  circuits;  or 
where  there  is  something  affecting  the  re- 
lations of  this  nation  to  foreign  nations, 
or  indeed  some  matter  of  general  interest 
to  the  public.  Fields  v.  United  States, 
205    U.    S.    292,    51    L.    Ed.    807. 

"Accordingly,  while  there  have  been 
naany  applications  to  this  court  for  writs 
of  certiorari  to  the  circuit  court  of  ap- 
peals under  this  provision,  two  only  have 
been  granted;  the  one  in  Law  Ow  Bew's 
Case,  141  U.  S.  583,  35  L-  Ed.  868.  which  in- 
volved a  grave  question  of  public  inter- 
national   law,    affecting    the    relations    be- 


tween the  United  States  and  a  foreign 
country;  the  other  in  Fabre,  Petitioner, 
No.  1237  of  tlie  present  term,  an  admi- 
ralty case,  which  presented  an  important 
question  as  to  the  rules  of  navigation,  and 
in  which  the  decree  of  the  circuit  court 
of  appeals  for  the  second  circuit  reversed 
a  decree  of  the  district  judge,  and  was 
dissented  from  by  one  of  the  three  cir- 
cuit judges;  and  in  each  of  those  cases 
the  circuit  court  of  appeals  had  declined 
to  certifj'  the  question  to  this  court." 
American  Construction  Co.  v.  Jackson- 
ville, etc.,  R.  Co..  148  U.  S.  372,  383.  37 
L.    Ed.    486. 

The  power  of  this  court  to  require  a 
case  in  which  the  judgment  and  decree 
of  the  circuit  court  of  appeals  is  made 
final,  to  be  certified  for  review  and  de- 
termination, as  if  it  had  been  brought 
here  on  appeal  or  writ  of  error,  can  only 
be  properly  invoked  under  section  six  of 
the  act  of  congress  entitled  "An  act  to 
establish  circi'it  courts  of  appeals  and  to 
define  and  regulate  in  certain  cases  the 
jurisdiction  of  the  courts  '■{  the  United 
States,  and  for  other  purposes,"  approved 
March  3,  1891  (26  Stat.  826,  828.  c.  517), 
when  questions  of  gravity  and  impor- 
tance are  involved.  In  re  Woods,  143  U. 
S.  202.  205.  36  L.  Ed.  125;  Law  Ow  Bew, 
141    U.    S.    583,    35    L.    Ed.    868. 

Where  the  circuit  court  of  appeals  on 
the  hearing  of  an  appeal  from  an  inter- 
locutory order  of  the  circuit  court  grant- 
ing an  injunction,  errors  in  going  beyond 
a  modification  of  the  injunction,  and  in 
setting   aside    so   much   of   the   orders   ap- 


492 


APPEAL  AND  ERROR. 


the  circuit  courts  of  appeals  were  created  for  the  purpose  of  relieving  this  court 
of  the  oppressive  burden  of  general  litigation,  which  impeded  the  examination  and 
disposition  of  cases  of  public  concern,  and  delayed  suitors  in  the  pursuit  of  jus- 
tice. But  in  the  interest  of  jurisprudence  and  uniformity  of  decision,  to  use  the 
language  of  the  eminent  jurist  and  statesman  who  had  charge  of  the  bill,  provi- 
sion was  made  under  section  six  for  such  supervision  on  our  part  as  would  tend 
to  avert  diversity  of  judgments  and  guard  against  inadvertence  of  conclusion  in 
controversies  involving  weighty  and  serious  matters. ^^  So  it  has  been  that  this 
court,  while  not  doubting  its  power,  has  been  chary  of  action  in  respect  to  cer- 
tioraries.  It  has  said :  "It  is  evident  that  it  is  solely  questions  of  gravity  and  im- 
portance that  the  circuit  courts  of  appeal  should  certify  to  us  for  instruction ;  and 
that  it  is  only  when  such  questions  are  involved  that  the  power  of  this  court  to 
require  a  case  in  which  the  judgment  and  decree  of  the  court  of  appeals  is  made 
final,  to  be  certified,  can  be  properly  invoked. "•'^" 

Matters  of  Private  Interest. — This  court  will  decline  to  issue  the  writ  of 
certiorari  in  cases  where,  there  being  only  a  matter  of  private  interest,  there  had 
been  no  final  judgment  in  the  court  of  appeals.''^^ 

Determination  of  Importance  of  Case. — But  the  power  of  determining  what 
cases  should  be  so  brought  up  was  vested  in  this  court,  and  it  was  not  intended  to 
give  to  any  one  of  the  courts  of  appeal  the  right  to  avoid  the  responsibility  cast 
upon  it,  by  statute,  by  transmitting  any  case  it  saw  fit  to  this  court  for  decision. 
If  such  practice  were  tolerated,  it  is  easy  to  perceive  that  the  purpose  of  the  act 
might  be  defeated,  and  the  courts  of  appeal,  by  transferring  cases  here,  not  only 
relieve  themselves  of  burden,  but  also  crowd  upon  this  court  the  very  cases  whicli 
it  was  the  intent  of  congress  they  should  finally  determine. ^^ 

bb.  Particular  Cases  as  Involvincj  Questions  of  Snifcient  Importance  Consid- 
ered.— The  dift'erence  between  an  affirmance  and  dismissal  not  afl:"ecting  the  es- 
sential rights  of  the  parties,  is  no  ground  upon  which  this  court  should  exercise 
its  discretionary  powers  of  issuing  a  writ  of  certiorari.^*^ 


pealed  from  as  appointed  a  receiver  and 
permitted  him  to  issue  receiver's  notes, 
the  error  is  one  in  the  judicial  determi- 
nation of  a  case  within  the  jurisdiction  of 
that  court,  and  neither  so  important  in 
its  immediate  effect,  nor  so  far  reaching 
in  its  consequences,  as  to  warrant  this 
court  in  issuing  the  writ  of  certiorari  be- 
fore final  judgment.  American  Construc- 
tion Co.  V.  Jacksr^nville.  etc.,  R.  Co..  148 
U.    S.    372,   37    L.    Ed.   486. 

Where  a  bill  in  equity  was  filed  against 
the  county  auditors  of  twelve  counties  in 
the  •^tate.  praying  for  a  decree  adjudging 
certam  assessments  and  taxes  levied  upon 
lands  in  each  of  said  counties  to  be  illegal 
and  void  and  a  cloud  upon  complainant's 
title,  and  to  enjoin  the  collection  of  such 
taxes  from  a  railroad  company,  this  court 
issued  a  certiorari  to  the  circuit  court  of 
appeals  requiring  the  whole  record  and 
cause  to  be  sent  up  for  consideration. 
Northern  Pacific  R.  Co.  v.  Walker.  148 
U.   S.  391.  37   L.   Ed.  494. 

56.  In  re  Woods,  143  U.  S.  202,  205,  36 
L.  Ed.  125. 

57.  Law  Ow  Bew.  141  U.  S.  583.  587. 
35  L.  Ed.  868;  In  re  Woods,  143  U.  S. 
202.  36  L.  Ed.  125;  Lau  Ow  Bew  z-.  United 
States.  144  U.  S.  47.  58,  36  L.  Ed.  340; 
American  Construction  Co.  v.  Jackson- 
ville, etc..  R.  Co..  148  U.  S.  372.  383, 
37  L.  Ed.  486;  Forsyth  v.  Harnmrnrl.  166 
U.    S.    506,    513,    514,    41    L.    Ed.    1095,    re- 


affirmed   in    Archer    v.    Building    &    Loan 
Ass'n,  179  U.  S.  679,  45  L.  Ed.  383. 

58.  Forsvth  -  'lammond.  166  U.  S. 
.i06.   41    L.    Ed.    1095. 

Matters  of  private  interest. — Tn  every 
case  within  its  appellate  jurisdiction,  the 
circuit  court  of  appeal.-;  may  certify  to 
this  court  any  questions  or  propositions 
of  law  in  respect  of  which  it  desire?  in- 
struction, and  this  court  may  then  re- 
quire the  whole  record  and  cause  to  be 
sent  :in;  and  ^'^  '■'^  '«  '-  "^-^etpnt  for  tliis 
court  by  certiorari  to  direct  any  case  to 
be  certified,  whether  its  advice  is  re- 
quested "^r  not.  pxcept  those  w'-'i'-h  may 
be  brought  here  by  appeal  or  writ  of  er- 
ror, and  the  latter  are  specified  as  those 
where  the  money  value  exceeds  a  certain 
amount,  and  which  have  not  been  made 
final  "in  this  section."  that  is.  made  final 
in  terms.  And  as  certiorari  will  on'v  be 
issued  where  questions  of  gravity  and  im- 
portpp'-e  are  involved  or  in  the  interest 
of  uniform'tv  of  decision,  the  object  of 
the  art  is  thereby  atta't'ed.  Lau  Ow  Bew 
V.  United  States,  144  *[].  S.  47.  58.  36  L. 
Ed.    340. 

59.  X^'arner  v.  Ww  Orleans.  167  U.  S. 
467.  474.  42  L.  Fd.  239.  reaffirmed  in 
O'Neill,  etc..  P  C"  -'.  Trust  Co.,  172  U. 
S.    642.   43    L.    Ed.    1180. 

60.  S-Tiith  V.  Vu'car  Tr^n  Works,  165 
U.    S.   518,   526,   41    L.   Ed.   810. 


APPEAL  AND  ERROR.  493 

Construction  and  Interpretation  of  Neutrality  Laws. — A  writ  of  cer- 
tiorari may  be  allowed  from  this  court  to  the  circuit  court  of  appeals  in  a  case  in- 
volving the  construction  and  interpretation  of  the  neutrality  laws  of  the  United 
States  pending  an  insurrection  against  a  foreign  government,  because  of  the  great 
public  importance  of  the  question.^ ^ 

Qualification  of  Judges.— If  a  decree  of  the  circuit  court  of  appeals  is  void, 
because  one  of  the  judges  who  took  part  in  the  decision  was  forbidden  by  law  to 
sit  at  the  hearing,  a  writ  of  certiorari  may  be  issued  to  that  court  to  bring  up  and 
quash  the  decree,  and  "is  manifestly  a  more  decorous,  as  well  as  a  more  appro- 
priate, form  of  proceeding  than  a  writ  of  mandamus  to  the  circuit  court  to  dis- 
regard the  mandate  of  the  appellate  court. "^ - 

Conflicting  Decisions  of  Courts  of  Appeals.— The  fact  that  a  circuit  court 
of  appeals  for  one  circuit  has  rendered  a  different  judgment  from  that  of  the  cir- 
cuit court  of  appeals  for  another  circuit,  under  the  same  conditions,  may  furnish 
ground  for  a  certiorari  on  proper  application."-^ 

Conflict  between  State  Court  and  Court  of  Appeals. — And  this  court  will 
issue  the  writ  of  certiorari  in  case  of  a  conflict  between  the  decisions  of  a  circuit 
court  of  appeals  and  a  state  court. ^"^ 

Construction  of  Chinese  Exclusion  Act. — Where  the  case  involves  the  ap- 
plication of  the  Chinese  restriction  acts  to  Chinese  merchants  domiciled  in  the 
United  States,  who  temporarily  leave  the  country  for  purposes  of  business  rr 
pleasure,  animo  revertendi,  in  the  light  of  the  treaties  between  the  government  of 
the  United  States  and  that  of  China,  "it  is  of  sufficient  importance  in  itself,  and 
sufficiently  open  to  controversy,  to  make  k  the  duty  of  this  court  to  issue  the  writ 
applied  for  in  order  that  the  case  may  be  reviewed  and  determined  as  if  brought 
Iiere  on  appeal  or  writ  of  error. "^^ 

Res  Adjiiclicata  and  Master  and  Servant  Questions. — But  the  inquiry  as 
to  whether  it  was  settled  law  in  the  state  of  Minnesota  that  a  judgment  of  dis- 

61.  Tbe  Three  Friends,  1G6  U.  S.  1,  41  U.  S.  414,  26  L.  Ed.  1077;  Oakley  v.  As- 
L.   Ed.    897.  pinwall.   3   N.    Y.   547;   Tofland   v.    County 

62.  American  Construction  Co.  v.  Jack-  Commissioners,  13  Gray  12.  For  the  rea- 
sonville,  etc..  R.  Go.,  148  U.  S.  372,  378,  sons  above  stated,  this  court  is  of  opinion 
37   L.    Ed.   486.  that    the  writ  of  certiorari  prayed  for  in  t'le 

Qualification  of  judges  of  court  of  ap-  second    case    shou4d    not   b€    granted,   un- 

peals. — ^"The  more   important  suggestion  is  less  Judge  Pardee  was  disqualified  by  the 

that  the  decree  of  the  circuit  court  of  ap-  act   of    1891   to   sit   at   the    heariag   is   the 

peals  is  void,  because  Judge   Pardee  took  circuit    court   of    appeals;    but    that,   if   he 

part   in   the   hearing   and    decision   in    that  was    so    disqualified,    the    writ    should    be 

court,    though    disqualified    from    so    do-  granted,   for    the    purpxose    of    bringing   up 

ing   by   §    3   of   the   judiciary   act   of   1891,  and    quashing    the    decree    of    that    court." 

which  provides  that  "no  justice  or  judge,  American   Construction    Co.    v.      Jackson- 

before    whom    a    cause    or    question    may  ville.    etc.,    R.    Co.,    148    U.    S.    372,    378,   37 

have   been   tried    or    heard"    in    the   circuit  L.   Ed.   486. 

court  "shall  sit   on  the  trial  or  hearing  of  gS.     Columbus    Watch    Co.    v.    Robbins, 

such  cause  or  question  in  the  circuit  court  i^g  u    g    266,  37   L.   Ed.   445 

of  appeals."      26    Stat.    827.      The    question  ca       -c^^       ^i           u                 i      ^^e    tt     o 

_L^,V        ,1  •               •   ■               uu-^  J    T     1  64.     Forsvth    z\    HammoiKl.    166    U.    S. 

whether    this    provjston    prohibited    judge  -„-     .^    j     t?,    .,,^,^ 

T)..    1        r               ■^.-          ■      "^                   ,        I.-   u  506,   41    L,.    E,a.   1095. 
Pardee   from    sitting    in    an    appeal    which 

was  not  from  his  own  order,  but  from  an  65^  Law  Ow  Bew,  141  U.  S.  583.  587,  35 

order   setting   aside   his   order,    is   a   novel  L.    Ed.    868. 

and    important    one,    deeply    affecting    the  In    the    matter    of    Lau    Ow    Bew,    the 

administration    of    justice    in    the    circuit  construction    of    acts    of    congress    in    the 

court  of  appeals.     If  the  statute  made  him  light    of    treaties    with    a    foreign    govern- 

incornpetent  to  sit  at  the  hearing,  the   de-  ment,  and  the  status  of  domicil  in  respect 

cree  in  which  he  took  part  was  unlawful,  of    natives    of    one    country    domicited    in 

and   perhaps    absolutely   void,    and    should  another,  a  aiatter  of  ifiternational  concern, 

certainly  be   set  aside   or   quashed  by  any  were    brought    under    consideration    upon 

court    having    authority    to    review    it    by  the   record,   and   we   were   of  Qpinion   that 

appeal,  error  or  certiorari.     United  States  the  grourrds  of  the  application  were  suffi- 

V-  Lancaster,  5  Wheat.  434,  5   L.   Ed.   127;  cient    to    call    for    onr    interposition.      In 

The    Queen    v.    Justices    of    Hertfordshire,  re   Woods,    143   U.    a    282,   206,   36   L.    Ed 

6  Q.  B.  753;  United  States  v.  Emholt.  105  125. 


494  APPEAL  AND  ERROR. 

missal  in  a  former  suit,  was  not  a  bar  to  a  second  suit  upon  the  same  cause  of 
action,  or  whether  the  law  in  respect  of  recovery  by  a  servant  against  his  master 
for  injuries  received  in  the  course  of  his  employment  was  properly  applied  on  the 
trial  of  the  case,  does  not  fall  within  the  category  of  questions  of  such  gravity 
and  general  importance  as  to  require  the  review  of  the  conclusions  of  the  circuit 
court  of  appeals  in  reference  to  them.*^*^ 

cc.  Habeas  Corpus  Proceedings. — A  case  of  habeas  corpus,  although  made  final 
by  the  effect  of  §  6  in  giving  the  circuit  court  of  appeals  jurisdiction  over  that 
class  of  cases,  is  nevertheless  reviewable  upon  certiorari.®^ 

dd.  Admiralty  Cases. — In  admiralty  cases,  among  others  enumerated,  the  de- 
cree of  the  circuit  court  of  appeals  is  made  final  in  that  court  by  the  terms  of 
section  six  of  the  judiciary  act  of  March  3,  1891,  but  this  court  may  require  any 
such  case,  by  certiorari  or  otherwise,  to  be  certified  "for  its  review  and  determina- 
tion wilh  the  same  power  and  authority  in  the  case  as  if  it  had  been  carried  by 
appeal  or  writ  of  error  to  the  supreme  court ;"  that  is,  as  if  it  had  been  brought 
directly  from  the  district  or  the  circuit  court.^^ 

ee.  Bankruptcy  Proceedings. — In  view  of  the  terms  of  the  act  and  of  the  na- 
ture o(  the  writ,  we  have  held  that  under  a  reasonable  construction  of  subdivision 
d  of  §  25  of  the  bankrupt  act,  certiorari  lies  to  decrees  of  the  circu4t  court  of 
appeals  revising  proceedings  of  the  inferior  courts  of  bankruptcy /^^ 

ff.  Where  There  Is  No  Judgment  in  Court  of  Appends. — The  writ  may  be  is- 
sued by  this  court  to  the  circuit  court  of  appeals  under  §  6  of  th€  act  of  March  3, 
1891,  on  application,  and  ordinarily  after  judgment,  in  cases  in  which  judgments 
are  made  final  in  those  courts  by  the  section,  and  also  where  questions  of  law  have 
been  certified  to  this  court  by  those  courts  for  their  guidance  in  disposing  of  such 
cases.  But  in  a  case  where  there  is  no  judgment  in  the  circuit  court  of  appeals, 
and  the  sole  question  certified  relates  to  the  jurisdiction  of  that  court,  and  it 
having  been  determined  that  jurisdiction  does  not  exist,  the  writ  of  certiorari  can- 
not properly  be  issued  to  require  the  court  to  send  up  a  cause  over  which  it  has 
no  jurisdiction  for  determination  on  the  merits.  The  remedy  is  by  writ  of  error 
from  this  court  to  the  circuit  court.'^^ 

(4)  Limitations  upon  Time  of  Application. — The  act  does  not  fix  the  time 
within  which  application  for  a  certiorari  must  be  made.  And  while  such  applica- 
tion should  be  made  with  reasonable  promptness,  if  it  is  made  during  the  term  and 
within  a  year  after  the  original  decree,  it  is  within  the  time.  The  party  complain- 
ing is  not  limited  to  the  six  months  allowed  by  §  11  of  the  court  of  appeals  act 
for  suing  out  a  writ  of  error  from  the  court  of  appeals  to  review  the  judgment  of 
the  district  or  circuit  court ;  and  it  would  seem  that  he  is,  by  analogy,  entitled  to 
the  year  within  which,  by  §  6.  an  appeal  shall  be  taken  or  writ  of  error  sued  out 
from  this  court  to  review  judgments  or  decrees  of  the  court  of  appeals  in  cases 
where  the  losing  party  is  entitled  to  such  review.'^  ^     The  fact  that  the  mandate  of 

66.  Tn  re  Woods,  143  U.  S.  202,  206,  36  71.  Spencer  v.  Dimlan  SHk  Co..  191  U. 
L.   VA.    ir>5.  S.    526,   532,    48    L.    Ed.   287,   reaffirmed   in 

67.  Lpu  Ow  Pp-^v  7'.  United  States.  144  Empire,  etc.,  Min.  Co.  v.  Bunker  Hill, 
U     S.   47.   ■^<^   L.    Ed.   340.  etc..  Min.  Co.,  200  U.  S.  613,  50  L.  Ed.  620; 

68.  Tb'^  Ti.ree  Friends.  166  U.  S.  1,  49,  Pnssell  v.  Russell,  200  U.  S.  613,  .50  L. 
41    L.    Ed.   897.  Ed.    620;    Warder    v.    Loomis,    197    U.    S. 

69.  Bryan  v.  Bernheimer.  175  U.  S.  724.  619,   49  L.   Ed.   909;   Watkins  v.   American 

44  L.  Ed.  338;  S.  C.  181  U.  S.  1S8.  46  E.  Nat.  Bank,  W9  U.  S.  599,  50  L.  Ed.  327; 
Ed.  814;  Mueller  v.  Nusjent,  180  U.  S.  640,  Transportation    Co.   v.    Mobile,    199    U.    S. 

45  L.  Ed.  711;  S.  C,  184  U.  S.  1,  46  L.  Ed.  604,  50  I,.  Ed.  330,  citing  The  Conqueror, 
405;  Louisville  Trust  Co.  7'.  ComiuQ-or,  166  U.  S.  110,  114.  41  L.  Ed.  937;  AyreS 
181  U.  S.  620.  45  L.  Ed.  1031;  S.  C,  184  7'.  Polsdorfer,  187  U.  S.  585,  595.  47  L. 
U.   S.   18.  46  L.   Ed.  413;   Holden  7'.   Strat-  Ed.   314. 

ton,   191  U.   S.  115,  119.  48  L.  Ed.   116.  re-  Where    the    iud.sfment     of      the      circuit 

affirmed    in   Hatch   7'.   Ketcham.   198   U.   S.  court  of  appeals  was  entered  December  7, 

t80.   A^  Tv.   Vc\.   1172.  1000,    and    petition    for    rehearing    denied 

TO.    O^orl   Shot  7'.  United  States,  179  U.  Fpbruarv  25.  1001.  and  a  party,  acting  un- 

S.  87,  88.  45  L.  Ed.  101.  der    the    idea    that    the    judgment    was    re- 


APPEAL  AND  ERROR. 


495 


the  circuit  court  of  appeals  to  the  district  court,  affirming  the  decree  of  that  court, 
has  gone  down,  is  immaterial.  The  transcript  of  the  record  is  still  in  the  court 
of  appeals,  and  if  a  writ  of  certiorari  can  be  issued  at  all  after  a  final  disposition 
of  the  case  in  that  court,  it  could  not  be  defeated  by  the  issue  of  a  mandate  to  the 
court  below.  That  certiorari  can  issue,  and,  indeed,  is  ordinarily  only  issued,  after 
a  final  decree  in  the  court  of  appeals,  is  settled."^ 2  Although  it  may  be  issued  be- 
fore, if  this  court  be  of  opinion  that  the  facts  of  the  case  require  an  earlier  inter- 
position.''-^ 

(5)  Reviczv  of  Interlocutory  Orders.— In.  General.— This  court  should  not  is- 
sue a  writ  of  certiorari  "to  review  a  decree  of  the  circuit  court  of  appeals  on  appeal 
from  an  interlocutory  order,  unless  it  is  necessary  to  prevent  extraordinary  incon- 
venience and  embarrassment  in  the  conduct  of  the  cause."'*  In  short,  a  writ  of 
certiorari  from  this  court  to  re-examine  the  decisions  of  the  circuit  court  of  appeals 
should  generally  be  issued  only  after  a  final  decree. "^  But  the  power  of  this  court 
in  certiorari  extends  to  every  case  pending  in  the  circuit  courts  of  appeal,  and  may 
be  exercised  at  any  time  during  such  pendency,  provided  the  case  is  one  which, 
but  for  this  provision  of  the  statute,  would  be  finally  determined  in  that  court! 
And  this  court  need  not  await  the  final  decree  in  that  court, '«.  although  this  is  a 
power  not  ordinarily  to  be  exercised,  and  is  only  to  be  exercised  in  exceptional 
cases.'"  While  this  power  is  coextensive  with  all  possible  necessities  and  suffi- 
cient to  secure  to  this  court  a  final  control  over  the  litigation  in  all  the  courts  of 


viewable  by  the  supreme  court,  obtained 
a  writ  of  error  from  that  court  April  13, 
1901.  it  was  held,  that  a  motion  for  cer- 
tiorari as  under  §  6  of  the  act  of  March 
3,  1891.  filed  October  9,  1902.  would  not 
be  entertained.  Ayers  v.  Polsdorfer,  187 
U.    S.    585,    59.'),    47    L.    Ed.    314. 

Where  judgment  was  entered  in  the 
circuit  court  of  appeals  May  22,  1902,  a 
writ  of  error  allowed  May  26,  1903,  and 
the  case  docketed  in  the  United  States 
supreme  court  June  1,  1903,  and  a  peti- 
tion for  certiorari  filed  February  17,  1905. 
it  was  held,  that  the  petition  should  not 
be  granted.  Bonin  v.  Gulf  Co.,  198  U.  S. 
115.  49  L  Ed.  970,  citing  Ayres  v.  Polsdor- 
fer.   187    U.    S.    585,    595,    47    L.    Ed.    314. 

72.  American  Construction  Co.  v.  Jack- 
sonville, etc..  R.  Co.,  148  U.  S.  372,  384, 
37  L.  Ed.  486;  The  Conqueror,  166  U.  S. 
110.  113,  41    L.  Ed.  937. 

73.  The  Three  Friends,  166  U.  S.  1.  41 
L.  Ed.  897;  The  Conqueror,  166  U.  S. 
110,    113,    114,    41    L.    Ed.   937. 

74.  American  Construction  Co.  v.  Jack- 
sonville, etc..  R.  Co.,  148  U.  S.  372,  37  L. 
Ed.  486. 

There  are  much  stronger  reasons 
against  the  interposition  of  this  court  to 
review  a  decree  made  by  the  circuit  court 
of  appeals,  on  appeal  from  an  interlocu- 
tory order,  than  in  the  case  of  a  final  de- 
cree. Before  the  act  of  1891,  as  has  been 
seen,  no  interlocutory  order  was  subject 
to  appeal,  except  as  involved  in  an  ap- 
peal from  a  final  decree.  The  only  ap- 
peal from  an  interlocutorv  order  under 
the  act  of  1891  is  that  allowed  by  §  7  to 
the  circuit  court  of  appeals,  the  same 
court  to  which  an  appeal  lies  from  the 
final  decree.  The  nuestion  whether  a  de- 
cree is  an  interlocutorv  or  a  final  one  is 
often    nice    and    difficult,    as    appears    by 


the  cases  collected  in  Keystone  Iron  Co. 
V.  Martin.  132  U.  S.  91,  33  L.  Ed.  275,  and 
in  McGourkey  v.  Toledo,  etc.,  R.  Co.,  146 
U.  S.  536.  36  L.  Ed.  1079.  Whether  an 
interlocutory  order  may  be  separately  re- 
viewed by  the  appellate  court  in  the  prog- 
ress of  the  suit,  or  only  after  and  to- 
gether with  the  final  decree,  is  a  matter 
of  procedure  rather  than  of  substantial 
right;  and  many  orders  made  in  the 
progress  of  a  suit  become  quite  unim- 
portant by  reason  of  the  final  result,  or 
of  intervening  matters.  American  Con- 
struction Co.  V.  Jacksonvill-e.  etc..  R.  Co  , 
148   U.  S.  372,  378,  37   L.    Ed.  486. 

A  decree  of  the  circuit  court  of  appeals, 
by  which,  on  appeal  from  an  int(-r!  cu- 
tory  order  of  the  circuit  court,  vacating  an 
order  appointing  a  receiver,  the  order 
appealed  from  has  been  reversed,  the  re- 
ceivership restored  and  the  :";  e- 
manded  to  the  circuit  court  to  determine 
who  should  be  receiver,  will  not  be  re- 
viewed bv  this  court  by  writ  of  cer- 
tiorari, either  because  no  appeal  lies  from 
such  m  interlocutory  order,  or  because 
the  order  appointing  tbe  receiver  was 
made  by  a  circuit  judge  when  otitside  erf 
his  circuit.  American  Construction  Co. 
V.  Jacksonville,  etc.,  R.  Co.,  148  U.  S.  372, 
37    L.    Ed.    486. 

75.  Panama  R.  Co.  v.  Napier  Shipping 
Co..  166  U.  S.  280.  41  L.  Ed.  1004,  cttieg 
The  Conqueror,  166  U.  S.  110,  41  L.  Ed. 
937. 

76.  Forsyth  v.  Hammond,  166  U.  S. 
506,  514.  41  L.  Ed.  10<)5,  reaffirmed  in 
Archer  v.  Building  &  Loan  Ass'n,  179  U. 
S.    679,    45    L.    Ed.    383. 

77.  American  Construction  Co.  v.  Jack- 
sonville Railway,  148  U.  S.  372,  .^7  L.  Ed. 
486;  The  Three  Friends,  166  U.  S.  1, 
49,    41    L.    Ed.    897. 


496  APPEAL  AND  ERROR. 

appeal,  it  is  a  power  which  will  be  sparingly  exercised,  and  only  when  the  cir- 
cumstances of  the  case  satisfy  us  that  the  importance  of  the  question  involved, 
the  necessity  of  avoiding  conflict  between  two  or  more  courts  of  appeal,  or  between 
courts  of  appeal  and  the  courts  of  a  state,  or  some  matter  affecting  the  interests 
of  this  nation  in  its  internal  or  external  relations,  demands  such  exercised* 

In  such  an  exceptional  case,  the  power  and  the  duty  of  this  court  to  require, 
by  certiorari  or  otherwise,  the  case  to  be  sent  up  for  review  and  determination, 
cannot  well  be  denied,  as  will  appear  if  the  provision  now  in  question  is  con- 
sidered in  connection  with  the  preceding  provisions  for  the  interposition  of  this  court 
in  cases  brought  before  the  circuit  court  of  appeals.  In  the  first  place,  the  circuit 
court  of  appeals  is  authorized,  "in  every  such  subject  within  its  appellate  jurisdic- 
tion," and  "at  any  time,"  to  certify  to  this  court  "any  questions  or  propositions 
of  law,"  concerning  which  it  desires  the  instruction  of  this  court  for  its  proper 
decision.  In  the  next  place,  this  court,  at  whatever  stage  of  the  case  such  ques- 
tions or  propositions  are  certified  to  it,  may  either  give  its  instruction  thereon, 
or  may  require  the  whole  record  and  cause  to  be  sent  up  for  its  consideration  and 
decision.  Then  follows  the  provision  in  question,  conferring  upon  this  court 
authority  "in  any  such  case  as  is  hereinbefore  made  final  in  the  circuit  court  of 
appeals,"  to  require,  by  certiorari  or  otherwise,  the  case  to  be  certified  to  this 
court  for  its  review  and  determination.  There  is  nothing  in  the  act  to  preclude 
Ihis  court  from  ordering  the  whole  case  to  be  sent  up,  when  no  distinct  questions 
of  law  have  been  certified  to  it  by  the  circuit  court  of  appeals,  at  as  early  a  stage 
as  when  such  questions  have  been  so  certified.  The  only  restriction  upon  the  ex- 
ercise of  the  power  of  this  court,  independently  of  any  action  of  the  circuit  court 
of  appeals,  in  this  regard,  is  to  cases  "made  final  in  the  circuit  court  of  appeals," 
that  is  to  say,  to  cases  in  which  the  statute  makes  the  judgment  of  that  court  final, 
not  to  cases  in  which  that  court  has  rendered  a  final  judgment.  Doubtless,  this 
power  would  seldom  be  exercised  before  a  final  judgment  of  the  circuit  court  of 
appeals,  and  very  rarely  indeed  before  the  case  was  ready  for  decision  upon  the 
merits  in  that  court.  But  the  question  at  what  stage  of  the  proceedings,  and  under 
what  circumstances,  the  case  should  be  required,  by  certiorari  or  otherwise,  to  be 
sent  up  for  review,  is  left  to  the  discretion  of  this  court,  as  the  exigencies  of  eacii 
ca^e  may  require.'^ 

Reversal  and  Remand. — A  writ  of  certiorari  may  be  issued  from  this  court 
to  review  a  decree  of  the  circuit  court  of  appeals  reversing  a  decree  of  the  circuit 
court  and  remanding  the  case  for  further  proceedings.*^'  But  generally  it  should 
not  be  issued  in  such  case.*^  Where  the  record  presents  the  whole  case  to  the 
circuit  court  of  appeals  in  such  way  that  it  might  properly  have  been  finally  dis- 
posed of  by  that  court  on  its  merits,  the  supreme  court  may  review  the  decision 
upon  certiorari,  notwithstanding  the  fact  that  the  decree  of  the  circuit  court  of 

78.    Forsyth  v.  Hammond,  166  U.  S.  506.  overcharges    on     the      transportation      of 

514,    515,   41    L.    Ed.    1095,     reaffirmed      in  corn,  and   recovered  judgment,   to   each  of 

Archer  v.  Building  &  Loan  Ass'n,   179  U.  which    judgments    defendant    sued    out    a 

S.    679,    45    L.    Ed.    383.  writ    of    error    to   the    circuit    court    of   ap- 

7S.    American   Construction  Co.  v.  Jack-  peals.      The   cases    being  heard   there,   the 

sonville,  etc.,  Co.  148  U.  S.  37'2.  37  L.   Ed.  judgment  in  each  was   reversed,  upon  the 

37    L.    Ed.    486,    followed    in    Forsyth    v.  ground    that    the    jury    should    have    been 

Hammond.  166  U.   S.   506.  41  L.   Ed.   1095.  instructed    to    find    a    verdict    for    the   de- 

SO.    Forsyth    v.    Hammond,    166    U.    S.  fendant,  and  the  cases  were  remanded  for 

506,   41    L.    Ed.    1095;    Archer   v.    Building  further   proceedings    in    accordance    there- 

&   Loan   Ass'n,   179   U.    S.    679,   45    L.    Ed.  with.     On  petitionis  for  writs  of  certiorari 

383.  to   the    court   of   appeals   to   bring   up   the 

81.     Chicago,    etc..    R.    Co.    v.    Osborne,  records    and    proceedings,    held,    that    the 

146  U.   S.  354.  36   L.   Ed.   1002;   Forsyth  v.  petitions  should  be  denied.       Chicago,  etc., 

Hammond,   166  U.  S.  506,  41   L.   Ed.   10£(5;  R.    Co.    v.    Osborne.    146   U.    S.    354.   36    L. 

Taylor  v.    Louisville,   etc.,   R.   Co..   172   U.  Ed.    1002,    citing    McLish   v.    Roflf.    141    U. 

S.    647,    648,    43    L.    Ed.    1182.  S.  661,  35  L.  Ed.  893;   Rice  v.   Sanger,  144 

In    each    of    these    cases    defendant    in  U.   S.   197,   36   L.     Ed.     403;      Meagher     v. 

error  sued  plaintifiF  in  error  under  tie  iii-  Minnesota   Thresher,  Mfg.   Co.,   145   U.   S. 

terstate   commerce  act,  to   recover  alleged  608,   36   L.   Fd.   834. 


APPEAL  AND  ERROR.  497 

appeals  was  not  final,  but  only  reversed  the  order  of  the  circuit  court  granting  a 
preliminary  in j unction. ■'^- 

Because  the  circuit  court  of  appeals  decides  erroneously  in  determining 
the  matter  on  an  interlocutory  appeal,  that  affords  no  ground  for  the  extraordinary 
interposition  of  this  court  by  certiorari  or  mandamus. ^^ 

(6)  Reviezv  of  Questions  of  Fact. — Where  pure  questions  of  fact,  such  as 
questions  of  payment,  and  of  accord  and  satisfaction,  depending  on  conflicting 
evidence  and  on  the  peculiar  circumstances  of  the  case,  are  the  only  questions  pre- 
sented by  the  record,  a  writ  of  certiorari  will  not  be  granted. ^''^ 

(7)  Assignment  of  Errors. — On  the  hearing  of  a  case  brought  up  by  certiorari 
from  a  circuit  court  of  appeals,  under  the  judiciary  act  of  March  3,  1891.  ch.  517, 
§  6,  26  Stat.  826.  828,  which  provides  that  "any  case  in  which  the  judgments  or 
decrees  of  the  circuit  court  of  appeals  are  thereby  made  final,  may  be  required, 
by  certiorari  or  otherwise,  to  be  certified  to  this  court  'for  its  review  and  deter- 
mination, with  the  same  power  and  authority  in  the  case  as  if  it  had  been  earned 
by  appeal  or  writ  of  error  to  the  supreme  court,'  "  this  court  will  confine  itself 
to  an  examination  only  of  errors  assigned  by  the  petitioner. ^'*-'» 

(8)  The  Record. — Under  the  third  subdivision  of  rule  37  of  this  court,  provid- 
ing that  where  application  is  made  for  certiorari  under  §  6  of  the  judiciary  act 
of  March  3,  1891.  "a  certified  copy  of  the  entire  record  of  the  case  in  the  circuit 
court  of  appeals  shall  be  furnished  to  this  court  by  the  applicant,  as  part  of  the 
application."  it  was  held,  that  where  the  record  has  been  prepared  for  the  printer, 
indexed,  the  printing  supervised,  and  copies  thereof  distributed  by  the  clerk  of 
the  circuit  court  of  appeals,  and  the  clerk  having  been  paid  therefor,  the  rule  is 
fully  complied  with  by  the  certificate  of  that  clerk  to  one  of  the  printed  copies 
which  he  had  so  prepared,  indexed,  supervised  and  distributed,  and  which  he 
knew  was  an  accurate  transcript  of  the  record  from  the  circuit  court,  because  it  is 
shown,  and  is  not  denied,  that  the  printed  copies  furnished  this  court  are  in  fact 
correct  copies  of  the  circuit  court  record,  and  this  court  will  treat  them  as  if  that 
record  had  been  duly  certified  to  us  by  the  clerk  of  the  circuit  court  of  appeals. ^^ 
A  writ  of  certiorari  from  the  circuit  court  of  appeals  to  perfect  the  record  by 
supplving  alleged  omissions  therein;  does  not  operate  to  bring  the  case  before  this 
court,  or  in  itself  to  add  any  support  to  the  appeal,  which  must  stand  or  fall  ac- 
corrlingly  as  the  circuit  court  of  appeals  act  of  Alarch  3.  1891.  c.  317.  §  6.  did  or 
did  not  allow  an  appeal  to  be  taken. ^' 

(9)  Scope  of  Reviezv. — \\'here.  after  a  second  appeal  has  been  taken  from  a 
district  court  to  a  circuit  court  of  apneals.  this  court,  in  the  exercise  of  its  super- 
visory jurisdiction,  issues  a  writ  of  certiorari  to  bring  up  the  whole  record,  upon 
such  writ  the  entire  case  is  before  us  for  examination.^* 

(10)  Rendering  and  Ordering  Final  Judgment. — Where  the  record  in  the  cir- 
cuit court  of  appeals  presented  the  whole  case  to  that  court  so  that  it  might  properly 
have  been  finallv  disposed  of  by  its  decree,  although  it  only  reverses  the  order  of 
the  circuit  court  granting  a  preliminarv  injunction,  the  supreme  court,  on  cer- 
tiorari, may  do  what  the  circuit  court  of  appeals  misfht  have  done ;  that  is,  finally 
dispose  of  the  case  by  direction  to  the  circuit  court. ''^ 

e.  Simultaneous  Appeal  and  Certiorari. — The  decision  of  the  court  of  appeals 

82.  Harriman  v.  Northern  Securities  87.  Hnguley  IMfg.  Co.  v.  Galeton  Cot- 
Co..  197  U.  S.  244,  49  L.  Ed.  730.  U^v    Mills,    184    U.    S.    290.    46    L.    Ed.    54r,. 

8S.    American   Construction   Co.  z'.  Jack-  reat^firmed   i'"   Harding  v.   Hart.   187   U.   S. 

sonville,  etc.,  R.   Co..   148  U.    S.   37'?.  37   L.  638.  47  L.   Ed.  344. 

Ed.  486.  88.    Panama   P.   Co.  v.   Napier   Shipping 

84.  Crr-c  -,pin  j;  Burrill.  179  U.  S.  100,  Co.,  166  U.  S.  280.  41  L.  Ed.  1004.  dis- 
45  L.   Ed.   106.  tinguishing  The   Lady  Pike,  96  U.   S.  461, 

85.  Hubbard   v.   Tod.    171    U.    S.    474,   494.        24    L.    Ed.    672. 

43  L.   Ed.  246.  89.     Harriman    t'.     V^rtbern      Securities 

86.  Toledo,   etc..    f?.    Co.   v.    C^nHnpntal        Co.,   197   U.   S.   244.   49   L.    Ed.  739. 
Trust  Co.,  176  U.   S.  219,  44  L.   Ed.  442. 

1  U  S  Enc— 32 


493  APPEAL  AND  ERROR. 

can  be  brought  to  this  court  either  by  writ  of  error  or  certiorari. ^*^  Upon  an  ap- 
peal from  and  a  certiorari  to  a  circuit  court  of  appeals,  if  the  case  is  not  appeal- 
able but  is  one  in  which  the  writ  of  certiorari  should  be  allowed,  the  appeal  will 
be  dismissed  and  the  application  for  certiorari  granted,  and  the  record  filed  witli 
the  appeal  treated  as  a  return  to  the  writ  of  certiorari. ^^  Where  upon  a  writ  of 
error  and  certiorari  from  the  supreme  court  to  the  circuit  court  of  appeals,  the 
writ  of  error  is  dismissed,  and  the  writ  of  certiorari  granted,  the  record  of  the 
writ  of  error  may  stand  as  a  return  to  the  certiorari. ^^ 

f.  Construction  of  Words  "Or  Otherwise." — In  all  cases  where  the  decree  or 
judgment  of  the  circuit  court  of  appeals  is  made  final  by  the  statute,  an  appeal 
does  not  lie,  but  any  such  case  may  be  brought  here  "by  certiorari  or  otherwise." 
The  latter  words  add  nothing  to  our  power,  for  if  some  other  order  or  writ  might 
be  resorted  to,  it  would  be  ejusdem  generis  with  certiorari.  The  writ  is  the  equiv- 
alent of  an  appeal  or  writ  of  error  as  declared  by  the  statute,  and  it  is  issued  in  the 
discretion  of  the  court. ^"^ 

4.  Over  Courts  of  the  District  oe  Columbia. — a.  Right  to  Appellate 
Rcvieiv. — Review  of  Judgments  of  Eistrict  Court. — Under  an  act  passed 
in  1801,  organizing  for  the  district  the  circuit  court  of  the  District  of 
Columbia,  it  was  held,  that  where  a  case  has  been  tried  in  the  dis- 
trict court  of  the  District  of  Columbia,  the  judgment  or  decree  rendered 
therein  must  be  reviewed  by  the  supreme  court  of  the  district,  before 
the  case  can  be  brought  before  this  court  for  examination,'^^  because  "our 
province  is  to  exercise  appellate  jurisdiction  touching  the  proceedings  of  the  su- 
preme court  of  the  district.  We  can  examine  those  of  the  district  court  only  after 
they  have  been  the  subject  of  review  by  the  supreme  court,  and  then  only  in 
connection  with  the  action  of  that  court  in  affirr^ing  or  reversing  them.  We 
cannot  regard  them  until  they  have  received  the  impress  of  the  judgment  of  the 
higher  local  courts."^"' 

Under  Circuit  Court  of  Appeals  Act. — The  jurisdiction  of  this  court  over 
the  courts  of  the  District  of  Columbia,  cannot  be  based  upon  anything  contained 
in  the  act  of  March  3,  1891,  because  no  mention  of  the  courts  of  the  district  is 
made  in  that  act,  and  there  is  nothing  in  the  eighth  section  to  justify  its  expansion 
so  as  to  embrace  the  provisions  of  that  act.^*' 

Since  the  passage  of  the  act  of  February  9,  1893,  establishing  the  court 
of  appeals  for  the  District  of  Columbia,  the  supreme  court  of  the  United  States, 
generally   speaking,   and  not  including  cases  arising  under   the   bankruptcy  law, 

90.     Montana     Min.     Co.    v.     St.     Louis,  S.  204,  51  L.  Ed.  444.  citing  Pullman's  Pal- 

et-..  Co.,  ?04  U.  S.  204,  51  L.  Ed.  444.  ace    Car    Co.    v.    Central    Transportation 

Where    litigation    has    been     twice     be-  Co.,  171  U.  S.   138,  43   L.  Ed.   108. 

fore    this    court,    has   been    protracted    for  91.    Farrell  v.   O'Brien,  199  U.  S.  89,  50 

many  years,  involves  a  large  amount,  and  L.  Fd.  101.     See  Pullman's  Palace  Car  Co. 

also  presents   questions   of  federal   mining  v.    Central   Transportation    Co..   171   U.   S. 

law,    and     is     other-R-ise     of     gre'at     impor-  138,  43   L.   Ed.  108. 

tance,  the  case   ought   to  be  brouaht   here  92.     Cochran    v.    ^^f^ntgomery     County, 

by   writ   of   certiorari,   and    this    court   will  199  U.  S.  260,  50  L.  Ed.  182. 

not  stop  to  consider  in  such  case  whether  93.    Hugulev    Mfg.    Co.   r.    Galetnn    C-^t- 

the    jurisdiction    of    the    circuit    court    de-  ton    Mills,    184    U.    S.    290,    295,    46    L.    Ed. 

pended    alone    on    diverse    citizenship,    in  546,    reaffirmed    in    Harding    v.    Hart,    187 

which    case    the    decision   of   the    court    of  U.  S.  638,  47  L.  Ed.  344. 

apneals  will   be   final,   and   the   case   could  94.     G^rnett   v.   United    States,   11   Wall, 

only    be    brought    here    on    certiorari,    or,  256,   20   L.    Ed.   79,   c'tino^   Ex   parte   Brad- 

on  the  other  hand,  whether  a  federal  ques-  lev.  7  Wall.   364,  19  L.  Ed.  214. 

tion   was   involved,  in   which   case   the   de-  95.    Garnett   v.   United    States,   11   Wall. 

cision    of    the    circuit     court      of      apneals  256.  258,  259,  20  L.   Ed.  79. 

would   not   be   final,   and    in    which    case    it  96.     Chapman    v.   Ignited    States,    164   U. 

could  only  be   brought  here  on  a  writ   of  S.   436.   41    L.   Ed.   504;    Prather  v.   United 

error,    esoecially   where   both   the    writ    of  States,   164   l'.    S.   4!i2,    41    L.    Ed.   510;   In 

error  and   the   writ   of  certiorari  had   been  re    Heath.    144    U.    S.    92,    36    L.    Ed,    358; 

taken   to   the   court   of   appeals.      Montana  Fall-   ?■.    United   States,    180   U.    S.   636,  45 

Min.    Co.    V.    St.    Louis,    etc.,    Co..    204    U.  L.    Ed.    709. 


APPEAL  AND  ERROR. 


499 


cannot  review  the  judgments  and  decrees  of  the  supreme  court  of  the  district, 
directly  by  appeal  or  writ  of  error. '^^ 

b.  What^Law  Governs— (1)  In  Genera!.— By  the  eleventh  section  of  12  Stat, 
at  Large.  764,  it  was  provided  that  writs  of  error  from  this  court  to  the  courts  of 
this  district  are  governed  by  the  same  rules  and  regulations  as  are  writs  of  error 
from  this  court  to  the  circuit  courts  of  the  United  States. ^^ 

(2)  Effect  of  State  Laws. — The  early  decisions  of  this  court  held  that  the  right 
lo  a  writ  of  error  exists  by  virtue  of  the  appellate  power  of  this  court  as  defined 
in  the  act  of  1801.  creating  the  circuit  court  of  the  district;  and  we  are  governed 
by  the  same  act  regardless  of  any  state  statutes  to  the  contrary.^^ 

In  Cases  Where  Bank  of  Alexandria  Is  Plaintiff  .—Thus,  an  appeal  or  writ 
of  error  lies  from  the  judgment  of  the  circuit  court  of  the  District  of  Columbia, 
lo  this  court,  in  cases  where  the  bank  of  Alexandria  is  plaintitT,  and  the  judg- 
ments below  are  in  its  favor,  notwithstanding  the  clause  in  its  charter  to  the 
contrary.  "The  mere  saving  in  an  act  of  congress  which  expressly  renders  all 
judgments  of  the  circuit  court,  for  a  larger  sum  than  one  hundred  dollars,  re- 
examinable  by  writ  of  error  in  this  court,  cannot  be  considered  as  exempting  jud^^ 
ments  rendered  in  favor  of  the  bank,  from  the  operation  of  this  general  enacting 
clause  respecting  writs  of  error.  If  the  act  of  March,  1801,  be  considered  as  giv- 
ing the  bank  a  right  to  proceed  in  the  circuit  court  for  Alexandria  in  the  same 
manner  as  by  the  act  of  incorporation,  it  might  proceed  in  Virginia,  yet  that  act 


97.  Ex  parte  Massachusetts.  197  U.  S. 
483.    49    L.    Ed.    845. 

98.  Law  regulating  appeals  from  cir- 
cuit court  governs. — Brown  ?■.  Wilej',  4 
Wall.  165.  IS  L.  Ed.  384;  Thompson  v. 
Riggs,  5  Wall.  66.3,  676,  18  L.  Ed.  704; 
Pomerov  z'.  Bank  of  Indiana.  1  Wall.  592, 
597,  17  L.  Ed.  638;  Stanton  7:  Embrey,  93 
r.    S.    548,    555,    23    L.    Ed.    983. 

Writs  of  error  and  appeal,  under  the 
prior  law,  applicable  to  the  district,  were 
required  to  be  prosecuted  in  the  same 
manner  and  under  the  same  regulations 
as  in  case  of  writs  of  error  and  appeals 
from  judgments  and  decrees  rendered  in 
the  circuit  courts  of  the  United  States. 
2  Stat.  106:  United  States  v.  Hooe,  1 
Cranch  318.  2  L.  Ed.  121.  Important 
changes  were  undoubtedly  made  by  the 
act  reorganizing  the  courts  of  the  dis- 
trict; but  the  eleventh  section  provides 
that  any  final  judgment,  order,  or  decree 
of  said  court  may  be  re-exammed  and  re- 
Versed  or  affirmed  in  the  supreme  court 
of  the  United  States  upon  writ  of  error 
or  appeal,  in  the  same  cases  and  in  like 
manner  as  is  now  provided  b}'  law  in 
reference  to  the  final  judgments,  orders, 
!ind  decrees  of  the  circuit  court  of  the 
the  United  States  for  the  District  of  Co- 
h'mbia.  12  Stat.  764.  Stanton  v.  Embrey. 
n  U.    S.    548,   554,   23    L.    Ed.    983. 

The  eleventh  section  of  13  Stat,  at 
Large  764,  provides  that  any  final  judg- 
ment, order,  or  decree  of  the  supreme 
court  of  the  District  of  Columbia  may 
be  re-examined,  and  reversed  or  affirmed, 
m  the  supreme  court  of  the  United  States 
upon  writ  of  error  or  appeal  in  the  same 
cases  and  in  like  manner  as  is  now  pro- 
vided by  law  in  reference  to  the  final 
ludgments.  orders,  or  decrees  of  the  cir- 
cuit  court   of  the   United    States   for   this 


district.  Writs  of  error  and  appeals  were 
required  to  be  prosecuted  under  that  law. 
in  the  same  manner,  and  under  the  same 
regulations  as  in  the  case  of  writs  of  er- 
ror or  appeals  from  judgments  and  de- 
crees rendered  in  the  circuit  court  of  the 
United  States.  2  Stat,  at  Large  106; 
United  States  v.  Hooe,  1  Cranch  318,  2 
L.  Ed.  131.  Conclusion  is,  that  the  regu- 
lations respecting  the  removal  of  cases 
from  the  supreme  court  of  this  district, 
on  writs  of  error  or  appeal,  are  the  same 
as  from  the  circuit  courts  of  the  United 
States.  Thompson  r-  Riggs.  5  Wall.  663, 
676.    18    L.    Ed.    704. 

The  act  wh'ch  created  the  supreme 
court  of  the  District  of  Columbia  vested 
in  it  the  same  powers  and  jurisdiction  that 
had  previously  belonged  to  the  circuit 
court,  which  it  superseded,  and  the  ap- 
pellate power  of  this  court  was  declared 
to  be  the  same  as  that  which  it  had,  by 
law.  over  the  circuit  court.  The  act  of 
February  27th,  1801,  organizing  the  cir- 
cuit court,  declares  that  any  final  judg- 
ment, order,  or  decree  in  said  circuit 
court,  where  the  matter  in  dispute,  ex- 
clusive of  costs,  shall  exceed  the  value  of 
one  hundred  dollars,  may  be  re-examined 
and  reversed  or  affirmed  in  the  supreme 
court  of  the  United  States  by  writ  of  er- 
ror or  appeal,  and  though  the  sum  limit- 
ing this  jurisdiction  has  been  increased 
to  $1,000.  this  statute  remains  the  sole 
rule  governing  the  ricjht  of  appeal  in  all 
other  respects.  Baltimore,  etc.,  R.  Co. 
TV  Sixth  Pre<=bvterian  Church,  19  Wall, 
62,  63,  22  L.   Ed.  97. 

99.  Baltimore,  etc..  R.  Co.  v.  Sixtli 
Presbvterian  Church.  19  Wall.  62.  22  L. 
Ed.  97.  following  Carter  v.  Cutting,  8 
Cranch    251,    3    L.    Ed.    553. 


500 


APPEAL  AND  ERROR. 


does  not  affect  the  writ  of  error  as  given  in  the  act  of  the  27th  of  February."^ 

(3)  Rcviezv  of  Decisions  of  Court  of  Appeals. — When  both  the  proceeding  by 
appeal  and  that  by  writ  of  error  were  allowed,  the  jurisdiction  of  this  court  to 
review  the  judgments  and  decrees  of  the  court  of  appeals  of  the  District  of  Co- 
himbia  was  regulated  by  §  233  of  the  Code  of  the  District  of  Columbia.  31  Stat. 
1189,  1227.  In  effect  that  section  was  but  a  re-enactment  of  the  then-existing  pro- 
visions of  the  eighth  section  of  the  act  of  February  9,  1893,  which  act  established 
the  court  of  appeals  of  the  District  of  Columbia.  By  said  section  of  the  Code, 
the  power  of  this  court  to  review  by  writ  of  error  or  appeal  the  judgments  or 
decrees  of  the  court  of  appeals,  excluding  certain  exceptional  and  enumerated 
cases,  is  limited  to  cases  where  the  matter  in  dispute,  exclusive  of  costs,  exceeds 
the  sum  of  five  thousand  dollars,  and  such  power  to  review  is  to  be  exerted  only 
in  the  same  manner  and  under  the  same  regulations  as  theretofore  prevailed  before 
the  organization  of  the  court  of  appeals  in  cases  of  writs  of  error  on  judgments 
or  appeals  from  decrees  rendered  in  the  supreme  court  of  the  District  of  Co- 
lumbia.- 

c.  Proceedings  Reviezvahle — (1)  Probate  Proceedings. — A  proceeding  involving 
the  validity  of  the  probate  of  wills,  and  proceedings  involving  the  validity  of  an 
instrument  oft'ered  for  probate  as  a  will,  both  constitute  a  "case"  within  the 
meaning  of  the  act  of  congress  defining  the  jurisdiction  of  this  court  over  the 
final  judgments  and  decrees  of  the  supreme  court  of  the  District  of  Columbia.^ 

(2)  Criminal  Proceedings. — In  General. — No  appeal  or  writ  of  error  lies  from 
the  judgments  of  the  courts   of  the  District  of  Columbia  in  criminal  cases.-* 


1.  Young  V.  Bank,  4  Cranch  384.  2  L. 
E4.  655. 

2.  Metropolitan  R.  Co.  v.  District  of 
Columbia,  195  U.  S.  322,  328.  49  L.  Ed. 
219. 

3.  Ormsby  v.  Webb,  134  U.  S.  47,  33 
L.  Ed.  805.  citing  Carter  v.  Cutting,  8 
Cranch    251,   3    L.    Ed.    553. 

An  appeal  lies  to  this  court  from  the 
sentence  of  the  circuit  court  of  the  Dis- 
trict of  Cohimbia  affirming  the  sentence 
of  the  Orphan's  Court  of  Alexandria 
county,  which  dismissed  a  petition  to  re- 
voke the  probate  of  a  will.  "We  are  of 
the  opinion  that  the  conclusiveness  of  its 
sentence  forms  no  part  of  the  essence 
of  the  powers  of  the  court."  Carter  v. 
Cutting,  8  Cranch  251,  3  L.  Ed.  553,  re- 
viewed in  Ormsby  v.  Webb.  134  U.  S. 
47,    33    L.    Ed.    805. 

4.  United  States  v.  More,  3  Cranch  159, 
2  L.  Ed.  397;  Cross  v.  United  States,  145 
U.    S.    571,   36   L.    Ed.   821. 

United  States  v.  More,  3  Cranch  159, 
2  L.  Ed.  397,  was  decided  in  February, 
1805.  and  from  that  time  it  has  been  as- 
sumed that  criminal  cases  could  not  be 
brought  from  the  courts  of  the  district  to 
Ais  court.  Cross  v.  United  States,  145 
U.    S.    571,   574,   36   L.    Ed.   821. 

We  have  held,  that  this  court  has  no 
jurisdiction  to  grant  a  writ  of  error  to 
review  the  judgments  of  the  supreme 
court  of  the  district  in  criminal  cases, 
either  under  the  judiciarv  act  of  March  3. 
1891  (26  Stat.  826,  c.  517);  or  under  the 
act  of  congress  of  February  6,  1889  (25 
Stat.  655.  c.  113),  or  any  other.  In  re 
Heath,  144  U.  S.  92,  36  L.  Ed.  358;  Cross 
v.  United  States,  145  U.  S.  571,  36  L.  Ed. 


821;  Cross  v.  Burke,  146  U.  S.  82,  84,  Zt 
L.  Ed.  896;  In  re  Lennon,  150  U.  S.  393. 
397.   37   L.   Ed.   1120. 

We  have  heretofore  decided  that  this 
court  has  no  appellate  juri-diction  over 
the  judgments  of  the  supreme  court  of 
the  District  of  Columbia  in  criminal  cases 
or  on  habeas  corpus.  In  re  Heath.  144 
U.  S.  92.  36  L.  Ed.  358;  Cross  v.  United 
States,  145  U.  S.  571,  36  L.  Ed.  821;  Cross  ■ 
r.  Burke.  146  U.  S.  82.  36  L.  Ed.  896;  In 
re  Chapman,  156  U.  S.  211,  215,  39  L. 
Ed.    401. 

It  was  held,  in  Ex  parte  Bigelow.  113 
U.  S.  328.  329,  28  L.  Ed.  1005,  that  no 
appeal  could  be  taken  or  writ  of  error 
sued  out  to  the  supreme  court  of  the  Dis- 
trict of  Columbia  in  a  capital  case,  the 
court  saying:  "No  appeal  or  writ  of  er- 
ror in  such  case  as  that  lies  to  this  court. 
The  act  of  congress  has  made  the  judg- 
ment of  that  court  c*3nclusive,  as  it  had 
a  right  to  do,  and  the  defendant,  having 
one  review  of  his  triyl  and  judgment,  has 
no  special  reason  to  complain."  In  re 
Heath,  144  U.  S.  92.  S6  L.  Ed.  358;  Cross 
V.  Burke,  146  U.  S.  82,  84,  36  L.  Ed.  896; 
Brown  v.  United  States,  171  U.  S.  631, 
637,    43    L.     Ed.    312. 

Section  8  of  the  act  of  February  27,  lWi» 
c.    15,     entitled     "An     act     concerning    the      I 
District    of    Columbia."    2    Stat.    103.    and 
creating    a    circuit    court    for    the    district, 
provided:      "That   any   final   judgment,  or-      , 
der  or  decree  in  said  circuit  court,  wherei»     | 
the   matter  in   dispute,   exclusive   of  costs,  '  { 
shall    exceed    the    value    of    one    htKidred     ' 
dollars,  may  be  re-examined  and  reversed     { 
or   affirmed   in   the   supreme   court   of  the 
United  States,  by  writ  of  error  or  appeal, 


APPEAL  AND  ERROR. 


501 


Certificate  of  Division  of  Opinion.— By  §§  651  and  697  of  the  Revised  Stat- 
utes, provision  was  made  for  a  review  of  questions  arising  in  criminal  cases  under 
certificates  of  division  of  opinion,  and  this  was  so  provided  as  early  as  1802.  Act 
of  April  29,  1802,  §  6,  2  Stat.  156,  159,  c.  31.  But  this  provision 'has  never  been 
supposed   to  refer  to  the  courts  of  the  District  of  Columbia.^ 

The  act  of  March  3,  1891,  was  passed  to  faciliiate  the  prompt  disposition 
of  cases  in  this  court  and  to  relieve  it  of  the  oppressive  burden  of  general  litiga- 
tion by  the  creation  of  the  circuit  court  of  appeals  and  the  distribution  of  the 
appellate  jurisdiction,  and  such  act  cannot  be  invoked  in  order  to  give  this  court 
appellate  jurisdiction  over  judgments  of  the  supreme  court  of  the  District  of 
Columbia  in  criminal  cases,  although  §  846  of  the  Revised  Statutes  of  the  Dis- 
trict of  Columbia,  provides  that  "Any  final  judgment,  order  or  decree  of  the 
supreme  court  of  the  district  may  be  re-examined  and  reversed  or  affirmed  in  the 
supreme  court  of  the  United  States  upon  writ  of  error  or  appeal,  in  the  same 
cases  and  in  like  manner  as  provided  by  law  in  reference  to  the  final  judgments, 
order  and  decrees  of  the  circuit  court  of  tlie  United  States."'^ 

The  act  of  congress  of  February  6,  1889,  entitled  "An  act  to  abolish  circuit 


^'hich  shall  be  prosc'^nted  in  the  same 
manner,  under  the  same  regulations,  and 
the  same  proceedings  shall  be  had  therein, 
as  is  or  shall  be  provided  in  the  case  of 
writs  of  error  on  judgments,  or  appeals 
Upon  orders  or  decrees,  rendered  in  the 
circuit  court  of  the  United  States.''  In 
United  States  v.  More.  3  Cranch  159,  173, 
2  L.  Ed.  397  (decided  in  1805\  it  was 
held,  that  this  court  had  no  jurisdiction 
Under  that  section  over  the  judgments  of 
the  circuit  court  of  the  district  in  crimi- 
nal cases,  and  Chief  Justice  INIarshall 
said:  "On  examining  the  act,  'concern- 
ing the  District  of  Columbia.'  the  court 
is  of  opinion,  that  the  appellate  jurisdic- 
tion, granted  by  that  act,  is  confined  to 
civil  cases.  The  words,  "matter  in  dis- 
pute,' seem  appropriated  to  civil  cases, 
Khere  the  subject  in  contest  has  a  value 
beyond  the  sum  mentioned  in  the  act. 
But,  in  criminal  cases,  the  question  is  the 
guilt  or  innocence  of  the  accused.  And 
although  he  may  be  fined  upwards  of  one 
hundred  dollars,  yet  that  is,  in  the  eye 
of  the  law.  a  punishment  for  the  oflfense 
committed,  and  not  the  particular  object 
of  the  suit."  Chapman  v.  United  States, 
164  U.  S.  436,  446,  41  L.  Ed.  504;  Falk  v. 
United  States.  180  U.  S.  636,  45  L.  Ed. 
709. 

5.  Cross  V.  United  States,  145  LJ.  S. 
571,   574,   36    U    Ed.   821. 

6.  In  re  Heath,  144  U.  S.  92,  36  U  Ed. 
3.^8,  distinguishing  Wales  v.  Whitney, 
114  U.    S.    564,   29    L.    Ed.    277. 

By  section  five  of  the  judiciary  act  of 
March  3,  1891,  26  Stat.  826.  c.  5"l7,  it  is 
provided  that  appeals  and  writs  of  error 
fnay  be  taken  "from  the  district  courts 
or  from  the  existing  circuit  courts  di- 
rectly to  this  court  in  cases  of  conviction 
of  a  capital  or  otherwise  infamous  crime;" 
and  we  have  been  constrained  to  hold 
that  the  judgments  of  the  supreme  court 
of  the  District  of  Columbia  in  criminal 
cases  are  not  embraced  by  the  provisions 
of  that   section.     In   re    Heath,    144   U.    S. 


92,  36  U  Ed.  358;  Cross  v.  United  States, 
145    U.    S.    571.    574.    36    L.    Ed.    821. 

The  act  of  March  -3,  1891,  was  passed 
to  facilitate  the  prompt  disposition  of 
cases  in  this  court  and  to  relieve  it  from 
the  oppressive  burden  of  general  litiga- 
tion by  the  creation  of  the  circuit  courts 
of  appeals  and  the  distribution  of  the  ap- 
pellate jurisdiction.  By  sections  five  and 
six,  cases  of  conviction  of  a  capital  or 
otherwise  infamous  crime  are  to  be  taken 
directly  to  this  court,  and  all  other  cases 
arising  under  the  criminal  laws  to  the 
circuit  courts  of  appeals.  Sections  thir- 
teen and  fifteen  refer  to  appeals  and  writs 
of  error  from  the  decisions  of  the  United 
States  court  in  the  Indian  territory  and 
the  judgments,  orders  and  decrees  of  the 
supreme  courts  of  the  territories.  No 
mention  is  made  of  the  supreme  court  of 
the  District  of  Columbia,  and  we  per- 
ceive no  ground  for  holding  that  the 
judgments  of  that  court  in  criminal  cases 
were  intended  to  be  embraced  by  its  pro- 
visions. In  re  Heath,  144  U.  S.  92,  96. 
36    U    Ed.    358. 

"We  have  decided  that  this  court  has 
no  jurisdiction  to  grant  a  writ  of  error  to 
review  the  judgments  of  the  supreme 
court  of  the  District  of  Columbia  in 
criminal  cases  either  under  the  judiciary 
act  of  March  3.  1891,  c.  517,  26  Stat.  826, 
In  re  Heath,  144  U.  S.  92,  36  U  Ed.  358; 
or  under  the  act  of  February  6.  1889,  c. 
113.  25  Stat.  655,  Cross  v.  United  States, 
145  U.  S.  571,  36  L.  Ed.  821;  or  on  habeas 
corpus.  Cross  v.  Burke,  146  U.  S.  82.  36 
L.  Ed.  896.  And  although  the  validity 
of  any  patent  or  copyright,  or  of  a  treaty 
or  statute  of,  or  an  authority  exercised 
under,  the  United  States,  was  not  drawn 
in  ouesti^n  in  those  cases,  it  was  dis- 
tinctly ruled  in  reaching  the  conclusions 
announced  that  neither  of  the  sections 
of  the  act  of  March  3,  1885,  applied  to 
?ny  criminal  case;  and  Farnsworth  v. 
M'^ntana.  129  U.  S.  104.  32  L.  Ed.  616; 
United    States    v.    Sanges,    144   U.    S.    310, 


502 


APPEAL  AND  ERROR. 


court  powers  of  certain  district  court  of  the  United  States  and  to  provide  for  writs 
of  error  in  capital  cases  and  for  other  purposes,"  does  not  authorize  a  writ  of 
error  from  this  court  to  the  supreme  court  of  the  District  of  Cohunbia,  to  review 
a  judgment  of  that  court  in  a  capital  case." 

Under  Act  of  February  9,  1893. — This  court  has  no  jurisdiction  to  review 
on  writ  of  error  a  judgment  of  the  court  of  appeals  of  the  District  of  Columbia 
in  a  criminal  law  case  under  §  8  of  February  9,  1893,  c.  74,  establishing  that 
court.8  And  as  §  8  of  the  act  of  February  9,  1893,  and  §  233  of  the  act  of  March 
3,  1901,  are  in  substance  the  same,  they  must  bear  the  same  construction. ^ 

Small  Offenses. — The  rule  that  applies  to  capital  cases  and  infamous  crimes 
applies  to  criminal  offenses  over  which  the  police  court  of  the  District  of  Co- 
lumbia exercises  jurisdiction.^" 

By  Certiorari. — By  an  act  approved  March,  1897,  this  court  was  authorized 
to  issue  writs  of  certiorari  in  cases  made  final  in  the  court  of  appeals  of  the  Dis' 
trict  of  Columbia  to  bring  them  up  for  review  and  delermination.  This  was 
carried  forward  into  §  234  of  the  District  Code,  and  under  this  act  this  court. 
has  reviewed  the  judgments  of  the  court  of  appeals  in  criminal  cases  on  a  cer- 
tiorari granted  under  the  act.^^  A  certiorari  can  be  issued  only  when  a  writ  of 
error  cannot ;  on  the  other  hand,  it  will  not  be  issued  merely  because  a  writ  of 
error  will  not  lie.i-  A  writ  of  certiorari  will  not  be  granted  by  this  court  to 
review  a  judgment  of  tlie  court  of  appeals  of  the  District  of  Columbia  in  a  crim- 
inal case  under  §  6  of  the  circuit  court  of  appeals  act,  where  the  question  involved 
was  not  one  of  gravity  and  general  importance :  where  there  is  no  conflict  be- 
tween the  decisions  of  the  state  and  federal  courts  or  between  those  of  federal 
courts  of  different  circuits :  and  where  there  is  nothing  affecting  the  relations  of 
this  nation  to  foreign  nations,  and  indeed  no  matter  of  general  interest  to  the 
public  is  involved. ^^ 

(3)  Habeas  Corpus  Proceedings. — This  court  has  no  appellate  jurisdiction  to 
review   the    judgments   of   the   supreme   court  of   the  District   of  Columbia,^*  or 


36  L.  Ed.  445,  and  United  States  t'.  More. 
3  Cranch  159,  2  L.  Ed.  397,  were  cited 
with  approval.  Cross  v.  United  States, 
145  U.  S.  571,  574,  36  L.  Ed.  821;  Cross 
V.  Burke.  146  U.  S.  82,  87,  36  L.  Ed.  896; 
Cliapman  v.  United  States.  164  U.  S.  436, 
448,  41  L.  Ed.  504."  Falk  v.  United  States, 
180  U.   S.   636,  45   L.    Ed.   709. 

7.  Cross  V.  United  States,  145  U.  S. 
571,  36  L.  Ed.  821;  Brown  v.  United 
States.   171   U.    S.   631.  635.   43    L.   Ed.    312. 

8.  Chanman  v.  United  States,  164  U.  S. 
436,  41  L.  Ed.  504;  Prather  v.  United 
States.  164  U.  S.  452,  41  L.  Ed.  510;  Falk 
V.  United  States,  180  U.  S.  636.  45  L.  Ed. 
709,  distineuishine:  Watts  v.  Washington 
Territory.  91   U.   S.   580,  23  L.   Ed.   328. 

It  is  settled  that  a  criminal  case,  as 
si'ch,  cannot  be  brought  here  on  writ  of 
error  from  the  court  of  apneals  of  the 
district.  Chapman  v.  United  States,  164 
U.  S.  436,  41  L.  Ed.  504;  Sinclair  v.  Dis- 
trict of  Columbia,  192  U.  S.  16,  48  L.  Ed. 
322;  Fields  v.  TTnited  States,  205  U.  S. 
292.  296.  51   L.   Ed.  807. 

"But  it  is  contended  that  under  §  8  of 
the  act  of  February  9,  1893.  27  Stat.  434, 
r.  74.  establishina  a  court  of  appeals  for 
the  District  of  Columbia,  the  iudsfments 
of  the  supreme  court  of  the  district,  re- 
viewable in  the  court  of  appeals,  may  be 
reviewed  ultimately  in  this  court  even  in 
criminal    cases,    where    the    validity    of    a 


statute  of,  or  an  authority  exercised  un- 
der, the  United  States,  is  drawn  in  ques- 
tion. We  do  not  feel  constrained,  how- 
ever, to  determine  how  this  may  be,  as 
we  are  of  opinion  that  the  application 
must  be  denied  on  another  ground."  In 
re  Chapman,  156  U.  S.  211,  216,  39  L.  Ed, 
401. 

9.  Chapman  v.  United  States.  164  U. 
S.  436,  41  L.  Ed.  504;  Sinclair  v.  District 
of  Columbia,   192  U.   S.   16,   48   L.   Ed.  322. 

10.  Sinclair  v.  District  of  Columbia.  193 
U.   S.    16,   21.   48    L.    Ed.    322. 

11.  Sinclair  v.  District  of  Columbia,  193 
U.  S.  16.  48  L.  Fd.  322.  citing  Winston 
V.  United  States,  172  U.  S.  303,  43  L.  Ed. 
456;  Winston  v.  United  States.  171  U.  S. 
690. 

12.  Fields  z:  United  States,  205  U.  S. 
292.   295,    51    L.    Ed.    807. 

13.  Fields  v.  United  States.  205  U.  S. 
292,    51    L.    Ed.    807. 

14.  Bv  act  of  congress  of  March  3, 
1885.  23  Stat.  437.  c.  353,  §  764  of  the  Re- 
vised Statutes  was  so  amended  as  to  re- 
move the  restriction  to  the  second  clause 
of  §  763,  and  restore  the  appellate  juris- 
diction of  this  court  from  decisions  of 
the  circuit  courts  in  habeas  corpus  cases 
as  it  had  existed  prior  to  the  passage  of 
the  act  of  March  27,  1868.  '  15  Stat.  44.  c. 
34.  But  this  did  not  have  that  eflfect  as 
to    judgments    of    the    supreme    court    of 


APPEAL  AND  ERROR. 


5C3 


the  judgments  of  the  court  of  appeals  of  the  district  under  the  act  of  February 
9,  18;.'3/-^  in  habeas  corpus  proceedings. ^^^ 

(4)  Patent  Proceedings. — Applications  for  Patents. — In  one  case  Mr.  Chief 
Justice  Fuller  said  that  it  appeared  quite  inconsistent  with  the  intention  of  con- 
gress for  this  court  to  take  jurisdiction  on  appeal  from  the  court  of  appeals  of 
the  District  of  Columbia,  of  applications  for  patents  in  view  of  the  provisions 
in  relation  to  appeals  from  the  circuit  courts  of  appeals  under  the  act  of  March  3 
1891,  c.  517,  26  Stat.  826.i" 

d.  Decisions  Rex'ieicahlc — (  1)  Cases  Invoking  the  J^alidi:y  of  Federal  Statutes. 
— By  §  8  of  the  act  establishing  the  court  of  appeals  for  the  "District  of  Columbia, 
27  Stat.  434,  c.  74,  "it  is  provided  tliat  any  final  judgment  or  <:1pr.-ee  thereof  may 
be  revised  by  this  court  on  appeal  or  error  in  cases  wherein  the  validity  of  a 
statute  of  the  United  S'ates  is  drawn  in  question. "i'* 

(2)  Necessity  for  Finality  of  Judgments  and  Decrees}^ — The  act  of 
Congress,  passed  on  the  27th  of  February,  1801  (2  Stat,  at  Large, 
102),  authorizes  a  writ  of  error  from  this  court  to  the  circuit  court  for  the 
District  of  Columbia  in  those  cases  only  where  there  has  been  a  final  judoment, 
order,  or  decree  in  that  court. -^ 


the  District  of  Columbia,  in  those  cases 
for  the  reasons  given  in  In  re  Heath,  144 
U.  S.  92,  36  L.  Ed.  358;  Cross  v.  Burke. 
146  U.  S.  82,  36  L.  Ed.  896;  Gonzales  v. 
Cunningham,  164  U.  S.  612,  617.  41  L- 
Ed.    572. 

These  cases  were  distingviished  at 
length  in  Gonzales  v.  Cunningham,  164 
U.  S.  612,  41  L.  Ed.  572,  in  which  the 
court  held,  that  an  appeal  would  not  lie 
to  this  court  from  a  final  order  of  the 
supreme  court  of  the  territory  on  habeas 
corprs.  Tn  re  Lennon,  150  U.  S.  393,  397, 
37  L.  Ed.  1120;  In  re  Heath,  144  U.  S. 
92,  36  L.  Ed.  358;  Cross  v.  United  States, 
145  U.  S.  571.  36  L.  Ed.  821;  In  re  Chap- 
man, 156  U.  S.  211,  215.  39  L.  Ed.  401; 
Cross  r.  Burke,  l-^e  U.  S.  82.  36  L.  Ed. 
896,  explaining  Wales  v.  Whitnej%  114 
U.   S.    .-164.    29    L.    Ed.    277. 

No  writ  of  error  will  lie  from  this  court 
to  a  irdgment  of  the  supreme  court  of 
the  District  of  Columbia,  refusing  to  is- 
sue a  writ  of  habeas  corpus  which  had 
been  praved  for  in  a  petition  to  that  court. 
Tn  re  Schneider.  148  U.  S.  157,  37  L  -Ed. 
404.  citing  Cross  v.  Burke,  146  U.  S.  82. 
"f.  T,.  Ed.  896;  In  re  Heath,  144  U.  S. 
92,  36  L.  Ed.  358;  Cross  v.  United  States. 
145  U.  S.  571.  36  L.  Ed.  821;  Baltimore, 
etc.,  R.  Co.  V.  Grant,  98  U.  S.  3^8,  25  L. 
Ed.  231:  Dennisnn  v.  Alexander.  103  U. 
S.  522,  26  L.  Ed.  313;  United  States  v. 
Wanamaker,  147  U.  S.  149.  37  L.   Ed.   118. 

15.  Chapman  v.  United  States,  164  U. 
S.  436.  41  L.  Ed.  504;  Prather  v.  United 
States.  164  U.  S.  452,  41  L.  Ed.  510; 
Perrine  v.  Slack,  164  U.  S.  452.  41  L.  Ed. 
510. 

'"We  have  heretofore  decided  that  this 
court  has  no  apDcllate  jurisdiction  over 
the  judgments  of  the  supreme  court  of 
the  District  of  Columbia  in  criminal  cases 
or  on  habeas  corr>us;  but  whether  or  not 
the  judgments  of  the  supreme  court  of 
the  district,  reviewable  in  the  court  ot 
appeals,    may    be    reviewed    ultimately    in 


this  court  in  such  cases,  when  the  validity 
<A  a  stPtute  of  or  an  authority  exercised 
under  the  United  States,  is  drawn  in 
question,  we  have  as  yet  not  been  obliged 
to  determine.  In  re  Chapman,  156  U.  S. 
211,  39  L.  Ed.  ^01. ••  In  re  Belt,  159  U.  S. 
95,    100,    40    L.     Ed.    88. 

16.  It  will  be  perceived  that  the  re- 
vision of  the  final  judgments  or  decrees 
of  the  supreme  court  of  the  district  de- 
pended on  the  provision  that  they  should 
be  so  re-examinable  in  the  sr.me  cases 
and  in  like  manner  as  the  final  judgments 
of  the  circuit  courts  of  the  United  States, 
and  that  there  was  no  special  provision 
in  relation  to  the  review  of  final  orders 
of  such  courts  on  habeas  corpus.  Gon- 
zales V.  Cunningham,  164  U.  S.  612,  618, 
41    L.    Ed.    572. 

J  7.  D'-rham  i\  Sevmour.  u;i  TT.  S.  235, 
40  L.  Ed.  682,  citing  United  States  v. 
American  Bell  Telephone  Co..  159  U.  S. 
.•-!-'     40    L.    Ed.    255. 

18.  United  States  v.  Duell,  172  U.  S. 
576,    581,    43    L.    Ed.    559. 

The  contention  that  congress  had  no 
power  to  authorize  the  court  of  appeals 
of  the  District  of  Columbia  to  review  the 
action  of  the  commissioner  of  patents  in 
an  interference  case,  on  the  theory  that 
ri'p  commissioner  is  an  executive  officer; 
tl'at  his  action  in  determining  which  of 
two  claimants  is  entit'ed  tn  a  patent  is 
purely  executive;  and  that,  therefore,  such 
c-iction  cannot  be  subjected  to  the  revisiort 
of  a  judicial  tribunal,  necessarily  de- 
tern  ines  the  validity  of  an  act  of  congress 
d^nvinp  an  appeal  to' the  court  of  appeals 
of  the  District  of  Columbia  in  interference 
cases,  and  hence  may  be  revised  by  this 
court.  T'nited  States  v.  Duell.  172  U.  S. 
576.    43    E.    Ed.    559. 

19.  Vr^r  t^e  applications  of  these  rules, 
see    povt.    "Decisions    Reviewable,"    IV. 

20.  V.-'n  Ness  V.  Van  Ness,  6  How.  62. 
12  L.    Ed.   344. 


504  APPEAL  AND  ERROR. 

Under  the  act  of  March  3d,  1863,  establishing  the  supreme  court  of  the 
District  of  Cohimbia,  the  action  of  that  court  can  be  examined  here  in  no  case 
in  which  Hke  action  in  the  circuit  court  of  the  district,  whose  place  it  supplies, 
could  not  be  re-examined.  Hence,  it  can  be  examined  only  in  those  cases  where 
there  has  been  a  final  judgment,  order  or  decree.-^ 

And  the  present  rule  is  that  appeals  cannot  be  taken  to  this  court  from 
the  supreme  court  of  the  district,  except  after  a  final  decree  in  the  case  by 
that  court. 22 

Section  772  of  the  Revised  Statutes,  relating  to  the  District  of  Co- 
lumbia, provides  as  follows :  "Any  party  aggrieved  by  any  order,  judgment 
or  decree,  made  or  pronounced  at  any  special  term,  may,  if  the  same  involve 
the  merits  of  the  action  or  proceeding,  appeal  therefrom  to  the  general  term 
of  the  supreme  court,  and  upon  such  appeal  the  general  term  shall  review  such 
order,  judgment  or  decree,  and  affirm,  reverse  or  modify  the  same,  as  shall 
be  just. "2^  This  section  does  not  in  terms  confine  the  right  of  appeal  from  the 
special  to  the  general  term  to  merely  final  orders  or  final  decrees  in  a  cause. 
An  interlocutory  order  or  decree  which  involves  the  merits  may  be  reviewed  by 
the  general  term  upon  the  appeal  of  a  dissatisfied  party  without  awaiting  a  final 
determination  of  the  cause.  It  is  not  made  obligatory  upon  a  dissatisfied  party 
to  appeal,  because  the  other  party  has  done  so ;  and  upon  an  appeal  to  this  court 
from  a  final  decree  of  the  general  term  (Rev.  Stat.,  §  705)  the  entire  record  is 
brought  up  for  review. ^^ 

(3)  Suvntnary  and  Special  Proceedings. — A  writ  of  error  lies  from  this  court 
to  the  supreme  court  of  the  District  of  Columbia  on  a  judgment  confirming  an 
assessment  for  damages  by  the  use  of  the  street  in  front  of  the  church  of  de- 
fendants in  error,  although  the  proceedings  before  the  jury  and  the  marshal,  and 
in  the  supreme  court,  are  governed  by  a  statute  of  Maryland,  which,  by  the  con- 
struction of  the  courts  of  that  state,  does  not  allow  an  appeal  or  writ  of  error. ^^ 
An  appeal  lies  to  the  supreme  court  from  an  order  of  the  circuit  court  of  the 
District  of  Columbia,  quashing  an  inquisition  in  the  nature  of  a  writ  ad  quod 
damnum.-^ 

(4)  Discretionary  Matters  Not  Involving  the  Merits. — An  appeal  lies  to  the 
general  term  of  the  supreme  court  of  the  District  of  Columbia  from  a  denial  by 
that  court  in  special  term  of  a  motion  for  a  new  trial,  made  on  the  ground  that 
the  verdict  was  against  the  weight  of  evidence. ^'^  An  appeal  from  an  order  of 
the  supreme  court  of  the  District  of  Columbia  at  special  term  reopening  an  order 

21.  Brown  v.  Wiley,  4  Wall.  16,5,  18  L.  23.  Spalding  v.  Mason,  161  U.  S.  375, 
Ed.   384.                                                                              381.    40    L.    Ed.    738. 

In    a    controversy    between    the    next    of  24.     Hitz   v.   Jenks.   123    U.    S.   297,   31  L. 

kin    and    the    executrix,    a    decree    of    the  Ed.     156;     District    of    Cohimbia    v.    Mc- 

supreme   court   of   the   District   of   Colum-  Blair,  124  U.  S.  320,  31   L.   Ed.  449;  Grant 

bia,   sitting  as   an   orphans'   court,   approv-  v.    Phoenix,    etc..    Ins.    Co.,    121    U.   S.   105, 

ing    the    final    accounts    of    the    executrix.  30  L.  Ed.  905;   Spalding  v.  Mason,  161  U. 

was  reversed  by  the  court  of  appeals  and  S.  375,  381,  40  L.  Ed.  738. 

remanded   for   the   restatement   of   the    ac-  25.  Baltimore,  etc.,  R.  Co.  v.  Sixth  Pres- 

count  of  the  executrix,  and  the  determina-  byterian    Church,    19   Wall.   62.    22    L.    Ed. 

tion    of    who    were    the    next    of    kin,    the  97,  overruling  Carter  v.  Cutting,  8  Cranch 

proportions    they    should    take,    the    eflfect  251,  3  L.  Ed.  553. 

of  the  death  of  one  or  more   of  them,  and  26.     Custiss   v.    Georgetown,    etc.,   Turn- 
any   other    questions   that   might   arise.     It  pike    Co.,    6    Cranch    233,    3    L.     Ed.     309. 
was   held   that   the   decree   of  the   court   of  cited   in   Ormsby   v.   Webb,    134   U.   S.   47, 
appeals   was   not   final   so  as   to  justify  an  60,  33   L.   Ed.  805;  and  approved  in  Balti- 
appeal    by    the    executrix    therefrom,    al-  more,   etc.,    R.    Co.   v.    Sixth    Presbyterian 
though,    had    it    been    a    decree    of    affirm-  Church,   19  Wall.   62,  22  L.   Ed.  97. 
ance,  the  next  of  kin  might  have  appealed.  27.     Inland,    etc..    Coasting   Co.   v.    Hall. 
Kenaday  v.  Sinnott,  179  U.  S.  606.  G13.  45  124    U.    S.    121,    31    L.    Ed.    369,    affirming      [ 
L.   Ed.  339,  citing  and  approving  Ormsby  Metropolitan   R.   Co.  v.    Moore,   321   U.  S.     j 
V.   Webb,    134   U.    S.    47,    33    L.    Ed.    805.  558.  30   L.   Ed.   1022;   District  of  Columbia 

22.  Butterfield  v.  Usher.  91  U.  S.  246,  v.  Woodbury,  136  U.  S.  450,  466,  34  L- 
248,   23   L.    Ed.   318.  Ed.   472.                                                                           ' 


APPEAL  AND  ERROR.  505 

confirming  a  sale  of  real  estate  by  a  trustee,  will  lie  to  the  general  term  of  the 
court,  because  as  it  is  clearly  an  order  involving  the  merits  of  the  proceeding; 
it  is  not  an  appeal  simply  from  an  order  refusing  to  set  aside  a  decree  of  con- 
firmation, but  one  that  involves  the  integrity  of  the  order  confirming  the  sale, 
and  therefore  the  merits  of  the  whole  case.^s  Where  it  is  assigned  for  error 
that  the  court  below  in  general  term,  refused  to  consider  one  of  the  grounds 
for  a  new  trial  which  stated  that  the  verdict  is  against  the  weight  of  evidence, 
this  assignment  cannot  be  supported  by  referring  to  the  stenographic  report  of 
the  oral  opinion  of  the  justice  speaking  for  the  general  term.  This  report  can- 
not control  the  record  of  the  case  as  certified  to  it,  especially  where  it  does  not 
appear  from  the  record  that  the  general  term  declined  to  pass  upon  a  question 
which  it  was  its  duty  to  consider. ^^ 

e.  Effect  of  Appeal  or  Scope  of  Reznezv. — Upon  an  appeal  to  this  court  from 
a  final  decree  of  the  general  term,  the  entire  record  is  brought  up  for  review.^*^ 
An  appeal  to  the  general  term  from  a  final  order  of  probate  made  in  the  special 
term,  which  is  not  based  upon  a  judicial  determination  of  facts,  but  merely  upon 
the  finding  of  a  jury,  of  necessity  brings  into  review  before  the  general  term  all 
the  questions- of  law  that  are  properly  presented  by  the  bill  of  exceptions  taken 
at  the  trial.  So  an  appeal  to  this  court  from  the  final  judgment  of  the  supreme 
court  of  the  district,  affirming  the  order  of  probate,  of  necessity,  brings  here 
for  re-examination  all  the  questions  properly  arising  upon  those  bills  of  ex- 
ceptions.^^ When  the  supreme  court  of  the  District  of  Columbia  makes  an  order, 
in  general  term,  which,  under  the  statute,  may  be  re-examined  here,  the  appeal 
therefrom  brings  up  for  review  the  questions  upon  which  the  final  judgment 
really  depends,  namely,  those  presented  by  the  bills  of  exception  taken  at  the 
trial  of  the  issues  submitted  to  the  jury.  It  would  be  strange,  indeed,  if  our 
re-examination  of  the  final  judgment  of  the  supreme  court  of  the  district  could 
not  reach  the  errors  of  law  wl.ich  it  may  have  committed  in  the  conduct  of  that 
trial,  and  upon  which  that  judgment  is  based.^^ 

f.  Judgment  on  Reversal. — On  error  from  this  court  to  the  supreme  conrt  of 
the  District  of  Columbia,  when  exceptions  taken  by  the  plaintifif  to  a  ruling  in 
favor  of  the  defendant  at  one  trial  have  been  erroneously  sustained,  and  a  new 
trial  ordered,  and  a  contrary  ruling  upon  the  same  point  at  the  second  trial  has 
been  erroneously  aflfirmed  upon  exceptions  taken  by  the  defendant,  this  court, 
upon  a  writ  of  error  sued  out  by  him,  will  not,  on  reversing  the  judgment  of 
affirmance,  direct  judgment  to  be  entered  on  the  first  verdict,  but  will  only  order 
that  the  second  verdict  be  set  aside  and  another  trial  had.-^^ 

5.  OvKR  Court  of  Claims — a.  In  General. — The  court  of  claims  was  estab- 
lished in  1855,  10  Stat,  at  Large,  612,  for  the  triple  purpose  of  relieving 
congress,  and  of  protecting  the  government  by  regular  investigation,  and  of  ben- 
efiting the  claimants  by  afifording  them  a  certain  mode  of  examining  and  adjudi- 
cating upon  their  claims.  It  was  required  to  hear  and  determine  upon  claims 
founded  upon  any  law  of  congress,  or  upon  any  regulation  of  an  executive  de- 
partment, or  upon  any  contract,  express  or  implied,  with  the  government  of  the 

28.     Kenedav    z'.     Edwards,     134    U.     S.  32.   Ormsby  v.   Webb.   134  U.   S.   47,  64, 

117,  33    L.    Ed.'   853.  ^^    L.    Ed.    805. 

oo     T-»-  1  •  ^      £  r^   ^       u-           Tir      ju  33.    Shepherd    v.    Thompson,    123    U.    S. 

^■?h    Q    /in    .°/  T^°iT^i-o  ^'-.Woodbury,  ^3      3^  ^    g^               distinguishing  Cough- 

nnl>      \     c^  '^  ^\f^-  ^^'io'i    t"t^  ^   .'.«"  ^^^^'-    District   of   Columbia.   106   U.   S    7, 

L      ,n   ?•  £"•  7;;oo^°°'''-    ^"^    ^-    ^-          •  27V.  Ed.  74.  as  follows:    "The  reason  tor 

•■    "   ^-   ^°-   ^"'^'^-  ordering  judgment  upon   the   first   verdict 

30.  Hitz  V.  Jenks,  123  U.  S.  297,  31  L.  in  that  case  was  not  that  the  court  in 
Ed.  1.56;  District  of  Columbia  v.  McBlair,  general  term  had  wrongly  decided  a 
124  U.  S.  320.  31  L.  Ed.  449;  Grant  v.  question  of  law  upon  a  bilf  of  exceptions 
Phoeni.x.  etc..  Ins.  Co..  121  U.  S.  105.  30  allowed  at  the  first  trial;  but  that,  as  ap- 
L.  Ed.  905;  Spalding  v.  Mason,  161  U.  S.  peared  of  record,  independently  of  any 
375,  40  L.   Ed.  738.  bJH    of    exceptions,    the    question    had    not 

31.  Ormsby  v.  Webb,  134  U.  S.  47,  62,  been  legally  brought  before  it  at  all, 
33   L.    Ed.    805.  thus  leaving  the  first  verdict  in  full  force." 


■06 


APPEAL  AND  ERROR. 


United  States.  10  Stat,  at  Large,  612.  Originally  it  was  a  court  merely  in  name, 
for  its  power  extended  only  to  the  preparation  of  bills  to  be  submitted  to  con- 
gress. In  1863  the  number  of  judges  was  increased  from  three  to  five,  its  juris- 
diction was  enlarged,  and,  instead  of  being  required  to  prepare  bills  for  congress, 
it  was  authorized  to  render  final  judgment,  subject  to  appeal  to  this  court  and 
to  an  estimate  by  the  secretary  of  the  treasury  of  the  an.iount  required  to  pay 
each  claimant.  12  Stat,  at  Large.  765.  This  court  being  of  opinion,  2  Wall. 
561,  that  the  provision  for  an  estimate  was  inconsistent  with  the  finality  essential 
to  judicial  decisions,  congress  repealed  that  provision.  14  Slat,  at  Large,  9. 
Since  then  the  court  of  claims  has  exercised  all  the  functions  of  a  court,  and 
this  court  has  taken  full  jurisdiction  on  appeal.-^-' 

The  act  of  May  9,  18G6  (14  Stat.  44),  extending  the  jurisdiction  of  the 
court  of  claims,  does  not  dispense  with  the  existing  rules  regulating  appeals  from 
that  court.-'^ 

b.  Right  of  Appeal. — In  General. — Congress  has  comrlete  control  over  the 
court  of  claims  and  may  confer  or  withhold  the  right  of  appeal  from  its  de- 
cisions.^" 

Former  Rule. — By  the  act  of  the  3d  of  March,  1853,  it  was  provided  that 
no  money  shall  be  paid  out  of  the  treasury  for  any  claim  passed  upon  by  the 
court  of  claims  till  after  an  appropriation  therefor  shall  be  estimated  for  by  the 
secretary  of  the  treasury,  wdiich  provision  was  of  course  as  applicable  to  the 
judgments  on  appeal,  rendered  by  this  court,  as  to  the  original  judgments  ren- 
dered by  the  court  of  claims,  as  the  subject  matter  of  the  suit  in  either  case  is 
one  "passed  upon  by  the  court  of  claims."  12  S^at.  at  Large,  768.  Either  party 
by  virtue  of  that  act  was  allowed  an  appeal  to  the  supreme  court,  but  the  supreme 
court  declined  to  take  jurisdiction  of  such  appeals,  chiefly  for  the  reason  that 
the  act  practically  subjected  the  judgments  of  the  supreme  court  rendered  in 
such  cases  to  the  re-examination  and  revision  of  the  secretary  of  the  treasury.-'^'^ 


34,  14  Stat,  at  Larsre.  44,  391,  444;  United 
States  V.  Klein,  13  Wall.  128,  144.  20  L. 
Ed.    519. 

35.  United  States  v.  Clark,  94  U.  S.  73, 
24    L.    Ed.   67. 

86.  Gordon  v.  United  States.  2  Wall. 
561.  17  L.  Ed.  921;  Taney.  C.  J.,  S.  C,  117 
U.  S.  697.  appendix;  In  re  Sandorn.  148 
U.  S.  222,  37  L.  Ed.  429;  United  States 
V.  Old  Settlers,  148  U.  S.  427.  466.  37  L. 
Ed.   509. 

"Undoubtedly  the  legislature  has  com- 
plete control  over  the  organization  and 
existence  of  that  court  and  may  confer 
or  withhold  a  rieht  of  appeal  from  its 
decisions.  And  if  this  act  did  nothing 
more,  it  would  be  our  duty  to  give  it 
effect.  If  it  simply  denied  the  right  of 
appeal  in  a  particular  class  of  cases,  there 
could  be  no  doubt  that  it  must  be  re- 
garded as  an  exercise  of  the  power  of 
congress  to  make  'such  exceptions  from 
the  appellate  juri'^diction'  as  should  seem 
to  it  expedient.  Btit  the  language  of  the 
proviso  shows  plainly  that  it  does  'not 
intend  to  withhold  appellate  jurisdiction 
except  as  a  means  to  an  end.  Its  great" 
and  controlling  purpose  is  to  deny  to 
pardons  granted  lay  the  president  the  ef- 
fect of  which  this  court  had  adjudged 
them  to  have.  The  proviso  declares  that 
pardons  shall  not  be  considered  by  this 
court  on  appeal."  United  States  v.  Klein, 
13  Wall.  128,  145,  20  L.  Ed.  519. 


37.  Gordon  v.  United  States,  2  Wall. 
561,  17  L.  Ed.  921;  United  States  v. 
O'Grady.  22  Wall.  641.  647,  22  L.  Ed.  772. 

Tlie  original  act  of  February  24th,  1855, 
establishing  the  court,  gave  it  jurisdic- 
tion to  hear  and  determine  all  claims 
founded  up-^n  any  law  of  congress,  or  upon 
any  regulation  of  an  executive  de- 
partment, or  upon  any  contract,  express 
or  implied,  with  the  government  of  the 
United  States,  which  might  be  suggested 
to  it  by  petition,  and  all  claims  which 
might  be  referred  to  the  court  by  either 
house  of  congress;  but  it  did  not  authorize 
any  appeal  from  the  decisions  of  the 
court.  It  required  the  court  to  report 
to  congress  the  cases  upon  which  it  had 
finally  acted,  and  the  material  facts  es- 
tablished by  the  evidence  in  each,  with 
its  opinion  and  the  reasons  upon  which 
the  opinion  was  founded.  It  was  not  un- 
til the  passage  of  the  act  of  March  3d, 
1863,  that  an  appeal  from  its  decisions 
was  allowed.  That  act  materially  amended 
the  original  act,  added  two  more  judges, 
gave  the  court  jurisdiction  over  set-ofls 
and  counterclaims,  and  authorized  an  ap- 
peal to  the  supreme  court  in  all  cases 
where  the  amount  in  controversey  ex- 
ceeded $3,000.  and  without  vreference  to 
the  amount,  where  the  case  involved  a 
constitutional  question,  or.  the  judgment 
or  dc-me  affected  a  class  of  cases,  or 
furnished   a   precedent    for   the    future   ac- 


APPEAL  AND  ERROR. 


507 


Judicial  jurisdiction  implies  the  power  to  hear  and  determine  a  cause,  and  inas- 
much as  the  constitution  does  not  contemplate  that  there  shall  be  more  than  one 
supreme  court,'  it  is  quite  clear  that  congress  cannot  subject  the  judgments  of 
the  supreme  court  to  the  re-examination  and  revision  of  any  other  tribunal  or 
any  other  department  of  the  government.-'^s  j^  q^\^q^  words,  where  a  declaration 
by  this  court  in  relation  to  the  matters  involved  would  be  simply  advisory  in 
its  nature,  and  not  in  any  legal  sense  a  judicial  determination  of  the  rights  of 
the  parties,  we  will  refrain  from  expressing  any  opinion. ^^ 

Present  Rule. — Afterwards,  and  perhaps  in  view  of  the  conclusion  reached 
by  this  court  in  these  cases,  on  March  17,  1866,  14  Stat.  9,  c.  19,  congress  passed 
an  act  giving  an  appeal  to  the  supreme  court  from  judgments  of  the  court  of 
claims,  and  repealing  those  provisions  of  the  act  of  March  3,  1863,  which  prac- 
tically subjected  the  judgments  of  the  supreme  court  to  the  re-examination  and 
revision  of  the  departments,  and  since  that  time  no  doubt  has  been  entertained 
that  the  supreme  court  can  exercise  jurisdiction  on  appeal  from  final  judgments 
of  the  court  of  claims.^'^     The  court  of  claims  is  thus  constituted  one  of  those 


tion  of  an  executive  department.  Ex 
parte  Atocha,  1.7  Wall.  439,  443,  21  L.  Ed. 
696. 

Congress,  in  establishing  a  court  in 
which  the  United  States  may  primarily 
be  sued  as  defendants,  proceeded  slowly' 
and  with  great  caution.  As  at  first  organ- 
ized, the  court  of  claims  was  merely  an 
auditing  board,  authorized  to  pass  upon 
claims  submitted  to  it,  and  report  to  the 
secretary  of  the  treasury.  He  submitted 
to  congress  such  confirmed  claims  as  he 
approved,  with  an  estimate  for  their  in- 
sertion in  the  proper  appropriation  bill. 
Such  as  he  disapproved  demanded  no 
further  action.  It  was  by  reason  of  that 
feature  of  the  law  that  this  court  refused 
to  exercise  the  appellate  jurisdiction  over 
awards  of  that  court  wliich  the  act  of 
congress  attempted  to  confer,  because  the 
court  was  of  opinion  that  the  so  called 
court  of  claims  was  not,  in  the  constitu- 
tional sense,  a  court  which  could  ren- 
der valid  judgments,  and  because  there 
could  be  no  appeal  from  the  supreme 
court  to  the  secretary  of  the  treasury. 
Gordon  v.  United  States,  2  Wall.  561.  17 
L.  Ed.  921;  Langford  v.  United  States, 
101    U.    S.    341.    344.    25    L.    Ed.    1010. 

The  language  of  the  act  of  March  3d, 
1863,  reorganizing  the  court  of  claims. 
and  confering  what  may  be  called  its 
general  jurisdiction,  is  general:  "Either 
party  may  appeal  to  the  supreme  court 
of  the  United  States  from  any  final  judg- 
ment or  decree  which  may  hereafter  be 
rendered  in  any  case  by  said  court."  This 
court  was  organized  as  a  special  judicial 
tribunal  to  hear  and  render  judgment 'in 
cases  between  the  citizen  and  the  govern- 
ment; the  subjects  of  its  jurisdiction 
were  defined  in  the  act,  and,  generalKs 
the  mode  of  conducting  its  proceedings, 
subject,  of  course,  to  such  alterations  and 
changes  as  congress  from  time  to  time 
might  see  fit  to  make.  Ex  parte  Zellner, 
8   Wall.   244.   246.   19   L.    Ed.    665. 

Power  of  supreme  court  to  enforce  its 
decrees. — "Further,      in      this      connection 


may  be  noticed  Gordon  v.  United  States, 
117  U.  S.  697,  appx.  in  which  this  court 
declined  to  take  jurisdiction  of  an  appeal 
from  the  court  of  claims,  under  the  stat- 
ute as  it  stood  at  the  time  of  the  decision, 
on  the  ground  that  there  was  not  vested 
by  the  act  of  congress  power  to  enforce 
its  judgment."  South  Dakota  v.  North 
Carolina,  192  U.  S.  286,  320.  48  L.  Ed.  448. 

38.  United  States  v.  O'Grady,  22  Wall. 
641.   647,  22   L.   Ed.   772. 

39.  District  of  Columbia  v.  Eslin.  183 
U.  S.  62,  65,  46  L.  Ed.  85,  reaffirmed  in 
District  of  Columbia  v.  Barnes.  187  U.  S. 
638,  47  L.  Ed.  344,  approving  Gordon  v. 
United  States,  117  U.  S.  697,  appx.;  Hay- 
burns"  Case.  2  Dall.  409,  1  L.  Ed.  436; 
United  States  v.  Ferreire,  13  How.  40,  14 
L.  Ed.  42;  In  re  Sanborn,  148  U.  S.  222, 
37  L.  Ed.  429;  Interstate  Commerce  Com- 
ir.ission  c'.  Brimson.  154  U.  S.  447.  38  L. 
Ed.  1047;  Pam-To-Pee  v.  United  States, 
1S7  U.  S.  371.  382,  47  L.   Ed.  221. 

Where  a  statute  under  which  a  pro- 
ceeding is  instituted  in  the  court  of  claims, 
and  which  allows  an  appeal  to  the  su- 
preme court,  is  repealed,  and  it  is  pro- 
vided in  the  repealing  act  that  all  pro- 
ceedings under  the  act  thereby  repealed 
shall  be  vacated  and  that  no  judgment 
rendered  in  pursuance  thereof  shall  be 
paid,  an  appeal  from  a  decision  of  the 
court  of  claims  pending  at  the  time  of  the 
passage  of  the  repealing  act  should  be 
dismissed.  District  of  Columbia  f.  Es- 
lin, 183  U.  S.  62.  64,  46  L.  Ed.  85,  reaf- 
firmed in  District  of  Columbia  v.  Barnes, 
187   U.    S.   638,  47  L.    Ed.   344. 

40.  United  States  v.  Alire,  6  Wall.  573, 
18  L.  Ed.  948;  United  States  v.  O'Grady, 
22  Wall.  641,  22  L.  Ed.  772;  United  States 
V.  Jones,  119  U.  S.  477,  30  L.  Ed.  440;  In 
re  Sanborn,  148  U.  S.  222,  37  L.  Ed.  429; 
Langford  v.  United  States.  101  U.  S.  341, 
344.  25   L.   Ed.   1010. 

Subsequently  congress  repealed  the 
provision  conferring  that  authority  upon 
the  secretary  of  the  treasur3%  and  since 
that   time   no   doubt   has   been    entertained 


508  APPEAL  AND  ERROR. 

inferior  courts  which  congress  authorizes,  and  has  jurisdiction  of  contracts  be- 
tween the  government  and  the  citizens,  from  which  appeal  regularly  lies  to  this 
courts  1 

Accordingly  the  jurisdiction  of  the  court  of  claims  and  of  this  court  can- 
not be  maintained,  if  the  proceeding  involves  a  right  which  in  its  nature  is  sus- 
ceptible of  judicial  determination,  and  if  the  determination  of  it  by  the  court  of 
claims  and  by  this  court  is  not  simply  ancillary  or  advisory,  but  is  the  final  and 
indisputable  basis  of  action  by  the  parties.*^ 

Additions  were  made  to  the  statutory  law  on  this  subject  by  the  act  of 
March  3,  1887,  24  Stat.  505,  c.  359  (1  Sup.  Rev.  Stat.  2d  ed.  559),  the  9th  sec- 
tion of  which  is  as  follows:  "That  the  plaintiiT  or  the  United  States,  in  any 
suit  brought  under  the  provisions  of  this  act,  shall  have  the  same  rights  of  ap- 
peal or  writ  of  error  as  are  now  reserved  in  the  statutes  of  the  United  States  in 
that  case  made,  and' upon  the  conditions  and  limitations  therein  contained.  The 
modes  of  procedure  in  claiming  and  perfecting  an  appeal  or  writ  of  error  shall 
conform  in  all  respects  as  near  as  may  be  to  the  statutes  and  rules  of  court 
governing  appeals  and  writs  of  error  in  like  causes. "^^ 

Express  provision  for  such  appeals  was  mad6  by  §  707  of  the  Revised 
Statutes,  as  follows :  "An  apptal  to  the  supreme  court  shall  be  allowed,  on  be- 
half of  the  United  States,  from  all  judgments  of  the  court  of  claims  adverse  to 
the  United  States,  and  on  behalf  of  the  plaintitT,  in  any  case  where  the  amount  in 
controversy  exceeds  three  thousand  dollars,  or  where  his  claim  is  forfeited  to  the 
United  States  by  the  judgment  of  said  court. "^^ 

c.  What  Lazv  Governs. — When  congress  passes  a  special  statute  allowing  a 
suit  to  be  brought  in  the  court  of  claims,  with  a  right  of  appeal  to  this  court,  the 
appeal  will  be  governed  by  the  rules  applicable  to  cases  arising  under  the  general 
jurisdiction  of  the  court,  unless  provision  is  made  to  the  contrary.*^ 

d.  Special  Acts  Conferring  Jurisdiciioii. — When  a  claim  on  the  government,  not 
capable  of  being  otherwise  prosecuted,  is  referred  by  special  act  of  congress  to 
the  court  of  claims,  acting  judicially  in  its  determination,  a  right  of  appeal  to 
this  court,  in  the  absence  of  provision  to  the  contrary,  is  given  by  the  act  of  June 
25th,  1868  (§  8707,  Revised  Statutes).  That  act  gives  to  the  United  States  the 
light  of  appeal  from  the  adverse  judgment  of  the  said  court,  in  all  cases  where 
it  is  required  by  any  general  or  special  law  to  take  jurisdiction  of  a  claim  made 
against  the  United  States,  and  act  judicially  in  its  determination.^^     Claims  under 

that   it   is   proper   that   the   supreme   court  merce    Commission    v.    Brimson,    154    U. 

should   exercise   jurisdiction   of   appeals   in  S.  447.  38   L.   Ed.  1047. 

such  cases.     14  Stat,  at  Large,  9.     United  "It  remains,  in  our  consideration  of  the 

States   V.   O'Grady.   22   Wall.    641,    647,    22  question       of      jurisdiction,       to       inquire 

L.  Ed.  773;  In  re  Sanborn,  148  U.  S.  222,  whether  the   judgment   authorized   by  the 

37  L.  Ed.  429.  act  of  1892  to  be  rendered  would  be  a  fi- 

We    are    entirely    satisfied    that,    as    the  nal,  conclusive   determination,  as  between 

ktw    now    stands,    appeals    do    lie    to    this  the   United   States  and  the   defendants,   of 

court  from  the  judgments  of  the  court  of  the    rights    claimed   by   them    respectively, 

claims    in   the    exercise    of   its    general   ju-  or    only    ancillary    or    advisory.      In    our 

risdiction.     United  States  v.  Jones,  119  U.  opinion   the   act   of   congress   authorized  a 

S.  477,  480,  30  L.  Ed.  440,  citing  De  Groot  final    judgment    of    the    former    character 

V.   United    States.   5   Wall,    419,   18    L.    Ed.  and   therefore   the  judgment   of  the   court 

700;   United    States   v.   Alire,   6  Wall.   573,  of   claims   is    reviewable    by   this    court   in 

18   L.   Ed.   948;   United  States  r.  O'Grady,  the      exercise     of     its     appellate     judicial 

22  Wall.   641,   22   L.   Ed.  772;   Langford  v.  power."      La     Abra     Silver     Min.     Co.    v. 

United    States.    101    U.    S.    341,   25    L.    Ed.  United    States,    175    U.    S.   423,    461.   44   L. 

1010,    and    explaining    Gordon    v.    United  Ed.    223. 

States    2  Wall.  561,  17  L.  Ed.  921.  43.   In  re   Sanborn,   148   U.   S.  222,  37  L- 

41.  United  States  v.  Klein.  13  Wall.  128,  Ed.   429. 

145.  20  L.   Ed.   510.  44.   In   re   Sanborn,   148   U.   S.   222,  37  L. 

42.  La   Abra   Silver   Min.    Co.  v    United       Ed.   429. 

States    175  U.   S.  4^3.  457,44  L.  Ed.  ""^S;  45.    McCkire    v.    United    States,    116    U. 

citing    Gord-n    7'.    ITnited    States,    2    Wall.  S.   145.  149.   29   L.   Ed.    572. 

561.  17  L.  Ed.  9^1;   In  re  Sanborn,  148  U.  46.  Vigo's  Case,  21  Wall.  648,  22  L.  Ed. 

S.    222,    37    L.    Ed.    429;    Interstate    Com-  690. 


APPEAL  AND  ERROR. 


509 


treaty  stipulations  are  excluded  from  the  general  jurisdiction  of  the  court  of  claims 
conferred  by  the  acts  of  congress  of  February  24th,  1855,  and  March  3d,  1863 ; 
and  when  jurisdiction  over  such  claims  is  conferred  by  special  act,  the  authority 
of  that  court  to  hear  and  determine  them,  and  of  this  court  to  review  its  action, 
is  limited  and  controlled  by  the  provisions  of  that  act.-*" 

e.  Appeal  as  a  Matter  of  Right. — The  act  of  March  3,  1863,  concerning  the 
court  of  claims,  confers  a  right  of  appeal  in  cases  involving  over  $3,000,  whicli  the 
party  desiring  to  appeal  can  exercise  by  his  own  volition,  and  which  is  not  de- 
pendent on  the  discretion  of  that  court.-*^     The  language  of  the  act  of  March 


47.  Ex  parte  Atocha,  17  Wall.  439,  31 
L.  Ed.  696,  cited  in  United  States  v.  Gil- 
Hat,   164  U.   S.  42.   46,  41   L.   Ed.   344. 

The  commissioners  appointed  under 
the  treaty  between  the  United  States  and 
Mexico  concluded  July  4,  1868,  and  pro- 
claimed February  1,  1869  (15  Stat.  679), 
having  differed  in  opinion  as  to  the  al- 
lowance of  the  claim  of  the  La  Abra  Sil- 
ver Mining  Company,  a  New  York  cor- 
poration, against  Mexico,  the  umpire 
decided  for  that  company  and  allowed  its 
claim,  amounting,  principal  and  interest, 
tc  the  sum  of  $683,041.32.  Mexico  met 
some  of  the  installments  of  the  award 
and  then  laid  before  the  United  States 
certain  newly-discovered  evidence  which, 
it  contended,  showed  that  the  entire  claim 
of  the  La  Abra  Company  was  hctitious 
and  fraudulent.  The  secretary  of  the 
state  thereafter  withheld  the  remaining 
installments  paid  by  Mexico,  and  upon  ex- 
amining the  new  evidence,  reported  to 
the  president  that  in  his  judgment  the 
honor«of  the  United  States  was  concerned 
to  inquire  whether  in  submitting  the  La 
Abra  claim  to  the  commission,  its  con- 
fidence had  not  been  seriously  abused, 
and  recommended  that  congress  exert 
its  plenary  authority  in  respect  of  the 
disposition  of  the  balance  of  the  funds 
received  from  Mexico  and  remaining  in 
the  hands  of  the  United  States.  Finally, 
congress  passed  the  act  of  December  28, 
1892  (27  Stat.  409,  c.  14),  by  which  the 
attorney  general  was  directed  to  bring 
suit  in  the  name  of  the  United  States  in 
the  court  of  claims  against  the  La  Abra 
Company  and  all  persons  asserting  any  in- 
terest in  the  award  of  the  commission 
to  determine  whether  that  award  was  ob- 
tained, as  to  the  whole  sum  included 
therein  or  as  to  any  part  thereof,  by 
fraud  effectuated  by  means  of  false  swear- 
ing or  other  false  and  fraudulent  prac- 
tices on  the  part  of  the  company,  or  its 
agents,  attorneys  or  assigns,  and  if  so 
determined,  to  bar  and  foreclose  all  claim 
in  law  or  equity  on  the  part  of  the  com- 
pany, its  legal  representatives  or  assigns 
to  the  money  or  any  such  part  thereof 
received  from  the  republic  of  Mexico  for 
or  on  account  of  the  award.  By  that  act 
full  jurisdiction  was  conferred  on  the 
court  of  claims,  with  right  of  appeal  to 
this  court,  to  determine  such  suit,  to  make 
all  proper  interlocutory  and  final  decrees 
therein,  and  to  enforce  the  same  by  in- 
junction   or    other    final    process.      "While 


that  act  does  not,  in  express  words,  di- 
rect the  attorney  general  to  institute  a 
suit  'in  equity'  or  declare  that  this  court 
on  appeal  should  re-examine  the  entire 
case  on  both  law  and  facts,  a  suit  of  that 
character  was  contemplated  when  con- 
gress invested  the  court  of  claims  with 
full  jurisdiction  to  make  'all  interlocutory 
and  final  decrees  therein  as  the  evidence 
may  warrant,  according  to  the  principles 
of  equity  and  justice,  and  to  enforce  the 
same  by  injunction  or  any  proper  final 
process,'  and  gave  either  party  the  right 
to  appeal  to  this  court  from  the  final  de- 
cision within  ninety  days  'from  the  ren- 
dition of  such  final  decree.' "  La  Abra 
Silver  Min.  Co.  v.  United  States,  175  U. 
S.  423,  464,  44  L.   Ed.  223. 

An  act  of  congress  passed  on  the  14th 
of  February,  1865.  "for  the  relief  of  Al- 
exander J.  Atocha,"  directed  the  court 
of  claims  to  examine  into  his  claim 
against  the  government  of  Mexico  for 
losses  sustained  by  him  by  reason  of  his 
expulsion  from  that  country  in  1845,  and 
provided  that  if  the  court  was  of  opinion 
that  the  claim  was  a  just  one  against 
Mexico  when  the  treaty  of  1848  was  rat- 
ified, and  was  embraced  by  that  treaty, 
it  should  "fix  and  determine"  its  amount, 
and  declared  that  the  loss  or  damage 
sustained  by  him,  thus  adjudicated  and 
determined,  should  be  paid  out  of  any 
money  in  the  treasury  not  otherwise  appro- 
priated, subject  only  to  the  condition  that 
the  amount  did  not  exceed  the  unapplied 
balance  of  the  sum  provided  by  the  treaty. 
Under  this  act  the  claim  of  Atocha  was 
presented  to  that  court  for  examination 
and  determination.  The  court  gave  its 
decision  to  the  effect  that  it  was  of  opin- 
ion that  the  claim  was  a  just  one  against 
Mexico  when  the  treaty  of  184S  wns  rnti- 
fied,  and  was  embraced  by  that  treaty, 
and  "fixed  and  determined"  the  amount 
of  the  loss  and  damage  sustained  by 
Atocha.  and  declared  that  it  would  be 
satisfied  by  the  United  States  paying  to 
the  administratrix  of  the  estate  of  the 
claimant  the  balance  remaining  unapplied 
of  the  sum  designated  in  the  treaty.  Held, 
that  the  decision  of  the  court  of  claims 
was  final  under  the  special  act.  and  that 
no  appeal  would  lie  from  it  to  this  court. 
Ex  parte  Atocha,  17  Wall.  439,  21  L.  Ed. 
696. 

48.  United  States  v.  Adams,  6  Wall. 
101,   18  L.  Ed.   792. 


510  APPEAL  AND  ERROR. 

3d,  1863,  concerning  the  court  of  claims  implies  that  taking  an  appeal  is  a  matter 
of  right,  and  is  something  which  the  party  as  distinguished  from  tliC  court  may  do. 
When  the  court  has  rendered  its  judgment  "either  party  may  appeal."  That  is, 
has  the  right  to  appeal,  and  may  exercise  that  right  hy  his  own  voliiion.  The  court 
cannot  prevent  it,  nor  is  the  right  dependent  upon  any  judicial  discretion.  "The 
appeal  is  to  be  taken  within  ninety  days,  not  granted,  or  allowed,  or  permitted, 
but  taken — a  word  which  implies  action  on  the  part  of  the  appellant  alone.  So 
that,  whatever  the  proceeding  may  be  which  constitutes  appealing,  or  taking  an 
appeal,  it  must  be  something  which  the  party  can  do ;  and  it  would  seem  that  no 
regulation  of  the  supreme  court,  nor  any  judicial  discretion  of  the  court  of 
claims,  can  deprive  him  of  the  right,  though  the  former  may  frame  appropriate 
rules  in  accordance  with  wliich  the  right  must  be  exercised. "^^ 
But  the  act  af  March  3rd,  1863,  has  been  repealed.'^'^ 
f.  Decisions  Reviewable — (1)  Jurisdiction  as  Dependent  upon  Question 
Whether  Decision  Will  Affect  a  Class  of  Cases. —  By  the  existing  stat- 
utes, congress  has  neither  made,  nor  authorized  an  executive  depart- 
ment* or  the  court  of  claims  to  make,  the  appellate  jurisdiction  of  this  cour*^. 
over  claims  against  the  United  States  for  three  thousand  dollars  or  less,  to  depend 
upon  the  question  whether  the  decision  will  aiifect  a  class  of  cases ;  and  the  omis- 
sion is  the  more  significant,  because  former  statutes  gave  this  court,  on  the  certifi- 
cate of  the  presiding  justice  of  the  court  of  claims,  appellate  jurisdiction,  and  the 
court  of  claims,  on  a  submission  by  an  executive  department,  original  jurisdiction, 
of  claims  of  such  an  amount,  where  the  decision  would  aflfect  a  class  of  cases,  or 
furnish  a  precedent  for  the  future  action  of  any  executive  department  in  the 
adjustment  of  a  class  of  cases. ^^  A  case  in  the  court  of  claims  which  involves  the 
right  of  a  claimant  to  a  military  bounty  land  warrant  under  the  acts  of  congress 
of  March  3d,  1855,  and  May  14th,  1856,  which  claim  liad  been  rejected  by  tlie  com- 
missioner of  pensions,  and  the  rejection  confirmed  by  the  secretary  of  the  interior, 
is  apparently  within  that  part  of  the  fifth  section  of  the  act  of  March  3d,  1863, 
which  provides  "that  when  the  judgment  or  decree  will  affect  a  class  of  cases,  or 
furnish  a  precedent  for  the  future  action  of  any  executive  department  of  the  gov- 
ernment in  the  adjustment  of  such  class  of  cases,  *  *  *  ^j^^j  such  facts  shall 
be  certified  to  by  the  presiding  justice  of  the  court  of  claims,  the  supreme  court 
shall  entertain  an  appeal  on  behalf  of  the  United  States,  without  regard  to  the 
amount  in  controversy."  Accordingly,  an  appeal  from  a  judgment  of  the  court 
of  claims  in  such  a  case,  where  there  had  been  no  special  allowance,  and  which 
had  been  dismissed  by  this  court,  because  not  a  judgment  for  money  and  over 
$3,000,  was,  on  motion  of  the  United  States,  reinstated,  and  the  record  remanded 
to  the  court  of  claims  for  such  further  proceedings  as  might  seem  fit  and  proper 
in  the  cause  as  it  respected  the  appeal  prayed  for.^^ 

(2)  Jurisdiction  as  Dependent  upon  Amount  in  Controversy. — The  jurisdic- 
tion of  this  court  over  the  court  of  claims  depends  upon  the  provisions  of  §  707 
rrovidinf?  that,  "an  appeal  to  the  supreme  court  shall  be  allowed  on  behalf  of  the 
T^nited  States  from  all  judgments  of  the  court  of  claims  adverse  to  the  United 
States,  and  on  behalf  of  the  plaintiff  in  any  case  where  the  amount  in  controversy 
exceeds  three  thousand  dollars."  Congress  has  thus  clearly  manifested  its  will 
that,  in  any  cause  where  the  amount  in  controversv  does  not  exceed  three  thou- 
sand dollars,  the  United  States  alone  shall  have  a  right  of  appeal ;  and  that  if  the 
opinion  of  the  court  of  claims  in  such  a  cause  is  adverse  to  the  claimant,  a  final 

49.  Hud^ins  v.  Kemp,  18  How.  ."iSO.  15  12  Stat.  766;  June  25,  1868,  c.  71.  §§  1, 
L.  Ed.  511;  Dos  Hermnnos.  10  Wheat.  7,  15  Stat.  75,  76;  Rev.  Stat.  §  1063;  ^ct 
306.  6  L.  Ed.  328;  United  State?  v.  \dams.  of  March  3,  1887.  c.  359.  §§  9.  12,  24  Stat. 
6  Wall.  101,  107.  18  L.  Ed.  792.  507.     United   States  v.   Gleeson.   124  U.  S. 

50.  In   re   Sanborn,   148  U.   S.  2T?.   37   L.  355.    258.    31    L.    Ed.    421. 

^H.   429.  52.   United    States  v.   Alire.   6   Wall.   573, 

51.  Acts    of    March    3,    1863.    c.    92,    §    5,        18   L.   Ed.   948. 


APPEAL  AND  ERROR.  511 

and  conclusive  judgment  shall  be  rendered  against  him  in  that  court.s"? 

(3)  Jurisdiction  as  Dependent  upon  Nature  and  Form  of  Judgment— zz.  In 
General.— By  the  act  of  June  25th,  1868,  15  Stat,  at  Large  75,  it  was  provided 
that  an  appeal  should  be  allowed  on  behalf  of  the  United  States  "from  all  final 
judgments  of  the  said  court  of  claims  adverse  to  the  United  States,  whether  the 
said  judgment  shall  have  been  rendered  by  virtue  of  the  general  or  special  power 
or  jurisdiction  of  said  court."  This  act  is  substantially  re-enacted  in  section  seven 
hundred  and  seven  of  the  Revised  Statutes,  and  gives  to  the  United  States  the 
right  of  appeal  from  the  adverse  judgment  of  the  court  of  clamis  in  all  cases 
where  that  court  is  required  by  any  general  or  special  law  to  take  jurisdiction  of 
a  claim  made  against  the  United  States  and  act  judicially  in  its  determination.'"* 
The  act  of  March  3rd.  18r^3.  amending  the  act  establishing  the  court  of  claims, 
declared  that  the  jurisdiction  of  the  court  should  not  extend  to  or  include  any 
claim  against  the  government,  not  pending  in  the  court  on  the  1st  of  December, 
1862,  growing  out  of  or  dependent  on  any  treaty  stipulation  entered  into  with 
foreign  nations  or  the  Indian  tribes.  All  the  cases  of  which  the  court  could  sub- 
sequently take  cognizance,  by  either  the  original  or  amendatory  act,  were  cases 
arising  out  of  contracts  or  transactions  between  the  government  or  its  officers  and 
claimants :  and  in  their  decision  the  court  was  to  be  governed  by  those  established 
rules  of  evidence  which  determine  controversies  between  litigants  in  the  ordinary 
tribunal  of  the  country.  Those  acts  have  since  then  applied  only  to  claims  made 
directly  against  the  United  States,  and  for  the  payment  of  which  they  were  pri- 
marily liable,  if  liable  at  all,  and  not  to  claims  against  other  governments,  the  pay- 
ment of  which  the  United  States  had  assumed  or  might  assume  by  treaty.  The 
act  of  June  25th.  1868.  whilst  allowing  appeals  on  behalf  of  the  United  States 
from  all  final  ju^]gments  of  the  court  of  claims  adverse  to  the  United  States,  did 
not  change  the  character  of  the  claims  of  which  that  court  could  previously  take 
cognizance.''^ 

A  claim  presented  in  the  department  of  the  interior,  for  certain  fees 
under  a  contract  with  a  tribe  of  Indians,  of  ten  per  cent,  of  the  amount  appro- 
priated for  such  Indians,  by  §  27  of  the  Indian  appropriation  act.  is  plainly  not  a 
suit  against  the  United  States  with  respect  to  which  an  appeal  is  provided  for  by 
th"  9th  section  of  the  court  of  claims  act.^^ 

bb.  Decision  Must  Be  Judicial  in  Its  Nature. — It  has  been  held  repeatedlv  that 
judgments  of  the  court  of  claims,  which  are  not  an  exercise  of  judicial  power  by 
that  court,  cannot  be  revised  here.-^"  A  findin']^  of  fact  and  law  made,  at  the  re- 
quest of  a  head  of  a  department,  with  the  consent  of  the  claimant,  and  trans- 
mitted to  such  department,  is  not  a  judgment  within  the  meaning  of  the  9th  sec- 
tion of  the  act  of  March  3.  18S7.  or  of  the  707th  section  of  the  Revised  Statutes, 
and  is  not.  therefore,  appealable  to  this  court.  The  finding  or  conclusion  reached 
by  that  court  is  not  enforceable  by  any  process  of  execution  issuing  from  the  court, 
nor  is  it  made,  by  the  statute,  the  final  and  indisputable  basis  of  action  either  by 

53.  United   States  v.  Gleeson,   124  U.   S.  as  he  also  has  taken  an  appeal  from   that 

2.5.";,  2.58.  .31  L.  Ed.  421.  ji'dement.  to  avail   himself  of  anythinar  in 

In      an      appeal      from      the      covirt      of  tK'>   case   which   properly   shows   that   that 

claims,   it   was    contended   for   the    United  ji'dfrment  ^was    not    for   too    larn^e    .1    si'm. 

States   that   the    claimant  has   no   ris^ht   to  United    States    r.    Mosby,    133    U.    S.    273, 

anneal    in    regard    to    the    items    which    he  289.  3-  L.   Ed.  625. 

claims    were    improperly    disallowed,    be-  54.  ^^igo's  Case.  21  Wall.  648,  6.50,  22  L. 

cause     they     do     not     in     the     aggregate  Ed.   690. 

amount  to  more  than  $3,000.     But  we  are  55.   Ex   parte   .\tocha,   17  Wall.  439,  444, 

of  opinion   that,   as   §   707   of   the    ^^evised  21  L.  Ed.  696. 

Statutes  authorizes  an  anpeal  to  this  court  56.   Tn  re  Sanborn.   148  U.   S.  222.  37  L. 

on  behalf  of  the   United    States,   fr-^m   all  Ed.   429. 

judgments  of  the  court  '^f  claims  adverse  57.   Tn   re   Sanborn,   148  U.   S.  222,  37  L. 

to  the  United  States,  a'-'d  as  the  appeal  by  Ed.   427;   Gordon  v.   United   States,   117  U. 

the  United  State';  in  this  r?s«  is  from  the  S.   697.  anpx.   La   Abra   Silver   Min.   Co.  v. 

judorment    of    $13,S39.21    in     favor    of    the  United    States,    175    U.    S.    423,    44    L.    Ed. 

claimant,  it  is  competent  for  the  claimant,  223. 


512  APPEAL  AND  ERROR. 

Ihe  department  or  by  congress. ^^  Tims,  where  a  claim  or  matter  is  pending  in  one 
of  the  executive  departments,  which  involves  controverted  questions  of  fact  or 
law,  and  the  head  of  such  department,  with  the  consent  of  the  claimant,  has 
transmitted  the  claim,  with  the  vouchers,  papers,  proofs  and  documents  per- 
taining thereto,  to  the  court  of  claims,  and  that  court  has  reported  its  findings  of 
fact  and  law  to  the  department  by  which  it  was  transmitted,  the  claimant  has  no 
right  by  appeal  to  bring  the  action  of  that  court  before  us  for  review. "'^  The  de- 
cision, of  a  commissioner  of  thv.  circuit  court  upon  a  motion  for  bail  and  the  suf- 
ficiency thereof,  is  a  judicial  determination  of  the  very  matter  which  the  statutes 
authorize  and  require  him  "to  hear  and  decide,"  to  wit,  whether  a  party  arrested 
for  a  crime  against  the  United  States,  when  brought  before  him  for  examina- 
tion, shall  be  discharged,  or  committed  on  bail  for  trial,  and  in  default  thereof 
imprisoned.  With  respect  to  motions  for  continuance,  the  granting  or  refusal  of 
them  is  unquestionably  a  necessary  incident  to,  and  a  part  of,  the  hearing  and 
determining  of  criminal  charges ;  and  the  exercise  of  that  power  in  such  criminal 
proceedings  is  indispensable  to  the  right  of  the  accused  to  have  a  fair  and  full 
investigation  of  the  offense  charged  against  him  and  to  a  sufficient  time  for  the 
summoning  of  his  witness  as  well  as  for  employing  and  consulting  with  counsel 
to  aid  him  in  his  defense. ^'^ 

cc.  Judgments  Pro  Forma. — No  appeal  will  lie  by  the  United  States  to  this 
court  from  a  judgment  of  the  court  of  claims  rendered  pro  forma." ^ 

dd.  Judgments  for  Money. — The  only  judgments  which  the  court  of  claims 
are  authorized  to  render  against  the  government,  or  over  which  the  supreme  court 
have  any  jurisdiction  on  appeal,  or  for  the  payment  of  which  by  the  secretary  of 
the  treasury  any  provision  is  made,  are  judgments  for  money  found  due  from  the 
government  to  the  petitioner. ''^ 

(4)  Judgment  Rejecting  Set-Offs  and  Counterclaims. — An  appeal  will  lie  to 
this  court  from  the  judgment  of  the  court  of  claims  rejecting  a  set-off  or  counter- 
claim filed  by  the  United  States.  But  that  is  not  "the  only  remedy  left  to  the 
United  States,  as  the  Court  of  Claims,  on  motion,  might  gran*!:  a  new  trial  in  .such 
a  case,  if  it  appeared  that  any  fraud,  wrong,  or  injustice  had  been  done  to  the 
United    States."63 

g.  Finding  of  Facts — (1)  In  GencraL — The  act  of  March  3,  1863,  12  Stat.  766, 
c.  92 ;  Rev.  Stat.  §  708,  provides  that  in  connection  with  any  final  judgment  ren- 
dered in  the  court  of  claims  there  shall  be  a  finding  of  facts.*''* 

Our  rules  regulating  appeals  from  the  court  of  claims  require  that  the 
record  shall  contain,  among  other  things,  "a  finding  by  the  court  of  claims  of 
the  facts  in  the  case  established  by  the  evidence,  in  the  nature  of  a  special  ver- 
dict, but  not  the  evidence  establishing  them,  and  a  separate  statement  of  the  con- 
clusions of  law  upon  said  facts  on  which  the  court  founds  its  judgment  or  decree. 

58.  Tn  re  Sanborn,  148  U.  S.  222.  226,  37  In  a  proceeding  before  the  court  of 
L.    Ed.   427.  claims,    by    an    officer    in    the    continental 

59.  Tn  re  Sanborn,  148  U.  S.  222,  223,  37  service  for  half  pay  for  life,  whether  the 
L-  Ed.  427.  claimant  was  an  officer  in  the  continental 

60.  United  States  r.  Jones,  134  U.  S.  483,  service  on  the  22d  of  March,  1783.  and 
33  L.  Ed.  1007.  continued  therein  as  such  officer  until  the 

61.  United  States  v.  Gleeson,  124  U.  S.  end  of  the  war,  is  a  question  of  law,  and 
255.  31  L.  Ed.  421,  distinguishing  United  "ot  a  conclusion  of  fact  drawn  from 
States  V.  Stone,  14  Pet.  524,  10  L.  Ed    572.  other  specific  facts  and  circumstances  es- 

62.  United  States  v.  Alire.  6  Wall.  573,  !^blished  by  the  testimony,  and  therefore 
575,     18     L.     Ed.     948,     citing     Gordon     v.  '*    ^^^,  "°J    e"°^-  ^°'    \''.f-,r''"  tt    IVM 

United  States,  2  Wall.  561,  17  L.  Ed.  921.  1°  "if  %',^^'tt    4^'^^?.    ^Ir    .T?  'Vd^^W 

t>o    TT    -4.   J    C4.   i.  r^-r^      J       ^„   -iir   11  states,   137    U.    S.   113.   136.   34   L,.   nd.   aw. 

«.f  •«H"oo'^T  ^^-^^rj.   ^  ^'''^^'  ^^  ^''"-  citin-    United    States    v.    Pugh,    99    U.    S. 

641,  646,  23  L.  Ed.  772.  2g^_  -35    ^     Ed.    322;    Sun    Mutual    Ins.   Co. 

64.   La   Abra   Silver   Mm.    Co.   v.   United  v     Ocean    Ins.    Co.,    107    U.    S.    485,   27   L. 

States,   175  U.   S.   423,   463,   44   L.   Ed.   223;  Ed.    337;    The    P.eleenland,    114   U.    S.    355, 

United   States  v.   Henry,   17   Wall.   405,  21  29  L.   Ed.   152;   McClure  7'.   United  States, 

L.    Ed.    673.  116  U.  S.  145,  29  L.  Ed.   572. 


APPEAL  AND  ERROR. 


513 


The  finding  of  facts  and  conclusions  of  law  to  be  certified  to  this  court  as  a  part 
of  the  record. "^5 

Documents  Not  Referred  to  in  Findings.— Upon  an  appeal  from  the  court 
of  claims,  this  court  may  consider  documents  though  not  referred  to  in  the  find- 
ings of  fact  by  the  court  below,  if  they  are  documents  of  which  this  court  can 
take  judicial  notice.  In  such  case  the  fact  that  they  are  not  incorporated  in  the 
findings  of  the  court  will  not  preclude  us  from  examining  them,  with  a  view  of 
inquiring  whether  they  have  the  bearing  claimed.*'*^ 

Judicial  Notice. — While  it  is  ordinarily  true  that  this  court  takes  notice  of 
only  such  facts  as  are  found  by  the  court  below,  it  may  take  notice  of  matters  of 
common  observation,  of  statutes,  records  or  public  documents,  which  were  not 
called  to  its  attention,  or  other  similar  matters  of  judicial  cognizance.''" 

(2)  In  Cases  of  Equity  Jurisdiction. — The  rule  that  on  appeal  to  this  court,  the 
appeal  cannot  be  heard  where  there  is  not  in  the  record  any  finding  of  the  facts 
in  the  case,  in  the  nature  of  a  special  verdict,  with  a  separate  statement  of  the 
conclusions  of  law  upon  such  facts,  has  no  reference  to  a  case  in  the  court  of 
claims  of  equity  jurisdiction  conferred  in  a  .special  case  by  a  special  act ;  in  such 
a  case,  where  an  appeal  lies  and  is  taken  under  §  707  of  the  Revised  Statutes, 
this  court  must  review  the  facts  and  the  law  as  in  other  cases  in  equity,  appealed 
from  other  courts.*'^ 

(3)  Form,  Sufficiency  and  Contents — In  General. — Rule  one  regulating  ap- 
peals from  the  court  of  claims  provides  that  the  finding  of  the  facts  and  the  con- 
clusions of  law  shall  be  stated  separately  and  certified  to  this  court  as  part  of  the 
record.*'^  The  court  of  claims  should  set  forth  in  its  finding  of  facts  the  amount 
of  loss,  if  any,  which  the  petitioner  has  sustained.'^^  But  it  is  no  ground  for  dis- 
missing an  appeal  from  the  court  of  claims,  that  the  statement  of  facts  found  by 
the  court  of  claims  is  not  a  SL.fficient  compliance  with  the  rules  prescribed  by  the 
supreme  court  on  that  subject.  The  supreme  court  will  of  its  own  motion,  while 
retaining  jurisdiction  of  such  cases,  remand  the  records  to  the  court  of  claims  for 
a  proper  finding.''' ^ 

We  are  not  at  liberty  to  refer  to  the  opinion  for  the  purpose  of  eking  out, 


65.  Rule  1,  §  2.  United  States  v.  Clark, 
94  U.  S.  73,  24  L.  Ed.  67;  United  States 
V.  Pugh.  99  U.  S.  265.  25  L.  Ed.  32-^,  ex- 
plaining United  States  z».  Crusell,  14  Wall. 
1,  20  L.  Ed.  821;  United  States  v.  Ross, 
92  U.  S.  281,  23  L.  Ed.  707;  Intermingled 
Cotton  Cases,  92  U.  S.  651.  23  L.  Ed.  756. 

66.  New  York  Indians  v.  United  States, 
170  U.  S.  1,  42  L.  Ed.  927,  citing  Jones  v. 
United  States,  137  U.  S.  202,  34  L.  Ed. 
691. 

67.  New  York  Indians  z'.  United  States, 
170  U.  S.  1.  32,  42  L.  Ed.  927. 

68.  United  States  v.  Old  Settlers.  148 
U.  S.  427.  464,  37  L.  Ed.  509,  citing  and 
approving  Harvey  v.  United  States,  105 
U.  S.  671.  26  L.  Ed.   1206. 

"The  present  proceeding,  we  think, 
comes  within  the  principle  announced  in 
Harvey  v.  United  States.  105  U.  S.  671, 
691,  26'  L.  Ed.  1206,  where  it  was  said  that 
the  rule  in  regard  to  findings  of  fact  in 
the  court  of  claims  had  no  reference  to  a 
case  "of  equity  jurisdiction  conferred  in  a 
special  case  by  a  special  act"  in  wh'  h 
"this  court  must  review  the  facts  and  the 
law  as  in  other  cases  in  equity  appealed 
from  other  courts."  This  principle  was 
approved  and  applied  in  United   States  v. 

1  U  S  Knc-33 


Old  Settlers.  148  U.  S.  427.  428,  465,  37 
L.  Ed.  509."  La  Abra  Silver  Min.  Co.  v. 
United  States,  175  U.  S.  423,  465,  44  L. 
Ed.    223. 

Upon  an  appeal  to  this  court  from  the 
court  of  claims  it  is  contenrled  on  the 
part  of  the  United  States  that  this  court 
cannot,  under  its  rules,  hear  this  appeal, 
because  there  is  not,  in  the  record,  any 
finding  by  the  court  of  claims  of  the  facts 
in  the  case,  in  the  nature  of  a  special  ver- 
dict, with  a  separate  statement  of  the 
conclusions  of  law  upon  such  facts.  But 
the  rule  in  regard  to  findings  of  fact  has 
no  reference  to  a  case  like  the  present, 
of  equity  jurisdiction  conferred  in  a  spe- 
cial case  by  a  special  act;  and.  in  such  a 
case,  where  an  appeal  lies  and  is  taken 
under  §  707  of  the  Revised  Statutes,  this 
court  must  review  the  facts  and  the  law 
as  in  other  cases  in  equity,  appealed  from 
other  courts.  Harvev  v.  United  States, 
105  U.  S.  671,  691,  26  L.  Ed.  1206. 

69.  Mahan  v.  United  States.  14  Wall. 
109,  110,  20   L.   Ed.  764. 

70.  United  States  v.  Clark,  94  U.  S.  73, 
24    L.    Ed.    67. 

71.  United  States  v.  Adams.  6  Wall.  101, 
18   L.   Ed.  792. 


514  APPEAL  AND  ERROR. 

controlling  or  modifying  the  scope  of  the  findings/ ^  where  the  finding  of  the  court 
of  claims  does  not  disclose  its  testimony,  but  only  describes  its  character,  and 
without  questioning  its  competency,  simply  declares  its  insufficiency. '''^ 

(4)  Right  to  Bring  Up  Ezndencc  on  Which  Findings  Are  Based— slsl.  hi  Gen- 
gyai — Rule  one  regulating  appeals  from  the  court  of  claims  provides  that  tlie  facts 
so  found  are  to  be  the  ultimate  facts  or  propositions  which  the  evidence  shall  es- 
tablish, in  the  nature  of  a  special  verdict,  and  not  the  evidence  on  which  those 
ultimate  facts  are  foundedJ^  The  4th  and  5th  rules  regulating  appeals  from  the 
court  of  claims,  were  designed  to  enable  a  party  to  secure  a  finding  of  fact  on  any 
point  material  to  the  decision  by  that  court.  But  a  failure  of  the  court  to  find  the 
fact  as  the  party  alleges  it  to  be,  will  not  justify  the  bringing  of  all  the  evidence 
on  that  subject  before  this  court,  though  on  a  refusal  of  that  court  to  make  any 
finding  on  the  subject,  the  supreme  court  may  remand  the  case  for  such  finding.'^ ^ 
And  when  the  court  of  claims  sends  here  as  part  of  its  finding  all  the  evidence 
en  which  a  fact  essential  to  the  judgment  there  rendered  was  found,  from  which 
it  appears  that  there  was  no  legal  evidence  to  establish  such  fact,  this  court  must, 
on  appeal,  reverse  the  judgment.'^  In  other  words,  this  court  cannot  under  the 
rule  governing  appeals  from  the  court  of  claims,  remand  a  cause  to  the  court  of 
daims  with  directions  to  send  the  evidence  from  which  their  findings  of  fact 
were  made  to  this  court  for  revision.*''^ 

bb.  Where  Rights  of  Parties  Depend  upon  Circumstantial  Facts. — The  judg- 
ment of  the  court  of  claims  as  to  th€  legal  effect  of  what  may,  perhaps  not  im- 
properly, be  termed  the  ultimate  circumstantial  facts  of  the  case,  is,  if  the  ques- 
tion is  properly  presented,  subject  on  appeal  to  be  here  reviewed;  and  where  the 
rights  of  the  parties  depend  upon  such  circumstantial  facts  alone,  and  there  is 
doubt  as  to  the  legal  effect  of  them,  it  is  the  duty  of  that  court  to  frame  its  find- 
aigs  so  that  the  question  as  to  siich  effect  shall  be  presented  by  the  record.''* 
Where  in  a  suit  arising  in  the  court  of  claims  under  the  abandoned  and  captured 
property  act,  which  authorizes  the  recovery  in  the  court  of  claims  of  the  pro- 
ceeds of  property  captured  and  without  judicial  condemnation  sold  by  the  military 
authorities,  no  direct  proof  is  ^ven  that  the  proceeds  of  the  sale  were  paid  in  the 
treasury,  but  the  evidence  as  to  that  fact  is  circumstantial,  the  judgment  of  the 

72.  British  Queen  Min.  Co.  v.  Baker  to  enable  a  party  to  secure  a  finding  of 
Silver  Min.  Co.,  139  U.  S.  222,  35  L.  Ed.  fact  on  any  point  material  to  the  decision 
M7;  Lehnen  v.  Dicksj3n,  148  U.  S.  71,  of  that  court.  But  a  failure  of  the  court 
37  L.  Ed.  373;  Saltonstall  v.  Birtwell,  to  find  the  fact  as  the  party  alleges  it  to 
150  U.  S.  417,  37  U  Ed.  1128;  Stone  v.  be.  will  not  justify  the  bringing  of  all 
United  States,  164  U.  S.  380,  383,  41  L.  the  evidence  on  that  subject  before  this 
Ed.   477.  court,    though   on    a   refusal   of   that   court 

73.  Stone  v.  United  States.  164  U.  S.  to  make  any  finding  on  the  subject,  the 
380.  41  L.  Ed.  477,  distinguishing  United  supreme  court  may  remand  the  case  for 
States  V.  Clark,  96  U.  S.  37,  24  L.  Ed.  G96,  such  finding.  Mahan  v.  United  States, 
on    the    ground    that    in   that   case   in    one  14  Wall.  109,  20  L.  Ed.  764. 

fiading  the    testimony   was   stated,   and   in  76.  United  States  v.  Clark,  96  U.   S.  37, 

another  the   conclusion  as  to  the  ultimate       24    L.    Ed     696. 

fact,    and    therefore    the    court    held,    that       "^  «»    tt   -l  ^    c*  ^  c  <■    101    tt    Q 

„       •   u.  A       4.U  ai   ■  r  1  77.    United    States   v.    bmoot,   131    U.    &• 

It   might   consider   the   sufficiency   of   such  .  j     «_■        t;  ' 

tsestimony  to  establish  that  principal  fact.  "PP^'  ^'^^'^  "^^   ^-   ^°-  ^"'• 

74.  Mahan  v.  United  States,  14  Wall.  The  court  refuses  a  rule  on  the  court 
109,  110.  20  U.  Ed.  764.  of   claims   to    certify   up   evidence   used  in 

75.  Mahan  'v.  United  States,  14  Wall.  that  court  on  the  trial  of  a  cause  which 
109,  20   L.   Ed.  764.  li'is    been    brought    here    by    appeal    from 

The  fourth   rule  regulating  appeals   in  a  that    court.      Stark   v.    United    States,    131 

oourt    of    claims,    requires    that    court    to  U.   S.  appx.   ccv. 

make   and   file  their  finding  of  facts  in  all  78.  United  States  v.  Pugh,  99  U.  S.  265, 

cases    where    an    appeal    can   be    taken,    in  25  L.  Ed.  322,  distinguishing  United  States 

Open   court,   at   or  before  the   time   of   en-  v.   Ross,  92  U.   S.  2:^1.  23   L.   Ed.  707;  In- 

tering  their  judgment.     The  fifth  rule   en-  termingled    Cotton    Cases,    92    U.    S.    651, 

^!es   a  party  to   obtain   a  finding  of  that  23    L.    Ed.    756;    United    States   v.    Crusel, 

court   on   any   question   of  fact    arising   in  14    Wall.    1,    20    L.    Ed.    821;    Williams   v. 

the   case  and   deemed  by  him  essential   to  United   States,    137    U.    S.    113,    136,   34   L. 

its    decision.      These   rules   were    designed  Ed.   590. 


APPEAL  AND  ERROR. 


515 


court  of  claims  as  to  the  legal  effect  of  what  may,  perhaps  not  improperly,  be 
termed  the  ultimate  circumstantial  facts  of  the  case,  is  if  the  question  is  prop- 
erly presented,  subject  to  be  reviewed  here  on  appeal."**  And  the  rule  is  equally 
applicable  to  appeals  from  decrees  in  admiralty  in  the  circuit  court  of  the  United 
States  under  the  act  of  1875.^0 

(5)  Requests  for  Findings. — Rule  five  regulating  appeals  from  the  court  of 
claims  provides  that  in  all  such  cases  either  party,  on  or  before  the  hearing  of  the 
cause,  may  submit  to  the  court  a  written  request  to  find  specifically  as  to  the  mat- 
ter of  fact  which  such  party  may  deem  material  to  the  judgment  in  the  case,  and 
if  the  court  fails  or  refuses  to  find  in  accordance  with  such  prayer,  then  such 
jM-ayer  and  refusal  shall  be  made  a  part  of  the  record,  certified  on  the  appeal, 
to  this  court.  It  will  be  seen  that  the  fifth  rule  enables  a  party  to  obtain  a  find- 
ing of  that  court  on  any  question  of  fact  arising  in  the  case  and  deemed  by  him 
essential  to  its  decision.  He  has  only  to  file  a  written  request  that,  as  to  that 
point,  the  court  will  make  a  finding.  The  rule  does  say  that  if  the  court  of  claims 
refuses  to  find  as  prayed,  the  prayer  and  refusal  must  be  made  part  of  the  record. 
The  remedial  purpose  of  this  rule  is  that  when  a  party  has,  in  writing,  indicated 
a  specific  question  of  fact  on  which  he  desires  the  court  of  claims  to  make  a  find- 
ing, and  the  court  has  neglected  or  refused  to  do  so,  this  court  may  be  able  to 
determine  whether  the  question  is  one  so  necessary  to  the  decision  of  the  case 
that  it  will  send  it  back  for  such  finding.^^  A  request  for  an  order  upon  the  court 
of  claims  for  an  additional  finding  will  be  refused,  where  riiat  court  has  not  bee/i 
requested  to  make  the  findings,  in  accordance  with  rules  4  and  5  regulating  appeals 
there  from.  ^2 

(6)  Time  of  Filing  Findings. — The  fourth  requires  the  court  of  claims  t© 
make  and  file  their  finding  of  facts  in  all  cases  where  an  appeal  can  be  taken,  in 
open  court,  at  or  before  the  time  of  entering  their  judgment.*-^ 

(7)  Remedy  in  Case  of  Mistakes  as  to  Findings. — The  remedy  in  case  the 
court  of  claims  falls  into  a  mistake  as  to  the  finding  of  the  facts,  is  familiar.  It 
is  by  an  application  to  this  court  to  remit  the  case  back  for  correction,  if  it  be 
shown,  satisfactorily,  that  a  mistake  has  been  committed.    Where,  after  an  appeal 


79.  United  States  v.  Pugh,  99  U.  S.  265, 
25   L.   Ed.    322. 

Where,  in  a  suit  arising  under  the  act 
of  March  12,  1863  (12  Stat.  820),  relative 
to  abandoned  and  captured  property,  as 
extended  by  the  act  of  July  2,  1864  (13 
Stat.  375),  no  direct  proof  was  given 
that  the  proceeds  of  the  sale  of  the  prop- 
erty were  paid  into  the  treasury,  if  the 
circumstantial  facts  which  are  established 
by  the  evidence  arc  set  forth  in  the  find- 
ing of  the  court  of  claims,  which  it  sends 
liere  as  that  upon  which  alone  its  judg- 
ment was  rendered,  and  they  are.  in  the 
absence  of  anything  to  the  contrary,  the 
legal  equivalent  of  a  direct  finding  that 
such  proceeds  were  so  paid,  this  court 
will  not  on  that  account  reverse  the  judg- 
ment. United  States  v.  Pugh,  99  U.  S. 
265,  25   L.   Ed.   322. 

80.  Sun  Mut.  Ins.  Co.  v.  Ocean  Ins.  Co.. 
10~  U.  S.  485.  27  L.  Ed.  337.  following 
United  States  v.  Pugh.  99  U.  S.  265,  25 
L.  Ed.  322;  The  Edwin  I.  Morrison,  153 
U.  S.  199.  38   L.    Ed.   688. 

81.  Mahan  :■.  United  States,  14  Wall. 
If9.   no.   111,  112.  20   L.   Ed.   764. 

The  fourth  rule  regulating  appeals  from 
the  court  of  claims,  requires  that  court 
fo  file  its  findings  of  facts  at  or  before 
"the   time    of   entering    the   judgment,    and 


the  fifth  permits  either  party  to  call  for 
a  finding  upon  a  special  question  deemefii 
material  to  the  judgment  in  the  case, 
and,  if  refused,  to  ask  this  court  to  pass 
upon  the  materiality  of  the  fact  alleged, 
and,  should  it  be  considered  material,  to 
send  down  for  the  finding.  The  object  is 
to  present  the  question  here  as  upon  an 
exception  to  the  ruling  of  the  court  below 
in  respect  to  the  materiality  of  the  fact. 
For  that  purpose  it  must  have  been  sub- 
mitted to  the  court  in  a  written  request, 
as  provided  in  the  rule.  United  States  v. 
Driscoll,  131  U.  S.  appx.  clix,  24  L.  Ed. 
596;  Mahan  v.  United  States,  14  Wall. 
109.    20    L.    Ed.    764. 

82.  United  States  v.  Adams,  9  Wall. 
061,  19  L.  Ed.  808;  Mahan  v.  United  States 
14  Wall.  109,  112,  20  L.  Ed.  764;  United 
States  V.  Driscoll,  131  U.  S.  appx.  clix, 
24  L.  Ed.  596. 

A  motion  for  an  order  upon  the  court 
of  claims  to  make  and  return  additiona4 
findings,  will  be  denied,  unless  that  ap- 
plication has  been  submitted  to  the  court 
in  a  written  request,  as  provided  in  the 
fourth  rule  regulating  appeals  from  the 
court  of  claims.  United  States  v.  Dris- 
coll.  131   U.    S.,   appx.   clix.   24   L.    Ed.   596. 

83.  Mahan  v.  United  States,  14  Wall. 
109,  112,  20  L.  Ed.  764. 


516  APPEAL  AND  ERROR. 

taken  to  this  court  from  the  court  of  claims,  a  party  and  his  counsel  are  aware 
that  the  finding  of  the  court  of  claims  on  a  point  of  fact  is  erroneous,  in  time  to 
have  it  corrected,  before  the  hearing  here,  by  an  application  to  this  court  to  re- 
mit the  case  to  that  court  for  correction,  this  court  will  not,  after  it  has  heard  the 
case  and  given  a  decree  as  if  the  finding  were  in  all  respects  correct,  stay  the  man- 
date and  reform  their  decree,  so  tlmt  the  party  alleging  the  error  may  obtain  a 
correction  of  the  record  from  the  court  of  claims,  and  have  the  cause  heard  again. 
And  this  is  so,  although  the  party  and  his  counsel  honestly  entertained  the  opin- 
ion that  the  fact,  so  erroneously  found  and  stated,  was  not  a  material  one  in 
the  case ;  an  opinion  in  which  they  were  not  sustained  by  the  opinion  of  this  court 
as  afterwards  given. ^^ 

(8)  Conclusiveness  of  Findings. — The  finding  of  facts  by  the  court  of  claims^ 
in  the  nature  of  a  special  verdict,  is  conclusive  here,  unless  impeached  for  some 
error  in  law  appearing  in  the  record. ^^ 

(9)  Construction  of  Findings. — Within  the  well-known  rules  governing  the 
construction  of  findings  of  facts  by  trial  courts,  we  cannot  so  construe  a  find- 
ing of  the  court  of  claims  as  to  render  the  result  arrived  at  by  the  court  below  er- 
roneous, when  another  construction  much  more  reasonable  and  natural  may  be 
given  it,  and  the  judgment  thus  rendered  valid. -^ 

h.  Revietv  of  Findings  on  Questions  of  Fact — (1)  In  General. — This  court 
does  not  sit  to  review  findings  of  fact  made  in  the  court  of  claims.  They  are 
regarded  as  conclusive  here,  and  our  jurisdiction  is  limited  to  a  determination 
©f  siKh  questions  of  law  as  are  properly  brought  to  our  attention  upon  the  rec- 
ord.^ The  findings  of  the  court  of  claims  in  an  action  at  law  determines  all 
matters  of  fact,  like  the  verdict  of  a  jury,  and  where  there  is  any  evidence  of  a 
fact  which  they  find,  and  no  exception  is  taken,  their  finding  is  final. ^^  Under 
our  rule  the  facts  are  to  be  settled  by  the  court  of  claims,  and  an  appeal  brings 
op  for  review  only  the  decisions  of  that  court  upon  questions  of  law  arising  in 
the  course  of  the  trial  or  in  the  application  of  the  law  to  the  facts  as  finally  found. 
There  is  nothing  unusual  in  this.  In  an  ordinary  suit  at  law  the  facts  are  settled 
in  the  trial  court,  and  only  questions  of  law  are  carried  to  the  appeHate  court 
f@r  review.  Upon  writs  of  error  we  hear  the  case  only  on  findings  of  fact  or 
exceptions  to  rulings  of  the  court  in  the  progress  of  the  trial.  Generally,  in  a  suit 
at  la-w.  there  is  but  one  trial  upon  questions  of  fact.^^  Where  no  exception  has 
been  taken  to  the  findings  of  fact  of  the  court  of  claims,  and  as  the  testimony  is 
not,  and  under  our  rules  cannot  be,  sent  up  with  the  record,  these  findings  must 

84.  United  States  v.  Adams,  9  Wall.  89.  Union  Pac.  R.  Co.  v.  United  States, 
661,  664,  19  L.  Ed.  808.                                                116   U.    S.    154,    157.   29   L.    Ed.    584,    citing 

85.  United  States  v.  Smith,  94  U.  S.  214.  >r-Ch're  v.  United  States,  116  U.  S.  14S, 
24  L.  Ed.  115.  ~9  L.  Ed.  572. 

•«    TT   -1  J  Oi  <.  A     I  t^n  TT    c  On   appeal  to  this  court  from  the  court 

o«^oo^r^  T     ?^  ^'«^  ^"^'■^^'''  1'^  U-   ^-  of   claims,    only   questions    of    law   can   be 

96,  99,  45   U   Ed.   165.  •  reviewed.      Accordingly   a   finding   of  fact, 

87.  District  of  Columbia  v.  Barnes.  197  jf  there  is  nothing  in  the  other  findings 
U.  S.  146,  1.50.  49L.  Ed.  699:  United  States  ^^  elsewhere  in  the  record  which  author- 
V.  Smith,  94  U.  S.  214,  218,  24  L.  Ed.  115;  j^es  us  to  go  behind  that  finding  and 
United  States  v.  Milhken  Printing  Co.,  conclude  that  there  was  error  in  respect 
202  U.  S.  173.  174,  50  L.  Ed.  980;  Har-  thereof,  will  not  be  reviewed  here.  Tal- 
vey  V.  United  States.  105  U.  S.  671,  26  bert  v.  United  States,  155  U.  S.  45,  38  L. 
L.   Ed.   1206.  gd    64 

88.  Act  of  March  3.  1887,  c.  359;  §§2,  7,  The  supreme  court  will  not  review  the 
2-4  Stat.  505,  Act  of  March  3,  1891,  c.  538;  findings  of  fact  made  by  the  c-.urt  of 
§§  1,  4,  26  Stat.  851.  852;  Desmare  v.  claims  in  an  action  at  law.  This  court 
United  States,  93  U.  S.  605,  610,  23  L.  Ed.  accepts  the  findings  of  ultimate  fact  made 
959;  McClure  v.  United  States,  116  U.  by  the  court  below  an-d  cannot  review 
S.  145,  29  L.  Ed.  572;  Stone  v.  United  them.  Collier  v.  United  States,  173  U. 
Slates.  164  U.  S.  380.  382,  41  L.  Ed.  477;  S.  79.  43  L.  Ed.  621;  Mahan  v.  United 
Talbert  v.  United  States.  155  U.  S.  45.  38  States,  14  Wall.  109,  20  L.  Ed.  764;  Stone 
L.  Ed.  64;  United  States  v.  New  York  t'.  United  States,  164  U,  S.  380,  41  L.  Ed. 
Indians,  173  U.  S.  464.  470,  43   L.   Ed.   769.  477. 


APPEAL  AXD  ERROR. 


517 


be  accepted  as  conclusive.^o  Therefore,  this  court  will  not  remand  a  cause  to  the 
court  of  claims  with  directions  to  make  return  to  this  court  whether  or  not  the 
evidence  upon  which  such  cause  was  heard  and  determined  does,  or  does  not, 
estabhsh  and  prove  the  several  separate  and  distinct  propositions  of  fact  con- 
tained in  the  requests  for  findings  of  fact  presented,  if  that  would  require  this 
court  on  appeal  to  decide  upon  the  weight  of  evidence.  The  question  depend- 
ing on  the  weight  of  evidence  must  be  conclusively  settled  below. ''^  When  the 
court  of  claims,  on  being  requested  by  a  party  in  a  cause  there  pending  to  find 
specifically  upon  several  facts  which  are  only  incidental  facts  and  amount  only 
to  evidence  touching  the  main  facts  in  issue,  and  the  court  disregards  the  requests 
and  finds  the  facts  at  issue  generally,  and  judgment  is  entered,  and  the  party 
whose  request  was  denied  appeals,  this  court  will  not  remand  the  case  to  the 
court  of  claims,  with  directions  to  specifically  pass  upon  each  of  said  requests,  or 
to  make  a  finding  of  facts  on  the  subject  embraced  in  each  of  said  requests.^2 

Findings  on  Weight  and  Sufficiency  of  Evidence. — This  court  will  not  re- 
view the  findings  of  the  court  of  claims  on  the  weight  and  sufficiency  of  evidence. 
*\M1  we  can  do  is  to  declare  the  law  upon  facts  which,  so  far  as  we  are  concerned, 
must  be  taken  to  be  undisputed.""" 

There  is  nothing  in  Rev.  Stat.,  §  5261,  authorizing  certain  railroad  com- 
panies to  bring  suits  against  the  United  States  in  the  court  of  claims  to  recover 
the  price  of  freight  or  transportation,  which  takes  those  suits  out  of  the  opera- 
tion of  the  general  rules  of  this  court  regulating  appeals  from  the  court  of  claims, 
or  which  makes  it  proper  for  this  court  to  require  the  court  of  claims  to  send  up 
with  its  findings  of  facts  the  evidence  in  regard  to  them.""* 

(2)  Limitations  of  General  Rule. — But  the  rule  is  otherwise  as  to  appeals  in 
equity."-^ 

Ultimate  Circumstantial  Facts. — And  on  appeal  to  this  court  from  a  de- 
cision of  the  court  of  claims  under  the  abandoned  and  captured  property  act,  it 


90.  Kirk  r.  United  States,  le."?  U.  S.  49, 
41    L.   Ed.   66. 

The  question  as  to  what  is  a  reasonable 
royalty  for  the  use  of  a  patented  inven- 
tion, is  a  question  of  fact  to  be  deter- 
mined by  the  court  of  claims,  and  its  de- 
termination, as  expressed  in  its  findings, 
is  conclusive  upon  us,  unless  from  other 
findings  it  is  apparent  that  there  was  er- 
ror. United  States  z'.  Berdan  Fire-Arms 
Mfg.  Co..  1.56  U.  S.  .5.52,  38  L.  Ed.  5.30. 

91.  McClure  7:  United  States.  116  U.  S. 
145.  29  L.  Ed.  572,  citing  Burr  v.  Des 
Moines,  etc.,  Co.,  1  Wall.  99,  17  L.  Ed. 
561;  United  States  z:  Pugh,  99  U.  S.  265. 
25  L.  Ed.  322;  The  Francis  Wright,  105 
U.  S.  3S1.  26  L.  Ed.   1100. 

"In  McClure  v.  United  States,  116  U. 
S.  145,  29  L.  Ed.  572,  this  court  distinctly 
held,  that  it  would  not  remand  a  case  to 
the  court  of  claims  with  directions  to  re- 
turn whether  certain  distinct  propositions, 
in  requests  for  findings  of  fact,  presented 
to  that  court  at  the  trial  of  the  case,  were 
established  and  proved  by  the  evidence, 
if  it  appeared  that  the  object  of  the  re- 
quest to  have  it  so  remanded  was  to  ask 
this  court  to  determine  questions  of  fact 
upon  the  evidence."  United  States  v.  New 
York  Indians,  173  U.  S.  464,  471,  43  L.  Ed. 
76f>. 

92.  Union  Pac.  R.  Co.  v.  United  States, 
116  U.  S.  154,  29  L.  Ed.  584,  following 
McClure  z:  United  States,  IIG  U.  S.  145, 
29  L.  Ed.  572; 


93.  Burr  t'.  Des  Moines,  etc..  Co.,  1 
Wall.  99,  102.  17  L.  Ed.  561;  United 
States  V.  Pugh,  99  U.  S.  265.  25  L.  Ed. 
322;  The  Francis  Wright,  105  U.  S.  381, 
26  L.  Ed.  1100;  McClure  v.  United  States, 
116  U.  S.  145,  29  L.  Ed.  572;  Union  Pac. 
R.  Co.  V.  United  States,  116  U.  S.  154, 
29  L.  Ed.  584. 

94.  Union  Pac.  R.  Co.  v.  Unrted 
States.  116  U.  S.  154,  29  L.  Ed.  584.  fol- 
lowing McClure  v.  United  States,  116  U. 
S.   145,   29  L.   Ed.  572. 

95.  In  Harvey  v.  United  States,  105  U. 
S.  671,  26  L.  Ed.  1206,  the  suit  was  brought 
under  a  statute  passed  April  14,  1876,  19 
Stat.  490,  ch.  279,  which  authorized  the 
court  of  claims  "to  proceed  in  the  ad- 
justment of  the  accounts  between  said 
claimants  and  the  United  States  as  a 
court  of  equity  jurisdiction;  and  may,  if 
according  to  the  principles  of  equity  ju- 
risprudence in  its  judicial  discretion,  re- 
form said  contract  and  render  such  judg- 
ment as  justice  and  right  between  the 
claimants  and  the  said  government  may 
require."  An  appeal  to  this  court  was 
also  given,  and  we  held  that,  as  the  suit 
was  to  be  in  equ'tv,  the  parties  were  en- 
titled to  an  appeal  in  equity,  which  should 
bring  up  for  review  the  facts  as  well  as 
the  law.  United  States  v.  Old  Settlers. 
148  TJ.  S.  427.  464.  37  L.  Ed.  509,  approved 
in  M-Clure  v.  Ur-.ed  States,  116  U.  S. 
145,  149,   29  L.   Ed.   572. 


518  APPEAL  AND  ERROR. 

was  held,  that  a  judgment  of  the  court  of  claims  as  to  the  legal  efifcct  of  what 
may,  perhaps  not  improperly,  be  called  the  ultimate  circumstantial  facts  of  the 
case,  may  be  brought  here  for  review  on  appeal  if  the  question  is  properly  pre- 
sented, but  when  the  rights  of  parties  depend  upon  circumstantial  facts  alone,  and 
there  is  doubt  as  to  the  legal  efifect  of  them,  it  is  the  duty  of  the  court,  when  re- 
quested, to  so  frame  its  findings  as  to  put  the  doubtful  question  into  the  record. 
This  would  not  recjuire  us  on  the  appeal  to  decide  upon  the  weight  of  evidence. 
That  is  done  in  the  court  below  when  the  particular  fact  is  found  which  the  evi- 
dence tends  to  prove.  The  effect  of  mere  evidence  stops  when  the  fact  it  proves 
is  established.^^  The  accuracy  of  its  ultimate  finding  may  be  reviewed  by  this, 
court  by  a  reference  to  the  special  facts  found  as  a  basis  for  such  finding.^^ 

i.  Assignment  of  Errors. — \\'here  the  court  of  claims,  on  a  claim  embracing 
several  items,  rejects  some  but  allows  others,  aj^ainst  which  allowance  the  United 
States  alone  appeals,  this  court  will  not  give  consideration  to  the  items  rejected 
and  against  whose  rejection  the  claimant  has  not  appealed,  except  so  far  as  may  be 
necessary  for  a  proper  understanding  of  the  item  allowed. ^^ 

j.  Transfer  of  Cause — (1)  Alhwance  of  Appeal. — Rule  of  Court. — In  a\\ 
cases  in  which  judgments  or  decrees  have  heretofore  been  r>^ndered,  when  either 
party  is  by  law  entitled  to  an  appeal,  the  party  desiring  it  shall  make  application 
to  the  court  of  claims  by  petition  for  the  allowance  of  such  appeal.  Said  petition 
shall  contain  a  distinct  specification  of  the  errors  alleged  to  have  been  committed 
by  said  court  in  its  ruling,  judgment,  or  decree  in  the  case.  The  court  shall,  if 
the  specification  of  alleged  error  be  correctly  and  accurately  stated,  certify  tlie 
same,  or  may  certify  such  alterations  and  modifications  of  the  points  decided  and 
alleged  for  error" as  in  the  judgment  of  said  court  shall  distinctly,  fully,  and  fairly 
present  the  points  decided  by  the  court.  This,  with  the  transcript  mentioned 
in  Rule  I  (except  the  statement  of  facts  and  law  therein  mentioned),  shall  con- 
stitute the  record  on  which  those  cases  shall  be  heard  in  the  supreme  court. ^^  The 
object  of  this  rule,  as  well  as  of  the  first,  is  to  present  in  simple  form  the  questions- 
of  law  which  arose  in  the  progress  of  the  case,  and  which  were  decided  by  the 
court  adversely  to  appellant.  Only  such  statement  of  facts  is  intended  to  be 
brought  to  this  court  as  may  be  necessary  tiD  enable  it  to  decide  upon  the  cor- 
rectness of  the  propositions  of  law  ruled  by  the  court  of  claims,  and  that  is  ta 
be  presented  in  the  shape  of  the  facts  found  by  that  court  to  be  established  by 
the  evidence  (in  such  form)  as  to  '•aise  the  legal  question  decided  by  the  court. 
It  should  not  include,  the  evidence  n  detail.^ 

In  all  cases  an  order  of  allowance  of  appeal  by  the  court  of  claims,  or  the 
chief  justice  thereof,  in  vacation,  is  essential,  and  the  limitation  of  time  for  grant- 
ing such  appeal  shall  cease  to  run  from  the  time  an  application  is  made  for  the 
allowance  of  appeal. ^  But  the  allowance  of  an  appeal  to  this  court  by  the  court 
of  claims,  does  not  absolutely  and  of  itself  remove  the  cause  from  the  jurisdiction 
of  the  latter  court,  so  that  no  order  revoking  such  allowance  can  be  made.^ 

(2)  Remedies. — In  General. — From  the  judgments  of  the  court  of  claims  ap- 
peals are  allowed  to  this  court  (§  707,  Rev.  Stat.),  but  no  provision  has  been  made 
for  writs  of  error.  Consequently,  we  cannot  proceed  by  writ  of  error  to  review 
the  decisions  of  that  court.'*  Therefore,  where  an  appeal  from  the  court  of 
claims  has  been  dismissed  on  the  motion  of  the  United  States,  because  the  court 

96.  United  States  v.  Piigh,  99  U.  S.  265,  98.  United  States  v.  Hickey,  17  Wall.  9^ 
25    L.    Ed.    322,    explaining   United    States       21   L.    Ed.   559. 

V.    Crussell,    14    Wall.    1,    20    L.    Ed.    821;  99.  Rule  II,  3  Wall.  vii. 

United  States  v.   Ross.  92  U.  S.  281,  23  L-  1.   De    Groot   v.    United   States,   5   Wall 

Ed.   707;      Intermingled    Cotton   Cases,   92  419,  427.  18  L.  Ed.  700. 

U.  S.  651,  23  L.  Ed.  756.  followed  in  Sun  2.   Rule  III.  3  Wall.  viii. 

Mut.   Ins.   Co.   V.    Ocean    Ins.   Co..   107   U.  3.    Ex   parte    Roberts,    15   Wall.    384,   21 

S.  485,  27   L.    Ed.   337.  L.   Ed.   131. 

97.  United  States  v.  Pugh,  99  U.  S.  265,  4.  United  States  v.  Young,  94  U.  S.  258, 
25   L.   Ed.  322;   Montoya  v.  United  States,  259,  24  L-   Ed.   153. 

180  U.   S.  261,  269,  45   L.   Ed.  524. 


APPEAL  AXD  ERROR.  519 

of  claims  has  granted  a  new  trial  during  the  pendency  of  the  appeal  in  this  court, 
a  writ  of  error  will  not  be  granted  to  compel  that  court  to  send  here  the  pro- 
ceedings subsequent  to  the  appeal:  but  the  appeal  will  be  dismissed.  After  judg- 
ment has  been  finally  rendered  by  the  court  of  claims,  the  proceedings  in  which 
the  new  trial  was  obtained  may  be  brought  here  by  appeal  alone  and  not  by  writ 
of  error. 5 

But  under  the  act  of  March  3,  1887,  c.  359,  entitled  "An  act  to  provide 
for  the  bringing  of  suits  against  the  government  of  the  United  States,"  and  com- 
monly known  as  the  Tucker  Act,  it  is  "reasonably  clear  that  congress  intended  that 
the  final  determination  of  suits  brought  under  this  act  in  a  district  or  circuit  court  of 
the  United  States  shall  be  reviewed  here  upon  writ  of  error,  if  the  case  be  one  at 
law,  and  upon  appeal,  if  the  case  is  one  cognizable  in  equity  or  in  admiralty  un- 
der the  existing  statutes  regulating  the  jurisdiction  of  those  courts."^ 

The  remedy  by  which  to  correct  error  of  law  in  cases  in  the  court  of 
claims  is  by  appeal  and  not  by  motion  for  a  new  trial  under  §  1088  of  the  Re- 
vised Statutes.'^ 

(3)  Limitations. — The  act  of  congress,  March  3d,  1863.  now  708  of  the 
Revised  Statutes,  authorizes  appeals  from  the  court  of  claims  to  this  court 
under  such  regulations  as  this  court  cay  direct,  provided  such  appeals 
be  taken  within  ninety  days  after  such  judgment  or  decree  is  rendered. 
By  our  third  rule,  regulating  these  appeals,  we  directed  that  this  limita- 
tion of  ninety  days  should  "cease  to  run  from  the  time  of  the  application  for  the 
appeal."  In  other  words,  the  appeal  was  taken,  in  the  sense  of  the  act,  when  the 
defeated  party  in  the  court  of  claims  signified,  by  his  motion  for  the  allowance 
of  an  appeal,  his  desire  to  take  one.  But,  by  the  same  rule,  we  declared  that  an 
allowance  by  the  court  or  the  chief  justice  in  vacation  was  essential  to  the  per- 
fecting of  an  appeal;  so  that  there  might  be,  between  the  motion  for  the  appeal 
and  its  allowance,  an  interval  of  time,  greater  or  less  as  might  be  determined  by 
tlie  convenience  of  counsel,  subject  to  the  discretion  of  the  court. ^  An  act  of  con- 
gress passed  5th  of  January,  1883,  directed  the  court  of  claims  to  reopen  and  re- 
adjudicate  the  case  upon  evidence  heretofore  submitted  to  the  court,  and  if  it 
should  find  in  such  readjudication  from  such  evidence  an  additional  sum  as  be- 
ing justly  due,  that  i-t  shall  make  the  amount  of  such  readjudication  a  part  of  this 
judgment.  It  was  held,  that  this  was  not  intended  to  confer  an  appeal  from  the 
original  judgment,  if  at  that  time  it  was  barred  by  lapse  of  time.  The  court 
said:  "Certainly  the  old  judgment  is  not  opened  to  an  appeal  by  the  readjudica- 
tion. and  there  is  nothing  to  indicate  that  the  new  part  of  the  judgment  can  be 
separated  from  the  old  for  the  purposes  of  review  here."^ 

(4)  The  Record. — In  General. — The  original  act  which  gave  the  right  of  ap- 
peal from  tl>e  court  of  claims  to  this  court  was  passed  March  3.  1863,  and  pro- 
vided that  the  appeals  should  be  "under  such  regulations  as  the  supreme  court  may 
direct."  12  Stat.  766,  ch.  92,  §  5.  This  provision  is  still  found  in  §  708  of 
the  Revised  Statutes.  At  the  December  term,  1865,  this  court  adopted  certain 
rules  for  the  regulation  of  such  appeals,  and  Rule  1  was  as  follows :  "Rule 
1.  In  all  cases  hereafter  decided  in  the  court  of  claims  in  which,  by  the  act  of 
congress,  such  appeals  are  allowable,  they  shall  be  heard  in  the  supreme  court 

5.  United  States  v.  Young,  94  U.  S.  258,  Suspension  of  limitation. — When  the 
24  L.  Ed.  153.                                                                   party    desiring    to    appeal    signifies    his   in- 

6.  Chase  v.  United  States.  155  U.  S.  tention  to  do  so  in  any  appropriate  mode 
480.  499,  39  L.  Ed.  234;  United  States  v.  within  the  ninety  days  allowed  by  that 
King.  164  U.  S.  703,  41  L.  Ed.  1182.  statute    for   taking   an    appeal,    the    limita- 

7.  In  re  District  of  Columbia.  180  U.  S.  tion  of  time  ceases  to  affect  the  case;  and 
250,  45  L.  Ed.  516.  such  is  also  the  effect  of  the  third  rule  of 

8.  Ex  parte  Roberts,  15  Wall.  384,  21  the  supreme  court  concerning  such  ap- 
L.  Ed.   131,  peals.      United    States   v.   Adams,   6   Wall. 

But     this     period     is     enlarged     to     six       101,   18  L.  Ed.  70:3. 
months     by     §     10     of     the     Tucker     act.  9.  United  States  v.  Grant,  110  U,  S.  225, 

United  States  v.  Davis.  131  U,  S.  36.  22G,  28  L.  Ed.  127. 


520  APPEAL  AND  ERROR. 

upon  the  following  record,  and  none  other:  1.  A  transcript  of  the  pleadings  in 
the  case,  of  the  final  judgment  or  decree  of  the  court,  and  of  such  interlocutory 
orders,  rulings,  judgments,  and  decrees  as  may  be  necessary  to  a  proper 
review  of  the  case.  2.  A  finding  of  the  facts  in  the  case  by  said  court  of 
claims,  and  the  conclusions  of  law  on  said  facts  on  which  the  court  found 
its  judgment  or  decree.  The  finding  of  the  facts  and  the  conclusions  of 
law  to  be  state  separately  and  certified  to  this  court  as  part  of  the  record.  The 
facts  so  found  are  to  be  the  ultimate  facts  or  propositions  which  the  evidence 
shall  establisJi,  in  the  nature  of  a  special  verdict,  and  not  the  evidence  on  which 
those  ultimate  facts  are  founded."  *  *  *  I'his  rule  was  amended  in  some 
particulars  at  the  December  term,  1872.  It  has  been  in  force  substantially  in 
its  original  form  from  the  time  of  its  adoption  until  now,  and  has  always  been 
strictly  adhered  tb.^"  In  bringing  appeals  to  this  court  from  the  court  of  claims, 
the  record  must  be  prepared  strictly  according  to  the  general  rules  announced  on 
the  subject  of  that  class  of  appeals  at  December  Term,  1865,  and  printed  at 
large  in  3  Wall.  7,  8.  Hence  only  such  statement  of  facts  is  to  be  sent  up  to  this 
court  as  may  be  necessary  to  enable  it  to  decide  upon  the  correctness  of  the  prop- 
ositions of  law  ruled  below  ;  and  this  statement  is  to  be  presented  in  the  shape 
of  the  facts  found  by  that  court  to  be  established  by  the  evidence  in  such  form 
as  to  raise  the  question  of  law  decided  by  the  court.  It  should  not  include  the 
evidence  in  detail.^ ^ 

Findings  of  Fact  on  Former  Trial. — When  a  judgment  of  a  court  of  claims 
is  reversed  and  the  case  is  remanded  for  new  trial,  the  findings  of  fact  on  the 
first  trial  form  no  part  of  the  record  on  appeal  from  the  judgment  in  the  second 
trial,  unless  embodied  by  that  court  in  the  second  findings. ^^ 

Opinion  of  Court. — This  court  cannot  act  upon  statements  made  in  the  opin- 
ion of  the  court  of  claims  as  to  a  fact  necessary  to  support  the  claim,  but  must  be 
governed  by  the  averments  of  the  petition. ^^ 

Matters  to  Be  Shown  by  Record. — On  an  appeal  from  a  decree  in  the 
court  of  claims,  the  record  must  set  out  the  joinder  of  issue  and  the  trial  of  the 
same,  also  the  evidence,  findings,  and  judgment  of  the  court. ^* 

k.  Certiorari. — Certiorari,  being  a  writ  properly  used  to  bring  up  to  the  court 
of  error,  on  an  allegation  of  diminution,  outbranches  of  the  record,  or  other  docu- 
ments and  writings  in  the  court  below  which  have  not  been  previously  certified 
or  sent,  is  not  a  proper  thing  to  be  asked  for  where  it  is  desired  to  have  the  court 
of  claims  supply  certain  supposed  defects  in  its  conclusions  deducible  from  the 
evidence  before  it.  The  proper  method  of  obtaining  such  a  finding  is  an  order  of 
this  court,  on  motion  duly  made,  directed  to  the  court  of  claims,  requiring  it  to 
make  return  as  to  the  existence  or  nonexistence  of  such  facts.  But  this  co'urt 
cannot  give  the  court  of  claims  any  directions  as  to  what  finding  it  shall  make,  or 
how  it  shall  proceed  to  make  up  its  finding  on  the  points  sought  to  have  certified. ^^ 
Where  during  the  pendenc}'  in  this  court  of  an  appeal  from  the  court  of  claims, 
the  court  of  claims  has  granted  a  new  trial,  and  the  appellee  is  dismissed  on  mo- 
tion of  the  United  States,  the  cause  will  not  be  retained  on  motion  of  the  appellee, 
that  the  proceedings  under  which  the  new  trial  was  granted  may  be  brought  here 
by  writ  of  certiorari  for  re-examination.^^  When  a  claimant  in  the  court  of 
claims  amends  his  petition  by  filing  a  new  one  in  the  place  of  it,  and  the  case  is 
heard  on  the  amended  petition  only,  and  on  appeal  that  court  sends  up  only  the 

10.  McClure  v.  United  States,  116  U.  S.  13.  Johnson  v.  United  States,  160  U.  S- 
145,   148,  29   L.   Ed.   572.     See  Burr  v.   Des        546,  40  L.   Ed.  529. 

Moines,    etc..   Co..    1    Wall.   99.    102,    17    L.  u.    Clark    v.    United    States.    131    U.    S. 

Ed.  .561.  appx.  Ixxxvi.  18  L.  Ed.  916. 

11.  De  Groot  r-.  United  States,  5  Wall.  15.  United  States  v.  Adams,  9  Wall. 
419,  18   L.   Ed.  700.  661_   19  ^    Ed.  808. 

12.  Union  Pac.  R.  Co.  v.  United  States,  jg.  United  States  v.  Young,  94  U.  S- 
riG  U.  S.  154.  158.  29  L.  Ed.  584.  058,   04   L.   Ed.    153. 


APPEAL  AND  ERROR. 


521 


amended  petition,  this  court  will  not  issue  a  writ  of  certiorari  to  bring  up  the 
original  petition,  i''' 

1.  Grant  of  Nezu  Trial  Pending  Appeal. — If,  while  an  appeal  is  pending 
in  this  court  from  the  court  of  claims,  the  latter  court,  assuming  to  act  under 
authority  of  §  1088,  Revised  Statutes,  grants  a  new  trial,  the  United  States  may 
ask  to  dismiss  their  appeal. ^^  Where  during  the  pendency  in  this  court  of  an  ap- 
peal from  the  court  of  claims,  the  latter  court  has  granted  a  new  trial,  and  the  ap- 
peal is  dismissed,  the  court  of  claims,  by  granting  a  new  trial,  thereby  resumes 
control  of  the  cause  and  the  party.  But  the  proceedings  under  which  the  new 
irial  was  obtained  are  now  a  part  of  the  record  below,  and  after  judgment  is 
finally  rendered  by  the  court  of  claims,  the  proceedings  under  which  the  new 
trial  was  obtaineci  may  be  brought  here  by  appeal  for  review. ^^  The  mere  mak- 
ing and  pendency  of  a  motion  in  the  court  of  claims,  for  a  new  trial,  under  the 
act  of  June  25th,  1868,  §  2,  is  not  a  sufficient  ground  for  dismissal  of  an  appeal 
taken  to  this  court  prior  to  the  making  of  such  motion.  But  the  granting  of  such 
motion,  and  the  order  for  a  new  trial,  vacating,  as  it  does,  the  judgment  appealed 
from,  \s.^  The  power  of  the  court  of  claims,  under  the  second  section  of  the 
act  of  June  25th,  1868,  to  grant  a  new  trial  in  favor  of  the  United  States,  if 
moved  for  within  two  years  next  after  the  final  disposition  of  tlie  suit,  is  not 
taken  away  by  the  affirmance  of  the  judgment  on  appeal,  and  the  filing  in  that 
court  of  the  mandate  of  affirmance. ^i 

m.  Conclusiveness  of  Judgment. — It  is  clear  that  the  judgments  of  this  court, 
rendered  on  appeal  from  the  court  of  claims,  if  no  such  power  is  conferred  by  an 
act  of  congress,  are  beyond  all  doubt  the  final  determination  of  the  matter  in 
controversy ;  and  it  is  equally  certain  that  the  judgments  of  the  court  of  claims, 
where  no  appeal  is  taken  to  this  court,  are,  under  existing  laws,  absolutely  con- 
clusive of  the  rights  of  the  parties,  unless  a  new  trial  is  granted  by  that  court 
as  provided  in  the  act  of  congress. 22 


17.  Union  Pac.  R.  Co.  v.  United  States, 
116  U.   S.    154.    158,  29    L-   Ed.    584. 

18.  United  States  v.  Young,  94  U.  S. 
258,  24  L.  Ed.  153.  citins?  LatliHiTi's  &  Dem- 
ing's  Appeals,  9  Wall.  145.  19  L.  Ed.  771; 
United  States  v.  Ayres.  9  Wall.  608,  609, 
19  L.  Ed.  625;  United  States  v.  Crusell, 
12  Wall.  175,  20  L.  Ed.  384;  Ex  parte 
Russell,  13  Wall.  664,  20  L.  Ed.  632;  Ex 
parte  United  States.  16  Wall.  699,  21  L. 
Ed.  507. 

In  United  States  v.  Ayres,  9  Wall. 
608.  609,  19  L.  Ed.  625,  the  motion  to  dis- 
miss was  made  by  the  appellee  and  re- 
sisted by  the  United  States;  but  it  was 
held  "that  the  order  granting  the  new 
trial  has  the  effect  of  vacating  the  former 
judgment,  and  to  render  it  null  and  void;" 
and  the  appeal  was  consequently  dis- 
missed. The  same  principle  was  recog- 
nised in  United  States  v.  Crusell,  12  Wall. 
175.  20  L.  Ed.  384;  Ex  parte  Russell.  13 
Wall.  664.  20  L.  Ed.  632,  and  Ex  parte 
United  States,  16  Wall.  699.  21   L.  Ed.  507. 

The  decision  of  the  court  of  rlanns 
awarding,  on  the  motion  of  the  United 
States,  a  new  trial,  while  a  claim  is  pend- 
ing before  it,  or  on  appeal  from  it,  or 
within  two  years  next  after  the  final  dis- 
position of  such  claim,  cannot  be  re- 
viewed here.  "We  are  all  of  the  opinion 
that  the  decision  of  the  court  of  claims, 
upon  a  motion  by  the  United  States, 
within  the  prescribed  jurisdiction,  is   con- 


clusive, and  not  subject  to  review.  The 
claimant  must  rely  upon  liis  appeal  from 
the  final  judgment  upon  the  merits  for 
protection  against  wrong  under  this  form 
of  proceeding."  Young  v.  United  States, 
95  U.  S.  641.^24  L.   Ed.   467. 

18.  United  States  v.  Young,  94  U.  S. 
258.   24  L.    Ed.   153. 

20.  United  States  v.  Ayres,  9  Wall.  608, 
19  L.   Ed.  625. 

21.  Ex  parte  United  States,  16  Wall. 
m\\  21   L.   Ed.   507. 

22.  Ex  parte  Russell.  13  Wall.  664,  20 
L.  Ed.  632;  United  States  v.  O'Grady, 
22  Wall.   641,  647,   22   L.    Ed.   772. 

Where  a  judgment  is  recovered  against 
the  United  States  in  the  court  of  claims, 
if  a  claim  of  set-off  or  counterclaim  is 
filed  and  rejected,  the  appropriate  rem- 
edy of  the  United  States  is  by  appeal  to 
the  supreme  court.  But  though  an  ap- 
peal to  this  court  in  such  case  would  un- 
doubtedly lie.  it  is  not  the  only  remedy 
left  the  United  Statea  as  the  court  of 
claims,  on  motion,  might  grant  a  new 
trial  in  such  a  case,  if  it  appears  that  any 
fraud,  wrong,  or  injustice  has  been  done 
the  United  "states.  But  if  the  United 
States  does  not  appeal  from  the  judg- 
ment of  the  court  of  claims,  and  if  it  does 
not  appear  that  any  application  in  their 
behalf  was  made  to  that  court  for  a  new 
tri.il,  th''  jrf'cment  of  the  court  of  claims 
is   a   fan-l   determination   of   the   matter   in 


522  APPEAL  AND  ERROR. 

n.  Cofidinuance,  Dismissal  and  Reinstatement. — A  motion  to  dismiss  an  appeal 
from  a  judgment  of  the  court  of  claims  will  be  denied  when  the  motion  was  made 
upon  the  sole  ground  that  a  motion  for  a  new  trial  had  been  made  by  the  United 
States,  and  was  pending  in  that  court,  but  afterwards  dismissed  the  same  ap- 
peal when  a  new  trial  had  been  granted.-"'  So,  also,  a  motion  to  dismiss  an  ap- 
peal from  the  court  of  claims,  on  the  ground  that  since  the  appeal  was  taken  con- 
gress had  appropriated  the  amount  necessary  to  pay  the  judgment,  will  be  denied, 
where  it  appears  that  the  appeal  was  taken  before  the  right  of  appeal  expired, 
because  it  was  expressly  provided  in  the  act  making  the  appropriation  referred  to 
"that  none  of  the  judgments  herein  provided  for  shall  be  paid  before  the  right  to 
appeal   shall   have   expired."-"* 

A  continuance  may  be  granted  on  an  appeal  from  the  court  of  claims,  when 
there  has  been  a  motion  made  there  by  the  appellant,  and  yet  undisposed  of,  for 
a  new  trial  on  the  ground  of  after-acquired  evidence.  "Rut  the  court  declares 
that  it  must  not  be  understood  as  giving  any  sanction  to  the  idea  that  indefinite 
postponement  of  final  hearing  and  determination  can  be  obtained  by  repeated 
motions  for  continuance  here.  The  court  below,  not  this  court,  must  determine 
whether  the  application  for  a  new  trial  is  seasonably  made."*^ 

Reinstatement. — In  one  case  after  the  appeal  was  dismissed,  on  motion,  for 
mvolving  too  small  an  amount,  the  cause  was  reinstated  on  the  docket,  for  pur- 
pose of  special  appeal  by  United  States  from  court  of  claims,  under  §  5,  act,  Mar. 
3,   1863.2f- 

o.  Mandamus. — This  court  may  award  a  writ  of  mandamus  to  the  court  of 
claims  to  require  that  court  to  hear,  entertain  and  decide  a  motion  made  by  the 
petitioner  for  a  new  trial,  and  also  to  correct  the  records  of  that  court  in  certain 
particulars  set  forth  in  the  petition.-' 

p.  Mandate. — Where  the  mandate  of  this  court  is  fully  complied  wn'th  by  the 
court  of  claims,  its  judgment  will  be  affirmed  or  the  appeal  dismissed.-'^ 

6.  OvKR  Territorial  Court.s — a.  In  General. — The  appellate  jurisdiction  of 
this  court  over  the  territorial  courts,  as  in  other  cases,  is  subject  to  and  regulated 
by  the  provisions  of  the  acts  of  congress. ^^  The  statute  approved  April  7,  1874, 
ch.  80,  entitled  "An  act  concerning  the  practice  in  territorial  courts  and  appeals 
therefrom,  constitutes  our  only  right  of  review  on  appeals  from  the  territorial 
courts.^*' 

controversy.      United    States    v.    O'Grady.  General    Government,   and   the    records   in 

22  Wall.   641,   22   L.    Ed.   772.  the    custody    of    their     clerks      were      the 

23.  United  States  v.  Crusell,  12  Wall.  records  of  that  government,  and  it  would 
175,  176,  20  L.  Ed.  384,  citing  United  seem  to  follow  necessarily  from  the  prem- 
States  V.  Ayres,  9  Wall.  608.  19  L.  Ed.  ises  that  no  one  could  legally  take  pos- 
625.  session    or   custody    of   the    same    without 

24.  United  States  v.  Jones,  119  U.  S.  the  assent,  express  or  implied,  of  con- 
477,  30  L.  Ed.  440.  citing  24  Stat.  282.  gress."      Freeborn   v.    Smith,   2   Wall.   160. 

25.  United    States    v.    Crusell,    12    Wall.  173,   17   L.   Ed.  922. 

175,  20   L.   Ed.   384.  The   right  of  appeal  to   this   court  from 

26.  United  States  v.  Alire,  6  Wall.  573,  the  territorial  courts  is  governed  by  the 
577,   18   L.   Ed.  948.  acts    of   congress.      Simms   v.    Simms,   175 

27.  Ex   parte   Roberts,    15  Wall.   384.    21  U.   S.  162,  44  L.  Ed.   115. 

L.   Ed.   131.  A   writ   of   error   does   not   lie   from  the 

28.  United  States  v.  Atchison,  T.  &  S.  F.  supreme  court  of  the  United  States  to  the 
R.  Co.,  154  U.  S.  637.  38  L.  Ed.  757;  general  court  for  the  territory  northwest 
United  States  v.^  New  York  Indians,  173  of  the  Ohio.  "On  the  ground  that  the 
U.  S.  464,  43  L.  Ed.  769.  act  of  congress  had  not  authorized  an  ap- 

28.    It  cannot  be  disputed  that  congress  peal    or    writ    of    error    from    the    general 

has   the   exclusive   power   of  legislation   in  court  of  the  Northwestern  Territory,  and. 

nnd    over     the      territories,      and,      conse-  therefore,    although     from      the      manifest 

quently,    that   the    supreme   court    has   ap-  errors    on    the    face    of    the    record,    they 

pellate  jurisdiction  over  the  courts  estab-  felt  every  disposition  to  support  the  writ 

lished  therein,  "under  such  regulations  as  of  error,  they  were  of  opinion  they  could 

■ongress    may   make."      Constitution,    Art.  not  take   cognizance  of  the   case."    Clarke 

3.      In     the     case   of    Benner  v.    Porter.   9  v.  Bazadone,  1   Cranch  212,  2  L.  Ed.  85. 
How.  235.  13  L.  Ed.  119,  it  is  said:     "The  CO.    .\r'-nijo  v.   Armijo,   181  U.   S.  558,  45 

'erritorial    courts   were   the    courts   of   the  L.   Ed.   1000,  citing  and  approving  Apache 


APPEAL  AXD  PRROR. 


523 


b.  Under  Circuit  Court  of  Appeals  Act — In  General. — In  harmony  with  pre- 
vious legislation,  25  Stat.  784.  c.  323;  26  Stat.  81.  c.  182,  §  42,  section  thirteen  of 
the  act  of  ]March  3,  1891,  provides:  "Appeals  and  writs  of  error  may  be  taken 
and  prosecuted  from  the  decisions  of  the  United  States  court  in  the  Indian  Ter- 
ritory to  the  supreme  court  of  the  United  States,  or  to  the  circuit  court  of  appeals 
in  tlie  eighth  circuit,  in  the  same  manner  and  under  the  same  regulations  as  from 
the  circuit  or  district  courts  of  the  United  States  under  this  act."3i  An  appeal 
or  writ  of  error  lies  to  this  court  from  or  to  the  decrees  or  judgments  of  the  su- 
preme court  of  the  territories,  except  in  cases  susceptible  of  being  taken  to  the 
circuit  courts  of  appeals,  and  cases  where  the  matter  in  dispute  exclusive  of  costs 
does  not  exceed  the  sum  of  five  thousand  dollars.^- 

Review  by  Court  of  Appeals. — By  the  fifteenth  section  of  the  circuit  court 
of  appeals  act  it  was  provided  that  the  circuit  courts  of  appeals  in  cases  in  which 
the  judgments  or  decrees  of  those  courts  were  made  final  by  the  act,  should  have 
the  same  appellate  jurisdiction  by  writ  of  error  or  appeal  to  review  the  judgments, 
orders,  and  decrees  of  the  supreme  courts  of  the  several  territories,  as  by  the  act 
they  might  have  to  review  the  judgments,  orders,  and  decrees  of  the  district  and 
circuit  courts. -"3  No  provision  is  found  in  the  act  of  1891  for  the  review  in  a  cir- 
cuit court  of  appeals  of  the  judgment  of  the  supreme  court  of  a  territory  of  the 
United  States  in  a  case  of  the  class  the  judgment  in  which,  if  rendered  in  a  cir- 
cuit court  of  appeals,  is  not  final.  So  that  the  jurisdiction  of  this  court  to  re- 
view the  judgments  of  the  supreme  courts  of  the  several  territories  in  that  class 
of  cases  was  the  same  after  as  before  the  passage  of  that  act.^^  The  district 
and  circuit  courts  mentioned  in  the  15th  section  of  the  act  of  March  3,  1891,  giv- 
ing the  circuit  courts  of  appeals,  in  cases  in  which  their  judgments  are  final,  the 
same  jurisdiction  to  review  the  judgments  of  the  supreme  courts  of  the  territories 
assigned  to  the  respective  circuits  as  they  have  "to  review  the  judgments,  orders 
and  decrees  of  the  district  courts  and  circuit  courts,  "manifestly  belong  to  the 


County  V.  Barth,  177  U.  S.  538,  541,  44  L. 
Ed.  878;  Grayson  v.  Lynch,  163  U.  S.  468, 
473,   41   L.    Ed.   230. 

The  act,  approved  April  7,  1874.  ch.  80, 
provides  that:  "'Instead  of  the  evidence 
at  large,  a  statement  of  the  facts  of  the 
case  in  the  nature  of  a  special  verdict,  and 
also  the  rulings  of  the  court  on  the  ad- 
mission or  rejection  of  evidence  when 
excepted  to,  shall  be  made  and  certified 
by  the  court  below,  and  transmitted  to 
the  supreme  court,  together  with  the 
transcript  of  the  proceedings  and  judg- 
ment or  decree,'  etc."  Armijo  v.  Armijo, 
181  U.  S.   558.  561.  45  L.   Ed.   1000. 

31.  Folsom  v.  United  States,  160  U.  S. 
121.   124,   40   L.   Ed.   363. 

32.  Shute  V.  Keyser,  149  U.  S.  649.  37 
L.  Ed.  884:  Aztec  Min.  Co.  v.  Ripley,  151 
U.    S.    79,   81,   38    L.    Ed.    80. 

The  act  of  March  3,  c.  517,  trans- 
ferring to  the  circuit  courts  of  appeals 
the  appellate  jurisdiction  from  the  su- 
preme courts  of  the  territories  in  cases 
founded  on  diversity  of  citizenship,  or 
arising  under  the  patent,  revenue  or  crim- 
inal laws,  or  in  admiralty,  has  not  other- 
wise affected  the  appellate  jurisdiction 
of  this  court  from  the  territorial  courts. 
26  Stat.  828,  830;  Shute  v.  Kevser,  149  U. 
S.  649,  37  L.  Ed.  884;  Aztec  Min.  Co.  v. 
Ripley,  151  U.  S.  79.  38  L.  Ed.  80  Simms 
V.  Simms,  175  U.  S.  162,  164,  44  L.  Ed. 
315. 

Review   by   supreme    court. — There    was 


no  provision  for  appeaJs  or  writs  of  error 
in  cases  not  made  final  by  §  6  from  the 
supreme  courts  of  the  territories  to  the 
circuit  courts  of  appeals,  and  there  was 
no  express  repeal  of  the  provisions  of 
the  prior  acts  regulating  appeals  or  writs 
of  error  in  such  other  cases  from  those 
courts  to  this,  there  is  nothing  to  indi- 
cate an  intention  that  the  judgments  and 
decrees  of  the  supreme  courts  of  the  ter- 
ritories should  not  be  susceptible  of  re- 
view in  the  class  of  cases  in  which  there 
was  no  appeal  or  writ  of  error  to  the  cir- 
cuit courts  of  appeals.  The  result  is  that, 
as  the  acts  regulating  appeals  or  writs  of 
error  from  or  to  the  supreme  courts  of 
the  territories  to  or  from  this  court  were 
not  repealed,  except  to  the  extent  speci- 
fied, an  appeal  or  writ  of  error  lies  to  this 
court  from  the  judgments  or  decrees  of 
those  courts,  except  in  cases  where  the 
judgments  of  the  circuit  courts  of  appeals 
are  made  final.  Shute  v.  Keyser.  149  U. 
S.    649.   650,   37    L.   Ed.    884. 

33.  Shute  V.  Keyser.  149  U.  S.  649,  650, 
37  L.  Ed.  884;  Aztec  Min.  Co.  v.  Ripley, 
151    U.    S.   79,    80.   38   L.    Ed.   80. 

34.  Shute  V.  Keyser,  149  U.  S.  649,  37 
L.  Ed.  884;  Royal  Ins.  Co.  v.  Martin,  192 
U.  S.  149,  ]59,  48  L.  Ed.  385.  reaffirmed  in 
Rosales  Cueli  v.  Rodriguez.  198  U.  S.  581, 
49  L.  Ed.  1172;  Garrozi  v.  Dastas.  204  U. 
R.  64.  51  L.  Ed.  369;  Plymouth  Cordage 
Co.  V.  Smith,  194  U.  S.  311,  314,  48  L.  Ed. 
992. 


524 


APPEAL  AND  ERROR. 


class  of  courts  for  which  provision  is  made  in  the  third  article  of  the  constitution, 
namely,  constitutional  courts,  in  which  the  judicial  power  conferred  by  the  con- 
stitution on  the  general  government  can  be  deposited,  and  the  judges  of  which 
are  entitled,  by  the  constitution,  to  receive  at  stated  times  a  compensation  for 
their  services  that  cannot  be  diminished  during  their  continuance  in  office,  are 
removable  from  office  only  by  impeachment,  and  hold,  beyond  the  power  of  con- 
gress to  provide  otherwise,   during  good  behavior. -^^ 

Assignment  to  Circuits. — Congress  contemplated  that  the  final  orders  and 
decrees  of  the  courts  of  last  resort  in  the  organized  territories  of  the  United 
States — bv. whatever  name  those  courts  were  designated  in  legislative  enactments 
— should  be  reviewed  by  the  proper  circuit  court  of  appeals,  leaving  to  this  court 
the  assignment  of  the  respective  territories  among  the  existing  circuits.-""  The 
only  limitation  upon  the  exercise  of  this  power  by  this  court  is  found  in  §  13  of  the 
act  of  1891,  authorizing  appeals  and  writs  of  error  to  be  taken  and  prosecuted 
to  the  circuit  court  of  appeals  of  the  eighth  circuit  from  the  decisions  of  the  United 
States  court  in  the  Indian  Territory.  But  this  exception  rests  upon  grounds 
peculiarlv  applicable  to  the  Indian  Territory,  because  of  the  character  of  its  pop- 
ulation, and  its  relation  to  the  eighth  circuit  and  does  not  at  all  militate  against  the 
conclusion  that  congress  meant  by  the  words  "the  supreme  courts  of  the  several 
territories,"  in  the  fifteenth  section  of  the  act  of  18^)1,  the  highest  courts  or  the 
courts  of  last  resort  in  the  territories,  by  whatever  name  they  happen  to  be  des- 
ignated in  the  acts  creating  them.^" 

Decisions  Reviewable. — In  General.^ — This  section  only  applies  to  cases  in 
which  the  judgments  or  decrees  of  the  circuit  court  of  appeals  are  made  final  by 
the  act.^^ 

Criminal  Cases. ^Therefore,  the  15th  section  cannot  be  construed  so  as  to 
carrv  appellate  jurisdiction  over  capital  cases  or  cases  of  infamous  crimes  to 
the  circuit  courts  of  appeals,  and  so  enlarge  that  jurisdiction  into  something  other 
and  different  from  "the  same  appellate  jurisdiction"  as  is  exercised  in  reviewing 
the  judgments  of  district  and  circuit  courts  under  §  6  of  the  act.-"-^     Since  the 


35.  American  Ins.  Co.  v.  Canter.  1  Pet. 
511.  546,  7  L.  Ed.  242;  Benner  v.  Porter. 
9  How.  235,  242.  13  L.  Ed.  119;  Clinton 
r.  Englebrecht,  13  Wall.  434.  447.  20  L. 
Ed.  659;  Hornbuckle  z'.  Toombs.  18  Wall. 
648,  655.  21  L.  Ed.  966:  Good  v.  Martin, 
95  U.  S.  90,  98,  24  L.  Ed.  341;  Reynolds 
V.  United  States,  98  U.  S.  145,  154,  25  L. 
Ed.  244;  The  City  of  Panama,  101  U.  S. 
453.  465,  25  L.  Ed.  1061;  Steamer  Coquit- 
1am  V.  United  States,  163  U.  S.  346,  351, 
41    L.    Ed.    184. 

36.  Steamer  Coquitlam  v.  United  States. 
163  U.   S.  346,  352.  41   L.   Ed.   184. 

37.  Steamer  Coquitlam  v.  United  States, 
163    U.    S.    346,    352,   41    L.    Ed.    184. 

38.  Shute  V.  Keyser,  149  U.  S.  649,  650, 
37  L.  Ed.  884;  Royal  Ins.  Co.  v.  Martin, 
192   U.    S.    149,    160,   48   L.    Ed.    385. 

But  where  the  case  was  not  a  case  in 
admiralty,  nor  a  case  arising  under  the 
criminal,  revenue,  or  patent  laws  of  the 
United  States,  nor  a  case  between  aliens 
and  citizens  of  the  United  States,  or  be- 
tween citizens  of  different  states,  it  does 
not  belong  to  either  of  the  classes  defined 
by  §  6  of  that  act,  as  cases  in  which  the 
judgments  or  decrees  of  the  circuit  courts 
of  appeals  should  be  final,  and  therefore 
the  circuit  court  of  appeals  for  the  eighth 
circuit      properly    declines    to    take    juris- 


diction. Aztec  Min.  Co.  z\  Ripley,  151  U. 
S.    79,   80,   38    L.    Ed.   80. 

39.  Folsom  v.  United  States,  160  U.  S. 
121,  40  L.   Ed.  363. 

It  is  said  that  this  involves  the  ab- 
surdity that  convictions  for  minor  offenses 
are  reviewable  on  a  second  appeal,  while 
convictions  for  capital  and  infamous 
crimes  are  not.  Doubtless  in  some  cases 
where  the  language  of  a  statute  leads  to 
an  absurdity,  hardship,  or  injustice,  pre- 
sumably not  intended,  a  construction  may 
be  put  upon  it  modifying  the  meaning  of 
the  words  so  as  to  carry  out  the  real  in- 
tention, but  where  the  intention  is  plain 
it  is  the  duty  of  the  court  to  expound  the 
statute  as  it  stands.  As  far  as  congress 
went  in  conferring  this  right  to  a  second 
appeal,  the  intention  is  clear  and  the  lan- 
guage used  unambiguous.  The  objection 
really  is  that  congress  should  have  gone 
farther  and  given  by  this  act  a  second 
review  in  this  court  in  cases  of  convictions 
of  capital  and  infamous  crimes  in  the 
territories.  Folsom  v.  United  States,  160 
U.   S.    121,   127,   40   L.    Ed.   3G3. 

In  Aztec  Min.  Co.  v.  Ripley,  10  U.  S. 
App.  383,  the  circuit  court  of  appeals  for 
the  eighth  circuit  held  that  it  had  no  juris- 
diction under  the  fifteenth  section,  be- 
cause the  case  at  bar  did  not  come  within 


APPEAL  AXD  ERROR.  525 

passage  of  the  circuit  court  of  appeals  act,  an  appeal  will  still  lie  to  this  court 
from  the  supreme  court  of  the  territory  in  a  suit  brought  by  private  individuals 
against  a  sheriff  and  others  to  enjoin  the  threatened  sale  of  property  claimed  by 
ihe  plaintiff"  under  an  execution  issued  on  a  judgment  against  a  third  party,  when 
the  matter  in  dispute  exceeds  $5,000.-*" 

New  Mexico. — The  circuit  court  of  appeals  for  the  eighth  circuit  has  no  juris- 
diction of  a  writ  of  error  to  review  the  judgment  and  proceedings  of  the  supreme 
court  of  the  territory  of  New  Mexico  in  the  instance  of  a  conviction  of  an  in- 
famous crimed  1 

Bankruptcy  cases  arising  in  the  district  courts  of  the  territory  of  Oklahoma 
are  reviewable  by  the  circuit  court  of  appeals  of  the  eighth  circuit,  in  matters  of 
law>- 

Review  of  Decisions  of  District  Court  of  Alaska. — The  circuit  court  of 
appeals  for  the  ninth  circuit  cannot  review  the  final  judgments  or  decrees  of  the 
Alaska  district  court  in  virtue  of  its  appellate  jurisdiction  over  the  district  and  cir- 
cuit courts  mentioned  in  the  act  of  March  3,  1891.  But  such  appellate  jurisdic- 
tion may  be  exercised  in  virtue  of  the  general  authority  conferred  by  the  fifteenth 
section  of  the  act  of  1891  upon  the  circuit  court  of  appeals  to  review  the  judg- 
ments of  the  supreme  court  of  any  territory  assigned  to  such  circuit  by  this 
court.^3  Congress  meant  by  the  words  "the  supreme  courts  of  the  several  ter- 
ritories" in  the  15th  section  of  the  act  of  1891,  the  highest  courts  or  courts  of 
last  resort  in  the  territories  by  whatever  name  they  happen  to  be  designated  in 
the  acts  creating  them.  Accordingly:  "The  district  court  of  Alaska  is  to  be  re- 
garded as  the  supreme  court  of  that  territory  within  the  meaning  of  the  fifteenth 
section  of  the  act  of  March  3.  1891,  and  of  the  order  of  this  court  assigning 
Alaska  to  the  ninth  circuit ;  and.  consequently,  that  the  decree  of  the  district 
court  of  Alaska  is  subject  to  review  by  the  circuit  court  of  appeals  of  that 
circuit."'** 

c.  Oc'cr  the  Indian  Territory. — In  General. — The  acts  of  congress  establishing 
a  United  States  court  for  Indian  Territory,  and  defining  its  jurisdiction,  clearlv 
provide  that  writs  of  error  in  criminal  cases  shall  be  taken  to  the  appellate  court 
of  the  United  States  for  the  Indian  Territory.*^ 

any   one   of  the    classes   of   cases   wherein  40.   Shute   v.   Keyser,    149    U.    S.    649.    37 

the   judgments    of    that    court     were      de-  L.   Ed.   884. 

Glared   to   be   final,   and   its   judgment   dis-  41.    Folsom  v.  United   States,   160  U.   S. 

missinsr  the  writ  of  error  on  that  ground  121,  40   L.   Ed.  363. 

was  affirmed   by   this   court,   while   it   was  42.     Plymouth    Cordage    Co.    v.     Smith, 

at  the  same  time  pointed  out  that  as  the  194  U.  S.  311,  48  L.  Ed.  992. 

value    of    the    matter    in    dispute    did    not  43.    Steamer  Coquitlam  v.  United  States. 

reach  five   thousand  dollars,  we  could  not  163   U.   S.   346.   351,  41   L.   Ed.   184;   Thorp 

take    jurisdiction    of    the    particular    case.  v.    Bonnifield,    168    U.    S.    703.    42    L.    Ed. 

Aztec  Min.  Co.  v.  Riplev.  l.'^l   U.   S.  79.  38  1211. 

L.   Ed.   80;    Folsom   v.  United   States,    160  44.    Steamer  Coquitlam  v.  United  States, 

U.    S.    121,    12.5.    40    L.    Ed.    363.  163    I       S.    346,   41    L.    Ed.     184:     Tl'^rp      v. 

In  Shute  v.  Keyser.  149  U.  S.  649,  which  Bonni.eld,   168  U.   S.   703,  42  L.   Ed.   1121. 

was   a    case    not    falling    within    either    of  45.     Brown  v.   United   States,    171   U.   S. 

the  classes  in  which  the  judgments  of  the  631.  634,  43   L.   Ed.  312. 

circuit  courts   of  appeals  were   made   final  "The   decisions   of   the   court   of  appeals 

by  the  act  of  March  3,  1891,  we  held  that  of   the   United    States   in   the    Indian    Ter- 

as  there  was  no  provision  bj'  the  fifteenth  ritory  are   final  except   so  far  as  they  are 

section    of   that    act    for   appeals    or    writs  made   subject   to  review  bj'   some   express 

of   error   except    to    the    circuit    courts    of  provision      of      law."        Brown     v.    United 

appeals  in  cases  in  which  their  judgments  States.  171  U.  S.  631,  637.  43  L.  Ed.  312. 

were    made    final,    and    no    express    repeal  "In    the   eleventh    section   of   the   act    of 

of  the  provisions   of   the   prior   acts    regu-  March  1,  1895,  it  is  provided  that  "appeals 

lating  appeals   or  writs  of  error  from  the  and  writs  of  error  from  the  final  decision 

supreme  courts  of  the  territories   in  other  of   said   appellate    court   shall    be   allowed, 

cases,  that  an  appeal  or  writ  of  error  lay  and  may  be  taken  to  the  circuit  court   of 

to  this   court  from   the   judgments   or   de-  appeals   for   the   eighth   judicial    circuit    in 

crees  of  those  courts  in  such  other  cases.  the    same    manner    and    under     the      same 

Folsom   f.    United    States,    160    U.    S.    121,  regulations  as  appeals  are   taken  from  the 

125,   40   L.    Ed.   363.  circuit    courts   of   the   United    States;"    but 


526  APPEAL  AND  ERROR. 

The  act  of  March  1,  1895,  created  a  court  of  appeals  in  the  Indian  Ter- 
ritory, with  such  superintending  control  over  the  courts  in  that  Territory  as  the 
supreme  court  of  Arkansas  possessed  over  the  courts  of  that  state  by  the  laws 
thereof;  and  the  act  also  provided  that  "writs  of  error  and  appeals  from  the  final 
decisions  of  said  appellate  court  shall  be  allowed,  and  may  be  taken  to  the  circuit 
court  of  appeals  for  the  eighth  judicial  circuit  in  the  same  manner  and  under  the 
same  regulations  as  appeals  are  taken  from  the  circuit  courts  of  the  United 
States,"  whidi  necessarily  deprived  that  court  of  jurisdiction  of  appeals  from 
the  Indian  Territory  trial  court  under  §  13  of  the  act  of  1891>^ 

Over  Capital  Oases. — Jurisdiction  conferred  on  the  supreme  court  by  the  acts 
of  February  6,  1889  and  March  3,  1891  has  been  superseded,  so  far  as  its  juris- 
diction relates  to  capital  cases  from  the  United  States  court  for  the  northern  dis- 
trict of  the  Indian  Territory;  the  act  of  March  1st,  1895,  giving  jurisdiction  to 
the  appellate  court  of  the  United  States  is  exclusive.^"  The  supreme  court  has 
no  appellate  jurisdiction  of  capital  cases  from  the  United  States  court  for  the 
northern  district  of  the  Indian  Territory;  such  appellate  jurisdiction  is  vested 
exclusively  in  the  United  States  court  of  appeals  in  the  Indian  Territory.^^ 

The  language  of  the  act  of  July  1,  1898,  is  as  follows:  "Appeals  shall  be 
allowed  from  the  United  States  courts  in  the  Indian  Territory  direct  to  the  su- 
preme court  of  the  United  States  to  either  party,  in  all  citizenship  cases,  and  in 
all  cases  between  either  of  the  five  civilized  tribes  and  the  United  States  involv- 
ing the  constitutionality  or  validity  of  any  legislation  affecting  citizenship,  or  the 
allotment  of  lands  in  the  Indian  Territory,  under  the  rules  and  regulations  gov- 
erning appeals  to  said  court  in  other  cases :  Provided,  that  appeals  in  cases  de- 
cided prior  to  this  act  must  be  perfected  in  one  hundred  and  twenty  days  from 
its  passage ;  and  in  cases  decided  subsequent  thereto,  within  sixty  days  from  final 
judgment ;  but  in  no  such  case  shall  the  work  of  the  commission  to  the  five  civ- 
ilized tribes  be  enjoined  or  suspended  by  any  proceeding  in.  or  order  of,  any 
court,  or  of  any  judge,  until  after  final  judgment  in  the  supreme  CQurt  of  the 
United  States.  In  cases  of  appeals,  as  aforesaid,  it  shall  be  the  duty  of  the  su- 
preme court  to  advance  such  cases  on  the  docket  and  dispose  of  the  same  as 
early  as  possible."-*^   . 

This  statute  was  intended  to  operate  retrospectively,  but  that  fact  does  not 
render  it  void.  And  besides  the  whole  case  is  not  open  to  adjudication  under 
ihis  statute,  as  was  the  case  under  §  5  of  the  act  of  March  3,  1891,  but  the  ap- 
peal is  restricted  to  the  constitutionality  and  validity  of  the  legislation.^* 

The  appeal  granted  by  the  Indian  appropriation  act  of  July  1,  1898, 
30  Stat.  591,  c.  545,  in  allowing  the  remedy  of  appeal  to  the  supreme  court  of  the 
United  States  from  the  United  Slates  courts  in  the  Indian  Territory,  was  in- 
tended to  extend  only  to  the  constitutionality  or  validity  of  the  legislation  af- 

it   is   not   claimed   by   the   counsel   for   the  are    of    opinion    that    it    does    not    come 

plaintiff   in    error    that    this   provision    ap-  within  the  thirteenth  section  of  the  act  ot' 

plies   to   capital   cases.      And   see   the   case  1891."      Ansley    v.    Ainsworth,    180    U.    S. 

of    Folsom    V.    United    States,    160    U.    S.  253,  260,  45  L.   Ed.  517. 

121,    40    L.    Ed.    363."      Brown    v.    United  46.    Anslev  v.  Ainsworth,  180  U.  S.  2:.:?. 

States,  171  U.  S.  631,  637,  43  L.  Ed.  312.  259.  45  L.   E"d.  517. 

"In    Stephens    v.    Cherokee    Nation,    174  47_    Brown  v.   United   States,   171   U.   S. 

U.    S.   445,    43    L.    Ed.    1041,   we   thought   it  532    43  ^    Ed.  312. 

unnecessary  to  determine  whether  the  ef-  .1,    xj-                   tt   v  j    c^  *.  „     mc    tt    c 

r     ^     f  4.1,         4.     r  -lonr             4.            J       ,-u  48.   Bmvon  V.   United   States,   195    U.   b. 

feet  of  the  act  of  1895  was  to  render  the  .„„     .„    -r '    -pj     ->.if.      a^  i        „.     A;,.o„,^,-fh 

..  .  ,        ,,           ..           c    t-u           t-        c      ior>i  fi^3,  49   L.   Ed.   349     Ansley  v.  Ainswoit'.i, 

thirteenth    section    of    the     act      of      1891  .,„.'  y.    ^     o^o     An   V      xtA     ci-r    -..-fir,^   -.uA 

,     11       •           1-11              4.U      ■    J            4        r  ISO    U.    b.    2.t3,    45    L,.    lid.    517,    citing   ana 

wholly    inapplicable,   as   the   judgments    of  .          t>                      tt    •*   ^     c^-^■^   ■?    i-ri 

.1       TT   -4  J    Ci  t-                4-      •      4.S      -I    A-  approvmg    Brown    v.    United    States.    Id 

the    United    States    courts    in    the    Indian  tt    c    o-^-,     a-,  t     -c^    oio 

T-4.               •         4.1                            4.U                           'J           I  U.    O.  Dal,    4o    J-,.    x!<a.    olti. 

erritory    m    the    cases    there    cons'dered  w          ,                     ,^          ,         >t     •           « 

were  made  final  below  by  the  act  of  1896,  48-  Stephens    v.    Cherokee    Nation,    174 

and  the   appeals  were   regarded  as   having  U.  S.  445,  479,  43   L.   Ed.   1041. 

been   in   terms   granted   from   those   judg-  50.  Stephens    v.    Cherokee    Nation,    174 

ments   by   the   act   of  1898.      But   this    m-^e  U.    S.  445,   470,   43    L.    Ed.   1041;   Ansley  i- 

is  not  affected  by  the  act   of  1898,  and  we  Aiuawurth,    isO    U.    S.   2^3,    45    L.    Kd.   517. 


APPEAL  AXD  ERROR.  h27 

fecting  citizenship  or  allotment  of  land  in  the  Indian  Territory .^i  An  appeal 
does  not  lie  directly  to  the  supreme  court  of  the  United  States  from  a  decree  of 
the  United  States  court  in  the  Indian  Territory  in  a  case  involving  the  constitu- 
tionalit}'  of  an  act  of  Congress,  but  which  is  not  affected  by  the  Indian  appro- 
priation act  of  July   1.   1898.      In  accordance  with  the  legislation  subsequent  to 

1891,  the  appeal  should  have  been  prosecuted  to  the  court  of  appeals  in  the  Indian 
Territory. -5  2 

d.  Over  the  Territory  of  Hazfaii.—The  act  of  April  30.  1900,  providing  a  gov- 
ernment for  the  territory  of  Hawaii,  c.  339,  31  Stat.  141,  enacts  (§86)  that  "The 
laws  of  the  United  States  relating  to  appeals,  writs  of  error,  removal  of  causes, 
and  other  matters  and  proceedings  as  between  the  courts  of  the  United  States 
and  the  courts  of  the  several  states  shall  govern  in  such  matters  and  proceedings 
as  between  the  courts  of  the  United  States  and  the  courts  of  the  territory  of 
Hawaii. "•''•^ 

Source  of  Jurisdiction. — It  follows  that  the  jurisdiction  of  the  supreme  court 
to  review  judgments  of  the  courts  of  the  territory  of  Hawaii  is  more  restricted 
than  is  the  jurisdiction  to  review  the  judgments  of  the  courts  of  other  organized 
territories,  and  is  to  be  measured  by  the  power  to  review  judgments  of  state 
courts.-^'* 

Construction  of  Act  of  1900. — No  order  of  the  supreme  court,  assigning 
the  territory  of  Hawaii  to  a  judicial  circuit  under  the  act  of  1891.  can  give  c 
right  of  appeal  inconsistent  with  the  provision  of  §  86  of  the  act  of  1900  restrict- 
ing such  appeals  to  cases  in  which  by  the  laws  of  the  United  States  they  are  al- 
lowable to  tlie  courts  of  the  United  States  from  the  courts  of  the  several  states.^^ 
The  act  of  congress  of  1900  contains  no  provision  authorizing  an  appeal  from 
the  supreme  court  of  the  territory  of  Hawaii  to  the  United  States  circuit  court  of 
appeals  for  the  ninth  circuit  in  an  admiralty  case  pending  in  the  courts  of  the  re- 
public of  Hawaii  at  the  time  that  congress  by  the  act  of  April  30,  1900,  c.  339. 
provided  a  government  for  the  territory  of  Hawaii,  establishing  therein  a  su- 
preme court  and  other  courts  and  enacting  in  §  10,  that  "all  actions  at  law.  suits 
in  equity,  and  other  proceedings,  then  pending  in  the  courts  of  the  republic  of 
Hawaii,  shall  be  carried  on  to  final  judgment  and  execution  in  the  corresponding 
courts  of  the  territory  of  Hawaii."  "The  fact  that  in  a  state  cases  in  admiralty 
cannot  be  brought  in  its  courts,  but  only  in  the  courts  of  the  United  States,  af- 
fords no  reason  for  implying  that  congress,  without  any  language  expressing  such 
an  intention,  meant  to  vest  in  any  court  of  the  United  States  either  original  or 
appellate  jurisdiction  in  cases  in  admiralty  pending  in  the  courts  of  Hawaii  wher. 
this  act  of  congress  took  efifect."^^ 

Amount  in  Controversy. — The  act  of  March  3.  1905.  c.  1465.  §  3  provide.^ 
that  writs  of  error  and  appeals  may  be  taken  from  the  supreme  court  of  the  ter- 
ritory of  Hawaii  to  the  supreme  court  of  the  United  States  in  all  cases  where 
the  amount  involved,  exclusive  of  costs,  exceeds  the  sum  or  value  of  $5,000.^' 

Retrospective  Operation  of  Statute. — But  if  at  the  time  of  final  judgment 

51.  Ansley  v.   Ainswortfi,  180  U    S.  253,  Brown,   187   U.  S.   308,  309.  47   L.   Ed.   190. 
259,  45   L.   Ed.    517,   citing   and  approving  reaffirmed    in    Cfiicago,    etc..     R.     Co.      v. 
Stephens  v.    Cfierokee    Nation.  174    U.    S.  Xewell.   198  U.  S.   579,   49   L.   Ed.   1171. 
445.  43   L.   Ed.   1041.  54.    Rev.  Stat.,  §  709;  Ex  parte  Wilder's 

52.  Ansley  v.  Ainsworth,  180  U.  S.  253.  Steamboat  Co.,  183  U.  S.  545.  46  L.  Ed. 
^^.}l,   Ed.  517.  331 ;   Equitable,  etc..  Assur.   Soc.  v.  Brown. 

Whether  an  appeal  lies  to  the   supreme  i87   U.    S.    308,    309,   47    L.     Ed.      190.      re- 
court  of  the  United  States  from  the  court  affirmed  in  Chicago,  etc.,  R.  Co.  v.  Newell. 
of  appeals  of  the  Indian  Territory  in  cases  jgg  jj    g    579    49  l,    Ed    1171 
o7°cnZ    '^'    constitutionality    of    an    act  "^^        ;       ^\^^^^:^    Steamboat    Co., 

the    ?nf       ''    '''^''^-  T    "°^  ^^r/1      7  183   U.   S.   545.   552.   46   L.   Ed.   321. 

the    Indian    appropriation    act    of    July    1,  _                     '^.,  ,     ,      _            .  •      /-. 

1898,  is  a  question  not  decided  in  Ansley  58-     Ex   parte    Wilder  s    Steamship    Co., 

V.    Ainsworth.    180    U.    S.    253.    45    L.    Ed.  1?-  U.  S.  545,   46  L.    r-d.  321. 

51".  L7.    Harrison  v.  Magoon,  205  U.  S.   501, 

53.  Equitable,     etc.,      Assur.      Soc.      v.  51    L.    Ed.    900. 


528  APPEAL  AXD  URROR. 

in  the  supreme  court  of  Hawaii  there  was  no  right  of  appeal  wliatever,  a  party 
cannot  evoke  a  new  one  by  fihng  a  petition  for  rehearing  jifter  the  passage  of  this 
act.  And  ahhough  the  petition  for  rehearing  was  entertained  and  acted  upon  by 
the  supreme  court  of  the  territory  after  the  statute  went  into  ettect,  the  subse- 
quent statute  does  not  apply. ^^ 

e.  Effect  of  Admission  of  Territory  as  State — (1)  ///  Absence  of  Statute. — 
Where  a  case  is  brought  to  this  court  from  a  territorial  court  and  is  pending  in 
this  court  at  the  time  the  territory  is  admitted  as  a  state,  the  writ  of  error  will 
necessarily  abate  for  the  obvious  reason  that  there  is  no  court  in  existence  to 
which  the  mandate  of  this  court  could  be  sent  to  carry  into  effect  our  judgment, 
were  we  to  consent  to  a  review  of  the  case ;  our  power,  therefore,  would  be  in- 
complete and  ineffectual. 5^  But  it  has  been  held,  that  where  a  judgment  was 
rendered  by  the  supreme  court  for  Iowa  territory  and  the  record  certified  to  this 
court  by  the  supreme  court  of  the  state  of  Iowa,  after  her  admission  into  the 
Union,  and  the  subject  matter  is  within  the  jurisdiction  of  this  court,  it  will  take 
jurisdiction  over  the  case  on  the  ground  that  no  mandate  is  required  to  give  effect 
to  the  judgment  of  this  court.^^  It  would  seem  to  be  altogeth-er  unreasonable  that 
the  judgments  of  territorial  courts  in  mere  matters  of  procedure,  should  be  sub- 
ject to  reversal,  because  of  decisions  made  by  the  courts  of  the  state  in  subse- 
quent cases,  where  the  former  cases  were  pending  on  appeal  in  this  court. ""^ 

(2)  Statutory  Proz'isions. — In  General. — When  congress  has  passed  an  act 
admitting  a  territory  into  the  Union  as  a  state,  but  omitting  to  provide,  by  such 
act,  for  the  disposal  of  cases  pending  in  this  court  on  appeal  or  writ  of  error,  it 
may  constitutionally  and  properly  pass  a  subsequent  act  making  such  provision 
for  them.fi 2 

The  Revised  Statutes  provide  that  in  all  cases  where  the  judgment  or  de- 
cree of  any  court  of  a  territory  might  be  reviewed  by  the  supreme  court  on  writ 
of  error  or  appeal,  such  writ  of  error  or  appeal  may  be  taken,  within  the  time  and 
in  the  manner  provided  by  law,  notwithstanding  such  territory  has,  after  such 
judgment  or  decree,  been  admitted  as  a  state;  and  the  supreme  court  shall  direct 
the  mandate  to  such  cou^t  as  the  nature  of  the  writ  of  error  or  appeal  requires.^'^ 

The  act  of  2 2d  of  February,  1848,  ch.  12,  which  provides  for  cases  pend- 
ing in  the  supreme  or  superior  court  of  any  territory  thereafter  admitted  as  a  state, 
made  no  provision  for  cases  pending  in  this  court  on  writ  of  error  or  appeal  from 
a  territorial  court.     In  the  case  just  mentioned,  it  requires  the  concvirrent  legis- 

58.  Harrison  v.  Magoon,  205  U.  S.  501,  the  supreme  court  of  the  state  not  hold- 
51  L-   Ed.  900.  insr   the    records    as    part    of   its    own    rec- 

59.  McNulty  v.  Batty,  10  How.  72,  13  ords.  nor  exercising  judicial  power  over 
L.  Ed.  333.  334,  reaffirmed  in  Preston  v.  them.  Nor  could  a  law  of  the  state  have 
Bracken,  10  How.  81,  13  L.  Ed.  336;  Hunt  declared  the  records  of  a  court  of  the 
V.  Palao,  4  How.  589,  11  L-  Ed.  1115,  and  United  States  to  be  a  part  of  the  records 
distinguished  in  Bird  v.  United  States,  of  its  own  state  court,  nor  have  au- 
187  U    S    118,  124.  47  L    Ed.  100  thonzed    any   proceedmgs   upon   them.    K 

Where   a   case   had  been   brought   up   to  ^}'^   '^^"^l^  ^f'^   t°.  ^e   brought  up   under 

this  court  from  the   supreme  coiirt  of  the  ^^^  fourteenth   section  of  the  act  of  1789 

.       •,  r   ,,r-  -J  r  it  would  be   oi   no  avail,   because   there  is 

territory   of   Wisconsin,   and   was   pending  ,    ,  i  ■  u    ^.u  i   ..        t   4-1,;= 

.1  •  ,.     t  iu     i-  I,        WT-  ■  no    court    to    which    the    mandate    ot    tins 

m  this  court  at  the  time  when  Wisconsin  ,  u      u        4.  -^^  j        u      *  „ 

was  admitted  as  a  state,  it  was  held,   that  ^^'V^     f^jl'^     ^^^^  ^?,''T'Ta\,-^ 

the      appeal      would     abate.      McNulty   v.  P''^^'''°-  ^  How.   o89.   11   L.   Ed.  111... 

Batty,   10    How.   72,   13    L.    Ed.    333;    Pres-  60.     Webster   v.    Reid,    11    How.    437,    13 

ton   V.    Bracken,    10    How.    81.    13    L.    Ed.  L.    Ed.    761. 

336.  61.    Ankeny  v.  Clark,  148  U.  S.  345,  354, 

Upon    the    admission    of    Florida    as    a  37    L.    Ed.    475.     distinguishing     Stutsman 

state,  the  records  of  the  former  territorial  County   v.   Wallace,    142    U.    S.    293,   35   L- 

court  of  appeals  were  directed  by  a  law  of  Ed.   1018. 

the   state   to  be  deposited  for   safekeeping  62.    Freeborn   v.   Smith,  2  Wall.    160.   17 

with    the    clerk   of    the    supreme    court    of  L.   Ed.   922. 

the    state.      No    writ    of    error    can    be    is-  63.    Rev.   Stat..  §   703.     See   Koenigsber- 

sued   to   bring   up   a   record   thus    situated,  ger  v.   Richmond   Silver   Min.   Co.,  158  U. 

the    territorial    court    being    defunct,    and  S.   41,  39  L.   Ed.   889. 


APPEAL  AND  ERROR. 


529 


lation  of  congress  and  the  state  legislature,  in  cases  of  appellate  state  jurisdiction, 
to  transfer  such  'cases  from  the  old  to  the  new  government.^-*  By  §  22,  in  all 
cases  pending  in  this  court,  on  appeal  or  writ  of  error,  from  the  supreme  court 
of  the  territory,  at  the  time  of  the  admission  of  the  state  into  the  Union,  and  after- 
wards decided  and  a  mandate  therein  sent  down  by  this  court,  the  circuit  or  dis- 
trict court  of  the  United  States,  or  the  supreme  court  of  the  state, 
"as  the  nature  of  the  case  may  require,"  is  declared  to  be  the 
successor  of  the  supreme  court  of  the  territory.  This  phrase,  "as  the  nature  of  the 
case  may  require,"  would  seem  to  treat  the  circuit  or  district  court  of  the 
United  States  as  the  successor  of  the  supreme  court  of  the  territory  in  all  cases 
of  federal  jurisdiction,  whether  by  reason  of  the  subject  matter,  or  of  the  par- 
ties.^5 

And  congress  may  authorize  this  court  to  issue  a  mandate  to  a  state 
court,  even  in  a  mere  matter  of  state  jurisdiction,  for  the  same  reason  that  this 
court  may  issue  its  mandate  in  cases  where  we  have  jurisdiction  under  709  of  the 
Revised  Statutes;  because  we  have  jurisdiction  to  hear  and  decide  the  case.^*' 

f.  Over  Particular  Proceedings — (1)  In  Criminal  Cases. — In  General. — Un- 
fler  the  various  statutes  passed  by  congress,  regulating  the  review  by  this  court 
of  judgments  or  decrees  of  territorial  courts,  it  has  been  held,  upon  an  exhaustive 
review  of  the  decisions,  that  this  court  has  no  jurisdiction  on  appeal  in  criminal 
cases  from  the  territory.*'' 

supplementary  to  that  of  February,  1847, 
applies  only  to  cases  which  were  pending 
in  the  territorial  courts,  and  does  not  in- 
clude such  as  were  pending  in  this  court 
at  the  time  of  the  admission  of  Wiscon- 
sin as  a  state.  Even  if  congress  had  di- 
rected the  transfer,  to  the  district  court 
of  the  United  States,  of  cases  appropriate 
to  the  jurisdiction  of  state  courts,  this 
court  could  not  have  carried  its  judgment 
into  effect  by  a  mandate  to  the  district 
court.  McNulty  v.  Batty.  10  How.  72,  13 
L.  Ed.  333,  reaffirmed  in  Preston  t'. 
Bracken,  10  How.   81,   13   L.   Ed.  336. 

65.  Koenigsberger  v.  Richmond  Silver 
Min.   Co..   158   U.  S.   41,   49.  39   L.   Ed.  889. 

66.  Freeborn  v.  Smith,  2  Wall.  160,  17 
L.   Ed.   922. 

67.  Farnsworth  r.  Montana,  129  U.  S. 
104.  32  L.  Ed.  616.  citinii-  Snow  v.  United 
States.  118  U.  S.  346.  30  L.  Ed.  207;  Watts 
V.  Washington  Territory,  91  U.  S.  580,  23 
L.    Ed.    328. 

There  is  no  authority  for  the  review  by 
this  court  of  the  decision  of  the  supreme 
court  of  the  territory  of  Montana,  in  a 
criminal  case.  Farnsworth  r.  Montana, 
129   U.   S.    104,    109,   32   L.    Ed.   616. 

As  to  each  of  the  territories,  except 
Washington,  the  Revised  Statutes  pro- 
vided that  final  judgments  and  decrees  of 
its  supreme  court,  where  the  value  of  tlie 
matter  in  dispute  exceeded  $1,000,  might 
be  reviewed  by  this  court,  upon  writ  of 
error  or  appeal,  in  the  same  manner  and 
under  the  same  regulations  as  the  final 
judgments  and  decrees  of  a  circuit  court 
of  the  United  States.  Rev.  Stat.,  §§  702. 
1909.  The  act  of  June  23,  1874.  c.  469.  § 
3,  provided  that  a  writ  of  error  should  lie 
from  this  court  to  the  supreme  court  of 
the  territory  of  Utah,  "in  criminal  oases, 
where    the    accused    shall    have    been    sen- 


64.  Freeborn  ?'.  Smith,  2  Wall.  160.  174, 
17  L.  Ed.  922;  Bcnner  v.  Porter,  9  How. 
235,   13   L.    Ed.    119. 

"Another  objection  was  taken  upon  the 
motion  to  dismiss.  It  was  insisted,  that, 
Iowa  having  been  admitted  into  the 
Union  as  a  state  since  the  writ  of  error 
brought,  the  act  of  1838,  regulating 
its  judicial  proceedings  as  a  territory,  is 
necessarily  abrogated  and  repealed;  and 
consequently  there  is  no  law  now  in  force 
authorizing  this  court  to  re-examine  and 
affirm  or  reverse  a  judgment  rendered  by 
the  supreme  court  of  the  territory,  or  giv- 
ing this  court  any  jurisdiction  over  it. 
This  difficulty  has,  however,  been  re- 
moved by  an  act  of  congress,  passed  dur- 
ing the  present  session  (and  since  this 
motion  was  made),  which  authorizes  the 
supreme  court  to  proceed  to  hear  and  de- 
termine cases  of  th's  description,"  Shep- 
pard  Z'.  Wilson,  5  How.  210.  212.  12  L.  Ed. 
120.    121. 

Where  a  case  had  been  brought  up  to 
this  court  from  the  supreme  court  of  the 
territory  of  Wisconsin,  and  was  pending 
in  this  court  at  the  time  when  Wisconsin 
was  admitted  as  a  state,  the  jurisdiction 
of  this  court  over  it  ceased  when  such  ad- 
mission took  place.  Provision  was  made 
in  the  act  of  congress  for  the  transfer, 
from  the  territorial  courts  to  the  district 
court  of  the  United  States,  of  all  cases 
appropriate  to  the  jurisdiction  of  the  new 
district  court;  but  none  for  cases  appro- 
priate to  the  jurisdiction  of  state  tribu- 
nals. By  the  admission  of  Wisconsin  as 
a  state,  the  territorial  government  ceased 
to  exist,  and  all  the  authority  under  it. 
incliiding  the  laws  organizing  its  courts 
of  justice  and  providing  for  a  revision  of 
their  judgments  in  this  court.  The  act 
of   congress    passed    in     February,      1848, 

1  U  S  Enc— 34 


530 


APPEAL  AND  ERROR. 


Territory  of  Washington. — This  court  can  only  review  the  final  judgments 
of  the  supreme  court  of  the  territory  of  Washington  in  criminal  cases,  when  the 
constitution  or  a  statute  or  treaty  of  the  United  States  is  drawn  in  question.^^ 

Territory  of  Utah. — A  writ  of  error  will  not  lie  from  this  court  to  the  su- 
preme court  of  the  territory  of  Utah  to  review  the  judgments  of  that  court  affirm- 
ing the  judgment  of  the  lower  court  of  that  territory,  rendered  on  a  conviction  of 
the  plaintiff  in  error  on  indictments  found  under  §  3  of  the  act  of  March  22,  1832, 
22  Stat.  31,  for  cohabiting  with  more  than  one  woman.^^  But  a  writ  of  error 
from  this  court  to  the  supreme  court  of  the. territory  of  Utah  is  allowed  by  §  3 
•of  the  act  of  Congress  of  June  23,  1874  (18  Stat.  254),  in  criminal  cases,  when; 
the  accused  has  been  sentenced  to  capital  punishment  or  convicted  of  bigamy  or 
polygamy."^ 

Oklahoma  Territory. — A  decision  of  the  supreme  court  of  the  territory  of 
Oklahoma  in  a  capital  case  is  not  reviewable  by  the  supreme  court  of  the  United 
States,  because  there  is  no  statute  giving  appellate  jurisdiction  to  this  court  over 
the  judgments  of  the  supreme    court  of  Oklahoma  in  capital  cases.'^^ 

Territory  of  Florida. — The  act  of  Congress  passed  on  the  22d  of  February, 
1847  ( Sess.  Laws,  18-^7,  Ch.  17),  providing  that  certain  cases  might  be  brougPit 
up  from  the  territorial  courts  of  Florida  to  this  court,  included  all  cases,  whether 
of  civil  or  criminal  jurisdiction.  Under  this  act,  this  court  can  revise  a  judgment 
of  the  superior  court  of  the  district  of  West  Flordia  in  a  criminal  case,  which 
originated  in  October,  1845,  and  was  transferred  to  the  district  court  of  the  United 
States  for  the  northern  district  of  Florida." ^ 

(2)'  /;/  Habeas  Corpus  Proceedings. — The  Revised  Statutes  of  the  United 
States  conferred  on  this  court  jurisdiction,  upon  writ  of  error  or  appeal,  to  re- 
view and  reverse  or  affirm  the  final  judgments  and  decrees  of  the  supreme  courts 
of  any  territory  except  Washington,  "in  cases  where  the  value  of  the  matter  in 
dispute"  (or  as  elsewhere  described,  "where  the  value  of  the  property  or  the 
amount    in  controversy"),  "to  be  ascertained  by  the   oath  of  either  party,  or  of  other 


tenced  to  capital  punishment,  or  convicted 
of  bigamy  or  polj^gamy."  18  Stat.  254. 
The  act  of  March  3.  1SS5,  c.  355,  provided, 
in  §  1.  that  no  appeal  or  writ  of  error 
should  be  allowed  from  the  supreme  court 
of  a  territory  unless  the  matter  in  dis- 
pute exceeded  $5,000;  and  in  §  2  that  the 
preceding  section  should  not  apply  to  any 
case  "in  which  is  drawn  in  question  the 
validity  of  a  treaty  or  statute  of,  or  an 
authority  exercised  under,  the  United 
States,  but  in  all  such  cases  an  appeal  or 
writ  of  error  may  be  brought  without  re- 
gard to  the  sum  or  value  in  dispute."  23 
Stat.  443.  At  October  term,  1885,  this 
ceurt,  without  objection,  decided  upon 
the  merits  a  writ  of  error  to  the  supreme 
court  of  the  territory  of  Utah  by  one  con- 
victed of  a  crime  which  was  neither  big- 
amy or  polygamy,  nor  punishable  with 
death.  But  at  the  same  term,  after  argu- 
ment upon  its  jurisdiction  of  a  like  writ 
of  error,  the  court  dismissed  both  writs 
of  error,  and,  in  answering  the  objection 
that  it  had  taken  jurisdiction  of  the  first 
writ,  said:  "The  question  of  jurisdiction 
was  not  considered  in  fact  in  that  case, 
nor  alluded  to  in  the  decision,  nor  pre- 
sented to  the  court  by  the  counsel  for  the 
United  States,  nor  referred  to  by  either 
party  at  the  argument  or  in  the  briefs. 
Probably  both  parties  desired  a  decision 
on  the  merits."  Cannon  v.  United  States, 
116  U.  S.  55,  29  L.  Ed.  561,  and  118  U.  S. 


355,  29  L.  Ed.  561;  Snow  v.  United  States, 
118  U.'S.  346,  354,  30  L.  Ed.  207.  The 
question  whether  the  provision  of  the  act 
of  March  3,  1885,  c.  355,  §  2,  authorizing 
a  writ  of  error  from  this  court  to  the  su- 
preme court  of  any  territory  in  any  case 
"in  which  is  drawn  in  question  the  validity 
of  a  treaty  or  statute  of.  or  an  authority 
exercised  under,  the  United  States."  ex- 
tended to  criminal  cases,  was  then  left 
open,  but  at  October  term,  1888,  was  ck- 
cided  in  the  negative.  Farnsworth  v. 
Montana.  129  U.  S.  104,  32  L.  Ed.  61|; 
United  States  v.  Sanges,  144  U.  S.  310, 
319,    320,    36   L.    Ed.    445. 

68.  Watts  V.  Washington  Territory,  91 
U.   S.   580,   23   L.   Ed.  328. 

69.  Snow  V.  United  States.  118  U.  S. 
346.  30  L.  Ed.  207.  reaffirmed  in  Cannon 
V.  United  States,  116  U.  S.  55,  29  L.  Ed. 
561. 

70.  Wiggins  v.  People,  etc.,  in  Utah,  93 
U.  S.  465,  23  L.  Ed.  941. 

71.  New  V.  Oklahoma.  195  U.  S.  252,  49 
L.  Ed.  182,  citing  Folsom  v.  United 
States,  160  U.  S.  121,  40  L.  Ed.  363,  and 
explaining  Queenan  v.  Oklahoma,  190  ¥. 
S.   548.   47    L.   Ed.   1175. 

72.  Forsythe  v.  United  States.  9  How. 
571,  13  L.  Ed.  262,  reaffirmed  in  Simpson 
V.  United  States,  9  How.  578,  13  L.  Ed. 
265;  Cotton  v.  United  States,  9  How.  579, 
13    L.    Ed.    265. 


APPEAL  AND  ERROR. 


531 


competent  witnesses,  exceeds  one  thousand  dollars,"  and  in  the  territory  of  Wash- 
ir.gton,  two  thousand  dollars ;  and  also  in  all  cases  in  any  territory,  arising  under 
tlie  constitution  and  laws  of  the  United  States,  or  in  which  the  constitution  or  a 
statute  or  treaty  of  the  United  States  is  brought  in  question ;  and  in  all  cases  upon 
writs  of  habeas  corpus  hivolving  the  question  of  personal  freedomJ^  By  the  act 
of  March  3,  1885,  c.  355,  except  in  cases  in  which  is  involved  the  validity  of  a 
patent  or  a  copyright,  or  in  which  is  drawn  in  question  the  validity  of  a  treaty  or 
statute  of,  or  an  authority  exercised  under,  the  United  States,  "no  appeal  or  writ 
of  error  shall  hereafter  be  allowed  from  any  judgment  or  decree,  in  any  suit  at 
law  or  in  equity,  in  the  supreme  court  of  the  District  of  Columbia,  or  in  the  su- 
preme court  of  any  of  the  territories  of  the  United  States,  unless  the  matter  in 
dispute,^  exclusive  of  costs,  shall  exceed  the  sum  of  five  thousand  dollars."  23  Stat. 
443.  This  act  has  not  repealed  the  provision  of  the  Revised  Statutes  giving  an 
appeal  from  the  supreme  court  of  a  territory'  in  cases  of  habeas  corpus.'^  There- 
f(jre,  appeals  lie  to  this  court  from  final  orders  of  the  supreme  courts  of  the  ter- 
ritories on  habeas  corpus."^  ^ 

Section  1909  of  the  Revised  Statutes  substantially  re-enacting  provisions 
of  earlier  acts,  and  providing  that  writs  of  error  and  appeals  from  the  final  de- 
cisions of  the  supreme  courts  of  certain  territories  shall  be  allowed  to  this  court 
ill  the  same  manner  and  under  the  same  regulations  as  from  the  circuit  courts  of 
the  United  States,  "where  the  value  of  the  property  or  the  amount  in  controversy 
exceeds  one  thousand  dollars,  except  that  a  writ  of  error  or  appeal  shall  be  al- 
lowed" to  this  court  from  the  decisions  of  the  courts  or  judges  of  the  territory 
"upon  writs  of  habeas  corpus  involving  the  question  of  personal  freedom,"  clearly 
implies  that  writs  of  habeas  corpus  would  not  be  included  if  not  specially  men- 
tioned.'*^ But  that  this  section  of  the  statute  does  not  permit  appeals  from  all 
ca^es  in  which  the  writ  is  issued  is  manifest  in  the  use  of  language  in  the  act, 
specifically  limiting  the  right  of  review  in  this  court  to  cases  of  writs  which  in- 
A'ulve  the  question  of  personal  freedom."" 

(3)    Findings  of  Court. — In  General. — In  the  absence  of  assignments  of  er- 


73.  Revised  Statute,  §§  702,  1909,  1911. 
S-  nms  V.  Simms,  175  U.  S.  162.  164,  44  L. 
EL  115. 

74.  Gonzales  v.  Cunningham.  164  U.  S. 
612,  41  L.  Ed.  572;  Simms  v.  Simms.  175 
U.   S.   162.   164,   44   L.    Ed.    115. 

This  result  is  not  afifected  by  the  ju- 
diciary act  of  March  3,  1891,  c.  517,  26 
Stat.  826.  Shute  v.  Keyset,  149  U.  S.  649, 
37  L.  Ed.  884;  Folsom  v.  United  States, 
160  U.  S.  121,  40  L.  Ed.  363;  In  re  Lennon, 
150  U.  S.  393,  37  L.  Ed.  1120;  In  re  Heath, 
144  U.  S.  92.  36  L.  Ed.  358;  Gonzales  v. 
Cunningham.  164  U.  S.  612.  621,  41  L. 
Ed.   572. 

75.  Gonzales  c'.  Cunningham,  164  U.  S. 
•613,  616,  41  L.  Ed.  572,  distinguishing  the 
cases  holding  that  there  was  no  jurisdic- 
tion in  such  cases  on  appeal  from  the 
courts  of  the  District  of  Columbia;  New 
York  Foundling  Hospital  v.  Gatti,  203 
"U.   S.   429,   437,   51   L.    Ed.   257. 

"The  supreme  court  of  New  Mexico  de- 
■clined  to  allow  an  appeal  in  this  case  be- 
cause of  the  rule  laid  down  in  Cross  v. 
Burke,  and  in  In  re  Lennon,  supra,  and 
it  may  be  admitted  that  the  view  that  an 
appeal  would  not  lie  might  well  have  been 
entertained.  But  we  think  that  the  leg- 
islation in  respect  of  the  review  of  the 
final  orders  of  the  territorial  supreme 
courts    on    habeas    corpus    so    far    differs 


from  that  in  respect  of  the  judgments  of 
the  courts  of  the  District  of  Columbia 
that  a  different  rule  applies."  Gonzales  zx. 
Cunningham,  164  U.  S.  612.  618,  41  L.  Ed. 
572. 

Indeed,  it  was  distinctly  ruled  in  In  re 
Snow.  120  U.  S.  274,  30  L.  Ed.  658,  that 
an  appeal  would  lie  under  §  1909  from  a 
final  order  entered  in  1886  on  habeas  cor- 
pus by  the  supreme  court  of  the  terri- 
tory of  Utah;  and  this  notwithstanding 
the  act  of  March  3,  1885,  c.  355;  which 
was  quoted  and  referred  to  in  Snow  v. 
United  States,  118  U.  S.  346,  30  L.  Ed 
207.  Jurisdiction  was  also  entertained  cA 
such  an  appeal  in  In  re  Neilsen,  131  U. 
S.  176,  33  L.  Ed.  118,  from  a  final  order 
of  a  district  court  of  the  territory  of 
Utah,  and  in  In  re  Delgado,  140  U.  S.  586, 
35  L.  Ed.  578,  from  a  final  order  of  a  dis- 
trict court  of  New  Mexico.  Gonzales  v. 
Cunningham.  164  U.  S.  612,  620,  41  L.  Ed. 
572. 

76.  Potts  V.  Chumasero,  92  U.  S. 
3.'8,  23  L.  Ed.  499;  Elgin  v.  Mar- 
shall, 106  U.  S.  578,  580,  27  L.  Ed.  249; 
Curtis  on  U.  S.  Courts,  65;  Kurtz  v.  Mof- 
fitt.    115    U.    S.    487,    497,   29    L.    Ed.   458. 

77.  New  York  Foundling  Hospital  v. 
Gatti.   203   U.   S.   429,   437,   51   L.    Ed.   257. 

What  is  "question  of  personal  freedom." 
— Under   §    1909    of   the    Revised   S.atutes, 


532 


APPEAL  AND  ERROR. 


ror  or  exceptions  taken,  this  court  has  no  authority  to  review  findings  of  the  ter- 
ritorial court  in  an  action  in  which  the  jury  has  been  waived  and  the  trial  had  by 
the  court  J  ^ 

Waiver  of  Jury. — A  proceeding  under  the  act  of  February  25,  1885,  22>  Stat. 
321,  giving  the  district  attorney  authority  to  institute  a  civil  suit  in  the  oroper  ter- 
ritorial district  court,  against  anyone  in  unlawful  occupancy  of  public  lands,  is 
not  a  common-law  action,  but  a  summary  proceeding  more  in  the  nature  of  a  suit 
in  equity,  and  may  be  reviewed  by  this  c-ourt  although  it  is  tried  without  the  inter- 
vention of  a  jury,  and  without  a  stipulation  waiving  a  trial  by  jury.  The  case  is 
not  governed  by  §  649  of  the  Revised  Statutes,  but  by  the  territorial  statutes  ; 
which  provide  for  a  waiver  by  oral  consent  in  open  court  of  a  trial  by  jury, 
in  actions  arising  on  contracts,  or  with  the  assent  of  the  court  in  other 
cases."  ^ 

Effect  of  Failure  to  Find  Facts. — Although  the  record  does  not  show  any 
findings  of  fact  by  the  territorial  court,  yet  as  the  order  for  the  judgment  neces- 
sarily implies  that  the  facts  were  found  by  the  court  upon  which  the  order  was 
made,  and  if  the  omission  was  probably  a  mistake  of  the  copyist  in  making  the 
transcript,  this  court  will  pass  by  this  omission,  and  permit  the  party  who  de- 
fends the  ruling  below  to  supply  the  defect.^*'  Where  it  appears  that  the  case  was 
before  the  supreme  court  of  the  Territory  of  Oklahoma  the  second  time,  and  in 
its  opinion  it  referred  to  and  adopted  its  former  opinion  in  which  it  had  made  a 
full  statement  and  findings  of  fact,  and  objection  that  the  court  below  found  no 
facts  upon  which  a  review  could  be  had  in  this  court  is  untenable.^ ^ 


which  provides  that  a  writ  of  error  or  ap- 
peal shall  be  allowed  to  the  supreme  court 
of  the  United  States  from  decisions  of 
either  of  the  territories  of  New  Mexico, 
Utah,  Colorado,  Dakota,  Arizona,  Idaho, 
Montana  and  Wyoming,  or  of  any  judge 
thereof,  or  of  the  district  courts  created 
by  this  title,  upon  writs  of  habeas  corpus 
involving  the  question  of  personal  free- 
dom, it  was  held,  that  an  appeal  would 
not  lie  from  an  order  awarding  the  cus- 
tody of  an  infant  child  of  the  petitioner 
because  such  cases  are  not  decided 
on  the  legal  right  of  the  petitioner 
to  be  relieved  from  unlawful  impris- 
onment or  detention,  as  in  the  case 
of  an  adult,  but  upon  the  court's 
view  of  the  best  interests  of  those  whose 
welfare  requires  that  they  be  in  custody 
of  one  person  or  another.  In  such  cases 
the  question  of  personal  freedom  is  not 
involved  except  in  the  sense  of  a  deter- 
mination as  to  which  custodian  shall  have 
charge  of  one  not  entitled  to  be  freed 
from  restraint.  New  York  Foundling 
Hospital  V.  Gatti,  203  U.  S.  439.  439,  51 
L.    Ed.   257. 

78.  Fox  V.  Haarstick,  156  U.  S.  674,  39 
L.   Ed.   576. 

79.  "The  proceeding  contemplated  by 
this  act  is  more  nearly  analogous  to  the 
summary  remedies  provided  for  the  en- 
forcement of  mechanics'  liens  considered 
by  this  court  in  Idaho,  etc..  Land  Co.  v. 
Bradbury,  132  U.  S.  509,  33  L.  Ed.  433,  or 
the  special  proceedings  under  the  terri- 
torial statutes  of  Utah  discussed  in 
Stringfellow  v.  Cain,  99  U.  S.  610.  25  L. 
Ed.  421;  Cannon  v.  Pratt,  99  U.  S.  619, 
25  L.  Ed.  446;  NesHn  v.  Wells,  etc..  Co., 
104  U.  S.  428.  26  L.  Ed.  802;  Gray  z;.  Howe, 
108  U.  S.   12,  27  L.   Ed.   634;   and  in  Ely  v. 


New  Mexico,  etc.,  R.  Co.,  129  U.  S.  291,  32 
L.  Ed.  688,  appealed  from  the  supreme 
court  of  Arizona.  In  these  cases  the 
validity  of  special  statutory  proceedings 
of  this  description  was  sustained,  and  in 
Hecht  V.  Boughton,  105  U.  S.  235.  26  L. 
Ed.  1018,  it  was  held,  that  under  the  act 
of  April  7,  1874,  18  Stat.  27.  c.  80,  an  ap- 
peal was  the  only  proceeding  by  which 
this  court  could  review  the  judgment  or 
decree  of  a  territorial  court  in  a  court 
where  there  was  not  a  trial  bv  jury." 
Cameron  v.  United  States,  148  U.  S.  301, 
305.  37   L.   Ed.   459. 

80.  "The  record  in  stating  the  judgment 
below  does  not  show  any  findings  of  fact 
by  the  court,  which  tried  the  case  with- 
out the  intervention  of  a  jury.  The  or- 
der for  the  judgment  necessarily  implies 
that  the  facts  were  found  by  the  court 
upon  which  the  order  was  made,  but, 
like  a  verdict  of  a  jury,  the  findings 
should  properly  appear  in  the  record.  The 
omission,  it  is  true,  was  not  noticed  by 
counsel  in  the  supreme  court  of  the  ter- 
ritory, nor  has  it  been  called  to  our  at- 
tention. It  was  probably  a  mistake  of 
the  copyist  in  making  the  transcript,  for 
the  argument  has  proceeded  upon  the 
theory  that  such  findings  were  made. 
The  plaintiflf  assigns  as  one  of  the  er- 
rors committed  thnt  the  court  erred  "in 
finding  for  plaintiff  on  all  of  the  issues 
presented  in  the  nleadings."  We  have, 
therefore,  passed  bv  this  omission,  and 
permit  the  party  who  defends  the  ruling 
below  to  supplv  the  defect."  Davis  v. 
Weibbold,  139  U.  S.  507,  515,  35  L.  Ed. 
238. 

81.  National,  etc..  Bank  v.  First  Na- 
tional  Bank,  203  U.  S.  296,  51  L.  Ed.  192. 


APPEAL  AND  ERROR.  533 

Construction  of  Findings.— Where  the  jury  returns  a  general  verdict  for  the 
plaintiffs,  and  also  makes  certain  findings  of  fact  at  the  instance  of  the  respec- 
tive parties,  the  rule  is  that  where  special  findings  are  irreconcilable  with  a  gen- 
eral verdict,  the  former  control  the  latter.  It  is  also  true  that  if  the  findings  are 
fairly  susceptible  of  two  constructions,  one  upholding  and  the  other  overthrowing 
the  general  verdict,  the  former  will  be  accepted  as  the  true  construction,  because 
it  will  not  be  presumed  that  the  jury  had  different  intentions  in  the  findings  and 
in  the  verdict. ^- 

Scope  of  Review. — Where  a  territorial  district  court  makes  certain  findings 
of  fact  and  conclusions  of  law.  and  the  territorial  supreme  court,  on  appeal  from 
the  district  court,  makes  additional  findings  which,  however,  do  not  modify  the 
findings  made  by  the  district  court,  and  therefore  the  findings  of  fact  and  con- 
clusions of  law  made  by  the  two  courts  are  substantially  identical,  if  there  is  no 
bill  of  exceptions,  the  only  question  before  this  court  is  whether  the  findings  of 
fact  made  by  the  supreme  court  support  the  conclusion  of  law  it  made.^^  On  ap- 
peal from  the  supreme  court  of  a  territory,  the  supreme  court  of  the  United  States, 
in  determining  the  question  of  the  sufficiency  of  the  facts  found,  to  support  the 
judgment,  where  the  territorial  supreme  court,  in  addition  to  adopting  the  findings 
found  by  the  trial  court,  made  an  additional  finding  of  facts,  may  consider  both 
the  latter  findings  as  well  as  the  former.^* 

(4)  Miscellaneous  Proceedings. — Validity  of  Fraudulent  Conveyances. — 
The  enabling  act  admitting  the  two  Dakotas,  Montana  and  Washington  territories 
as  states  authorized  this  court  to  proceed  to  hear  and  determine  cases  involving 
the  validity  of  a  sale  by  the  debtor  of  his  property  to  defraud  his  creditors. ^^ 

Divorce  Proceedings. — The  disclaimer  of  any  jurisdiction  in  the  courts  of 
United  States  upon  the  subject  of  divorce,  or  the  allowance  of  alimony,  does  not 
effect  the  appellate  jurisdiction  of  this  court  over  territorial  courts. ^^ 

g.  Transfer  of  Cause — d)  In  General. — This  court  has  no  jurisdiction  over  a 
case  brought  from  the  supreme  court  of  a  territory  without  a  writ  of  error,  ap- 
peal or  citation,  or  appearance  by  defendant  or  respondent.^''' 

(2)  What  Lazv  Governs. — The  act  of  1838,  ch.  96,  §  9,  provides  that  writs 
of  error  and  appeals  from  the  final  decision  of  the  supreme  court  of  the  ter- 
ritory shall  be  allowed  and  taken  to  this  court  in  the  same  manner  and  under  the 
same  regulations  as  from  the  circuit  court  of  the  United  States,  where  the  value 
in  controversy  shall  exceed  one  thousand  dollars. ^^ 

(3)  Alloxvance  of  Appeal. — Upon  an  appeal  to  this  court  from  the  supreme 
court  of  a  territory,  it  must  appear  that  the  appeal  was  allowed  by  the  proper 
court. ^'^  Under  an  act  of  congress  of  1838,  providing  that  writs  of  error  and  ap- 
peals from  the  final  decisions  of  the  supreme  court  of  the  territory  shall  be  allowed 
and  taken  to  this  court  in  the  same  manner,  and  under  the  same  regulation*^  as 
from  the  circuit  court  of  the  United  States,  a  writ  of  error  allowed  by  the  chief 
justice  of  the  territorial  court  was  sustained. ^^ 

(4)  Remedies  for  Reviciving. — This  has  been  fully  treated  in  a  previous  sec- 
tion.    See  ante.  "The  Various  Remedies  Considered,"  II. 

(5)  Time  for  Taking  Appeal. — Upon  an  appeal  to  this  court  from  the  supreme 
court  of  a  territory,  it  must  appear  that  the  proceedings  relative  to  the  perfecting 
of  an  appeal  were  taken  within  two  years  from  the  date  of  entering  the  judgment 

82.  Larkin  v.  Upton,  144  U.  S.  19,  21.  Rama  v.  De  La  Rama,  201  U.  S.  303,  50 
36   L.    Ed.    330.  L.    Ed.    765. 

83.  The  Blue  Jacket.  144  U.  S.  371,  36  g?.  United  States  v.  Hailey,  118  U.  S. 
1"    Ed.   469.  233,   30  L.   Ed.   173. 

L'Ed.^°36.''   "    ^""^'   "'    "■   '^   '"■    '*  89     Nonlf t.    Peters.    13S    U.    S.   .7:,   34 

86.    Simms  v.   Simms,   175  U.   S.   162,   44  L-    Ed.  936. 

L.  Ed.  115,  distinguishing  Barber  v.   Bar-  80.    Sheppard  v.  Wilson,  5  How.  210,  13 

ber,  21   How.   582,   16  L.   Ed.   226;   De   La  L-   Ed.  120. 


534  APPEAL  AND  ERROR. 

in  the  court  below. ^^ 

(6)  Writ  of  Error,  Citation  and  Bond. — Where  a  writ  of  error  is  allowed,  the 
citation  signed  and  the  bond  approved,  by  the  chief  justice  of  the  territorial  court, 
this  in  a  sufficient  compliance  with  the  statute. ^^ 

From  Washington  Territory. — The  act  of  the  territory  of  November  23, 
1883,  in  providing  for  a  new  mode,  different  from  what  previously  existed,  by 
which  cases  can  be  removed  from  the  district  court  to  the  supreme  court  of  the 
territory,  declares  that  notice  of  appeal  may  be  given  in  open  court  or  at  chambers ; 
that  such  notice  shall,  by  order  of  ^he  court  or  judge  having  jurisdiction,  be  en- 
tered on  the  journal  to  the  court ;  and  that  no  other  service  or  notice  shall  be  re- 
quired. This  language  is  inconsistent  with  any  requirement  that  notice  to  the  op- 
posite party  shall  be  given  that  the  party  desirous  of  appealing  intends  to  give  no- 
tice of  an  appeal.  The  nature  of  the  proceeding  is  such  that  no  notice  of  it  is 
required  before  application  is  made  to  the  judge.  When  an  appeal  is  taken  notice 
of  the  fact  is  usually  given  to  the  opposite  party,  or  a  citation  is  served  on  him. 
The  act  of  the  territory,  however,  renders  the  entry  upon  the  journal  sufficient 
notice  to  all  parties. ^^  It  is  a  part  of  the  duty  of  the  judge  of  the  territory  to  sit 
in  the  supreme  court.  He  is  one  of  its  members,  and  his  chambers,  whilst  the 
supreme  court  is  in  session,  and  he  is  in  attendance  upon  it,  may  be  at  the  place 
where  that  court  is  sitting.  Therefore,  notice  of  an  appeal  from  the  judgment 
rendered  by  such  judge  within  his  district,  may  be  given  to  him  at  such  chambers 
of  the  supreme  court. ^^ 

h.  Assignment  of  Errors. — A  rule  of  the  supreme  court  of  a  territory  which 
required  in  all  law  cases  an  assignment  of  errors  to  be  made  in  writing,  filed  and 
served  substantially  as  provided  for  in  the  Code  of  the  territory,  was  held  not  to 
require  such  an  assignment  in  an  equity  cause.^^ 

i.  Scope  and  Extent  of  Reviezv — (1)  In  General. — In  reviewing  the  judgment 
of  the  territorial  court,  our  inquiry  is  limited  to  the  matters  presented  to  and  con- 
sidered by  that  court.  It  is  fundamental  that  when  the  judgment  of  a  court  is  chal- 
lenged in  error,  its  rulings  alone  are  open  to  consideration.  Of  course,  if  the 
trial  court  had  no  jurisdiction,  that  is  a  matter  which  is  always  open,  and  the  at- 
tention of  the  court  of  last  resort  may  be  called  thereto  in  the  first  instance;  but 
mere  matters  of  error  may  always  be  waived,  and  they  are  waived  when  the  at- 
tention of  the  reviewing  court  is  not  called  to  them.^^ 

91.  North  V.  Peters,  ir,8  U.  S.  271,  34  93.  In  re  Parker,  131  U.  S.  221,  33  L- 
L.    Ed.    936.                                                                        Ed.   123. 

92.  Sheppard  v.  Wilson.  5  How.  210,  13  94.  In  re  Parker,  131  U.  S.  221,  33  U 
L.    Ed.    120.                                                                        Ed.   123. 

Under   the    acts    of   1789,    and    1792,   the  95.    The   defendant   in   a  possessory  ac- 

clerk  of  the  circuit  court  where  the  judg-  tion   in   the   nature   of   ejectment,   brought 

ment   was   rendered   may   issue   a    writ   of  in  a  court  of  Washington  territory  where 

error,  and  a  judge  of  that  court  may  sign  the    laws    permitted    a    mingling    of    com- 

the   citation  and  approve  the   bond.    "The  mon-Iaw   and   equity   jurisdiction,   pleaded 

act   of   1789,   which  regulates   writs   of   er-  the    general    issue,    and    also    set    up    four 

ror   from   the   circuit   courts,   requires    the  defenses,    one    of    which    was    the    statute 

citation   to   be   signed   by   a   judge   of   the  of   limitations,   and   one   of  which   was   an 

circuit   court   in   which   the   judgment   was  equitable    defense.      The    plaintiff    filed    a. 

rendered,   or  by  a  justice   of  the   supreine  general  demurrer  to  the  second,  third  and 

court;  and  *  *  *  the  judge  or  justice  sign-  fourth    defenses.      The     demurrer      being 

ing  the  citation  shall  take  good  and  suffi-  overruled,    the    plaintiff    elected    to     stand 

cient   security   for   the   prosecution   of   the  upon   it,   and   the   case  was   thereupon  dis- 

writ    of    error,    and    the    payment    of    the  missed.      Held,    that    the     final     judgment 

damages  and  costs  if  the  plaintiff  in  error  was  one  dismissing  the  action   at  law,  and 

shall    fail   to    make    his    plea    good.      And  was    not    a    judgment    in    the    exercise    of 

the  act  of  May  8,  1792,  ch.  36,  §  9  (l  Stat.  chancery  jurisdiction,   and  therefore   must 

at     Large,  278),  authorizes  the  clerks  of  the  comply  with  a  rule  of  court   requiring  an 

circuit    courts    to   issue    writs   of    error    in  assignment  of  errors  to  be  made  in  writ- 

the  same  manner  as  the   clerk  of  the   su-  ing  in  all  law  cases.     Brown  v.  Rank,  132 

preme   court   miglit   have   issued   them   un-  U.  S.  216.  33   L.   Ed.  340. 

der  the  act  of  17S9."     Sheppard  v.  Wilson,  96.    Montana   R.   Co.  v.  Warren,   137  U. 

5    How.   210,   12    L.    Ed.    120.  S.   348,   34   L.    Ed.    681. 


APPEAL  AND  ERROR. 


535 


Cases  from  New  Mexico.— There  is  nothing  in  §  2190  of  the  compiled  laws 
of  the  territory  of  New  Mexico  providing  that  "the  supreme  court,  in  appeals  or 
writs  of  error,  shall  examine  the  record,  and  on  the  facts  therein  contained  alone 
shall  award  a  new  trial,  reverse  or  affirm  the  judgment  of  the  district  court,  or 
give  such  other  judgment  as  shall  be  agreeable  to  law,"  "wl.lch  lays  down  a  dif- 
ferent rule  from  that  ordinarily  pursued  in  appellate  courts.  If  the  case  be  tried 
by  jury  and  reviewed  upon  writ  of  error,  the  power  of  the  appellate  court  is  lim- 
ited to  affirming  the  judgment  or  reversing  it  for  errors  apparent  upon  the  record, 
and  remanding  it  for  a  new  trial,  as  specified  in  this  section.  If  it  be  an  appeal 
in  equity,  the  court  retries  the  case  upon  the  evidence  in  the  court  below,  and  gives 
such  judgment  as  may  be  agreeable  to  law."^" 

(2)  Necessity  for  Fumlity  of  Decision.— Writs  of  error  and  appeals  to  this 
court  from  the  supreme  court  of  the  territory,  are  limited  to  "final  decisions" 
which  means  the  same  thing  as  "final  judgments  and  decrees. "'^■^  It  is  very  ques- 
tionable whether  a  decree  of  a  territorial  supreme  court  modifying  a  decree  of  a 
territorial  district  court  is  so  far  final  as  to  be  the  subject  of  an  appeal  to  this 
court.9» 

(3)  Review  of  Questions  of  Fact — aa.  In  General. — "Congress  has  prescribed 
that  the  appellate  jurisdiction  of  this  court  over  'judgments  and  decrees'  of  the 
territorial  courts,  'in  cases  of  trial  by  juries  shall  be  exercised  by  writ  of  error, 
and  in  all  other  cases  by  appeal ;'  and  'on  appeal  instead  of  the  evidence  at  large, 
a  statement  of  the  facts  of  the  case  in  the  nature  of  a  special  verdict,  and  also  the 
ridings  of  the  court  on  the  admission  or  rejection  of  evidence  when  excepted  to, 
shall  be  made  and  certified  by  the  court  below,'  and  transmitted  to  this  court  with 
the  transcript  of  the  record."^  Tlie  necessary  effect  of  this  enactment  is  that  no 
judgment  or  decree  of  the  highest  court  of  a  territory  can  be  reviewed  by  this 
court  in  matter  of  fact,  but  only  in  matter  of  law.^ 


97.  Grayson  v.  Lynch,  163  U.  S.  468, 
472.   41    L.    Ed.    230. 

98.  An  order  of  the  supreme  court  of 
Washington  territory  dismissing  a  writ 
of  error  to  a  district  court,  because  of  the 
failure  of  the  plaintiff  in  error  to  file  the 
transcript  and  have  the  cause  docketed 
within  the  time  required  by  law,  is  not 
a  final  judgment  or  c.  final  decision  within 
the  meaning  of  those  terms  as  used  in  §§ 
702  and  1911  of  the  Revised  Statutes  regu- 
lating writs  of  error  and  appeals  to  this 
court  from  the  supreme  court  of  the  ter- 
ritory. Section  702  provides  for  the  re- 
view of  final  judgments  and  decrees  by 
writ  of  error  or  appeal,  and  §  1911  regu- 
lates the  mode  and  manner  of  taking  the 
writ  or  procuring  the  allowance  of  the 
appeal.  The  use  of  the  term  "final  de- 
cisions" in  §  1911  does  not  enlarge  the 
scope  of  the  jurisdiction  of  this  court.  It 
is  only  a  substitute  for  the  words  "final 
judgments  and  decrees"  in  §  702,  and 
means  the  same  thing.  Harrington  v. 
Holler.  Ill  U.  S.  796,  28  L-  Ed.  602,  fol- 
lowing Insurance  Co.  v.  Comstock,  16 
Wall.  258,  21  L.  Ed.  493;  Railroad  Co.  v. 
Wiswall,  23  Wall.  507,  22  L.  Ed.  103. 

While  the  supreme  court  of  New 
Mexico  upon  a  second  writ  of  error  may 
have  considered  itself  bound  by  its  de- 
cision upon  the  question  involved  upon 
the  first  writ  as  the  law  of  the  case,  the 
suprerne  court  of  the  United  States  is  not 
restrained  by  the  same  limitation.  As 
the  judgment  of  the  territorial  court  upon 


the  first  writ  was  merely  for  a  reversal 
of  the  court  below  and  for  a  new  trial, 
such  judgment,  not  being  final,  could  not 
be  made  the  subject  of  a  writ  of  error 
from  the  supreme  court  of  the  United 
States,  that  court  is  at  liberty  to  revise 
the  action  of  the  court  below  in  both  in- 
stances. United  States  v.  Denver,  etc., 
R.  Co..  191  U.  S.  84,  93.  48  L.  Ed.  106. 

99.  Salina  Stock  Co.  v.  Salina  Creek 
Irrigation  Co..  163  U.  S.  109.  41  L.  Ed.  90. 

1.  Act  of  April  7.  1874,  c.  80,  §  2,  18  Stat. 
27.  28;  Idaho,  etc.,  Land  Co.  v.  Bradbury, 
132    U.   S.    509,   33    L.    Ed.    433. 

2.  Marshall  v.  Burtis,  172  U.  S.  630. 
635,  43  L.  Ed.  579;  Kelsey  v.  Crowther. 
162  U.  S.  404,  409,  40  L.  Ed.  1017,  citing 
Haws  V.  Victoria  Cooper  Min.  Co.,  160 
U.    S.    303,    40    L.    Ed.    436. 

No  judgment  or  decree  of  the  highest 
court  of  a  territory  can  be  reviewed  by 
this  court  in  matter  of  fact,  but  only  in 
matter  of  law.  Sturr  v.  Beck.  133  U.  S. 
541,   546,   33    L.    Ed.   761. 

As  observed  by  Chief  Justice  Waite, 
"We  are  not  to  consider  the  testimony  in 
any  case.  Upon  a  writ  of  error  we  are 
confined  to  the  bill  of  exceptions,  or  ques- 
tions of  law  otherwise  presented  by  the 
record;  and  upon  an  appeal,  to  the  state- 
ment of  facts  and  rulings  certified  by  the 
court  below.  The  facts  set  forth  in  the 
statement  which  must  come  up  with  the 
appeal  are  conclusive  on  us."  Hecht  v. 
Boughtcn,  105  U.  S.  235,  236,  26  L-  Ed. 
1018.      See,   also,    Salina     Stock     Co.     v. 


536 


APPEAL  AND  ERROR. 


Divorce  Proceedings. — Therefore  no  appeal  lies  to  this  court  from  the  su- 
preme court  of  the  territory  allowing  or  denying  a  divorce,  where  the  refusal 
of  the  divorce  involves  no  question  of  law  but  mere  questions  of  fact.'^  But  this 
rule  has  no  application  to  appeals  from  the  supreme  court  of  the  Philippine  Is- 
lands.* 

bb.  Rei/iew  of  Findings  of  Fact  by  Territorial  Court. — In  General. — Upon  ap- 
peal from  the  supreme  court  of  a  territory,  this  court  is  precluded  under  the  stat- 
ute from  reviewing  any  question  of  fact,  and  the  finding  of  the  court  below  is 
conclusive  upon  this  court  as  to  all  such  questions.  The  jurisdiction  of  this  court 
on  such  an  appeal,  apart  from  exceptions  duly  taken  to  rulings  on  the  admission 
or  rejection  of  evidence,  is  limited  to  determining  whether  the  findings  of  fact 
support  the  judgment."'  In  other  words  where  a  case  is  tried  in  the  supreme  court 


Salina  Creek  Irrigation  Co.,  16.3  U.  S.  109, 
41  L.  Ed.  90;  Gildersleeve  v.  \ew  Mexico 
^[in.  Co.,  161  U.  S.  573.  40  L.  Ed.  812; 
Haws  V.  Victoria  Copper  Min.  Co..  160 
U.  S.  30.3.  40  L.  Ed.  436;  San  Pedro,  etc., 
Co.  V.  United  States,  146  U.  S.  120,  36  L. 
Fd.  911;  Mammoth  ^Hn.  Co.  v.  Salt  Lake 
Machine  Co..  151  U.  S.  447,  38  L.  Ed.  229; 
Marshall  v.  Burtis.  172  U.  S.  630,  635,  42 
L.  Ed.  579. 

By  the  act  of  April  7,  1874,  c.  80,  18 
Stat.  27,  the  appellate  jurisdiction  of  this 
court,  "over  the  judgments  and  decrees 
of  the  territorial  courts  in  cases  of  trial 
by  jury,  shall  be  exercised  by  writ  of  er- 
ror, and  in  all  other  cases  by  ai  ^al," 
with  a  proviso  "that  on  appeal,  instc'd  of 
the  evidence  at  large,  a  statement  of  the 
facts  in  the  case  in  the  nature  of  a  special 
verdict,  and  also  the  rulings  of  the  court 
on  the  admission  or  reiection  of  evidence, 
when  excepted  to.  shall  be  made  and  cer- 
tified by  the  court  below,  and  transmitted 
to  the  supreme  court,  tosrether  with  a 
transcript  of  the  proceedings  and  judg- 
ment or  decree."  It  was  said  in  the 
Idaho,  etc..  Land  Co.  v.  Bradbury,  132  U. 
S.  509.  513.  33  L.  Ed.  433.  that  the  neces- 
sary effect  of  this  enactment  was  that 
no  judgment  or  decree  of  the  highest 
court  of  a  territory  could  be  reviewed  by 
this  court  in  matter  of  fact,  but  only  in 
matter  of  law.  Grayson  v.  Lynch,  163 
U.    S.    468.    473,    41    L.    Ed.    230. 

Construction  of  laws  of  New  Mexico. — 
Section  4,  chap.  1,  Laws  of  1889,  of  New 
Mexico,  reads  as  follows:  "Sec.  4.  In 
aH  cases  now  pending  in  the  supreme 
court,  or  which  may  hereafter  be  pending 
in  the  supreme  court,  and  which  may'have 
been  tried  by  the  equity  side  of  the  court. 
or  which  may  have  been  tried  by  a  jury 
on  the  common-law  side  of  the  court. 
or  in  which  a  jury  may  have  been  waived, 
and  the  cause  tried  by  the  court  or  the 
ju^ge  thereof,  it  shall  be  the  duty  of  the 
supreme  court  to  look  into  all  the  rulings 
and  decisions  of  the  court  which  may  be 
apparent  upon  the  records,  or  which  may 
be  incorporated  in  a  bill  of  exceptions, 
and  pass  upon  all  of  them,  and  upon  the 
errors,  if  any  shall  be  found  therein,  in 
the  rulings  and  decisions  of  the  court  be- 
low,   grant    a    new    trial,    or    render    such 


other  judgment  as  may  be  right  and  just, 
and  in  accordance  with  law;  and  said  su- 
preme court  shall  not  decline  to  pass 
upon  any  question  of  law  or  fact  which 
may  appear  in  the  record,  either  upon  the 
face  of  the  record  or  in  the  bill  of  excep- 
tions, because  the  cause  was  tried  by  the 
court  or  by  the  judge  thereof  without  a 
jury,  but  shall  review  said  cause  in  the 
same  manner  and  to  the  same  extent  as 
if  it  had  been  tried  by  a  jury."  By  this 
statute  it  is  made  the  duty  of  the  su- 
preme court  of  the  territory  to  look  into 
and  pass  uoon  all  the  rulings  and  de- 
cisions of  the  court  below,  which  maybe 
apparent  upon  the  record,  or  which  may 
be  incorporated  into  a  bill  of  exceptions 
and.  if  anv  error  be  found,  grant  a  new 
trial,  or  render  such  other  judgment  as 
may  be  right  and  just  and  in  accordance 
with  law.  And  the  supreme  court  must 
not  decline  so  to  do  because  the  case  was 
tried  by  the  court  without  a  jury,  but 
must  review  said  carse  in  the  same  man- 
ner and  to  the  same  extent  as  if  it  had 
been  tried  by  a  jury.  It  is  difficult  to 
perceive  wherein  this  statute  makes  any 
essential  chanse  in  the  previous  prac- 
tice, or  even  if  it  did,  how  it  could  affect 
the  power  of  this  court,  under  the  statute 
of  1874,  above  cited.  It  certainly  does 
not,  in  terms,  require  that  the  court  shall 
rehear  the  case  upon  the  testimony,  as  if 
it  were  an  appeal  in  equity,  but  limits  its 
powers  of  review  to  such  questions  as 
are  apparent  upon  the  record,  or  incor- 
porated in  a  bill  of  exceptions.  Grayson 
V.  Lynch.  163  U.  S.  468.  474.  41  L.  Ed. 
230. 

3.  Simms  v.  Simms,  175  U.  S.  162.  44 
L.  Ed.  115,  citing  Young  v.  Amy,  171  U- 
S.    179.    43    L.    Ed.    127. 

4.  De  La  Pama  v.  De  La  Rama,  201 
U.    S.    303,    50   L.    Ed.    765. 

5.  Stringfellow  v.  Cain,  99  U.  S.  610,  25 
L.  Ed.  421;  Neslin  v.  Wells,  etc.,  Co..  104 
U.  S.  428.  26  L.  Ed.  802;  Eilers  V.  Boat- 
man. Ill  U.  S.  356.  28  L.  Ed.  454;  Idaho, 
etc.,  Lpnd  Co.  v.  Bradbury,  132  U.  S.  509, 
33  L.  Ed.  433;  Mammoth  Min.  Co.  v.  Salt 
Lake  Machine  Co..  151  U.  S.  447,  450.  38 
L.  Ed.  229;  Bear  Lake,  etc.,  Co.  v.  Gar- 
land, 164  U.  S.  1,  18.  41  L.  Ed.  327;  Young 
V.  Amy.  171  U.  S.  179,  43  L.  Ed.  127;  San 


APPEAL  AXD  ERROR. 


537 


of  the  territory  by  the  court  without  a  jury,  and  there  is  no  question  made  in  the 
record  as  to  the  admission  or  exclusion  of  testimony,  this  court  is  Hmited  to  the  in- 
quiry whether  the  findings  of  fact  sustain  the  judgment  or  decree,  and  cannot  enter 
into  a  consideration  of  the  evidence/^     In  either  class  of  cases,  whether  equitable 


Pedro,  etc..  Co.  v.  United  States,  146  U. 
S.  120,  36  L.  Ed.  911;  Haws  v.  Victoria 
Copper  Min.  Co.,  160  U.  S.  303,  312,  40 
L.  Ed.  436;  Salina  Stock  Co.  v.  Salina 
Creek  Co.,  163  U.  S.  109,  118,  41  L.  Ed. 
90;  Zeckendorf  v.  Zeckendorf,  171  U.  S. 
686,  43  L.  Ed.  1179;  Consolidated  Canal 
Co.  V.  Mera  Canal  Co..  177  U.  S.  296,  302. 
44  L.  Ed.  777;  Luhrs  v.  Hancock.  181  U. 
S.  567.  45  L.  Ed.  1005,  citing  and  approv- 
ing Harrison  v.  Perea,  16s  U.  S.  311,  42 
L.  Ed.  478;  Holloway  v.  Dunham,  170  U. 
S.  615.  42  L.  Ed.  1165;  Gildersleeve  r. 
New  Mexico  Min.  Co.,  161  U.  S.  573,  40 
L.  Ed.  812;  Naeglin  v.  DeCordoba,  171 
U.  S.  638,  43  L.  Ed.  315;  Kelly  z'.  Rhoads, 
188  U.  S.  1.  47  L.  Ed.  359;  Herrick  r. 
Boquillas  Cattle  Co.,  200  U.  S.  96.  98.  50 
L.  Ed.  388;  Gila  Band  Reservoir,  etc.,  Co. 
V.  Gila  Water  Co.,  205  U.  S.  279,  282,  51 
L.   Ed.   801. 

"It  is  settled  that,  on  error  or  appeal  to 
the  supreme  court  of  a  territory,  this 
court  is  without  power  to  re-examine  the 
facts  and  is  confined  to  determining 
whether  the  court  below  erred  in  the  con- 
clusions of  law  deduced  by  it  from  the 
facts  by  it  found,  and  to  reviewing  er- 
rors committed  as  to  the  admission  or  re- 
jection of  testimony  when  the  action  of 
the  court  in  this  regard  has  been  duly  ex- 
cepted to,  and  the  right  to  attack  the 
same  preserved  on  the  record."  Harri- 
son V.  Perea,  168  U.  S.  311,  42  L.  Ed.  478; 
Young  V.  Amy.  171  U.  S.  179.  183,  43  L. 
Ed.  127;  Simms  v.  Simms.  175  U.  S.  162, 
44    L.    Ed.    115. 

An  appeal  being  from  the  judgment  of 
a  territorial  court,  and  no  errors  having 
been  assigned  on  exceptions  to  rulings  on 
the  admission  or  rejection  of  testimony, 
the  supreme  court  of  the  United  States 
is  limited  in  this  review  to  the  deter- 
mination of  the  question  whether  the 
facts  found  are  sufficient  to  sustain  the 
judgment  rendered.  Thompson  z'.  Ferry, 
180  U.  S.  484,  45  L.  Ed.  633.  citing  and 
approving  Gildersleeve  v.  New  Mexico 
Min.  Company,  161  U.  S.  573,  40  L.  Ed. 
812;  Harrison  v.  Perea,  168  U.  S.  311,  42 
L.  Ed.  478;  Marshall  v.  Burtis,  172  U.  S. 
630.   43   L.    Ed.   579. 

Exceptions  to  admission  or  rejection  of 
evidence. — The  supreme  court  of  the  ter- 
ritory was  called  upon  to  make  a  state- 
ment of  the  facts  of  the  case  in  the  nature 
of  a  special  verdict,  and  also  the  rulings 
of  the  court  in  the  admission  or  rejection 
of  evidence  when  excepted  to.  Our  ju- 
risdiction is  limited  to  the  consideration 
of  such  exceptions  and  to  determining 
\vhether  the  findings  of  fact  support  the 
'"'Igment.  Harrison  7'.  Perea.  108  U.  S. 
311.   42    L.    Ed.    478;    Young   v.    Amy,    171 


U.  S.  179,  43  L.  Ed.  127;  Crowe  v. 
Trickey,  204  U.  S.  228,  234,  51  L.  Ed.  454, 
followed  in  Crowe  v.  Harmon,  204  U.  S. 
24],    51    L.    Ed.    461. 

6.  Stringfellow  z:  Cain,  99  U.  S.  610,  25 
L.   Ed.  421;   Cannon  v.  Pratt,  99  U.  S.  619, 

25  L.   Ed.   446;   Neslin  v.  Wells,   etc..   Co., 

104  U.  S.  428,  26  L.  Ed.  802;  Hecht  v. 
Boughton,  105  U.  S.  235,  236,  26  L.  Ed. 
1018;  Gray  z:  Howe,  108  U.  S.  12,  27  L. 
Ed.  634;  Eilers  v.  Boatman,  111  U.  S. 
356,  28  L.  Ed.  454;  Zeckendorf  v.  John- 
son, 123  U.  S.  617,  31  L.  Ed.  277;  Sturr  v. 
Beck.  133  U.  S.  541,  33  L.  Ed.  761;  Mam- 
moth Min.  Co.  v.  Salt  Lake  Machine 
Co.,  151  U.  S.  447,  38  L.  Ed.  229; 
Naeglin  v.  De  Cordoba,  171  U.  S.  638,  43 
L.  Ed.  315;  Haws  z\  Victoria  Copper  Min. 
Co.,  160  U.  S.  303,  312,  40  L.  Ed.  436; 
Gildersleeve  z'.  New  Mexico  Min.  Co.,  161 
U.   S.   573,  577,  40   L.    Ed.  812. 

Upon  a  review  of  a  judgment  in  a  case 
not  tried  by  jury  and  taken  by  appeal 
from  the  supreme  court  of  a  territory, 
this  court  is  by  statute  restricted  to  an 
inquiry,  whether  the  findings  of  fact  made 
by  the  court  below  support  its  judgment, 
and  to  a  review  of  exceptions  duly  taken 
to  rulings  on  admission  or  rejection  of 
evidence.  Grayson  v.  Lynch,  163  U.  S. 
468,  41  L.  Ed.  230;  Bear  Lake.  etc..  Co. 
z:  Garland,  164  U.  S.  1,  18,  41  L.  Ed.  327; 
Harrison  v.  Perea,  168  U.  S.  311,  323,  42 
L.  Ed.  478;  Young  v.  Amy,  171  U.  S.  179, 
183,  43  L.  Ed.  127;  Apache  County  v. 
Barth,  177  U.  S.  538.  542,  44  L.  Ed.  878. 

By  chapter  80  of  the  acts  of  congress, 
approved  April  7.  1874,  18  Stat.  27,  this 
court  is  required  to  accept  the  findings 
of  fact  made  by  the  supreme  courts  of 
the  territories  as  true  on  appeal  to  this 
court.  See  Stringfellow  v.  Cain,  99  U.  S. 
610,    25    L.    Ed.    421;    Hecht    v.    Boughton, 

105  U.  S.  235,  26  L.  Ed.  1018;  Eilers  z: 
B-atman,  111  U.  S.  356,  357,  28  L.  Ed. 
454. 

Construing  this  statute,  it  was  held,  in 
the  case  of  Idaho,  etc..  Land  Co.  v.  Brad- 
bury, 132  U.  S.  509,  514,  33  L.  Ed.  433, 
that  "the  authority  of  this  court,  on  ap- 
peal from  a  territorial  court,  is  limited  to 
determining  whether  the  court's  findings 
of  fact  support  its  judgment  or  decree, 
and  whether  there  is  any  error  in  rulings, 
duly  excepted  to,  on  the  admission  or  re- 
jection of  evidence,  pnd  does  not  extend 
to  a  consulerati^n  of  the  weight  of  evi- 
dence or  its  sufficiency  to  support  the 
conclusions  of  the  court.  Strin.gfellow  v. 
Cain.  99  U.  S.  610.  25  L.  Ed.  421;  Cannon 
V.  Pratt,  90  U.  S.  619,  25  L.  Ed.  446; 
Neslin    V.   Wells,   etc..   Co..    104  U.    S.    428. 

26  L.  Ed.  802;  Hecht  v.  Bou.ghton,  105  U. 
S.  235,  236,  26  L.  Ed.  1018;  Gray  v.  Howe, 


DOO 


APPEAL  AXD  ERROR. 


or  legal,  coming  up  by  appeal  from  a  territorial  court  after  a  hearing  or  trial  on 
the  facts,  the  evidence  at  large  cannot  be  brought  up  (as  it  is  in  cases  in  equity 
from  the  circuit  courts  of  the  United  States),  but  only  "a  statement  of  facts  in  the 
nature  of  a  special  verdict,"  and  rulings  made  at  the  trial,  and  duly  excepted  to. 
on  the  admission  or  rejection  of  evidence.  Consequently  the  authority  of  this 
court,  on  appeal   from  a  territorial  court,  is  limited  to  determining  whether  the 


108  U.  S.  1"^,  27  L.  Ed.  634;  Eilers  v.  Boat- 
man, 111  U.  S.  3J6,  28  L.  Ed.  454;  Zeck- 
endorf  v.  Johrr^on,  123  U.  S.  617,  31  L.  Ed. 
277  "'  San  Pedro,  etc.,  Co.  v.  United 
States,   146  U.   S.   120,   130.   36   L.   Ed.   911. 

Where  the  supreme  court  of  a  territory 
in  affirming  the  judgment  of  a  district 
court  in  a  proceeding  to  enforce  a  me- 
chanics' lien  under  the  statutes  of  the 
territory  of  Utah,  which  is  in  the  nature 
of  a  suit  in  equity,  and  was  tried  by  the 
court  without  a  jury,  "has  determined  that 
the  findings  of  the  trial  court  were  justi- 
fied by  the  evidence,  and,  apart  from  ex- 
ceptions duly  taken  to  ruHngs  on  the  ad- 
mission or  rejection  of  evidence,  our  ex- 
amination is  limited  to  the  inquiry,  with- 
out reference  to  the  weight  of  evidence 
or  its  sufficiency  to  support  the  special 
findings,  whether  the  decree  can  be  sus- 
tained upon  those  findings.  Idaho,  etc., 
Land  Co.  v.  Bradbury,  132  U.  S.  509,  513, 
33  L.  Ed.  433;  Stringfellow  v.  Cain,  99  U. 
S.  610,  25  L.  Ed.  421;  Act  of  April  7.  1874, 
c.  80,  18  Stat.  27."  Mammoth  Min.  Co. 
V.  Salt  Lake  Machine  Co.,  151  U.  S.  447, 
38   L.    Ed.    229. 

Where  the  supreme  court  of  the  terri- 
tory had  before  it  the  findings  of  the  dis- 
trict court  of  the  territory,  and  also  by 
stipulation  of  the  parties,  a  statement  of 
the  evidence  prepared  for  a  motion  for 
a  new  trial  in  the  lower  court,  but  this 
statement  is  not  embodied  in  the  record, 
nor  any  findings  filed  by  the  supreme 
court,  it  was  held,  that  "under  the  au- 
thority of  Stringfellow  v.  Cain,  99  U.  S. 
610,  25  L.  Ed.  421.  we  must,  therefore, 
take  the  findings  of  the  lower  court  as 
adopted  by  the  supreme  court  and  de- 
termine the  case  on  their  sufficiency,  con- 
sidered in  connection  with  the  pleadings, 
to  support  the  judgment."  O'Reilly  v. 
Campbell.  IIG  U.  S.  418,  420,  29  L.  Ed. 
669. 

The  finding  in  an  appeal  from  a  decree 
of  the  supreme  court  of  a  territory  in  a 
proceeding  for  a  motion  carried  on  under 
§  2326  of  the  Revised  Statutes,  that  the 
notice  of  the  location  of  the  mining  claim 
contained  a  sufficient  description  by  refer- 
ence to  natural  objects  and  permanent 
and  well-known  monuments  to  identify  the 
same,  and  that  the  claim  was  so  marked 
on  the  ground  that  its  boundaries  could 
be  readily  placed,  is  really  a  finding  of 
facts,  though  called  by  the  judge  a  con- 
clusion of  law.  Eilers  v.  Boatman,  111  U. 
S.    356,    28    L.    Ed.    454. 

In  a  suit  in  a  territorial  court  to  re- 
strain an  assessment  and  levy  of  a  tax 
for  improvements   on   abutting  owners,  so 


far  as  the  determination  of  the  territorial 
court  involves  questions  of  fact  as  to  the 
proportion  of  frontage  covered  by  the 
protests,  this  court  accepts  the  findings 
on  that  subject  made  by  the  territorial 
district  court,  and  approved  and  adopted 
by  the  supreme  court  of  the  territory. 
Ogden  City  z'.  Armstrong,  168  U.  S.  224, 
42  L.  Ed.  444,  citing  Stringfellow  v.  Cain, 
99  U.  S.  610,  25  L.  Ed.  421;  Haws  v.  Vic- 
toria Copper  Min.  Co.,  160  U.  S.  303,  40 
L.    Ed.    436. 

The  courts  of  Montana,  under  a  law 
of  the  territory,  exercise  both  common- 
law  and  equity  jurisdiction.  The  modes 
ot  procedure  in  suits,  both  at  law  and  in 
equity,  are  the  same  until  the  trial  or 
hearing.  As  we  ?aid  in  Basey  v.  Galla- 
gher, 20  Wall.  670,  679.  22  L.  Ed.  452: 
"The  suitor  whatever  relief  he  may  ask,  is 
required  to  state,  'in  ordinary  ;md  con- 
cise language,'  the  facts  of  hi^  case  upon 
which  he  invokes  the  judgment  of  the 
court.  But  the  consideration  which  the 
court  will  give  to  the  question  raised  by 
the  pleadings,  when  the  case  is  called  for 
trial  or  hearing,  whether  it  will  submit 
them  to  a  jury,  or  pass  upon  them  with- 
out any  such  intervention,  must  depend 
upon  the  jurisdiction  which  is  to  be  exer- 
cised. If  the  remedy  sought  be  a  legal 
one,  a  jury  is  essential,  unless  waived  by 
the  stipulation  of  the  parties;  but  if  the 
remedy  sought  be  equitable,  the  court  is 
not  bound  to  call  a  jurji-,  and  if  it  does 
call  one.  it  is  only  for  the  purpose  of  en- 
lightening its  conscience,  and  not  to  con- 
trol its  judgment.  The  decree  which  it 
must  render  upon  the  law  and  the  facts 
must  proceed  from  its  own  judgment  re- 
specting them,  and  not  from  the  judg- 
ment of  others."  The  court  may  hear  the 
case  and  dispose  of  the  issues  without  the 
intervention  of  a  jury.  But,  it  having 
called  a  jury,  the  trial  was  conducted  in 
the  same  manner  as  a  trial  of  an  issue  at 
law.  Such  is  the  practice  under  the  sys- 
tem of  procedure  in  the  territory.  Ely 
V.  New  Mexico,  etc.,  R.  Co.,  129  U.  S.  291, 
32  L.  Ed.  688;  Parley's  Park  Silver  Min. 
Co.  V.   Kerr,  130  U.  S.  256,  32  L.   Ed.  906. 

The  finding  of  the  jury  being  accepted 
as  satisfactory,  must  be  treated  as  if  made 
by  the  court,  and  being  general,  as  cover- 
ing all  the  issues.  The  only  questions, 
therefore,  we  can  consider  on  this  writ  of 
error  are  those  arising  from  the  rulings 
in  the  admission  and  rejection  of  evi- 
dence, and  those  respecting  the  infer- 
ences deducible  from  the  proofs  made. 
Hammer  v.  Garfield  Min.  Co.,  130 
U.   S.  291,  295,  32  L.   Ed.   964. 


APPEAL  AXD  ERROR. 


539 


court's  findings  of  fact  support  its  judgment  or  decree,  and  whether  there  is  any 
error  in  ruHngs,  duly  excepted  to,  on  the  admission  or  rejection  of  evidence;  and 
does  not  extend  to  a  consideration  of  the  weight  of  evidence,  or  its  sufficiency 
to  support  the  conclusions  of  the  court." 

In  the  language  of  Mr.  Justice  Brown,  since  the  territorial  practice  act  of 
April  7,  1874,  18  Stat.  27,  was  passed,  we  have  always  held,  that  the  jurisdiction 
of  this  court  on  an  appeal  from  the  supreme  court  of  a  territory  did  not  extend  to 
a  re-examination  of  the  facts,  but  was  limited  to  determining  whether  the  findings 
of  fact  supported  the  judgment,  and  to  reviewing  errors  in  the  admission  or  re- 
jection of  testimony,  when  exceptions  have  been  duly  taken  to  the  action  of  the 
court  in  this  particular.'' 

Weight  and  Sufficiency  of  Evidence. — So,  too,  in  cases  brought  here  by  ap- 
peal from  the  supreme  courts  of  the  territories,  we  have  several  times  held  that 
we  cannot  consider  the  weight  or  the  sufficiency  of  the  evidence^  but  only  whether 
the  facts  found  by  the  court  below  support  the  judgment,  and  whether  there  was 
any  error  in  rulings,  duly  excepted  to,  upon  the  admission  or  rejection  of  evidence.* 


7.  Stringfellow  v.  Cain,  99  U.  S.  610, 
25  L.  Ed.  421;  Cannon  v.  Pratt.  99  U.  S. 
619,  25  L.  Ed.  446;  Neslin  v.  Wells,  etc., 
Co.,  104  U.  S.  428,  26  L.  Ed.  802;  Hecht 
V.  Boughton.  105  U.  S.  235,  236.  26  L.  Ed. 
1018;  Gray  v.  Howe,  108  U.  S.  12,  27  L. 
Ed.  634;  Eilers  v.  Boatman.  Ill  U.  S. 
356,  28  L.  Ed.  454;  Zeckendorf  v.  Johnson, 
123  U.  S.  617,  31  L.  Ed.  277;  Idaho,  etc.. 
Land  Co.  V.  Bradbury,  132  U.  S.  509,  514, 
33   L.  Ed.   433. 

Congress  has  prescribed  that  the  ap- 
pellate jurisdiction  of  this  court  over 
"judgments  and  decrees"  of  the  territorial 
courts  "in  cases  of  trial  by  jury,  shall  be 
exercised  by  writ  of  error,  and  in  all 
other  cases  by  appeal;"  and  "on  apncal, 
instead  of  the  evidence  at  large,  a  -  te- 
ment  of  the  facts  of  the  case  in  the  na- 
ture of  a  special  verdict,  and  also  the 
rulings  of  the  court'  on  the  admission  or 
rejection  of  evidence  when  excepted  to, 
shall  be  made  and  certified  by  the  court 
below,"  and  transmitted  to  this  court  with 
the  transcript  of  the  record.  Act  of  April 
7,  1874,  c.  80.  §  2,  18  Stat.  27,  28._  The 
necessary  effect  of  this  enactment  is  that 
no  judgment  or  decree  of  the  highest 
court  of  a  territory  can  be  reviewed  by 
this  court  in  matter  of  fact,  but  only  in 
matter  of  law.  As  observed  by  Chief 
Justice  Waite,  "We  are  not  to  consider 
the  testimony  in  any  case.  Upon  a  writ 
of  error,  we  are  confined  to  the  bill  of 
exceptions,  or  questions  of  law  otherwise 
presented  by  the  record;  and  upon  an  ap- 
peal, to  the  statement  of  facts  and  rul- 
ings certified  by  the  court  below.  The 
facts  set  forth  in  the  statement  which 
must  come  up  with  the  appeal  are  con- 
clusive on  us."  Hecht  v.  Boughton,  105 
U.  S.  235,  236,  26  L.  Ed.  1018;  Idaho,  etc., 
Land  Co.  V.  Bradbury,  132  U.  S.  509.  513. 
33  L.   Ed.  433. 

The  action  of  the  district  court  of  the 
territory  of  Idaho,  in  setting  aside  the 
general  verdict,  and  substituting  its  own 
findings  of  fact  for  the  special  find-n^Ts 
of  the   jury,  was   a   lawful   exercise   of   its 


equitable  jurisdiction,  the  propriety  of 
which  cannot  be  reviewed  by  this  court; 
and  it  is  quite  immaterial  whether  the 
general  verdict  was  consistent  with  the 
findings  of  the  jury,  or  with  the  evidence 
introduced  at  the  trial.  Idaho,  etc..  Land 
Co.  V.  Bradbury,  132  U.  S.  509,  516,  33  L. 
Ed.    433. 

8.  Stringfellow  v.  Cain,  99  U.  S.  610. 
25  L.  Ed.  421;  Eilers  v.  Boatman.  Ill  U. 
S.  356,  28  L.  Ed.  454;  Idaho,  etc.,  Land 
Co.  r.  Bradbury,  132  U.  S.  509,  33  L.  Ed. 
433;  Mammoth  Min.  Co.  v.  Salt  Lake  Ma- 
chine Co.,  151  U.  S.  447,  38  L.  Ed.  229; 
Young  V.  Amy.  171  U.  S.  179,  43  L.  Ed. 
127;  De  La  Rama  v.  De  La  Rama,  201 
U.    S.    303.    309,    50    L.    Ed.    765. 

9.  Weight  and  sufficiency  of  evidence. 
— Idaho,  etc.,  Land  Co.  v.  Bradbury.  132 
U.  S.  509,  33  L.  Ed.  433;  San  Pedro,  etc., 
Co.  V.  United  States,  146  U.  S.  120,  36  L. 
Ed.  911;  Smith  v.  Gale,  144  U.  S.  509,  36 
L.  Ed.  521;  Mammoth  Min.  Co.  v.  Salt 
Lake  Machine  Co..  151  U.  S.  447,  38  L. 
Ed.  229;  Grayson  z'.  Lynch,  163  U.  S.  468, 
473,  41  L.  Ed.  230;  Young  v.  Amy.  171 
U.  S.  179,  43  L.  Ed.  127;  Harrison  v. 
Perea,  168  U.  S.  311,  42  L.  Ed.  478;  Hol- 
loway  V.  Dunham,  170  U.  S.  615,  617,  42 
L.   Ed.    1165. 

Under  the  act  of  April  7,  1874,  c.  80, 
18  Stat.  27.  our  jurisdiction  on  appeal 
from  the  judgment  of  a  territorial  su- 
preme court  is  limited  to  determining 
whether  the  facts  found  are  sufficient  to 
sustain  the  judgment  rendered,  and  to  re- 
viewing the  rulings  of  the  court  on  the 
admission  or  rejection  of  testimony,  when 
exceptions  have  been  duly  taken  to  such 
rulings.  We  cannot,  therefore,  enter  into 
an  investigation  of  the  preponderance  of 
proof,  but  confine  ourselves  to  the  find- 
ings and  their  sufficiency  to  support  the 
legal  conclusions  which  the  court  below 
has  rested  on  them.  Stringfellow  v.  Cain, 
99  U.  S.  610,  613.  25  L.  Ed.  421 ;  Idaho, 
etc.,  Land  Co.  v.  Bradbury,  132  U.  S.  509, 
33  L.  Ed.  433;  ^lammoth  Min.  Co.  t*.  Salt 
Lake    Machine    Co.,   151   U.   S.   447,   38   L. 


540  APPEAL  AXD  ERROR. 

The  authority  of  this  court  upon  appeal  from  the  pupreme  court  of  a  territory, 
is  hmited  to  the  question  whether  the  facts  found  by  that  court  support  its  judg- 
ment. Conflicting  evidence  is  not  open  to  examination. i"  But  if  specific  findings 
of  each  item  of  evidence  and  the  conclusions  deduced  from  the  separate  items  have 
been  made,  the  alleged  errors  may  be  considered. ^^ 

Sufficiency  of  Findings. — This  court,  in  passing  upon  the  sufficiency  of  find- 
ing of  facts  in  the  territorial  court,  to  warrant  their  review  in  this  court,  used 
the  following  language :  "Facts  and  conclusioHS  of  law  are  sometimes  mingled 
together  contrary  to  the  direction  of  the  statute,  creating  the  impression  that  the 
findings  were  prepared  under  the  pressure  of  other  duties,  and  did  not  receive 
the  necessary  care  and  attention.  But  findings  are  to  be  construed  with  the 
strictness  of  special  pleadings.  It  is  sufficient  if,  from  them  all,  taken  together 
with  the  pleadings,  we  can  see  enough  upon  a  fair  construction  to  justify  the  judg- 
ment of  the  court,  notwithstanding  their  want  of  precision  and  the  occasional  in- 
termixture of  matters  of  fact  and  conclusions  of  law.  Defects  of  form  should 
be  called  to  the  attention  of  the  trial  court  by  the  objecting  party,  and  the  req- 
uisite correction  of  the  findings  would  seldom  be  denied. "^^ 

Philippine  Islands. — But  the  territorial  practice  act  of  April  7,  1874,  18  Stat. 
27.  has  no  application  to  the  Philippine  Islands. i'' 

Cases  from  New  Mexico. — Since  the  supreme  court  of  the  territory  of  New 
Mexico,  under  the  compiled  laws,  can  only  review  cases  tried  without  a  jury, 
as  it  would  review  cases  tried  by  a  jury,  it  can  only  review  for  errors  apparent 
upon  the  record,  or  incorporated  in  a  bill  of  exceptions.  In  other  words,  since 
this  power  is  limited  to  a  review  in  the  same  manner  and  to  the  same  extent  as  if 
the  case  had  been  tried  by  a  jury,  its  power  is  only  such  as  could  be  exercised 
upon  a  writ  of  error. i-*  There  is  nothing  in  §  2060  of  the  compiled  laws  of  the 
territory  of  New  Mexico  allowing  a  trial  by  jury  to  be  waived  by  the  several  par- 
ties to  any  issue  of  fact  in  certain  cases  to  take  such  cases  out  of  the  general  rule, 
"so  frequently  announced,  that  in  cases  where  a  jury  is  waived,  the  findings  of 
fact  by  the  court  have  the  same  force  and  eflfect  as  the  verdict  of  a  jury,  and 
that  the  appellate  court  will  not  set  aside  the  findings  and  order  a  new  trial  for 
the  admission  of  incompetent  evidence,  if  there  be  other  competent  evidence  to 
support  the  conclusion.  The  evident  purpose  of  Compiled  Laws.  §  2060,  was  to 
give  to  litigants  the  option  of  having  their  causes  tried  by  a  jiiry  or  by  the  court, 
and  we  think  there  is  nothing  in  these  statutes  to  indicate  that  the  findings  of  the 

Ed.  .229;    Kelsey   v.    Crowther.    162    U.    S.  10.    Karrick    v.    Hannaman,    168    U.    S. 

404,  40  L.  Ed.  1017;  Haws  v.  Victoria  Cop-  328,   42    L.    Ed.   484,    citing    Haws   v.    Vic- 

per  Min.  Co.,  160  U.  S.  303.  312,  40  L.  Ed.  toria   Copper   Min.   Co.,   160   U.   S.   303,  40 

436.  L.   Ed.   436;   Harrison  v.   Perea.   168  U.  S. 

Hence,       notwithstanding       the       large  311.  42   L.   Ed.  478. 

volume    of    testimony    taken    and    used    in  Where    a    territorial    court    of    first    in- 

the    court    below    has    been    incorporated  stance    saw    the   witnesses,    the    full    court 

into  the  record   sent  to  us,  we  are  not  at  will    deal    with    its    findings   as     it      would 

liberty   to   review    that   testimony   for   the  with   the   verdict    of   a   jury,    and   will   not 

purpose  of  ascertaining  whether  the   find-  go    beyond    the    questions    of    the    admis- 

ings   in  the   statement  of  facts   are   or  are  sibility  of  evidence  and  whether  there  was 

not  in  accordance  with  the  weight  of  the  any    evidence    to    sustain    the    conclusion 

evidence.     San   Pedro,  etc..   Co.   v.  United  reached,  and  upon  appeal  to  the  supreme 

States,   146  U.   S.   120,   131,   36   L.   Ed.  911.  court  of  the  United  States  that  court  will 

The   finding   of  possession  in   a   suit   to  go  no  further,  unless  in   an  unusual  case. 

quiet   title    is,    under    the    case    of    Mining  Halsell   z>.   Renfrow,   202  U.   S.   287,   50   L. 

Co.    V.    Taylor.    100    U.    S.    37,    25    L.    Ed.  Ed.    1032. 

541,    the    finding    of   an   ultimate    fact    and  11.    Young  v.  Amy,  171  U.  S.  179,  43  L. 

has    the    same   legal    effect    as   the   finding  Ed.    127.     See    Cheely  v.    Clayton,   110   U. 

of    a    jury    in    a    special    verdict,    and    the  S.    701,    28    L.    Ed.    298,    for    illustration, 

sufificiency  of  the  evidence  to  support   the  12.    O'Reilly  7'.  Campbell,  116  U.  S.  4l6, 

findings    cannot    be    considered    upon    this  420.   29  L.    Ed.   669. 

appeal.      Idaho,    etc..    Land    Co.    z\    Brad-  13.    De   La   Rama   v.   De   La   Rama,  201 

bury,    132    U.    S.    509,    514,    33    L.    Ed.    433;  U.   S.    303.   309,    50   L.    Ed.   705. 

Smith   V.    Gale.    144    U.    S.  ^09,    525,   36    L.  14.    Gravson  v.   Lynch,   163  U.  S.  468,  41 

Ed.   521.  L.    Ed.   230. 


APPEAL  AND  BRROR. 


541 


court  were  not  intended  to  have  the  same  force  and  effect  as  a  special  verdict  of 
a  jury,  and  that,  where  there  is  any  testimony  to  support  such  findings,  the  power 
of  the  appellate  court  is  limited  to  determine  whether  the  facts  so  found  are  suffi- 
cient to  support  the  judgment. "^^ 

(4)  Reviczv  of  Discretionary  Matters. — This  court  has  no  more  power  to  re- 
view matters  of  discretion  on  writs  of  error  and  appeals  to  the  supreme  court  of 
the  territory,  than  in  other  cases. ^^  Therefore  this  court  has  no  power  to  re-ex- 
amine the  action  of  a  territorial  court  in  refusing  to  set  aside  a  judgment  by  de- 
fault." This  court  will  not  review  the  action  of  the  district  court  of  a  territory 
in  denying  a  motion  on  the  part  of  the  defendant  to  have  included  in  the  statement 
of  the  facts  of  the  case  the  ruling  of  the  court  in  the  admission  and  rejection  of 
evidence. ^^ 

(5)  Questions  of  Practice. — A  ruling  of  the  supreme  court  of  the  territory  does 
not,  even  in  a  question  of  practice  arising  under  the  local  law,  preclude  this  court 
from  reviewing  it,  as  would  a  decision  of  a  state  supreme  court  in  similar  circum- 
stances; but  unless  a  manifest  error  be  disclosed,  we  should  not  feel  disposed  to 
disturb  a  decision  of  the  supreme  court  of  a  territory  construing  a  local  statute. ^^ 
But,  in  a  later  case,  it  was  said :  It  is  a  matter  of  very  great  doubt  whether  this 
court  has  authority  to  reverse  a  final  decree  of  the  supreme  court  of  a  territory, 
in  an  equity  case,  on  a  question  of  practice.  As  for  example,  the  action  of  the 
supreme  court  in  modifying  a  decree  of  a  territorial  district  court.-" 

j.  The  Statement  of  the  Facts. — In  General. — The  act  of  April  7,  1874,  18 
Stat.  27,  providing  for  the  exercise  of  the  appellate  jurisdiction  of  this  court 
over  the  judgments  and  decrees  of  territorial  courts,  reads :  "That,  on  appeal, 
instead  of  the  evidence  at  large,  a  statemen*^  of  the  facts  of  the  case  in  the  nature 
of  a  special  verdict,  and  also  the  rulings  of  the  court  on  the  admission  or  re- 
jection of  evidence  when  excepted  to,  shall  be  made  and  certified  by  the  court 
below  and  transmitted  to  the  supreme  court,  together  with  the  transcript  of  the 
proceedings  and  judgment  or  decree. "^i  Of  course,  if  there  are  no  findings  or 
statement  of  facts  and  no  exceptions  in  respect  to  the  introduction  or  rejection  of 
testimonv,  the  decree  will  be  affirmed,  if  responsive  to  the  allegations  of  the  plead- 


ings 


22 


15.  Grayson  v.  Lynch,  163  U.  S.  468, 
476.  41   L.   Ed.  230. 

16.  Railway  Co.  v.  Twombly,  100  U.  S. 
78,   25    L.    Ed.    5.50.     (New    trial.) 

17.  McAllister  r.  Kuhn.  96  U.  S.  87,  24 
L.    Ed.   615. 

18.  San  Pedro,  etc.,  Co.  z\  United  States, 
146   U.    S.    120,    36    L.    Ed.    911. 

19.  Fox  V.  Hnarstick,  156  U.  S.  674. 
679.   39   L.    Ed.    576. 

20.  Salina  Stock  Co.  v.  Salina  Creek 
Irrigation  Co.,  163  U.  S.  109,  41  L.  Ed. 
90,  reaffirmed  in  Zeckendorf  v.  Zecken- 
dorf,  171  U.  S.  686,  43  L.  Ed.  1179. 

Without  denying  the  authority  of  this 
court  to  find  error  in  the  judgment  of 
the  supreme  court  of  a  territory,  even  in 
passing  on  a  question  of  practice,  we  cer- 
tainly should  not  feel  inclined  to  exer- 
cise such  authority,  unless  we  were  able 
to  perceive  that  injustice  had  been  d»ne; 
and  as  this  record  presents  us  with  no 
statement  of  the  facts  to  enable  us  to  de- 
termine whether  the  facts  found  were  suf- 
ficient to  sustain  the  judgment  rendered, 
and  with  no  exceptions  taken  to  rulings 
in  the  admission  or  rejection  of  evidence, 
there  is  nothing  here  which  we  can  ex- 
amine.    Salina   Stock  Co.   z:   Salina   Creek 


Irrirrtion    Co.,    163    U.    S.    109,    118.    41    L. 
Ed.    90. 

The  supreme  court  (of  the  territory  of 
New  Mexico)  decided  that  in  order  to 
bring  before  it  the  facts  in  a  case  before 
a  court  or  referee  it  was  necessary  that 
a  motion  for  a  new  trial  should  be  made 
ui  the  court  below,  and  if  such  motion 
were  not  made,  the  facts  in  the  case  were 
not  brought  before  the  appellate  court  on 
the  writ  of  error  or  appeal.  This  matter 
of  practice  in  the  courts  of  the  territory 
is  based  upon  local  statutes  and  pro- 
cedure, and  we  are  not  disposed  to  re- 
view the  decision  of  the  supreme  court  in 
such  case.  Sweeney  v.  Lomme,  2''  Wa'l. 
208,  22  L.  Ed.  727;  Armijo  v.  Armijo,  181 
U.   S.    558.   561,   45    L.   Ed.    1000. 

21.  San  Pedro,  etc.,  Co.  v.  United 
States.  146  U.  S.  120,  130.  36  L.  Ed.  911; 
Stringfellow  v.  Cain,  99  U.  S.  610,  25  L. 
Ed.  421;  Idaho,  etc..  Land  Co.  v.  Brad- 
bury, 132  U.  S.  509,  33  L.  Ed.  433;  United 
States  Trust  Co.  v.  New  Mexico,  183  U. 
S.  535,  540,  46  L.  Ed.  315;  Salina  Stock 
Co.  V.  Salina  Creek  Irrigation  Co.,  163 
U.  S.   109,  116,  41  L.   Ed.  90. 

22.  Gila  Bend  Reservoir,  etc..  Co.  v. 
Gila  Water  Co..  205  U.  S.  279,  282,  51  L. 
Ed.    801. 


542 


APPEAL  AND  ERROR. 


Error  to  Supreme  Court  of  Arizona. — A  statement  of  the  case,  according  to 
the  law  regulating  civil  proceedings  in  the  territory  of  Arizona,  takes  the  place  of 
a  bill  of  exceptions,  when  the  alleged  errors  of  law  are  set  forth  with  sufficient 
matter  to  show  the  relevancy  of  the  points  taken.  It  is  not  the  less  available  on 
appeal  from  the  judgment  when,  by  stipulation,  it  is  embodied  in  the  record  for 
that  purpose,  though  used  on  the  motion  for  a  new  trial. ^-^ 

Sufficiency  of  Certified  Statement  of  Pacts. — The  general  rule  is  well 
settled  that  an  agreed  statement  of  facts  may  be  the  equivalent  of  a  special  verdict 
or  a  finding  of  facts  upon  which  a  reviewing  court  may  declare  the  applicable  law 
if  such  agreed  statement  is  of  the  ultimate  facts,  but  if  it  be  merely  a  recital  of 
testimony  or  evidential  facts,  it  brings  nothing  before  an  appellate  court  for  con- 
sideration. The  same  rule  applies  in  cases  of  appeals  from  territorial  courts  un- 
der the  act  of  1874.--1  Under  this  act,  on  an  appeal  from  the  district  court  of  a 
territory  to  the  supreme  court  of  the  territory,  if  the  findings  of  the  district  court 
are  sustained  by  the  supreme  court,  and  a  general  judgment  of  affirmance  ren- 
dered, the  findings  of  the  district  court,  thus  approved  by  the  supreme  court,  will 
furnish  a  sufficient  "statement  of  the  facts  of  the  case"  for  the  purposes  of  an  ap- 
peal to  this  court.  The  same  will  be  true  if  there  is  a  reversal,  for  the  reason  that 
the  facts  as   found  are  not  sufficient  to  support  the  judgment. ^^     Although  the 


23.  Head  v.  Hargrave,  105  U.  S.  45,  47, 
26  L.  Ed.  1028,  citing  Kerr  v.  Clampitt, 
95   U.   S.    188,  24  L.    Ed.   493. 

24.  United  States  Trust  Co.  v.  New 
Mexico,  183  U.  S.  535.  540,  46  L.  Ed.  315, 
approving  Wilson  v.  Merchants'  Loan, 
etc.,  Co.,   183   U.    S.   121,  46  L.   Ed.   113. 

25.  Stringfellow  v.  Cain,  99  U.  S.  610, 
613,  25  L.  Ed.  421,  reaffirmed  in  Cannon 
V.   Pratt,  99  U.  S.  619,  25  L.  Ed.  446. 

Under  the  act  entitled  "An  act  con- 
cerning the  practice  in  territorial  courts 
and  appeals  therefrom,"  approved  April 
7.  1874  (18  Stat.  p.  27),  if  the  findings  of 
the  district  court  are  sustained  by  the 
supreme  court,  such  findings  furnish  a 
sufficient  statement  of  the  facts  for  the 
purposes  of  an  appeal  to  this  court,  and 
our  inquiry  is  whether,  upon  such 
facts  the  judgment  appealed  from 
was  right.  Wasatch  Min.  Co.  v.  Crescent 
Min.  Co..  148  U.  S.  293,  296,  37  L.  Ed. 
454. 

The  statement  of  facts  contemplated  by 
the  statute  is  one  to  be  made  by  the  su- 
preme court  from  whose  judgment  the 
appeal  is  taken.  But  where  that  court 
affirms  the  findings  of  the  trial  court,  be- 
ing thus  adopted  by  the  supreme  court  of 
the  territory,  they  subserve  the  purpose 
of  a  finding  of  fact  on  the  appeal  to  this 
court.  Stringfellow  v.  Cain,  99  U.  S.  610. 
«13,  25  L.  Ed.  421;  Haws  v.  Victoria  Cop- 
per Min.  Co.,  160  U.  S.  303,  313,  40  L. 
Ed.   436. 

Where  the  record  of  a  suit  is  duly,  cer- 
tified upon  an  appeal  to  a  district  court  in 
Utah,  and  the  latter  states  its  findings  of 
fact  and  its  conclusions  of  law  separately, 
and  appeals  from  its  order  refusing  a  new 
trial  and  from  its  judgment  are  taken  to 
the  supreme  court  of  that  territory,  the 
statute  whereof  requires  a  statement,  to 
be  settled  by  the  judge  who  heard  the 
cause,   specifically   setting   forth   the   "par- 


ticular errors  or  grounds"  relied  on,  and 
containing  "so  much  of  the  evidence  as 
inay  be  necessary  to  explain  them  and  no 
more;"  and  where  a  statement  settled  and 
signed  by  him.  and  annexed  to  the  copy 
of  the  order  refusing  a  new  trial,  contains 
all  the  testimony  and  written  proofs  and 
allegations  of  the  parties  certified  up  to 
the  district  court,  upon  which  the  trial 
was  had.  and  it  was  stipulated  that  the 
statement  might  be  used  on  an  appeal 
from  the  judgment  to  the  said  supreme 
court;  held:  1.  That  the  proceeding  was 
thus  made  to  conform  to  the  require- 
ments of  the  practice  act  of  Utah,  and 
that  the  latter  court  was  called  upon  to 
decide  whether  the  evidence  was  sufficient 
to  sustain  the  findings  of  fact,  and,  if  it 
was,  whether  they  would  support  the 
judgment.  2.  That  if  that  court  reverses 
the  judgment  because  the  evidence  does 
not  sustain  the  findings,  other  findings 
must  be  made  before  the  case  can  be  put 
in  a  condition  for  hearing  here;  but  if  it 
has  all  the  evidence  which  could  be  con- 
sidered below,  should  the  case  be  re- 
manded, it  may  state  the  facts  estab- 
lished by  the  evidence  and  render  judg- 
ment. On  an  appeal  to  this  court,  the 
case  if  otherwise  properly  here,  will  be 
determined  upon  the  facts  so  stated.  3. 
That  if  the  findings  of  the  district  court 
be  sustained,  and  its  judgment  affirmed, 
or  if  its  judgment  be  reversed  for  the  rea- 
son that  the  findings  are  not  sufficient  to 
support  the  judgment,  such  findings  are, 
in  efifect.  adopted  by  the  said  supreme 
court,  and  they,  for  the  purpose  of  an 
appeal  here,  furnish  a  sufficient  statement 
of  the  facts  of  tlie  case,  within  the  mean- 
ing of  the  act  "concerning  the  practice  in 
territorial  courts  and  appeals  therefrom," 
approved  April  7,  1874.  Stringfellow  V. 
Cain.  99  U.  S.  610,  25  L.  Ed.  421.  re- 
affirmed in  Cannon  v.  Pratt,  99  U.  S.  619, 
25    L.    Ed.    446. 


APPEAL  AXD  ERROR. 


543 


statement  of  facts  required  by  the  statute  should  present  clearly  and  precisely  the 
ultimate  facts,  and  although  the  statement  that  is  confused  and  gives  a  mass  of 
unnecessary  details  does  not  properly  comply  with  that  rule,  yet  imperfections  in 
that  regard  should  not  be  held  fatal  if  a  sufficient  statement  finally  emerges. ^^ 
Moreover,  altliough  the  statement  of  facts  prepared  by  the  supreme  court  of  the 
territofry,  standing  by  itself,  is  incomjjlete,  yet  it  may  be  helped  by  a  reference  to 
the  bill  of  exceptions  in  the  trial  court,  by  adopting  it  and  making  it  a  part  of  the 
statement.-' 

Time  of  Filing  Statement. — If  the  statement  of  facts  v^^as  not  on  file  at  the 
time  of  the  settlement  of  the  bill  of  exceptions  or  did  not  afterward  become  a 
part  of  the  record,  it  is  not  filed  in  time  to  become  a  part  of  the  bill  of  exceptions 
wnder  the  Revised  Statutes  of  Arizona.-*^ 

Dismissal  or  Affirmance. — A  statement  of  facts  such  as  the  statute  requires 
is  necessary  to  enable  us  to  re-examine  the  case.  And  if  there  is  no  such  state- 
ment of  facts  in  the  record  as  the  law  requires,  the  writ  of  error  or  appeal  will  be 
dismissed.^"  Where  the  record  presents  us  with  no  statement  of  the  facts  to  en- 
able us  to  determine  whether  the  facts  found  were  sufficient  to  sustain  the  judg- 
ment, and  no  exceptions  are  taken  to  the  ruling  in  the  admission  or  rejection  of 
evidence,  the  judgment  of  the  territorial  court  will  be  affirmed.-^^ 

Remand. — Where  the  facts  found  by  the  trial  court  are  taken  to  be  true  by  the 
supreme  court  of  the  territory,  except  so  far  as  they  depend  upon  rulings  of  law, 
and  the  questions  for  decision  here  are  definite  and  plain,  there  will  be  no  need 
to  send  the  case  back  for  a  statement  of  facts  by  the  supreme  court  of  the  territory, 
although  one  should  have  been  made.'^^ 

Presumptions  on  Appeal. — This  court  will  assume  that  the  evidence  supports 
the  judgment  where  there  is  not  a  statement  of  the  facts  in  the  nature  of  a  special 
verdict  made  and  certified  by  the  court  below  under  the  act  of  April  7,  1874,  c. 
80,  18  Stat.  27.^-    Moreover,  although  the  statement  of  facts  prefixed  to  the  opin- 


26.  Crowe  t'.  Trickey,  204  U.  S.  228.  51 
h  Ed.  454,  followed  in  Crowe  v.  Har- 
mon, 204  U.  S.  241,  51,  L.  Ed.  461. 

27.  Gila  Bend  Reservoir,  etc.,  Co.  v. 
Gila  Water  Co..  205  U.  S.  279.  51  L.  Ed. 
801. 

28.  Cohn  r.  Daley.  174  U.  S.  539,  43  L. 
Ed.  1077. 

29.  Bonnefield  v.  Price.  154  U.  S..  appx. 
672,  26   L.   Ed.    1022. 

In  order  to  bring  a  case  to  this  court  by 
appeal  from  tlie  supreme  court  of  the  ter- 
ritory of  Wyoming  in  a  case  where  the 
trial  was  not  by  jury,  the  record  must 
contain  such  a  statement  of  facts  as  the 
law  requires.  Bonnefield  zj.  Price,  154  U. 
S.,  appx.   672.   26   L.   Ed.   1022. 

30.  Salina  Stock  Co.  v.  Salina  Creek  Ir- 
rigation Co.,  163  U.  S.   109.  41   L.   Ed.  90. 

Where  an  appeal  was  taken  from  the 
district  court  of  the  territory  to  the  su- 
preme court  of  the  territor}',  and  the  su- 
preme court  heard  the  case,  reversed  the 
judgment  of  the  district  court,  and  re- 
manded the  cause,  but  the  supreme  court 
made  no  "statement  of  the  facts  of  the 
case  in  the  nature  of  a  special  verdict," 
as  required  by  the  act  of  April  7th.  1874, 
ch.  80,  1  Sup.  Rev.  St.  13;  and  as  that 
court  must  have  set  aside  the  findings  of 
the  district  court  in  order  to  render  the 
judgment  it  gave,  there  is  nothing  here 
which  this  court   can   re-examine,  and   the 


jrdgment  of  the  supreme  court  of  the 
territory  must  be  affirmed.  "Since  the 
act  of  1878,  supra,  the  evidence  at  large 
is  not  to  be  transmitted  here  from  the 
courts  of  the  territories,  but  in  lieu  of  the 
evidence  'a  statement  of  the  facts  of  the 
case  in  the  nature  of  a  special  verdict.'  " 
Gray  v.  Howe.  108  U.  S.  12,  27  L.  Ed. 
634,  citing  Stringfellow  v.  Cain,  99  U.  S. 
610.  25  L.  Ed.  421. 

In  the  absence  of  any  findings  by  the 
supreme  court  of  a  territory  and  any- 
thing in  the  nature  of  a  bill  of  exceptions, 
the  supreme  court  of  the  United  States 
has  nothing  on  which  to  base  a  reversal 
of  the  judgment  in  the  case  on  an  appeal, 
and,  therefore,  the  judgment  must  be  af- 
firmed. Armijo  v.  Armijo,  181  U.  S.  558, 
45  L.  Ed.  lOCO. 

31.  Bierce  v.  Hutchins.  205  U.  S.  340,  51 
L.  Ed.  828,  citing  Stringfellow  v.  Cain,  99 
v.  S.  610.  25  L.  Ed.  421;  Harrison  v. 
Perea,  168  U.  S.  311,  42  L.  Ed.  478. 

S2.  Cohn  V.  Daley,  174  U.  S.  539.  43  L. 
Ed.  1077,  citing  Alarshall  v.  Burtis.  172  U. 
S.   630,   43    L.    Ed.   579. 

Where  there  is  no  finding  of  facts  by 
the  district  court  or  by  the  supreme  court 
of  the  ten'tory,  and  hence  no  "staternent 
of  facts  in  the  nature  of  a  special  verdict," 
this  court  will  assume  that  the  judgment 
of  the  district  court  was  justified  by  the 
evidence,  and  the  judgment  of  the  terri- 
torial  supreme  court   sustaining  it  will  be 


544  APPEAL  AND  ERROR. 

ion  in  the  record  is  not  the  finding  required  by  the  act  of  April  7,  1874,  c.  80,  §  2, 
18  Stat.,  part  3,  27,  this  court  may  assume  for  purposes  of  decision  that  under  the 
act  of  May  2,  1890,  c.  182,  §  9,  26  Stat.  86,  no  such  finding  of  facts  was  neces- 
sary.^^ 

k.  Exceptions  and  Objections. — In  General. — In  reviewing  the  judgment  of 
a  supreme  court  of  a  territory,  the  rule  in  this  court  is  not  to  consider  questions 
other  than  those  of  jurisdiction,  which  were  not  presented  to  the  court  whose  judg- 
ment we  are  asked  to  examine.-^^  Rule  13  of  this  court  providing:  "In  all  cases 
of  equity  *  *  *  heard  in  this  court,  no  objection  shall  hereafter  be  allowed  to 
be  taken  to  the  admissibility  of  any  deposition,  deed,  grant  or  other  exhibit  found 
in  the  record  as  evidence,  unless  objection  was  taken  thereto  in  the  court  below 
and  entered  of  record ;  but  the  same  shall  otherwise  be  deen'ied  to  have  been  ad- 
mitted by  consent,"  is  applicable  to  appeals  to  this  court  from  the  territorial  courts. 
Accordingly,  where  no  motion  is  made  in  the  territorial  supreme  court  before  de- 
cision to  exclude  depositions,  and  it  does  not  appear  in  the  record  that  the  supreme 
court,  in  giving  its  decision,  passed  upon  the  question  of  its  admissibility,  the  ac- 
tion of  the  court  below  in  this  regard  will  not  be  noticed  on  appeal.  Our  inquiry 
is  limited  to  the  ruling  of  the  supreme  court  of  the  territorv ;  and  it  is  its  judg- 
ment which  we  are  reviewing.^^  The  act  of  March  18,  1897,  of  the  territory  of 
Arizona,  can  give  to  the  supreme  court  of  the  United  States  no  jurisdiction  to  re- 
view an  objection  to  evidence  taken  upon  the  trial,  if  no  exception  were  taken,  for 
the  act  of  congress  of  1874  provides  for  a  review  in  the  supreme  court  only  upoa 
the  decisions  of  the  court  which  were  excepted  to,  and  the  jurisdiction  of  the  su- 
preme court  is  regulated  by  that  act.-"'*' 

That  section  of  the  Montana  Code  of  Civil  Procedure  which  defines  an 
exception  as  being  an  objection  taken  at  the  trial  to  a  decision  upon  a  matter  of 
law  at  any  time  from  the  calling  of  the  action  for  trial  to  the  rendering  of  the 
verdict  or  decision,  means  that  the  exception  must  be  to  some  decision  or  ruling 
of  the  court,  occurring  before  final  judgment  is  rendered,  and  not  that  the  excep- 
tion must  be  taken  before  the  decision  excepted  to  has  been  made.  Within  this  rule 
set  forth,  an  exception  may  be  taken  to  the  ruling  of  the  court  sustaining  a  motioa 
for  a  nonsuit  and  directing  judgment  to  be  entered  in  favor  of  the  defendants, 
because  the  granting  of  a  motion  for  a  nonsuit,  which  is  the  ruling  or  decision  ex- 
cepted to,  takes  place  before  the  final  judgment  is  in   fact  made  and  entered.''" 

affirmed.      Marshall    v.    Burtis.    172    U.    S.  36.   Apache   County  r.   Barth,    177   U.    S. 

630,  43  L.   Ed.   579.  538,    541,  44  L.  Ed.  878,  approving    Grayson 

The  opinion  of  the  trial  court  sets  forth  r.    Lynch,   163   U.    S.   468,    41    L.    Ed.   230; 

facts  on   which   it  proceeds,  but  there  are  Bear  Lake,  etc..  Co.  v.  Garland,  ]64  U.  S. 

no  specific  findings  as  such.     The  supreme  1,   18,   41    L.    Ed.    327;    Harrison   v.    Perea, 

court    of    the    territory    sets    forth    in    its  168  U.   S.  311,   393,  43  L.   Ed.   478;   Young 

opinion  the  facts  upon  which  it  proceeded  v.  Aniv.  171  U.   S.   179,  183,  43  L.   Ed.  127. 

and  found   that  the  judgment   of   the   dis-  37,  Kleinschmidt  v.  Mc.^ndrews,  117  U. 

trict    court    should    be    affirmed.      It    was  g    ogo    09  l    Ed    905 

held    that  on  appeal  to  the  supreme  court  '  {^  T  ~^^^^^^^  objected  here,  however,  i« 

of     he  United   States,  ,t  must  be  assumed  ^^,^,^„,,„^    ^hat  the   exception   in  the  pres- 

that    the    evKlence    sustams    the   judgment  ^^^^  ^^^^  ^^^^^^^  ^^  disregarded,  because  the 

and   the   judgment   affirmed,   the    so-called  ,^,   ^^^^^   ^^^^   ^j^^^j^^   ^^^.^^   ^^   ^,^^   ^^_ 

s  atement    of     facts     not    being    in    com-  '^^^^^^  ^^^^^^  ^.^^  ,^^^  ^^^^^   -^  ^-^^  ^^„^^, 

phance    with    the    statute.      Thompson    v.  \^     provisions  of  §  408,  Montana  Statutes. 

Ferry,  180  U.  S.  484,  45  L.  Ed.  633.  ^,^g^^^  follows:    "An  exception  to  the  de- 

33.  Halsell  v.  Renfrow,  202  U.  S.  287,  cision  or  verdict,  on  the  2;round  that  it  is 
50  L.  Ed.  1032,  citing  Oklahoma  City  v.  ,-,0^  supported  bv  the  evidence,  cannot  be 
McMaster,  196  U.  S.  529,  49  L.  Ed.  587;  reviewed  on  an  appeal  from  the  judgment 
De  La  Rama  ik  De  La  Rama,  201  U.  S.  unless  the  appeal  is  taken  within  sixty 
303,  50  L.  Ed.  765.  days  after  the  rendition  of  the  judgment." 

34.  Bassett  v.  United  States,  137  U.  S.  i,-,  the  present  case,  the  judgment  wa.s 
496,  501,  34  L.  Ed.  762,  citing  Clarke  v.  rendered  March  22,  and  the  appeal  taken 
Fredericks,  105  U.   S.  4,  26  L.  Ed.  938.  j,iiy   13^  jpgo,  more  than   sixty  days  after 

35.  San  Pedro,  etc.,  Co.  v.  United  States,  "the  rendition  of  the  ji'dgnient.  But  the 
146  U.  S.  120,  36  L.  Ed.  911.  exception   taken   and   to   be   considered   is 


APPEAL  AND  ERROR. 


SAl 


Bill  of  Exceptions. — Where,  upon  an  appeal  from  the  supreme  court  of  the 
territory,  a  statement  of  the  errors  alleged,  upon  which  a  motion  for  a  new  trial 
is  based,  is  prepared  and  filed,  and  there  is  a  stipulation  that  the  statement  should 
be  treated  as  a  bill  of  exceptions,  and  it  is  authenticated  by  the  trial  judge  as  a  con- 
rect  statement  of  the  proceedings,  and  further  than  that,  at  the  trial  a  bill  of  ex- 
ceptions was  prepared  in  respect  to  the  rulings  of  the  court  on  instructions,  signed 
by  the  trial  judge  and  filed  at  the  time,  which  bill  of  exceptions  was  incorporated 
in  the  statement,  this  proceeding  is  authorized  by  the  statute  of  the  territory  and 
must  be  adjudged  as  sufficient  for  the  purposes  of  review  here.-^^ 

1.  Mandate. — Admission  of  Territory  Pending  Appeal. — Where  an  ap- 
peal is  taken  to  this  court  from  the  territorial  court,  and  the  territory  is  admitted 
as  a  state  pending  appeal,  this  court  will  reverse  and  remand  the  cause  to  the  state 
supreme  court  and  not  to  the  territorial  court.-^^  But  the  statute  provides  that 
where  an  appeal  is  taken  from  a  supreme  court  of  the  territory,  and  that  territory 
becomes  a  state  pending  the  appeal,  the  case  will  be  remanded  to  the  United  States 
circuit  court  for  the  proper  district,  for  further  proceedings  according  to  law  in 
accordance  with  the  act  of  February  22,  c.  180.  25  Stat.  676,  682,  683,  §§  22,  23.''" 

Rendering  and  Ordering  Final  Judgment. — Although  the  Code  of  Civil 
Procedure  of  California  may  be  in  similar  terms  to  that  of  a  territory,  it  does  not 
follow  that  the  courts  of  the  latter  will  be  regulated  by  the  decisions  of  the  former 
courts  in  construing  the  provisions  of  their  Code,  and  hold  that  when  the  "findings 
are  erroneous,  it  is  not  competent  for  the  supreme  court,  on  trial,  to  look  into  the 
evidence  with  a  view  to  reforming  the  findings  and  then  to  enter  a  judgment  in 
accordance  to  what  the  findings  ought  to  have  been,  but  that,  in  such  case,  the 
supreme  court  will  reverse  the  judgment,  and  remand  the  case  for  a  new  trial. 
Therefore,  the  supreme  court  of  the  territory  may  modify  the  findings  of  fact  of 
the  court  below  and  enter  judgment  on  the  facts  as  thus  modified.'*^  Section  428 
of  the  Code  of  Civil  Procedure  of  Montana,  which  provides  that  "upon  an  appeal 
from  a  judgment  or  order,  the  appellate  court  may  reverse,  affirm  or  modify  the 


not  within  the  description  of  the  class 
mentioned  in  this  section  of  the  statute. 
Here  there  was  no  verdict  or  decision 
upon  the  facts  in  favor  of  either  party, 
which  it  is  alleged  was  erroneous  be- 
cause not  supported  bj'  the  evidence. 
The  rulina;  excepted  to  was.  that,  upon 
the  evidence  submitted  by  the  plaintiffs. 
it  was  matter  of  law  that  they  could  not 
recover.  The  verdict  or  decision  referred 
to  in  the  above-quoted  section  of  the 
statute  relates  exclusively  to  findings  al- 
leged to  be  erroneous  for  want  of  suffi- 
cient support  in  the  evidence.  Here  the 
matter  of  the  exception  is  purely  matter 
of  law.  Kleinschmidt  v.  Mc.A.ndrews,  117 
U.  S.  282.  2S7.  29  L.   Ed.  905. 

38.  Montana  R.  Co.  v.  Warren,  137  U.  S. 
348,  34  L.  Ed.  681.  distinguishing  Kerr  v. 
Clampitt,  95  U.  S.  188,  24  L.  Ed.  493. 

39.  Rader  v.  Maddox,  150  U.  S.  128,  37 
L.  Ed.  1025;  Elliott  v.  Chicago,  etc..  R. 
Co..   150  U.    S.  245,   37   L.    Ed.   jOG8. 

Where,  since  a  case  is  brought  to  this 
court  from  a  territorial  court,  the  terri- 
tory is  admitted  as  a  state,  if  no  question 
of  a  federal  nature  is  presented,'  the  case 
will  be  remanded  to  the  state  court.  Ra- 
der V.  Maddox,  150  U.  S.  128,  37  L.  Ed. 
1025. 

40.  The  Blue  Jacket,  144  U.  S.  371,  36 
L.  Ed.  469. 

1  U  S  Enc— 35 


41.  Salina  Stock  Co.  v.  Salina  Creek  Ir- 
rigation Co.,  163  U.  S.  109,  41  L.  Ed.  90. 

A  somewhat  similar  question  was  raised 
in  the  case  of  Stringfellow  v.  Cain,  99  U. 
S.  610.  25  L.  Ed.  421.  which  was  likewise 
an  appeal  from  the  supreme  court  of 
Utah.  There  the  supreme  court  of  the 
territory  set  aside  the  findings  of  the  trial 
court,  and  directed  a  decree  on  the  evi- 
dence, at  the  same  time  making  its  own 
findings  from  the  evidence;  and  this  court 
refused  to  disturb  the  decree  of  the  su- 
preme court,  saving:  "Without  undertak- 
ing to  decide  what  would  be  the  proper 
practice  in  an  ordinary  civil  case  when 
the  judgment  is  reversed,  and  a  new  trial 
was  refused  in  the  district  court,  we  are 
clearly  of  the  opinion  that  in  a  suit  like 
this,  when  all  the  evidence  is  before  the 
supreme  court  that  could  be  considered 
by  the  district  court  if  the  case  should  be 
sent  back,  it  is  proper  for  the  supreme 
court  itself  to  state  the  facts  established 
hv  the  evidence,  and  render  the  judgment 
which  ought  to  have  been  rendered  bv  the 
district  court."  Salina  Stock  Co.  v.  Salina 
Creek  Co.,  163  U.  S.  109,  117,  41  L.  Ed.  90. 

Gray  r.  Howe,  108  U.  S.  12.  27  L.  Ed. 
634.  was  likewise  an  appeal  from  the  su- 
preme court  of  the  territory  of  Utah. 
There  the  supreme  court  on  appeal  had 
reversed  the  judgment  of  a  uistrict  court, 


546 


APPEAL  AND  ERROR. 


judgment  or  order  appealed  from,"  does  not  authorize  the  appellate  court  to  ren- 
der a  judgment  which  the  lower  court  could  not  have  rendered.-*- 

7.  Over  State  Courts — a.  In  General. — This  court  has  no  general  power  to 
review  or  correct  the  decisions  of  the  highest  state  court,  and  in  cases  of  this  char- 
acter exercises  a  statutory  jurisdiction  to  protect  alleged  violations,  in  state  decis- 
ions, of  certain  rights  arising  under  federal  authority^^  The  jurisdiction  of  this 
court  to  review  the  final  judgments  and  decrees  of  a  state  court  rests  on  §  709 
■of  the  Revised  Statutes."**  Appellate  jurisdiction  was  conferred  on  this  court  by 
the  twenty-fifth  section  of  the  judiciary  act  of  1789,  over  final  judgments  and 
decrees  in  any  suit  in  the  highest  court  of  law  or  equity  of  a  state  in  which  a  de- 
cision in  the  suit  could  be  had,  in  three  classes  of  cases :  The  first  class  was  where 
the  validity  of  a  treaty  or  statute  of,  or  an  authority  exercised  under,  the  United 
States,  was  drawn  in  question,  and  the  decision  was  against  their  validity ;  the 
•second  was  where  the  validity  of  a  statute  of,  or  an  authority  exercised  under, 
:any  state,  on  the  ground  of  their  being  repugnant  to  the  constitution,  treaties  or 
laws  of  the  United  States,  was  drawn  in  question,  and  the  decision  was  in  favor 
of  their  validity ;  and  the  third  was  "or  where  is  drawn  in  question  the  construc- 
lion  of  any  clause  of  the  Constitution,  or  of  a  treaty,  or  statute  of,  or  commi-s- 
sion  held  under  the  United  States,  and  the  decision  is  against  the  title,  right,  priv- 
ilege or  exemption  specially  set  up  or  claimed  by  either  party,  under  such  clause 
of  the  said  constitution,  treaty,   statute  or  commission. "*» 


set  aside  the  findings  of  that  court,  and 
without  itself  making  a  new  statement  of 
facts  in  the  nature  of  a  special  verdict 
entered  a  final  judgment;  and  this  court 
held,  that  such  record  presented  nothing 
for  our  examination,  and  that  conse- 
quently the  judgment  of  the  supreme 
court  of  the  territory  must  be  affirmed  on 
appeal.  Salina  Stock  Co.  v.  Salina  Creek 
Co..  163  U.  S.   109,  117,  41  L.  Ed.  90. 

42.  Kennon  v.  Gilmer,  131  U.  S.  22,  33 
L.  Ed.  110.  citing  Hopkins  v.  Orr.  124  U. 
S.  510,  31  L.  Ed.  523.  Arkansas,  etc..  Cat- 
tle Co.  V.  Mann,  130  U.  S.  69,  32  L.  Ed. 
854. 

43.  Central  Land  Co.  v.  Laidley.  159  U. 
S.  103,  40  L.  Ed.  91;  Marchant  v.  Penn- 
sylvania R.  Co..  153  U.  S.  380,  38  L.  Ed. 
751;  Harding  v.  Illinois,  196  U.  S.  78,  83, 
49  L.  Ed.  394,  reaffirmed  in  Robinson  v. 
Wingate,  198  U.  S.  580,  49  L.  Ed.  1171; 
Chicago,  etc.,  R.  Co.  v.  Newell,  198  U.  S. 
579,  49  L.  Ed.  1171;  Scale  v.  Georgia,  201 
U.   S.   642.   50  L.   Ed.  902. 

A  jurisdiction  to  be  exercised  sparingly. 
— As  remarked  by  Chief  Justice  Taney  in 
Lather  v.  Borden,  7  How.  1,  12  L.  Ed. 
581:  "The  high  power  has  been  conferred 
on  this  court  of  passing  judgment  upon 
the  acts  of  the  state  sovereignties,  and  of 
the  legislative  and  executive  branches  of 
the  federal  government,  and  of  determin- 
ing whether  they  are  beyond  the  limits 
of  power  marked  out  for  them  respec- 
tively by  the  constitution  of  the  United 
States.  This  tribunal,  therefore,  should 
be  the  last  to  overstep  the  boundaries 
whi'~li  limit  its  own  jurisdiction.  And 
while  it  should  always  be  ready  to  meet 
the  5th  of  February,  1867,  after  the  late 
rebellion  had  been  suppressed — and  just 
anv  question  confided  to  it  by  the  consti- 
tution, it  is  equally  its  duty  not  to  pass 
beyond    its    appropriate    sphere    of   action, 


and  to  take  care  not  to  involve  itself  in 
discussions  which  properly  belong  to 
other  forums."  Taylor  v.  Beckham,  178 
U.   S.  548,  5S0,  44  L.   Ed.   1187. 

44.  Smalley  v.  Laugenour.  196  U.  S.  »3, 
96,  49  L.  Ed.  400,  reaffirmed  in  Delahanty 
V.   Pitkin,  3  99  U.   S.  602,  50  L-   Ed.  328. 

45.  1  Stat.  73.  85,  c.  20,  §  25;  Mutual 
Life  Ins.  Co.  v.  McGrew.  188  U.  S.  291, 
307,  47  L.  Ed.  480.  reaffirmed  in  Huber  v. 
Jennings-Heywood  Oil  Syndicate,  201  U. 
S.  641,  50  L.  Ed.  901;  Herold  v.  Frank, 
191  U.  S.  558,  48  L.  Ed.  302;  Hughes  v. 
Kepley,  191  U.  S.  557,  48  L.  Ed.  301; 
Wakefield  v.  Tassell,  192  U.  S.  601,  48  L. 
Ed.  583;  Bank  of  Commerce  v.  Wiltsie, 
189  U.   S.   505,   47    L.    Ed.  921. 

On  the  24th  of  September.  1789.  at  the 
first  congress  of  the  United  States,  after 
the  adoption  of  the  constitution,  congress 
passed  the  "act  to  establish  the  judicial 
courts  of  the  United  States,"  1  Stat,  at 
Large  25;  the  great  act  commonly  called 
the  judiciary  act.  The  twenty-fifth  sec- 
tion of  it  gave  to  this  court  whatever 
power  was  given  in  the  act  at  all  to  re- 
examine, reverse,  or  affirm  the  final  judg- 
ments or  decrees  in  suits  in  the  highest 
courts  of  law  or  equity  of  the  states.  On 
the  5th  of  February,  1867,  after  the  late 
rebellion  had  been  suppressed — and  just 
before  the  adoption  of  the  fourteenth 
amendment  to  the  constitution,  which  de- 
clares that  "no  state  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United 
States" — but  while  more  or  less  disorgan- 
ization of  things  remained  in  the  southern 
states,  congress  passed  an  act  entitled  "an 
act  to  amend  an  act  to  establish  the  judi- 
cial courts  of  the  United  States."  14  Stat, 
at  Large  485.  This  act  was  in  two  sec- 
tions. The  first  section  gives  to  the 
courts  of  the  United  States,  and  the  sev- 


APPEAL  AND  ERROR. 


S47 


The  amendatory  judiciary  act  of  1867,  14  Stat,  at  Large  386,  provides 
that  a  final  judgment  or  decree  in  any  suit  in  the  highest  court  of  a  state  in  which 
a  decision  in  the  suit  could  be  had,  where  is  drawn  in  question  the  validity  of  a 
treaty  or  statute  of,  or  an  authority  exercised  under,  the  United  States,  and  the 
decision  is  against  their  validity,  or  where  is  drawn  in  question  the  validity  of  5 
statute  of  or  an  authority  exercised  under  any  state,  on  the  ground  of  their  being 
repugnant  to  the  constitution,  treaties,  or  laws  of  the  United  States,  and  the  de- 
cision is  in  favor  of  their  validity ;  or  where  any  title,  right,  privilege  or  im- 
munity is  claimed  under  the  constitution,  or  any  treaty  or  statute  of,  or  commis- 
sion held,  or  authority  exercised  under  the  United  States,  and  the  decision  is 
against  the  title,  right,  privilege  (or  immunity),  specially  set  up  or  claimed  by 
either  party  under  such  constitution,  treaty,  statute,  commission  (or  authority), 
may  be  re-examined  and  reversed  or  affirmed  in  the  supreme  court  of  the  United 
States  upon  a  writ  of  error,  *  *  *  in  the  same  manner  and  under  the  same 
1  emulations,  and  the  writ  shall  have  the  same  efifect  as  if  the  judgment  or  decree 
compl'^ined  of  had  been  rendered  or  passed  in  a  court  (of  the  United  States)  ; 
and  the  proceeding  upon  the  reversal  shall  also  be  the  same,  except  that  the  su- 
preme court  may,  at  their  discretion,  proceed  to  a  final  decision  of  the  same,  and 
award  execution   (or  remand  the  same  to  an  inferior  court). *^ 

Effect  of  Act  of  1867. — In  one  case  it  was  said,  that  the  act  of  1867  in  some 
particulars  supersedes  and  replaces  the  25th  section  of  the  judiciary  act  of  1789.'*'^ 
But  later  it  was  settled  that  the  second  section  of  the  act  of  February  5,  1867  (1-4- 
Stat,  at  Large  385),  "to  amend"  the  judiciary  act  of  1789,  operates  as  a  repeal  of 
the  twenty-fifth  section  of  that  act ;  and  the  act  of  1867,  as  it  is  now  found  in  the 
Revised  Statutes  of  the  United  States,  §  709,  is  the  sole  law  governing  the  removal 
of  causes  from  state  courts  to  this  court  for  review,  and  has  been  since  its  enact- 
ment in   1867.4  8 


eral  judges  thereof,  within  their  respective 
jurisdictions,  in  addition  to  the  authority 
already  conferred  by  law,  power  to  grant 
writs  of  habeas  corpus  in  all  cases  where 
ary  person  may  be  restrained  of  liberty 
in  violation  of  the  constitution,  or  of  any 
treaty  or  law  of  the  United  States.  Mur- 
dock  V.  Memphis,  20  Wall.  590,  .592,  22  L. 
E<i.  J 29. 

Judiciary  act  of  1789,  1  stat.  at  large  86. 
— "Sec.  25.  And  be  it  further  enacted, 
that  a  final  judgment  or  decree  in  any 
suit,  in  the  highest  court  (of  law  or  eq- 
uity) of  a  state  in  which  a  decision  in  the 
suit  could  be  had,  where  is  drawn  in  ques- 
tion the  validity  of  a  treaty  or  statute  of, 
or  an  authority  exercised'  under,  the 
United  States,  and  the  decision  is  against 
their  validity,  or  where  is  drawn  in  ques- 
tion the  validity  of  a  statute  of  or  an  au- 
thorit}'-  exercised  under  anj'  state,  on  the 
ground  of  their  being  repugnant  to  the 
constitution,  treaties,  or  laws  of  the 
United  States,  and  the  decision  is  in  favor 
of  such  their  validity;  or  where  is  drawn 
in  question  the  construction  of  any  clause 
of  the  constitution,  or  of  a  treaty,  or 
statute  of,  or  commission  held  under  the 
United  States,  and  the  decision  is  against 
the  title,  right,  privilege  (or  exemption), 
specially  set  up  or  claimed  by  either 
party,  under  such  (clause  of  the  said) 
constitution,  treatj^  statute  (or),  commis- 
sion, may  be  re-examined,  and  reversed 
or  affirmed  in  the  supreme  court  of  the 
United     States     upon     a     writ     of     error, 


*  *  *  in  the  same  manner  and  tinder 
the  same  regulations,  and  the  writ  shall 
have  the  same  effect  as  if  the  judgment 
or  decree  complained  of  had  been  rea- 
dered  or  passed  in  a  (circuit)  court,  and 
the  proceeding  upon  the  reversal  shafl 
also  be  the  same,  except  that  the  sapreme 
court  (instead  of  remanding  the  cause 
for  a  final  decision,  as  before  provided), 
may  at  their  discretion  (if  the  cause 
shall  have  been  once  remanded  before), 
proceed  to  a  final  decision  of  the  same, 
and  award  execution  (but  no  other  error 
shall  be  assigned  or  regarded  as  a 
ground  of  reversal  in  any  case  as 
aforesaid  than  such  as  appears  on 
the  face  of  the  record,  and  immediately 
respects  the  before-mentioned  questicms 
of  validity  or  construction  of  the  said  con- 
stitution, treaties,  statates.  commissions, 
or  authorities  in  dispate)."  Trebilock  ?•. 
Wilson.   12  Wall.    687,   689,  20   L.    Ed.   460. 

46.  Trebilcock  v.  Wilson,  12  Wall.  687, 
689.  20   L,  Ed.   460. 

47.  Twitchell  v.  Pennsylvania,  7  Wall. 
.321,   19   L.  Ed.  223. 

48.  Murdock  v.  Memphis,  20  Wall.  590, 
22  L.  Ed.  429;  Johnson  v.  Towsley,  13 
Wall.  72,  80,  20  L.   Ed.   485. 

In  the  leading  case  of  Murdock  v. 
Memphis.  20.  Wall.  590,  22  L.  Ed.  429, 
which  was  the  first  case  in  which  the 
court  felt  called  upon  to  decide  whether 
the  act  of  February  5th,  1867  (14  Stat,  at 
L..  385),  was  a  repeal  of  §  25  of  the  ju- 
diciary  act   of    1789,    and    to    construe   the 


548  APPEAL  AND  ERROR. 

Subsection  7  of  §  5  of  the  act  of  March  3,  1891,  allowing  appeals  or  writs 
of  error  to  be  taken  from  the  district  courts  or  from  the  existing  circuit  courts 
direct  to  the  supreme  court  in  certain  cases,  provides  that  nothing  contained 
therein  shall  affect  the  jurisdiction  of  the  supreme  court  in  cases  of  appeals  from 
the  highest  courts  of  the  state,  nor  the  construction  of  the  statutes  providing  for 
review  of  such  cases. '*^ 

Binding  Effect  of  Decisions  of  Respective  Courts. — State  decisions  in- 
volving questions  re-examinable  here  under  the  tw-enty-fifth  section  of  the  judiciary- 
act  can  have  no  authoritative  influence  in  this  court,  because  the  state  courts  in 
deciding  those  few  questions  act  in  a  subordinate  relation  to  the  paramount  juris- 
diction of  this  court  as  conferred  under  the  federal  constitution.  Federal  courts 
and  state  courts,  it  may  also  be  remarked,  exercise  concurrent  jurisdiction  in  a 
large  class  of  cases,  but  the  decisions  of  the  state  courts  in  such  cases,  where  the 
question  is  one  of  a  general  character,  and  not  one  arising  under  the  local  law',  are 
not  regarded  as  authorities  in  this  court,  nor  are  the  decisions  of  this  court  in  such 
cases  obligatory  upon  the  tribunals  of  the  states.  But  the  decisions  of  this  court 
in  cases  involving  federal  questions  are  conclusive  authorities  in  the  state  courts, 
and  their  decisions  upon  the  construction  of  their  own  constitution  and  local  laws 
are  equally  so  in  this  court,  unless  the  case  be  one  which  presents  some  question 
arising  under  the  twenty-fifth  section  of  the  judiciary  act.^*' 

b.  Construction  of  Statute — (1)  In  General. — The  twenty-fifth  section  of  the 
judiciary  act  is  limited  by  the  constitution,  and  must  be  construed  so  as  to  be  con- 
fined within  these  limits.  But  to  construe  this  section  so  that  a  case  can  arise  un- 
der the  constitution  or  a  treaty  only  when  the  right  is  created  by  the  constitu- 
tion or  a  treaty,  would  defeat  the  obvious  purpose  of  the  constitution, 
as  well  as  the  act  of  congress.  The  language  of  both  instruments  extends  the 
jurisdiction  of  this  court  to  rights  protected  by  the  constitution,  treaties  or  laws 
of  the  United  States,  from  whatever  source  these  rights  may  spring.''^ 

(2)  Words  "Statute  of  a  State"  Defined. — Any  enactment,  from  what- 
ever source  originating,  to  which  a  state  gives  the  force  of  law.  is  a  statute  of  the 
state,  within  the  meaning  of  the  act  regulating  the  appellate  jurisdiction  of  this 
court  over  the  judgments  and  decrees  of  the  state  courts. ''- 

(3)  Meaning  of  Term  "Suit"  in  Statute. — In  General.- — The  word  "suit"  as 
used  in  the  judiciary  act  of  1789  is  a  very  comprehensive  term  and  is  understood 
to  apply  to  a  proceeding  in  a  court  of  justice,  by  which  an  individual  pursues  that 
remedy  in  a  court  of  justice  which  the  law  affords  him.  The  modes  of  proceed- 
ing may  be  various,  but  if  a  right  is  litigated  between  the  parties  in  a  court  of  jus- 
later  enactment,  it  was  held,  that  the  act  The  legislature  of  Louisiana  in  1877 
of  1867  as  it  is  now  found  in  Rev.  Stat.,  having  granted  to  a  corporation  the  exclu- 
§  709,  did  repeal  §  25  of  the  judiciary  sive  right  of  constructing  waterworks  to 
act.  Maney  v.  Porter.  4  How.  5.5,  11  L.  supply  the  city  of  New  Orleans  and  its 
Ed.  873.                                                                           inhabitants     with     water,     provided     that 

49.  Osborne  v.  Florida,  164  U.  S.  650,  nothing  in  this  charter  should  prevent 
656.  41   L.  Ed.  586.  the  city  council  from  granting  to  any  per- 

50.  Provident  Institution  v.  Massachu-  son.  contiguous  to  the  Mississippi  river, 
setts,  6  Wall.  611,  628,  18  L.  Ed.  907.  permission  to  lay  water  pipes   exclusively 

51.  New  Orleans  v.  De  Armas,  9  Pet.  for  its  own  use.  an  ordinance  of  the  city 
224,  9  L.   Ed.   109.  council  in   1883,   granting   such   permission 

52.  William  v.  Bruflfy,  96  U.  S.  176.  24  to  a  corporation  whose  property  is  sep- 
L.    Ed.   716.  arated   from   the   river   by   a   street    and   a 

An      enactment      of      the      confederate  broad  auay  or  levee  owned  by  the  city,  is 

states,    enforced    as   a   law   of   one    of   the  but   a   license   from   the  city   council   exer- 

states   composing  that   confederation,   is  a  cising   an    administrative    power,    and    not 

statute   of  such   state,   within  the   meaning  a    law    of    the    state;    and    if    the    highest 

of   the   act   regulating   the   appellate   juris-  court   of  the   state,  in   a   suit  between   the 

tion  of  this  court  over  the  judgments  and  waterworks     company    and    the     licensee, 

decrees  of  the  state  courts.     Ford  v.  Sur-  gives   juda;ment    for   the    latter,    upon    the 

get,  97  U.  S.  594.  24  L.  Ed.  1018,  reaffirm-  construction     and     effect     of     the     charter 

ing   Williams   v.    Bmffy,   96   U.    S.    176,    24  and    the    license,    and    not    because    of    the 

L.  Ed.  716.  provision  of  the  state  constitution  of  1879 


APPEAL  AND  ERROR. 


549 


tice,  the  proceeding  by  which  the  decision  of  the  court  is  sought  is  a  suit.^^  Writs 
of  prohibition,  mandamus,  and  habeas  corpus,  prosecuted  for  the  attainment  of 
the  parties'  rights,  are  suits  within  the  meaning  of  the  law,  the  judgments  upon 
which,  in  proper  cases,  may  be  removed  into  this  court  by  writ  of  error  to  a  state 
court. •^"* 

A  writ  of  prohibition  is  a  "suit"  within  the  meaning  of  that  term  as  used  in 
the  twenty-lifth  section  of  the  judiciary  act.'^'"" 

A  writ  of  habeas  corpus  is  a  suit  within  the  meaning  of  the  twenty-fifth  sec- 
tion of  the  judiciary  act. •'"''' 

A  proceeding  for  a  mandamus  is  a  "suit"  wiiliin  the  meaning  of  that  term 
as  employed  in  §  709  of  the  Revised  Statutes. •'•" 


abolishing  monopolies,  this  court  has  no 
jurisdiction  on  writ  of  error,  although  the 
question  whether  the  licensee's  property 
was  contiguous  to  the  river  was  in  con- 
troversy. New  Orleans,  etc.,  Co.  v.  Lou- 
isiana Sugar  Refining  Co.,  125  U.  S.  18, 
31   L.  Ed.  607. 

53.  Holmes  v.  Jennison.  14  Pet.  540, 
566,  10  L.  Ed.  579,  citing  Mr.  Chief  Jus- 
tice Marshall  in  Weston  v.  Charleston,  2 
Pet.  449.  7  L.  Ed.  481. 

Criminal  cases. — "By  the  twenty-fifth 
section  of  the  judiciary  act  of  1789,  it  is 
provided  'that  a  final  judgment  or  decree 
in  anj^  suit  in  the  highest  court  of  law 
or  equity  of  a  state,  in  which  a  decision 
in  the  suit  could  be  had,  where  is  drawn 
in  question  the  validity  of  a  treaty,  or 
statute  of,  or  an  authority  exercised  un- 
der, the  United  States,  and  the  decision 
is  against  their  validity;  or  where  is 
drawn  in  question  the  validity  of  a  statute 
of,  or  an  authority  exercised  under,  any 
state,  on  the  ground  of  their  being  re- 
pugnant to  the  constitution,  treaties,  or 
laws  of  the  United  States,  and  the  deci- 
sion is  in  favor  of  their  validity;  or 
where  is  drawn  in  question  the  construc- 
tion of  any  clause  of  the  constitution,  or 
of  a  treaty  or  statute  of.  or  commission 
held  under,  the  United  States,  and  the  de- 
cision is  against  the  title,  right,  privilege, 
or  exemption,  specially  set  up  or  claimed 
by  either  party  under  such  clause  of  the 
said  constitution,  treaty,  statute,  or  com- 
mission, may  be  re-examined,  and  reversed 
or  affirmed,  in  the  supreme  court  of  the 
United  States.'  Doubts  have  been  ex- 
pressed whether  a  writ  of  error  to  a  state 
court  is  not  limited  to  civil  cases.  These 
doubts  could  not  have  arisen  from  reading 
the  above  section.  Is  not  a  criminal  case 
as  much  a  suit  as  a  civil  case?  What  is 
a  suit  but  a  prosecution;  and  can  anyone 
suppose  that  it  was  the  intention  of  con- 
gress, in  using  the  word  "suit,"  to  make 
a  distinction  between  a  civil  prosecution 
and  a  criminal  one?  It  is  more  important 
that  jurisdiction  should  be  given  to  this 
court  in  criminal  than  in  civil  cases,  under 
the  twentv-fifth  section  of  the  judiciary 
act.  Would  it  not  be  inconsistent  both 
with  the  spirit  and  letter  of  this  law,  to 
revise  the  judgment  of  a  state  court,  in  a 
matter    of    controversey    respecting    dam- 


ages, where  the  decision  is  against  a  right 
asserted  under  the  constitution  or  a  law 
of  the  United  States;  but  to  deny  the  ju- 
risdiction, in  a  case  where  the  property, 
character,  the  liberty  and  life  of  a  citizen 
may  be  destroyed,  though  protected  by 
the  solemn  guarantees  of  the  constitu- 
tion? But  tliis  is  not  an  open  question; 
it  has  long  since  been  settled  by  the  sol- 
emn adjudications  of  this  court.  The 
above  construction,  therefore,  is  sustained 
both  on  principle  and  authority.  The  pro- 
visions of  the  section  apply  as  well  to 
criminal  as  to  civil  cases,  where  the  con- 
stitution, treaties,  or  laws  of  the  United 
States  come  in  conflict  with  the  laws  of  a 
state,  and  the  latter  is  sustained  by  the 
decision  of  the  court."  Worcester  v. 
Georgia,  6  Pet.  515,  566,  8  L.  Ed.  483. 
503. 

54.  Weston  v.  Charleston,  2  Pet.  449,  7 
L.  Ed.  481;  Kendall  v.  United  States.  12 
Pet.  524.  9  L.  Ed.  1181;  Holmes  v.  Jen- 
nison, 14  Pet.  540,  10  L.  Ed.  579;  Ex  parte 
Milligan,  4  Wall.  2,  18  L.  Ed.  281;  Ui>- 
shur  County  v.  Rich.  135  U.  S.  467,  34  L. 
Ed.    196. 

55.  Weston  v.  Charleston.  2  Pet.  449, 
7    L.    Ed.   481. 

A  writ  of  error  to  this  court  may  be 
prosecuted,'  where  by  the  judgment  of  the 
highest  court  of  the  state  of  South  Caro- 
lina, a  prohibition,  issued  in  a  state  court, 
to  prevent  the  levying  of  a  tax  which  was 
imposed  by  a  law  repugnant  to  the  con- 
stitution of  the  United  States,  was  re- 
fused on  the  ground  that  the  law  was  not 
so  repugnant  to  the  constitution.  Weston 
V.   Charleston.  2  Pet.  449,  7  L.  Ed.   481. 

56.  Holmes  v.  Jennison.  14  Pet.  540.  564, 
10  L.  Ed.  579;  Ex  parte  McCardle,  6  Wall. 
318,  18  L.  Ed.  816. 

It  is  said  in  Holmes  v.  Jennison,  14  Pet. 
540,  566,  10  L.  Ed.  579.  in  deciding  that  a 
proceeding  by  habeas  corpus  was  a  suit 
within  the  meaning  of  the  judiciary  act, 
that  the  authorities  were  stronger  in  favor 
of  the  writ  of  error  in  the  case  of  liabeas 
corpus,  than  in  the  case  of  mandamus 
as  cited  in  Columbia  Ins.  Co.  v.  Wheel- 
ris-ht,  7  Wheat.  534,  5  L.  Ed.  516,  both  of 
which  were  writs  of  error  from  orders  or 
judgments  of  the  court  awarding  a  per- 
emptory  mandamus. 

57.  American   Express   Co.  v.   Michigan. 


550  APPEAL  AND  ERROR. 

Judgment  Rendered  on  Voluntary  Submission  of  Case. — A  judgment  in 
the  highest  court  of  law  or  equity  of  a  state,  if  otherwise  a  proper  subject  for  re- 
view here,  under  the  twenty-fifth  section  of  the  judiciary  act,  is  not  rendered  in- 
capable of  being  reviewed  by  the  fact  that  judgment  was  rendered  on  a  voluntary 
submission  of  a  case  agreed  on  for  judgment,  under  the  provisions  of 
the  Code  of  the  state. ^^ 

(4)  The  JVords  "Authority  Exercised  under  Any  State"  Defined. — The  au- 
thority conferred  by  a  state  on  its  supreme  court  to  hear  and  determine  cases, 
is  not  the  kind  of  authority  referred  to  in  the  25th  section  of  the  judiciary  aci, 
which  gives  this  court  a  right  to  review  the  decisions  of  the  highest  state  court,, 
where  is  drawn  in  question  the  validity  of  a  statute  of,  or  an  authority  exercised 
under  any  state,  on  the  ground  of  their  being  repugnant  to  the  constitution,  etc.,. 
and  the  decision  is  in  favor  of  such  validity.^^  But  the  decision  of  the  highest 
court  of  a  state  that  the  United  States  is  not  an  innocent  purchaser  for  valuable 
consideration  of  a  certain  parcel  of  land  claimed  by  it,  and  therefore  has  no  title 
to  the  land,  is  a  decision  upon  a  matter  of  law  against  the  validity  of  an  authority, 
and  as  such  is  reviewable  by  this  court.^*^ 

(5)  Validity  of  Statute  or  "Authority  Exercised  under  the  United  States." — 
Validity  of  Authority. — Under  the  first  clause  of  §  709  of  the  Revised  Statutes 
giving  this  court  jurisdiction  where  there  is  drawn  in  question  the  validity  of  an 
authority  exercised  under  the  United  States,  something  more  than  a  bare  asser- 
tion of  such  an  autlwrity  seems  essential  to  the  jurisdiction  of  this  court.  The 
authority  intended  by  the  act  is  one  having  a  real  existence,  derived  from  compe- 
tent governmental  power.  In  many  respects  "authority"  stands  upon  the  same 
footing  with  "treaty"  or  "statute."  And  in  many  cases  the  question  of  the  exist- 
ence of  an  authority  is  so  closely  connected  with  the  question  of  its  validity  that 
the  court  will  not  undertake  to  separate  them,  and  in  such  cases  the  question  of 
jurisdiction  will  not  be  considered  apart  from  the  question  upon  the  merits,  or  ex- 
cept upon  hearing  in  regular  order.  But  where  the  single  question  is  not  of  the 
validity  but  of  the  exercise  of  an  authority,  and  this  court  is  fully  satisfied  that 
there  was,  and  could  have  been,  no  decision  of  the  state  court  against  any  au- 
thority under  the  United  States  existing  in  fact,  this  court  has  no  jurisdiction  of 
the  cause  brought  here  by  writ  of  error. 


61 


177   U.    S.   404,   44   L.   Ed.   823,   citing  and  a  tax  was   imposed   on  the  six  and  seven 

approving   McPherson  v.   Blacker,   146   U.  per  cent,  stock  of  the  United  States;  and. 

S.     1,    24,    36     L.    Ed.     869;      Hartman    v.  in    the    court    of    common    pleas    of    the 

Greenhow,   102   U.   S.   672.   26   L.    Ed.   271,  Charleston     district,     an     application     was 

reaffirmed  in  Crawford  v.  Hubbell,  177  U.  made   for    a   prohibition   to   restrain    ihem 

S.  419,  44  L.  Ed.  829.  from  levying  the  tax,  on  the  ground,  that 

58.  Aldrich    v.    ^tna    Ins.    Co..   8    Wall.  the  ordinance  violated  the  constitution  of 
491,   19  L.   Ed.  473.  the   United   States.      The   prohibition   was 

59.  Bethell    z'.    Demaret,    10    Wall.    537,  granted,  and  the  proceedings     in  the  case 
19  L.  Ed.  1007.  were  removed  to  the  constitutional  court, 

The   power   of  this    court   to   revise   the  the  highest  court  of  law  of  the  state;  and 

judgments   of  state   tribunals,   depends   on  in   that   court,   it   was   held,  that   the   ordi- 

the  25th  section  of  the  judiciary  act.  That  nance   did   not  violate   the   constitution   of 

section   enacts   "that   a   final   judgment    or  the    United    States,    and    a    writ    of    error 

decree  in  any  suit  in  the  highest  court  of  was    prosecuted    on    this    decision    of   this 

law  or  equity   of   a   state,   in  which   a   de-  court.      Held,    that    the    question    decided 

cision  in  the  suit  could  be  had,"  where  is  by  the   constitutional   court   was   the   very 

drawn   in   question   the  validity   of  a   stat-  question  on   which  the   revising  power  of 

ute,    or    of    an    authority    exercised    under  this   court  is   to  be  exercised.     Weston  v. 

any    state,   on   the    ground   of   their   being  Charleston,  2  Pet.  449,  7  L.  Ed.  481. 

repugnant  to  the   constitution,  treaties   or  60.   Stanley  v.  Schwalby,   162   U.   S.   255, 

laws   of   the   United   States,   and   the   deci-  40  L.   Ed.  960. 

sion    in   favor   of   their   validity,   "may    be  61.   Millingar  v.   Hartupee.   6  Wall.    258, 

re-examined,  and   reversed   or  afifirmed   in  18   L.   Ed.   829;    Baltimore,   etc.,   R.   Co.   v. 

the   supreme  court  of  the  United   States."  Hopkins,     130  U.  S.  210,  224.  32  L.  Ed.  908; 

The  city  council  of  Charleston,  exercising  New     Orleans     v.    New     Orleans     Water 

an    authority    under    the    state    of    South  Works    Co..   142   U.    S.    86,    87,    35    L.    Ed. 

Carolina,  enacted  an  ordinance,  by  which  946;    Hamblin   v.   Western    Land    Co.,   147' 


APPEAL  AND  ERROR. 


il 


Claim  of  Title  under  Patents. — The  decision  by  a  state  court  that  a  patent 
from  the  United  States  for  land  does  not  extend  to  a  certain  river  bank  is  not  a 
denial  of  any  authority  claimed,  but  is  only  a  decision  that  the  grant  does  not  in 
fact  extend  to  the  river,  or,  in  other  words,  that  the  authority  was  not  exercised. 
It  is  a  mere  interpretation  of  the  authority  really  exercised  and  not  any  denial  of 
authority.    The  issue  thus  made  is  not  one  of  "validity"  but  one  of  fact.^^ 

Validity  Must  Be  Denied  Directly. — To  enable  this  court  to  entertain  juris- 
diction under  a  writ  of  error  upon  the  ground  that  the  validity  of  an  authority 


U.  S.  531,  532,  37  L.  Ed.  267;  Doiislas  v. 
Wallace,  161  U.  S.  346,  348,  40  L.  Ed.  727; 
Wilson  z:  North  Carolina,  169  U.  S.  586. 
595,  42  L.  Ed.  865;  Telluride,  etc..  Co.  v. 
Rio  Grande,  etc.,  R.  Co.,  175  U.  S.  639.  643, 
44  L.  Ed.  305;  Illinois  Central  R.  Co.  v. 
Chicago,  176  U.  S.  646.  656.  44  L-  Ed. 
622;  Connecticut  z:  Woodruff,  153  U.  S. 
689,   38    L.    Ed.    869. 

The  twenty-fifth  section  of  the  judiciary 
act  does  not  give  jurisdiction  to  this 
court  in  cases  of  decisions  by  the  courts 
of  a  state  against  mere  assertions  of  an 
exercise  of  authority  under  the  United 
States.  Hence,  where  a  party  claims  avi- 
tliority  under  an  order  of  a  court  of  the 
United  States,  which,  when  rightly  viewed, 
does  not  purport  to  confer  any  authority 
upon  him,  the  writ  will  be  dismissed, 
on  motion,  and  apart  from  a  considera- 
tion of  merits,  when  the  single  question 
is,  not  the  validity  of  the  authority,  but 
its  existence,  and  the  court  is  fully  sat- 
isfied that  there  was  and  could  have  been 
no  decision  by  the  state  court  against 
any  authority  under  the  United  States  ex- 
isting in  fact.  Millingar  v.  Hartupee,  6 
Wall.   258,   18   L.   Ed.   829. 

62.  Sweringen  v.  St.  Louis.  185  U.  S.  38, 
46  L.   Ed.  795. 

A  patent  was  granted  to  a  pre-emptor 
io  1841  for  a  tract  of  land  which  had  been 
previously  assigned,  by  the  direction  of 
the  president,  to  a  Pottawatomie  Indian, 
under  the  terms  of  the  treaty  with  that 
tribe.  The  patent  was  adjudged  to  be  a 
valid  grant  of  land  by  the  supreme  court 
of  Indiana.  Held,  that  this  case  is  not 
within  the  clause  of  the  25th  section  of  the 
judiciary  act,  which  confers  jurisdiction 
upon  this  court  to  re-examine  judgments 
©r  decrees  of  state  courts  adverse  to  "an 
authority  exercised  under  the  United 
States."  Verden  v.  Coleman,  1  Black  472, 
17  L.  Ed.   161. 

Jurisdiction  of  a  federal  court. — The 
decision  by  the  highest  state  court  that  a 
circuit  court  of  the  United  States  has  ju- 
risdiction to  entertain  an  action  by  a 
National  Bank,  does  not  bring  the  case 
within  the  clause  of  the  statute  giving 
this  court  jurisdiction  to  re-examine  a  fi- 
nal judgment  or  decree  in  the  highest 
court  of  the  state  "where  is  drawn  in 
question  the  validity  of  a  treaty  or  statute 
of,  or  authority  ex-^rcised  under,  the 
United  States,  and  the  decision  is  against 
their    validity ."    Rev.    Stat.,    §    709.      The 


circuit  court  of  the  United  States  had  au- 
thority to  judicially  determine  in  the  case 
and  for  the  parties  before  it  whether  the 
action  brought  by  the  bank  was  one  aris- 
ing under  the  laws  of  the  United  States. 
Its  authority  in  that  regard  was  not  and 
could  not  have  been  disputed.  But  to 
deny  that  the  bank  could  bring  its  action 
in  the  federal  court — the  bank  being  lo- 
cated in  Washington  and  the  persons  sued 
by  it  being  citizens  of  that  state — was 
not.  within  the  meaning  of  §  709,  to  draw 
in  question  "an  authority  exercised  under 
the  United  States."  Nor  can  we  sustain 
the  contention  that  our  jurisdiction  may 
rest  on  the  clause  of  §  709.  "or  where  is 
drawn  in  question  the  validity  of  a  stat- 
ute of.  or  an  authority  exercised  under, 
any  state,  on  the  ground  of  their  being 
repugnant  to  the  constitution,  treaties  or 
laws  of  the  United  States,  and  the  deci- 
sion is  in  favor  of  their  validity."  The  au- 
thority of  the  state  court  to  consider  and 
pass  upon  the  question,  directly  raised 
in  the  case  before  it,  as  to  the  jurisdiction 
of  the  circuit  court  of  the  United  States 
on  the  bank's  suit,  was  not  drawn  in 
question.  The  contention  is  only  that  its 
decision  was  erroneous.  Abbott  v.  Ta- 
coma  Bank  of  Commerce,  175  U.  S.  409, 
412.   44   L.    Ed.  217. 

Rights  from  priority  of  possession  of 
mining  claims. — "It  is  insisted  that  the 
case  falls  within  the  first  category  of  cases 
specified  in  Rev.  Stat.,  §  709.  'Where  is 
drawn  in  question  the  validit3'  of  a  treaty 
or  statute  of,  or  an  authority  exercised 
under,  the  United  States,  and  the  decision 
is  against  their  validity.'  But  the  cases 
in  which  this  clause  has  been  applied  are 
those  wherein  the  validity  of  a  statute,  or 
of  an  authority  exercised  by  a  public  of- 
ficial of  the  United  States  has  been  called 
in  question,  and  not  those  where  a  gen- 
eral right  is  set  up  under  a  statute.  Mc- 
Guire  v.  The  Commonwealth.  3  Wall.  382, 
387,  17  L.  Ed.  165;  Millingar  v.  Hart- 
upee, 6  Wall.  258,  18  L.  Ed.  829;  Dan- 
iels V.  Tearney.  102  U.  S.  415,  26  L.  Ed. 
187;  Sharpe  v.  Doyle,  102  U.  S.  686.  26 
L.  Ed.  277;  Buck  v.  Colbath.  3  Wall. 
334,  18  L.  Ed.  257.  The  use  of  the  word 
'authority'  in  the  third  clause  in  connec- 
tion with  the  word  'commission'  favors 
the  theory  that  a  personal  authoritj^  was 
intended,  and  not  the  assertion  of  an  ab- 
stract right  created  by  a  statute."  Tell- 
uride. etc,  Co.  V.  Rio  Grande,  etc.,  R. 
Co.,   175  U.   S.   639,   643.  44  L.   Ed.  305. 


552 


APPEAL  AND  ERROR. 


exercised  under  the  United  States  was  drawn  in  question,  the  vaHdity  of  such 
authority  must  have  been  denied  directly  and  not  incidentally.^^  Xhe  validity  of 
an  authority  exercised  under  the  United  States  is  drawn  in  question  only  when  it 
is  primarily  denied,  and  the  denial  made  the  subject  of  direct  inquiry .*^^ 

But  the  test  as  to  whether  there  exists  a  claim  of  immunity  arising  from 
an  "authority  exercised  under  the  United  States"  is  not  the  particular  source  or 
form  by  which  the  authority  of  the  United  States  has  been  conferred  or  is  exerted, 
but  whether  such  authority  existed  and  was  exercised  and  an  immunity  is  claimed 
under  it.^-'' 

Validity  of  Statute. — The  distinction  between  the  construction  of  a  statute 
and  the  validity  of  a  statute  has  frequently  been  adverted  to  by  this  court. "^^  In 
several  cases  this  court  has  held,  that  the  construction  of  a  statute  of  another  state, 
and  its  operation  elsewhere,  does  not  necessarily  involve  a  federal  question.^'^ 
It  has  often  been  held,  that  the  validity  of  a  statute  or  treaty  of  the  United  States 
is  not  "drawn  in  question"  within  the  meaning  of  §  709,  every  time  rights  claimed 
under  a  statute  or  treaty  are  controverted,  nor  is  the  validity  of  an  authority  every 
time  an  act  done  by  such  authority  is  disputed.^'^ 

Where  there  has  been  no  decision  of  the  state  court  against  the  validity  of 


63.  Sweringen  v.  St.  Loais,  185  U.  S. 
3-8,  44.  46  L.  Ed.  795,  following  United 
States  V.  Lynch,  137  U.  S.  380,  34  L.  Ed. 
7<M). 

64.  Cook  County  v.  Calumet,  etc.,  Canal 
Co..  138  U.  S.  635,  34  L.  Ed.  1110.  citing 
United  States  v.  Lynch,  137  U.  S.  280, 
34  L.  Ed.  700;  Baltimore,  etc..  R.  Co.  v. 
Hopkins.  130  U.  S.  210,  32  L.  Ed.  908; 
Connecticut  v.  Woodruff,  153  U.  S.  689, 
3B  L.  Ed.  869;  Borgmeyer  v.  Idler,  159 
U.  S.  408.  40  L.  Ed.  199;  Sweringen  v. 
St.    Louis,   185  U.    S.  38.   44,  46   L.   Ed.   795. 

A  decision  bj^  the  state  court  that  the 
land  commissioner  had  no  authority  to 
vacate  an  entry,  and  that  any  order  that 
he  might  make  did  not  affect  the  rights 
of  the  person  making  the  entry,  is  not  a 
decision  against  a  title  specially  set  up 
against  the  plaintiff  under  an  authority 
exercised  under  the  United  States,  nor 
against  the  validity  of  such  an  authority, 
where  this  view  was  expressed  in  con- 
struing the  langtiage  of  the  state  statute. 
Cook  County  z'.  Cahimet,  etc..  Canal  Co., 
138  U.   S.  635.  34  L.   Ed.  1110. 

Where  in  a  case  involving  construc- 
tion of  an  act  of  the  state  of  Illinois  grant- 
ing swamps  and  overflowed  lands  to  the 
county,  which  lands  had  been  granted  to 
the  state  by  an  act  of  congress,  it  is  as- 
signed for  error  that  the  supreme  court 
sustained  the  trial  court  in  the  admission 
of  improper  testimony,  to  wit,  the  regis- 
ter and  receiver's  certificate  for  the  land, 
and  therefore  the  validity  of  an  authority 
exercised  under  the  United  States,  namely, 
the  action  of  the  land  department,  was 
drawn  in  question,  and  the  decision  was 
against  its  validity,  the  writ  of  error  will 
be  dismissed,  because  it  does  not  draw  in 
question  the  validity  of  the  authoritj'^  of 
the  land  department  within  §  709  of  the 
revised  statute  upon  which  section  our 
jurisdiction  rests.  Cook  County  v.  Calu- 
met, etc..  Canal  Co.,  138  U.  S.  635.  34  L. 
Ed.   1110. 


65.  Tullock  V.  Mulvane,  184  U.  S.  497, 
46  L.   Ed.  657. 

66.  Baltimore,  etc.,  R.  Co.  v.  Hopkins,  130 
U.  S.  210,  32  L.  Ed.  908;  Glenn  v.  Garth. 
147  U.  S.  360,  369,  37  L.  Ed.  203;  John- 
son V.  New  York  Life  Ins.  Co..  187  U.  S. 
491.  47  L.  Ed.  273;  Easton  Building,  etc., 
Ass'n  V.  Williamson,  189  U.  S.  122,  47  L. 
Ed.   735. 

"In  Baltimore,  etc.,  R.  Co.  v.  Hopkins, 
130  U.  S.  210,  32  L.  Ed.  908.  the  distinc- 
tion between  the  denial  of  validity  and 
the  denial  of  a  title,  right,  privilege  or 
immunity  specially  set  up  or  claimed,  is 
pointed  out,  as  well  as  the  distinction  be- 
tween the  construction  of  a  statute  or 
the  extent  of  an  authority  and  the  va- 
lidity of  a  statute  or  of  an  authority." 
Mutual  Life  Ins.  Co.  v.  McGrew.  188  U. 
S.  291.  308.  47  L.  Ed.  480.  reaffirmed  in 
Herold  v.  Frank,  191  U.  S.  558,  48  L.  Ed. 
302;  Hughes  v.  Kepley,  191  U.  S.  557, 
48  L.  Ed.  301;  Wakefield  v.  Tassell,  192 
U.  S.  601.  48  L.  Ed.  583;  Bank  of  Com- 
merce V.  Wiltsie,  189  U.  S.  505,  47  L.  Ed. 
921. 

67.  Chicago,  etc..  R.  Co.  v.  Wiggins 
Ferry  Co.,  119  U.  S.  615.  30  L.  Ed.  519; 
Allen  V.  Alleghany  Co..  196  U.  S.  458, 
463,    49    L.    Ed.    551. 

68.  Kennard  v.  Nebraska.  186  U.  S.  304, 
308,  46  L.  Ed.  1175;  Baltimore,  etc.,  R.  Co. 
V.  Hopkins.  130  U.  S.  210,  32  L.  Ed.  908; 
Cook  County  v.  Calumet,  etc..  Canal  Co., 
138  U.  S.  635,  653,  34  L.  Ed.  1110;  Borg- 
meyer c:  Idler.  159  U.  8.  408,  40  L.  Ed.  199; 
Blackburn  v.  Portland  Gold  Min.  Co.,  175 
U.  S.  571.  44  L.  Ed.  276;  Florida,  etc.,  R. 
Co.  V.  Bell,  176  U.  S.  321,  328.  44  L.  Ed. 
486;  Columbia  Water  Power  Co.  v.  Colum- 
bia Street  Railway  Co..  172  U.  S.  475,  488, 
43  L.  Ed.  521;  United  States  v.  Lynch, 
137  U.  S.  280,  34  L.  Ed.  700;  Telluride, 
etc.,  Co.  i;.  Rio  Grande,  etc..  R.  Co.,  175  U. 
S  639,  643,  44  L.  Ed.  305;  Bushnell  v. 
Crooke   Min.,   etc.,   Co.,   148   U.   S.   682,   37 


APPEAL  AND  ERROR. 


553 


any  statute  of  the  United  States,  but  the  judgment  only  denied  the  ex- 
istence of  the  facts  necessary  to  bring  the  case  within  its  operation,  the 
writ  of  error  will  be  dismissedJ^  A  case  may  be  said  to  involve  the 
construction  or  application  of  the  constitution  of  the  United  States,  or  the 
validity  or  construction  of  a  treaty  made  under  the  authority  of  the  United 
States  when  a  title,  right,  privilege  or  immunity  is  claimed  under  that  instrument, 
but  a  definite  issue  in  respect  to  the  possession  of  the  right  must  be  distinctly  de- 
ducible  from  the  record  before  the  judgment  of  the  court  below  can  be  revised 
on  the  ground  of  error  in  the  disposal  of  such  a  claim  by  its  decision.  "The  gen- 
eral doctrine  has  been  frequently  announced  in  cases  involving  the  jurisdiction 
of  this  court  under  the  twenty-fifth  section  of  the  judiciary  act  of  September  24, 
1789;  §  709  of  the  Revised  Statutes;  and  acts  relating  to  the  revision  of  judg- 
ments of  the  supreme  court  and  court  of  appeals  of  the  District  of  Columbia  and 
the  supreme  courts  of  the  territories,  as  well  as  in  cases  involving  the  jurisdic- 
tion of  the  circuit  courts.'""^  Where  the  constitution,  laws  or  treaties  of  the 
United  States  are  not  before  the  court  for  construction,  but  merely  as  a  fact,  this 


L.  Ed.  610;  Doe  v.  Mobile.  9  How.  451, 
13  L.  Ed.  212. 

It  was  said  by  the  chief  justice,  in 
Cook  County  v.  Calumet,  etc..  Canal  Co., 
138  U.  S.  635,  653,  34  L.  Ed.  1110:  "The 
validity  of  a  statute  is  not  drawn  in  ques- 
tion every  time  rights  claimed  under 
such  statute  are  controverted,  nor  is  the 
validity  of  an  authority  every  time  an  act 
done  by  such  authority  is  disputed." 
Bushnell  v.  Crooke  Min.  etc..  Co.,  148 
U.   S.   682,  689. 

We  have  repeatedly  held,  that  the  va- 
lidity of  a  statute  is  not  drawn  in  ques- 
tion every  time  rights  claimed  under 
such  statute  are  controverted,  nor  is  the 
validity  of  an  authority  every  time  an  act 
done  bj'  such  authority  is  disputed.  Snow 
V.  United  States,  118  U.  S.  346.  352,  30  L. 
Ed.  207;  Baltimore,  etc..  R.  Co.  v.  Hop- 
kins, 130  U.  S.  210,  32  L.  Ed.  908;  Cook 
County  V.  Calumet,  etc.,  Canal  Co..  138 
U.  S.  635,  34  L.  Ed.  1110;  Ferry  v.  King 
County.   141  U.   S.   668.  673.  35  L.   Ed.  895. 

What  are  public  lands. — Where  the 
plaintiff  in  error  specially  set  up  and 
claimed  a  federal  right  in  the  state  court, 
a  decision  by  the  supreme  court  of  the 
state,  that  the  Pawnee  reservation  lands 
ir  Nebraska  were  public  lands  within  the 
meaning  of  the  12th  section  of  the  en- 
abling act,  which  did  not  bring  into  ques- 
tion the  validity  of  that  section — much 
less  was  a  decision  against  its  validity — 
does  not  present  a  question  on  which  to 
rest  a  right  to  review  that  judgment,  on 
writ  of  error  from  the  supreme  court  of 
the  United  States.  Kennard  v.  Nebraska, 
186  U.    S.   304,   308.  46   L.   Ed.    1175. 

The  decision  by  a  state  court  in  an  ac- 
tion against  a  county  treasurer  and  sure- 
ties on  his  bond,  that  the  settlements  of 
the  treasurer  with  the  board  of  county 
commissioners  were  not  conclusive;  that 
the  board  exercised  no  judicial  power  in 
making  them,  but  acted  merely  minis- 
terially; that  there  was  no  law  author- 
izing the  board  to  absolve  the  treasurer 
from   the  performance  of  the  duty  to  ac- 


count and  pay  over;  that  the  settlements 
were  only  prima  facie  evidence  and  could 
not  be  pleaded  as  an  estoppel;  and  that 
the  denial  by  the  trial  court  of  an  order 
for  a  bill  of  particulars,  was  a  matter 
largely  discretionary  with  the  trial  court 
and  its  ruling  would  not  be  disturbed  in 
the  absence  of  anything  indicating  that 
the  defendants  were  prejudiced  thereby, 
shows  no  denial  of  the  validity  of  an  au- 
thority exercised  under  the  United  States, 
nor  was  the  validity  of  a  statute  or  au- 
thority primarily  denied  here,  and  the  de- 
nial made  the  subject  of  direct  inquiry, 
nor  was  any  decision  against  the  validity 
of  statute  or  authority.  Ferry  v.  King 
Countv.   141  U.   S.  668,  35   L.   Ed.   895. 

70.  Crary  v.  Devlin.  154  U.  S.  619,  appx., 
23  L.  Ed.  510,  citing  Mining  Co.  v.  Boggs, 
3   Wall.   304,    17    L.    Ed.    245. 

A  motion  to  dismiss  a  writ  of  error  to 
a  state  court  will  be  granted,  where  there 
could  have  been  no  decision  of  the  court 
of  appeals  against  the  validity  of  any  stat- 
ute of  the  United  States,  because  it  was 
found  that  the  facts  upon  which  the  de- 
fendants below  relied  to  bring  their  case 
within  the  statutes  in  question  did  not  ex- 
ist. In  such  case,  the  judgment  does  not 
deny  the  validity  of  the  statute,  but  the 
existence  of  the  facts  necessary  to  bring 
the  case  within  its  operation.  Crary  v. 
Devlin.  154  U.  S.  619,  appx.,  23  L.  Ed. 
510.  following  Mining  Co.  v.  Boggs,  3 
Wall.  304.  17  L.   Ed.  245. 

71.  Baltimore,  etc..  R.  Co.  v.  Honkins, 
130  U.  S.  210.  32  L.  Ed.  908;  United 
States  V.  Lynch,  137  U.  S.  280,  34  L.  Ed. 
700;  South  Carolina  v.  Seymour.  153  U. 
S.  353.  38  L.  Ed.  742;  New  Orleans  V. 
Beniamin,  153  U.  S.  411,  38  L.  Ed.  764; 
Linford  v.  Ellison,  155  U.  S.  503.  39  L. 
Ed.  239;  Durham  v.  Sevmour.  161  U. 
S.  235.  40  L.  Ed.  682;  Hanford  r.  Da- 
vies,  163  U.  S.  273.  41  L.  Ed.  15?;  Oxley 
Stave  Co.  v.  Butler  County,  166  U.  S. 
e48,  41  L.  Fd.  1140;  Muse  v.  Arlington 
Hotel  Co.,  168  U.  S.  430,  135,  4b  L.  Ed. 
531, 


554 


APPBAL  AAV  HKROR. 


court  has  no  jurisdiction^-  It  was  said  hypothetically.  if  A  hold  land  under  a 
patent  from  the  United  States  or  a  Spanish  grant  ratified  by  treaty,  and  his  heirs, 
devisees,  or  assignees  dispute  as  to  which  has  the  best  title  under  him ;  this  does 
not  make  a  case  for  the  jurisdiction  of  this  court  under  the  twenty-fifth  sectioti  of 
the  judiciary  act.  If  neither  the  validity  nor  construction  of  the  patent  or  title 
under  the  treaty  is  contested,  if  both  parties  claim  under  it  and  the  contest  arises 
from  some  question  without  or  dehors  the  patent  or  the  treaty,  it  is  plainly  no  case 
for  our  interference  under  this  sectionJ-^ 

Power  to  Enact. — The  validity  of  a  statute  is  drawn  in  question  whenever  the 
power  to  enact  it,  as  it  is  by  its  terms,  or  is  made  to  read  by  construction,  is  fairly 
open  to  denial,  and  is  denied."^ 

c.  Constitutionality  of  Statute. — The  twenty-fifth  section  of  the  judiciary  act  of 
1789,  re-enact.ed  in  §  709  of  the  Revised  Statutes,  is  constitutional.""^ 

d.  Effect  of  Ordinance  of  Secession. — The  ordinance  of  secession  by  the  state 
of  Louisiana,  on  the  26th  of  January,  1861.  was  a  nullity,  and  did  not  affect 
the  previous  jurisdiction  of  the  supreme  court  of  that  state,  or  its  relation  to  the 
appellate  power  of  the  supreme  court  of  the  United  States,  under  the  twenty-fifth 
section  of  the  judiciary  act.'''^ 


72.  In  1839  a  treaty  was  made  between 
the  United  States  and  Mexico,  providing 
for  the  "adjustment  of  claims  of  citizens 
of  the  United  States  on  the  ]\Iexican  Re- 
public." Under  this  treaty  a  sum  of  money 
was  awarded  to  be  paid  to  the  members 
of  the  Baltimore  Mexican  Company,  who 
had  subscribed  money  to  fit  out  an  ex- 
pedition against  Mexico  under  General 
Mina.  in  1816.  The  proceeds  of  one  of 
the  shares  of  this  company  were  claimed 
by  two  parties,  one  as  being  the  perma- 
nent trustee  of  the  insolvent  owner  of 
the  share,  and  the  other  as  being  the  as- 
signee of  the  provisional  trustee  and  af- 
terwards the  assignee  of  the  insolvent 
himself.  The  judgment  of  the  court  of 
appeals  of  Maryland,  that  the  latter  claim- 
ant is  entitled  to  the  money,  is  not  re- 
viewable by  this  court  under  the  twenty- 
fifth  section  of  the  judiciary  act.  "Both 
parties  claim  certain  monej's  in  court  as 
a^'signees  of  Lyde  Goodwin,  who  was  a 
member  of  the  "Baltimore  Mexican  Com- 
pany," and  entitled  to  a  certain  proportion 
of  the  money  awarded  to  said  company,  as 
a  just  claim  on  the  Mexican  government. 
The  validity  of  the  award,  or  the  treaty 
tmder  which  it  was  made,  is  not  called  in 
question  by  either  party,  as  both  claim 
under  them.  In  order  to  ascertain  the 
effect  of  certain  previous  assignments 
made  by  Lj^de  Goodwin,  the  history  of 
the  origin  of  his  claim  necessarily  makes 
a  part  of  the  case.  The  treaty  and  award 
are  introduced  as  a  part  of  this  history, 
as  facts  are  disputed  by  either  party.  The 
money  being  in  court,  both  the  treaty 
and  award  were  functi  officio,  and  no  de- 
cision of  the  rights  of  the  claimants 
inter  se  can,  in  the  nature  of  the  case, 
involve  the  valid'ty  of  either."  Gill  v. 
Oliver,  n    How.  .^29,  13  L.  Ed.  799. 

73.  Gill  V.  Oliver,  11  How.  529,  13  L. 
Ed.  799. 

74.  Baltimore,  etc.,   R.   Co.   v.    Hopkins, 


130  U.  S.  210.  234,  32  L.  Ed.  908;  Miller 
V.  Cornwall  R.  Co.,  168  U.  S.  131,  133,  42 
L.  Ed.  409,  reafiirmed  in  Charleston,  etc., 
Bridge  Co.  v.  West  Virginia.  168  U.  S. 
704,  42  L.  Ed.  1212. 

In  the  Baltimore,  etc.,  R.  Co.  -j.  Hopkins, 
130  U.  S.  210,  32  L.  Ed.  908,  it  was  held, 
that  the  validity  of  a  statute  is  drawn  in 
question  when  the  power  to  enact  it  is 
fairly  open  to  denial  and  is  denied,  but 
not  otherwise.  Cited  in  Swrincren  v. 
St.   Louis,   185   U.    S.   38.  44.   46   L.    Ed.   795. 

75.  Williams  ?•.  Bruffy.  102  U.  S.  248, 
26  L.  Ed.  135;  Martin  r-.  Hunter,  1  Wheat. 
304,   350,   4   L.    Ed.    97. 

It  has  been  uniformly  held  that  the  25th 
section  of  the  judiciary  act  of  1789  is  con- 
stitutional. The  Mayor  v.  Cooper,  6  Wall. 
247,   18   L.   Ed.   851. 

"On  the  whole,  the  court  are  of  opin- 
ion that  the  appellate  power  of  the  United 
States  does  extend  to  cases  pending  in 
the  state  courts;  and  that  the  25th  section 
of  the  judiciary  act,  which  authorizes  the 
exercise  of  this  jurisdiction  in  the  speci- 
fied cases,  by  a  writ  of  error,  is  sup- 
ported by  the  letter  and  spirit  of  the  con- 
stitution. We  find  no  clause  in  that  in- 
strument which  limits  this  power;  and 
we  dare  not  interpose  a  limitation  where 
the  people  have  not  been  disposed  to  create 
one.  *  *  *  It  is  an  historical  fact  that  the 
supreme  court  of  the  United  States  have, 
from  time  to  time,  sustained  this  ap- 
pellate jurisdiction  in  a  great  variety  of 
cases,  brought  from  the  tribunals  of  many 
of  the  most  important  states  in  the  Union, 
and  that  no  state  tribunal  has  ever 
breathed  a  judicial  doubt  on  the  subject, 
or  dechned  to  obey  the  mandate  of  the 
supreme  court,  until  the  present  occa- 
sion." Martin  v.  Hunter,  1  Wheat.  304, 
352,  4  L.  Ed.  97,   109. 

76.  White  v.  Cannon,  6  Wall.  443,  18  L. 
Ed.  923. 


APPEAL  AND  ERROR.  555 

e.  Consent  as  Conferring  Jurisdiction. — Consent  will  not  give  this  court  juris- 
diction over  a  state  courtj' 

f.  Lazi's  Drawn  in  Question  Must  Be  Those  of  "State" — (1)  In  General. — In 
order  to  give  this  court  jurisdiction  to  review  the  decisions  of  state  courts  under 
the  twenty-fifth  section  of  the  judiciary  act  of  1789,  the  statute,  the  validity  of 
which  is  drawn  in  question,  must  be  passed  by  a  state,  a  member  of  the  Union,  and 
a  public  body  owing  obedience  and  conformity  to  its  constitution  and  laws.  This 
has  been  settled  by  this  court  as  to  the  meaning  of  the  word  "state."  It  is  not 
enough  for  it  to  be  an  organized  political  body  within  the  limits  of  the  union. 
In  short  the  revision  must  be  of  a  "statute"  and  a  statute  of  a  "state,"  and  not  of 
a  territory,  or  corporation,  college  or  unacknowledged  political  body.'^^  jj-  ^as 
been  settled  also,  that  a  law  passed  by  Virginia,  before  the  government  of  the 
Union  took  effect,  cannot  be  examined  and  decided  upon  under  this  clause  of  the 
judiciary  act."^ 

(2)  Decisions  of  Political  Bodies. — If  public  bodies,  not  duly  organized 
or  admitted  into  the  Union,  undertake  as  slates,  to  pass  laws  which  might 
encroach  on  the  Union  or  its  granted  powers,  such  conduct  would  hav; 
to  be  reached,  either  by  the  power  of  the  Union  to  put  down  insur- 
rections, or  by  the  ordinary  penal  laws  of  the  states  or  territories  within 
which  these  bodies  are  situated  and  acting.  But  their  measures  are  not 
examinable  by  this  court  on  a  writ  of  error.  They  are  not  a  state,  and 
cannot  pass  statutes  within  the  meaning  of  the  judiciary  act.^*^  A  statute, 
passed  by  a  political  body  before  its  admission  into  the  Union,  seems  either  not 
to  be  one,  under  the  cognizance  of  the  Union  or  its  judicial  tribunals,  by  means 
of  §  25  of  the  judiciary  act,  unless  re-enacted  or  adopted  after  becoming  a  state; 
then  it  is  treated  like  the  statute  of  any  state ;  or  the  admission  of  the  state 
into  the  Union  by  congress,  subsequently  w'ith  the  constitution  and  polit- 
ical organization  under  which  the  statute  was  passed,  must  bring  it  under  our 
consideration  as  a  statute  passed  by  the  state — a  competent  state — leaving,  as  in 
other  cases,  merely  its  subject  matter  to  be  examined  in  order  to  see  if  it  violates, 
or  not,  any  acts  or  provisions  of  the  general  government.^ ^ 

(3)  Decisions  of  Territorial  Courts. — The  jurisdiction  of  this  court  to  review 
under  the  twenty-fifth  section  of  the  judiciary  act  does  not  extend  to  those  laws 
passed  by  territorial  legislatures.*^     \\here  an  ordinance  of  the  United  States, 

77.  The  supreme  court  will  not.  when  80.  Scott  v.  Jones,  5  How.  343,  12  L.  Ed. 
requested    by    the    counsel     for    plaintiffs       181,   182. 

and    defendants    in    error,    in    a    case    in  An   objection   to   the   validity  of  a   stat- 

•which   it  has  not  jurisdiction  to  affirm   or  ute,    founded    upon    the    ground    that    the 

reverse    the   judgment    of   the   court    from  legislature  which  passed  it  were  not  com- 

which    the    same   has    been    brought    by    a  p£tent    or    duly    organized,    under    acts    of 

writ    of   error    to    a    state    court,    examine  congress    and    the    constitution,    so    as    to 

into  the   questions  in   the  case  and   decide  pass  valid  statutes,  is  not  within  the  cases 

upon   them.      Consent   will   not  give  juris-  enumerated   in   the  twenty-fifth   section  of 

diction.      When    the    act    of    congress    has  the  judiciarj'  act,  and  therefore  this  court 

so   carefully  and   cautiously  restricted   the  has  no  jurisdiction  over  the  subject.  Scott 

jurisdiction     conferred     upon     this     court,  v.  Jones.  5  How.  343,  12  L.  Ed.  ISl. 

over    the    judgments    and    decrees    of    the  81.   Scott  v.  Jones,   5   How.   343,   378,   12 

state  tribunals,  the  court  will  not  exercise  L.   Ed.  181,  197. 

jurisdiction  in  a  different  spirit.     Mills  v.  82.    Miner's    Bank   v.    Iowa.   12    How.    1. 

Brown,'  16   Pet.   525,   10  L.   Ed.   1055.  13  L.  Ed.  867;     Walker  v.  Tnylor,  5  How. 

78.  Scott    V.    Jones,    5    How.    343,    12    L.  64.   12  L.   Ed.   52. 

Ed.   181.  citing  Cherokee   Nation  v.   Geor-  The    25th    section    of    the    judiciary    act 

gia,   5   Pet.   1,   18,  8   L.   Ed.   25;      Hepburn  does     not    apply    to     the     case    where    is 

V.  Ellzey,  2  Cranch  445,  2  L.  Ed.  332;  New  drawn    in    question   the   validity   of  a   stat- 

Orleans  z'.  Winter,  1  Wheat.  91,  4  L.   Ed.  ute   of  a  territory.      Messenger  v.    Mason, 

44;     Owings  v.  Speed,  5  Wheat.  420,  5   L.  10  Wall.  507,   19  X.  Ed.   1028,  citing  Scott 

Ed.    124,    for    cases    deciding    the    meaning  v.   Jones,   5  How.  343,   375,   12   L.    Ed.   181. 

of  the   word   "state"   in    the   judiciary  act.  Where    a    bank    was    chartered    and    its 

79.  Scott  V.  Jones.  5  How.  343,  377,  12  charter  repealed  by  the  legislature  of  a 
L.  T^d.  i«i.  107.  cif'ng  Owings  v.  Speed,  territory,  the  question  of  th<"  validity  of 
5  Wheat.  420,  5  L.   Ed.  124.  the    repealing  act   cannot   be    brought   be- 


556 


APPEAL  AND  ERROR. 


then  existing,  has  been  incorporated  as  organic  law  into  the  system  of  laws  of  a 
new  territory,  with  a  provision,  however,  that  the  ordinance  should  be  subject  to 
be  altered,  modified,  or  repealed  by  its  governor  and  legislature,  the  decision  of 
the  supreme  court  of  the  state  (lately  the  territory)  cannot  be  brought  here  under 
the  25th  section,  on  the  ground  that  in  a  suit  before  it  there  was  drawn  in  question 
the  validity  of  a  statute  of  the  territory  as  being  repugnant  to  a  law  of  the  United 
States. ^3 

g.  Decision  Must  Be  That  of  "Highest  Court"  in  State. — In  General. — This 
court  has  no  power  to  review  any  other  judgments  of  the  courts  of  a  state  than 
those  of  the  highest  court  "in  which  a  decision  in  the  suit  could  be  had."^-* 

Unless  it  affirmatively  appears  from  the  record  that  a  decision  could  not 
have  been  had  in  the  highest  court  of  the  state,  a  writ  of  error  cannot  be  sus- 
tained.^" A  state  court  cannot  be  held  to  have  decided  against  a  federal  riglit  when 
it  is  tlie  circuit  court,  and  not  the  state  court,  which  has  denied  its  possession. ^'^ 

Qualifications  of  General  PoUle. — But  where  the  state  court  in  which  a  judg- 


fore  this  court  under  the  twenty-fifth  sec- 
tion of  the  judiciary  act.  The  power  of 
review  is  contined  by  that  section  to  cer- 
tain laws  passed  by  states  and  does  not 
extend  to  those  passed  by  territorial  leg- 
islatures. Miner's  Bank  v.  Iowa,  12  How. 
1.  13  L.  Ed.  867.  citing  Scott  v.  Jones,  5 
How.  343,   12    L.    Ed.   181. 

83.  Messenger  v.  Mason,  10  Wall.  507, 
19  L.    Ed.   1028. 

84.  Great  Western  Telegraph  Co.  v. 
Burnham,  162  U.  S.  339,  341,  40  L.  Ed. 
991. 

To  enable  the  supreme  court  to  review 
a  judgment  of  a  state  court,  such  judg- 
ment must  be  that  of  the  highest  state 
court  in  which  a  decision  could  be  had. 
Mullen  V.  Western  Union  Beef  Co.,  173 
U.    S.    116,    43    L.    Ed.    63.5. 

It  matters  not  that  the  judgment  of  the 
inferior  court  is  in  accordance  with  what 
was  decided  b}^  the  court  of  appeals  on 
the  former  appeal.  The  judgment  is  still 
the  judgment  of  the  superior  court,  which 
is  not  the  highest  court  of  the  state,  and 
it  might  have  been  taken  to  the  court  of 
appeals  for  review  if  the  grant  of  an  ap- 
peal had  been  appb'ed  for  and  secred. 
McComb  V.  Commissioners  of  Knox 
County,  91  U.  S.  1.  23  L.  Ed.  185;  Kim- 
ball V.  Evans,  93  U.  S.  320,  23  L.  Ed.  920; 
Davis  V.  Crouch,  94  U.  S.  514,  517,  24  L. 
Ed.  281;  Fisher  v.  Perkins,  122  U.  S. 
522,  527,   30  L.   Ed.   1192. 

If  the  proceedings  in  the  court  of  oyer 
and  terminer  could  not.  under  the  laws 
of  New  Jersey,  be  reviewed  in  a  higher 
court  of  that  state,  except  upon  the  al- 
lowance of  a  writ  of  error  by  such  court 
or  by  some  judge,  and  if  such  allowance 
was  refused,  then  the  judgment  of  the 
court  of  original  jurisdiction  was,  within 
the  meaning  of  the  acts  of  congress,  the 
judgment  of  the  highest  court  of  the 
state  in  which  a  determination  of  the 
case  could  be  had,  and  such  judgment 
could  have  been,  upon  writ  of  error,  re- 
examined here,  if  it  had  denied  any  right, 
privilege,  or  immunity  specially  set  up 
and  claimed  under  the  constitution  of  the 
United  States.      Gregory   v.   McVeigh,    23 


Wall.  294,  306,  23  L.  Ed.  156;  Fisher  v. 
Perkins.  122  U.  S.  522,  526,  30  L.  Ed.  1192; 
Bergemann  v.  Backer,  157  U.  S.  655,  659, 
39   L.   Ed.   845. 

Amount  in  controversy. — The  court  of 
appeals  is  the  highest  court  of  the  state 
of  Kentucky,  and  consequently,  until  it 
has  been  made  to  appear  affirmatively  on 
the  face  of  the  record  that  a  decision  in 
this  suit  could  not  have  been  had  in  that 
court,  we  are  not  authorized  to  review 
the  judgment  of  the  superior  court.  Al- 
though the  value  in  controversy  is  less 
than  $1,000,  and  the  judgment  of  the  in- 
ferior court  was  affirmed  by  the  superior 
court  without  a  dissenting  vote,  an  appeal 
did  lie  to  the  court  of  appeals  if  two  of 
the  judges  of  the  superior  court  certified 
that  in  their  opinion,  the  question  in- 
volved was  novel  and  of  sufficient  im- 
portance. 

Fisher  v.  Perkins,  122  U.  S.  522,  525. 
30  L.  Ed.  1192,  cited  in  Mullen  v.  Western 
Union  Beef  Co.,  173  U.  S.  116,  123,  43  L. 
Ed.  635.  See  Louisville,  etc.,  R.  Co.  v. 
Eubank,    184   U.   S.   27.   33,   46   L.    Ed.   416. 

For  example,  the  act  of  the  Virginia 
legislature  of  February  27th,  1867,  by 
which  it  was  enacted  that  appeals  to  the 
supreme  court  of  appeals  of  the  state 
from  the  state  district  courts  should  not 
be  allowed  when  these  last  fully  affirmed 
the  judgments  of  the  county  courts,  un- 
less the  matter  in  controversy  exceeded 
$1,000,  is  not  inconsistent  with  the  pro- 
vision in  the  constitution  of  1864,  which 
excluded  appeals  from  the  said  district 
courts  to  the  supreme  court,  except  in 
rprtain  cases  specified,  unless  the  matter 
in  controversy  amounted  to  $500.  Down- 
ham  v.  Alexandria.  9  Wall.  659,  19  L.  Ed. 
80r. 

86.  Fisher  v.  Perkins,  122  U.  S.  522,  30 
L.  Fd.  1192;  Mullen  v.  Western  Union 
Beef  Co.,  173  U.  S.  116,  123,  43  L.  Ed. 
63.5.     . 

87.  Missouri  Pac.  R.  Co.  v.  Fitzgerald, 
160  U.  S.  556.  582,  40  L.  Ed.  536,  re- 
affirmed in  Jeske  v.  Cox,  171  U.  S.  685, 
43  L.  Ed.  1179;  Nelson  v.  Moloney,  174 
U.  S.   164.  43   L.  Ed.  934. 


APPEAL  AND  ERROR. 


557 


ment  in  a  suit  is  given  is  the  higliest  court  of  law  or  equity  in  the  state  in  which  a  de- 
cision in  that  suit  can  be  had,  a  right  of  review  exists  here  under  the  25th  section  of 
the  judiciary  act  (if  the  case  be  otherwise  one  for  review  here  under  that  section), 
ahhough  that  court  may  not  be  actually  the  highest  court  of  law  or  equity  in  the 
state.*^  In  other  words,  this  court  has  jurisdiction,  upon  writ  of  error,  to  re-ex- 
amine the  final  judgment  of  a  subordinate  state  court  denying  a  federal  right, 
specially  set  up  or  claimed,  if,  under  the  local  law,  that  court  is  the  highest  court 
of  the  state  entitled  to  pass  upon  such  claim  of  federal  right. ^9     But  it  does  not 

The  superior  court  of  New  York  being 
the  highest  court  to  which  the  case  could 
be  carried,  a  writ  of  error  lies  to  examine 
its  judgment,  under  the  25th  section  of 
the  judiciary  act.  Kanouse  v.  INIartin,  15 
How.  198,  14  L.   Ed.  660. 

Rhode  Island. — In  Olney  v.  Arnold,  3 
Dall.  308,  318,  1  L.  Ed.  614,  it  was  said: 
"The  superior  court  of  Rhode  Island,  on 
whose  judgment  this  writ  of  error  is 
brought,  is  the  highest  court  of  law  of 
that  state,  within  the  meaning  of  the  25th 
section  of  the  judicial  act.  The  general 
assembly  might  set  aside,  but  they  could 
not  make,  a  decision." 

Louisiana. — This  court  cannot  review  a 
judgment  of  the  parish  court  of  New  Or- 
leans, for  any  irregularity  or  illegality  in 
the  proceedings  of  that  court,  if  either 
existed,  when  there  could  have  been  an 
appeal  to  the  supreme  court  of  Louisiana 
for  its  correction.  "This  court  has  never 
done  so  in  any  case  in  which  the  subject 
matter  of  a  suit,  being  within  the  juris- 
diction of  a  state  court,  upon  the  allega- 
tion that  its  judgment  had  been  given 
contrary  to  the  law  of  a  state.  See  the 
cases  of  Fouvergne  v.  New  Orleans,  18 
How.  470.  471,  15  L.  Ed.  399;  Gaines  v. 
Chew,  2  How.  619.  644.  11  L.  Ed.  402;  and 
Tarver  v.  Tarver,  9  Pet.  174,  9  L.  Ed.  91." 
Adams  v.  Preston,  22  How.  473,  16  L.  Ed. 
273. 

Texas.- — Where  an  application  was  made 
to  the  supreme  court  of  the  state  of  Texas 
for  a  writ  of  error  to  the  court  of  civil 
appeals  for  the  second  district  by  the 
defendants  in  the  court  below  after  judg- 
ment in  the  latter  court,  for  the  purpose 
of  reviewing  the  judgment  of  that  court, 
but  the  supreme  court  denied  the  appli- 
cation and  thus  prevented  by  its  action  a 
review  by  it  of  the  judgment  of  the  court 
of  civil  appeals,  the  judgment  of  that 
court  has,  therefore,  become  the  judg- 
ment of  the  highest  court  of  the  state  in 
which  a  decision  in  the  suit  could  be  had, 
and  this  court  may,  so  far  as  this  point 
is  concerned,  re-examine  the  same  on 
writ  of  error  under  the  provisions  of  § 
709.  Revised  Statutes  of  the  United  States. 
Gregory  v.  McVeigh,  23  Wall.  294,  23  L. 
Ed.  156;  Fisher  v.  Perkins,  122  U.  S. 
522.  30  L.  Ed.  1192;  Stanley  r.  Schwalby, 
162  U.  S.  255.  40  L.  Ed.  960;  Bacon  v. 
Texas,   163   U.   S.   207.  215,   41    L.    Ed.    132. 

89.  Kentucky  v.  Powers,  201  U.  S.  1.  50 
L.  Ed.  633,  citing  Cohen  v.  Virginia,  6 
Wheat.  264,  5  L.  Ed.  257;  Downham  v. 
Alexandria,    9    Wall.    659.    19    L.    Ed.    807; 


88.  Downham  v.  Alexandria,  9  Wall. 
659,   19   L.    Ed.   807. 

A  writ  of  error  will  lie  from  the  su- 
preme court  of  the  United  States  to  re- 
view the  judgments  or  decrees  of  an  in- 
ferior State  court,  if  the  judgment  is  of 
the  highest  court  of  the  state  in  which  a 
decision  could  be  had,  provided,  of  course, 
a  federal  question  was  raised  for  adjudi- 
cation, or  was  adjudicated  by  the  state 
court,  and  the  decision  of  such  inferior 
state  court  was  against  the  right  claimed. 
Gregory  v.  McVeigh,  23  Wall.  294,  23  L. 
Ed.  156. 

Where  it  has  been  decided  by  the  high- 
est court  of  the  state  that  the  action  of 
the  trial  court  in  refusing  to  quash  the 
indictment  or  the  panel  of  petit  jurors 
cannot  be  reviewed  bj'^  any  appellate  court 
under  the  laws  of  the  state,  although  the 
motion  to  quash  was  based  on  federal 
grounds,  then  after  the  highest  appellate 
court  of  the  state  has  disposed  of  the 
matters  of  which  it  may  take  cognizance, 
a  writ  of  error  will  run  from  this  court  to 
the  highest  court  in  the  state  in  which  the 
decision  of  the  federal  question  may  be 
had;  and  this  court  can  review  the  judg- 
ment of  the  trial  court  upon  such  writ 
of  error,  and  will  exercise  such  jurisdic- 
tion as  may  be  necessary,  to  vindicate  any 
federal  right,  privilege  or  immunity,  spe- 
cially set  up  and  denied.  Kentucky  v. 
Powers,  201  U.  S.  1,  50  L.  Ed.  633.  citing 
Cohens  v.  Virginia.  6  Wheat.  264.  5  L. 
Ed.  257;  Downham  v.  Alexandria.  9  Wall. 
659,  19  L.  Ed.  807;  Gregory  v.  McVeigh, 
23  Wall.  294.  306.  23  L.  Ed.  156;  Berge- 
tnann  r.  Backer,  157  U.  S.  655,  6.59.  39  L.  Ed. 
845;  Missouri,  etc..  R.  Co.  r.  Elliott.  184 
U.  S.  530.  539,  46  L.   Ed.  673. 

Virginia. — "A  final  judgment  or  decree 
in  any  suit,  in  the  highest  court  of  a 
state  in  which  a  decision  in  the  suit  could 
be  had."  may.  in  a  proper  case,  be  re- 
examined in  this  court.  Revised  Statutes, 
§  709.  The  court  of  appeals  is  the  highest 
court  in  the  state  of  Virginia.  If  a  de- 
cision of  a  suit  could  be  had  in  that  court. 
we  must  wait  for  such  a  decision  before 
we  can  take  jurisdiction,  and  then  can 
only  examine  the  judgment  of  that  court. 
If,  however,  the  suit  is  one  of  which 
that  court  cannot  take  jurisdiction,  we 
niay  re-examine  the  judgment  of  the 
highest  court  which,  under  laws  of  the 
state,  could  decide  it.  Downham  v.  Al- 
exandria. 9  Wall.  659.  19  L.  Ed.  807;  Greg- 
ory V.  McVeigh,  23  Wall.  294,  305.  23  L. 
Ed.  156. 


558 


APPEAL  AND  ERROR. 


matter  that  the  judgment  was  rendered  in  an  original  proceeding  in  the  state 
court,  and  not  in  a  case  pending  before  that  court  on  appeal.  "It  is  enough  for 
our  jurisdiction  that  the  judgment  is  by  the  highest  tribunal  of  the  state  in  which 
a  decision  could  be  had  in  the  suit.  When  such  a  judgment  is  brought  before 
us  for  review,  involving  in  its  rendition  a  decision  upon  a  federal  question,  we  do 
not  look  beyond  the  action  of  that  court.  It  is  enough  that  we  have  its  final  judg- 
ment in  the  case,  whether  it  be  one  of  original  jurisdiction  or  heard  by  it  in  the 
exercise  of  its  own  appellate  power  over  the  inferior  courts  of  the  state."^^ 

h.  What  Is  the  Assertion  of  "A  Right  or  Immunity." — Section  709  of  the  Re- 
vised Statutes  authorizes  this  court  to  re-examine  the  final  judgment  of  the  high- 
est court  of  a  state,  "where  any  title,  right,  privilege  or  immunity"  is  claimed  under 
a  statute  of  the  United  States,  and  the  decision  is  against  such  title,  right,  priv- 
ilege, or  immunity  specially  set  up  or  claimed. ^^  A  party  who  insists  that  a  judg- 
ment cannot  be  rendered  against  him  consistently  widi  the  statutes  of  the  United 
States  may  be  fairly  held,  within  the  meaning  of  §  70),  to  assert  a  right  artd  im- 
munity under  such  statutes,  although  the  statutes  may  not  give  the  party  him- 
self a  personal  or  affirmative  right  that  could  be  enforced  by  direct  suit  against 
his  adversary. ^2 


Gregory  v.  McVeigh.  23  Wall.  294,  306, 
23  L.  Ed.  156,  157;  Bergemann  v.  Backer. 
157  U.  S.  655,  659,  39  L.  Ed.  845,  848; 
Missouri,  etc..  R.  Co.  v.  Elliott,  184  U.  S. 
530,   549,   46   L.    Ed.    673.   678. 

90.  Hartman  v.  Greenhow,  102  U.  S. 
€72,  676,  26  L.  Ed.  271. 

91.  Rector  v.  City  Deposit  Bank  Co., 
200  U.  S.  405,  50  L.  Ed.  527;  Nutt  ^■.  Knut, 
200   U.   S.   12,   19,   50   L.    Ed.   348. 

92.  Logan  County  Nat.  Bank  v.  Town- 
send,  139  U.  S.  67,  72.  35  L-  Ed.  107; 
Railroads  v.  Richmond,  15  Wall.  3,  21  L. 
Ed.  118;  Swope  v.  Leffingwell,  105  U. 
S.  3,  26  L.  Ed.  '939;  Anderson  v.  Carkins, 
135  U.  S.  483,  486.  34  L.  Ed.  272;  McNulta 
V.  Lochridge,  141  U.  S.  327.  35  L.  Ed. 
796;  Metropolitan  Bank  v.  Claggett,  141 
U.  S.  520,  35  L.  Ed.  841;  McCormick  V. 
Market  Bank,  165  U.  S.  538,  546,  41  L.  Ed. 
817;  California  Bank  v.  Kennedy,  167  U. 
S.  362,  42  L.  Ed.  198;  Nutt  v.  Knut.  200 
U.  S.  12,  ]9,  50  L.  Ed.  348;  Illinois  Cen- 
tral R.  Co.  V.  McKendree,  203  U.  S.  514, 
526.  51  L.  Ed.  298,  reaffirmed  in  Illinois 
Central  R.  Co.  v.  Edwards,  203  U.  S.  531, 
51  L.  Ed.  305;  Eau  Claire  National  Bank 
V.  Jackman,  204  U.  S.  522,  532.  51  L.  Ed. 
596;  Rector  v.  Citv  Deposit  Bank  Co.,  200 
U.  S.  405.  50  L.   Ed.   527. 

Denial  of  right  under  bankrupt  act. — A 
motion  is  made  to  dismiss  on  the  ground 
that  the  record  presents  nothing  but  ques- 
tions of  fact.  It  is  contended  that  neither 
in  the  pleadings  of  the  bank  nor  in  any 
way  was  any  right,  privilege  or  immunity 
under  a  federal  statute  specifically  set  up 
or  claimed  in  the  state  courts.  The  only 
questions  presented  by  the  pleadings,  it  is 
urged,  were,  did  the  bankrupt  give  the 
bank  a  preference,  and  did  the  bank  ac- 
cept it  with  reasonable  grounds  to  believe 
that  a  preference  was  int.ended?  The  su- 
preme court,  however,  considered  the 
pleadings  to  have  broader  meaning,  and 
answered  some  of  the  contentions  of  the 
bank   by   the   construction   it   gave   to   the 


bankrupt  act.  The  case,  therefore,  comes 
within  the  ruling  in  Nut  v.  Knut,  200 
U.  S.  12,  50  L.  Ed.  348;  Eau  Claire  Na- 
tional Bank  v.  Jackman,  204  U.  S.  522,  531, 
51    L.    Ed.    596. 

Claim  of  right  under  order  of  secretary 
of  agriculture. — An  inspection  of  the  rec- 
ord shows  that  the  case  as  made  by  the 
plaintiff  below  upon  the  amended  petition 
was  to  recover  damages  for  the  infection 
of  his  cattle,  because  of  coming  in  con- 
tact with  cattle  transported  by  the  rail- 
road company  from  a  point  south  to  a 
point  north  of  the  quarantine  line  estab- 
lished by  the  secretary  of  agriculture,  in 
a  manner  violative  of  regulations  for  the 
transportation  and  keeping  of  cattle  es- 
tablished by  the  secretary's  order.  It  was 
not  an  action  to  recover  for  negligence 
upon  common-law  principles.  The  com- 
plaint was  amend€d  in  such  form  as  to 
count  upon  the  supposed  right  of  action 
accruing  to  the  plaintiff  because  of  the 
violation  of  the  department's  order.  The 
demurrer  of  the  plaintiflF  to  the  answer 
of  the  railroad  company,  setting  forth  the 
unconstitutionality  of  the  law  and  the 
action  of  the  secretary  thereunder,  was 
sustained.  The  certificate  of  the  court 
below  is  given  as  to  the  extent  arui  char- 
acter of  the  federal  rights  and  immunities 
claimed  by  the  defendant,  and  clearly 
states  that  the  defendant  alleged  the  un- 
constitutionality of  the  statute  and  order, 
that  the  order  was  in  excess  of  the  power 
given  the  secretary,  and  that  the  statute 
gave  no  remedy  in  damages.  "Upon  this 
record,  read  in  the  light  of  the  certificate, 
the  defendant  raised  federal  questions  as 
to  the  constitutionality  of  the  law,  and,  if 
constitutional,  whether  the  secretary's  or- 
der was  with  the  power  therein  conferred, 
and  the  right  to  a  personal  action  for 
damages  in  such  manner  as  to  give  this 
court  jurisdiction  of  them  under  §  709, 
Rev.  Stat."  Illinois  Central  R.  Co.  v. 
McKendree,  203   U.  S-   514,   525,  51  L-  Ed. 


APPEAL  AXD  ERROR. 


559 


i.  Decisions  Rcviczvahle — (1)  In  General — "There  is  no  material  difference 
between  the  language  of  the  law  giving  the  writ  of  error  from  the  judgment  of 
the  circuit  court  for  the  District  of  Columbia,  and  the  language  used  in  the  22J 
and  25th  sections  of  the  act  of  1789,  so  far  as  relates  to  the  form  of  proceedings, 
and  the  nature  of  the  judgment.  Undoubtedly,  there  are  a  multitude  of  cases  in 
which  a  writ  of  error  will  lie  from  the  judgment  of  a  circuit  court,  where  it  would 
not  lie  to  this  court  from  a  judgment  rendered  in  a  similar  controversy  in  a  state 
court.  But  our  present  inquiry  has  nothing  to  do  with  that  distinction.  We  are 
speaking  merely  of  the  nature  of  the  proceeding  in  this  case,  and  examining 
whether  it  is  of  that  description  that,  under  the  25th  section  of  the  act  of  \7%\), 
will  authorize  a  writ  of  error.  The  writ  in  that  section  is  given  from  any  'final 
judgment'  'in  a  suit.'  In  the  act  relating  to  the  District  of  Columbia,  it  is  given 
from  any  'final  judgment.'  In  the  22d  section  of  the  act  of  1789,  it  is  given  from 
'final  judgment"  'in  civil  actions.'  These  different  forms  of  expression  have  al- 
ways been  held  to  mean  the  same  thing;  and  consequently,  the  decision  of  this 
court  upon  one  of  them  is  equally  applicable  to  the  others. '"''•^ 

(2)  Necessity  for  Finality  of  Jndqnicnt  or  Decrec.^^ — Final  judgments  and  de- 
crees onlv  of  a  state  court  are  re-examinable  in  this  court. ^-^      But  where  the  defend- 


298,  reaffirmed  in  Illinois  Central  R.  Co. 
V.  Edwards.  203  U.  S.  531,  51  L.  Ed.  305. 
followins?  Xiitt  z'.  Knnt.  200  U.  S.  12.  50 
L.   Ed.    348. 

93.  Holmes  f.  Jennison,  14  Pet.  540.  565, 
10   L.    Ed.    579. 

94.  As  there  is  in  the  main  nothing  pe- 
culiar about  the  rules  governing  the  final- 
ity of  judgments  and  decrees  within  the 
meaning  of  this  statute,  reference  is  made 
to  "Decisions  Reviewable."  IV,  for  a 
complete  treatment. 

95.  Steines  v.  Franklin  County.  14  Wall. 
15,  20,  20  L.  Ed.  846;  Rev.  Stat..  §  709; 
Davis  V.  Crouch.  94  U.  S.  514.  517,  24  L. 
Ed.  281;  McCulloch  v.  Maryland,  4  Wheat. 
316,  4  L.  Ed.  579;  Houston  r.  Moore,  3 
Wheat.  433.  4  L.  Ed.  428;  Kimball  v.  Ev- 
ans, 93  U.  S.  320,  23  L.  Ed.  920;  Drake  v. 
Kochersperger,  170  U.  S.  30.i.  42  L.  x^d. 
1046;  Hammon  v.  Whittredge,  204  U.  S. 
538,  51  L.  Ed.  606;  Goodenough  Horse- 
shoe Co.  v.  Rhode  Island  Horseshoe  Co., 
154  U.   S.  635,  24  L.  Ed.  368. 

A  writ  of  error  can  only  issue  from  this 
court  to  the  highest  court  of  a  state  for 
a  review  of  the  final  judgment  or  decree 
of  that  court  in  a  suit.  In  other  words,  it 
is  onlj'  the  last  judgment  or  the  last  de- 
cree which  the  state  courts  can  give  in  a 
suit,  until  that  judgment  or  decree  is  set 
aside  or  reversed,  that  this  court  can, 
even  in  the  prescribed  cases,  bring  here 
for  re-examination.  Parcels  v.  Johnson, 
'2ii  Wall.   653.  654.  22   L.   Ed.   410. 

Both  the  judiciary  act  of  1789,  §  25.  1 
Stat,  at  L.  85,  and  the  amendatory  act  of 
1867,  Brown  r.  Union  Bank  of  Florida,  4 
How.  465,  11  L.  Ed.  1058;  Pepper  r.  Dun- 
lap,  5  How.  51.  12  L.  Ed.  46;  Tracy  v. 
Holcombe,  24  How.  426.  16  L.  Ed.  742. 
Itmit  the  jurisdiction  of  this  court  in  this 
class  of  cases  to  final  judgments  and  Me- 
crees.  Moore  v.  Robbins,  18  Wall.  588, 
2]  L.  Ed.  7.58. 

Under  the  25th  section  of  the  judiciary 


act,  a  judgment  cannot  be  regarded  as  fi- 
nal, in  the  sense  of  that  act,  until  entered 
in  the  court  froin  which  execution  can 
issue.  Green  v.  Van  Buskirk,  3  Wall.  448, 
18  L.  Ed.  245. 

The  words  "final  judgment,"  in  the 
25th  section  of  the  judiciary  act,  must  be 
understood  in  the  section  under  consider- 
ation as  applying  to  all  judgments  and  de- 
crees which  determine  the  particular 
cause;  and  it  is  not  required  that  such 
judgments  shall  finally  decide  upon  the 
rights  which  are  litigated,  that  the  same 
shall  be  within  purview  of  the  section. 
Weston  z\  Charleston,  2  Pet.  449,  7  L.  Ed. 
481. 

In  the  case  of  Weston  z'.  Charleston.  2 
Pet.  449,  464,  7  L.  Ed.  481,  this  court, 
speaking  of  the  meaning  of  the  word  fi- 
nal, in  the  section  in  question,  say:  "If 
it  (the  word  final)  were  applicable  to 
those  judgments  and  decrees  only  in 
which  the  right  was  finally  decided,  and 
could  never  again  be  litigated  between 
the  parties,  the  provisions  of  the  section 
would  be  confined  within  much  narrower 
limits  than  the  words  import,  or  than 
congress  could  have  intended.  Judg- 
ments and  actions  of  ejectment,  and 
decrees  in  chancery,  dismissing  a 
bill  without  prejudice,  however  deeply 
they  might  affect  rights  protected  by  the 
constitution,  laws  or  treaties  of  the 
United  States,  would  not  be  subject  to 
tlie  revision  of  this  court.  A  prohibition 
might  issue,  restraining  a  collector  from 
collecting  duties;  and  this  court  would  not 
revise  and  correct  the  judgment.  The 
word  'final'  must  be  understood  in  the 
section  under  consideration,  as  applying 
to  all  judgments  and  decrees  which  deter- 
mine the  p''rticular  cause."  Cited  in 
Holmes  t'.  Jennison.  14  Pet.  540,  563.  10 
L.    Ed.   579. 

Order  remanding  cause  to  state  court. — 
"In  Missouri  Pac.  R.  Co.  v.  Fitzgerald 
(1896),    160    U.    S.    556,   583,   40  L.    Ed.   536; 


S60 


AFFBAL  AAV  ERROR. 


ant  in  error  moves  to  dismiss  an  appeal  from  the  state  court  on  the  ground  that 
tlie  judgment  recovered  is  not  final,  the  motion  to  dismiss  will  be  denied  if  the 
judgment  appears  to  have  been  considered  by  the  state  court  as  so  far  final  as  to 
justify  an  appeal  from  it;  in  other  words,  if  the  supreme  court  of  a  state  holds 
a  judgment  of  an  inferior  court  of  the  state  to  be  final,  this  court  can  hardly  con- 
sider it  in  any  other  light,  in  exercising  its  appellate  jurisdiction. 9*^ 

Judgments  of  Affirmance. — It  has  long  been  settled,  that  if  a  cause  cannot  be 
taken  to  the  highest  court  of  a  state,  except  by. leave  of  the  court  itself,  a  refusal 
of  the  court  upon  proper  application  made  to  grant  the  leave,  is  equivalent  to  a 
judgment  of  affirmance,  and  is  such  a  final  judgment  as  may  be  made  the  basis 
of  proceedings  under  the  appellate  jurisdiction  of  this  court.^'^  Where  the  high- 
est court  of  a  state  pffirmed  the  judgment  of  the  court  below,  in  conser[uence  of 
an  equal  division  between  the  judges  thereof,  such  judgment  of  affirmance  is  con- 
sidered, when  the  case  is  brought  here  under  the  twenty-fifth  section  of  the  ju- 
diciary act,  as  an  affirmance  of  the  rulings  of  the  court  below. ^^ 

(3)  Orders  at  Chambers. — Since  under  §  709  this  court  is  given  authority  to 
review  only  the  judgments  or  decrees  of  the  highest  court  of  the  state,  and,  as  a 
writ  of  error  from  this  court  can  only  go  to  the  highest  court  of  the  state,  it  fol- 
lows by  analogy  that  it  will  not  lie  to  review  the  order  of  a  judge  at  chambers.^* 

j.  Plaintiff  in  Error  Must  Have  Personal  Interest  in  the  Litigation — In  Gen- 
eral.— The  prime  object  of  all  litigation  is  to  establish  a  right  asserted  by  the 
plaintiff  or  to  sustain  a  defense  set  up  by  the  party  pursued.  Save  in  a  few  in- 
stances where,  by  statute  or  the  settled  practice  of  the  courts,  the  plaintiff  is  per- 
mitted to  sue  for  the  benefit  of  another,  he  is  bound  to  show  an  interest  in  the 


in  a  careful  opinion  of  the  chief  justice, 
reviewing  the  statutes  and  decisions,  it 
was  again  stated,  as  well  settled,  that  an 
order  of  the  circuit  court  of  the  United 
States  ordering  a  suit  to  be  remanded  to 
the  state  court  was  not  a  final  judgment 
or  decree;  and  that  such  an  order  could 
not  be  reviewed  in  this  court  by  any  di- 
rect proceeding  for  that  purpose;  and  it 
was  also  held,  that  'as  under  the  statute 
a  remanding  order  of  the  circuit  court  is 
not  reviewable  by  this  court  on  appeal  or 
writ  of  error  or  to  that  court,  so  it  would 
seem  to  follow  that  it  cannot  be  reviewed 
on  writ  of  error  to  a  state  court,  the  pro- 
hibition being  that  "no  appeal  or  writ  of 
error  from  the  decision  of  the  circuit 
court  remanding  such  cause  shall  be  al- 
lowed." And  it  is  entirely  clear  that  a 
writ  of  error  cannot  be  maintained  under 
§  709,  in  respect  of  such  an  order,  where 
the  state  court  has  rendered  no  decision 
against  a  federal  right,  but  simply  ac- 
cepted the  conclusion  of  the  circuit 
court.' "  German  Nat.  Bank  v.  Speckert, 
18t  U.  S.  405.  408.   45   L.  Ed.  926. 

Motion  for  new  trial  before  entry  of 
judgment  on  verdict. — A  record  in  a  state 
court  which  shows  a  verdict  and  motion 
for  new  trial  overruled,  but  no  judgment 
on  the  verdict,  shows  no  final  judgment 
to  which  a  writ  of  error  may  be  directed. 
Nat.  Life  Ins.  Co.  v.  Scheffer,  131  U.  S.. 
appx.   cciii,  26  L.  Ed.   1110. 

96.  Wheeling,  etc.,  Bridge  Co.  v.  Wlieel- 
ing  Bridge  Co..  138  U.  S.  287,  34  L.  Ed. 
967. 

97.  Richmond,  etc.,  R.  Co.  v.  Louisa  R. 
Co.,  13  How.  71,  80,  14  L.  Ed.  55;  Gregory 
V.   McVeigh,   23   Wall.   294,  306,   23    L.   Ed. 


156;    Williams    v.    Bruffy.    102    U.    S.    248, 
254.  26  L.    Ed.    135. 

98.  Lessieur  v.  Price,  12  How.  59.  60,  13 
L.  Ed.  893. 

A  judgment  of  the  highest  court  of  a 
state  entered  upon  an  equal  division  of 
opinion  amongst  tlie  judges,  is  such  a  fi- 
nal adjudication  of  the  state  court  as  can 
be  reviewed  by  this  court.  Nor  does  it 
matter  that  the  judgment  was  rendered 
in  an  original  proceeding  in  the  state 
court,  and  not  in  a  case  pending  before 
tliat  court  on  appeal.  It  is  enough  for 
our  jurisdiction  that  the  judgment  was 
by  the  highest  tribunal  of  the  state  in 
which  a  decision  could  be  had  in  the  suit. 
It  is  enough  that  we  have  its  final  judg- 
ment in  the  case,  whether  it  be  of  original 
jurisdiction  or  heard  by  it  in  the  exercise 
of  its  own  appellate  power  over  the  infe- 
rior courts  of  the  state.  Hartman  v. 
Greenhow,  102  U.  S.  672.  26  L.  Ed.  271, 
citing  Lessieur  v.  Price,  12  How.  59,  13 
L.  Ed.  893;  Durant  v.  Essex  Countv.  7 
Wall.  107,  ]9  L.  Ed.  154;  S.  C,  101  U.  S. 
555,    25    L.    Ed.    961. 

99.  AIcKnight  v.  James.  155  U.  S.  685. 
39  L.    Ed.  310. 

As  under  §  709  of  the  Revised  Statutes, 
a  writ  of  error  will  go  from  this  court 
only  to  the  final  judgment  of  the  highest 
court  of  the  state  in  which  a  decision  in 
the  suit  can  be  had,  this  court  has  no  ju- 
risdiction to  review  an  order  of  a  judge 
at  chambers  remanding  a  prisoner  in  a 
habeas  corpus  proceeding,  because  this 
cannot  be  regarded  as  a  judgment  or  de- 
cree of  a  court  within  the  meaning  of  that 
section.  McKnight  v.  James,  155  U.  S. 
685.  39   L.   Ed.   310. 


APPEAL  AND  ERROR. 


561 


suit  personal  to  himself,  and  even  in  a  proceeding  which  he  prosecutes  for  the 
benefit  of  the  pubHc,  as,  for  example,  in  cases  of  nuisance,  he  must  generally  aver 
an  injury  peculiar  to  himself,  as  distinguished  from  the  great  body  of  his  fellow 
citizens. 1  Actions  instituted  in  the  supreme  court  of  the  United  States  by  writ 
of  error  to  a  state  court  are  no  exceptions  to  this  rule. 2  Therefore,  to  give  juris- 
diction to  this  court  over  the  decision  of  a  state  court  under  the  25th  section  or  § 
709  of  the  judiciary  act,  the  party  must  claim  for  himself  and  not  for  a  third 
person,  in  whose  title  he  has  no  interest.^     That  title  or  right  must  be  one  of  the 


1.  Tyler  z'.  Judges  of  Court  of  Regis- 
tration, 179  U.  S.  405,  406,  45  L.  Ed.  ;.'52, 
reaffirmed  in  Bigger  v.  Ryher.  184  U.  S. 
696,   46   L.    Ed.   763. 

2.  Tyler  z'.  Judges  of  Court  of  Regis- 
tration, 179  U.  S.  405,  45  L.  Ed.  252. 

3.  Hale  v.  Gaines,  22  How.  144,  160,  16 
L.  Ed.  264,  citing  Henderson  v.  Tennes- 
see, 10  How.  311,  323.  13  L.  Ed.  434;  Ver- 
den  V.  Coleman,  1  Black  472,  474,  17  L. 
Ed.  161;  Long  V.  Converse,  91  U.  S.  105. 
114,  23  L.  Ed.  233;  Wynn  n.  Morris,  20 
How.  3,  5.  15  L.  Ed.  800;  Carson  v.  Ober, 
131  U.  S.,  appx.  clx,  25  L.  Ed.  1157;  Mil- 
ler V.  Lancaster  Bank,  106  U.  S.  542,  545,  27 
L.  Ed.  289;  Smith  v.  Indiana,  191  U.  S. 
138,  48  L.  Ed.  125;  Ludeling  v.  Chaflfe.  143 
U.  S.  301,  36  L.  Ed.  313;  Giles  v.  Little. 
134  U.  S.  645,  33  L-  Ed.  1062;  Texas,  etc., 
R.  Co.  V.  Johnson,  151  U.  S.  81.  90,  38  L. 
Ed.  81;  Waters-Pierce  Oil  Co.  v.  Texas, 
177  U.  S.  28,  43,  44  L.  Ed.  657;  Clark  v. 
Kansas  Citv.  176  U.  S.  114,  44  L.  Ed.  392; 
Tullis  v.  Lake  Erie,  etc.,  R.  Co..  175  U. 
S.   348,   44   L.   Ed.    192. 

In  Montgomery  v.  Hernandez,  12 
Wheat.  129,  6  L.  Ed.  575,  it  is  said  that 
"the  supreme  court  has  no  jurisdiction  un- 
der the  twenty-fifth  section  of  the  judiciary 
act  unless  the  right,  title,  privilege  or  ex- 
emption under  a  statute  or  commission 
of  the  United  States  be  specially  set  up, 
by  the  party  claiming  it,  in  the  state 
court,  and  the  decision  be  against  the 
same."  Smith  z\  Hunter,  7  How.  738.  743. 
12  L.    Ed.   894.   896. 

Under  the  25th  section  of  the  judiciary 
act  of  1789,  ch.  20,  this  court  has  no  ap- 
pellate jurisdiction  from  the  final  judg- 
ment of  the  highest  court  of  a  state, 
in  a  suit  where  is  drawn  in  question 
the  construction  of  a  statute  of,  or  a  com- 
mission held  under,  the  United  States, 
unless  some  title,  right,  privilege,  or 
exemption,  under  such  statute,  etc..  be 
specially  set  up  by  the  party,  and 
the  decision  be  against  the  claim  so  made 
by  him.  Montgon-ery  v.  Hernandez,  12 
Wheat.   129,  6   L.   Ed.  575. 

This  court  has  no  jurisdiction  to  review 
the  decision  of  a  state  court  against  a 
right  and  a  title  under  a  statute  of  the 
United  States,  unless  such  right  and  title 
be  specially  set  up  and  claimed  bj'  the 
party  for  himself,  and  not  for  a  third  per- 
son under  whom  he  does  not  claim.  So 
far  as  it  relates  to  the  above  point,  §  709 
of  the  Revised  Statutes,  which  authorizes 

1  U  S  Enc— 36 


this  court,  in  certain  cases,  to  re-examine 
upon  a  writ  of  error  the  judgment  or  de- 
cree of  a  state  court,  does  not  differ  from 
the  twenty-fifth  section  of  the  judiciary 
act  of  1789.  Long  v.  Converse,  91  U.  S. 
105,  23  L.  Ed.  233.  citing  Henderson  v. 
Tennessee,  10  How.  311,  13  L.  Ed.  434; 
Hale  V.  Gaines.  22  How.  144,  149,  16  L. 
Ed.  264;  Verden  v.  Coleman,  1  Black  472, 
17  L.   Ed.   161. 

The  plaintiff  in  error  must  claim  (for 
himself)  some  title,  right,  privilege  or  ex- 
emption, under  an  act  of  congress,  etc., 
and  the  decision  must  be  against  his 
claim,  to  give  this  court  jurisdiction.  Set- 
ting up  a  title  in  the  United  States,  by 
way  of  defense,  is  not  claiming  a  per- 
sonal interest  affecting  the  subject  in  lit- 
igation. This  is  the  established  construc- 
tion of  the  25th  section  of  the  judiciary 
act.  Montgomery  v.  Hernandez,  12 
Wheat.  129,  132,  6  L.  Ed.  575;  Hale  V. 
Gaines.  22  How.  144,  16  L.  Ed.  264,  269. 

Alleging  a  title  in  the  United  States, 
by  way  of  defense,  is  not  claiming  a  per- 
sonal interest  affecting  the  subject  in  lit- 
i.c:ation,  within  25th  section  of  the  judi- 
ciary act.  Hale  v.  Gaines,  22  How.  144, 
16   L.    Ed.   264. 

If  a  state  statute,  passed  in  professed 
exercise  of  an  authority  given  by  con- 
gress to  the  states  to  pass  such  a  statute, 
does  not  deprive,  contrary  to  the  act  of 
congress,  the  party  to  the  suit,  of  any 
right,  nor  work,  as  to  him.  any  effect  which 
the  act  of  congress  forbids,  this  court  can- 
not, on  the  case  being  brought  here  by  such 
party,  on  the  ground  that  the  state  stat- 
ute violated  the  act  of  congress,  declare 
the  state  statute  void.  Nor,  in  consider- 
ing whether  the  act  does  or  does  not  do 
this,  will  this  court  enter  upon  the  ques- 
tion, whether,  in  another  case  arising 
upon  a  different  state  of  facts  from  that 
of  the  case  before  it,  the  statute  might  not 
produce  results  in  conflict  with  the  act 
of  congress,  and  which  this  court  would 
therefore  be  bound  to  revise  and  correct. 
Austin  V.  Boston,  7  Wall.  694,  19  L.  Ed. 
224. 

The  rule  that  it  is  only  the  party  whose 
right  under  the  statute  has  been  denied 
who  is  entitled  to  a  writ  of  error  to  re- 
view the  final  judgment  of  the  state  court, 
was  applied  to  a  case  in  which  a  third 
party  attempted  to  raise  an  objection  that 
a  receiver  had  been  sued  without  pri^r 
leave  of  the  court  in  contravention  of  t'^e 
act    of  congress  of  March  3,  1887,  c.  373,  24 


562 


APPEAL  AND  ERROR. 


Stat.  552.  McNulta  v.  Lochridge,  141  U. 
S.  327,  35   L.   Ed.   796. 

In  order  to  give  this  court  jurisdiction 
to  review  the  judgment  of  a  state  court 
against  a  title  or  right  set  up  or  claimed 
under  a  statute  of,  or  an  authority  exer- 
cised under,  the  United  States,  that  title 
or  right  must  be  a  title  or  right  of  the 
plaintiff  in  error  and  not  a  third  person 
•only;  and  the  statute  or  authority  must 
be  directly  in  issue.  Conde  v.  York.  168 
U.  S.  642,  648,  42  L.  Ed.  611,  reaffirmed 
in  Farmers'  National  Bank  v.  Robinson, 
176   U.   S.   681,  682,  44   L.    Ed.  637. 

Immunity  of  assignee  in  bankruptcy. — 
In  order  to  give  this  court  jurisdiction  of 
a  writ  of  error  to  review  a  judgment  of  a 
state  court  against  a  right  claimed  under 
a  statute  of  thfe  United  States,  that  right 
must  be  one  of  the  plaintiff  in  error,  and 
not  of  a  third  person  only.  Giles  v.  Lit- 
tle, 134  U.  S.  645,  33  L.  Ed.  1062.  "The 
immunity  or  privilege  of  the  assignee  in 
bankruptcy  from  being  cited  in  these  pro- 
ceedings could  only  be  set  up  by  the  as- 
signee himself,  or  by  a  person  claiming 
under  him,  and  not  by  a  person  claiming 
under  a  conveyance  from  the  bankrupt 
before  the  bankruptcy.  The  assignee, 
having  appeared  and  answered  to  the  pe- 
tition for  revival,  and  thereby  submitted 
himself  to  the  jurisdiction  of  the  state 
court,  would  have  been  bound  by  its  judg- 
ment, if  against  him.  Winchester  v. 
Heiskell,  119  U.  S.  450.  30  L.  Ed.  462; 
Adams  v.  Crittenden,  133  U.  S.  296,  33  L. 
Ed.  623.  But  he  set  up  no  title  in  himself, 
no  judgment  was  rendered  against  him, 
and  he  has  sued  out  no  writ  of  error."  Lud- 
eling  z:  Chafife,  143  U.  S.  301,  305,  36  L. 
Ed.   313. 

Immunity  of  receiver  asserted  by  cor- 
poration.— Where  an  action  is  brought  in 
a  state  court  against  a  railroad  receiver 
and  the  railway  company  to  recover  for 
personal  injuries  sustained  by  reason  of 
defects  in  the  road  sustained  during  the 
receivership,  and  the  receiver  sets  up  his 
receivership  and  discharge,  and  the  com- 
pany denies  liability  for  any  injury  sus- 
tained during  the  receivership,  and  also 
sets  up  in  defense  an  order  made  by  the 
circuit  court  requiring  the  receiver  to 
transfer  the  property  with  its  improve- 
ments to  the  company,  and  that  it  should 
be  received  by  the  company,  charged  with 
operation  liabilities,  and  subject  to  judg- 
ments to  be  rendered  in  favor  of  inter- 
veners, and  that  all  claims  against  the 
receiver  should  be  presented  within  a  cer- 
tain time  or  be  barred,  but  the  case  is  dis- 
missed as  to  the  receiver  and  judgment  is 
given  against  the  company,  which  judg- 
ment was  sustained  by  the  highest  court 
of  the  state  in  which  the  decision  could 
be  had,  it  was  held,  that  jurisdiction 
could  not  be  maintained  on  the  ground 
that  a  right  or  immunity  was  claimed  un- 
der the  authority  exercised  .by  the  receiver 
in  virtue  of  the  order  of  the  circuit  court 


of  the  United  States,  which  right  or  im- 
munity was  denied,  because  the  judgment 
was  in  favor  of  the  receiver  and  the  writ 
of  error  is  brought  by  the  company,  and 
it  is  well  settled  that  the  right  or  immu- 
nity must  be  one  of  the  plaintiff  in  error 
and  not  of  a  third  person  only.  Texas, 
etc.,  R.  Co.  V.  Johnson,  151  U.  S.  81.  38 
L.   Ed.  81. 

Impairment  of  obligation  of  contracts. 
— Whether  the  judgment  below  was  inef- 
fectual as  against  the  trustee  or  the  cred- 
itors named  in  the  conveyance,  either  for 
want  of  notice  or  because  the  conveyance 
to  them  could  not  be  set  aside,  or  whether, 
on  the  other  hand,  that  judgment  was 
valid  against  them,  because  rendered  in  a 
proceeding  in  rem  of  which  they  were 
bound  to  take  notice,  is  a  question  which 
could  be  presented  by  them  only,  and 
they  are  not  parties  to  this  writ  of  error. 
The  plaintiff  in  error  cannot  invoke  the 
judgment  of  this  court  upon  the  rights 
of  persons  under  whom  he  does  not  claim. 
Long  V.  Converse,  91  U.  S.  105,  23  L.  Ed. 
233;  Ludeling  v.  ChafFe.  143  U.  S.  301, 
305,  36  L.  Ed.  313;  Brown  v.  Smart,  145 
U.  S.  454,  459,  36  L.  Ed.  773. 

If  the  defendant  in  an  ejectment  suit 
claims  a  right  to  the  possession  of  land 
derived  under  a  title  which  springs  from 
a  reservation  in  a  treaty  between  the 
United  States  and  an  Indian  tribe,  and 
a  state  court  decides  against  the  validity 
of  such  title,  this  court  has  jurisdiction, 
under  the  twenty-fifth  section  of  the  ju- 
diciary act,  to  review  that  decision.  But 
if  such  defendant  merely  sets  up  the  title 
of  the  reservee  as  an  outstanding  title, 
and  thus  prevents  a  recovery  by  the  plain- 
tiff, without  showing  in  himself  a  con- 
nection with  the  title  of  the  reservee,  and 
then  a  state  court  decides  against  the  de- 
fendant in  the  ejectment,  this  court  has 
no  jurisdiction  to  review  that  decision. 
Henderson  v.  Tennessee,  10  How.  311,  13 
L.   Ed.  434. 

"In  Owings  v.  Norwood,  5  Cranch  344, 
3  L.  Ed.  120,  an  action  of  ejectment,  de- 
fendant set  up  an  outstanding  title  in  one 
Scarth.  a  British  subject,  who  held  a  mort- 
gage upon  the  premises.  The  decision  of 
the  court  being  adverse  to  Owings,  he 
sued  out  a  writ  of  error  from  this  court, 
contending  that  Scarth's  title  was  pro- 
tected by  the  treaty  with  Great  Britain. 
It  was  held,  that,  as  the  defendant  claimed 
no  right  under  the  treaty  himself,  and 
that  the  right  of  Scarth,  if  he  had  any,  was 
not  affected  by  the  decision  of  the  case, 
the  court  had  no  jurisdiction.  'If,'  the 
court  said,  'he  (the  defendant)  claims 
nothing  under  a  treaty,  his  title  cannot  be 
protected  by  the  treaty.  If  Scarth  or  his 
heirs  had  claimed  it  would  have  been  a 
'case  arising  under  a  treaty.  But  neither 
the  title  of  Scarth  nor  any  person  claim- 
ing under  him  can  be  affected  by  the  de- 
cision of  this  court.'  "  Tyler  v.  Judges 
of    Court   of    Registration,    179   U.    S.    405, 


APPEAL  AXD  ERROR. 


563 


407.  45  L.  Ed.  252,  reaffirmed  in  Bigger  v. 
Ryher,   184  U.  S.  696,  46  L.  Ed.  763. 

"In  Henderson  v.  Tennessee,  10  How. 
311,  13  L.  Ed.  434,  a  similar  case,  namely, 
an  action  of  ejectment,  an  outstanding 
title  in  a  third  person,  was  set  up  by  the 
defendant,  and  alleged  to  have  been  de- 
rived under  a  treaty.  The  court  held 
that  an  outstanding  title  in  a  third  person 
might  be  set  up,  and  that  the  title  set  up 
in  this  case  was  claimed  under  a  treaty, 
'but,'  said  the  court,  'to  give  this  jurisdic- 
tion to  this  court,  the  party  must  claim  for 
himself,  and  not  for  a  third  person  in 
whose  title  he  has  no  interest.  *  *  *  The 
heirs  of  Miller.'  who  claimed  under  the 
treaty,  'appear  to  have  no  interest  in  this 
suit,  nor  can  their  rights  be  affected  by 
the  decision.'  Like  rulings  were  made 
under  a  similar  state  of  facts  in  Mont- 
gomery V.  Hernandez,  12  Wheat.  129,  6 
L.  Ed.  575;  Hale  v.  Gaines.  22  How.  144, 
16  L.  Ed.  264;  Verden  v.  Coleman,  1 
Black.  472,  17  L.  Ed.  161;  and  Long  v. 
Converse.  91  U.  S.  105,  23  L.  Ed.  233." 
Tyler  v.  Judges  of  Court  of  Registration. 
179  U.  S.  405,  407,  45  L.  Ed.  252,  reaffirmed 
in  Bigger  v.  Ryher,  184  U.  S.  &96,  46  L. 
Ed.    763. 

In  an  action  of  ejectment  for  the  Hat 
Springs  in  Arkansas,  wherein  one  party 
claimed  title  tbfoiagh  a  pre-emption  claim 
which  they  were  allowed  to  enter  by  the 
register  and  receiver,  and  the  other  party 
through  a  New  Madrid  certificate,  it  was 
held,  that  whether  or  not  the  title  ac- 
quired under  the  pre-emption  is  valid, 
is  a  question  not  now  before  this 
court;  because  the  case  is  brought  up 
from  the  supreme  court  of  Arkansas  un- 
der the  twenty-fifth  section  of  the  judi- 
ciary act,  and  the  decision  of  that  court 
was  in  favor  of  the  validity  of  the  action 
of  the  register  and  receiver;  and.  more- 
over, the  opposing  party  cannot  set  up  an 
outstanding  title  in  the  United  States.  In 
order  to  bring  himself  within  the  rule  of 
that  section,  he  must  have  a  personal  in- 
terest in  the  subject  in  litigation.  "He 
relies  on  an  outstanding  title  in  the  LTnited 
States  to  defeat  the  action.  Being  a  tres- 
passer, without  a  title  in  himself,  he  can- 
not be  heard  to  set  up  such  title.  'To 
give  jurisdiction  to  this  court,  the  party 
must  claim  for  himself,  and  not  for  a 
third  person,  in  whose  title  he  has  no  in- 
terest.' Henderson  v.  Tennessee.  10  How. 
311,  323,  13  L.  Ed.  434.  The  plaintiff  in 
•error  must  claim  (for  himself)  some  title, 
right,  privilege,  or  exemption,  under  an 
act  of  congress,  etc.,  and  the  decision 
must  be  against  his  claim,  to  give  this 
court  jurisdiction.  Setting  up  a  title  in 
the  United  States,  by  way  of  defense,  is 
not  claiming  a  personal  interest  affecting 
the  subject  in  litigation.  This  is  the  es- 
tablished construction  of  the  25th  section 
of  the  judiciary  act.  Montgomery  v.  Her- 
nandez, 12  Wheat.  129,  132,  6  L.  Ed.  575." 
Hale  V.  Gaines.  22  How.  144,  160,  16  L. 
Ed.  264. 


Treaties. — The  party  prosecuting  the 
writ  must  have  claimed  title  for  himsctf 
under  the  treaty;  a  claim  for  a  third  per- 
son is  not  sufficient.  Owings  v.  Nor- 
wood, 5  Cranch  344,  3  L.  Ed.  120;  Verden 
v.  Coleman,  1  Black  472.  17  L.  Ed.  161; 
Maney  v.  Porter,  4  How.  55,  11  L.  Ed. 
873. 

As  early  as  1809  it  was  held,  by  this 
court,  in  Owings  v.  Norwood.  5  Cranch 
.■)44,  3  L.  Ed.  120,  that  in  order  to  give  us 
jurisdiction  in  this  class  of  cases  the 
right,  title,  or  immunity  which  is  denied 
must  grow  out  of  the  constitution,  or  a 
treaty  or  statute  of  the  United  States  re- 
lied on.  Under  this  rule  jurisdiction  was 
not  taken  in  that  case,  although  it  was 
an  action  of  ejectment  by  Norwood's  les- 
see, and  the  record  showed  that  a-n  effort 
was,  made  to  defeat  the  recovery  because 
of  an  outstanding  title  in  a  third  person 
adverse  to  Norwood  and  protected  by  a 
treaty.  Mr.  Chief  Justice  MarshaH,  ia 
speaking  for  the  court,  said:  "Whenever 
a  right  grows  out  of,  or  is  protected  by, 
a  treaty,  it  is  sanctioned  against  aM  the 
laws  and  judicial  decisions  of  the  states; 
and  whoever  may  have  this  right  is  to  be 
protected.  But  if  the  person's  title  is  not 
affected  by  the  treaty,  or  if  he  cUmbis 
nothing  under  a  treaty,  his  title  cannot 
be  protected  by  the  treaty."  The  prin- 
ciple thus  announced  has  been  recogni^d 
in  manj'  cases  since.  Montgomery  v.  Her- 
nandez, 12  Wheat.  129,  6  L.  Ed.  575;  Hean- 
derson  v.  Tennessee.  10  How.  311,  13  L. 
Ed.  434;  Wynn  v.  Morris,  20  How.  3,  15 
L.  Ed.  800;  Hale  v.  Gaines,  22  How.  144. 
16  L.  Ed.  264;  Verden  v.  Coleman,  1 
Black  472,  17  L.  Ed.  161;  Long  z:  CcKi- 
verse,  91  U.  S.  105,  23  L.  Ed.  233;  Mil4er 
V.  Lancaster  Bank,  106  U.  S.  542,  544, 
27    L.    Ed.   289. 

Proceedings  for  a  writ  of  prohibition  to 
the  judges  of  a  court  of  land  registration 
upon  the  ground  that  persons  may  be  de- 
prived of  property  without  due  process 
of  law  under  the  act  of  land  registration, 
because  the  registration  is  obtained 
against  residents  and  known  persons  only 
bj'  posting  notices  and  by  registered  let- 
ters, and  as  against  nonresidents  and  un- 
known persons  by  publication  in  a  news- 
paper, cannot  be  reviewed  by  the  supreme 
court  of  the  United  States  on  a  writ  of 
error  to  the  state  court,  where  the  plain- 
tiff in  error,  throughout  his  objection,  as- 
sumes that  he  has  actual  knowledge  of 
the  proceedings  and  without  showing 
either  that  he  has  been,  or  is  likely  to  be, 
deprived  of  his  property  without  due  proc- 
ess of  law,  in  violation  of  the  Fourteentii 
Amendment.  Tyler  t'.  Judges  of  Court  of 
Registration.  179  U.  S.  405.  410,  45  L.  Ed. 
252.  reaffirmed  in  Bigger  v.  Rvher,  184 
U.  S.  696,  46  L.  Ed.  763. 

A  patent  was  granted  to  a  pre-emptor 
in  1841  for  a  tract  of  land  which  had  been 
previously  assigned,  by  the  direction  of 
the  president,  to  a  Pottawatomie  Indian, 
under   the    terms    of   the   treaty   with    that 


564 


APPEAL  AND  ERROR. 


plaintiff  in  error,  and  not  of  a  third  person  only.'*  Where  the  title  set  up  by  the 
defendant  is  that  of  a  third  person  in  which  they  have  no  interest,  a  writ  of  error 
will  be  dismissed  for  want  of  jurisdiction.-^ 

In  the  language  of  Mr.  Justice  Brown:  "In  order  that  the  validity  of  a 
state  statute  may  be  'drawn  in  question'  under  the  second  clause  of  §  709,  Rev. 
Stat.,  it  must  appear  that  the  plaintiff  in  error  has  a  right  to  draw  it  in  question 
by  reason  of  an  interest  in  the  litigation  which  has  suffered,  or  may  suffer,  by  the 
decision  of  the  state  court  in  favor  of  the  validity  of  the  statute.  This  principle 
has  been  announced  in  s©  many  cases  in  this  court  that  it  may  not  be  considered 
an  open  question."^ 

"It  is  true  that  under  the  third  clause  of  §  709,  where  a  title,  right,  priv- 
ilege or  immunity  is  claimed  under  federal  law,  such  title,  etc.,  must  be  'specially 
set  up  or  claimed,'  and  that  no  such  provision  is  made  as  to  cases  within  the  sec- 
ond clause,  involving  the  constitutionality  of  statutes  or  authorities,  but  it  is  none 
the  less  true  that  the  authority  of  such  statute  must  'be  drawn  in  question'  by 
some  one  who  has  been  affected  by  the  decision  of  a  state  court  in  favor  of  its 
validity,  and  that  in  this  particular  the  three  clauses  of  the  section  are  practically 
identical."" 

k.  Necessity  for  Adverse  Decision — (1)  Under  First  Clause  of  tlie  Statu-te. — It 
is  manifest  that  it  was  not  the  object  of  the  first  clause  of  §  709  to  give  a  right 
of  review  wherever  the  validity  of  a  treaty  or  statute  of,  or  authority  exercised 
under  die  United  States  is  drawn  in  question,  but  to  prevent  states  from  fritter- 
ing away  the  authority  of  the  federal  government  by  limiting  too  closely  the  con- 
struction of  federal  statutes.  Hence,  the  writ  of  error  will  only  lie  where  the 
decision  is  adverse  to  the  right  claimed  by  the  plaintiff  in  error. ^  Where  a  de- 
cision of  the  highest  court  of  law  or  equity  of  a  state  is  in  favor  of  the  validity 


tribe.  The  patent  was  adjudged  to  be  a 
\alid  grant  of  land  by  the  supreme  court 
of  Indiana.  Held,  the  fact  that  the  title 
set  up  for  the  Indian  in  this  case  is  under 
a  treaty,  does  not  avail  to  give  this  court 
jurisdiction,  because  neither  the  Indian 
himself  nor  any  one  claiming  through  him 
is  party  to  the  suit.  "This  court  has 
decided  in  the  cases  of  Owings  v.  Nor- 
wood, 5  Cranch  344,  3  L.  Ed.  120,  and  of 
Henderson  v.  Tennessee,  10  How.  311.  13 
L.  Ed.  434.  that  'in  order  to  give  juris- 
diction to  this  court,  the  party  must  claim 
the  title  under  the  treaty  for  himself,  and 
not  for  a  third  person,  in  whose  title  he 
has  no  interest.'  "  Verden  v.  Coleman,  1 
Black  472,  474,   17  L.   Ed.  161. 

4.  Owings  r.  Norwood,  5  Cranch  344.  3 
L.  Ed.  120;  Montgomery  v.  Hernandez. 
12  Wheat.  129,  132,  6  L.  Ed.  575;  Hen- 
derson V.  Tennessee,  10  How.  311.  13  L. 
Ed.  434;  Hale  v.  Gaines.  22  How.  144, 
KO.  16  L.  Ed.  264;  Long  v.  Converse,  91 
U.  S.  105,  23  L.  Ed.  233;  Giles  r.  Little, 
134  U.  S.  645,  6.50,  33  L.  Ed.  1062;  Tyler 
V.  Judges  of  Court  of  Registration,  179 
U.  S.  405,  408,  45  L.  Ed.  252,  reaffirmed 
in  Bigger  v.  Ryher.  184  U.  S.  696,  46  L. 
Ed.   763. 

5.  Giles  V.  Little.  134  U.  S.  645.  33  L. 
Ed.    1062. 

6.  Tyler  v.  Judges  of  Court  of  Registra- 
tion, 179  U.  S.  405.  407.  45  L.  Ed.  252. 
reaffirmed  in  Bigger  v.  Ryher,  184  U.  S. 
696,  46  L.  Ed.  763. 

7.  Tyler  v.   Judges    of    Court   of    Regis- 


tration, 179  U.  S.  405,  408.  45  L.  Ed.  352, 
reaffirmed  in  Bigger  v.  Ryher,  184  U.  S. 
696.  46  L.   Ed.  763. 

8.  Dower  v.  Richards.  151  U.  S.  658, 
666,  38  L.  Ed.  305;  Say  ward  v.  Denny.  158 
U.  S.  180,  39  L.  Ed.  941;  Jersey  Citv, 
etc.,  R.  Co.  V.  Morgan,  160  U.  S.  288,  40 
L.  Ed.  430;  Rae  v.  Homestead,  etc.,  Co., 
176  U.  S.  121.44L.  Ed.  398;  Abbott  7^  Ta- 
coma  Bank  of  Commerce,  175  U.  S.  409,  44 
L.  Ed.  217;  Missouri  i'.  Andriano,  138  U.  S. 
496,  34  L.  Ed.  1012;  De  Lama's  Nevada  Min. 
Co.  V.  Nesbitt,  177  U.  S.  523,  44  L.  Ed.  872; 
Montgomery  z'.  Hernandez,  12  Wheat.  129, 
6  L.  Ed.  575;  Baldwin  v.  Maryland.  17» 
U.  S.  220.  45  L.  Ed.  160;  Lake  Street  Elec. 
R.  Co.  V.  Farmer's  Loan.  etc..  Co.,  182  U.  S. 
417.  45  L.  Ed.  1161;  McClung  v.  Silliman, 
6  Wheat.  598,  602,  5  L.  Ed.  340;  Baker  v. 
Baldwin,  187  U.  S.  61,  47  L.  Ed.  75;  cit- 
ing Iowa  r.  Rood,  187  U.  S.  87,  47  L.  Ed. 
86;  Reddall  v.  Brvan,  24  How.  420.  16 
L.  Ed.  740;  Gordon  v.  Caldcleugh,  3 
Cranch  268.  2  L.  Ed.  436;  Fulton  v.  Mc- 
Afifee.  16  Pet.-  149,  10  L.  Ed.  918;  Strader 
r.  Baldwin.  9  How.  261,  13  L.  Ed.  130; 
Linton  r.  Stanton,  12  How.  423,  13  L.  Ed. 
1050;  Roosevelt  r.  Meyer,  1  Wall.  512. 
17  L.  Ed.  500;  Ryan  r.  Thomas,  4  Wall. 
603,  18  L.  Ed.  460;  Maney  v.  Porter,  4 
How.    55.    11    L.    Ed.    873. 

The  25th  section  of  the  judiciary  act 
only  gave  jurisdiction  to  this  court  in 
cases  where  the  decision  of  the  state  court 
drew  in  question  the  validity  of  an  au- 
thority exercised  under  the  United  States, 


APPEAL  AND  ERROR. 


565 


of  a  statute  of  or  an  authority  exercised  under  the  United  States  drawn  in  ques- 
tion in  such  court,  this  court,  under  the  twenty-fifth  section  of  the  judiciary  act 


and  the  decision  was  against  its  validity. 
Hale  V.  Gaines,  22  How.  144,  16  L.  Ed. 
264,   269. 

It  is  only  where  a  state  court  decides 
against  a  claim  set  up  under  the  laws  of 
the  United  States,  that  appellate  juris- 
diction is  given  this  court  from  a  state 
decision.  Not  where  the  state  court  has 
decided  in  favor  of  its  own  jurisdiction. 
McClung  V.  Silliman.  6  Wheat.  598,  5  L. 
Ed.   340. 

It  is  not  sufficient  that  a  federal  ques- 
tion was  raised  and  was  decided.  It  must 
have  been  decided  in  a  certain  way.  that 
is,  against  the  right  set  up  under  the 
constitution,  laws,  treaties,  or  authority 
of  the  United  States.  The  federal  ques- 
tion may  have  been  erroneously  decided. 
It  may  be  quite  apparent  to  this  court 
that  a  wrong  construction  has  been  given 
to  the  federal  law,  but  if  the  right  claimed 
under  it  by  plaintiff  in  error  has  been 
conceded  to  him,  this  court  cannot  en- 
tertain jurisdiction  of  the  case,  so  very 
careful  is  the  statute,  both  of  1789  and  of 
1867.  to  narrow,  to  limit,  and  define  the 
jurisdiction  which  this  court  exercises  over 
the  judgments  of  the  state  courts.  Mur- 
dock  v.  Memphis,  20  Wall.  .590,  626.  22 
L.    Ed.    429. 

It  is  manifest  that  the  object  of  §  709 
was  not  to  gi\'e  a  right  of  review  where- 
ever  the  validity  of  an  act  of  congress 
was  drawn  in  question,  but  to  prevent 
states  from  frittering  away  the  authority' 
of  the  federal  government  b\'  limiting  too 
closely  the  construction  of  federal  stat- 
utes. Hence,  the  writ  of  error  will  onlj' 
lie  where  the  decision  is  adverse  to  the 
right  claimed.  Dower  v.  Richards, 
151  U.  S.  658.  666,  38  L.  Ed.  305; 
Sayward  r.  Denny,  158  U.  S.  180, 
30  L.  Ed.  941;  Jersey  City,  etc., 
R.  Co.  z'.  Morgan,  160  U.  S.  288,  40  L.  Ed. 
430;  Rae  v.  Homestead,  etc.,  Co.,  176  U. 
S.  121.  44  L.  Ed.  398;  Abbott  v.  Tacoma 
Bank  of  Commerce.  175  U.  S.  409.  44  L. 
Ed.  217;  De  Lamar's  Nevada  Min.  Co.  v. 
Nesbitt.  177  U.  S.  523.   529,  44  L.  Ed.  872. 

'"Where  the  issue  is  as  to  the  validity 
of  'an  authority  exercised  under  the  United 
.States,'  we  cannot  review  its  determina- 
tion by  the  state  court,  unless  the  deci- 
sion was  against  the  validity  of  the  au- 
thority so  exercised.  As  sai<l  in  Balti- 
more, etc.,  R.  Co.  V.  Hopkins.  130  U.  S. 
210,  223.  32  L.  Ed.  908,  'the  distinction  is 
palpable  between  a  denial  of  the  author- 
ity and  a  denial  of  a  right,  title,  privilege 
or  immunity  claimed  under  it.'  Clough 
V  Curtis.  134  U.  S.  361.  369,  33  L.  Ed. 
945;  United  States  v.  Lynch.  137  U.  S. 
280,  286.  34  L.  Ed.  700;  Cook  County  v.  Cal- 
umet, etc..  Canal  Co.,  138  LT.  S.  6'35.  653, 
34  L.  Ed.  1110."  Abbott  V.  Tacoma  Bank 
of  Commerce,  175  U.  S.  409,  413,  44  L. 
I  Ed.   217. 


To  give  us  jurisdiction  in  a  writ  of 
error  to  a  state  court,  a  federal  question 
must  not  only  exist  in  the  record,  but  it 
must  have  been  decided  against  the  party 
who  sues  out  the  writ.  Murdock  v.  Mem- 
phis. 20  Wall.  590.  626,  22  L.  Ed.  429; 
Weatherly  r.  Bowie,  131  U.  S.  215,  25  L. 
Ed.  606,  607. 

Denial  of  right  under  naturalization 
laws. — In  the  case  of  Missouri  i-.  Andri- 
ano,  138  U.  S.  496,  34  L.  Ed.  1012,  the 
contest  was  between  rival  claimants  to 
the  ofifice  of  sheriff.  Respondent  relied 
upon  the  fact  that  he  had  received  a  ma- 
jority of  the  votes  cast  at  a  popular  elec- 
tion for  the  office.  Relator  claimed  the  elec- 
tion to  be  void  under  the  state  constitu- 
tion, which  declared  that  no  one  should 
be  elected  or  appointed  to  office  who  was 
not  a  citizen  of  the  United  States.  Re- 
spondent admitted  his  foreign  birth,  but 
claimed  that,  under  Rev.  Stat..  §  2172,  h-e 
became  a  citizen  by  the  naturalization  of 
his  father.  The  decision  of  the  court 
was  in  his  favor,  and  it  was  held,  that 
the  relator  had  no  right  to  a  review  of 
the  question  in  this  court,  although  if  the 
judgment  had  been  adverse  to  the  claim 
of  the  respondent,  there  would  have  been 
no  doubt  of  his  right  to  a  writ  of  error. 
It  was  said  that  the  right  or  privilege 
must  be  personal  to  the  plaintiff  in  error, 
and  that  he  was  not  entitled  to  a  review, 
where  the  right  or  privilege  was  asserted 
by  the  other  party,  and  the  decision  was 
iri  favor  of  that  party  and  adverse  to  him- 
self. De  Lamar's  Nevada  Min.  Co.  v. 
Nesbitt.   177   U.    S.   523.   528,   44    L.    Ed.   872. 

Denial  of  right  under  bankrupt  act. — 
The  case  of  Linton  v.  Stanton,  12  How. 
423,  13  L.  Ed.  1050,  was  an  action  upon 
certain  promissory  notes,  to  which  the 
defendant  pleaded  a  discharge  under  the 
bankruptcy  law.  Objections  were  taken 
to  the  validity  of  the  discharge,  but  they 
were  overruled  by  the  court  and  judg- 
ment entered  for  the  defendant.  It  was 
held,  the  plaintiff  had  no  right  to  a  re- 
view in  this  court.  "Undoubtedly,"  says 
Chief  Justice  Taney,  "the  defendant,  in 
pleading  his  discharge  under  the  bank- 
rupt law,  claimed  a  right  or  exemption 
under  a  law  of  congress.  But  in  order  to 
give  jurisdiction,  something  more  is  nec- 
essary; the  judgment  of  the  state  court 
must  be  against  the  right  claimed."  Mis- 
souri v.  Andriano,  138  U.  S.  496,  501,  34 
L.   Ed.   1012. 

Where  the  defendant  pleaded  his  dis- 
charge under  the  bankrupt  act  of  1841 
passed  by  congress,  and  the  plea  was  al- 
lowed, the  plaintiff  cannot  bring  the  case 
to  this  court  to  be  reviewed,  under  the 
twentv-fifth  section  of  the  judiciary  act. 
Strader  v.  Baldwin,  9  How.  261,  13  L.  Ed. 
130. 

Ejectment. — The  case  of  Fulton  v.  Mc- 


566 


AFFHAL  AND  ERROR. 


(by  which  alone  it  has  jvirisdiction  of  the  judgments  of  state  courts)  has  no  re- 
visory power. ^ 

The  object  of  the  present  judiciary  act  was  not  to  give  a  right  of  review 
wherever  the  vaHdity  of  an  act  of  congress  was  drawn  in  question,  but  to  prevent 
the  courts  of  the  several  states  from  impairing  or  frittering  away  the  authority 
of  the  federal  government,  by  giving  a  construction  to  its  statutes  adverse  to  such 
authority.  Of  course,  if  the  construction  given  by  the  state  court  to  the  act  under 
which  the  right  is  claimed  be  favorable  to  such  right,  no  such  reason  exists  for 


Affee.  16  Pet.  149,  10  L.  Ed.  918,  was  an 
action  of  ejectment,  in  which  the  lessor 
of  the  plaintiff  made  title  under  a  cer- 
tificate issued  to  him  as  assignee  of  Jef- 
ferson College,  the  trustees  of  which 
college  were  authorized  by  an  act  of  con- 
gress to  relinquish  certain  lands  which 
had  been  reserved  for  their  use.  Defend- 
ant offered  testimony  to  show  that  the 
certificate  was  fraudulently  obtained,  that 
its  authority  had  been  denied  by  the  com- 
missioner of  the  land  office,  and  conse- 
quently that  it  did  not  confer  on  the  les- 
sor of  the  plaintiff  a  valid  legal  title  upon 
which  he  could  recover  in  ejectment.  These 
questions  were  decided  by  the  state  court 
in  favor  of  the  right  claimed  by  the  plain- 
tiff, and  the  defendant  took  a  writ  of  er- 
ror from  this  court.  It  was  held,  that,  as 
the  decision  of  the  state  court  was  in  fa- 
vor of  the  right  claimed,  this  court  had 
no  jurisdiction.  Missouri  v.  Andriano,  138 
U.    S.   496,   500,  34   L.    Ed.    1012. 

Where  a  party  brought  an  ejectment 
in  a  state  court,  founding  his  title  upon 
documents  showing  a  settlement  claim 
under  the  laws  of  the  United  States,  and 
the  supreme  court  of  the  state  decided 
in  favor  of  that  title,  the  opposite  party 
cannot  bring  the  case  to  this  court  under 
the  25th  section  of  the  judiciary  act. 
Burke  v.  Gaines,  19  How.  328,  15  L.  Ed. 
655.  following  Fulton  v.  McAffee.  16  Pet. 
149,   10   L.    Ed.   918. 

Legal  tender  act. — A  judgment  of  a 
state  court  sustaining  the  act  of  congress 
of  February  28,  1878,  making  silver  dol- 
lars full  legal  tender,  cannot  be  reviewed 
by  the  supreme  court  of  the  United 
States.  Baker  v.  Baldwin,  187  U.  S.  61, 
47  L.   Ed.  75. 

Title  to  land  under  act  of  congress. — 
The  high  court  of  errors  and  appeals  of 
the  state  of  Mississippi,  on  a  writ  of  er- 
ror to  the  circuit  court  of  Washington 
county,  Mississippi,  confirmed  a  judgment 
of  the  circuit  court,  by  which  a  title  to 
land  set  up  under  an  act  of  congress  of  the 
United  States,  was  held  valid;  thus  con- 
struing the  act  of  congress  in  favor  of 
the  party  claiming  a  right  to  the  land, 
under  the  act.  The  party  against  whom 
the  decision  of  the  court  of  appeals  was 
given,  prosecuted  a  writ  of  error  to  the 
supreme  court  of  the  United  States.  The 
writ  of  error  was  dismissed,  the  court 
having  no  jurisdiction,  because  in  order  to 
give  the  supreme  court  of  the  United  States 
jurisdiction  in   such   cases,   it   is   not   suffi- 


cient that  the  construction  of  the  act  of 
congress  on  the  validity  of  the  act  on 
which  the  claim  was  founded  was  drawn 
in  question.  It  must  appear,  also,  that 
the  decision  was  against  the  right  claimed. 
The  power  of  the  supreme  court  is  care- 
fully defined  and  restricted  by  the  judi- 
ciary act  of  1789;  and  it  is  the  duty  of 
this  court  not  to  transcend  the  limits  of 
the  jurisdiction  conferred  upon  it.  Ful- 
ton V.  McAffee,  16  Pet.  149,  10  L.  Ed.  918. 

There  were  two  conflicting  claims  to 
land  in  that  part  of  Louisiana  west  of  the 
Perdido  river;  one  fovinded  upon  a  French 
grant  in  1757,  with  possession  contmu- 
ing  down  to  1787;  the  other  founded  upon 
a  Spanish  grant  in  1788,  with  possession 
continuing  down  to  1819.  Both  these 
claims  were  confirmed  by  congress.  In 
an  ejectment  suit,  where  the  titles  were 
in  conflict,  the  state  court  instructed  the 
jury,  that  the  confirmations  balanced  each 
other,  and  they  must  look  to  other  evi- 
dences of  title  in  order  to  settle  the 
rights  of  the  parties.  The  judgment  of 
the  court  being,  ultimately,  in  favor  of 
the  party  who  claimed  under  the  Span- 
ish grant,  this  court  will  not.  under  the 
circumstances  of  the  case,  disturb  that 
judgment.  Doe  v.  Eslava,  9  How.  421, 
13    L.    Ed.   200. 

Jurisdiction  of  federal  courts. — The  de- 
cision of  the  highest  court  of  a  state  that 
a  circuit  court  of  the  United  States  has 
jurisdiction  of  an  action  brought  by  a 
national  bank  under  §  5239  of  the  Revised 
Statutes,  is  not  subject  to  review  by  the 
court  under  §  709,  U.  S.  Rev.  Stat.,  giv- 
ing the  court  jurisdiction  where  there  is 
drawn  in  question  the  validity  of  a  treaty 
or  statute  of,  or  an  authority  exercised 
under  the  United  States,  and  the  decision 
is  against  their  validity;  since  the  de- 
cision is  not  against  but  in  favor  of  fed- 
eral jurisdiction.  Abbott  v.  Tacoma  Bank 
of  Commerce.  175  U.  S.  409.  44  L.  Ed.  217. 

Patent  for  public  lands. — Where  the  de- 
cision of  the  state  court  is  against  the 
validity  of  a  patent  for  land  granted  by 
the  Lhiited  States  to  one  of  the  parties, 
jurisdiction  is  conferred  notwithstanding 
the  fact  that  the  decision  is  in  favor  of  a 
similar  authority  set  up  by  the  adversary 
party.  Reichert  Z'.  Felps.  6  Wall.  160,  18 
L.  Ed.  849;  Maney  v.  Porter,  4  How.  55, 
11   L.   Ed.   873. 

9.  Ryan  v.  Thomas,  4  Wall.  603,  18  L- 
Ed.   460. 


AFFHAL  AND  ERROR. 


567 


a  review  by  this  court. ^^ 

A  right  or  immunity  set  up  or  claimed  under  the  constitution  or  laws 
of  the  United  States  may  be  denied  as  well  by  evading  a  direct  decision 
thereon  as  by  positive  action.  If  a  federal  question  is  fairly  presented  by  the 
record,  and  its  decision  is  actually  necessary  to  the  determination  of  the  case,  a 
judgment  which  rejects  the  claim,  but  avoids  all  reference  to  it,  is  as  much  against 
the  right  within  the  meaning  of  §  709  of  the  Revised  Statutes,  as  if  it  had  l)een 
speciiically  referred  to  and  the  right  directly  refused.  But  if  a  decision  of  such 
a  question  is  rendered  unnecessary  by  the  view  which  the  court  properly  takes 
of  the  rest  of  the  case,  within  the  scope  of  the  pleadings,  the  judgment  is  not 
open  to  review  here.^^ 

Where  Both  Parties  Claim  under  Same  Act.— A  motion  to  dismiss  a  writ 
of  error  under  the  25th  section  of  the  judiciary  act  on  the  ground  that  the  de- 
cision of  the  state  court  was  not  against  a  right  claimed  under  a  statute  of  the 
United  States,  within  th€  provisions  of  the  25th  section  of  the  judiciary  act, 
where  both  parties  claimed  under  the  same  act  of  Congress,  will  be  denied.^-' 

(2)  Under  Second  Clause  of  the  Statute. — A  writ  of  error  cannot  issue  from 
this  court  to  a  state  court  under  the  second  clause  of  §  709  of  the  Revised  Stat- 
utes, on  the  ground  that  a  state  statute  is  in  contravention  of  the  constitution  of 
the  United  States,  where  the  decision  of  the  state  court  does  not  sustain  the  va- 
lidity of  the  act,  but  on  the  contrary  holds  it  to  be  wholly  void  as  in  contravention 
of  the  constitution  of  the  United  States. ^-^  When  the  state  conrr  decides  that 
the  statute  of  the  state,  drawn  in  question,  is  not  valid,  no  appeal  lies  to  the 
.supreme  court  of  the  United  States. ^^     Our  only  jurisdiction  to  review  this  class 


10.  Missouri  v.  Andriano,  138  U.  S.  496, 
500,  34  L.  Ed.  1012. 

11.  Chouteau  v.  Gibson,  111  U.  S.  200, 
28  L.  Ed.  400;  Adams  County  v.  Burling- 
ton, etc.,  R.  Co.,  112  U.  S.  123.  127,  28  L- 
Ed.  678;  Chapman  z\  Goodnow,  123  U.  S. 
540.   54S.  31   L.    Ed.  235. 

12.  Buel  V.  Van  Xess,  8  Wheat.  312,  5 
L.  Ed.  624,  citing  Matthews  v.  Zane,  4 
Cranch   382,  2   L.   Ed.   654. 

13.  McNulty  V.  California,  149  U.  S.  645, 
37  L.  Ed.  882;  Craig  v.  Missouri.  4  Pet. 
410.  7  L.  Ed.  903;  Byrne  v.  Missouri,  8 
Pet.  40.  8  L.  Ed.  859;'Crowell  v.  Randell, 
10  Pet.  368,  9  L.  Ed.  458;  McKinney  v. 
Carroll.  12  Pet.  66,  9  L.  Ed.  1002;  Com- 
monwealth Bank  v.  Griffith,  14  Pet.  56,  10 
L.  Ed.  352;  Curran  v.  .\rkansas,  15  How. 
.304,  14  L.  Ed.  705;  Porter  v.  Foley,  24 
How.  415,  16  L.  Ed.  740;  Bridge  Proprie- 
tors V.  Hoboken,  etc.,  Co.,  1  Wall.  116,  17 
L.  Ed.  571;  The  Binghamton  Bridge,  3 
Wall.  51.  18  L.  Ed.  137;  Walker  v.  Tailor. 
5  How.  64,  12  L.  Ed.  52;  Lloyd  v.  Dolli- 
son.  194  U.  S.  445,  446.  48  L.  Ed.  1062; 
Elder  V.  Colorado,  204  U.  S.  85,  51  L.  Ed. 
381. 

The  25th  section  of  the  judiciary  act  of 
1789  confrrs  on  this  court  the  power  of 
supervision  over  the  state  tribunal,  where 
there  is  drawn  in  question  the  validity  of 
a  statute  of,  or  an  authority  exercised  un- 
der, any  state,  on  the  ground  of  their 
being  repugnant  to  the  constitution  or 
laws  of  the  United  States,  and  the  deci- 
sion is  in  favor  of  such  validity.  There- 
fore, if  the  decision  is  against  its 
validity,  the  writ  of  error  will  be 
dismissed      for       want       of      jurisdiction. 


Walker  v.  Tailor.  5  How.  64,  12  L. 
Ed.  52;  Commonwealth  Bank  v.  Griffith. 
14   Pet.   56.    10   L.    Ed:   352. 

14.  Winn  v.  Jackson,  12  Wheat.  135,  6 
L.  Ed.  577;  Smith  v.  Hunter.  7  How.  738, 
12  L.  Ed.  894;  Withers  v.  Buckley,  20 
How.  84,  15  L.  Ed.  816;  Walker  v.  Tailor, 
5  How.  64,   12  L.   Ed.  52. 

When  the  decision  of  a  state  court  is 
against  the  validity  of  a  state  statute,  as 
contrary  to  the  constitution  of  the  United 
States,  a  writ  of  error  does  not  lie  to  the 
supreme  court  upon  such  a  judgment. 
Commonwealth  Bank  v.  Griffith,  14  Pet. 
56,  10  L.  Ed.  352,  distinguishing  Briscoe 
V.  Bank  of  Kentucky,  11  Pet.  257,  9  L. 
Ed.  709,  as  follows:  "In  the  case  of  Briscoe 
V.  Bank  of  Kentucky,  11  Pet.  257,  9  L.  Ed. 
709,  the  decision  of  the  state  court  was  in 
favor  of  the  validity  of  the  statute.  The 
paity.  therefore,  who  denied  its  validity, 
and  alleged  that  it  was  repugnant  to  the 
constitution  of  the  United  States,  was  en- 
titled to  have  that  question  re-examined 
in  the  supreme  court.  But  it  is  otherwise,  by 
the  plain  words  of  the  law.  when  the  de- 
cision of  the  state  court  is  against  the  va- 
lidit}^  of  the  state  statute,  or  the  author- 
ity  exercised   under  it." 

Where  the  plaintiflF  below  claimed  a 
ferry  right  under  an  act  of  the  legislature 
of  Kentucky,  and  the  ground  of  defense 
was  that  the  act  was  unconstitutional  and 
void  as  impairing  vested  rights,  and  the 
decision  of  the  hi.ehest  state  court  was 
against  the  plaintiff,  a  writ  of  error,  is- 
sued under  the  25th  section  of  the  judi- 
ciary act.  will  not  lie.  This  court  can  en- 
tertain jurisdiction  under  that  section  only 


568 


AFFUAL  AND  HKRUK. 


of  cases  is  where  the  validity  of  a  state  statute  is  drawn  in  question  on  the  ground 
of  its  being  repugnant  to  the  constitution  of  the  United  States,  and  the  decision 
of  the  state  court  is  in  favor  of  its  vaHdity.i^  \Miere  a  statute  of,  or  authority 
exercised  under,  a  state,  is  drawn  in  question,  on  the  ground  of  its  repugnance 
to  the  constitution  of  the  United  States,  or  a  right  is  claimed  under  that  instru- 
ment, the  decision  of  a  state  court  in  favor  of  the  validity  of  such  statute  or 
authority,  or  adverse  to  the  right  so  claimed,  can  be  reviewed  here.^^ 

(3)  Under  Third  Clause  of  the  Statute. — The  appellate  jurisdiction  of  this  court 
under  the  third  clause  of  §  709  is  expressly  limited  to  cases  in  which  the  decision 
of  the  state  court  is  against  the  right,  title,  privilege  or  immunity  claimed  under 
the  constitution,  laws  or  treaties  of  the  United  States,  because,  when  the  decision 
of  that  court  is  in  favor  of  such  a  right,  no  revision  by  this  court  is  necessary 
to  protect  the  national  government  in  the  exercise  of  its  rightful  powers.^" 


when  the  decision  of  the  state  court  is  in 
favor  of  the  validity  of  such  a  statute. 
Here  the  decision  was  against  its  validity. 
Walker  v.  Tailor,  5  How.  64,  12  L.  Ed.  52, 
following  Commonwealth  Bank  v.  Grif- 
fith. 14  Pet.  56,  10  L.  Ed.  352. 

15.  Rev.  Stat.,  §  709;  Gulf.  etc..  R.  Co. 
V.  Hewes.  183  U.  S.  66,  46  L.  Ed.  86; 
Louisville,  etc.,  R.  Co.  v.  Kentucky,  183  U. 
S.   503,   507.  46   L.   Ed.   298. 

16.  Home  Ins.  Co.  v.  Augusta  Council, 
93   U.   S.   116,  23  L.   Ed.  825. 

17.  Gordon  v.  Caldcleugh,  3  Cranch  268, 
2  L.  Ed.  436;  Montgomery  v.  Hernandez. 
12  Wheat.  129,  6  L.  Ed.  575;  Common- 
Tvealth  Bank  v.  Griffith,  14  Pet.  56,  58, 
M)  L.  Ed.  352;  Missouri  v.  Andriano.  138 
U.  S.  496,  501,  34  L.  Ed.  1012;  Whitten  v. 
Tomlinson,  160  U.  S.  231.  238,  40  L.  Ed. 
406,  reaffirmed  in  Washington  State  v. 
Coovert,  164  U.  S.  702,  41  L.  Ed.  1182; 
Iowa  c'.  Rood,  187  U.  S.  87.  47  L.  Ed.  86, 
citing  Baker  z'.  Baldwin,  187  U.  S.  61,  47 
L.  Ed.  75;  Kizer  v.  Texarkana,  etc..  R. 
Co.,  179  U.  S.  199,  201.  45  L.  Ed.  152;  Scott 
V.  Jones,  5  How.  343,  375.  12  L.  Ed.  181; 
Bartlett  v.  Lockwood,  160  U.  S.  357,  40 
L.  Ed.  455;  Ferry  v.  King  County,  141  U. 
S.  668,  673,  35  L.  Ed.  895,  898;  Ryan  v. 
Thomas.  4  Wall.  603,  18  L.  Ed.  460;  Red- 
dall  V.  Bryan,  24  How.  420,  16  L.  Ed.  740; 
Ableman  v.  Booth.  21  How.  506,  16  L.  Ed. 
169;  Strader  v.  Baldwin,  9  How.  261,  13  L. 
Ed.  130;  Menard  v.  Aspasia,  5  Pet.  505,  8 
L.  Ed.  207;  Williams  z-.  Norris,  12  Wheat. 
117,  6  L.  Ed.  571;  McClung  v.  Silliman, 
6  Wheat.  598,  5  L.  Ed.  340;  Mclntire  v. 
Wood,  7  Cranch  504,  3  L.  Ed.  420;  Rut- 
land R.  Co.  V.  Central  Vermont  R.  Co., 
159  U.  S.  630,  638.  40  L.  Ed.  284;  Coons 
V.  Gallaher,  15  Pet.  18,  10  L.  Ed.  645.  646; 
Jersey  City,  etc.,  R.  Co.  v.  Morgan.  160  U. 
S.  288,  40  L.  Ed.  430;  Fulton  v.  McAfifee, 
W  Pet.  149,  10  L.  Ed.  918;  Linton  v.  Stan- 
ton, 12  How.  423,  13  L.  Ed.  1050;  Burke 
■B.  Gaines,  19  How.  328,  15  L.  Ed.  655; 
Hale  V.  Gaines,  22  How.  144.  16  L.  Ed. 
264;  Brooklyn,  etc..  Ferry  Co.  v.  McMa- 
hon,  166  U.  S.  718,  41  L.  Ed.  1186;  Good- 
sell  V.  Delta,  etc..  Land  Co.,  166  U.  S.  718, 
41  L.  Ed.  1186;  Spies  z'.  Illinois,  123  U.  S. 
131,  31  L.  Ed.  80;  Brooks  v.  Missouri,  124 
U.  S.  394,  31  L.  Ed.  454;  Chappell  v.  Brad- 


shaw,  128  U.  S.  132.  32  L.  Ed.  369;  Texas, 
etc.,  R.  Co.  z'.  Southern  Pac.  Co..  137  U. 
S.  48,  34  L.  Ed.  614;  Schuyler  Bank 
V.  Bollong,  150  U.  S.  85,  88,  37  L.  Ed.  1008. 

In  error  to  a  state  court,  to  review  one 
of  its  judgments,  this  court  acts  only  upon 
the  record  of  the  court  below,  and,  in  or- 
der to  give  this  court  jurisdiction,  it  is  es- 
sential that  the  record  should  disclose,  not 
only  that  the  alleged  right,  privilege  or 
immunity,  was  set  up  and  claimed  in  the 
court  below,  but  that  the  decision  of  that 
court  was  against  the  right  so  set  up  or 
claimed.  Clark  v.  Pennsylvania.  128  U. 
S.  395,  32  L.  Ed.  487. 

This  court  has  no  jurisdiction  under 
the  25th  section  of  the  judiciary  act  of 
1789.  but  in  a  case  where  a  final  judg- 
ment or  decree  has  been  rendered  in  the 
highest  court  of  law  or  equity  of  a  state, 
in  which  a  decision  in  the  suit  could  be 
had,  where  is  drawn  in  question  the  valid- 
itj'  of  a  treaty  or  statute  of,  or  an  author- 
ity exercised  under,  the  United  States, 
and  the  decision  is  against  their  validity, 
etc.,  or  where  is  drawn  in  question  the 
construction  of  any  clause  of  the  consti- 
tution, or  of  a  treaty,  or  statute  of,  or  com- 
mission held  under  the  United  States,  and 
the  decision  is  against  the  title,  right, 
privilege  or  exemption,  specially  set  up 
or  claimed  by  either  party  under  such 
clause  of  the  said  constitution,  treaty, 
statute  or  commission.  Gordon  v.  Cald- 
cleugh, 3  Cranch  268,  2  L.  Ed.  436. 

Where  land  granted  by  the  United 
States  to  the  Northern  Pacific  Railroad 
Company  was  sold  at  a  tax  sale,  but  it 
v/as  urged  that  as  the  land  was  a  part  of 
the  public  domain  of  the  United  States, 
no  tax  could  be  imposed  thereon,  if  the 
state  court  holds  that  the  land  was  not 
taxable  at  the  time  the  taxes  were  assessed 
and  levied,  and  that  nothing  passed  by 
the  sale,  this  is  not  a  denial  of  an  im- 
munity under  the  constitution  or  laws  of 
the  United  States.  Tyler  v.  Cass  County, 
142   U.   S.  288,   35   L.   Ed.    1016. 

Denial  of  full  faith  and  credit. — Where 
the  decision  of  a  state  court  is  in  favor  of 
the  full  faith  and  credit  claimed  for  the 
decree  of  a  court  of  another  state  under 
the    constitution   and   laws    of    the    United 


APPEAL  AND  ERROR. 


569 


In  no  case  will  a  writ  of  error  lie  to  the  sufM-eme  court,  where  the  decision 
of  the  state  court  is  in  favor  of  the  privilege  claimed  under  an  act  of  con- 
gress.^^  It  is  not  every  case  where  a  federal  statute  has  been  construed  by  a 
state  court  that  gives  a  right  of  review  to  this  court,  but  the  claim  of  any  rigtit, 
title,  privilege  or  immunity  under  the  statute  must  have  been  denied  by  the  state 
tribunal  in  order  to  give  us  jurisdiction  to  review  its  judgment. ^^^  That  a  Federal 
statute  was  construed  unfavorably  to  one  of  the  parties  to  the  suit  is  no  ground  for 
jurisdiction  by  this  court,  unless  such  construction  was  not  only  unfavorable,  but 
was  against  the  right,  etc.,  specially  set  up  and  claimed  under  the  statute.  In 
that  case  t];ie  party  setting  up  and  claiming  the  right  under  the  statute,  which  has 
been  denied,  can  obtain  a  review  here.^^ 

1.  Parties — (1)  In  General. — A  case  arising  under  the  constitution  or  laws  of 
the  United  States  is  cognizable  in  this  court  under  the  25th  section  of  the  judi- 
ciary act,  whoever  may  be  the  parties  to  that  case.^-  Our  jurisdiction  under 
§  709  of  the  Revised  Statutes,  for  the  review  of  a  decision  of  the  highest  court 
of  a  state,  is  not  dependent  at  all  on  the  citizenship  of  the  parties.  In  such  cases 
we  look  only  to  the  questions  involved. ^3 


States,  its  judgment  cannot  be  reviewed 
by  the  supreme  court  of  the  United  States 
on  writ  of  error.  Lynde  v.  Lynde,  181  U. 
S.  183,  4.5  L.  Ed.  810.  citing  and  approv- 
ing Gordon  v.  Caldcleugh,  3  Cranch,  268, 
2  L.  Ed.  436;  and  Missouri  v.  Andriano, 
138  U.  S.  496,  34  L.  Ed.  1012,  reaffimed 
in  Jones  v.  Vane,  200  U.  S.  614,  50  L.  Ed. 
821. 

The  highest  court  ©f  a  state  having  ruled 
that  a  decree  of  a  court  of  another  state 
for  alimony  was  binding  upon  the  hus- 
l»and,  thereby  deciding  in  favor  of  the  full 
faith  and  credit  claimed  for  that  decree 
»nd«r  the  constitution  and  laws  of  the 
United  States,  its  judgment  on  that  ques- 
tion cannot  be  reviewed  by  the  supreme 
court  of  the  United  States  on  writ  of  er- 
ror. Lynde  v.  Lynde,  181  U.  S.  183,  45  L. 
Ed.  810.  citing  and  approving  Gordon  v. 
Caldcleugh,  3  Cranch  268,  2  L.  Ed.  436; 
and  Missouri  v.  Andriano.  138  U.  S.  496, 
S4  L.  Ed.  1012,  reaffirmed  in  Jones  v. 
Vane,  200  U.   S.  614,  .50  L.   Ed.  621. 

Denial  of  right  under  intestate  com- 
merce classe. — The  plaintiff  commenced 
an  action  in  a  state  court  to  recover  dam- 
ages for  the  alleged  breach  of  a  contract. 
The  defense  put  in  was  that  the  contract 
violated  §§  1,  2  and  3  of  the  intestate  com- 
merce act  of  Fehruary  4,  1887,  ch.  104.  24 
Stat.  37^.  The  trial  court  held,  that  the 
contract  violated  said  act  and  was.  there- 
fore, void.  It  was  held,  that  the  question 
whether  that  statute,  properly  construed, 
prohibited  the  making  of  such  an  agree- 
ment as  that  set  up  in  the  complaint  in 
the  state  court,  having  been  decided  in 
favor  of  the  claim  set  up  by  defendant  un- 
der the  statute,  the  supreme  court  of  the 
United  states  has  no  jurisdiction  to  re- 
view the  judgment.  Kizer  v.  Texarkana, 
etc.,  R.  Co.,  179  U.  S.  199.  45  L.  Ed.  152, 
citing  and  approving  De  Lamar's  Nevada 
Min.  Co.  V.  Nesbitt,  177  U.  S.  523.  528.  44 
L.  Ed.  872;  Missouri  v.  Andriano,  138  U. 
S.   496,   34   L.    Ed.    1012. 

19.  Gordon  v.  Caldcleugh,  3  Cranch  203, 


2  L.  Ed.  436;  Strader  v.  Baldwin,  9  How. 
261,  13  L.  Ed.  130;  Reddall  v.  Bryac,  24 
How.  420,  16  L.  B<i.  740;  Roosevek  v. 
Meyer,  1  Wall.  512,  17  L.  Ed.  500;  Ryan 
V.  Thomas,  4  Wall.  603,  18  L.  Ed.  460; 
Linton  v.  Stanton.  12  How.  423,  13  L.  Ed. 
1050. 

20.  Kizer  v.  Texarkana.  etc.,  R.  Co.,  179 
U.   S.    199.   201,    45   L.    Ed.    152. 

21.  Kizer  v.  Texarkana,  etc.,  R.  Co..  179 
U.   S.   199,  201,  45   L.    Ed.   152. 

22.  Opinion  of  Mr.  Chief  Justice  Mar- 
shall in  Cohens  v.  Virginia,  6  Wheat.  264, 
383,   5   L.   Ed.   257. 

23.  French  v.  Hopkins,  124  U.  S.  524,  31 
L.  Ed.  536;  Harrington  v.  Missouri,  205 
U.   S.  483,  487,  51  L.   Ed.   890. 

In  United  States  v.  Thompson,  93  U. 
S.  586,  588,  23  L-  Ed.  982,  Chief  Justice 
Waite  said:  "Judgments  in  the  state 
courts  against  the  United  States  cannot 
be  brought  here  for  re-examination  upon 
a  writ  of  error,  except  in  cases  where 
the  same  relief  would  be  afforded  to  pri- 
vate parties."  This  dictum,  in  so  general 
a  form,  is  in  danger  of  misleading;  and  it 
went  beyond  anything  required  by  the  de- 
cision of  that  case,  in  which  the  only  is- 
sue understood  to  have  been  decided  in 
the  state  courts  was  one  of  payment,  and 
no  authority  under  the  constitution,  laws 
or  treaties  of  the  United  States  was  set 
up  aiKl  decided  against.  The  United 
States  are  in  the  same  condition  as  other 
litigants,  in  the  sense  that  neither  can  in- 
voke the  jurisdiction  of  this  court  by  writ 
of  error  to  a  state  court,  unless  that 
court  has  decided  against  a  right  claimed 
under  the  constitution,  laws  or  treaties 
of  the  United  States.  But  sorely  the 
United  States  have,  and  may  assert,  a 
right,  privilege  or  immunity  under  the 
constitution  of  the  United  States,  which 
private  parties  could  not  have.  Stanley 
V.  Schwalby,  162  U.  S.  255,  378,  40  L.  Ed. 
900. 

If  two  citizens  of  the  same  state,  in  a 
suit   in   a   court   of   their   state,   claim  title 


570 


APtllAL  AXD  ERROR. 


(2)  Effect  of  Eleventh  Amendment  to  the  Constitution. — The  supreme  court 
has  appellate  jurisdiction  for  the  review  of  the  final  judgment  of  the  highest 
court  of  a  state  in  a  suit  between  a  state  and  one  of  its  own  citizens  arising  under 
the  laws  of  the  United  States.^ 

m.  Who  May  Make  the  Objection. — In  a  case  from  a  state  court,  this  court 
does  not  listen  to  objections  of  those  who  do  not  come  within  the  class  whose 
constitutional  rights  are  alleged  to  be  invaded  ;  or  hold  a  law  unconstitutional 
because,  as  against  the  class  making  no  complaint,  the  law  might  be  so  held.^* 

n.  Where  Both  Parties  Claim  under  Same  Act  of  Congress. — The  appellate  ju- 
risdiction of  this  court  extends  to  a  case  where  both  parties  claim  a  right  or  title 
under  the  same  act  of  congress,  and  the  decision  is  against  the  right  or  title  claimed 
by  either  party ;  in  other  words,  the  mere  fact  that  both  parties  claim  under  the 
same  act  of  congress  does  not  prevent  the  decision  of  the  state  court  from  being 
"against  a  right  claimed  under  a  statute  of  the  United  States. "^^ 

o.  Pouter  of  State  Courts  to  Decide  Federal  Questions. — When  federal  ques- 
tions arise  in  cases  pending  in  the  state  courts,  those  courts  are  competent,  and 
it  is  their  duty,  to  decide  them.  If  errors  supervene,  the  remedy  by  writ  of  error 
is  open   to  the  party  aggrieved.-*''      Bat  where  rights  under  the  constitution  of 


under  the  same  act  of  congress,  this  court 
has  an  aprpellate  jurisdiction  to  revise  and 
correct  the  judgment  of  that  court  in  such 
case.  Matthews  v.  Zane.  4  Cranch  382,  2 
L.  Ed.  654,  followed  in  Ross  v.  Doe,  1  Pet. 
655,  7   L.    Ed.   302. 

1.  Ames  V.  Kansas,  111  U.  S.  449,  467, 
28  L-  Ed.  482.  citing  Cohens  v.  Virginia, 
6  Wheat.  264.  5   L.   Ed.  257. 

The  11th  amendment  to  the  constitution 
which  provides  that  the  judicial  power  of 
the  United  States  shall  not  be  considered 
tc  extend  to  any  suit  in  law  or  equity 
commenced  or  prosecuted  against  one  of 
tbe  United  States,  by  a  citizen  of  another 
state,  or  by  citizens  or  subjects  of  any 
foreign  state,  offers  no  objection  to  the 
ex«rcise  by  this  court  of  appellate  juris- 
diction over  state  courts  under  the  25th 
section  of  the  judiciary  act.  Cohens  v. 
Virginia,  6  Wheat.  264.  5  L.  Ed.  257; 
Hans  V.  Louisiana,  134  U.  S.  1,  33  L.  Ed. 
842. 

"Under  the  judiciary  act,  the  effect  of  a 
writ  of  error  is  simply  to  bring  the  record 
into  court,  and  submit  the  judgment  of 
the  inferior  tribunal  to  re-examination. 
It  does  not  in  any  manner  act  upon  the 
parties;  it  acts  only  on  the  record.  It  re- 
moves the  record  into  the  supervising 
tribunal.  Where,  then,  a  state  obtains  a 
judgment  against  an  individual,  and  tl^.e 
court,  rendering  such  judgment,  overrules 
a  defense  set  up  under  the  constitution 
or  laws  of  the  United  States,  the  transfer 
of  this  record  into  the  supreme  court,  f^r 
the  sole  purpose  of  inquiring  whether  the 
judgment  violates  the  constitution  or 
Irws  of  the  United  States,  can  with  no 
propriety  *  *  *  be  denomin?ted  a 
s«it  commenced  or  prosecuted  against  the 
state  whose  judgment  is  so  far  re-exan- 
ined.  Nothing  is  demanded  from  the 
state.  No  claim  against  it  cf  any  de- 
scription is  asserted  or  prosecuted.  The 
party  is  not  to  be  restored  to  the  posses- 
fiix)n   of  anything.  Essentially,  it  is  an  appeal 


on  a  single  point;  and  the  defendant  who 
appeals  from  a  judgment  rendered  against 
him,  is  never  said  to  commence  or  pros- 
ecute a  suit  against  the  plaintiff  who  has 
obtained  the  judgment.  The  writ  of  er- 
ror is  given  rather  than  an  appeal,  be- 
cause it  is  the  more  usual  mode  of  re- 
moving suits  at  common  law;  and  be- 
cause, perhaps,  it  is  more  technically 
proper  where  a  single  point  of  law,  and 
not  the  whole  case,  is  to  be  re-examined. 
But  an  appeal  niight  be  given,  and  might 
be  so  regulated  as  to  efifect  every  purpose 
of  a  writ  of  error.  The  mode  of  removal 
is  form,  and  not  substance.  Whether  it 
be  by  writ  of  error  or  appeal,  no  claim  is 
asserted,  no  demand  is  made  by  the  orig- 
inal defendant;  he  only  asserts  the  con- 
stitutional right  to  have  his  defense  ex- 
amined by  that  tribunal  whose  province 
ir  is  to  construe  the  constitution  and  laws 
of  the  Union.  'If  -this  writ  of  error  be  a 
suit,  in  the  sense  of  the  11th  amendment, 
it  is  not  a  suit  commenced  or  prosecuted 
"by  a  citizen  of  another  state,  or  by  a  cit- 
izen or  subject  of  any  foreign  state."  It 
is  n  t,  then,  with'n  the  amendment,  but 
is  governed  entirely  by  the  ccnst'tution 
as  oricrinally  framed,  and  we  have  already 
seer,  that  in  its  origin,  the  judicial  power 
was  extended  t  ail  cases  aris'ng  under 
the  constitution  or  laws  of  the  United 
States,  without  respect  to  parties.'  "  Co- 
hens V.  Virginia,  6  Wheat.  264,  5  L.  Ed. 
257. 

24.  New  York  ex  rel.  Hat'-h  v.  Reardon, 
204  U.  S.  152,  51  L.  Ed.  415.  See,  also, 
Siipervisors  v.  Stanley,  105  U.  S.  305,  311, 
26  L.  Ed.  1044;  Lampassas  v.  Bell,  180 
V.  S.  276,  283.  284,  45  L.  Ed.  527;  Cla  'c 
z'.  Kansas  City,  176  U.  S.  114,  118,  44  L- 
Ed.  392;  Cronin  v.  Adams,  192  U.  S.  108. 
114,  48  L.  Ed.  365;  The  Winnebago,  205 
U.   S.   354,  360.  51  L.   Ed.  836. 

25.  Buel  V.  Van  Ness,  8  Wheat.  312,  5 
L.   Ed.  624. 

26.  Robb    V.    Connolly,    111    U.    S,    624, 


APPEAL  AXD  ERROR. 


571 


the  United  States  were  expressly  and  in  due  time  asserted,  and  the  effect  of  the 
judgment  was  to  deny  these  rights,  the  power  to  decide  whether  the  federal  issue 
was  rightly  disposed  of  by  the  state  court  involves  the  exercise  of  jurisdiction.^ 
p.  Showing  as  to  Jurisdiction^ — (1)  In  General. — The  rule  is  well  settled, 
that  it  must  appear  from  the  record  that  the  highest  court  of  the  state  passed 
on  one  of  the  questions  described  in  the  judiciary  act.^*^ 


637,  28  L.  Ed.  542;  Arkansas  v.  Kansas, 
etc.,  Coal  Co.,  183  U.  S.  185,  190,  46  L. 
Ed.  144.  reaffirmed  in  Board,  etc..  of 
Frankfort  v.  Stat-e  Nat.  Bank,  184  U.  S. 
696,  46  L.  Ed.  763;  Missouri  Pac.  R.  Co. 
V.  Fitzgerald,  160  U.  S.  556,  583,  40  L.  Ed. 
526,  reaffirmed  in  Jeske  v.  Cox,  171  U.  S. 
685,  43    L.    Ed.   1179. 

The  state  courts  are  perfectly  compe- 
tent to  decide  federal  questions  arising 
before  them  and  it  is  their  duty  to  do  so. 
Robb  V.  Connolly,  111  U.  S.  624,  637,  28 
L.  Ed.  542;  Missouri  Pac.  R.  Co.  v.  Fitz- 
gerald. 160  U.  S.  556,  583.  40  L.  Ed.  536. 
And  the  presumption  is  in  all  cases  tliat 
the  state  courts  will  do  what  the  con- 
stitution and  laws  of  the  United  States 
require.  Chicago,  et<.,  R.  Co.  v.  Wiggins 
Ferrv  Co.,  108  U.  S.  18.  27  L.  Ed.  636; 
Shreveport  v.  Cole,  129  U.  S.  36,  32  L.  Ed. 
589;  Neal  v.  Delaware,  103  U.  S.  370.  389.  26 
L.  Ed.  567;  New  Orleans  v.  Benjamin,  153 
U.  S.  411,  434.  38  L.  Ed.  764.  If  error 
supervenes,  the  remedy  is  found  in  §  709 
of  the  Revised  Statutes.  Defiance  Water 
Co.  V.  Defiance,  191  U.  S.  184,  193,  48  L. 
Ed.    140. 

On  an  appeal  from  a  judgment  order- 
ing the  is?ne  of  a  mandamus  to  compel 
the  collection  of  a  tax  to  pay  a  judgment 
recovered  against  a  municipal  corpora- 
tion, the  appellate  court  may  authorize  an 
inquiry  whether  the  judgment  was  founded 
upon  a  contract  or  a  tort,  with  a  view  to 
determine  whether  there  was  an  impair- 
ment of  the  obligation  of  a  contract;  but 
has  no  authority  to  re-examine  the  va- 
lidity of  the  contract  or  the  propriety 
of  the  original  judgment.  That  would 
involve  a  retrial  of  the  case.  Nelson  v. 
St.  Martin's  Parish,  111  U.  S.  716,  28  L. 
Ed.  574. 

27.  Penn.,  etc.,  Ins.  Co.  v.  Austin,  168 
U.  S.  685,  42  L.  Ed.  626;  Andrews f.  An- 
drews. 188  U.  S.  14,  28,  47  L.  Ed.  366,  re- 
affirmed in  Winston  v.  Winston,  189  U. 
S.   «)6.   47   L.   Ed.   922. 

The  state  court  may  construe  a  stat- 
ute and  define  its  meaning,  but  whether 
its  construction  creates  a  tax  within  the 
meaning  of  a  federal  statute,  giving  a 
preference  to  taxes,  is  a  federal  question, 
of  ultimate  decis'on  in  this  court.  New 
Jersey  v.  Andersoi.,  203  U.  S.  483.  492, 
£.x  L.  Ed.  284. 

1.  The  various  sections  under  t'^e  held 
"Decisions  Reviewable"  in  this  subdivi- 
sic  n  must  also  be  consu.^ed  in  this  con- 
nection. 

28.  Miller  v.  Nicholls,  4  Wheat.  311.  4 
L.  Ed.  578;  Smith  v.  Hunter,  7  How. 
738,  12  L.  Ed.  894;     Allen  v.  Tarlton,  154 


U.  S.  596,  21  L.  Ed.  955;  Goodenough 
Horse  Shoe  Co.  v.  Rhode  Island  Horse 
Shoe  Co.,  154  U.  S.  635,  24  L.  Ed. 
368;  In  re  Robertson,  156  U.  S.  183,  3» 
L.  Ed.  389;  In  re  Buchanan,  158  U.  S- 
31,  39  L.  Ed.  884;  Hoyt  V.  Shelden,  1 
Black  518,  17  L.  Ed.  65;  Clarke  v.  Mc- 
Dade.  165  U.  S.  168,  41  L.  Ed.  673;  In- 
surance Co.  V.  The  Treasurer,  11  WaH. 
204,  20  L.  Ed.  112;  New  York,  etc.,  R. 
Co.  V.  Woodruff,  153  U.  S.  689,  38  L.  Ed. 
869;  Fowler  v.  Lamson,  164  U.  S.  252, 
41  L.  Ed.  424;  Nordstrom  v.  Washiag- 
tcn,  164  U.  S.  705.  41  L.  Ed.  1183;  Rec- 
tor V.  Ashley,  6  Wall.  142,  18  L.  Ed.  733; 
Skaneateles  Water  Works  Co.  v.  Skan- 
eateles.  184  U.  S.  354,  358.  46  L.  Ed.  585, 
reaffirmed  in  Farmers'  Loan  &  Trust  Co. 
V.    Sioux    Falls,    199  U.  S.  601,  50  L.  Ed.  33S. 

No  writ  of  error  lies  to  the  highest 
court  of  law  or  eqaity  of  a  state 
under  the  25th  section  of  the  judiciary 
act  of  1789,  unless  there  is  something 
apparent  on  the  record  bringing  the  case 
within  the  appellate  jurisdiction  of  this 
court.  Inglee  v.  Coolidge,  2  Wheat.  363, 
4  L.  Ed.  261. 

Until  the  record  of  the  judgment,  we 
are  called  upon  to  examine  discloses  the 
question  necessary  to  give  us  ju- 
risdiction, we  cannot  proceed.  Good- 
enough  Horse  Shoe  Co.  v.  Rhode  Island 
Horse    Shoe  Co.,  154  U.  S.  635,  34  L.  Ed.  368. 

In  order  to  give  jurisdiction  under  the 
25th  section  of  the  judiciary  act,  it  must 
appear  from  the  record  of  the  case,  either 
in  express  terms  or  by  clear  and  neces- 
sary intendment,  that  one  of  the  ques- 
tions which  this  court  has  jurisdiction  to 
re-examine  and  decide  was  actually  de- 
cided by  a  state  court.  Medberry  v.  Ohio, 
24  How.  413,  16  L.  Ed.  739. 

In  order  to  give  jurisdiction  to  the 
supreme  court  under  the  25th  section  of 
the  act  of  congress  of  1789,  ch.  20,  it  is 
incumbent  on  the  plaintifif  to  show  that 
one  of  the  questions  enumerated  in  this 
act  arose  at  the  trial,  and  that  a  right 
he  claimed  under  the  United  States  con- 
stitution, or  an  act  of  crngress,  was  de- 
cided against  him.  Hoyt  v.  Sheldon,  1 
Black  518.  17  L.   Ed.  65. 

To  authorize  the  re-examination  of  a 
question  brought  here  as  within  the  25th 
section  of  the  judiciary  act,  the  conflict 
of  the  state  law  with  the  constitution  of 
the  United  States,  and  a  decision  by  a 
state  court  in  favor  of  its  validity,  must 
appear  on  the  face  of  the  record.  And 
the  question  must  have  been  necessarily 
involved  in  the  decision,  so  that  the  state 
court    could    not    have    given   a   judgment 


572 


APPEAL  AND  ERROR. 


In  the  lan^age  of  Mr.  Justice  Day,  nothing  is  better  settled  in  federal 
jurisprudence  than  that  the  jurisdiction  of  this  court  to  review  the  judgment  of 
the  state  court  under  §  709  of  the  Revised  Statutes  of  the  United  States  depends 
upon  the  assertion  of  a  right,  title,  privilege  or  immunity  under  the  federal  con- 
stitution or  laws  set  up  and  denied  in  the  state  courts.^ 

The  25th  section  of  the  act  to  establish  the  judicial  courts  oi  tfie  Utntcd 
States,  which  gives  to  this  court  the  power  of  revising  certain  judgments  of  state 
courts,  limits  that  power  in  these  words:  "But  no  other  error  shall  be  assigned 
or  regarded  as  a  ground  of  reversal,  in  any  such  case  as  aforesaid,  than  such  as 
appears  on  the  face  of  the  record,  and  immediately  respects  the  before-mentioned 
questions  of  validity  or  construction  of  the  said  constitution,  treaties,  statute, 
commissions  or  authorities  in  dispute/'^**  Our  jurisdiction  to  revise  such  a  judg- 
ment is  very  strictly  limited  to  cases  where  some  rigiit  or  title  was  set  up  by 
a  party  under  the  general  government — its  constitution,  treaties,  or  laws,  and  was 
overruled.  It  is  this  federal  character  of  the  claim  decided  against  which  fur- 
nishes some  justification  for  a  revision  of  a  state  judgment  in  a  federal  court; 
and  unless  it  be  clearly  of  that  character,  the  foundation  as  well  as  the  policy 
for  our  interference  entirely  fails.  So  we  are  confined  in  our  inquiries  in  a  writ 
of  error  like  this,  under  the  twenty-fifth  section,  to  what  appears  on  the  record 
in  some  way  or  other,  not  only  to  have  been  set  up  under  the  United  States,  but 
declared  against  by  the  court."  ^  In  an  early  case,  Mr.  Chief  Justice  Marshall 
said:  "We  say,  with  confidence,  that  this  court  has  never  taken  jurisdiction, 
unless  the  case  as  stated  in  the  record  was  brought  within  the  provisions  of  the 
25th  section  of  the  judiciary  act.."^^ 


without  deciding  it.  Parmalee  v.  Law- 
rence. 11  Wall.  36,  20  L.  Ed.  48.  affirm- 
kig  Railroad  v.  Rock,  4  Wall.  177,  18 
L.   Ed.  381. 

This  court  cannot  review  the  decision 
of  a  state  court  construin-g  the  state  stat- 
ute, which  neither  of  itself,  nor  by  its  ap- 
pli-cation,  involves  a  conflict  with  the  con- 
stitution of  the  United  States.  The  con- 
flict of  a  state  law  with  the  constitution 
of  the  United  States,  and  a  decision  by  a 
state  court  in  favor  of  its  validity,  must 
appear  on  the  face  of  the  record,  before 
it  can  be  re-examined  in  this  court.  It 
must  appear  in  the  pleadings  of  the  suit, 
or  from  the  evidence  in  the  course  of  the 
trial,  in  the  instructions  asked  for,  or 
from  exceptions  taken  to  the  ruling  of 
the  court.  It  must  be  that  such  a  ques- 
tion was  necessarily  involved  in  the  de- 
cision, and  that  the  state  court  would  not 
have  given  a  judgment  without  deciding 
it.  Lawler  v.  Walker.  14  How.  149,  14  L. 
Ed.  364;  Grand  Gulf,  etc.,  R.  Co.  v.  Mar- 
shall, 12  How.  165,  13  L.  Ed.  93«;  Rob- 
ertsoB  V.  Coulter,  16  How.  106,  14  L.  Ed. 
864;  Michigan  Central  R.  Co.  v.  Mich- 
igan Southern  R.  Co.,  19  How.  378,  15 
L.  Ed.  689;  Congdon  v.  Goodman.  2 
Black  574,  17  L.  Ed.  257;  Lytle  v.  Ar- 
kansas. 22  How.  193,  16  L.  Ed.  306; 
Worthy  v.  The  Commissioners,  9  Wall. 
611,  19  L.  Ed.  565;  Gill  v.  Oliver,  11 
How.  529,  13  L.  Ed.  799;  Williams  v. 
Oliver,  12  How.  111.  125.  13  L.  Ed.  915. 

In  a  suit  to  recover  mineral  lands  on 
the  Pacific  coast,  with  the  mines  therein, 
an  allegation  of  record,  of  prior  posses- 
sicMi  of  the  land  for  the  p«rpose  of  taking 
OHt    the    minerals,    without    an    allegation 


"■'lat  such  possession  is  had  under  au- 
thority, or  by  some  treaty  or  statute  of 
the  United  States,  does  not  give  this 
court  jurisdiction  to  re-examine  the  case 
under  the  25th  section  of  the  judiciary 
act  of  1789.  Mining  Co.  v.  Boggs,  3  Wall. 
304.   17   L.    Ed.   245. 

The  finding  of  the  Maryland  court  of 
appeals,  that  there  was  no  fund  in  the 
state  treasury,  which  the  state  has  re- 
ceived from  the  federal  government,  upon 
which  the  comptroller  could  lawfully  draw 
his  warrant,  because  there  had  been  no 
appropriation  made  by  the  state  legis- 
lature for  the  payment  of  the  commis- 
sions here  claimed,  involves  no  federal 
question.  Chouteau  r.  Gibson,  111  U.  S. 
200.  28  L.  Ed.  400;  Detroit  City  R.  Co. 
V.  Guthard.  114  U.  S.  133,  29  L.  Ed.  118; 
Wailes  V.  Smith,  157  U.  S.  271,  276,  3» 
L.   Ed.  698. 

29.  Reals  v.  Cone,  188  U.  S.  184.  47  L, 
Ed.  435;  Pennsvlvania  R.  Co.  v.  Hughes, 
191   U.    S.   477,   485,   48   L.    Ed.   268. 

30.  Fisher  v.  Cockerell.  5  Pet.  248,  255, 
8   L.   Ed.   114. 

31.  Montgomery  v.  Hernandez, 
12  Wheat.  129.  6  L.  Ed.  575;  Crowell  v. 
Randell,  10  Pet.  368,  392,  9  L.  Ed.  458; 
McKmney  v.  Carroll.  12  Pet.  66.  9  L.  Ed. 
1002;  Pollard  v.  Kibbe.  14  Pet.  353, 
360,  10  L.  Ed.  490;  Coons  v.  Galla- 
her,  15  Pet.  18,  10  L.  Ed.  645,  646.  It 
niust,  too,  be  overruled  improperly;  other- 
wise is  no  grievance  to  be  redressed.  Doc 
V.   Eslava,  9  How.  421.  443,  13   L.  Ed.  200. 

32.  Fisher  v.  Cockerell.  5  Pet  248.  25€, 
8  L.  Ed.  114,  reviewing  Harris  v.  Dennie, 
3  Pet.  292,  7  L.  Ed.  683:  Craig  v.  Mis- 
.  juri,  4  Pet.  410,  7   L.   Ed.  903;   Owkig  V. 


APPEAL  AXD  ERROR.  573 

And  under  §  709  of  the  Revised  Statutes,  if  (lie  ground  on  which  the 
jurisdiction  of  this  court  is  invoked  is  that  the  vahdity  of  a  state  law  was 
drawn  in  question  as  in  conflict  with  the  constitution  of  the  United  States, 
and  the  decision  of  the  state  court  was  in  favor  of  its  vahdity,  this  must  ap- 
pear on  the  face  of  the  record,  before  the  decision  below  can  be  re-examined 
here. -^2  Where  it  does  not  appear  in  the  record  of  the  case  that  there  was  set 
up  any  authority  exercised  under  the  United  States,  nor  any  treaty  or  statute 
of  the  United  States,  in  virtue  of  which  it  was  taken,  and  where  it  nowhere 
appears  from  the  record  that  the  decision  of  the  state  court  was  against  tihe 
validity  of  any  such  authority,  treaty  or  statute,  the  case  is  wanting  in  the  re- 
quirement made  essential  to  our  jurisdiction  by  the  25th  section  of  the  judiciary 
act.34  If  the  conflict  of  a  state  law  with  the  constitution  and  the  decision  by 
the  state  court  m  favor  of  its  validity  are  relied  on,  this  must  appear  on  the 
face  of  the  record  before  the  decision  can  be  re-examined  in  this  court,  and 
this  is  equally  true  where  the  denial  of  a  title,  right,  privilege  or  immunity  under 
the  constitution  and  laws  of  the  United  States,  or  the  validity  of  an  authority 
exercised  under  the  United  States,  is  urged  as  the  ground  of  jurisdiction.^^ 

Corporations  Created  under  Acts  of  Congress. — This  court  has  no  juris- 
diction to  review  the  proceedings  of  a  state  court  merely  on  the  ground  that  the 
defendant  is  a  body  politic,  incorporated  by  an  act  of  the  state  legislature.  To 
sustain  a  writ  of  error  from  this  court  to  the  state  court  in  such  a  case,  it  must 
appear  from  the  pleadings,  evidence,  or  decree,  that  the  validity  of  the  act  of 
incorporation  was  drawn  in  question.  The  validity  of  the  act  is  not  drawn  in 
question  where  the  defendants  assert  that  they  and  those  under  whom  they 
claim  were  owners  of  the  land  in  dispute  before  the  passage  of  the  act,  as  well 
as  afterwards,  and  where  the  plaintiffs  assert  title  in  themselves  under  a  deed 
in  no  way  connected  with  the  act.-^^ 

Denial  of  Rights  under  Federal  Constitution  or  Laws  of  Congress. — 
Where  the  validity  of  no  treaty  or  statute  of,  or  authority  exercised  under,  the 
United  States,  nor  of  a  statute  of,  or  authority  exercised  under,  any  state,  was 
drawn  in  question,  it  is  essential  to  the  maintenance  of  our  jurisdiction  that  it 
should  appear  that  some  title,  right,  privilege,  or  immunity  under  the  constitu- 
tion or  laws  of  the  United  States  was  specially  set  up  or  claimed  in  the  state 
court,  and  that  the  decision  of  the  highest  court  of  the  state,  in  which  such  de- 
cision could  be  had,  was  against  the  title,  right,  privilege,  or  immunity  so  set  up 
or  claimed.'^"  The  right  on  which  the  party  relies  must  have  been  called  to  the 
attention  of  the  court,  in  some  proper  way,  and  the  decision  of  the  court  must 
have  been  against  the  right  claimed  ;^^  or,  at  all  events,  it  must  appear  from  the 
record,  by  clear  and  necessary  intendment,  that  the  federal  question  was  di- 
rectly involved  so  that  the  state  court  could  not  have  given  judgment  without  de- 
ciding it :  that  is.  a  definite  issue  as  to  the  possession  of  the  right  must  be  dis- 
tinctly deducible  from  the  record  before  the  state  court  can  be  held  to  have  dis- 
posed of  such  federal  question  by  its  decision. ^^ 

Norwood,    5    Cranch    344.    3    L.    Ed.    120;  183,   39    L.    Ed.    941,   reaffirmed    in    Texas, 

Miller   v.    Nicholls,    4    Wheat.    311,    312,    4  etc.,    R.    Co.   r.    Gay.    167   U.    S.    745,   42    L. 

L.    Ed.    .'i78.  Ed.    1209;      McNultv  r.    California,   149   U. 

33.  Dibble  v.  Bellingham  Bay  Land  Co.,  S.  645,  37  L.  Ed.  882.  citing  Spies  v.  III- 
163  U.  S.  63.  70.  41  L.  Ed.  72;  Miller  v.  inois.  123  U.  S.  131.  31  L.  Ed.  80;  In  re 
Cornwall  R.  Co.,  168  U.  S.  131,  133,  42  L.  Kemmler,  136  U.  S.  436,  34  L.  Ed.  519; 
Ed.  409.  reaffirmed  in  Charleston,  etc.,  Caldwell  v.  Texas,  137  U.  S.  692.  34  L- 
Bridge  Co.  z'.  W.  Va.,  168  U.  S.  704.  42  L.  Ed.  816;  Leeper  r.  Texas,  139  U.  S.  462, 
Ed.  1212;  Lufkin  v.  Lufkin,  192  U.  S.  35  L.  Ed.  225;  Xordstrom  v.  Washing- 
6Q1.  48   L.   Ed.   583.  ton,   164  U.   S.   705.  41   L.  Ed.   1183. 

34.  Merced  Mining  Co.  v.  Boggs,  3  38.  Hoyt  z'.  Sheldon.  1  Black  518.  17  L- 
Wall.  304,  18  L.  Ed.  245.                                             Ed.    65;      Maxwell    v.    Newbold.    18    How. 

35.  Dibble  z'.  Bellingham  Bay  Land  Co.,  511,  515,  15  L.  Ed.  506;  Sayward  z:  Denny, 
163  U.  S.  63.  70.  41   L.  Ed.  72.'  158    U.    S.    180,    184,    39    L.    Ed.    941,    reaf- 

36.  Attorney-General  v.  Federal  Street  firmed  in  Texas,  etc..  R.  Co.  v.  Gay,  167 
Meeting  House,  1  Black  262,  17  L.  Ed.  62.        U.    S.   745,   42   L.   Ed.   1209. 

37.  Sayward   v.    Denny,    158    U.    S.    180,  39.     Powell    v.    Brunswick    County,    15f 


574 


APPEAL  AND  ERROR. 


Distinguished  from  Writ  of  Error  to  Territorial  Court. — A  writ  of  er- 
ror to  review  the  judgment  of  the  highest  tribunal  of  a  state  stands  on  far  dif- 
ferent ground  from  a  case  removed  from  a  territory,  and  cannot  be  maintained 
in  the  absence  of  a  federal  question  giving  us  jurisdiction.**^ 

(2)  That  Federal  Question  Was  Actually  or  Necessarily  Raised  and  Decided 
— aa.  In  General. — It  has  been  repeatedly  decided,  under  §  709  of  the  Revised 
Statutes,  and  was  the  settled  construction  of  the  twenty-fifth  section  of  the  ju- 
diciary act  of  1789,  that  to  give  this  court  jurisdiction  of  a  writ  of  error  to  a 
state  court,  it  must  appear  aflfirmatively,  not  only  that  a  federal  question  was  pre- 
sented for  decision  to  the  highest  court  of  the  state  having  jurisdiction,  but  that 
its  decision  was  necessary  to  the  determination  of  the  cause,  and  that  it  was 
actually  decided,  or  that  the  judgment  as  rendered  could  not  have  been  given  with- 
out deciding  it.-*^    "In  order  to  give  this  court  jurisdiction  of  a  writ  of  error  to  re- 


U.  S.  433,  37  L.  Ed.  1134;  Sayward  v. 
Denny,  158  U.  S.  180.  184,  39  L.  Ed.  941, 
reaffirmed  in  Texas,  etc.,  R.  Co.  v.  Gay, 
167    U.    S.    743,   43    L.    Ed.    1209. 

40.  Davis  v.  Texas,  139  U.  S.  651,  657, 
35  L.  Ed.  300.  distinguishing  Calton  v. 
Utah,   130  U.   S.  83,  32   L.   Ed.   870. 

41.  Brown  v.  Atwell,  92  U.  S.  327,  23 
L.  Ed.  511;  Citizens'  Bank  v.  Board  of 
Liquidation,  98  U.  S.  140.  25  L.  Ed.  114; 
Chouteau  v.  Gibson,  111  U.  S.  200,  28  L. 
Ed.  400;  Adams  County  v.  Burlington, 
etc.,  Co.,  112  U.  S.  123.  28  L.  Ed.  678; 
Detroit  City  R.  Co.  v.  Guthard,  114  U.  S. 
133,  29  L.  Ed.  118;  New  Orleans  Water 
Works  Co.  V.  Louisiana  Sugar  Ref.  Co.. 
125  U.  S.  18,  31  L.  Ed.  607;  De  Saussure 
r.  Gaillard,  127  U.  S.  216,  217,  234.  32  L. 
Ed.  125;  Bridge  Proprietors  v.  Hoboken, 
etc.,  Co.,  1  Wall.  116,  143.  17  L.  Ed.  571; 
Delaware  City  Nav.  Co.  v.  Reybold,  142 
U.  S.  636,  35  L.  Ed.  1141;  Michigan  Sugar 
Co.  V.  Michigan,  185  U.  S.  112,  46  L.  Ed. 
829;  Murdock  v.  Memphis,  20  Wall.  590, 
32  L.  Ed.  429;  Cook  County  v.  Calumet, 
€tc..  Canal  Co.,  138  U.  S.  635,  34  L.  Ed. 
1110;  Eustis  V.  Bolles,  150  U.  S.  361.  37 
L.  Ed.  1111;  Pierce  v.  Somerset  Railway, 
171  U.  S.  641,  43  L.  Ed.  316;  Harrison  v. 
Morton,  171  U.  S.  38,  47.  43  L.  Ed.  63; 
Carnahan  v.  Connolly,  187  U.  S.  636,  47 
L.  Ed.  343;  Cueli  v.  Rodriguez,  198  U.  S. 
581.  49  L.  Ed.  1172;  Thomas  v.  Blair.  196 
U.  S.  637,  638,  49  L.  Ed.  630;  Rose  v. 
Kansas,  203  U.  S.  580.  51  L.  Ed.  326;  Cali- 
fornia Powder  Works  v.  Davis,  151  U.  S. 
389,  396,  38  L.  Ed.  206;  Missouri  Pac.  R. 
Co.  V.  Fitzgerald,  160  U.  S.  556,  576.  40 
L.  Ed.  536;  Fowler  v.  Lamson.  164  U.  S. 
252,  255,  41  L.  Ed.  424;  Harding  v.  Illi- 
nois. 196  U.  S.  78,  88,  49  L.  Ed.  394;  Otis 
Co.  V.  Ludlow  Mfg.  Co.,  201  U.  S.  140, 
151,  50  L.  Ed.  696;  Louisville,  etc.,  R.  Co. 
V.  Louisville,  166  U.  S.  709,  41  L.  Ed. 
1173;  Oxley  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  41  L.  Ed.  1149;  Kipley  v. 
Illinois.  170  U.  S.  182,  42  L.  Ed.  998; 
Green  Bay.  etc..  Canal  Co.  v.  Patten  Pa- 
per Co.,  172  U.  S.  58.  43  L.  Ed.  364;  Capi- 
tal Nat.  Bank  v.  First  Nat.  Bank,  172  U. 
S.  425.  42  L.  Ed.  502;  Citizens'  Sav.  Bank 
r.  Owensboro,  173  U.  S.  636,  643,  644.  43 
L.    Ed.    840;    Jeske  v.   Cox,    171   U.    S.    685, 


43  L.  Ed.  1179;  Wood  Mowing,  etc.,  Co. 
V.  Skinner,  139  U.  S.  293,  295,  35  L.  Ed. 
193;  Craemer  v.  Washington.  164  U.  S. 
704,  41  L.  Ed.  1183;  Krug  v.  Washington, 
164  U.  S.  704,  41  L.  Ed.  1183;  Miller  v. 
Swann.  150  U.  S.  132,  37  L.  Ed.  1028; 
Snell  V.  Chicago,  152  U.  S.  191,  196,  3« 
L.  Ed.  408;  California  v.  Holladay,  159  U. 
S.  415,  40  L.  Ed.  202;  San  Francisco  v. 
Itsell,  133  U.  S.  65,  33  L.  Ed.  570;  Beatty 
V.  Benton,  135  U.  S.  244,  34  L.  Ed.  124; 
Hoadley  v.  San  Francisco.  94  U.  S.  4,  24 
L.  Ed.  34;  Hoadley  v.  San  Francisco,  124 
U.  S.  639,  31  L.  Ed.  553;  Klinger  v.  Mis- 
souri, 13  Wall.  257.  263,  20  L.  Ed.  635; 
Hopkins  v.  McLure.  133  U.  S.  380.  33  L. 
Ed.  660;  Blount  v.  Walker,  134  U.  S.  607, 
614,  33  L.  Ed.  1036;  Davidson  v.  Starcher. 
154  U.  S.  566,  appx.,  19  L.  Ed. 
52;  McLaughlin  v.  Fowler,  154  U.  S. 
663,  26  L.  Ed.  176;  Johnson  v.  Risk,  137  U. 
S.  300,  307,  34  L.  Ed.  683;  Grey  v.  Coan, 
154  U.  S.,  appx..  589.  38  L.  Ed.  1088;  David- 
son V.  Connelly,  154  U.  S.,  appx.,  589,  38 
L.  Ed.  1088;  Hagar  v.  California,  154  U.  S., 
appx.,  639,  24  L.  Ed.  1044;  Ocean  Ins.  Co. 
V.  Polleys,  13  Pet.  157,  10  L.  Ed.  105; 
Parmalee  v.  Lawrence.  11  Wall.  36,  38,  20 
L.  Ed.  48;  Gross  v.  United  States  Mort- 
gage Co.,  108  U.  S.  477,  485.  27  L.  Ed. 
795;  Felix  v.  Scharnweber,  125  U.  S.  54, 
59.  31  L.  Ed.  687;  Roby  v.  Colehour,  146 
U.  S.  153,  159,  36  L.  Ed.  922;  Schaefer  V. 
Werling,  188  U.  S.  516,  518,  47  L.  Ed. 
570;  Hale  v.  Akers,  132  U.  S.  554.  565,  33 
L.  Ed.  442;  Butler  v.  Gage,  138  U.  S.  52, 
34  L.  Ed.  869;  Beaupre  v.  Noyes.  138  U. 
S.  397,  34  L.  Ed.  991;  Leeper  v.  Texas, 
139  U.  S.  462,  35  L.  Ed.  225;  Henderson 
Bridge  Co.  v.  Henderson  City.  141  U.  S. 
679,  35  L.  Ed.  900;  Hammond  v.  Johnston, 
142  U.  S.  73,  35  L.  Ed.  941;  New  Orleans  z/.- 
New  Orleans  Water  Works  Co.,  142 
U.  S.  79,  35  L.  Ed.  946;  O'Neal  v. 
Vermont,  144  U.  S.  323,  336.  36  L. 
Ed.  450;  Crowell  v.  Randell,  10  Pet. 
368,  392.  9  L.  Ed.  458;  McKinney  v. 
Carroll,  12  Pet.  66,  9  L.  Ed.  1002;  Coons 
V.  Gallaher,  15  Pet.  18.  10  L.  Ed.  645; 
Fulton  V.  McAffee,  16  Pet.  149,  10  L.  Ed. 
918;  Smith  v.  Hunter,  7  How.  738,  743,  12 
L.  Ed.  894;  Brown  v.  Colorado,  106  U.  S. 
95,  97,  27  L.  Ed.  132;  Kansas  Endowment 


APPEAL  AND  ERROR. 


575 


view  a  judgment  which  the  highest  court  of  a  state  has  rendered  in  favor  of  the 
validity  of  a  statute  of  or  an  authority  exercised  under  a  state,  the  vahdity  of  the 


Ass'n  V.  Kansas,  120  U.  S.  103,  104,  30  L. 
Ed.  593;  Choteau  v.  Marguerite,  12.  Pet. 
509,  9  L.  Ed.  1174;  Marrow  v.  Brinkley. 
129  U.  S.  178,  181,  32  L-  Ed.  654;  Marshall 
z!.  Knott,  131  U.  S..  appx.  ccv;  Edwards  z^. 
Elliott,  21  Wall.  532,  558,  22  L.  Ed.  487; 
Armstrong  r.  The  Treasurer,  16  Pet.  281, 

10  L.  Ed.  965;  Hurley  z'.  Street,  14  Wall. 
85.  86.  20  L.  Ed.  786;  Lownsdale  v.  Par- 
rish.  21  How.  290;  16  L.  Ed.  80;  The  Vic- 
tory, 6  Wall.  382.  384.  18  L.  Ed.  848;  Grand 
Gulf,  etc.,  R.  Co.  V.  Marshall,  12  How. 
165,  13  L.  Ed.  938;  Planters'  Bank  v. 
Sharp,  6  How.  301,  12  L.  Ed.  447;  Bald- 
win V.  Payne.  6  How.  301.  332.  12  L.  Ed. 
447;  Maxwell  v.  Newbold,  18  How.  511, 
15  L.  Ed.  506;  Boughton  v.  Exchange 
Bank,  104  U.  S.  427,  26  L.  Ed.  765;  Murray 
T.  Charleston,  96  U.  S.  432,  24  L.  Ed.  760; 
Dugger  V.  Bocock.  104  U.  S.  596,  603,  26 
L.  Ed.  846;  Taylor  z\  Morton.  2  Black 
481,  483.  17  L.  Ed.  277;  Scott  v.  Jones,  5 
How.  343.  376.  12  L.  Ed.  181;  Williams  v. 
Norris,  12  Wheat.  117.  6  L.  Ed.  571;  Mc- 
.Bride  v.  Hoey,  11  Pet.  167,  9  L.  Ed.  673; 
Fisher  v.  Cockerell,  5  Pet.  248,  8  L.  Ed. 
114;  Commercial  Bank  z'.  Buckingham,  5 
How.  317.  341,  12  L.  Ed.  169;  Lawler  v. 
Walker.  14  How.  49.  14  L.  Ed.  364;  Rail- 
road V.  Rock.  4  Wall.  177,  180.  18  L. 
Ed.  381;  Hoyt  v.  Sheldon,  1  Black  -518. 
521,  17  L.  Ed.  65;  Hamilton  Co.  r. 
Massachusetts.  6  Wall.  632.  18  L.  Ed.  904; 
Furman  v.  Nichol,  8  Wall.  44,  19  L.  Ed. 
370;  Aldrich  v.  TEtua  Ins.  Co.,  8  Wall. 
491.  19  L.  Ed.  473;  Gibson  v.  Chouteau, 
8  WaU.  314.  19  L.  Ed.  317;  Cockroft  v. 
Vose.  14  Wall.  5.  20  L.  Ed.  875;  Maney 
v.  Porter,  4  How.  55,  11  L.  Ed.  873;  Boi- 
ling z:  Lersner.  91  U.  S.  594,  595,  23  L. 
Ed.  366;   Insurance   Co.  v.  The  Treasurer, 

11  Wall.  204,  20  L.  Ed.  112;  Santa  Cruz 
County  Supervisors  z\  Santa  Cruz  R.  Co., 
Ill   U.   S.   361.   28   L.   Ed.   456. 

Questions  not  decided  in  the  state  court, 
because  not  raised  or  presented  by  the 
complaining  party,  f/ill  not  be  re-ex- 
amined in  this  court  on  a  writ  of  error 
sued  out  under  the  twenty-fifth  section  of 
the  judiciary  act.  Hamilton  Co.  v. 
Massachusetts,  6  Wall.  632,  636,  18  L.  Ed. 
904.  Such  is  the  settled  practice,  and  the 
act  of  congress  provides  that  it  must  ap- 
pear that  the  question  presented  for  de- 
cision in  this  court  was  raised  in  the 
state  court,  and  that  the  decision  of  the 
state  court  was  given  as  required  by  that 
section.  Steines  z'.  Franklin  County,  14 
Wall.  15,  20  L.  Ed.  846:  Caperton  v. 
Bowyer.  14  Wall.   216.   237.  20   L.   Ed.   882. 

A  writ  of  error  will  not  lie  from  this 
court  to  a  state  court,  where  it  does  not 
appear  from  the  record  that  the  consti- 
tution, laws,  treaties,  or  executive  procla- 
mations of  the  United  States  were 
necessarily  involved  in  the  judgment 
rendered     by     the     court     below.       Beth- 


ell  V.  Demaret,  10  Wall.  537,  19  L. 
Ed.  1007;  Delmas  v.  Merchants'  Ins.  Co., 
14  Wall.  661,  666.  20  L.  Ed.  757;  Tarver 
V.  Keach.  15  Wall.  67,  21  L.  Ed.  82;  Rock- 
hold  V.  Rockhold,  92  U.  S.  129,  23  L.  Ed. 
507;  New  York  Ins.  Co.  v.  Hendren, 
92   U.   S.   286.  23   L.   Ed.   709. 

"Only  such  questions  as  either  have 
been  or  ought  to  have  been  passed  upon 
by  that  court  in  the  regular  course  of  its 
proceedings  can  be  considered  by  us  upon 
error."  Fashnacht  v.  Frank,  23  Wall.  416, 
23  L.  Ed.  81;  Weatherly  v.  Bowie,  131  U. 
S.    215,    25    L.    Ed.    606. 

This  court  has  no  jurisdiction  to  re- 
examine the  judgment  of  a  state  court 
where  a  federal  question  was  not  in  fact 
passed  upon,  and  where  a  decision  of  it 
was  rendered  unnecessary  in  the  view 
which  the  court  below  took  of  the  case. 
McManus  v.  O'SulIivan,  91  U.  S.  578,  23 
L.   Ed.   390. 

In  a  case  where  an  alleged  violation  of 
the  constitution  of  the  United  States  is 
t-he  ground  of  error,  the  supreme  court 
has  no  jurisdiction,  unless  the  point  pre- 
sented b)^  the  assignment  and  joinder  was 
raised  and  decided  in  the  state  court  to 
which  the  writ  is  directed.  It  must  ap- 
pear that  the  pomt  was  raised  in  the  state 
court;  that  the  party  called  attention  to 
the  particular  clause  in  the  federal  con- 
stitution relied  upon,  and  to  the  right 
claimed  under  it.  and  that  the  question 
thus  distinctly  presented  was  ruled 
against  him;  and  if  these  things  do  not 
appear,  the  judgment  of  the  state  court 
cannot  be  reviewed  here.  Farney  v. 
Towle.   1   Black   350,   17   L.    Ed.   216. 

In  order  to  give  jurisdiction  to  this 
court  to  revise  the  judgment  of  a  state 
court,  under  the  25th  section  of  the  ju- 
diciary act,  a  question  must  not  only  ex- 
ist on  the  record,  actually  or  by  neces- 
sary intendment,  as  mentioned  in  that 
section  and  the  decision  of  the  court  as 
there  stated,  but  the  decision  must  be  con- 
trolling in  the  disposition  of  the  case;  or. 
in  the  language  of  some  of  the  cases  on 
the  subject,  "the  judgment  of  the  state 
court  would  not  have  been  what  it  is,  if 
there  had  not  been  a  misconstruction  of 
some  act  of  congress,  or  a  decision 
against  the  validity  of  the  right,  title, 
privilege,  or  exemption  set  up  under  it." 
(3  Pet.  292,  302.)  Or.  as  stated  by  Mr. 
Justice  Story,  in  Crowell  v.  Randell,  10 
Pet.  368.  392.  9  L.  Ed.  458.  where  he  re- 
viewed all  the  cases,  it  must  appear  "from 
the  facts  stated  by  just  and  necessary  in- 
ference, that  the  question  was  made,  and 
that  the  court  below  must,  in  order  to 
have  arrived  at  the  judgment  pronounced 
b}--  it.  have  come  to  the  very  decision  of 
that  question  as  indispensable  to  that 
judgment."  And  in  a  recent  case  (5  How. 
341).  foUow'-g  out  the  doctrine  of  the  pre- 


^7(> 


APPEAL  AND  ERROR. 


statute  or  authority  must  have  been  'drawn  in  question"  'on  the  ground  of  their 
being  repugnant  to  the  constitution,  laws  or  treaties  of  the  United  States.'   When 


vious  cases,  "It  is  not  enough  that  the 
record  shows  that  the  plaintiff  in  error 
contended  and  claimed  that  the  judgment 
of  the  court  impaired  the  obligation  of  a 
contract,  and  violated  the  provisions  of 
the  constitution  of  the  United  States,  and 
that  this  claim  was  overruled  by  the 
court;  but  it  must  appear  by  clear  and 
necessary  intendment  that  the  question 
must  have  been  raised,  and  must  have 
been  decided,  in  order  to  induce  the  judg- 
ment." Williams  v.  Oliver,  12  How.  Ill, 
13   L.   Ed.   915,   reaffirmed,   p.   921. 

Before  the  court  can  entertain  jurisdic- 
tion to  re-examine  a  judgment  or  decree 
of  a  state  court,  it  must  appear,  either  by 
express  averment  in  the  pleadings  or  by 
clear  and  necessary  intendment,  that  some 
one  of  the  questions  mentioned  in  the 
twenty-fifth  section  of  the  judiciary  act  or 
in  the  second  section  of  the  act  to  amend 
the  judiciary  act  was  raised  in  the  state 
court  and  that  it  was  there  decided  in 
the  manner  therein  required  to  give  this 
court  such  appellate  jurisdiction,  or  that 
the  state  court  could  not  have  reached  the 
conclusion  it  did  without  deciding  the 
question  and  in  the  manner  required  by 
those  provisions  to  give  this  court  juris- 
diction in  the  case.  Rector  v.  Ashley.  6 
Wall.  142,  147,  18  L.  Ed.  733;  Steines  v. 
Franklin  Countv,  14  Wall.  15,  20.  20  L. 
Ed.    846. 

Questions  not  decided  in  the  state 
court,  because  not  raised  and  presented 
by  the  complaining  party,  will  not  be  re- 
examined in  this  court  on  a  writ  of  error 
sued  out  under  the  twenty-fifth  section  of 
the  judiciary  act.  Apart  from  the  ques- 
tion of  jurisdiction  it  is  necessary  that  it 
shall  appear  that  the  question  presented 
for  decision  in  this  court  was  raised  in 
the  state  court,  and  that  the  decision  of 
the  state  court  was  given  as  required  in 
that  section.  Clear  and  necessary  intend- 
ment that  the  question  was  raised  and 
nmst  have  been  decided  PS  claimed  in  or- 
der to  have  induced  the  judgment,  is  suf- 
ficient, but  it  is  not  sufficient  to  show 
that  such  a  question  might  have  arisen  and 
been  applicable  to  the  case,  unless  it  ap- 
pears in  the  record  that  it  did  arise  and 
was  applied  by  the  state  court  in  dispos- 
ing of  the  controversy.  Hamilton 
Co.  V.  Massachusetts,  6  Wall.  632.  636,  18 
L.   Ed.   904. 

A  decision  of  the  highest  court  of  a 
state  adverse  to  the  claim  of  the  plaintiff 
in  error  that  by  reason  of  process  of 
garnishment  in  attachment  against  a  rail- 
road, in  the  action  removed  to  the  cir- 
cuit court  from  the  state  court,  the  cir- 
cuit court  acquired  exclusive  jurisdiction 
and  custody  of  the  moneys  due  from  the 
railroad  company  to  the  construction 
■company,  does  not  so  pass  upon  a  fed- 
eral question  as  to  furnish  ground  for  the 


interposition  of  this  court,  as  it  must  ap- 
pear affirmatively  not  only  that  a  federal 
question  was  presented  for  decision,  but 
that  its  decision  was  necessary  to  the  de- 
termination of  the  cause  and  that  it  was 
actually  decided  or  that  the  judgment  as 
rendered  could  not  have  been  given  with- 
out deciding  it.  Missouri  Pac.  R.  Co.  z\ 
Fitzgerald.  160  U.  S.  556.  40  L.   Ed.  536. 

Decision  must  be  adverse  to  plaintiff  in 
error. — To  give  us  jurisdiction  in  a  writ 
of  error  to  a  state  court,  a  federal  ques- 
tion must  not  only  exist  in  the  record,  but 
it  must  have  been  decided  against  the 
party  who  sues  out  the  writ.  Murdock 
z'.  Memphis,  20  Wall.  590,  22  L.  Ed.  429; 
Weatherly  v.  Bowie,  131  U.  S.  215,  25  L. 
Ed.  606;  Crowell  r.  Randell.  10  Pet.  368. 
392,  9  L.  Ed.  458;  Suydam  v.  WHliamson. 
20  How.  427,  440,  15  L.  Ed.  978;  Ed- 
wards V.  Elliott,  21  Wall.  532.  .'=58,  22  L. 
Ed.  487;  Smith  v.  Adsit,  16  Wall.  185, 
189.   21    L.    Ed.    310. 

The  appointment  of  a  receiver  of  a  con- 
struction company  by  the  highest  court 
of  a  state  to  collect  the  amount  of  a  de- 
cree against  a  railroad  company,  and  its 
holding  that  the  appointment  of  a  re- 
ceiver by  the  circuit  court  was  ineffectual 
to  divest  the  control  of  the  state  court 
ever  the  assets  of  the  construction  com- 
pany or  defeat  its  right  to  enforce  its 
judgment  in  the  accounting,  denies  no 
federal  right  of  the  plaintiff  in  error. 
Missouri  Pac.  R.  Co.  v.  Fitzgerald,  160  U. 
S.    556.    40    L.    Ed.    536. 

Distinguished  from  cases  brought  from 
circuit  court. — Cases  brought  here  by  writ 
of  error  to  a  state  court,  issued  under  the 
twenty-fifth  section  of  the  judiciarj^  act, 
stand  upon  a  very  different  footing  from 
cases  brought  by  error  from  the  circuit 
court,  as  in  such  a  case  it  must  appear 
on  the  face  of  the  record  in  express  terms 
or  by  necessary  implication,  that  some 
one,  at  least,  of  the  questions  described 
in  that  section  did  arise  in  the  state  court, 
and  that  the  question  so  appearing  in  the 
record  was  decided  in  the  state  court,  as 
required  in  that  section;  and  if  it  does 
not  so  appear  in  the  record,  then  this 
court  has  no  jurisdiction  of  the  case,  and 
in  that  event  the  writ  of  error  must  be 
dismissed;  as  this  court,  under  those  cir- 
cumstances, has  no  power  either  to  re- 
verse or  affirm  the  judgment  rendered  in 
the  state  court.  Suvdam  z'.  Williamson, 
20  How.  427,  440,  15  L.  Ed.  978;  Taylor 
V.  Morton.  2  Black  481.  483.  17  L.  Ed. 
277;  New  Orleans,  etc..  R.  Co.  v.  Morgan, 
10  Wall.   2.-R.  260,   19  L.   Ed.  892. 

Admissibility  of  evidence  in  ejectment. 
—In  Brown  z\  Colorado,  106  U.  S.  95.  27 
L.  Ed.  132,  a  writ  of  error  was  sued  out 
in  this  court  to  reverse  the  judgment  of 
the  snnreme  court  of  Colorado,  rendered 
in  a  suit  in  ejectment  brought  by  the  state 


APPEAL  AXD  ERROR. 


S77 


no  such  ground  has  been  presented  to  or  considered  by  the  courts  of  the  state, 
it  cannot  be  said  that  those  courts  have  disregarded  the  constitution  of  the.  United 


against  the  plaintiff  in  error.  It  was  not 
claimed  that  any  question  which  can  give 
us  jurisdiction  was  directly  raised  by  the 
pleadings,  but  on  the  trial  in  the  district 
court,  the  stste,  to  make  out  its  title,  of- 
fered m  evidence  a  deed  from  him  to  the 
territory  of  Colorado.  To  its  introduc- 
tion an  objection  was  made,  on  the 
ground,  among  others,  "that  the  territory 
of  Colorado  had  no  right  to  take  a  con- 
veyance of  real  estate  at  the  time  of  mak- 
ing the  deed  without  the  consent  of  the 
government  of  the  United  States."  This 
abjection  was  overruled  and  an  excep- 
tion taken.  When  the  case  went  to  the 
supreme  court,  one  of  the  assignments  of 
error  was  to  the  effect  that  the  court 
erred  in  receiving  this  deed  in  evidence. 
As  the  judgment  was  affirmed,  this  as- 
signment of  error  must  hare  been  over- 
poled.  But  the  court  held,  that  the  judg- 
ment was  not  reviewable  here,  because  it 
does  not  appear  that  the  court  below  de- 
cided against  the  validity  of  any  treaty, 
statute,  or  authority  of  the  United  States, 
or  in  favor  of  any  statute  or  authority  of 
a  state  claiming  to  be  repugnant  to  the 
constitution,  treaties,  or  laws  of  the 
United  States.  The  record  furnishes  no 
indication  that  any  statute  of  the  United 
States  was  brought  to  the  attention  of 
the  court  below,  and  a  ruling  asked  upon 
it  in  connection  with  the  objection  which 
was  made  to  the  admissibility  of  the  deed. 

A  federal  question  cannot  be  assumed 
to  have  been  raised  and  passed  on  in  a 
state  court  so  as  to  give  jurisdiction  to 
this  court,  under  the  25th  section,  when 
nothing  appears  in  the  record  to  show 
on  what  grounds  the  decision  of  the  mat- 
ter in  which  the  federal  question  is  al- 
leged to  be  involved,  was  made.  Caper- 
ton  V.  Bowyer,  14  Wall.  216.  20  L.  Ed. 
882. 

Allegations  by  counsel  here,  and  at- 
tempts to  show  that  the  plaintiff's  right 
under  the  constitution  of  the  United 
States,  has  been  infringed  by  the  decision, 
do  not  help  the  case,  if  the  right  has  not 
been  specially  set  up  in  the  court  below 
and  there  decided  against.  Worthy  i'. 
The  Commissioners,  9  Wall.  611,  19  L. 
Ed.  .56.^. 

Certificate. — This  court  has  jurisdiction 
to  review  on  writ  of  error  a  judgment  of 
a  state  court,  where  the  record  of  a  case 
in  a  state  court  shows  that  a  federal  ques- 
tion was  raised,  and  in  the  absence  of  an 
opinion  it  appears  by  the  certificate  made 
a  part  of  the  record  by  that  court,  that 
the  objection  relied  on  was  considered  by 
that  court  and  the  record  shows  that  the 
question  was  raised  and  the  certificate 
shows  that  it  was  not  treated  as  having 
been  raised  too  late  ur-'-r  the  local  pro- 
cedure,  a   point   upon     which      the      state 

1  U  S  Rnc-37 


court  is  the  judge.  Cincinnati,  etc., 
Packet  Co.  v.  Bay.  200  U.  S.  179,  182,  50 
L.  Ed.  428,  citing  Farmers',  etc.,  Ins.  Co. 
V.    Dobney,   189   U.    S.   301,   47    L.    Ed.   831. 

Return  to  writ  of  error. — To  give  us  ju- 
risdiction under  §  709  of  the  Revised 
Statutes,  it  must  in  some  way  appear 
from  the  return  which  is  made  to  the  writ 
of  error  that  "the  validity  of  a  treaty  or 
statute  of,  or  an  authority  exercised  un- 
der, the  United  States"  has  been  drawn 
in  question,  and  the  decision  is  against 
their  validity;  or  that  "the  validity  of  a 
statute  of,  or  an  authority  exercised 
under,  any  state"  has  been  drawn  in  ques- 
tion "on  the  ground  of  their  being  repug- 
nant to  the  constitution,  treaties,  or  laws 
of  the  United  States."  and  the  decision 
is  in  favor  of  their  validity;  or  that  some 
"title,  right,  privilege,  or  immunity  is 
claimed  under  the  constitution,  or  any 
treaty  or  statute  of,  or  commission  held 
or  authority  exercised  under,  the  United 
States,  and  the  decision  is  against  the 
title,  right,  privilege,  or  immunity"  so 
claimed.  Brown  v.  Colorado,  106  U.  S. 
95,   96,   27   L.    Ed.    132. 

Statement  on  motion  for  new  trial. — It 
has  long  been  settled,  that  this  court  has 
no  jurisdiction  to  review  the  judgment  of 
a  state  court  unless  it  distinctly  appears 
that  a  question  under  the  constitution  or 
a  law  of  the  United  States  not  only  might 
have  been  but  actually  was  raised  and 
decided.  Accordingly,  the  statement  on 
a  motion  for  a  new  trial  that  a  statute  of 
the  stpte  was  "unconstitutional  and  void," 
certainly  does  not  make  it  appear  unmis- 
takably on  the  face  of  the  record  that  the 
supreme  court  either  knew  or  ought  to 
have  known  that  the  validity  of  the  stat- 
ute in  question  was  challenged  on  ac- 
count of  its  repugnancy  to  the  constitu- 
tion or  laws  of  the  Un'^-f^d  States.  Kansas 
Endowment  Ass'n  v.  Kansas,  120  U.  S. 
103.   30   L.    Ed.   .503. 

A  statement  in  the  opinion  of  the 
highest  court  cf  a  strte  that  the  only  fed- 
eral question  in  the  cp  =  e  was  probably 
abandoned  as  "it  is  manifest  that  the  cir- 
cuit court  could  not  have  taken  jurisdic- 
tion." is  not  such  a  decision  of  the  ques- 
tion as  to  give  this  court  jurisdiction. 
Weatherlv  v.  Bowie.  131  U.  S.  21.-).  25  L- 
Ed.    606. 

Intention  of  parties  unavailing:. — Where 
the  highest  court  of  a  state  affirmed  the 
judgment  of  a  court  below,  because  no 
transcript  of  the  record  was  filed  in  the 
appellate  court,  such  affirmance  cannot 
be  reviewed  by  this  court  under  the 
twentv-fifth  section  of  the  judiciary  act. 
The  intention  of  the  parties  to  rP''se  a 
constitiitional  ouestion  is  not  enough.  It 
must  be  actually  raised  and  decid'^d  in 
tlie  highest  court  of  the  state.     Matheson 


-^78  APPEAL  AND  ERROR. 

States,  and  this  court  has  no  jurisdiction. "^- 

Fed^ral  Question  Must  Be  Necessarily  Decided. — In  a  case  brought  hen.- 
from  a  state  court,  under  the  twenty-fifth  section  of  the  judiciary  act,  the  recor  ! 
must  show  that  some  one  of  the  matters  mentioned  in  that  section  was  necessarily 
decided  by  the  court,  notwithstanding  there  may  be  a  certificate  from  the  presid 
ing  judge,  that  such  matters  were  drawn  in  question.  If  it  appears  from  tlx- 
record  that  the  state  court  might  have  decided  the  case  on  some  other  groun  1. 
tliis  court  has  no  jurisdiction.'*^     Before  this  court  can  entertain  jurisdiction  to 


.V.  Bank  of  Alabama,  7  How.  260,  12  L. 
Ed.  692. 

A  judgment  of  a  state  court' in  regard 
to  a  state  law  imposing  taxes,  when  it 
does  not  appear  by  express  averment,  or 
necessary  intendment,  or  by  the  record, 
that  any  questions  of  which  this  court  is 
entitled  to  take  cognizance,  under  the 
25th  section  of  the  judiciary  act,  arose  or 
was  decided  in  the  cause,  is  not  within 
the  jurisdiction  of  this  court  to  review. 
Christ  Church  z:  Philadelphia  County.  20 
How.  204,  15  L.  Ed.  803,  citing  16  Pet. 
282;   7   How.    738. 

Impairment  of  obligation  of  contract.^ 
Where  the  record  shows  that  a  federal 
question  was  not  necessarily  involved,  this 
court  has  no  jurisdiction  to  review  the 
decision  of  the  supreme  court  of  Louisi- 
ana, that  the  act  passed  January  24,  1874, 
does  not  authorize  the  funding  board  of 
that  state  to  fund  the  bonds  of  a  railroad 
company,  whereon  the  state  is  liable  only 
as  a  guarantor.  "The  act  onlj^  permitted 
the  funding  of  'valid  outstanding  bonds 
of  the  state,  and  valid  warrants  drawn 
previous  to  the  passage  of  the  act,"  and 
the  bonds  held  by  the  relator  were  not 
bonds  of  the  state,  but  bonds  of  the  rail- 
road company,  on  which  the  state  was 
liable  only  as  guarantor."  "As  the  state 
court  has  decided  as  a  question  of  state 
law  that  even  if  the  guaranties  of  the 
bond  are  valid  obligations  of  the  state. 
they  are  not  fundable  under  the  act.  it 
matters  not  in  this  suit  whether  the  de- 
cision against  their  validity  was  erro- 
neous or  not."  No  federal  question  hav- 
ing been  specially  raised  by  the  pleadings, 
and  the  record  showing  clearly  on  its  face 
that  the  decision  of  such  a  question  was 
not  necessarily  involved,  we  will  not  go 
through  the  opinion  of  the  court,  even  in 
Louisiana,  to  ascertain  whether  one  was 
in  fact  decided.  Citizens'  Bank  v.  Board 
of  Liquidation,  98  U.  S.  140,  142,  25  L. 
Ed.    114. 

If,  in  an  action  in  a  state  court  to  re- 
cover damages  for  death  by  wrongful  act, 
it  does  not  appear,  that  any  federal  ques- 
tion was  necessarily  involved  in  the  de- 
cision of  the  court  below,  or  that  any  was 
in  fact  decided,  a  motion  to  dismiss  for 
want  of  jurisdiction  will  be  granted. 
Staten  Island  R.  Co.  v.  Lambert,  131  U. 
S..   appx.   ccxi.  24  L.    Ed.   615. 

42.  Rev.  Stat.,  §  709;  Murdock  v.  Mem- 
phis, 20  Wall.  590,  634,22  L.  Ed.  429; 
Levy  V.  San   Francisco,   167   U.   S.   175,  42 


L.  Ed.  126;  Miller  v.  Cornwall  R.  Co.,  lOs 
U.  S.  131,  42  L.  Ed.  409;  Columbia  Watc. 
Power  Co.  v.  Columbia  St.  Railway  Co., 
172  U.  S.  475,  488,  43  L.  Ed.  521;  Scuddcr 
V.  Comptroller  of  New  York,  175  U.  S. 
32,   36.   44   L.    Ed.   62. 

When  the  jurisdiction  depends  upon  a 
right,  privilege  or  immunity  under  the 
constitution  of  the  United  States  specially 
set  up  and  denied  in  the  state  court,  cer- 
tain propositions,  it  is  said  by  Mr.  Chief 
Justice  Fuller,  speaking  for  the  court  in 
Sayward  v.  Denny.  158  U.  S.  180,  184,  39 
L.  Ed.  941,  are  well  settled,  among  others, 
"The  right  on  which  the  party  relies  must 
have  been  called  to  the  attention  of  the 
court,  in  some  proper  way,  and  the  de- 
cision of  the  court  must  have  been  against 
the  right  claimed.  Hoyt  v.  Sheldon,  1 
Black.  518.  17  L.  Ed.  65;  Maxwell  v.  New- 
bold,  18  How.  511,  515,  15  L.  Ed.  506.  Or, 
at  all  events,  it  must  appear  from  the 
record,  by  clear  and  necessary  intend- 
ment, that  the  federal  question  was  di 
rectly  involved  so  that  the  state  court 
could  not  have  given  judgment  without 
deciding  it."  Giles  v.  Teasley.  193  U.  S. 
146,  160,  48  L.  Ed.  655,  reafiirmed  in 
Delahanty  v.  Pitkin,  199  U.  S.  602,  50  L. 
Ed.   328. 

43.  Railroad  z:  Rock,  4  Wall.  177. 
18  L.  Ed.  381.  citing  Lawler  v.  Walker,  14 
How.  149.  14  L.  Ed.  364;  Mills  v.  Brown, 
16    Pet.    525,    10  L.    Ed.    1055. 

A  state  statute  directed  a  county 
treasurer  to  give  certificates  of  indebted- 
ness to  anj^  bank  in  the  county  for  the 
amount  of  tax  paid  on  its  investments  in 
the  public  indebtedness  of  the  United 
States,  "which  taxes  have  been  judicially 
decided  to  have  been  illegally  imposed  and 
collected."  To  an  alternative  mandamus 
to  compel  the  treasurer  to  give  such  cer- 
tificates, he  answered  that  it  had  net  been 
jiidiciall}^  decided  that  the  particular  tax 
v.-as  illegal.  A  peremptory  mandamus 
was  refused  by  the  state  court.  Held, 
that,  although  this  court  had  since  de- 
cided the  tax  to  be  illegal,  yet,  as  it  did 
not  appear  by  the  record  that  the  state 
court  passed  on  the  legality  or  illegality 
of  the  tax,  but  might  have  decided  the 
case  on  the  construction  of  the  state  stat- 
ute, this  court  had  no  jurisdiction  to  re- 
view the  decision  of  the  state  court.  In- 
surance Co.  z'.  The  Treasurer,  11  Wall. 
204.   20   L.    Ed.    112. 

Where  the  court  perceives  from  the 
pleadings  themselvs  that  a  case  may  have 


APPEAL  AND  ERROR. 


579 


review  a  judgment  of  the  state  court,  it  must  appear  that  one  of  the  questions 
mentioned  in  the  twenty-fifth  section  of  the  judiciary  act  was  raised  in  the 
state  court,  and  actually  decided  by  it;  that  is  to  say,  the  question  must  have 
received  the  consideration  or  attention  of  the  court.  It  is  not  sufficient  .that  this 
court  can  see  that  it  ought  to  have  been  raised,  and  that  it  might  have  been 
decided.^'*  But  where  federal  questions  are  directly  involved  in  the  pleadings, 
and  it  appears  that  none  of  the  other  defenses  set  up  in  the  state  court  afford  any 
legal  answer  to  the  suit,  the  conclusion  must  be  that  the  case  is  properly  here, 
as  this  court  will  not  presume  that  the  court  below  decided  the  issues  erroneously 
in  order  to  defeat  their  own  jurisdiction.*-^ 

"Was  Necessarily  Involved  in  the  Decision." — We  are  not  required  to 
re-examine  the  judgment  of  a  state  court  simply  because  a  federal  question  may 
jave  been  decided.  To  give  us  jurisdiction  it  must  appear  that  such  a  question 
"was  necessarily  involved  in  the  decision."'*^  In  a  late  case  it  was  said:  "Re- 
fore  we  can  pronounce  the  judgment  of  a  state  court  in  conflict  with  the  federal 
constitution,  it  must  be  made  to  appear  that  its  decision  was  one  necessarily  in 
conflict  therewith  and  not  that  possibly,  or  even  probably,  it  was."**''^ 

A  claim  or  right  which  has  never  been  made  or  asserted  cannot  be  said 
to  have  been  denied  by  a  judgment  which  does  not  refer  to  it.*^     A  point  that 


been  decided  on  the  form  of  remedy 
which  the  practice  in  the  state  courts  re- 
quired the  plaintiff  to  adopt,  or  on  the 
technical  insufificiency  of  the  pleading — 
and  especially  where  it  perceives  this 
more  plainly  from  reported  decisions  in 
the  state  courts — jurisdiction  of  the  case 
will  not  be  entertained  under  the  25th 
section  of  the  judiciary  act,  though  the 
court  can  also  perceive  that  the  case 
might  have  been  decided  on  grounds 
which  would  have  brought  it  within  that 
scctioii,  and  which,  therefore,  would  have 
given  to  the  court  jurisdiction.  Commer- 
cial Bank  v.  Rochester.  15  Wall.  639,  21 
L.   Ed.   117. 

44.  The  Victory.  6  Wall.  ,382,  18  L.  Ed. 
S48. 

45.  Maguire  z'.  Tyler,  8  Wall.  6.50.  665, 
19  L.  Ed.  320,  citing  Neilson  v.  Lagow, 
12  How.   98.    110,   13    L.    Ed.   909. 

Error  will  lie  to  the  supreme  court  of 
a  state  under  the  25th  section  of  the  ju- 
diciary act,  where  a  statute  of  the  United 
States  is  technically  in  issue  in  the  plead- 
ings, or  is  relied  on  in  them  and  is  de- 
cided against  by  rulings  asked  for  and 
refused,  even  though  the  case  may  have 
"been  disposed  of  generally  by  the  court 
on  other  grounds.  Minnesota  v.  Bachel- 
der,  1  Wall.   109,   17  L.   Ed.   551. 

46.  Armstrong  t'.  The  Treasurer,  16  Pet. 
"281,  282.  10  L.  Ed.  965;  Moore  v.  Missis- 
sippi, 21  Wall.  636,  638,  22  L.  Ed.  653; 
De  Saussure  v.  Gaillard,  127  U.  S.  216, 
32  L.  Ed.  125;  McPherson  v.  Blacker,  146 
U.  S.  1.  23,  36  L.  Ed.  869;  Louisville,  etc.. 
R.  Co.  V.  Smith,  etc.,  Co.,  204  U.  S.  551. 
556,   51    L.    Ed.    612. 

Where  a  case  is  carried  through  the 
«tate  courts  upon  arguments  drawn  from 
the  state  constitution  alone,  the  jurisdic- 
tion of  this  court  cannot  be  maintained 
"by  a  contention  on  the  part  of  the  plain- 
tiffs  in    error    that    the    question    of   their 


rights  under  the  constitution  of  the 
United  States  was  necessarily  involved  in 
a  decision,  because  it  appears  that  the 
state  law  logically  might  have  been  as- 
sailed as  invalid  under  the  constitution 
of  the  United  States,  upon  grounds  more 
or  less  similar  to  tbose  actually  taken. 
Osborne  7'.  Clark.  204  U.  S.  565,  51  L.  Ed. 
619,  distinguishing  Columbia  Water 
Power  Co.  7'.  Columbia  Street  Railway  Co., 
172  U.  S.  475,  43  L.  Ed.  521;  McCullough  v. 
Virginia,   172  U.  S.  102,  43  L.   Ed.  382. 

When  the  highest  appellate  court  of  a 
state  disposes  of  a  question  supposed  to 
arise  under  the  constitution  of  the  United 
States  without  a  direct  decision,  and  in 
a  way  that  is  decisive  of  it,  and  which  is 
not  repugnant  to  the  constitution  of  tb« 
United  Spates,  and  upon  a  ground  which 
was  not  evasive,  but  real,  then  the  de- 
cision of  the  alleged  federal  question  was 
not  necessary  to  the  judgment  rendered, 
and  consequently  this  court  has  no  juris- 
diction over  the  judgment.  Brooks  v. 
Missouri,  124  U.  S.  394,  31  L.  Ed.  454; 
Chouteau  r.  Gibson,  111  U.  S.  200,  28  L. 
Ed.  400;  Adams  County  z\  Burlington, 
etc..  R.  Co.,  112  U.  S.  123.  127,  28  L.  Ed. 
678;  Chapman  v.  Goodnow.  123  U.  S.  540, 
548,  31  L.  Ed.  235;  Murdock  v.  Memphis, 
20   Wall.    590,   636,   22   L.   Ed.   429. 

47.  Bachtel  7-.  Wilson,  204  U.  S.  36,  40, 
51   L.   Ed.  357. 

"We  certainly  do  not  mean  to  qualify 
or  limit  the  rule  that,  for  this  court  to 
entertain  jurisdiction  of  a  writ  of  error 
to  a  state  court,  it  must  appear  affirma- 
tively that  the  state  court  could  not  have 
reached  its  judgment  without  tacith',  if 
not  expressly,  deciding  the  federal  mat- 
ter. Bachtel  7-.  Wilson.  204  U.  S.  36,  51 
L.  Ed.  257."  Schlemmer  v.  Buffalo,  etc.,  R. 
Co.,  205  U.  S.  1,  11,   51  L.   Ed.  681. 

48.  Hamilton  Co.  7".  Massachusetts,  8 
Wall.     632,     18     L.     Ed.     904;     Dewey    v. 


580 


APPEAL  AND  ERROR. 


was  never  raised  cannot  be  said  to  have  been  decided  adversely  to  a  party,  who 
never  set  it  up  or  in  any  way  allticied  to  it.  Nor  can  it  be  said  that  the  necessary 
effect  in  law  of  a  judgment,  which  is  silent  upon  the  question,  is  the  denial  of  ai 
claim  or  right  which  might  have  been  involved  therein,  but  which  in  fact  was 
never  in  any  way  set  up  or  spoken  of>^ 

Where  State  Court  Has  Considered  Federal  Questions. — Whilst,  when 
a  state  court  has  considered  a  federal  question,  that  fact  may  serve  to  elucidate 
whether  a  federal  issue  properly  arises  for  consideration  by  this  court,  that  doc- 
trine has  no  application  to  a  case  where  the  controversy  presented  is  inherently 
not  federal,  and  incapable  of  presenting  a  federal  question  for  decision. ^*^ 

bb.  IVh^re  Federal  Question  Only  Collaterally  Involved. — In  order  to  give 
this  court  jurisdiction  to  review  the  judgment  of  a  state  court  against  a  title  or 
right  set  up  or  claimed  under  a  statute  of,  or  an  authority  exercised  under,  the 
United  States,  the  statute  or  authority  must  be  directly  in  issue;  if  the  statute  is 
only  collaterally  involved,  this  court  has  no  jurisdiction. ^^ 

cc.  Dismissal  for  Want  of  Jurisdiction. — This  court  has  no  jurisdiction,  where 
the  state  court  dismisses  the  cause  for  want  of  jurisdiction,  because  in  such  ease 
it  does  not  appear  that  a  federal  question  has  been  decided.^ ^ 

dd.  Dismissal  by  State  Court  for  Want  of  Proper  Appeal. — As  the  jurisdic- 
tion of  this  court  to  review  the  judgments  or  decrees  of  state  courts  when  a  fed- 


Des  Moines.  173  U.  S.  193,  200,  43  L. 
E<3.  66.''),  reaffirmed  in  Indiana  Power  Co. 
V.  Elkhart  Power  Co.,  187  U.  S.  036.  47 
L.    Ed    343. 

49.  Dewey  v.  Des  Moines,  17,3  U.  S.  193, 
260.  43  L.  Ed.  &65,  reaffirmed  in  Indiana 
Power  Co.  V.  Elkhart  Power  Co.,  187  U. 
S.    636,    47    L.    Ed.    343. 

50.  Elder  v.  Colorado,  204  U.  S.  85,  89, 
51   L.   Ed.   381. 

51.  Conde  v.  York,  168  U.  S.  642.  648, 
42  L.  Ed.  611,  reaffirmed  in  Farmers'  Na- 
tl* >nal  Bank  v.  Robinson.  176  U.  S.  681, 
682,  44  L.  Ed.  637.  distinguishing  .A.ldrich 
V.  yEtna  Ins.  Co.,  8  Wall.  491.  19  L.  Ed. 
473;  Railroads  v.  Richmond,  15  Wall.  3, 
21  E.   Ed.  118. 

This  court  has  no  jurisdiction  to  re- 
view the  judgment  of  a  state  court  on  the 
ground  that  it  denied  the  plaintifif  in  er- 
ror a  title  or  right  set  up  or  claimed  un- 
der §  3477  of  the  Revised  Statutes  of  the 
United  States  providing  that  all  transfers 
and  assignments  made  of  anj^  claim  upon 
the  United  States  shall  be  absolutely  null 
and  void,  unless  they  are  made  and  ex- 
ecuted in  a  certain  manner,  where  the 
e©ntroversy  in  said  court  is  merely  as  to 
which  of  the  claimants  had  the  superior 
equity  in  the  fund;  the  statute  being  only 
collaterally  involved,  and  the  plaintiffs  in 
error  asserting  no  right  to  the  money 
based  upon  it.  Conde  v.  York,  168  U. 
S.    642,   42   L.    Ed.   611. 

52.  Callan  v.  Bransford,  139  U.  S.  197, 
35    L.   Ed.    144. 

Where  two  parties  held  patents  for 
land  from  the  United  States,  under  Mexi- 
can grants,  both  of  which  included  the 
same  lands  in  part,  and  one  of  the  parties 
brought  a  suit  in  a  state  court  to  vacate 
the  patent  of  the  other,  to  the  extent  of 
Ae  conflict  of  title,  and  the  state  court 
refused    to    entertain    jurisdiction    of    the 


(juestion,  and  dismissed  the  complaint, 
this  court  has  no  jurisdiction,  under  the 
twenty-fifth  section  of  the  judiciary  act> 
to  review  the  judgments.  Semple  v.  Hagar,. 
4  Wall.  431,  18   L.  Ed.  402. 

Where  an  action  upon  a  mortgage  is 
brought  in  a  state  court,  and  in  the  course 
of  the  proceedings  in  that  court,  a  peti- 
tion for  removal  to  a  United  States  court 
was  filed,  and  the  state  court  denies  this 
petition  and  renders  a  money  juc'^ment 
in  favor  of  the  plaintiffs,  their  claim  un- 
der the  mortgage  being  denied,  and  the 
defendants  appeal  to  the  state  supreme 
court,  which  dismisses  the  appeal  for 
\vant  of  jurisdiction,  this  court  has  no 
jurisdiction.  The  judgment  of  the  state 
court  was  one  dismissing  the  suit  for  want 
of  jurisdiction.  Consequently,  that  court 
could  not  have  decided  the  federal  ques- 
tion presented  to  and  passed  upon  by  the 
district  court.  All  it  did  was  to  de- 
termine that  the  district  court  was  the 
higliest  court  of  the  state  in  which  a  de- 
cision in  the  state  could  be  had.  Lane 
i\  Wallace,  131  U.  S.,  appx..  ccxix,  26  L. 
Ed.  703. 

Where  a  complainant  setting  out  a 
case  in  the  highest  state  court,  for  equi- 
table relief  against  a  sale,  which  a  third 
party  had  undertaken  to  make  of  land, 
alleged  that  the  party  in  making  the  sale 
had  violated  an  act  of  congress,  and  that 
the  sale  was  therefore  null  and  void,  and 
the  state  court  dismissed  the  bill  for  want 
of  jurisdiction;  held,  that  although  the 
question  whether  the  sale  was  not  a 
nullity  might  have  been  presented,  yet 
that  the  case  having  been  dismissed  be- 
low for  want  of  jurisdiction,  it  did  not 
appear  that  a  federal  question  had  been 
decided,  much  less  that  it  had  been  de- 
cided advpfselv  to  the  complainant.  In- 
dependently of  this,  whatever  might  have 


APPEAL  AXD  ERROR.  581 

cral  question  is  presented  is  limited  to  the  review  of  a  final  judgment  or  decree, 
actually  or  constructively  deciding  such  question,  when  rendered  by  the  highest 
court  of  a  state  in  which  a  decision  in  the  suit  could  be  had,  if,  for  the  want  of 
a  proper  appeal  no  final  judgment  or  decree  in  such  court  has  been  rendered,  it 
results  that  the  statutory  prerequisite  for  the  exercise  of  the  reviewing  power 
of  this  court  is  wanting.  As  where  an  appeal  is  dismissed  for  want  of  jurisdic- 
tion by  the  supreme  court  of  the  state,  because  the  proper  parties  to  the  appeal 
are  wanting. •^•" 

ee.  Reasons  of  Rule. — The  reason  of  these  rules  is  obvious.  Our  jurisdiction 
for  the  review  of  a  judgment  of  the  highest  court  of  a  state  depends  on  the  de- 
cision by  tliat  court  of  one  or  mbre  of  the  questions  specified  in  §  709  Rev.  Stat., 
and  in  the  way  there  mentioned.  If  there  has  been  no  such  decision  in  the  suit, 
there  can  be  no  re-examination  of  the  judgment  here.  It  is  what  was  actually 
decided  that  we  are  to  consider,  not  what  might  have  been  decided;  and,  as  our 
jurisdiction  must  appear  affirmatively  on  the  face  of  the  record  before  we  can 
proceed,  the  record  must  show  either  in  express  terms  or  by  fair  implication,  not 
only  the  question,  but  its  decision.  It  is  not  enough  to  find  by  searching  after 
i,,.inrment.  that  the  requisite  question  might  have  been  raised  and  presented  for 
decision.     It  must  ai>pear  that  it  was  actually  raised  and  actually  decided.^* 

if.  Liiiiitafioiis  of  and  Exceptions  to  General  Rule. — But  this  court  has  had 
frequent  occasion  to  hold  that  it  is  not  always  necessary  that  the  federal  question 
should  appear  affirmatively  on  the  record,  or  in  the  opinion,  if  an  adjudication  of 
such  question  was  necessarily  involved  in  tlie  disposition  of  the  case  by  the  state 
court.55  It  is  equally  well  settled  that  the  failure  of  the  state  court  to  pass  on 
tl-'p  federal  right  or  immunity  speciallv  set  up,  of  record,  is  not  conclusive,  but 
this  court  will  decide  the  federal  question  if  the  necessary  effect  of  the  judgment 
is  :o  deny  a  federal  right  or  immunity  speciallv  set  up  or  claimed,  and  which,  if 
recognized  and  enforced,  would  require  a  judgment  diflFerent  from  one  resting 
u])on  some  ground  of  local  or  general  law.^^  This  court  has  jurisdiction,  in 
error,  over  a  judgment  of  the  supreme  court  of  a  state  when  it  necessarily  in- 
volves the  decision  of  the  question,  raised  in  that  appellate  court  for  the  first  time, 
and  not  noticed  in  its  opinion,  whether  a  statute  of  the  state  conflicts  with  the 
constitution  of  the  United  States.^'  In  the  language  of  Mr.  Justice  Holmes,  if 
the  question  is  duly  raised  and  the  judgment  necessarily,  or  by  what  appears  in 

been    the    reasons    for    the    decision,    the  here  by  writ   of  error  from   a   state   court 

qrp<=tion   wViether   the   state   court   had  ju-  that  the   federal   question  raised   here  was 

risdiction   of  the   case,  was   a  question  ex-  necessarily  involved  in  the  decision  there, 

clusively    for    the    state    tribunals.      Held,  the  court  will  not  dismiss  the  writ  on  mo- 

accordingly,    that    no    iurisdiction    existed  tion    to    dismiss    for    want    of   jurisdiction, 

here  in  such  a  case  under  the  25th  section  although   it   may   not   3Dpear   affirmatively 

of  the  judiciary  act  of  1780.  or  the  act  of  on    the    record    that     the      question      was 

1'ebruary    ■';th,    1867,     arfendatory      of      it.  raised    there.     Eureka    Lake    Co.    v.    Ytiba 

Smith    V.    Adsit,    16    Wall.    185,    21    L.    Ed.  CV-unty,    116    U.    S.    410,    29    L.    Ed.    671; 

310.  Chicago,    etc.,    R.    Co.    t'.    Illinois,    ?00    U. 

53.  Newman  v.  Gates.  204  U.  S.  89,  9.3,  S.  ."''il,  580.  50  L.  Ed.  596;  West  Chicago 
51   L.    Ed.    385.  R.    Co.   7.,    Chicago.  201   U.    S.    506.   520,   60 

54.  Brown  v.  Colorado,  106  U.  S.  95,  I..  Ed.  S45.  Compar-  Louisville,  etc.,  R. 
97,  27  L.  Ed.  132;  Detroit  City  R.  Co.  v.  Co.  v.  Smith,  etc.,  Co.,  204  U,  S.  551, 
Guthard,    114    U.    S.    133.    136,    29    L.    Ed.  556.   51   L.    Ed.   612. 

118.  Where    rights     under     a     statute    of    the 

55.  Wilson,  v.  Black  Bird  Creek  Marsh  United  States  are  claimed  bv  the  plaintiff 
Co..  2  Pet.  245.  7  L.  Ed.  412;  Armstrong  in  error  in  a  state  court,  and  that  statute 
r.  The  Treasurer.  16  Pet.  281.  10  L.  Ed.  i.s  referred  to  bv  the  state  court  and  is 
965;  Chicago  Life  Ins.  Co.  v.  Needles,  113  an  element  in  its  decision,  this  court  has 
U.  S.  574,  28  L.  Ed.  1084:  Eureka  I  nke  jurisdiction.  Hamm'^nd  t'.  Whittredge, 
Co.  V.  Yuba   County,   116  U.   S.   410,   29   L.  204  U.   S.  538,  51  L.   Ed.  606. 

Ed.    671:    Kaukauna   Water   Power   Co.   v.  57.    Farmers',   etc.,   Ins.   Co.  ?'.   D-ibnev, 

Green    Bay,    etc.,    Co.,    142   U.    S.    254,    269,  189    U.   S.   301,   47   L.   Ed.    P""!  •    r'nt-'^natl. 

35   L.    Ed.    1004.  etc..  Packet   Co.  v.  Pav.  2OO  U.   S.   ir<?.  60 

56.  When  the  court  may  reasonably  L.  Ed.  428;  .^rrowsm'th  T'.  Harmoning, 
infer   from   the    record   in   a   case   brouglit  118   U.   S.   194,  30   L.   Ed.   243. 


582 


APPEAL  AND  ERROR. 


fact,  involves  such  a  decision,  then  this  court  will  take  jurisdiction,  although  the 
opinion  below  says  nothing  about  it.-^^ 

Not  Necessary  to  State  in  Terms  That  Federal  Question  Was  Involved. 
— But  it  is  not  indispensable  that  it  should  appear  on  the  record  in  totidem  ver- 
bis, or  by  direct  and  positive  statement,  that  the  question  was  made,  and  the  de- 
cision given  by  the  court  below  on  the  very  point ;  it  is  sufficient  if  it  is  clear  from 
the  facts  stated,  by  just  and  necessary  inference,  that  the  question  was  made, 
and  that  the  court  below  must,  in  order  to  have  arrived  at  the  judgment  pro- 
nounced by  it,  have  come  to  the  very  decision  of  that  question  as  indispensable 
to  that  judgment.^^     Although  it  does  not  appear  from  the  opinion  of  the  court 


58.  Kaukaima  Water  Power  Co.  .  v. 
Green  Bay,  etc..  Co.,  142  U.  S.  204,  35 
L.  Ed.  1004;  Schlcmmer  v.  Buffalo,  etc., 
R.  Co.,  205  U.  S.  1,  11,  51  L.  Ed.  681. 

59.  Ovvings  r.   Norwood,  5   Cranch   344. 

3  L.  Ed.  120;  Smith  v.  Maryland.  6  Cranch 
286,  3  L.  Ed.  225;  Martin  i'.  Hunter,  1 
Wheat.  304,  4  L.  Ed.  97;  Inglee  v.  Cool- 
idge,  2  Wheat.  363,  4  L.  Ed.  261;  Williams 
V.  Norris,  12  Wheat.  117,  124.  6  L. 
Ed.  571;  Hickie  v.  Starke,  1  Pet. 
94,  7  L.  Ed.  67;  Satterlee  v.  Matthew- 
srn.  2  Pet.  380,  7  L.  Ed.  458;  Eisher  ?•. 
Cockerell.  5  Pet.  248,  256,  8  L.  Ed.  114; 
New  Orleans  v.  De  Armas,  9  Pet.  224,  9 
L.  Ed.  109;  Crcwell  v.  Randell.  10  Pet. 
368,  9  L.  Ed.  458;  The  Victory,  6  Wall. 
382,  384.  18  L.  Ed.  848;  Hamilton 
Co.  V.  Massachusetts,  6  Wall.  632.  636.  18 
L.  Ed.  904;  Furman  v.  Nichol,  8  Wall.  44.  56, 
19  L.  Ed.  370;  Grand  Gulf,  etc.,  R.  Co.  z\ 
Marshall.  12  How.  165.  167,  13  L.  Ed. 
938;  Bridge  Proprietors  v.  Hoboken.  etc., 
Co.,  1  Wall.  116,  143,  17  L.  Ed.  571; 
Steines  v.  Franklin  County,  14  Wall.  15, 
31,  20  L.  Ed.  846;  New  Orleans,  etc.,  Co. 
V.  Louisiana  Sugar  Refin.  Co..  125  U.  S.  18, 
29.  31  L.  Ed.  607;  Miller  v.  Nicholls.  4 
Wheat.  311.  4  L.  Ed.  578;  Wilson  z:  Black 
Bird  Creek  Marsh  Co.,  2  Pet.  245.  250,  7 
L.  Ed.  412;  Harris  v.  Dennie.  3  Pet.  292, 
301,  7  L.  Ed.  683;  Craig  r.  Missouri.  4 
Pet.  4ie,  429,  7  L.  Ed.  903;  Davis  z:  Pack- 
ard, 6  Pet.  41.  48,  8  L.  Ed.  312;  Wedding 
V.  Meyler,  192  U.  S.  573,  581,  48  L.  Ed. 
570. 

It  is  sufficient  to  give  this  court  juris- 
diction of  the  carse,  that  the  record 
should  show  that  an  act  of  congress  was 
applicable  to  the  case.     Miller  z:  Nicholls. 

4  Wheat.  311.  312,  4  L.  Ed.  578;  Harris 
V.  Dennie.  3  Pet.  292,  7  L.  Ed.  683;  Miller 
V.  Nicholls,  4  Wheat.  311,  4  L.  Ed.  518; 
Williams  v.  Norris,  12  Wheat.  117,  6  L- 
Ed.  57;  Willson  z:  Black  Bird  Creek 
Marsh  Co.,  2  Pet.  245,  7  L.  Ed.  412; 
Smith  c'.  Maryland.  6  Cranch  286,  3  L. 
Ed.  225;  Martin  v.  Hunter.  1  Wheat.  304, 
355.  4  E.  Ed.  97;  Craig  v.  Missouri.  4 
Pet.  410,  429,  7  L.  Ed.  903,  reaffirmed  in 
8   L.    Ed.    859. 

"Objections  to  the  jurisdiction  of  this 
court  have  been  frequently  made,  on  the 
ground  that  there  was  nothing  apparent 
on  the  record  to  raise  the  question 
'vhether  the  court  from  which  the  case 
had   been    brought   had   decided   upon    the 


constitutionality  of  a  law,  so  that  the 
case  was  within  the  provisions  of  the  25th 
section  of  the  judiciary  act  of  1789.  This 
has  given  occasion  to  a  critical  examina- 
tion of  the  section,  which  has  resulted  in 
the  adoption  of  certain  principles  of  con- 
struction applicable  to  it.  One  of  those 
principles  is,  that  if  the  repugnancy  of  a 
.ctntnte  of  a  state  to  the  constitution  of 
the  United  States  was  drawn  into  c[ues- 
tion,  or  if  that  question  was  applicable  to 
the  case,  this  court  has  jurisdiction  of  the 
cause,  although  the  record  should  not  in 
terms  state  a  misconstruction  of  the  con- 
stitution of  the  United  States;  or  that  the 
repugnancy  of  the  statute  of  the  state  to 
r.ny  part  of  that  constitution  was  drawn 
into  question."  Satterlee  v.  Matthewson, 
2   Pet.   380,   7    L.   Ed.   458. 

While  the  jurisdictional  facts  must  ap- 
pear from  the  record,  yet  it  is  not  neces- 
sary that  the  record  should  show  in  ex- 
press terms  that  the  constitution,  or  a 
law  or  treaty  of  the  United  States,  was 
drawn  in  question.  It  is  enough  if  the 
proceedings  set  forth  in  the  record  show 
that  a  decision  was  made  by  the  state 
court  of  one  of  the  questions  specified  in 
§  25  of  the  iudiciary  act.  Miller  v. 
Nicholls,  4  Wheat.  311,  4  L.  Ed.  578;  Wil- 
son V.  Black  Bird  Creek  Marsh  Co.,  2 
Pet.  245,  7  L.  Ed.  412;  Satterlee  v. 
Matthewson,  2  Pet.  380,  7  L.  Ed.  458; 
Harris  z'.  Dennie,  3  Pet.  292,  7  L.  Ed.  683; 
Crowell  V.  Randell,  10  Pet.  368,  9  L.  Ed. 
458;  Craig  z'.  Missouri,  4  Pet.  410,  7  L. 
Ed.  903;  Davis  v.  Packard,  6  Pet.  41,  8  L- 
Ed.  312;  Murray  v.  Charleston,  96  U.  S. 
432,  24  L.  Ed.  760;  Minnesota  v.  Batchel- 
der,  1  Wall.  109,  17  L.  Ed.  551;  Rector  v. 
Ashley,  6  Wall.  142.  18  L.  Ed.  733; 
Walker  v.  Villavaso,  6  Wall.  124.  18  L. 
Ed.  853;  Maney  v.  Porter,  4  How.  55,  It 
L.    Ed.    873. 

"Although  there  are  other  decisions  in 
which  it  is  said  that  the  point  raised  must 
appear  on  the  record,  and  that  the  par- 
ticular act  of  congress,  or  part  of  the 
constitution  supposed  to  be  infringed  by 
the  state  law.  ou2:ht  to  be  pointed  out,  it 
has  never  been  held  that  this  should  be 
done  in  express  words.  But  the  true  and 
rational  rule  is.  that  the  court  must  be 
able  to  see  clearly,  from  the  whole  record, 
that  a  certain  provision  of  the  constitu- 
tion or  act  of  conc^ress  was  relied  on  hv 
the   party   who   brings    the    writ    of   error. 


APPEAL  AND  ERROR. 


583 


of  criginal  jurisdiction,  or  from  the  opinion  of  the  highest  state  court,  that 
either  court  formaUy  passed  upon  any  question  of  a  feaeral  nature,  yet  if  the 
necessary  effect  of  the  decision  was  to  determine  adversely  to  the  plaintiff  in  er- 
ror the  rights  and  immunities  claimed  by  him  in  the  pleadings  and  proof,  under 
the  proceeding  in  bankruptcy,  this  court  has  jurisdiction  to  review  the  decision 


and  that  the  right  thus  claimed  by  him 
was  denied.''  Bridge  Proprietors  v.  Ho- 
boken,  etc.,  Co.,  1  Wall.  116,  143,  17. L. 
Ed.  571,  citing  Crowell  v.  Randell,  10  Pet. 
368,  9  L.  Ed.  458;  Armstrong  z\  The 
Treasurer,  16  Pet.  281,  10  L.  Ed.  965. 

Although  the  supreme  court  of  the  state 
does  not  in  terms  pass  upon  a  claim  dis- 
tinctly made  therein,  that  the  statutes  in 
question  we're  in  derogation  of  the  rights 
and  privileges  secured  to  the  appellant  by 
the  constitution  of  the  United  States,  yet 
it  the  final  judgment  necessarily  involved 
an  adjudication  of  that  claim,  this  court 
has  jurisdiction  to  inquire  whether  any 
right  or  privilege  protected  by  the  con- 
stitution of  the  United  States  has  been 
withheld  or  denied  by  a  judgment  below. 
Accordingly,  a  motion  to  dismiss  the  writ 
of  error,  upon  the  ground  that  the  record 
does  not  raise  anj'  question  of  a  federal 
nature,  must  be  denied.  Chicago  Life  Ins. 
Co.  V.  Needles,  113  U.  S.  574,  28  L.  Ed. 
1084. 

Wherever  rights,  acknowledged  and 
protected  by  the  constitution  of  the 
United  States,  are  denied  or  invaded  by 
state  legislation,  which  is  sustained  by 
the  judgment  of  a  state  court,  this  court 
is  authorized  to  interfere.  Its  jurisdic- 
tion, therefore,  to  re-examine  such  judg- 
ment, cannot  be  defeated  by  showing  that 
the  record  does  not,  in  direct  terms,  refer 
to  some  constitutional  provision,  nor  ex- 
pressly state  that  a  federal  question  was 
presented.  The  true  jurisdictional  test 
is.  whether  it  appears  that  such  a  ques- 
tion was  decided  adversely  to  the  federal 
right.  Murray  v.  Charleston,  96  U.  S. 
432,    24    L.    Ed.    760. 

If  the  record  shows  by  clear  and  neces- 
sary intendment  that  the  federal  question 
must  have  been  directly  involved  so  that 
the  state  court  could  not  have  given  judg- 
ment without  deciding  it.  in  such  case  it 
has  been  held,  that  the  federal  question 
sufficienth-  appears.  Green  Bay,  etc.,  Canal 
Company  v.  Patten  Paper  Company,  172  U. 
S.  58,  68.  43  L.  Ed.  364,  and  cases  cited.  In 
substance,  the  validity  of  the  statute  or  the 
right  under  the  constitution  must  have 
been  drawn  in  question.  Powell  v.  Bruns- 
wick County,  150  U.  S.  433,  37  L.  Ed. 
1134;  Say  ward  z:  Denny,  158  U.  S.  180, 
39  L.  Ed.  941.  The  latest  decision  to  this 
effect  is  Capital  Nat.  Bank  v.  First  Nat. 
Bank,  172  U.  S.  425,  42  L.  Ed.  502.  Dewey 
v.  Des  Moines,  173  U.  S.  193.  199,  43  L. 
Ed.  665,  reaffirmed  in  Indiana  Power  Co. 
V.  Elkhart  Power  Co..  187  U.  S.  636,  47 
L.   Ed.    343. 

As  was  said  by  the  Chief  Justice  in 
Powell    V.    Brunswick    County,    150    U.    S. 


433,  440,  37  L.  Ed.  1134:  'Tf  it  appear 
from  the  record  by  clear  and  necessary 
intendment  that  the  federal  question  must 
have  been  directlj^  involved,  so  that  the 
state  court  could  not  have  given  judg- 
ment without  deciding  it,  that  will  be 
sufficient;  but  resort  cannot  be  had  to 
the  expedient  of  importing  into  the  record 
the  legislation  of  the  state  as  judicially 
known  to  its  courts,  and  holding  the 
validity  of  such  legislation  to  have  been 
drawn  in  question,  and  a  decision  neces- 
sarily rendered  thereon  in  arriving  at 
conclusions  upon  the  matters  actually  pre- 
sented and  considered."  See,  also, 
Louisville,  etc.,  R.  Co.  v.  Louis^•^lle,  166  U. 
S.  709,  715,  41  L.  Ed.  1173;  Yazoo,  etc..  R. 
Co.  z:  Adams.  180  U.  S.  41,  48,  45  L.  Ed. 
415;  Mountain  View,  etc.,  Co.  v.  McFad- 
den,    180  U.   S.  535,  45  L.   Ed.  656. 

Extent  of  examination  of  record. —  Tt 
has  never  been  held  that  the  record  of 
the  proceedings  of  the  highest  court  mus* 
state  in  terms  a  misconstruction  by  tkat 
court  of  the  act  of  congress.  It  is 
enough  that  it  is  an  inference  ©f  law,  from 
the  inspection  of  the  whole  record,  that 
the  highest  court  did  thus  misconstrue  an 
act  of  congress,  and  annul  a  right  or  title, 
otherwise  valid,  by  reason  of  such  mis- 
construction. Any  other  n>le,  confining 
this  court  to  an  inspection  of  that  part 
of  the  record  which  sets  out  the  proceed- 
ings of  the  highest  court  alone,  would  be 
a  departure  from  the  general  principle, 
that  the  whole  of  an  instrument  is  to  be 
looked  at  to  determine  the  effect  of  each 
part  of  it,  would  present  for  decision  an 
artificial  and  not  a  real  case;  and,  inasmuch 
as  the  highest  state  court  often  simpiy 
affirms  or  reverses  the  judgment  below, 
would,  in  all  such  cases,  deprive  the  citi- 
zen of  the  rights  secured  to  him  by  the 
constitution  and  the  twenty-fifth  section 
of  the  judiciary  act.  And  it  has  been  the 
practice  of  this  cotirt,  whenever  neees- 
sar3^  to  look  at  the  record  of  the  proceed- 
ings of  the  inferior  state  court  in  con- 
nection with  the  proceedings  of  the 
highest  court,  in  order  to  deduce  there- 
from the  points  decided  by  the  latter." 
Neilson  v.  Lagow.  12  How.  98,  109,  13  L. 
Ed.   909. 

Lien  under  federal  statutes. — The  claim 
of  a  lien  on  the  goods  under  and  bj'  vir- 
tue of  the  laws  of  the  United  States,  di- 
rectly calls  for  a  determination  of  a  fed- 
eral right,  although  no  statute  is  men- 
tioned. Crowell  z:  Randell,  10  Pet.  368. 
9  L.  Ed.  458:  Bridge  Proprietors  v.  Ho- 
boken.  etc.,  Co..  1  Wall.  116,  142.  17  L. 
Ed.  571:  Furman  <■.  Nichol,  8  Wall.  44. 
.J6,    19    L.    Ed.    370;    Dooley    v.    Smith,    i:: 


584 


APPEAL  AND  EPROR 


under  Revised  Statutes.  §  709,  providing  that:  "A  final  judgment  or  decree  in 
any  suit  in  the  highest  court  of  a  state  where  any  title,  right,  privilege  or  im- 
munity is  claimed  under  the  constitution,  or  any  *  *  *  authority  exercised  un- 
('cr,  the  I'nited  States,  and  the  decision  is  against  the  title,  right,  privilege  or 
immunity  specially  set  up  or  claimed  by  eitlier  party,  under  such  constitution. 
*  *  *  or  authority,  may  be  re-examined  and  reversed  or  affirmed  in  the  su- 
preme court  upon  a  writ  of  error. "^"^  Where  a  motion  is  made  to  dismiss  a  writ 
of  error  on  the  ground  that  the  record  exhibits  no  federal  question,  the  motion 
will  be  denied  if  the  plaintifif  claimed  and  Set  up  a  right  under  the  constitution 
of  the  United  States,  and  the  decision  of  the  supreme  court  of  the  state  is  tanta- 
mount to  the  denial  of  that  right.^^ 

■Rule  QiJ.?Jified.— While  Mr.  Justice  Story,  in  Crowell  z'.  Randell,  10  Pet.  368. 
3-^8,  9  L.  Ed.  458,  said  that  it  was  not  necessary  that  the  question  should  appear 
t-n  the  record  to  have  been  raised  and  the  decision  made  in  direct  and  positive 
t'Tms,  ipsissimis  verbis,  but  that  it  was  sufficient  if  it  appeared  by  clear  and  neces- 
sary intendment  that  the  question  must  have  been  raised,  and  must  have  been 
decided  in  order  to  have  induced  the  judgment,  he  also  said  it  was  "not  sufficient 
to  show  that  a  question  might  have  arisen  or  been  applicable  to  the  case ;  unless 
it  is  further  shown,  on  the  record,  that  it  did  arise,  and  was  applied  by  the  state 
court  to  the  case."^^  Jii  order  to  be  available  in  this  court,  some  claim  or  right 
must  have  been  asserted  in  the  court  below  by  which  it  would  appear  that  the 
party  asserting  the  right  founded  it  in  some  degree  upon  the  constitution  or  laws 
or  treaties  of  the   United   States.     In  such  case,  if  the  court  below  denied  the 


Wall.  604,  20  L.  Ed.  547;  Wabash  R.  Co. 
f.  Pearce.  192  U.  S.  179,  185.  48  L.  Ed. 
397. 

Misconstruction   of   act    of    congress. — 

Under  the  25th  section  of  the  judiciary 
act  of  1789,  c.  SO,  where  the  construction 
©f  any  clause  in  the  constitution,  or  any 
sl^atute  of  the  United  States,  is  drawn  in 
question,  in  any  suit  in  a  state  court,  the 
decision  m*!St  be  against  the  title  or  right 
s€t  up  by  the  party  under  such  clause  of 
the  constitution  or  statute,  or  this  court 
has  no  appellate  jurisdiction  in  the  case. 
It  is  not  sufficient  that  the  construction  of 
the  statute  was  drawn  in  question,  and 
that  the  decision  was  against  the  title  of 
the  party;  it  must  appear  that  his  title 
depended  upon  the  statute.  Where,  in 
such  a  case,  the  validity  of  a  statute  of 
any  state  is  drawn  in  question,  upon  the 
groHnd  of  its  being  repugnant  to  the  con- 
stitution of  the  United  States,  and  the 
decision  has  been  in  favor  of  its  validitj', 
it  is  necessary  to  the  exercise  of  the  ap- 
pellate jurisdiction  of  this  court,  that  it 
should  distinctly  appear  that  the  title  or 
right  of  the  party  depended  upon  the  stat- 
ute. Williams  v.  Norris.  12  Wheat.  117, 
6  L.    Ed.   571. 

Where,  under  the  25th  section  of  the 
judiciary  act  of  1789,  the  validity  of  a 
statute  of  any  state  is  drawn  in  question. 
upon  the  ground  of  its  being  repugnant 
to  the  constitution  of  the  United  States. 
and  the  decision  is  in  favor  of  its  validity, 
it  is  necessary  to  the  exercise  of  the  ap- 
pellate jurisdiction  of  this  court  that  it 
should  distinctly  be  stated  in  the  record 
that  the  constitutionality  of  this  act  was 
drawn  in  question.  Williams  v.  Norris, 
12  Wheat.   117,  6   L.   Ed.   571,   distinguish- 


ing Miller  v.  Nicholls,  4  W^heat.  311,  4  L. 
Ed.    578. 

eO.  Roby  V.  Colehour,  146  U.  S.  153,  .''.6 
L.  Ed.  922;  Otis  Co.  v.  Ludlow  Mfg.  Co., 
201   U.   S.    140,   .50   L.    Ed.   696. 

61.  Kaukauna  Water  Power  Co.  v. 
Green  Bay,  etc.,  Co.,  142  U.  S.  254.  35  L. 
Ed.  1004;  Detroit,  etc.,  R.  Co.  v.  Qsborn, 
189  U.  S.  383,  387,  47  L.  Ed.  860;  Harding 
V.   Illinois,  196  U.  S.  78.  88.  49  L.   Ed.  3»4. 

62.  Brown  v.  Colorado.  106  U.  S.  95.  27 
L.  Ed.  132;  Hagar  z'.  California.  154  U.  S., 
appx..  639,  24  L.  Ed.  1044;  Edwards  V. 
Elliott,  21  Wall.  532,  22  L.  Ed.  487;  The 
Victory,  6  Wall.  382,  384,  18  L.  Ed.  848. 

It  is  not  enough  to  give  jurisdiction  to 
♦^his  court,  under  the  25th  section  of  the 
judiciary  act,  that  the  decision  of  the  state 
court  was  against  a  party  claiming  title 
under  some  statute  of,  or  commission 
held  under,  the  United  States.  The  origin 
of  the  title  may  be  but  an  accident  of  the 
controversy,  and  not  the  subject  or  sub- 
stance of  it.  The  suit  must  have  drawn 
in  question  the  construction  of  such  stat- 
ute or  commission,  and  the  judgment  of 
the  state  court  must  have  been  adverse  to 
the  claim  set  up  under  them.  "The  record 
also  must  show,  if  not  ipsissimis  verbis, 
at  least,  by  clear  and  necessary  intend- 
ment, that  such  question  of  'construction' 
was  raised,  and  must  have  been  decided 
in  order  to  induce  the  judgment.  It_  is 
not  enough  to  show  that  the  question 
might  have  arisen,  and  been  applicable  to 
the  case,  unless  it  is  further  shown  on 
the  record  that  it  did  arise,  and  was 
applied  by  the  state  court  to  the  case." 
The  cases  which  establish  these  principles 
are  too  numerous  for  quotation.  Calcote 
V.   Stanton,  18   How.  243,   15   L.   Ed.   348. 


APPEAL  AND  ERROR. 


585 


right  claimed,  it  would  be  enough  ;  or  if  it  did  not  in  terms  deny  such  right,  if  the 
necessary  effect  of  its  judgment  was  to  deny  it,  then  it  would  be  enough.  But 
the  denial,  whether  expressed  or  implied,  must  be  of  some  right  or  claim  founded 
upon  the  constitution  or  the  laws  or  treaties  of  the  United  States  which  had  in 
some  manner  been  brought  to  the  attention  of  the  court  below.^-^  A  definite  issue 
as  to  the  validity  of  the  statute  or  the  possession  of  the  right  must  be  distinctly  de- 
ducible  from  the  record  before  the  state  court  can  be  held  to  have  disposed  of 
such  a  federal  question  by  its  decision.*^^ 

(3)  JVhere  Decision  Is  Based  on  Independent  Grounds. — In  General. — To 
give  us  jurisdiction  under  §  709,  Rev.  Stat.,  it  is  not  only  necessary  that  some 
one  of  the  questions  mentioned  in  the  section  should  exist  on  the  record,  but 
that  the  decision  was  controlling  in  the  disposition  of  the  cause.*^^  It  is  a  well- 
settled  rule,  limiting  the  jurisdiction  of  this  court  in  such  cases,  that  "where  it 
appears  by  the  record  that  the  judgment  of  the  state  court  might  have  been  based 
either  upon  a  law  which  would  raise  a  question  of  repugnancy  to  the  constitu- 
tion, laws,  or  treaties  of  the  United  States,  or  upon  some  other  independent 
ground;  and  it  appears  that  the  court  did,  in  fact,  base  .its  judgment  on  such 
independent  ground,  and  not  on  the  law  raising  the  federal  question,  this  court 
will  not  take  jurisdiction  of  the  case,  even  though  it  might  think  the  position  of 
the  state  court  an  unsound  one.""^''     It  is  likewise  settled  law  that,  where  the  rec- 


63.  Dewey  v.  Des  Moines,  173  U.  S. 
193,  199,  200,  43  L.  Ed.  665.  reaffirmed  in 
Indiana  Power  Co.  v.  Elkhart  Power  Co., 
187  U.  S.  636,  47  L.   Ed.   343. 

64.  Powell  V.  Brunswick  Count}',  150 
U.   S.   433.   440,   37    L.    Ed.    1134. 

65.  Williams  v.  Oliver.  12  How.  Ill,  125, 
13  L.  Ed.  921;  Klinger  v.  Missouri.  13  Wall. 
257.  20  L.  Ed.  635;  Citizens"  Bank  v. 
Board  of  Liquidation,  98  U.  S.  140,  141, 
25   L.   Ed.   114. 

66.  Klinger  v.  Missouri,  13  Wall.  257, 
263,  20  L.  Ed.  635,  per  Mr.  Justice  Brad- 
ley; De  Saussure  v.  Gaillard,  127  U.  S. 
216,  233,  32  L.  Ed.  125;  New  Orleans,  etc., 
Co.  V.  Louisiana  Sugar  Refin.  Co.,  125  U. 
S.  18,  29.  31  L.  Ed.  607;  Eustis  v.  Bolles, 
150  U.  S.  361,  367,  37  L.  Ed.  1111;  Haley 
?'.  Breeze,  144  U.  S.  130,  132,  36  L.  Ed. 
373;  Texas,  etc.,  R.  Co.  v.  Johnson,  151 
U.  S.  81.  38  L.  Ed.  81;  West  Tennessee 
Bank  v.  Citizens'  Bank,  13  Wall.  432,  20 
L.  Ed.  514;  New  Orleans,  etc..  Co.  v. 
Louisiana  Sugar  Refin.  Co.,  125  U.  S.  18, 
81  L.  Ed.  607;  California  Powder  Works 
V.  Davis,  151  U.  S.  389.  38  L.  Ed.  206; 
Dower  v.  Richards,  151  U.  S.  658,  666,  38 
L.  Ed.  305;  McQuade  v.  Trenton,  172 
U.  S.  636,  43  L.  Ed.  581;  Capital  Nat. 
Bank  v.  First  Nat.  Bank.  172  U.  S.  425, 
43  L.  Ed.  502;  Allen  v.  Southern  Pac. 
R.   Co.,   173   U.   S.   479.    489,   43    L.    Ed.    775. 

A  writ  of  error  to  a  state  court  will  be 
dismissed  for  want  of  jurisdiction,  where 
the  record  fails  to  show  that  any  ques- 
tion was  made  in  the  court  below,  or  de- 
cided as  to  the  effect  of  an  act  of  congress 
upon  the  plaintiff's  title  to  property,  and 
where  so  far  as  anything  appears,  the 
case  was  disposed  of  without  reaching 
that  question.  Basse  v.  Brownsville,  154 
U.  S.,  appx.,  610,  22  L.   Ed.  420. 

Where   the   case   is   decided   against   the 


plaintiffs  in  error  on  an  independent 
ground,  not  involving  a  federal  question, 
and  broad  enough  to  maintain  the  judg- 
ment, in  such  case,  even  though  the  state 
court  also  decides  a  federal  question 
against  the  plaintiffs  in  error,  this  court 
will  dismiss  the  writ  of  error  without 
considering  the  federal  question.  Marrow 
V.  Brinkley.  129  U.  S.  178,  181.  32  L.  Ed. 
654;  Hale  v.  Akers,  132  U.  S.  554,  565.  33 
L.  Ed.  442;  San  Francisco  v.  Itsell,  133 
U.  S.  65,  66,  33  L.  Ed.  570;  Hopkins  v.  Mc- 
Lure,  133  U.  S.  380,  386,  33  L.  Ed.  660; 
Beatty  v.  Benton,  135  U.  S.  244,  254.  34 
L.    Ed.   124. 

The  court  reasserts  the  principle  that, 
in  cases  brought  here  by  writs  of  error  to 
the  state  courts,  it  will  not  entertain  ju- 
risdiction if  it  appears  that,  besides  the 
federal  question  decided  by  the  state 
court,  there  is  another  and  distinct  ground 
on  which  the  judgment  or  decree  can  be 
sustained  and  which  is  sufficient  to  sup- 
port it.  Kennebec  R.  v.  Portland  R.,  14 
Wall.  23,  20  L.  Ed.  850,  citing  Rector  v. 
Ashley,  6  Wall.  142.  IS  L.  Ed.  733;  Klinger 
V.  Missouri,  13  Wall.  257,  20  L.  Ed. 
635;  Steines  v.  Franklin  County,  14  Wall. 
15,   20   L.    Ed.   846. 

Where  a  case  is  brought  here  by  a  writ 
of  error  to  a  state  court  under  the  25th 
section  of  the  judiciary  act.  this  court  can 
only  review  the  decision  of  the  state  court 
on  the  question  or  questions  mentioned 
in  that  section.  Therefore,  if  in  addition 
to  the  decision  of  the  state  court  on  such 
question  or  questions,  that  court  has 
rested  its  judgment  on  some  point  in  the 
case  not  within  the  purview  of  tliat  sec- 
tion, and  that  point  is  broad  enough  to 
sustain  the  judgment,  then,  although  the 
ruling  of  the  state  court  might  be  re- 
versed on  the  point  which  is  of  federal 
cognizance,    this    court   will   not    entertain 


586 


APPEAL  AND  ERROR. 


ord  discloses  that  if  a  question  has  heen  raised  and  decided  adversely  to  a  party 
claimino-  the  benefit  of  a  provision  of  the  constitution  or  laws  of  the  United 
States,  another  question,  not  federal,  has  been  also  raised  and  decided  against 
such  party,  and  the  decision  of  the  latter  question  is  sufficient,  notwithstanding 
the   federal   question,   to  sustain   the   judgment,   this   court   will  not  review   the 


jurisdiction    of   the    case.      Rector   v.    Ash- 
ley, 6  Wall.   142.   18  L.   Ed.  73J. 

This  view  is  in  accordance  with  the  de- 
cisions of  this  court  in  Kreiger  v.  Shelby 
R  Co.,  125  U.  S.  39,  32  L.  Ed.  675;  De 
Saussure  v.  Gaillard,  127  U.  S.  216,  32  L. 
Ed.  125.  and  Hale  v.  Akers,  132  U.  S.  554, 
33  L.  Ed.  442.  the  ruling  in  which  cases  is, 
that  where  the  supreme  court  of  a  state 
decides  a  federal  question,  in  rendering 
a  judgment,  and  also  decides  against  the 
plaintiff  in  error  on  an  independent 
ground,  not  involving  a  federal  question, 
and  broad  enough  to  maintain  the  judg- 
ment, the  writ  of  error  will  be  dismissed 
without  considering  the  federal  question. 
Hopkins  v.  McLure,  133  U.  S.  380,  386, 
33   L.   Ed.  660. 

A  writ  of  error  was  prosecuted  to  the 
supreme  court  of  Louisiana  under  the 
twenty-fifth  section  of  the  judiciary  act 
of  1787,  to  revise  the  judgment  of  that 
court.  The  cause  was  dismissed,  as  it 
did  not  appear  that  any  question  was  pre- 
sented in  the  court  below  within  the  pur- 
view of  the  act.  the  case  having  been  de- 
cided upon  a  collateral  matter,  independ- 
ent of,  and  wholly  aside  from  any  such 
question.  Keene  v.  Clark,  10  Pet.  291,  9 
L.  Ed.  429.  citing  Crowell  v.  Randell.  10 
Pet.  368,  9   L.   Ed.  458. 

Where  there  are  other  questions  in  the 
record,  on  which  the  judgment  of  the 
state  court  might  have  rested,  independ- 
ently of  the  fed-eral  question,  this  court 
cannot  reverse  the  judgment.  Gibson  v. 
Chouteau,  8  Wall.   314,   19   L.   Ed.  317. 

A  case  is  not  within  the  25th  section  of 
the  judiciary  act  when  the  judgment  be- 
low is  founded  on  a  matter  which  is  not 
within  the  section,  even  though  it  be 
founded  also  for  an  independent  base,  on 
other  matter  which  it  is  asserted  is  within 
it.  West  Tennessee  Bank  v.  Citizens' 
Bank.  13  Wall.  432,  20  L.  Ed.  514,  citing 
Bethell  v.  Demaret,  10  Wall.  537,  19  L. 
Ed.    1007. 

Where  the  record  only  shows  that  a 
particular  judgment  was  given  by  the 
highest  state  court,  no  writ  under  the 
25th  section  lies  if  the  judgment  may  have 
been  given  on  grounds  which  that  section 
does  not  make  cause  for  error,  as  well  as 
upon  some  ground  which  it  does  so  make. 
Steines  z'.  Eranklin  County.  14  Wall.  15. 
20    L.    Ed.    846. 

Bankruptcy. — Where  the  defendants  in 
the  court  below  demurred  to  the  declaration 
upon  two  grounds,  one  of  which  involved 
the  construction  of  the  provisions  of  the 
federal  bankrupt  act,  and  the  other  the 
bar  to  the  statute  of  limitations  of  the 
state,    and    the    record    in    this    court    dis- 


closes no  specific  statement  of  the 
grounds  upon  which  a  state  court  pro- 
ceeds, if  this  court  cannot  see  that  if  the 
supreme  court  of  the  state  had  sustained 
the  defense  of  the  statute  of  limitations 
that  such  decision  would  have  been  er- 
roneous, it  does  not  appear  that  the  judg- 
ment as  rendered  could  not  have  been 
given  without  deciding  a  federal  question, 
or  that  its  decision  was  necessary  to  the 
determination  of  the  case  and  that  it  was 
actually  decided.  Johnson  v.  Risk,  137 
U.    S.   300,   34   L.    Ed.    683. 

Impairment  of  obligation  of  contract. — 
Where  the  trial  court  in  a  suit  to  re- 
cover against  the  defendant  on  a  promis- 
sory note,  conceding  that  his  cause  of  ac- 
tion would  not  be  taken  away  from  him, 
without  his  consent,  by  proceedings  un- 
der statutes  of  insolvency  passed  subse- 
quently to  the  vesting  of  his  rights,  yet 
holds  tliat  where  he  proves  his  debt  in 
the  insolvency  proceedings,  and  accepts 
and  receipts  for  the  money  w^hich  had 
been  awarded  him.  as  his  portion,  under 
the  insolvency  proceedings,  in  so  accept- 
ing and  receipting  for  his  dividend  in 
the  insolvenc)'  proceedings,  was  a  waiver 
of  his  right  to  object  to  the  validity  of 
the  insolvency  statutes  on  the  grotmd  that 
they  impair  the  obligation  of  the  con- 
tract, presents  no  federal  question.  The 
court  below  in  deciding  that  it  was  com- 
petent for  him  to  waive  his  legal  rights, 
and  that  accepting  his  dividends  under 
the  insolvency  proceedings,  was  such  a 
waiver,  does  not  decide  a  federal  ques- 
tion. It  was  broad  enough  in  itself  to 
support  the  final  judgment,  without  refer- 
cnci.  to  the  federal  question.  Eustis  v. 
Bolles,  150  U.  S.  361.  37  L.  Ed.  1111,  cit- 
ing Clay  r.  Smith,  3  Pet.  411,  7  L.  Ed. 
723;  Beaupre  v.  Noyes.  138  U.  S.  397,  34 
L.    Ed.    991. 

Where  b'-'th  parties,  who  are  respec- 
tively plaintiffs  and  defendants  in  the 
court  below,  derive  title  from  the  state 
by  patents  which  were  issued  in  execu- 
tion of  the  grant  to  it  of  swamp  and  over- 
flow^ed  lands,  but  the  decision  of  the  state 
court  merely  determines  the  extent  of  the 
grant  to  the  state,  and  interpreting  the  con- 
tending patents  as  conveyances,  decides 
that  the  lands  described  in  that  of  plain- 
tiff did  not  embrace  the  lands  in  contro- 
versy, and  that  the  lands  described  in  that 
of  defendant  did  embrace  it,  a  motion  to 
dismiss  a  writ  of  error  will  be  sustained, 
because  its  decision  was  put  upon  an  in- 
dependent ground  involving  no  federal 
question,  and  of  itself  sufficient  to  sup- 
port the  judgment.  White  v.  Leovy,  174 
U.  S.  91,  43  L.   Ed.  907. 


APPEAL  AND  ERROR. 


587 


judgment.'^'      We  have  repeatedly  lield,  that  even  the  decision  hy  the  state  court 
of  a  federal  question  will  not  sustain  the  jurisdiction  of  this  court,  if  another 


67.  Eustis  z'.  Bolles,  150  U.  S.  361,  366, 
37  L.  Ed.  1111;  Winter  v.  Montgomery. 
156  U.  S.  385.  39  L.  Ed.  460;  Union  Nat. 
Bank  v.  Louisville,  etc.,  R.  Co.,  163  U.  S. 
325,  41  L.  Ed.  177;  White  v.  Lening,  163 
U.  S.  711,  41  L.  Ed.  314;  Allen  v.  South- 
ern, etc.,  R.  Co.,  173  U.  S.  479,  43  L.  Ed. 
775;  Leonard  v.  Vicksburg,  etc.,  R.  Co., 
198  U.  S.  416,  49  L.  Ed.  1108;  Rutland  R. 
Co.  V.  Central  Vermont  R.  Co.,  159  U.  S. 
630,  40  L.  Ed.  284;  Seneca  Nation  of  Indians 
r.  Christy,  162  U.  S.  283,  40  L.  Ed.  970; 
Pierce  v.  Somerset  Railway,  171  U.  S.  641, 
648,  43  L.  Ed.  316;  Wade  v.  Lawder,  165 
U.  S.  624,  41  L.  Ed.  851;  Harrison  v.  Mor- 
ton. 171  U.  S.  38,  47,  43  L.  Ed.  63;  Cueli 
V.  Rodriguez,  198  U.  S.  581,  49  L.  Ed. 
1172;  Carnahan  v.  Connolly,  187  U.  S. 
636,  47  L.  Ed.  343;  Thomas  v.  Blair.  196 
U.  S.  637,  638.  49  L.  Ed.  630;  Rose  v. 
Kansas,  203  U.  S.  580,  51  L.  Ed.  326; 
Lyon  V.  Gombret,  189  U.  S.  507,  47  L. 
Ed.  922;  Dibble  v.  Bellingham  Bay  Land 
C©.,  163  U.  S.  63,  41  L.  Ed.  72;  Klinger 
V.  Missouri.  13  Wall.  257,  20  L.  Ed.  635; 
Johnson  v.  Risk.  137  U.  S.  300,  34  L.  Ed. 
683;  Allen  v.  Arguimbau,  198  U.  S.  149, 
154.  49  L.  Ed.  9i?v);  Rector  v.  Ashley,  6 
Wall.  142.  18  L.  Ed.  733;  Kreiger  v. 
Shelby  R.  Co.,  125  U.  S.  39,  46,  31  L.  Ed. 
675;  De  Saussure  v.  Gaillard,  127  U.  S. 
216,  234,  32  L.  Ed.  125;  Hale  v.  Akers, 
132  U.  S.  554,  564,  565,  33  L.  Ed.  442; 
Hopkins  v.  McLure,  133  U.  S.  380,  386, 
387.  33  L.  Ed.  660;  Henderson  Bridge  Co. 
V.  Henderson.  141  U.  S.  679,  688,  35  L. 
Ed.  900;   Egan  v.   Hart,  165  U.  S.   188,  191, 

41  L.  Ed.  680;  Powell  v.  Brunswick 
County,  150  U.  S.  433,  441.  37  L.  Ed.  1134; 
CasfiHo  V.   McConnico.   168  U.   S.  674,  679, 

42  L.  Ed.  622,  reaffirmed  in  Fenwick  Hall 
Co.  z'.  Old  Saybrook,  169  U.  S.  734.  42  L. 
Ed.  1215;  Warren  v.  Chandos,  169  U.  S. 
734,  42  L.  Ed.  1216;  Nester  v.  Church, 
189  U.  S.  505,  47  L.  Ed.  921;  Thomas  v. 
Kansas,  205  U.  S.  535,  51  L.  Ed.  919; 
Siramerman  v.  Nebraska,  116  U.  S.  54,  29 
L.  Ed.  535;  California  Powder  .Works  z'. 
Davis,  151  U.  S.  389,  38  L.  Ed.  206;  Mis- 
souri Pac.  R.  Co.  z'.  Fitzgerald,  160  U.  S. 
556,  40  L.  Ed.  536;  Fowler  v.  Lamson,  164  U. 
S.  252.  41  L.  Ed.  424;  Iowa  Central  R.  Co.  v. 
Iowa,  160  U.  S.  389,  40  L.  Ed.  467;  Long 
Island  Water  Supply  Co.  v.  Brooklyn. 
166  U.  S.  685,  41  L.  Ed.  1165;  Miller  v. 
Cornwall  R.  Co.,  168  U.  S.  131,  42  L.  Ed. 
409;  Chappell  Chemical  Co.  v.  Sulpher 
Mines  Co.,  172  U.  S.  465,  471,  43  L.  Ed. 
517;  Giles  v.  Teasley,  193  U.  S.  146.  160, 
48  L.  Ed.  655,  reaffirmed  in  Delahanty  v. 
Pitkin,  199  U.  S.  602.  50  L.  Ed.  328;  New 
York,  etc.,  R.  Co.  v.  New  York.  186  U. 
S.  269,  273,  46  L.  Ed.  1158;  Bachtel  v. 
Wilson,  204  U.  S.  36,  40,  51  L.  Ed.  357; 
Bacon  v.  Texas,  163  U.  S.  207,  227,  41  L. 
Ed.  132;  Rutland  v.  Central  Vermont  P. 
Co.,    159    U.    S.    360,    630.    40    L.    Ed.    284; 


Gillis  V.  Stinchfield,  159  U.  S.  658,  660, 
40  L.  Ed.  295;  New  York,  etc.,  R.  Co.  v. 
Woodruff,  153  U.  S.  689,  38  L.  Ed.  869; 
Hammond  v.  Conn.  Mut.  Life  Ins.  Co., 
150  U.  S.  633,  37  L.  Ed.  1206;  Murdock  v. 
Memphis,  20  Wall.  590,  22  L.  Ed.  429; 
Jenkins  v.  Lowenthal,  110  U.  S.  222.  28 
L.  Ed.  129;  Wood  Mowing,  etc.,  Co.  v. 
Skinner,  139  U.  S.  293,  35  L.  Ed.  193; 
Hammond  v.  Johnston,  142  U.  S.  73,  35 
L.  Ed.  941;  Tyler  v.  Cass  County,  142  U. 
S.  288,  35  L.  Ed.  1016;  Delaware  City, 
etc..  Nav.  Co.  v.  Reybold,  142  U.  S.  636. 
35  L.  Ed.  1141;  Blount  v.  Walker,  134  U. 
S.  607.  33  L.  Ed.  1036;  Miller  v.  Swann, 
150  U.  S.  132,  134,  37  L.  Ed.  1028;  Beau- 
pre  V.  Noyes.  138  U.  S.  397,  34  L.  Ed. 
991;  Northern  Pac.  R.  Co.  v.  Ellis,  144 
U.  S.  458,  464,  36  L.  Ed.  504;  O'Neil  v. 
Vermont,  144  U.  S.  323.  336,  36  L.  Ed. 
450;  Chemical  Bank  v.  City  Bank,  160  U. 
S.  646,  40  L.  Ed.  568;  Sherman  v.  Grin- 
nell,  144  U.  S.   198,  202,  36  L-  Ed.  403. 

When  it  distinctly  appears  on  the  face 
of  an  opinion  of  a  state  court,  which  by 
a  law  of  the  state  forms  part  of  the 
record,  that  the  decision  below  was  prop- 
erly put  upon  the  ground  that  it  did  not 
involve  a  federal  question,  although  such 
question  was  raised  there,  this  court  has 
no  jurisdiction  in  error  over  the  judg- 
ment. Jacks  v^  Plelena,  115  U.  S.  288,  29 
L.  Ed.  392,  citing  and  following,  Detroit 
City  R.  Co.  V.  Guthard,  114  U.  S.  133,  29 
L.    Ed.    118. 

Even  though  a  federal  question  may 
have  been  raised  and  decided,  yet  if  a 
question,  not  federal,  is  also  raised  and 
decided,  and  the  decision  of  that  question 
is  sufficient  to  support  the  judgment,  this 
court  will  not  review  the  judgment.  Capi- 
tal Nat.  Bank  z'.  First  Nat.  Bank,  172  U. 
S.   425,   430,    43   L.    Ed.    502. 

In  order  to  sustain  the  jurisdiction  of 
this  court  upon  the  ground  that  a  fed- 
eral question  is  presented,  it  should  ap- 
pear either  that  such  question  was  ap- 
parent in  the  record,  and  that  a  decision 
was  made  thereon,  or  that,  from  the  facts 
stated,  such  question  must  have  arisen, 
and  been  necessarily  involved  in  the  case. 
II  it  appear  either  that  the  decision  of 
the  state  court  was  made  upon  rules  of 
general  jurisprudence,  or  that  the  case 
was  disposed  of  upon  other  grounds, 
broad  enough  in  themselves  to  sustain 
the  judgment  without  considering  the  fed- 
eral question,  and  that  such  question  was 
not  neces.'^arily  involved,  the  jurisdiction 
of  this  court  will  not  attach.  New  Or- 
leans V.  New  Orleans  Water  Works  Co.. 
142  U.   S.   79,  84,  35   L.   Ed.   946. 

The  rule  is  well  settled  that,  even  if 
a  federal  question  was  raised  in  the  state 
court,  yet  if  the  case  was  decided  on 
grounds  broad  enough  in  themselves  to 
sustain    the    judgment,    without    reference 


588 


APPEAL  AND  ERROR. 


question  not  federal  was  also  raised  and  decided  against  the  plaintiff  in  error, 
and  the  decision  thereof  be  sufficient,  notwithstanding  the  federal  question,  to  sus- 


tc  the  federal  question,  this  court  will  not 
entertain  jurisdiction.  The  authorities  in 
support  of  this  rule  are  too  numt/ous  for 
citnf'on.  We  cite  only  a  few  of  the  more 
recent  ones:  De  Saussure  v.  Gaillard, 
127  U.  S.  216,  32  L.  Ed.  125;  Beaupre  z'. 
Noyes,  138  U.  S.  397,  34  L.  Ed.  991;  Cook 
County  V.  Calumet,  etc..  Canal  Co..  138 
U.  S.  635.  34  L.  Ed.  1110;  Wood  Mowing, 
etc.,  Co.  V.  Skinner,  139  U.  S.  293,  35  L. 
Ed.  193.  and  the  following,  at  this  term 
of  the  court:  Hammond  v.  Johnston. 
142  U.  S.  73,  35  L.  Ed.  941;  New  Orleans 
v.  New  Orleans  Water  Works  Co..  142 
U.  S.  79,  35  L.  Ed.  943;  Henderson  Bridcre 
Co.  V.  Henderson  City,  141  U.  S.  679,  35 
L.  Ed.  900;  Delaware  Citj%  etc.,  Nav.  Co. 
V.   Reybold,  636.   643.  35   L.   Ed.   1141. 

When  a  record  shows  that  two  ques- 
tions are  presented  by  the  pleadings,  one 
federal  and  one  nonfederal,  and  that  the 
judgment  below  rested  upon  a  decision 
of  the  nonfederal  question,  this  court  has 
no  jurisdiction  to  review  that  judgment. 
Adams  County  v.  Burlington,  etc..  R.  Co., 
112   U.    S.   123,  28   L.    Ed.   678. 

In  Murdock  z:  Memphis,  20  Wall.  590. 
636,  22  L.  Ed.  429,  this  court  announced, 
as  one  of  the  propositions  which  flowed 
from  the  provisions  of  the  second  sec- 
tion of  the  act  of  February  5.  1867.  14 
Stat.  3?26.  embodied  in  §  709  of  the  Re- 
vised Statutes  of  1874,  and  still  in  force, 
that  even  assuming  that  a  federal  ques- 
tion was  crroneousl}^  decided  against  the 
plaintiff  in  error,  the  court  must  further 
inquire  whether  there  was  any  other  mat- 
ter or  issue  adjudged  by  the  state  court, 
which  is  sufficiently  broad  to  maintain  the 
judgment  of  that  court,  notwithstanding 
the  error  in  deciding  the  i=sue  raised  by 
the  federal  question;  and  that,  if  that  is 
found  to  be  the  case,  the  judgment  must 
be  affirmed,  without  inquiring  into  the 
'  soundness  of  the  decision  on  such  other 
matter  or  issue.  Hale  v.  Akers,  132  U. 
S.  554.  564.  33  L.  Ed.  442;  McManus  v. 
O'Sul'ivan,  91  TT.  S.  578.  23  L.  Ed.  390; 
Brown  V.  Atwell.  92  U.  S.  327,  23  L. 
Ed.  511;  Citizens'  Bank  7'.  Board  of  Liqui- 
dation. 98  U.  S.  140,  25  L.  Ed.  114;  Chou- 
teau 7'.  Gibson.  Ill  U.  S.  200,  28  L.  Ed. 
400;  Adams  County  v.  Burb'ngton.  etc., 
R.  Co.,  112  U.  S.  123,  28  L.  Ed.  678;  De- 
troit City  R.  Co.  V.  Guthard.  114  U.  S. 
133,  29  L.  Ed.  118;  New  Orleans,  etc..  Co. 
V.  Lou'sinna  Sugar  Pefin.  Co.,  125  U.  S. 
18,  31  L.  Ed.  607:  De  Saussure  r.  Gaillard. 
127   U.    S.   216,   234,   32   L.    Ed.    125. 

Recovery  back  of  taxes. — In  Tvler  v. 
Cass  County,  142  U.  S.  288.  35  L.  Ed. 
1016,  an  action  was  brought  against  a 
county  to  recover  back  money  paid  at  a 
sale  for  taxes  of  lands  alleged  to  be  sub- 
ject to  a  lien  of  the  United  States,  and 
therefore  exempt  from  taxation.  The 
supreme    court    of    North     Dakota — while 


holding  that,  in  vi«w  of  the  decision  of 
this  court  in  Northern  Pac.  R.  Co.  v. 
Traill  County.  115  U.  S.  600,  29  L.  Ed. 
477,  the  lands  were  not  taxable,  and 
nothing  passed  by  the  sale — gave  judg- 
ment for  the  defendant.  1  No.  Dak.  36«. 
In  support  of  a  writ  of  error  sued  out  by 
the  plaintiff  from  this  court,  it  was  argued 
that  the  assessor  had  no  jurisdiction  to 
decide  whether  the  lands  in  question  were 
or  were  not  taxable;  and  that  the  state 
court,  in  holding  that  the  act  of  the  as- 
sessor, in  assessing  the  lands  against 
private  parties  in  possession,  though  they 
in  fact  belonged  to  the  United  States, 
would  not  be  without  jurisdiction,  de- 
cided against  the  immunity  from  the  ju- 
risdiction of  the  assessor.  But  this  court 
dismissed  the  writ  of  error,  and.  speaking 
by  the  chief  justice,  said:  "The  question 
arising  for  determination  in  the  state 
court  was  whether  the  inoney  which  had 
been  paid  by  the  purchaser  of  the  lands 
at  the  tax  sale  could  be  recovered  back, 
either  at  common  law,  or  under  the  Da- 
kota statute  in  that  behalf.  The  ground 
upon  which  the  tax  title  was  held  to  have 
failed  was  that  the  United  States  had  a 
hen  upon  the  lands,  and  that,  therefore, 
thev  could  not,  under  the  laws  of  the 
Uu'ted  States,  be  sold  for  taxes;  but  that 
fact  did  nnt  impress  with  a  federal  char- 
acter t'''e  innuiry  as  to  the  right  of  re- 
covery." Rutland  R.  Co.  7'.  Central  Ver- 
mont R.  Co.,  159  U.  S.  630,  641,  642,  40 
L.    Ed.   284. 

Indian  tribes. — Where  the  decision  of 
the  highest  state  court  in  an  action  of  eject- 
ment to  recover  lands  conveyed  away  by 
the  Seneca  Nation  of  Indians  is  based  on 
two  grounds,  one  involving  a  federal 
question,  but  the  other  upon  a  distinct 
and  independent  ground,  not  involving 
anv  federal  question,  and  sufficient  in  it- 
self to  maintain  the  judgment,  the  writ  of 
error  will  be  dismissed,  according  to  the 
well-settled  rule  on  that  subject.  Seneca 
Nation  of  Indians  v.  Christv.  162  U.  S. 
283,  40  L.  Ed.  970.  citin^-  Eustis  v.  Bolles, 
150  U.  S.  361,  37  L.  Ed.  1111;  GilHs  v. 
Stinchfield.  159  U.  S.  658.  40  L.  Ed.  29.5. 

Mining  states. — Where  the  decision  of 
the  state  court  was  that  the  grantor  of  a 
mining  claim  was  estopped,  under  the  law 
of  California,  from  claiming  priority  of 
title  to  the  space  of  vein  intersection  by 
rf*ason  of  the  location  which  he  had  made 
after  the  execution  of  the  deed,  but  be- 
fore the  location  by  the  grantee  of  the 
ground  conveyed  to  him,  it  was  held,  that 
this  was  an  independent  ground  broad 
er.ough  to  maintain  the  judgment,  and 
therefore,  according  to  well-settled  prin- 
ciples, the  writ  of  error  must  be  dis- 
missed. Gillis  7'.  Stinchfield,  159  U.  S- 
658.  40  L.  Ed.  295,  citing  Eustis  7'.  Bolles, 
150   U.  S.  361,  37  L.  Ed.  1111;  Rutland  R.  Co. 


APPEAL  AXD  ERROR. 


589 


tain  the   judgment.      ]\Iuch   more   is   this  the  case  where  no   federal   question   is 


V.  Central  Vermont  R.  Co.,  159  U.  S.  630, 
40  L.  Ed.  284.  See,  in  accord.  Lovvry  v. 
Silver  City  Gold,  etc.,  Co.,  179  U.  S.  196, 
■15   L.    Ed.   151. 

Denial  of  right  under  fifteenth  amend- 
ment.— The  highest  court  of  the  state  of 
Alabama  aftlrmed  a  judgment  denying  an 
application  for  a  writ  of  mandamus  to 
compel  a  board  of  registrars  to  register 
the  petitioner,  a  negro,  as  an  elector. 
The  petition  alleged  that  the  sections  of 
the  constitution  fixing  the  qualifications 
of  the  electors  and  prescribing  the  mode 
of  registration  are  unconstitutional  be- 
cause violative  of  the  14th  and  15th 
amendments  of  the  constitution  of  the 
United  States.  The  highest  court  of  the 
state  held  that,  as  the  sections  of  the  con- 
stitution assailed  created  the  board  of 
registrars,  fixed  their  tenure  of  office,  de- 
fined and  prescribed  their  duties,  if  they 
are  stricken  down  on  account  of  being 
unconstitutional,  the  board  would  have 
no  existence  and  no  duties  to  perform;  so 
that  there  would  be  no  board  to  perform 
the  duties  sought  to  be  compelled  by  the 
writ.  It  was  held,  that  the  decision  of 
the  state  court  is  placed  upon  a  ground 
adequate  to  sustain  it  and  whollj-  inde- 
pendent of  the  right  set  up  by  the  plain- 
tiff and  therefore  not  reviewable  bj-  the 
supreme  court  of  the  United  States  on 
writ  of  error  to  the  state  court.  Giles  v. 
Teasley.  193  U.  S.  146,  48  L.  Ed.  655.  re- 
affirmed in  Delahanty  v.  Pitkin.  199  U.  S. 
602.   50   L.    Ed.   328. 

Patent  laws. — In  accordance  with  the 
general  rule  that  where  a  suit  is  brought 
on  a  contract  of  which  a  patent  is  the 
subject  matter,  either  to  enforce  such 
contract,  or  to  annul  it.  the  case  arises  on 
the  contract,  or  out  of  the  contract,  and 
not  under  the  patent  laws,  this  court  has 
no  jurisdiction  to  review,  on  a  writ  of  er- 
ror, the  decision,  of  the  highest  state 
court  in  a  controversy  in  respect  to  the 
rescission  of  a  contract  for  the  exchange 
of  an  invention  for  a  stock  of  merchan- 
dise, rn  the  ground  of  fraud  and  misrep- 
re«ertntion.  holding  that  there  was  in  fact 
no  f'-ud.  that  the  plaintiff  got  what  he 
bargpined  for,  and  was  not  deceived  or 
misled  in  the  premises,  because  the  decree 
rests  on  grounds  broad  enough  to  sustain 
it  without  any  reference  to  any  federal 
question.  Wade  v.  Lawder,  165  U.  S. 
624.  41    L.  Ed.  851. 

Qualifications  of  jurors. — Where  the 
judgment  of  the  highest  court  of  the  state 
was  put  upr-n  the  ground  that  objections 
to  the  qualifications  of  jurors  were  not 
open  after  verdict,  independently  of  the 
opinion  of  that  court  that  the  objections 
had  no  merits,  if  that  ground  is  sufficient 
to  support  the  judgment,  no  federal  ques- 
tion is  involved,  and  this  court  has  no 
jurisd'ction.  Br'^wn  z\  Massachusetts, 
144   U.    S.    573,    580,   36    L.    Ed.    546,    citing 


Baldwin  v.  Kansas,  129  U.  S.  52,  32  L.  Ed. 
640. 

Tax  title. — Where  the  highest  court  of 
the  state  decides  that  a  defendant  in  an 
action  for  the  recovery  of  real  estate  ha> 
a  good  title  to  the  same  under  the  con- 
stitution of  the  state,  which  limits  the 
time  for  attacking  the  title  acquired  at  a 
tax  sale,  the  fact  that  the  plaintiff  claims 
title  under  a  federal  statute  does  not  give 
the  supreme  court  jurisdiction  to  review 
the  judgment  of  the  state  court,  upon 
the  ground  that  a  federal  question  is  in- 
volved. Corkran  Oil  Co.  v.  Arnaudet,  199 
U.  S.  182,  50  L.   Ed.   143. 

Defense  of  laches. — The  decision  of  a 
state  court  upholding  the  defense  of 
laches  against  a  mining  claim,  after  aban- 
donment for  fourteen  years,  where  it  is 
claimed  that  title  has  been  acquired  in  the 
meanwhile  through  a  patent  to  the  probate 
judge  for  the  mine  as  part  of  a  town  site, 
is  based  on  an  independent  nonfederal 
question  and  hence  not  reviewable  here 
by  writ  of  error.  Moran  v.  Horsky,  178 
U.   S.  205,  44  L.  Ed.   1038. 

In  Rutland  R.  Co.  z:  Central  Vermont 
R.  Co..  159  U.  S.'  360,  630,  40  L.  Ed.  284, 
it  appeared  that  the  state  statute  imposed 
a  tax  upon  the  gross  earnings  of  rail- 
roads, and  also  provided  that  taxes  as- 
sessed, under  said  act,  upon  the  earnings 
of  railroads,  operated  by  lessees  thereof, 
shall  be  paid  by  such  lessees,  and  charged 
and  deducted  from  the  rents  due  to  the 
lessor  of  such  railroads.  This  the  lessee 
did,  but  an  action  was  brought  against 
him  by  the  lessor  for  t'ht  rent,  without 
deducting  for  the  taxes.  The  state  court 
held,  that  the  provision  of  the  statute, 
"which  requires  the  lessee  to  pay  the  tax 
and  deduct  the  amount  from  the  rent, 
does  not  impair  the  obligation  of  a  con- 
tract, because  both  railroad  companies,  as 
well  as  the  rent  due  from  the  one  to  the 
other,  were  proper  subjects  for  taxation 
under  the  laws  of  Vermont,  and  the 
method  to  be  adopted  for  the  collection 
of  the  tax  was  purely  a  question  of  legis- 
lative discretion."  But  the  decision  was 
not  put  upon  that  construction  alone. 
But  the  court  further  held,  that  independ- 
ently of  the  question  of  constitutionality, 
that,  as  between  the  lessor  and  the  les- 
see, it  was  the  duty  of  the  lessor  to  pay 
the  tax;  that  the  lessee  having  been  com- 
pelled by  law  to  make  the  payment  to 
discharge  an  obligation  of  the  lessor,  the 
law  implied  a  promise  to  repay;  that  the 
lessor  having  made  no  suggestion  that 
the  statute  was  unconstitutional,  and  no 
offer  to  indemnify  the  lessee,  the  lessee 
could  not,  in  prudence,  do  otherwise  than 
pay  the  tax.  and  was  under  no  duty  to 
incur  the  expense,  delay  and  perils  of 
litigation  to  test  the  constitutionality  of 
the  statute;  and  that  the  les,sor.  in  a  court 
of  equity,  could  not  have  relief  for  what, 


590 


APPEAL  AND  ERROR. 


shown  to  have  been  decided,  and  the  case  might  have  been,  and  probably  was, 


as  between  the  parties,  itself  should  have 
done,  and  what,  by  its  own  laches  it  had 
suffered  to  be  done,  professedly  in  its  be- 
half, by  the  lessee.  Held,  that  these 
grounds  involved  no  federal  question,  and 
were  brought  only  to  support  the  judg- 
ment, without  regard  to  the  question 
whether  the  provision  of  the  statute,  un- 
der which  the  lessee  paid  the  taxes  and 
deducted  them  from  the  rent,  was  or  was 
not  constitutional.  Following  Tyler  v. 
Cass  County.  142  U.  S.  288,  3.5  L.  Ed.  1016. 
Estoppel. — The  decision  of  a  state  court 
that  the  rights  involved  under  United 
States  patents  to  mining  claims  has  been 
settled  by  a  specific  contract  between  the 
parties,  and  as  an  independent  ground  that 
plaintiffs'  rights  are  barred  by  estoppel,  or 
by  laches  is  sufificient  to  sustain  the  state 
court's  judgment,  and  hence  presents  no 
federal  question  reviewable  by  this  court 
on  writ  of  error.  Pittsburg,  etc..  R.  Co.  v. 
Cleveland,  etc.,  Min.  Co.,  178  U.  S.  270, 
44  L.  Ed.  1065,  reaffirmed  in  Wright  v. 
Seminary  Tacoma,  187  U.  S.  639,  47  L- 
Ed.  345.  See.  in  accord,  Lowry  v.  Silver 
City  Gold,  etc..  Co.,  179  U.  S.  196.  45  L. 
Ed.  151;  Leonard  v.  Vicksburg,  etc.,  R. 
Co.,  198  U.  S.     416,  49  L.  Ed.  1108. 

A  decision  of  the  supreme  court  of  a 
state  holding,  in  substance,  that,  conced- 
ing the  law  in  question  to  be  unconstitu- 
tional, a  corporation  is  estopped  to  set  up 
its  invalidity  by  the  action  of  the  board 
of  directors,  disposes  of  the  case  upon  a 
nonfederal  ground  broad  enough  to  sup- 
port the  judgment,  and  cannot  be  re- 
viewed on  writ  cri  error  from  the  supreme 
court  of  the  United  States  to  the  state 
court.  Hale  v.  Lewis.  181  U.  S.  473.  45 
L.  Ed.  959.  citing  and  approving  Eustis 
V.  BoUes,  150  U.  S.  361,  37  L.  Ed.  1111; 
Moran  v.  Horsky,  178  U.  S.  205,  44  L.  Ed. 
1038;  Beaupre  v.  Noyes,  138  U.  S.  397,  34 
L.  Ed.  991;  Electric  Co.  v.  Dow,  166  U. 
S.  489,  41  L.  Ed.  1088;  Pierce  z'.  Somerset 
R.  Co.,  171  U.  S.  641,  43  L.  Ed.  316; 
Seneca  Nation  of  Indians  v.  Christy.  162 
U.    S.   283,   40  L.   Ed.   970. 

Limitation  of  actions. — In  Jenkins  v. 
Lowenthal.  110  U.  S.  222,  28  L.  Ed.  129, 
where  two  defenses  were  made  in  the 
state  court,  either  of  which,  if  sustained, 
barred  the  action,  and  one  invoh^ed  a  fed- 
eral question  and  the  other  did  not.  and  the 
state  court,  in  its  decree,  sustained  them 
both,  this  court  said  that,  as  the  finding 
by  the  state  court  of  the  fact  which  sus- 
tained the  defense  which  did  not  involve 
a  federal  question  was  broad  enough  to 
maintain  the  decree,  even  though  the  fed- 
eral question  was  wrongly  decided,  it 
would  affirm  the  decree,  without  consid- 
ering the  federal  question  or  expressing 
any  opinion  upon  it,  and  that  such  practice 
was  sustained  bv  the  case'  of  Murdock  v. 
Memphis.  20  Wall.  590.  22  L.  Ed.  429; 
Hale   V.   Aker?,    132   U.    S.    554.   565,    33    L. 


Ed.  442;  Rector  v.  Ashlej'.  6  Wall.  142, 
18   L.    Ed.  733. 

Grant  of  lands  to  railroads. — On  the  3d 
of  June.  1856,  congress  made  a  grant  of 
public  lands  to  the  state  of  Alabama  to  aid 
in  the  construction  of  certain  railroads. 
By  acts  of  the  state  legislature,  certain 
railroads  were  made  beneficiaries  of  this 
grant,  and  in  February  11,  1870,  an  act 
was  passed  by  the  state  legislature  loaning 
two  millions  of  dollars  of  the  state  bonds 
to  the  Alabama  and  Chattanooga  Railroad 
Company',  providing  for  the  execution  of 
a  mortgage  by  the  company  on  all  its 
property,  including  the  land  grant,  to  se- 
cure this  loan.  "The  supreme  court,  in 
its  first  opinion,  held  that,  under  the  act 
of  1870  and  the  reservation  in  the  mort- 
gage, the  railroad  company  had  absolutely 
no  power  to  sell  until  the  making  of  that 
certificate;  and  that  any  attempted  sale 
made  prior  thereto  was  a  nullity,  not  void- 
?ble.  but  absolutely  void.  Now.  whether 
that  was  a  correct  construction  or  not  of 
the  act  of  1870  and  the  reservation  of  the 
mortgage,  is  a  purely  local  question,  and 
invoh^es  nothing  of  a  federal  character. 
The  question  is  not  what  rights  passed 
to  the  state  under  the  acts  of  congress, 
but  what  authority  the  railroad  company 
had  under  the  statute  of  the  state.  The 
construction  of  such  a  statute  is  a  matter 
for  the  state  court,  and  its  determination 
thereof  is  binding  on  this  court.  The 
fact  that  the  state  statute  and  the  mort- 
gage refer  to  certain  acts  of  congress  as 
prescribing  the  rule  and  measure  of  the 
rights  granted  by  the  state,  does  not  make 
the  determination  of  such  rights  a  federal 
question."  Miller  v.  Swann,  150  U.  S.  132, 
136.   37    L.   Ed.    1028. 

Suit  to  quiet  title. — In  Dibble  v.  Belling- 
ham  Bay  Land  Co.,  163  U.  S.  63,  41  L. 
Ed.  72,  a  suit  was  brought  in  a  state 
court  seeking  a  decree  quieting  the  plain- 
tiff's title  to  certain  lands  therein  de- 
scribed and  establishing  the  existence  and 
validity  of  a  certain  power  of  attorney  al- 
leged to  have  been  lost  without  having 
been  recorded.  In  its  opinion,  the  su- 
preme court  of  the  state;  after  stating  the 
case,  said:  "The  proof  of  two  facts  was 
attempted  by  the  respondent,  the  estab- 
lishment of  either  of  which  would  be  fa- 
tal to  appellant's  claim.  The  facts  at- 
tempted to  be  proved  were  as  follows: 
1st.  The  plaintiff's  title  to  the  land  in 
controversy  had  been  acquired  by  ad- 
verse possession;  2d.  That  the  wife  had 
executed  a  power  of  attorney  to  her  hus- 
band authorizing  him  to  sell  the  disputed 
premises."  .\fter  overruling  a  contention 
by  the  appellant  that  under  the  pleadings 
as  framed  no  testimony  tending  to  prove 
adverse  holding  was  admissible,  the  court 
took  up  the  first  proposition  and  held  that 
the  plaintiff  had  established  his  title  by 
adverse    possession    during    the    statutory 


APPEAL  AXD  ERROR. 


591 


disposed  of  upon  nonfederal  grounds.os  If  it  appears  diat  the  court  did  in  fact 
base  its  judgment  on  such  independent  ground,  or,  where  it  does  not  appear  on 
which  of  t  -le  two  grounds  the  judgment  was  based,  if  the  independent  ground  on 
which  it  might  have  been  based  was  a  good  and  vaHd  one,  sufficient  in  it- 
self to  sustain  the  judgment,  this  court  will  not  assume  jurisdiction.^^     In  other 


period;  that  the  adverse  possession  was 
actual,  notorious,  exclusive  and  contin- 
uous, under  claim  or  color  of  title.  Hav- 
ing reached  this  result  the  court  added: 
'"This  renders  an  investigation  of  the  sec- 
ond proposition  discussed  unnecessary." 
Thus  it  appears  that  the  decision  of  the 
court  rested  on  a  ground  that  did  not  in- 
volve the  validity  of  the  question  of  the 
power  of  attorney  and  deed.  This  sec- 
ond proposition  which  was  duly  certified 
to  by  the  chief  justice  of  the  state  su- 
preme court  was  whether  the  said  power 
of  attorney  and  deed  made  under  it, 
which,  b)'  the  law  at  the  time  of  its  mak- 
ing were  absolutely  void,  were  made  valid 
by  subsequent  act  of  the  legislature  and 
whether  if  so  made  valid,  it  is  not  in  vio- 
lation of  the  fourtheenth  amendment  of 
the  constitution.  But  the  court  held,  that 
although  the  record  might  disclose  that 
a  question  had  been  raised  and  decided  ad- 
versely to  a  party  claiming  the  benefit  of 
a  provision  of  the  United  States  constitu- 
tion, yet,  as  another  question  not  federal 
had  also  been  raised  and  decided  against 
such  party,  and  the  decision  of  the  latter 
question  was  sufficient  notwithstanding 
the  federal  question  to  sustajn  the  deci- 
sion, this  court  would  not  review  the 
judgment.  Nor  can  this  result  be  in  any 
respect  controlled  by  the  certificate  of  the 
presiding  judge,  for  the  office  of  the  cer- 
tificate, as  respects  the  federal  question, 
is  to  make  more  certain  and  specific  what 
is  too  general  and  indefinite  in  the  record, 
but  is  incompetent  to  originate  the  ques- 
tion. 

Statutory  penalty  for  taking  usury. — A 
decision  of  the  highest  state  court  in  Il- 
linois that  the  statutes  of  Illinois  contain 
both  a  prohibition  and  a  penalty;  that 
the  prohibition  makes  void  pro  tanto 
every  contract  in  violation  thereof,  and 
that  while  §  11,  prohibiting  corporations 
from  pleading  the  defense  of  usury,  may 
prevent  any  claim  to  the  benefits  of  the 
penalty,  it  does  not  give  the  other  party 
a  right  to  enforce  a  contract  made  in  vio- 
lation of  the  prohibition,  denies  no  right 
given  by  any  federal  statute,  and  involves 
no  judgment  adverse  to  the  plaintiff  as 
to  its  meaning  and  effect,  although  the 
rights  of  a  national  bank  as  to  interest 
are  given  by  the  federal  statute.  Union 
Nat.  Bank  7'.  Louisville,  etc.,  R.  Co.,  163 
U.  S.  33.5,  41  L.  Ed.  177,  citing  Eustis  v. 
Bolles,  1.50  U.  S.  361.  ?,~  L.  Ed.   1111. 

Denial  of  due  process  of  law. — Although 
the  plaintiff  in  error  made  a  claim  in  an 
action  for  damages  in  a  state  court  for 
injury  to  his  property  by  altering  the 
grade  of  the  street  in  front  of  his  lot.  that 
he    had    a    right    to     state    the     niusancc 


caused  by  the  proposed  changes  and  in 
the  refusal  of  the  state  court  to  recog- 
nize this  principle  he  had  been  deprived 
of  his  property  without  due  process  of 
law,  yet  if  the  right  of  the  defendant  for 
damages  was  disposed  of  in  the  state 
court  by  deciding  that  the  defendant  had 
mistaken  his  remedy,  and  that  he  must 
resort  to  another  proceeding  against  the 
city  for  his  damages,  this  is  beyond  aM 
doubt  a  ruling  broad  enough  to  support 
the  decree  regardless  of  any  federal  ques- 
tion that  possibly  might  have  been  raised. 
McQuade  z'.  Trenton,  172  U.  S.  636,  43 
L.    Ed.  581. 

Impairment  of  obligation  of  contract. — 
In  a  suit  brought  in  a  state  court  of  Ken- 
tucky by  the  city  of  Henderson  against 
the  Henderson  Bridge  Company,  to  re- 
cover for  taxes  assessed  by  the  city  on 
the  bridge  of  the  company,  which  span- 
ned the  Ohio  River  at  the  city,  the  court 
of  appeals  of  the  state  held  that  the  city, 
as  a  taxing  district,  could  tax  the  prop- 
erty of  the  company,  and  that,  under  an 
ordinance  of  the  city,  accepted  by  the 
company,  the  city  acquired  a  c'ontract 
right  to  tax  the  bridge  to  low-water  mark 
on  the  Indiana  shore,  it  being  within  the 
city  limits,  in  consideration  of  rights  and 
privileges  granted  to  the  company  by  the 
ordinance.  On  a  motion  to  dismiss  a 
writ  of  error  from  this  court,  sued  out  by 
the  company,  held,  that  although  it  was 
claimed  in  the  pleadings,  by  the  company, 
that  the  taxing  ordinance  impaired  the 
obligation  of  a  prior  contract  with  the 
company,  yet  as  the  decision  of  the  court 
of  appeals  was  based  wholly  on  the  ground 
that  the  proper  interpretation  of  the  or- 
dinance first  above  referred  to  was  that 
the  company  voluntarily  agreed  that  the 
bridge  should  be  liable  to  taxation,  and 
that  did  not  involve  a  federal  question, 
and  was  broad  enough  to  dispose  of  the 
case,  without  reference  to  any  federal  ques- 
tion, and  this  court  could  not  review  the 
construction  which  was  given  by  the  state 
court  to  the  ordinance,  as  a  contract,  in 
view  of  the  constitution  and  laws  of  Ken- 
lucky,  the  writ  of  error  must  be  dismissed. 
Held,  also,  that  the  taxation  of  the 
bridge  was  not  a  regulation  of  commerce 
among  the  states,  or  the  taxation  of  any 
agency  of  the  federal  government.  Hen- 
derson Bridge  Co.  v.  Henderson  City, 
141  U.  S.  679,35   L.   Ed.  900. 

68.  Harrison  v.  Morton.  171  U.  S.  38, 
43  L.  Ed.  63;  Bacon  v.  Texas,  163  U.  S. 
207,  41  L.  Ed.  132,  and  cases  cited;  Mc- 
Quade V.  Trenton.  172  U.  S.  636,  639,  43 
L.   Ed.   581. 

69.  Klinger    v.    Missouri,    13    Wall.    257, 


592 


APPEAL  AND  ERROR. 


words,  where  the  decision  complained  of  rests  on  an  independent  ground,  not  in- 
volving a  federal  question  and  broad  enough  to  maintain  the  judgment,  the  writ 
of  error  will  be  dismissed  by  this  court  without  considering  any  federal  question 
that  may  also  have  been  presented/^ 

In  the  languag-e  of  Mr.  Justice  Harlan,  the  general  rule  is  that  where  the 
judgment  of  the  state  court  rests  upon  an  independent,  separate  ground  of  local 
or  general  law,  broad  enough  or  sufficient  in  itself  to  cover  the  essential  issues, 
and  control  the  rights  of  the  parties,  however  the  federal  question  raised  on  the 
record  might  be  determined,  this  court  will  affirm  or  dismiss,  as  the  one  course 
or  the  other  may  be  appropriate,  without  considering  that  question."^^ 

Limitations  of  General  Rule. — But  where  there  is  a  federal  question,  though 
the  case  may  have  been  disposed  of  on  some  other  independent  ground,  yet  if  it 
does  not  appear  on  which  of  the  two  grounds  the  judgment  was  based,  then  if  the 
independent  ground  was  not  a  good  and  valid  one,  sufficient  of  itself  to  sustain 
the  judgment,  this  court  will  take  jurisdiction  of  the  case,  because,  when  put  to 
inference  as  to  what  points  the  state  court  decided,  we  ought  not  to  assume  that 
it  proceeded  on  grounds  clearly  untenable.'^^  Though  where  a  defense  is  dis- 
tinctly made,  resting  on  local  statute,  we  should  not,  in  order  to  reach  a  federal 
question,  resort  to  critical  conjecture  as  to  the  action  of  the  court  in  the  disposi- 
tion of  such  defense. '3  It  is  also  settled  that  even  though  the  judgment  of  the 
state  court  was  based  upon  some  ground  of  local  or  general  law  manifestly  broad 
enough  in  itself  to  sustain  the  decision  independently  of  any  view  that  might 
be  taken  of  such  federal  question,  this  court  will  pass  on  the  federal  question  if 
the  state  court  based  its  judgment  solely  on  a  ground  involving  a  determination 
thereof."^^ 

It  is  equally  well  settled  that  the  failure  of  the  state  court  to  pass  on  the 


20  L.  Ed.   635;   Dibble  v.   Bellingham   Bay 
Land  Co.,   163  U.  S.  63,  69,  41    L.   Ed.   72. 

70.  Eustis  V.  Bolles,  150  U.  S.  361,  37 
L.  Ed.  1111;  California  Powder  Works  v. 
Davis,  151  U.  S.  389,  393,  38  L.  Ed.  206; 
White  V.  Lennig,  163  U.  S.  711,  41  U.  Ed. 
314;  Hammond  v.  Horton,  169  U.  S.  734, 
42  L.  Ed.  1215:  Corkran  Oil  Co.  Z'.  Arn- 
audet,  199  U.  S.  182,  50  L.  Ed.  143;  Mis- 
souri Pac.  R.  Co.  V.  Fitzgerald,  160  U. 
S.  556,  576,  40  L.  Ed.  536,  reaffirmed  in 
Jeske  7'.  Cox,  171  U.  S.  685,  43  L.  Ed. 
1179;  Chemical  Nat.  Bank  v.  City  Bank, 
160  U.  S.  646,  653.  40  L.  Ed.  568;  Allen  v. 
Southern,  etc.,  R.  Co.,  173  U.  S.  479,  43 
L.  Ed.  775;  Delaware  City,  etc.,  Nav.  Co. 
V.  Reybold,  142  U.  S.  636,  35  L.  Ed.  1141; 
Hammond  v.  Johnston,  142,  U.  S.  73,  35 
L.  Ed.  941;  New  Orleans  v.  New  Orleans 
Water  Works  Co.,  142  U.  S.  86,  35  L.  Ed. 
946;  New  York,  etc.,  R.  Co.  z:  Woodruff, 
153   U.   S.   689,  38   L.   Ed.    869. 

Adequacy  of  Remedies. — The  decision 
of  a  state  court  that  a  relator  is  not  en- 
titled to  a  writ  of  prohibition  to  restrain 
the  harbor  commissioners  of  a  state  from 
extending  and  locating  harbor  lines  over 
wharves  erected  by  and  belonging  to  the 
petitioners  in  contravention  to  the  act 
of  congress,  based  on  the  ground  that  he 
had  other  remedies  of  which  he  might 
have  availed  himself,  is  a  grotmd  broad 
enough  to  sustain  the  judgment  irrespec- 
tive of  the  decision  of  any  federal  ques- 
tions. Yesler  z'.  Wash'nc^ton,  etc..  Com- 
missioners, 146  U.  S.  646,  36  L.  Ed.   1119. 

71.  Chicago,  etc.,   R.   Co.  z\   Illinois,  200 


U.    S.    561,   580,   50    L.    Ed.    596. 

72.  Johnson  v.  Risk,  137  U.  S.  300,  307, 
34  L.  Ed.  6^3,  citing  Klinger  v.  Missouri, 
13  Wall.  257,  20  L.  Ed.  635;  German  Sav- 
ings Society  v.  Dormitzer,  192  U.  S.  125, 
48   L.   Ed.   373. 

Where  it  does  not  appear  on  which  of 
the  two  grounds  the  judgment  was  based, 
then,  if  tlie  independent  ground  on  which 
it  might  haA'e  been  based  was  a  good  and 
valid  one.  sufficient  of  itself  to  sustain 
the  judgment,  this  court  will  not  assume 
jurisdiction  of  the  case;  but  if  such  in- 
dependent ground  was  not  a  good  and 
valid  one,  it  will  be  presumed  that  the 
state  court  based  its  judgment  on  the 
law  rais'ng  the  federal  question,  and  this 
court  will  then  take  jurisdiction.  Maguirc 
V.  Tyler,  S  Wall.  650.  19  L.  Ed.  320;  Neil- 
son  V.  Lagow,  12  How.  98,  110,  13  L.  Ed. 
909;  Railroad  z:  Rock.  4  Wall.  177,  18  L. 
Ed.  381;  Railroad  Co.  z:  McClure,  10  Wall. 
511,  19  L.  Ed.  997;  Insurance  Co.  v.  The 
Treasurer,  11  Wall.  204.  20  L.  Ed.  112; 
Crowell  V.  Randell,  10  Pet.  368,  9  L.  Ed. 
458;  Suydam  z'.  Williamson.  20  How.  427, 
15  L.  Ed.  978;  Williams  v.  Oliver,  12  How. 
111.  123,  13  L.  Ed.  915;  Klinger  v.  Mis- 
souri, 13  Wall.  257,  263,  20  L.   Ed.  635. 

73.  Johnson  Z'.  Risk.  137  U.  S.  300.  307, 
34  L.  Ed.  683;  Bachtel  v.  Wilson,  204  U. 
S.    36,   51   L.   Ed.   357. 

74.  Henderson  Bridge  Co.  v.  Hender- 
son, 173  U.  S.  592,  43  L.  Ed.  835;  Board  of 
Liquidation  v.  Louisana,  179  U.  S.  622,  45 
L.  Ed.  347. 


APPEAL  AXD  ERROR. 


593 


federal  right  or  immunity  specially  set  up.  of  record,  is  not  conclusive,  but  this 
court  will  decide  the  federal  question  if  the  necessary  effect  of  the  judgment  is 
to  deny  a  federal  right  or  immunity  specially  set  up  or  claimed,  and  which,  if 
recognized  and  enforced,  would  require  a  judgment  different  from  one  resting 
upon  some  ground  of  local  or  general  lawJ^ 

(4)  Question  Must  Be  Real  atxd  Not  Fictitious  or  Frivolous. — In  General. — 
A  real  and  not  a  fictitious  federal  question  is  essential  to  the  jurisdiction  of  this 
court  over  the  judgments  of  state  courts.'^  "It  has  long  been  the  holding  of  this 
court  that  in  order  to  warrant  the  exercise  of  jurisdiction  over  the  judgments  of 
state  courts,  there  must  be  something  more  than  a  mere  claim  that  a  federal  ques- 
tion exists.  There  must,  in  addition  to  the  simple  setting  up  of  the  claim,  be 
some  color  therefor,  or,  in  other  words,  the  claim  must  be  of  such  a  character 
that  its  mere  mention  does  not  show  it  destitute  of  merit;  there  must  be  some 
fair  ground  for  asserting  its  existence,  and,  in  the  absence  thereof,  a  writ  of  er- 
ror will  be  dismissed,  although  the  claim  of  a  federal  question  was  plainly  set 
up.'"'"^  The  cases  cited  in  the  note  show  the  rule  and  its  limitations,  and  where, 
by  the  record,  it  appears  that,  although  the  claim  of  a  federal  question  had  been 
plainly  made,  if  it  also  clearly  appears  that  it  lacked  all  color  of  merit,  and  had 
no  substance  or  foundation,  the  mere  fact  that  it  was  raised  is  not  sufficient  to 
give  the  supreme  court  of  the  United  States  jurisdiction.'^^ 


75.  Chicago,  etc.,  R.  Co.  v.  Illinois,  200 
U.   S.   561,   580,  50   L.   Ed.  596. 

76.  Millingar  v.  Hartupee.  6  WaH.  258, 
18  L.  Ed.  829;  New  Orleans  v.  New  Or- 
leans Water  Works  Co.,  142  U.  S.  86,  87, 
35  L.  Ed.  946;  Hamblin  v.  Western  Land 
Co.,  147  U.  S.  531,  37  L.  Ed.  267;  Sawyer 
V.  Piper.  189  U.  S.  154,  157,  47  L.  Ed.  757; 
Wilson  V.  North  Carolina.  169  U.  S.  586, 
595,  42  L.  Ed.  865.  reaffirmed  in  Gates  v. 
Commissioners.  183  U.  S.  693.  46  L.  Ed. 
393. 

As  was  said  in  New  Orleans  v.  New 
Orleans  Water  Works  Co.,  142  U.  S.  861.  35 
L.  Ed.  946:  While  there  is  in  the  *  *  '^ 
answer  of  the  citj'  a  formal  averment  that 
the  ordinance  impaired  the  obligation  ot 
a  contract  arising  out  of  the  act  of  1877, 
which  entitled  the  city  to  a  supply  of 
water  free  from  charge,  the  bare  aver- 
ment of  a  federal  question  is  not.  'n 
all  cases,  sufficient.  It  must  not  be  wholly 
without  foundation.  There  must  be  at 
least  color  of  ground  for  such  averment, 
otherwise  a  federal  question  might  be 
set  up  in  almost  any  case,  and  the  juris- 
diction of  this  court  invoked  simply  for 
the  purpose  of  delav."  St.  Louis,  etc.,  R. 
Co.  V.  Merriam,  156  U.  S.  478.  483.  39  L. 
Ed.  502. 

And  in  Hamblin  7'.  Western  Land  Co., 
147  U.  S.  531,  532,  37  L.  Ed.  267,  where 
the  foregoing  opinion  was  quoted  with 
approval,  it  was  said:  "A  real  and  not  a 
fictitious  federal  question  is  essential  to 
the  jurisdiction  of  this  court  over  the 
judgment  of  state  courts."  St.  Louis,  etc., 
R.  Co.  V.  Merriam,  156  U.  S.  478,  483,  39 
L.   Ed.   502. 

77.  New  Orleans  Waterworks  v.  Lou- 
isiana. 185  U.  S.  336,  344.  46  L.  Ed.  936. 
reaffirmed  in  Brewster  v.  Cahill.  194  U.  S. 
629.  48  L.  Ed.  1158:  Gates  v.  Parmly,  191 
U.    S.    557,    48    L.    Ed.    301;    Weltmer    v. 

1  U  S  Enc— 38 


Bishop,  191  U.  S.  560,  561,  48  L.  Ed.  302; 
Coventry  v.  Davis,  193  U.  S.  669.  48  L. 
Ed.  840;  Hamburg,  etc..  Steamship  Co. 
V.  Lennan,  194  U.  S.  628,  629,  48  L.  Ed. 
1157;  Iron  Bridge  Co.  v.  Brennan.  194 
U.  S.  630,  48  L.  Ed.  1158;  Swafford  v. 
Templeton,  185  U.  S.  487,  493,  46  L.  Ed. 
1005,  reaffirmed  in  Stuart  v.  Hauser,  203 
U.   S.  585.   51   L.   Ed.    328. 

78.  New  Orleans  Waterworks  Co.  v. 
Louisiana.  185  U.  S.  336,  346,  46  L.  Ed. 
936,  reaffirmed  in  Brewster  v.  Cahill.  194 
U.  S.  629,  48  L.  Ed.  1158;  Gates  v.  Parmly. 
191  U.  S.  557,  48  L.  Ed.  301;  Weltmer  v. 
Bishop,  191  U.  S.  560.  561.  48  L.  Ed.  302; 
Coventry  v.  Davis.  193  U.  S.  669.  48  L. 
Ed.  840;  Hamburh.  etc..  Steamship  Co. 
V.  Lennan,  194  U.  S.  628,  629,  48  L.  Ed. 
1157;  Iron  Bridge  Co.  v.  Brennan,  194  U. 
S.   630.   48   L.   Ed.   1158. 

Thus  in  Millingar  v.  Hartupee,  6  Wall. 
258,  18  L.  Ed.  829,  the  chief  justice  (at 
page  261)  said:  "Something  more  than 
a  bare  assertion  of  such  an  authority 
seems  essential  to  the  jurisdiction  of  this 
court.  The  authority  intended  by  the 
act  is  one  having  a  real  existence,  de- 
rived from  competent  governmental 
power."  This  case  arose  under  the  twenty- 
fifth  section  of  the  judiciary  act.  and  ju- 
risdiction was  sought  to  be  maintained 
upon  the  assertion  that  the  validity  of 
?n  authority  exercised  under  the  United 
States  was  drawn  in  question,  and  the 
decision  was  against  its  validity.  It  was 
held,  not  sufficient  to  make  the  claim, 
but  there  must  be  some  color  of  founda- 
tion for  its  a.=sertion. 

In  New  Orleans  v.  New  Orleans  Water 
Works  Co..  142  U.  S.  86,  35  L.  Ed. 
946.  upon  a  motion  to  dismiss  the  writ 
of  error  on  the  ground  that  no  federal 
question  was  involved,  it  was  said  by  the 
court   (page   87):     "While   there  is  in   the 


594 


APPBAL  AXD  ERROR. 


In  the  language  of  Mr.  Justice  Brown:  "The  mere  fact  that  a  plaintilT 
in  error  asserts  title  under  a  clause  of  the  constitution  or  an  act  of  congress  i> 
not  in  itself  sufficient  to  give  the  supreme  court  of  the  United  States  jurisdic- 
tion to  review  a  decision  of  the  state  court  denjing  such  title,  unless  there  be  ai 


amended  and  supplemental  answer  of  the 
city,  a  formal  averment  that  the  ordi- 
nance No.  909  impaired  the  obligation  of 
a  contract  arising  out  of  the  act  of  1877, 
^<?hich  entitled  -the  city  to  a  supply  of 
water  free  of  charge,  the  bare  averment 
of  a  federal  question  is  not  in  all  cases 
sufficient.  It  must  not  be  wholly  with- 
out foundation.  There  must  be  at  least 
color  of  ground  for  such  averment,  other- 
wise a  federal  question  might  be  set  up 
in  almost  any  case,  and  the  jurisdiction 
of  this  court  invoked  simply  for  the  pur- 
pose of   delay." 

Again,  in  Hamblin  z\  Western  Land 
Company,  147  U.S.  531,  37  L.  Ed.  267,  upon 
■a  like  motion  to  dismiss  the  writ  of  error, 
"the  court  said:  "It  is  doubtful  whether 
there  is  a  federal  question  in  this  case. 
A  real,  and  not  a  fictitious,  federal  ques- 
tion is  essential  to  the  jurisdiction  of  this 
court  over  the  judgment  of  state  courts." 
Citing  the  two  cases  just  above  re- 
ferred to. 

In  St.  Joseph,  etc.,  R.  Co.  v.  Steele,  167 
U.  S.  659,  42  L.  Ed.  315,  it  was  said  by 
the  court  (page  662) :  "We  cannot  accede 
t©  the  proposition  that,  because  the  acts 
of  congress,  which  authorized  the  con- 
struction of  the  bridge  in  question,  gave 
the  right  to  build  a  railroad  and  toll 
bridge,  the  conceded  power  of  the  state 
to  tax  did  not  extend  to  the  bridge  in 
both  aspects.  Nor  can  we  agree  that  the 
making  of  such  a  contention  raised  a 
federal  question  of  a  character  to  confer 
original  jurisdiction  in  the  circuit  court 
of  the  United  States.  Not  every  mere 
allegation  of  the  existence  of  a  federal 
question  in  a  controversy  will  suffice  for 
that  purpose.  There  must  be  a  real, 
substantive  question,  on  which  the  case 
may  be   made  to   turn." 

Although  the  above  case  relates  to  the 
jurisdiction  of  the  circuit  court,  yet,  so 
far  as  this  question  is  concerned,  the 
principle  is  the  same  as  to  both  courts. 
But  see  Swafford  v.  Templeton,  185  U.  S. 
487,  46   L.  Ed.  1005. 

"And  in  Wilson  v.  North  Carolina,  169 
U.  S.  586,  42  L.  Ed.  865,  it  was  held,  that 
there  must  be  a  real  and  substantial  fed- 
eral question  existing  in  order  to  give  this 
court  jurisdiction  to  review  a  judgment 
of  a  state  court,  and  if  the  question  raised 
were  so  unfounded  in  substance  that  the 
court  would  be  justified  in  saying  there 
was  no  fair  color  for  the  claim  that  it 
was  of  a  federal  nature,  the  writ  would 
be  dismissed."  New  Orleans  Water 
Works  Co.  V.  Louisiana,  185  U.  S.  336.  46 
L.    Ed.   936. 

Forfeiture  of  corporate  charter. — The 
state  secured  the  forfeiture  of  the  charter 


of  the  defendant  corporation  by  means 
of  a  judicial  decree  obtained  in  a  state 
court  which  had  jursidiction  to  give  re- 
lief prayed  for,  and  after  a  hearing  of  the 
defendant  in  the  usual  manner  pertaining 
to  courts  of  justice.  The  facts  upon  which 
such  forfeiture  was  based  were  judiciallv 
declared  and  found,  and  the  defendant  had 
full  opportunity  for  its  defense  upon  such 
hearing.  The  cause  of  forfeiture  was  the 
fact,  which  was  found  by  the  court,  that 
the  corporation  had  charged  illegal  rates 
for  the  water  it  furnished,  and  the  right 
to  declare  such  forfeiture,  because  of  a 
violation  by  defendant  of  the  conditions 
of  its  charter,  was  implied  in  the  very 
grant  of  the  charter  itself.  It  was  held, 
that  this  did  not  present  a  federal  ques- 
tion which  gives  jurisdiction  to  the  su- 
preme court  of  the  United  States  to  re- 
view the  judgment  of  the  state  court  on 
writ  of  error.  The  claim  that  the  for- 
feiture was  a  violation  of  the  charter,  and 
of  the  contract  therein  contained,  and 
was  on  that  account  a  taking  of  defend- 
ant's property  without  due  process  of  law. 
or  that  the  state  by  such  judgment  had 
denied  to  defendant  the  equal  protection 
of  the  laws,  cannot  obtain.  Whether  de- 
fendant had  so  violated  its  charter  was  a 
fact  to  be  decided  by  the  state  court. 
That  court  had  full  jurisdiction  over  the 
parties  and  the  subject  matter,  and  its 
decision  of  the  question  was  conclusive 
in  this  case  so  far  as  the  supreme  court 
of  the  United  States  is  concerned.  New 
Orleans  Waterworks  Co.  v.  Louisiana. 
185  U.  S.  336,  352.  353,  46  L.  Ed.  936,  re- 
affirmed in  Brewster  v.  Cahill.  194  U.  S. 
629,  48  L.  Ed.  1158;  Gates  v.  Parmly,  191 
U.  S.  557,  48  L.  Ed.  301;  Weltmer  v. 
Bishop,  191  U.  S.  560,  561,  48  L.  Ed.  302; 
Coventry  v.  Davis.  193  U.  S.  669,  48  L. 
Ed.  840;  Hamburg,  etc..  Steamship  Co. 
r.  Lennan.  194  U.  S.  628,  629,  48  L.  Ed. 
1157;  Iron  Bridge  Co.  v.  Brennan,  194 
U.  S.  630,  48  L.  Ed.  1158. 

That  the  bondh-Tlders  of  a  corporation, 
who  it  was  insisted  were  necessary  parties, 
were  not  made  parties  to  a  suit  in  a  state 
court,  by  the  attorney  general  in  the 
name  of  the  state,  to  enforce  a  forfeiture 
of  the  charter  of  the  corporation  for  an 
alleged  violation  of  its  terms,  is  not  a 
question  which  the  supreme  court  of  the 
United  States  can  review  on  writ  of  er- 
ror to  a  state  court.  New  Orleans  Water- 
works Co.  t'.  Louisiana,  185  U.  S.  336, 
353.  46  L.  Ed.  936,  citing  and  approving 
Chicago  Life  Ins.  Co.  v.  Needles,  113 
U.  S.  574,  28  L.  Ed.  1084,  reaffirmed  in 
Brewster  v.  Cahill.  194  U.  S.  629.  48  L- 
Ed.  1158;  Gates  zv  Parmly,  191  U.  S.  557, 
48    L.    Ed.    301;    Weltmer   v.    Bishop,    191 


APPEAL  AND  ERROR. 


595 


least  a  plausible  foundation  for  the  claim."  "A  party  may  assert  a  right,  title, 
privilege  or  immunity  \\nthottt  even  color  for  such  assertion,  ajid  if  that  were 
alone  sufficient  to  give  this  court  jurisdiction,  a  vast  number  of  cases  might  be 
brought  here  simply   for  delay  or  speculative  advantage."' ^ 

Where  Claim  Is  Formally  Made  and  Disposed  of  without  Reference  to 
Its  Substantial  Foundations. — It  is  settled  that  not  every  mere  allegation  of 
a  federal  question  will  suffice  to  give  jurisdiction.  "There  must  be  a  real,  substan- 
tive question  on  which  the  case  may  be  made  to  turn,"  that  is,  a  real  and  riot  a 
merely  formal  federal  question  is  essential  to  the  jurisdiction  of  this  court.*"* 
Stated  in  another  form,  the  doctrine  thus  declared  is  that  although,  in  consider- 
ing a  motion  to  dismiss,  it  be  found  that  a  question  adequate  abstractly  considered 
to  confer  jurisdiction  was  raised,  if  it  likewise  appear  that  such  question  is 
wholly  formal,  is  so  absolutely  devoid  of  merit  as  to  be  frivolous,  or  has  been  so 
explicitly  forclosed  by  a  decision  or  decisions  of  this  court  as  to  leave  no  room 
for  real  controversy,  the  motion  to  dismiss  will  prevail. *i  The  power,  however, 
to  dismiss  because  of  the  want  of  substantiality  in  the  claim  upon  which  the 
assertion  of  jurisdiction  is  predicated,  does  not  apply  to  cases  where  the  sub- 
ject matter  of  the  controversy  is  per  se  and  inherently  federal. *2 

A  general  statement  that  the  decision  of  a  court  is  against  the  constitutional 
rights  of  the  objecting  party  or  against  the  fourteenth  amendment,  or  that  it  is 
without  due  process  of  law,  particularly,  when  these  objections  appear  only  in 
specifications  of  error,  so  called,  will  not  raise  a  federal  question  even  where  the 
judgment  is  a  final  one,  within  §  709  of  the  Revised  Statutes.     There  must  be 


U.  S.  560,  48  L.  Ed.  302;  Coventry  v. 
Davis,  193  U.  S.  669.  48  L.  Ed.  840;  Ham- 
"biirg,  etc..  Steamship  Co.  v.  Lennan,  194 
U.  S.  628,  629,  48  L.  Ed.  11.57;  Iron  Bridge 
Co.  V.  Brennan,  194  U.  S.  630,  48  L.  Ed. 
1 1 58. 

On  writ  of  error  from  the  supreme  court 
of  the  United  'States  to  a  state  court  to 
review  a  proceeding  in  the  entry  of  a 
quo  warranto  brought  by  the  attorney 
general  of  the  state  to  obtain  a  forfeiture 
of  the  charter  of  the  defendant,  a  water- 
works company,  the  plaintiff  in  error,  the 
corporation,  claimed  the  existence  in  the 
record  of  a  federal  question  which  the 
brief  of  the  defendant  in  error  set  forth 
as  follows:  "The  charter  of  the  water- 
works company  prescribing  mandamus  as 
the  remedy  to  maintain  a  lawful  tariff 
of  water  rates,  is  not  the  substitution  by 
the  writs  of  forfeiture  of  charter,  as  a 
remedy  for  the  maintenance  of  unlawful 
rates,  a  breach  of  the  contract,  and  a  de- 
privation of  the  property  without  due 
process  of  law,  and  a  denial  of  the  equal 
protection  of  the  laws?"  It  was  held, 
that  the  answer  as  to,  "mandamus  being 
the  'exclusive  remedy  for  illegal  rates,  is 
that  the  state  court  has  otherwise  con- 
strued the  charter,  and  has  held  that 
mandamus  is  not  the  only  remedy,  but 
that  the  company  was  liable  to  be  pro- 
ceeded against  by  quo  warranto  at  the  suit 
of  the  state  through  its  attorney  general. 
The  claim  that  by  so  proceeding  there  is 
any  impairment  of  the  obligation  of  a 
contract  by  anj-  subsequent  legislation,  or 
that  there  has  thus  been  a  deprivation  of 
property  without  due  process  of  Ian-,  or 
a   denial    of    the    equal    protection    of    the 


laws,  has  no  colorable  foundation.  An 
examination  of  this  question,  among 
others,  was  made  by  the  state  court  after 
full  hearing  by  all  parties,  and  all  that 
can  possibly  ?e  claimed  on  the  part  of 
the  plaintiff  in  error  is  that  such  court 
erroneously  decided  the  law.  Tliat  con- 
stitutes no  federal  question."  New  Or- 
leans Waterworks  Co.  v.  Louisiana,  18" 
U.  S.  336.  46  L.  Ed.  936,  reaffirmed  in 
Brewster  v.  Cahill,  194  U.  S.  629.  48  '^. 
Ed.  1158;  Gates  v.  Parmly,  191  U.  S.  55:. 
48  L.  Ed.  301;  Weltmer  v.  Bishop.  191 
U.  S.  560,  48  L.  Ed.  302;  Coventry  ». 
Davis,  193  U.  S.  669.  48  L.  Ed.  840;  Ham- 
burg, etc..  Steamship  Co.  z'.  Lennan,  194 
U.  S.  628,  629.  48  L.  Ed.  1157;  Iron  Bridge 
Co.  V.  Brennan.  194  U.  S.  630,  48  L.  Ed. 
1158. 

79.  New  Orleans  Waterworks  Co.  v. 
Louisiana,  185  U.  S.  336,  46  L.  Ed.  936; 
Iowa  z\  Rood,  187  U.  S.  87.  92,  47  L. 
Ed.   86. 

80.  Equitable  Life  Assurance  Society  v. 
Brown,  187  U.  S.  308,  311,  47  L.  Ed.  19©, 
reaffirmed  in  Chicago,  etc.,  R.  Co.  V. 
Newell.   198   U.   S.   579,  49   L.   Ed.   1171. 

81.  New  Orleans  Waterworks  Co.  v. 
Louisiana,  185  U.  S.  336,  345,  46  L.  Ed. 
939:  Equitable  Life  Assurance  Society  v. 
Brown,  187  U.  S.  308,  311,  47  L.  Ed.  190, 
reaffirmed  in  Chicago,  etc.,  R.  Co.  v. 
Newell,    198   U.   S.   579,   49  L.  Ed.   1171. 

82.  SwaflFord  v.  Templeton,  185  U.  S. 
487.  493,  46  L.  Ed.  1005;  Equitable  Life 
Assurance  Society  v.  Brown,  187  U.  S. 
308,  311,  47  L.  Ed.  ir  \  reaffirmed  in 
Chicago,  etc.,  R.  Co.  v.  Newell,  198  U.  S. 
579,  49  L.  Ed.  1171. 


596 


APPEAL  AND  ERROR. 


at  least  some  color  of  a  federal  question. ^^ 

The  bare  averment  of  a  federal  question  is  not  in  all  cases  sufficient.  It 
must  not  be  wholly  without  foundation.  There  must  be  at  least  color  of  ground 
for  such  averment,  otherwise  a  federal  question  might  be  set  up  in  almost  any 
case,  and  the  jurisdiction  of  this  court  invoked  simply  for  the  purpose  of  delay.**"* 
The  mere  assertion  of  a  federal  right  and  its  denial  do  not  justify  our  assuming 
jurisdiction,  where  it  indubitably  appears  that  the  federal  right  asserted  is  frivo- 
lous ;  that  is,  without  color  of  merit. ^^ 

Denial  of  Right  to  Amend. — The  mere  averment,  in  an  application  for 
leave  to  file  a  supplementary  answer,  that  to  render  a  decree  foreclosing  an 
equitable  mortgage  would,  under  the  circumstances,  be  a  taking  of  property 
without  due  process  of  law  and  denying  to  them  the  equal  protection  of  the  law, 
is  not  sufficient  to  give  this  court  jurisdiction,  because  while  they  thus  asserted 
the  existence  of  a  federal  question,  yet  it  is  well  settled  that  the  mere  averment 
of  such  a  question  is  not  sufficient. '^^ 

That,  in  a  foreclosure  suit,  to  appoint  a  receiver  is  to  deprive  the  de- 
fendant of  its  property  within  the  meaning  of  the  constitution  of  the  United 
States,  is  a  novel  proposition,  and  does  not,  in  our  view,  raise  a  real,  as  distin- 
guished from  a  fictitious,  federal  question.^" 

Limitation  of  General  Rules. — But  in  determining  the  existence  of  a  fed- 
eral question,  it  is  only  necessary  to  show  that  it  is  set  up  in  good  faith  and  is  not 
wholly  destitute  of  merit. ^^  The  doctrine,  that  when,  on  writ  of  error  from  the 
supreme  court  of  the  United  States  to  a  state  court,  the  federal  question  asserted 
to  be  contained  in  the  record  is  manifestly  lacking  all  color  of  merit,  the  writ 
of  error  should  be  dismissed,  "relates  to  questions  arising  on  writs  of  error 
from  state  courts  where,  aside  from  the  federal  status  of  the  parties  to  the  ac- 
tion or  the  inherent  nature  of  the  federal  right  which  is  sought  to  be  vindicated. 


83.  Hamblin  v.  Western  Land  Co.,  14? 
U.  S.  531,  37  L.  Ed.  267;  Clarke  v.  Mc 
Dade.   165   U.   S.   168,   172,   41    L.   Ed.   673. 

84.  Wilson  v.  North  Carolina,  169  U. 
S.  586,  42  L.  Ed.  865,  citing  New  Oi- 
lcans V.  New  Orleans  Water  Works  Co., 
142  U.  S.  79,  35  L.  Ed.  943,  reaffirmed  in 
Gates  V.  Commissioners,  183  U.  S.  693. 
4€  L.  Ed.  393;  Hamblin  v.  Western  Land 
Co.,  147  U.  S.  531,  37  L.  Ed.  267;  St.  Jos- 
eph, etc.,  R.  Co.  V.  Steele,  167  U.  S.  659. 
42  L.  Ed.  315;  New  Orleans,  etc.,  v.  Lou- 
isiana Sugar  Refin.  Co.,  125  U.  S.  18.  39, 
81  L.  Ed.  607;  Sawyer  v.  Piper,  189  U.  S. 
154,  157,  47  L.  Ed.  757. 

Said  Chief  Justice  Chase  in  Millingar 
V.  Hartupee,  6  Wall.  258,  261,  18  L.  Ed. 
829,  speaking  of  the  validity  of  an  au- 
thority exercised  under  the  United  States: 
"Something  more  than  a  bare  assertion 
of  such  authority  seems  essential  to  the 
jurisdiction  of  this  court.  The  authority 
intended  by  the  act  is  one  having  a  real 
existence,  derived  from  competent  gov- 
ernmental power.  If  a  different  construc- 
tion had  been  intended,  congress  would 
doabtless  have  used  fitting  words.  The 
act  would  have  given  jurisdiction  in  cases 
©f  decisions  against  claims  of  authority 
ander  the  United  States.  *  *  *  If  a  right 
were  claimed  under  a  treaty  or  statute, 
and  on  looking  into  the  record  it  should 
appear  that  no  such  treaty  or  statute  ex- 
isted or  was  in  force,  it  would  hardly  be 
insisted  that  this  court  could  review  the 
decision    of    a    state    court    that    the    right 


claimed  did  not  exist."  Illinois  Central 
R.  Co.  V.  Chicago,  176  U.  S.  646,  656.  44  L. 
Ed.  622. 

A  bare  averment  in  an  answer  of  sup- 
posed infringements  in  the  proceedings 
of  rights  possessed  by  the  respondents 
under  the  Constitution  of  the  United 
States  will  not  alone  suffice.  St.  Louis,  etc.,. 
R.  Co.  V.  Merriam,  156  U.  S.  478,  483,  39 
L.  Ed.  502. 

In  New  Orleans  v.  New  Orleans  Water 
Works  Co.,  142  U.  S.  79.  35  L.  Ed.  946. 
it  was  said  that  "the  bare  averment  of  a 
federal  question  is  not  in  all  cases  suffi- 
cient. It  must  not  be  wholly  without 
foundation.  There  must  be  at  least  color 
of  ground  for  such  averment;  otherwise, 
a  federal  question  might  be  set  up  in  al- 
most any  case  and  the  jurisdiction  of  this- 
court  invoked  simply  for  the  purpose  of 
delay."  Hamblin  v.  Western  Land  Co., 
147  U.  S.  531,  532,  37  L.  Ed.  267;  Illinois^ 
Central  R.  Co.  v.  Chicago,  176  U.  S.  .646, 
656.  44  L.   Ed.  622. 

85.  American  R.  Co.  v.  Castro,  204  U. 
S.  453,  455,  51  L.  Ed.  564,  citing  New 
Orleans  Waterworks  Co.  v.  Louisiana, 
185  U.  S.  336,  46  L.  Ed.  936;  Newburyp^rt 
Water  Co.  v.  Newburyport,  193  U.  S.  561. 
48   L.   Ed.   795. 

86.  Sawyer  v.  Piper,  189  U.  S.  154,  4T 
L.   Ed.   757. 

87.  St.  Louis,  etc..  R.  Co.  v.  Merriam, 
156  U.   S.  478,  484,   39   L.   Ed.   502. 

88.  Illinois  Central  R.  Co.  v.  Chicago, 
176  U.  S.   646,  656,  44  L.  Ed.  622. 


APPEAL  AND  ERROR.  597 


jurisdiction  is  to  be  determined  by  ascertaining  wliether  the  record  raises  a  bona 
tide  federal  question.  In  that  class  of  cases  not  only  this  court  may,  but  it  is 
Its  duty  to,  determine  whether  in  truth  and  in  fact  a  real  federal  question  arises 
on  the  record.  But  the  doctrine  referred  to  has  no  application  to  a  case  brought 
in  a  federal  court  where  the  very  subject  matter  of  the  controversy  is  federal, 
However  much  wanting  in  merit  may  be  the  averments  which  it  is  claimed  es- 
tablish the  violation  of  the   federal  right. ^^ 

(5)  Necessity  of  Shozuing  Error  in  Judgment  of  State  Court. — It  need  not 
appear  that  tiie  state  court  erred  in  its  judgment.  It  is  sufficient  to  confer  juris- 
diction that  the  qiaestion  was  in  the  case,  was  decided  adversely  to  the  plaintiff  in 
error,  and  that  the  court  was  induced  by  it  to  make  the  judgment  which  it  did.»^ 

(6)  Effect  of  Failure  to  Comply  zinth  State  Practice. — Where  a  state  court 
has,  in  fact,  decided  a  federal  question  adversely  to  the  plaintiff,  error  will  lie." 
notwithstanding  the  state  court  may  have  violated  its  own  rules  of  practice  in 
making  such  decision.  As  where  there  was  no  special  assignment  of  error  in 
the  state  court,  as  required  by  the  law  and  the  practice  of  that  court.^^ 

(7)  Where  Decree  Is  Silent  as  to  Grounds  of  Decisi-on. — When  the  decree 
of  a  state  court  sought  to  be  reversed  is  silent  as  to  the  ground  upon  which  it 
was  rendered,  jurisdiction  under  the  25th  section  of  the  judiciary  act  is  maintain- 
able if  the  case  shows  that  federal  questions  were  involved,  though  it  also 
appears  that  there  were  other  defenses  not  re-examinable  in  this  court  if  these 
defenses  afford  no  legal  answer  to  the  suit.  This  court  will  not  presume  that 
the  court  below  decided  these  defenses  erroneously,  in  order  to  defeat  their  own 
jurisdiction. ^2 

(8)  Error  to  Supreme  Court  of  Louisiana. — In  order  to  give  this  court  juris- 
diction under  the  twenty-fifth  section,  it  must  appear  on  the  record  itself  to  be 
one  of  the  cases  enumerated  -in  that  section,  and  nothing  out  of  the  record  cer- 
tified to  the  court  can  be  taken  into  consideration  ;  and  when  the  proceeding  is 
according  to  the  law  of  Louisiana,  tlie  case  within  the  section  must  appear  by 
the  statement  of  facts  and  derisions,  as  ii'^unllv  made  in  si'^h  c^'^cs  hv  the  ronrt.^^ 

(9)  Judicial  Notice. — In  General. — Jurisdiction  may  be  maintained  where  a 
definite  issue  as  to  the  possession  of  the  right  is  distnictly  dtducible  from  the 
record  and  necessarily  disposed  of,  but  this  cannot  be  made  out  by  resort  to  ju- 
dicial knowledge.^* 

This  court  cannot  judicially  know  that  a  federal  question  is  relied  on 
in  a  court  below  in  a  writ  of  error  to  a  state  court. ^^ 

89.  Swafford  v.  Templeton,  185  U.  S.  cation  nor  rejoinder  shall  be  allowed,"  a 
487,  493,  494.  46  L.  Ed.  1005,  reaffirmed  in  question  was  held  to  appear  sufficiently 
Stuart  V.  Hauser,  203  U.  S.  585,  51  L.  Ed.  on  the  face  of  the  record  when  the  peti- 
328.  tion    for   review   in   the   supreme    court   of 

90.  Furman  v.  Nichol,  8  Wall.  44,  19  the  state  set  forth  that  the  question  was 
L.  Ed.  370;  Daniels  v.  Tearney,  102  U.  S.  raised  in  the  court  below  and  decided 
415.  26  L.  Ed.  187.  against,   and   when   the  supreme   court   on 

91.  Darrington  v.  Bank  of  Alabama,  13  the  question  being  thus  before  it,  decided 
How.   12,   14.  L.  Ed.   30.  the    case    in    the    same    way.      Stewart    v. 

92.  McGuire   v.    Tyler,    8    Wall.    650,    19  Kahn,   11   Wall.   493.  20  L.   Ed.   176. 

L.   Ed.    320.  94.     Powell    v.    Brunswick    County.    150 

93.  Armstrong  v.  The  Treasurer.  16  U.  S.  433,  37  L.  Ed.  1134;  Mountain  View, 
Pet.  281,285.  10  L.  Ed.  965;  Walker  z'.  Villa-  etc..  Co.  v.  McFadden,  180  U.  S.  533.  45 
vaso,  6  Wall.  124.  128,  18  L.  Ed.  853;  L.  Ed.  656;  Arkansas  v.  Kansas,  etc..  Coal 
Grand  Gulf,  etc.,  R.  Co.  v.  Marshall,  12  Co.,  183  U.  S.  185,  46  L.  Ed.  144;  Mutual 
How.  165,  13  L.  Ed.  938.  Life   Ins.   Co.   v.    McGrew.    188    U.   S.   291, 

In    writs    of   error   under   the    25th    sec-  309,   47    L.   Ed.   480,    reaffirmed   in    Herold 

tion    of   the   judiciary   act    of    1789,    which  v.    Frank,    191    U.    S.    558,   48    L.    Ed.    302; 

gives  juri.=diction    to   this   court   to  review  Hughes  v.  Kepley,  191  U.  S.  557,  48  L.  Ed. 

no  error  but  such   as  appears  on   the  face  301;   Wakefield   v.   Tassell.    192   U.    S.   601, 

©f    the     record,     etc. — where    the     writ     is  48     L.     Ed.    583;    Bank    of    Commerce    v. 

to    the    supreme    court    of    Louisiana,    the  Wiltsie.   189  U.   S.  505,  47   L.   Ed.  921. 

Code   of    which    state    enacts    that — "when  95.     Fisher   v.    Cockerell.    5    Pet.    248,    8 

the    defendant    alleges    on    his    part    new  L.   'BA.   114. 

facts,  these  shall  be  considered  as  denied  Wh«i  the  question  is  whether  this 
by    the    plair>tiff;    therefore    neither    repB- 


598 


APPEAL  AND  ERROR. 


Laws  and  Statutes. — The  courts  of  the  United  States,  when  exercising 
their  original  jurisdiction,  take  notice,  without  proof,  of  the  laws  of  the  several 
states. ^^  But  in  the  supreme  court  of  the  United  States,  when  acting  under  its 
appellate  jurisdiction,  whatever  was  matter  of  fact  in  the  state  court  whose  judg- 
ment or  decree  is  under  review  is  matter  of  fact  there.  And  whenever  a  court 
of  one  state  is  required  to  ascertain  what  effect  a  public  act  of  another  state 
has  in  that  state,  the  law  of  such  other  state  must  be  proved  as  a  fact.^'^  This 
court,  upon  writ  of  error  to  the  highest  court  of  a  state,  does  not  take  judicial 
notice  of  the  law  of  another  state,  not  proved  in  that  court  and  made  part  of  the 
record  sent  up,  unless  by  the  local  law  that  court  takes  judicial  notice  of  it.^* 

Decisions  of  State  Courts. — This  court  does  not  take  judicial  notice  of  the  de- 
cisions of  the  courts  of  one  state  in  a  case  coming  to  us  from  the  courts  of  an- 
other.^^  Although  this  court  does  not  take  judicial  notice  of  the  decision  of  the 
courts  of  one  state  in  a  case  coming  to  us  from  the  courts  of  ajiotber,  it  may 
properly  refer  to  the  opinion  of  a  case  therefrom  as  to  the  construction  of  the 
laws  of  that  state  involving  a  statute  before  this  court  for  construction ;  this 
rule  is  equally  applicable  to  a  decision  rendered  subsequently  to  the  rendition  of 
the   judgment   appealed    from.^ 


court  has  jurisdiction  under  the  twenty- 
fifth  section  of  the  judiciary  act,  nothing 
out  of  the  record  certified  to  the  court 
can  be  taken  into  consideration.  Accord- 
ingly, when  it  was  sought  by  counsel  to 
bring  before  it  as  matter  of  which  it 
would  take  judicial  cognizance,  the  fact 
that  a  judgment  in  a  primary  state  court 
of  the  south — affirmed  in  the  highest  state 
court  after  the  restoration  of  the  federal 
authority — was  rendered  after  the  state 
was  in  proclaimed  rebellion,  and  by  judges 
who  had  sworn  allegiance  to  the  rebel 
confederacy,  the  record  not  disclosing  the 
fact  that  the  want  of  authority  under  the 
federal  constitution  of  such  primary  court 
was  in  such  court  drawn  in  question  and 
decided  against — this  court  dismissed  the 
writ.  Walker  v.  Villavaso,  6  Wall.  124, 
18  L.  Ed.  853. 

96.  Lloyd  v.  Matthews,  155  U.  S.  222, 
227.   38   L.   Ed.    128. 

97.  Chicago,  etc.,  R.  Co.  v.  Wiggins 
Ferry  Co.,  119  U.  S.  615,  30  L.  Ed.  519; 
Hanley  v.  Donoghue,  116  U.  S.  1,  29  L. 
Ed.  535;  Lloyd  v.  Matthews,  155  U.  S. 
222,  227,  38  L.  Ed.  128;  Allen  v.  Alle- 
ghany Co.,  196  U.  S.  458,  464,  49  L.  Ed. 
551. 

The  decision  in  Lamar  v.  Micou,  112 
U.  S.  452,  28  L.  Ed.  751,  and  S.  C,  114  U.  S. 
218,  29  L.  Ed.  94,  did  not  in  the  least 
qualify  this  rule,  but  only  applied  the 
settled  doctrine  that  the  circuit  courts 
of  the  United  States,  and  this  court,  on 
appeal  from  their  decisions,  take  judicial 
notice  of  the  laws  of  the  several  states  of 
the  Union  as  domestic  laws;  and  it  has 
since  been  adjudged,  in  accordance  with 
the  general  rule  as  to  foreign  law,  that 
this  court,  upon  writ  of  error  to  the 
highest  court  of  a  state,  does  not  take 
judicial  notice  of  the  law  of  another 
state,  not  proved  in  that  court  and  made 
part  of  the  record  sent  up.  unless  by  the 
local  law  that   court  takes  judicial  notice 


of  it.  Hanley  v.  Donoghue,  116  U.  S. 
1,  29  L.  Ed.  535;  Renaud  v.  Abbott,  116 
U.  S.  277,  285,  29  L.  Ed.  629;  Liverpool, 
etc.,  Steam  Co.  v.  Phenix  Ins.  Co.,  129 
U.    S.    397,    445,    32    L.    Ed.    788. 

On  a  writ  of  error  to  the  highest  court 
of  a  state,  in  which  the  revisory  power  of 
this  court  is  limited  to  determining 
whether  a  question  of  law  depending 
upon  the  constitution,  laws  or  treaties 
of  the  United  States  has  been  erroneously 
decided  by  the  state  court  upon  the  facts 
before  it — while  the  law  of  that  state, 
being  known  to  its  courts  as  law,  is  of 
course  within  the  judicial  notice  of  this 
court  at  the  hearing  on  error — yet,  as  in 
the  state  court  the  laws  of  another  state 
are  but  facts,  requiring  to  be  proved  in 
order  to  be  considered,  thi^  court  does 
not  take  judicial  notice  of  them,  unless 
made  part  of  the  record  sent  up,  as  in 
Green  v.  Van  Buskirk,  7  Wall.  139,  19  L. 
Ed.  109.  Hanley  v.  Donoghue,  116  U.  S. 
1,  6,  29   L.   Ed.   535. 

98.  Hanley  z'.  Donoghue,  116  U.  S.  1, 
29   L.   Ed.   535;    Renaud  v.   Abbott,  116   U. 

5.  277,   285,   29    L.    Ed.    629. 

99.  Hanley  v.    Donoghue,    116   U.   S.    1, 

6,  29  L.  Ed.  535;  Chicago,  etc.,  R.  Co. 
V.  Wiggins  Ferry  Co.,  119  U.  S.  615,  30 
L.  Ed.  519;  Lloyd  v.  Matthews,  155  U.  S. 
222,  227.  38  L.  Ed.  128;  Eastern  Building, 
etc..  Association  v.  Williamson,  189  U.  S. 
122,   128,   47   L.   Ed.   735. 

1.  Eastern  Building,  etc..  Association  v. 
Williamson.   189  U.   S.   122,  47   L.   Ed.  735. 

The  court  in  Eastern  Building,  etc., 
Association  z'.  Williamson,  189  U.  S.  122, 
47  L.  Ed.  735,  in  speaking  of  the  construc- 
tion given  by  the  court  of  appeals  of 
New  York  to  the  building  and  loan  law  of 
New  York,  said:  "But,  nevertheless,  we 
may  properly  refer  to  the  opinion  as  a 
construction  of  the  law,  and  the  views 
therein  expressed  not  only  commend 
themselves    to   our   judgment   as   intrinsic- 


APPEAL  AXD  ERROR. 


599 


(10)  Time  and  Maimer  of  Shozeing  Existence  of  federal  Question — aa.  In 
General. — In  order  to  give  this  court  jurisdiction  under  the  25th  section  of  the 
judiciary  act  of  1789,  which  authorizes  the  removal  of  a  case  by  writ  of  error 
or  appeal  from  the  highest  court  of  a  state  to  the  supreme  court  of  the  United 
States,  in  certain  cases,  it  must  appear  on  the  record  itself  to  be  one  of  the  cases 
enumerated  in  that  section,  and  nothing  out  of  the  record  certified  to  this  court 
can  be  taken  into  consideration.  This  must  be  shown:  First,  either  by  express 
averment,  or  by  necessary  intendment  in  the  pleadings  in  the  case;  or,  second, 
by  the  directions  given  by  the  court,  and  stated  in  the  exceptions ;  or,  third,  when 
the  proceedings  are  according  to  the  law  of  Louisiana,  by  the  statement  of  facts, 
and  of  the  decision,  as  is  usually  made  in  such  cases  by  the  court ;  or,  fourth,  it 
must  be  entered  on  the  record  of  the  proceedings  in  the  appellate  court  in  cases 
where  the  record  shows  that  such  a  point  may  have  arisen  and  been  decided  that  it 
was  in  fact  raised  and  decided  ;  and  this  entry  must  appear  to  have  been  made  by 
order  of  the  court,  or  by  the  presiding  judge  by  order  of  the  court,  and  certrfied 
by  the  clerk  as  part  of  the  record  in  the  state  court;  or,  fifth,  in  proceedings  i» 
equity,  it  may  be  stated  in  the  body  of  the  final  decree  of  the  state  court,  from 
which  the  appeal  is  taken  to  this  court ;  or,  sixth,  it  must  appear  from  the  record 
that  the  question  was  necessarily  involved  in  the  decision,  and  that  the  state 
court  could  not  have  given  the  judgment  or  decree  which  they  passed,  without 
deciding  it.^     The  proper  way  for  setting  up  or  claiming  the  right,  title,  priv- 


ally  sound,  but  also  as  to  the  means  of  the 
law  of  New  York  entertained  by  the 
justices  of  the  highest  courts,  have  a 
peculiar    and    persuasive   appropriateness." 

2.  Armstrong  z'.  The  Treasurer,  16  Pet. 
281,  10  L.  Ed.  965;  Smith  v.  Hunter.  7 
How.  738,  743,  12  L.  Ed.  8^4,  896;  Neilson 
V.  Lagow,  12  How.  98,  13  L.  Ed.  909; 
Susquehanna  Boom  Co.  v.  West  Branch 
Boom  Co.,  110  U.  S.  57,  28  L.  Ed.  69. 

Where  the  record  fails  to  show  that 
a  federal  question  was  raised,  it  may  be 
ascertained  either  from  the  pleadings,  or 
by  bill  of  exceptions,  or  by  a  certificate 
of  the  court.  Medberry  z'.  Ohio,  24  How. 
413,   16   L.   Ed.   739. 

To  determine  whether  the  validity  of  a 
statute  of  a  state  was  drawn  in  question, 
it  is  proper  to  inspect  the  pleadings  in  the 
cause,  as  well  as  the  judgment  of  the 
court.  Craig  v.  Missouri.  4  Pet.  410,  7  L. 
Ed.    903. 

The  action  was  assumpsit  on  a 
promissory  note,  and  the  record  stated 
"that  neither  party  having  required  a 
jury,  the  cause  was  submitted  to  the 
court,  and  the  court  having  seen  and 
heard  the  evidence,  the  court  found  that 
the  defendants  did  assume  as  the  plain- 
tiflf  had  declared,  that  the  consideration 
for  the  note  and  the  assumpsit  was  for 
loan  office  certificates  loaned  by  the  state 
of  Missouri  at  her  loan  office  in  Chariton, 
which  certificates  were  issued  under  "an 
act  for  establishing  loan  offices,  etc." 
Held,  that  it  could  not  be  doubted  that 
the  declaration  is  on  a  note  given  in 
pursuance  of  the  act  of  Missouri:  and 
that,  under  the  plea  of  non  assumpsit,  the 
defendants  were  at  liberty  to  question 
the  validity  of  the  consideration  which 
was  the  foundation  of  the  contract,  and 
the   constitutionality  of  the   law   in   which 


it  originated.  The  record  thus  exhibit- 
ing the  case  gives  jurisdiction  to  this 
court  over  the  case  on  a  writ  of  error 
prosecuted  by  the  defendants  to  this 
court  from  the  supreme  court  of  Missouri, 
under  the  provisions  of  the  twenty-fifth 
section  of  the  judiciary  act  of  1739.  Craig 
V.  Missouri,  4  Pet.  410,  7  L.  Ed.  903,  re- 
affirmed in  Byrne  v.  Missouri,  8  Pet.  40, 
8  L.  Ed.  859. 

Where  a  writ  of  error  is  sued  out  to 
review  the  judgment  of  a  state  court,  on 
the  ground  that  an  order  of  the 
circuit  court  of  the  United  States 
appointing  receivers  of  a  corporation 
organized  under  the  laws  of  the 
state,  deprived  the  state  court  of  its 
jurisdiction,  it  was  held,  that  copies  of 
the  orders  made  by  the  circuit  court  of 
the  state  after  the  entry  of  the  final  judg- 
ment to  which  the  writ  of  error  is  sued 
out,  which  orders  were  annexed  to  the 
petition  for  a  writ  of  error,  are  produced 
in  the  case  too  late  to  constitute  any 
ground  for  importing  a  federal  question 
into  the  cause.  Calhoun  v.  Lanaux,  127 
U.   S.  634,  32   L.   Ed.  297. 

Denial  of  due  process  of  law. — Where 
it  is  contended  that  the  result  of  the  rul- 
ings and  decision  of  the  state  court  was 
to  hold  the  plaintiflf  in  error  conclusively 
bound  by  a  judgment  rendered  against 
him  in  an  action  "in  which  he  was  not  a 
party  and  to  which  he  had  no  notice," 
and  that  this  was  in  effect  to  deprive  him 
of  his  property  without  due  process  of 
law  or  to  deny  him  the  equal  protection 
of  the  law,  and  amounted  to  a  decision 
adverse  to  the  right,  privilege  or  immu- 
nity of  the  plaintiff  in  error  under  the 
constitution,  it  being  protected  in  such 
deprivation  or  denial,  but  it  nowhere  af- 
firmatively   appears    in    the    record    that 


600 


APPEAL  AND  ERROR. 


ilege  or  immunity  relied  on  is  by  pleading,  motion,  exception,  or  other  action, 
part,  or  being  made  part,  of  the  record,  showing  that  the  claim  was  presented  to 
the  court. 3  Where  neither  in  the  pleadings  nor  in  the  proceedings  during  the 
trial,  nor  in  the  specifications  of  error  below,  was  any  federal  cjuestion  specific- 
ally raised,  nor  was  any  right,  title,  privilege,  or  immunity  of  a  federal  nature 
set  up  or  claimed,  the  writ  of  error  will  be  dismissed.* 

Mr.  Justice  Harlan  States  the  rule  as  follows:  It  is  essential  to  our 
jurisdiction  in  re-examining  the  judgment  of  the  state  court  that  the  alleged  con- 
flict between  the  state  law  and  the  constitution  of  the  United  States  appear  in  the 
pleadings  of  the  suit,  or  from  the  evidence  in  the  course  of  the  trial,  in  the  in- 
structions asked  for,  or  from  exceptions  taken  to  the  rulings  of  the  court,  or  it 
must  be  that  such  a  question  was  necessarily  involved  in  the  decision,  and  that 
the  state  court  would  not  have  given  a  judgment  without  deciding  it.^ 

Must  Appear  in  Plaintiff's  Own  Statement. — The  result  of  all  the  author- 
ities is  that  the  federal  character  of  the  suit  must  appear  in  the  plaintifif's  own 
statement  of  his  claim,  and  where  a  defense  has  been  interposed,  the  reply  to 
which  brings  out  matters  of  a  federal  nature,  those  matters  thus  brought  out  by 


s«eh  a  right  was  set  up  or  claimed  in  the 
trial  court  when  the  demurrer  of  the  com- 
plainant was  overruled  or  evidence  ad- 
mitted or  exclu<led,  or  instructions  given 
or  refused,  or  in  the  supreme  court  in 
fisposing  of  the  rulings  below,  the  writ 
of  error  will  be  dismissed.  Sayward  v. 
Denny,  158  U.  S.  180,  39  L.  Ed.  941.  re- 
affirmed in  Texas,  etc.,  R.  Co.  v.  Gay.  167 
tJ.    S.   745,   42   L.    Ed.   1209. 

B.y  bill  cf  exceptions. — Where  the 
gFO«-nds  of  the  decision  of  the  supreme 
co«rt  of  the  state  are  not  stated  in  the 
record,  this  court  will  look  into  the  bill 
©f  exceptions  taken  in  the  court  of  orig- 
fnal  jtirisdiction,  to  see  what  points  were 
carried  up  to  the  supreme  court,  and 
whether  they  were  necessarily  involved 
in  the  judgment  of  the  supreme  court. 
Neilson  v.  Lagow,  12  How.  98,  13  L.  Ed. 
909. 

In  a  writ  of  error  to  a  state  court  under 
the  25th  section  of  the  judiciary  act.  al- 
though it  does  not  appear  from  the  re- 
port cf  the  case  in  the  state  reports,  that 
the  point  taken  before  this  court  was 
raised  or  passed  upon  by  the  supreme 
court  of  that  state,  yet  if  found  in  the 
record,  and  arising  out  of  the  transac- 
tions at  the  trial,  as  exhibited  in  the  bill 
of  exceptions,  it  is  the  duty  of  this  court 
to  examine  it.  Klinger  v.  Missouri,  13 
Wall.  257,  20  L.  Ed.  635. 

Impairraertt  of  ©bligation  of  contract. — 
A  motion  to  dismiss  a  writ  of  error  on  the 
ground  that  the  federal  question  was  not 
set  or  claimed  in  a  state  court  at  the 
proper  time  and  in  the  proper  way  can- 
not be  allowed,  where  the  record  shows 
that  the  plaintiff  in  error,  in  his  answer 
to  a  writ  of  mandamus  issued  out  of  the 
district  court,  claimed  that  by  reason  of 
certain  provisions  of  its  charter,  a  con- 
tract was  created  between  the  plaintiff 
in  error  and  the  defendant  in  error,  the 
obligation  of  which  was  impaired  by  a 
statute  of  ttre  state,  contrary  to  the  pro- 
visions of  tbe   constitution  of  the  United 


States,  but  the  district  court  held  that  the 
laws  and  ordinances  so  pleaded  did  not 
create  a  contract  between  the  defendant 
in  error  on  the  one  side  and  the  plain- 
tiff in  error  on  the  other.  Chicago,  etc.. 
R.  Co.  V.  Nebraska,  170  U.  S.  57,  42  L. 
Ed.  948. 

3.  Loeb  V.  Columbia  Township  Trus- 
tees. 179  U.  S.  472,  481,  45  L.  Ed.  280; 
Mutual  Life  Ins.  Co.  v.  McGrew,  188  U. 
S.  291,  308,  47  L.  Ed.  480,  reaffirmed  in 
Herold  v.  Frank,  191  U.  S.  558,  48  L.  Ed. 
302;  Hughes  v.  Kepley.  191  U.  S.  557. 
48  L.  Ed.  301;  Wakefield  v.  Tassell,  192 
U.  S.  601,  48  L.  Ed.  583;  Bank  of  Com- 
merce V.  Wiltsie,  189  U.  €.  505,  47  L. 
Ed.  921. 

4.  Gillis  V.  Stinchfield,  159  U.  S.  658, 
659,  40  L.  Ed.  295;  Jersey  City,  etc..  R. 
Co.  7'.  Morgan,  160  U.  S.  288,  292,  40  L. 
Ed.   430. 

Where  it  does  not  appear,  either  by 
express  averment  or  by  a  necessary  in- 
tendinent  from  any  matter  stated  in  the 
case,  nor  does  any  entry  on  the  record 
of  the  cause  in  the  supreme  court  of  the 
state  show,  that  any  of  the  questions  of 
which  this  court  is  entitled  to  take  cog- 
nizance, under  the  terms  of  the  25th  sec- 
tion of  the  judiciary  act,  arose  in  the 
cause,  and  were  actually  decided  by  that 
court,  the  writ  of  error  must  be  dis- 
missed. Christ  Church  v.  Philadelphia 
County,  20  How.  264.  15  L.  Ed.  803, 
citing  Armstrong  z'.  The  Treasurer.  16 
Pet.  281,  10  L.  Ed.  965;  Smith  v.  Hunter, 
7   How.   738.   12   L.    Ed.   894. 

5.  Home  for  Incurables  v.  New  York 
Citv,  187  U.  S.  155,  157,  47  L.  Ed.  117,  re- 
affirmed in  St.  Louis  Expanded  Metal,  etc., 
Co.  V.  Standard  Fireproofiing  Co.,  195  U. 
S.  627.  49  L.  Ed.  351;  Stuart  v.  Hauser, 
203  U.  S.  585,  51  L.  Ed.  328,  citing  Parm- 
eiee  v.  Lawrence,  11  Wall.  36,  38.  20  L. 
Ed.  48;  Lawler  v.  Walker,  14  How.  149, 
152.  14  L.  Ed.  364:  T?ailroad  v.  Rock, 
4  Wall.  177,  18  L.   Ed.  381. 


APPEAL  AXD  ERROR. 


601 


the  plaintiff  do  not  form  a  part  cf  his  cause  of  action,  but  are  merely  a  reply  to 
the  defense  set  up  by  the  defendant.^ 

An  assignment  of  error  alleged  to  have  been  made  by  the  state  court,  is  un- 
availalde  for  the  purpose  of  showing  that  any  federal  question  was  decided, 
where  the  record  does  not  show  that  any  such  question  was  passed  upon  by  the 
-tate  court." 

bb.  Must  Be  ''Specially  Set  Up  or  Claimed" — aaa.  In  General. — By  the  sec- 
ond section  of  the  act  of  February  5,  1867.  14  Stat.  385,  386,  c.  28,  the  original 
twenty-fiiih  section  was  re-enacted  with  certain  changes,  and,  among  others,  the 
words  of  the  third  clause  were  made  to  read :  "Or  where  any  title,  right,  priv- 
ilege, or  immunity  is  claimed  under  the  constitution,  or  any  treaty  or  statute  of 
ir  commission  held,  or  authority  exercised  under  the  United  States,  and  the  de- 
cision is  agaiflst  the  title,  right,  privilege,  or  immunity  specially  set  up  or  claimed 
by  either  party  under  such  constitution,  treaty,  statute,  commission,  or  authority." 
And  this  was  reproduced  in  §  709  of  the  Revised  Statutes.  The  change  from  the 
drawing  in  question  of  the  construction  of  a  clause  of  the  constitution,  or  of  a 
treaty,  statute,  or  commission,  to  the  claim  of  a  right  under  the  constitution, 
treaty,  statute,  commission,  or  authority,  emphasized  the  necessity  that  the  right 
must  be  specially  set  up,  and  denied.^  The  rule  has  ever  since  been  well  settled  that 
this  court  has  no  authority  to  review  the  final  judgment  of  the  highest  court  of 
a  state  in  which  a  decision  of  the  case  could  be  had,  and  to  determine  whether 
that  judgment  is  in  derogation  of  a  title,  right,  privilege  or  immunity  protected  by 
the  constitution  of  the  United  States,  unless  the  party,  against  whom  such  judg- 
ment was  rendered,  "specially  set  up  or  claimed"  such  right  under  that  instru- 
ment.^ In  other  words,  the  court  miist  be  able  to  see  clearly  from  the  whole  rec- 
ord that  a  provision  of  the  constitution  or  act  of  congress  is  relied  upon  by  the 


6.  Houston,  etc..  R.  Co.  v.  Texas,  177 
U.   S.   6S,   78,   44   L.    Ed.    673. 

Although  the  federal  character  of  the 
case  must  appear  in  the  plaintiflF's  own 
statement  of  his  claim,  and  although 
where  a  defense  has  been  interposed,  the 
reply  to  which  brings  out  matters  of  a 
federal  nature,  these  matters  thus  brought 
out  by  the  plaintiff  do  not  form  a  part 
of  his  cause  of  action,  but  merely  a  re- 
ply to  the  defense  set  up  by  the  defend- 
ant; the  review  of  the  federal  question  by 
the  supreme  court  of  the  United  States 
IS  not  thereby  precluded,  for  it  having 
been  properly  raised  in  the  state  court 
and  decided  against  the  contention  of  the 
party  setting  it  up,  the  supreme  court 
of  the  United  States  may  review  it  on 
error  to  the  highest  court  of  the  state. 
Houston,  etc..  R.  Co.  v.  Texas,  177  U.  S. 
66.  78.   44  L.   Ed.   673. 

7.  Fowler  r.  Lamson,  164  U.  S.  252,  41 
L.  Ed.  424,  citing  Missotiri  Pac.  R.  Co.  v. 
Fitzgerald,    160   U.    S.    556,   40    L.    Ed.    536. 

8.  Mutual  Life  Ins.  Co.  v.  McGrew.  188 
U.  S.  291,  313.  47  L.  Ed.  480.  reaffirmed 
in  Hubert'.  Jennings-Heywood  Oil  Syndi- 
cate. 201  U.  S.  641.  50  L.  Ed.  901:  Herold  v. 
Frank.  191  U.  S.  558.  48  L.  Ed.  302;  Hughes 
V.  Keplev.  191  U.  S.  557,  48  L.  Ed.  301; 
Wakefield  v.  Tassell.  192  U.  S.  601.  48  L- 
Ed.  583;  Bank  of  Commerce  v.  Wiltsie, 
189  U.  S.  505.  47  L.  Ed.  921. 

Section  709  of  the  Revised  Statutes 
provides,  that  a  final  judgment  in  any 
suit  in  the  highest  court  of  a  state,  in 
which    a    decision    in    the    suit    could    be 


had,  where  any  title,  right,  privilege, 
or  immunity  is  claimed  under  the  con- 
stitution, and  the  decision  is  against  the 
title,  right,  privilege,  or  immunity  "spe- 
cially set  up  or  claimed"  by  either  party, 
under  such  constitution,  may  be  re-ex- 
amined, and  reversed  or  afhrmed.  in  the 
supreme  court,  upon  a  writ  of  error. 
Baldwin  v.  Kansas,  129  U.  S.  52,  56,  33 
L.    Ed.    640. 

9.  Rev.  Stat..  §  709.  Chicago,  etc.,  R.  Co. 
V.  Chicago,  164  U.  S.  454.  457,  41  L.  Ed. 
511.  reaffirmed  in  Goodsell  v.  Delta,  etc., 
Land  Co.,  166  U.  S.  718.  41  L.  Ed.  1186; 
Telluride,  etc.,  Co.  v.  Rio  Grande,  etc., 
R.  Co.,  187  U.  S.  569.  .'^«0,  47  L.  Fd,  30^'; 
Onandaga  Nation  v.  Thacher,  189  U.  S. 
306.  311,  47  L.  Ed.  826;  Caro  V.  Daviu- 
son.  197  U.  S.  197,  49  L.  Ed.  723;  Scale 
V.  Georgia.  201  U.  S.  642,  50  L.  Ed.  903, 
Mutual  Life  Ins.  Co.  v.  McGrew,  138  U. 
S.  291.  47  L.  Ed.  480;  Powell  v.  Bruns- 
wick County,  150  U.  S.  433.  37  L.  Ed.  1134; 
Sayward  v.  Denny,  158  U.  S.  180,  39  L. 
Ed.  941;  Beals  v.  Cone.  188  U.  S  1S4. 
186.  47  L.  Ed.  435.  reaffirmed  in  Stuart 
V.  Hauser.  203  U.  S.  585,  51  L.  Ed.  328; 
Susquehanna  Boom  Co.  v.  West  Branch 
Boom  Co..  110  U.  S.  57,  28  L.  Ed.  69; 
Southern  R.  Co.  v.  Carson,  194  U.  S.  136.  43 
L.  Ed.  907;  Farmers',  etc..  Ins.  Co.  t^.  Dob- 
ney,  189  U.  S.  301,  47  L.  Ed.  821;  Johnson 
V.  New  York  Life  Ins.  Co.,  187  U.  S.  491, 
495,  47  L.  Ed.  273;  Kennard  v.  Nebraska, 
186  U.  S.  304,  307,  46  L.  Ed.  1175;  Her- 
old V.  Frank,  191  U.  S.  558,  48  L.  Ed. 
302;      Hughes   v.   Kepley,    191    U.    S.    557, 


602 


APPUAL  AND  ERROR. 


party  who  bring?  tlie  writ  of  error,  and  that  the  right  thus  claimed  by  him  was 

denied. ^'^^' 

Rule  in  Oxley  Stave  Co.  v.  Butler. — There  is  a  class  of  cases  wherein  it  has 
been  held  and  laid  down  as  settled  doctrine  that  "the  revisory  power  of  this  court 


48  L.  Ed.  301;  Wakefield  v.  Tassell.  192 
U.  S.  601,  48  L.  Ed.  583;  Bank  of  Com- 
merce V.  Wiltsie,  189  U.  S.  505,  47  L.  Ed. 
921;  California  Bank  v.  Thomas,  171  U. 
S.   441.   43   L.   Ed.   231. 

"It  is  well  settled  that  this  court,  on 
error  to  a  state  court,  cannot  consider  an 
alleged  federal  question,  when  it  appears 
that  the  federal  right  thus  relied  upon 
had  not  been  by  adequate  specification 
called  to  the  attention  of  the  state  court 
and  had  not  been  by  it  considered,  not 
being  necessarily  involved  in  the  deter- 
mination of  the  cause.  Green  Bay,  etc., 
Canal  Co.  v.  Patten  Paper  Co.,  172  U. 
S.  58,  67,  43  L.  Ed.  364;  Oxley  Stave  Co. 
V.  Butler  County,  166  U.  S.  648,  654,  655. 
41  L.  Ed.  1149;  Capital  City  Dairy  Co. 
V.  Ohio,  183  U.  S.  238,  248,  46  L.  Ed.  171." 
Harding  v.  Illinois,  196  U.  S.  78.  86,  49 
L  Ed.  394,  reaffirmed  in  Robinson  v. 
Wi^arate.  198  U.  S.  580,  49  L.  Ed.  1171; 
Chicago,  etc.,  R.  Co.  v.  Newell.  198  U. 
S.  579,  49  L.  Ed.  1171;  Scale  v.  Georgia, 
201    U.    S.    642,    50    L.    Ed.    902. 

Spies  V.  Illinois,  123  U.  S.  131,  31  L.  Ed. 
80. — To  give  us  jurisdiction  under  §  709 
of  the  Revised  Statutes,  because  of  the 
denial  by  a  state  court  of  any  title,  right, 
privilege  or  immunity  claimed  under  the 
constitution,  or  any  treaty  or  statute  of 
the  United  States,  it  must  appear  on  the 
record  that  such  title,  right,  privilege,  or 
immunity  was  "specially  set  up  or 
claimed"  at  the  proper  time  in  the  proper 
way.  To  be  reviewable  h.ere.  the  decision 
must  be  against  the  right  so  set  up  or 
claimed.  If  the  right  was  not  set  up  or 
claimed  in  the  proper  court  below,  the 
judgment  of  the  highest  court  of  the  state 
in  the  action  is  conclusive,  so  far  as  the 
right  of  review  here  is  concerned.  Spies 
V.  Illinois,  123  U.  S.  131,  181,  31  L.  Ed. 
80;  Chappell  v.  Bradshaw,  128  U.  S.  132, 
133,  32  L.  Ed.  369;  Brooks  V.  Missouri, 
124  U.   S.   394.   31   L.    Ed.  454. 

Where  the  record  fails  to  show,  either 
expressly  or  by  implication,  that  any 
"right,  title,  privilege,  or  imnumity.''  un- 
der the  constitution  or  laws  of  the  United 
States,  was  "specially  set  up  or  claimed," 
in  either  of  the  courts  below,  this  is  fa- 
tal to  our  jurisdiction.  Spies  v.  Illinois. 
123  U.  S.  131,  181,  31  L.  Ed.  80;  French 
V.   Hopkins,   124  U.   S.    524,   31   L.    Ed.    536. 

"In  Oxley  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  41  L.  Ed.  1149.  it  was  held, 
that  the  federal  question  must  be  spe- 
cially taken  or  claimed  in  the  state  court; 
that  the  party  must  have  the  intent  to 
invoke,  for  the  protection  of  his  rights, 
the  constitution  or  some  statute  or  treaty 
of  the  United  States,  and  that  such  in- 
tention  must  be   declared  in   some  unmis- 


takable manner,  and  unless  he  do  so,  this 
court  is  without  jurisdiction  to  re-exam- 
ine the  final  judgment  of  the  state  court 
upon  that  matter.  See.  also.  Levy  v.  San 
Francisco,  167  U.  S.  175,  42  L.  Ed.  126; 
Kipley  r.  Illinois,  170  U.  S.  182,  42  L- 
Ed.  998."  Dewey  v.  Des  Moines,  173  U. 
S.  193.  198,  43  L.  Ed.  665,  reaffirmed  in 
Indiana  Power  Co.  v.  Elkhart  Power  Co., 
187   U.   S.    636,  47   L.    Ed.  343. 

A  claim  made  in  objections  to  the  con- 
firming of  a  special  assessment,  but  not 
afterwards  brought  to  the  attention  of  the 
trial  court  or  of  the  highest  state  court- 
that  the  statute  under  which  the  assess- 
ment was  made  is  contrary  to  the  con- 
stitution of  the  United  States,  is  not  suffi- 
cient to  give  the  supreme  court  of  the 
United  States  jurisdiction  to  review  the 
ju.dgment  of  the  state  court,  where  it  does 
not  appear  from  the  record  that  the  deci- 
sion of  either  of  the  state  courts  was  in- 
voked upon  the  ground  of  the  right 
claimed  under  the  constitution  of  the 
United  States.  Hulbert  v.  Chicago,  202 
U.  S.  275,  50  L.  Ed.  1026.  citing  Oxley 
Stave  Co.  V.  Butler  County,  166  U.  S. 
648,  41  L.  Ed.  1149;  Capital  City  Dairy 
Co.  v.  Ohio,  183  U.  S.  238,  46  L.  Ed.  171; 
Chapin  v.  Fye.  179  U.  S.  127,  45  L.  Ed. 
119. 

10,  Bridge  Proprietors  v.  Hoboken,  etc., 
Co.,  1  Wall.  116.  143,  17  L.  Ed.  571; 
Dewey  v.  Des  Moines,  173  U.  S.  193.  198. 
4.'j  L.  Ed.  665.  reaffirmed  in  Indiana  Power 
Co.  V.  Elkhart  Power  Co.,  187  U.  S.  636, 
47   L.   Ed.   343. 

"We  held  at  the  present  term  in  Chicago, 
etc.,  R.  Co.  V.  Chicago.  164  U.  S.  454,  457, 
41  L.  Ed.  511.  as  had  frequently  before 
been  adjudged,  that  this  court  could  not 
review  the  final  judgment  of  the  high- 
est court  of  the  state,  alleged  to  have  de- 
nied a  right  protected  by  the  constitu- 
tion of  the  United  States,  unless  such 
right  was  specially  set  up  or  claimed  in 
the  state  court  by  the  party  against  whom 
the  judgment  was  rendered.  Rev.  Stat., 
§  709."  Pim  V.  St.  Louis.  165  U.  S.  273, 
41  L.  Ed.  714,  reaffirmed  in  Ross  v.  King, 
172  U.    S.   641,   43   L.   Ed.   1180. 

This  court  may  re-examine  the  final 
judgment  of  the  highest  court  of  a  state 
when  the  validity  of  a  treaty  or  statute 
of  or  an  authority  exercise'  under  the 
United  States  is  "drawn  in  t^  itinn"  and 
the  decision  is  against  its  validity,  or 
when  the  validity  of  a  statute  of  or  an 
authority  exercised  under  any  state  is 
"drawn  in  question"  on  the  ground  of 
repugnancy  to  the  constitution,  treaties 
or  laws  of  the  United  States,  and  the  de- 
cision is  in  favor  of  its  validity.  But  it 
cannot    review    such   final   judgment,   even 


APPEAL  AXD  ERROR. 


603 


does  not  extend  to  rights  denied  by  the  final  judgment  of  the  highest  court  of  a 
state,  unless  the  party  claiming  such  rights  plainly  and  distinctly  indicated,  before 
the  state  court  disposed  of  tl>e  case,  that  they  were  claimed  under  the  constitution, 
treaties  or  statutes  of  the  United  States;  that  if  a  party  intends  to  invoke  for  the 
protection  of  his  rights  the  constitution  of  the  United  States,  or  some  treaty, 
statute,  commission  or  authority  of  the  United  States,  he  must  so  declare;  and 
unless  he  does  so  declare  'specially,'  that  is,  unmistakably,  this  court  is  without 
authority  to  re-examine  the  final  judgment  of  the  state  court;  and  this  statutory 


if  it  denied  some  title,  right,  privilege  or 
immunity  of  the  unsuccessful  party,  un- 
less it  appear  from  the  record  that  such 
title,  right,  privilege  or  immunity  was 
"specially  set  up  or  claimed"  in  the  state 
court  as  belonging  to  such  party,  under 
the  constitution  or  some  treaty,  statute, 
commission  or  authority  of  the  United 
States.  Rev.  Stat.,  §  7©9;  Oxley  Stave 
Co.  V.  Butler  County,  166  U.  S.  648,  653, 
41  L.  Ed.  1149,  reaffirmed  in  Harkins  z'. 
AshviHe,  180  U.  S.  635.  45  L.  Ed.  709; 
Baldwin  z'.  County  Commissioners.  168  U. 
S.  705,  42  L.  Ed.  1213;  Tompkins  v. 
Cooper,  170  U.  S.  703,  42  L.  Ed.  1217; 
Mutual  Life  Ins.  Co.  v.  Kirchofif,  169  U. 
S.  103.  42  L.  Ed.  677;  Chappell  v.  Stew- 
art. 169  U.  S.  733,  42  L.  Ed.  1215;  Fen- 
wick  Hall  Co.  V.  Old  Saybrook.  169  U. 
S.  734,  42  L.  Ed.  1215;  Speed  v.  Mc- 
Carthy, 181   U.   S.   269.  45   L.    Ed.   855. 

Where  it  is  assigned  in  this  court  as 
error  that  the  judgment  of  a  state  court 
deprived  the  plaintiff  in  error  of  its  prop- 
erty without  due  process  of  law,  in  vio- 
lation of  the  fourteenth  amendment  of  the 
constitution  of  the  United  Stales,  but  the 
record  does  not  show  that  the  plaintiff 
in  error  specially  set  up  or  claimed  in  the 
state  court  such  title,  right,  privilege  or 
immunit}^  this  court  has  no  authority  to 
review  the  judgment  of  the  state  court. 
Chicago,  etc.,  R.  Co.  v.  Chicago,  164  U. 
S.  454,  41  L.  Ed.  511,  reaffirmed  in  Good- 
sell  V.  Delta,  etc..  Land  Co.,  166  U.  S. 
718,   41   L.    Ed.   1186. 

Mr.  Chief  Justice  Fuller  has  reviewed 
the  whole  questicHn  as  follows:  "To  jus- 
tify our  taking  jurisdiction,  the  federal 
question  must  be  specially  set  up  or 
claimed  in  the  state  court;  the  party  must 
have  the  intent  to  invoke  for  the  protec- 
tion of  his  rights  the  constitution  or  some 
statute  or  treaty  of  the  United  States,  and 
such  intention  must  be  declared  in  some 
unmistakable  manner.  Oxley  Stave  Co. 
V.  Butler  County,  166  U.  S.  648,  41  L.  Ed. 
1149.  'In  other  words,  the  court  must 
be  able  to  see  clearly  from  the  whole 
record  that  a  provision  of  the  constitu- 
tion or  act  of  congress  is  relied  upon  by 
the  party  who  brings  the  writ  of  error, 
and  that  the  right  thus  claimed  by  him 
was  denied.  *  *  *  Although  no  particular 
form  of  words  is  necessary  to  be  used  in 
order  that  the  federal  question  may  be 
said  to  be  involved,  within  the  meaning 
of  the  cases  on  this  subject,  there  yet 
rnust  be  something  in  the  case  before  the 


state  court  which  at  least  would  call  its 
attention  to  the  federal  question  as  one 
that  was  relied  on  by  the  party,  and  then, 
if  the  decision  of  the  court,  while  not 
noticing  the  question,  was  such  that  the 
judgment  was  by  its  necessary  effect  a 
denial  of  the  right  claimed  or  referred  to, 
it  would  be  sufficient.  It  must  appear 
from  the  record  that  the  right  set  up  or 
claimed  was  denied  by  the  judgment,  or 
that  such  was  its  necessary  effect  in  law. 
*  *  *  It  is  not  enough  that  there  may  be 
somewhere  hidden  in  the  record  a  ques- 
tion which,  if  raised,  would  be  of  a  fed- 
eral nature.  Hamilton  Co.  v.  Mas- 
sachusetts. 6  Wall.  632,  18  L.  Ed.  904.  In 
order  to  be  available  in  this  court  some 
claim  or  right  mast  have  been  asserted  in 
the  court  below  by  which  it  would  appear 
that  the  party  asserting  the  right  founded 
it  in  some  degree  upon  the  constitution 
or  laws  or  treaties  of  the  United  States. 
In  such  case,  if  the  court  below  denied  the 
right  claimed,  it  would  be  enough;  or  if 
it  did  not  in  terms  deny  such  right,  if  the 
necessary  effect  of  its  judgment  was  to 
deny  it,  then  it  would  be  enough.  But 
the  denial,  whether  expressed  or  implied, 
must  be  of  some  right  or  claim  founded 
upon  the  constitution  or  the  laws  or 
treaties  of  the  United  States  which  had 
in  some  manner  been  brought  to  the  at- 
tention of  the  court  below.  The  record 
shows  nothing  of  the  kind  in  this  case. 
A  claim  or  right  which  has  never  been 
made  or  asserted  cannot  be  said  to  have 
been  denied  by  a  judgment  which  does 
not  refer  to  it.  Hamilton  Co.  v. 
Massachusetts,  supra.  A  point  that  was 
never  raised  cannot  be  said  to  have  been 
decided  adversely  to  a  party,  who  never 
set  it  up  or  in  any  way  alluded  to  it.  Nor 
can  it  be  said  that  the  necessary  effect 
in  law  of  a  judgment,  which  is  silent  upon 
the  question,  is  the  denial  of  a  claim  or 
right  which  might  have  been  involved 
therein,  but  which  in  fact  was  never  in 
any  way  set  up  or  spoken  of.'  173  U.  S. 
198,  199.  200."  Keokuk,  etc..  Bridge  Co. 
V.  Illinois,  175  U.  S.  626.  633,  44  L.  Ed. 
299. 

Claim  of  right  under  treaties. — Where 
an  action  was  brought  on  a  policy  of  in- 
surance payable  to  the  assured's  wife,  and 
in  an  amended  answer  to  the  complaint, 
the  recovery  of  a  decree  of  divorce  was 
averred,  and  it  was  alle.ged,  "that  under 
and  by  virtue  of  the  Hawaiian  law  in 
force    at   the    time   said   decree   of    divorce 


604 


APPEAL  AND  CRkOR. 


requirement  is  not  met  if  such  decl^rn^^ion  is  so  general  in  its  character  that  the 
purpose  of  the  party  to  assert  a  Icitial  right  is  left  to  mere  inference. "^^ 

The  words  "specially  set  up  or  claimed"  in  §  709  of  the  Revised  Statutes, 
were  in  the  twenty-fifth  section  of  the  judiciary  act  of  1789  (1  Stat.  85),  and 
were  inserted  in  order  that  the  revisory  power  of  this  court  should  not  extend  to 
rights  denied  by  the  final  judgment  of  the  highest  court  of  a  state,  unless  the 
party  claiming  such  rights  plainly  and  distinctly  indicated,  before  the  state  court 
disposed  of  the  case,  that  they  were  claimed  under  the  constitution,  treaties  or 
statutes  of  the  United  States.  The  words  "specially  set  up  or  claimed"  imply 
that  if  a  party  intends  to  invoke  for  the  protection  of  his  rights  the  constitution 
of  the  United  States  or  some  treaty,  statute,  commission  or  authority  of  the 
United  States,  he  must  so  declare;  and  unle  -  he  does  so  declare  "specially,"  that 
is,  unmistakably,  this  court  is  without  authoi  ity  to  re-examine  the  final  judg- 
ment of  the  state  court. i-     And  while  it  is  not  necessary  to  plead  the  claim  in 


was  granted  and  now  in  force,"  all  the 
wife's  rights  in  such  policy  passed  to  and 
became  the  property  of  her  husband,  it 
was  held,  that  neither  the  pleading  of  the 
decree  of  d  orce  nor  of  the  statute  of 
Hawaii  providing  for  the  forfeiture  of  a 
divorced  wife's  rights  in  the  policy  of  in- 
surance, nor  of  both  together,  amounted 
to  specially  asserting  any  right  under  the 
treaty.  Both  averments  did  not  assert 
that  claim  in  the  trial  court  in  such  man- 
ner as  to  bring  it  to  the  attention  of  that 
court,  nor,  indeed,  to  show  that  any  right 
under  1  ?  treaty  was  present  in  the  mind 
of  counsel.  Mutual  Life  Ins.  Co.  v.  Mc- 
Grew,  188  U.  S.  291,  47  L.  Ed.  480,  re- 
affirmed in  Huber  zk  Jennings,  Heywood 
Oil  Syndicate,  201  U.  S.  641,  50  L.  Ed. 
901;  Herold  v.  Frank,  191  U.  S.  558,  48 
L.  Ed.  302;  Hughes  v.  Kepley,  191  U.  S. 
557,   48   L.   Ed.   301;   Wakefield   v.   Tassell. 

192  U.  S.  601,  48  L.  Ed.  583;  Bank  of 
Commerce  v.  Wiltsie,  189  U.  S.  505.  47 
L.    Ed.   921. 

Answer  to  writ  of  mandamus. — Where 
the  constitutionality  of  a  state  statute  un- 
der the  constitvition  of  the  United  States 
is  directly  attacked  in  the  answer  to  a 
writ  of  mandamus  to  compel  a  railroad 
t©  build  and  maintain  a  station  house  on 
its  line  in  compliance  with  an  order  of 
ti?e  state  railroad  commission,  the  su- 
preme court  of  the  United  States,  on  mo- 
tio«  to  dismiss  a  writ  of  error  to  the 
higkest  court  of  a  state,  will  deny  the 
naotion  and  consider  whether  the  grounds 
of  objection  are  substantial  and  sufficient. 
Minneapolis,    etc.,    R.    Co.    v.    Minnesota, 

193  U.  S.   53,  62,  48   L.  Ed.   614. 

Denial  of  liability  under  commerce 
clause. — Where  in  a  suit  brought  in  a 
state  court  by  the  defendant  in  error 
against  the  plaintiff  in  error,  for  dain- 
ages  alleged  to  have  been  received  by  the 
defendant  in  error  to  certain  carloads  of 
corn  shipped  over  the  Southern  Railway 
from  certain  points  in  Tennessee  to  be 
delivered  to  the  defendant  in  error  in 
Alabam.a,  the  bill  charges  a  breach  of  the 
contracts  erf  shipment  by  one  or  the  other 
rf  the  railway  companies  who,  the  bill 
alleges,    were    connecting     common      car- 


riers, and  as  such  bound  by  the  contracts 
and  the  law  relative  to  common  carriers 
to  receive  and  forward  to  destination  the 
goods  shipped  in  good  order  and  in  a 
reasonable  tiine,  and  plaintiflf  in  error  ad- 
initted  that  it  was  a  common  carrier  in 
some  states,  but  was  not  a  connecting  and 
ultimate  carrier  of  the  corn  in  question, 
denied  that  it  was  bound  by  the  con- 
tracts, and  denied  that  "it  was  bound  by 
law"  to  receive  the  corn  and  forward  and 
deliver  it  to  its  ultimate  destination,  it 
was  held,  that  the  denial  by  the  state 
court  of  the  allegations  of  this  bill 
rai'^es  no  federal  question,  because  "the 
denial  was  of  a  legal  conclusion  resulting 
from  the  facts  alleged,  and  added  nothing 
to  them.  Besides,  if  a  party  relies  upon 
a  federal  right,  he  must  specially  set  it 
up,  and  a  denial  of  liability  *nder  the  law 
is  not  a  compliance  with  that  require- 
ment." Louisville,  etc.,  R.  Co.  v.  Smith, 
etc.,  Co.,  204  U.  S.   551,  51  L.  Ed.  612. 

11.  Green  Bay.  etc..  Canal  Co.  v.  Pat- 
ten Paper  Co.,  173  U.  S.  58,  67,  43  L.  Ed. 
364,  citing  Oxley  Stave  Co.  v.  Butler 
County,  166  U.  S.  648,  649,  41  L.  Ed. 
1149. 

"It  is  settled  that  this  court,  on  error 
to  a  state  court,  cannot  consider  an  al- 
leged federal  questio«,  when  it  appears 
that  the  federal  right  thus  relied  upon  had 
not  been  by  adequate  specification  called 
to  the  attention  of  the  state  court  and 
had  not  been  by  it  considered,  not  being 
necessarily  involved  in  the  determination 
of  the  cause.  Green  Bay,  etc..  Canal  Co. 
V.  Patten  Paper  Co.,  172  U.  S.  58,  67,  43 
L.  Ed.  364;  Oxley  Stave  Co.  v.  Butler 
County,  166  U.  S.  648,  655,  41  L.  Ed.  1149." 
Capital  City  Dairy  Co.  v.  Ohio,  183  U.  S. 
238,  248,  46  L.  Ed.  171,  reaffirmed  in 
Herold  v.  Franks,  191  U.  S.  558,  48  L.  Ed. 
302;  Huber  v.  Jennings-Heywood  Oil 
Syndicpte,  201  U.   S.  641,  50   L.   Ed.  901. 

12.  0>rlev  Stave  Co.  v.  Butler  County, 
16G  U.  S.  648.  655.  41  L.  Ed.  1149,  re- 
affirmed in  Harkins  v.  Ashville,  180  U. 
S.  635,  45  L.  Ed.  709;  Baldwin  v.  County 
Commissioners,  168  U.  S.  705,  42  L.  Ed. 
1213;  Tompkins  v.  Cooper,  170  U.  S.  703, 
42   L.    Ed.    1217;    Mutual   Life   Ins.    Co.   v. 


APPEAL  AXD  ERROR. 


605 


order  to  show  it  was  specially  set  up,  it  must  have  been  so  referred  to  and  men- 
tioned as  to  show  that  it  was  present  in  the  minds  of  the  parties  claiming  the 
right,  or  must  have  been  in  some  way  presented  to  the  court. ^-^ 

In  Motion  for  New  Trial  and  Assignment  of  Errors.— It  is  a  sufficient 
compliance  with  §  709,  U.  S.  Rev.  Stat,  that  a  federal  right  must  be  "specially 
set  up  or  claimed  in  the  state  court,"  that  the  claim  to  such  right  appears  in  a 
motion  for  a  new  trial  and  in  the  assignment  of  error,  in  the  state  supreme  court, 
and  was  fully  considered  by  the  state  supreme  court.  ^^  g^^  where  the  record  in 
a  motion  for  a  new  trial  states  simply  that  a  statute  is  contrary  to  the  constitu- 
tion of  the  United  States,  without  calling  attention  to  the  provision  of  that  in- 
strument whose  protection  is  denied  to  the  plaintiff  in  error,  this  is  clearly  ki- 
sufficient  to  give  this  court  jurisdiction  to  review  the  decision  of  a  state  court 
on  the  ground  that  a  federal  question  is  presented. ^^  Likewise  where  no  federal 
question  appears  in  the  pleadings  or  in  the  testimony,  a  transcript  of  which  is 
contained  in  the  record,  but  it  first  appears  in  the  motion  for  a  new  trial  in 
which  it  is  charged  that  tlie  judgment  deprives  the  plaintiff  in  error  of  his  prop- 
erty without  due  process  of  law,  and  denies  him  the  equal  protection  of  the 
laws,  contrary  to  the  fourteenth  amendment,  no  allegation  being  made  as  to 
vfhy  tlie  judgment  has  this  effect,  and  no  notice  being  taken  of  the  constitutional 
point  by  the  state  court  in  denying  the  motion,  the  writ  of  error  will  be  dis- 
missed although  the  writ  of  error  from  this  court  was  allowed  by  the  presiding 
judge. ^^ 

But  no  particular  form  of  words  or  phrases  has  ever  been  declared  nec- 
essary in  which  the  claim  of  federal  rights  must  be  asserted.  It  is  sufficient  if 
it  appears  from  the  record  that  such  rights  were  specially  set  up  or  claimed  in 
the  state  court  in  such  manner  as  to  bring  it  to  the  attention  of  that  court. ^" 


Kirchoff,  169  U.  S.  103,  110,  42  L.  Ed. 
677;  Chappell  v.  Stewart,  169  U.  S.  733, 
42  L.  Ed.  1215;  Fenwick  Hall  Co.  v.  Old 
Saybrook,  169  U.  S.  734,  42  L.  Ed.  1215. 

Where  it  does  not  appear  in  the  record 
that  a  claim  of  title  under  an  act  of  con- 
gress was  made  in  the  trial  court  or  upon 
appeal  in  the  supreme  cotirt  of  the  state, 
and  does  not  seem  to  have  been  thought 
of  until  the  case  reached  this  court,  the 
claim  of  title  is  not  so  asserted  as  to  con- 
fer jurisdiction  upon  the  supreme  court  of 
the  United  States  to  review  the  judgment 
of  the  state  court  upon  writ  of  error. 
Sweringen  v.  St.  Louis,  185  U.  S.  38,  46 
L.    Ed.    795. 

13.  Sweringen  v.  St.  Louis,  185  U.  S. 
38,  46.  46  L.  Ed.  795,  citing  Oxley  Stave 
Co.  V.  Butler  County,  166  U.  S.  648,  41 
L.  Ed.  1149;  Green  Bay.  etc..  Canal  Co. 
T.  Patten  Paper  Co.,  172  U.  S.  58,  43  L. 
Ed.  364;  Columbia  Water  Power  Co.  v. 
Columbia  Street  Railway  Co.,  172  U.  S. 
475,  43  L.  Ed.  521;  Dewey  v.  Des  Moines, 
173  U.  S.  193,  199,  43  L.  Ed.  665. 

14.  San  Jose  Land,  etc.,  Co.  v.  San 
Jose  Ranche  Co..  189  U.  S.  177,  47  L.  Ed. 
765. 

A  federal  question  raised  by  an  assign- 
ment of  error  in  the  state  supreme  court, 
and  considered  and  decided  by  specially 
appointed  commissioners  to  aid  the  court, 
■whose  report  was  affirmed  by  the  state 
supreme  court,  is  sufficiently  raised  to 
give  the  court  jurisdiction  to  review  the 
state     court's     decisions.       Farmers',    etc., 


Ins.  Co.  V.  Dobney,   189  U.  S.   301,  305,  47 
L.    Ed.    821. 

In  motion  in  arrest  of  judgment. — 
"While  the  constitutionality  of  the  law  was 
not  specially  set  up  and  claimed  before 
the  trial  in  the  circuit  court,  there  was 
a  motion  made  in  arrest  of  judgment,  in 
which  the  invalidity  of  the  statute  was 
specially  set  up  upon  the  ground  of  its 
repugnancy  to  the  fourteenth  amendment 
to  the  constitution.  The  motion  was  de- 
nied, although  the  supreme  court  did  not 
in  terms  pass  upon  the  federal  constitu- 
tionality of  the  law.  It  was  held,  that 
this  was  a  sufficient  presentation  of  the 
federal  question  to  give  jurisdiction  to 
the  supreme  court  of  the  L'nited  States 
to  review  the  judgment  of  the  supreme 
court  of  the  state  on  writ  of  error."  St. 
Louis,  etc..  Coal  Co.  7'.  Illinois,  185  U.  S. 
203,   207,    46    L.   Ed.   872. 

15.  Farney  7'.  Towle.  1  Black  350,  17  L. 
Ed.  216;  Harding  v.  Illinois.  196  U.  S. 
78,  88,  49  L.  Ed.  394,  reaffirmed  in  Robin- 
son V.  Wingate.  198  U.  S.  580,  49  L.  Ed. 
1171;  Chicago,  etc.,  R.  Co.  r.  Newell.  198 
U.  S.  579,  49  L.  Ed.  1171;  Seale  v.  Geor- 
gia, 201  U.  S.  642,  50  L.  Ed.  902,  dis- 
tinguishing Chicago,  etc..  R.  Co.  v.  Chi- 
cago.  164  U.   S.   454,  41    L.   Ed.    511. 

16.  Keen  v.  Keen,  201  U.  S.  319,  50  L. 
Ed.    772. 

17.  Green  Bay,  etc..  Canal  Co.  v.  Pat- 
ten Paper  Co.,  172  U.  S.  58,  67.  43  L.  Ed. 
364. 

Where  in  a  proceeding  in  equity  in  a 
state  court,  the  bill  and  answer  show  that 


606 


APPEAL  AND  ERROR. 


Although  no  particular  form  of  words  is  necessary  to  be  used  in  order  that  the 
federal  question  may  be  said  to  be  involved,  within  the  meaning  of  the  cases  on 
this  subject,  there  yet  must  be  something  in  the  case  before  the  state  court  wliich 
at  least  would  call  its  attention  to  the  federal  question  as  one  that  was  relied  on 
by  the  party,  and  then,  if  the  decision  of  the  court,  while  not  noticing  the  ques- 
tion, was  such  that  the  judgment  was  by  its  necessary  efifect  a  denial  of  the  right 
claimed  or  referred  to,  it  would  be  sufficient.  It  must  appear  from  the  record 
that  the  right  set  up  or  claimed  was  denied  by  the  judgment  or  that  such  was  its 
necessary  efifect  in  law.^^  It  is  not  enough  that  there  may  be  somewhere  hidden 
in  the  record  a  question  which,  if  raised,  would  be  of  a  federal  nature. ^^ 

General  Allegations. — This  statutory  requirement  is  not  met  if  such  dec- 
laration is  so  general  in  its  character  that  the  purpose  of  the  party  to  assert  a 
federal  right  is  left  to  mere  inference.  It  is  the  settled  doctrine  of  this  court  that 
the  jurisdiction  of  the  circuit  courts  of  the  United  States  must  appear  afifirma- 
•tively  from  the  record,  and  that  it  is  not  sufificient  that  it  may  be  inferred  ar- 
gumentatively  from  the  facts  stated.  Hence,  the  averment  that  a  party  resides 
?n    a    particular    state    does    not    import    that    he    is    a    citizen    of    that    state.2» 


the  plaintiff  claims  certain  rights  in  prop- 
erty formerly  owned  by  the  state,  under 
a  conveyance  authorized  by  a  statute  of 
the  state,  and  that  the  defendant  claims 
rights  under  the  statute  afterwards  passed, 
conflicting  with  these  rights  of  the  plain- 
tiff, and  it  appears  by  the  record  that  the 
rights  under  this  subsequent  statute  were 
sustained  by  the  state  court,  the  question 
whether  the  contract  of  the  plaintiff  was 
impaired  by  a  subsequent  statute  appears 
on  the  face  of  the  pleadings,^  and  this 
court  has  jurisdiction  of  the  writ  of  error. 
Columbia  Water  Power  Co.  v.  Columbia 
Street  Railway  Co..  172  U.  S.  475,  43  L- 
Ed.   521. 

18.  Roby  V.  Colehour,  146  U.  S.  153, 
159,  36  L.  Ed.  922;  Chicago,  etc., 
R.  Co.  V.  Chicago,  166  U.  S.  226, 
231,  41  L.  Ed.  979;  Green  Bay,  etc..  Canal 
Co.  V.  Patten  Paper  Co.,  172  U.'S.  58,  43 
L.  Ed.  364;  Lincoln  Nat.  Bank  v.  Cadiz 
Nat.  Bank,  172  U.  S.  425.  43  L.  Ed.  502; 
Dewey  v.  Des  Moines,  173  U.  S.  193,  199, 
43  L.  Ed.  665,  reaffirmed  in  Indiana 
Power  Co.  v.  Elkhart  Power  Co.,  187  U. 
S.    636,    47    L.    Ed.    343. 

It  was  assigned  as  error  in  the  supreme 
court  of  the  United  States  that  the  su- 
preme court  of  the  state  disregarded  cer- 
tain portions  of  counsel's  brief,  alleged 
to  have  treated  of  a  federal  question.  It 
was  held,  that  this  did  not  meet  with  the 
requirements  of  §  709  of  the  Revised 
Statutes,  to  the  effect  that  a  party  to  an 
action  in  a  state  court  who  intends  to  in- 
voke for  the  protection  of  his  rights,  the 
constitution  of  the  United  States,  or  some 
treaty,  statute,  commission  or  authority 
of  the  United  States,  must  so  declare. 
Chapin  v.  Eye.  179  U.  S.  127,  45  L.  Ed. 
119,  citing  and  approving  Zadig  v.  Bald- 
Avin,  166  U.  S.  485,  41  L.  Ed.  1087;  Miller 
T'.  Cornwall  R.  Co.,  168  U.  S.  131,  42  L. 
Ed.  409;  Dewey  v.  Des  Moines,  173  U.  S. 
193,  43  L.  Ed.  665;  Keokuk,  etc..  Bridge 
Co.  V.  Illinois,  175  U.  S.  626,  633,  44  L.  Ed. 
■299,    reaffirmed    in    Herold    v.    Frank,    191 


U.  S.  558.  48  L.  Ed.  302;  Brewster  v. 
Cahill,  194  U.  S.  629,  48  L.  Ed.  1158; 
Gates  V.  Commissioners,  183  U.  S.  693,  46 
L.  Ed.  393;  Huber  v.  Jennings-Heywood 
Oil  Syndicate,  201  U.  S.  641,  50  L.  Ed. 
901. 

19.  Hamilton  Co.  v.  Massachusetts, 
6  Wall.  632.  18  L.  Ed.  904;  Bolln 
r.  Nebraska.  176  U.  S.  83,  92,  44  L.  Ed. 
382;  Dewey  v.  Des  Moines,  173  U.  S.  193, 
199,  43  L.  Ed.  665,  reaffirmed  in  Indiana 
Power  Co.  V.  Elkhart  Power  Co.,  187  U. 
S.  636,   47   L.   Ed.  343. 

20.  Brown  v.  Keene,  8  Pet.  112,  115,  8 
L.  Ed.  885;  Robertson  v.  Cease,  97  U.  S. 
646,  649,  24  L.  Ed.  1057;  Oxley  Stave  Co. 
V.  Butler  County,  166  U.  S.  648,  655.  41 
L.  Ed.  1149,  reaffirmed  in  Harkins  v.  A=h- 
ville,  180  U.  S.  635.  45  L.  Ed.  709;  Baldwin 
V.  County  Commissioners,  168  U.  S.  705, 
42  L.  Ed.  1213;  Tompkins  v.  Cooper,  170 
U.  S.  703,  42  L.  Ed.  1217;  Mutual  Life 
Ins.  Co.  V.  Kirchoff,  169  U.  S.  103,  110,  42 
L.  Ed.  677;  Chappell  v.  Stewart,  169  U. 
S.  733,  42  L.  Ed.  1215;  Fenwick -Hall  Co. 
V.  Old  Saybrook.  169  U.  S.  734,  42  L.  Ed. 
1215;  Marvin  v.  Trout,  199  U.  S.  212,  50 
L.   Ed.   157. 

"The  rule  is  firmly  established,  and  has 
been  frequently  reiterated,  that  the  juris- 
diction of  this  court  to  re-examine  the 
final  judgment  of  a  state  court,  under  the 
third  division  of  §  709,  cannot  arise  from 
mere  inference,  but  only  from  averments 
so  distinct  and  positive  as  to  place  it  be- 
yond question  that  the  party  bringing  the 
case  here  from  such  court  intended  to  as- 
sert a  federal  right.  The  statutory  re- 
quirement is  not  met  unless  the  party  un- 
mistakably declares  that  he  invokes  for 
the  protection  of  his  rights,  the  consti- 
tution, or  some  treaty,  statute,  commis- 
sion or  authority,  of  the  United  States." 
Michigan  Sugar  Co.  v.  Michigan,  185  U. 
S.   112,    114,   46   L.   Ed.    829. 

Denial  of  right  under  fourteenth  amend- 
ment.— No  question  of  a  federal  nature 
claimed    under    the     constitution      of      the 


APPEAL  AND  ERROR. 


607 


The  general  allegation  or  claim,  in  different  forms,  that  the  decree  of  the 
state  court  was  passed  against  some  persons  who  were  at  the  time  dead,  and 
against  others  who  were  necessary  parties  but  who  had  no  notice  of  the  proceed- 
ings, does  not,  within  the  meaning  of  §  709  of  the  Revised  Statutes,  specially  set 
up   a   right   or   immunity   under   the    fourteenth    amendment   of   the   constitution 


United  States  can  be  said  to  have  been 
made  by  the  mere  allegation  "that  the 
amount  of  said  tax  is  greater  than  the 
reasonable  market  value  of  said  lots, 
whether  considered  singly  or  together; 
the  assessment  against  each  particular  lot 
being  greater  in  amount  than  the  value 
of  such  particular  lot,  and  the  aggregate 
assessment  being  greater  in  amount  than 
the  reasonable  market  value  of  all  of  said 
lots  taken  together;  and  that  said  defend- 
ants are  seeking  to  enforce  as  against 
plaintiff  not  merely  a  sale  of  said  lots. 
but  also  to  compel  plaintiff  to  pay  the 
full  amount  of  said  tax  regardless  of 
whatever  sum  said  lots  may  be  sold  for 
and  regardless  of  the  actual  value  of  the 
same."  Dewey  v.  Des  Moines,  173  U.  S. 
193,  200,  43  L.  Ed.  66.5,  reaffirmed  in  In- 
diana Power  Co.  V.  Elkhart  Power  Co., 
187   U.    S.    636,   47    L.    Ed.    343. 

On  a  motion  to  dismiss  a  writ  of  error 
from  the  supreme  court  of  the  United 
States  to  a  state  court,  statements  in  a 
motion  for  nonsuit,  that  "the  cause  of 
action  alleged  in  such  action  has  not  been 
I)rovcd,"  and  that  "no  cause  of  action  has 
been  proved  in  either  of  the  actions  con- 
solidated in  the  action  on  trial,"  are  too 
vague  and  general  to  indicate  that  the 
defendant  distinctly  claimed  anything  un- 
der the  fourteenth  amendment  to  the  con- 
stitution of  the  United  States.  Such  a 
record  is  consistent  with  the  idea  that  the 
defendant  did  not  claim,  in  the  trial  court, 
in  any  form  generally  or  specially,  that 
the  statute  deprived  him  of  property  with- 
i  out  due  process  of  law  or  denied  to  him 
I  the  equal  protection  of  the  laws.  Erie  R. 
!  Co.  V.  Purdy.  18.5  U.  S.  148,  46  L.  Ed. 
847;  Stuart  v.  Hauser,  '203  U.  S.  585,  51 
L.  Ed.  328;  Carnahan  v.  Connolly,  187  U. 
S.  636,  47  L.  Ed.  343;  Hughes  v.  Kepley, 
191  U.  S.  557,  48  L.  Ed.  301;  Illinois  z'. 
Binns,  189  U.  S.  505,  506,  47  L.  Ed.  921; 
Robinson  v.  Wingatc,  198  U.  S.  580.  49 
L.  Ed.  1171;  Bank  of  Commerce  v. 
Wiltsie,  189   U.    S.   505,   47   L.    Ed.   921. 

Oxley  Stave  Co.  z'.  Butler  County.  166 
U.  S.  648.  41  L.  Ed.  1149,  involved  a  de- 
cree, in  respect  of  which  tliere  was  a 
general  allegation  that  it  was  rendered 
against  dead  persons,  as  well  as  in  the 
absence  of  necessary  parties  who  had  no 
notice  of  the  suit;  and  we  held  that  such 
general  allegations  did  not  meet  the 
statutory  requirement  that  the  final  judg- 
ment of  a  state  court  may  be  re-examined 
here  if  it  denies  some  title,  right,  privi-  • 
lege,  or  immunity  "specially  set  up  or 
claimed,"  under  the  constitution  or  au- 
thority of  the  United  States.  Mutual 
Life    Ins.    Co.  v.    McGrew,    188   U.    S.   291, 


309.  47  L.  Ed.  480,  reaffirmed  in  Herold 
V  Frank,  191  U.  S.  558,  48  L.  Ed.  302; 
Hughes  V.  Kepley.  191  U.  S.  557,  48  L. 
Ed.  301;  Wakefield  v.  Tassel),  192  U.  S. 
601,  48  L.  Ed.  583;  Bank  of  Commerce  v. 
Wiltsie,   189   U.    S.   505,  47   L.   Ed.   921. 

A  general  statement  in  an  answer  to  a 
proceeding  in  a  state  court  by  a  quo  war- 
ranto, to  forfeit  the  charter  of  a  corpora- 
tion that  "this  proceeding  is  in  violation 
of  the  constitution  of  the  United  States" 
is  not  a  sufficient  raising  of  a  federal 
question  in  the  state  court,  where  it  does 
not  appear  that  any  specification  was 
made  as  to  the  particular  clause  of  the 
constitution  relied  upon  to  establish  that 
the  granting  of  relief  by  quo  warranto 
would  be  repugnant  to  the  constitution, 
and  there  is  nothing  in  the  record  which 
could  give  rise  even  to  a  remote  infer- 
ence that  the  mind  of  the  state  court  was 
directed  to  or  considered  this  question. 
Capitol  City  Dairy  Co.  v.  Ohio,  183  U.  S. 
238,  46  L.  Ed.  171;  Hereld  v.  Frank,  191 
U.  S.  558,  48  L.  Ed.  302;  Huber  v.  Jen- 
nings-Heywood  Oil  Syndicate,  201  U.  S. 
641,   50  L.   Ed.  901. 

Where  the  only  possible  support  to  the 
claim  that  a  federal  question  on  the  sub- 
ject under  consideration  was  raised  be- 
low, was  a  general  statement  in  an  answer 
that  "this  proceeding  is  in  violation  of  the 
constitution  of  the  United  States,"  and 
nowhere  does  it  appear  that  at  any  time 
%yas  any  specification  made  as  to  the  par- 
ticular claMse  of  the  constitution  relied 
upon  to  establish  that  the  granting  of  re- 
lief by  quo  warranto  would  be  repugnant 
to  that  constitution,  nor  is  there  anything 
in  the  record  which  could  give  rise  even 
to  a  remote  inference  that  the  mind  of 
state  court  was  directed  to  or  considered 
this  question.  On  the  contrary,  it  is  ap- 
parent from  the  record  that  such  a  con- 
tention was  not  raised  in  the  state  court. 
Thus,  although  at  the  request  of  the  de- 
fendant below,  the  plaintiff  in  error  here, 
the  state  court  certified  as  to  the  exis- 
tence of  the  federal  questions  which  had 
been  called  to  its  attention  and  which  it 
had  decided,  no  reference  was  made  in  the 
certificate  to  the  claim  of  federal  right 
we  are  now  considering,  and  because  this 
court  is  without  jurisdiction  to  review 
the  state  court's  decisions.  Capital  City 
Dairy  Co.  v.  Ohio,  183  U  S.  238. 
46  L.  Ed.  171;  Harding  v.  Illinois, 
196  U.  S.  78,  86,  49  L  .Ed.  394.  re- 
affirmed in  Robinson  v.  Wingate.  198  U. 
S.  580.  49  L.  Ed.  1171;  Chicago,  etc.,  R. 
Co.  V.  Newell,  198  U.  S.  579,  49  L.  Ed. 
1171;  Seale  v.  Georgia,  201  U.  S.  642,  50 
L.    Ed.    902. 


608 


APPEAL  AND  ERROR. 


of  the  United  States,  forbidding  a  state  to  deprive  any  person  of  his  property 
without  due  process  of  law,  unless  it  appears  that  the  supreme  court  of  the  state 
regarded  these  general  allegations  as  asserting  such  federal  right  or  immunity, 
and  denied  the  claim  so  asserted. -- 

Cannot  Arise  from  Mere  Inference. — Upon  like  grounds  the  jurisdiction  of 
this  court  to  re-examine  the  final  judgment  of  a  state  court  cannot  arise  from 
mere  inference,  but  only  from  averments  so  distinct  and  positive  as  to  place  it 
beyond  question  that  the  party  bringing  a  case  here  from  such  court  intended  to 
assert  a  federal  right. ^^ 

A  general  statement  in  the  petition  in  error  to  the  supreme  court  of  Ohio 
that  a  statute  of  the  state  is  in  violation  of  certain  sections  of  the  federal  con- 
stitution,  is   insufficient  to   raise  a   federal   question. ^-^ 

Not  every  mere  allegation  of  the  existence  of  a  federal  ques- 
tion in  a  controversy  will  suffice.  There  must  be  a  real  substantive  question,  on 
which  the  case  may  be  made  to  turn.  Nor  can  jurisdiction  be  inferred  argumen- 
tatively  from  the  averments  in  the  pleadings,  but  the  averments  should  be  posi- 
tive. ^^ 


22.  Oxlev  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  660,  41  L.  Ed.  1149,  re- 
affirmed in  Harkins  v.  Ashville,  180  U. 
S.  635,  45  L.  Ed.  709;  Baldwin  v.  County 
Commissioners.  168  U.  S.  705.  42  L.  Ed. 
1213;  Tompkins  x'.  Cooper,  170  U.  S.  703, 
42  L.  Ed.  1217;  Mutual  Life  Ins.  Co.  v. 
Kirchoff.  169  U.  S.  103,  110,  42  L.  Ed. 
677;  Chappell  v.  Stewart,  169  U.  S.  733, 
42  L.  Ed.  1215;  Fenwick  Hall  Co.  v.  Old 
Saybrook,   169   U.    S.   734,    42    L.    Ed.    1215. 

23.  Oxley  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  655,  41  L.  Ed.  1149,  re- 
affirmed in  Harkins  v.  Ashville.  180  U. 
S.  635.  45  L.  Ed.  709;  Baldwin  z'.  County 
Commissioners,  168  U.  S.  705,  42  L.  Ed. 
1213;  Tompkins  v.  Cooper,  170  U.  S.  703, 
42  L.  Ed.  1217;  Mutual  Life  Ins.  Co.  v. 
Kirchoff.  169  U.  S.  103,  110,  42  L.  Ed.  677; 
Chappell  V.  Stewart,  169  U.  S.  733,  42  L. 
Ed.  1215;  Fenwick  Hall  Co.  v.  Old  Say- 
brook,  169  U.  S.  734,  42  L.  Ed.  1215; 
Louisville,  etc.,  R.  Co.  z'.  Louisville.  166 
U.  S.  709.  41  L.  Ed.  1173;  Levy  v.  San 
Francisco,  167  U.  S.  175,  178,  42  L.  Ed. 
126. 

When  the  jurisdiction  of  this  court  is 
invoked  for  the  protection,  against  the 
final  judgment  of  the  highest  court  of  a 
state,  of  some  title,  right,  privilege  or 
immunity  secured  by  the  constitution  or 
laws  of  the  United  States,  it  must  appear 
expressly  or  by  necessary  intendment, 
from  the  record,  that  such  right,  title, 
privilege  or  immunity  was  "specially  set 
up  or  claimed"  under  such  constitution 
or  laws.  Rev.  Stat.,  §  709.  Our  jurisdic- 
tion cannot  arise  in  such  case  from  in- 
ference, but  only  from  averments  so  dis- 
tinct and  positive  as  to  place  it  beyond 
question  that  the  party  bringing  the  case 
up  intended  to  assert  a  federal  right.  Ox- 
ley  Stave  Co.  r.  Butler  County,  166  U.  S. 
648,  41  L.  Ed.  1149;  Levy  v.  San  Fran- 
cisco, 167  U.  S.  175,  177,  42  L.  Ed.  126; 
Kipley  v.  Illinois.  170  U.  S.  182,  187,  42 
L.  Ed.  998,  reaffirmed  in  Harkins  z'.  Ash- 
ville,   180   U.    S.   635,   45   L.   Ed.   709;    Ross 


V.  King,  172  U.  S.  641,  43  L.  Ed.  lldO; 
Jones  V.  Vane,  200  U.  S.  614,  50  L.  Ed. 
621. 

The  assertion  of  the  right,  title,  privi- 
lege or  immunity  relied  on  must  be  made 
unmistakably  and  not  left  to  mere  infer- 
ence. Oxley  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  41  L.  Ed.  1149;  Mutual 
Life  Ins.  Co.  v.  McGrew,  188  U.  S.  291, 
308,  47  L.  Ed.  480,  reaffirmed  in  Herold 
7.  Frank,  191  U.  S.  558.  48  L.  Ed.  302; 
Hughes  V.  Kepley,  191  U.  S.  557,  48  L. 
Ed.  301;  Wakefield  v.  Tassell,  192  U.  S. 
601.  48  L.  Ed.  583;  Bank  of  Commerce 
r.  Wiltsie,  189  U.   S.   505,  47  L.   Ed.  921. 

In  Oxley  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  655,  41  L.  Ed.  1149,  Mr. 
Justice  Harlan  said:  "This  statutory  re- 
quirement is  not  met  if  such  declaration 
is  so  general  in  its  character  that  the  pur- 
pose of  the  party  to  assert  a  federal  right 
is  left  to  mere  inference.  It  is  the  set- 
tled doctrine  of  this  court  that  the  juris- 
diction of  the  circuit  courts  of  the  United 
States  must  appear  affirmatively  from  the 
record,  and  that  it  is  not  sufficient  that 
it  may  be  inferred  argumentatively  from 
the  facts  stated.  *  *  *  Upon  like  grounds 
the  jurisdiction  of  this  court  to  re-ex- 
amine the  hnal  judgment  of  a  state  court 
cannot  arise  from  mere  inference,  but 
only  from  averments  so  distinct  and  posi- 
tive as  to  place  it  beyond  question  that 
the  party  bringing  a  case  here  from  such 
court  intended  to  assert  a  federal  right." 
Mutual  Life  Ins.  Co.  v.  McGrew,  188  U. 
S.  291.  310,  47  L.  Ed.  480,  reaffirmed  in 
Herold  v.  Frank,  191  U.  S.  558,  48  L.  Ed. 
302;  Hughes  z'.  Kepley,  191  U.  S.  557.  48 
L.  Ed.  301;  Wakefield  r.  Tassell,  192  U. 
S.  601.  48  L.  Ed.  583;  Bank  of  Commerce 
V.  Wiltsie,  189  U.   S.  505,  47   L.   Ed.  92. 

24.  Marvin  v.  Trout,  199  U.  S.  212,  50 
L.  Ed.  157.  citing  Clarke  v.  McDade,  165 
U.   S.   168,   41    L.   Ed.   673. 

25.  Hanford  v.  Davies.  163  U.  S.  273, 
279,    41    L.    Ed.    157;    St.    Joseph,    etc.,   R. 


APPEAL  AND  ERROR. 


609 


Judicial  Notice. — Judicial  knowledge  cannot  be  resorted  to  to  raise  contro- 
versies not  presented  by  the  record,  so  as  to  supply  a  failure  to  set  up  a  right  or 
title  under  a  treaty. ^^ 

bbb.  Qualificatiwxs  of  General  Rules. — It  is  only  under  the  third  class  of  cases 
mentioned  in  §  709  of  the  Revised  Statutes  giving  a  writ  to  a  state  court,  namely, 
"where  any  title,  right,  privilege  or  immunity  is  claimed  under  the  constitution, 
or  any  treaty  or  statute  of,  or  commission  held  or  authority  exercised  under,  the 
United  States,  and  the  decision  is  against  the  title,  right,  privilege  or  immunity 
specially  set  up  and  claimed  by  either  partly  under  such  constitution,  statute,  com- 
mission or  authority,"  that  the  federal  right,  title,  privilege  or  immunity  must  be, 
with  possibly  some  rare  exceptions,  especially  set  up  or  claimed  to  give  this  covirt 
jurisdiction.-" 

Where  Federal  Question  Is  Actually  or  Necessarily  Raised  and  De- 
cided.— But  under  the  first  and  second  clause  of  Revised  Statutes,  §  709,  in  cases 
in  which  the  validity  of  a  state  statute  under  the  constitution  of  the  United  States 


Co.  V.  Steele,  167  U.  S.  659,  6&2.  42  L.  Ed. 
.315. 

If  the  denial  by  the  state  court  of  a 
right  under  a  statute  of  the  United  States 
is  relied  on  as  justifying  our  interposi- 
tion, before  it  can  be  held  that  the  state 
court  thus  disposed  of  a  federal  question, 
the  record  must  show,  either  by  the 
words  used  or  by  clear  and  necessary  in- 
tendment therefrom  that  the  right  was 
specifically  claimed,  or  a  definite  issue  as 
to  the  possession  of  the  right  must  be 
distinctly  deducible  from  the  record,  with- 
out an  adverse  decision  of  which,  the 
judgment  could  not  have  been  rendered. 
Capital  Nat.  Bank  v.  First  Nat.  Bank, 
172   U.   S.   425.  430,  42   L.   Ed.   502. 

26.  Mountain  View,  etc.,  Co.  v. 
McFadden.  180  U.  S.  533,  45  L.  Ed.  656; 
Mutual  Life  Ins.  Co.  v.  McGrew,  188  U. 
S.  291,  312,  47  L.  Ed.  480,  reaffirmed  in 
Herold  v.  Frank.  191  U.  S.  558,  48  L.  Ed. 
302;  Hughes  v.  Keplev.  191  U.  S.  557,  48 
L.  Ed.  302;  Wakefield  v.  Tassell,  192  U. 
S.  601.  48  L.  Ed.  583;  Bank  of  Commerce 
V.  Wiltsie,   189   U.  S.   505,  47  L.  Ed.  921. 

27.  Spies  V.  Illinois,  123  U.  S.  131.  181, 
31  L.  Ed.  80;  French  v.  Hopkins,  124  U. 
S.  524,  31  L.  Ed.  536;  Chappell  z>.  Brad- 
shaw,  128  U.  S.  132,  32  L.  Ed.  369;  Bald- 
win V.  Kansas,  129  U.  S.  52,  32  L-  Ed. 
640;  Leeper  v.  Texas.  139  U.  S.  462,  35 
L.  Ed.  225;  Oxley  Stave  Co.  v.  Butler 
County.  166  U.  S.  648,  41  L.  Ed.  1149; 
Columbia  Water  Power  Co.  tj.  Columbia 
Street  Railway  Co.,  1 7'3  U.  S.  475,  488.  43 
L.  Ed.  521;  Michigan  Sugar  Co.  v.  Michi- 
gan, 185  U.   S.   112,   46   L.^Ed.   829. 

It  is  only  in  cases  arising  under  the 
third  clause,  Rev.  Stat..  §  790,  where  a 
right,  title,  privilege  or  immunity  is 
claimed,  that  the  federal  question  must  be 
specially  set  up.  The  cases  are  collected 
in  Columbia  Water  Power  Co.  v.  Colum- 
bia Street  Railwav  Company.  172  U.  S. 
475,  488,  43  L.  Ed.  521;  Yazoo,  etc.,  R. 
Co.  V.  Adams,  180  U.  S.  1,  14,  45  L.  Ed. 
395. 

"The    assertion    that    although    no    fed- 

1  U  S  Kuc— 39 


eral  question  was  raised  below,  aod  al- 
though the  mind  of  the  state  court  was 
not  directed  to  the  fact  that  a  right  pro- 
tected by  the  constitution  of  the  United 
States  was  relied  upon,  nevertheless  it  is 
our  duty  to  look  into  the  record  and  de- 
termine whether  the  existence  of  such  a 
claim  was  not  necessarily  involved,  is  dem- 
onstrated to  be  unsound  by  a  concluded 
line  of  authority.  Spies  v.  Illinoi-s,  123  U. 
S.  131,  181,  31  L.  Ed.  80;  French  v.  Hop- 
kins. 124  U.  S.  524,  31  L.  Ed.  536;  Chap- 
pell V.  Bradshaw.  128  U.  S.  132,  32  L.  Ed. 
369;  Baldwin  v.  Kansas,  129  U.  S.  52.  32 
L.  Ed.  640;  Leeper  v.  Texas,  139  U.  S. 
462,  35  L.  Ed.  225;  Oxley  Stave  Co.  v. 
Butler  County,  166  U.  S.  648,  41  L.  Ed. 
1149;  Columbia  Water  Power  Co.  v.  Co- 
lumbia Street  Railway  Co.,  172  U.  S.  475, 
43  L.  Ed.  521.  The  error  involved  in  the 
argument  arises  from  failing  to  observe 
that  the  particular  character  of  federal 
right  which  is  here  asserted  is  embraced 
within  those  which  the  statute  requires  to 
be  'specially  set  up  or  claimed.'  The  confo- 
sion  of  thought  involved  in  the  proposition 
relied  upon  is  very  clearly  pointed  out 
in  the  authorities  to  which  we  have  re- 
ferred, and  especially  in  the  latest  case* 
cited.  Columbia  Water  Power  Co.  v.  Co- 
lumbia Street  Railway  Co.,  172  U.  S. 
475.  43  L.  Ed.  521."  Eastern  Bldg.  Ass'n 
i:  Welling.  181  U.  S.  47.  49,  45  L.  Ed. 
730 

Denial  of  faith  and  credit  to  judgments 
of  rister  states. — Where  the  state  court 
refuses  to  give  effect  to  the  judgment  of 
a  court  of  another  state,  the  case  falls 
within  the  third  class.  Mutual  Life  Ins. 
Co.  z'.  McGrew,  188  U.  S.  291,  47  L.  Ed. 
480,  reaffirmed  in  Huber  v.  Jennings-Hey- 
wood  Oil  Syndicate,  201  U.  S.  641.  50  L. 
Ed.  901;  Herold  v.  Frank,  191  U.  S.  558, 
48  L.  Ed.  302;  Hughes  v.  Kepley,  191  U. 
S.  557,  48  L.  Ed.  301;  Wakefield  r.  Tas- 
sell. 192  U.  S.  601.  48  L.  Ed.  583:  Bank 
of  Commerce  v.  Wiltsie.  189  U.  S.  505,  47 
L.  Ed.  9'^1  ;  C.crni.'>n  Savings  Soc'ety  v. 
Dormitzer,  192  U.  S.  125,  127,  48  L.  Ed. 
373. 


610 


APPEAL  AND  ERROR. 


is  necessarily  drawn  in  question,  and  the  decision  of  the  state  court  is  in  fa- 
vor of  its  vahdity,  the  supreme  court  of  the  United  States  will  take  jurisdiction, 
though  the  federal  question  be  not  specially  set  up  or  claimed. ^^  And  the  general 
rule  undoubtedly  is  that  those  federal  questions  which  are  required  to  be  spe- 
cially set  up  and  claimed  must  be  so  distinctly  asserted  below  as  to  place  it  be- 
yond question  that  the  party  bringing  the  case  here  from  the  state  court  intended 
to  and  did  assert  such  a  federal  right  in  the  state  court.^^  It  has  been  frequently 
held,  that  in  cases  coming  within  the  second  class  less  particularity  is  required  in 
•asserting  the  federal  right  than  in  cases  in  the  third  class,  wherein  a  right,  title, 
privilege  or  immunity  is  claimed  under  the  United  States,  and  the  decision  is 
against  such  right,  title,  privilege  or  immunity.^"  It  is  equally  true  that  even 
although  the  allegations  of  federal  right  made  in  the  state  court  were  so  general 
and  ambiguous  in  that  character  that  they  would  not  in  and  of  themselves  neces- 


28.  Yazoo,  etc.,  R.  Co.  v.  Adams,  180 
XJ.  S.  1,  14,  45  L.  Ed.  395;  Oraiidaga  Na- 
tion V.  Thacher,  189  U.  S.  306,  47  L.  Ed. 
826;  Harding  v.  Illinois,  196  U.  S.  78,  88, 
49  L.  Ed.  394.  reaffirmed  in  Robinson  v. 
Wingate,  198  U.  S.  580,  49  L.  Ed.  1171; 
Chicago,  etc.,  R.  Co.  v.  Newell,  198  U. 
S.  579,  49  L.  Ed.  1171;  Scale  v.  Georgia, 
201  U.  S.  642,  50  L.  Ed.  902;  Eureka  Lake 
Co.  v.  Yuba  County,  116  U.  S.  410,  29  L. 
Ed.    671. 

In  the  latter  class  the  statute  requires 
such  right  or  privilege  to  be  "specially 
set  up  and  claimed."  Under  the  second 
class  it  may  be  said  to  be  the  result  of 
the  rulings  in  this  court  that  if  the  fed- 
eral question  appears  in  the  record  in  the 
slate  court  and  was  decided,  or  the  de- 
cision thereof  was  necessarily  involved  in 
tbe  case,  the  fact  that  it  was  not  specially 
set  up  will  not  preclude  the  right  of  re- 
view here.  Columbia  Water  Power  Co. 
V.  Columbia  Street  Railway  Co.,  172  U. 
S.  475,  43  L.  Ed.  521;  Harding  v.  Illinois, 
196  U.  S.  78,  85,  49  L.  Ed.  394,  reaffirmed 
in  Robinson  v.  Wingate,  198  U.  S.  580,  49 
L.  Ed.  1171;  Chicago,  etc.,  R.  Co.  v.  New- 
ell, 198  U.  S.  579,  49  L.  Ed.  1171;  Scale  v. 
Georgia.   201   U.    S.   642,    50   L.   Ed.   902. 

It  affirmatively  appears  that  a  federal 
right  was  "specially  set  up"  sufficiently 
to  give  this  court  authority  to  re-examine 
that  question  on  a  writ  of  error,  "where 
It  clearly  and  unmistakably  appears  from 
the  opinion  of  the  state  court  under  re- 
view that  a  federal  question  was  assumed 
by  the  highest  court  of  the  state  to  be  in 
issue,  was  actually  decided  against  the 
federal  claim,  and  the  decision  of  the 
question  was  essential  to  the  judgment 
rendered.*'  Haire  v.  Rice,  204  U.  S.  291, 
6J  L.  Ed.  490,  citing  San  Jose  Land,  etc., 
C©.  V.  San  Jose  Ranch  Co.,  189  U.  S.  177, 
4?  L.  Ed.  705. 

It  is  true  that  this  court  has  sometimes 
held  that,  if  a  federal  question  appear  in 
the  record  and  was  decided,  or  such  de- 
cision was  necessarily  involved  in  the 
case,  and  that  such  case  could  not  have 
been  determined  without  deciding  such 
question,  the  fact  that  it  was  not  spec'-  lly 
Bet  Up  and  claimed  is  not  conclusive 
against    a    review    here;    but    such    cases 


have  usually,  if  not  always,  arisen  under 
the  first  or  second  clauses  of  §  709,  and 
have  involved  the  validity  of  a  treaty, 
statute  or  authority  exercised  under  the 
United  States,  or  the  validity  of  a  statute 
or  authority  exercised  under  a  state, 
where  such  statute  or  authority  is  alleged 
to  be  repugnant  to  the  constitution  or 
laws  of  the  United  States.  Columbia 
Water  Power  Co.  v.  Columbia  Street 
Railway  Co.,  172  U.  S.  475,  43  L. 
Ed.  521;  Bolln  v.  Nebraska,  176  U.  S.  83, 
91,   44   L.    Ed.   382. 

The  assertion  that  a  judgment  rests 
upon  an  unconstitutional  state  statute,  the 
\alidity  of  which  has  been  drawn  in  ques- 
tion and  sustained,  presents  one  of  a 
class  of  cases  which  may  be  reviewed 
here.  Harding  v.  Illinois,  196  U.  S.  78, 
85,  49  L.  Ed.  394,  reaffirmed  in  Robinson 
V.  Wingate,  198  U.  S.  580,  49  L.  Ed.  1171; 
Chicago,  etc.,  R.  Co.  v.  Newell.  198  U.  S. 
579,  49  L.  Ed.  1171;  Scale  v.  Georgia, 
201   U.   S.   642,   50   L.    Ed.   902. 

Claim  of  right  under  fourteenth  amend- 
ment.— In  the  analysis  of  §  709  of  the  Re- 
vised Statutes  of  the  United  States,  in  Co- 
lumbia Water  Power  Co.  v.  Columbia 
Street  Railway  Co..  172  U.  S.  475,  488.  43  L. 
Ed.  521,  it  was  pointed  out  that  cases  of  the 
character  of  the  one  now  under  considera- 
tion come  within  the  second  class  of  those 
provided  for  in  the  section:  "Where  is 
drawn  in  question  the  validity  of  a  stat- 
ute of,  or  an  authority  exercised  under, 
any  state  on  the  ground  of  their  being  re- 
pugnant to  the  constitution,  treaties  or 
laws  of  the  United  States,  and  the  deci- 
sion is  in  favor  of  their  validity."  Hard- 
ing V.  Illinois,  196  U.  S.  78,  85,  49  L.  Ed. 
394.  reaffirmed  in  Robinson  v.  Wingate, 
198  U.  S.  580,  49  L.  Ed.  1171;  Chicago, 
etc.,  R.  Co.  V.  Newell.  198  U.  S.  579,  49 
L.  Ed.  1171;  Scale  v.  Georgia,  201  U.  S. 
642,   50   L.   Ed.  902. 

29.  Missouri,  etc.,  R.  Co.  v.  Elliott,  184 
U.    S.    530,    533.   46    L.    Ed.    673. 

30.  Harding  v.  Illinois,  196  U.  S.  78,  85, 
49  L.  Ed.  394.  reaffirmed  in  Robinson  v. 
Wingate,  198  U.  S.  580,  49  L.  Ed.  1171; 
Chicago,  etc.,  R.  Co.  v.  Newell,  198  U.  S. 
579,  49  L.  Ed.  1171;  Scale  V.  Georgia,  201 
U.   S.   642,   50   L.   Ed.   902. 


APPEAL  AND  ERROR. 


611 


sitate  the  conclusion  that  a  right  of  a  federal  nature  was  brought  to  the  atten- 
tion of  the  state  court,  yet  if  the  state  court  in  deciding  the  case  has  actually 
-considered,  and  determined  a  federal  question,  although  arising  on  ambiguous 
averments,  then  a  federal  controversy  having  been  actually  decided,  the  right  of 
this  court  to  review  obtains.-^ ^  All  that  is  essential  is  that  the  federal  questions 
must  be  presented  in  the  state  court  in  such  a  manner  as  to  bring  them  to  the 
attention  of  that  tribunal.^^  Where  it  is  shown  by  the  record  that  the  state  court 
considered  and  decided  the  federal  question,  the  purpose  of  the  statute  is  sub- 
served.^'^  The  fact  that  a  state  court,  while  deciding  a  federal  question,  erro- 
neously holds  that  it  is  not  a  federal  one,  does  not  take  the  case  out  of  the  rule 
that  where  a  federal  question  has  been  decided  below,  jurisdiction  exists  to  re- 
view.^* The  result  of  the  contrary  doctrine  would  be  this,  that  no  case  where  the 
question  of  federal  right  had  been  actually  decided 'could  be  reviewed  here  if  the 
state  court,  in  passing  upon  the  question,  had  also  decided  that  it  was  nonfederal 
in  its  character.-^^  If  the  state  court  decides  a  federal  question  which  it  assumes 
is  distinctly  presented  to  it  in  some  way,  that  will  be  sufficient  to  give  the  supreme 
court  jurisdiction.'^" 

In  Petition  for  Rehearing. — And  so  controlling  as  to  the  existence  oi  tlv: 


31.  Oxley  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  660,  41  L.  Ed.  1149;  Missouri. 
etc..  R.  Co.  V.  Elliott,  184  U.  S.  530,  .534, 
46    L.    Ed.    673. 

The  supreme  court  has  jurisdiction  to 
review  the  judgment  on  writ  of  error, 
■when  the  federal  question  is  distinctly 
set  up  in  the  bill,  and  insisted  on  at  every 
stage,  and  the  state  court  could  not  have 
decided  as  it  did  without  overruling  the 
claim.  Otis  Co.  z'.  Ludlow  Mfg.  Co..  201 
U.    S.    140,   50   L.   Ed.   696. 

In  Wilson  v.  Black  Bird  Creek  Marsh 
Co.,  2  Pet.  245,  7  L.  Ed.  412,  the  record 
did  not  show  that  the  constitutionality 
of  an  act  of  a  state  legislature  was  drawn 
in  question;  "but,"  said  the  chief  justice, 
'we  think  it  impossible  to  doubt  that  the 
constitutionality  of  the  act  was  the  ques- 
tion, and  the  only  question,  which  could 
have  been  discussed  in  the  state  court." 
Yazoo,  etc..  R.  Co.  v.  Adams,  180  U.  S. 
],  14,  45  L.  Ed.  395. 

In  Satterlee  v.  Matthewson.  2  Pet.  380, 
7  L.  Ed.  458,  it  was  said  that  if  it  suffi- 
ciently appear  from  the  record  itself  that 
the  repugnancy  of  the  statute  of  a  state 
to  the  constitution  of  the  United  States 
^•as  drawn  in  question,  this  court  has  ju- 
risdiction, though  the  record  does  not  in 
terms  declare  that  this  question  was  raised. 
See,  also,  Crowell  v.  Randell,  10  Pet.  368. 
9  L.  Ed.  458;  Furman  v.  Nichol,  8  Wall. 
44,  19  L.  Ed.  370;  Chicago  Life  Ins.  Co. 
-V.  Needles,  113  U.  S.  574,  28  L.  Ed.  1084; 
Eureka  Lake  Co.  v.  Yuba  County,  116  U. 
S.  410,  29  L.  Ed.  671;  Kaukauna  Water 
Power  Co.  V.  Green  Bay,  etc.,  Co.,  142  U. 
S.  254,  35  L.  Ed.  1004;  Yazoo,  etc.,  R.  Co. 
V.  Adams,  180  U.  S.  1,  14,  15,  45  L.  Ed. 
395. 

As  was  said  by  Chief  Justice  Waite  in 
Chapmnn  v.  Goodnow,  123  U.  S.  540,  548, 
31  L.  Ed.  235;  "If  a  federal  question  is 
fairly  presented  by  the  record,  and  its  de- 
cision is  actually  necessary  to  the  deter- 
mination  of   the    case,   a  judgment   which 


rejects  the  claim,  but  avoids  all  reference 
to  it,  is  as  much  against  the  right,  withiii 
the  meaning  of  §  709  of  the  Revised 
Statutes,  as  if  it  had  been  specifically  re- 
ferred to  and  the  right  directly  refused." 
Yazoo,  etc.,  R.  Co.  v.  Adams,  180  U.  S. 
1,   15,  45   L.   Ed.  395. 

32.  Chicago,  etc..  R.  Co.  v.  Chicago,  166 
U.  S.  226,  41  L.  Ed.  979;  Missouri,  etc.,  R. 
Co.  V.  Elliott,  184  U.  S.  5^0,  534,  46  L.  Ed. 
67.'?. 

33.  Missouri,  etc.,  R.  Co.  v.  Elliott,  184 
U.   S.   530,  534,  46  L.   Ed.  673. 

34.  Missouri,  etc.,  R.  Co.  v.  Elliott,  184 
U.    S.   530,    535,    46    L.    Ed.   673. 

35.  Missouri,  etc.,  R.  Co.  v.  Elliott,  184 
U.  S.   530,  535,  46  L.   Ed.   673. 

36.  Home  for  Incurables  v.  New  York 
City.  187  U.  S.  155,  47  L.  Ed.  117;  Swcr- 
ingen  v.  St.  Louis,  185  U.  S.  38.  46,  46  L. 
Ed.  795;  Mutual  Life  Ins.  Co.  v.  McGrew, 
188  U.  S.  291,  308,  47  L.  Ed.  480,  reaffirmed 
in  Herold  v.  Frank,  191  U.  S.  558,  48  L. 
Ed.  302;  Hughes  v.  Kepley,  191  U.  S.  55  7. 
48  L.  Ed.  301;  Wakefield  v.  Tassell,  16  2 
L.  S.  601.  48  L.  Ed.  583;  Bank  of  Com- 
merce V.  Wiltsie,  189  U.  S.  505.  47  L.  E<I. 
921;  Jacobi  v.  Alabama,  187  U.  S.  133,  136, 
47  L.  Ed.  106;  Mallett  v.  North  Carolina, 
181   U.   S.   589,   45   L.   Ed.   1015. 

If  the  highest  court  of  tli«  state  as- 
sumes that  the  record  sufficiently  pre- 
sents a  question  of  federal  right  and  de- 
cides against  the  party  claiming  such  right, 
we  will  look  no  further,  and  will  proceed 
to  a  consideration  of  that  question,  un- 
less the  decision  is  made  to  rest,  in  part, 
upon  some  ground  of  local  law,  sufficient 
enough  in  itself  to  sustain  the  judgment, 
independently  of  any  question  of  federal 
right.  Home  for  Incurables  z'.  New  York 
City,  187  U.  S.  155,  157,  47  L.  Ed.  117,  re- 
affirmed in  St.  Louis  Expanded  Metel. 
etc..  Co.  V.  Standard  Fireproofing  C©., 
195  U.  S.  627,  49  L.  Ed.  351;  Stuart  v. 
Hauser,  203  U.  S.  585,  51  L.  Ed.  328. 


612 


APPEAL  AND  ERROR. 


federal  question  is  the  fact  that  it  was  actually  considered  and  decided  by  the 
state  court,  that  it  has  been  held,  although  the  general  rule  is  that  the  raising  of 
a  federal  question  in  a  petition  for  rehearing  in  the  highest  court  of  the  state  is 
too  late,  yet  when  a  question  is  thus  raised  and  it  is  actually  considered  and  de- 
cided by  the  state  court,  the  right  to  review  exists.-"" 

Where  Fully  Considered  in  Court's  Opinion. — Under  the  rule  of  this 
court,  requiring  the  opinions  to  be  sent  up  with  the  record,  it  has  been  frequently 
held,  to  be  a  sufficient  compliance  with  the  words  "specially  set  up  and  claimed." 
that  it  was  fully  considered  in  the  opinion  of  the  court  anu  ruled  against  the  plain- 
tiff in   error. ^^ 

Therefore,  where  the  validity  of  a  treaty  or  statute  of  the  United  States 
is  raised,  and  the  decision  is  against  it,  or  the  validity  of  a  statute  is  drawn'  in  ques- 
tion, and  the  decision  is  in  favor  of  its  validity,  this  court  has  repeatedly  held,. 
tliat,  if  the  federal  question  appears  in  the  record  and  was  decided,  or  such  de- 
cision was  necessarily  involved  in  the  case,  and  the  case  could  not  have  been  de- 
termined without  deciding  such  question,  the  fact  that  it  was  not  specially  set  up 
and  claimed  is  not  conclusive  against  a  review  of  such  question  here.^^ 

Nevertheless,  it  is  equally  well  settled  that  the  right  of  review,  dependent  upon 
the  adverse  decision  of  a  federal  question,  exists  only  in  those  cases  wherein  a 
decision  of  the  question  involved  was  brought  in  some  proper  manner  to  the 
attention  of  the  court  and  decided,  or  it  appears  that  the  judgment  rendered 
could  not  have  been  given  without  deciding  it.^" 

In  the  language  of  Mr.  Justice  Brown:    There  are  a  few  case  which  hold 


37.  Mallett  v.  North  Carolina.  181  U.  S. 
589,  592,  45  L.  Ed.  1015;  Missouri,  etc..  R. 
Co.  V.  Elliott,  184  U.  S.  530,  534,  46  L.  Ed. 
€73. 

38.  Murdock  v.  Memphis.  20  Wall.  590, 
633,  22  L.  Ed.  489;  Gross  v.  United  States 
Mortgage  Co..  108  U.  S.  447,  27  L.  Ed.  795; 
Philadelphia  Fire  Ass'n  v.  New  York.  11^ 
U.  S.  lift.  116,  30  L.  Ed.  342;  Egan  v. 
Hart,  165  U.  S.  18«,  41  L.  Ed.  680;  Say- 
ward  V.  Denny,  158  U.  S.  180,  184,  39  L. 
Ed.  941;  Mal'-tt  v.  North  Carolina.  181 
U.  S.  589.  45  L.  Ed.  1015.  overruling  VVil- 
li'ams  v.  Nerris,  12  Wheat.  117,  6  L.  Ed. 
571;  Rector  v.  Ashly.  6  Wall.  142,  18  L. 
Ed.  733;  Gibson  v.  Chouteau,  8  Wall.  .3U, 
19  L.  Ed.  317;  San  Jose  Land.  etc..  Co. 
V.  San  Jose  Ranche  Co.,  189  U.  S.  177, 
179,  47  L.  Ed.  765;  Wedding  v.  Meyler, 
192  U.   S.   573,  581,  48   L.   Ed.   570. 

A*i  opinion  may  be  resorted  to  for  the 
purpose  of  showing  that  a  court  actually 
dealt  with  a  question  presented  by  the 
record,  or  that  a  right  asserted  in  general 
k?rms  was  maintained  and  dealt  with  on 
federal  grounds.  Missouri,  etc.,  R.  Co. 
V.  Elliott,  184  U.  S.  530,  534,  46  L.  Ed. 
67i;  San  Jose  Land,  etc.,  Co.  v.  San  Jose 
Ranche  Co.,  im  U.  S.  177.  179,  180,  47  L. 
Ed.  T65;  German  Savings  Society  v.  Dor- 
mitzer.  192  U.  S.  125,  48  L.  Ed.  373; 
Bort  V.  Smith,  203  U.  S.  129,  134,  51  L. 
E4.   ISl. 

A  motion  to  dismiss  will  not  be  granted 
oa  the  grounds  that  a  federal  question 
was  not  set  up  in  the  court  below,  where 
the  court  ha«  dealt  expressly  with  the 
ccmstitutional  rights  of  the  parties,  and 
oae  of  the  parties  has  insisted  on  those 
rights    at    the    earliest    opportunity.      Tul- 


lock  r.  Mulvane,  184  U.  S.  497.  503,  504, 
46  L.  Ed.  657;  German  Saving  Soci- 
ety V.  Dormitzer,  192  U.  S.  125.  127,  48 
L.   Ed.   373. 

Where  it  does  not  appear  that  the  fed- 
eral character  of  the  question  was  pre- 
sented to  the  supreme  court  of  the  state, 
although  in  the  opinions  of  the  supreme 
court  the  questioiT^  themselves  were  fully 
discussed,  jurisdiction  of  a  writ  of  error 
to  the  state  court  will  not  be  conferred 
on  the  supreme  court  of  the  United  States. 
Howard  7'  Fleming.  191  U.  S.  126,  48  L. 
Ed.  121;  Burt  v.  Smith.  303  U.  S.  129, 
51  L.  Ed.  121. 

39.  Miller  r.  Nicholls.  4  Wheat.  311,  4 
L.  Ed.  578;  Wilson  v.  Black  Bird  Creek 
Marsh  Co..  2  Pet.  245,  7  L.  Ed.  412; 
Satterlee  v.  Mathewson,  2  Pet.  380.  41«, 
7  L.  Ed.  458;  Fisher  r.  Cockerell,  5  Pet. 
248.  8  L.  Ed.  114;  Crowell  v.  Randell,  10 
Pet.  368,  9  L.  Ed.  458;  Harris  v.  Dennie, 
3  Pet.  292,  7  L.  Ed.  683;  Farney  v.  Towle, 
1  Black  350,  17  L.  Ed.  216;  Hoyt  v.  Shel- 
den.  1  Black  518.  17  L.  Ed.  65;  Railroad 
V.  Rock.  4  Wall.  177.  18  L.  Ed.  381;  Fur- 
man  V.  Nichol,  8  Wall.  44,  19  L.  Ed.  370; 
Kaukauna  Water  Power  Co.  v.  Green 
Bay.  etc..  Co.,  142  U.  S.  254.  35  L.  Ed. 
1004;  Columbia  Water  Power  Co.  z:  Co- 
lumbia Street  Railway  Co..  172  U.  S.  475, 
488.  43  L.  Ed.  521;  Telluride,  etc.,  Co. 
V.  Rio  Grande,  etc.,  R.  Co..  175  U.  S.  639. 
647.  44  L.    Ed.   305. 

40.  Fowler  v.  Lamson.  164  U.  S.  252, 
41  L.  Ed.  424;  Clarke  v.  McDade,  165  U. 
S.  168,  172,  41  L.  Ed.  673;  Hardmg  V. 
Illinois,  196  U.  S.  78.  86.  49  L.  Ed.  394, 
reaffirmed  i-n  Rob'nson  •<:•.  Wingate,  198 
U.  S.   580,   49   L.   Ed.  1171;     Chicago,  etc.,. 


APPEAL  AND  ERROR.  613 

that,  where  the  validity  of  a  treaty  or  statute  or  authority  of  the  United  States 
is  raised,  and  the  decision  is  against  it,  or  the  validity  of  a  state  statute  is  drawn 
in  question,  and  the  decision  is  in  favor  of  its  validity,  and  the  federal  question 
appears  in  the  record,  and  was  decided,  or  such  decision  was  necessarily  involved 
in  the  case,  the  fact  that  it  was  not  specially  set  up  and  claimed  is  not  conclusive 
against  a  review  of  such  question  here^^  But  where  the  validity  of  no  statute, 
state  or  federal,  or  authority  thereunder,  is  called  in  question  here,  this  rule  does 
not  apply.-*  2  The  true  and  rational  rule  is  that  this  court  must  be  able  to  see 
clearly,  from  the  whole  record,  that  a  certain  provision  of  the  constitution  or 
act  of  congress  was  relied  on  by  the  party  who  brings  the  writ  of  error,  and  that 
the  right  thus  claimed  by  him  was  denied^^ 

Binding-  Effect  of  State  Practice. — In  this  connection  it  may  be  stated  that 
the  rules  of  practice  prevailing  in  the  state  will  generally  be  recognized.*^ 

cc.  Assignment  of  Reasons  for  Rehearing  or  New  Trial. — This  court  can  ex- 
ercise no  appellate  power  over  the  supreme  court  of  a  state  except  in  a  few  spec- 
ified cases ;  and  the  ground  of  jurisdiction  must  be  stated  with  precision,  and 
the  ruling  of  the  court  to  bring  tTie  case  under  the  25th  section  of  the  judiciary 
act  must  appear  on  the  record  to  have  been  against  the  right  claimed.  Any  rea- 
son assigned  for  a  rehearing  or  a  new  trial  is  not  sufficient.*^ 

dd.  In  Briefs  of  Counsel  and  Oral  Argument. — Under  the  rule  that  this  court 
has  no  jurisdiction  if  it  nowhere  appears  in  the  record  that  the  plaintiff  in  error 
at  any  time  in  the  state  court  claimed  a  right,  title,  privilege  or  immunity  under 
the  constitution  and  laws  or  treaties  of  the  United  States,  or  in  any  manner 
specially  set  up  or  claimed  the  protection  of  any  clause  of  the  constitution  of 
the  United  States,  it  is  held,  that  where  there  is  printed  in  the  record,  as  filed 
in  this  court,  what  purports  to  be  an  extract  from  the  closing  brief  of  counsel 
presented  to  the  supreme  court  of  the  state,  in  which  such  a  federal  question  is 
discussed,  and  it  is  asserted  orally  at  bar  that  in  the  oral  argument  made  in  the 
supreme  court  of  the  state  a  claim  under  the  federal  constitution  was  presented, 
this  is  insufficient  to  show  that  there  was  a  federal  question  raised  below.  Be- 
cause the  matters  referred  to  form  no  part  of  the  record  and  are  not  adequate 
to  create  a  federal  question  when  no  such  question  was  necessarily  decided  be- 
low, and  the  record  does  not  disclose  that  such  issues  were  set  up  or  claimed  in 
any  proper  manner  in  the  courts  of  the  state.*^     Although  reference  may  have 

R.  Co.  7'.  Newell,  198  U.  S.  579.  49  L.  Ed.  43.  Bridge  Proprietors  v.  Hoboken,  etc., 

1171;      Seale    v.    Georgia,    201    U.    S.    642,  Co..  1  Wall.  116,  143.   17   L.   Ed.  571;   Chi- 

50   L.    Ed.   902.  cago,  etc..  R.  Co.  v.  McGuire,  196  U.  S.  128, 

Where   no    definite    issue    as    to   the   va-  133.    49    L.    Ed.    413,    reaffirmed    in    Skan- 

lidity   of   a    state    statute    is    distinctly   de-  eateles    Paper   Co.  v.   Syracuse,   201   U.    S. 

ducible    from    the    record,    no    decision    in  642,  50  L.   Ed.  901. 

favor    of    its    validity    appears    therefrom,  44.    Hulbert   v.    Chicago,   202   U.    S.   275, 

and   the    judgment    might   have   rested    on  281,   50   L.   Ed.   1026,  citing  Erie   R.   Co.  v. 

ffTOunds     not     involving    its     validity,     the  Purdy,  185  U.  S.  148,  46  L.   Ed.  847. 

supreme   court    has   no   jurisdiction   to   re-  Where  by  the  state  practice,  errors  not 

view    the    judgment    of    the    highest    state  assigned,  and  errors  assigned  but  not  no- 

COHrt   upon   the    ground   that    the   validity  ticed    or    relied    on   in    the    brief    or   argu- 

of  a  state   statute   was   drawn   in   question  ment  of  counsel,  will  not  be  reviewed  by 

therein    and    its    validity   sustained.      Caro  the   highest   court   of   the   state,   such   rul« 

V.  Davidson,  197  U.  S.  197,  49  L.  Ed.  723;  of  practice  will   be  recognized   by  the  so- 

Seale  v.  Georgia,  201  U.  S.  642,  50  L.  Ed  preme    court    of    the    United    States,    and 

902.  where   such   errors   relate   to  federal   ques- 

41.  Columbia  Water  Power  Co.  v.  Co-  tions.  the  decision  of  the  state  court  is 
lumbia  Street  Railway  Co.,  172  U.  S.  475,  not  reviewable  by  the  supreme  court  of 
488.  43  L.  Ed.  521;  Chicago,  etc..  R.  Co.  the  United  States.  Hulbert  v.  Chicago. 
V.  McGuire,  196  U.  S.  128,  132,  49  L.  Ed.  202  U.  S.  275,  50  L.  Ed.  1026.  citing  Erie 
413.  reaffirmed  in  Skaneateles  Paner  Co.  R.  Co.  v.  Purdy.  185  U.  S.  148,  46  L.  Ed. 
V.   Syracuse.  201  U.  S.  642.   50.  L.   Ed.   901.  S47. 

42.  Chicago,  etc.,  R.  Co.  v.  McGuire,  45.  La  Lande  v.  Treasurer  of  Louisiana, 
196  U.  S.  128,  132,  49  L.  Ed.  413.  reaffirmed  18   How.  192,  15  L.   Ed.  350. 

in  Skaneateles  Paner  Co.  v.  Syracuse.  201  46.   Zadig  v.   Baldwin,   16P  U.   S.   49.^.   41 

U.  S.  642,  50  L.  Ed.  901.  L-   Ed.   10S7,   citing   Pirn  v.  St.   Louis,   165 


614 


APPEAL  AND  ERROR. 


been  made  in  the  briefs  of  counsel  in  the  supreme  court  of  the  state  to  a  treaty^ 
yet  if  those  references  did  not  specially  set  up  or  claim  any  right  as  secured  by 
the  treaty,  nor  were  the  briefs  made  part  of  the  record  by  any  certificate  or  entry 
duly  made,  and  the  attention  of  this  court  is  not  called  to  a  statute  or  rule  of 
court  in  the  state  making  them  such,  this  is  not  sufificient.-*" 

ee.  Certificate  of  Presiding  Judge  of  State  Court — aaa.  Office  of  Certificate. — 
The  office  of  the  certificate,  as  it  respects  the  federal  question,  is  to  make  more 
specific  and  certain  that  which  is  too  general  and  indefinite  in  the  record.^^ 


U.  S.  273,  41  L.  Ed.  714;  Chicago,  etc., 
R.  Co.  V.  Chicago.  164  U.  S.  454,  457,  41 
L.  Ed.  511;  Dibble  v.  Bellingham  Bay 
Land  Co.,  163  U.  S.  63,  70,  41  L.  Ed.  72; 
Ansbro  v.  United  States,  159  U.  S.  695, 
40  L.  Ed.  310;  Sayward  r.  Denny.  158 
U.  S.  180,  39  L.  Ed.  941,  reaffirmed  in 
Gates  V.  Commissioners.  183  U.  S.  693, 
46  L.  Ed.  393;  Ross  v.  King,  172  U.  S. 
641,  43  L.  Ed.  1180;  Mutual  Life  Ins.  Co. 
V.  McGrew.  188  U.  S.  291,  309,  47  L.  Ed. 
480.  Compare  New  York,  etc.,  R.  Co.  v. 
New  York,  186  U.  S.  269.  46  L.  Ed.  1158; 
Onandaga  Nation  v.  Thacher,  189  U.  S. 
366,    47    L.    Ed.    826. 

47.  Mutual  Life  Ins.  Co.  v.  McGrew, 
188  U.  S.  291.  47  L.  Ed.  480,  reaffirmed 
in  Huber  v.  Jennings-Heywood  Oil  Syn- 
dicate, 201  U.  S.  641,  50  L.  Ed.  901;  Her- 
ald V.  Frank,  191  U.  S.  558,  48  L.  Ed.  302; 
Hughes  V.  Kepley,  191  U.  S.  557.  48  L.  Ed. 
301;  WakefieW  v.  Tassell,  192  U.  S.  601, 
48  L.  Ed.  583;  Bank  of  Commerce  v. 
Wiltsie.   189   U.    S.    505,    47   L.    Ed.    921. 

48.  Office  of  certifieate. — Brown  v.  .\t- 
well,  92  U.  S.  327,  330,  23  L.  Ed.  511; 
Commercial  Bank  v.  Buckingham,  5  How. 
317,  341,  12  L.  Ed.  169;  Lawler  v.  Walker, 
14  How.  149,  154,  14  L.  Ed.  364;  Railroad 
?■  Rock,  4  Wall.  117,  180,  18  L.  Ed.  381; 
Parmelee  v.  Lawrence,  11  Wall.  36,  38, 
20  L.  Ed.  48;  Powell  v.  Brunswick  County, 
150  U.  S.  433,  37  L.  Ed.  1134;  Dibble  r. 
Bellingham  Bay  Land  Co.,  163  U.  S.  63, 
69,  41  L.  Ed.  72;  Marvin  v.  Trout,  199  U. 
S.   212,   50   L.    Ed.    157. 

Suit  to  quiet  title.— In  Dibble  v.  Bel- 
lingham Bay  Land  Co.,  163  U.  S.  63,  41 
L.  Ed.  72,  a  suit  was  brought  in  a  state 
court  claiming  a  decree  quieting  the  plain- 
tiff's title  to  certain  lands  therein  de- 
scribed and  establishing  the  existence  and 
validity  of  a  certain  power  of  attorney 
alleged  to  have  been  lost  without  having 
been  recorded.  In  its  opinion  the  su- 
preme court  of  the  state,  after  stating  the 
case,  said:  "The  proof  of  two  facts  was 
attempted  by  the  respondent,  the  estab- 
lishment of  either  of  which  would  be  fatal 
to  appellant's  claim.  The  facts  attempted 
to  be  proved  were  as  follows:  1st.  That 
plaintiff's  title  to  the  land  in  controversy 
had  been  acquired  by  adverse  possession; 
2d.  That  the  wife  had  executed  a  power 
of  attorney  to  her  husband  authorizing 
him  to  sell  the  disputed  premises."  After 
overruling  a  contention  by  the  appellant 
that  under  the  pleadings  as  framed  no 
testimony  tending  to  prove  adverse  hold- 


ing was  admissible,  the  court  took  up  the 
first  proposition  and  held  that  the  plaintiff 
had  established  a  title  by  adverse  posses- 
sion during  the  statutory  period;  that  the 
adverse  possession  was  actual,  notorious, 
exclusive  and  continuous,  under  claim  or 
color  of  title.  Having  reached  this  result 
the  court  added:  "This  renders  an  inves- 
tigation of  the  second  proposition  un- 
necessary." Thus  it  appears  that  the 
decision  of  the  court  rested  on  a  ground" 
that  it  did  not  involve  the  question  of  the 
validity  of  the  power  of  attorney  and  deed. 
This  second  proposition  which  was  duly 
certified  to  by  the  chief  justice  of  the 
state  supreme  court  was  whether  the  said 
power  of  attorney  and  the  deed  made 
under  it,  which,  by  the  law  at  the  time 
of  its  making  were  absolutely  void,  were 
made  valid  by  subsequent  act  of  the  leg- 
islature and  whether  if  so  made  valid,  it 
was  not  in  violation  of  the  fourteenth 
amendment  of  the  constitution.  But  the 
court  held,  that  although  the  record  might 
disclose  that  a  question  had  been  raised 
and  decided  adversely  to  a  party  claiming 
the  benefit  of  a  provision  of  the  United 
States  constitution,  yet,  as  another  ques- 
tion not  federal  had  also  been  raised  and 
decided  against  such  party,  and  the  de- 
cision of  the  latter  question  was  sufficient 
notwithstanding  the  federal  question  to 
sustain  the  decision,  this  court  would  not 
review  the  judgment.  Nor  can  this  re- 
sult be  in  any  respect  controlled  by  the 
certificate  of  the  presiding  judge,  for  the 
office  of  the  certificate,  as  respects  the 
federal  question,  is  to  make  more  certain 
and  specific  what  is  too  general  and  in- 
definite on  the  record,  but  is  incompetent 
to  originate  the  question. 

Impairment  of  obligation  of  contract. — 
Where  the  statutes  complained  of  do  not 
appear  in  the  record,  the  omission  cannot 
be  supplied  by  the  certificate  of  the  chief 
justice  of  the  supreme  court  of  the  state 
that  upon  the  arguments  of  the  case  the 
validity  of  subsequent  legislation  of  the 
state  was  drawn  in  question,  upon  the 
ground  of  its  repugnancy  to  the  constitu- 
tion of  the  United  States.  The  court  said: 
"We  have  repeatedly  held  that  such  cer- 
tificate is  insufficient  to  give  us  jurisdic- 
tion where  it  does  not  appear  in  the 
record  and  that  its  office  is  to  make  more 
certain  and  specific  what  is  too  general 
and  indefinite  in  the  record.  Lawler  v. 
Walker,  14  How.  149,  14  L.  Ed.  364;  Gross 
V.  United  States  Mortgage   Co.,  108  U.  S- 


APPEAL  AND  ERROR. 


615 


bbb.  Necessity  of  Certificate. — The  certificate  is  not  necessary  to  give  this 
court:  jurisdiction,  where  the  proceedings  upon  their  face  show  that  these  ques- 
tions arose,  and  how  they  were  decided.^^ 

ccc.  Form  and  Sufficiency  of  Certificate. — Where  the  supreme  court  of  a  state 
certified  that  there  was  "drawn  in  question  the  vaHdity  of  statutes  of  the  state 
of  Ohio,"  etc.,  without  naming  the  statutes,  this  certificate  is  not  sufficiently 
definite  to  give  jurisdiction  to  this  court  under  the  25th  section  of  the  judiciary 
act.^o  A  certificate  from  the  supreme  court  of  Iowa  (lately  a  territory)  that  in 
a  case  brought  here  from  its  final  judgment,  the  validity  of  the  partition  law  of 
Iowa  territory,  approved  January  4th,  1839,  was  drawn  in  question,  on  th^ 
ground  that  the  same  was  in  conflict  with  the  ordinance  of  1787,  the  constitution 
of  the  United  States,  the  treaties  and  laws  thereof,  the  objections  thereto  over- 
ruled, and  the  statute  held  to  be  valid  against  the  rights  and  interests  of  the 
defendant,  as  claimed  by  them,  presents  the  constitutional  objection  in  too  gen- 
eral a  form  to  give  this  court  jurisdiction  under  the  25th  section  of  the  judiciary 
act.^^  Where  a  certificate,  coming  up  with  the  record  from  the  highest  court  of 
law  or  equity  of  a  state,  certifies  only  that  on  the  "hearing"  of  the  case  a  party 
"relied  upon"  such  and  such  provisions  of  the  constitution  of  the  United  States, 
"insisting"  that  the  effect  was  to  render  an  act  of  congress  void,  as  unconstitu- 
tional, which  said  claim,  the  record  went  on  to  say.  "was  overruled  and  disal- 
lowed by  this  court,"  and  the  record  itself  shows  nothing  except  that  the  statute 
which  it  was  argued  contravened  these  provisions,  was  drawn  in  question,  and 
that  the  decision  was  in  favor  of  the  statute,  and  of  the  rights  set  up  by  the 
party  relying  on  it ;  no  writ  of  error  lies  from  this  court  to  such  highest  state 
court  under  the  twenty-fifth  section  of  the  judiciary  act  of  1789.^- 

ddd.  Weight  and  Sufficiency. — In  General. — This  court  must  determine  for 
itself  whether  the  suit  really  involves  any  federal  question  which  will  entitle  it 
to  review  the  judgment  of  the  state  court  under  §  709  of  the  Revised  Statutes.^-^ 


477,  27  L.  Ed.  795.  It  is  said  in  Lawler's 
case  that  'the  statutes  complained  of  in 
this  case  should  have  been  stated.  With- 
out that  the  court  cannot  apply  them  to 
the  subject  matter  of  litigation  to  deter- 
mine whether  or  not  they  have  violated 
the  constitution  or  laws  of  the  United 
States.'  See,  also,  Railroad  v.  Rock, 
4  Wall.  177,  18  L.  Ed.  381;  Parmelee  v. 
Lawrence,  11  Wall.  36,  20  L-  Ed.  48; 
Powell  V.  Brunswick  County,  150  U.  S. 
433,  37  L.  Ed.  1134."  Yazoo,  etc..  R.  Co. 
V.  Adams,  180  U.  S.  41.  45  L.  Ed.  415. 

Interstate  commerce  clause. — A  certifi- 
cate of  the  chief  justice  of  the  supreme 
court  of  a  state,  given  when  the  writ  of 
error  was  applied  for,  to  the  effect  that 
the  supreme  court  of  the  state  was  of 
opinion  "that  the  statutes  and  laws  of 
Tennessee  were  not  in  conflict  with  the 
act  of  congress  regulating  interstate  com- 
merce, and  that  the  act  of  congress  did 
not  control  the  shipments  in  controversy," 
does  not  come  within  the  rule  that  the 
certificate  of  the  presiding  judge  of  a 
state  court  can  make  more  certain  and 
specific  what  is  too  general  and  indefinite 
in  the  record,  where  there  is  nothing  in 
the  record  to  specialize,  and  it  is  less 
open  to  conjecture  than  the  certificate. 
Louisville,  etc..  R.  Co.  v.  Smith,  etc.,  Co.. 
204  U.   S.   551,  561,  51   L.   Ed.   612. 

49.  Ableman  v.  Booth,  21  How.  506, 
509.  16  L.  Ed.  169. 

Where,  after  judgment  in   the   supreme 


court  of  Wisconsin,  and  before  writ  of 
error  was  sued  out,  the  state  court  entered 
on  its  record  that,  in  such  final  ja<lgmet>t 
the  validity  of  certain  acts  of  congress 
were  drawn  in  question,  and  the  decision 
of  the  court  was  against  their  validity  re- 
spectively; held,  that  this  certificate  was 
not  necessary  to  give  this  court  jurisBic- 
tion,  because  the  proceedings  upon  their 
face  show  that  these  questions  arose,  and 
how  they  were  decided.  Ableman  v. 
Booth,  21   How.  506,  16  L-  Ed.   169. 

50.  Lawler  v.  Walker,  14  How.  149,  14 
L.  Ed.  364,  following  Commercial  Bank  v. 
Buckingham,   5    How.    317,    12   L.    Ed.    169. 

51.  Messenger  v.    Mason,   10  Wall.   507. 

19  L.  Ed.  1028,  citing  Lawler  v.  Walker. 
14  How.  149,  14  L.  Ed.  364;  Hoyt  v.  Shel- 
don, 1  Black  518,  17  L.  Ed.  65;  Commer- 
cial Bank  v.  Buckingham,  5  How.  317,  12 
L.  Ed.  169;  Porter  v.  Foley,  24  How.  415, 
16  L.  Ed.  740;  Maxwell  v.  Newbold,  18 
How.    511,   15   L.    Ed.   506. 

52.  Roosevelt  v.  Meyer,  l  Wall,  512,  17 
L.  Ed.  500.  citing  Gordon  v.  Caldcleugh, 
3  Cranch  268,  2  L-  Ed.  436;  Fulton  z'.  Mc- 
Afifee,  16  Pet.  149,  10  L.  Ed.  918;  Strader 
V.  Baldwin,  9  How.  261,  13  L.  Ed.  130; 
Linton  V.  Stanton,  12  How.  423,  13  L.  Ed. 
1050. 

53.  Parmelee  v.   Lawrence,  11  Wall.  36, 

20  L.  Ed.  48;  Brown  v.  Atwell,  92  U.  S. 
327,  23  L.  Ed.  511;  Gross  v.  United  States 
Mortgage  Co.,  108  U.  S.  477,  27  L.  Ed. 
795j    Felix  v.   Scharnweber,   125   U.   S.   54, 


616 


AFFHAL  AND  HKKUR. 


And  the  certificate  of  the  presiding  judge  of  the  state  court,  as  to  the  existence 
ef  grounds  upon  which  our  interposition  might  be  successfully  invoked,  while 
always  regarded  with  respect,  cannot  confer  jurisdiction  upon  this  court  to 
re-examine  the  judgment  below. ^'*  A  certificate  of  the  presiding  judge  of  a 
state  supreme  court,  given  after  a  decision  certifying  that  a  federal  question 
was  duly  considered  and  decided  adversely  to  the  plaintiflf  in  error,  cannot  per  se 
give  jurisdiction  to  this  court,  where  on  the  face  of  the  record  proper  and  from 
the  opinions,  the  reasonable  inference  is  that  the  court  may  have  denied  the 
application  for  a  rehearing  in  the  mere  exercise  of  its  discretion,  or  declined  to 
pass  on  the  alkged  constitutional  question,  in  terms,  because  it  was  suggested 
too  late.^ 


31  L.  Ed.  687;  Roby  v.  Colehour,  146  U. 
S.  153,  36  L.  Ed.  922;  Powell  v.  Bruns- 
wick County,  150  U.  S.  433,  37  L.  Ed. 
1134;  Newport  Light  Co.  v.  Newport,  151 
U.  S.  527,   536,  .38   L.   Ed.  259. 

54.  Certificate  cannot  confer  jurisdic- 
tion.— Powell  V.  Brunswick  County,  150 
U.  S.  433,  439,  37  L-  Ed.  1134;  Sayward  v. 
Denny,  158  U.  S.  180,  183,  39  L.  Ed.  941, 
reaffirmed  in  Texas,  etc.,  R.  Co.  z'.  Gay, 
167  U.  S.  745,  42  L.  Ed.  1209;  Allen  v. 
Arguimbau,  198  U.  S.  149,  49  L.  Ed.  990; 
Lawler  v.  Walker,  14  How.  149,  14  L-  Ed. 
364;  Railroad  v.  Rock,  4  Wall.  177,  18 
L.  Ed.  381;  Parmelee  v.  Lawrence,  11 
Wall.  36,  20  L.  Ed.  48;  Caperton  v.  Bow- 
yer,  14  Wall.  216,  20  L.  Ed.  882;  Brown  v. 
Atwell,  92  U.  S.  327,  23  L.  Ed.  511;  Gross 
V.  United  States  Mortgage  Co.,  108  U.  S. 
477,  27  L.  Ed.  795;  Felix  v.  Scharnweber, 
125  U.  S.  54,  31  L.  Ed.  687;  Roby  v.  Cole- 
hour,  1-46  U.   S.  153,  36   L.   Ed.  922. 

The  certificate  of  the  chief  justice  of  the 
court  of  appeals  of  Kentucky,  while  en- 
titled to  respectful  consideration,  does  not 
in  itself  establish  the  existence  of  a  fed- 
eral question  and  confer  jurisdiction  upon 
rtiis  court  to  re-examine  the  judgment 
complained  of.  Newport  Light  Co.  r. 
Newport,    151    U.    S.    527,    536,    38    L.    Ed. 

The  fact  that  the  transcript  contains  a 
certificate  of  the  chief  justice  of  the  high- 
est court  of  a  state  certifying  that  fed- 
eral questions  were  raised  in  a  state  court, 
is  not  sAiflFicient  to  give  the  supreme  court 
©f  the  United  States  jurisdiction  to  re- 
■\4ew  the  jtidgment  of  the  state  court, 
where  it  does  not  appear  that  the  cer- 
tificate was  made  by  order  of  that  court 
while  the  case  was  before  it  or  under  its 
control,  and  it  does  not  elsewhere  appear 
in  the  record  that  the  federal  questions 
were  raised  in  the  state  court.  Home  for 
Incurables  v.  New  York  City,  187  U.  S.  155, 
47  L.  Ed.  117,  reaffirmed  in  St.  Louis 
Expanded  Metal,  etc..  Co.  v.  Standard  Fire- 
proofing  Co.,  195  U.  S.  627,  49  L.  Ed. 
351;  Stuart  v.  Hauser,  203  U.  S.  585,  51 
L.   Ed.   328. 

The  chief  justice  of  the  supreme  court 
of  Ohio  made  and  signed  a  certificate  that 
the  question  whether  a  special  assessment 
VTAS  in  violation  of  the  fourteenth  amend- 
ment   was    submitted    to    the    court,    and 


that  the  court  decided  that  it  was  not. 
The  record  did  not  show  that  any  federal 
question  was  raised  prior  to  judgment, 
but  it  appeared  in  the  petition  for  the 
writ  of  error  from  the  supreme  court  of 
the  United  States,  aed  accompanying  as- 
signment of  errors.  It  was  held,  that  the 
certificate  of  the  chief  justice  could  not 
confer  jurisdiction.  Henkel  v.  Cincinnati, 
177  U.  S.  170,  44  L.  Ed.  720,  citing,  with 
approval,  Parmelee  v.  Lawrence,  11  Wall. 
36,  20  L.  Ed.  48;  Powell  v.  Brunswick 
Co.,  150  U.  S.  433,  439,  37  L-  Ed.  1134; 
Dibble  v.  Bellingham  Bay  Land  Co.,  163 
U.   S.   63,  6-9,   41   L.   Ed.   72. 

55.  Henkel  v.  Cincinnati,  177  U.  S.  170, 
44  L.  Ed.  720;  Dibble  v.  Bellingham  Bay 
Land  Co.,  163  U.  S.  63,  41  L.  Ed.  72; 
Fullerton  v.  Texas,  196  U.  S.  192,  49  L. 
Ed.  443;  Western  Tie,  et<:.,  Co.  v.  Brown, 
196  U.  S.  502,  507,  49  L.  Ed.  571. 

It  is  wen  settled,  in  this  court,  that  a 
certificate  from  a  presiding  judge  of  the 
state  court,  made  after  the  decision  of  the 
case  in  that  court,  to  the  eflFect  that  a 
federal  question  was  considered  and  de- 
cided by  the  court  adversely  to  the  plain- 
tiff in  error,  cannot  confer  jurisdiction  on 
this  court,  where  the  record  does  not 
otherwise  show  it  to  exist;  that  the  effect 
of  such  a  certificate  is  to  make  more  cer- 
tain and  specific  what  is  too  general  and 
indefinite  in  the  record  itself,  but  it  is  in- 
competent to  originate  the  federal  ques- 
tion. Marvin  v.  Trout,  199  U.  S.  212,  223, 
50  L.  Ed.  157;  Dibble  v.  Bellingham  Bay 
Land  Co.,  163  U.  S.  63,  41  L.  Ed.  72; 
Henkel  v.  Cincinnati,  177  U.  S.  170,  44  L. 
Ed.  720;  Fullerton  v.  Texas,  196  U.  S. 
192,  49   L.    Ed.   443. 

Allowance  of  writ  by  chief  judge  of 
state  court. — The  allowance  of  a  writ  of 
error  from  the  highest  state  court  to  the 
supreme  court  of  the  United  States,  by 
the  chief  justice  of  the  state  court,  upon 
the  ground  that  federal  questions  are  in- 
volved, is  not  sufficient  to  give  the  su- 
preme court  of  the  United  States 
jurisdiction  to  review  the  judgment  of 
the  state  court,  where  the  record  does  not 
show  that  the  federal  questions  were 
properly  raised  in  the  state  court.  Hul- 
bert  V.  Chicago,  202  U.  S.  275,  50  L.  Ed. 
lO'^O.  citing  Marvin  v.  Trout,  199  U.  S. 
212,   50   L.   Ed.   157, 


AFFHAL  A\D  ERROR. 


617 


Mr.  Justice  Harlan  states  the  rule  as  follows:  While  a  certificate  of  the 
chief  justice  of  the  highest  court  of  a  state  is  entitled  to  great  respect,  its  office 
being  to  make  that  more  certain  and  specific  which  is  too  general  anu  indefinite 
in  the  record,  it  is  insufficient  in  itself  to  give  the  supreme  court  jurisdiction,  or 
to  authorize  it  to  determine  federal  questions  that  do  not  appear,  in  any  form, 
from  the  record,  to  have  heen  brought  to  the  attention  of  the  state  court.^^' 

Cannot  Supply  Want  of  Proof  of  Jurisdiction.— A  certificate  of  the  chief 
justice  of  the  state  court  that  a  federal  question  arose  and  was  decided  against 
the  plaintiff  in  error,  cannot  supply  the  want  of  all  evidence  to  that  effect  ni  the 
record.  As  has  been  more  than  once  observed  by  this  court,  the  office  of  the 
certificate,  as  it  respects  the  federal  question,  is  to  make  more  certain  and  spe- 
cific what  is  too  general  and  indefinite  in  the  record,  but  is  incompetent  to  origi- 
nate  the  question.-"'" 

Construction  of  Certificate. — When  a  certificate  of  the  presiding  justice 
of  the  highest  co'jrt  of  a  state  mentions  that  a  certain  federal  question  was 
raised  and  decided  in  his  court,  and  does  not  state  that  any  other  was,  this 
silence  justifies  the  conclusion  that  none  other  was;  especially  when  a  decision 


56.  Powell  V.  Brunswick  County.  150 
U.  S.  433,  439,  37  L.  Ed.  1134;  Newport 
Light  Co.  V.  Newport,  151  U.  S.  527.  537, 
38  L.  Ed.  259;  Yazoo,  etc.,  R.  Co.  v. 
Adams,  180  U.  S.  41,  47,  45  L-  Ed.  415; 
Felix  V.  Scharnweber.  125  U.  S.  54,  59.  31 
L.  Ed.  687;  Home  for  Incurables  v.  New 
York  City,  187  U.  S.  155,  158,  47  L.  Ed. 
117,  reaffirmed  in  St.  Louis  Expanded 
Metal,  etc..  Co.  v.  Standard  Fireproofing 
Co.,  195  U.  S.  627.  49  L.  Ed.  351;  Stuart 
V.   Hauser,  203  U.  S.  585,  51  L.   Ed.  328. 

57.  Parmelee  r.  Lawrence.  11  Wall.  36. 
20  L.  Ed.  48;  Brown  z\  Atwell,  92  U.  S 
327,  23  L.  Ed.  511;  Adr.ms  County  v.  Bur- 
lington, etc.,  R.  Co..  112  U.  S.  123,  28  L. 
Ed.  678;  Felix  v.  Scharnweber,  125  U.  S. 
54.   31    L.    Ed.   687. 

Although  a  certificate  of  the  presiding 
justice  of  the  highest  court  of  a  state, 
that  there  was  drawn  in  question  the 
validity  of  an  act  of  the  state,  on  the 
ground  that  it  was  repugnant  to  the  con- 
stitution of  the  LTnited  States,  and  that 
the  decision  was  in  favor  of  its  validity, 
is  entitled  to  much  weight,  yet  where  evi- 
dentlj'  that  court  had  nothing  before  it 
but  an  exception  taken  and  signed  in  the 
subordinate  court  which  was  clearly  in- 
suflficient  to  raise  such  a  question,  or  to 
show  that  it  was  decided  in  a  way  to  give 
this  court  jurisdiction,  such  certificate  is 
not  conclusive  to  show  that  a  federal 
question  was  raised  in  the  case.  Caper- 
ton  V.  Bowyer,  14  Wall.  216,  20  L.  Ed. 
882. 

Where  no  question  of  a  conflict  of  a 
state  law  with  the  constitution  of  the 
United  States  was  made  in  the  pleadings, 
nor  in  the  evidence,  nor  at  the  hearing  in 
the  court  where  the  suit  was  brought;  and 
the  question  was  first  made  in  the  su- 
preme court  where  the  certificate  of  the 
presiding  judge  showed  only  that  it  was 
taken  in  argument  and  overruled,  the  writ 
wpc  flivi-nissed.  Pnrmelee  v.  Lawrence,  11 
Wall.  36.  20  L.  Ed.  48. 

And  in  Parmelee  ?'.  Lawrence,  11  Wall. 


36,  38,  20  L.  Ed.  48— where  the  question 
arose  as  to  the  efifect  to  be  given  to  the 
certificate  of  the  chief  justice  of  the  state 
court,  showing  that  a  federal  question 
was  raised  and  decided  adversely  to  the 
party  bringing  the  case  here  for  review 
— it  was  said:  "If  this  court  should,  en- 
tertain jurisdiction  upon  a  certificate 
alone,  in  the  absence  of  any  evidence  of 
the  question  in  the  record,  then  the  su- 
preme court  of  the  state  can  give  the 
jurisdiction  in  every  case  where  the  ques- 
tion is  made  by  counsel  in  argument." 
To  the  same  effect  are  Lawler  z'.  Walker, 
14  How.  149,  14  L.  Ed.  364.  and  Railroad 
V.  Rock,  4  Wall.  177.  18  L.  Ed.  381;  Gross 
V.  United  States  Mortgage  Co.,  108  U.  S. 
477,  484,   27    L.    Ed.   795. 

The  25th  section  of  the  act  to  estab- 
lish the  judicial  courts  of  the  United 
States,  requires  something  more  definite 
than  a  certificarte  that  there  was  drawn  in 
question  the  validity  of  the  statutes  of  a 
slate,  to  give  to  this  court  jurisdiction. 
The  conflict  of  a  state  law  with  the  con- 
stitution of  the  United  States,  and  a  de- 
cision by  a  state  court  in  favor  of  its 
validity,  must  appear  on  the  face  of  the 
record,  before  it  can  be  re-examined  in 
this  court.  It  must  appear  in  the  plead- 
ings of  the  suit,  or  from  the  evidence  in 
the  course  of  trial,  in  the  instructions 
:isked  for,  or  from  exceptions  taken  to 
the  ruling  of  the  court.  It  must  be  that 
such  a  question  was  necessarily  involved 
in  the  decision,  and  that  the  state  court 
would  not  have  given  a  judgment  without 
deciding  it.  The  language  of  the  section 
is  that  no  other  cause  can  be  assigned, 
or  shall  be  regarded  as  a  ground  of  re- 
versal, than  such  as  appears  on  the  face 
of  the  record.  This  certificate  is,  that  the 
supreme  court  of  Ohio  held  that  certain 
statutes  of  Ohio  were  valid,  which  had 
been  alleged  to  be  in  violation  of  the 
constitution  of  the  United  States,  without 
naming  what  those  statutes  were.  This 
is   neither   within   the   letter   nor   spirit   of 


618 


APPEAL  AXD  ERROR. 


on  the  matter  where  a  second  federal  question  is  alleged  to  have  been  passed 
on  may  have  been  well  decided  on  many  other  grounds  not  federal.^^ 

Qualifications  of  Rule. — But  while  the  certiticate  from  the  chief  justice 
of  the  state  court  is.  in  itself,  and  without  reference  to  the  record,  insufficient 
to  confer  jurisdiction  upon  this  court  to  re-examine  the  judgment  below,^^  it 
is  entitled  to  much  weight.*^"  It  is  elementary  that  the  certificate  of  a  court  of 
last  resort  of  a  state  may  not  import  a  federal  question  into  a  record  where 
otherwise  such  question  does  not  arise.  It  is  equally  elementary  that  such  a 
certificate  may  serve  to  elucidate  the  determination  whether  a  federal  question 
exists.®  1  While  a  certificate  from  the  state  court  that  the  validity  of  state  leg- 
islation was  drawn  in  question  upon  the  ground  of  its  impairing  the  obligation 
of  contracts,  and  that  the  decision  was  in  favor  of  the  validity  of  such  legisla- 
tion, is  insufficient  to  give  the  supreme  court  jurisdiction,  wliere  such  jurisdic- 
tion does  not  appear  in  the  record,  it  may  be  resorted  to,  in  the  absence  of  opin- 
ion by  the  state  court,  to  show  that  a  federal  question  which  was  otherwise 
raised  in  the  record,  was  actually  passed  upon  by  the  court.*^^ 

Where  Certificate  Is  Made  Part  of  Record. — Where  the  certificate  is 
made  by  the  court  and  is  ordered  by  it  to  be  attached  to  and  form  part  of  the 
record,  it  may,  perhaps,  be  sufficient  to  show  that  questions  of  a  federal  nature 
were  before  that  court  and  decided  by  it.'^^ 

ff.   Time  of    Claiming    Federal    Question — aaa.  In  General. — It    is    also    well 


the  act.  If  permitted  it  would  make  the 
state  courts  judges  of  the  jurisdiction  of 
this  court,  and  might  cause  them  to  take 
jurisdiction  in  cases  in  which  conflicts 
between  the  state  laws  and  the  constitu- 
tion and  the  laws  of  the  United  States 
did  not  exist.  The  statutes  complained  of 
should  be  stated.  Without  that,  the 
court  cannot  apply  them  to  the  sub- 
ject matter  of  litigation,  to  deter- 
mine whether  or  not  they  violated 
the  constitution  or  laws  of  the  United 
States.  This  court  has  already  passed 
upon  a  certificate  of  a  like  kind  from 
Ohio,  in  the  case  of  the  Commercial  Bank 
V.  Buckingham,  5  How.  317,  12  L-  Ed. 
169.  Lawler  v.  Walker,  14  How.  149, 
152,   14  L.   Ed.   364. 

58.  Caperton  v.  Bowyer,  14  Wall.  216, 
20  L.  Ed.  882. 

59.  Roby  v.  Colehour,  146  U.  S.  153, 
159,  36  L.   Ed.  922. 

60.  "In  view  of  the  certificate  by  the 
chief  justice  of  the  state  court,  the  office 
of  which,  as  said  in  Parmelee  v.  Law- 
rence, 11  Wall.  36,  38.  20  L.  Ed.  48,  was. 
as  respects  the  federal  question,  "to  make 
more  certain,  and  specific  what  is  too 
general  and  indefinite  in  the  record,"  we 
are  not  disposed  to  construe  the  plead- 
ings so  strictly  as  to  hold  that  they  did 
not  sufficiently  set  up  and  claim  the  fed- 
eral rights  which  that  certificate  states 
were  claimed  by  Roby,  but  were  withheld, 
and  were  intended  to  be  withheld,  from 
him  by  the  court  below."  Roby  <:'.  Cole- 
hour,  146  U.  S.  153,  160,  36  L.   Ed.  922. 

The  certificate  of  the  highest  court  of 
the  state  that  a  federal  question  was  in- 
volved and  decided,  will  not  in  itself  con- 
fer jurisdiction  upon  the  supreme  court 
of  the  United  States  over  a  writ  of  error 
to  the  state  court,  but  it  may  properly  be 


referred  to.  Winous  Point  Shooting  Club 
V.  Caspersen,  193  U.  S.  189,  48  L.  Ed.  675. 
61.  Rector  v.  City  Deposit  Bank  Co..  200 
U.  S.  405.  412,  50  L.  Ed.  527;  S.  C,  200 
U.  S.  420.  50  L.  Ed.  527;  Marvin  v.  Trout, 

199  U.  S.  212,  223,  50  L.  Ed.  157;  Illinois 
Central  R.  v.  McKendree,  203  U.  S.  514, 
525,  51  L.  Ed.  298,  reaffirmed  in  Illinois 
Central  R.  Co.  v.  Edwards,  203  U.  S.  531, 
51  L.  Ed.  305. 

W^here  an  asserted  claim  in  virtue  of  the 
power  and  authority  conferred  by  a  law 
of  the  United  States  is  brought  up  by  a 
certificate,  and  the  cp.rtificate  makes  clear 
the  fact,  if  it  were  otherwise  doubtful,  the 
fact  that  a  right  under  a  law  of  the  United 
States  was  relied  upon  and  passed  upon 
below  gives  this  court  jurisdiction  under 
§  709,  Rev.  Stat.  Nutt  v.  Knut,  200  U.  S. 
12,  50  L.  Ed.  348,  reaffirmed  in  Rector  v. 
City  Deposit  Bank  Co.,  200  U.  S.  405,  50 
L.  Ed.  527;  Rector  v.  Commercial  Na- 
tional Bank,  200  U.   S.  420,  50  L.   Ed.  533. 

The  certificate  of  a  court  of  last  resort 
may  be  used  to  show  or  elucidate  the 
question  whether  in  an  action  brought  by 
a  trustee  in  bankruptcy,  rights  under  the 
bankrupt  law  were  relied  upon  and  passed 
upon  below.  Rector  z\  City  Deposit  Bank 
Co.,  200  U.  S.  405,  50  L.  Ed.  527,  reaf- 
firmed in  Rector  v.  Commercial  Nat.  Bank, 

200  U.  S.  420,  50  L.  Ed.  533. 

62.  Gulf,  etc.,  R.  Co.  v.  Hewes,  183  U. 
S.  66.  46  L.  Ed.  86,  citing  Armstrong  v. 
The  Treasurer,  16  Pet.  281.  10  L.  Ed.  965; 
Yazoo,  etc.,  R.  Co.  v.  Adams,  180  U.  S.  41, 
48.  45  L.  Ed.  415;  Railroad  v.  Rock, 
4  Wall.  177,  18  L.  Ed.  381;  Parmelee  v. 
Lawrence,  11  Wall.  36,  20  L.  Ed.  48; 
Gross  v.  United  States  Mortgage  Co., 
108  U.  S.  477,  27  L-  Ed.  795. 

63.  Marvin   v.   Trout,   199   U.    S.   212,  50 


APPEAL  AXD  ERROR. 


619 


settled  that  where  our  jurisdiction  depends  upon  the  denial  by  a  state  court  of 
a  title,  right,  privilege,  or  immunity  claimed  under  the  constitution,  or  any 
treaty  or  statute  of  the  United  States,  it  must  appear  on  the  record  that  such 
title,  right,  privilege,  or  immunity  was  specially  set  up  or  claimed  at  the  proper 
time  and  in  the  proper  way,  and  that  the  decision  was  against  the  right  so  set 
up  or  claimed. *^^ 

Mr.  Justice  Harlan  has  stated  the  rule  as  follows:  "If  our  jurisdiction 
is  invoked  on  the  ground  that  the  judgment  of  the  state  court  has  denied  a 
right,  title,  privilege  or  immunity  secured  by  the  constitution  of  the  United 
States,  it  is  essential,  under  existing  statutes,  that  such  right,  title,  privilege  or 
immunity  shall  have  been  specially  set  up  or  claimed  in  the  state  court."^^ 


L.  Ed.  157;  Armstrong  v.  The  Treasurer, 
lo   Pet.   286.    10    L.    Ed.   96.5. 

Where  matter  certified  is  made  part  of 
record. — Where  the  matter  certified  by 
the  supreme  court  of  a  state  is  made  by 
that  court  a  part  of  the  record,  and  if  it 
be  considered  as  having  the  force  of  an 
opinion  of  that  court,  or  as  a  mere  cer- 
tificate, this  would  establish  the  fact  that 
the  court  had  considered  and  decided  a 
federal  question,  which,  apart  from  other 
considerations,  would  give  us  jurisdiction 
to  review  the  state  court's  decision.  Rec- 
tor V.  City  Deposit  Bank  Co.,  200  U.  S. 
405,  50  L.  Ed.  527,  reaffirmed  in  Rector 
V.  Commercial  Nat.  Bank.  200  U.  S.  420, 
50  L.  Ed.  533,  citing  Nutt  v.  Knut,  200  U. 
S.  12,  50   L.   Ed.   348. 

A  showing  at  every  stage  of  the  liti- 
gation in  the  state  court  of  the  intention 
of  a  national  bank  to  rely  upon  the 
United  States  banking  laws  for  immunity 
against  liabilities  arising  out  of  its  owner- 
ship of  shares  in  a  partnership  is  sufficient 
to  sustain  the  appellate  jurisdiction  of  the 
supreme  court  of  the  United  States,  al- 
though the  bank  did  not,  in  the  first  in- 
stance, anticipate  the  specific  and  qual- 
ified form  in  which  the  immunity  finally 
was  denied — especially  where  the  highest 
state  court,  by  a  certificate,  made  part  of 
its  record  and  judgment,  stated  that  the 
federal  question  was  involved.  Merchants' 
Nat.  Bank  v.  Wehrmann.  202  U.  S.  295, 
50  L.  Ed.  1036,  citing  Marvin  z'.  Trout, 
199  U.  S.  212,  223.  50  L.  Ed.  157;  Cin- 
cinnati, etc..  Packet  Co.  v.  Bay.  200  U.  S. 
179.  50  L.  Ed.  428. 

64.  Brown  v.  Massachusetts,  144  U.  S. 
573.  579,  36  L.  Ed.  546;  Schuyler  Bank  v. 
Bollong,  150  U.  S.  85,  88,  37  L.  Ed.  1008; 
California  Powder  Works  v.  Davis,  151 
U.  S.  389.  393.  38  L.  Ed.  206;  Chemical 
Nat.  Bank  z:  City  Bank,  160  U.  S.  646,  40  L. 
Ed.  568;  Mutual  Life  Ins.  Co.  v.  Mc- 
Grew,  188  U.  S.  291,  308,  47  L.  Ed.  480. 
reaffirmed  in  Herold  v.  Frank.  191  U.  S. 
558,  48  L.  Ed.  302;  Hughes  v.  Kipley.  191 
U.  S.  557,  48  L.  Ed.  301;  Wakefield  z: 
Tassell,  192  U.  S.  601,  48  L.  Ed.  583;  Bank 
of  Commerce  v.  Wiltsie.  189  U.  S.  505, 
47  L.  Ed.  921;  Beals  v.  Cone.  188  U.  S. 
184,  188,  47  L.  Ed.  435,  reaffirmed  in  Stuart 
V.  Hauser,  203  U.  S.  585.  51  L.  Ed.  328; 
Jacobi  V.   Alabama,   187   U.   S.    133,    47    L. 


Ed.   106,  citing  Spies  v.   Illinois,   123  U.   S. 

131,  31  L.  Ed.  80;  Brooks  v.  Missouri, 
124  U.  S.  394,  31  L.  Ed.  454;  Baldwin  v. 
Kansas.  129  U.  S.  52.  32  L.  Ed.  640;  Mil- 
ler v.  Texas,  153  U.  S.  535,  38  L.  Ed.  812; 
Morrison  v.  Watson,  154  U.  S.  Ill,  115, 
38  ^L.  Ed.  927;  Sayward  v.  Denny,  158 
U.  S.  180,  183,  39  L.  Ed.  941;  Texas,  etc., 
R.  Co.  V.  Gay,  167  U.  S.  745,  42  L.  Ed. 
1209;      Chappell    v.    Bradshaw.    128    U.    S. 

132.  32  L.  Ed.  369;  Leeper  v.  Texas,  139 
U.  S.  462,  467,  35  L.  Ed.  225;  Texas,  etc., 
R.  Co.  z'.  Southern  Pac.  Co.,  137  U.  S.  48, 
53,  34   L.  Ed.  614. 

Nothing  is  better  settled  than  that  to 
enable  us  to  take  jurisdiction  on  the 
ground  of  the  denial  by  a  state  court  of 
a  right  claimed  under  a  statute  of  the 
United  States,  the  record  must  show  that 
the  right  was  specially  set  up  or  claimed 
at  the  proper  time  and  in  the  proper  way, 
and  that  the  decision  was  against  the 
right  so  set  up  or  claimed.  Spies  v.  Illi- 
nois. 123  U.  S.  131,  31  L.  Ed.  80;  Chap- 
pell V.  Bradshaw.  128  U.  S.  132,  32  L.  Ed. 
369;  Northern  Pac.  R.  Co.  v.  Austin,  135 
U.   S.   315,   318,   34   L.    Ed.   218. 

In  order  to  give  this  court  jurisdiction 
of  a  writ  of  error  to  review  a  judgment  of 
the  highest  court  of  a  state,  on  the  ground 
that  it  decided  against  a  title,  right,  priv- 
ilege, or  immunity  claimed  under  the 
constitution  or  a  treaty  or  statute  of  the 
United  States,  such  title,  right,  privilege, 
or  immunity  must  have  been  "specially 
set  up  or  claimed"  at  the  proper  time  and 
in  the  proper  way.  If  it  was  not  claimed 
in  the  trial  court,  and  therefore,  by  the 
law  and  practice  of  the  state,  as  declared 
by  its  highest  court,  could  not  be  con- 
sidered by  that  court;  or  if  it  was  not 
claimed  in  any  form  before  judgment  in 
the  highest  court  of  the  state;  it  cannot 
be  asserted  in  this  court.  Rev.  Stat.,  § 
709;  Spies  v.  Illinois,  123  U.  S.  131,  181, 
31  L.  Ed.  80;  Brooks  v.  Missouri,  124  U. 
S.  394,  31  L.  Ed.  454;  Chappell  v.  Brad- 
shaw, 128  U.  S.  132,  134,  32  L.  Ed.  369; 
Brown  v.  Massachusetts,  144  U.  S.  57a, 
36  L.  Ed.  546;  Schuyler  Bank  v.  Bol- 
long. 150  U.  S.  85.  37  L.  Ed.  1008;  Mil- 
ler z:  Texas,  153  U.  S.  535,  38  L-  Ed.  812; 
Morrison  v.  Watson,  154  U.  S.  Ill,  115, 
38  L.  Ed.  927. 

65.  Rev.  Stat.,  §  709;     Armstrong  v.  The 


620 


APPEAL  AND  ERROR. 


bbb.  Prior  to  Judgment  in  State  Court. — Where  a  case  is  brought  to  this 
covirt  on  error  or  appeal  from  a  judgment  of  a  state  court,  unless  it  appears  in 
the  record  that  a  federal  question  was  raised  in  the  state  court  before  the  entry 
of  final  judgment  in  the  case,  this  court  is  without  jurisdiction.^^  The  failure 
to  "specially  set  up  or  claim"  the  federal  question  prior  to  the  decision  in  the 
highest  state  court,  prevents  this  court,  as  has  been  frequently  held,  from  ac- 
quiring jurisdiction.^"^  Where  no  federal  question  is  specially  set  up  or  claimed 
in  the  highest  state  court,  until  after  judgment,  a  writ  of  error,  whether  a  fed- 
eral question  is  or  is  not  involved,  will  be  dismissed.*^^  A  federal  defense  which 
could  not  be  availed  of  unless  raised  before  judgment,  is  not  efficacious,  al- 
though not  raised,  to  avoid  the  judgment  when  rendered. ^^ 

An  objection  not  taken  until  after  verdict  in  the  state  court  that  the  plain- 
tiff in  error  has  been  deprived  of  his  liberty  without  due  process  of  law,  in  viola- 
tion of  the  14th  amendment  of  the  constitution  of  the  United  States,  because  the 
grand  jury  by  which  he  was  indicted  and  the  traverse  jury  by  which  he  was 
tried  and  convicted  were  wholly  composed  of  the  inhabitants  of  the  town  and 


Treasurer,  16  Pet.  281,  285,  10  L.  Ed.  965; 
Railroad  v.  Rock,  4  Wall.  177,  180,  18  L. 
Ed.  381;  Powell  v.  Brunswick  County. 
150  U.  S.  433,  439,  37  L.  Ed.  1134;  Roby 
7'.  Colehour,  146  U.  S.  153,  159.  36  L.  Ed. 
922;  Oxley  v.  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  654.  41  L.  Ed.  1149;  Levy 
v.  San  Francisco,  167  U.  S.  175,  177.  42 
L.  Ed.  126;  Home  for  Incurables  v.  New 
York  City,  187  U.  S.  155,  158,  47  L.  Ed. 
117.  reaffirmed  in  St.  Louis  Expanded 
Metal,  etc.,  Co.  v.  Standard  Fireproofing 
Co.,  195  U.  S.  627,  49  L.  Ed.  351;  Stuart 
V.    Hauser,   203   U.    S.    585,    51    L.    Ed.    328. 

66.  Simmerman  v.  Nebraska,  116  U.  S. 
54,  29  L.  Ed.  535;  Fowler  v.  Lamson. 
164  U.  S.  252,  255,  41  L.  Ed.  424;  Tellu- 
ride,  etc..  Co.  v.  Rio  Grande,  etc.,  R.  Co., 
175  U.  S.  639.  44  L.  Ed.  305;  Blackburn 
V.  Portland  Gold  Min.  Co.,  175  U.  S.  571, 
44  L.   Ed.   276. 

We  have  repeatedly  decided  that  an 
appeal  to  the  jurisdiction  of  this  court 
must  not  be  a  mere  afterthought,  and 
that  if  any  right,  privilege  or  immunity  is 
asserted  under  the  constitution  or  laws 
of  the  United  States  it  must  be  specially 
set  up  and  claimed  before  the  final  adju- 
dication of  the  case  in  the  court  from 
which  the  appeal  is  sought  to  be  main- 
tained. Bolln  V.  Nebraska,  176  U.  S.  83, 
91,  44  L.   Ed.  382. 

California  Bank  v.  Kennedy,  167  U.  S. 
362,  43  L.  Ed.  198,  is  not  to  the  contrary. 
There  the  question  was  whether  a  national 
bank  could  purchase  or  subscribe  to  the 
stock  of  another  corporation,  and  the  an- 
swer averred  that  if  the  stock  in  question 
appeared  to  have  been  issued  to  the  na- 
tional bank,  it  was  "issued  without  author- 
ity of  this  corporation  defendant,  and  with- 
out authority  of  law."  The  grounds  pre- 
sented on  motion  for  new  trial,  and  in  the 
specifications  of  error  which  formed  the 
basis  of  the  appeal  to  the  supreme  court 
of  the  state,  asserted  the  want  of  power 
under  the  laws  of  the  United  States;  and 
the    California    supreme   court    said   in    its 


opinion  that  the  bank  appealed  on  the 
ground  "that,  by  virtue  of  the  statutes  un- 
der which  it  is  organized,  it  had  no  power 
to  become  a  stockholder  in  another  corpo- 
ration." The  general  rule  was  not  ques- 
tioned that  if  the  alleged  right  was  not 
claimed  before  judgment  in'  the  highest 
court  of  the  state,  it  could  not  be  as- 
serted in  this  court.  Lincoln  Nat.  Bank 
V.  Cadiz  Nat.  Bank,  172  U.  S.  425,  231, 
43   L.   Ed.   502. 

67.  Winona,  etc..  Land  Co.  v.  Minne- 
sota, 159  U.  S.  540.  39  L.  Ed.  252,  citing 
Spies  ?'.  Illinois,  123  U.  S.  131,  181,  31  L. 
Ed.  80;  Brooks  v.  Missouri,  124  U.  S. 
394.  31  L.  Ed.  454;  Chappell  v.  Bradshaw, 
128  U.  S.  132,  32  L.  Ed.  369;  Brown  v. 
Massachusetts,  144  U.  S.  573,  36  L.  Ed. 
546;  Schuyler  Bank  v.  Bollong,  150  U.  S. 
85.  37  L.  Ed.  1008;  Powell  v.  Brunswick 
County,  150  U.  S.  433,  37  L.  Ed.  1134; 
Miller  V.  Texas,  153  U.  S.  535,  38  L.  Ed. 
812;  Morrison  v.  Watson,  154  U.  S.  HI, 
38  L.  Ed.  927;  Sayward  ZK  Denny.  158 
U.  S.  180,  39  L.  Ed.  941;  Bolln  v.  Ne- 
braska. 176  U.  S.  83,  44  L.  Ed.  382;  Tellu- 
ride,  etc.,  Co.  v.  Rio  Grande,  etc.,  R.  Co., 
175  U.  S.  639.  643,  47  L.  Ed.  305,  307. 

68.  California  Nat.  Bank  t;.  Thomas,  171 
U.  S.  441,  43  L.  Ed.  231;  Lynde  v.  Lynde, 
181  U.  S.  183,  45  L.  Ed.  810.  reaffirmed  in 
Jones  V.  Vane,  200  U.  S.  614,  50  L.  Ed. 
621;  Scudder  v.  Comptroller  of  New 
York,  175  U.  S.  32.  44  L.  Ed.  62;  Miller 
V.  Texas,  153  U.  S.  535,  38  L.  Ed.  812; 
Loeber  r.  Schroeder,  149  U.  S.  580.  37  L- 
Ed.  856;  Citizens'  Savings  Bank  v.  Owens- 
boro,   173  U.   S.   636,   643,  43   L.   Ed.   840. 

69.  Manley  v.  Park,  187  U.  S.  547,  552, 
47   L.   Ed.  296. 

A  judgment  of  a  state  court  is  not  void 
merely  because  it  denies  to  a  party  a 
right,  title,  privilege  or  immunity  under 
the  con^tituti'on  of  the  United  States, 
where  such  right  is  not  set  up  or  claimed 
in  the  proceedings  in  which  the  judg- 
'-nptit  ic  rendered.  Manlev  v.  Parks,  187 
U.  S.  547,  549,  47  L.  Ed.  296. 


APPEAL  AND  ERROR.  621 

county  which  the  indictment  charged  him  with  intending  to  defraud,  comes  too 
late.'*^ 

ccc.  Where  Question  Was  Not  Existent  at  Time  of  Judgment. — Likewise, 
the  supreme  court  cannot  retain  jurisdiction  on  the  ground  of  the  assertion  of  a 
federal  right  which  did  not  exist  when  the  judgment  was  rendered  in  the  trial 
court,  and  which  was  not  brought  to  the  attention  of  the  highest  state  court  in 
any  wayJ^ 

ddd.  In  Motion  to  Set  Aside  Judgment  mid  Transfer  Cause. — The  federal 
question  is  not  specially  set  up  or  claimed  at  the  proper  time  and  in  the  proper 
way,  where  it  appears  that  after  the  decision  in  a  trial  court  in  a  state  in  which 
no  federal  question  was  raised,  there  was  a  motion  to  set  aside  the  judgment  and 
transfer  the  cause  to  a  higher  court  on  the  ground  that  the  state  statute,  as  con- 
strued by  the  state  court  in  its  opinion,  was  invalid  and  in  violation  of  the  federal 
constitution^^ 

eee.  In  Assignment  of  Errors  in  Highest  State  Court. — It  has  never  been 
decided  that  a  presentation  to  the  lower  court  of  a  federal  question  at  some  stage 
of  the  proceedings  and  in  accordance  with  its  procedure,  and  a  presentation  to 
the  higher  court  before  judgment  in  the  assignment  of  errors,  would  not  be  suffi- 
cient. Therefore,  where  the  right  under  the  constitution  of  the  United  States 
is  claimed  by  the  plaintiff  in  error  after  verdict  and  in  a  motion  to  set  aside  the 
verdict  and  grant  a  new  trial,  and  is  reasserted  in  the  assignment  of  errors  to 
the  higher  court,  a  right  under  the  constitution  of  the  United  States  is  specially 
set  up  in  timeJ^ 

Where  it  is  only  in  the  assignment  of  errors,  filed  in  the  supreme  court 
of  the  state  four  months  after  its  judgment  of  affirmance,  that  the  defendant 
sets  up  the  denial  of  a  jury  trial,  as  a  denial  of  federal  right,  it  comes  too  lateJ* 
But  a  question  raised  in  the  state  supreme  court  and  decided  not  on  the  ground 
that  it  had  not  been  raised  in  the  lower  court,  but  on  the  merits,  is  not  raised 
too  late  for  review  by  this  court." ^ 

fff.  In  Motion  for  Neiv  Trial. — This  court  will  not  review  a  federal  question 
from  a  state  court,  where  the  question  is  raised  on  a  motion  for  a  new  trial  and 
alleges  that  a  certain  statute  takes  property  without  due  process  of  law,  and 
hence  is  unconstitutional;  even  though  this  may  be  taken  as  an  assertion  of  a 
claim  or  right  under  the  federal  constitution,  where  in  the  supreme  court  of  the 
state  so  far  as  the  record  discloses,  there  was  neither  authority  cited,  nor  argu- 

70.  Brown  v.  Massachusetts.  144  U.  S.  and  in  a  motion  to  set  aside  the  verdict 
573,   36    L.    Ed.    .546.  and  to  ernnt  a  new  trial.     Mever  v.   Rich- 

71.  Mutual    Life    Ins.    Co.    v.    McGrew.       mond.  17?  U.   S.  8'3,  93,  43   L.  Ed.  374. 

118  U.  S.  291,  313,  47  L.  Ed.  480,  reaffirmed  74.   Bolln   v.   Nebraska,   176   U.   S.   83,   44 

in   Herold   v.    Frank,   191    U.    S.    558,  48   L.  L.    Ed.    382. 

Ed.    302;      Hughes    v.    Keplev,    191    U.    S.  If   it    is   nowhere   alleg^ed   in    the   record 

557,  48  L.   Ed.   301;     Wakefield  v.  Tas'iell.  that  a  denial  to  defendant  of  a  jurA''  trial 

192   U.    S.    601.    48    L.    Ed.    583;      Bank    of  has  violated  the  constitution  of  the  United 

Commerce    v.    Wiltsie,    189    U.    S.    505.    47  States,    and    in    the    opinion    of   the    court 

L.  Ed.   921.  discuFsin.e:    this    question,    no    allusion    is 

72.  Louisville,  etc.,  R.  Co.  v.  Louisville,  made  to  the  denial  of  the  jury  trial  being 
166  U.  S.  709,  41  L.  Ed.  1173,  reaffirmed  in  conflict  with  the  14th  amendment,  but 
in  Baltimore,  etc.,  R.  Co.  v.  Ocean  City,  it  is  only  in  the  assij^nment  of  error, 
179  U.  S.  681.  45  L.  Ed.  384;  Cruli  v.  Rod-  filed  in  the  supreme  cotirt  of  a  state  four 
riguez,  198  U.  S.  581,  49  L.  Ed.  1172;  months  after  its  judgment  of  affirmance, 
Gates  V.  Parmly,  191  U.  S.  557,  48  L.  Ed.  that  the  defendant  sets  it  up  as  a  denial 
301.  of    federal    right,    uoon    this    state    of    the 

73.  Meyer  v.  Richmond,  172  U.  S.  82,  record  this  court  is  unable  to  say  that 
43  L.  Ed.  374,  following  Chicago,  etc.,  R.  the  decision  of  the  court  below  was 
Co.  V.  Chicago,  164  U.  S.  454,  41  L.  Ed.  against  the  title,  right,  privilege  or  immu- 
511;  Loeber  v.  Schroeder,  149  U.  S.  580,  nity.  specially  set  up  and  claimed  by  either 
37  L.    Ed.    856.  party  under  the  constitution  of  the  United 

In  Chicago,  etc.,  R.  Co.  v.  Chicago,  166  States.      Bolln   v.   Nebraska,   176   U.   S.   82, 

U,   S.  226.   41    L.    Ed.   979.   the  rio-ht   under  44   L.   Ed.   382. 

the  constitution  of  the  United   States  was  75.     Sully   v.    American    Nat.    Bank,    178 

claimed  by  plaintifif  in  error  after  verdict  U.   S.   289.  44   L.   Ed.   1072. 


622 


APPEAL  AND  ERROR. 


inent  advanced  in  support  of  the  constitutional  objection,  and  it  is  clear  from  die 
opinion  cited  that  the  state  court  based  its  decision  upon  others  than  federal 
grounds  and  did  not  decide  the  constitutional  question  sought  to  be  made  hereJ® 
SSS-  ^ftcr  Reuiand  by  State  Court. — A  federal  question  is  raised  too  late  to 
sustain  a  writ  of  error  from  the  supreme  court  of  the  United  States  to  a  state 
court,  where  the  special  pleas  setting  up  distinctly  the  federal  question  were  filed 
after  the  case  had  been  decided  by  the  supreme  court  of  the  state,  its  mandate  had 
o-one  down  to  the  trial  court,  and  the  case  was  ready  for  a  new  trial.""^ 


76.  Harding  v.  Illinois,  196  U.  S.  78,  49 
L.  Ed.  394,  reaffirmed  in  Robinson  v. 
Wingate,  198  U.  S.  580.  49  L.  Ed.  1171; 
Chicago,  etc.,  R.  Co.  v.  Newell,  198  U.  S. 
579,  49  L.  Ed.  1171;  Scale  v.  Georgia,  201 
U.  S.  642,  50  L,.-  Ed.  902,  distinguishing 
Chicago,  etc.,  R.  Co.  v.  Chicago,  166  U. 
S.  226,  41    L.   Ed.  979. 

Case  distinguished. — "The  only  authority 
called  to  the  attention  of  this  court  by 
counsel  for  plaintiff  in  error  as  support- 
ing the  view  that  a  federal  question  was 
properly  raised  in  this  case  is  Chicago, 
<;tc.,  R.  Co.  V.  Chicago,  166  U.  S.  226,  41 
L.  Ed.  979;  in  which  case  it  was  con- 
tended that  a  statute  of  the  state  of  Illi- 
nois, under  which  condemnation  proceed- 
ings were  had,  was  in  violation  of  the 
fourteenth  amendment  to  the  constitution 
of  the  United  States.  In  that  case  it  was 
distinctly  asserted,  in  the  motion  for  a 
new  trial  in  the  trial  court,  that  the  stat- 
ute and  rulings  of  the  court  and  the  ver- 
dict and  judgment  based  thereon  were 
contrary  to  the  fourteenth  amendment, 
declaring  that  no  state  should  deprive  any 
person  of  life,  liberty  or  property  with- 
out due  process  of  law  nor  deny  to  any 
person  within  its  limits  the  equal  protec- 
tion of  the  laws.  In  the  assignment  of 
errors  in  the  supreme  court  of  the  state, 
it  was  distinctly  reasserted  that  these  fed- 
eral rights  had  been  denied  by  the  pro- 
ceedings in  the  trial  court,  and  it  was 
held,  in  this  court,  that  while  the  supreme 
court  of  Illinois  did  not  in  its  opinion  ex- 
pressly refer  to  the  federal  constitutional 
rights  asserted,  the  same  were  neces- 
sarily included  in  the  judgment  of  the 
court,  and  therefore  the  case  was  re- 
viewable here."  Harding  v.  Illinois,  196 
U.  S.  78.  87,  49  L.  Ed.  394.  reaffirmed  in 
Robinson  v.  Wingate,  198  U.  S.  580,  49 
L.  Ed.  1171;  Chicago,  etc.,  R.  Co.  v. 
Newell.  198  U.  S.  579,  49  L.  Ed.  1171; 
Scale  V.  Georgia,  201  U.  S.  642,  50  L.  Ed. 
902. 

77.  Yazoo,  etc.,  R.  Co.  v.  Adams,  180 
U.  S.  1,  45  L.  Ed.  395.  reaffirmed  in  Yazoo, 
etc.,  R.  Co.  V.  Adams,  180  U.  S.  26,  45  L. 
Ed.   408. 

In  the  Mutual  Life  Ins.  Co.  v.  Kirchoff, 
169  U.  S.  103,  43  L.  Ed.  677:  "The  insur- 
ance company  had  loaned  money  to  Kir- 
choflf  and  had  filed  a  bill  to  foreclose  the 
trust  deed.  Pending  this  bill  an  agree- 
ment was  entered  into  for  the  release  to 
KirchoflF  of  two  of  the  lots  embraced  in 
the    foreclosure    proceedings,    but    it     was 


agreed  that  these  proceedings  should  be 
prosecuted,  and  as  soon  as  the  company 
obtained  a  deed  from  the  master,  it  would 
convey  to  Kirchoff.  No  defense  was 
made  to  the  foreclosure,  and  the  case 
went  to  a  decree  and  the  property  was 
sold.  The  case  went  to  the  supreme  court 
of  Illinois,  which  found  the  agreement 
between  Mrs.  Kirchoff  and  the  insurance 
company  as  claimed  by  her;  determined 
that  she  was  entitled  to  the  release 
sought,  and  remanded  the  case  for  the 
purpose  of  an  accounting.  As  stated  by 
the  chief  justice:  'The  record  does  not 
disclose  that  any  right  or  title  was  spe- 
cially set  up  or  claimed  under  any  statute 
of,  or  authority  exercised  under,  the 
United  States  in  the  courts  below,  or  in 
the  supreme  court  of  Illinois  prior  to  the 
decision  of  the  latter  court  on  the  first 
appeal.  *  *  *  The  errors  there  assigned 
nowhere  in  terms  raised  a  federal  ques- 
tion. And  in  affirming  the  judgment  of 
the  appellate  court  the  supreme  court  did 
not  consider  or  discuss  any  federal  ques- 
tion as  such  in  its  opinion.'  It  appears 
to  have  turned  upon  questions  of  fact.  'It 
is  now  contended  that  it  then  appeared 
that  defendant  claimed  to  hold  an  abso- 
lute title  to  the  lots  in  question  by  virtue 
of  the  foreclosure  proceedings  and  of  the 
master's  deed  obtained  thereunder,  and 
hence  that  the  title  was  claimed  under  an 
authority  exercised  under  the  United 
States;  that  a  federal  question  was  thereby 
raised  on  the  record;  and  that  the  de- 
cision of  the  case  necessarily  involved 
passing  on  the  claim  of  title.'  Upon  the 
second  appeal,  it  was  assigned  as  a  fed- 
eral question  that  the  circuit  court  erred 
in  entering  a  decree  which  would  in  ef- 
fect nullify  the  decree  of  foreclosure  of 
the  circuit  court  of  the  United  States,  and 
in  refusing  to  the  defendant  leave  to  file 
the  proposed  amendment  to  its  answer. 
'The  appellate  court  on  the  second  ap- 
peal held  itself  bound  by  the  previous  de- 
cision, and  declined  to  enter  on  matters 
of  defense  which  might  have  been 
availed  of.  The  supreme  court  was  of 
the  same  opinion,  for  it  ruled  that  where 
a  case  which  once  had  been  reviewed  by 
the  court,  and  remanded  with  directions 
as  to  the  decree  to  be  entered,  error  could 
not  be  assigned  on  a  subsequent  appeal 
for  any  cause  existing  at  the  time  of  the 
prior  judgment.'  This  court  dismissed 
the  writ  of  error,  holding  that,  as  the  su- 
preme  court   did   not   reopen   the   case   as 


APPEAL  AND  ERROR. 


623 


hhh.  On  Second  Hearing  in  State  Court. — Where  an  objection  that  a  state 
-tatute  is  'inconsistent  with  the  federal  constitution,  is  not  raised  until  the  case 
comes  on  for  a  second  hearing,  the  state  court  may,  in  its  discretion,  treat  it  as 
coming  too  late  for  its  decision.  Had  the  objection  been  raised  in  the  first  in- 
stance and  been  disposed  of,  the  case  would  be  different."^ 

iii.  On  Second  Appeal. — Where  no  federal  question  was  raised  or  considered 
on  an  appeal  to  the  supreme  court  of  a  state,  and  a  decision  was  rendered  which 
determined  the  rights  of  the  parties,  the  case  being  remanded  for  an  accounting, 
the  fact  that  on  a  second  appeal  the  party  insisted  that  a  federal  question  was 
involved,  which  claim  the  court  refused  to  consider  on  the  ground  that  it  had  been 
waived  by  a  failure  to  present  it  on  the  former  hearing,  does  not  give  the  United 
States  supreme  court  jurisdiction  to  review  such  decision."^ 

jjj.  In  Petition  for  ]Vrit  of  Error  to  State  Court. — A  federal  question 
is  sufficiently  raised  for  review  by  this  court,  if  it  is  raised  on  writ  of  error 
to  the  supreme  court  of  the  state,  and  it  is  not  necessary  that  it  should 
have  been  raised  in  the  lower  or  trial  court.'*"'  On  the  other  hand,  where  it  is 
attempted  to  transfer  a  cause  to  the  supreme  court  of  a  state,  but  the  petition 
contains  no  reference  to  the  constitution  of  the  United  States  and  a  mere  sug- 
gestion of  the  violation  of  a  federal  right  and  the  petition  is  denied  without  opin- 
ion, this  court  will  infer  that  the  petition  was  denied  because  the  point  of  con- 
stitutionality was  not  made  in  either  of  the  courts  below,  and  if  the  supreme 
court  did  in  fact  consider  the  federal  question,  the  burden  is  upon  the  plaintiff 
to  show  it,  and  under  such  circumstances  we  decline  to  review  the  constitutional 
question  here.^^  And  a  petition  containing  a  mere  suggestion  of  a  violation  of 
a  federal  right,  and  no  distinct  presentation  of  a  federal  question,  and  no  dis- 
tinct reference  to  the  constitution  of  the  United  States,  presents  no  ques- 
tion reviewable  by  the  court  on  writ  of  error. ^2 

kkk.  In  Petition  for  JVrit  of  Error  to  This  Court. — In  order  for  the  supreme 


to  matters  previously  adjudicated,  and  as 
the  federal  question  was  not  set  up  upon 
tlie  first  appeal,  there  was  no  action  of 
that  court  in  relation  to  it  which  we  were 
called  upon  to  revise.  See,  also.  North- 
ern Pac.  R.  V.  Ellis,  144  U.  S.  458.  36  L. 
Ed.  .504;  Great  Western  Tel.  Co.  r.  Burn- 
ham,  162  U.  S.  339,  40  L.  Ed.  991."  Yazoo, 
etc.,  R.  Co.  V.  Adams,  180  U.  S.  1,  7,  8.  45 
L.   Ed.  415. 

78.  Western  Electric  Supplv  Co.  v.  Ab- 
berville  Electric,  etc.,  Co.,  197  U.  S.  299. 
49   L.    Ed.    765. 

Where  jurisdiction  of  a  state  court 
over  a  foreign  corporation  is  objected  to 
upon  the  ground  of  defects  in  the  service 
of  process,  and,  on  appeal,  it  is  decided 
that  the  court  has  jurisdiction,  on  the 
second  trial  of  the  case  a  demurrer  on  the 
ground  that  the  statutory  mode  of  serv- 
ice is  in  contravention  of  the  constitution 
of  the  United  States,  may  be  treated  by 
the  supreme  court  of  the  state  as  com- 
ing too  late,  and  a  decision  of  the  supreme 
court  of  the  state  is  not  reviewable  by  the 
supreme  court  of  the  United  States.  West- 
ern Electric  Supply  Co.  v.  Abberville  Elec- 
tric, etc.,  Co.,  197  U.  S.  299,  49  L-  Ed.  765. 

79.  Mutual  Life  Ins.  Co.  v.  Kirchoff, 
169  U.    S.    103.    42    L.    Ed.    677. 

80.  Meyer  r.  Richmond,  172  U.  S.  82. 
43  L.  Ed.  374;  Arrowsmith  -r.  Harmoning, 
118  U.  S.  194,  30  L.   Ed.  243,  reaffirmed  in 


New  York,  etc..  R.  Co.  v.  McHeon,  189 
U.  S.  509,  47  L.  Ed.  922;  Sully  v.  Amer- 
ican National  Bank,  178  U.  S.  289,  44  L. 
Ed.  1072;  Rothchild  r.  Knight,  184  U.  S. 
334,    46   L.    Ed.    573. 

81.  Jacobi  v.  Alabama,  187  U.  S.  133, 
47  L.  Ed.  106;  Layton  v.  Missouri.  187  U. 
S.  356,  47  L.  Ed.  214;  Spies  v.  Illinois,  123 
U.  S.  131,  31  L.  Ed.  80;  Chicago,  etc.,  R, 
Co.  r.  McGuire,  196  U.  S.  128,  49  L.  Ed. 
413,  reaffirmed  in  Skaneatles  Paper  Co. 
V.   Syracuse.  201   U.   S.  642,   .50  L.   Kd.  901. 

82.  Oxley  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  41  L.  Ed.  1149;  Chicago, 
etc.,  R.  Co.  z:  McGuire.  196  U.  S.  ia«, 
131,  49  L.  Ed.  413,  reaffirmed  in  Skan- 
eatles Paper  Co.  r.  Syracuse.  201  U.  S. 
642,      50      L.    Ed.   901. 

The  fact  that  in  a  writ  of  error  and  pe- 
titfbn  for  citation  it  was  stated  that  cer- 
tain rights  and  privileges  were  claimed 
under  the  constitution  of  the  United 
States,  and  that  the  supreme  court  of  the 
state  decided  against  such  rights  and 
privileges,  is  not  sufficient  to  give  the 
United  States  supreme  court  jurisdiction 
to  review  the  judgment  of  the  state  court, 
where  the  decision  of  neither  the  trial 
court  nor  the  highest  court  of  the  state, 
was  invoked  upon  a  right  claimed  under 
the  constitution  of  the  United  States.  Hul- 
bert  I'.  Chicago.  202  U.  S.  275,  50  L.  Ed. 
1026,  citing  Marvin  v.  Trout,  199  U.  S. 
212,    222.   50   L.   Ed.   157. 


6^ 


APPEAL  AXD  ERROR. 


court  of  the  United  States  to  review  the  decision  of  a  state  court  upon  the 
ground  that  it  denies  a  title,  right,  privilege  or  immunity  claimed  under  the  con- 
stitution of  the  United  States,  the  right  must  be  set  up  or  claimed  either  upon 
a  motion  for  new  trial,  or  in  the  assignments  of  error  filed  in  the  supreme  court 
of  the  state,  and  where  it  first  appears  in  the  petition  for  a  writ  of  error  from 
the  supreme  court  of  the  United  States,  this  is  insufficient.''^  A  federal  question 
set  up  at  length  in  the  petition  filed  in  the  appellate  court  of  the  state  for  a  writ 
©f  error  from  this  court  is  clearly  too  late.^"^ 

111.  In  Briefs  of  Cowisel. — The  right,  title,  privilege  or  immunity  relied  on  is 
not  properly  claimed  when  made  for  the  first  time  in  the  briefs  of  counsel  not 
made  part  of  the  record. ^^ 

mmm.  In  Petition  for  Rehearing — aaaa.  In  General. — It  has  been  repeatedly 
decided  by  this  court  that  to  suggest  or  set  up  a  federal  question  for  the  first  time 
in  a  petition  for  a  rehearing  in  the  highest  court  of  a  state  is  not  in  time.^^     It 


83.  Johnson  v.  New  York  Life  Ins.  Co., 
1S7  U.  S.  491,  495,  47  L.  Ed.  273;  Wabash 
R.  Co.  V.  Pearce,  192  U.  S.  179,  48  L.  Ed. 
a97,  reaffirmed  in  Iron  Bridge  Co.  v. 
Brennan,  194  U.  S.  690.  48  L.  Ed.  1158; 
Watkins  v.  American  Nat.  Bank,  199  U. 
S.  599,  50  L.  Ed.  327;  Delahanty  v. 
Pitkin.  \^  U.  S.  602,  50  L.  Ed.  328;  Hen- 
kd  V.  Cincinnati,  177  U.  S.  170.  44  L.  Ed. 
730,  dismissed  on  the  authority  of  Say- 
ward  V.  Denny,  158  U.  S.  180,  183,  39  L. 
Ed.  941;  Ansbro  v.  United  States,  159  U. 
S.  695,  40  L.  Ed.  310;  Oxley  Stave  Co.  v. 
Butler  County,  166  U.  S.  648.  41  L.  Ed. 
1149;  Miller  v.  Cornwall  R.  Co.,  168  U. 
S.  131,  42  L.  Ed.  409;  Keokuk,  etc..  Bridge 
Co.  V.  Illinois.  175  U.  S.  626.  44  L.  Ed. 
299;  Corkran  Oil  Co.  v.  Arnaudet,  199 
U.  S.  182,  193,  50  L.  Ed.  143;  California 
Powder  Works  v.  Davis.  151  -U.  S.  389, 
38  L.  Ed.  206;  Clark  v.  Pennsylvania,  128 
U.  S.  395.  32  L.  Ed.  487;  Mutual  Life  Ins. 
Co.  V.  McGrew.  188  U.  S.  291,  47  L.  Ed. 
480;  Detroit,  etc.,  R.  Co.  v.  Osborn,  189 
U.  S.  383,  47  L.  Ed.  860;  Harding  v.  Illi- 
nois. 196  U.  S.  78.  84,  49  L.  Ed.  394.  See 
Kennard  v.  Nebraska,  186  U.  S.  304,  46 
L.   Ed.   1175. 

The  decision  of  the  state  court  is  not 
reviewable  by  the  supreme  court  of  the 
United  States  upon  the  ground  that  a 
state  statute  is  invalid  because  in  con- 
travention of  the  constitution  of  the 
United  States,  where  the  invalidity  of  the 
statute  is  not  raised  in  the  trial  court, 
nor  assigned  as  a  ground  of  error  upon 
appeal  to  the  highest  court  of  the  state, 
but  appears  for  the  first  time  in  the  pe- 
tition for  the  writ  of  error  from  the  su- 
preme court  of  the  United  States.  Tellu- 
ride.  etc.,  Co.  v.  Rio  Grande,  etc..  R.  Co., 
187  U.  S.  569,  47  L.  Ed.  307.  reaffirmed  in 
Dakota,  etc..  R.  Co.  v.  Crouch.  203  U.  S. 
582.   51   L.   Ed.  327. 

A  claim  that  the  construction  given 
by  state  courts  to  its  constitution  im- 
paired the  obligation  of  a  contract  in 
violation  of  the  federal  constitution  can- 
not be  coHsidered  by  this  court  where  it 
appears  for  the  first  time  in  petition  for 
a   writ   of  error   from   this   court,   and   the 


accompanying  assignment  of  errors.  This 
is  not  sufficient  to  give  this  court  jurisdic- 
tion of  any  federal  question,  even  though 
another  federal  question  has  been  prop- 
erly raised  and  brought  here  by  the  same 
writ  of  error.  Haire  v.  Rice,  204  U.  S- 
291,  51  L.  Ed.  490,  citing  Corkran  Oil  Co. 
V.  Arnaudet,  199  U.  S.  182.  50  L.  Ed.  143; 
Dewey  v.  Des  Moines,  173  U.  S.  193,  43 
L.    Ed.    665. 

If  a  case  is  carried  through  the  state 
courts  upon  arguments  drawn  from  the 
state  constitution  alone,  the  defeated 
party  cannot  try  his  chances  here  merely 
by  suggesting  for  the  first  time  when  he 
takes  his  writ  of  error  that  the  decision 
is  wrong  under  the  constitution  of  the 
United  States.  Crowell  v.  Randell.  10 
Pet.  368,  398,  9  L.  Ed.  458;  Simmerman  v. 
Nebraska,  116  U.  S-  54,  29  L.  Ed.  535;  Ha- 
gar  V.  California,  154  U.  S.,  appx..  639.  24 
L.  Ed.  1044;  Erie  R.  Co.  v.  Purdy,  185  U. 
S.  148.  153,  46  L.  Ed.  847;  Osborne  v. 
Clark,  204  U.  S.  565,  569,  51  L.   Ed.   619. 

84.  Fowler  v.  Lamson,  164  U.  S.  252, 
41  L.  Ed.  424;  Missouri  Pac.  R.  Co.  v. 
Fitzgerald,  160  U.  S.  556,  575,  40  L.  Ed.. 
536;  Ansbro  v.  United  States,  159  U.  S. 
695,  40  L._Ed.  310;  Chicago,  etc.,  R.  Co. 
V.  McGuire,  196  U.  S.  128,  132,  49  L.  Ed. 
413,  reaffirmed  in  Skaneateles  Paper  Co. 
V.  Syracuse.  201  U.  S.   642,     50  L.  Ed.  901. 

85.  Sayward  v.  Denny.  158  U.  S.  180, 
39  L.  Ed.  941;  Zadig  v.  Baldwin.  166  U. 
S.  485.  488.  41  L.  Ed.  1087;  Mutual  Life 
Ins.  Co.  V.  McGrew.  188  U.  S.  291,  308.  47 
L.  Ed.  480;  Herold  v.  Frank.  191  U.  S. 
558,  48  L.  Ed.  302;  Hughes  v.  Kepley.  191 
U.  S.  557,  48  L.  Ed.  301;  Wakefield  V. 
Tassell.  192  U.  S.  601,  48  L.  Ed.  583; 
Bank  of  Commerce  v.  Wiltsie,  189  U.  S. 
505,  47  L.  Ed.  921;  New  York,  etc.,  R.  Co. 
V.  New  York,  186  U.  S.  269,  272,  46  L  Ed. 
1158;  Harding  v.  Illinois,  196  U.  S.  78, 
84.    49    L.    Ed.    394. 

86.  Corkran  Oil  Co.  v.  Arnaudet.  199 
U.  S.  182,  50  L.  Ed.  143;  Fullerton  V. 
Texas,  196  U.  S.  192,  49  L.  Ed.  443;  Texas, 
etc.,  R.  Co.  V.  Southern  Pac.  Co..  137 
U.  S.  48.  54.  34  L.  Ed.  614;  Butler  v. 
Gage,    138    U.    S.    52,    34    L-    Ed.    869;    Wi- 


APPEAL  AND  ERROR. 


625 


is  too  late  to  raise  a  federal  question  by  a  petition  for  rehearing  in  the  supreme 
court  of  a  state  after  that  court  has  pronounced  its  final  decision,  although  if 


nona,  etc.,  R.  v.  Plainview,  143  U.  S.  371, 

36  L.  Ed.  520;  Leeper  v.  Texas,  139  U.  S. 
462,  35  L.  Ed.  225;  Loeber  v.  Schroeder, 
149  U.  S.  580,  37  L.  Ed.  856;  Meyer  v. 
Richmond,  172  U.  S.  82,  92,  43  L.  Ed. 
374;  Harding  v.  IlliHois,  196  U.  S.  78,  84, 
49  L.  Ed.  394;  McMillen  v.  Ferrun  Min. 
Co.,  197  U.  S.  343,  347,  49  L.  Ed.  784;  Sus- 
quehanna Boom  Co.  V.  West  Branch  Boom 
Co.,  110  U.  S.  57,  37  L.  Ed.  69;  Texas,  etc.. 
R.  Co.  V.  Southern  Pac.  Co.,  137  U.  S.  48, 
54,  34  L.  Ed.  614;  Boshnell  v.  Crooke 
Min.  Co.,  148  U.  S.  682,  689,  37  L.  Ed.  610; 
Bobb  V.  Jamison,  155  U.  S.  416,  39  L.  Ed. 
206,  following  Duncan  i\  Missouri,  152  U. 
S.  377,  38  L.  Ed.  485;  Barrington  v.  Mis- 
souri, 205  U.  S.  483,  51  L.  Ed.  890;  Mu- 
tual Life  Ins.  Co.  v.  McGrew,  188  U.  S. 
291,  47  L.  Ed.  480;  Turner  v.  Richardson, 
180  U.  S.  87,  92,  45  L.  Ed.  438,  reaffirmed 
in  St.  Louis  Expanded  Metal,  etc.,  Co.  v. 
Standard   Fireproofing  Co.,   195  U.   S.  627, 

49  L.  Ed.  351;  Hughes  v.  Kepley,  191  U. 
S.  557,  48  L.  Ed.  301;  Huber  v.  Jennings- 
Heywood    Oil    Syndicate,    201    U.    S.    641, 

50  L.  Ed.  901;  Sayward  v.  Denny,  158 
U.  S.  180,  183.  39  L.  Ed.  941,  reaffirmed 
in  Texas,  etc.,  R.  Co.  v.  Gay,  167  U.  S. 
745,  42  L.  Ed.  1209;  French  v.  Taylor,  199 
U.  S.  274.  50  L.  Ed.  189;  South  Carolina 
-.-.  Jennings.  204  U.  S.  667,  668,  51  L.  Ed. 
671;  Lincoln  Xat.  Bank  v.  Cadiz  Nat. 
Bank,  172  U.  S.  425,  431,  43  L.  Ed.  502; 
Caldwell  v.  Texas.  137  U.  S.  692,  698,  34 
L.  Ed.  816;  Miller  v.  Texas,  153  U.  S.  535, 
.^.:;9,  38  L.  Ed.  812;  Weber  v.  Rogan,  188  U. 
S.  10,  47  L.   Ed.  363. 

The  attempt  to  raise  for  the  first  time 
a  federal  question  in  a  petition  for  re- 
hearing, after  judgment,  even  assuming 
that  the  petition  presented  any  such  ques- 
tion, is  clearly  too  late.  It  has  been  re- 
peatedly decided  by  this  court  that  a  fed- 
eral question,  when  suggested  for  the  first 
time  in  a  petition  for  rehearing  after 
judgment,  is  not  properly  raised  so  as  to 
authorize  this  court  to  review  the  de- 
cision of  the  highest  court  of  the  state. 
Texas,  etc.,  R.  Co.  v.  Southern  Co.,  137 
U.   S.    48,    34    L.    Ed.    614. 

"Upon  inspecting  the  record,  we  find 
that  no  federal  right  was  set  up  or 
claimed,  in  any  form,  until  after  the  final 
decision  of  the  case  by  the  supreme  court 
of  Missouri,  and  then  by  a  petition  for  re- 
hearing. That  petition  was  overruled  by 
that  court  without  any  determination  of 
the  alleged  federal  question,  indeed  with- 
out any  allusion  to  it.  The  claim  of  a 
federal  right  came  too  late,  so  far  as  the 
revisory  power  of  this  court  is  concerned." 
Loeber  v.    Schroeder.    149    U.    S.    580,    585. 

37  L.  Ed.  856;  Sayward  v.  Denny,  158  U. 
S.  180,  183,  39  L.  Ed.  941;  Pim  v.  St.  Louis, 
165  U.  S.   273,  274,  41   L.   Ed.  714. 

1  U  S  Enc— 40 


It  was  not  until  after  the  supreme  court 
of  the  state  construed  the  mortgage  con- 
tract in  accord  with  the  claim  of  the 
plaintiffs,  and  had  affirmed  the  judgment 
of  the  trial  court  and  remitted  the  case 
to  that  court,  that,  in  an  application  for 
a  rehearing,  numerous  grounds  were  set 
forth  in  which  were  contained  assertions 
that  the  adverse  decision  of  the  supreme 
court  of  the  state  was  in  conflict  with 
several  clauses  of  the  constitution  of  the 
United  States.  It  was  held  that  these 
grounds  were  set  up  too  late.  Eastern 
Bldg.  Ass'n  V.  Welling,  181  U.  S.  47.  48, 
45  L.  Ed.  739,  citing  and  approving  Bobb 
r.  Jamison,  155  U.  S.  416,  39  L.  Ed.  206; 
Winona,  etc.,  Land  Co.  v.  Minnesota.  159 
U.   S.   540,   39   L.    Ed.   252. 

It  is  not  enough  that  the  claim  of  a  fed- 
eral right  arose  upon  the  facts.  It  must 
also  appear  affirmatively  that  the  right 
was  "specifically  set  up."  No  reference 
was  made  to  any  federal  right  in  the  pe- 
tition for  the  writ  of  mandamus,  the  de- 
murrer, or  the  motion  to  quash,  and  the 
petition  for  a  rehearing,  where  the  fed- 
eral question  was  first  brought  forward 
by  the  plaintiff  in  error,  so  far  as  the 
record  discloses,  was  denied  by  the  court. 
It  is  not  enough  that  the  federal  ques- 
tion was  first  presented  by  a  petition  for 
a  rehearing,  unless  that  question  was 
thereupon  considered,  and  passed  on  ad- 
versely by  the  court.  Corkran  Oil  Co.  v. 
Arnaudet,  199  U.  S.  182,  50  L.  Ed.  143; 
Haire  v.  Rice,  204  U.  S.  291,  298,  51  L. 
Ed.    490. 

Where  a  federal  question  is  raised  for 
the  first  time  on  application  for  reargu- 
ment.  nearly  a  year  after  the  judgment 
of  the  trial  court  was  affirmed  by  the  su- 
preme court  of  the  state,  the  suggestion 
comes  too  late.  Miller  v.  Cornwall  R. 
Co.,  168  U.  S.  131,  42  L.  Ed.  409;  Charles- 
ton, etc..  Bridge  Co.  v.  West  Virginia, 
168  U.  S.  704,  42  L.  Ed.  1212;  Texas,  etc., 
R.  Co.  V.  Southern  Pac.  Co.,  137  U.  S. 
48,  34  L.  Ed.  614;  Loeber  v.  Schroeder, 
149  U.  S.  580.  37  L.  Ed.  853;  Pim  v.  St. 
Lcuis.  165  U.  S.  273,  41  L.  Ed.  714;  Luf- 
kin  c'.  Lufkin,  192  U.  S.  601,  48  L.  Ed. 
583. 

Quaere,  whether  a  party  who  failed  to 
set  up  a  federal  qrestion  in  his  original 
pleadings,  or  upon  his  first  appeal  to  the 
supreme  court  (of  a  state)  and  subse- 
quently declines  to  amend,  and  only  sets 
such  question  up  in  an  assignment  of  er- 
rors on  a  second  appeal,  after  the  ques- 
tion had  been  practically  disposed  of  by 
the  supreme  court  (of  a  state),  does  not 
lay  himself  open  to  the  objection  so  often 
sustained  by  the  supreme  court  of  the 
United  States  that  a  party  cannot  raise 
a  federal  question  for  the  first  time  on  a 


626 


APPEAL  AND  ERROR. 


the  state  court  entertains  the  petition  and  disposes  of  the  federal  question,  that 
will  be  sufficient. ^^ 

Louisiana. — A  title,  right,  privilege  or  immunity  is  not  specifically  set  up  or 
claimed  at  the  proper  time  and  in  the  proper  way,  where  it  does  not  appear  that 
any  of  these  propositions  were  presented  to  the  trial  court  in  any  way,  or  ad- 
vanced in  the  supreme  court,  until  urged  in  the  petition  for  a  rehearing.  And 
this  rule  is  the  same  in  Louisiana,  although  under  their  law  a  judgment  of  the 
supreme  court  does  not  become  final  until  after  six  judicial  days  from  the  ren- 
dering of  the  judgment  have  passed,  within  which  time  a  dissatisfied  party  may 
apply  for  a  new  hearing  of  the  cause. ^^ 

Where  on  a  writ  of  error  to  the  supreme  court  of  the  state  of  Missouri, 
^t  appears  that  the  federal  question  was  not  raised  before  or  at  the  hearing  on 
the  merits,  nor  on  the  application  for  rehearing,  but  was  first  taken,  after  judg- 
ment affirmed  and  application  denied,  on  a  motion  to  transfer  the  cause  to  the 
full  court  for  decision  in  accordance  with  the  constitutional  provision  in  that  state 
which  provides  for  the  separation  of  the  supreme  court  into  two  divisions  for 
the  transaction  of  business,  and  that  when  a  federal  question  is  involved,  the 
^ause,  on  the  application  of  the  losing  party,  should  be  transferred  to  the  full 
court  for  decision,  it  comes  too  late.^*^ 


motion  for  a  rehearing.  Mutual  Life  Ins. 
Co.  v.  Kirchofif,  169  U.  S.  103,  113,  42  L. 
E-d.  677;  Yazoo,  etc.,  R.  Co.  v.  Adams,  180 
U.  S.  41,  45  L.  Ed.  415;  Hale  v.  Lewis,  181 
U.    S.    473,    479,    45    L.    Ed.    959. 

Motion  for  oral  argument. — Where  the 
state  went  to  judgment  without  any  sug- 
gestion that  a  federal  question  was  pre- 
sented for  its  determination,  and  not  even 
in  the  petition  for  rehearing  was  any  such 
question  brought  to  the  attention  of  the 
court,  the  disposition  of  a  motion  that 
oral  argument  be  permitted,  after  the 
petition  for  rehearing  is  denied,  in  which 
motion  a  suggestion  that  a  federal  ques- 
tion was  involved  is  first  made,  does  not, 
in  itself  necessarily  involve  the  decision 
of  a  federal  question.  Butler  z'.  Gage,  138 
U.    S.    52,    34    L.    Ed.    869. 

Cases  reconciled. — -"It  is  contended  that 
the  cases  of  Huntington  v.  Attrill,  146  U. 
S.  657.  3«  L.  Ed.  1123;  Marchant  f.  Penn- 
sylvania R.  Co.,  153  U.  S.  380,  38  L.  Ed. 
751,  an  1  Scott  v.  McNeal,  154  U.  S.  34, 
38  L.  Ed.  896,  recognized  some  excep- 
tions to  this  general  rule.  But  an  exam- 
ination of  the  first  and  last  named  of 
those  cases,  as  reported,  will  show  that 
a  federal  right  was  specially  claimed  in 
and  was  passed  upon  by  the  state  court. 
In  Marchant  z<.  Pennsylvania  Railroad  it 
does  not  distinctly  appear  from  the  opin- 
ion of  the  court  that  the  federal  right 
alleged  to  have  been  violated  was  spe- 
cially claimed  in  the  state  court.  But  the 
record  of  that  case  shows  not  only  that 
such  was  the  fact,  but  that  the  jurisdic- 
tion of  this  court  in  that  case  was  be- 
yond question."  Pim  v.  St.  Louis,  165  U. 
S.   273,   41   L.    Ed.   714. 

88.  Mallett  v.  North  Carolina,  181 
U.  S.  589,  45  L.  Ed.  1015;  Fullerton  v. 
Texas,  196  U.  S.  192,  193,  49  L.   Ed.  443. 

89.  Texas,  etc.,  R.  Co.  v.  Southern  Pac. 
Co.,   137   U.    S.   48,   34   L.   Ed.   614. 


In  Louisiana,  as  elsewhere,  a  title,  right, 
privilege  or  immunity  is  not  properly 
claimed,  under  the  act  of  congress,  when 
suggested  for  the  first  time  in  a  petition 
for  a  rehearing,  after  judgment.  Texas, 
etc..  R.  Co.  V.  Southern  Pac.  Co.,  137  U. 
S.    48,   54,   34    L.    Ed.    614. 

The  case  of  Stewart  z'.  Kahn,  11  Wall. 
493,  20  L.  Ed.  176,  cited  for  plaintiff  in 
error,  is  not  to  the  contrary.  TTie  peti- 
tion referred  to  there  seems  to  have  been 
simply  one  for  review  on  appeal,  and  not 
a  petition  filed  after  the  case  had  been 
decided  by  the  supreme  court,  and  the 
record  showed  the  decision  of  the  federal 
question  by  both  tribunals.  Texas,  etc., 
R.  Co.  V.  Southern  Pac.  Co.,  137  U.  S.  48, 
54,   34   L.    Ed.   614. 

90.  Duncan  v.  Missouri,  152  U.  S.  377, 
38  L.  Ed.  485,  reaffirmed  in  Bobb  v.  Jam- 
ison, 155  U.   S.   416.  39  L.   Ed.   206. 

To  give  jurisdiction  to  this  court,  the 
title,  right,  privilege,  or  immunity  relied 
on  must  be  specially  set  up  or  claimed  at 
the  proper  time  and  in  the  proper  way, 
and  the  decision  must  be  against  it; 
whereas,  in  this  case,  the  question  was 
not  suggested  until  after  judgment,  and 
after  an  application  for  rehearing  had 
been  overruled,  and  only  then  in  the  form 
of  a  motion  to  transfer  the  cause. 
Whether  that  motion  was  held  to  come 
too  late  for  the  purposes  of  transfer,  we 
are  not  informed,  but  its  denial  was  in  no 
aspect  equivalent  to  a  ^decision  against 
a  right  under  the  constitution  of  the 
United  States  specially  set  up  or  claimed 
at  the  proper  time  and  in  the  proper  way. 
Texas,  etc.,  R.  Co.  r.  Southern  Pac.  Co., 
137  U.  S.  48,  34  L.  Ed.  614;  Caldwell  v. 
Texas,  137  U.  S.  692,  698,  34  L-  Ed.  816; 
Butler  v.  Gage,  138  U.  S.  52,  34  L.  Ed. 
869;  Leeper  v.  Texas,  139  U.  S.  462,  35 
L.  Ed.  225;  Duncan  v.  Missouri,  152  U.  S. 
377,  383,  38  L-  Ed.  485,  reaffirmed  in  Bobb 
V.  Jamison,  155  U.  S.  416,  39  L.  Ed.  206. 


APPEAL  AND  ERROR. 


627 


bbbb.  Qualifications  of  General  Rule. — When  Urged  While  Case  Is  Pend- 
ing and  before  Its  Decision.— But  in  all  of  these  cases,  the  federal  questiOT 
was  not  presented  in  any  way  to  the  lower  court  nor  to  the  higher  court  until 
after  judgment.  It  is  not,  therefore,  decided  that  a  presentation  to  the  lower  court 
at  some  stage  of  the  proceedings  and  in  accordance  with  its  procedure,  and  a 
presentation  to  the  higher  court  before  judgment,  would  not  be  sufficient. '^i  So, 
also,  if  the  highest  court  of  a  state  entertains  a  petition  for  rehearing,  which 
presents  federal  questions,  and  decides  them,  that  will  be  sufficient  to  sustain 
the  jurisdiction  of  the  supreme  court  of  the  United  States  to  review  the  judg- 
ment of  the  state  court  on  writ  of  error. ^2  i-^  other  words,  where  no  federal 
question  appears  to  have^been  raised  in  the  state  court  until  a  petition  is  fitled 
in  the  supreme  court  for  a  rehearing,  the  question  is  too  late,  unless  the  court 
grants  the  rehearing  and  then  proceeds  to  consider  the  question.'''^ 

In  the  language  of  Mr.  Justice  White:  So  controlli4ig  as  to  the  existence 
of  the  federal  question  is  the  fact  that  it  was  actually  considered  and  decided 
by  the  state  court,  that  it  has  been  held,  although  the  general  rule  is  that  the 
raising  of  a  federal  question  in  a  petition  for  rehearing  in  the  highest  court  of 
the  state  is  too  late,  yet  when  a  question  is  thus  raised  and  it  is  actually  con- 


91.  Meyer  v.  Richmond.  172  U.  S.  82, 
92,  43  L.  Ed.  374,  distinguishing  those 
cases  holding  that  it  comes  too  late  for 
the    first    time    in    petition    for    rehearing. 

92.  Mallett  v.  North  Carolina,  181  U. 
S.  589,  4.5  L.  Ed.  1015;  Mutual  Life  Ins. 
Co.  7'.  McGrew,  188  U.  S-  291,  308,  47  L- 
Ed.  480;  Herold  v.  Frank,  191  U.  S.  558, 
48  L.  Ed.  302;  Hughes  v.  Keple}^  191  U. 
S.  557,  48  L.  Ed.  301;  Wakefield  v.  Tas- 
sell,  192  U.  S.  601.  48  L.  Ed.  583;  Bank  of 
Commerce  v.  Wrhsie,  189  U.  S.  505,  47 
L.  Ed.  921;  Jacobi  v.  Alabama,  187  U.  S. 
133,  136,  4T  L.  Ed.  106;  Corkran  Oil  Co. 
V.  Arnaud^,  199  U.  S-  182.  193,  50  L.  Ed. 
143. 

Where  the  claiin  that  a  state  statute  is 
repugnant  to  the  constitution  of  the 
United  States  is  first  made  on  a  motion 
for  rehearing  in  the  highest  court  of  the 
state  and  the  motion  is  entertained  and 
the  federal  question  thus  raised  decided 
against  the  contention  of  the  plaintiff  in 
error,  the  question  is  reviewable  in  the 
supreme  court  of  the  United  States. 
Leigh  V.  Green,  193  U.  S.  79.  48  L.  Ed. 
■623,  citing  and  approving  Mallett  v.  North 
Carolina,    181   U.    S.    589,    45    L.    Ed.    1015. 

Where  the  defendant  below  set  up  a 
•claim  of  immunity  from  suit  in  the  state 
court  under  the  laws  of  the  United  States, 
-and  the  right  to  the  immunity  so  as- 
serted under  an  act  or  acts  of  congress 
was  expressely  considered  and  denied  by 
the  state  court,  this  court  has  jurisdic- 
tion although  the  immunity  which  was 
asserted  was  first  claimed  in  a  petition 
for  rehearing,  because  the  question  was 
raised  was  necessarily  involved  and  was 
considered  and  decided  adversely  by  the 
state  court.  Leigh  v.  Green,  193  U.  S. 
79,  48  L.  Ed.  623;  McKay  v.  Kalyton,  204 
U.   S.   458,   463,   51    L.    Ed.   566. 

Cases  distinguished. — It  appeared  from 
the    first    opinion    filed    by    the    supreme 


court  of  a  state,  that  federal  questiens 
arising  under  the  constitution  and  laws 
of  the  United  States  were  not  considered 
by  that  court,  or,  at  all  events,  were  not 
treated  as  federal  questions,  but  as  (joes- 
tions  arising  under  state  laws.  Btit  the 
record  dfscloses  that,  after  that  opmion 
had  been  filed  but  before  it  had  bera  cer- 
tified down,  the  defendants  filed  a  ^ti- 
tion  for  reargument,  and  presented  the 
federal  questions  on  which  they  rely.  The 
supreme  court  entertained  the  petition, 
and  proceeded  to  discuss  and  decide  the 
federal  questions.  In  support  of  the  mo- 
tion to  dismiss  numerous  decisions  of 
this  court  are  cited  to  the  effect  that  it  is 
too  late  to  raise  a  federal  question  by 
a  petition  for  a  rehearing  in  the  supre«ie 
court  of  a  state  after  that  court  has  pro- 
nounced its  final  decision.  Locber  v. 
Schroeder,  149  U.  S.  580,  37  L.  Ed.  856; 
Sayward  v.  Denny.  158  U.  S.  ISO,  39  L.  Ed. 
941;  Pirn  v.  St.  Louis,  165  U.  S.  2TS,  41 
L-  Ed.  714.  But  those  were  cases  in  which 
the  supreme  court  of  the  state  refused  the 
petition  for  a  rehearing,  and  dismiss«d 
the  petition  without  passing  upon  the 
federal  questions.  In  the  present  cas«, 
as  already  stated,  the  supreme  ccnirt  of 
North  Carolina  did  not  refuse  to  consider 
the  federal  questions  raised  in  the  peti- 
tion, biit  disposed  of  them  in  an  opinicm 
found  in  this  record.  State  v.  Mallett, 
125  N.  C.  718.  Had  that  court  declined 
to  pass  upon  the  federal  questions  and 
dismissed  the  petition  without  consider- 
ing them,  we  certainly  would  not  under- 
take to  revise  their  action.  Mallett  v. 
North  Carolina,  181  U.  S.  589,  592,  45  L. 
Ed.    1015. 

98.  McMillen  v.  Ferrum  Min.  Co., 
197  U.  S.  343,  49  L.  Ed.  784,  citing  Mal- 
lett V.  North  Carolina,  181  U.  S.  589,  45 
L.  Ed.  1015;  Loeber  v.  Schroeder,  149  U. 
S.  580,  37  L.  Ed.  856;  Miller  v.  Texas, 
153    U.    S.    535,   38    L.    Ed.    812. 


628 


APPEAL  AND  ERROR. 


sidered  and  decided  by  the  state  court,  the  right  to  review  exists.^-* 

Where  Petition  Is  Denied  without  Opinion. — On  the  other  hand,  where 
in  petition  for  rehearing  a  federal  question  is  raised  for  the  first  time,  even  if 
that  could  be  considered  as  a  compliance  with  §  709,  it  comes  too  late  where  the 
petition  was  denied  without  opinion.  If  the  supreme  court  of  the  state  had  seen 
fit  on  that  petition  to  entertain  the  contention  of  plaintiff  in  error  as  asserting 
a  federal  right,  and  had  then  decided  adversely,  the  case  would  have  occupied 
a  different  position.^ 

nnn.  Upon  Motion  to  Quash  Execution. — An  attempt  to  raise  for  the  first 
time  a  federal  question  upon  a  motion  to  quash  an  execution,  comes  too  late  for 
the  same  reason  that  an  attempt  to  raise  such  a  question  on  a  petition  for  re- 
hearing after  judgment  comes  too  late.^^ 

ooo.  Raising  Fedi-ral  Question  for  First  Time  in  This  Court. — It  is  too  late 
to  raise  in  this  court  for  the  first  time  a  federal  question ;  it  must  be  set  up  and 
claimed  in  the  state  court. ^"     It  is  hardly  necessary  to  say  that  the  raising  of  a 


94.  Mallett  v.  North  Carolina,  181  U. 
S.  589,  592,  45  L-  Ed.  1015;  Missouri,  etc., 
R.  Co.  V.  Elliott,  184  U.  S.  530,  534,  46 
L.   Ed.   673. 

95.  Mutaal  Life  Ins.  Co.  v.  McGrew, 
188  U.  S.  291,  47  L.  Ed.  480,  reaffirmed  in 
Hober  v.  Jennings-Heywood  Oil  Syndi- 
cate, 201  U.  S.  641,  50  L.  Ed.  901;  Herold 
V.  Frank,  191  U.  S.  558,  48  L.  Ed.  302; 
Hughes  V.  Kepl<?y,  191  U.  S.  557,  48  L. 
Ed.  301;  Wakefield  v.  Tassell,  192  U.  S. 
601,  48  L.  Ed.  583;  Bank  of  Commerce  v. 
Wiltsie,   189   U.   S.   505,  47   L.    Ed.  921. 

96.  Loeber  v.  Schroeder,  149  U.  S.  580, 
37  L-  Ed.  856,  revi-ewed  in  Mej^er  v.  Rich- 
mond,  172  U.   S.   82,  92,  43   L-   Ed.  374. 

97.  Quimby  v.  Boyd,  128  U.  S.  488,  32 
L.  Ed.  502;  Marrow  v.  Brinkley,  129  U. 
S.  178,  181,  32  L.  Ed.  654;  Home  for  In- 
curables V.  New  York,  187  U.  S.  155.  47 
L.  Ed.  117;  Winous  Point  Shooting  Club 
V.  Caspersen.  193  U.  S.  189,  48  L.  Ed.  675. 

On  a  writ  of  error  to  a  state  court  no 
question  will  be  considered  here  which 
was  not  called  to  the  attention  of  the 
state  court.  National  Bank  v.  Kentucky, 
9  Wall.  353,  19  L.  Ed.  701. 

When  it  nowhere  appears  from  the 
record,  either  in  the  application  for  a 
change  of  venue,  or  in  the  objections  to 
the  admissibility  of  evidence,  to  the 
charge  of  the  court  as  given,  or  to  the  re- 
fusals to  charge  as  requested,  or  in  the 
motion  for  a  new  trial,  the  assignment 
of  errors  in  the  supreme  court  of  the 
state,  or  the  opinion  filed  in  that  court, 
that  any  federal  question  was  actually  pre- 
sented for  consideration  or  in  any  way 
relied  on  before  the  final  judgment  from 
which  the  writ  of  error  has  been  taken, 
wc  cannot  take  jurisdiction.  Detroit  City 
R.  Co.  V.  Guthard,  114  U.  S.  133,  29  L. 
Ed.  118;  Brown  v.  Colorado,  106  U.  S. 
95,  27  L.  Ed.  132;  Simmerman  v.  Ne- 
braska,  116  U.   S.   54,   29   L.   Ed.   535. 

If  this  court,  on  looking  into  the  opin- 
ion of  the  case,  finds  that  the  only  fed- 
eral question  there  is  in  the  record  was 
not  presented  to  the  supreme  court, 
"either    in    brief    or    oral    argument,"    the 


writ  of  error  will  be  dismissed  for  lack  of 
jurisdiction.  Weatherly  v.  Bowie,  131 
U.    S.    215,    25    L.    Ed.    606. 

In  Spies  V.  Illinois,  123  U.  S.  131,  181, 
31  L.  Ed.  80,  this  court  said  in  regard  to 
a  question  of  this  kind:  "As  the  supreme 
court  of  the  state  was  reviewing  the  de- 
cision of  the  trial  court,  it  must  appear 
that  the  claim  was  made  in  that  court,  be- 
cause the  supreme  court  was  only  author- 
ized to  review  the  judgment  for  errors 
committed  there,  and  we  can  do  no  more." 
Again:  "If  the  right  was  not  set  up  or 
claimed  in  the  proper  court  below,  the 
judgment  of  the  highest  court  of  the  state 
in  the  action  is  conclusive,  so  far  as  the 
right  of  review  here  is  concerned."  Bald- 
win V.  Kansas,  129  U.  S.  52,  57,  32  L. 
Ed.     640. 

Where  a  writ  of  error  is  sued  out  from 
this  court  on  the  ground  that  the  jurors 
were  not  sworn  according  to  the  form  of 
oath  prescribed  by  the  state  statute,  and 
therefore  that  the  jury  was  not  a  legally 
constituted  tribunal,  and  in  consequence 
the  defendant  was  deprived  of  his  life 
without  due  process  of  law  and  denied 
the  equal  protection  of  the  law,  if  no  ob- 
jection was  taken  to  the  form  of  the  oath 
at  the  trial  nor  at  the  making  of  the  mo- 
tions for  a  new  trial,  and  for  an  arrest 
of  judgment  before  the  trial  court,  the  ob- 
jection cannot  be  considered.  The  objec- 
tion should  be  taken  at  the  trial.  Baldwia 
V.   Kansas,  129  U.   S.  52,  32  L.   Ed.  640. 

If  the  plaintiff  jn  error  intends  to  claim 
that  a  state  statute  is  repugnant  to  the 
constitution  of  the  United  States,  he  must 
say  so  at  the  proper  time  and  in  the 
proper  manner.  If  he  claims  in  the  state 
court  that  certain  provisions  of  the  state 
statute  are  repugnant  to  the  constitu- 
tion of  the  state,  but  does  not  in  the 
state  court  draw  in  question  any  statute 
of  the  state  upon  the  ground  that  it  was 
repugnant  to  the  constitution  of  the 
United  States,  nor  specially  set  up  or 
claim  in  that  court,  any  right,  title,  priv- 
ilege or  immunity  under  the  constitutioi* 
of    the    United    States,    the    writ    of    error 


APPEAL  AND  ERROR. 


629 


federal  question  for  the  first  time  in  the  assignments  of  error  in  this  court  is 
insufficient-^^  Where  the  contention  that  a  decision  of  a  state  court  impairs 
the  obHgation  of  a  contract,  is  raised  for  the  first  time  in  this  court,  it  comes  too 
:ate.  The  records  must  show  that  such  proposition  was  set  up  in,  or  considered 
by,  the  state  court. ^'^ 

ppp.  Bmding  Effect  of  State  Practice.— In  General.— This  court  cannot  inter- 
fere with  the  action  of  the  highest  court  of  a  state  in  adhering  to  the  usual  course 
of  its  judgments.  And  accordingly  where  the  supreme  court  of  the  state  declines 
to  pass  upon  a  federal  question,  because  of  the  rule  repeatedly  laid  down  by  the 
supreme  court  of  the  state  in  disposing  of  questions  of  jurisdiction  as  between 
itself  and  intermediate  courts  of  appeal  that:  "The  appellate  jurisdiction  of  the 
supreme  court  contemplates  a  review  only  of  the  matters  submitted  to,  and  ex- 
amined and  determ-ined  by  the  trial  court.  Hence,  it  is  well  settled  that  this  court 
has  no  jurisdiction  of  an  appeal,  on  the  ground  that  a  constitutional  question  is 
involved,  unless  the  question  was  raised  in  and  submitted  to  the  trial  court,"  the 
writ  of  error  will  be  dismissed. ^  Where  the  supreme  court  of  the  state  declines 
to  pass  on  a  federal  question,  because  of  its  rule  of  practice,  which  is  also  the 
practice  in  this  court,  that  the  federal  question  not  having  been  suggested  in  the 
court  below,  could  not  be  made  available  on  appeal,  and  the  attempt  is  made  to 
set  up  such  federal  question  at  some  later  stage  of  the  proceeding  in  the  state 
court,  or  for  the  first  time  in  this  court,  a  motion  to  dismiss  on  the  ground  that 
the  federal  question  was  not  set  up  or  claimed  at  the  proper  time  will  be  allowed. 
And  the  rule  that  the  federal  question  need  not  be  especially  set  up  and  claimed 
where  the  state  court  must  necessarily  have  considered  and  decided  such  a  ques- 
tion, cannot  avail  the  plaintiff  in  error. 2     In  other  words,  the  proper  time   for 


will  be  dismissed.  Levy  v.  San  Francisco, 
167   U.   S.   175,   42    L.    Ed.    126. 

"In  Dewey  v.  Des  Moines,  173  U.  S. 
193,  43  L.  Ed.  6«5,  it  was  held,  that  where 
a  federal  question  is  raised  in  the  state 
courts,  the  party  who  resorts  to  this 
court  cannot  raise  another  federal  ques- 
tion, not  connected  with  it,  which  was 
not  raised  in  any  of  the  courts  below." 
Keokuk,  etc.,  Bridge  Co.  v.  Illinois,  175 
U.   S.   626,   633,   44   L.    Ed.   299. 

Where  the  defense  of  innocent  pur- 
chaser for  value  was  not  set  up  in  the 
state  courts,  it  cannot  be  raised  for  the 
first  time  on  writ  of  error  from  the  su- 
preme court  of  the  United  States  to  the 
highest  court  of  a  state.  Clark  v.  Hering- 
ton.  186   U.   S.   206,   46   L.   Ed.   1128. 

When  an  objection  that  the  obligation 
of  a  contract  has  been  impaired  by  a  state 
statute  as  construed,  was  not  taken  be- 
low, it  is  not  open  here.  Northern  Assur. 
Co.  V.  Building  Association,  203  U.  S. 
106,   51    L.   Ed.   109. 

An  objection  that  a  statute  did  not  pro- 
vide for  notice  is  untenable,  where  the 
objection  is  taken  for  the  first  time  in  this 
court,  and  it  is  shown  by  the  record  that 
notice  was  actually  given.  Detroit,  etc., 
R.  Co.  V.  Osborn,  189  U.  S.  383,  47  L.  Ed. 
860. 

98.  New  York,  etc.,  R.  Co.  v.  New 
York,  186  U.  S.  269.  273,  46  L.  Ed.  1158; 
Cox  V.  Texas,  202  U.  S.  446.  451,  50  L. 
Ed.  1099.  citing  Chicago,  etc.,  R.  Co.  v.  Mc- 
Guire,    196   U.    S.    128,    49    L.    Ed.    413. 

Where  the  record  discloses  no  question 
tinder    the    constitution    or    laws    of    the 


United  States  until  we  come  to  the  as- 
signment of  errors  in  this  court,  then  it 
is  too  late.  Hulbert  v.  Chicago,  202  U. 
S.  275,  280,  50  L.  Ed.  1026;  Burt  v.  Smith, 
203   U.    S.   129,   135,   51    L.   Ed.    121. 

99.  Winona,  etc.,  R.  Co.  v.  Plainview, 
143   U.   S.   371,   36   L.    Ed.    191. 

1.  Layton  v.  Missouri,  187  U.  S.  356, 
47  L-  Ed.  214,  reaffirmed  in  St.  Louis  Ex- 
panded Metal,  etc.,  Co.  v.  Standard  Fire- 
proofing  Co.,  195  U.  S.  627,  49  L.  Ed.  351; 
New  York,  etc.,  R.  Co.  v.  Plymouth,  193 
U.  S.  668,  48  L.  Ed.  839,  citing  Jacobi  v. 
Alabama,  187  U.  S.  133,  47  L-  Ed.   106. 

2.  Chicago,  etc.,  R.  Co.  v.  McGuirc,  196 
U.  S.  128,  49  L.  Ed.  413;  Jacobi  v.  Ala- 
bama, 187  U.  S.  133,  47  L.  Ed.  106;  Lay- 
ton  c'.  Missouri,  187  U.  S.  356,  47  L.  Ed. 
214;  Spies  v.  Illinois,  123  U.  S.  131,  31  L. 
Ed.   80. 

In  Spies  v.  Illinois,  123  U.  S.  131,  31  h. 
Ed.  80,  where  objection  to  the  admission 
of  a  certain  letter,  because  obtained  in 
violation  of  the  constitution  of  the 
L^nited  States,  was  made  in  the  supreme 
court  of  the  state  for  the  first  time,  and 
that  court  declined  to  consider  the  con- 
stitutional question  supposed  to  be  in- 
volved on  the  ground  that  it  was  not 
raised  in  the  trial  court,  Mr.  Chief  Jus- 
tice Waite  said:  "To  give  us  jurisdiction 
under  §  709  of  the  Revised  Statutes  be- 
cause of  the  denial  by  a  state  court  of  any 
title,  right,  privilege  or  immunity  claimed 
under  the  constitution,  or  any  treaty  or 
statute  of  the  United  States,  it  must  ap- 
pear on  the  record  that  such  title,  right, 
privilege    or   immunity   was   'specially   set 


630 


APPEAL  AND  ERROR. 


setting  up  the  right,  title,  privilege  or  immunity  relied  on  is  in  the  trial  court,, 
whenever  that  is  required  by  the  state  practice,  in  accordance  with  which  the 
yghest  coHTt  of  a  state  will  not  revise  the  judgment  of  the  court  below  on  ques- 
tions not  therein  raised.-^  Where  the  assignment  of  error  before  the  highest  state 
court  and  before  the  supreme  court  of  the  United  States,  states  that  a  statute 
involved  in  the  suit  is  in  contravention  of  a  particular  provision  of  the  consti- 
tution of  the  United  States,  but  it  does  not  appear  that  the  highest  court  of  the 
state  dealt  with  the  point,  and  probably  refused  to  do  so  on  the  ground  that  the 
section  was  not  relied  upon  before  the  trial  court,  the  supreme  court  will  not 
review  its  decision  upon  that  ground.'*  Where  a  party — drawing  in  question  in 
the  supreme  court  of  the  United  States  a  state  enactment  as  invalid  under  the 
constitution  of  the  United  States,  or  asserting  that  the  final  judgment  of  the 
highest  court  of  a  state  denied  to  him  a  right  or  immunity  under  the  constitution 
of  the  United  States — did  not  raise  such  question  or  specially  set  up  or  claim 
such  right  or  immunity  in  the  trial  court,  that  court  cannot  review  such  final 
judgment  and  hold  that  the  state  enactment  was  unconstitutional  or  that  the 
right  or  immunity  so  claimed  had  been  denied  by  the  highest  court  of  the  state, 
if  that  court  did  nothing  more  than  decline  to  pass  upon  the  federal  question 
because  not  raised  in  the  trial  court  as  required  by  the  state  practice.^  This 
court  cannot  review  the  final  judgments  of  the  state  courts  on  the  ground  that 
the  validity  of  state  enactments  under  the  constitution  of  the  United  States  had: 
been  adjudged,  where  those  courts  "did  nothing  more  than  decline  to  pass  upon 
the  federal  question  because  not  raised  in  the  trial  court  as  required  by  the  state 
practice."® 


up  or  claimed'  at  the  proper  time  and  in 
the  proper  way.  To  be  reviewable  here 
the  decision  must  be  against  the  right  so 
set  up  or  claimed.  As  the  supreme  covirt 
of  the  state  was  reviewing  the  decision  of 
the  trial  court,  it  must  appear  that  the 
claim  was  made  in  the  court,  because  the 
srapreme  court  was  only  authorized  to  re- 
view the  judgment  for  errors  committed 
there,  and  we  can  do  no  more.  This  is 
not,  as  seems  to  be  supposed  by  one  of 
the  counsel  for  the  petitioners,  a  ques- 
tion of  a  waiver  of  a  right  under  the  con- 
stitution, laws  or  treaties  of  the  United 
States,  but  a  question  of  claim.  If  the 
right  was  not  set  up  or  claimed  in  the 
proper  court  below,  the  judgment  of  the 
highest  court  of  the  state  in  the  action 
i<?  conclusive,  so  far  as  the  right  of  review 
here  is  concerned."  And  see  Brooks  v. 
Missouri,  124  U.  S.  394,  31  L.  Ed.  454; 
Baldwin  v.  Kansas,  129  U.  S.  52,  32  L. 
Ed.  640;  Jacobi  v.  Alabama,  187  U.  S.  133, 
136,   47   L.   Ed.   106. 

3.  Spies  V.  Illinois,  123  U.  S.  131,  31  L. 
Ed.  80;  Jacobi  v.  Alabama,  187  U.  S.  133, 
47  L.  Ed.  106;  Layton  v.  Missouri,  187  U. 
S.  356,  47  L.  Ed.  214;  Erie  R.  Co.  v.  Purdy, 
185  U.  S,  148,  46  L.  Ed.  847;  Mutual  Life 
Ins.  Co.  V.  McGrew,  ]88  U.  S.  291,  308, 
47  L.  Ed.  480,  reaffirmed  in  Herold  v. 
Frank,  191  U.  S.  558,  48  L.  Ed.  302; 
Hughes  V.  Kepley,  191  U.  S.  557,  48  L. 
Ed.  301;  Wakefield  v.  Tassell,  192  U.  S. 
601,  48  L.  Ed.  S83;  Bank  of  Commerce  v. 
Wiltsie,   189  U.   S-   505,  47  L.   Ed.  921. 

4.  Cox  V.  Texas,  202  U.  S.  446,  50  L. 
Ed.    1099,    citing   Jacobi    v.    Alabama,    187 


U.   S.   133,   47   L.   Ed.   106;   Erie   R.    Co.   v- 
Purdy.  185  U.  S.  148.  46  L-  Ed.  847. 

Claim  of  right  under  a  treaty. — Where 
the  plaintiffs  in  error  by  their  specifica- 
tion of  errors  under  Rule  21,  assert  the 
federal  questions  to  be  that  the  decision, 
of  the  state  court  is  against  a  title,  right, 
privilege  or  immunity  claimed  by  the 
plaintiff  in  error  under  treaty,  bHt  this 
court  cannot  find  that  any  claim  under 
the  treaty  was  made  in  the  trial  court,, 
and  the  rule  of  practice  of  the  state 
court  is  that  k  will  not  pass  on  questions 
raised  for  the  first  time  in  that  court,  and 
which  might  and  should  have  been  raised 
in  the  trial  court,  a  federal  question  is 
not  specially  set  up  and  claimed,  at  the 
proper  time  and  in  the  proper  way.  Mu- 
tual Life  Ins.  Co.  v.  McGrew,  188  U.  S. 
291,  47  L.  Ed.  480.  reaffirmed  in  Huber  v.. 
Jennings-Heywood  Oil  Syndicate,  201  U. 
S.  641,  50  L.  Ed.  901;  Herold  v.  Frank,. 
191  U.  S.  558,  48  L.  Ed.  302;  Hughes  v. 
Kepley,  191  U.  S.  557,  48  L-  Ed.  301;. 
Wakefield  v.  Tassell,  192  U.  S.  601,  48 
L.  Ed.  583;  Bank  of  Commerce  v.  Wilt- 
sie,   189   U.    S.   505,   47    L.    Ed.    921. 

5.  Erie  R.  Co.  v.  Purdy,  185  U.  S.  148,, 
154,  46  L.  Ed.  847,  reaffirmed  in  Stuart 
V.  Hauser,  203  U.  S.  585,  51  L.  Ed.  328;. 
Carnahan  v.  Connolly,  187  U.  S.  636,  47 
L.  Ed.  343;  Hughes  v.  Kepley,  191  U.  S. 
557,  48  L.  Ed.  301;  Illinois  v.  Binns,  189 
U.  S.  505,  506,  47  L.  Ed.  921;  Robinson  V. 
Wingate,  198  U.  S.  580,  49  L.  Ed.  1171; 
Bank  of  Commerce  v.  Wiltsie,  189  U.  S. 
505,   47    L-    Ed.   921. 

6.  Erie  R.   Co.  v.  Purdy,  185  U.  S.   148,. 


APPEAL  AND  ERROR. 


631 


It  is  the  settled  rule  in  Alabama  in  criminal  cases,  when  specific  grounds  of 
objection  to  the  admission  of  evidence  are  assigned,  all  others  are  waived."  Nor 
will  the  supreme  court  decide  the  question  of  objections  to  the  admission  of 
evidence  not  made  and  acted  on  in  the  trial  court.* 

The  rule  seems  to  be  settled  in  Indiana,  as  in  many  other  states  that  that 
matter  assigned  in  the  supreme  court  of  the  state  as  error  must  have  been  prop- 
erly presented  in  the  court  below  and  there  adjudicated.^ 

Practice  in  Illinois. — According  to  the  practice  of  the  supreme  court  of  the 
state  of  Illinois  an  error  not  assigned  is  not  open  to  review.  Errors  assigned, 
but  not  noticed  or  relied  on  in  the  brief  or  argument  of  counsel,  will  be  regarded 
as  waived  or  abandoned.     Such  rule  of  practice  will  be  recognized  by  this  court. i* 

Limitations  of  General  Rules. — If  the  highest  court  of  the  state,  by  its 
final  judgment,  sustains  the  validity  of  a  state  enactment  drawn  in  question 
there  as  repugnant  to  the  constitution,  treaties  or  laws  of  the  United  States,  or 
denies  a  right,  privilege  or  immunity  specially  set  or  claimed  in  that  court  for  the 
first  time  under  the  constitution  or  any  treaty,  statute  or  authority  exercised 
under  the  United  States,  this  court  could  review  that  judgment,  although  no  fed- 
eral question  was  distinctly  raised  or  insisted  upon  in  the  trial  court. ^^     If,  upon 


154,  46  L.  Ed.  847;  Layton  v.  Missouri, 
187  U.  S.  356,  361.  47  L.  Ed.  214,  reaffirmed 
in  St.  Louis  Expanded  Metal,  etc.,  Co.  v. 
Standard  Fireproofing  Co.,  195  U.  S.  627, 
49  L.  Ed.  351;  New  York,  etc.,  R.  Co.  v. 
Plymouth.   193  U.   S.   668,  48   L.   Ed.  839. 

7.  Jacobi  v.  Alabama,  187  U.  S.  133, 
47  L.  Ed.  106,  citing  Spies  v.  Illinois, 
123  U.  S.  131,  31  L.  Ed.  80;  Brooks  v. 
Missouri,  124  U.  S.  394,  31  L.  Ed.  454; 
Baldwin  v.  Kansas.  129  U.  S.  52,  33  L. 
Ed.   640. 

8.  Jacobi  v.  Alabama,  187  U.  S.  133, 
47  L.  Ed.  106,  citing  Spies  v.  Illinois,  123 
U.  S.  131,  31  L.  Ed.  80;  Brooks  v.  Mis- 
souri, 124  U.  S.  394,  31  L.  Ed.  454;  Bald- 
win V.  Kansas,  129  U.  S.  52,  32  L.  Ed. 
640. 

The  title,  right,  privilege  or  immunity 
must  be  set  up  or  claimed  in  the  trial 
court.  If  the  right  is  not  set  up  or 
claimed  in  the  trial  court,  the  judgment 
of  the  highest  court  of  the  state  is  con- 
clusive, so  far  as  the  right  of  review  by 
the  supreme  court  of  the  United  States 
is  concerned.  Jacobi  v.  Alabama,  187 
U.  S.  133,  47  L.  Ed.  106,  citing  Spies  v. 
Illinois,  123  U.  S.  131,  31  L.  Ed.  80;  Brooks 
V  Missouri,  124  U.  S.  394,  31  L.  Ed.  454; 
Baldwin  v.  Kansas,  129  U.  S.  52,  32  L. 
Ed.    640. 

An  objection  to  the  admission  of  evi- 
dence, as  being  in  violation  of  the  four- 
teenth amendment,  first  set  up  in  the  su- 
preme court  of  the  state,  and  not  passed 
upon  by  the  state  court,  cannot  be  re- 
viewed by  the  United  States  supreme 
court.  Jacobi  v.  Alabama,  187  U.  S. 
133,  47  L.  Ed.  106,  citing  Spies  v.  Illi- 
nois, 123  U.  S.  131,  31  L.  Ed.  80;  Brooks  z-. 
Missouri,  124  U.  S.  394,  31  L.  Ed.  454; 
Baldwin  v.  Kansas.  129  U.  S.  52,  32  L. 
Ed.  640. 

9.  Cornell  v.  Green.  163  U.  S.  75,  80, 
41  Ed.  76;  Ansbro  z'.  United  States,  159 
U.  S.  695,  40  L.  Ed.  310;  Pine  River 
Logging   Co.   V.   United    States,   186   U.    S. 


279,  46  L.  Ed.  1164;  Chicago,  etc.,  R.  Co. 
V.  McGuire,  196  U.  S.  128,  49  L.  Ed.  41S, 
reaffirmed  in  Skaneateles  Paper  Co.  v. 
Syracuse.  201  U.  S.  642.  50  L.  Ed.  961. 

10.  Hulbert  v.  Chicago,  202  U.  S.  275, 
281,  50  L.  Ed.  1026,  citing  Erie  R.  Co.  v, 
Purdy,  185  U.  S.   148,   153,  46   Ed.   847. 

11.  Erie  R.  Co.  v.  Purdy,  185  U.  S.  148, 
153,  46  L.  Ed.  847,  reaffirmed  in  Stuart 
V.  Hauser,  203  U.  S.  585,  51  L.  Ed.  32S; 
Carnahan  v.  Connolly,  187  U.  S.  636,  47  1-. 
Ed.  343;  Hughes  v.  Kepley,  191  U.  I. 
557,  48  L.  Ed.  301;  Illinois  v.  Binns.  1§» 
U.  S.  505,  47  L.  Ed.  921;  Robinson  v.  Win- 
gate.  198  U.  S.  580,  A9  L.  Ed.  1171;  Bank 
of    Commerce    v.    Wiltsie,    189    U.    S.    50a, 

47  L.  Ed.  921;  Jacobi  v.  Alabama,  187  U. 
S.  133,  47  L.  Ed.  166,  citing  Spies  v. 
Illinois,  123  U.  S.  131,  31  L.  Ed.  80; 
Brooks  v.'  Missouri,  124  U.  S.  394,  31  L. 
Ed.  454;  Baldwin  v.  Kansas.  129  U.  S.  52, 
32  L.  Ed.  640. 

"As  said  in  Carter  t'.  Texas,  177  U.  S. 
442.  447,  44  L.  Ed.  839.  'the  question 
whether  a  right  or  privilege,  claimed 
under  the  constitution  or  laws  of  the 
United  States,  was  distinctly  and  suffi- 
ciently pleaded  and  brought  to  the  notice 
of  a  state  court,  is  itself  a  federal  ques- 
tion, in  the  decision  ef  which  this  court, 
on  writ  of  error,  is  not  concluded  by  the 
view  taken  by  the  highest  court  of  the 
state.  Neal  v.  Delaware.  103  U.  S.  370, 
396,  397,  26  L-  Ed.  567;  Mitchell  v.  Clark, 
110  U.  S.  633,  645,  28  L.  Ed.  279;  Boyd  v. 
Nebraska,  143  U.  S.  135,  180,  36'  L.  Ed. 
103.'" 

Erie  R.  Co.  v.  Purdy,  185  U.  S.  148,  152, 
153,  46  L.  Ed.  847,  reaffirmed  in  Stuart  v. 
Hauser,  203  U.  S.  585.  51  L.  Ed.  a28;  Car- 
nahan v.  Connolly,  187  U.  S.  636,  47  L- 
Ed.  343;  Hughes  v.  Kepley,  191  U.  S.  557, 

48  L.  Ed.  301;  Illinois  v.  Binns,  189  U.  S. 
506,  47  L.  Ed.  921;  Robinson  z>.  Wingate, 
198  U.  S.  580.  49  L.  Ed.  1171;  Bank  of 
Commerce  v.  Wiltsie,  189  U.  S.  505,  47 
L.    Ed.    921. 


632  APPEAL  AND  ERROR. 

examining  the  record,  the  supreme  court  of  the  United  States  finds  that  a 
federal  question  was  properly  raised,  or  that  a  federal  right  or  immunity  was 
specially  claimed  in  the  trial  court,  then  the  jurisdiction  of  that  court 
is  not  defeated  by  the  mere  failure  of  the  highest  court  of  the  state  to 
dispose  of  the  question  so  raised  or  to  pass  upon  the  right  or  immunity  so 
claimed. ^2  An  objection  that  the  federal  questions  presented  cannot  be  con- 
sidered, "because  they  were  not  raised  in  time  and  the  proper  w^ay,"  and  that  the 
supreme  court  of  the  state  did  nothing  more  than  decline  to  pass  on  the  ques- 
tions because  they  had  not  been  raised  in  the  trial  court,  as  required  by  the  state 
practice,  will  be  of  no  avail,  where  the  plaintifT  in  error  in  the  state  court  makes 
a  motion  to  amend  in  which  he  claims  a  federal  question,  and  on  the  trial  asks 
an  instruction  based  on  his  rights  thereunder.  If  the  rights  asserted  actually  ex- 
isted, the  plaintiff  in  error  was  entitled  to  an  instruction  directing  a  verdict  in 
his  favor.    The  claim  is  therefore  made  in  time.  ^'-^ 

Where  a  state  court  has,  in  fact,  decided  the  federal  question  adversely 
to  the  plaintiiT,  error  will  lie,  notwithstanding  the  state  court  may  have  violated 
its  own  rules  of  practice  in  making  such  decision. ^^ 

(11)  Detcrmmation  of  Jurisdiction. — It  is  not  the  province  of  a  state  court  to 
determiue  the  jurisdiction  of  the  United  States  supreme  court. ^^  The  juris- 
diction of  the  supreme  court  of  the  United  States  to  review  a  decision  disposing 
of  a  federal  question  does  not  depend  upon  the  conception  of  the  state  court 
or  of  some  of  the  parties  to  the  record  as  to  the  correctness  of  the  decision  ren- 
dered.^^  IMoreover,  whether  this  court  has  jurisdiction  to  review  the  decision 
of  the  state  court  is  a  question  which  this  court  has  always  looked  into,  whether 
the  paint  be  raised  by  counsel  or  not.^'''  In  the  language  of  Mr.  Justice  Day: 
"In  every  case  which  comes  to  this  court  on  writ  of  error  or  appeal  the  question 
of  jurisdiction  must  be  first  answered,  whether  propounded  by  counsel  or  not."'^ 

(12)  Federal  Questions  Raised  Must  Be  Ideiptical  in  Both  Courts. — If  a  fed- 
eral question  is  raised  in  the  state  court,  a  party  bringing  the  case  to  the  supreme 
court  of  the  United  States  cannot  raise  in  that  court  another  federal  question  net 
raised  below. ^^  "Parties  are  not  confined  here  to  the  same  arguments  which  were 
advanced  in  the  courts  below  upon  a  federal  question  there  discussed. "2<^     But 

12.  Erie  R.  Co.  v.  Purdy,  185  U.  S.  148,  17.  Bridge  Proprietors  v.  Hobokeii, 
154,  46  L.  Ed.  847,  reaffirmed  in  Stuart  v.  etc.,  Co.,  l  Wall.  116,  17  L.  Ed.  571;  Arm- 
Hauser,  203  U.  S.  585,  51  L.  Ed.  328;  Car-  strong  z'.  The  Treasurer,  16  Pet.  281, 
nahan    v.    Connolly,    187    U.    S.    636,    47    L.  284,  10  L.   Ed.  965. 

Ed.    343;    Hughes    v.    Kepley,    191    U.    S.  18.  Defiance  Water  Co.  v.  Defiance,  191 

557,   48   L.    Ed.    301;    Illinois   v.    Binns,    189  U.  S.  184,  48  L-  Ed.  140;   Giles  v.  Teasley, 

U.    S.    5«5,    47    L.    Ed.    921;     Robinson    v.  193  U.   S.   146,  160,   161,  48   L.   Ed.   655,  re- 

Wingate,    198   U.    S.    580.    49    L.    Ed.    1171;  affirmed  in  Delahanty  v.  Pitkin,  199  U.  S. 

Ba«k   of   Commerce   v.   Wiltsie,    189    U.    S.  602.    50    L-    Ed.    328. 

505,   47   L.   Ed.   921.  19.    Chapin  v.   Eye,  179  U.   S.   127,  45  L. 

13.  National  Mutual  Building,  etc.,  Ed.  119,  citing  and  approving  Zadig  t'. 
Ass'h  v.  Brahan,  193  U.  S.  635,  48  L-  Ed.  Bnldwin.  166  U.  S.  485.  41  L.  Ed.  1037; 
823,  reaffirmed  in  National  Mutual  Build-  Miller  z'.  Cornwall  R.  Co.,  168  U.  S.  131, 
ing  Association  z'.  Parnham,  194  U.  S.  630,  42  L.  Ed.  409;  Dewey  v.  Des  Moines,  173 
48  L.  Ed.  1158,  citing  Green  Bay,  etc.,  U.  S.  *33,  43  L.  Ed.  665;  and  Keokuk, 
Canal  Co.  v.  Patten  Paper  Co.,  172  U.  etc..  Bridge  Co.  v.  Illinois,  175  U.  S.  626, 
6.  58,  43  L.  Ed.  364;  Rothchild  v.  Knight,  633,  44  L-  Ed.  299.  reaffirmed  in  Herold 
184  U.  S.  334,  46  L.  Ed.  573;  Meyer  z:  v.  Frank,  191  U.  S.  558.  48  L.  Ed.  302; 
Richmond,  172  U.  S.  82,  43  L.  Ed.  374;  Brewster  v.  Cahill,  194  U.  S.  629,  48  L. 
Mallett  V.  North  Carolina,  181  U.  S.  '589^  Ed.  1158;  Gates  v.  Commissioners,  183  U. 
45  L.  Ed.  1015;  Dewev  v.  Des  Moines"^  S.  693,  46  L.  Ed.  393;  Huber  v.  Jennings- 
173   U.   S.   193,  43   L.    Ed.   665.  Heywood    Oil    Syndicate,    201    U.    S.    641, 

14.  Darrington  v.  Bank  of  Alabama,  13       50    L.    Ed.    901. 

Hew.  12,  14   L.   Ed.   30.  20.     Dewey   v.    Des    Moines,    173    U.    S. 

15.  Who  determines  jurisdiction. —  193,  198,  43  L.  Ed.  665.  reaffirmed  in  In- 
Wabash  R.  Co.  v.  Pearce,  192  U.  S.  179,  diana  Power  Co.  v.  Elkhart  Power  Co., 
184,    48    L.    Ed.    397.  187  U.  S.   636,  47  L.  Ed.  343. 

16.  Board  of  Liquidation  v.  Louisiana,  If  the  question  were  only  an  enlarge- 
179  U.   S.  622,  45   L-   Ed.  347.  ment  of  the  one  mentioned  in  the  assign- 


APPEAL  AND  ERROR. 


633 


M-here  there  is  substantial  identity  between  the  federal  question  raised  in  the 
iprenie  court  of  the  slate  and  that  raised  in  the  supreme  court  of  the  United 
Slates,  a  motion  to  dismiss  for  want  of  jurisdiction  upon  the  ground  that  the 
iederal  question  raised  in  the  supreme  court  of  the  United  States  was  xiot  that 
laised  in  the  court  below,  must  be  denied.-^ 

q.  Decisions  Reviezcable — (1)  In  General. — Where  a  judgment  or  decree  is 
brought  to  this  court  by  a  wit  of  error  to  a  state  court  for  review,  the  case  to 
warrant  the  exercise  of  jurisdiction  on  our  part  must  come  within  one  of  three 
categories:  1.  There  must  have  been  drawn  in  question  the  validity  of  a  treaty 
or  statute  of.  or  authority  exercised  under,  the  United  States;  and  the  decision 
must  have  been  against  the  claim  which  either  was  relied  upon  to  maintain.  2.  Or 
there  must  have  been  drawn  in  question  a  statute  of,  t)r  authority  exercised  under, 
a  state,  upon  the  ground  of  repugnance  to  the  constitution,  or  a  law  or  treaty  of 
the  United  States ;  and  the  decision  must  have  been  in  favor  of  the  validity  of  the 
state  law  or  authority  in  question.  3.  Or  a  right  must  have  been  claimed  under 
the  constitution,  or  a  treaty,  or  law  of,  or  by  virtue  of  a  commission  held  or  au- 
thority exercised  under,  the  United  States ;  and  the  decision  must  have  been 
against  the  right  so  claimed. -^    There  is  no  general  right  to  a  writ  of  error  from 


ment  of  errors,  or  if  it  were  so  connected 
with  it  in  substance  as  to  form  but  an- 
other ground  or  reason  for  alleging  the 
invalidit}'  of  the  personal  judgment,  we 
should  have  no  hesitation  in  holding 
the  assignment  sufficient  to  permit  the 
question  to  be  now  raised  and  argued. 
Dewey  v.  Des  Moines,  173  U.  S.  193,  197, 
43  L-  Ed.  665.  reaffirmed  in  Indiana  Power 
Co.  V.  Elkhart  Power  Co..  187  U.  S.  636, 
47   L.    Ed.    343. 

Having,  however,  raised  only  one  fed- 
eral question  in  the  court  below,  a  party 
cannot  come  into  this  court  from  a  state 
court  and  argue  the  question  thus  raised, 
and  also  another  not  connected  with  it 
and  which  was  not  raised  in  any  of  the 
courts  below  and  does  not  necessarily 
arise  on  the  record,  although  an  inspec- 
tion of  the  record  shows  the  existence  of 
facts  upon  which  the  question  might 
have  been  raised.  Dewey  v.  Des  Moines, 
173  U.  S.  193,  198,  43  L.  Ed.  665,  re- 
affirmed in  Indiana  Power  Co.  v.  Elk- 
hart Power  Co.,  187  U.  S.  636,  47  L.  Ed. 
343. 

Where  it  is  objected  in  the  state  court 
that  a  statute  is  in  conflict  with  a  partic- 
ular provision  of  the  constitution  of  the 
United  States  and  the  decision  of  the 
state  court  is  in  favor  of  its  validity,  the 
supreme  court  of  the  United  States  will 
not  consider  objections  based  upon  other 
clauses  of  the  constitution  which  were 
not  invoked  in  the  state  court.  Cox  v. 
Texas.  202  U.  S.  446,  50  L.   Ed.  1099. 

21.  Minneapolis,  etc.,  R.  Co.  v.  Gard- 
ner,   177    U.    S.    332,    44    L.    Ed.    793. 

A  railwaj'  company  was  incorporated 
by  an  act  of  the  legislature  of  the  terri- 
tory of  Minnesota  in  1853.  I^  1858  the 
state  of  Minnesota  by  its  constitution 
imposed  liability  for  corporate  debts  upon 
stockholders.  By  the  act  of  Minnesota 
of    March    2,    1881,    the    consolidation    of 


several  railway  companies  was  authorized. 
Suit  was  brought  to  enforce  the  stcck- 
ho'lders'  liability  against  the  shareholders 
of  the  consolidated  company.  The  pro- 
tection of  §  10,  art.  1,  and  the  fourteenth 
amendment  of  the  constitution  of  the 
United  States  was  invoked  in  the  assign- 
ment of  errors  on  appeal  to  the  supreme 
court  of  ^linnesota.  The  shareholders 
claimed  the  law  of  1853  as  the  contract 
and  not  explicitly  that  of  1881;  but  they 
also  claimed  that  the  act  of  1881  did  not 
create  a  new  corporation,  and  whether  it 
did  or  not,  that  the  act  continued  the 
immunity  from  liability  for  the  corporate 
debts  to  the  stock  and  stockholders  of 
the  consolidated  corporation.  It  was  con- 
tended that  the  state  court  did  not  de- 
cide the  federal  question,  but  decided 
that  the  act  of  1881  created  a  new  cor- 
poration which  became  subject  to  the 
constitutional  provision  imposing  liabil- 
ity upon  stockholders  for  corporate  debts, 
and  rested  its  judgment  on  that  construc- 
tion. It  was  held,  thtt  this  makes  sub- 
stantial identity  between  the  federal  ques- 
tion in  the  supreme  court  of  the  state 
and  in  the  supreme  court  of  the  United 
States.  Minneapolis,  etc.,  R.  Co.  v.  Gard- 
ner,   177    U.    S.    332,    44    L.    Ed.    793. 

22.  Rev.  Stat.,  132,  §  709;  Sevier  v. 
Haskell,  14  Wall.  12.  15.  20  L.  Ed.  827; 
Weston  V.  Charleston,  2  Pet.  449,  7  L. 
Ed.  481;  McGuire  v.  Massachusetts,  3 
Wall.  382,  385,  18  L.  Ed.  164;  Daniels  v. 
Tearney,  102  U.  S.  415,  417,  26  L.  Ed.  187; 
Home  Ins.  Co.  v.  Augusta  Council,  93  U. 
S  116,  23  L.  Ed.  825;  McKenna  v.  Simp- 
son.  129  U.   S.   506,  510.  32   L.   Ed.   771. 

This  court  has  repeatedly  declared  that 
it  is  only  under  the  25th  section  of  the 
judiciary  act  that  it  takes  cognizance  of 
error  committed  in  the  highest  courts  of 
a  state.  There  must  be  a  federal  question, 
within  the  terms  of  that  section,  to  en- 
able us  to  review  the  decision  of  a   state 


634 


APPEAL  AXD  ERROR. 


the  United  States  supreme  court  to  the  courts  of  a  state.  There  is  but  a  special 
right,  a  right  to  bring  such  cases,  and  such  cases  only,  as  disclose  a  federal  ques- 
tion distinctly  ruled  adversely  to  the  plaintifit  in  error. ^^^  The  mere  fact  that  the 
construction  and  the  effect  of  Federal  statutes  were  in  a  general  way  discussed 
and  considered  in  the  state  court,  will  not  justify  the  United  States  supreme  court 
in  taking  jurisdiction. ^^ 

(2)  Criminal  Cases — aa.  I)i  General. — From  the  earliest  organization  of  the 
courts  of  the  United  States,  final  judgments,  whether  in  civil  or  in  criminal  cases, 
rendered  by  the  highest  court  of  a  state  in  which  a  decision  in  the  case  could  be 
had,  against  a  right  specially  set  up  or  claimed  under  the  constitution,  laws  or 
treaties  of  the  United  States,  may  be  re-examined  and  reversed  or  affirmed  by  this 
court  on  a  writ  of  error. ^^  So  judgments  of  state  courts  in  criminal  as  well  as  in 
civil  cases  may  be  reviewed  under  this  section. ^^     But  when  the  highest  court  of 


tribunal.      Caperton    v.    Ballard,    14    Wall. 
238,  341,  20  L.   Ed.   885. 

Section  709  of  the  Revised  Statutes 
gives  a  review  on  writ  of  error  to  the 
judgments  of  the  state  courts  whenever 
they  sustain  the  validity  of  a  state  statute 
or  of  an  authority  exercised  under  a  state, 
alleged  to  be  repugnant  to  the  constitu- 
tion or  laws  of  the  United  States.  Carter 
V.  Greenhow,  114  U.  S.  317,  29  L-  Ed. 
202;  Pleasants  v.  Greenhow,  114  U.  S. 
323,  29  L.  Ed.  204;  Holt  v.  Indiana  Mfg. 
Co.,  176  U.  S.  68,  72,  44  L-  Ed.  374. 

Final  judgments  or  decrees  in  any  suit 
in  the  highest  court  of  law  or  equity  of 
a  state,  in  which  a  decision  in  the  suit 
could  be  had,  may  be  removed  here  for 
re-examination  if  they  involve  some  one  or 
more  of  the  questions  specified  in  the  sec- 
tion conferring  the  jurisdiction,  and  other- 
wise come  within  the  rules  which  reg- 
ulate that  jurisdiction.  Slaughter-House 
Cases,  10  Wall.  273,  298,  19  L-   Ed.  915. 

Controversies  determined  in  a  state 
court  which  are  subject  to  re-examination 
in  this  court,  are  such,  and  such  only, 
as  involve  some  one  or  more  of  the  ques- 
tions enumerated  and  described  in  the 
twenty-iifth  section  of  the  judiciary  act, 
and  which  have  passed  to  final  judgment 
or  decree  in  the  highest  court  of  law  or 
equity  of  a  state  in  which  a  decision  in  a 
suit  could  be  had,  as  provided  by  the  con- 
stitution and  laws  of  the  state.  Slaughter- 
House  Cases,  10  Wall.  273,  290,  19  L.  Ed. 
915. 

Recommendation  to  counsel. — In  Hur- 
ley V.  Street,  14  Wall.  85,  20  L.  Ed.  786, 
the  court  dismissing,  as  involving  no  fed- 
eral question,  an  appeal  from  the  supreme 
court  of  a  state  taken  on  a  false  assump- 
tion that  the  case  fell  within  the  25th 
section  of  the  judiciary  act  of  1789,  called 
the  attention  of  the  bar  of  the  court  gen- 
erally to  the  fact  that  much  expense 
would  be  saved  to  suitors,  if  before  they 
advised  them  to  appeal  from  decisions 
of  the  highest  state  courts  to  this  one, 
they  would  see  that  the  case  was  one  of 
which  this  court  had  cognizance  on  ap- 
peal. 

23.    Beals  v.  Cone,  188  U.   S.   184,  47  L. 


Ed.    435,   reaffirmed    in    Stuart   v.    Hauser, 
203    U.    S.    585,   51    L.    Ed.    328. 

24.  Beals  v.  Cone,  188  U.  S.  184,  47  L. 
Ed.  435,  reaffirmed  in  Stuart  v.  Hauser, 
203   U.    S.    585,   51    L.    Ed.    328.  ' 

25.  Acts  of  September  24,  1789,  c.  20, 
§  25,  1  Stat.  85;  February  5,  1867,  c.  28, 
§  2,  14  Stat.  386;  Rev.  Stat.,  §  709;  Martin 
T'.  Hunter,  1  Wheat.  304,  4  L.  Ed.  97; 
Cohens  v.  Virginia,  6  Wheat.  264,  5  L. 
Ed.  257;  Whitten  v.  Tomlinson,  160  U. 
S.  23],  238,  40  L.  Ed.  406,  reaffirmed  in 
Washington  State  v.  Coovert,  164  U.  S. 
702,  41  L.  Ed.  1182;  Rev.  Stat.,  §  709; 
Tinsley  v.  Anderson,  171  U.  S.  101,  .105, 
43    L.    Ed.    91. 

26.  '"Neither  the  act  of  1789,  nor  the 
act  of  1867,  which  in  some  particulars 
supersedes  and.  replaces  the  act  of  1789, 
makes  any  distinction  between  civil  and 
criminal  cases  in  respect  to  the  revision 
of  the  judgments  of  state  courts  by  this 
court;  nor  are  we  aware  that  it  has  even 
been  contended  that  any  such  distinction 
exists.  Certainly  none  has  been  recog- 
nized here.  No  objection,  therefore,  to 
the  allowance  of  the  writ  of  error  asked 
for  by  the  petition  can  arise  from  the 
circumstance  that  the  judgment,  which 
we  are  asked  to  review,  was  rendered  in 
a  criminal  case."  Twitchell  v.  Pennsyl- 
vania, 7  Wall.  321,  324,  10  L.  Ed.  228. 

A  writ  of  error  will  not  be  allowed  in  a 
criminal  case  under  the  25th  section  of  the 
judiciary  act  of  1789,  on  the  ground  that 
the  indictment,  upon  which  the  judgment 
of  the  state  court  was  rendered,  was 
framed  under  a  statute  of  the  state  in  dis- 
regard of  the  5th  and  6th  amendments  of 
the  constitution  of  the  United  States, 
which  statute  is  repugnant  to  the  provi- 
sion of  the  6th  amendment  which  de- 
clares "that  in  all  criminal  prosecutions 
the  accused  shall  enjoy  the  right  to  be  in- 
formed of  the  nature  and  cause  of  the  ac- 
cusation against  him."  Because  the  5th 
and  6th  amendments  were  not  designed 
as  limits  upon  the  state  governments  in 
reference  to  their  own  citizens,  but  ex- 
clusively as  restrictions  upon  federal 
power.  Twitchell  v.  Pennsylvania,  7 
Wall.   321,   19   L.    Ed.   223. 

Former  jeopardy. — This  court  has  juris- 


APPEAL  AXD  ERROR. 


635 


a  state  holds  that  a  judgment  of  one  of  its  inferior  courts  imposing  punishment 
in  a  criminal  case  is  valid  and  binding  to  the  extent  in  which  the  law  of  the  state 
authorized  the  punishment,  and  only  void  for  the  excess,  we  cannot  treat  it  as 
wholly  void,   there  being  no  principle  of   federal  law  invaded   in  such  ruling.-" 

Contempt  proceedings. — The  holding  of  a  state  court  that  the  imprisom-nent 
for  contempt  was  limited  by  the  state  statute  to  three  days  for  a  quasi  criminal 
contempt  as  a  punishment,  and  not  to  a  civil  contempt,  where  the  authority  of  the 
court  is  exercised  by  way  of  compelling  obedience,  presents  no  federal  question.^s 

Requisites  and  Sufficiency  of  Indictment. — Rulings  of  the  state  court,  in 
respect  of  the  sufficiency  of  an  indictment,  present  no  federal  question. ^^    An  ob- 


diction  to  review  a  judgment  of  a  state 
court  convicting  a  person  of  a  criminal  of- 
fense, when  the  defendant  sets  up  at  the 
trial,  especially,  an  immwn-ity  from  a  sec- 
ond trial  for  the  same  ofiense  by  rea.=on 
of  the  5th  amendment  to  the  constitu- 
tion of  the  United  States.  Bohanan  v. 
Nebraska,  118  U.  S.  231.  30  L.  Ed.   71. 

Denial  of  right  to  "speedy  public  trial." 
— A  writ  of  error  will  not  he  from  this 
court  to  the  highest  court  of  a  state  to 
review  its  judgaient  in  a  criminal  case,  on 
the  ground  that  the  court  barred  various 
persons  from  the  courtroom  during  the 
trial,  and  thereby  derwcd  the  accused  a 
public  trial,  where  no  reliance  seeras  to  be 
placed  in  the  trial  court  upon  any  federal 
law,  but  ouly  on  the  bill  of  rights  in  the 
state  constitution  which  provides  that  in 
criminal  prosecutions  the  acctised  shall 
have  the  right  to  a  speedy  pubHc  trial  by 
an  impartial  jury  of  the  county.  Brooks 
V.   Missouri,   124  U.   S.  394,  31    L.   Ed.   454. 

27.  In  re  Graham,  138  U.  S.  461,  464, 
34   L.    Ed.    1051. 

The  conduct  of  a  criminal  trial  in  a 
state  court  cannot  be  reviewed  by  this 
court  unless  the  trial  is  had  under  some 
statute  repugnant  to  the  constitution  of 
the  United  States,  or  was  so  conducted 
as  to  deprive  the  accused  of  some  right  or 
immunity  secured  to  him  by  that  instru- 
ment. Alere  error  in  administering  the 
criminal  law  of  a  state  or  in  the  conduct 
of  a  criminal  trial — no  federal  right  be- 
ing invaded  or  denied — is  beyond  the  re- 
visory power  of  this  court  under  the  stat- 
utes regulating  its  jurisdiction.  See  An- 
drews V.  Swartz,  156  U.  S.  272,  276,  39  L. 
Ed.  422;  Bergemann  v.  Backer,  157  U.  S. 
655,  659,  39  L.  Ed.  845.  Indeed,  it  would 
not  be  competent  for  congress  to  con- 
fer such  power  upon  this  or  any  other 
court  of  the  United  States.  Gibson  z: 
Mississippi,  162  U.  S.  565,  591,  40  L.  Ed. 
1075. 

28.  Tinsley  v.  Anderson,  171  U.  S.  101, 
43   L.    Ed.   91. 

29.  Barrington  v.  Missouri,  205  U.  S. 
483,  51  L.  Ed.  890,  citing  Howard  z'.  Flem- 
ing, 191  U.  S.  126,  135,  48  h-  Ed.  121;  In  re 
Robertson,  156  U.  S.  183.  39  L.  Ed.  389, 
citing  Leeper  v.  Texas,  139  U.  S.  462,  35 
L.  Ed.  225;  Duncan  v.  Missouri,  152  U. 
S.   377,   38    L.    Ed.    485. 

The   sufficiency   of   the   indictment,    the 


degree  of  the  offense  charged,  the  admis- 
sibility of  the  testimony  objected  to,  and 
the  alleged  disqualification  of  the  juror 
because  he  is  not  a  freeholder,  are  all 
matters  with  the  disposition  of  w+iich  this 
court  has  nothing  to  do  upon  a  writ  of 
error  to  the  state  court.  Leeper  v.  Texas, 
139  U.  S.  462,  35  L.  Ed.  225;  Caldwell  v. 
Texas,  137  U.  S.  692,  34  L.  Ed.  816;  Davis 
V.  Texas,  139  U.  S.  651,  652,  35  L.  Ed. 
300. 

A  decision  of  the  highest  court  upo.n 
a  writ  of  habeas  corpus  that  the  peti- 
tioner should  be  extradited,  leaving  the 
courts  of  the  state  from  which  he  was 
a  fugitive  to  decide  whether  the  indict- 
ment was  sufficient  and  whether  the  stat- 
ute of  that  state  was  in  violation  of 
the  constitution  and  laws  of  the  United 
States,  raises  no  federal  question.  Pearce 
V.  Texas,   155  U.   S.  311,  39   L.   Ed.  164. 

Where  the  state  court  has  jurisdiction 
of  the  offense  charged,  and  of  the  accused^ 
it  is  for  them  to  determine  whether  the 
indictment  in  the  case  sufficiently  charged 
the  crime  of  murder  in  the  first  degree. 
Kohl  V.  Lehlback,  l&e  U.  S.  293,  40  L. 
Ed.  432,  citing  Caldwell  v.  Texas,  137  U. 
S.  692.  34  L.  Ed.  816;  Bergemann  v. 
Backer,   157  U.   S.  655,  39   L.   Ed.  845. 

Demurring  to  an  indictment  in  a  state 
court  on  the  ground  that  by  reason  of  the 
inconsistency,  multiplicity,  and  repug- 
nancy of  the  different  counts  in  such  in- 
dictment the  defendant  is  being  pro- 
ceeded against  in  violation  of  the  state 
and  federal  guaranty  of  due  process  of 
law,  and  in  violation  of  his  constitutional 
right  to  be  specifically  informed  of  the 
nature  and  cause  of  the  accusation  against 
him,  does  not  raise  a  federal  question  of 
sufficient  merit  to  sustain  a  writ  of  error 
from  the  supreme  court  of  the  United 
States.  Barrington  v.  Missouri,  205  U. 
S.  483,  51  L-  Ed.  890,  citing  Howard  v. 
Fleming,  191  U.  S.   126,  48  L-  Ed.  121. 

A  decision  of  the  highest  state  court 
that  the  defendant  in  a  criminal  case  has 
been  tried  in  accordance  with  the  local 
procedure,  although  the  names  of  all  the 
witnesses  were  not  indorsed  on  the  indict- 
ment, cannot  be  reviewed  in  the  supreme 
court  of  the  United  States  on  the  theory 
that  a  meritorious  federal  question  was 
involved  in  the  claim  that  the  accused  was 
a  subject  of  Great  Britain,  and,  by  virtue 


636  APPEAL  AXD  ERROR. 

jection  that  an  indictment  in  a  state  court  did  not  sufficiently  inform  the  accused  of 
the  nature  and  cause  of  the  accusation  against  him,  and  therefore  denied  him  due 
process  of  law,  raises  no  federal  question,  because  the  sufficiency  of  the  indict- 
ment is  clearly  a  matter  for  the  state  courts  to  determine.-'^*' 

What  Are  Crimes  under  the  State  Laws. — A  decision  of  the  supreme  court 
of  the  state  that  a  conspiracy  to  defraud  was  a  crime  punishable  under  the  laws  of 
the  state,  does  not  present  a  federal  question,  and  the  decision  of  the  state  court  is 
conclusive  upon  the  matter  in  the  supreme  court  of  the  United  States.^i 

Reprieve,  Amnesty  and  Pardon. — The  power  of  a  governor  of  a  state  to 
grant  a  reprieve  to  a  condemned  criminal  is  a  slate  question,  and  not  reviewable 
bv  this  court  on  M'rit  of  error."- 

Ex  Post  Facto  Laws. — A  decision  of  the  highest  court  of  a  state  that  the 
plaintiff  in  errcr  who  had  been  convicted  and  sentenced  to  be  hanged  by  the  state 
court,  was  to  be  punished  under  the  law  as  it  existed  at  the  time  of  the  commission 
of  the  crime  of  which  he  was  convicted,  raises  no  federal  question.^^ 

Self-incrimination. — No  federal  question  which  will  sustain  a  writ  of  er- 
ror from  the  supreme  court  of  the  United  States  to  a  state  court  is  involved 
in  the  contention  that  the  defendant  in  a  criminal  case  was  compelled  to  be  a 
witness  against  himself,  contrary  to  the  5th  amendment  to  the  federal  constitu- 
tion, since  this  amendment  does  not  operate  as  a  restriction  of  the  powers  of  the 
state,  but  w^as  intended  to  operate  solely  upon  the  federal  government.^*  And 
if  the  admission  of  the  testin-!ony  does  not  violate  the  rights  of  the  plaintiff  in 
error  under  the  state  constitution  and  lav,-s,  it  cannot  involve  a  question  of  due 
process  of  law  of  sufficient  merit  to  sustain  a  writ  from  the  supreme  court  of  the 
United  States.^^ 

bb.  Habeas  Corpus  to  State  Courts. — In  General, — It  is  the  settled  doctrine 
of  this  court  that  although  the  circuit  courts  of  the  United  States,  and  the  several 
justices  and  judges  thereof,  have  authority,  under  existing  statutes,  to  discharge, 
upon  habeas  corpus,  one  held  in  custody  by  state  authority  in  violation  of  the 
constitution  or  of  any  treaty  or  law  of  the  United  States,  the  court,  justice  or 
judge  has  a  discretion  as  to  the  time  and  mode  in  which  the  power  so  conferred 
shall  be  exerted  ;  and  that  in  view  of  the  relations  existing,  under  our  system  of 
government,   between  the  judicial  tribunals  of  the  Union  and  of  the  several  states, 

of   treaties,   the   law   of   nations,   the   laws  justice    of    its    supreme    court,    to    whom, 

and  constitution  of  the  United  States,  and  severally,   he   applied,   and   their   action   is 

the    laws    of    the    state,    was    entitled    to  not   open   to   review   here.     With   the   dis- 

know    who    were    the    witnesses    against  position    of    state    questions    by    the    ap- 

him.      Harrington    v.    Missouri,    205    U.    S.  propriate    state    authorities,    it    is    not   the 

483,  51  L.  Ed.  890.  province    of    this    court    to    interfere,    and 

30.  Moore  v.  Missouri,  159  U.  S.  67.3,  there  is  no  basis  for  the  suggestion  of 
40  L.  Ed.  301,  citing  Caldwell  v.  Texas,  any  violation  of  the  constitution  of  the 
137    U.    S.    692,    34    L.    Ed.    816.  United   States;   the   denial   of  due   process 

31.  Howard  v.  Fleming,  191  U.  S.  126,  of  law;  or  deprivation  of  any  right,  priv- 
48  L.  Ed.  121,  following  in  Burt  v.  Smith,  ilege,  or  immunity  secured  to  him  by  the 
203  U.  S.  129,  135.  51  L.  Ed.  121,  citing  constitution  or  laws  of  the  United  States, 
and  approving  Caldwell  v.  Texas,  137  U.  Hallinger  v.  Davis,  146  U.  S.  314,  36  L. 
S.  692,  698,  34  L-  Ed.  816;  Davis  v.  Texas,  Ed.  986;  In  re  Kemmler,  136  U.  S.  436,  34 
139  U.  S.  651,  653,  35  L.  Ed.  300;  Berge-  L-  Ed.  519;  Caldwell  f.  Texas,  137  U. 
mann  v.  Backer,  157  U.  S.  655.  39  L.  Ed.  S.  692,  34  L.  Ed.  816;  In  re  Converse.  137 
845.  U.  S.  624,  34  L.  Ed.  796;  McNulty  v.  Cali- 

32.  The  contention  that  petitioner  for  fornia,  149  U.  S.  645,  37  L.  Ed.  882;  Lam- 
a  writ  of  habeas  corpus  cannot  be  made  to  bert  v.  Barrett,  157  U.  S.  697,  699.  39  L. 
pay   the   penalty   for   the   crime   of   which  Ed.    865. 

he   was   adjudged    guilty,   because   he    was  33.     McNulty    v.    California.    149    U.    S. 

not  executed  at  the  time  originally  desig-  645,  37  L.   Ed.   8S2. 

nated,   by   reason    of   the    interposition    of  34.     Barrington    v.    ^lissouri,    205    U.    S. 

the    governor    at   his    instance,    which    pe-  483,   51   L.   Ed.   890,  citing   Brown  v.   New 

titioner  alleges  was,  as  matter  of  construe-  Jersey,   175   U.   S.   172.   44   L.   Ed.   119. 

tion    of   the    state    constitution,    unauthor-  35.    Barrington    v.    Missouri,    205    U.    S. 

ized,  was   not   sustained  by  the  chief  jus-  483.  51  L.  Ed.  890.  citing  P^oward  v.  Flem- 

tice    of    the    state    nor    by    the    associate  ing,  191  U.   S.   126,  48  L.   Ed.  121. 


APPEAL  AXD  ERROR. 


637 


a  federal  court  or  a  federal  judge  will  not  ordinarily  interfere  by  habeas  corpus 
with  the  regular  course  of  procedure  under  state  authority,  but  will  leave  the  ap- 
plicant for  the  writ  of  habeas  corpus  to  exhaust  the  remedies  afforded  by  the 
state  for  determining  whether  he  is  illegally  restrained  of  his  liberty.  After  the 
highest  court  of  the.  state,  competent  under  the  state  law  to  dispose  of  the  matter, 
has  finally  acted,  the  case  can  be  brought  to  this  court  for  re-examination.^^  The 
proper  remedy  to  review  the  judgments  of  a  state  court  in  crimhial  cases,  because 
some  right  under  the  constitution  of  the  United  States  is  alleged  to  have  been  de- 
nied the  accused,  is  by  a  writ  of  error,  and  not  by  habeas  corpus  proceedings.-^" 


36.  Ex  parte  Royall.  117  U.  S.  241,  251, 
29  L.  Ed.  868;  Ex  parte  Fonda,  117  U.  S. 
.516,  29  L.  Ed.  994;  New  York  v.  Eno,  155 
U.  S.  89,  39  L.  Ed.  80;  In  re  Wood,  140 
U.  S.  278,  35  L.  Ed.  505;  In  re  Frederich, 
149  U.  S.  70,  37  L.  Ed.  653;  Pepke  f. 
Cronan.  155  U.  S.  100,  39  L.  Ed.  84; 
In  re  Chapman,  156  U.  S.  211,  39  L.  Ed. 
401;  Whitten  v.  Tomlinson,  160  U.  S. 
231,  40  L.  Ed.  406;  Baker  i:  Grice,  169  U. 
S.  284,  42  L.  Ed.  74S;  Tinsley  v.  Anderson, 
171  U.  S.  101,  104,  43  L.  Ed.  91;  Markuson 
V.  Boucher,  175  U.  S.  184,  44  L.  Ed.  124; 
Minnesota  v.  Brundage,  180  U.  S.  499,  45 
L.  Ed.  639;  Riggins  v.  United  States,  199 
U.  S.  547,  50  L.  Ed.  303;  In  re  Lincohi, 
202  U.  S.  178,  50  L.  Ed.  984;  Urquhart  v. 
Brown,  205  U.  S.  179,  181,  51  L.  Ed.  760. 
reaffirmed  in  Spaugh  v.  Fitts.  205  U.  S.  540. 
51  L.  Ed.  931;  In  re  Duncan.  139  U.  S.  449,  35 
L.  Ed.  219;  Cook  v.  Hart,  146  U.  S.  183,36 
L.  Ed.  934;  Davis  v.  Burke,  179  U.  S.  399. 
401,  45  L.  Ed.  249,  reaffirmed  in  Wim- 
bish  V.  Jamison,  199  U.  S.  599,  50  L.  Ed. 
327;  United  States  v.  Sing  Tuck,  194  U. 
S.  161,  168,  48  L.  Ed.  917;  Drury  v.  Lewis, 
200  U.  S.  1,  50  L.  Ed.  343;  Reid  v.  Jones, 
187  U.  S.  153,  47  L.  Ed.  116;  Appleyard 
V.  Massachusetts,  203  U.  S.  222,  225,  51  L- 
Ed.  161;  Rogers  v.  Peck,  199  U.  S.  425, 
434,  50  L.  Ed.  256;  In  re  Shibuya  Jugiro, 
140  U.  S.  291.  35  L.  Ed.  510;  Andrews  z: 
Swartz,  156  U.  S.  272,  39  L.  Ed.  422;  In 
re  Lincoln.  202  U.  S.  178,  50  L.  Ed.  984, 
in   which   all   the    cases   are   collected. 

Election  of  remedies. — It  is  said  in  Ex 
parte  Royall,  117  U.  S.  241,  29  L.  Ed.  868, 
that  after  a  prisoner  is  convicted  of  a 
crime  in  the  highest  court  of  the  state  in 
which  a  conviction  could  be  had,  if  such 
conviction  was  obtained  in  disregard  or 
in  violation  of  rights  secured  to  him  by 
the  constitution  and  laws  of  the  U'oitcd 
States,  two  remedies  are  open  to  him  for 
relief  in  the  federal  courts — he  may  either 
take  his  writ  of  error  from  this  court, 
under  §  709  of  the  Revised  Statutes,  and 
have  his  case  re-examined  in  that  way  on 
the  question  of  whether  the  state  court 
has  denied  him  any  right,  privilege  or 
immunity  guaranteed  him  by  the  consti- 
tution and  laws  of  the  United  States;  or 
he  may  apply  for  a  writ  of  habeas  cor- 
pus to  be  discharged  from  custody  under 
such  conviction,  on  the  ground  that  the 
state  court  had  no  iurisdiction  of  either 
his  person  or  the  oflfense  charged  against 


him,  or  had,  for  some  reason,  lost  or  ex- 
ceeded its  jurisdiction,  so  as  to  render  its 
judgment  a  nullity;  in  which  latter  pro- 
ceeding the  federal  courts  could  not  re- 
view the  action  or  rulings  of  the  state 
court,  which  could  be  reviewed  by  this 
court  upon  a  writ  of  error.  It  is  certainly 
the  better  practice,  in  cases  of  this  kind, 
to  put  the  prisoner  to  his  remedy  by  writ 
of  error  from  this  court,  under  §  709  of 
the  Revised  Statutes,  than  to  award  him 
a  writ  of  habeas  corpus.  For,  under  pro- 
ceedings by  writ  of  error,  the  validity  of 
the  judgment  against  him  can  be  called 
in  question,  and  the  federal  court  left  in  a 
position  to  correct  the  wrong,  if  any,  done 
the  petitioner,  and  at  the  same  time  leave 
the  state  authorities  in  a  position  to  deal 
with  him  thereafter,  within  the  limits  of 
proper  authority,  instead  of  discharging 
him  by  habeas  corpus  proceedings,  and 
thereby  depriving  the  state  of  the  oppor- 
tunity of  asserting  further  jurisdiction 
over  his  person  in  respect  to  the  crime 
with  which  he  is  charged.  In  re  Fred- 
erich,  149   U.  S.  70,  77,  37  L.   Ed.  653. 

37.  Markuson  v.  Doucher,  175  U.  S. 
184,  44  L.  Ed.  124;  Dreyer  v.  Pease,  176 
U.  S.  681,  44  L.  Ed.  637;  Tsukamoto  v. 
Lackmann,  187  U.  S.  635,  47  L.  Ed.  343; 
Dissert  v.  Hagan.  183  U.  S.  694,  46  L. 
Ed.  393;  Moss  v.  Glenn.  189  U.  S.  586.  47 
L.  E.  921;  Day  z:  Conley.  179  U.  S.  680, 
45  L.  Ed.  383;  Look  v.  Ross,  198  U.  S. 
579.  49  L.   Fd.   1171. 

The  circuit  courts  of  the  United  States, 
while  they  have  power  to  grant  writs  of 
habeas  corpus  for  the  purpose  of  inquir- 
ing into  the  cause  of  restraint  of  liberty 
of  any  person  in  custody  under  the  au- 
thoritj'  of  a  state  in  violation  of  the  con- 
stitution, a  law  or  a  treaty  of  the  United 
States,  }'et,  except  in  cases  of  peculiar  ur- 
gency, ought  not  to  exercise  that  juris- 
diction by  a  discharge  of  the  person  in 
advance  of  a  final  determination  of  his 
case  in  the  courts  of  the  state,  and  even 
after  such  final  determination,  will  leave 
him  to  his  remedy  to  review  it  by  writ  of 
error  from  this  court.  Ex  parte  Royall, 
117  U.  S.  241.  29  L.  Ed.  868;  Ex  parte 
Fonda,  117  U.  S.  516,  29  L-  Ed.  994;  In  re 
Frederich,  149  U.  S.  70.  37  L.  Ed.  653; 
Pepke  V.  Cronan,  155  U.  S.  100,  39  L.  Ed. 
84;  Bergemann  z\  Backer,  157  U.  S.  655, 
39  L.  Ed.  845;  Whitten  v.  Tomlinson.  160 
U.   S.  231,  40   L.   Ed.   406;   Baker  v.   Grice, 


638 


APPEAL  AND  ERROR. 


In  the  language  of  Mr.  Justice  Harlan :  "One  convicted  in  a  state  court  for 
an  alleged  violation  of  the  criminal  statutes  of  the  state,  and  who  contends  that 
he  is  held  in  violation  of  the  constitution  of  the  United  States,  must  ordinarily 
first  take  his  case  to  the  highest  court  of  the  state,  in  which  the  judgment  could  be 
reviewed,  and  thence  bring  it.  if  unsuccessful  there,  to  this  court  by  writ  of  er- 
ror; that  only  in  certain  exceptional  cases,  of  which  the  present  is  not  one,  will  a 
circuit  court  of  the  United  States,  or  this  court  upon  appeal  from  a  circuit  court, 
intervene  by  writ  of  habeas  corpus  in  advance  of  the  final  action  by  the  highest 
court  of  the  state. "^^ 

The  jurisdiction  is  more  delicate,  the  reason  against  its  exercise 
stronger,  when  a  single  judge  is  invoked  to  reverse  the  decision  of  the  highest 
court  of  a  state  in  which  the  constitutional  right  of  a  prisoner  could  have  been 


169   U.   S.    284,   42   L.    Ed.   748;    Tinsley  v. 
Anderson,  171  U.  S.  101,  104,  43  L.  Ed.  91. 
"In  Baker  v.  Grice,  169  U.  S.  284,  42  L. 
Ed.   748,   Mr.  Justice   Peckham   said:     'In- 
stead   of    discharging,    they    (the    federal 
courts)  will  leave  the  prisoner  to  be  dealt 
with  by  the  courts  of  the  state;  that  after 
a   final   determination    of   the   case   by   the 
state    court,    the    federal    courts    will    even 
then   generally  leave  the  petitioner  to  his 
remedy  by  writ  of  error  from   this  court. 
The  reason  for  this  course  is  apparent.     It 
is     an     exceedingly     delicate     jurisdiction 
given    to    the    federal    courts    by    which    a 
person    under    an    indictment    in    a    state 
court  and  subject  to  its  laws  may,  by  the 
decision   of  a   single  judge   of   the   federal 
court,   upon   a   writ   of   habeas    corpus,   be 
taken  out  of  the  custody  of  the  officers  of 
the    state    and    finally    discharged    there- 
from, and  thus  a  trial  by  the  state  courts 
of  an  indictment  found  under  the  laws  of 
a    state    be    finally    prevented.' "      Marku- 
son    V.    Boucher.    175    U.    S.    184,    186,    44 
L.    Ed.    124,    reaffirmed    in    Tsukamoto    v. 
Lackmann,  187  U.   S.   635,   47   L.   Ed.   343; 
Dreyer  v.  Pease,  176  U.  S.  681,  44  L.  Ed.  637. 
"It  is  not  necessary  to  review  the  cases 
or    to    regeat    or    justify    their    reasoning. 
We  lately  stated  the  rule  and  the  reasons 
for  it   in   the  case   of   Baker  v.    Grice,   169 
U.  S.  284,  42  L.  Ed.  748,  and  in  Tinsley  v. 
Anderson,    171    U.    S.    101,    104,    43    L.    Ed. 
■91.      In   the    latter,    passing   on   an   appeal 
from   judgment   dismissing   a   writ    of   ha- 
beas corpus,  the   chief  justice  said:     'The 
dismissal     by     the     circuit     court     of     the 
United   States   of  its   own   writ   of  habeas 
corpus    was   in   accordance   with    the    rule, 
repeatedly   laid    down   by   this   court,   that 
the    circuit    courts    of    the    United    States, 
while   they  have  power   to   grant  writs   of 
habeas   corpus   for  the   purpose   of  inquir- 
ing into   the   cause  of  restraint   of   liberty 
of   any   person    in    custody   under   the   au- 
thority of  a  state  in  violation  of  the  con- 
stitution, a  law  or  a  treaty  of  the  United 
States,    yet,    except    in    cases    of    peculiar 
urgency,  ought  not  to  exercise  that  juris- 
diction by  a  discharge  of  the  person  in  ad- 
vance of  a  final  determination  of  his  case 
in  the  courts  of  the  state,  and,  even  after 
such  final  determination,  will  leave  him  to 
his   remedy  to  review  it  by  writ  of  error 


from  this  court.  Ex  parte  Royall,  117  U. 
S.  241,  29  L.  Ed.  868;  Ex  parte  Fonda,  117 
U.  S.  516,  29  L.  Ed.  994;  In  re  Frederick, 
149  U.  S.  70,  37  L.  Ed.  653;  Pepke  v. 
Cronan,  155  U.  S.  100,  39  L.  Ed.  84;  Ber- 
gemann  v.  Backer,  157  U.  S.  655,  39  L.  Ed. 
845;  Whitten  v.  Tomlinson,  160  U.  S.  231, 
40  L.  Ed.  406;  Baker  v.  Grice,  169  U.  S. 
284,  42  L.  Ed.  748."  Markuson  v.  Doucher, 
175  U.  S.  184.  186,  44  L.  Ed.  124,  reaffirmed 
in  Tsukamoto  7>.  Lackmann,  187  U.  S.  635, 
47  L.  Ed.  343;  Dreyer  v.  Pease,  176  U.  S. 
681,   44   L.   Ed.   637. 

In  Reid  v.  Jones,  187  U.  S.  153,  47  L. 
Ed.  116,  it  was  said  that  one  convicted  for 
an  alleged  violation  of  the  criminal  stat- 
utes of  a  state,  and  who  contended  that  he 
was  held  in  violation  of  the  constitution 
of  the  United  States,  "must  ordinarily  first 
take  his  case  to  the  highest  court  of  the 
state,  in  which  the  judgment  could  be  re- 
viewed, and  thence  bring  it,  if  unsuccess- 
ful there,  to  this  court  by  writ  of  error; 
that  only  in  certain  exceptional  cases,  of 
which  the  present  is  not  one,  will  a  cir- 
cuit court  of  the  United  States,  or  this 
court  upon  appeal  from  a  circuit  court, 
intervene  by  writ  of  habeas  corpus  in  ad- 
vance of  the  final  action  by  the  highest 
court  of  the  state."  Urquhart  v.  Brown, 
205  U.  S.  179,  181,  51  L.  Ed.  760,  reaffirmed 
in  Spaugh  v.  Fitts,  205  U.  S.  540,  51  L. 
Ed.    921. 

38.  Ex  parte  Royall,  117  U.  S.  241,  251, 
29  L.  Ed.  868;  New  York  v.  Eno,  155  U. 
S.  89,  39  L.  Ed.  80;  Minnesota  v.  Brun- 
dage,  180  U.  S.  499,  502,  45  L-  Ed.  639; 
Reid  V.  Jones,  187  U.  S.  153,  154,  47  L.  Ed. 
116. 

If  an  order  of  the  court  of  criminal  ap- 
peals of  the  state  of  Texas,  being  the 
highest  court  of  the  state  having  juris- 
diction of  a  case,  dismissing  a  writ  of 
habeas  corpus  issued  by  one  of  its  judges, 
and  remanding  the  prisoner  to  custody, 
denies  to  him  any  right  specially  set  up 
and  claimed  by  him  under  the  constitu- 
tion, laws  or  treaties  of  the  United  States, 
it  is  reviewable  by  this  court  on  writ  of 
error.  Newport  Light  Co.  v.  Newport, 
151  U.  S.  527.  542.  38  L.  Ed.  259;  Pepke  v. 
Cronan,  155  U.  S.  100,  101.  39  L.  Ed.  84; 
Tinsley  v.  Anderson,  171  U.  S.  101,  105, 
43   L.   Ed.  91. 


APPEAL  AXD  ERROR. 


639 


claimed  and  may  be  were  rightly  decided,  or  if  not  rightly  decided,  could  be  re- 
viewed and  redressed  by  a  writ  of  error  from  this  court.^^ 

Certain  exceptional  cases  have  arisen  in  which  the  federal  courts  have 
granted  the  writ  in  the  first  instance,  as  where  a  citizen  or  subject  of  a  foreign 
state  is  in  custody  for  an  act  done  under  the  authority  of  his  own  government;  or 
an  officer  of  the  United  States  has  been  arrested  under  state  process  for  acts  done 
under  the  authority  of  the  federal  government,  and  there  were  circumstances  of 
urgency  which  seemed  to  demand  prompt  action  on  the  part  of  the  federal  govern- 
ment to  secure  his  release.^"  It  is  recognized,  however,  that  the  power  to  arrest 
the  due  and  orderly  proceedings  of  the  state  courts,  or  to  discharge  a  prisoner  after 
conviction,  before  an  application  has  been  made  to  the  supreme  court  of  the  state 
for  relief,  is  one  which  should  be  sparingly  exercised,  and  should  be  confined  to 
cases  where  the  facts  imperatively  demand  it.^^  The  state  courts  are  as  much 
bound  as  the  federal  courts  to  see  that  no  man  is  punished  in  violation  of  thft 
constitution  or  laws  of  the  United  States ;  and  ordinarily  an  error  in  this  particu- 
lar can  better  be  corrected  by  this  court  upon  a  writ  of  error  to  the  highest  court 
of  the  state  than  by  an  interference,  which  is  never  less  than  unpleasant,  with  the 
procedure  of  the  state  courts  before  the  petitioner  has  exhausted  his  remedv 
lhere.4  2 

Merely  beca,use  the  petitioner  p.lleg-es  that  he  is  in  "^fr?i\<rht<-'^^-^  --r- 
cumstances,  and  without  means  or  power  to  prosecute  a  writ  of  error  from  the 
supreme  court  of  the  state  to  the  supreme  court  of  the  United  States,  or  to  employ 
counsel  to  present  or  argue  it  there,  and  is  informed  and  believes  if  he  l:a  i  b.ica 
means  it  could  not  be  brought  on  for  hearing  before  the  expiration  of  his  sen- 
tence," presents  no  circumstances  to  justify  a  departure  from  the  rule  or  to  re- 
lieve from  the  application  of  its  reasons.*^ 

Limitations  and  Exceptions  to  General  Rule. — But  of  course  the  same 
reasons  do  not  apply  when  the  petitioner  is  in  custody  by  virtue  of  the  process  of 
a  federal  court.-**  And  although  the  accused  should  generally  prosecute  a  writ 
of  error  to  the  state  court  before  invoking  the  jurisdiction  of  the  circuit  court  of 
the  United  States  upon  habeas  corpus,  yet  where  the  case  is  one  which  the  public 
interests  demand  should  be  speedily  determined,  this  court  will  proceed  to  a  final 


39.  Markuson  v.  Boucher,  175  U.  S.  184, 

44  L.  Ed.  124,  reaffirmed  in  Dreyer  v. 
Pease,  176  U.  S.  681,  44  L.  Ed.  637;  Tsiika- 
moto  V.  Lackmann,  187  U.  S.  635,  47  L. 
Ed.  343;  Bissert  v.  Warden.  183  U.  S.  694, 
46  L.  Ed.  393;  Moss  v.  Glenn.  189  U.  S. 
586.  47  L.  Ed.  921:  Day  z'.  Keepers  of  State 
Prison  of  Montajna.  179  U.  S.  679,  680,  45 
L.  Ed.  383;  Look  v.  Ross.  189  U.  S.  579, 
49  L.   Ed.   1171. 

40.  Wildenhus'  Case.  120  U.  S.  1,  30  L. 
Ed.  565;  In  re  Loney,  134  U.  S.  372,  33  L. 
Ed.  949;  In  re  Xeagle,  135  U.  S.  1.  34  L. 
Ed.  55;  Davis  t'.  Burke,  179  U.  S.  399.  402, 

45  L.  Ed.  249,  reaffirmed  in  Wimbish  v. 
Jamison,  199  U.  S.  599.  50  L.  Ed.  327. 

Some  of  these  authorities  also  show 
that  there  are  cases  where  it  is  proper  to 
issue  a  writ  of  habeas  corpus  from  the 
federal  court  instead  of  awaiting  the  slow 
process  of  a  writ  of  error  from  this  court 
to  the  highest  court  of  the  state  where  a 
decision  could  be  had.  Ohio  v.  Thomas, 
173  U.  S.  276,  284.  43  L.  Ed.  699. 

One  of  the  grounds  for  making  such  a 
case  as  this  an  exception  to  the  general 
rule  laid  down  in  Ex  parte  Royall,  117 
l-^-  S.  241.  29  L.  Ed.  868;  Whitten  v.  Tom- 
linson,    160    U.    S.   231,   40   L-    Ed.   403,   and 


Baker  v.  Grice,  1C9  U.  S.  284,  42  L.  Ed. 
748,  consists  in  the  facts  that  the  federal 
officer  proceeded  against  in  the  courts  of 
the  state  may,  upon  conviction,  be  im- 
prisoned as  a  means  of  enforcing  the 
sentenceof  a  fine,  and  thus  the  operations 
of  the  federal  government  might  in  the 
meantime  be  obstructed.  This  is  such  a 
case.  Ohio  v.  Thomas,  173  U.  S.  276, 
284,  43  L.   Ed.  699. 

41.  Davis  z:  Burke,  179  U.  S.  399,  402, 
45  L.  Ed.  249,  reaffirmed  in  Wimbish  v. 
Jamison.  199  U.  S.  599.  50  L.   Ed.  327. 

42.  Davis  v.  Burke,  179  U.  S.  399.  402, 
45  L-  Ed.  249,  reaffirmed  in  Wimbish  v. 
Jamison.   199  U.  S.  599.  50  L.  Ed.  327. 

43.  Markuson  v.  Doucher,  175  U.  S. 
184.  44  L.  Ed.  124,  reaffirmed  in  DreyelT 
V.  Pease,  176  U.  S.  681,  44  L.  Ed.  637; 
Tsukamoto  v.  Lackmann,  187  U.  S.  635, 
47  L.  Ed.  343;  Bissert  v.  Warden,  183  U. 
S.  694,  46  L.  Ed.  393;  Moss  v.  Glenn,  189 
U.  S.  586.  47  L.  Ed.  931;  Day  v.  Keepers 
of  State  Prison  of  Montana,  179  U.  S. 
679,  680,  45  L.  Ed.  383;  Look  v.  Ross,  198 
U.   S.   579,  580,  49   L.    Ed.   1171. 

44.  In  re  Lincoln,  202  U.  S.  178,  50  L. 
Ed.  984,  opinion  of  Mr.  Justice  Brewer  in 
which   he   reviews  the   cases  at   length. 


640 


APPEAL  AND  ERROR. 


judgment  on  an  appeal  from  the  judgment  of  the  circuit  court  denying  rehef  on 
the    appHcation.'*^ 

(3)  Defenses  Arising  under  Act  of  Congress. — The  question  whether  a  plea 
sets  up  a  sufficient  defense,  when  the  defense  relied  on  arises  under  an  act  of  con- 
gress, does  present,  and  that  necessarily,  a  question  of  federal  law ;  for  the  ques- 
tion is  and  must  be.  does  the  plea  state  facts  which  under  the  act  of  congress'  con- 
stitute a  good  defense  ?-**5 

(4)  Denial  of  Rights  under  National  Bank  Act — aa.  In  General. — Where  the 
question  is  whether  the  plaintiff  in  error  has  been  denied  by  the  judgment  below 
any  "title,  right,  privilege,  or  immunity  specially  set  up  or  claimed"  under  the 
national  banking  act,  this  court  has  jurisdiction.'^''' 


45.  Appleyard  v.  Massachusetts.  203  U. 
S.  222,  51  L.  Ed.  161,  distinguishing  Ex 
parte  Royall,  117  U.  S.  241,  29  L.  Ed.  868; 
Markuson  v.  Doucher,  175  U.  S.  184,  44  L. 
Ed.  124;  Minnesota  t'.  Brundage,  180  U. 
S.  499,  562,  45  L.  Ed.  639;  Reid  v.  Jones, 
187  U.  S.   153,  47  L.  Ed.  116. 

46.  Mitchell  v.  Clark,  110  U.  S.  633, 
645,  28  L.  Ed.  279. 

In  Teal  v.  Felton,  12  How.  284,  13  L. 
Ed.  990,  a  postmaster  relied  on  an  act  of 
congress  in  defense,  and  a  writ  of  error 
was  properly  granted  under  the  twenty- 
fifth  section  of  the  judiciary  act.  Dis- 
tinguished from  Bankers'  Casualty  Co.  v. 
Minneapolis,  etc..  R.  Co.,  192  U.  S.  371, 
383,   48  L.    Ed.   484. 

47.  Title,  right,  privilege  or  immunity 
claimed  under  national  bank  act. — Peck  7\ 
Jenness,  7  How.  612,  618,  12  L.  Ed.  841; 
Miller  v.  Lancaster  Bank.  106  U.  S.  542,  27 
L.  Ed.  289;  California  Bank  i'.  Kennedy. 
167  U.  S.  362,  42  L.  Ed.  198;  Merchants' 
Nat.  Bank  v.  Wehrmann,  202  U.  S.  295, 
299,  50  L.  Ed.  1036. 

The  decision  of  a  state  court  denying 
to  a  national  bank  immunity  from  lia- 
bility for  bank  bills  issued  by  a  state 
bank,  it  appearing  that  such  state  bank- 
had  subsequently  become  a  national  bank 
under  the  laws  of  the  United  States,  pre- 
sents a  federal  question.  Metropolitan 
Bank  zk  Claggett,  141  U.  S.  520.  35  L.  Ed. 
841,  citing  McNulta  v.  Lochridge,  141  U. 
S.    327,   35    L.    Ed.    796. 

This  court  has  jurisdiction  to  review 
the  judgment  of  a  state  court,  which  in- 
volves a  question  whether  a  national  bank- 
is  exempted  by  its  charter  or  an  act  of 
congress,  from  liability  to  account  for 
bonds  purchased  by  it.  Logan  County 
Nat.  Bank  v.  Townsend,  139  U.  S.  67,  35 
L.  Ed.  107. 

Right  to  purchase  notes  secured  by 
real  estate. — This  court  has  jurisdiction 
to  re-examine  the  judgment  of  a  state 
court  involving  the  right  of  a  national 
bank  to  purchase  a  promissory  note  se- 
cured by  a  deed  of  trust  upon  real  estate. 
A  motion  to  affirm  will,  however,  be 
granted  where  that  is  the  only  federal 
question  in  the  case  and  the  decision  below 
is  in  recogn'tion  of  the  right.  Swope  v. 
Leffingwei'l,  105  U.  S.  3.  26  L.  Ed.  939, 
citing   National   Bank  v.   Matthews,  98   U. 


S.  621,  25  L.  Ed.  188;  National  Bank  v. 
Whitney,  103   U.   S.  99,  26  L.   Ed.   443. 

Penalties  for  taking  usury. — Unless  the 
decision  of  the  state  court  is  against  a 
right,  title,  privilege  or  immunity  set  up 
or  claimed  under  the  United  States  im- 
posing penalties  upon  national  banks  for 
knowingly  contracting  for  and  receiving 
usurious  interest,  the  writ  of  error  will 
be  dismissed.  Schuyler  Bank  zl  Bollong, 
150  U.  S.  85,  37  L.  Ed.  1008. 

Where  an  action  is  brought  in  a  state 
court  against  a  national  bank  to  recover 
the  penalties  imposed  by  the  statutes  of 
the  United  States  for  knowingly  contract- 
ing for  and  receiving  usurious  interest, 
and  the  errors  assigned  are  in  substance 
that  the  complaint  or  petition  is  fatally 
defective  in  that  it  contains  no  averment 
negativing  the  exception  to  §  5197  of  the 
Revised  Statutes,  under  which  national 
banks  might  charge  the  rate  of  interest 
permitted  to  banks  of  issue  organized 
under  state  laws,  and  the  questions 
raised  upon  the  pleadings  were  disposed 
of  in  accordance  with  the  statutory  provi- 
sions and  jurisprudence  of  the  state,  and 
there  is  nothing  whatever  to  indicate  that 
in  passing  upon  the  technical  sufficiency 
of  the  complaint,  its  attention  was  in- 
vited to  the  proposition  that  by  its  judg- 
ment therein  it  might  be  depriving  the  de- 
fendant below  of  some  title,  right,  priv- 
ilege or  immunity  arising  in  virtue  of  the 
sections  under  which  the  liability  accrued, 
the  writ  of  error  will  be  dismissed. 
Schuyler  Bank  z:  Bollong,  150  U.  S.  85, 
37  L.  Ed.  1008. 

The  plaintiff  explicitly  based  his  right 
of  action  upon  §§  5197  and  5198,  U.  S.  Rev. 
Stat.,  authorizing  a  recovery  back  of 
usurious  interest  from  a  national  bank. 
The  judgment  of  the  trial  court,  and  that 
of  the  supreme  court  of  the  state,  de- 
nied such  right.  It  was  held,  that  such 
judgment  presents  a  federal  question 
which  confers  jurisdiction  upon  the  su- 
preme court  of  the  United  States  to  re- 
view the  judgment  of  the  state  court.  Tal- 
bot z>.  Sioux  City  First  National  Bank. 
185  U.  S.  172.  46  L.  Ed.  857,  affirming 
Talbot  z'.  Sioux  City  First  National  Bank, 
185   U.    S.    182.   46   L.    Ed.    857,   862. 

Right  to  make  contracts. — Where  the 
question   upon    which    the   case    turned  in 


APPEAL  AAD  ERROR. 


641 


bb.  Shoinnng  as  te  Jurisdiction. — A  showing  at  every  stage  of  the  litigation  in 
the  state  cotirts  of  the  intention  of  a  national  bank  to  rely  upon  the  United  Stages 
banking  laws  for  immunity  against  Habilities  arising  out  of  its  ownership  of 
shares  in  a  partnership  is  sufficient  to  sustain  the  appellate  jurisdiction  of  the 
supreme  court  of  tl>e  United  States,  although  the  bank  did  not,  in  the  first  in- 
stance, anticipate  the  specific  and  qualified   form  in  which  the  immunity  finally 


the  state  court  was  whether  a  national 
banking  association  which,  after  having 
duly  made  and  filed  its  articles  of  asso- 
ciation and  organization  certificate  with 
the  comptroller  of  the  currency,  but  not 
having  received  from  him  a  certificate 
authorizing  him  to  do  banking  business, 
enters  with  the  owner  of  real  estate  into 
a  contract  of  lease,  for  a  term  of  five 
years,  determinable  at  the  end  of  any  year 
by  either  party,  of  an  office  to  be  occupied 
by  the  association  as  a  banking  office,  is 
bound  by  the  lease,  according  to  its  pro- 
visions, under  the  national  banking  as- 
sociation allowing  it  to  make  contracts 
but  prohibiting  it  from  transacting  any 
business,  except  such  as  is  incidental  and 
necessarily  preliminary  to  its  organiza- 
tion until  it  has  been  authorized  by  the 
comptroller  of  the  currency  to  commence 
the  business  of  banking,  and  the  highest 
state  court  adjudged  that  the  contract  of 
lease  sued  on  was  not  incidental  and  nec- 
essarily preliminary  to  the  organization 
of  the  corporation  and  therefore,  by  virtue 
of  the  last  clause  of  §  5190  of  the  bank- 
ing act  having  been  executed  by  the  de- 
fendant before  being  authorized  by  the 
comptroller  of  the  currency  to  commence 
the  business  of  banking,  does  not  bind 
the  defenda-nt,  is  a  decision  against  a 
right  claimed  by  him  under  a  statute  of 
the  United  States,  and  is  therefore  re- 
viewable by  this  court.  "If  the  decision 
had  been  the  other  way,  it  would,  as  ad- 
mitted at  the  bar,  have  been  a  decision 
against  an  immunity  set  up  and  claimed 
bv'  the  (lofend?nt  rnder  a  statute  of  the 
United  States,  and  therefore  revi-^wable 
by  this  court  on  writ  of  error."  Swope 
V.  Leffingwell,  105  U.  S.  :!,  .'-'<) 
Ed.  939;  Logan  County  Nat.  Bank 
V.  Townsend,  139  U.  S.  fi7,  35  L-  Ed.  107 
Metropolitan  Bank  v.  Claggett,  141  U.  S 
520,  35  L.  Ed.  841;  Chemical  Bank  f 
Hartford  Deposit  Co.,  161  U.  S.  1,  40 
L.  Ed.  595;  McCormick  v.  Market  Bank, 
165  U.  S.  538.  546,  41  L.  Ed.  817,  reaffirmed 
i«i  Seeberger  v.  McCormick,  175  U.  S. 
274,  278,  44  L.  Ed.  161;  McCreery  Realty 
Corp.  V.  Nat.  Bank,  203  U.  S.  584,  51  L. 
Ed.   328. 

It  was  specially  set  up  and  claimed  by 
the  plaintiff,  that,  taking  the  whole  sec- 
tion together,  the  ■^.  fendant,  from  the  date 
of  filing  with  the  comptroller  of  the  cur- 
rency its  articles  of  association  and  its  or- 
ganization certificate,  became  a  corpora- 
tion empowered  to  make  contracts  appro- 
priate to  the  business  of  banking;  and 
that  any  such  contracts  were  valid  as  be- 

1  U  S  Eiic-41 


tween  the  parties  to  them,  even  if  they 
violated  the  restriction  in  the  last  clause  of 
the  section,  and  therefore  might  afford  a 
reason  for  which  the  Umted  States  could 
enforce  a  forfeiture  of  the  charter.  This 
position  of  the  plaintiff  was,  in  effect,  that 
so  far  as  he  was  concerned,  the  bank  had 
power  under  the  statute  of  the  United 
States  to  make  the  contract  sued  on;  and 
the  decision  of  the  highest  court  of  the 
state,  that  the  statute,  rightly  construed, 
did  not  give  such  power  to  the  bank,  was 
a  decision  against  the  right  so  specially 
set  up  and  claimed  by  the  plaintiff  under 
a  statute  of  the  United  States,  and  is 
therefore  reviewable  by  this  court.  Rev. 
Stat,  §  709;  McCormick  v.  Market  Bank, 
165   U.   S.   538,  547.  41   L.   Ed.   817. 

Penalties  imposed  on  cashier  by  state 
law. — This  is  a  writ  of  error  to  the  su- 
preme court  of  the  state  of  Vermont,  and, 
as  is  frequent  in  writs  to  the  state  courts, 
it  is  objected  that  there  is  no  juris- 
diction. The  plaintiff  in  error  was  cash- 
ier of  a  national  bank  in  that  state;  and 
the  judgment  which  this  writ  brings  here 
for  review  was  rendered  against  him  for 
penalties  imposed  by  a  statute  of  that 
state,  for  his  refusal  to  transmit  to  the 
clerk  of  the  town  of  Brattleboro  a 
true  list  of  the  shareholders  of  the  bank 
who  resided  in  that  town,  with  the  number 
of  shares  held,  and  the  amount  paid  on 
said  shares.  The  record  shows  that  ''the 
defendant's  counsel  claimed  in  defense, 
that,  as  said  bank  was  organized  under  the 
law  of  congress  referred  to  in  plaintiiFs 
declaration,  the  defendant,  as  such  cash- 
ier, was  amenable  to  no  law  but  said  law 
of  congress,  and  that  the  state  legislature 
had  not  po-wer  to  prescribe  or  define  his 
duties  as  such  cashier."  Held,  this  prop- 
osition raises  a  federal  question,  within 
the  meaning  of  the  act  of  1867.  Waite  v. 
Dowley,  94  U.  S.  527,  532,  24  L.  Ed.  181. 

Transfer  of  shares. — A.  sold  to  B.  shares 
in  a  national  bank,  and  signed  a  transfer 
on  the  books  of  the  company,  leaving  the 
name  of  the  transferee  blank.  After  it 
was  known  that  the  bank  was  embar- 
rassed, B.  sold  the  shares  to  C,  an  ir- 
responsible person,  and  filled  his  name 
in  the  blank.  A.,  being  subsequently 
adjudged  liable  as  shareholder  under  the 
national  banking  law  in  a  suit  brought  by 
the  receiver,  paid  the  judgment  atnd 
brought  suit  in  the  supreme  court  of 
Louisiana  against  B.  for  neglect  of  duty 
in  failing  to  insert  his  name  in  the  trans- 
fer. Held,  that  the  case  did  not  arise 
under  the   national   banking  act,  and  that 


642 


APPEAL  AND  ERROR. 


was  denied — especially  where  the  highest  state  court,  by  a  certificate,  made  part 
of  its  record  and  judgment,  stated  that  the  federal  question  was  involved.^  ■ 
But  where  the  question  decided  depends  upon  general  principles  of  law,^^  ^r 
where  the  decision  of  the  state  court  rests  on  two  distinct  grounds,  one  a  federal 
ground  and  another  not,  and  the  latter  is  broad  enough  to  sustain  the  judgment 
without  deciding  any  federal  question  at  all,"'-    the  writ  of  error  will  be  dismissed. 


itherefore  no  federal  q-uestion  was  in- 
A'olved.  Le  Sassier  v.  Kennedy,  123  U.  S. 
-.21.  31   L.   Ed.  262. 

Power  to  contract. — A  decision  of  a 
>tate  court  that  a  national  bank  is  for- 
bidden by  the  national  banking  act  from 
making  a  certain  contract  or  agreement, 
raises  a  federal  question.  Logan  County 
Nat.  Bank  v.  Townsend,  139  U.  S.  67,  35 
L.   Ed.   107. 

Certification  of  checks. — A  federal  ques- 
tion is  involved  in  a  decision  of  a  state 
court  dealing  with  the  certification  of 
checks  by  an  officer  or  agent  of  a  national 
bank,  where  the  person  drawing  the  check 
has  not  on  deposit  an  equivalent  amount 
of  money  to  meet  the  same.  Thompson 
V.  St.  Nicholas  Nat.  Bank,  146  U.  S.  240, 
36  L.  Ed.  956. 

Right  to  purchase  stock. — Where  the  su- 
preme court  af  the  state  decides  that  a 
national  bank  has  power  under  the  laws 
of  the  United  States  to  become  a  stock- 
holder in  a  savings  bank,  in  spite  of  the 
averment  of  the  answer  that  if  any  stock 
of  the  savings  bank  appeared  to  have  been 
issued  to  the  national  bank,  it  was  issued 
without  authority  of  law,  in  view  of  the 
fact  that  the  defendant  vras  a  national 
bank,  the  case  presents  a  federal  ques- 
tion, and  a  motion  to  dismiss  will  be 
denied.  California  Bank  v.  Kennedy,  167 
U.    S.    362,    42    L.    Ed.    198. 

Limitation  of  action — Liability  of  stock- 
holders.— A  decision  of  a  state  court  that 
the  statute  of  limitation  commences  to 
rHn  against  the  liability  of  a  stockholder 
of  a  national  bank  before  the  amount  of 
sach  liability  has  been  ascertained  and  as- 
sessed by  the  comptroller  of  the  currency, 
when  there  was  delay  in  making  the  as- 
sessement,  involves  a  federal  question, 
and  is  reviewable  by  the  supreme  court  of 
the  United  States.  Rankin  v.  Barton,  199 
U.  S.  228,  50  L.  Ed.  163, 

Right  to  recover  damages  from  bank 
directors. — Where  the  record  plainly 
shows  that,  both  in  the  trial  and  appel- 
late courts  of  the  state,  an  immunity  was 
claimed  under  §  5239  of  the  Revised  Stat- 
utes, prescribing  the  rules  of  liability  gov- 
erning the  right  to  recover  damages  from 
directors  of  a  nati'^nal  bank,  and  such  im- 
munity is  expressly  denied  by  the  state 
court,  a  motion  to  dismiss  for  want  of  ju- 
risdiction on  the  ground  that  no  federal 
(fuestion  was  raised  in  or  decided  by  the 
■-tate  court,  will  be  denied.  Yates  v.  Jones' 
Nat.  Bank,  2C6  U.  S.  158,  51  L.  Ed.  1002, 
citing  Schlemmer  ?'.  Bufi"alo,  etc.,  R.  Co., 
•?05  U.  S.  1,  51  L.  Ed.  681;  TuUock  v.  Mul- 


van-e,  184  U.  S.  497,  46  L.  Ed.  657;  Metro- 
politan Bank  v.  Claggett,  141  U.  S.  520, 
35  L.  Ed.  841;  Logan  County  Nat.  Bank 
V.  Townsend,  ISA  U.  S.  6T,  35  L.  Ed.  107. 
On  the  other  hand,  the  fact  that  the  de- 
fendants have  proposed,  but  have  failed, 
to  effect  an  orgainization  as  a  banking 
association  under  the  laws  of  the  United 
States,  does  not  bestow  a  federal  charac- 
ter upon  their  transactions.  Seebergcr  v. 
McCormick,  175  U.  S.  274,  286,  44  L.  Ed. 
161. 

50.  Merchants'  Nat.  Bank  v.  We+irmann, 
202  U.  S.  295.  50  L.  Ed.  103«,  citing  Mar- 
vin V.  Trout,  199  U.  S.  212,  2%-t,  50  L.  Ed. 
157;  Cincinnati,  etc..  Packet  Co.  v.  Bay, 
200  U.  S.   179.  .50  L.  Ed.  42«. 

51.  Chemical  Nat.  'Bank  v.  City  Bank, 
160   U.    S.    646,    40    L.    Ed.    5€8. 

Gift  of  bank  stock. — A  deciaron  by  a 
state  conrt  that,  as  between  donor  and 
donee,  a  valid  gift  of  national  bank  stock 
is  made  by  the  delivery  thereof,  without 
a  transfer  of  the  shares  on  the  books  of 
the  bank  or  indorsement  on  the  back  of 
the  certificates  themselves,  rests  solely  on 
principles  of  general  law,  and  involves  the 
disposition  of  no  federal  question,  al- 
though by  §  5139,  of  the  Revised  Stat- 
utes, shares  of  the  capital  stock  of  na- 
tional banks  are  declared  to  be  personal 
property,  transferable  on  the  books  of  the 
association  in  such  manner  as  may  be 
prescribed  in  the  by-laws  or  articles  of 
the  association.  It  does  not  appear  that 
any  title,  right,  pri-vilege  or  immunity  was 
specially  set  up  or  claimed  under  a  law  of 
the  United  States  and  denied  by  the  high- 
est tribunal  of  the  state.  "The  contro- 
versy was  merely  as  to  which  of  the 
claimants  had  the  superior  equity  to  these 
shares  of  stock,  and  the  national  banking 
act  was  only  collaterally  involved."  Conde 
V.  York,  168  U.  S.  642,  42  L-  Ed.  611; 
Union  Nat.  Bank  v.  Louisville,  etc.,  R.  Co., 
163  U.  S.  325.  41  L.  Ed.  177;  Eustis  V. 
Bolles,  150  U.  S.  361,  37  L-  Ed.  1111;  Ley- 
son  V.  Davis,  170  U.  S.  36,  42  L.  Ed.  939, 
reaffirmed  in  Farmers'  Nat.  Bank  v.  Rob- 
inson, 176  U.  S.  681,  44  L.  Ed.  637. 

52.  Chemical  Nat.  Bank  v.  City  Bank, 
IPO  U.  S.  646.  653,  40  L.  Ed.  568;  First 
Nat.  Bank  v.  Anderson,  172  U.  S.  573,  43 
L.   Ed.   558. 

The  individual  note  of  the  cashier  of  a 
national  bank  in  Chicago,  secured  by  a 
pledge  of  the  bank's  own  stock,  was  sold 
to  a  bank  in  Portage,  by  authority  of  the 
directors  of  the  bank.  The  note  was  not 
paid  at  maturity,  and  the  Portage  bank 
sued   the   Chicago  bank   in   assumpsit,  de- 


Art'tAL   A.\l>   lU\l<i)K. 


643 


(5)  Denial  of  Rights  under  Bankrupt  .let. — In  General. — This  court  has 
jurisdiction  to  review  the  judgment  or  decree  of  a  state  court  denying  a  right, 
title  or  immunity  claimed  under  the  bankruptcy  act,  where  such  claim  was  directly 
|)resented  to  and  decided  by  the  state  court.''-* 


clariHg  specially  on  the  note,  alleging  that 
it  was  made  by  the  bank  in  the  cashier's 
name,  and  also  setting  out  the  common 
counts.  The  bank  set  up  as  a  defense  that 
the  purchase  of  its  own  stock  was  illegal, 
and  that  money  borrowed  to  pay  a  debt 
contracted  for  that  purpose  was  equally 
forbidden  by  Revised  Statutes,  §  5201. 
The  trial  court  declined  to  rule  several 
propositions  of  law  as  requested  by  the 
Chicago  bank  and  judgment  was  entered 
for  the  Portage  bank.  The  supreme  court 
of  Illinois  held  that  the  Portage  bank 
was  entitled  to  recover  under  the  common 
coitnts,  and  that  i-t  was  unnecessary  to  con- 
sider whether  the  trial  court  had  ruled 
correctly  wi  the  propositions  of  law  sub- 
mitted to  it.  Held,  that  th-e  writ  of  error 
would  be  dismissed,  as  that  court,  in  ren- 
dering such  judgment,  denied  no  title, 
right,  privilege,  or  immunity  specially  set 
up  or  claimed  under  the  laws  of  the 
United  States.  Chemical  Nat.  Bank  v. 
City  Bank,  160  U.   S.  64a,  40  L.  Ed.  568. 

Although  the  decision  of  a  state  court 
may  deny  the  right  under  the  national 
banking  act  with  respect  to  the  right  of 
such  banks  to  charge  interest,  yet  if  an- 
other question,  not  federal,  has  also  been 
raised  and  decided  against  such  party, 
and  the  decision  of  the  latter  question  is 
sufficient  notwithstanding  the  federal 
«|uestion.  to  sustain  the  judgment,  this 
court  will  not  review  the  judgment.  Union 
Nat.  Bank  v.  LouisviUe,  etc.,  R.  Co.,  16.3 
U.  S.  325,  41  L.   Ed.  177. 

Where  an  action  is  brought  against  a 
national  bank  and  its  receiver,  to  recover 
money  belonging  to  the  plaintiff,  received 
by  the  defendant  from  notes  transferred 
to  it*  for  collection  and  renvittance.  al- 
though the  petition  alleges  that  the  bank 
was  organized  under  the  banking  act,  and 
that  a  receiver  was  appointed  who  took 
■possession  of  the  bank's  assets  and  of  all 
trusts  and  mofieys  held  by  it  in  a  fiduciary 
■capacity,  aiKd  the  answer  admitted  these 
averments,  respecting  which  there  was  no 
controversy,  yet  if  no  right  to  appropriate 
trust  funds  was  claimed  by  the  defendant 
under  any  law  of  the  United  States,  nor 
was  it  asserted  that  any  jiKigment  which 
Blight  be  rendered  for  plaintiff  would  be 
in  contravention  of  any  provisions  of  the 
banking  act,  the  writ  of  error  will  be 
dismissed,  because  no  federal  right  was 
specially  set  up  or  claimed  at  the  proper 
time  and  in  the  proper  waj\  nor  was  any 
such  right  in  issue  and  necessarily  de- 
termined; but  the  judgment  rests  on  noi>- 
federal  grounds  entirely  sufficient  to  sup- 
port it.  Capital  Nat.  Bank  v.  First  Nat. 
Bank,   172    U.    S.    425,    42    L.    Ed.    502,    dis- 


tinguishing California  Bank  v.  Kennedy 
167  U.  S.  .362,  42  L.  Ed.  198. 

53.  Title  or  right  claimed  under  bank- 
rupt laws.— Mays  c'.  Fritton,  131  U.  S., 
appx.  cxiv,  21  L.  Ed.  127;  O'Brien  z'. 
Weld,  92  U.  S.  81,  23  L.  Ed.  675;  Fac- 
tors' Ins.  Co.  V.  Murphy,  111  U.  S.  "rSS,  28 
L.  Ed.  582;  Jenkins  v.  International  Bank, 
127  U.  S.  484,  32  L.  Ed.  189;  McKenna  v. 
Simpson,  129  U.  S.  506,  32  L.  Ed.  771  ; 
Winchester  v.  Heiskell,  119  U.  S.  4.S0,  30 
L.   Ed.  462. 

Whether  such  relations  existed  between 
the  bankrupt  and  a  third  party  as  dis- 
charged him  from  his  obligation  to  ac- 
count for  an  interest  in  land  growing  out 
of  a  declaration  of  trust  by  the  bankrupt, 
made  before  the  bankruptcy,  is  not  a 
federal  question.  Roby  v.  Colehotw,  146 
U.    S.    153.   36    L.    Ed.    922. 

Denial  of  claim  of  set-off. — Under  the 
bankrupt  act  of  July  1st,  1898,  authoriz- 
ing appeals  in  bankruptcy  to  this  court 
where  the  decision  may  have  been  re- 
viewed by  this  court  on  writ  of  error  to 
state  court,  the  assertion  of  a  claim  of 
set-off  in  a  bankruptcy  proceeding,  and  a 
denial  thereof,  involves  a  federal  right  re- 
viewable by  the  circuit  court  of  appeals. 
Western  Tie,  etc.,  Co.  v.  Brown.  19€  U. 
S.  502,  49  L.  Ed.  571. 

Where  a  party  pleads  his  discharge  in 
bankruptcy  under  the  bankrupt  law  of  the 
United  States,  and  the  highest  court  of 
the  state  denies  him  hi-s  exemption,  the 
case  may  be  brought  to  this  court  under 
the  25th  section  of  the  judiciary  act.  Lin- 
ton v.  Stanton,  12  How.  423,  13  L.  Ed. 
1050. 

The  decision  of  the  highest  court  of  th« 
state  refusing  to  enjoin  the  judgment  on 
the  ground  that  the  defendant  had  beea 
discharged  in  bankraptcy,  raises  a  federal 
question.  Palmer  v.  Hussey,  119  U-  S. 
96,  30  L.   Ed.  362. 

Warrant  against  marshal  for  wrongful 
levy. — This  court  has  jurisdiction  to  re- 
examine 'he  judgment  of  the  state  court, 
rendered  in  a  suit  against  a  marshal  ot 
the  United  States  upon  a  warrant  sued 
out  in  the  bankruptcy  court,  for  levying 
upon  goods  belonging  to  a  third  party, 
whereby  it  was  held,  in  a  suit  against  the 
marshal  by  reason  of  such  possession, 
that  he  had  no  authority  under  the  laws 
of  the  United  States  so  to  levy  the  war- 
rant. Sharpe  v.  Doyle,  102  U.  S.  686,  26 
L.   Ed.   277. 

Stay  of  proceedings  pending  action  in 
bankruptcy  proceedings. — If  the  highest 
court  of  a  state  denies  the  application  of  a 
bankrupt  under  §  5106,  Rev.  Stat.,  to  stay  all 
proceedings    in   an   action   against   him   in 


t44 


APPEAL  AND  ERROR. 


Showing  as  to  Jurisdiction. — Although  it  does  not  appear  from  the  opinion 
of  the  court  of  original  jurisdiction,  or  from  the  opinion  of  the  highest  state  court, 
that  either  court  formally  passed  upon  any  question  of  a  federal  nature,  yet  if 
the  necessary  effect  of  the  decision  was  to  determine  adversely  to  the  plaintiff 
in  error  the  rights  and  immunities  claimed  by  him  in  the  pleadings  and  proof,  un- 


a  state  court  upon  a  debt  provable  in 
bankruptcy,  to  await  the  determination  of 
the  court  in  bankruptcy  on  the  question  of 
his  discharge,  and  rendered  final  judg- 
ment against  the  bankrupt,  a  writ  of  error 
will  lie  from  this  court.  Hill  z'.  Harding, 
107  U.   S.   631.  37  L.   Ed.  493. 

Order  of  sale  by  bankrupt  court. — W.  & 
Co.,  having  recovered  judgment  in  a  state 
court,  sued  out  an  execution  thereon, 
which  was  levied  upon  the  property  ot 
the  defendant.  He  was  subsequently  de- 
clared a  bankrupt,  and  an  injunction  is- 
sued by  the  district  court  of  the  United 
States  restraining  W.  &  Co.  and  the  s'l.er- 
ifif  from  disposing  of  that  property.  W. 
&  Co.  thereupon  filed  their  petition  in  the 
latter  court,  praying  that  the  injunction 
be  so  modified  as  to  allow  the  slierifif  to 
sell.  An  order  was  made  granting  the 
prayer  of  the  petition,  prescribing  the 
time  and  manner  of  the  sale,  and  directing 
that  the  proceeds  should  be  brought  into 
the  district  court.  This  order  was  served 
upon  the  sheriff,  who,  pursuant  thereto, 
sold  the  property,  and  paid  the  proceeds 
into  court.  Held,  the  question,  whether, 
Hnder  the  bankrupt  act.  the  district  court 
had  authority  to  make  the  order,  and  the 
decision  of  the  highest  state  court  ad- 
verse to  that  authority,  are  sufificicnt  to 
sustain  the  federal  jurisdiction.  O'Brien 
V.  Weld,  92  U.  S.  81,  23  L.  Ed.  675. 

Effect  of  discharge  in  bankruptcy. — If 
it  sufficiently  appears  that  a  determina- 
tion of  the  question,  as  to  the  eflfect  of  the 
discharge  in  bankruptcy  upon  the  right  to 
enforce  a  lien  upon  the  property  in  ex- 
istence at  the  time  of  the  commencement 
•f  the  proceedings  in  bankruptcy,  was 
necessarily  involved  in  the  decision  of  the 
supreme  court  which  is  here  under  re- 
view, and  that  this  decision  was  adverse 
to  the  right  set  up  by  Long,  we  have  juris- 
diction. Long  V.  Bullard,  117  U.  S.  617, 
620,  29  L.  Ed.  1004. 

Revival  of  judgment. — Where  the  ques- 
tion presented  to  the  inferior  court  of  the 
State  upon  a  petition  for  judgment  of  re- 
vival, was  whether  an  assignee  in  bank- 
ruptcy was  such  a  representative  ot  the 
wiginal  judgment  debtor  that  a  citation 
might  issue  to  the  assignee  under  the 
statute  of  limitations  of  Louisiana,  for  the 
purpose  of  preventing  a  judgment,  ad- 
mitted to  be  valid,  from  being  prescribed 
within  ten  years  from  the  time  of  its  ren- 
dition, is  not  reviewable  by  this  court  on 
the  ground  that  it  thereby  denies  a  right 
and  immunity  claimed  by  the  petitioner 
tinder  the  bankiiipt  act.  "The  true  con- 
struction  of   the   statute   of   limitations   in 


this  respect,  as  well  as  the  proper  manner 
of  reviewing  the  decision  of  that  q-uestion, 
if  erroneous,  was  a  matter  of  state  law  and 
practice,  in  no  way  depending  upon  the 
constitution  of  th-e  United  States  or  upon 
any  act  of  congress."  Ludeling  v.  Chaffe, 
143  U.  S.  301,  305,  36   L.   Ed.  313. 

Who  are  parties  to  bankruptcy  proceed- 
ings.— This  court  has  jurisdiction  to  re- 
view the  judgment  of  a  state  court,  de- 
ciding the  question  whether  a  person  is 
a  party  to  a  bankruptcy  proceeding,  so  as 
to  be  bound  by  a  sale  of  the  property 
under  an  order  of  the  district  court  of  the 
United  States  in  bankruptcy.  Factors' 
Ins.  Co.  V.  Murphy,  ill  U.  S.  738,  28  L. 
Ed.  582. 

Effect  of  sale  under  order  of  bank- 
ruptcy court. — This  court  has  jurisdiction 
in  error  over  the  judgment  of  the  supreme 
court  of  Louisiana  in  a  suit  between  citi- 
zens of  that  state  for  the  foreclosure  of 
a  mortgage,  in  which  the  only  controversy 
related  to  the  effect  to  be  given  a  sale  of 
property  under  an  order  of  the  bank- 
ruptcy court  directing  the  mortgaged 
property  of  the  bankrupt  to  be  sold  free 
of  encumbrances.  New  Orleans,  etc.,  R. 
Co.  V.  Delamore,  114  U.  S.  501,  506,  2» 
L.  Ed.  244,  following  Factors'  Ins.  Co.  v. 
Murphy,    111    U.    S.    738,   28    L.    Ed.    582. 

Authority  of  assignee  in  bankruptcy — 
Jenkins  -v.  International  Bank,  127  U.  S. 
484,  32  L.  Ed.  189;  in\t)lved  a  question  as 
to  the  authority  of  the  assignee  in  bank- 
ruptcy to  institute  a  ruit  touching  any 
property  or  rights  of  property  vested  in 
him  after  the  expiration  of  two  years 
from  the  time  when  the  cause  of  action 
accrued,  and  that  was  held  sufficient  to 
sustain  the  federal  jurisdiction.  This  court 
has  no  jurisdiction,  under  the  25th  sec- 
tion of  the  judiciary  act,  of  a  case  like 
the  following,  namely;  Where  an  as- 
signee of  some  creditors  of  a  person  who 
had  taken  the  benefit  of  the  bankrupt  act 
of  the  United  States,  filed  a  bill  against 
the  bankrupt  to  set  aside  the  discharge  as 
void  upon  the  ground  of  fraud,  and  the 
defendant  demurred  to  the  bill  upon  the 
ground  of  staleness,  want  of  equity,  and 
the  statute  of  limitations,  it  does  not  fol- 
low that  the  supreme  court  of  the  state, 
in  dismissing  the  bill,  placed  any  construc- 
tion whatever  upon  the  bankrvipt  act;  and 
moreover,  if  they  did,  the  decision  must 
have  been  in  favor  of  the  privilege  set  up' 
by  the  bankrupt  and  HOt  against  it.  Cal- 
cote  V.  Stanton,  18  How.  S43,  15  L.  Ed. 
348. 

Denial  of  asserted  rigl^  by  trustee.— 
Where  the  action  is  bro«€ii*  bj   a  trustee 


AFFJbAL  AND  HKROR. 


64: 


der  the  proceeding  in  bankruptcy,  this  court  has  jurisdiction  to  review  the  deci- 
sion under  Revised  Statutes,  §  709,  providing  that:  "A  final  judgment  or  decree 
in  any  suit  in  the  highest  court  of  a  state  v^here  any  title,  right,  privilege  or  im- 
munity is  claimed  under  the  constitution,  or  any  *  *  *  authority  exercised 
under,  the  United  States,  and  the  decision  is  against  the  title,  right,  privilege  or 
immunity  specially  set  up  or  claimed  by  either  party,  under  such  constitution, 


appointed  under  the  bankrupt  law  of  the 
United  States,  seeking  to  recover  what  is 
asserted  to  be  an  asset  of  the  bankrupt 
estate  under  that  law,  the  denial  of  the 
asserted  right  is  a  denial  of  a  right  or 
title  specially  claimed  under  a  law  of  the 
United  States,  and  presents  a  federal 
question.  Peck  v.  Jenness,  7  How.  612, 
12  L.  Ed.  841;  Barton  v.  Geiler,  108  U.  S. 
161,  27  L.  Ed.  687;  Williams  v.  Heard,  140 
U.  S.  529,  35  L.  Ed.  550;  Dushane  v.  Beall, 
161  U.  S.  513,  40  L.  Ed.  791;  Stanle}^  v. 
Schwalby,  162  U.  S.  255,  40  L.  Ed.  960; 
Rector  v.  City  Deposit  Bank,  200  U.  S. 
405,  411,  50  L.  Ed.  527;  S.  C,  200  U.  S. 
420,  50  L.  Ed.  527,  533.  distinguishing 
Cramer  v.  Wilson,  195  U.  S.  408,  49  L. 
Ed.  256. 

Exemptions  of  bankrupt  under  state 
statutes. — This  court  is  without  authority 
to  review  on  writ  of  error  the  judgment  of 
a  state  court  in  accordance  with  the  order 
of  the  court  of  bankruptcy,  giving  efifect 
to  a  homestead  exemption  claimed  by  the 
bankrupt,  under  §  709,  U.  S.  Rev.  Stat.,  on 
the  ground  that  plaintiff  in  error  is  denied 
a  title,  right,  privilege  or  immunity  under 
the  constitution  or  authority  of  the 
United  States  specially  set  up  or  claimed 
in  the  state  court.  Smalley  v.  Laugenour, 
196  U.  S.  93,  49  L.  Ed.  400,  reaffirmed  in 
Delahanty  v.  Pitkin,  199  U.  S.  602,  50  L. 
Ed.  328. 

What  passes  by  assignment. — Where 
the  question  in  a  state  court  was  whether, 
at  the  date  of  adjudication  in  bankruptcy, 
the  claim  of  the  defendant  in  error  for 
war  premiums,  passed  to  their  assignees 
in  bankruptcy,  as  a  part  of  their  estate, 
raises  the  federal  question.  "Both  par- 
ties claim  the  proceeds  of  the  award,  the 
defendants  in  error  asserting  that  it  did 
not  pass  to  their  assignees  in  bankruptcy 
under  §  5044  of  the  Revised  Statutes,  and 
the  plaintiff  in  error  insisting  that  the 
claim  was  a  part  of  their  estate  at  the 
date  of  their  adjudication  in  bankruptcy, 
and  did  pfass  to  the  assignees  under 
that  section  of  the  Revised  Statutes.  The 
assignee's  claim  to  the  award  is  based  on 
that  section  of  the  statutes;  and  as  the 
state  court  decided  against  him.  this  court 
has  jurisdiction  under  §  709.  Rev.  Stat.,  to 
review  that  judgment;  for  the  decision  of 
the  state  court  was  against  a  'right'  or 
'title'  claimed  under  a  statute  of  the  United 
States,  within  the  meaning  of  that  sec- 
tion." W^illiams  v.  Heard.  140  U.  S.  529. 
530,  35  L.  Ed.  550.  distinguished  in  Cra- 
mer V.  Wilson,  195  U.  S.  408,  415,  49  L. 
Ed.   256. 


What      passes      at      assignee's      sale 

Whether  a  deed  made  by  a  person  prior 
tc  his  being  adjudged  a  bankrupt  left  a 
residuary  interest  in  him  which  passed 
to  a  purchaser  at  the  assignee's  sale,  is 
not  a  federal  question,  but  one  arising 
under  the  state  laws.  Cramer  v.  Wilson, 
195  U.   S.  406,  416,  49   L.   Ed.   256. 

Promises  by  bankrupt  after  discharge. 
— Promises  alleged  to  have  been  made 
by  the  bankrupt  after  his  discharge  are 
not  the  subject  of  jurisdiction  under  the 
25th  section.  The  decision  of  a  state  court 
upon  their  effect  cannot  be  reviewed  by 
this  court.  Linton  v.  Stanton,  12  How. 
423.  13  L.  Ed.  1050. 

Refusal  to  set  aside  fraudulent  sale. — A 
decree  dismissing  a  bill  in  chancery 
brought  to  recover  a  debt  and  set  aside 
an  alleged  fraudulent  sale  of  property, 
was,  on  appeal,  reversed,  and  a  decree 
rendered  by  the  supreme  court  of  the 
state  against  the  appellee  for  the  amount 
of  the  debt,  and  an  execution  awarded. 
Thereupon  the  appellee  who,  pending  the 
appeal,  and  more  than  three  years  before- 
the  date  of  the  decree,  had  obtained  a 
discharge  in  bankruptcy,  petitioned  the 
supreme  court  to  set  aside  its  decree,  and 
either  permit  him  to  plead  his  discharge 
there,  or  remand  the  cause,  so  that  he 
might  plead  it  in  the  inferior  court.  The 
court  upon  the  ground  that  no  new  de- 
fense could  be  made  there,  refused  the 
petition,  and  permitted  the  decree  to 
stand  as  entered.  Held,  1.  That  apon  the 
face  of  the  record  proper  no  federal  ques- 
tion was  raised.  2.  That  the  action  upon 
the  subsequent  petition  did  not  place  the 
petitioner  in  a  better  position  to  invoke 
the  jurisdiction  of  this  court.  Wolf  v. 
Stix.  96  U.  S.  541,  24  L.   Ed.  640. 

What  constitutes  a  fraudulent  convey- 
ance.— The  question  whether  any  convey- 
ance, etc.,  made  by  a  bankrupt  was  in  fact 
made  with  intent  to  defraud  creditors, 
when  passed  upon  in  the  state  court,  is 
not  one  of  a  federal  nature.  McKenna  v. 
Simpson,  129  U.  S.  506,  32  L-  Ed.  771; 
Cramer  v.  Wilson,  195  U.  S.  408,  49  L. 
Ed.  256;  Thompson  v.  Fairbanks,  196  U. 
S.    516,   523,   49    L-    Ed.    577. 

The  decision  of  the  state  court  as  to 
what  should  be  deemed  a  fraudulent  con- 
veyance does  not  present  any  federal 
question,  nor  does  the  application  by  the 
court  of  the  evidence  in  reaching  that  de- 
cision raise  one.  McKenna  v.  Simpson, 
129    U.    8.   506,   512.   ^   L.    Ed.   771. 

Tn  McKenna  v.  Simpson,  129  U.  S.  506, 
32  L.   Ed.   771,  an   assignee  in  bankruptcy 


646 


APPEAL  AND  ERROR. 


*     *     *     or  authority,  may  be  re-examined  and  reversed  or  affirmed  in  the  su- 
preme court  upon  a  writ  of  error  P"^'"* 

Necessity  for  Adverse  Decision. — But  to  give  this  court  jurisdiction,  under 
the  3d  clause  of  t-he  25th  section  of  the  judiciary  act,  the  suit  must  have  drawn 
in  question  the  construction  of  a  statute,  etc.,  of  the  United  States,  and  the  judg- 
ment of  the  state  court  must  have  been  adverse  to  the  claim  set  up  under  it. 
This  court  has  no  jurisdiction  where  the  decision  was  in  their  favoi.^*^ 


resorted  to  a  state  court  to  set  aside  a 
conveyance  by  the  bankrupt  as  in  fraud 
of  creditors;  but  as  no  question  was  raised 
there  as  to  the  power  of  the  assignee 
under  the  acts  of  congress,  or  as  to  the 
rights  vested  in  him  as  assignee,  but  only 
as  to  what  should  be  deemed  a  fraudu- 
lent conveyance  and  as  to  the  application 
of  the  evi-dence  in  reaching  that  decision, 
we  held  that  the  case  presented  no  federal 
question,  and  the  writ  of  error  was  dis- 
missed. Per  contra,  in  O'Brien  v.  Weld, 
92  U.  S.  81,  23  L.  Ed.  675.  the  question 
arose  whether,  under  the  bankrupt  law, 
the  dis-trict  court  had  authority  to  make  a 
certain  order,  anti  as  the  decision  of  the 
state  court  was  against  such  authority, 
jurisdiction  was  sustained.  Such  was  also 
the  case  rn  Factors'  Ins.  Co.  r.  Murphy, 
111  U.  S.  738.  28  L.  Ed.  582j  where  the 
effect  to  be  given  to  a  sale  of  property 
under  an  order  of  a  district  court  was  in 
question,  the  authority  of  the  court  to 
direct  a  sale  free  from  incumbrances  be- 
ing denied. 

Title  of  bankrupt. — When  the  question 
in  a  state  court  is  not  whether,  if  the 
bankrupt  had  title,  it  would  pass  to  his 
assignee,  but  whether  he  had  title  at  all. 
and  the  state  court  decided  that  he  had 
not,  no  federal  question  is  presented. 
Cramer  v.  Wilson,  195  U.  S.  408,  416.  49  L. 
Ed.  256,  citing  Scott  v.  Kelley,  22  Wall. 
57.  22  L.  Ed.  729;  McKenna  v.  Simpson, 
129  U.   S.   506,  32  L.   Ed.  771. 

Acts  to  prevent  adjudication  in  bank- 
ruptcy.— Where  the  case,  as  presented  by 
the  pleadings  is  that  the  defendant  in 
error  owning  stock  in  and  having  a  debt 
against  the  corporation,  commenced  pro- 
ceedings in  bankruptcy  to  wind  up  its 
affairs,  and  the  plaintiffs  in  error  fearing 
that  he  would  be  successful  in  his  appli- 
cation, and  believing  that  their  interests 
would  be  injuriously  affected  if  he  was, 
preferred  to  assume  his  debt  and  pur- 
chase his  stock  in  the  hope  thereby  of 
saving  themselves,  it  was  held,  that  this 
presented  no  federal  question.  Plaintiffs 
in  error  claimed  no  title,  right,  privilege 
or  immunity,  under  the  bankrupt  law,  but 
only  that  the  defendant  in  error  avails 
himself  of  his  rights  under  that  law  to 
force  them  to  execute  the  note  sued  upon 
in  order  to  avoid  an  adjudication  of  bank- 
ruptcy against  the  corporation,  in  the  ex- 
istence and  prosperity  of  which  they  were 
largely  interested.  Norden  v.  Washburn, 
131    U.    S.    145,    24    L.    Ed.    247. 


Where  the  dispute  in  the  court  below 
was  as  to  the  existence  of  the  lien  at  the 
time  of  the  commencement  of  the  pro- 
ceeding in  bankruptcy,  and  that  depends 
entirely  on  the  state  laws,  as  to  which 
the  judgment  of  the  state  court  is  final, 
this  court  has  no  jurisdiction.  Long  v. 
Bullard,  117  U.  S.  617,  621,  29  L.  Ed. 
1004. 

Jurisdiction  as  to  questions  of  limita- 
tion as  affected  by  fraud. — Where  the  rec- 
ord shows  that  the  plaintiffs  in  error  dis- 
puted the  vali<lity  of  a  transfer  to  the  de- 
fendant in  error  of  the  property  in  con- 
troversy, made  to  him  by  a  trustee  in 
bankruptcy,  appointed  ander  and  deriving 
his  authority  from  the  bankrupt  act,  and 
where  the  question  is  made  whether  the 
suit  is  barred  by  the  limitation  prescribed 
by  the  same  act,  the  jurisdiction  of  the 
supreme  court  to  decide  these  questions 
is  clear.  Traer  v.  Clews,  115  U.  S.  528, 
29  L.  Ed.  467,  citing  Factors'  Ins. 
Co.  V.  Murphy,  111  U.  S.  738,  28  L.  Ed. 
582;  New  Orleans,  etc.,  R.  Co.  v.  Dela- 
more,   114  U.   S.   501.  29   L.   Ed.  244. 

Limitation  of  suits  between  assignee 
and  adverse  claimant. — Where  the  state 
court  decides  that  §  5057  of  the  Revised 
Statutes,  which  prescribes  the  two  years 
limitation  over  suits  between  an  as- 
signee in  bankruptcy  and  a  person  claim- 
ing any  adverse  interest  touching  any 
property  or  rights  of  property  transfer- 
able to  or  vested  in  such  assignee,  does 
not  preclude  the  assignees  in  bankruptcy 
from  asserting  rights  against  the  plaintiff 
in  error,  but  precludes  him  from  asserting 
rights  against  them,  this  is  a  denial  of  a 
right  under  a  statute  of  the  United  States 
claimed  by  the  plaintiff  in  error,  'and 
therefore  a  motion  to  dismiss  will  be  over- 
ruled. Hammond  v.  Whittredge,  204  U.  S. 
538,  51   L.   Ed.  606. 

54.  Roby  v.  Colehour,  146  U.  S.  153,  3& 
L    Ed.  922. 

54a.  Strader  r.  Baldwin,  9  How.  261, 
13  L.  Ed.  130;  Calcote  v.  Stanton,  18  How. 
243,  15  L.  Ed.  348;  Linton  v.  Stanton,  12 
How.   423,   13   L.   Ed.   1050. 

Where  the  defendant  pleaded  his  dis- 
charge under  the  bankrupt  act  of  1841 
passed  by  congress,  and  the  plea  was  al- 
lowed, the  plaintiff  cannot  bring  the  case 
to  this  court  to  be  reviewed,  under  the 
twenty-fifth  section  of  the  judiciary  act. 
The  defendant  pleaded  a  privilege  or  ex- 
emption   under    a    statute    of    the    United 


AFFBAL  AND  HKROR. 


647 


(6)  Denial  of  Right  to  Remove  Causes  to  Federal  Courts — aa.  In  General. — 
Where  a  right  of  removal  under  the  act  of  congress  is  claimed  by  the  defendant 
and  the  decision  is  against  the  right,  this  presents  a  federal  question  and  gives  us 
jurisdiction.55     Where  a  state  court  refuses  to  allow  a  removal,  and  the  federal 


States,  and  the  decision  was  in  favor  of 
it.  The  case,  must,  therefore,  be  dis- 
missed, for  want  of  jurisdiction.  Strader 
V.  Baldwin,  9   How.   261,   13   L.   Ed.   130. 

Where  the  highest  court  of  a  state  de- 
cided in  favor  of  a  defendant  who  pleaded 
his  discharge  under  the  bankrupt  law  of 
tiie  United  States,  and  the  case  was 
brought  to  this  court  under  the  25th  sec- 
tion of  the  judiciary  act,  this  court  has 
no  jurisdiction.  It  would  have  been  other- 
wise if  the  decision  had  been  adverse  to 
the  exemption  claimed  under  the  law  of 
congress.  Promises  alleged  to  have  been 
made  by  the  bankrupt  after  his  discliarge 
are  not  the  subject  of  jurisdiction  under 
the  2oth  section.  The  decision  of  a  state 
court  upon  their  effect  cannot  be  reviewed 
by  this  court.  Linton  v.  Stanton,  12  flow. 
423,  13   L.    Ed.    10.50. 

Strader  v.  Baldwin  criticised. — In  Stra- 
der V.  Baldwin,  9  How.  261.  13  L.  Ed. 
130,  indeed,  under  the  like  provision  of  a 
former  bankrupt  act,  where  a  bankrupt, 
being  sued  upon  a  debt,  pleaded  his  dis- 
charge, and  the  plaintiff  replied  that  the 
debt  was  contracted  while  acting  in  a  fidu- 
ciary capacity,  and  the  decision  of  the 
state  court  was  in  favor  of  the  defendant, 
this  court  held,  that  it  had  no  jurisdiction, 
because  the  decision  below  was  in  favor 
of  the  right  set  up  by  the  defendant.  But 
the  court  there  failed  to  notice  that  the 
decision,  while  in  favor  of  the  right  or  im- 
munity, set  up  by  the  defendant,  of  a 
discharge  under  the  bankrupt  act,  was  also 
against  the  right  or  immunity,  set  up  by 
the  pKiintiff,  under  the  clause  excepting 
fiduciary  debts,  from  the  effect  of  that  dis- 
cfiarge.  And  the  case  has  accordingly 
been  overruled  in  similar  cases  arising 
under  the  recent  bankrupt  act,  in  which 
this  court  has  taken  jurisdiction,  not  only 
when  the  writ  of  error  was  sued  out  by  the 
defendant— Neal  v.  Clark,  95  U.  S.  704, 
24  L-  Ed.  586 — but  also  when  it  was  sued 
out  by  the  plaintiff,  because,  as  was  said 
by  Chief  Justice  Waite.  in  delivering 
judgment  in  the  latest  case  upon  this 
point,  the  plaintiff  "specially  set  up  and 
claimed  an  immunity,  under  §  5117  of  the 
Revised  Statutes  from  the  operation  of 
the  discharge  in  bankruptcy,  because  of 
the  fraudulent  and  fiduciary  character  of 
his  debt,  and  the  decision  was  against 
him.  Hennequin  v.  Clews.  Ill  U.  S.  676, 
28  L.  Ed.  565;  Palmer  v.  Hussev,  119  U. 
S  96.  9S,  30  L.  Ed.  362."  McCormick  v. 
Market  Bank,  165  U.  S.  538,  546,  41  L. 
Ed.  817. 

55.  Oakley  v.  Goodnow,  118  U.  S.  43, 
44,   30    L.    Ed.    61:    Kanouse   v.    Martin,    15 


How.  198,  14  L.  Ed.  660;  Chappell  v. 
Waterworth,  155  U.  S.  102,  39  L.  Ed.  85. 

All  issues  of  fact  made  upon  the  peti- 
tion for  removal  must  be  tried  in  the  cir- 
cuit court,  but  the  state  court  is  at  lib- 
erty to  determine  for  itself  whether,  on 
the  face  of  the  record,  a  removal  has  been 
efiftcted.  If  it  decides  against  the  removal 
and  proceeds  with  the  cause  notwith- 
standing the  petition,  its  ruling  on  that 
question  will  be  reviewable  here  after  final 
judgment  under  §  709  of  the  Revised  Stat- 
utes.    Removal  Cases,  lOO  U.   S.   457,  472, 

25  L-  Ed.  593;  Railroad  Co.  v.  Mississippi, 
102  U.  S.  135,  141,  26  L.  Ed.  96;  Kerr  v. 
Huidekoper,  103  U.  S.  485,  26  L.  Ed.  354; 
Railroad  Co.   v.   Koontz,   104  U.   S.   5.   15, 

26  L.  Ed.  643;  Chesapeake,  etc.,  R.  Co.  v. 
White,  111  U.  S.  134,  137,  28  L.  Ed.  37S, 
379;  Stone  v.  South  Carolina,  117  U.  S- 
430,  432,  29   L.    Ed.  962. 

Where  a  motion  was  made  under  the 
12th  section  of  the  judiciary  act  to  remove 
a  cause  from  a  state  court  to  the  circuit 
court  of  the  United  States,  notwithstand- 
ing which  the  state  court  retained  cog- 
nizance of  the  case,  and  it  was  ultimately 
brought  to  this  court  under  the  25th  sec- 
tion of  the  judiciary  act,  a  motion  to  dis- 
miss it  for  want  of  jurisdiction  cannot  be 
sustained.  The  question  Vv-ill  remain  to 
be  decided  upon  the  full  hearing  of  the 
case.  Kanouse  v.  Martin,  15  How.  198, 
14  L.    Ed.   660. 

The  plaintiff  in  error  claimed  the  right 
to  remove  this  cause  from  the  state  court 
to  the  circuit  court  of  the  United  States, 
under  the  12th  section  of  the  judiciary 
act  of  1789.  The  right  claimed  was  de- 
nied by  the  state  court,  which  retained 
the  case,  and  proceeded  to  give  a  final 
judgment  against  him.  It  is  therefore 
precisely  one  of  the  cases  enumerated  in 
the  25th  section  of  the  act  of  1789.  in 
which  jurisdiction  is  conferred  upon  this 
court,  and  in  which  the  judgment  of  the 
state  court  may  be  reviewed  upon  writ 
of  error.  For  the  construction  of  an  act 
of  congress  was  drawn  in  question,  and 
the  decision  of  the  court  was  against  the 
right  claimed  under  it,  by  the  plaintiff  in 
error.  Kanouse  v.  Martin,  15  How.  198, 
14  L.   Ed.   660. 

A  person  was  sued  in  the  territorial 
court  of  Florida.  After  the  admission  of 
Florida  as  a  state,  the  case  was  trans- 
ferred to  a  state  court.  The  defendant 
appeared,  and  pleaded  the  general  isiue. 
The  verdict  was  given  against  him.  He 
then  moved  in  arrest  of  judgment,  upon 
the  ground  that  the  case  ought  to  have 
been   transferred   to   the    district   court   of 


648 


APPEAL  AXD  ERROR 


court  on  the  other  liaiid  denies  a  motion  to  remand,  the  supreme  court  has  juris- 
diction and  will  determine  whether  there  was  error  on  the  part  of  the  state  court 
in  retaining  the  case.-^** 

But  where  the  defendant  did  not  apply  for  the  removal  of  the  cause,  no 
rig'ht  claimed  under  an  act  of  congress  could  have  been  denied  him  by  the  state 
court. •^' 


the  United  States,  instead  of  a  state 
court.  The  motion  was  overruled,  and 
judgment  entered  up  against  him.  Upon 
an  appeal  to  the  supreme  court  of  Florida, 
this  judgment  was  affirmed.  This  court 
has  no  jurisdiction  under  the  2.V.h  sec- 
tion of  the  judiciary  act,  to  review  that  de- 
cision. As  it  does  not  appear,  therefore, 
that  the  supreme  court  of  the  state  must 
have  decided  adversely  to  the  party  now 
claiming  the  interposition  of  this  court, 
and  decided  so  upon  the  construction  of 
an  act  of  congress,  the  writ  of  error  must 
be  dismissed  for  want  of  jurisdiction.  Car- 
ter V.  Bennett,  15  How.  354,  14  L.  Ed. 
727. 

Where,  in  a  suit  pending  before  it  a 
state  court  dissolves  an  injunction  (pre- 
viously granted  by  it  on  an  allegation  by 
the  mortgagor,  that  the  mortgagee  had 
agreed  to  give  him  further  time)  against 
proceeding  to  sell  mortgaged  premises, 
tmder  a  foreclosure  already  had,  and  after 
such  drssohition — the  effect  of  which  is, 
©f  course,  to  leave  in  force  a  final  decree 
of  sale — an  alien  defendant  petitions  for 
a  removal  into  the  circuit  court  under  the 
act  of  July  27th.  1866.  "for  the  removal  of 
causes  in  certain  cas-es  from  state  courts," 
a»d  the  state  court  refuses  to  grant  that 
petition,  the  defendant  not  excepting,  and 
the  case  is  afterwards  taken  to  the  su- 
preme ccKirt  cwi  an  appeal  from  the  decree 
dissolvfng  the  injunction,  no  jurisdiction 
exists  here  to  review  the  judgment  of  the 
sup-reme  court  under  §  709  of  the  Revised 
Statutes,  and  on  the  ground  that  a  right, 
title,  privilege,  or  immunftj'  has  been 
claimed  under  a  statute  of  the  United 
States,  and  that  a  decision  of  the  highest 
court  of  the  state  where  a  decision  could 
be  had  has  been  against  it.  The  refusal 
of  the  state  court  to  grant  a  removal  under 
the  act  of  congress  not  having  been  ex- 
cepted to.  and  that  matter  not  having  been 
involved  in  what  was  before  the  supreme 
court,  its  judgme^nt  cannot  be  held  to  have 
embraced  it,  nor  indeed  anything  but  the 
matter  of  the  dissolution  of  the  injunction; 
a  matter  which  involved  no  federal  ques- 
tion. Fashnacht  v.  Frank.  23  Wall.  416. 
23  L.  Ed.  81. 

But  merely  because  a  suit  against  a 
railroad  company  to  recover  for  personal 
injuries  might  have  been  brought  in  the 
circuit  court  of  the  United  States,  or  re- 
moved thereto  from  the  state  court  on 
the  ground  that  it  was  one  arising  under 
the  laws  of  the  United  States,  in  that  the 
railroad   company   was   a   corporation    or- 


ganized under  and  by  virtue  of  acts  of 
congress,  it  does  not  follow  that  the  state 
court  decided  against  any  title,  right, 
privilege,  or  immunity  in  exercising  its 
jurisdiction.  Texas,  etc.,  R.  Co.  v.  John- 
son, 151  U.  S.  81,  38  L.  Ed.  81. 

The  record.— The  question  whether,  ad- 
mitting the  facts  stated  in  the  petition  for 
removal  to  be  true,  it  appears  on  the  face 
of  the  record,  which  includes  the  petition, 
and  the  pleading  and  prrjceedings  down  to 
that  time,  that  the  petitioner  is  entitled 
to  a  removal  of  the  suit,  the  state  court 
has  the  right  to  decide  for  itself,  and  if 
it  errs  in  keeping  the  case,  and  the  highest 
court  of  the  state  affirms  its  decision,  this 
court  has  jurisdiction  to  correct  the  error, 
considering,  for  that  purpose,  only  the 
part  of  the  record  which  eads  with  the 
petition  for  removal.  Stone  v.  South  Car- 
olina, 117  U.  S.  430.  29  L.   Ed.  ^2. 

But  even  though  the  state  court  should 
refuse  to  stop  proceedings,  the  petition- 
ing party  may  enter  a  copy  of  the  record 
of  that  court,  as  it  stood  on  the  filing  of 
his  petition,  in  the  circuit  court,  and  have 
the  suit  docketed  there.  If  the  circuit 
court  errs  in  taking  jurisdiction,  the  other 
side  may  bring  the  decision  here  for  re- 
view, after  final  judgment  or  decree,  if  the 
value  of  the  matter  in  dispute  is  sufficient 
in  amount.  Railroad  Co.  v.  Koontz,  104 
U.   S.   5.   15,  26   L.    Ed.  643. 

In  that  case,  the  same  as  in  the  writ  of 
error  to  the  state  court,  the  question  will 
be  decided  on  the  face  of  the  part  of  the 
record  of  the  state  court  which  ends  with 
the  petition  for  removal;  for  the  circuit 
court  can  no  more  take  a  case  until  its 
jurisdiction  is  shown  by  the  record  than 
the  state  court  can  be  required  to  let  it 
go  until  the  record  shows  that  its  juris- 
diction has  been  k>st.  The  questions  in 
the  two  courts  will  be  identical,  and  will 
depend  on  the  same  record;  namely,  that 
in  the  state  court  ending  with  the  peti- 
tion for  removal.  The  record  remaining 
in  the  state  court  will  be  the  original;  that 
in  the  circuit  court  an  exact  copy.  Bur- 
lington, etc..  R.  Co.  V.  Dunn,  122  U.  S.  513, 
516',   30   L.   Ed.    1159. 

56.  Missouri,  etc.,  R.  Co.  v.  Com'rs,  183 
U.  S.  53.  46  L.  Ed.  78,  citing  Removal 
Cases.  100  U.  S.  457,  25  L.  Ed.  593;  Stone 
V.  South  Carolina,  117  U.  S.  430.  29  L- 
Ed.  962;  Missouri  Pac.  R.  Co.  v.  Fitzger- 
ald,  160   U.   S.    556,   40   L.    Ed.    536. 

57.  Northern  Pac.  R.  Co.  v.  Austin,  13j 
U.    S.    315,   34    L.    Ed.   218. 


AFFt;AL  AND  BRROR. 


649 


Where  Petition  for  Removal  Was  Defective.— Xor  has  this  court  juris- 
diction to  review  the  decision  of  the  highest  state  court  affirming  the  ruhng  of 
the  trial  court  denying  a  petition  for  removal  of  the  cause  from  a  state  to  a  fed- 
eral court,  where  the  petition  for  removal  is  clearly  defective.-^^ 

Harmless  Error. — Where  the  motion  of  a  party  to  an  action  in  a  state  court 
ior  its  removal  to  the  circuit  court  of  the  United  States  is  denied,  and  the  party, 
nevertheless,  files  the  record  in  the  circuit  court,  and  the  circuit  court  proceeds 
to  final  hearing,  the  state  court  suspending  all  action,  and  remands  the  case  to  the 
state  court,  the  party  is  not  prejudiced  by  the  refusal,  and  the  error  in  that  re- 
gard, if  any.  is  immaterial. -^^ 

And  the  denial  by  a  state  court  of  an  application  to  amend  a  petition 
for  removal  is  not  the  denial  of  any  right'  secured  bv  the  constitution  of  the 
United  States.^^' 

Motion  to  Dismiss. — Where  a  motion  was  made,  under  the  12th  section  of 
the  judiciary  act.  to  remove  a  cause  from  a  state  court  to  the  circuit  court  of 
the  United  States,  notwithstanding  which,  the  state  court  retained  cognizance  of 
the  case,  and  it  was  ultimately  brought  to  this  court  under  the  25th  section  of  the 
judiciary  act,  a  motion  to  dismiss  it  for  want  of  jurisdiction  cannot  be  sustained. 
Tlie  question  will  remain  to  be  decided  upon  the  full  hearing  of  the  case.^^ 

bb.  Effect  of  Act  of  March  ?,  i88/.— As  under  the  act  of  :\Iarch  3,  1887.  a 
remanding  order  of  the  circuit  court  is  not  reviewable  by  this  court  on  appeal 
or  writ  of  error  from  or  to  that  court,  so  it  would  seem  to  follow  that  it  cannot 
he  reviewed  on  writ  of  error  to  a  state  court,  the  prohibition  being  that  "no 
appeal  or  writ  of  error  from  the  decision  of  the  circuit  court  remanding  such 
cause  shall  be  allowed. "^'^  \^(^  jt  jg  entirely  clear  that  a  writ  of  error  cannot 
be  maintained  under  §  70^  in  respect  of  such  an  order  where  the  state  court  has 
rendered  no  decision  against  a  federal  right  but  simply  accepted  the  conclusion 
of  the  circuit  court.^-*'  The  action  of  a  circuit  court  in  remanding  a  cause  to  a 
state  court  after  its  removal  on  the  first  application  is  not  open  to  revision  on 
writ  of  error   from  this  court  to  a  state  court. ^^     But  if  a  state  court  proceed? 


58.  Pennsylvania  Co.  f.  Bender.  148  U. 
S.  2:?5.  37  L.  Ed.  441.  distinguishing  Ka- 
noiise  :■.  Martin,  1.5  How.  198.  14  L.  Ed. 
660. 

59.  Missouri  Pac.  R.  Co.  v.  Fitzgerald, 
160  I".  S.  ."56.  40  L.  Ed.  536. 

60.  Crehore  r-.  Obi-,  etc..  R.  Co.,  131 
U.  S.  240,  33  L.  Ed.  144;  Pennsylvania 
Co.  V.  Bender.  148  U.  S.  255,  37  L.  Ed.  441; 
Steven >  z'.  Nichols.  157  U.  S.  370.  39  L. 
Ed.    7.1!!. 

61.  Kanouse  t'.  Martin,  15  How.  198,  14 
L.  Ed.  G60. 

62.  Missouri  Pac.  R.  Co.  z\  Fitzgerald, 
160  U.  S.  556.  582,  40  L.  Ed.  536.  reaffirmed 
in  Jeske  v.  Cox,  171  U.  S.  685,  43  L.  Ed. 
1!79:  Nelson  v.  Moloney,  174  U.  S.  164, 
43    L.    Ed.    934. 

"Under  the  act  of  congress  of  March  3, 
1887.  c.  373,  24  Stat.  552,  553,  as  re-en- 
acted for  the  purpose  of  correcting  the 
enrollment,  by  the  act  of  August  13.  1888, 
c.  866.  25  Stat.  433,  435.  is  the  order  of  the 
circuit  court  remanding  the  cause  to  the 
state  court  open  to  review  on  this  writ 
of  error?  If  not,  then  we  cannot  take  ju- 
risdiction to  revise  the  proceedings  of  the 
state  court.  Nor  can  the  inquiry  be  af- 
fected by  the  fact  that  a  motion  to  remand 
had  been  previously  made  and  denied. 
That  order  was  subject  to  reconsideration, 
a?   the   question   of  jurisdiction   always   is, 


until  final  judgment,  and,  indeed,  it  was  the 
duty  of  the  circuit  court  under  the  stat- 
ute, if  it  appeared  at  any  time  that  juris- 
diction was  lacking,  to  dismiss  or  remand 
as  justice  might  require.  18  Stat.  470.  c. 
137.  §  5."  Missouri  Pac.  R.  Co.  v.  Fitz- 
gerald, 160  U.  S.  556,  580,  40  L.  Ed.  536, 
reaffirmed  in  Jeske  v.  Cox,  171  U.  S.  685, 
43  L.  Ed.  1179. 

63.  Missouri  Pac.  R.  Co.  v.  Fitzgerald. 
160  U.  S.  556,  583,  40  L.  Ed.  536,  reaffirmed 
m  Jeske  v.  Cox,"  171  U.  S.  685,  43  L.  Ed. 
1179;  Nelson  v.  Moloney,  174  U.  S.  164, 
43  L.   Ed.   934. 

64.  Missouri  Pac.  R.  Co.  v.  Fitzgerald, 
160  U.  S.  556.  40  L.  Ed.  536;  Whitcomb  t. 
Smithson,  175  U.  S.  635.  637.  44  L.  Ed.  303; 
>r'Gilvray  v.  Knott,  179  U.  S.  680.  45  L. 
Ed.  383. 

Where  a  petition  for  the  removal  of  a 
cnu-e  from  a  state  to  a  federal  court  is 
filed  on  the  ground  of  diverse  citizenship, 
and  is  denied  by  the  state  court,  but  it  is 
not  claimed  that  the  state  court  denied 
the  petition,  but  on  the  contrary  it  is  con- 
ceded that  the  record  was  transmitted  to 
the  circuit  court  and  that  that  court,  on 
motion,  remanded  the  cause  to  the  state 
court  because  there  was  no  separate  con- 
troversy between  citizens  of  diflferent 
states,  this  being  so,  the  proceedings  in 
relation   to   the   removal   of   the   cause   af- 


650 


APPEAL  AXD  ERROR. 


to  judgment  in  a  cause  notwithstanding  an  application  for  removal,  its  ruling 
in  retaining  the  case  will  he  reviewable  here  after  final  judgment  under  §  709 
of  the  Revised  Slatutes.*^^ 

(7)  Denial  of  Full  Faith  and  Credit  to  Judgments,  Records  and  Judicial  Pro- 
ceeding's of  Sister  States. — In  General. — Tlie  question  whether  due  faith  and 
credit  has  been  denied  by  one  state  to  the  public  acts,  records  and  judicial  pro- 
ceedings of  another  state  is  a  federal  question  of  which  this  court  has  juris- 
diction.''^ 


forded  no  ground  for  the  issue  of  a  writ 
of  error.  Nelson  i:  Moloney,  174  U.  S. 
164,  43  L.  Ed.  834,  following  Missouri, 
etc..  R.  Co.  V.  Fitzgerald,  160  U.  S.  556,  40 
L.  Ed.  536. 

Where  a  state  court  refuses  to  remove 
a  case  pending  before  it  to  the  United 
States  court,  and  upon  denial  of  the  mo- 
tion, the  movant  tiles  the  record  in  the 
circuit  court  of  the  United  States,  which 
court  remands  the  cause  to  the  state  court, 
if  error  is  committed  in  the  ruling  of  the 
state  court,  it  becomes  wholly  immaterial. 
Telluride,  etc..  Co.  v.  Rio  Grande,  etc.,  R. 
Co..  187  U.  S.  569,  47  L.  Ed.  307,  reaf- 
firmed in  Dakota,  etc.,  R.  Co.  v.  Crouch, 
203  U.  S.  582,  51  L.  Ed.  327,  citing  Mis- 
souri Pac.  R.ailway  v.  Fitzgerald.  160 
U.   S.  556,  40  L.   Ed.  536. 

65.  Stone  v.  South  Carolina,  117  U.  S. 
430,  29  L.  Ed.  962;  Missouri  Pac.  R.  Co.  v 
Fitzgerald,  160  U.  S.  556,  582,  40  L.  Ed 
536,  reaffirmed  in  Jeske  v.  Cox,  171  U.  S 
685,  43  L.  Ed.  1179;  Southern  R..  Co.  v 
Allison,  190  U.  S.  326,  330,  47  L.  Ed.  1078. 
reaffirmed  in  Southern  R.  Co.  v.  Beach, 
193  U.  S.  667,  668,  48  L.  Ed.  839. 

So  far  as  the  mere  question  of  the 
forum  was  concerned,  congress  was  man- 
ifestly of  opinion  that  the  determination  of 
the  circuit  court  that  jurisdiction  could 
not  be  maintained  should  be  final,  since  it 
would  •  be  an  uncalled  for  hardship  to 
subject  the  party  who,  not  having  sought 
the  jurisdiction  of  the  circuit  court,  suc- 
ceeded on  their  merits  in  the  state  court, 
to  the  risk  of  the  reversal  of  his  judg- 
ment, not  because  of  error  supervening 
on  the  trial,  but  because  a  disputed  ques- 
tion of  diverse  citizenship  had  been  er- 
roneously decided  by  the  circuit  court; 
while  as  to  application  for  removal  on 
the  ground  that  the  cause  arose  under  the 
constitution,  laws,  or  treaties  of  the 
United  States,  that  this  finality  was 
equallj'  expedient,  as  questions  of  the  lat- 
ter character,  if  decided  against  the  claim- 
ant, would  be  open  to  revision  under  § 
709,  irrespective  of  the  ruling  of  the  cir- 
cuit court  in  that  regard  in  the  matter  of 
removal.  Missouri  Pac.  R.  Co.  v.  Fitz- 
gerald. 160  U.  S.  556,  583,  40  L.  Ed.  536.  re- 
affirmed in  Jeske  v.  Cox,  171  U.  S.  685, 
43  L.   Ed.  1179. 

e6.  Green  v.  Van  Buskirk.  5  Wall.  307, 
311,  18  L.  Ed.  599;  Crapo  v.  Kelly.  16  Wall. 
610,  619,  21  L-  Ed.  430;  Dupasseur  v. 
Rochereau,  21  W'all.  130,  134,  22  L.  Ed. 
588;     Crescent    City    Live     Stock    Co.    v. 


Butchers'  Union  Slaughter-House  Co.,  120 
U.  S.  141,  147,  30  L.  Ed.  614;  Cole  v.  Cun- 
ningham, 133  U.  S.  107,  33  L.  Ed.  538; 
Carpenter  v.  Strange.  141  U.  S.  87,  103,  35 
L.  Ed.  640;  Huntington  v.  .\ttrill,  146  U. 
S.  657,  666,  36  L.  Ed.  1123;  Laing  v.  Rig- 
ney,  160  U.  S.  531.  40  L.  Ed.  525;  Han- 
cock Xat.  Bank  z:  Farnum,  176  U.  S.  640, 
44  L.  Ed.  619;  Jacobs  v.  Marks,  182  U.  S. 
583,  587,  45  L.  Ed.  1241.  citing  and  approv- 
ing Green  z:  Van  Buskirk,  5  Wall.  307,  314, 
18  L.  Ed.  599;  Carpenter  v.  Strange.  141 
U.  S.  87,  103,  35  L.  Ed.  640,  and  Hunting- 
ton V.  Attrill,  146  U.  S.  657,  684,  36  L-  Ed. 
1123;  Andrews  v.  Andrews,  188  U.  S.  14, 
47  L.  Ed.  366;  Eastern  Bldg.,  etc..  Ass'n  w. 
Wilhamson,  189  U.  S.  122.  125,  47  L.  Ed. 
735;  Blount  z:  Walker,  134  U.  S.  607.  33 
L.   Ed.  1036. 

The  refusal  of  the  state  court  in  which 
a  suit  growing  out  of  a  seizure  and  sale 
of  personal  property  under  an  attachment 
issuing  from  a  part  of  the  state  where  the 
propertv  is,  may  be  tried,  to  give  to  the 
proceedings  of  the  court,  under  which  the 
property  was  sold,  the  same  effect  in  their 
operation  upon  the  title,  as  they  have  by 
law  and  usage  in  the  state  where  they 
took  place,  constitutes  a  proper  case  for 
review  in  this  court,  under  the  25th  sec- 
tion of  the  judiciary  act.  Green  v.  Van 
Buskirk,  5  Wall.  307,   18  L.   Ed.  599. 

Where  a  state  court  denies  full  faith 
and  credit  to  the  insolvency  proceedings 
had  in  another  state,  this  court  has  juris- 
diction to  review  its  judgment.  Crapo  v. 
Kelly.  16  Wall.  610,  21  L-  Ed.  430. 

Judgments  for  penalties. — A  bill  in  eq- 
uity in  one  state  to  set  aside  a  conveyance 
of  property  made  in  fraud  of  creditors, 
and  to  charge  it  with  the  payment  of  a 
judgment  since  recovered  by  the  plaintiff 
against  the  debtor  in  another  state  upon 
his  liability  as  an  officer  in  a  corporation 
under  a  statute  of  that  state,  set  forth 
the  judgment  and  the  cause  of  action  on 
which  it  was  recovered;  and  also  asserted, 
independently  of  the  judgment,  an  original 
liability  of  the  defendant  as  a  stockholder 
and  officer  in  that  corporation  before  the 
conveyance.  The  highest  court  of  the 
state  declined  to  entertain  the  bill  by  vir- 
tue of  the  judgment,  because  it  had  been 
recovered  in  another  state  in  an  action 
for  penalty;  or  to  maintain  the  bill  on  the 
original  liability,  for  various  reasons. 
Field,  that  the  question  whether  due  faith 
and  credit  were  thereby  denied  to  the 
judgment  was  a  federal  question,  of  which 


APPEAL  AXD  ERROR. 


651 


And  where  a  state  court  refuses  to  give  effect  to  the  judgment  of  a  court 
of  another  state,  it  refuses  to  give  full  faith  and  credit  to  that  judgment,  and 
gives  the  I'nited  States  supreme  court  jurisdiction.**' 

Principles  of  General  Law.— But  when  the  decision  of  a  state  court  hold- 
ing a  contract  valid  or  void  is  made  upon  the  general  principles  by  which  courts 
determine  whether  a  consideration  is  good  or  bad  on  principles  of  public  policy, 
no  question  arises  under  the  provision  of  the  constitution  respecting  the  faith 
and  credit  to  be  given  in  each  state  to  the  public  acts,  records,  and  judicial  pro- 
ceedings of  another  state,  and  this  court  cannot  review  the  decision.^^ 

Violation  of  Eule  of  Precedents.— The  fourth  article  of  the  constitution 
of  the  United  States,  which  declares,  that,  "full  faith  and  credit  shall  be  given 
in  each  state  to  the  public  acts,  records  and  judicial  proceedings  of  every  other 
state,"  cannot,  by  any  just  constructioti  of  its  words,  be  held  to  embrace'  an  al- 
leged error  in  a  decree  of  a  state  court,  asserted  to  be  in  collision  with  a  prior 
decision  of  the  same  court,  in  the  same  case.^^ 

Where  a  judgment  of  another  state  is  pleaded  in  defense,  and  issue  is 
made  upon  it,  it  may  well  be  ruled  that  that  sets  up  a  right  under  the  third  sub- 
division, because  the  eftect  of  the  judgment  is  the  only  question  in  the  case."" 

Construction  of  State  Statutes. — Where  the  validity  of  a  state  law  is  not 
drawn  in  question  but  merely  its  construction,  no  federal  question  arises,  and 
even  though  the  construction  is  erroneous,  full  faith  and  credit  is  not  denied 
to  the  statute.'^  1     The  mere  construction  by  a  state  court  of  a  statute  of  another 


this  court  had  jurisdiction  on  writ  of  er- 
ror. Hunting:ton  v.  Attrill.  146  U.  S.  657, 
36  L.   Ed.  1123. 

Title  under  judicial  sale  in  another  state. 
- — Where  the  plaintiff  in  error  in  his  coin- 
plaint  unquestionably  sets  up  a  right  to 
recover  as  the  result  of  a  judicial  sale 
made  under  decrees,  both  in  courts  of  the 
United  States  and  of  a  state,  federal  ques- 
tions exist  in  the  record,  and  a  motion  to 
dismiss  will  be  denied.  Commercial  Pub. 
Co.  V.  Beckwith,  188  U.  S.  567,  47  L.  Ed. 
598. 

67.  Mutual  Life  Ins.  Co.  v.  McGrevv, 
188  U.  S.  291,  311,  47  L-  Ed.  480.  re- 
affirmed in  Herold  v.  Frank,  191  U.  S. 
558,  48  L.  Ed.  302;  Hughes  v.  Kepley,  191 
U.  S.  557,  48  L.  Ed.  301;  Wakefield  v. 
Tassell.  192  U.  S.  601.  48  L.  Ed.  583;  Bank 
of  Commerce  v.  Wiltsie,  189  U.  S.  505, 
47  L.  Ed.  921. 

68.  Chicago,  etc.,  R.  Co.  v.  Wiggins 
Ferry  Co.,  119  U.  S.  615,  30  L.  Ed.  519. 

Suit  was  brought  in  a  state  court  by  a 
ferry  company  against  a  railroad  to  re- 
cover damages  for  not  employing  the 
ferry  company  for  the  transportation  of 
persons  and  property  across  the  river,  as 
by  its  contract  it  was  bound  to  do.  The 
defendant  pleaded  that  it  had  no  power 
to  make  the  contract;  that  the  same  was 
in  violation  of  the  laws  of  Illinois,  con- 
trary to  the  public  policy  thereof  and  was 
void.  The  statutes  were  put  in  evidence, 
but  their  construction  and  operative  effect 
were  disputed.  The  supreme  court  of  the 
state  held  that  the  contract  was  inter- 
preted correctly  by  the  court  below,  and 
that  it  was  not  ultra  vires,  contrary  to 
public  policy,  or  in  restraint  of  trade.     It 


was  argued  here  by  the  railroad  company 
that  by  law  and  usage  of  Illinois,  the 
charter  of  the  company  in  that  stale  made 
the  contract  ultra  vires.  Held,  that  no 
proof  having  been  offered  to  support  the 
averment  that  the  contract  was  in  viola- 
tion of  the  laws  of  Illinois,  the  defense 
relying  on  the  general  claim  that  the 
contract  was  illegal,  it  was  held,  that  no 
federal  question  was  involved,  and  the 
case  was  dismissed.  It  should  have  ap- 
peared on  the  face  of  the  record  that  the 
facts  presented  for  adjudication  made  it 
necessary  for  the  court  to  consider  the 
act  of  incorporation  in  view  of  the  pecul- 
iar jurisprudence  in  Illinois,  rather  than 
the  general  law  of  the  land.  Allen  v. 
Alleghany  Co.,  196  U.  S.  458.  463,  49  L. 
Ed.  551,  following  Chicago,  etc.,  R.  Co.  v. 
Wiggins  Ferry  Co..  119  U.  S.  615.  30  L. 
Ed.  519. 

69.  Mitchell  v.  Lenox.  14  Pet.  49.  10  L. 
Ed.   349. 

70.  Mutual  Life  Ins.  Co.  v.  McGrew, 
188  U.  S.  291.  311,  47  L.  Ed.  480,  reaffirmed 
in  Herold  v.  Frank,  191  U.  S.  558.  48  L. 
Ed.  302;  Hughes  v.  Kepley,  191  U.  S.  557, 
48  L.  Ed.  301;  Wakefield  v.  Tassell,  192 
U.  S.  601,  48  L.  Ed.  583;  Bank  of  Com- 
merce V.  Wiltsie,  189  U.  S.  505,  47  L. 
Ed.  921. 

71.  Glenn  c'.  Garth,  147  U.  S.  360,  37  L. 
Ed.  203,  reaffirmed  in  Chicago,  etc..  R. 
Co.  V.  Newell,  198  U.  S.  579,  49  L.  Ed. 
1171;  Lloyd  v.  Matthews,  155  U.  S.  222, 
38  L.  Ed.  128;  Banholzer  v.  New  York 
Life  Ins.  Co.,  178  U.  S.  402,  406,  44  L.  Ed. 
1124;  Joh^Tison  v.  New  York  Life  Ins.  Co., 
187  U.  S.  491,  47  L.  Ed.  273;  Eastern 
Bldg.,  etc.,  .^.ss'n  v.  Williamson,  181?  U.  S. 
122,   125,   47    L.    Ed.   735. 


652 


APPEAL  AND  ERROR. 


state  without  questioning  its  validity,  does  not,  with  possibly  some  exceptions, 
deny  to  it  the  full  faith  and  credit  demanded  by  the  statute  in  order  to  give  this 
court  jurisdiction  J  2  Every  decision  regarding  the  proper  construction  of  the 
statute  of  another  state  does  not  involve  a  federal  question.  Where  the  case 
turns  upon  the  construction  and  not  the  validity  of  the  statute,  a  decision  of 
that  question  is  not  necessarily  of  a  federal  character-'^  It  depends  upon  the 
particular  facts  of  each  case  and  the  manner  in  which  they  are  presented  as  to 
how  far  decisions  of  one  state  court  regarding  the  construction  and  validity  of 
the  statutes  of  another  state,  present  questions  coming  under  the  rule  requiring 
one  state  to  give  full  faith  and  credit  to  the  public  acts,  records  and  judicial 
proceedings  of  another  state,  and  hence  presenting  federal  questions  reviewable 
by  the  court.'^  "If  every  time  the  court  of  a  state  put  a  construction  upon  the 
statutes  of  another  state,  this  court  may  be  required  to  determine  whether  that 
construction  was  or  was  not  correct,  upon  the  ground  that  if  it  were  concluded 
that  the  construction  was  incorrect,  it  would  follow  that  the  state  courts  had 
refused  to  give  full  faith  and  credit  to  the  statutes  involved,  our  jurisdiction 
would  be  enlarged  in  a  manner  never  heretofore  believed  to  have  been  con- 
templated.""^ 

Presumption  as  to  Foreign  Laws. — An  assignment  of  error  that  full  faith 
and  credit  has  been  denied  to  the  laws  of  a  sister  state  and  to  the  construction 


72.  Glenn  v.  Garth.  147  U.  S.  360,  37  L. 
Ed.  203;  Lloyd  v.  Matthews,  155  U.  S. 
232,  38  L.  Ed.  128;  Banholzer  v.  New  York 
Life  Ins.  Co.,  178  U.  S.  402,  44  L.  Ed. 
1124;  Johnson  v.  New  York  Life  Ins.  Co., 
187  U.  S.  491.  47  L.  Ed.  273;  Finney  v. 
Guy,  189  U.  S.  335.  47  L.  Ed.  839;  Allen 
V.  Alleghany  Co.,  196  U.  S.  458,  464,  49 
L.  Ed.  551. 

As  was  remarked  in  Glenn  v.  Garth, 
147  U.  S.  360,  368,  37  L.  Ed.  203:  "If 
every  time  the  courts  of  a  state  put  a 
construction  upon  the  statutes  of  another 
state,  this  court  may  be  required  to  deter- 
mine whether  that  construction  was  or 
was  not  correct,  upon  the  ground  that  if 
it  were  concluded  that  the  construction 
was  incorrect,  it  would  follow  that  the 
state  courts  had  refused  to  give  full  faith 
and  credit  to  the  statutes  involved,  our 
jurisdiction  would  be  enlarged  in  a  man- 
ner never  heretofore  believed  to  have  been 
contemplated."  Grand  Gulf,  etc.,  R.  Co. 
V.  Marshall,  12  How.  165,  13  L.  Ed.  938; 
Cook  County  v.  Calumet,  etc.,  Canal  Co., 
138  U.  S.  635,  34  L.  Ed.  1110;  Lloyd  v. 
Matthews,  155  U.  S.  222,  227,  38  L.  Ed. 
128. 

A  decision  by  the  state  court  of  Minne- 
sota that  the  notice  required  by  the  laws  of 
New  York  in  order  to  justify  a  forfeiture 
for  nonpayment  of  insurance  premiums,  is 
not  required  on  the  maturity  of  a  pre- 
mium note  for  an  installment,  does  not 
deny  the  validity  of  the  New  York  statute 
in  regard  to  insurance,  in  order  to  give 
this  court  jurisdiction  to  review  on  writ 
of  error  to  the  state  court;  it  only  con- 
strues the  statute.  Banholzer  v.  New 
York  Life  Ins.  Co.,  178  U.  S.  i02,  406.  44 
L.   Ed.   1124. 

The  decision  of  a  state  court  holding 
that  contracts  made  by  a  corporation  in 
another  state  which  had  failed  to  comply 


with  the  s*^nte  regulations,  were  not  ipso 
facto  void,  but  may  be  enforced,  is  not 
reviewable  by  this  court  on  writ  of  error 
to  a  state  court.  There  is  no  denial  of 
the  validity  of  a  statute  involved,  but  only 
the  construction  placed  thereon.  Allen  v. 
Alleghany  Co.,  196  U.  S.  458,  49  L.  Ed. 
551. 

A  judgment  of  the  highest  court  of  a 
state,  that  a  plea  does  not  show  that  a 
note  was  "given  to  a  foreign  corporation 
doing  business  in  another  state,  in  viola- 
tion of  the  statutory  conditions  on  which 
its  right  to  do  business  there  depended, 
presents  a  local  question,  and  no  federal 
question  is  involved  therein,  in  order  to 
give  the  court  jurisdiction.  Allen  v.  Al- 
leghany Co.,   196  U.   S.   458.  49   L.    Ed.  55k 

73.  Johnson  71.  New  York  Life  Ins.  Co.,, 
187  U.  S.  491,  496.  47  L.  Ed.  273;  Finney 
V.  Guy.  189  U.  S.  335,  340,  47  L-  Ed.  839. 

74.  Finney  v.  Guy,  189  U.  S.  335,  47 
L.   Ed.   839. 

75.  Glenn  v.  Garth,  147  U.  S.  360,  368, 
37   L.    Ed.   203. 

Where  a  state  court  fully  considers 
statutes  of  another  state  and  the  decisions 
of  that  state  construing  them,  but  decides 
that  the  statute  is  not  applicable  to  the 
case  before  it,  it  does  not  deny  full  faith 
and  credit  to  the  laws  of  such  other  state, 
and  whether  the  construction  placed  upon 
the  statutes  is  the  correct  one  or  not  is 
not  a  federal  question.  "To  hold  other- 
wise would  render  it  possible  to  bring  to 
this  court  every  case  wherein  the  defeated 
party  claimed  that  the  statute  of  another 
state  had  been  construed  to  his  detri- 
ment." Johnson  v.  New  York  Life  Ins. 
Co..  187  U.  S.  491,  47  L.  Ed.  273.  citing 
Banholzer  v.  New  York  Life  Ins.  Co.. 
178  U  S.  402.  44  L.  Ed.  1124;  Glenn  v. 
Garth.  147  U.  S.  360.  37  L-  Ed.  203;  Lloyd 
V.   Matthews,  155  U.  S.  222.  38  L.  Ed.  128. 


APPEAL  A\D  ERROR.  653 

of  such  laws  by  the  highest  court  of  that  state,  cannot  be  sustained  where  the 
court  proceeded  on  the  presumption  that  the  rules  of  the  common  law  prevailed 
in  such  state  and  decided  accordingly,  the  plaintiff  in  error  having  failed  to  plead 
and'prove  such  foreign  laws.'*^ 

Liability  Must  Have  Passed  into  Judo-ment.— If  a  suit  on  the  original  lia- 
bility under  the  statute  of  one  state  is  brought  in  a  court  of  another  state,  the 
constitution  and  laws  of  the  United  States  have  not  authorized  its  decision  upon 
such  a  question  to  be  reviewed  by  this  court.''^  But  if  the  original  liability  ha.-, 
passed  into  judgment  in  one  state,  the  courts  of  another  state,  when  asked  to 
enforce  it,  are  bound  by  the  constitution  and  laws  of  the  United  States  to  give 
full  faith  and  credit  to  the  judgment,  and  if  they  do  not.  their  decision  may  be 
reviewed  and  reversed  by  this  court  on  writ  of  error.  The  essential  nature  and 
real  foundation  of  a  cause  of  action,  indeed,  are  not  changed  by  recovering  judg- 
ment upon  it.'^ 

Determination  of  Question. — This  court  will  determine  for  itself  whether  a 
judgment,  order  cr  decree  of  one  state  has  the  effect  of  denying  full  faith  and 
credit  to  the  public  acts,  records  and  judicial  proceedings  of  another."^ 

Determination  of  Nature  and  Validity  of  Liability. — If  a  suit  to  enforce 
a  judgment  rendered  in  one  state  and  which  has  not  changed  the  essential  nature 
of  the  liability,  is  brought  in  the  courts  of  another  state,  this  court,  in  order  to 
determine,  on  writ  of  error,  whether  the  highest  court  of  the  latter  state  has 
given  full  faith  and  credit  to  the  judgment,  must  determine  for  itself  whether 
the  original  cause  of  action  is  penal  in  the  international  sense. ^°  The  case,  in 
this  regard,  is  analogous  to  one  arising  under  the  clause  of  the  constitution  which 
forbids  a  state  to  pass  any  law  impairing  the  obligation  of  contracts,  in  which, 
if  the  highest  court  of  a  state  decides  nothing  but  the  original  construction  and 
obligation  of  a  contract,  this  court  has  no  jurisdiction  to  review  its  decision :  but 
if  the  state  court  gives  effect  to  a  subsequent  law,  which  is  impugned  as  im- 
pairing the  obligation  of  a  contract,  this  court  has  power,  in  order  to  determine 
whether  any  contract  has  been  impaired,  to  decide  for  itself  what  the  true  con- 
struction of  the  contract  is.^^  So  if  the  state  court,  in  an  action  to  enforce  the 
original  liability  under  the  law  of  another  state,  passes  upon  the  nature  of  that 
liability  and  nothing  else,  this  court  cannot  review  its  decision ;  but  if  the  state 
court  declines  to  give  full  faith  and  credit  to  a  judgment  of  another  state,  because 
of  its  opinion  as  to  the  nature  of  the  cause  of  action  on  which  the  judgment 
was  recovered,  this  court,  in  determining  whether  full  faith  and  credit  have  been 

76.  Llo^-d  V.  Matthews.  155  U.  S.  222,  an  order  of  assessment  made  by  a  court 
38   L.   Kd.'  128.  of    that    state    upon    all    the    stockholders. 

77.  New  York  Life  Ins.  Co.  z\  Hendren.  the  plaintiff  in  error  relied  on  the  order 
92  U.  S.  2S6,  23  L.  Ed.  709;  Roth  r.  of  assessment  made  by  a  court  of  another 
Ehman.  107  U.  S.  319,  27  L.  Ed.  499;  state,  as  being  entitled  to  the  effect  of 
Huntinijton  v.  Attrill,  146  U.  S.  657,  683,  being  conclusive  evidence  of  the  defend- 
36   L.    Ed.    1123.  ant  in   error's   right  to  maintain   an  action 

78.  Huntington  v.  Attrill.  146  U.  S.  657,  against  the  plaintiff  in  error,  but  the  state 
683,  36  L.   Ed.   1123.  court    denies    it    that    effect,    the    question 

79.  Great  Western  Telegraph  Co. '  z;.  whether  that  court  thereby  declined  to 
Purdy,  162  U.  S.  S'^g.  40  L.  Ed.  986,  cit-  give  full  faith  and  credit  to  a  judicial  pro- 
ing  Armstrong  v.  The  Treasurer,  16  Pet.  ceedmg  of  a  court  of  another  state,  as 
281,  285,  10  L.  Ed.  965;  Texas,  etc.,  R.  required  by  the  constitution  and  laws  of 
Co.  V.  Southern  Pac.  Co.,  137  U.  S.  48,  the  United  States,  is  necessarily  involved 
34  L.  Ed.  614-  Grover  &  Baker  Sewing  m  the  decision.  Great  Western  Tele- 
Machine  Co.  V.  Radcliffe,  137  U.  S.  287,  praph  Co.  v.  Purdy.  162  U.  S.  329,  40  L. 
34  h.   Ed.   670;   Carpenter  v.   Strange,   141  Ed.   OS'i. 

U.  S.  87.  35  L.  Ed.  640;  Huntington  z:  At-  80.    Hunfngton  v.  Attrill,  146  U.  S.  653. 

trill.  146  U.  S.  657.  666.  6S3,  686,  36  L.   Ed.  683.   36    L.    Ed.    1123. 

■4123;    Rogers   v.   Alabama.    192   U.    S.   226.  81.     New    Orleans    Waterworks    Co.    v. 

130,  48  L.  Ed.  417.  Louisiana   Sugar   Co..   125  U.   S.   18.  38,   31 

Where  in    an   action   brought   bj'   a   cor-  L.   Ed.  607;   Huntington  v.  Attrill,  146  U. 

poralion   against   a    subscriber   for   shares,  S.  653,  684,  36  L-  Ed.  1123. 
to   recover    an    assessment    thereon    under 


654 


APPEAL  AND  ERROR. 


given  to  that  judgment,  must  decide  for  itself  the  nature  of  the  original  lia- 
biHty.82 

Showing  as  to  Jurisdiction. — In  order  to  give  this  court  the  power  to  re- 
vise the  judgment  of  a  state  court  on  the  ground  that  it  has  refused  to  give^full 
faith  and  credit  to  the  records  and  judicial  proceedings  of  another  state,  as  re- 
quired by  the  federal  constitution,  it  must  appear  from  the  transcript,  filed  by  the 
plaintiff  in  error,  that  the  point  on  which  he  relies  was  made  in  the  state  court, 
and  decided  against  him ;  and  that  this  section  of  the  constitution  was  brought 
to  the  notice  of  the  state  court,  and  the  right  which  he  now  claims  he  claimed 
under  it.^^  It  is  a  necessary  and  well-settled  rule  that  the  exercise  of  jurisdiction 
by  the  United  States  supreme  court  to  protect  constitutional  rights  cannot  be  de- 
clined when  it  is  plain  that  the  fair  result  of  a  decision  is  to  deny  the  rights.^"* 
On  the  same  ground,  there  can  be  no  doubt  that  if  full  faith  and  credit  were 
denied  to  a  judgment  rendered  in  another  state  upon  a  suggestion  of  want  of 
jurisdiction,  without  evidence  to  warrant  the  finding,  the  United  States  supreme 
court  would  enforce  the  constitutional  requirement. ^•'^ 

Authentication  of  Record. — To  bring  a  case  here  under  the  25th  section  of 
the  judiciary  act,  on  the  ground  that  the  provision  of  the  constitution  which  or- 
dains that  "full  faith  and  credit  shall  be  given  in  each  state  to  the  public  acts, 
records  and  judicial  proceedings  of  every  other  state,"  has  be^n  violated  by  a 
refusal  of  the  highest  state  court  to  give  proper  effect  to  a  judicial  record  of  an- 
other state,  it  is  necessary  that  it  appear  that  the  record  have  been  authenticated 
in  the  mode  prescribed  by  the  act  of  May  26th,  1790,  "to  prescribe  the  mode  in 
which  the  public  acts,  records,  and  judicial  proceedings  in  each  state  shall  be 
authenticated,  so  as  to  take  effect  in  every  other  state. "*^ 

(8)  Denial  of  Faith  and  Credit  to  Judgments  and  Decrees  of  Federal  Courts — 
aa.  In  General. — Whether  due  effect  has  been  given  by  a  state  court  to  a  judg- 
ment or  decree  of  a  court  of  the  United  States  is  a  federal  question  within  the 
jurisdiction  of  this  court,  on  a  writ  of  error  to  the  highest  state  court  in  which 
a  decision  could  be  had  i*^'  or  as  the  rul?  has  otherwise  been  stated  ;  where  a  state 


82.  Huntington  v.  Attrill.  146  U.  S.  65:], 
f>84.   36   L.    Ed.    1123. 

83.  Hovt  V.  Sheldon.  1  Black  .518,  17  L. 
Ed.  65;  Maxwell  v.  Newbold.  18  How.  511. 
515,    15   L.   Ed.  .506. 

84.  Rogers   v.   Alabama,   192   U.    S.   226, 

230,  48  L.   Ed.  417. 

85.  Rogers   v.   Alabama.   192   U.    S.   226. 

231,  48  L.  Ed.  417.  See  German  Savings 
Society  v.  Dormitzer,  192  U.  S.  125,  48 
L.    Ed.    373. 

86.  Caperton  v.  Ballard,  14  Wall.  238, 
20   L.    Ed.    885. 

87.  Rights  or  immunities  claimed  un- 
der judgments  of  federal  courts. — Cres- 
cent City  Live-Stock  Co.  v.  Butchers' 
Union  Slaughter-House  Co.,  120  U.  S. 
141,  30  L.  Ed.  614;  Phoenix  Ins.  Co.  v. 
Tennessee.  161  U.  S.  174.  185,  40  L.  Ed. 
660;  Abraham  v.  Casey.  179  U.  S.  210,  45 
L.  Ed.  156;  Werlein  v.  New  Orleans,  177 
U.  S.  390.  396,  44  L.  Ed.  817;  Pardee  v. 
Aldridge,  189  U.  S.  429,  47  L.  Ed.  883; 
Central  Nat.  Bank  v.  Stevens,  169  U.  S. 
432,  460,  42  L.  Ed.  807;  Dupasseur  v.  Ro- 
chereau,  21  Wall.  130,  22  L.  Ed.  588; 
Leather  Manufacturers'  Bank  v.  Cooper, 
120  U.  S.  778.  30  L.  Ed.  816;  San  Fran- 
cisco V.  Scott.  Ill  U.  S.  768,  28  L.  Ed. 
593;  San  Francisco  v.  Itsell,  133  U.  S.  65, 
33  L.  Ed.  570;  Giles  v.  Little,  134  U.  S. 
<;45,  649,  33  L.  Ed.  1062;  Embry  v.  Palmer, 


107  U.  S.  38.  27  L.  Ed.  346;  Dowell  v.  Ap- 
plegate,  152  U.  S.  327,  38  L.  Ed.  463;  Han- 
cock Nat.  Bank  v.  Farnum,  176  U.  S. 
640,  44  L.   Ed.  619. 

Where  a  state  court  refuses  to  give  ef- 
fect to  the  judgment  of  a  court  of  the 
United  States,  rendered  upon  the  point 
in  dispute,  and  with  jurisdiction  of  the 
case  and  the  parties,  a  question  is  un- 
doubtedly raised  which,  under  the  act  of 
1867,  may  be  brought  to  this  court  for 
revision.  The  case  would  be  one  in 
which  a  title  or  right  is  claimed  under  an 
authority  exercised  under  the  United 
States,  and  the  decision  is  against  the  title 
or  right  so  set  up.  It  would  thus  be  a 
case  arising  under  the  laws  of  the  United 
States,  establishing  the  circuit  court  and 
vesting  it  with  jurisdiction;  and  hence  it 
would  be  within  the  judicial  power  of  the 
United  States,  as  defined  by  the  consti- 
tution; and  it  is  clearly  within  the  chart 
of  appellate  power  given  to  this  court, 
over  cases  arising  in  and  decided  by  the 
state  courts.  The  refusal  by  the  courts 
of  one  state  to  give  effect  to  the  decisions 
of  the  courts  of  another  state  is  an  in- 
fringement of  a  different  article  of  the 
constitution,  to  wit,  the  first  section  of 
article  four;  and  the  right  to  bring  such 
a  case  before  us  by  writ  of  error  under 
the    twenty-fifth    section    of    the    judiciary 


APPEAL  AND  ERROR. 


655 


court  refuses   to    give  efifect    to  the   judgment  of  a  court    of  the    United    States, 


act,  or  the  act  of  1867,  is  based  on  the 
refusal  of  the  state  court  to  give  validity 
und  effect  to  the  right  claimed  under  that 
article  and  section.  Tn  either  case,  there- 
fore, whether  the  validitj-  or  due  effect  of 
a  judgment  of  the  state  court,  or  that  of 
a  judgment  of  a  United  States  court,  is 
disallowed  by  a  state  court,  the  constitu- 
tion and  laws  furnish  redress  by  a  final 
appeal  to  this  court.  Dupasseur  v.  Ro- 
chereau.  21  Wall.  130,  134,  22  L.  Ed. 
.588. 

"The  question  whether  a  state  court  has 
given  due  effect  to  the  judgment  of  a 
court  of  the  United  States  is  a  question 
arising  under  the  constitution  and  laws  of 
the  United  States,  and  comes  within  the 
jurisdiction  of  the  federal  courts  by 
proper  process,  although,  as  was  said  by 
this  court  in  Dupasseur  ?■.  Rochereau,  21 
Wall.  130.  135.  22  L.  Ed.  588,  "no  higher 
sanctity  or  effect  can  be  claimed  for  the 
judgment  of  the  circuit  court  of  the 
United  States  rendered  in  such  a  case, 
under  such  circumstances,  than  is  due  to 
the  judgments  of  the  state  courts  in  a 
like  case  and  under  similar  circum- 
stances." Embry  v.  Palmer.  107  U.  S.  3. 
27  L.  Ed.  346.  It  may  be  conceded,  then. 
that  the  judgments  and  decrees  of  the 
circuit  court  of  the  United  States,  sitting 
in  a  particular  state,  in  the  courts  of  that 
state,  are  to  be  accorded  such  effect,  and 
such  effect  only,  as  would  be  accorded  in 
similar  circumstances  to  ihe  judgments 
and  decrees  of  a  state  tribunal  of  equal 
authority.  But  it  is  within  the  jurisdic- 
tion of  this  court  to  determine,  in  this 
case,  whether  such  due  effect  has  been 
given  by  the  supreme  court  of  Louisiana 
to  the  decrees  of  the  circuit  court  of  the 
United  States  here  drawn  in  question.'" 
Crescent  City  Live  Stock  Co.  v.  Butchers' 
Union  Slaughtcr-House  Co..  120  U.  S.  141. 
146,  30    L.   Ed.   614. 

As  said  in  Crescent  Cit}'  Live-Stock 
Co.  V.  Butchers'  Union  Slaughter-House 
Co.,  120  U.  S.  141,  147,  30  L.  Ed.  614,  617 
citing  Dupasseur  v.  Rochereau,  21  Wall. 
130,  135,  22  L.  Ed.  588;  Embry  v.  Palmer. 
107  U.  S.  3,  27  L.  Ed.  346:  "It  may  be  con- 
ceded, then,  that  the  judgments  and  de- 
crees of  the  circuit  court  of  the  United 
States,  sitting  in  a  particular  state,  in  the 
courts  of  that  state,  are  to  be  accorded 
such  effect,  and  such  effect  only,  as  would 
he  accorded  in  similar  circumstances  to 
the  judgments  and  decrees  of  a  state 
tribunal  of  equal  authority."  See,  also. 
Metcalf  r.  Watertown.  153 "U.  S.  671,  676. 
.38  L.  Ed.  861;  Pittsburg,  etc.,  R.  v.  Long 
Island  Trust  Co..  172  U.  S.  493.  43  L.  Ed. 
528;  Hancock  Nat.  Bank  r.  Farnum,  176 
U.  S.  640,  645,  44  L.   Ed.   619. 

When,  in  a  case  in  a  state  court,  a  right 
or  immunity  is  set  up  under  and  by  virtue 
ol   a   judgment    of   a    court    of   the   United 


States,  and  the  decision  is  against  such 
right  or  immunity,  the  supreme  court  will 
examine  and  inquire  whether  or  not  due 
validity  and  effect  have  been  accorded  to 
the  judgtnent  of  the  federal  court,  and  if 
they  have  not,  and  the  right  or  immunity 
claimed  has  been  thereby  lost,  it  will  re- 
verse the  judgment  of  the  state  court. 
Whether  due  validity  and  effect  have  or 
have  not  been  accorded  to  the  judgment 
of  the  federal  court  will  depend  on  the 
circumstances  of  the  case.  If  jurisdiction 
of  the  case  was  acquired  only  by  reason 
of  the  citizenship  of  the  parties,  and  the 
state  law  alone  was  administered,  then 
only  such  validity  and  effect  can  be 
claimed  for  the  judgment  as  would  be 
due  to  a  judgment  of  the  state  courts  un- 
der like  circumstances.  Dupasseur  v.  Ro- 
chereau. 21  Wall.  130,  22  L.  Ed.  588. 

The  judgments  and  decrees  of  the  cir- 
cuit courts  of  the  United  States,  sitting 
ill  a  particular  state,  are  to  be  accorded 
in  the  courts  of  that  state,  whether  as  the 
foundation  of  an  action,  or  of  a  defense, 
either  by  plea  or  in  proof,  such  effect,  and 
such  effect  only,  as  would  be  accorded 
in  similar  circumstances  to  the  judgments 
and  decrees  of  a  state  tribunal  of  equal 
authority;  and  whether  such  due  effect  has 
been  given  by  a  state  court  to  a  judg- 
ment or  decree  of  a  court  of  the  United 
States,  is  a  federal  question  within  the  ju- 
risdiction of  this  court,  on  a  writ  of  er- 
ror to  the  supreme  court  of  the  state. 
Crescent  City  Live-Stock  Co.  v.  Butchers' 
Union  Slaughter-House  Co.,  120  U.  S. 
141.   30    L.    Ed.   614. 

Decree    of   supreme     court     of      United 
States. — It  has  been  held,  in  a  number  of 
cases',   that   the    failure   of   the    state   court 
to  give  due  faith  and  credit  to  the  decree 
of   this    court,    was    a    denial    of   a    federal 
right.       Homestead     Company    v.     Valley 
Railroad.    17    Wall.    153.    21    L.     Ed.    622 
Stryker  z\   Goodnow.   123   U.   S.   527.   31   L 
Ed.'    194;    Chapman    z\    Goodnow,    123    U 
S.   540.  31    L.   Ed.  235;  Litchfield  v.  Good- 
now,    123     U.     S.     549,     31     L.     Ed.     199 
Des   Moines,  etc..   R.  Co.  v.   Lowa   Home- 
stead   Co..    123    U.    S.    552,    31    L.    Ed.    202 
Plumb   V.    Goodnow,   123   U.    S.   560,    31    L. 
Ed.  268. 

Decree  of  court  of  appeals. — Where  it 
is  claimed  that  the  highest  court  of  a 
state,  in  maintaining  a  plea  of  res  ad- 
judicata  founded  on  a  decree  of  the  cir- 
cuit court  of  appeals,  denies  rights  vested 
under  a  decree  of  the  United  States  cir- 
cuit court,  a  federal  question  is  presented 
which  it  is  the  duty  of  the  supreme  court 
of  the  United  States  to  determine.  Na- 
tional Foundry,  etc..  Works  v.  Oconto 
Water  Supply  Co..  183  U.  S.  216,  233,  46  L- 
Ed.  157.  citing  Jacobs  7'.  Marks.  182  U. 
S.  583,  45  L.  Ed.  1241;  Hancock  Nat.  Bank 
V.    Farnum,   176   U.    S.   640.  44   L.    Ed.   619; 


656 


APPEAL  AND  ERROR. 


rendered  upon  a  point  in  dispute,  and  with  jurisdiction  of  the  case  and  the  par- 


Pittsburgh,  etc.,  R.  Co.  V.  Long  Island 
Trust  Co.,  172  U.  S.  493,  43  L.   Ed.  528. 

Judgment  in  suit  to  recover  property. — 
A  federal  question  exists  when — in  a  suit 
by  a  person  who  seeks  to  recover  prop- 
erty on  the  ground  that  a  judgment  and 
execution  on  it  by  a  court  of  the  United 
States,  interpreting  a  statute  of  the 
United  States,  has  deprived  him  of  the 
property  in  violation  of  the  first  prin- 
ciples of  law — the  defendant  sets  up  a 
title  under  that  judgment  and  execution, 
and  the  decision  is  against  the  title  so  set 
up.  Gregory  v.  McVeigh,  23  Wall.  294, 
23    L.    Ed.    156. 

Judgment  on  levy. — Where  the  marshal 
of  the  United  States  had  levied  an  execu- 
tion upon  certain  property  under  a  judg- 
ment in  the  circuit  court,  which  was  taken 
out  of  his  custody  by  a  writ  of  replevin 
issued  by  a  state  court,  and  the  supreme 
court  of  the  state  decided  adversely  to  the 
claim  of  the  marshal,  it  is  within  the  ju- 
risdiction of  this  court  to  review  that  de- 
ci-sion.  Clements  v.  Berry,  11  How.  398. 
13    L.    Ed.   745. 

Judgment  on  vendor's  lien  and  privi- 
lege.— Judgment  was  rendered  by  the  cir- 
cuit court  of  the  United  states  for  Louisi- 
ana on  a  vendor's  privilege  and  mortgage, 
declaring  it  to  be  the  first  lien  and  privi- 
lege on  the  land;  and  the  marshal  sold  the 
property  clear  of  all  prior  liens;  and  the 
mortgagee  purchased,  and  paid  into  court 
for  the  benefit  of  subsequent  liens,  the 
surplus  of  his  bid  beyond  the  amount  of 
his  own  debt.  This  judgment  and  sale 
were  set  up  by  way  of  defense  to  a  suit 
brought  in  the  state  court  bj--  another 
mortgagee,  who  claimed  priority  to  the 
first  mortgage,  and  who  had  not  been 
made  a  party  to  the  suit  in  the  circuit 
court.  The  state  court  held  that  the  plain- 
tiff was  not  bound  by  the  former  judg- 
ment on  the  question  of  priority,  not  be- 
ing a  party  to  the  suit.  The  case  was 
brought  to  the  supreme  court  of  the 
United  States  by  writ  of  error,  and  this 
court  held,  that  the  state  court  did  not 
refuse  to  accord  due  force  and  efifect  to 
the  judgment;  that  such  a  judgment  in 
the  state  courts  would  not  be  conclusive 
on  the  point  in  question,  and  the  judg- 
ment of  the  circuit  court  could  not  have 
any  greater  force  or  effect  than  judgments 
in  the  state  courts.  "The  same  general 
rule  of  law  and  justice  Drevails  in  Louisi- 
ana as  elsewhere,  to  the  eflfcct  that  no 
persons  are  bound  by  a  judgment  or  de- 
cree except  those  who  are  parties  to  it. 
and  have  had  an  opportunity  of  present- 
ing their  rierhts."  Dupasseur  ?'.  Ro- 
chereau,   21   Wall.    130,    22   L.    Ed.   588. 

Judgments  affecting  foreign  corpora- 
tions.— In  order  to  give  this  court  juris- 
diction to  review  a  decision  of  a  state 
court  respecting  the  power  of  a  corpora- 
tion   of   another   state    to   make   contracts. 


it  is  not  sufficient  to  aver  in  the  pleadings 
that  whatever  force  might  be  given  to  it 
in  the  court  of  the  forum,  it  was  beyond 
the  powers  of  the  corporation  under  its 
act  of  incorporation  as  construed  by  the 
courts  of  the  state  incorporating  it;  but 
it  must  appear  afifirmatively  in  the  record 
that  the  facts,  as  presented  for  adjudica- 
tion, made  it  necessary  for  the  court  to 
consider  and  give  effect  to  the  act  of  in- 
corporation in  view  of  the  peculiar  juris- 
prudence of  the  state  enacting  it  rather 
than  the  general  law  of  the  land.  Chicago, 
etc.,  R.  Co.  V.  Wig-gins  Ferry  Co.,  119  U. 
S.   615,  30   L.   Ed.  519. 

Where  an  action  is  brought  in  a  state 
court  against  a  railroad  receiver  and  the 
railway  company  to  recover  for  personal 
injuries  sustained  by  reason  of  defects  in 
the  road  sustained  during  the  receiver- 
ship, and  the  receiver  sets  up  his  receiver- 
ship and  discharge,  and  the  company  de- 
nies liability  for  anj^  injury  sustained  dur- 
ing the  receivership,  and  also  sets  up  in 
defense  an  order  made  by  the  circuit 
court  requiring  the  receiver  to  transfer 
the  property  with  its  improvements  to 
the  company,  and  that  it  should  be  re- 
ceived by  the  company,  charged  with 
operation  liabilities,  and  subject  to  judg- 
ments to  be  rendered  in  favor  of  inter- 
venors,  and  that  all  claims  against  the 
receiver  should  be  presented  within  a  cer- 
tain time  or  be  barred,  but  the  case  is  dis- 
missed as  to  the  receiver  and  judgment 
is  given  against  the  company,  which  judg- 
ment was  sustained  by  the  highest  court 
of  the  state  in  which  the  decision  coukt 
be  had,  it  was  held,  that  the  overruling  of 
the  defense  made  that  the  plaintiff  below 
was  subject  to  the  order  of  the  court 
above  recited,  and  must  therefore  resort 
to  the  court  which  entered  it  for  the  col- 
lection of  his  claim,  and  could  not  recover 
a  judgment  m  personam  collectible  by 
the  ordinary'  process;  and  moreover  that 
his  claim  is  thereby  barred,  may  properly 
be  held  to  have  amounted  to  a  decision 
against  the  validitv  of  the  order,  or 
against  a  claim  of  right  or  immunity 
thereunder.  Texas,  etc..  R.  Co.  v.  John- 
son,  151  U.   S.   81.  38   L.   Ed.  81. 

Foreclosure  proceedings. — According  to 
the  decisions  and  in  view  of  the  statute 
givins:  this  court  authority  to  re-examine 
the  final  judgment  of  the  highest  court  of 
a  state  denying  a  right  specially  set  up 
or  claimed  under  an  authority  exercised 
under  the  United  States,  it  is  clear  that 
we  have  jurisdiction  to  inquire  whether 
due  efifect  was  accorded  bv  a  state  court 
to  the  foreclosure  proceedings  in  the  cir- 
cuit courts  of  the  L^nited  States  under 
whi'^h  the  plaintiff  in  error  claims  title  to 
the  Innds  and  property  in  question.  Pitts- 
burgh, etc.,  R.  Co.  V.  Long  Island  Trust 
Co..  172  U.  S.  493,  510.  43  L.  Ed.  528.  cit- 
ing   Dupasseur    v.    Rochereau,     21     Wall. 


APPEAL  AND  ERROR. 


65: 


ties,  it  denies  the  validity  of  an  authority  exercised  under  the  United  States.^s 
[n  the  case  of  a  judgment  of  a  state  court,  the  constitution  provides  that  full  faith 
and  credit  shall  be  given  it,  and  whether  it  has  or  has  not  been  given  it  by  a 
state  court  is  a  federal  question,  while  if  the  state  court  erroneously  decides  a 
question  of  law  regarding  the  weight  to  be  given  one  of  its  own  judgments  in  its 
own  courts  and  among  its  own  citizens,  that  error  is  not  subject  to  review  by  this 
court,  because  it  constitutes  no  federal  question.*^ 

Amount  of  Credit  Due  Its  Judgments. — Although  no  higher  sanctity  or 
effect  can  be  claimed  for  the  judgment  of  a  federal  court  than  is  due  under  the 
same  circumstances  to  judgments  of  state  courts  in  like  cases, ^"^  yet  it  is  equallv 
well  settled,  that  a  right  claimed  under  the  federal  constitution,  finally 
adjudicated  in  the  federal  courts,  can  never  be  taken  away  or  im- 
paired by  state  decisions.  The  same  reasoning  which  permits  to  the 
states  the  right  of  final  adjudication  upon  purely  state  questions  requires 
no  less  respect  for  the  final  decisions  of  the  federal  courts  of  questions  of  na- 
tional authority  and  jurisdiction. ^^ 

Where  a  decree  was  entered  by  consent  and  in  accordance  with  the  agree- 
ment of  the  parties,  in  another  state  or  territory,  the  courts  merely  exercise  an 


130,  22  L.  Ed.  588;  Crescent  City  Live- 
stock Co.  V.  Butchers'  Union  Slaiighter- 
Honse  Co..  120  U.  S.  141,  .30  L.  Eci.  614; 
Embry  v.  Palmer,  107  U.  S.  3,  27  L.  Ed. 
340. 

But  where  no  statute,  state  or  federal,  or 
authority  exercised  thereunder,  is  called 
in  questJcn,  the  mere  fact  that  plaintiff  in 
error  relied  solely  upon  a  decree  of  a 
foreclosure  and  sale  in  a  federal  court, 
would  not  necessarily  show  that  a  federal 
question  was  set  up  and  an  adverse  de- 
cision rendered  thereon,  in  order  to  give 
this  court  jurisdiction.  Chicago,  etc..  R. 
Co.  V.  McGuire,  196  U.  S.  12S,  49  L.  Ed. 
413,  reaffirmed  in  Skaneateles  Paper  Co.  v. 
Syracuse.  201  U.  S.  642.  50  E.  Ed.  901. 

Existence  of  probable  cause. — Cresent 
Live  Stock  Co.  v.  Butchers'  Union 
Slaughter-House  Co.,  120  U.  S.  141,  146. 
30  L.  Ed.  614,  was  an  action  for  malicious 
prosecution,  the  defense  being  that  the 
existence  of  probable  cau?e  had  been  pre- 
viously determined  by  a  judgment  in  the 
circuit  court  of  the  United  States.  It  was 
contended  that  the  supreme  court  of  the 
state  failed  to  give  proper  effect  to  that 
judgment,  and  thereby  denied  to  the  de- 
fendant a  right  arising  under  the  au- 
thority of  the  United  States.  The  case 
came  here  upon  writ  of  error,  and  the 
jurisdiction  of  this  court  to  review  the 
final  judgment  was  sustained.  Pitts- 
burg, etc..  R.  Co.  V.  Long  Island  Trust 
Co.,  172   U.   S.  493,  509,  43   L.   Ed.   528. 

Where  a  suit  was  brought  by  the  de- 
fendant in  error  in  the  United  States  cir- 
cuit court  to  restrain  the  infringement  of 
a  registered  trademark,  and  a  preliminary 
injunction  is  granted  in  that  suit,  and 
after  an  appeal  is  taken  to  the  circuit 
court  of  appeals,  where  the  injunction  is 
dissolved,  the  decree  is  entered  by  the 
circuit  court,  dismissing  the  bill  upon  the 
merits,  it  was  held,  that  the  decision  of 
a   state    court    finding   probable    cause    for 

1  U  S  Enc— 42 


beginning  the  trademark  infringement 
suit  in  the  federal  court  could  not  be  re- 
viewed by  this  court  on  the  ground  that 
the  state  court  by  finding  probable  cause 
in  its  own  opinion  implies  that  the  decree 
in  the  federal  court  was  wrong,  whereas 
not  to  assume  it  to  be  correct  is  to  fail 
to  give  it  the  faith  and  credit  required  bv 
Revised  Statutes,  §  905.  Burt  v.  Smith, 
203  U.  S.   129.  51   L.  Ed.  121. 

88.  Mutual  Life  Ins.  Co.  v.  McGrew, 
188  U.  S.  291,  311,  47  L.  Ed.  480,  re- 
affirmed in  Huber  z\  Jennings-Heywood 
Oil  Syndicate,  201  U.  S.  641.  50  L.  Ed. 
901;  Herold  v.  Frank,  191  U.  S.  558.  48 
L.  Ed.  302;  Hughes  r.  Kepley,  191  U.  S. 
557,  48  L.  Ed.  301;  Wakefield  v.  Tassell, 
192  U.  S.  601.  48  L.  Ed.  583;  Bank  of 
Commerce  v.  Wiltsie,  189  U.  S.  505,  47 
L.    Ed.   921. 

89.  Phoenix  Ins.  Co.  v.  Tennessee.  161 
U.    S.    174,    185,  40   L.   Ed.   660. 

90.  Dupasseur  v.  Rochereau,  21  Wall. 
130,  135.  22  L.  Ed.  588;  Embry  z'.  Palmer, 
107  U.  S.  3,  27  L.  Ed.  346;  Phoenix  Ins. 
Co.  r.  Tennessee,  161  U.  S.  174,  185.  40  L. 
Ed.  660;  Pittsburg,  etc..  R.  Co.  v.  Long 
Island  Trust  Co.,  172  U.  S.  493,  510,  4:j 
L.    Ed.    528. 

When  is  the  state  court  obliged  to  give 
federal  judgments  only  the  force  and  ef- 
fect it  gives  to  state  court  judgments 
within  its  own  jurisdiction?  Such  cases 
are  distinctlj'-  pointed  out  in  the  opinion 
of  Mr.  Justice  Bradley  in  Dupasseur  v. 
Rochereau,  21  Wall.  130,  22  L.  Ed.  588; 
Deposit  Bank  v.  Frankfort,  191  U.  S.  499, 
515.   48   L.    Ed.   276. 

The  fact  that  the  judgment  was  ren- 
df^red  in  a  court  of  the  United  States, 
sitting  within  the  state,  instead  of  one  of 
the  state  courts,  is  immaterial.  Hancock 
Nat.  Bank  v.  "arnum,  176  U.  S.  640, 
645,    44    L.    Ed.   619. 

91.  Deposit  Bank  v.  Frankfort,  191  U. 
S.   499.   517,   48    L.    Ed.   276. 


6:8 


APPEAL  AXD  ERROR. 


administrative  function  in  recording  what  had  been  agreed  to  between  the  parties 
and  therefore  it  is  open  to  the  state  court  to  determine,  upon  general  principle  . 
of  law,  that  the  validity  of  a  certain  article  of  the  agreement  was  not  in  contro 
versy  or  passed  upon  in  the  cause  in  which  the  decree  was  rendered.     In  doin;^. 
so,  that  court  does  not  refuse  to  give  due  effect  to  the  final  judgment  of  a  coui 
of  the  United  States  or  of  another  state. ^- 

bb.  Rights  of  Purchasers  at  Marshals'  Sales. — \\'ith  respect  to  writs  oi 
error  from  this  court  to  judgments  of  state  courts  in  actions  between  purchasers 
under  judicial  proceedings  in  the  federal  courts  and  parties  making  adverse  claims 
to  the  property  sold,  the  true  rule  *  *  *  jg  this:  That  the  writ  will  lie,  if  the 
validity  or  construction  of  the  judgment  of  the  federal  court,  or  the  regularity  of 
the  proceedings  under  the  execution,  are  assailed ;  but  if  it  be  admitted  that  the 
judgment  was  valid,  and  these  proceedings  were  regular,  that  the  purchaser  took 
the  title  of  the  defendant  in  the  execution,  and  the  issue  relates  to  the  title  to  the 
property,  as  between  the  defendant  in  the  execution  or  the  purchaser  under  it. 
and  the  party  making  the  adverse  claim,  no  federal  question  is  presented — in 
other  words,  it  must  appear  that  the  decision  was  made  against  a  right  claimed 
under    federal   authoritv,  in  the   language  of   Rev.    Stat.,  §    709. '-"^     In  short,   the 


92.  Texas,  etc.,  R.  Co.  v.  Southern  Pac. 
Co.,  137  U.  S.  48,  34  L.   Ed.  614. 

93.  Avery  v.  Popper,  179  U.  S.  305.  314. 
45  L.  Ed.  203,  citing  and  reviewing  at 
length  the   cases  on  the  point. 

Where  the  plaintiff  in  error  in  his  com- 
plaint unquestionably  sets  up  a  right  to 
recover  as  the  result  of  a  judicial  sale 
made  under  decrees,  both  in  courts  of 
the  United  States  and  of  a  state,  federal 
questions  exist  in  the  record,  and  a  mo- 
tion to  dismiss  will  be  denied.  Commer- 
cial Pub.  Co.  V.  Beckwith,  188  U.  S.  567, 
47   L.    Ed.   598. 

In  Collier  v.  Stanbrough,  6  How.  14,  12 
L.  Ed.  324,  Collier  was  the  purchaser  un- 
der a  marshal's  sale  upon  execution 
against  one  David  Stanbrough  of  certain 
personal  property  which  was  claimed  by 
Josiah  Stanbrough,  the  defendant,  who 
insisted  that  the  property  was  not  legally 
seized  or  levied  upon,  and  that  it  was  not 
legally  appraised  or  advertised  as  re- 
quired by  law.  Jurisdiction  under  the 
writ  of  error  to  the  supreme  court  of 
Louisiana  was  sustained  upon  the  obvious 
ground  that  the  sale  by  the  marshal  was 
directly  attacked,  and  the  invalidity  of 
plaintiff's   title   set   up   as   a   defense. 

In  Erwin  v.  Lowry.  7  How.  172,  12  L. 
Ed.  655,  Erwin  was  the  purchaser  at  a 
marshal's  sale  of  certain  land  and  ne- 
groes, and  was  sued  by  Lowry,  who 
claimed  as  curator  of  the  estate  to  which 
the  property  belonged.  The  question  was 
the  same  as  that  in  Collier  v.  Stanbrough, 
namely,  whether  the  marshal's  deed  to 
Erwin  was  void  for  the  reason  that  it  was 
not  supported  by  a  lawful  judgment,  or 
for  want  of  compliance  with  any  legal 
requirement  in  conducting  the  seizure  and 
sale.  The  jurisdiction  was  also  sustained 
m   this   case. 

In  Clements  v.  Berry.  11  How.  398,  13 
L.  Ed,  745,  the  suit  was  by  Daniel  Berry 
against    the    marshal    directly,    in    replevin, 


to  recover  property  levied  upon  as  the 
property  of  Charles  F.  Berry,  and  the 
sale  was  stopped  by  a  writ  of  replevin  is- 
sued from  the  state  court.  As  the  mar- 
shal was  a  party  defendant  to  the  suit, 
and  his  right  to  sell  the  property  was  di- 
rectly attacked,  the  jurisdiction  was  sus- 
tained. For  the  same  reason  that  the 
marshal  was  made  a  defendant  to  the  suit 
in  the  state  court,  and  justified  under  proc- 
ess from  the  federal  court,  jurisdictioa 
was  sustained  in  Freeman  v.  Howe,  24 
How.  450,  16  L.  Ed.  749;  Buck  v.  Colbath, 
3  Wall.  334.  18  L.  Ed.  257;  Etheridge  v. 
Sperry,  139  U.  S.  266,  35  L.  Ed.  171;  and 
Bock  z:  Perkjns,  139  U.  S.  628,  35  L.  Ed. 
314. 

In  Day  v.  Gallup,  2  Wall.  97,  17  L.  Ed. 
855,  the  suit  was  by  Gallup  against  Derby 
and  Day,  execution  creditors,  AHis,  their 
attorney,  and  Gear,  marshal  of  the  L^nited 
States,  who  justified  under  a  judgment  of 
the  federal  court  against  one  Griggs.  The 
suit  was  discontinued  as  to  the  marshal 
before  trial.  The  case  turned  on  the 
ownership  of  the  goods  seized,  and  judg- 
ment went  against  Derby  and  Day,  which 
was  affirmed  by  the  supreme  court  of 
Minnesota.  The  suit  was  not  begun  un- 
til after  the  execution  from  the  federal 
court  had  been  returned  and  the  actfon 
completely  terminated.  Upon  writ  of  er- 
ror from,  this  court,  it  was  held,  that  at 
the  time  Gallup  brought  his  action  there 
was  no  case  pending  in  the  federal  court 
respecting  the  goods  which  had  been  at- 
tached under  process  from  that  court;  that 
it  did  not  appear  that  the  authority  of 
Gear  as  marshal  to  take  the  goods  was 
drawn  in  question,  and  that,  from  the  re- 
turn of  the  execution  satisfied,  the  fed- 
eral court  had  no  control  over  the  par- 
ties. The  case  between  the  plaintiffs  in 
error  against  Griggs,  the  original  defend- 
ant in  the  federal  court,  had  been  decided, 
the    money    made    on    the    execution    and 


APPEAL  A^D  ERROR. 


659 


mere  fact  that  the  plaintiff  in  error  was  a  purchaser  at  a  marshal's  sale  of  prop- 
erty sold  under  execution  from  a  federal  court  does  not  entitle  him  to  bring  into 
the  supreme  court  of  the  United  States,  upon  writ  of  error  to  a  slate  court,  ques- 
tions under  the  state  law  with  respect  to  the  validity  and  priority  of  a  chattel 


the  debt  paid.  In  commenting  on  that 
case  in  Buck  v.  Colbath,  3  Wall.  342, 
18  L.  Ed.  257.  it  was  said:  "It  is 
only  while  the  property  is  in  pos- 
session of  the  court,  either  actually  or 
constructively,  that  the  court  is  bound  or 
professes  to  protect  that  possession  from 
the  process  of  other  courts.  Whenever 
the  litigation  is  ended,  or  the  possession 
of  the  officer  or  court  is  discharged,  other 
courts  are  at  libert}'  to  deal  with  it  ac- 
cording to  the  rights  of  the  parties  before 
them,  whether  those  rights  require  them 
to  take  possession  of  the  property  or 
not." 

In  Dupasseur  v.  Rochereau.  21  Wall. 
130,  22  L.  Ed.  588.  Rochereau,  a  judg- 
ment creditor  of  one  Sauve,  brought  an 
jiction  in  the  state  court  against  Dupas- 
seur, alleging  that  he  had  taken  posses- 
sion of  a  plantation  belonging  to  Sauve 
upon  which  he,  Rochereau,  held  a  mort- 
gage, and  charging  that  the  plantation 
was  bound  for  the  debt,  and  that  Du- 
passeur was  bound  either  tn  pay  the  debt 
or  give  up  the  plantation.  Dupasseur  de- 
fended upon  the  ground  that  he  had 
bought  the  propert}^  at  a  inarshal's  sale, 
upon  an  execution  in  his  own  favor 
against  Sauve,  "free  of  all  mortgages  and 
incumbrances,  and  especially  from  the  al- 
leged mortgage  of  the  plaintiff,"  Ro- 
chereau. Upon  writ  of  error  from  this 
court  it  was  held  that,  as  the  question  at 
issue  was  the  effect  to  be  given  to  the 
judgment  of  the  federal  court  and  to  the 
proceedings  under  the  execution  in  that 
court,  and  to  the  sale  by  the  marshal  free 
from  all  mortgages  and  incumbrances, 
jurisdiction  should  be  sustained.  Here 
the  validity  of  the  sale  by  the  marshal 
was  directly  attacked.  Notwithstanding 
the  fact  that  Dupasseur  purchased  the 
property  under  the  execution  sale  on  May 
5,  1876,  and  Rochereau  did  not  begin  his 
action  until  June  7,  1866,  the  jurisdiction 
was  sustained,  because  Dupasseur's  title 
■under  that  purchase  was  attacked  by  the 
other  party.  Approved  in  Averj^  z'.  Pop- 
per, 179  U.  S.  305,  45  L.  Ed.  203;  Tullock 
V.  Mulvane,  184  U.  S.  497.  507,  46  L.  Ed. 
657. 

In  Stanley  v.  Schwalby.  162  U.  S.  255. 
40  L.  Ed.  960,  the  action  in  the  state  court 
was  directly  against  officers  of  the  United 
States,  and  ultimately  against  the  gov- 
ernment itself.  Jurisdiction  was  sustained 
upon  that   ground. 

In  Pittsburg,  etc.,  R.  Co.  v.  Long  Island 
Trust  Co.,  172  U.  S.  493,  43  L.  Ed.  528, 
the  question  arose  whether  due  effect  was 
nccorded  to  certain  foreclosure  proceed- 
ings in  circuit  courts  of  the  United  States, 
under    which    plaintiff    in    error     claimed 


title  to  the  land  and  property  in  question. 
Under  these  proceedings  a  sale  of  rail- 
road property  had  been  made,  subject  to 
certain  outstanding  bonds  prior  in  lien  to 
the  mortgage  and  to  all  other,  ff  any, 
paramount  liens  thereon,  and  that  the  de- 
cree should  not  in  any  manner  prejudice 
or  preclude  the  holders  of  such  para- 
mount liens.  Plaintiff  in  error  contended 
that  the  state  court  did  not  give  dae  ef- 
fect to  these  decrees  of  the  circuit  courts 
of  the  United  States,  in  that  it  did  not 
recognize  as  paramount  the  rights  ac- 
quired uader  those  decrees  by  the  pur- 
chasers of  the  property  in  question;  biit 
postponed  or  subordinated  these  rights  to 
a  lien  upon  such  property,  which,  it  was 
alleged,  was  created  or  attempted  to  be 
created  while  those  smts  were  pending, 
and  while  the  property  was  in  the  actual 
custody  of  those  courts,  bj'  receivers,  for 
the  purposes  of  being  administ'cred.  A« 
the  question  concerned  the  effect  to  be 
given  to  a  s«le  under  process  from  t+ie 
federal  courts,  and  to  the  construction  of 
the  decree  of  those  courts,  jurisdiction 
was   sustained. 

Sale  of  bankrupt's  estate. — In  Factors' 
Ins.  Co.  V.  Murphy,  111  U.  S,  738, 
28  L.  Ed.  582.  a  court  of  the  United 
States  sitting  in  bankruptcy  ha<i  ordered 
a  sak  of  real  property  of  the  bankrupt 
free  from  encumbrances.  The  property 
was  purchased  at  the  sale  on  behalf  of 
lienholders.  Subsequently  one  m4io  pos- 
sessed a  lien  on  the  property  at  the  time 
the  order  was  entered  and  sale  made, 
brought  suit  in  a  state  court  of  Louisiana 
to  foreclose  stich  lien,  claiming  that  she 
had  not  been  a  party  to  the  bankruptcy 
proceedings,  and  that  her  lien  was  un- 
affected by  the  sale.  The  defenda»t,  in 
whose  name  title  had  been  taken,  while 
averring  that  the  plaintiff  was  interested 
in  the  purchase  at  the  sale  made  under 
the  order  of  the  United  States  court,  in- 
sisted that  the  lien  of  the  mortgage  of 
plaintiff  had  been  extinguished  by  such 
sale.  The  state  court  having  decreed  in 
favor  of  plaintiff,  a  writ  of  erpor  was 
prosecuted   from  this   court. 

In  reversing  the  judgment  of  the  state 
court,  it  was  said:  "Counsel  for  defend- 
ant in  error  deny  the  jurisdiction  of  this 
court  and  move  to  dismiss  the  writ.  Bat 
it  is  apparent  that  the  only  controversy 
in  the  case  relates  to  the  effect  to  be 
given  to  the  sale  under  the  order  of  the 
district  court  of  the  United  States,  to  sell 
the  mortgaged  property  free  from  encum- 
brance. Both  parties  assert  rights  under 
this  order  and  sale.  Plaintiffs  in  error  as- 
sert that  the  sale  as  made  was  valid,  and, 
being    sold    free    from    incumbrances,    ex- 


660 


APPEAL  AND  ERROR. 


mort'gage  covering  the  same  property  or  a  part  thereof.^*  The  mere  fact  the 
action  in  the  federal  court  is  no  longer  pending  would  not  necessarily  oust  the 
jurisdiction  of  this  court  to  re-examine  the  action  of  the  state  court,  if  the  validity 
of  the  judgment  of  the  federal  court,  or  the  proceedings  by  the  marshal  under 
that  judgment,  were  directly  attacked. ^^ 

cc.  Liability  on  Injunction  Bond  Executed  under  Order  of  Federal  Court. — A 
bond  for  injunction  in  an  equity  court  of  the  United  States  given  under  the  order 
of  such  court  is  a  bond  executed  in  and  by  virtue  "of  an  authority  exercised  un- 
der the  United  States. "^^  The  defense  specially  set  up  that  no  liability  on  at" 
injunction  bond  taken  in  a  judicial  proceeding  could  arise  until  the  court  of  the 


tinguished  Mrs.  Murphy's  lien  as  well  as 
others.  Defendant  asserts  that  it  had  the 
effect  of  discharging  all  other  liens  but 
hers,  and  thus  gave  her  the  exclusive, 
paramount  lien  on  all  the  property  so 
sold.  Both  the  parties,  therefore,  rely 
upon  rights  under  federal  authority,  and 
as  the  right  of  plaintiff  in  error  was  de- 
nied by  the  court  the  writ  of  error  lies." 
Approved  in  Tullock  v.  Mulvane,  184  U. 
S.  497,  506,  46  L.  Ed.  657;  Avery  v.  Pop- 
per,  179   U.    S.   305.   45    L.    Ed.   203. 

94.  Avery  v.  Popper.  179  U.  S.  305,  45 
L.    Ed.    203. 

A  purchaser  at  a  marshal's  sale  of  prop- 
erty sold  under  execvition  from  a  federal 
eourt  is  not  entitled  to  bring  into  the  su- 
preme court  of  the  United  States  by  writ 
of  error  to  the  state  court  the  question 
whether  under  the  laws  of  Texas,  a  chat- 
tel mortgage  upon  property  sold  under 
execution  is  good  which  does  not  iden- 
tify the  particular  property  covered  by  it, 
but  leaves  such  property  to  be  subse- 
quently identified  by  selection  of  a  mort- 
fagee.  Avery  v.  Popper,  179  U.  S.  305, 
45    L.    Ed.   203. 

95.  But  "in  Day  v.  Gallup,  2  Wall.  97, 
17  L-  Ed.  855,  it  appeared  that  not  only 
had  the  proceedings  in  the  federal  court 
terminated,  but  that  the  real  ciuestion  was 
the  ownership  of  the  goods  as  between 
the  attaching  creditors  and  Gallup.  Gal- 
lop claimed  under  a  sale  of  the  goods 
•which  the  attaching  creditors  insisted  was 
a  fraud."  Avery  v.  Popper,  179  U.  S.  305, 
312,   45   L.    Ed.  203. 

96.  Rev.  Stat..  §  709.  Tullock  v.  Mul- 
vane, 184  U.  S.  497,  504.  46  L.   Ed.  657. 

Probable  cause. — In  Cresent  City  Live- 
stock Co.  V.  Butchers'  Union  Slaughter- 
House  Co.,  l'?0  U.  S.  141.  30  L.  Ed.  614,  the 
facts  were  briefly  these:  "Under  a  bill  filed 
m  a  circuit  court  of  the  United  States,  a 
temporary  injunction  had  been  allowed 
after  hearing,  and  a  bond  had  been  given 
under  an  order  of  the  court,  the  injunction 
was  perpetuated  by  the  circuit  court  on  the 
final  hearing.  The  case  was  appealed  to 
this  court,  and  the  decree  of  the  circuit 
court  was  reversed.  Suit  was  brought 
in  a  court  of  the  state  of  Louisiana,  upon 
tfee  injunction  bond  given  in  the  federal 
court,  against  the  principal  and  surety  in 
solido  and  against  the  principal  alone,  to 
recover  damages  for  the  malicious  prose- 
cution of  the  injunction  suit  in  the  federal 


court.  It  was  claimed  by  the  defendants 
that  the  final  decree  of  the  circuit  court 
of  the  United  States,  although  subse- 
Guently  reversed  by  this  court,  consti- 
tuted probable  cause,  and  therefore  there 
could  be  no  recovery  on  the  alleged  cause 
of  action  for  malicious  prosecution.  Both 
the  state  trial  court  by  way  of  instructions 
to  the  jury  and  the  supreme  court  of 
Louisiana  decided  that  the  decree  of  the 
circuit  court  of  the  United  States  did  not 
constitute  probable  cause,  because  prior 
to  the  decision  of  the  circuit  court  of  the 
United  States  a  contrary  view  to  that 
which  the  circuit  court  adopted  had  been 
announced  by  the  highest  court  of  the 
state  of  Louisiana.  The  jurisdiction  of 
this  court  to  review  the  controversy  was 
challenged  upon  the  very  grounds  now 
relied  upon,  and  the  court  said  (p.  146): 
"It  is  argued  by  counsel  for  the  defend- 
ant in  error  that  this  does  not  embrace 
any  federal  question;  that  the  effect  to 
be  given  to  a  judgment  or  decree  of  the 
circuit  court  of  the  United  States  sitting 
in  Louisiana  by  the  courts  of  that  state 
is  to  be  determined  by  the  law  of  Louisi- 
ana, or  by  some  principle  of  general  law 
as  to  which  the  decision  of  the  state  court 
is  final;  nnd  that  the  ruling  in  question 
did  not  deprive  the  plaintiffs  in  error  of 
'any  privilege  or  immunity  specially  set 
up  or  claimed  under  the  constitution  or 
laws  of  the  United  States.'  But  this  is 
an  error.  The  question  whether  a  state 
court  has  given  due  effect  to  the  judg- 
ment of  a  court  of  the  United  States  is  a 
question  arising  unde"  the  constitution 
and  laws  of  the  United  States."  Approved 
in  Tullock  V.  Mulvane,  184  U.  S.  497.  507, 
46   L.   Ed.   657. 

In    Meyers   v.    Block,    120    U.    S.    206.   30 
L.    Ed.    642,   the   case    came    to   this    court 
on    error    to    a    state    court,    and    involved 
the  correctness  of  the  construction  by  that 
court  of  the  terms   of  an  iriunction  bond 
given    in    a    court    of    the    United     States. 
This   court  treated  the  matter  of  jurisdic- 
tion  as   one  of  course,  held  that   the  par- 
ties   signing   the   bond   must   be   presumed 
to  have  been  cognizant  of  the  order  under 
which    the   bond    was    given,   and   to   have      | 
contracted   in   reference    thereto,   and   that      | 
the   bond    should   be   read   in   the   light   of     ( 
the    order,    and    the    court    applied   to_  the      j 
interpretation   of  the   bond   its   own   views- 
of   the   applicable   principles   of   law.    Tul- 


APPEAL  AND  ERROR. 


661 


United  States  in  which  the  controversy  was  pending  had  finally  determined  that 
tlie  injunction  should  not  have  been  granted,  is  the  assertion  of  an  immunity 
from  liability  depending  on  an  authority  exercised  under  the  United  States  and 
therefore  necessarily  involves  the  decision  of  a  federal  question  reviewable  by 
this  court.^^  A  claim  of  immunity  from  liability  for  attorneys'  fees,  a^one  of 
the  elements  of  damage  under  an  injunction  bond,  presents  a  federal  question 
reviewable  by  this  court. ^* 

dd.  Construction  of  Judgments  and  Decrees. — Where  a  controversy  in  the  state 
court  presents  a  contention  as  to  the  validity  or  proper  construction  of  an  order 
or  decree  rendered  by  a  court  of  the  United  States,  a  federal  question  is  presented 
reviewable  by  this  court. ^^ 

ee.  Showing  as  to  Jurisdiction. — In  General. — To  present  a  federal  question  on 
the  ground  that  full  faith  and  credit  were  not  given  by  the  state  court  to  the  judg- 
ments of  the  circuit  court  of  the  United  States,  it  must  appear  that  the  state  court 
denied  to  the  plaintiff  in  error,  within  the  terms  of  §  709  of  the  Revised  Statutes, 
"some  title,  right,  privilege  or  immunity"  held  by  die  plaintiff  in  error  under  the 
judgments  of  the  circuit  court  of  the  United  States  in  those  cases,  and  claimed 
by  it  in  the  state  court  under  the  constitution  or  a  statute  of  the  United  States; 
and  that  the  decision  of  the  state  court  was  against  the  title,  right,  privilege  or 
immunity  specially  set  up  or  claimed  by  the  plaintiff  in  error  under  such  con- 
stitution or  statute. 1  Therefore  writ  of  error  will  not  lie  in  this  court  to  a  state 
court  merely  because  the  state  court  disregarded  the  decision  of  this  court,  es- 
pecially where  no  final  judgment  has  been  entered  up  in  the  case  by  this  court. ^ 


lock    V.    Mulvane,    184    U.    S.    497,    508,    46 
L.    Ed.    657. 

Cases  distinguished. — "The  cases  of 
New  York  Ins.  Co.  v.  Hendren,  92  U.  S. 
286,  23  L.  Ed.  709;  Provident,  etc..  So- 
ciety V.  Ford,  114  U.  S.  635,  29  L.  Ed. 
261;  Blackburn  v.  Portland  Min.  Co.,  175 
U.  S.  571,  44  L.  Ed.  276.  and  others  of 
like  character,  do  not  conflict  with  the 
rule  which  we  apply  in  this  cause,  and 
which  was  expounded  in  the  cates  to 
which  we  have  previously  referred.  This 
results  when  it  is  observed  that  none  of 
the  cases  just  above  referred  to  involved 
the  construction  or  effect  of  a  law  of  the 
United  States  or  a  judgment,  decree  or 
order  or  other  act  done  under  and  by 
virtue  of  the  authority  of  a  court  of  the 
United  States  or  a  claim  of  immunity 
thereunder."  Tullock  v.  Mulvane,  184  U. 
S.   497.   508,    46   L.    Ed.    657. 

97.  Tullock  V.  Mulvane,  184  U.  S.  497, 
46   L.    Ed.    657. 

98.  Tullock  V.  Mulvane,  184  U.  S.  497, 
46  L.  Ed.  657;  Missouri,  etc.,  R.  Co.  v. 
Elliott,   184   U.   S.   530.   46   L.    Ed.    673. 

A  decision  of  a  state  court  that  at- 
torneys' fees  are  damages  on  an  injunc- 
tion bond,  and  should  be  decided  accord- 
ing to  the  rule  prevailing  in  the  courts  of 
the  United  States,  involves  no  federal 
question  reviewable  by  this  court  on  writ 
of  error,  since  it  involves  no  claim  of 
immunity  under  an  authority  exercised 
under  the  United  States.  Missouri,  etc., 
R.  Co.  V.  Elliott,  184  U.  S.  530,  46  L.  Ed. 
673,  following  Tullock  v.  Mulvane,  184 
U.    S.    497,    46   L.    Ed.    657. 

99.  Avery  v.  Popper,  179  U.  S.  305,  45 
L.   Ed.    203;    Dupasseur   v.    Rochereau,    21 


Wall.  130.  22  L.  Ed.  588;  Factors'  Ins.  Co. 
7'.  Murphy,  111  U.  S.  738,  28  L.  Ed.  582; 
Crescent  City  Live  Stock  Co.  v.  Butch- 
ers' Union  Slaughter-House  Co.,  120  U. 
S.  141.  30  L.  Ed.  614;  Tullock  v.  Mulvane, 
184   U.    S.   497.   507,  46   L.   Ed.   657. 

1.  Winona,  etc.,  R.  Co.  v.  Plainview,  143 
U.    S.   371,   390,    36    L.   Ed.    191. 

2.  Giles  V.  Little,  134  U.  S.  645,  33  L- 
Ed.    1062. 

A  writ  of  error  will  not  lie  to  a  state 
court  on  the  ground  that  the  supreme 
court  of  that  state  declines  to  follow  a  de- 
cision of  this  court  in  the  same  case,  bas- 
ing its  judgment  largely  upon  statutes  of 
the  state.  As,  for  example,  in  Giles  v. 
Little,  134  U.  S.  645,  33  L.  Ed.  1062,  this 
court  held  that  a  widow  took  only  an  es- 
tate for  life  under  the  will  of  her  husband 
determinable  by  her  marrjdng  again  and 
no  power  to  convey  a  greater  estate  than 
she  had  herself;  while  the  supreme  court 
of  the  state  held  that  she  took  an  estate 
in  fee  determinable  upon  her  marriage, 
with  power  during  her  widowhood  at  her 
discretion  to  convey  in  fee  any  part  of 
the  land,  and  the  devise  over  in  case  of 
her  marrying  again  passed  to  the  children 
only  what  remained  unconveyed.  Be- 
cause the  question  of  the  construction  of 
the  will  in  this  respect  depends  wholly 
upon  general  rules  of  law  and  upon  local 
statutes,  and  in  no  degree  upon  the  con- 
stitution, laws  or  treaties  of  the  United 
States;  and  the  disregard  by  the  state 
court  of  the  opinion  of  this  court  upon 
the  question  in  a  former  suit  does  not 
give  this  court  jurisdiction  to  review  the 
judgment  of  a  state  court.  Giles  v.  Lit- 
tle.  134   U.    S.   645.   33    L.    Ed.   1062,   follow- 


662  APPEAL  AND  ERROR. 

Nor  does  the  fact  that  the  supreme  court  of  the  state  does  not  acquiesce  in  the  cor- 
rectness of  the  decision  of  the  circuit  court  of  the  United  States,  constitute  a 
federal  question.  Neither  the  constitution  of  the  United  States  nor  any  act  of 
congress  guarantees  to  a  suitor  that  the  same  rule  of  law  shall  be  applied  to  him 
by  a  state  court  which  would  be  applied  if  his  citizenship  were  such  that  his  suit 
might  be  brought  in  a  federal  court. -^ 

Must  Be  Specially  Set  up  and  Claimed. — The  mere  fact  that  a  defendant 
in  a  state  court  pleads  a  purchase  of  realty  at  foreclosure  sale,  under  a  decree  of 
a  federal  court,  as  his  source  of  title,  does  not  constitute  a  special  setting  up  or 
claiming  of  a  right  or  title  under  authority  exercised  by  the  United  States,  such  as 
will  give  the  supreme  court  jurisdiction  to  review  the  decision  of  the  state  court, 
under  Rev.  Stat..  §  709.*  But  the  better  rule  is  that  where  a  state  court  refuses 
to  give  effect  to  the  judgment  of  a  court  of  the  United  States,  rendered  upon  a 
point  in  dispute,  and  with  jurisdiction  of  the  case  and  the  parties,  the  case  falls 
within  the  first  class  of  cases  claimed  under  §  709.°  Therefore,  where  this  fed- 
eral question  as  raised  below  by  the  pleadings,  by  the  objections  to  evidence  and 
by  the  requests  for  instructions,  are  expressly  considered  and  directly  passed  upon 
by  the  supreme  court  of  a  state,  this  fact  in  and  of  itself  suffices  to  present  the 
federal  question,  even  if  it  had  been  otherwise  ambiguously  raised  on  the  record.* 

Inquiry  into  Validity  of  Decision. — It  is  well  settled  that  the  judgments 
and  decrees  of  a  circuit  court  of  the  United  States  are  to  be  accorded  in  the  state 
courts  the  same  effect  as  would  be  accorded  to  the  juc^gments  and  decrees  of  a 
state  tribunal  of  equal  authority.  It  is  within  the  jurisdiction  of  this  court  to 
consider  and  determine  that  question,  that  is,  whether  such  effect  was  given  in 
any  particular  case,  whenever  properly  presented.  But  in  determining  that  ques- 
tion, this  court  must,  in  the  first  instance,  consider  whether  the  federal  court  had 
jurisdiction  to  render  the  judgment  or  decree  to  which,  it  is  contended,  due  eft'ect 
was  not  given,  for,  as  a  matter  of  course,  the  jurisdiction  of  every  court  is  open 
to  inquiry  when  its  judgments  and  decrees  are  produced  in  the  court  of  a  state, 
and  it  is  there  sought  to  give  them  effect.'^ 

ing      Leather      Manufacturers'      Bank       v.  in   Karkins  v.   Ashville,   180   U.    S.   635,  45 

Cooper.  120  U.  S.  778.  30  L.  Ed.  816;  San  L.    Ed.   709;    Baldwin   v.   County   Commis- 

Francisco  v.  Itsell.  133  U.  S.  65,  33  L.   Ed.  sioners.    1C8    U.    S.    705,    42    L.    Ed.    1213; 

570;    San    Francisco    v.    Scott,    111    U.    S.  Tompkins  v.  Cooper,  170  U.  S.  703,  42  L. 

768,  28   L.  Ed.   593.  Ed.  1217;  Mutual  Life  Ins.  Co.  v.  Kirchoff, 

3.  Dupasseur  v.  Rochereau,  21  Wall.  169  U.  S-  103,  110,  42  L.  Ed.  677;  German 
130,  22  L.  Ed.  588;  Brooks  v.  Missouri,  Ins.  Co.  v.  First  Nat.  Bank,  173  U.  S.  701, 
124  U.  S.  394,  31  L.  Ed.  454;  French  v.  702.  43  L.  Ed.  1177,  1185;  Ross  v.  King, 
Hopkins,  124  U.  S.  524.  31  L.  Ed.  536;  172  U.  S.  641,  43  L.  Ed.  1177,  1180;  Rodley 
Chappell  V.  Bradshaw,  128  U.  S.  132,  32  v.  State  of  California,  185  U.  S.  693.  694, 
L.  Ed.  369;  Clark  v.  Pennsylvania,  128  U.  46  L.  Ed.  393;  Herold  r.  Frank,  191  U.  S. 
S.  395,  32  L.  Ed.  487;  Hale  r.  Akers,  132  558.  48  L.  Ed.  302;  Chicago,  etc..  R.  Co. 
U.  S.  554,  33  L.  Ed.  442;  Manning  r.  v.  Newell,  198  U.  S.  579,  49  L.  Ed.  1171; 
French.  133  U.  S.  186,  33  L.  Ed.  582;  Giles  Seale  v.  Georgia,  201  U.  S.  642,  50  L.  Ed. 
V.  Little.  134  U.  S.  645,  33  L.  Ed.  1062;  902;  Chappell  v.  Stewart.  169  U.  S.  733,  42 
Cook  County  v.  Calumet,  etc.,  Canal  Co..  L.  Ed.  1207,  1215;  Fenwick  Hall  Co.  v. 
138  U.  S.  635,  34  L.  Ed.  1110;  Winona,  Old  Saybrook,  169  U.  S.  734,  42  L.  Ed. 
etc.,  R.  Co.  V.  Plainview,  143  U.  S.  371,  1215;  Baltimore,  etc.,  R.  Co.  v.  Ocean 
394,  36   L.   Ed.   191.  City,    179    U.    S.    681,   45    L.    Ed.    384;    Rob- 

4.  Mutual  Life  Ins.  Co.  v.  Kirchoflf,  169  inson  v.  Wingate.  198  U.  S.  580,  49  L.  Ed. 
U.    S.    103,   42    L.    Ed.    677.  1171;   Tullock  v.   Mulvane,   184   U.    S.    497, 

5.  Mutual  Life  Ins.  Co.  v.  McGrew,  188  46  L.   Ed.  657. 

U.   S.    291,   47    L.    Ed.    480,     reaffirmed     in  7.    Pendleton  v.   Russell,   144  U.   S.   640, 

Huber    v.    Jennings-Heywood    Oil    Syndi-  644,  36  L.  Ed.  574. 

cate,  201  U.  S.  641,  50  L.  Ed.  901;  Herold  Whether   a    federal   judgment    has   been 

z:    Frank,    191    U.    S.    558,   48    L.    Ed.    302;  given    due    force    and    eflfect    in    the    state 

Hughes  V.  Kepley,  191  U.  S.  557,  48  L.  Ed.  court  is  a  federal   question   reviewable  by 

301;   Wakefield   I/.   Tassell,   192   U.    S.   601,  this  court,  which  will  determine  for  itself 

4S    L.    Ed.    583;    Bank     of     Commerce      v.  whether    such    judgment    has    been    given 

Wiltsie,   189  U.   S.   505,  47  L.   Ed.   921.  due    weight    or    otherwise.      Crescent    City 

6.  Oxley  Stave  Co.  v.  Butler  County,  Live-Stock  Co.  -'.  Butchers'  Union  Slargh- 
166  U.   S.   648,   41   L.    Ed.   1149,    reaffirmed  ter-House    Co.,    120    U.    S.    141,    30    L.    Ed. 


APPEAL  AND  ERROR. 


663 


(9)  Denial  of  Rights  wider  Clause  Guaranteeing  a  Republican  Form  of  Gov- 
ernment.— The  provisions  of  the  United  States  constitution  guaranteeing  a  re- 
pubHcan  form  of  government  to  each  state,  does  not  give  this  court  jurisdiction 
under  §  709  of  the  Revised  Statutes  to  review  the  judgment  of  the  highest  state 
court,  affirming  an  election  contest  for  the  offices  of  governor  and  Heutenant  gov- 
ernor,_  made  by  the  legislature,  to  which  tribunal  the  question  was  exclusively 
committed  by  the  state  court  and  laws,  on  the  ground  of  deprivation  of  rights  se- 
cured by  the  federal  constitution.^ 

(10)  Denial  of  Religious  Liberty. — This  court  has  no  jurisdiction,  under  the 
25th  section  of  the  judiciary  act,  of  a  question  whether  a  statute  or  ordinance  of  a 
state  does  or  does  not  impair  religious  liberty.  The  constitution  of  the  United 
Slates  makes  no  provision  for  protecting  the  citizens  of  the  respective  states  in 
their  religious  liberties;  this  is  left  to  the  state  constitutions  and  laws.^ 

(11)  Abridging  the  Freedom  of  Speech  or  of  the  Press. — A  writ  of  error  to 
review  a  judgment  upon  an  information  for  contempt  will  be  dismissed,  although 
the  plaintiff  relies  upon  the  defense  that  the  information  complained  of  is  true, 
and  he  claims  a  right  to  prove  its  truth  under  the  first  amendment  of  the  federal 
constitution,  which  provides  that  congress  shall  make  no  law  abridging  the  free- 
dom of  speech  or  of  the  press.^^ 

(12)  Denial  of  Rights  to  Ambassadors  and  Cansuls. — Writ  of  error  lies  to  re- 
view a  judgment  of  a  state  court  denying  a  foreign  consul  any  right  guaranteed 
to  him  by  the  constitution  or  laws  of  the  United  States,  provided  tliis  sufficientlv 
appears  from  the  record.^' 


614;  Pittsburg,  etc.,  R.  Co.  v.  Long  Island 
Trust  Co.,  172  U.  S.  493,  43  L.  Ed.  528. 
In  the  latter  case.  Mr.  Justice  Harlan, 
after  reviewing  the  cases  upon  this  sub- 
ject, thus  states  his  conclusion:  "Accord- 
ing to  these  decisions  and  in  view  of  the 
statute  giving  this  court  authority  to  re- 
examine the  final  judgment  of  the  highest 
court  of  a  state  denj'ing  a  right  specially 
set  up  or  claimed  under  an  authority  ex- 
ercised under  the  United  States,  it  is 
clear  that  we  have  jurisdiction  to  inquire 
whether  due  effect  was  accorded  to  the 
foreclosure  proceedings  in  the  circuit 
courts  of  the  United  States  under  which 
the  plaintiff  in  error  claims  title  to  the 
lands  and  property  in  question."  Deposit 
Bank  z:  Frankfort,  191  U.  S.  499,  515,  48 
L.   Ed.   276. 

8.  Tavlor  v.  Beckhan,  178  U.  S.  548.  44 
L.    Ed.    1187. 

9.  Denial  of  religious  liberty. — Permoli 
V.  New  Orleans,  3  How.  589.  11  L.  Ed. 
739. 

10.  Abridging  the  freedom  cf  speech  or 
cf  the  press. — Patterson  z\  Colorado.  205 
U.  S.  4.54,  51  L.  Ed.  879,  Mr.  Justice  Har- 
lan  and    Mr.   Justice    Brewer   dissenting. 

11.  Denial  of  rights  to  ambassadors  and 
consuls. — rjavis  z:  Packard,  7  Pet.  276, 
281,    8    L.    Ed.    684. 

The  denial  by  the  highest  court  of  a 
state  of  the  exemption  from  suit  allowed 
to  ambassadors  and  consuls  of  foreign 
nations  under  the  constitution  or  the  laws 
of  the  United  States,  may  be  reviewed  by 
this  court  under  the  25th  section  of  the 
judiciary  act.  Davis  v.  Packard,  8  Pet. 
310,   312,   8   L.    Ed.   957. 

Showing  on  the  record. — Motion  to  dis- 


miss a  writ  of  error  to  "the  court  for  the 
correction  of  errors  in  the  state  of  New 
York."  The  case  went  up  to  that  court 
upon  a  writ  of  error  to  the  supreme  court 
of  New  York,  and  in  the  court  for  the 
correction  of  errors,  the  plaintiff  in  error 
assigned  for  error,  that  he  was,  at  the 
time  of  the  commencement  of  the  suit, 
and  continued  to  be,  consul-general  in  the 
United  States,  of  the  kings  of  Saxony: 
and  so  being  consul-general,  he  ought  to 
have  been  impleaded  in  some  district 
court  of  the  United  States,  and  that  the 
supreme  court  of  New  York  had  not  juris- 
diction of  the  case.  The  defendants  an- 
swered that  in  the  record  of  the  proceed- 
ings of  the  supreme  court,  it  nowhere  ap- 
pears that  the  plaintiff  in  error  ever  was 
consul  of  Saxony.  The  record  states  that 
the  court  for  the  correction  of  errors  hav- 
ing fully  understood  the  causes  assigned 
for  error,  and  inspected  the  record,  did 
order  and  adjudge  that  the  judgment  of 
the  supreme  court  should  be  affirmed. 
Affidavits  of  the  proceedings  in  the  high- 
est court  of  the  state  of  New  York,  and 
the  opinion  of  the  chancellor  assigning 
his  reasons  for  affirming  the  judgment  of 
the  supreme  court,  were  laid  before  thi.s 
court.  "Whatever  took  place  in  the  state 
court,  which  forms  no  part  of  the  record 
sent  up  to  this  court,  must  be  entirely 
laid  out  of  view.  This  is  the  established 
course  of  the  court.  The  question  be- 
fore this  court  is  whether  the  judgment 
was  correct,  not  whether  the  ground  on 
which  that  judgment  was  given  was  cor- 
rect." The  fact  that  the  plaintiff  in 
error  was  the  consul  gf  icral  of  the  King 
of   Saxony,   is    not    denied   by   the   joinder 


664  APPEAL  AND  ERROR. 

(13)  Denial  of  Rights  Claimed  under  the  Duty  or  Bounty  Acts. — The  appel- 
late jurisdiction  of  this  court  extends  to  a  case  where  there  is  a  claim  of  title  or 
right  under  the  duty  act.^^  A^fj  where  a  controversy  arises  in  the  state  court  as 
to  who  is  entitled  to  a  bounty  on  sugar  granted  by  the  act  of  March  2,  1895,  c. 
189,  "to  producers  and  manufacturers  of  sugar  in  the  United  States,"  so  far  as 
tlie  question  of  bounty  depends  upon  the  construction  of  state  laws  the  decision 
of  the  state  court  is  binding  upon  us,  but  so  far  as  it  depends  upon  the  construc- 
tion of  the  act  of  congress  awarding  such  bounty,  it  is  subject  to  re-examination 
here.^^ 

(14)  Denial  of  Equal  Privileges  to  Citizens  of  the  Several  States. — Where  a 
person's  rights  as  a  citizen  have  been  infringed  by  a  state  court  within  the  mean- 
ing of  §  2,  art.  4,  of  the  federal  constitution,  declaring  that  the  citizens  of  each 
state  shall  be  entitled  to  all  privileges  and  immunities  of  citizens  in  the  several 
states,  the  writ  of  error  will  lie.^^  Where  a  person  is  described  as  a  "resident"  of 
a  certain  state  and  city  and  no  question  as  to  citizenship  appears  to  have  arisen 
in  any  stage  of  the  case  up  to  the  argument  in  this  court,  his  citizenship  suffi- 
ciently appears  for  a  review  by  this  court,  on  the  ground  that  his  constitutional 
rights  as  a  citizen  have  been  infringed  by  the  decision  of  a  state  court. ^^ 

(15)  Denial  of  Right  Claimed  under  the  President's  Proclamation. — A  title, 
r^ht,  privilege,  or  immunity  claimed  under  a  proclamation  of  the  president  gives 
ihis  court  jurisdiction.^^  The  decision  of  a  state  court  passing  upon  the  effect 
fa-oduced  by  the  act  of  the  executive  on  a  given  contract  in  inaugurating  the 
late  civil  war  in  the  United  States,  is  reviewable  here  by  writ  of  error  under 
the  second  section  of  the  act  of  February  5th,  1867,  to  amend  the  judiciary  act, 
§  709  of  the  Revised  Statutes  of  the  United  States.^" 

(16)  Denial  of  Right  under  Na-turalisation  Laws. — Where  a  rig'it  or  privilege 
is  claimed  under  the  naturalization  laws  of  the  United  States,  and  the  judgment  of 
highest  state  court  is  adverse  to  the  claim,  a  writ  of  error  will  .lie  to  this  court 
to  review  the  ruling  of  the  state  court. ^^ 

(17)  Denial  of  Due  Process  of  Law  or  Equal  Protection  of  the  Laws — aa.  In 
General. — This  court  has  jurisdiction  to  review  a  judgment  of  a  state  court,  nec- 
essarily involving  a  decision  against  a  right  claimed  under  the  fourteenth  amend- 
ment to  the  constitution  of  the  United  States. ^^     But  where  the  plaintiff  in  error 

in  error.     The  answer  given  is  that  it  no-  14.     Denial    of    equal    privileges    to    citi- 

where    appears    by    the    record,    proceed-  zens      of      the      several      states. — Sully    v. 

jngs,   or   judgment   of   the   supreme   court,  American   Nat.   Bank,  178  U.  S.  289,  44  L. 

that   he    was    such    consul.      The    court    of  Ed.   1072. 

errors    say,    after    having    examined    and  15.     Sully   v.    American    Nat.    Bank,    178 

full-y    considered   the    causes    assigned    for  U.   S.  289,  44  L.  Ed.  1072. 

error,    they    affirm    the    judgment    of    the  16.     Denial    of   right    claimed   under   the 

supreme  court.     This  was  deciding  against  president's    proclamation. — Allen     v.     Mc- 

the    privilege     set     up     under    the     act     of  Veigh,   107  U.  S.  433,  27  L.  Ed.   .572. 

congress   which   declares   that   the   district  17.     Mathews   v.    McStea,   20   Wall.    646, 

courts  of  the  United  States  shall  have  ju-  22   L.    Ed.   448. 

risdiction.   exclusive   of   the   courts   of  the  18.    Denial  of  right  under  naturalization 

several  states,  of  all  suits  against  consuls  laws. — Missouri    z'.    Andriano.    138    U.    S- 

and    vice-consuls.      Davis    v.     Packard,    6  496,    34    L.    Ed.    1012;    Boyd   v.    Nebraska, 

Pet.   41.   8   L.    Ed.    312.  143    U.    S.    135,    36    L.    Ed.    103. 

12.  Denial  of  rights  claimed  under  the  19.  Denial  of  due  process  of  law  or 
duty  or  bounty  act. — Where  a  suit  is  in-  equal  protection  of  the  laws. — Holt  v. 
stituted  in  a  state  court  under  the  01st  Indiana  Mfg.  Co.,  176  U.  S.  68,  72,  44  L. 
section   of  the   duty  act   of   1799   by  a   late  Ed.  374. 

collector  against  the   collector  in  office  to  The   court   can   review   the  judgment  of 

recover  his   share  of  a  forfeiture  to  which  a    state    court    on    error   upon    the   ground 

the  collector  of  the  district  is  entitled,  and  that,  although   the  forms  of  law  were  ob- 

such   right  is  denied  by  the  highest  court  served,   it   necessarily  operated   to  wrong- 

of  the   state,  a  writ  of  error  will  lie  from  fully  deprive  a  party  of  his  property  with- 

this   court.      Buel   7'.   Van   Ness,   8   Wheat.  out    due    process    of   law,    and    the    giving 

312,   5   L.   Ed.   624.   See   Harris   v.    Dennie,  effect   in   the    circuit    court     to    the     state 

:;   Pet.  292,  7  L.  Ed.  683.  judgment   does    not    change    the   character 

13.  Allen  v.  Smith,  173  U.  S.  389,  43  of  the  question.  It  is  simply  adding  the 
L.  Ed.  741.  force    of    a    new     determination      to      one 


APPEAL  AXD  ERROR. 


665 


has  sought  in  the  state  court,  and  is  given  opportunity,  to  litigate  the  rights  claimed 


wrongfully  obtained,  and  adding  it  upon 
no  new  facts.  Fayerweathcr  v.  Ritch,  195 
U.  S.  276,  49  L.  Ed.  193.  citing  Chicago. 
ac.  R.  Co.  z:  Chicago,  166  U.  S.  226,  41 
L.   Ed.  979. 

Assessnr.ents  for  local  improvements. — ■ 
We  have  no  power  to  correct  the  errors 
of  state  courts  in  respect  to  the  details 
of  assessments  made  by  municipal  cor- 
porations upon  private  property  to  defray 
the  expenses  of  street  improvements. 
Upon  all  such  questions  the  action  of  the 
■-late  court  is  final.  There  can  be  no 
doubt  but  that  our  jurisdiction  is  at  an 
end  if  we  find  that  sufficient  provision  has 
been  made  by  law  for  contesting  such  a 
charge,  when  imposed,  by  an  appropriate 
adversary  proceeding  in  the  ordinary 
courts  of  justice.  Corry  v.  Campbell,  154 
U.  S.  App.  629,  24  L.  Ed.  926,  following 
Davidson  z'.  New  Orleans,  96  U.  S.  97, 
24    L.    Ed.    616. 

Sale  of  decedents'  estates. — This  court 
has  jurisdiction  to  review  the  judgment 
of  a  state  court  upholding  a  deed  by  an 
administrator  to  land,  acting  under  an 
order  of  probate  court,  appointing  an  ad- 
ministrator of  the  estate  of  a  person  who 
is.  in  fact,  alive,  although  he  has  been  ab- 
sent for  seven  years,  and  giving  him  au- 
thority to  sell  his  estate,  where  such  rul- 
ing is  claimed  to  be  a  denial  of  due  proc- 
ess of  law  under  the  federal  constitution. 
Scott  V.  McNeal.  154  U.  S.  34,  38  L.  Ed. 
896. 

Denial  of  appellate  review. — An  appel- 
lant is  not  denied  the  equal  protection  of 
the  laws  because  he  has  been  deprived 
of  a  writ  of  error  for  the  review  of  the 
record  and  proceedings  in  his  case.  Kohl 
V.   Lehlback,   160   U.   S-  293,   40   L.   Ed.   432. 

Ejection  from  places  of  public  resort. — 
This  court  has  jurisdiction  to  review  the 
judgment  of  the  state  court,  where  the 
record  shows  that,  in  the  supreme  court 
of  the  state,  the  defendant  questioned  the 
\alidity  of  the  state  statute  "relating  to 
the  admission  of  persons  holding  tickets 
of  admission  to  places  of  public  enter- 
tainment and  amusement,"  under  the 
fourteenth  amendment,  in  that  it  "seeks 
to  abridge  the  privileges  and  immunities 
of  citizens  of  the  United  States,  and  to 
deprive  them  of  liberty  and  property  with- 
out due  process  of  law,  and  to  deny  to 
them,  being  within  its  jurisdiction,  the 
equal  protection  of  the  laws,"  and  by  the 
judgment  below  the  validity  of  the  stat- 
ute was  sustained,  the  court  holding  that 
it  was  a  legitimate  exertion  of  the  police 
power  of  the  state.  Western  Turf  Ass'n 
V.  Greenberg,  204  U.  S.  359.  362,  51  L. 
Ed.    520. 

Premature  hearing. — Where  the  su- 
i-veme  court  of  California  held  that  a 
statute  of  that  state  allowing  the  board 
of  directors  of  an  irrigation  district,  to 
secure    a    determination    bv   the    courts   of 


the  validity  of  the  proceedings  of  the 
board  concerning  a  proposed  issue  of  the 
bonds  of  the  district  in  advance  of  their 
issue,  did  not  deprive  the  plaintiff  in  er- 
ror of  his  property  without  due  process 
of  law,  presents  a  federal  question,  and 
therefore  a  motion  to  dismiss  will  be 
overruled.  Tregea  v.  Modesto  Irrigation 
District,    164   U.    S.    179.   41    L.    Ed.   395. 

Abolition  of  grade  crossings. — An  alle- 
gation that  due  process  of  law  is  denied 
plaintiff  in  condemnation  of  property  un- 
der a  special  statute  authorizing  the 
abolition  of  a  grade  crossing  since  the 
statute  authorizes  an  increase  in  the  num- 
ber of  tracks,  and  an  expenditure  on  the 
part  of  the  municipality  in  aid  of  the  rail- 
road, in  violation  of  the  state  constitu- 
tion, presents  a  federal  question  review- 
able by  tliis  court  on  writ  of  error  to  a 
state  court.  Wheeler  z\  New  York,  etc., 
R..  178  U.  S.  321,  44  L.  Ed.  1085,  re- 
affirmed in  New  York,  etc.,  R.  Co.  v.  Mc- 
Keon,    189   U.    S.   508,    5G9,   47    L.    Ed.    922. 

Contempt. — "If  the  committing  court 
has  jurisdiction  of  the  subject  matter,  and 
of  the  person,  and  power  to  make  the  or- 
der for  disobedience  to  which  a  judgment 
in  contempt  was  rendered,  and  to  render 
that  judgment,  then  the  court  of  criminal 
appeals  cannot  do  otherwise  than  dis- 
charge the  writ  of  habeas  corpus  and  re- 
mand the  petitioner.  The  writ  cannot  be 
availed  of  as  a  writ  of  error  or  an  ap- 
peal, and  if  the  commitment  is  not  void, 
petitioner  is  not  deprived  of  his  liberty 
without  due  process  of  law."  Tinsley  v. 
Anderson,  171  U.  S.  101.  106,  43  L.  Ed.  91. 

Taxation. — By  the  law  of  Pennsylvania 
if  a  treasurer  of  a  corporation  fails  to 
make  return  of  its  loans,  as  required  by 
law,  the  auditor  general  may  make  out 
and  file  an  account  against  the  company, 
charging  it  with  the  taxes  supposed  to  be 
due.  If  the  corporation  objects  to  the 
taxes,  it  is  authorized  to  appeal  to  one  of 
the  state  courts.  In  the  case  at  bar,  upon 
failure  of  the  corporation  to  make  return 
except  under  protest,  the  auditor  general 
made  an  account  out  against  it  contain- 
ing various  items.  The  company  appealed 
to  the  state  courts  and  amongst  the  ob- 
jections raised  was  that  the  assessment 
was  in  violation  of  the  14th  amendment 
of  the  constitution  in  that  it  denied  to 
them  the  equal  protection  of  the  laws.  It 
was  held,  that  a  federal  question  was 
raised,  and  that  the  w^rit  of  error  could 
not  be  dismissed.  Bell's  Gap  R.  Co.  v. 
Pennsylvania,  134  U.  S.  232.  33  L.  Ed. 
892. 

Validity  of  assessments. — A  judgment 
of  the  hierhest  court  of  a  state,  sustaining 
the  validity  of  an  assessment  upon  lands 
under  a  statute  of  the  state,  which  was 
alleged  to  b-e  unconstitutional  and  void  be- 
cause it  afforded  to  the  owners  no  op 
portunity    to    be    heard    upon     the      whole 


666 


APPEAL  AND  ERROR. 


by  him,  he  cannot  complain  that  the  guarantees  of  the  constitution  of  the  United 


amount  of  the  assessment,  involves  a  de- 
cision against  a  right  claimed  under  the 
provision  of  the  fourteenth  amendment 
to  the  constitution  of  the  United  States 
prohibiting  the  taking  of  property  with- 
out due  process  of  law,  and  may  be 
reviewed  by  this  court  on  writ  of  error,  al- 
though the  constitution  of  the  state  con- 
tains a  similar  provision,  and  no  constitu- 
tional provision  is  specifically  mentioned 
in  the  record  of  the  state  court.  Spencer 
V.  Merchant,  125  U.  S.  345,  31  L.  Ed.  763; 
Ulman  v.  Mayor,  165  U.  S.  719,  41  L.  Ed. 
1184. 

"The  question  submitted  to  the  supreme 
court  of  the  state  was  whether  this  as- 
sessment on  the  plaintiff's  lot  was  valid. 
He  contended  that  the  statute  of  1881  was 
unconstitutional  and  void,  because  it  was 
an  attempt  by  the  legislature  to  validate 
a  void  assessment,  without  giving  the 
owners  of  the  lands  assessed  an  oppor- 
tunity to  be  heard  upon  the  whole  amount 
of  the  assessment.  He  thus  directly,  and 
in  apt  words,  presented  the  question 
whether  he  had  been  unconstitutionally 
deprived  of  his  property  without  due  proc- 
ess of  law,  in  violation  of  the  first  sec- 
tion of  the  fourteenth  amendment  to  the 
constitution  of  the  United  States,  as  well 
as  of  art.  1,  §  7,  of  the  constitution  of 
New  York;  and  no  specific  mention  of 
either  constitutional  provipion  was  neces- 
sary in  order  to  entitle  him  to  a  decision 
of  the  question  by  any  court  having  juris- 
diction to  determine  it.  The  adverse  judg- 
ment of  the  supreme  court,  affirmed 
by  the  court  of  appeals  of  the 
state,  necessarily  involved  a  decision 
against  a  right  claimed  under  the  four- 
teenth amendment  to  the  constitution  of 
the  United  States,  which  this  court  has 
jurisdiction  to  review.  Bridge  Proprie- 
tors V.  Hoboken,  etc.,  C6.,  1  Wall.  116, 
142.  17  L.  Ed,  571;  Murrajr  v.  Charleston, 
96  U.  S.  432,  442,  24  L.  Ed.  760;  Furman 
V.  Nichol,  8  Wall.  44,  56.  19  L.  Ed.  370; 
Chicago  Life  Ins.  Co.  v.  Needles.  113  U. 
S.  574,  579,  28  L.  Ed.  1084."  Spencer  v. 
Merchant,  125  U.  S.  345,  352.  31  L.  Ed. 
763. 

Whether  the  fact  that  the  law  gives  tax 
assessors  in  the  case  of  corporations  two 
chances  to  arrive  at  a  correct  valuation  of 
real  estate  owned  by  corporations  and 
only  one  in  the  case  of  individuals,  is  a 
denial  of  the  equal  protection  of  the  laws; 
is  a  federal  question  which  confers  upon 
the  supreme  court  of  the  United  States 
jurisdiction  to  review  the  judgment  of  the 
supreme  court  of  a  state  affirming  the 
judgments  of  courts  below  in  a  proceed- 
ing to  review  an  assessment  on  that 
ground.  New  York  State  v.  Barker,  179 
U.    S.    279.    45   L.    Ed.    190. 

Formality  of  tax  assessments  and  tax 
sales. — A  decision  of  the  state  court  ap- 
plying  the   statutory  presumption   of   cor- 


rectness arising  from  the  tax  collector's 
deed,  and  refusing  to  consider  certain  al- 
leged defects  in  the  assessment  of  taxes 
and  sale  for  nonpayment  of  the  taxes, 
does  not  give  this  court  jurisdiction  to 
review  such  decision  on  the  ground  that 
the  plaintiff  in  error  has  been  deprived 
of  his  property  without  due  process  of 
law.  Castillo  z'.  McConnico,  168  U.  S. 
674.  42  L.  Ed.  622,  reaffirmed  in  Fenwick 
Hall  Co.  V.  Old  Saybrook,  169  U.  S.  734. 
42  L.  Ed.  1215;  Warren  v.  Chandos,  169 
U.  S.  734,  42  L.  Ed.  1216;  Nester  v. 
Church,  189  U.  S.  505,  47  L.  Ed.  921; 
Thomas  v.  Kansas,  205  U.  S.  535,  51  L. 
Ed.   919. 

There  is  an  important  distinction  be- 
tween the  essentials  of  due  process  of  law 
under  the  fourteenth  amendment,  and 
matters  which  may  or  may  not  be  essen- 
tial under  the  terms  of  a  state  assessing 
or  taxing  law.  The  two  are  neither  cor- 
relative or  coterminous.  The  first,  due 
process  of  law.  must  be  found  in  the  state 
statute,  and  cannot  be  departed  from 
without  violating  the  constitution  of  the 
United  States.  The  other  depends  on  the 
law  making  power  of  the  state,  and  as  it 
is  solely  the  result  of  such  authority  may 
vary  or  change  as  the  legislative  will  of 
the  state  sees  fit  to  ordain.  It  follows 
that,  to  determine  the  existence  of  the 
one.  due  process  of  law.  is  the  final  prov- 
ince of  this  court,  whilst  the  ascertain- 
ment of  the  other,  that  is  what  is  merely 
essential  under  the  state  statute,  is  a  state 
question  within  the  final  jurisdiction  of 
courts  of  last  resort  of  the  several  states. 
When,  then,  a  state  court  decides  that  a 
particular  formality  was  or  was  not  es- 
sential under  the  state  statute,  such  de- 
cision presents  no  federal  question,  pro- 
viding always  the  statute  as  thus  con- 
strued does  not  violate  the  constitution 
of  the  United  States,  by  depriving  of 
property  without  due  process  of  law.  This 
paramount  requirement  being  fulfilled,  as 
to  other  matters  the  state  interpretation 
of  its  own  law  is  controlling  and  decisive. 
This  distinction  is  pointed  out  by  the  de- 
cisions of  this  court.  Pittsburg,  etc.,  R. 
Co.  V.  Backus,  154  U.  S.  421,  38  L.  Ed. 
1031;  Kentucky  Railroad  Tax  Cases,  115 
U.  S.  321.  29  .L.  Ed.  414;  Davidson  z^.  New 
Orleans,  96  U.  S.  97,  24  L.  Ed.  616;  Cas- 
tillo ?;.  McConnico,  168  U.  S.  674,  683,  42 
L.  Ed.  622,  reaffirmed  in  Fenwick  Hall 
Co.  V.  Old  Saybrook,  169  U.  S.  734,  42 
L.  Ed.  1215;  and  Warran  v.  Chandos, 
169   U.    S.    734,   42    L.    Ed.    1216. 

Castillo  V.  McConnico  distin squished.— 
In  Castillo  v.  McConnico.  168  U.  S.  674, 
42  L.  Ed.  622,  it  was  asserted  that  a  par- 
ticular assessment  was  void  because  of  a 
mistake  in  the  name  of  the  person  whose 
property  had  been  assessed.  The  su- 
preme court  of  Louisiana,  interpreting  the 
statutes   of  that   state,  otherwise   decided. 


AFl'HAL  AND  HRKOK. 


667 


States  were  denied  because  the  litigation  did  not  result  successfully. 20  Nor  has 
this  court  jurisdiction  to  inquire  into  the  question  whether  or  not  the  state  court 
has  exceeded  its  functions  under  the  constitution  of  the  state  and  in  that  way  de- 
nied the  plaintiff  due  process  of  law. 21  Mr.  Justice  Holmes,  in  a  late  case,  said : 
The  requirement  in  the  fourteenth  amendment  of  due  process  of  law  does  not 
take  up  the  special  provisions  of  the  state  constitution  and  laws  into  the  founteenth 
amendment  for  the  purposes  of  the  case,  and  in  that  way  subject  a  state  decision 
that  they  have  been  complied  with  to  revision  by  this  court. 22 

Errors  in  the  mere  administration  of  a  state  statute,  not  involving  juris- 
diction of  the  subject  and  of  the  parties,  could  not  justify  this  court,  in  its  re-ex- 


It  was  urged  that  such  decision  was  in 
conflict  with  many  prior  rulings  of  that 
court,  and  therefore  a  federal  question 
w^s  presented.  But  it  was  held,  that  it 
w^s  within  the  power  of  the  .  state  of 
Louisiana,  without  violating  the  consti- 
tution of  the  United  States,  to  direct  the 
assessment  without  giving  the  name  of 
tbe  owner,  by  an  adequate  description  of 
the  property  assessed.  The  decision  of 
tbe  supreme  court  of  the  state  of  Louisi- 
ana raised  no  federal  question,  which 
could  be  reviewed  by  the  supreme  court 
of  the  United  States.  Lombard  v.  West 
Chicago.  181  U.  S.  33,  43,  45  L.  Ed.  731. 

Notice  of  reassessment. — An  answer  by 
the  defendant  in  an  actio^n  in  a  state  court 
brought  to  enforce  a  lien  created  by  a 
reassessment  of  taxes  upon  its  real  es- 
tate, which  alleges  generally  that  the  no- 
tice of  the  reassessment  was  insufficient, 
and  specifically  that  by  reason  thereof  its 
property  was  sought  to  be  taken  without 
due  process  of  law.  and  in  conflict  with 
the  terms  of  the  fourteenth  amendment 
to  the  constitution,  raises  a  federal  ques- 
tion of  which  this  court  has  jurisdiction. 
Bellingham  Bay.  etc..  R.  Co.  v.  New 
'Whatcom,   172  U.   S.  314,   43   L.   Ed.   4&0. 

Property  in  custodia  legis. — The  grant- 
ing of  a  mandatory  writ  of  prohibition  by 
a  state  court,  commanding  the  receiver 
appointed  by  one  state  court  to  turn  over 
the  property  in  his  hands  belonging  to 
the  defendant  corporation  to  the  receiver 
appointed  by  another,  does  not  operate 
to  take  away  from  the  defendant  its  prop- 
erty and  bestow  it  upon  another  in  vio- 
lation of  the  constitution  of  the  United 
States,  and  of  the  law  of  the  land,  all  of 
which  guarantee  that  no  property  shall 
be  taken  except  by  due  process  of  law. 
St.  Louis,  etc.,  R.  Co.  v.  Merriam,  156  U. 
S.    478,    39    L.    Ed.    502. 

Libel — Reputation  as  property. — A  con- 
tention in  a  state  court,  that  reputation 
is  property  of  which  the  owner  is  de- 
prived without  due  process  of  law  by  a 
decision  against  his  right  of  action  for 
libelous  matter  contained  in  a  pleading 
raises  a  federal  question  under  U.  S.  Rev. 
Stat.,  §  709,  providing  for  writ  of  error 
from  the  supreme  court  in  case  of  a  de- 
cision against  any  constitutional  right, 
privilege  or  immunity.  Abbott  v.  Na- 
tional Bank  of  Commerce.  175  U.  S.  409, 
44  L.  Ed.  217. 


20.  Central  Land  Co.  v.  Laidley,  159 
U.  S.  103,  112,  40  L.  Ed.  91;  Walker  v. 
Sauvinet,  92  U.  S.  90.  23  L.  Ed.  678;  Head 
V.  Amoskeag  Mfg.  Co.,  113  U.  S.  9,  26, 
28  L.  Ed.  889;  Morley  v.  Lake  Shore,  etc., 
R.  Co.,  146  U.  S.  162.  171.  36  L.  Ed.  925; 
Bergemann  v.  Backer,  157  U.  S.  655,  39 
L.  Ed.  845;  Remington  Paper  Co.  v.  Wat- 
son. 173  U.  S.  443,  451,  43  L.  Ed.  762,  re- 
affirmed in  Delahanty  v.  Pitkin,  199  U.  S. 
602,  50  L.  Ed.  328;  Archer  v.  Building  & 
Loan  Ass'n,  179  U.  S.  679,  45  L.  Ed.  383. 

Where  the  action  was  regularly  pro- 
ceeded with,  and  was  determined  against 
plaintiff  in  error  on  grounds  which  did 
not  involve  federal  questions,  it  is  not 
within  the  power  of  the  United  States  su- 
preme court  to  review  the  judgment  of 
the  supreme  court  of  the  state.  Rem- 
ington Paper  Co.  v.  Watson.  173  U.  S. 
443,  451.  43  L.  Ed.  reaffirmed  in  De- 
lahanty V.  Pitkin,  199  U.  S.  602,  50  L.  Ed. 
328;  Archer  v.  Building  &  Loan  Ass'n, 
179    U.    S.    679,   45    L.    Ed.    383. 

Defense  to  tax  proceeding. — It  is  not 
the  duty  of  this  court  to  determine 
whether  a  defense  to  a  tax  proceeding  is 
valid,  where  the  taxpayer  is  given  an  op- 
portunity to  present  the  said  defense,  and 
declined  so  to  do.  Hodge  v.  Muscatine 
County,    196    U.    S.    276,   49    L.    Ed.   477. 

21.  Burt  V.  Smith,  203  U.  S.  129,  51  L. 
Ed.  121,  citing  French  v.  Taylor.  199  U. 
S.  274.  50  L.  Ed.  189;  Rawlins  v.  Georgia, 
201    U.    S.    638.   50    L.    Ed.    899. 

A  decision  by  the  highest  state  court 
that  the  burden  rests  on  the  taxpayer  to 
show  the  invalidity  of  the  tax,  even  if 
erroneous,  is  not  one  of  a  federal  nature. 
Securit}^  Trust  Co.  v.  Lexington,  203  U. 
S.   323,   51    L.    Ed.   204. 

What  is  a  uniform  tax. — The  judgment 
of  a  state  court  holding  that  under  the 
state  constitution  a  tax  is  uniform  when 
it  is  equal  upon  all  persons  belonging  to 
the  described  class  upon  which  it  is  im- 
posed, will  not  be  reviewed  by  us  on  writ 
of  error  to  a  state  court.  Armour  Pack- 
ing Co.  V.  Lacy,  200  U.  S.  226,  50  L.  Ed. 
451. 

22.  French  v.  Taylor,  199  U.  S.  274. 
278,  30  L.  Ed.  189;  Rawlins  z'.  Georgia, 
201  U.  S.  638,  639,  50  L.  Ed.  899;  Burt  v. 
Smith.  203  U.  S.  129.  135,  51  L.  Ed.  121; 
Patterson  v.  Colorado,  205  U.  S.  454,  459, 
51    L.    Ed.    879. 


668  APPEAL  AND  BRKUR. 

amination  of  the  judgment  of  the  state  court,  upon  writ  of  error,  to  hold  that  the 
state  had  deprived,  or  was  about  to  deprive,  the  plaintiffs  of  their  property  with- 
out due  process  of  law.^-'^ 

bb.  Condemnation  Proceedings. — While  this  court  may  examine  proceedings 
had  in  a  state  court,  under  state  authority,  for  the  appropriation  of  private  prop- 
erty to  public  purposes,  so  far  as  to  inquire  whether  that  court  prescribed  any 
rule  of  law  in  disregard  of  the  owner's  right  to  just  compensation,  every  order  or 
ruling  of  the  state  court,  in  a  case  like  this,  may  not  be  reviewed  here,  notwith- 
standing our  jurisdiction,  for  some  purposes,  is  beyond  question.  Many  matters 
may  occur  in  tlie  progress  of  such  cases  that  do  not  necessarily  involve,  in  any 
substantial  sense,  the  federal  right  alleged  to  have  been  denied ;  and  in  respect  of 
such  matters,  that  which  is  done  or  omitted  to  be  done  by  the  state  court  may 
constitute  only  error  in  the  administration  of  the  law  under  which  the  proceed- 
ings were  instituted.^'* 

The  construction  of  a  law  of  a  state, that  it  was  competent  for  the  court 
to  try  and  determine  in  a  condemnation  proceeding,  an  adverse  claim  of  the  plain- 
tiff therein  to  an  interest  in  property  sought  to  be  condemned,  is  conclusive  on 
the  United  States  supreme  court. ^^  Where  it  is  objected  in  the  state  court  that 
a  state  statute  violates  the  fourteenth  amendment  of  the  constitution  of  the 
United  States,  in  that  the  owner  of  land  condemned  thereunder  might  be  deprived 
of  his  property  without  due  process  of  law,  because  the  act  does  not  provide  for 
any  notice  to  him  of  the  proceedings,  but  it  had  previously  been  decided  by  the 
state  courts  that  the  act,  projicrly  construed,  required  notice,  a  writ  of  error  wiH 
be  dismissed,  because  we  are  bound  to  accept  this  conclusion  of  the  state  court 
as  to  the  proper  construction  of  the  statute  of  the  state. 2*' 

Whether  a  judgment  upon  an  assessment  for  improvements  where  two 
members  of  a  general  board  created  by  statute  for  the  purpose  of  making  it,  had 
some  interest  in  some  of  the  property  subject  to  the  assessment,  was  a  void  or 
voidable  judgment,  is  a  proper  question  for  the  state  court  to  decide.  A  state 
court  has  the  right  to  place  its  own  construction  upon  its  own  judgments,  and 
where  it  holds  that  the  judgment  is  not  void  and  that  it  cannot  be  attacked  col- 
laterally, the  supreme  court  of  the  United  States  ought  to  follow  that  determina- 
tion.2'^ 

cc.  Regulation  of  Railroad  Rates. — This  court  should  not  review  the  judgment 
of  a  highest  court  of  a  state  afifirming  the  order  of  railroad  commission  fixing  fu- 
ture rates,  upon  the  ground  that  it  deprives  the  railroad  company  of  its  property 
without  due  process  of  law  or  denies  to  it  the  equal  protection  of  the  law,  spe- 

23.  Lent  v.  Tillson,  140  U.  S.  316,  331,  due  process  clause  of  the  fourteenth 
35  L.   Ed.   419.  amendment    to    the    constitution     of      the 

24.  Condemnation  proceedings.— Backus  United    States    and    impair     the      contract 

-.  Fort  Street  Union  Depot  Co.,  169  U.  S.  "ghts  of  the  plaintiff  m   error  as  a  stock- 

557,   565.   42   L.    Ed.   853;    Chicago,   etc.,    R.  holder.      This    raises    a    federal    question, 

Co.  V.   Chicago,   164   U.   S.   454,   41    L.   Ed.  and  a  motion  to  dismiss  will  therefore  be 

r,ji  denied.     Offield  v.  New  York,  etc.,  R.  Co., 

'     r.       .  ^-  r         •        -4.  u  „r        203    U.    S.    372,   51    L.    Ed.    231. 

Condemnation    of     minority     shares     of  w  ,         ^ 

stock.— Where   the   plaintiff   in   error   con-  25-    Hooker  v.    Los    Angeles,    188   U    b- 

tends    that    the    purpose    for     which      his  314,  319,  47   L.  Ed.  487.  reaffirmed  in   New 

stock   is    sought    to    be    obtained   under   a  York,  etc.,   R.   Co.  v.   Plymouth,   193   U.  b. 

stat«    statute    allowing   the    lessee    railway  668.   48   L.   Ed.   839. 

company,    who   was    the    owner    of    three-  26.     Baltimore    Traction    Co.     v.     Balti- 

fourths  of  the  stock  to  condemn  the  out-  more  Belt  R.  Co..  151  U.  S.  137,  38  L.  Ed. 

standing   shares   owned   by   a  person   who  102,    citing    Green   v.    Neal,    6    Pet.    291,   8 

refuses  to  agree  to  the  terms  of  purchase.  L.   Ed.  402;  Davie  v.  Briggs,  97  U.  S.  628, 

is  not  a  public  use;  that  the  defendant  in  24  L.   Ed.   1086;  Louisville,  etc..   R.   Co.  z'. 

error   has    the    power    and      authority      to  Mississippi,   133   U.   S.   587,   590,  33   L.   Ed. 

make   the   improvements   mentioned  in   its  784. 

application,  which  will  be  as  advantageous  27.    Newport  Light  Co.  v.  Newport.  151 

as  taking  the  stock;  and  that  the  pro\'eed-  U.    S.    527,    5.T9.   38   L.    Ed.   259;    Hibben  v. 

ings    and    statute    are    in    violation    of    the  Smith,   191   U.    S.   310.   324,   48   L.    Ed.   195. 


APPEAL  AND  ERROR. 


669 


cially  where,  by  the  law  of  the  state,  the  rates  established  by  commission  arc  to 
be  taken  in  all  courts  as  prima  facie  just  and  reasonable. =^8 

dd.  Election  of  Sta4e  Officers.—W'hQve  controversies  over  the  election  of  state 
officers  have  reached  the  state  courts  in  the  manner  provided  by,  and  been  there 
determined  in  accordance  with,  the  state  constitutions  and  laws,  the  cases  must 
necessarily  be  rare  in  which  the  interference  of  this  court  can  properly  be  ia- 
voked.29  A  judgment  of  the  court  of  appeals  of  a  state  denying  the  right  to  the 
office  of  governor  is  not  a  decision  against  a  title,  right,  privilege  or  immunity 
secured  by  the  constitution  of  the  United  States,  hence  a  writ  of  error  will  not  he 
to  a  state  court  to  review  such  decision,  because  of  a  deprivation  of  property  or 
vested  rights  without  due  process  of  law.^** 

Sufficiency  ©f  Hearing. — This  court  has  no  jurisdiction  to  review  the  judg- 
ment of  a  state  court  depriving  the  plaintifT  in  error  of  his  title  or  right  to  an  of- 
fice heid  under  a  statute  of  the  state,  on  the  ground  that  the  defendant  had  been 
deprived  of  his  property  without  due  process  of  law,  or  has  been  denied  the  equal 
protection  of  the  laws.  What  kind  and  how  much  of  a  hearing  the  officer  is  en- 
titled to  before  his  suspension  is  a  matter  for  the  state  legislature  to  determine/ 
having  regard  t©  the  constitution  of  the  state.  In  other  words,  the  decision  of  the 
state  court,  that  the  procedure  by  which  an  officer  has  been  suspended  or  removed 
from  office  is  regular  and  is  under  a  constitutional  and  valid  statute,  must  gener- 
ally be  conclusive  in  this  court. ^^ 


28.  Regulation  of  railroad  rates. — At- 
lantic Coast  Line  R.  Co.  r.  Florida,  203 
U.  S.  256,  51  L.  Ed.  174;  Seabord  Air- 
Line  R.  Co.  V.  Florida,  203  U.  S.  261,  51 
L.   Ed.    175. 

29.  Election  of  state  officers. — Taylor  v. 
Beckham.  178  U.  S.  548,  571,  44  L.  Hd. 
1187-. 

"In  Boyd  v.  Nebra.ska,  143  U.  S.  135, 
3€  L.  Ed.  163,  which  was  a  proceeding 
quo  warrant©,  in  which  the  supreme  court 
of  Nebraska  had  held  that  James  E.  Boyd 
had  not  been  for  two  years  preceding  his 
election  a  citizen  of  the  United  States, 
and  hence  that  vmder  the  constitution  of 
the  state  he  was  not  eligible  to  the  office 
of  governor,  this  court  took  jurisdiction 
because  the  conclusion  of  the  state  court 
involved  the  denial  of  a  right  or  privi- 
lege under  the  constitution  and  laws  of 
the  United  States,  upon  which  the  de- 
termination of  whether  Boyd  was  a  citi- 
zen of  the  United  States  or  not  depended, 
and  therefore  jurisdiction  to  review  a  de- 
cision against  such  right  or  privilege 
necessarily  existed  in  this  tribunal.  Mis- 
souri V.  Andriano,  138  U.  S.  496,  34  L.  Ed. 
iei2.  And  we  said  (p.  161):  'Each  state 
has  the  power  to  prescribe  the  qualifica- 
tions of  its  officers  and  the  manner  in 
which  they  shall  be  chosen,  and  the  title 
to  offices  sliall  be  tried,  whether  in  the 
judicial  courts  or  otherwise.  But  when 
the  trial  is  in  the  courts,  it  is  a  "case," 
nnd  if  a  defense  is  interposed  under  the 
constitution  or  laws  of  the  United  States, 
and  is  overruled,  then,  as  in  any  other 
case  decided  by  the  highest  court  of  a 
state,  this  court  has  jurisdiction  bv  writ 
of  error.'"  Taylor  v.  Beckham.  178' U.  S. 
548,   571.   44    L.    Ed.    1187. 

"Tn  Kennard  v.  Louisana.  92  U.  S.  480, 
23    L.    Ed.    478,    concerning    the    right    of 


Kennard  t©  the  office  of  associate  justice 
of  the  supreme  court  of  Louisiana,  ju- 
risdiction was  taken  on  the  ground  that 
the  constitutionality  of  the  statute  under 
which  the  disputed  title  to  office  was 
tried  was  drawn  in  question.  The  court, 
speaking  by  Mr.  Chief  Justice  WaJte, 
said:  'The  question  before  us  is, 
not  whether  the  courts  below,  having  ju- 
risdiction of  the  case  and  the  parties,  have 
followed  the  law,  but  whether  the  law,  if 
followed,  would  have  furnished  Kennard 
the  protection  guaranteed  by  the  consti- 
tution. Irregularities  and  mere  errors 
in  the  proceedings  can  only  be  corrected 
in  the  state  courts.  Our  authority  does 
not  extend  beyond  an  examination  of  the 
power  of  the  courts  below  to  proceed  at 
all.'  "  Taylor  v.  Beckham,  178  U.  S.  548, 
571,  44  L.  Ed.  1187.  See  Foster  v.  Kansas, 
112   U.    S.    201,   28    L.    Ed.   629. 

30.  Taylor  z'.  Beckham,  178  U.  S.  548, 
44  L.   Ed.   1187. 

31.  Wilson  i'.  North  Carolina,  169  U.  S. 
586,  42  L.  Ed.  865,  reaffirmed  in  Gates  v. 
Commissioners.  183  U.  S.  693,  46  L.  Ed. 
393. 

"In  Wilson  v.  North  Carolina,  169  U. 
S.  586,  592,  42  L.  Ed.  865,  the  governor  of 
North  Carolina  had  suspended  plaintiff  in 
error  as  railroad  commissioner  under  a 
statute  of  that  state,  and  the  state  su- 
preme court  had  held  the  action  of  the 
governor  a  valid  exercise  of  the  power 
conferred  upon  him.  and  that  it  was  due 
process  of  law  within  the  meaning  of  the 
constitution.  A  writ  of  error  from  this 
court  to  review  that  judgment  was 
granted,  and  on  hearing  was  dismissed. 
Mr.  Justice  Peckham,  in  delivering  the 
opinion  said:  'The  controversy  relates 
exclusively  to  the  title  to  a  state  office, 
created   by   a   statute   of  the   state,   and   t"- 


670 


APPEAL  AND  ERROR. 


ee.  Persons  Not  Parties  to  a  Proceeding. — A  decree  of  a  state  court  is  not  re- 
viewable by  the  supreme  court  of  the  United  States  upon  the  ground  that  it  de- 
prives a  corporation,  who  is  not  a  party  to  the  suit  in  which  it  is  rendered,  of  his 
property  without  due  process  of  law,  as  the  corporation  cannot  be  deprived  of 
property  rights  by  decree  in  a  case  to  which  it  is  not  made  a  party .22 

ff.  Denial  of  Right  to  Offer  Defenses. — This  court  cannot  be  called  upon  to 
conjecture  that  defenses  existed  which  were  not  made  and  to  decide  that  proceed- 
ings in  a  state  court  have  denied  due  process  of  law  because  defenses  were  denied, 
when  they  were  not  presented.  And  especially  must  that  be  so  where  the  court 
of  last  resort  of  the  state,  on  review  of  all  the  proceedings,  has  held  that  full  op- 
portunity to  make  every  defense  was  afforded.-"'-^ 

gg.  Jury  and  Jury  Trial. — Selection  of  Juries. — An  assignment  of  error 
which  avers  that  a  Louisiana  statute  is  in  conflict  with  the  fourteenth  amendment 
of  the  constitution  of  the  United  States,  because  such  law  confers  on  the  jury 


the  rights  of  one  who  was  elected  to  the 
c.ffice  so  created.     Those  rights  are  to  be 
measured  by  the   statute  and   by  the   con- 
stitution of  the  state,  excepting  in   so  far 
as    they    may    be    protected    by    any    pro- 
vision   of    the    federal     constitution.      Au- 
thorities  are   not   required   to   support   the 
general  proposition  that  in  the  considera- 
tion of  the  constitution  or  laws  of  a  state 
this   court   follows   the   construction   given 
to  those  instruments  by  the  highest  court 
of  the  state.     The   exceptions   to  this  rule 
do   not   embrace   the   case   now   before   us. 
We   are,    therefore,    concluded   by   the   de- 
cision   of    the    supreme    court    of     North 
Carolina    as    to    the    proper    construction 
of   the    statute   itself,   and     that      as      con- 
strued it  does  not  violate  the  constitution 
of  the  state.     The  only  question  for  us  to 
review  is  whether  the   state,  through   that 
action   of   its   governor   and   judiciary,  has 
deprived  the  plaintifif  in  error  of  his  prop- 
erty  without    due   process   of    law,    or    de- 
nied   to   him   the    equal   protection    of    the 
laws.      We   are   of  opinion   that  the   plain- 
tiff in  error  was  not  deprived  of  any  right 
guaranteed   to   him   by   the  federal   consti- 
tution,  by   reason   of   the   proceedings   be- 
fore the  governor  under  the  statute  above 
mentioned,    and    resulting    in    his    suspen- 
sion  from   office.      The   procedure   was    in 
accordance  with  the  constitution  and  laws 
of  the  state.     It  was   taken  under  a  valid 
statute    creating    a    state    office    in    a    con- 
stitutional  manner,  as  the   state  court  has 
held.      What    kind    and    how    much    of    a 
hearing    the    officer    should     have      before 
suspension  by  the  governor  was  a  matter 
for  the  state  legislature  to  determine,  hav- 
ing regard  to  the  constitution  of  the  state 
The   procedure   provided   by   a   valid   statt 
law   for   the   purpose   of   changing   the    in- 
cumbent of  a  state  office  will  not  in  gen- 
eral   involve    any   question   for   review   by 
this   court.     A   law  of  that  kind   does   not 
provide    for    the    carrying    out     and      en- 
forcement  of  the  policy  of  the  state  with 
reference   to   its   political   and   internal   ad- 
ministration,  and   a   decision   of   the    state 
court    in    regard    to    its    construction    and 
validity  will   generally  be  conclusive   here. 
The    facts    would    have    to    be    most    rare 


and  exceptional  which  would  give  rise  in 
a  case  of  this  nature  to  a  federal  ques- 
tion. *  *  *  In  its  internal  administration! 
the  state  (so  far  as  concerns  the  federal 
government)  has  entire  freedom  of  choice 
as  to  the  creation  of  an  office  for  purely 
state  purposes,  a»d  of  the  terms  upon 
which  it  shall  be  held  by  the  persons  fiH- 
ing  tlie  office.  And  in  such  matters  the 
decision  of  the  state  court,  that  the  pro- 
cedure by  which  an  officer  has  been  sits- 
pended  or  removed  from  office  was  regu- 
lar and  was  under  a  constitutional  and 
valid  statute,  must  generally  be  conclusive 
in  this  cowrt.  *  *  *  Upon  the  case  made 
by  the  plaintifif  in  error,  the  federal  ques- 
tion which  he  attempts  to  raise  is  so  un- 
founded in  substance  that  we  are  justified 
in  saying  that  it  does  not  really  exist; 
that  there  is  no  fair  color  for  claimfug 
that  his  rights  under  the  federal  consti- 
tution have  been  violated,  either  by  de- 
priving him  of  his  property  without  due 
process  of  law  or  by  denying  him  the 
equal  protection  of  the  laws.'  "  Approved 
in  Taylor  v.  Beckham,  178  U.  S.  548,  572. 
44  L.  Ed.  1187. 

•  32.  Persons  not  parties  to  a  proceed- 
ing.— Iron  Clif¥s  Co.  v.  Negaunee  Iron 
Co.,   197   U.   S.   463,  49  L.    Ed.   836. 

33.  Denial  of  right  to  offer  defenres. — 
Louisville,  etc.,  R.  Co.  v.  Schmidt,  li'7  U. 
S.  230.  S39,  44  L.  Ed.  747,  distiitguisliing 
Rees  V.  Watertown,  19  Wall.  107,  23  L. 
Ed.  72. 

A  railroad  company  appeared  in  a  state 
court  in  response  to  a  rule  to  show  wby 
it  should  rtot  pay  a  judgment,  pleaded  its 
set-ofT,  and  declared  that  its  answer  con- 
stituted a  full  response,  but  no  defense 
personal  to  itself  of  any  other  character, 
except  the  set-off,  was  pleaded  or  sug- 
gested in  any  form  whatever.  It  was 
held,  that  the  supreme  court  of  the 
United  States  cannot  presume  that  de- 
fenses existed  which  were  not  made  and 
decide  that  the  proceedings  in  the  state 
court  have  denied  due  process  of  law 
becaiise  defenses  were  denied.  Louis- 
ville, et<:.,  R.  Co.  v.  Schmidt,  177  U.  S. 
230,   238,   44   L.    Ed.   747. 


APPEAL  AND  ERROR. 


671 


commissioners  of  the  parish  of  New  Orleans  judicial  puwers  in  the  selection  of 
citizens  for  jury  service,  presents  no  fe(icral  question,  if  it  is  not  pretended  that 
the- accused  was  subjected  to  any  other  or  different  treatment,  in  respect  to  that 
feature  of  the  statute  than  that  which  prevails  in  olher  cases,  or  in  'the  trial  of 
white  citizens."-* 

The  mere  refusal  of  a  jury  trial,  in  and  of  itself  and  separated  from  all 
other  matters,  raises  no  federal  question. •**''' 

Mixed  Juries. — The  remedy,  where  citizens  of  the  African  race  have  been 
excluded  from  the  list  of  grand  and  petit  jurors,  is  for  the  accused  to  sue  out 
a  writ  of  error  from  this  court  to  the  highest  court  of  the  state  having  cognizance 
of  the  matter,  whose  judgment,  if  adverse  to  him  in  respect  to  any  rig, it.  privilege 
or  immunity,  specially  claimed  under  the  constitution,  or  laws  of  the  United  Stales, 
can  be  re-examined,  and  reversed,  affirmed  or  modified,  by  this  court  as  the  law 
requires.^^  But  where  a  motion  to  quash  an  incliclment  is  made  by  a  negro  oa 
the  ground  of  the  denial  of  the  equal  protection  of  the  laws  and  civil  righ.ts  as 
secured  to  him  by  the  constitution  of  the  United  States,  by  the  exclusion  of  ne- 
groes from  the  grand  jury,  but  the  record  fails  to  show  that  he  proved  or  otTered 


34.  Jury  and  jury  trial. — M^nrrav  v. 
Louisiana,    163  U.   S.   101.  41    L.   Ed.  87. 

35.  Walker  z'.  Sauvinet,  92  U.  S.  90,  2r! 
L.  Ed.  678;  Wilson  v.  North  Carolina.  16') 
U.  S.  586,  595.  42  L.  Ed.  86.j.  reaffirmed 
in  Gates  v.  Commissioners,  183  U.  S.  693, 
4'-.    L.    Ed.   393. 

Th-e  right  of  trial  by  j«ry  upon  the 
question  of  waiver  of  preliminary  ex- 
amination is  not  claimed  as  a  federal 
riclit  in  a  Ftate  court  by  a  plea  in  abate- 
ment, relating"  tliat  the  prosecution  is  in 
contravention  of  the  fourteenth  amend- 
ment, where  this  evidently  referred  to 
prior  paragraplis,  which  dwelt  on  the 
necessit}'  of  an  indictment  to  constitute 
due  process  of  law.  Bolln  z\  Nebraska. 
176  U.  S.  83.  44  L.  Ed.  383.  citing  Dewey 
V.  Des  Moines,  173  U.  S.  193,  43  L.  Ed. 
66.5. 

26.  In  re  Wood.  140  U.  S.  278,  35  L. 
Ed.   .-.05. 

The  exclusion,  because  of  their  race 
and  color,  of  citizens  of  African  descent 
from  the  grand  jury  that  found,  and  from 
the  petit  ji;ry  that  was  summoned  to  trj', 
the  indictment,  if  made  by  the  jury  com- 
missioners, without  authority  derived 
from  the  constitution  and  laws  of  the 
state,  was  a  violation  of  the  prisoner's 
rights,  under  the  constitution  and  laws  of 
the  United  States,  which  the  trial  court 
was  bound  to  redress;  and  the  remedy 
for  any  failure  in  that  respect  is  ulti- 
mately in  this  court  upon  writ  of  error. 
Neal  V.  Delaware.  103  U.  S.  370.  26  L.  Ed. 
.5flT. 

This  court  has  power  to-  review  the  ac- 
tion of  a  state  court  in  disallowing  the 
petition  by  the  accused  to  have  the  case 
removed  into  the  circuit  court  of  the 
United  States  upon  the  allegation  that 
the  petitioner  was  a  negro,  and  that  per- 
sons of  African  descent  were,  by  reason 
of  their  race  and  color,  excluded  by  the 
jury  commissioners  from  service  as  grand 
and  petit  jurors.  Murray  ?'.  Louisiana, 
163  U.  S.  101,  41  L.  Ed.  87;  Neal  v.  Dela- 


ware. 103  U.  S.  370,  26  L.  Ed.  567;  Gibson 
r.  Mississippi,  162  U.  S.  565,  40  L.  Ed. 
1075. 

.\  person  of  African  descent  being  jh- 
dicted  in  the  state  court  for  a  felony  com- 
mitted after  the  grand  jury  was  im- 
paneled moved  to  quash  the  indictment 
before  he  had  been  arraigned  or  pleaded 
to  the  indictment.  The  motion,  besides 
stating  that  the  defendant  was  of  the 
African  race,  alleged  that  the  jury  com- 
missioners selected  no  persons  of  .\fri- 
can  descent  to  serve  on  the  grand  jury, 
but  exclud-ed  from  the  list  all  such  persons 
because  of  their  race  and  color.  The  bill 
of  exceptions  states  that  "after  reading 
said  motion,  the  defendant  asked  leave  of 
the  court  to  introduce  witnesses,  and  of- 
fered to  introduce  witnesses,  to  prove  and 
sustain  the  allegations  therein  made,  but 
the  court  refused  to  hear  any  evidence  in 
support  of  the  said  motion  and  thereupan 
overruled  the  same,  without  investigating 
into  the  truth  or  falsity  of  the  allega- 
tions of  said  motion;  to  which  action  of  the 
court  the  defendant  then  and  there  ex- 
cepted." The  defendant,  after  conviction 
and  sentence,  appealed,  to  the  highest  court 
of  the  state,  in  which  a  decision  in  the 
case  could  be  had,  which  affirmed  the 
judgment  and  denied  a  motion  for  re- 
hearing. That  court  affirmed  the  judg- 
ment upon  the  assumption  that  no  evi- 
dence was  tendered  by  the  defendant  in 
support  of  the  allegations  in  the  motion 
to  quash.  It  was  held,  that  this  assump- 
tion is  disproved  by  the  statements  in 
the  bill  of  exceptions  of  what  took  place 
in  the  trial  court;  the  necessary  con- 
clusion is  that  the  defendant  has  been 
denied  a  right,  duly  set  up  and  claimed 
•by  him,  under  the  constitution  and  laws 
of  the  United  States;  and  therefore  the 
supreme  court  of  the  United  States  has 
jurisdiction  to  review  the  judgment  of  the 
state  court  which  is  reversed  and  case  re- 
manded for  further  proceedines.  Carter 
V.  Texas,   177   U.  S.  442,  ^4  L.   Ed.  839. 


672  APPEAL  AND  ERROR. 

to  prove  the  truth  of  the  allegations  as  contained  in  the  motion,  the  judgment 
will  not  be  disturbed.'" 

hh.  Deniai  &f  Rights  to  Foreign  Corporations. — A  decisitHi  by  the  higiiest 
state  court  that  a  foreign  mutual  insurance  company,  which  had  not  been  author- 
ized to  do  busii'iess  i«  Michigan  as  provided  by  its  statutes,  could  not  maintain  a 
suit  to  collect  assessments  due  on  a  policy  issued  by  one  of  its  agents  in  another 
state  on  request  of  an  insurance  broker  of  Michigan  who  was  miable  to  place  the 
whole  line  in  his  own  authorized  companies,  involves  no  federal  question.** 

ii.  Erroneous  Decisions  of  State  C&nrts. — When  the  parties  have  been  fuliy 
heard  in  the  regular  course  of  judicial  proceedings,  an  erroneous  decision  of  a 
state  court  does  not  deprive  the  unsuccessful  party  of  his  property  without  dtie 
fwocess  of  law,  within  the  fourteenth  amendment  of  the  constitution  of  the  United 
States. ^^  An-d  merely  because  the  reasoning  by  which  the  highest  state  court  has 
been  led  to  decide  adversely  to  his  rights  is  inconsistent  with  the  reasoning  pre- 
viously anrkOMnced  by  the  same  court  in  former  cases,  this  does  not  amount  to 
a  denial  of  equal  protection  of  the  laws.**^  The  decision  of  a  court  upon  a  ques- 
tion of  law,  however  wrong  and  however  contrary  to  previous  decisions,  is  net 
an  infraction  of  the  fourteenth  amendment  merely  because  it  is  wrong  or  because 
earlier   decisions   are   reversed.*^ 

jj.  Showing  as  to  Jurisdiction. — In  General. — Where  there  is  nothing  in  the 
record  adequately  showing  that  the  state  courts  were  kd  to  suppose  that  any 
cl"aim  under  the  fourteenth  amendment  to  the  constitution  of  the  United  States 
was  made  by  the  plaintiffs  in  error,  or  that  any  ruling  involved  a  d^sion  against 
a  right  set  up  by  them  under  that  instrument,  such  decision  is  not  reviewable 
by  this  cotjrt.*^  But  although  the  inhibition  of  the  14th  amendment  of  the  consti- 
tution agaiast  the  deprivation  of  property  without  due  process  of  law,  is  not  dis- 
tin<:tly  passed  upon  in  the  opinion  of  the  court,  yet  this  court  has  jurisdiction  if 
it  is  evident  that  the  court  could  not  have  reached  the  decision  without  denying 
this  right.* 3 

Claiming  Right  in  Motion  for  New  Trial. — This  court  has  jurisdiction  to  re- 
examine the  final  judgment  of  the  highest  state  court  on  a  writ  of  error  under  that 
part  ef  the  fourteenth  amendment  declaring  that  no  state  shaH  deprive  any  per- 
son of  his  property  without  due  process  of  law,  or  deny  the  equal  protection  of 
the  laws  to  any  person  within  its  jurisdiction,  where  the  riglit  in  question  is  dis- 
tinctly asserted  by  the  defendant  in  it?  written  motion  to  set  aside  the  verdict  and 
grant  a  new  trial  m  eminent  domain  proceedings,  in  which  motion  for  a  new  trial 
were  the  following  grounds :  "That  the  several  rulings  of  the  court  in  excluding 
proper  evidence  for  the  defendant,  the  statute  under  which  the  proceedings  for 
condemnation  were  instituted,  and  the  verdict  of  the  jury  and  the  judgment  based 
upon  it,  were  all  contrary  to  the  fourteenth  amendment  declaring  that  no  state 
shall  deprive  any  person  of  life,  libertv  or  property  without  due  process  of  law, 
nor  deny  to  any  person  within  its  limits  the  equal  protection  of  the  laws,"  such 
motion  for  a  new  trial  being  overruled,  because  the  trial  court,  in  overruling  the 

37.  Brownfield  v.  South  Carolina,  189  U.       L.   Ed.  91. 

S.  426,  47  L.   Ed.  882.  40.    Lombard   v.    West    Chicago,    181   U. 

38.  Denial  of  rights  to  foreign  corpora-       S.  33,  44,  45   L.  Ed.  731. 

tk>ns. — Swing  v.  Weston  Lumber  Co..  205  41.  Patterson  v.  Colorado.  205  LT.  S.  454, 

U.    S.   275,    278,    51    L.    Ed.    709.    citing    Chi-  461,   51    L.   Ed.   87^. 

cago.   etc.,    R.    Co.   v.   McGuire,    196   U.    S.  42.  Showing  as  to  jurisdiction.— Hooker 

128,  132.  49  L.  Ed.  413;  Allen  v.  Allegheny  ,^.     i^qs   Angeles.    188   U.    S.   314,   47   L.    Ed. 

Co..   196  U.   S.   458,   49  L.   Ed.   551.  487.   reaffirmed  in    New   York,   etc.,   R.   Co. 

39.  Walker  v.  Saovinet,  92  U.  S.  90.  23  v.  Plymouth,  193  U.  S.  6S8,  48  L.  Ed.  839, 
L  Ed.  678;  Head  v.  Amoskeag  Mfg.  Co.,  citing  Sayward  v.  Denny,  158  U.  S.  180. 
113    U.  S.  9,  26,    28   L.    Ed.   889;    Morley  v.  39   L.   Ed.  941. 

Lake    Shore,    etc.,    R.    Co.,    146   U.    S.    162,  43.     Kaukauna     Water     Power     Co.     v. 

171,  36   L.   Ed.  925;      Bergeman  v.   Backer,  Green    Bay,   etc.,   Co..   14^  U.   S.  254,  35  L 

157    U.    S.    655,    39    L.    Ed.    845;       Central  Ed.    1004. 
Land  Co.  v.  Laidlev,  159  U.  S.  103.  112,  40 


AFFBAL  AXD  ERROR. 


673 


?n.otion  for  a  new  trial  and  entering  judgment,  necessarily  held  adversely  to  these 
claims  of  federal  right.-*^ 

But  the  general  allegation  that  the  decree  was  rendered  against  dead  per- 
sons as  well  as  in  the  absence  of  necessary  parties  who  had  no  notice  of  the  suit, 
and,  therefore,  no  opportunity  to  be  heard  in  vindication  of  their  rights,  does  not 
meet  the  statutory  requirement  that  the  final  judgment  of  a  state  court  mav  be 
re-examined  here  if  it  denies  some  title,  right,  privilege  or  immunity  "specially  set 
up  or  claimed"  under  the  constitution  or  authority  of  the  United  States.  It  can- 
not be  said  that  the  plaintiffs  specially  set  up  or  claimed  the  protection  of  that 
amendment  against  the  operation  of  that  decree  by  simply  averring — without  re- 
ferring to  the  constitution  or  even  adopting  its  phraseology — that  the  decree  was 
passed  against  deceased  persons  as  well  as  in  the  absence  of  necessary  or  in- 
dispensable parties.^'' 

Where  Decision  Rests  on  Principles  of  General  or  Local  Law. — Ac- 
cording to  well-settled  principles,  where  the  decision  of  the  state  rests  upon  prin- 
ciples of  general  or  local  law,  it  cannot  be  reviewed  here.^^ 


44.  Chicago,  etc..  R.  Co.  v.  Chicago,  164 
U.  S.  454,  41  L.  Ed.  511.  distinguished  in 
Harding  v.  Illionois,  196  U.  S.  78.  87,  49 
L.   Ed.   394. 

45.  Oxley  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  654,  41  L.  Ed.  1149.  reaf- 
firmed in  Harkins  r.  Ashville,  180  U.  S. 
635,  45  L.  Ed.  709;  Baldwin  v.  County 
Commissioners.  168  U.  S.  705,  42  L.  Ed. 
1213;  Tompkins  v.  Cooper,  170  U.  S.  703. 
42  L.  Ed.  1217;  Mutual  Life  Ins.  Co.  z\ 
Kirchoflf.  169  U.  S.  103.  110.  42  L.  Ed.  677; 
Chappell  r.  Stewart.  169  U.  S.  733,  42  L. 
Ed.  1207,  1215;  Fen  wick  Hall  Co.  v.  Old 
Saybrook.    169   U.    S.    734,    42   L.    Ed.    1215. 

46.  "In  Sayward  v.  Denny.  158  U.  S.  180, 
39  L.  Ed.  941,  after  stating  the  contention 
of  plaintiff  in  error  that  the  effect  of  the 
judgment  of  the  state  court  was  'to  de- 
prive him  of  his  property  without  due 
process  of  law.  or  to  deny  him  the  equal 
protection  of  the  laws,  and  amounted  to 
a  decision  adverse  to  the  right,  privilege, 
or  immunity  of  plaintiff  in  error  under  the 
constitution  of  being  protected  from  such 
deprivation  or  denial."  we  said:  "But  it 
nowhere  affirmatively  appears  from  the 
record  that  such  a  right  was  set  up  or 
claimed  in  the  trial  court  when  the  de- 
murrer to  the  complaint  was  overruled, 
or  evidence  admitted  or  excluded,  or  in- 
structions given  or  refused,  or  in  the 
supreme  court  in  disposing  of  the  rul- 
ings below.  =f=  *  *  We  are  not  called 
on  to  revise  these  views  of  the  principles 
of  general  law  considered  applicable  to 
the  case  in  hand.  It  is  enough  that  there 
is  nothing  in  the  record  to  indicate  that 
the  state  courts  were  led  to  suppose  that 
plaintiff  in  error  claimed  protection  under 
the  constitution  of  the  United  States  from 
the  several  rulings,  or  to  suspect  that 
each  ruling  as  made  involved  a  decision 
:;gainst  a  right  specially  set  up  under  that 
instrument.  And  we  may  add  that  the 
decisions  of  state  tribunals  in  respect  of 
matters  of  general  law  cannot  be  reviewed 
on  the  theory  that  the  law  of  the  land  is 

1  U  S  Eqc— 43 


violated  unless  their  conclusions  are  ab- 
solutely free  from  error.'  "  Hooker  v. 
Los  Angeles,  188  U.  S.  314.  320,  47  L.  Ed. 
487,  reaffirmed  in  New  York,  etc.,  R.  Co. 
V.  Plymouth,   193  U.   S.  668,  48  L.  Ed.  839. 

Where  the  validity  of  a  state  statute  is 
not  drawn  in  question  in  a  state  court,  bot 
the  jurisdiction  of  the  supreme  court  of 
the  United  States  to  review  the  judgment 
of  a  state  court  is  invoked  upon  the 
ground  that  the  acts  of  the  state  officers, 
acting  under  the  authority  of  the  statute, 
deprived  the  party  of  due  process  of  law, 
a  federal  question  is  not  involved,  and  the 
supreme  court  of  the  United  States  has 
no  jurisdiction.  French  v.  Taylor.  199  U. 
S.  274,  50  L.  Ed.  189,  citing  Castillo  v. 
McConnico.  168  U.  S.  674.  42  L.  Ed.  622; 
Lehigh  z:  Green,  193  U.  S.  79,  48  L.  Ed. 
623,  reaffirmed  in  South  Carolina  i'.  Jen- 
nings, 204  U.   S.  667,  668.   51    L.   Ed.   671. 

Validity  of  tax  deed. — Where  a  plaintiff 
in  error  asserts  the  invalidit}^  of  a  tax 
deed  in  that  the  names  of  the  real  owners 
of  the  property  were  not  given  and  the 
name  of  a  person  was  given  who  was  not 
such;  that  the  return  of  the  assessor  was 
insufficient;  that  the  certificate  of  the 
county  auditor  was  not  attached  to  each 
book  containing  a  tax  list.  etc..  but  the 
plaintiff  in  error  says  in  his  brief  that  he 
does  not  contend  that  the  act  itself  is  not 
sufficient  to  give  due  process,  but  insists 
that  the  manner  of  observance  of  that  act 
is  want  of  due  process;  in  other  words, 
that  the  act  has  not  been  complied  with, 
but  the  state  supreme  court  held,  that  the 
giving  the  name  of  the  owner  was  not  es- 
sential to  the  validity  of  the  assessment, 
that  the  county  officers  and  defendants  in 
error  fully  complied  with  the  law.  this  is  a 
determination  of  questions  ot  local  faw  or 
of  fact,  not  in  themselves  reviewable  here. 
French  v.  Taylor.  199  U.  S.  274.  50  L.  Ed. 
189,  citing  Castillo  v.  McConnico,  168  U. 
S.  674,  42  L.  Ed.  622;  Leigh  v.  Green. 
193  U.   S.   79,  48   L.    Ed.  ^623. 


674 


APPEAL  AND  ERROR. 


Determination  of  Question. — Upon  a  writ  of  error  to  review  the  judgment  of 
the  highest  court  of  a  state  upon  the  ground  that  the  judgment  was  against  a 
right  claimed  under  the  constitution  of  the  United  States,  this  court  is  no  more 
bound  by  that  court's  construction  of  a  statute  of  the  territory,  or  of  the  state,  when 
the  question  is  whether  the  statute  provided  for  the  notice  required  to  constitute 
due  process  of  law,  than  when  the  question  is  whether  the  statute  created  a  con- 
tract which  has  been  impaired  by  a  subsequent  law  of  the  state,  or  whether  the 
original  liability  created  by  the  statute  was  such  that  a  judgment  upon  it  has  not 
been  given  due  faith  and  credit  in  the  courts  of  another  state.  In  every  such  case, 
this  court  must  decide  for  itself  the  true  construction  of  the  statute^"  On  the 
other  hand  if  the  essential  requirements  of  full  notice  and  an  op;)ortunity  to  defend 
were  present,  the  supreme  court  of  the  United  States,  in  reviewing  a  judgment 
of  a  state  supreme  court  on  writ  of  error,  will  accept  the  interpretation  given  by 
the  state  court  as  to  the  regularity  under  the  state  statute  of  the  practice  pursued 
in  the  particular  case.^^ 

(18)  Denial  of  Rights  Claimed  under  Treaties. — In  General. — Where  a  right 
is  set  up  and  claimed  under  a  treaty,  and  a  decision  of  the  highest  state  court  is 
against  such  right,  this  presents  a  question  for  the  jurisdiction  of  this  court  un- 
der the  25th  section  of  the  judiciary  act  of  1789,  which  is  reproduced  in  §  709 
of  the  Revised  Statutes,^ ^  provided  the  party  claims  title  for  himself  and  not  for 


47.  Huntington  v.  Attrill,  146  U.  S.  657, 
684,  36  L.  Ed.  1123;  Mobile,  etc.,  R.  Co.  v. 
Tennessee.  153  U.  S.  486,  492,  495.  38  L. 
Ed.  793;  Scott  v.  McNeal,  154  U.  S.  34, 
45,    38    L.    Ed.    896. 

This  court  is  not  concluded  by  the  con- 
struction of  the  highest  court  of  a  state 
as  to  whether  a  tax  is  or  is  not  a  license 
to  sell  cigarettes  within  the  meaning  of 
a  certain  statute  of  Iowa,  yet  it  will  ac- 
cept such  opinion  unless  it  is  made  to  ap- 
pear that  it  is  clearly  wrong.  Hodge  v. 
Muscatine  County,  196  U.  S.  276.  49  L. 
Ed.   477. 

48.  Simon  z'.  Craft,  182  U.  S.  427,  437, 
45   L.    Ed.   1165. 

The  supreme  court  of  the  United  States 
will  accept  as  conclusive  the  ruling  of 
the  supreme  court  of  Alabama  that 
the  jury  which  passes  on  the  issues  in 
a  lunacy  proceeding  was  a  lawful 
jury,  that  the  petition  was  in  com- 
pliance with  the  statute,  and  that  the  as- 
serted omissions  in  the  recitals  in  the  ver- 
dict and  order  thereon  were  at  best  but 
mere  irregularities  which  did  not  render 
void  the  order  of  the  state  court,  appoint- 
ing a  guardian  of  the  alleged  lunatic's 
estate.  Simon  v.  Craft,  182  U.  S.  427, 
437.   45   L.    Ed.   1165. 

49.  Denial  of  rights  claimed  under 
treaties.— Burthe  v.  Denis,  133  U.  S.  514, 
33  L.  Ed.  768;  Davis  v.  Police  Jury,  9 
How.  280,  13  L.  Ed.  138;  Martin  v.  Hun- 
ter, 1  Wheat.  304,  4  L.   Ed.  97. 

If  the  validity  or  construction  of  a 
treaty  of  the  United  States  is  drawn  in 
question,  and  the  decision  is  against  its 
validity,  or  the  title  specially  set  up  by 
either  party,  under  the  treaty,  this  court 
has  jurisdiction  to  ascertain  that  title  and 
determine  its  legal  validity,  and  is  not 
confined  to  the  abstract  construction  of 
the    treaty    itself.      Martin    v.    Hunter,    1 


Wheat.  304,  305,  4  L.   Ed.  97,  citing  Smith 
V.    Maryland.   6   Cranch   286,   3   L.   Ed.  225. 

The  decisions  of  a  state  court  upon  the 
merits  of  a  controversy  between  two  par- 
ties, one  of  whom  had  sold,  and  the  other 
purchased,  an  interest  in  lands  which,  it 
was  thought,  could  be  acquired  as  Indian 
reservations  under  a  treaty  with  the 
United  States,  cannot  be  reviewed  by  this 
court  under  the  25th  section  of  the  judi- 
ciary act.  The  party  against  whom  the 
state  court  decided,  instead  of  setting  up 
an  interest  under  the  treaty,  expressly 
averred  that  no  rights  had  been  obtained. 
Maney  v.  Porter,  4  How.  55,  11  L.  Ed.  873. 

A  writ  of  error  lies  to  the  highest  court 
of  a  state,  in  a  cas€  where  the  question 
is  whether  a  confiscation  under  the  law  of 
the  state  was  complete  before  the  treaty 
of  peace  with  Great  Britain.  Smith  v. 
Maryland,    6    Cranch    286,    3    L.    Ed.    225. 

A  right  claimed  under  an  extradition 
treaty  in  a  state  court  and  denied,  raises 
a  federal  question  which  this  court  can 
review  by  writ  of  error  to  the  state  court. 
But  the  effect  of  a  forcible  transfer  of  the 
accused  upon  the  right  of  the  state  court 
to  try  him,  is  the  province  of  the  state 
court  to  decide,  and  which  presents  no 
question  for  review  by  this  court.  Ker  V. 
Illinois,  119  U.  S.  436,  30  L.  Ed.  421. 

Where  the  authority  of  the  governor  of 
the  state  to  issue  a  warrant  for  the  ex- 
tradition of  a  criminal  is  drawn  in  ques- 
tion in  the  highest  court  of  the  state,  upon 
the  ground  that  it  is  repugnant  to  the  con- 
stitution of  the  United  States,  and  the  de- 
cision is  in  favor  of  the  validity  of  the 
authority  so  exercised,  this  is  one  of  _  the 
cases  in  which  the  writ  of  error  is  given 
in  the  25th  section  of  the  judiciary  act  of 
1789.  Holmes  v.  Jennison.  14  Pet.  540, 
562,    to   U.   T^d.    579. 

The  third  article  of  the  treaty  of  Louis- 


APPEAL  AXD  ERROR. 


675 


a  third  person.-^" 

Treaties  with  the  Indians. — A  denial  by  a  state  court  of  a  right  claimed  un- 
der any  treaty  with  the  Indians  raises  a  federal  question  which  may  be  reviewed 
by  this  court.-^^ 


iana  stipulated  for  the  admission  of 
Louisiana  into  the  Union,  and  it  obviously 
contemplates  two  objects;  one  that  stated, 
and  the  other,  that  until  that  admission,  the 
inhabitants  of  the  ceded  territory  shall  be 
protected  in  the  enjoyment  of  their  lib- 
erty, property  and  religion.  Had  any  of 
these  rights  been  violated  while  the  stipu- 
lation continued  in  force,  the  individual 
supposing  himself  to  be  injured  might 
have  brought  his  case  into  this  court,  un- 
der the  twenty-fifth  section  of  the  judi- 
ciary act.  New  Orleans  z).  De  Armas,  9 
Pet.  224,  9  L.  Ed.  109.  followed  in  Iowa 
V.  Rood,  187  U.  S.  87,  93,  47  L.   Ed.  86. 

But  this  stipulation  ceased  to  operate 
when  Louisiana  became  a  member  of  the 
Union,  and  its  inhabitants  were  "admitted 
to  the  enjoyment  of  all  the  rights,  advan- 
tages and  immunities  of  citizens  of  the 
United  States."  The  right  to  bring  ques- 
tions of  title  decided  in  a  state  court  be- 
fore this  tribunal,  is  not  classed  among 
those  immunities.  The  inhabitants  of 
Louisiana  enjoy  all  the  advantages  of 
American  citizens,  in  common  with  their 
l)rethren  in  their  sister  states,  when  their 
titles  are  decided  by  the  tribunals  of  the 
state.  The  act  of  congress  admitting 
Louisiana  into  the  Union,  carries  into  ex- 
ecution the  third  article  of  the  treaty  of 
cession;  and  cannot  be  construed  to  give 
appellate  jurisdiction  to  the  court  over 
all  questions  of  title  between  the  citizens 
of  Louisiana.  New  Orleans  v.  DeArmas, 
9  Pet.   224.  9    L.    Ed.   109. 

The  treaty  by  which  Louisiana  was 
ceded  to  the  United  States  recognized 
complete  grants,  issued  anterior  to  the 
cession,  and  a  decision  of  a  state  court 
against  the  validity  of  a  title  set  up  under 
such  a  grant,  would  be  subject  to  revisal 
by  this  court  under  the  35th  section  of  the 
judiciary  act.  But  if  the  state  court  only 
applies  the  local  laws  of  the  state  to  the 
construction  of  the  grant,  it  is  not  a  de- 
cision against  its  validity,  and  this  court 
has  no  jurisdiction.  McDonogh  v.  Mil- 
laudon,  .3   How.  693,  11    L.   Ed.  787. 

Treaty  of  Gaudalupe  Hidalgo. — In  Phil- 
lips V.  Mound  City  .^.ss'n.  124  U.  S.  605, 
•610,  31  L.  Ed.  588,  it  was  ruled  that  the 
adjudication  by  the  highest  court  of  a 
state  that  certain  proceedings  before  a 
Mexican  tribunal,  prior  to  the  treaty  of 
Gaudalupe  Hidalgo,  was  insufficient  to 
affect  the  partition  of  a  tract  of  land  be- 
fore that  time  granted  by  the  Mexican 
government,  which  grant  was  confirmed 
under  the  act  of  March  3,  1851,  presented 
no  federal  question;  and  Mr.  Chief  Justice 
Waite,  delivering  the  opinion  of  the 
<'ourt,  said:  "Article  VIII  of  the  treaty 
protected     all     existing     property     rights 


within  the  limits  of  the  ceded  territory, 
but  it  neither  created  the  rights  nor  de- 
fined them.  Their  existence  was  not 
made  to  depend  on  the  constitution,  laws, 
or  treaties  of  the  United  States.  There 
was  nothing  done  but  to  provide  that  if 
they  did  in  fact  exist  under  Mexican  law,  or 
by  reason  of  the  action  of  Mexican  author- 
ities, they  should  be  protected.  Neither 
was  any  provision  made  as  to  the  way  of 
determining  their  existence.  All  that  was 
left  by  implication  to  the  ordinary  judi- 
cial tribunals.  Any  court,  whether  state 
or  national,  having  jurisdiction  of  the 
parties  and  of  the  subject  matter  of  the 
action,  was  free  to  act  in  the  premises." 
The  case  is  in  point  and  is  decisive.  Mar- 
tin V.  Hunter,  1  Wheat.  304.  4  L.  Ed.  97, 
is  not  to  the  contrary,  for  there  the  plain- 
tiff claimed  under  the  treaty  of  1783,  and 
the  state  court  decided  against  the  title 
thus  set  up.  California  Powder  Works 
V.  Davis.  151  U.  S.  389,  395,  38  L.  Ed.  206. 

50.  Must  claim  title  for  himself.— In  an 
action  of  ejectment  between  two  citizens  of 
Maryland,  for  a  tract  of  land  in  Mary- 
land, if  the  defendant  set  up  an  outstand- 
ing title  in  a  British  subject  which  he 
contends  is  protected  by  the  treaty,  and 
therefore  the  title  is  out  of  the  plaintiff; 
and  the  highest  state  court  in  Maryland 
decides  against  the  title  thus  set  up;  it  is 
not  a  case  in  which  a  writ  of  error  can  lie 
to  the  supreme  court  of  the  United  States. 
It  is  not  "a  case  arising  under  a  treaty." 
The  judiciarj'  act  must  be  restrained  by 
the  constitution  of  the  United  States. 
Owings  V.  Norwood,  5  Cranch  344,  3  L. 
Ed.   120. 

51.  Treaty  with  Indians. — Pickering  v. 
Lomax.  145  U.   S.  310,  36  L.   Ed.  716. 

As  a  case  arises  under  the  constitution 
or  laws  of  the  United  States,  whenever 
its  decision  depends  upon  the  correct  con- 
struction of  either,  Cohens  v.  Virginia,  6 
Wheat.  264,  379,  5  L.  Ed.  257;  Osborn  v. 
Bank  of  the  United  States.  9  Wheat.  738, 
824,  fi  L.  Ed.  204;  so  a  case  arising  or 
growing  out  of  a  treaty  is  one  involving 
rights  given  or  protected  by  a  treaty. 
Owings  V.  Norwood,  5  Cranch  344,  343,  3 
L.  Ed.  120.  The  settlement  of  a  contro- 
versy arising  or  growing  out  of  these  In- 
dian treaties  or  the  laws  of  congress  re- 
lating thereto,  and  the  determination  of 
what  sum,  if  any,  might  be  justly  due  un- 
der them,  certainly  does  not  include  a 
claim  which  could  only  be  asserted  by  dis- 
regarding the  treaties  or  laws,  or  holding 
them  inoperative  on  the  ground  alleged. 
United  States  f.  Old  Settlers,  148  U.  S. 
427,  468,  37  L.  Ed.  509. 

.-Xn  indictment  and  prosecution  draw- 
ing  in   question  a   treaty  with   the   Chero- 


676 


APPEAL  AND  ERROR. 


Showing  as  to  Jurisdiction. — But  it  is  not  intended,  nor  to  be  understood, 
that  the  question,  material  to  the  decision  arrived  at,  must  be  confined  exclusively 
and  specially  to  the  construction  of  the  treaty  in  order  to  give  the  jurisdiction,  as 
this  would  be  too  narrow  a  view  of  it.  Points  may  arise  growing  out  of,  an' 
ronn<-rted  with  ti^*-  s^eneral  question,  and  so  blended  wnth  it  as  not  to  be  separate*'!. 
and  therefore,  falling  equally  within  the  decision  contemplated  by  the  25th  sec- 
.tion.'*^  It  must  appear,  however,  that  a  construction  of  the  treaty  actually  arose, 
noL  that  it  might  iiave  arisen.-^^  It  must  appear  from  the  record,  and  not  from  a 
report  of  the  judge  trying  the  case  at  nisi  prius,  which  is  not  a  part  of  the  record, 
that  the  validity  uf  a  treaty  was  drawn  in  question.^-*  The  treaty  need  not  be 
spread  of  record,  but  the  record  must  show  a  complete  title  under  the  treaty,  and 
that  the  judgment  of  the  court  is  in  violation  of  that  treaty .^^  A  false  allegation 
in  the  record  that  the  treaty  has  been  misconstrued  will  not  give  the  supreme 
court  jurisdiction.^^ 


kee  nation  of  Indians  is  within  the  ap- 
pellate jurisdiction  of  the  United  States 
supreme  court.  Worcester  z'.  Georgia,  6 
Pet.   .515,  8   L.   Ed.   483. 

52.  Smith  v.  Maryland.  6  Cranch  286,  3 
L.  Ed.  225;  Martin  v.  Hunter,  1  Wheat. 
304,  355.  4  L.  Ed.  97;  Williams  v.  Oli- 
ver. 12  How.  Ill,  124,  13   L.   Ed.  921. 

53.  Ocean  Ins.  Co.  v.  PoUeys,  13  Pet. 
157,  10  L.  Ed.  105;  Coons  v.  Gallagher, 
15  Pet.  18,  10  L.  Ed.  645.  646;  Armstrong 
V.  The  Treasurer,  16  Pet.  281,  10  L.  Ed. 
965;  Mills  v.  Brown,  16  Pet.  525.  10  L. 
Ed.  1055;  McDonogh  v.  Millaudon,  3 
How.  693,  705,  11  L.   Ed.  787. 

Where  on  a  writ  of  error  to  a  state 
court  it  is  claimed  that  the  parties  have 
been  denied,  by  the  decision  of  the  court 
below,  rights  guaranteed  to  them  by  trea- 
ties between  the  United  States  and  their 
respective  countries,  if  no  such  question 
was  made  and  decided  in  the  court  below, 
it  cannot  be  raised  in  this  court  for  the 
first  time.  Spies  v.  Illinois.  123  U.  S.  131, 
31   L.  Ed.  80. 

The  record  must  show  a  complete  ti- 
tle under  the  treaty,  and  a  decision  against 
its  validity.  Hickie  v.  Starke,  1  Pet.  94, 
T  L.  Ed.  67;  Maney  v.  Porter,  4  How. 
55,  11   L.  Ed.  873. 

In  Gill  V.  Oliver,  11  How.  529,  545.  13 
L.  Ed.  799,  on  error  to  the  court  of  ap- 
peals of  Maryland,  it  was  held,  where  an 
award  had  been  obtained  under  a  treaty 
with  Mexico  and  both  parties  claimed 
under  the  aM^ard,  that  the  introduction  of 
the  treaty  and  the  award  merely  as  part  of 
the  history  of  the  case  did  not  in  any  way 
involve  the  validity  of  the  treaty  or  its 
construction,  and  that  the  writ  of  error 
could  not  be  maintained.  See  Williams 
V.  Oliver.  12  How.  Ill,  13  L.  Ed.  921; 
Baltimore,  etc.,  R.  Co.  v.  Hopkins,  130  U. 
S.  210,  225.  32  L.  Ed.  908;  Borgmeyer  v. 
Idler,   159    U.    S.    408,   415,    40    L.    Ed.    199. 

Where  the  validity  of  an  act  of  con- 
gress by  which  Mexican  and  Spanish 
grants  have  been  confirmed  and  patented, 
is  not  drawn  in  question  in  the  state  court, 
and  where  the  right  or  title  asserted  by 
the   plaintiffs   in   error   was   derived   uaJor 


Mexican  and  Spanish  grants,  it  ■«'as  held 
that  a  decision  of  the  state  court  on  a 
claim  asserted  by  the  plaintiflfs  in  error 
to  riparian  rights  and  subterranean  waters 
is  not  against  any  title  or  right  claimed 
under  the  constitution,  or  any  treaty,  or 
statute  of,  or  commission  held,  or  author- 
ity exercised,  under  the  constitution.  "If 
the  title  of  plaintiffs  in  error  were  pro- 
tected by  the  treaty,  still  the  suit  did  not 
arise  thereunder,  because  the  controversy 
in  the  state  court  did  not  involve  the  con- 
struction of  the  treaty,  but  the  validity  of 
the  title  of  Mexican  and  Spanish  grants 
prior  to  the  treaty.  New  Orleans  v.  De 
Armas,  9  Pet.  224,  9  L.  Ed.  109;  Iowa  v. 
Rood,  187  U.  S.  87,  47  L.  Ed.  86;  Phillips 
V.  Mound  City  Ass'n.  124  U.  S-  605.  31  L. 
Ed.  588."  Hooker  v.  Los  .Angeles,  188  U. 
S.  314,  47  L.  Ed.  487.  reaffirmed  in  New 
York,  etc.,  R.  Co.  v.  Plymouth,  193  U.  S. 
668,    48    L.    Ed.    839. 

54.  Inglee  v.  Coolidge,  2  Wheat.  363,  4 
L.  Ed.  261;  Miller  v.  Nicholls,  4  Wheat. 
311,  4  L.  Ed.  578;  Cohens  v.  Virginia,  6 
Wheat.  264,  5  L.  Ed.  257;  McDonogh  v. 
Milluadon,  3  How.  693,  705,  11  L.  Ed. 
787. 

55.  Hickie  v.  Starke,  1  Pet.  94,  7  L.  Ed. 
67;  Wilson  v.  Black  Bird  Creek  Marsh 
Co..  2  Pet.  245,  7  L.  Ed.  412;  Weston  V. 
Charleston.  2  Pet.  449,  7  L.  Ed.  481;  Har- 
ris V.  Dennie,  3  Pet.  292,  7  L.  Ed.  683; 
McDonogh  v.  Millaudon,  3  How.  693,  705, 
11    L.    Ed.    787. 

56.  Choteau  v.  Marguerite,  12  Pet.  507, 
9  L.  Ed.  1174. 

The  supreme  court  has  not  jurisdiction 
of  a  case  brought  by  a  writ  of  error  from 
the  supreme  court  of  the  state  of  Mis- 
sissippi, under  the  25th  section  of  the  ju- 
diciary act,  where  the  question  was 
whether  the  appellee  was  a  slave.  The 
provisions  of  the  treaty  by  which  Louisi- 
ana was  ceded  to  the  United  States,  and 
in  which  was  a  guaranty  of  the 
property  of  persons  residing  at  the 
time  of  the  cession  within  the  territory 
of  Louisiana,  may  be  enforced  in  the 
courts  of  the  state  of  Missouri.  The  al- 
legation that  the  treaty  has  been  miscon- 


APPEAL  AND  ERROR. 


67; 


Must  Be  Directly  Involved. — And  the  validity  or  construction  of  a  treaty 
must  be  drawn  in  question  and  denied  directly,  not  incidentally. ^^ 

(19)  Denial  of  Rights  under  the  Commerce  Chutse  of  the  Constitution. — In 
General. — The  denial  by  a  state  court  of  some  title,  right,  privilege  or  immunity, 
set  up  and  claimed  under  the  commerce  clause  of  the  constitution,  gives  this  court 
jurisdiction.'''^ 

Status  of  a  Railway  Postal  Clerk. — A  decision  of  the  highest  state  court 
that  a  railway  postal  clerk  is  not  a  pas.-enger  and  has  no  greater  rights,  in  the 
event  of  being  injured  in  the  course  of  his  employment,  than  an  employee  of  the 
railroad  company  would  have  had,  presents  no  federal  question,  on  the  ground  that 
it  is  in  conflict  with  the  power  of  congress  to  establish  postofifices  and  post  roads.^^ 

Showing  as  to  Jurisdiction. — To  sustain  our  jurisdiction  under  this  clause 
of  the  constitution,  the  federal  question  must  be  distinctly  set  up  and  claimed  in 
the  state  court  at  the  proper  time  and  in  the  proper  way,  and  must  be  actually  or 
rnecessarily  decided,  or  at  least  ignored.'''^     This  court  has  no  jurisdiction  of  a  writ 


striied  by  the  supreme  court  of  the  state 
in  refn.^ing  to  sanction  the  claim  asserted, 
will  not  give  the  supreme  court  of  the 
United  States  jurisdiction  in  the  case. 
Choteau  v.  Marguerite.  12  Pet.  507,  9  L. 
Ed.  1174,  cited  in  Scott  v.  Sandford,  19 
How.   393,   15   L.    Ed.  691. 

57.  Borgmeyer  v.  Idler,  159  U.  S.  408,  40 
L.  Ed.  199,  in  which  it  was  held,  that  the 
matter  in  controversy,  being  money  re- 
ceived by  one  of  the  parties  as  an  award  un- 
der a  treaty  of  the  United  States  with  a  for- 
eign power,  providing  for  the  submission 
of  claims  against  that  power  to  arbitra- 
tion, did  not  in  any  way  draw  in  question 
the  validity  or  construction  of  the  treaty. 
F'ollowed  in  Sweringen  z'.  St.  Louis,  185 
U.    S.    38,    44,    46    L.    Ed.    795. 

58.  Denial  of  rights  under  commerce 
clause. — Upon  the  authority  of  Missouri. 
etc..  R.  Co.  V.  Elliott,  184  U.  S.  530,  46  L. 
Ed.  673,  it  may  be  admitted  that  the 
question  of  the  decision  of  the  state  court 
being  in  contravention  of  the  legisla- 
tion of  congress  to  regulate  interstate 
commerce,  was  sufficiently  made,  and  the 
adverse  decision  to  the  party  claiming 
the  benefit  of  that  act,  gives  rise  to  the 
right  of  view  here.  Pennsylvania  R.  Co. 
V.  Hughes,  191  U.  S.  477,  487,  48  L.  Ed. 
268. 

Where  an  action  is  brought  in  a  state 
court  against  a  railroad  company  to  re- 
cover damages  sustained  by  the  appellee. 
by  reason  of  the  defendants  having 
brought  and  caused  to  be  brought  into 
the  state  certain  cattle  alleged  to  have 
been  infected  with  a  disease  known  as 
Texas  splenic  or  Spanish  fever,  and  com- 
municated by  them  to  the  plaintiff's  cat- 
tle whereby  the  latter  sickened  and  died, 
and  the  railway  company  contends  that 
legislation  by  congress  and  the  regulations 
prescribed  by  the  secretary  of  agriculture 
in  execution  of  the  animal  industry  act, 
furnished  a  complete  defense  to  all  claims 
for  damages  asserted  in  the  action,  but 
the  contention  is  overruled  by  the  state 
court,  this  court  has  jurisdiction  to  in- 
quire   whether    the    state    court    erred    in 


holding  that  the  legislation  of  congress 
and  the  regulations  of  the  secretary  of 
the  interior  gave  the  railway  company 
the  right,  privilege  and  immunity  specially 
set  up  and  ch'imed  by  it.  Missouri,  etc., 
R.  Co.  V.  Haber,  169  U.  S.  613,  42  L.  Ed. 
878,  citing  Wilson  v.  Black  Bird  Creek 
Marsh  Co.,  2  Pet.  245,  251,  7  L.  Ed.  412; 
Cliicago  Life  Ins.  Co.  v.  Needles,  113  U. 
S.  574,  579,  28  L.  Ed.  1084;  Sayward  z/. 
Denny,  158  U.  S.  180,  184,  39  L.  Ed.  941; 
Chicago,  etc..  R.  Co.  v.  Chicago,  164  U.  S. 
454,  458,  41  L-  Ed.  511. 

il.e  defendant  distinctly  claimed  that 
the  statute  of  a  state  was  inconsistent 
with  the  power  of  congress  to  regulate 
commerce  among  the  several  states.  The 
state  court  sustained  the  statute  upon  the 
ground  that  it  wp^  intended  to  apply  and 
applied  to  only  the  domestic  transporta- 
tion. It  was  held,  that  no  federal  ques- 
tion is  presented  whicii  will  confer 
jurisdiction  upon  the  supreme  court  of 
the  United  States  to  review  the  judgment 
of  the  state  court  upon  writ  of  error. 
Erie  R.  Co.  v.  Purdy,  185  U.  S.  148,  46 
L.  Ed.  847,  reaffirmed  in  Stuart  v.  Hauser, 
203  U.  S.  585,  51  L.  Ed.  328;  Carnahan 
V.  Connolly,  187  U.  S.  636,  47  L.  Ed.  343; 
Hughes  V.  Kepley,  191  U.  S.  557,  48  L. 
Ed.  301;  Illinois  v.  Binns,  189  U.  S.  505, 
47  L.  Ed.  921;  Robinson  v.  Wingate,  198 
U.  S.  580,  49  L.  Ed.  1171;  Bank  of  Com- 
merce V.  Wiltsie,  189  U.  S.  505,  47  L.  Ed. 
921. 

59.  Martin  v.  Pittsburg,  etc.,  R.  Co., 
203   U.    S.   284,   51   L.    Ed.   184. 

60.  Duties  of  connecting  carriers. — This 
court  has  no  jurisdiction  to  review  the 
judgment  of  the  highest  court  of  the  state 
upholding  the  contention  of  a  common 
carrier  admitting  that  it  was  such  in  cer- 
tain states  and  portions  of  the  country 
where  it  operated  lines  of  roads,  b"t  de- 
nied "that  it  was  the  connecting  and 
ultimate  carrier  of  the  carloads  of  corn 
alleged  to  have  been  delivered  to  the 
Southern  Railway  Company,"  and  further 
denying  that  it  made  the  contracts  or  was 
liable  under  them  on  which  it   was  being 


678 


APPEAL  A\D  BRROR. 


of  error  to  a  state  court  on  the  ground  that  the  decision  in  the  state  court  was  in 
conflict  with  the  clause  of  the  constitution  of  the  United  States  which  gives  con- 
gress power  to  regulate  commerce  with  foreign  nations  and  among  the  several 
states  and  wkh  the  Indian  tribes,  where  no  point  on  the  commerce  clause  of  the 
constitution  was  taken  in  the  state  court  or  considered  by  it.  Accordingly,  where 
the  only  question  considered  by  the  state  court  was  whether  liquor  was  sold  by  the 
plaintiff  in  error  within  or  without  the  state,  and  the  court  holds  that  the  com- 
pleted sale  was  in  the  state,  this  does  not  involve  any  federal  question.^  ^  But 
where  the  commerce  clause  of  the  constitution  is  invoked  in  a  state  court  and  de- 
nied, a  writ  of  error  will  lie  from  this  court  to  review  a  decision  of  a  state  court 
upholding  the  validity  of  the  seizure  of  intoxicating  liquors  under  the  state  laws, 
where  the  liquor  was  shipped  C.  O.  D.  into  that  state  from  another  state.^^ 


sued,  or  that  it  was  bound  by  law  to  re- 
ceive said  alleged  carloads  of  corn  and 
forward  and  deliver  them  to  their  ultimate 
destination  in  good  order  and  in  reason- 
able time  on  the  ground  that  this  is  a 
denial  of  a  right  under  the  interstate 
commerce  act.  Louisville,  etc.,  R.  Co.  v. 
Smith,  etc.,  Co.,  204  U.  S-  551,  51  L.  Ed. 
612. 

Where  in  a  suit  brought  in  a  state  court 
by  the  defendant  in  error  against  the 
plaintiff  in  error,  for  damages  alleged  to 
have  been  received  by  the  defendant  in 
error  to  certain  carloads  of  corn  shipped 
over  the  Southern  Railway  from  certain 
points  in  Tennessee  to  be  delivered  to 
the  defendant  in  error  in  Alabama,  the 
bill  charges  a  breach  of  the  contracts  of 
shipment  by  one  or  the  other  of  the  rail- 
way companies  who,  the  bill  alleges,  were 
connecting  common  carriers,  and  as  such 
bound  by  the  contracts  and  the  law  rela- 
tive to  common  carriers  to  receive  and 
forward  to  destination  the  goods  shipped 
in  good  order  and  in  a  reasonable  time, 
and  plaintiff  in  error  admitted  that  it  was 
a  common  carrier  in  some  states,  but  was 
not  a  conn  cting  and  ultimate  carrier  of 
the  corn  in  question,  denied  that  it  was 
bound  by  the  contracts,  and  denied  that 
"it  was  bound  by  law"  to  receive  the  corn 
and  forward  and  deliver  it  to  its  ultimate 
destination.  It  was  held,  that  the  denial 
by  the  state  court  of  the  allegations  of 
this  bill  raises  no  federal  question,  be- 
cause "the  denial  was  of  a  legal  conclu- 
sion resulting  from  the  facts  alleged,  and 
added  nothing  to  them.  Besides,  if  a 
party  relies  upon  a  federal  right,  he  must 
specially  set  it  up,  and  a  denial  of  liability 
under  the  law  is  not  a  compliance  with 
that  requirement."  Louisville,  etc.,  R.  Co. 
V.  Smith,  etc.,  Co.,  204  U.  S.  551,  51  L. 
Ed.   612. 

Reasonableness  of  railroad  rates. — 
Where  the  question  presented  for  decision 
in  the  state  court  was  whether,  consist- 
ently with  the  act  to  regulate  commerce, 
there  was  power  in  the  court  to  grant 
relief  upon  the  finding  that  the  rate 
charged  for  an  interstate  shipment  was 
unreasonable,  although  such  rate  was  the 
one  fixed  by  the  duly-published  and  filed 
rate   sheet,  and  as   the   rate  had  not  been 


found  to  be  unreasonable  by  the  inter- 
state commerce  commission,  this  court 
has  jurisdiction,  where  that  question  wa^ 
presented  by  the  pleading,  was  passed 
upon  by  the  trial  court,  was  expressly 
and  necessarily  decided  by  the  court  be- 
low, and  is  also  essentially  involved  in 
the  cause.  Texas,  etc.,  R.  Co.  v.  Abilene 
Cotton  Oil  Co.,  204  U.  S.  426,  51  L.  Ed. 
553. 

But  the  question  whether  a  railroad 
company  has  established  a  legal  schedule 
of  rates  in  compliance  with  the  act  to 
regulate  commerce  as  to  the  posting  of 
the  established  schedule,  is  not  open  to 
review  by  this  court,  where  the  state  court 
expressly  conclinled  that  the  railway  com- 
pany had  complied  with  the  act  to  regu- 
late commerce  in  the  matter  of  filing,  etc., 
its  schedule  of  rates,  and  the  court  and 
counsel  confined  the  issue  for  determina- 
tion to  the  question  of  the  effect  of  the 
act  to  regulate  commerce  upon  the  rights 
of  the  parties,  manifestly  upon  the  as- 
sumption that  the  correctness  of  the  con- 
clusion of  the  trial  court  as  to  compli- 
ance with  the  act  was  conceded  by  both 
parties.  Texas,  etc.,  R.  Co.  v.  Abilene 
Cotton    Oil    Co..  204  U.  S.  426,  51  L.  Ed.  553. 

Validity  of  seizure  of  intoxicants. — 
Where  the  commerce  clause  of  the  con- 
stitution does  not  appear  to  have  been 
relied  on  nor  was  it  called  to  the  atten- 
tion or  passed  upon  by  the  state  court, 
a  writ  of  error  up_holding  the  validity  of 
a  seizure  of  intoxicating  liquors  under  the 
state  laws,  where  the  liquor  was  shipped 
C.  O.  D.  into  that  state  from  another 
state,  where  it  is  claimed  that  the  sale 
was  complete  in  the  former  state,  will  be 
dismissed.  O'Neil  v.  Vermont,  144  U.  S. 
S'^S,  344,  36  L.  Ed.  450;  Norfolk,  etc.,  R. 
Co.  V.  Sims,  191  U.  S.  441,  48  L.  Ed.  254; 
American  Express  Co.  f.  Iowa,  196  U.  S. 
133,  49  L-  Ed.  417;  Adams  Express  Co.  v. 
Iowa,   196  U.   S.   147.   49   L.   Ed.  424. 

61.  O'Neil  V.  Vermont,  144  U.  S.  323. 
36  L.  Ed.  450,  Mr.  Justice  Field  dissent- 
ing. 

62.  American  Express  Co.  v.  Iowa,  196 
U.  S.  133,  49  L.  Ed.  417,  distinguishing 
O'Neil  V.  Vermont,  144  U.  S.  323,  324,  36 
L.  Ed.  450;  Adnms  Express  Co.  v.  Iowa, 
196   U.    S.    147,   49   L.    Ed.   424. 


.APPEAL  AND  ERROR. 


679 


(20)  Denial  of  Rights  under  the  Fifteenth  Amendment. — The  right  of  the 
supreme  court  of  the  United  States  to  review  decisions  of  the  higliest  court  of 
the  state  in  cases  where  its  jurisdiction  is  invoked  because  of  alleged  denial  of 
the  rights  of  the  plaintiff  in  error,  secured  to  him  by  the  15th  amendment  to  the 
constitution  of  the  United  States,  is  regulated  by  §  709  of  the  Revised  Statutes.^^ 

(21)  Jurisdiction  over  Navigable  Waters. — In  General, — Decisions  of  the 
highest  state  court  affecting  navigable  waters,  may  be  reviewed  by  this  court  un- 
der the   judiciary  act.^*      jf  ^^e   action  is    for   a  maritime   tort   committed   upon 

which  had  been  improved  with  a  view  to 
its  use,  and  was  used  in  connection  with 
the  navigation  of  the  river,  could  main- 
tain an  action  against  the  city  for  extend- 
ing one  of  its  streets  into  the  river  so  as 
to  divert  the  natural  course  of  the  water 
and  destroy  the  water  privileges  virhich 
were  appurtenant  to  the  property,  is  not 
one  of  federal  law;  distinguishing  Railway 
Co.  V.  Renwick.  10  U.  S.  180,  26  L.  Ed. 
51,  as  follows:  "ihe  case  of  Railway 
Co.  V.  Renwick,  102  U.  S.  180,  182,  26  L. 
Ed.  51,  was  entirely  dififerent  from  this. 
There  the  question- was  whether  the  owner 
of  a  saw  mill  on  the  bank  of  the  Missis- 
sippi River,  who  had  improved  his  prop- 
erty by  erecting  piers  and  cribs  in  the 
river  under  the  authority  of  a  statute  of 
Iowa,  but  without  complying  with  the 
provisions  of  §  5254,  Rev.  Stat.,  could 
claim  compensation  from  the  railroad 
company  for  taking  his  property  in  the 
river  for  the  construction  of  its  road.  The 
company  claimed  that,  as  congress,  in  the 
exercise  of  its  jurisdiction  over  the  navi- 
gable w-aters  of  the  United  States,  had 
prescribed  certain  conditions  on  which 
the  owners  of  saw  mills  on  the  Missis- 
-sippi  River  might  erect  piers  and  cribs 
in  front  of  their  property,  the  statute  of 
Iowa,  under  which  Renwick  had  made  his 
improvements,  was  void.  This  we  held 
presented  a  federal  question  and  gave  us 
jurisdiction."  St.  Louis  v.  Myers,  113  U. 
S.   566,  28   L.   Ed.   1131. 

Plaintiff  in  error  claims  that  the  ces- 
sion by  the  state  of  New  Jersey  to  the 
United  States  of  America  of  a  certain 
strip  of  land  at  Sandy  Hook  vested  in  the 
United  States  exclusive  legislative  juris- 
diction over  the  littoral  waters  extending 
three  miles  to  the  eastward  of  the  coast 
line  thereof,  and  that  therefore  a  verdict 
should  have  been  directed.  Held,  that 
under  United  States  constitution,  art.  1,  § 
8,  ch.  17,  this  court  has  jurisdiction  on 
writ  of  error  to  review  the  decision.  The 
plaintiff  in  error  explicitly  limited  its  claim 
to  exclusive  federal  jurisdiction  over  the 
adjoining  waters  to  the  three-mile  limit. 
The  record,  however,  discloses  evidence 
that  the  collision  in  question  occurred  be- 
yond the  three-mile  limit.  Hamburg 
American  Steamship  Co.  v.  Grube,  196  U. 
S.   407,  412,   49   L.   Ed.   529. 

A  cross  complaint  by  a  canal  company 
in  a  suit  in  a  state  court,  setting  up  and 
claiming  a  right  to  a  water  power  on  the 
ground    that    it    was    created    by    a    dam. 


63.  Denial  of  rights  under  the  fifteenth 

amendment. — Giles  z'.  Teasley,  193  U.  S. 
146.  48  L.  Ed.  655,  reaffirmed  in  Delahanty 
V.   Pitkin,  199   U.  S.  602.   50   L.   Ed.  .328. 

Denial  of  elective  franchise  to  negroes. 
— The  judgment  of  the  highest  court  of 
Alabama  sustained  a  demurrer  to  petition 
in  an  action  for  damages  for  the  refusal 
of  a  board  of  registrars  to  register  the 
petitic<ner,  a  negro,  as  a  voter.  The 
ground  of  sustaining  the  demurrer  is,  in 
effect,  that  conceding  the  allegations  of 
the  petition  to  be  true  and  the  registrars 
to  have  been  appointed  and  qualified  under 
a  constitution  which  has  for  its  purpose 
to  prevent  negroes  from  voting  and  to 
exclude  them  from  registration  for  that 
purpose,  no  damage  has  been  suffered  by 
the  plaintiff,  because  no  refusal  to  register 
by  a  board  thus  constituted  in  defiance 
©f  the  federal  constitution  could  have  the 
effect  to  disqualify  legal  voters,  otherwise 
entitled  to  exercise  the  elective  franchise. 
It  was  held,  that  in  such  decision  no  right, 
immunit}'  or  privilege,  the  creation  of 
federal  authority,  has  been  set  up  by  the 
plaintiff  in  error  and  denied  in  such  wise 
as  to  give  the  supreme  court  of  the  United 
States  the  right  to  review  the  state  court 
vlecision.  Giles  v.  Teasley,  193  U.  S.  146, 
48  L-  Ed.  655,  reaffirmed  in  Delahanty  v. 
Pitkin,  199  U.   S.  602.  50  L.   Ed.  328. 

64.  Jurisdiction  over  navigable  waters. 
— The  question  whether  the  courts  of  the 
United  States,  as  courts  of  admiralty, 
have  exclusive  jurisdiction  of  suits  in  per- 
sonam, growing  out  of  collisions  between 
vessels  that  are  navigated  in  the  Ohio 
river,  is  a  federal  question,  and  gives  us 
jurisdiction.  Schoonmaker  v.  Gilmore,  102 
U.  S.  118,  119,  26  L.   Ed.  95. 

A  decision  by  the  highest  court  of  a 
state  upon  the  question  whether  the  mere 
fact  that  a  bridge,  constructed  under  au- 
thority derived  from  the  act  of  congress 
of  July  25,  1866,  14  Stat.  244,  had  not 
been  constructed  as  required  by  the  stat- 
ute, rendered  the  owner  liable  for  inju- 
ries happening  by  reason  of  its  existence 
to  a  steamboat  navigating  the  river,  irre- 
spective of  the  question  whether  the  acci- 
dent was  the  result  of  the  improper 
construction,  presents  no  federal  question 
for  the  decision  of  this  court.  Hannibal, 
etc.,  R.  Co.  V.  Missouri  River  Packet  Co., 
125  U.   S.  260,   31    L.   Ed.   731. 

The  question  whether  the  lessee  of 
property  situated  on  the  bank  of  the  Mis- 
sissippi River  within  the  city  of  St.  Louis. 


680 


APPEAL  AXD  ERROR. 


navigable  waters  and  within  the  admirahy  jurisdiction,  the  appellate  jurisdiction 
of  this  court  over  questions  national  and  international  in  their  nature  cannot  be 
restrained  by  the  mere  fact  that  the  party  plaintiff  has  elected  to  pursue  his 
common-law  remedy  in  a  state  court.^'' 

(22)  Acts  of  Congress  Regulating  Common  Carriers. — Decisions  of  state  courts 
denying  any  title,  right,  privilege  or  immunity  under  an  act  of  congress  regulating 
carriers  of  goods  or  passengers,  may  be  reviewed,  provided  the  other  requisites 
exist.'^'' 

(  2i)  Decisions  Relating  to  Boundaries  betzveen  Land  Granted  by  United  States. 
— This  court  has  not  jurisdiction,  under  the  twenty-fifth  section  of  the  judiciary 
act,  to  review  the  judgment  of  a  state  court,  where  the  question  involved  merely 
related  to  the  proper  boundary  between  two  tracts  of  land,  although  the  owners 
of  both  had  valid  grants  from  the  United  States.'^' 


canal,  and  other  improvements  owned  and 
operated  by  the  United  States,  and  that 
the  canal  company's  right  and  title  to  the 
water  power  so  created  arose  under  and 
by  virtue  of  certain  alleged  and  recited 
acts  of  congress,  and  especially  by  virtue 
of  an  alleged  contract  between  the  United 
States  and  the  canal  company,  whereby 
the  use  of  the  surplus  water,  not  needed 
for  purposes  of  navigation,  was  granted 
and  reserved  to  the  canal  company,  "'spe- 
cially set  up  and  claimed"  federal  rights, 
within  Revised  Statutes,  §  709;  and  a  final 
judgment  of  the  state  courts  denying  such 
rights  is  reviewable  by  the  supreme  court. 
Green  Bay,  etc..  Canal  Co.  v.  Patten 
Paper   Co.,   172   U.   S.   58,  43   L.    Ed.   364. 

65.  Belden  v.  Chase,  150  U.  S.  674,  691, 
37  L.   Ed.   1218. 

66.  Acts  of  congress  regulating  com- 
jnon  carriers. — Where  in  a  suit  upon  a 
policy  of  insurance  to  recover  for  the  loss 
of  the  plaintiff  in  errors  steamboat  by 
fire,  the  defense  was  that  the  fire  was 
caused  by  his  gross  negligence  in  the  use 
of  turpentine,  on  board  as  freight,  to  in- 
crease steam  while  racing  with  another 
boat,  it  was  held  that  the  plaintiff  in  error 
claimed  no  "title,  right,  privilege  or  im- 
munity" under  the  constitution,  laws  or 
treaties  of  the  United  States,  and  no  such 
title,  right,  privilege  or  immunity  has 
been  denied  him,  although  an  act  of  con- 
gress prohibited  the  transportation  of  tur- 
pentine, as  freight,  on  steamboats  carrying 
passengers,  "except  in  cases  of  special 
license  for  that  purpose."  No  complaint 
was  made  of  the  carriage  of  the  turpen- 
tine, but  of  its  use  while  being  carried. 
Marsh  v.  Citizens'  Ins.  Co.,  131  U.  S., 
appx.  ccxiii,  25  L.  Ed.  9. 

67.  Decisions  relating  to  boundaries  be- 
tween land  granted  by  United  States. — 
Moreland  v.  Page,  20  How.  522,  15  L.  Ed. 
1009. 

This  court  has  repeatedly  held,  that  the 
twenty-fifth  section  of  the  judiciary  act  of 
1789  does  not  warrant  the  review  of  an 
adjudicatfon  upon  a  mere  question  of 
boundary  The  fact  that  the  land  to  which 
the  boundary  relates  is  held  by  a  title  de- 
rived   from    an   act    of   congress    does    not 


change  the  result.  If  the  title  be  admitted 
as  recognized  by  the  act,  its  location  upon 
the  land  is  a  subject  wholly  within  the 
cognizance  of  the  state  tribunals,  and  it 
is  not  within  the  power  of  this  court  to 
revise  their  action.  In  such  cases  our 
authority  is  limited  to  errors  relating  to 
the  title.  If  any  such  are  committed,  it  is 
our  duty  to  correct  them.  If  there  arc 
none,  we  have  no  more  authority  to  in- 
terpose than '  any  other  case  of  alleged 
maladministration  of  justice  by  a  state 
court.  A  party  cannot,  by  setting  up  an 
unfounded  claim  of  title,  compel  us,  after 
deciding  the  claim  against  him.  '  >  take  to 
ourselves  a  jurisdiction  whici'.  but  for 
such  claim,  we  could  not  have  exercised. 
Such  a  result  would  make  the  jurisdiction 
depend,  not  upon  the  nature  and  merits 
of  the  case,  but  upon  what  the  party  may 
choose  to  allege.  In  this  way,  in  every 
case  where  the  title  is  derived  from  the 
United  States,  and  a  question  of  boundary 
is  involved,  this  court  might  be  con- 
strained to  do  what  it  has  uniformly  held 
to  be  beyond  the  sphere  of  its  power. 
Lanfear  r.  Hunley,  4  Wall.  204,  209,  18 
L.  Ed.  325. 

State  courts  have  a  right  to  decide  upon 
the  true  running  of  lines  of  tracts  of  land, 
and  this  court  has  no  authority  to  review 
those  decisions  under  the  25th  section  of 
the  judiciary  act.  Where  the  decision  was 
that  the  true  lines  of  the  litigants  did  not 
conflict  with  each  other,  but  the  losing 
party  alleged  that  her  adversary's  title 
was  void  under  the  correct  interpretation 
of  an  act  of  congress,  this  circumstance 
did  not  bring  the  case  within  the  jurisdic- 
tion of  this  court.  Nor  is  the  jurisdiction 
aided  because  the  state  court  issued  a 
perpetual  injunction  upon  the  losing 
party.  This  was  a  mere  incident  to  the 
decree,  and  arose  from  the  mode  of  prac- 
tice in  Louisiana,  where  titles  are  often 
quieted  in  that  way.  Almonester  v.  Ken- 
ton. 9   How.  1,  13  L.  Ed.  21. 

This  court  has  no  jurisdiction  to  review 
the  ji'dgment  of  a  state  court,  ascertain- 
ing the  boundaries  between  two  neigh- 
bors having  complete  grants.  "If  the 
accident  to  the  controversy  that  both  par- 


APPEAL  AND  ERROR. 


681 


(24)  Claim  of  Title  to  Land  under  United  States — aa.  In  General. — Where 
the  plaintiff  in  error  claims  title  to  land  under  an  act  of  congress,  or  under  the 
authority  of  the  United  States,  and  the  decision  is  against  the  right  or  title  so  set 
up  and  claimed,  it  may  be  reviewed  by  this  court/'^     But  this  court  has  frequently 


lies  claim  title  under  the  United  States 
should  be  considered  as  sufficient  to  bring 
it  within  our  jurisdiction,  then  every  con- 
troversy involving  the  title  to  such  lands, 
whether  it  involve  the  inheritance,  parti- 
tion, devise,  or  sale  of  it,  may,  with  equal 
propriety,  be  subject  to  the  examination 
of  this  court  in  all  time  to  come.  This 
question  is  now  new;  it  was  decided  in 
the  case  of  McDonough  r.  Millaudon,  3 
How.  693,  11  L.  Ed.  787,  where  this  court 
refused  to  entertain  jurisdiction  to  review 
the  judgment  of  a  state  court,  ascertain- 
ing the  boundaries  between  complete 
grants  under  the  French  government,  as 
it  did  not  call  in  question  either  the  con- 
struction or  the  validity  of  the  treaty,  or 
the  title  to  the  land  held  under  it.  See, 
also,  Kennedy  z'.  Hunt.  7  How.  586,  593, 
12  L.  Ed.  829."  Morcland  j'.  Page,  20  How. 
522,  15   L.   Ed.   1009. 

The  twenty-fifth  section  of  the  judiciary 
act  does  not  warrant  the  review  of  an 
adjudication  upon  a  mere  question  of 
boundary;  the  fact  that  the  land  to  which 
the  boundary  relates  is  held  by  a  title 
derived  from  an  act  of  congress  does  not 
change  the  result.  If  the  title  be  admitted 
as  recognized  by  the  act,  its  location  upon 
the  land  is  a  subject  wholly  within  the 
cognizance  of  the  state  tribunals,  and  it  is 
not  within  the  power  of  this  court  to 
reverse  their  action.  In  such  cases  its 
authority  is  limited  to  errors  relating  to 
the  title.  Lanfear  f.  Hunley,  4  Wall.  204, 
205.  18  L.   Ed.   325. 

68.  Claim  of  title  to  land  under  United 
States.— Pollard  7:  Kibbe.  14  Pet.  353,  10 
L.  Ed.  490;  Rector  x.\  Ashley.  6  Wall.  142, 
18  L.  Ed.  733;  Northern  Pac.  R.  Co.  v. 
Colburn,  164  U.  S.  383,  41  L.  Ed.  479; 
Johnson  v.  Towsley.  13  Wall.  72,  80,  20 
L.   Ed.   485. 

Where  the  question  involved  in  the 
state  court  was  as  to  the  title  or  right  of 
Cornell  University  to  lands  claimed  by 
the  college  under  the  act  of  congress  of 
1862,  12  Stat.  c.  130,  503,  providing  for 
aid  to  public  institutions  in  the  state  a 
great  fund  in  lands,  etc.,  and  this  title  or 
right  is  denied  by  the  state  court,  this 
raises  a  federal  question.  Cornell  Uni- 
versity V.  Fiske,  136  U.  S.  152,  34  L.  Ed. 
427. 

Where  the  complainant  had  no  title  to 
the  land  he  sets  up  and  claims  under  the 
act  of  congress,  of  course  he  cannot  come 
here  under  the  25th  section  of  the  judi- 
ciarv  act.  Wynn  v.  Morris,  20  How.  3, 
15  L.  Ed.  800. 

Where  a  pre-emptioner  sold  his  in- 
choate title,  which  passed  ultimately  into 
the  hands  of  a  trustee,  and  the  trustee 
loaned    money    out    of    the    trust    fund    to 


the  pre-emptioner,  in  order  to  enable  him 
to  pay  the  government;  and  the  title  thus 
obtained  from  the  United  States  was  con- 
veyed by  the  pre-emptioner  to  the  trus- 
tee, without  any  reference  to  the  trust; 
and  the  trustee  was  ordered  by  a  state 
court  to  hold  the  property  subject  to  the 
trust — he  cannot  remove  the  case  to  this 
court,  by  virtue  of  the  twenty-fifth  section 
of  the  judiciary  act.  There  is  no  title, 
right,  privilege,  or  exemption,  under  an 
act  of  congress,  set  up  by  the  party  and 
decided  against  him  by  the  state  court. 
By  his  own  showing,  he  has  acquired  no 
title  from  the  United  States.  Udell  v. 
Davidson,  7   How.  769,  12  L.  Ed.  907. 

Patent  for  land. — The  decree  of  a  state 
court  denying  the  plaintiff  in  error  a  right 
asserted  under  a  patent  for  land  from  the 
United  States,  is  within  §  709  of  the  Re- 
vised Statutes.  Baldwin  v.  Stark,  107  U. 
S.  463,  27  L.  Ed.  526,  citing  Johnson  v. 
Towsley,  13  Wall.  72,  20  L-  Ed.  485; 
Marquez  v.  Frisbie,  101  U.  S.  473,  25  L. 
Ed.  800;  Morrison  v.  Stalnaker,  104  U.  S. 
213,  26   L.   Ed.  741. 

A  claim  of  title  under  a  patent  from 
the  United  States,  if  denied  by  a  state 
court,  may  be  reviewed  by  this  court 
under  the  25th  section  of  the  judiciary 
act.  Tyler  v.  Magwire,  17  Wall.  253,  254, 
21   L.    Ed.   576. 

Grant  of  lands  to  Montana  for  school 
purposes.  —  Where  the  United  States 
granted  to  the  state  of  Montana  public 
lands  for  a  normal  school  to  be  held,  ap- 
propriated and  disposed  of  for  such  pur- 
pose, or  in  such  manner  as  the  legislature 
should  provide,  and  the  legislature,  by  a 
law  enacted  in  due  form,  did  provide  that 
bonds  should  be  issued,  secured  by  the 
proceeds  of  the  sale,  etc.,  and  it  is  specially 
set  up  and  claimed  in  the  state  court  that 
the  legislature  had  authority,  under  a  stat- 
ute of  the  United  States,  namely,  §  17  of 
the  enabling  act.  to  deal  with  the  lands 
as  it  did  by  the  bond  act,  and  that  if  the 
bond  act  was  in  violation  of  the  consti- 
tution of  the  state,  the  law  enacted  in 
pursuance  of  an  authority  granted  by  the 
United  States  was  valid  and  effective  not- 
withstanding, this  is  a  claim  of  a  right 
under  an  authority  exercised  under  the 
United  States,  and  therefore  raises  a  fed- 
eral question.  Haire  v.  Rice,  204  U.  S. 
291.  51  L.  Ed.  490,  citing  Magwire  v. 
Tyler,  1    Black  195,  17  L.   Ed.   137. 

Denial  by  state  court  of  validity  of 
patent  for  land. — A  decision  in  the  high- 
est court  of  a  state  against  the  validity 
of  a  patent  granted  by  the  United  States 
for  land,  and  whose  validity  is  drawn  in 
question  in  such  court,  is  a  decision 
against  the  validity  of  an  authority  exer- 


682 


APPEAL  AND  ERROR. 


been  vainly  asked  to  hold  that  controversies  in  respect  to  lands,  one  of  the  parties 


cised  under  the  United  States,  and  the 
subject  of  re-examination  here,  although 
the  other  side  have  also  set  up  as  their 
case  a  similar  authority  whose  validity  is 
by  the  same  decision  affirmed.  Reichert 
V.   Felps,   6  Wall.   160.   18   L.   Ed.   849. 

Both  the  plaintiff  and  defendants 
claimed  title  under  the  provisions  of  the 
act  of  congress,  passed  March  3d,  1803, 
entitled,  "An  act  regulating  the  grant  of 
land,  and  providing  for  the  disposal  of 
the  lands  of  the  United  States,  south  of 
the  State  of  Tennessee;"  and  the  decision 
of  the  Supreme  Court  of  the  State  of  Mis- 
sissippi, was,  upon  the  construction  given 
to  that  act  by  the  commissioners  acting 
under  its  authority.  This  is  a  case  which 
draws  into  question  the  construction  of  an 
act  of  Congress,  and  the  Supreme  Court 
of  the  United  States  has  jurisdiction  on 
a  writ  of  error,  by  which  the  decision  of 
the  court  of  the  State  of  Mississippi  is 
brought  up  for  revision,  under  the  25th 
section  of  the  judiciary  act  of  1789.  Ross 
V.  Doe,  1  Pet.  655,  7  L.  Ed.  302,  citing 
Matthews  v.  Zane,  4  Cranch  382,  2  L.  Ed. 
654. 

Claim  by  municipality. — Where  suit  is 
brought  in  a  state  court  by  a  town  claim- 
ing part  of  its  common  under  the  act  of 
congress  passed  in  1812,  and  the  defense 
is  that  there  was  a  survey  in  pursuance  of 
the  federal  statute  which  estops  the  plain- 
tiff to  set  up  his  claim,  this  court  has 
jurisdiction  to  re-examine  the  case,  and 
reverse  or  affirm  the  judgment.  "The 
25th  section  of  the  judiciary  act  provides, 
that  where  there  is  drawn  in  question  the 
construction  of  any  statute  of  the  United 
States,  and  the  decision  is  against  the  title 
set  up  and  claimed  under  the  statute,  the 
case  may  be  re-examined  in  this  court, 
and  the  decision  reversed  or  affirmed. 
Here,  title  was  set  up  and  claimed  by 
Carondelet  to  a  part  of  its  common,  ac- 
cording to  a  true  construction  of  the  act 
of  1812.  The  claim  depends  solely  on  this 
act  of  congress,  taken  in  connection  with 
Soulard's  survey;  and  the  decision  being 
adverse  to  the  claim,  jurisdiction  exists." 
Carondelet  v.  Saint  Louis,  l  Black  179, 
188,  17  L.  Ed.   102. 

The  judgment  of  a  state  court  that  a 
donation  land  claim  under  the  act  of  con- 
gress of  September  27,  1850.  c.  76,  below 
high  water  mark,  was  invalid,  upon  the 
ground  that  the  grant  from  the  United 
States  upon  which  it  was  founded  passed 
no  title  or  right,  as  against  the  subsequent 
deeds  from  the  state,  in  lands  below  high 
water  mark,  is  a  direct  adjudication 
against  the  validity  of  a  right  or  privilege 
claimed  under  a  law  of  the  United  States, 
and  presents  a  federal  question  within 
the  appellate  jurisdiction  of  this  court. 
Shively  v.  Bowlby,  152  U.  S.  1,  38  L.  Ed. 
331,   citing   Railroad   Co.  v.   Schurmeier,   7 


Wall.  272,  19  L.  Ed.  74;  Packer  v.  Bird. 
137  U.  S.  661,  34  L.  Ed.  819;  Knight  v. 
United  States  Land  Ass'n.  142  U.  S.  161, 
35   L.   Ed.  974. 

Title  under  private  act  of  congress. — 
Action  of  ejectment  in  the  state  court  of 
Alabama  for  a  lot  of  ground  in  the  city 
of  Mobile.  The  plaintiff  claimed  the  title 
to  the  lot  under  an  act  of  congress,  and 
the  decision  of  the  state  court  was  against 
the  right  and  title  so  set  up  and  claimed. 
A  writ  of  error  was  prosecuted  to  the 
supreme  court  of  Alabama.  It  was  held, 
that  this  case  was  embraced  by  the  25th 
section  of  the  judiciary  act  of  1789,  which 
gives  this  court  jurisdiction  to  revise  the 
judgment  of  the  state  court  in  such  cases. 
The  act  of  congress  under  which  title  was 
claimed,  being  a  private  act,  and  for  the 
benefit  of  the  city  of  Mobile  and  certain 
individuals,  it  is  fair  to  presume  it  was 
passed  with  reference  to  the  particular 
claims  of  individuals,  and  the  situation 
of  the  land  embraced  in  the  law  at  the 
time  it  was  passed.  Pollard  v.  Kibbe,  14 
Pet.  353.  10  L.   Ed.  490. 

Where  the  title  to  land,  under  con- 
firmation by  United  States  commissioners, 
was  directly  drawn  in  question  and  the 
decision  below  rejected  the  title,  this  court 
has  authority  to  re-examine  the  decision 
of  the  state  court.  Berthold  v.  McDonald, 
22  How.  334,   16  L.   Ed.  318. 

The  adjudication  of  the  register  and  re- 
ceiver, which  authorized  the  entry  of 
land,  is  subject  to  revision  in  the  courts, 
on  showing  that  the  entry  was  obtained 
by  fraud  and  false  testimony  as  to  settle- 
ment and  cultivation.  "Another  prelimi- 
nary question  is  presented  on  this  record, 
namely:  Whether  the  adjudication  of  the 
register  and  receiver,  which  authorized 
Cloyes'  heirs  to  enter  the  land,  is  subject 
to  revision  in  the  courts  of  justice,  on 
proof,  showing  that  the  entry  was  ob- 
tained bj'  fraud  and  the  imposition'  of 
false  testimony  on  those  officers,  as  to 
settlement  and  cultivation.  We  deem  this 
question  too  well  settled  in  the  affirma- 
tive for  discussion.  It  was  so  treated  in 
the  case  of  Cunningham  v.  Ashley,  14 
How.  377,  14  L.  Ed.  462;  again  in  Barnard 
V.  Ashley,  18  How.  43,  15  L.  Ed.  285;  and 
conclusively  in  the  case  of  Garland  v. 
Wynn.  20  How.  6.  8,  15  L.  Ed.  801."  Lytle 
V.   Arkansas,  22   How.   193,   16   L.   Ed.   306. 

"Congress,  in  acting  upon  complete 
grants,  recognized  them  as  they  stood; 
and  the  act  of  May  11th,  1820,  confirming 
such  as  were  recommended  for  confirma- 
tion by  the  register  and  receiver,  had  no 
reference  to  any  particular  surveys.  A 
decision  of  a  state  court,  therefore,  which 
may  be  in  opposition  to  one  of  these  sur- 
veys, is  not  against  the  validity  of  a  title 
existing  under  an  act  of  congress,  and  this 


APPEAL  AND  ERROR. 


683 


to  which  had  derived  his  title  directly  under  an  act  of  congress,  for  that  reason 


court  has  no  jurisdiction  in  such  a  case." 
McDonogh  v.  Millaudon,  3  How.  693,  11 
L.    Ed.    7S7. 

Claim  under  authority  exercised  by  sec- 
retary cf  treasury. — Where,  upon  the  trial 
of  a  case  in  a  state  court,  a  party  claims 
the  land  in  dispute,  under  an  authority 
which  he  alleges  has  been  exercised  by 
the  secretary  of  the  treasury,  in  behalf 
of  the  United  States,  and  the  decision 
was  against  the  validitj'  of  the  authority, 
the  party  is  entitled  to  have  his  case 
brought  to  this  court  under  the  twenty- 
fifth  section  of  the  judiciary  act.  Neilson 
V.   Lagow,  7   How.   772,   12   L-   Ed.  908. 

Claim  of  title  under  grants  from  state. 
— In  1841,  congress  granted  to  the  state 
of  Louisiana  500,000  acres  of  land,  for  the 
purposes  of  internal  improvement,  and  in 
1849  granted  also  the  whole  of  the  swamp 
and  overflowed  lands  which  may  be  found 
unfit  for  cultivating.  In  both  cases,  pat- 
ents were  to  be  issued  to  individuals  under 
state  authority.  In  a  case  of  conflict  be- 
tween two  claimants,  under  patents 
granted  by  the  state  of  Louisiana,  this 
corrt  has  no  jurisdiction,  under  the  25th 
section  of  the  judiciary  act,  to  review  the 
judgment  of  the  supreme  court  of  Louisi- 
ana, given  in  favor  of  one  of  the  claimants. 
Sfiaffer  v.  Scudday,  19  How.  16,  15  L.  Ed. 
592. 

Riparian  rights. — Where  the  parties  to 
the  contest  both  claim  under  title  de- 
rived under  the  United  States,  the  plain- 
tiff in  error  under  patents  granted  to  the 
state  of  Oregon  under  the  swamp  land 
grant;  the  defendant  in  error  under  the 
homestead  laws,  and  the  plaintiff  in  error 
contended  in  the  Oregon  courts  and  in 
the  supreme  court  of  the  United  States 
that  a  proper  construction  of  the  survey 
and  patents  give5  riparian  rights  cover- 
ing the  land  in  dispute,  and  that  it  is  not 
competent  to  overcome  such  rights  by 
evidence  affecting  the  legal  import  of  the 
plats  and  patents,  it  was  held,  that  a  fed- 
eral question  is  thus  presented.  French- 
Glenn  Live  Stock  Co.  v.  Springer,  185  U. 
S.  47,  46  L.  Ed.  800,  affirmed  and  followed 
in  French-Glenn  Live  Stock  Co.  v.  Col- 
well,  185  U.  S.  54,  46  L.   Ed.   804. 

Where  a  title  under  a  settlement  cer- 
tificate issued  under  an  act  of  congress  is 
set  up  by  a  party  in  the  highest  court  of 
a  state,  and  the  decision  of  such  court  is 
against  the  title  so  set  up,  a  writ  of  error 
lies  from  this  court  under  the  twenty- 
fifth  section  of  the  judiciary  act.  Silver 
V.  Ladd,  6  Wall.   440,  18   L.   Ed.   828. 

Laws  of  congress  perfecting  title  to 
public  lands. — Where  laws  of  congress  and 
acts  of  officers  executing  them  in  perfect- 
ing titles  to  public  lands  have  been  drawn 
in  question  and  construed  by  the  decision 
©f  a  state  court,  and  the  decision  is  against 
the   title    set   up   under    them,   jurisdiction 


is  vested  in  this  court  by  the  25th  section 
of  the  judiciary  act,  to  examine  the  judg- 
ment of  the  state  court.  "And  in  doing 
so,  vve  refer  to  the  opinoin  of  that  court, 
which  is  made  part  of  the  record  by  the 
laws  of  Louisiana,  and  is  explanatory  to 
the  judgment,  of  which  it  is  there  deemed 
an  essential  part.  We  refer  to  the  opin- 
ion, in  order  to  show  that  questions  did 
arise  and  were  decided,  as  required,  to 
give  this  court  jurisdiction.  Almonester 
V.  Kenton,  9  How.  1,  9,  13  L.  Ed.  21.  This 
is  necessarily  so  in  cases  brought  here  by 
writ  of  error  to  the  courts  of  Louisiana, 
because  no  bill  of  exceptions  is  necessary 
there,  when  appeals  are  prosecuted.  The 
court  of  last  resort  acts  on  the  law  and 
facts  as  presented  by  the  whole  record." 
Cousin  V.  Labatut,  19  How.  202,  15  L-  Ed. 
601. 

Examination  of  plaintiff's  title. — Where 
a  party  claiming  title  to  lands  under  an  act 
of  congress,  brought  a  bill  for  a  convey- 
ance, and  stated  several  equitable  circum- 
stances in  aid  of  his  title,  and  the  state 
court  where  the  suit  was  brought  having 
dismissed  the  bill,  ana  the  cause  being 
brought  to  this  court  by  appeal,  under 
the  25th  section  of  the  judiciary  act  of 
1789,  c.  20,  upon  the  ground  of  an  al- 
leged misconstruction  of  the  act  of  con- 
gress by  the  state  court;  held,  that  this 
court  could  not  take  into  consideration 
any  distinct  equity  arising  out  of  the  con- 
tracts or  transactions  of  the  parties,  and 
creating  a  new  and  independent  title,  but 
was  confined  to  an  examination  of  the 
plaintiff's  title  as  depending  upon  the 
construction  of  the  act  of  congress, 
Matthews  r.  Zane.  7  Wheat.  164,  5  L-  Ed. 
425. 

Validity  of  authentication  of  purchases. 
— Where  the  supreme  court  of  a  state  has 
decided  against  the  validity  of  a  patent, 
on  the  ground  that  the  act  of  congress 
and  regulations  of  the  general  land  office 
directing  the  manner  in  which  the  pur- 
cliase  of  public  lands  shall  be  authenti- 
cated by  the  registers  and  receivers  of 
the  land  offices  has  not  been  complied 
with,  this  court  has  jurisdiction  under  the 
25th  section  of  the  judiciary  act  to  review 
that  judgment.  Bell  f.  Hearne,  19  How. 
252,  15  L.  Ed.  614,  citing  Armstrong  v. 
The  Treasurer.  16  Pet.  281,  10  L.  Ed.  965; 
Grand  Gulf  Railroad,  etc.,  R.  Co.  v.  Mar- 
shall, 12  How.  165.  13  L.  Ed.  939. 

Identity  of  person  entitled  to  title. — A 
question  of  federal  jurisdiction  under  the 
twenty-fifth  section  of  the  judiciary  act 
is  not  necessarily  raised  by  every  suit  for 
real  estate  in  which  the  parties  claiming 
under  the  federal  government  are  at  issue 
as  to  which  of  them  is  entitled  to  the  ben- 
efit of  that  title.  And  when  the  issue 
turns  solely  upon  the  personal  identity  of 
the    individual    to    whom    the    recorder    of 


684 


APPEAL  AND  ERROR. 


alone  presented  a  federal  que'^^ion.^^  The  mere  fact  that  an  act  of  congress  or 
a  patent  of  the  United  States  appears  in  a  chain  of  title  of  a  state,  does  not  con- 
stitute such  a  right,  title  or  immunity  as  gives  the  federal  court  jurisdiction,  un- 


land  titles  confirmed,  or  meant  to  con- 
firm, a  lot  of  ground — as  ex.  gr.,  whether 
when  he  confirmed  the  land  in  the  name 
of  Louis  Lacroix  he  meant  Louis  La- 
croix,  or  whether  he  really  meant  Joseph 
Lacroix — a  matter  to  be  determined  by 
the  rules  of  common  law — this  court  has 
no  jurisdiction,  even  though  the  parties 
claimed  under  the  federal  government. 
Carpenter  v.  Williams,  9  Wall.  785,  19  L. 
Ed.   827. 

Grounds  of  decision  immaterial. — 
Under  the  25th  section  of  the  judiciary 
act,  it  is  not  material  whether  the  inva- 
lidity of  a  title  was  decreed  in  the  state 
court  upon  a  question  of  fact  or  of  law. 
The  fact  that  the  title  was  rejected  in  that 
court,  authorizes  this  court  to  re-examine 
the  decree.  "The  decision  in  the  supreme 
court  of  Arkansas  drew  in  question  an 
authority  exercised  under  the  United 
States,  to  wit;  that  of  admitting  Cloyes  to 
make  his  entry;  and  the  decision  was 
against  its  validity,  and  overthrew  his 
title,  and  is,  therefore,  subject  to  be  re- 
examined, and  reversed  or  affirmed  in  this 
court,  on  all  the  pleadings  and  proofs 
which  immediately  respect  the  question 
of  the  proper  exercise  of  authority  by  the 
officers  administering  the  sale  of  the  pub- 
lic lands  on  the  part  of  the  United  States. 
In  the  case  of  Martin  v.  Hunter,  l  Wheat. 
S04,  352,  4  L.  Ed.  97,  the  foregoing  con- 
struction of  the  25th  section  of  the  judi- 
ciary act  of  1789  was  recognized,  and  has 
been  followed  since,  in  the  cases  of  Chou- 
teau V.  Eckhart,  2  How.  344,  372.  11  L. 
Ed.  293;  Cunningham  v.  Ashley,  14  How. 
377,  14  L.  Ed.  462;  Garland  ?'.  Wynn.  20 
How.  6,  8,  15  L.  Ed.  801,  and  other  cases." 
Lytle  V.  Arkansas,  22  How.  193,  16  L. 
Ed.   306. 

But  where  ejectment  is  brought  in  the 
state  court  to  recover  possession  of  the 
town  site  claimed  under  a  patent  from 
the  United  States  for  a  mining  claim,  a 
decision  of  the  state  court  that  the  stat- 
ute of  limitations  did  not  begin  to  run 
against  the  mining  claim  until  the  patent 
had  been  issued,  presents  no  federal  ques- 
tion. Carothers  v.  Mayer,  164  U.  S.  325, 
41   L.  Ed.  453. 

Where  ejectment  is  brought  in  the  state 
court  to  recover  possession  of  a  town 
site,  claimed  under  a  patent  from  the 
United  States  for  a  mining  claim,  a  de- 
cision of  the  state  court  that  the  matter 
alleged  as  an  estoppel  having  taken  place 
before  the  time  the  plaintiffs  made  their 
application  for  a  patent,  and  notice  of 
such  application  having  been  given,  that 
all  adverse  claimants  be  given  an  op- 
portunity of  contesting  the  applicant's 
right  to  a  patent,  and  that  the  patent  hav- 
ing been  issued,  it  was  too  late  to  base  a 


defense  upon  the  facts  existing  prior 
thereto,  presents  no  federal  question. 
Carothers  v.  Mayer.  164  U.  S.  325,  41  L. 
Ed.    -^53. 

69.  Blackburn  v.  Portland  Gold  Min. 
Co..  175  U.  S.  571.  579,  44  L.  Ed.  276,  re- 
affirmed in  Empire  State-Idaho  Min.,  etc., 
Co.  V.  Bunker  Hill  Min.  Co.,  200  U.  S. 
613,  50  L.  Ed.  620;  Warder  v.  Loomis, 
197  U.  S.  619,  49  L.  Ed.  909;  Chapman, 
etc..  Land  Co.  v.  Bigelow,  206  U.  S.  41,  51 
L.   Ed.  953. 

In  a  suit  for  the  recovery  of  lands, 
where  both  parties  claimed  under  a  com- 
mon grantor  whose  title  from  the  United 
States  was  admitted,  this  court  had  no 
jurisdiction  for  the  review  of  the  deci- 
sions of  a  state  court  upon  questions  re- 
lating only  to  the  title  acquired  by  the 
several  parties,  under  their  respective 
grants,  from  the  common  grantor,  and 
which  were  not  in  themselves  of  a  fed- 
eral character.  Hastings  v.  Jackso«.  112 
U.  S.  233,  237,  28  L.  Ed.  712,  following 
Romie  v.  Casanova,  91  U.  S.  379,  23  L. 
Ed.  374;  McStay  V.  Friedman,  92  U.  S. 
723.    23    L.    Ed.    767. 

Thus  in  Romie  v.  Casanova,  91  U.  S. 
379,  23  L.  Ed.  374,  which  was  an  action 
brought  to  recover  the  possession  of  cer- 
tain lands  in  the  city  of  San  Jose,  the 
question  to  be  determined  was.  which  of 
the  two  parties  had  actually  obtained  a 
grant  of  the  particular  premises  in  ques- 
tion. The  title  of  the  citv  had  originated 
before  the  cession  of  California  to  the 
United  States.  But  this  court  said:  "The 
title  of  the  city  was  not  questioned.  Even 
if  it  depended  upon  the  treaty  of  Guad- 
alupe Hidalgo  and  the  several  acts  of 
congress  to  ascertain  and  settle  private 
land  claims  in  California,  the  case  would 
not  be  different.  Both  parties  admit  that 
title,  and  their  litigation  extends  only  to 
the  determination  of  the  rights  which  they 
have  severally  acquired  under  it."  Ac- 
cordingly the  writ  of  error  to  the  supreme 
court  of  California  was  dismissed  for 
want  of  jurisdiction. 

Where,  in  ejectment  for  a  part  of  the 
lands  confirmed  to  the  city  of  San  Fran- 
cisco by  an  act  of  congress,  the  validity 
and  operative  eflfect  of  which  were  not 
questioned,  the  judgment  of  the  supreme 
court  of  the  state  of  California  was  ad- 
verse to  the  defendant,  who  endeavored 
to  make  out  such  possession  as  would, 
under  the  operation  of  the  city  ordinance 
and  the  act  of  the  legislature,  transfer,  as 
he  claimed,  the  title  of  the  city  to  him, 
held,  that  this  court  has  no  jurisdiction. 
"No  federal  question  was  involved  in  the 
decision  of  the  supreme  court.  The  city 
title  was  not  drawn  in  question.  The 
real    controversy    was    as    to    the    transfer 


APPEAL  AND  ERROR. 


635 


less  such  title  involves  the  construction  of  the  act  or  the  determination  of  the 
rights   of   the    party   under    itJ^ 

bb.  Construction  of  Patents. — No"  federal  question  arises  upon  the  pure  ques- 
tion of  the  construction  of  the  language  used  in  a  patent  from  the  United  States. 
there  being  no  construction  put  upon  any  statute,  nor  upon  any  authority  exer- 
cised under  the  United  States.  But  where  the  grant  is  bounded  by  the  waters  of 
a  navigable  river  and  the  right  to  make  the  grant  to  the  extent  claimed  by  the 
grantee  is  denied  by  a  grantee  under  a  state,  the  denial  of  the  validity  of  the  au- 
thority exercised  would  present  a  federal  questionJ^ 


of  that  title  to  the  plaintififs  in  error;  and 
this  did  not  depend  upon  the  'constitution, 
or  any  treaty  or  statute  of,  or  commission 
held  or  authority  exercised  under,  the 
United  States.'  The  case  is,  therefore,  in 
all  essential  particulars,  like  that  of  Ro- 
mie  r.  Casanova.  91  U.  S.  379,  23  L.  Ed. 
374,  and  the  writ  must  be."  McStaj'  v. 
Friedman,  92  U.  S.  723,  23  L.  Ed.  767. 
This  court  has  no  jurisdiction  to  review 
the  judgment  of  the  supreme  court  of 
California  where  no  right  of  the  state  to 
have  the  land  listed  to  California  under 
§  8  of  the  act  of  September  24.  1841,  was 
in  question,  but  the  litigation  is  confined 
to  a  contest  between  the  parties  as  to 
which  has  the  better  right  to  buy  from 
the  state.  Mace  v.  Merrill,  119  U.  S.  5S1, 
30  L.  Ed.  503,  following  Romie  z'.  Casa- 
nova, 91  U.  S.  379,  23  L.  Ed.  374;  Mc- 
Stay  V.  Friedman,  92  U.  S.  723,  23  L.  Ed. 
767;  Hastings  v.  Jackson.  112  U.  S.  233. 
28  L.   Ed.   712. 

70.  De  Lamar's  Nevada  Min.  Co.  v.  Nes- 
bitt,  177  U.  S.  523,  44  L.  Ed.  872;  Iowa 
V.  Rood,   187  U.   S.   87,  92,  47  L.   Ed.  86. 

This  court  has  no  jurisdiction  to  review 
by  writ  of  error  the  decision  of  a  state 
court,  holding  that  in  an  action  to  quiet 
title  to  wild  and  unoccupied  lands,  the 
plaintiff  must  succeed,  if  at  all,  on  the 
strength  of  his  own  title,  and  not  on  the 
weakness  of  his  adversary's,  although  the 
plaintiffs  claim  title  under  an  act  of  con- 
gress entitled  an  act  to  enable  the  state 
of  Arkansas  and  other  states  to  reclaim 
the  swamp  lands  within  their  lin^'f  '^'■'-l'^- 
man.  etc..  Land  Co.  v.  Bigelow,  206  U.  S. 
41.  51    T  .  Kd.  953. 

71.  Construction  of  patents. — The  ques- 
tion was  whether  the  plaintiff  is  entitled 
to  the  alluvion  caused  by  the  recession  of 
the  Mississippi  river  to  a  point  east  of 
where  it  flowed,  at  the  time  plaintiff's 
predecessor  took  title  to  the  property  by 
virtue  of  a  patent  from  the  United  States. 
The  state  court  construing  the  language 
used  in  the  patent,  decided  that  the  grant 
did  not  extend  to  the  river  bank,  but 
bounded  the  land  conveyed  under  it,  by 
a  line  separated  from  the  waters  of  the 
river  by  a  sand  beach.  On  writ  of  error 
to  the  state  court  it  was  held  that  no  fed- 
eral question  was  involved  or  decision 
made  as  to  validity  of  the  authority  ex- 
ercised, but  thnt  it  was  mere  interpreta- 
tion of  the  authority  reallv  exercised.  It 
was   really   a   question   of   fact   as   to   how 


far  east  the  measurement  of  the  courses 
and  distances  carried  the  boundary.  There 
was  no  contention  as  to  the  authority  of 
the  government  to  convey  the  land  to  the 
bank  of  the  river  where  the  water  was 
actually  flowing  if  it  ch^se  to  do  so. 
Sweringen  v.  St.  Louis,  185  U.  S.  38.  46 
L.  Ed.  795,  distinguishing  Packer  v.  Bird, 
137  U.  S.  661,  34  L.  Ed.  819;  Shively  v. 
Bowlby,  152  U.   S.  1,  38   L.   Ed.  331. 

"In  Packer  v.  Bird,  137  U.  S.  661,  34  L- 
Ed.  819,  it  was  a  question  how  far  a 
grant  carried  the  title  to  land  bounded 
by  the  margin  of  the  Sacramento  River, 
or,  as  stated  by  Mr.  Justice  Field,  who 
delivered  the  opinion  of  the  court  in  that 
case,  'The  question  presented  is,  whether 
the  patent  of  the  United  States,  describ- 
ing the  eastern  boundary  of  the  land  as 
commencing  at  a  point  on  the  river,  which 
was  on  the  right  and  west  bank,  and  run- 
ning southerly  on  its  margin,  embraces  the 
island  within  it.  or  whether,  notwithstand- 
ing the  terms  of  apparent  limitation  of  the 
eastern  boundary  to  the  margin  of  the 
river,  the  patent  carries  the  title  of  the 
plaintiff  holding  under  it  to  the  middle 
of  the  stream.  The  contention  of  the 
plp-''*-ff  -'o  tH?t  the  land  granted  and  pat- 
ented, being  bounded  on  the  river,  ex- 
tends to  the  middle  of  the  stream,  and 
thus  includes  the  island.  It  does  not  ap- 
pear in  the  record  that  the  waters  of  the 
river  at  the  noint  where  the  island  is 
situated  are  affected  by  the  tides;  but  it  is 
assumed  that  such  is  not  the  case.  The 
contention  of  the  plaintiff  proceeds  upon 
that  assumption."  The  opinion  then  pro- 
ceeds with  an  examination  of  the  question 
of  what  was  the  common  law  upon  the 
subject,  and  whether  that  law  had  been 
adopted  in  the  state  of  California  where 
the  land  was.  It  was  stated  that  it  was 
'undoubtedly  the  rule  of  the  common  law 
that  the  title  of  owners  of  land  bordering 
on  rivers  above  the  ebb  and  flow  of  the 
tide  extends  to  the  middle  of  the  stream, 
but  that  where  the  waters  of  the  river  are 
affected  by  the  tides,  the  title  of  such 
owners  ";  limited  to  ordinary  high-water 
mark.  The  title  to  land  below  that  mark 
in  such  cases  is  vested,  in  England  in  the 
Crown,  and  in  this  country  in  the  state 
within  whose  boundaries  the  waters  lie, 
private  ownership  of  the  soils  under  them 
being  deemed  inconsistent  witli  the  in- 
terest of  the  public  at  large  in  their  use 
for   purposes   of   corr«nerce.'      It   was   said 


686 


APPEAL  AND  ERROR. 


cc.  Titles  Claimed  under  Patents  Based  upon  Spanish  or  Mexican  Grants. — 
Where  the  title  was  not  derived  from  the  United  States,  but  from  a  Spanish  or 
French  grant,  this  court  has  no  jurisdiction.'^ 


there  was  much  conflict  of  opinion  in  the 
western  states  as  to  what  the  true  doc- 
trine was,  whether  it  was  the  common 
law,  which  decided  the  question  by  the 
ebb  and  flow  of  the  tides,  or  the  law  of 
actual  navigability  of  the  river,  and  in  the 
case  then  before  the  court  it  accepted  the 
view  of  the  supreme  court  of  California 
in  its  opinion  as  expressing  the  law  of 
that  state,  'that  the  Sacramento  River  be- 
ing navigable  in  fact,  the  title  of  the 
plaintiff  extends  no  farther  than  the  edge 
I  if  the  stream.'  It  was  in  a  case  involv- 
ing such  facts  that  the  remark  was  made, 
in  \ho  c^'Tt^e  of  tlie  opinion,  that  the  courts 
of  the  United  States  would  construe  the 
grants  of  the  general  government  with- 
out reference  to  the  rules  of  construction 
adopted  by  the  states  for  their  grants,  but 
that  whatever  incidents  or  rights  attached 
to  the  ownership  of  property  conveyed  by 
the  government  would  be  determined  by 
the  states,  subject  to  the  condition  that 
their  rules  do  not  impair  the  efiicacy  of 
the  grants  or  the  use  and  enjoyment  of 
the  property  by  the  grantee.  It  was  a  nec- 
essary case  for  the  court  to  adopt  one 
or  the  other  of  these  two  conflicting  rules 
for  the  construction  of  the  grants  of  the 
general  government,  and  in  making  its 
decision  as  to  the  proper  construction  in 
such  cases  the  court  held  that  the  ques- 
tion of  construction  became  one  of  a  fed- 
eral nature."  Sweringen  v.  St.  Louis,  185 
U.    S.   38,   43,   46   L.    Ed.   795. 

In  Shively  v.  Bowlby,  152  U.  S.  1,  38  L- 
Ed.  331,  the  controversy  was  as  to  the 
extent  of  the  grant  of  the  United  States 
government  of  land  bounded  by  the  Co- 
lumbia River  in  the  state  of  Oregon. 
The  question  was  as  to  how  far  such  a 
grant  extended  (the  actual  limitations  of 
the  boundaries,  by  the  language  used,  not 
being  disputed),  whether  in  legal  effect  it 
granted  lands  under  the  water  of  the 
river,  and  the  question  was  held  to  be  a 
federal  one.  Sweringen  v.  St.  Louis,  185 
U.  S.  38,  43.  46  L.   Ed.  795. 

72.  Titles  claimed  under  patents  based 
upon  Spanish  or  Mexican  grants. — Cali- 
fornia Powder  Works  v.  Davis,  151  U.  S. 
389,  38  L.  Ed.  206;  Phillips  v.  Mound  City 
Ass'n,   124  U.    S.   605,   31   L.    Ed.   588. 

On  a  writ  of  error  to  a  state  court  under 
the  25th  section  of  the  judiciary  act,  on 
the  alleged  ground  that  a  right  or  title 
derived  from  the  United  States  has  been 
denied  by  the  state  court,  if  it  appears 
that  such  title  was  not  derived  from  the 
United  States  but  from  a  French  patent 
or  grant,  the  writ  of  error  will  be  dis- 
missed. The  court  said  that  "the  princi- 
ples of  law  applicable  to  these  possessions 
as  existing  in  Alabama,  and  as  to  land  held 
under    ancient    French    and    Spanish    per- 


mits and  grants,  we  do  not  propose  to 
consider;  nor  do  we  propose  to  revise  the 
correctness  of  the  rulings  of  the  state 
courts  concerning  them,  because  they  are 
matters  clearly  within  their  sole  juris- 
diction." Opinion  of  Mr.  Justice  Wood- 
berry.  Doe  V.  Eslava,  9  How.  421,  13  L. 
Ed.   200. 

Forbes    &    Company    obtained    a    grant 
of  land  in  1807  from   Morales,   Intendant- 
General    under    the    Spanish    government, 
which    land    was    adjacent    to    Mobile,    in 
West    Florida.      This    grant    purported    to 
be,  in  part,  the  confirmation  of  a  conces- 
sion granted  in  1796  and  surveyed  in  1802. 
The  survey  terminated  at  high-water  mark 
upon    the    river.      The    grant    of    1807    in- 
cludes the  land  between  the  then  bank  of 
the  river  and  the  high-water  mark  of  1802. 
This  grant  of  1807  was  excepted  from  the 
operation  of  the  act  of  congress  passed  o« 
the    26th   of    March,   1804,   which   annulled 
all   Spanish   grants   made   after   the   1st  of 
October,     1800,    and     was     recognized    as 
a    valid    grant    by    the    act    of    March    3d, 
1819.      An    act    of    March    2d,    1829,    con- 
firmed  an   incomplete   Spanish   concession 
which   was   alleged   to   draw   after   it,   as  a 
consequence,    certain   riparian   rights   con- 
flicting with  those  claimed  under  the  grant 
of    1807.     A    decision  of  a  state  court,  giv- 
ing   the    land    covered    by    these    riparian 
rights  to  the  claimants  under  the  grant  of 
1807.   was   only  a  constitution  of  a  perfected 
Spanish   title,  and  cannot  be  reviewed  by 
this   court   under   the    twenty-fifth    section 
of   the   judiciary  act.     It   did   not   draw  in 
question    an    act   of   congress    or    any   au- 
thority   exercised    under    the    constitution 
or    laws    of   the    United    States.      "In   this 
case,  as   in   that  of   McDonogh  v.   Miliau- 
don,  3   How.  693,  11  L.   Ed.  787,  the  state 
courts   were   called   on  to   construe  a  per- 
fected  Spanish  title  and  to  settle  its  lim- 
its by  applying  the  local  law,  and  having 
done    oo.    this    court   has    no    authority   to 
revise  the  judgment."     Kennedy  v.   Hunt, 
7  How.  586,  12  L-   Ed.  829. 

In  Hoadley  v.  San  Francisco,  4  Otto  4, 
24  L.  Ed.  34,  the  action  was  commenced 
by  the  appellant,  a  citizen  of  California, 
in  the  district  court  for  the  twelfth  judi- 
cial district  of  that  state,  to  quiet  his  title 
to  certain  of  the  pueblo  lands  of  the  city 
of  San  Francisco  granted  to  that  city  by 
the  act  of  congress,  passed  July  1,  1864, 
13  Stat.  333,  §  5,  which  provides:  "That 
all  the  right  and  title  of  the  United  States 
to  the  lands  within  the  corporate  limits  of 
the  city  of  San  Francisco  *  *  *  are 
hereby  relinquished  and  granted  to  the 
said  city  and  its  successors,  for  the  uses 
and  purposes  specified  in  the  ordinances 
of  said  city,  ratified  by  an  act  of  the  leg- 
islature of  the  said  state,  approved  on  the 


APPEAL  AND  ERROR. 


687 


But  where  the  defendant's  title  depends  upon  a  Spanish  grant  claimed 
to  have  been  perfected  under  the  treaty  of  1819  between  the  United  States  and  the 
King  of  Spain,  8  Stat.  252.  and  a  patent  of  the  United  States  dated  December  28, 
1836,  in  alleged  confirmation  of  such  claim,  a  federal  question  is  involved  and 


11th  of  March.  1858."  It  was  held,  that 
the  question  of  title  involved  in  this  case 
did  not  arise  under  the  constitution  or  the 
laws  of  the  United  States,  or  a  treaty 
made  under  its  authority.  The  circuit 
court  therefore  did  not  err  in  remanding  it 
to  the  state  court  from  which  it  had  been 
removed. 

The  decision  by  a  state  court  as  to 
whether  title  claimed  under  a  Mexican 
grant  made  prior  to  the  treaty  of  Guada- 
lupe Hidalgo,  was  forged  or  obtained  by 
fraud,  does  not  involve  a  denial  of  a  right 
oi  title  set  up  under  the  treaty  or  stat- 
ute. "The  treaty  extended  no  protection 
to  a  fraudulent  claim,  nor  did  proceedings 
under  the  statute  to  which  each  was  re- 
spectively not  a  party  or  privy  determined 
any  such  question  as  between  these  pri- 
vate parties,  neither  of  whoin  claimed 
under  the  United  States  by  title  subse- 
quent, feut  both  of  whom  claimed  under 
patents  based  upon  Mexican  grants. 
Lynch  V.  Bernal,  9  Wall.  315,  323,  19  L. 
Ed.  714."  California  Powder  Works  v. 
Davis,   151   U.   S.    389,   38   U    Ed.   206. 

In  an  action  for  recovery  of  real  estate, 
defenses  based  on  a  Spanish  land  grant 
involve  no  question  of  a  federal  nature, 
where  neither  the  validity  nor  construc- 
tion of  any  treaty  of  the  United  States, 
nor  the  validity  of  the  grant,  are  chal- 
lenged, and  a  decision  of  the  state  court 
is  not  reviewable  by  the  supreme  court 
of  the  United  States  on  the  ground  that  a 
federal  question  is  involved.  O'Conor  v. 
Texas,  202  U.  S.  501,  50  U  Ed.  1120,  re- 
affirmed in  Garza  v.  Texas,  205  U.  S.  536, 
51  L.   Ed.   9-^0. 

An  adjudication  by  the  highest  court 
of  a  state  that  certain  proceedings  before 
a  Mexican  tribunal  prior  to  the  treaty  of 
Guadalupe  Hidalgo  were  insufficient  to 
effect  a  partition  of  a  tract  of  land  before 
that  time  granted  by  the  Mexican  govern- 
ment to  three  persons  who  were  part- 
ners, which  grant  was  confirmed  by  com- 
missioners appointed  under  the  provisions 
of  the  act  of  March  3,  1851,  9  Stat.  631, 
"to  ascertain  and  settle  the  private  land 
claims  in  the  state  of  California,"  pre- 
sents no  fedej-al  question  which  is  subject 
to  review  here.  "The  only  question  is, 
whether  such  a  partition  was  made,  and 
npon  that  the  decision  of  the  state  court 
is  final,  and  not  subject  to  review.  It 
'drew  in  question  no  act  of  congress,  nor 
any  authority  exercised  under  the  consti- 
tution or  laws  of  the  United  States,  and 
therefore  the  decision  of  the  state  court 
could  not  be  opposed  either  to  the  laws 
or  to  any  authority  exercised  under  the 
laws  of  the  United  States.'  This  was 
said  in  Kennedv  v.  Hunt,  7  How.  586,  593, 


12  L.  Ed.  829,  in  reference  to  the  construc- 
tion which  had  been  given  to  a  Spanish 
title  by  a  state  court,  and  is  equally  ap- 
plicable here."  Phillips  v.  Mound  City 
Ass'n,  124  U.  S.  605,  612,  31  L.  Ed.  588, 
approved  in  California  Powder  Works  v. 
Davis,  151  U.  S.  389,  395,  38   L.  Ed.  206. 

This  court  has  jurisdiction,  under  the 
twenty-fifth  section  of  the  judiciary  act 
in  a  Missouri  land  cause,  where  the  title 
is  not  to  be  determined  by  the  Spanish 
laws  alone,  but  where  the  construction  of 
an  act  of  congress  is  involved  to  sustain 
the  title.  Chouteau  v.  Eckhart,  2  How. 
344,  11  L.  Ed.  293,  citing  Pollard  v.  Kibbe, 
14  Pet.  353,  10  L.  Ed.  490;  Mobile  v.  Es- 
lava,  16  Pet.  234,  10  L.  Ed.  948. 

Where  the  validity  of  an  act  of  congress 
by  which  Mexican  and  Spanish  grants 
have  been  confirmed  and  patented,  is  not 
drawn  in  question  in  the  state  court,  and 
where  the  right  or  title  asserted  by  the 
plaintiffs  in  error  was  derived  under  Mex- 
ican and  Spanish  grants,  it  was  held,  that 
a  decision  of  the  state  court  on  a  claim 
asserted  by  the  plaintiffs  in  error  to  ri- 
parian rights  and  subterranean  waters  is 
not  against  any  title  or  right  claimed  un- 
der the  constitution,  or  any  treaty,  or 
statute  of,  or  commission  held,  or  author- 
ity exercised,  under  the  constitution.  "If 
the  title  of  plaintiffs  in  error  were  pro- 
tected by  the  treaty,  still  the  suit  did  not 
arise  thereunder,  because  the  controversy 
in  the  state  court  did  not  involve  the  con- 
struction of  the  treaty,  but  the  validity 
of  the  title  of  Mexico  and  Spanish  grants 
prior  to  the  treaty.  New  Orleans  z\  De 
Armas,  9  Pet.  224,  9  U  Ed.  109;  Iowa  v. 
Rood,  187  U.  S.  87,  47  L.  Ed.  86;  Phillips 
V.  Mound  City  Ass'n,  124  U.  S.  605,  31  L. 
Ed.  588;  Hooker  v.  Los  Angeles,  188  U. 
S.  314,  47  L.  Ed.  487,  reaffirmed  in  New 
York.  etc..  R.  Co.  v.  Plymouth,  193  U.  S. 
668,  48  L.  Ed.  839. 

Where  the  contention  is  that  the  state 
courts  decided  against  the  claim  of  plain- 
tiffs in  error  to  the  rights  of  a  riparian 
owner,  and  to  the  ownership  of  alleged 
percolating  waters,  as  derived  from  pat- 
ents of  the  United  States  as  well  as  from 
Mexican  grants,  or  under  the  treaty  of 
Guadaloupe  Hidalgo,  it  was  held,  that  the 
question  as  to  the  title  or  right  of  plain- 
tiffs in  error  in  the  land,  and  whatever 
appertained  thereto,  is  one  of  state  law 
and  of  general  public  law,  on  which  the 
decision  of  the  state  court  is  final.  Hoo- 
ker V.  Los  Angeles,  188  U.  S.  314, 
47  L.  Ed.  487,  citing  San  Francisco 
i:  Scott,  111  U.  S.  768,  28  L.  Ed.  593;  Cali- 
fornia Powder  Works  v.  Davis,  151  U. 
S.  389,  38  L.  Ed.  2    3. 


688 


APPEAL  AXD  ERROR. 


the  supreme  court  may  review  the  judgment  of  the  state  court. '-^ 

(25)  Claim  of  Right  under  Automatic  Coupler  Act. — A  federal  question  is 
not  presented  for  review  by  this  court  under  the  act  of  March  2.  1893.  requiring 
railroads  engaged  in  interstate  commerce  to  equip  their  cars  with  automatic  coup- 
lers, where  no  right  under  such  act  is  specially  set  up  or  claimed,  and  denied  by 
the  state  courtj^ 

(26)  Denial  of  Title  of  United  States  to  Land. — The  denial  by  the  state  court 
of  the  title  of  the  United  States  to  land  purchased  under  an  act  of  congress  au- 
thorizing such  purchase,   may  be  reviewed  by  this  court.'" 

(27)  Denial  of  Rights  under  Sicamp  Land  Act. — Where  the  decision  of  the 
highest  state  court  is  adverse  to  a  claim  of  title  imder  the  swamp  land  act.  a  writ 
of  error  will  lie  from  this  court." ^ 

(28)  Illegal  or  Unoiforceable  Contracts. — In  order  to  bring  himself  within  the 
act  of  congress,^  the  complainant  must  show  that  he  claimed  some  right,  some  in- 
terest, which  the  law  recognizes  and  protects,  and  which  was  denied  to  him  in  the 
state  court.  This  act  of  congress  gives  him  no  right  to  protection  from  the  con- 
sequences of  a  contract  made  in  violation  of  law.  Such  a  contract,  it  is  true,  would 
not  be  enforced  against  him  in  a  court  of  justice;  not  on  account  of  his  own 
rights  or  merits,  however,  but  from  the  want  of  merits  and  good  conscience  in 
the  party  asking  the  aid  of  the  court.  In  short,  to  support  this  writ  of  error,  he 
must  claim  a  right  which,  if  well  founded,  he  would  be  able  to  assert  in  a  court 
of  justice,  upon  its  own  merits,  and  by  its  own  strength.'^ 


75.  Mobile  Transportation  Co.  v.  Mo- 
bile. 187  U.  S.  479.  482.  47  L.  Ed.  266,  re- 
affirmed in  Mobile  Transportation  Co.  v. 
Mobile.  199  U.  S.  604,  50  L.  Ed.  330. 

76.  Claim  of  right  under  automatic 
coupler  act. — Southern  R.  Co.  v.  Carson, 
194  U.  S.  136.  48  L.   Ed.  907. 

77.  Denial  of  title  of  United  States  to 
land. — Where  land  was  conveyed  to  trus- 
tees, for  the  purpose  of  paying  a  debt  due 
to  the  United  States,  and  the  highest 
court  of  a  state  decided  against  a  title 
set  up  under  that  deed,  upon  the  ground 
that  the  deed  was  in  violation  of  the  act 
of  congress,  this  court  has  jurisdiction, 
under  the  twenty-fifth  section  of  the  ju- 
diciary act,  to  review  that  decision.  Neil- 
son  V.  Lagow,  12  How.  98,  13  L.  Ed.  909. 

This  court  has  jurisdiction  in  an  appeal 
from  the  supreme  court  of  the  state  of 
Ohio,  in  a  case  where  was  drawn  in  ques- 
tion at  the  trial  the  construction  of  the 
act  by  which  Virginia  ceded  the  territory 
she  claimed  northwest  of  the  river  Oiiio 
to  the  United  States,  and  of  the  resolu- 
tion of  congresvS  accepting  the  deed  of 
cession,  and  the  acts  of  congress  pro- 
lonc^ing  the  time  for  completing  titles  to 
lends  within  the  Virginia  military  reserva- 
tion; the  decision  of  the  supreme  court  of 
Ohio  having  been  against  the  title  set  vip 
imder  the  acts  of  congress.  Wallace  v. 
Parker.  6  Pet.  680.  8  L.  Ed.  543. 

78.  Denial  of  rights  under  swamp  land 
act.— Iowa  V.  R--d.  187  U.  S.  87,  47  L. 
Ed.  86.  approved  in  Chapman,  etc..  Land 
Co.  f.  Bigelow,  206  U.  S.  41,  45.  51  L.  Ed. 
953. 

79.  Illegal  or  unenforceable  contracts. 
— Walworth  v.  Knecland.  15  '^ow.  348. 
14    L.  Ed.  724;  Udell  z:  Davidson.  7   IK  .v. 


769,  12  L.  Ed.  907;  National  Bank  v.  Petrie, 
189  U.  S.  423.  424.  47  L-  Ed.  879;  Coude 
V.   York,   168   U.   S.   649.   42   L.    Ed.   611. 

"In  Walworth  z\  Kneeland.  15  How. 
348,  14  L.  Ed.  724,  it  was  held,  as  cor- 
rectly stated  in  the  headnotes:  'Where  a 
case  was  decided  in  a  state  court  agamst 
a  party,  who  was  ordered  to  convey  cer- 
tain land,  and  he  brought  the  case  up  to 
this  court  upon  the  ground  that  the  con- 
tract for  the  conveyance  of  the  land  was 
contrary  to  the  laws  of  the  United  States, 
this  is  not  enough  to  give  jurisdiction  to 
this  court  under  the  t\>'enty-fifth  section 
of  the  judiciary  act.  The  state  court 
decided  against  him  upon  the  ground  that 
the  opposite  party  was  innocent  of  all 
design  to  contravene  the  laws  of  the 
United  States.  But  even  if  the  state 
court  had  enforced  a  contract,  which  was 
fraudulent  and  void,  the  losing  part}-  has 
no  right  which  he  can  enforce  in  this 
court,  which  cannot  therefore  take  juris- 
diction over  the  case.'  "  Cited  in  Allen  v. 
Arguimbau.  198  U.  S.  149.  155.  49  L.  Ed. 
990;  Conde  v.  York.  168  U.  S.  642.  649. 
42  L.  Ed.  611. 

Mr.  Ch'ef  Justice  Tanej-  said,  in  Wal- 
worth r'.  Kneeland.  15  How.  348.  14  L.  Ed. 
724:  "But  if  it  had  been  oiherwise,  and 
the  state  court  had  committed  so  gross 
an  error  as  to  say  that  a  contract,  for- 
bidden by  an  act  of  congress,  or  against 
its  polic3^  was  not  fraudulent  and  void, 
and  that  it  might  be  enforced  in  a  court 
of  justice,  it  would  not  follow  that  ihis 
writ  of  error  could  be  maintained.  In 
order  to  bring  himself  within  the  twenty 
fifth  section  of  the  act  of  1789.  he  must 
show  that  he  claimed  some  right,  som.- 
interest,  which  the  law  recognizes  and  pro- 


APPEAL  AND  ERROR. 


689 


(29)  Validity  of  Confederate  Transactions. — The  difference  in  the  extent  ot 
the  jurisdiction  of  this  court  on  writ  of  error  to  the  highest  court  of  a  state,  and 
on  appeal  from  a  circuit  court  of  the  United  States — as  affected  by  the  ground  of 
the  decision  of  the  court  below — is  illustrated  by  the  cases  of  contracts  payable  in 
confederate  currency,  or  made  in  consideration  of  loans  of  confederate  currency, 
during  the  war  of  the  rebellion,  and  by  the  cases  of  promissory  notes  given  before 
that  war  for  the  price  of  persons  sold  as  slaves.  Those  cases  clearly  establish 
that,  on  a  writ  of  error  to  a  state  court,  this  court  had  jurisdiction  to  review  and 
reverse  the  judgment,  if  that  judgment  was  based  wholly  upon  the  state  consti- 
tution ;  but  that  if  it  was  based  on  the  previous  law  of  the  state,  this  court  had  no 
jurisdiction  to  review  it,  although  the  view  taken  by  the  state  court  was  adverse  to 
the  view  taken  by  this  court  in  earlier  and  later  cases  coming  up  from  a  circuit 
court  of  the  United  States.^^ 


tects,  and  which  was  denied  to  him  in  the 
state  court.  But  this  act  of  congress  cer- 
tainly grives  him  no  right  to  protection 
from  the  consequences  of  a  contract  made 
in  violation  of  law.  Such  a  contract,  it  is 
true,  would  not  be  enforced  against  him 
in  a  court  of  justice;  not  on  account  of  his 
own  rights  or  merits,  but  from  the  want 
of  merits  and  good  conscience  in  the 
party  asking  the  aid  of  the  court.  But  to 
support  this  writ  of  error,  he  must  claim 
a  right  which,  if  well  founded,  he  would 
be  able  to  assert  in  a  court  of  justice,  upon 
its  own  merits,  and  by  its  own  strength." 
Allen  V.  Argumbau,  198  U.  S.  149,  156, 
49  L.  Ed.  990. 

Deeds. — Where  a  case  was  decided  in  a 
state  court  against  a  party,  who  was  or- 
dered to  convey  certain  land,  and  he 
brought  the  case  up  to  this  court  upon  the 
ground  that  the  contract  for  the  convey- 
ance of  the  land  was  contrary  to  the  laws 
of  the  United  States,  this  is  not  enough 
to  give  jurisdiction  to  this  court  under  the 
25th  section  of  the  judiciary  act.  The 
state  court  decided  against  him  upon  the 
ground  that  the  opposite  party  was  in- 
nocent of  all  design  to  contravene  the 
laws  of  the  United  States.  But  even  if 
the  state  court  had  enforced  a  contract, 
which  was  fraudulent  and  void,  the  losing 
party  has  no  right  which  he  can  enforce 
in  this  court,  which  cannot  therefore  take 
jurisdiction  over  the  case.  Walworth  v. 
Kneeland,  15  How.  348,  14  L.  Ed.  724, 
cited  in  Conde  v.  York,  168  U.  S.  649,  42 
L.  Ed.  611. 

Bills  and  notes. — No  title,  right,  priv- 
ilege or  immunity  under  a  statute  of  the 
United  States,  within  the  intent  and  mean- 
ing of  §  709  of  the  Revised  Statutes,  was 
specially  set  up  or  claimed  by  the  defend- 
ant and  decided  against  him,  where  the 
state  court  has  overruled  a  plea  setting 
up  as  a  defense  to  the  action  that  certain 
notes  sued  on  were  illegal  and  void  as  the 
transaction  in  which  they  were  given  in- 
volved a  violation  of  §§  3390,  3393,  and 
3397  of  the  Revised  Statutes  some  such 
sections  are  regulations  to  secure  the  col- 
lection of  the  taxes  imposed  by  chapter 
7,  tit.   35,   and   defendant   could   derive   no 

1  U  S  Enc— 44 


personal  right  under  those  sections  to 
enforce  the  repudiation  of  his  notes,  even 
although,  on  grounds  of  public  policy, 
they  were  illegal  and  void.  Allen  v.  Ar- 
guimbau,  198  U.  S.  149.  155,  49  L.  Ed.  990, 
following  Walworth  v.  Kneeland,  15  How. 
348,   14   L.    Ed.  724. 

80.  Validity  of  confederate  transactions, 
— New  Orleans  Waterworks  Co.  v.  Lou- 
isiana Sugar  Co.,  125  U.  S.  18,  33,  31  L. 
Ed.    607. 

Validity  of  contracts  for  loan  of  Con- 
federate money. — The  decision  of  a  state 
court  which  simplv  held  that  promissory 
notes,  given  for  the  loan  of  "Confederate 
currency,"  together  with  a  mortgage  to 
secure  the  notes,  were  nullities  on  the 
ground  that  the  consideration  was  illegal, 
according  to  the  law  of  the  state,  at  the 
time  the  contract  was  entered  into,  is  not 
a  decision  repugnant  to  the  constitution. 
Bethell  v.  Demaret,  10  Wall.  537, 19  L.  Ed. 
1007. 

Where  the  judgment  of  a  state  court 
was  annulled  by  the  decree  of  a  court  of 
the  same  state,  on  the  ground  that  the 
notes  on  which  the  judgment  was  ren- 
dered were  given  for  a  loan  of  Confed- 
erate money,  and  that  the  transactions 
which  resulted  in  the  acquisition  of  the 
notes  were  had  between  enemies  durmg 
the  late  civil  war,  in  violation  of  the  proc- 
lamation of  the  president  forbidding  com- 
mercial intercourse  with  the  enemy,  this 
court  cannot  review  the  ruling  in  these 
particulars.  It  conflicts  with  no  part  of 
the  constitution,  laws,  or  treaties  of  the 
United  States,  and  presents  no  federal 
question.  Stevenson  v.  Williams,  19  W'all. 
572,    22    L.    Ed.    162. 

Payment  in  Confederate  money. — Where 
the  onl}'-  averments  in  the  bill  that  can  by 
any  possibility  raise  a  federal  question 
are  those  which  relate  to  the  payments 
in  the  notes  and  bonds  of  the  Confederate 
states,  it  does  not  necessarily  involve  the 
decision  of  any  federal  question  and  the 
writ  must  be  dismissed.  In  Delmas  v. 
United  States,  14  Wall.  661,  20  L.  Ed.  757, 
we  said  distinctly  that  a  federal  question 
was  not  necessarily  involved  in  a  case  be- 
cause  the   consideration   of   a   contract   to 


690 


APPEAL  AXD  ERROR. 


(30)  Decisions  of  State  Courts  under  Ordinance  of  Secession. — A  title,  right, 
privilege  or  immunity  claimed  under  the  Virginia  ordinance  of  secession,  gave 
this  court  jurisdiction.*' 

(31)  Denial  of  Rights  imder  Fifth  Amendjucnt. — Where  the  only  provision  of 
the  constitution  of  the  United  States  referred  to  in  the  assignment  of  errors  in 
the  state  court  is  the  fifth  amendment,  the  .averment  of  its  violation  creates  no  real 
federal  question,  because  that  amendment  is  a  restriction  on  federal  power,  and  not 
on  the  power  of  the  states. ^^  Therefore,  a  contention  in  the  highest  court  of  a 
state  that,  by  the  judgment  of  the  trial  court,  private  property  is  taken  for  public 
use  without  just  compensation  in  violation  of  the  5th  amendment  to  the  consti- 
tution of  the  United  States,  creates  no  real  federal  question,  since  that  amendment 
applies  only  to  the  federal  government.*'' 

(32)  Denial  of  Right  to  Trial  by  Jury  under  Seventh  Anicuduient. — Where 
the  record  shows  that  the  state  court  of  last  resort  determined  that  a  certain  stale 
law  was  not  in  conflict  with  the  provisions  of  the  federal  constitution  which  se- 
cures to  every  party,  where  the  value  in  controversy  exceeds  $20,  the  right  of 
trial  by  jury,  this  is  not  sufficient  to  give  this  court  jurisdiction  under  §  709  of  the 
Revised  Statutes,  because  this  amendment  to  the  constitution  does  not  apply  to 
irials  in  state  courts.** 

{ZZ)    Questions  Arising  under  the  Stamp  Acts. — Where  a  title,  right,  privilege 


be  enforced  was  Confederate  money. 
Dugger  V.  Bocock,  104  U.  S.  596,  601,  26 
L.  Ed.  846. 

"Here  there  are  no  averments  in  the 
bill  which  directly  present  the  validity 
under  the  laws  of  the  United  States  of  a 
payment  in  Confederate  securities,  and 
it  may  fairly  be  inferred  that  the  appel- 
lants relied  upon  an  entirely  different 
ground  for  the  relief  they  asked.  Such 
being  the  case,  no  federal  question  was 
necessarily  involved  in  the  decision  that 
has  been  made."  Dugger  v.  Bocock,  104 
U.  S.  596,  603,  26  L.   Ed.  846. 

81.  Decisions  of  state  courts  under  or- 
dinance cf  secession. — Allen  v.  McVeigh, 
107  U.   S.   433,  27  L.   Ed.  572. 

Ordinance  of  secession. — A  writ  of  er- 
ror will  lie  from  this  court  to  review  ti^e 
decision  of  a  state  court  under  an  ordi- 
nance of  the  convention  of  the  state  of  Vir- 
ginia, passed  April  13,  1861,  whereby  if 
the  debtor,  against  whom  there  was  an 
execution  in  the  hands  of  an  officer,  of- 
fered bond  with  security  for  the  payment 
of  the  debt,  interest,  and  costs,  when  the 
operation  of  the  ordinance  ceases,  his 
property  should  be  restored  to  him,  but 
if  he  offered  no  bond,  the  property  was 
to  be  restored  to  him  wnthout  lien,  unless 
i*  would  bring  its  appraised  value  as  of 
the  date  of  Nov.  6,  i860.  Daniels  v.  Tear- 
ney,  102  U.   S.   415,  26  L.   Ed.   187. 

82.  Denial  of  rights  under  the  fifth 
amendment. — Winous  Point  Shooting 
Club  z^.  Caspersen,  193  U.  S.  189,  48  L. 
Ed.  675,  citing  and  affirming  Chapin  v. 
Eye,  179  U.  S.  127,  45  L.  Ed.  119. 

Plaintiff  after  judgment  in  a  state  court, 
excepted  to  the  denial  of  his  motion  for 
a  new  trial  on  the  ground,  among  others, 
that  the  statute  of  the  state  in  question 
was  in  violation  of  the  5th  and  7th  amend- 
ments   to    the    constitution,    and    repeated 


that  contention  in  the  assignment  of  er- 
rors in  the  supreme  court,  adding  also 
that  the  statute  was  inconsistent  with  the 
ordinance  of  1787.  It  was  held  that  a 
constitutional  question,  which  will  con- 
fer jurisdiction  upon  the  supreme  court 
of  the  United  States  on  writ  of  error  to 
a  state  court,  is  not  raised  as  the  ordi- 
nance of  1787  was  superseded  by  the  adop- 
tion of  the  constitution  of  the  United 
States,  and  of  the  state,  and  the  5th  and 
7th  amendments  were  intended  to  operate 
solely  on  the  federal  government.  Chapin 
V.  Eye,  179  U.  S.  127,  45  L.  Ed.  119,  re- 
affirmed in  Herold  v.  Erank,  191  U.  S. 
558,  48  L.  Ed.  302;  Brewster  v.  Cahill, 
■194  U.  S.  629.  48  L.  Ed.  1158;  Gates  v. 
Commissioners,  183  U.  S.  693,  46  L.  Ed. 
393. 

83.  Winous  Point  Shooting  Club  v.  Cas- 
persen,  193  U.  S.  189,  48  L.  Ed.  675,  citing 
and  affirming  Chapin  v.  Eye,  179  U.  S. 
127,  45   L.   Ed.   119. 

84.  Denial  of  right  to  trial  by  jury 
under  seventh  amendment. — Edwards  v. 
Elliott,  21  Wall.  532,  22  L.  Ed.  487,  citing 
Barron  v.  Baltimore,  7  Pet.  243,  247,  8  L- 
Ed.  672;  Twitchell.  v.  Pennsylvania,  7 
Wall.  321,  326,  19  L.  Ed.  223;  Livingston 
V.  Moore.  7  Pet.  469,  551,  8  L.  Ed.  751; 
Eox  V.  .Ohio,  5  How.  410,  12  L.  Ed.  213; 
Smith  V.  Maryland,  18  How.  71,  76,  15  L. 
Ed.  269;  Cooley  on  Constitutional  Limi- 
tations, 2d  ed.  19. 

By   article    7    of    the    amendments    it   is     j 
provided,   that   "in    suits   at   common   law,     I 
where   the  value  in   controversy  shall   ex- 
ceed twenty  dollars,  the  right  of  trial  by 
jury    shall    be    preserved."      This,    as    has     i 
been  many  times  decided,  relates  only  to     j 
trials  in   the  courts   of  the   United   Stales. 
Edwards  v.  Elliott,  21  Wall.  532,  557,  22  L. 
Ed.  487.  The  states,  so  far  as  this  amend-     \ 
ment    is    concerned,    are    left    to    regulate 


APPEAL  AXD  ERROR. 


691 


or  immunity  is  set  up  and  claimed  under  the  federal  stamp  act.  and  denied  by  the 
state  court,  we  have  jurisdiction. ^^  flie  denial  by  the  state  court  of  an  objection  that 
an  instrument  was  not  stamped  as  required  by  the  act  of  congress,  raises  a  federal 
question, ^"^  but  it  is  otherwise  where  this  point  is  only  incidentally  in  question.'^ 

(34)  Questions  Arising  under  the  Quarantine  Lazvs. — A  decision  of  the  high- 
est state  court  in  an  action  for  conspiracy  against  the  collector  of  the  port,  and  a 
firm  of  warehousemen,  in  having  certain  cargoes  of  rags  belonging  to  the  plaintiflFs 
condemned  as  unclean  and  infectious  property,  cannot  be  reviewed  by  this  court 
on  a  writ  of  error  where  the  defendants  set  up  no  claim  of  privilege  or  immunity 
under  Revised  Statutes,  §  4792,  relating  to  the  inspection  and  health  laws.^^ 

(35)  Pozcer  of  the  States  to  Emit  Bills  of  Credit. — This  court  has  jurisdiction 
where  the  question  is  whether  a  state  statute  is  not  in  violation  of  the  tenth  sec- 
tion of  the  first  article  of  the  United  States  constitution  which  declares  that  no 
state  shall  emit  bills  of  credit,  where  the  question  is  directly  and  plainly  before 
the  state  court,  and  its  decision  is  in  favor  of  the  validity  of  the  state  statute.^'* 


trials  in  their  own  courts  in  their  own 
way.  A  trial  by  jury  in  suits  at  common 
law  pending  in  the  state  courts  is  not, 
therefore,  a  privilege  or  immurHty  of  na- 
tional citizenship,  which  the  states  are  for- 
bidden by  the  fourteenth  amendment  to 
abridge.  Walker  v.  Sauvinet,  92  U.  S. 
90,  <»:>,  23   L.   Ed.   678. 

The  provision  in  the  seventh  amend- 
ment of  the  constitution  of  the  United 
States,  which  declares  that  no  fact  tried 
by  a  jury  shall  be  otherwise  re-examined 
in  any  court  of  the  United  States  than  ac- 
cording to  the  rules  of  the  common  law, 
applies  to  the  facts  tried  by  a  jury  in  a 
cause  in  a  state  court.  "It  seems  to  us 
also  that  cases  of  Federal  cognizance, 
coming  up  from  state  courts,  are  not  only 
within  the  words,  but  are  also  within  the 
reason  and  policy  of  the  amendment.  They 
are  cases  involving  questions  arising  under 
the  constitution,  the  laws  of  the  United 
States,  and  treaties,  or  under  some  other 
federal  authority;  and,  therefore,  are  as 
completely  within  the  exercise  of  the 
judicial  power  of  the  United  States, 
as  much  so  as  if  the  cases  had  been  origi- 
nally brought  in  some  inferior  federal 
court.  No  other  cases  tried  in  the  state 
courts  can  be  brought  under  the  appel- 
late jurisdiction  of  this  court  or  any 
inferior  federal  court  on  which  appellate 
jurisdiction  may  have  been  conferred." 
The  Justices  v.  Murray,  9  Wall.  274,  19  L. 
Ed.  658. 

85.  Questions  arising  under  the  stamp 
acts. — The  issue  between  the  parties  in- 
volved an  assertion  on  one  side  that  the 
statute  of  June  13,  1884.  c.  448,  "to  meet 
war  expenditures,  etc.,"  imposed  on  the 
-express  company  the  absolute  duty  of  fur- 
nishing the  receipt,  of  affixing  the  stamp 
thereto  and  canceling  the  same.  On  the 
other  hand,  the  defense  of  the  express 
company  was  that  under  the  act  of  con- 
gress it  had  the  right,  privilege  or  im- 
munity (which  it  special!}-  set  up  and 
.claimed)  of  demanding  payment  of  the 
one  cent  tax  or  of  increasing  its  rates  to 
the  extent  that  the  tax  imposed  a  burden 
iipon  it,  provided   only  the   rates   charged 


were  just  and  reasonable.  The  supreme 
court  of  the  state  decided  that  the  express 
company  could  not  in  any  event  or  by 
any  means  transfer  the  burden  of  the  tax 
in  question.  It  was  held,  that  the  de- 
cision involved  a  federal  question.  The 
case  as  made  by  the  pleadings,  and  which 
was  decided  below,  involved  a  right,  priv- 
ilege or  immunity  under  the  act  of  con- 
gress, which  was  specially  set  up  and 
claimed  by  the  express  company,  to  con- 
tract with  the  shippers  for  the  payment  of 
the  tax  provided  by  the  act  of  congress 
or  to  increase  its  rate,  within  the  limit  of 
reasonableness,  to  the  extent  of  such  tax, 
which  right,  privilege  or  immunity  was 
denied  and  held  to  be  without  merit  by 
the  court  below.  There  is  therefore  ju- 
risdiction. Rev.  Stat.,  §  709.  American 
Express  Co.  v.  Michigan,  177  U.  S.  404, 
44   L.    Ed.   823. 

86.  On  a  bill  to  enforce  a  vendor's  lien, 
where  the  vendee  set  up  that  the  deed 
which  the  complainant  had  given  him 
was  insufficiently  stamped  (which  fact,  if 
true,  would,  under  an  act  of  congress, 
prevent  its  being  used  in  evidence),  the 
supreme  court  of  a  state,  disregarding  the 
objection,  enforced  the  lien.  The  vendee 
brought  the  case  here  as  within  the  25th 
section  of  the  judiciary  act.  Hef9,  that 
however  frivolous  the  objection  of  the 
vendee,  it  raised  a  question  under  the  sec- 
tion. Hall  V.  Jordan,  15  Wall.  393,  21  L. 
Ed.  72. 

87.  A  final  judgment  or  decree  by  the 
highest  court  of  law  or  equity  of  a  state 
that  revenue  stamps  attached  to  a  deed  of- 
fered in  evidence  and  objected  to  as  not 
having  stamps  proportioned  to  the  value  of 
the  land  conveyed  are  insufficient,  is  not  a 
subject  for  review  by  this  court  under  the 
25th  section  of  the  judiciary  act  of  1789. 
Lewis  V.  Campau,  3  Wall.  106,  17  L.  Ed. 
211. 

88.  Questions  arising  under  the  quar- 
antine laws. — Bartlett  v.  Lockwood.  160 
U.   S.   357,   40   L.    Ed.   455. 

89.  Power  of  the  states  to  emit  bills  of 
credit. — Craig  v.  Missouri,  4  Pet.  410,  7 
L.    Ed.   903;    Darrington   v.    Bank   of   Ala- 


692 


APPEAL  AND  ERROR. 


(36)   Pozver  of  the  States  to  Coin  Money. — A  denial  of  a  right,  title,  privilege 
or  immunity  under  cl.  5,  §  8,  art.  1,  of  the  constitution,  raises  a  federal  question.^! 

{2)7)  Compacts  hctzvcen  States. — Where  it  appears  on  the  record  that  the  ques- 
tion involved  arises  out  of  that  section  of  the  constitution  which  forbids  compacts 
between  the  states,  this  court  may  take  jurisdiction. ^2  g^^^j-  t]-,^  ^^j-j^  qI  error  will 
be  dismissed  unless  the  record  shows  that  the  constitutional  provision  was  in- 
volved in  the  case.  A  transaction  which  simply  fixes  boundaries  between  the 
states  is  insufficient. ^^ 
(38)     Sovereignty  of  the  States. — The  sovereignty  of  a  state  over  the  beds  of  its 


bama,  13  How.  12.  14  L.  Ed.  30;  Rae  v. 
Homestead,  etc.,  Co.,  176  U.  S.  121, 
44  L.  Ed.  398;  Byrne  v.  Missouri,  8  Pet. 
40,  8  L.  Ed.  859. 

Where  a  case  is  brought  up  from  the 
supreme  court  of  the  state  of  Alabama  by 
writ  of  error  issued  under  the  2.5th  sec- 
tion of  the  judiciary  act,  and  it  appears  that 
the  question  intended  to  be  raised  here 
is  whether  the  acts  of  the  state  of  Ala- 
bama creating  a  bank  and  branches  are 
.not  in  violation  of  the  10th  section  of  the 
first  article  of  the  United  States  constitu- 
tion which  declares  that  no  state  shall 
emit  bills  of  credit,  in  order  to  bring  that 
qtiestion  before  this  court  it  must  have 
been  raised  in  the  supreme  court  of  the 
5-tate,  and  have  been  decided  there. 
Matheson  v.  Bank  of  Alabama,  7  How. 
2eO,  12  L.  Ed.  692. 

Where  in  an  action  on  a  contract  pay- 
able "in  gold  coin  of  the  United  States 
erf  America  of  the  present  standard  weight 
and  fineness,"  the  state  court  did  not  de- 
cree the.  payment  in  gold  coin  of  the 
United  States,  but  simply  held  plaintiffs 
in  error  to  respond  in  lawful  money,  and 
entered  its  decree  accordingly,  and  the  su- 
preme court  decided  that  plaintiffs  in 
error  could  not  complain  of  that  decree 
because  not  prejudiced  thereby,  this  is  not 
a  decision  against  any  benefit  secured  by 
§  8  of  article  1  of  the  constitution  em- 
powering congress  to  coin  money  and  reg- 
ulate the  value  thereof,  and  clause  1.  §10 
of  article  1  provided  that  no  state  shall  coin 
money,  emit  bills  of  credit,  or  make  any- 
thing but  gold  and  silver  coin  a  tender  for 
the  payment  of  debts.  Rae  v.  Homestead 
etc.,  Co..  176  U.  S.  121,  44  L.  Ed.  398. 

91.  Power  of  the  states  to  coin  money. 
.^Rae   V.   Homestead,   etc.,   Co.,   176   U.   S. 

121,  44  L.   Ed.   398. 

92.  Compacts  between  states. — Where 
the  question  involving  the  jurisdiction 
over  the  Ohio  river  was  raised  in  the 
courts  of  Indiana,  the  supreme  court  ac- 
quires jurisdiction,  since  the  compact  of 
Virginia  and  the  act  of  congress  of  Feb- 
ruary 4,  1791,  were  involved.  Wedding 
r.  Meyler,  192  U.  S.  573,  581,  48  L.  Ed.  570, 
citing  Pennsylvania  v.  Wheeling,  etc., 
Bridge  Co.,  13  How.  518,  14  L.  Ed.  249. 

93.  Where  a  writ  of  error  is  sued  out 
Ml  this  court  to  a  state  court  under  that 
section     of     the     constitution     forbidding 


compacts  between  the  states,  the  assign- 
ment of  error  being  that  "the  plaintiff  de- 
rived his  title  from  Virginia,  the  act  or 
acts  of  the  state  of  Kentucky  on  which  the 
court  has  found  its  opinion,  is  repugnant 
to  the  compact  with  Virginia,  therefore, 
void  as  to  the  case  before  the  court,  be- 
ing against  the  constitution  of  the  United 
States,"  the  record  must  show  that  the 
compact  with  Virginia  was  involved  in 
the  case;  on  the  ground  that  the  juris- 
diction of  this  court  must  in  some  manner 
appear  on  the  record.  Fisher  v.  Cock- 
erel). 5  Pet.  248,  8  L.  Ed.  114.  reviewing 
Harris  v.  Dennie.  3  Pet.  292,  7  L-  Ed.  683; 
Craig  V.  Missouri.  4  Pet.  410,  7  L.  Ed.  903; 
Owings  V.  Norwood,  5  Cranch  344,  3  L. 
Ed.  120;  Miller  v.  Nicholls,  4  Wheat.  311, 
4   L.    Ed.   578. 

Two  states  made  an  agreement  afe  to 
where  the  boundary  line  between  them 
was,  and  congress  by  statute  gave  its 
assent  t^o  the  agreement.  After  this  one 
of  the  states  sued  a  corporation  of  the 
other  for  taking  possession  of  "land  and 
water  which  the  state  sueing  alleged  were 
in  its  territory.  The  corporation  asserted, 
in  defense,  that  under  the  agreement  the 
land  and  water  were  within  the  jurisdic- 
tion of  the  other  state;  and  the  highest 
tribunal  of  the  state  in  which  the  suit 
was  brought  decided  that  it  was  so.  Held, 
that  this  was  but  an  adjudication  upon  the 
meaning  of  the  agreement,  and  not  one 
upon  the  construction  of  the  statute;  and 
accordingl}^  that  error  would  not  lie  under 
the  25th  section  of  the  judiciary  act.  Peo- 
ple r.  Central  Railroad.  12  Wall.  455,  20 
L.  Ed.  458. 

A  contention  that  the  act  of  congress 
of  June  28,  1834,  4  Stat.  708,  ch.  126.  giv- 
ing consent  to  the  agreement  or  compact 
between  the  states  of  New  Jersey  and 
New  York  in  respect  of  their  territorial 
limits  and  jurisdiction,  dated  September 
16,  1S3o.  vested  exclusive  jurisdiction  in 
the  federal  government  over  the  sea  ad- 
joining the  two  states,  does  not  raise  a 
federal  question  reviewable  by  this  court 
on  the  writ  of  error  where  there  is  abso- 
lutely nothing  in  the  agreement  and  con- 
firmatory statutes  abdicating  rights  in 
favor  of  the  United  States,  and  the  trans- 
action simply  amounted  to  fixing  the 
boundaries  between  the  two  states.  Ham- 
burg American  Steamship  Co.  v.  Grube, 
196  U.  S.  407,  413,  49  L-   Ed.  529. 


APPEAL  AXD  PRROR. 


693 


inland  lakes  does  not  rest  upon  any  statute  or  provision  of  the  constitution  of  the 
United  States,  but  upon  general  principles  of  the  common  law  which  long  ante- 
dated the  constitution,  and  the  decision  of  the  state  court  denying  the  title  of  the 
state  is  not  reviewable  by  the  supreme  court  of  the  United  States.^ 

(39)  Quesiions  Arising  under  Federal  Mining  Statutes. — In  General. — Where 
the  decision  of  a  state  court  involves  the  validity  of  a  mineral  claim  under  the 
statutes  of  the  United  States  relating  to  mineral  lands,  the  supreme  court  accjuires 
jurisdiction,  a  federal  question  being  involved. "-"^  But  the  mere  fact  that  a  suit  is 
brought  under  §  2326  of  the  Revised  Statutes  to  try  adverse  rights  to  a  mining 
claim,  does  not  necessarily  involve  a  federal  question  so  as  to  authorize  a  writ  of 
error  from  the  supreme  court  of  the  United  States  to  the  state  court,  especially 
where  in  both  state  courts  the  question  was  treated  as  one  of  local  law.^^  The 
mere  fact  that  parties  claim  adversely  to  each  other  under  the  mining  laws  or  un- 
der patents  of  the  United  States  does  not  entitle  them  to  a  writ  of  error  from  this 
court,  unless  there  be  a  question  made  as  to  the  meaning  and  construction  of  a 
federal  statute,  or  of  an  authority  exercised  under  the  United  States.*"  Contro- 
versies in  respect  to  titles  derived  under  the  mining  laws  of  the  United  States  may 
be  legitimately  detemiined  in  the  state  courts,  and  to  enable  this  court  to  review 
the  judgment  in  such  a  case  it  must  appear  not  only  that  the  application  of  a  fed- 
eral statute  was  involved,  but  that  the  controversy  was  determined  by  a  con- 
struction put  upon  the  statute  adverse  to  the  contention  of  one  of  the  parties.^^ 


94.  Sovereignty   of  the   states. — Iowa  v. 

Rood,  187  U.  S.  87.  47  L.  Ed.  88. 

Where  title  set  up  by  the  state  of  Iowa 
rests  solely  upon  the  proposition  that  it 
became  vested,  upon  its  admission  into 
the  union  imder  the  act  of  congress  of 
December  28,  1846,  9  Stat.  117,  with  sov- 
ereignty over  the  beds  of  aH  lakes  within 
ite  borders,  and  by  the  act  of  the  general 
government  in  meandering  such  lakes, 
and  exchiding  from  its  survey  of  public 
land  all  such  as  lay  beneath  their 
waters,  this  clearly  does  not  involve  the 
validity  of  any  treaty  or  statute  of  the 
United  States,  or  the  constitutionality  of 
any  state  statute  or  authority.  Iowa  v. 
Rood.    187    U.    S.    87.   90,    47   L.    Ed.    86. 

95.  Questions  arising  under  federal 
mining  statutes. — Lavagnino  v.  UhHg,  198 
U.   S.   443.   451,   49    L.    Ed.   1119. 

96.  McMillen  v.  Ferrum  Min.  Co.,  197 
U.  S.  343.  49  L.  Ed.  784.  citing  Bushnell  v. 
Crooke  Min.  Co.,  148  U.  S.  682,  37  L.  Ed. 
610;  Telluride.  etc..  Co.  v.  Rio  Grande, 
etc..  R.  Co..  175  U.  S.  639,  44  L.  Ed.  305; 
Blackburn  v.  Portland  Gold  Min.  Co.,  175 
U.  S.  571.  44  L.  Ed.  276;  Shoshone  Min. 
Co.  V.  Rutter,  177  U.  S.  505,  44  L-  Ed.  864. 

97.  Avery  v.  Popper,  179  U.  S.  305,  310. 
45  L.  Ed.  203;  Blackburn  v.  Portland  Gold 
Min.  Co.,  175  U.  S.  571.  44  L.  Ed.  276;  De 
Lamar's  Nevada  Gold  Min.  Co.  v.  Nesbitt, 
177  U.  S.  523,  44  L.  Ed.  872;  Mountain 
View,  etc.,  Co.  v.  McFadden,  180  U.  S. 
533,  534,  45  L-  Ed.  656;  Cramer  v.  Wilson, 
195  U.   8.   408.  416.   49   L.   Ed.  256. 

98.  Gillis  V.  Stinchfield,  159  U.  S.  658,  40 
L.  Ed.  295;  Colorado,  etc.,  Min.  Co.  v. 
Turck,  150  U.  S.  138,  37  L.  Ed.  1030;  Black- 
l*irn  V.  Portland  Gold  Min.  Co.,  175  U. 
S.  571,   585,   44   L.    Ed.   276. 

Gillis  V.  Stinchfield,  159  U.  S.  658,  40  L. 


Ed.  295,  was  a  suit  brought  in  a  state 
court  of  California  and  concerned  the 
ownership  of  a  mining  claim.  The  case 
was  brought  to  this  court,  and  it  was 
claimed  that,  as  the  question  in  dispute 
could  onJy  be  determined  by  an  applica- 
tion of  §§  2322  and  2336  of  the  Revised 
Statutes  of  the  United  States,  such  a  state 
of  facts  appearing  by  the  record,  there 
was  disclosed  a  federal  question,  which, 
of  itself,  gave  this  court  jurisdiction  to 
review  the  judgment  of  the  supreme 
court  of  the  state.  But  a  motion 
to  dismiss  the  writ  of  error  was  allowed. 
It  is  true  that  this  court  pat  its  judgment 
on  the  ground  that  the  judgment  of  the 
state  supreme  court  was  based  upon  an 
estoppel,  deemed  by  that  court  to  operate 
against  the  plaintiff  in  error  upon  gen- 
eral principles  of  law,  irrespective  of  any 
federal  question.  .Blackburn  v.  Portland 
Gold  Min.  Co.,  175  U.  S.  571,  585,  44  L. 
Ed.  276.  reaffirmed  in  Empire,  etc.,  Min. 
Co.  V.  Bunker  Hill,  etc.,  Min.  Co.,  200  U. 
S.  613,  50  L.  Ed.  620;  Warder  v.  Loomis, 
197  U.   S.   619,  49   L.   Ed.   909. 

In  Gillis  V.  Stinchfield,  159  U.  S.  658,  40 
L.  Ed.  295.  the  dispute  arose  concerning 
the  ownership  of  a  mining  claim.  In  the 
course  of  the  opinion  in  the  Blackburn 
V.  Portland  Gold  Min.  Co.,  175  U.  S. 
571.  44  L.  Ed.  276,  referring  to  the  Gillis 
V.  Stinchfield,  159  U.  S.  658,  40  L.  Ed.  295; 
it  was  said:  "It  is  true  that  this  court 
put  its  judgment  on  the  ground  that  the 
judgment  of  the  state  supreme  court  was 
based  upon  an  estoppel,  deemed  by  that 
court  to  operate  against  the  plaintiflf  in 
error  upon  general  principles  of  law.  ir- 
respective of  any  federal  question.  Still 
the  case  is  authority  for  the  proposition 
that  controversies  in  respect  to  titles 
derived    under    the    mining    laws    of    tie 


694 


APPEAL  AND  ERROR. 


Under  §  2326,  Rev.  Stat.,  for  the  trial  of  adverse  claims  to  a  mining  patent,, 
the  right  to  review  the  judgment  of  a  state  court  is  to  be  limited  to  a  proper  case 
having  been  made,  clearly  implying  that  some  federal  question  should  be  involved, 
and  a  mere  controversy  as  to  the  right  of  possession  will  not  make  such  a  proper 
case,   for  otherwise  every  case  arising  under  §  2326  would  be  a  proper  case.** 

Under  Rev.  Stat.,  §  2339,  the  question  of  priority  of  possession  of 
water  rights  for  use  for  mining  purposes  and  the  conformity  thereof  to  local 
custorhs,  laws  and  decisions,  does  not  involve  a  federal  question  in  order  to  give 
this  court  jurisdiction  to  review  the  decision  relating  thereto  under  §  709  of  the 
Revised  Statutes;  they  are  merely  local  questions. ^ 

A  controversy  between  rival  claimants  under  §§  2325  and  2326  of  the  Re- 
vised Statutes  may  be  properly  determined  by  a  state  court,  and  the  judgment  of 
a  state  supreme  court,  in  such  a  case,  cannot  be  reviewed  by  this  court  siraply  be- 
cause the  parties  were  claiming  rights  under  the  federal  statute. ^ 

Title  to  Ore. — A  federal  question  reviewable  by  this  court  is  presented  by  the 
decision  of  a  state  court,  in  favor  of  plaintiff's  contention,  that  he  had  acquired 
title  to  certain  ore,  where  the  question  presented  was  whether  or  not  the  mine  was 
patented  under  the  act  of  July  26th,  1866,  or  the  act  of  May  10th,  1872,  and  pre- 
sents the  question  as  to  the  lack  of  parallelism  of  the  end  lines  of  the  location.^ 

Showing  as  to  Jurisdiction, — The  rule  that  if  it  sufficiently  appears  from  the 
record  that  the  validity  of  a  state  statute  was  drawn  in  question  as  repugnant  to 
the  constitution  of  the  United  States  and  the  question  was  decided,  or  such  de- 
cision was  necessarily  involved  in  the  case,  and  the  case  could  not  have  been  de- 
termined without  deciding  such  question,  the  fact  that  it  was  not  in  terms  spe- 
cially set  up  and  claimed  in  the  record  is  not  conclusive  against  a  review  of  the 
question  here,  does  not  dispense  with  the  necessity  for  a  special  reference  to  § 
2339  of  the  Revised  Statutes.^    To  sustain  a  writ  of  error  from  the  supreme  court 


United  States  may  be  legitimately  de- 
termined in  the  state  cotirts,  and  that  to 
enable  the  court  to  review  the  judgment 
in  such  a  case  it  must  appear  not  only 
that  the  application  of  a  federal  statute 
was  involved  but  that  the  controversy  was 
determined  by  a  construction  put  upon  the 
statute  adverse  to  the  contention  of  one 
af  the  parties."  The  Blackburn  case  was 
followed  by  Shoshone  Min.  Co.  v.  Rutter, 
177  U.  S.  505,  44  L.  Ed.  864,  which  reaf- 
firmed the  doctrine,  approved  in  Swerin- 
gen  V.  St.  Louis,  185  U.  S.  38,  45,  46  L. 
Ed.    795. 

99.  Blackburn  v.  Portland,  Gold  Min. 
Co.,  175  U.  S.  571.  44  L.  Ed.  276,  citing 
Chambers  v.  Harrington,  111  U.  S.  350, 
28   L.    Ed.   452. 

1.  Telluride,  etc.,  Co.  v.  Rio  Grande, 
etc.,  R.  Co.,  175  U.  S.  639,  641,  44  L-  Ed.  305, 
reaffirmed  in  Dakota,  etc.,  R.  Co.  v. 
Crouch,  203  U.  S.  582,  51  L.  Ed.  327,  cit- 
ing Bushnell  v.  Crooke  Min.  Co.,  148  U. 
S.  682,  37  E.   Ed.  610. 

2.  Blackburn  v.  Portland  Gold  Min. 
Co.,  175  U.  S.  571,  584,  40  L.  Ed.  296,  re- 
affirmed in  Empire,  etc.,  Min.,  etc.,  Co.  v. 
Bunker  Hill  Min.  Co.,  200  U.  S.  613,  50 
L.  Ed.  620;  Warder  v.  Loomis,  197  U. 
S.  619,  49  L.  Ed.  909;  Dakota,  etc.,  R.  Co. 
V.  Crouch,  203  U.  S.  582,  51  L-  Ed.  327, 
following  Bushnell  v.  Crooke  Min.  Co., 
148  U.  S.  682,  37  L.  Ed.  610;  Telluride, 
etc.,  Co.  V.  Rio  Grande,  etc.,  Co.,  175  U. 
S.  639,  44  L.  Ed.  305. 

Where    the    question    involved    turned 


largely  upon  the  provision  of  state  stat- 
utes, and  the  decisions  of  the  supreme 
court  construing  the  same,  which  limited 
the  width  of  mining  claims  to  150  in  width 
on  each  side  of  the  centre  of  the  lode  or 
vein  at  the  surface,  etc.,  the  question  thus 
presented  and  decided  involves  no  con- 
struction of  any  federal  statute,  unless  it 
becomes  necessary  to  determine  the  rights 
of  the  parties  under  the  federal  mining 
statutes.  Bushnell  v.  Crooke  Min.  Co.^ 
148  U.   S.   682,   37   L.   Ed.   610. 

3.  Kennedy  Min.,  etc.,  Co.  v.  Argo- 
naut Min.  Co.,  189  U.  S.  1,  47  L-  Ed.  685, 
Mr.  Justice  White  and  Mr.  Justice  Mc- 
Kenna  dissenting. 

4.  Telluride,  etc.,  Co.  v.  Rio  Grande, 
etc.,  R.  Co.,  175  U.  S.  639,  647,  44  L.  Ed. 
305,  distinguishing  Columbia  Water 
Power  Co.  v.  Columbia  Street  Railway 
Co.,  172  U.  S.  475,  43  L.  Ed.  521. 

Pleadings,  which  while  they  make  no 
special  reference  to  the  statutes  of  the 
United  States,  nevertheless  show  that 
plaintiffs  in  error  asserted  title  through 
valid  mining  claims  duly  located,  and  de- 
nied the  title  of  the  defendants  in  error  on 
the  ground  that  the  locations  under  which 
they  claimed  had  become  forfeited  and 
abandoned,  do  not  comply  with  the  re- 
quirements of  §  709  of  the  Revised  Stat- 
utes that  the  title  or  right  must  be  spe- 
cially set  up  or  claimed.  Speed  v.  Mc- 
Carthy. 181  U.  S.  269,  273,  45  L.  Ed.  855. 
citing  and  approving  Oxley  Stave  Co.  v. 


APPEAL  AND  ERROR. 


695 


of  the  United  States,  scmething  more  must  appear  than  that  the  parties  claim  title 
under  an  act  of  congress.-^  And  where  the  decision  of  the  state  court  rests  upon 
principles  of  general  or  local  law,  broad  enough  to  sustain  it,^  or  the  judgment  is 


Butler  County,  166  U.  S.  648,  41  L.  Ed. 
1149. 

An  assertion  of  plaintiffs  in  error  in  an 
amended  answer,  that  defendant  in  error 
intended  to  set  up  certain  rights  under 
certain  mining  claims,  and  that  these 
claims  were  abandoned  and  forfeited  be- 
fore certain  other  claims  were  located, 
falls  short  of  that  definite  claim  of  a 
right  or  title  under  a  statute  of  the  United 
States,  which  §  709  requires.  On  such  a 
record  the  supreme  court  of  the  United 
States  would  not  be  justified  in  holding 
that  the  state  court,  denied  a  right  or  title 
specially  set  up  as  secured  by  an  act 
of  congress.  Speed  v.  McCarthy,  181  U. 
S.   269,   276,    45   L.    Ed.    855. 

5.  De  Lamar's  Nevada  Min.  Co.  v.  Nes- 
bitt,  177  U.  S.  523,  44  L-  Ed.  872,  reaf- 
firmed in  Blackburn  v.  The  Portland  Gold 
M  n.  Co..  175  U.  S.  571,  44  L.  Ed.  276. 

The  plaintiff's  right  to  recover  was 
based  upon  the  acts  of  congress  provid- 
ing that  the  requirements  of  §  2324,  Rev. 
Stat.,  be  suspended  for  the  years  1893, 
1894  "so  that  no  mining  claim  which  has 
been  regularly  located  and  recorded  as  re- 
quired by  the  local  laws  and  mining  reg- 
ulations shall  be  subject  to  forfeiture 
for  the  nonperformance  of  the  annual  as- 
sessment." The  decision  of  the  state 
court  was  in  favor  of  the  right  claimed 
under  the  statute.  It  was  h«ld,  that  the 
defendant  is  not  entitled  to  a  writ  of 
error  from  the  supreme  court  of  the 
United  States  to  review  the  judgment  of 
the  state  court.  "The  defendant  set  up 
no  right,  title,  privilege  or  immunity 
under  a  statute  of  the  United  States,  the 
decision  of  which  was  adverse  to  it  in 
that  particular.  The  mere  fact  that  the 
mining  company  claimed  title  under  a  lo- 
cation made  *  *  *  under  the  general 
mining  laws  of  the  United  States,  Rev. 
Stat.,  §  2325,  was  not  in  itself  sufficient  to 
raise  a  federal  question,  since  no  dispute 
arose  as  to  the  legality  of  such  location, 
except  so  far  as  it  covered  ground  pre- 
viously located,  or  as  to  the  construction 
of  this  section.  We  have  repeatedly  held 
that  to  sustain  a  writ  of  error  from  this 
court  something  more  must  appear  than 
that  the  parties  claim  title  under  an  act 
of  congress.  The  subject  is  fully  dis- 
cussed and  the  prior  authorities  cited  in 
the  recent  case  of  Blackburn  v.  Portland 
Mining  Company.  175  U.  S.  571,  44  L. 
Ed.  '?76,  which  was  also  a  contest  between 
rival  claimants  of  a  mine  under  §§  2325 
and  2326.  It  was  held  that  the  provision 
in  §  2326  for  the  trial  of  adverse  claims  to 
a  mining  patent  "by  a  court  of  competent 
jurisdiction,"  did  not  in  itself  vest  juris- 
diction in  the  federal  courts,  although,  of 
course,    jurisdiction    would    be    sustained. 


if  the  requirements  of  amount  and  diverse 
citizenship  existed;  and  that  the  judg- 
ment of  the  supreme  court  of  the  state 
in  such  case  could  not  be  reviewed  in  this 
court  simply  because  the  parties  were 
claiming  rights  under  a  federal  statute.  A 
like  ruling  was  made  in  the  still  later  case 
of  Florida,  etc.,  R.  Co.  v.  Bell,  176  U. 
S.  321,  44  L.  Ed.  486.  See,  also,  Cali- 
fornia Powder  Works  v.  Davis,  151  U.  S. 
389."  De  Lamar's  Nevada  Min.  Co.  v. 
Nesbitt,  177  U.  S.  523,  44  L.  Ed.  872. 

6.  The  mere  fact  that  an  action  is 
brought  under  §§  2325  and  2326  of  th« 
federal  statutes,  in  support  of  an  adverse 
claim  does  not  of  itself  entitle  ttie  de- 
feated paj-ty  to  a  writ  of  error.  Although 
brought  under  the  authority  of  a  federal 
statute,  the  questions  involved  may  be 
only  of  general  or  local  law.  Blackburn 
V.  Portland  Gold  Min.  Co.,  175  U.  S.  571, 
44  L.  Ed.  276;  Shoshone  Min.  Co.  v.  Rut- 
ter.  177  U.  S.  505,  44  L.  Ed.  864;  Beals  v. 
Cone,  188  U.  S.  184,  186,  47  L.  Ed.  435,  re- 
affirmed in  Stuart  v.  Hauser,  203  U.  S. 
585.  51  L.  Ed.  328. 

A  decision  of  a  state  court  that  the 
rights  involved  under  United  States  pat- 
ents to  mining  claims  has  been  barred  by 
the  laches  of  the  plaintiff  in  asserting  his 
claims,  whereby  the  status  quo  could  not  be 
restored,  presents  no  federal  question  re- 
viewable by  the  court  on  writ  of  error. 
Pittsburg,  etc.,  Co.  v.  Cleveland,  etc.,  Min. 
Co.,  178  U.  S.  270,  44  L.  Ed.  1065,  reaf- 
firmed in  Wright  v.  Seminary  Tacoma, 
187  U.  S.  639,  47  L.   Ed.  345. 

A  decision  of  a  state  court,  that  the 
rights  involved  under  United  States  pat- 
ents to  mining  claims  has  been  settled  by 
a  specific  contract  between  the  parties, 
by  this  court  on  writ  of  error.  Pitts- 
burg, etc.,  Co.  V.  Cleveland,  etc.,  Min.  Co., 
178  U.  S.  270,  44  L.  Ed.  1065.  reaffirmed  in 
Wright  V.  Seminary  Tacoma.  187  U.  S. 
639.  47  L.   Ed.  345. 

The  supreme  court  of  a  state,  deciding 
a  case  upon  general  principles  of  law, 
held  that  a  cotenant  cannot  relocate  a 
mining  claim  when  the  annual  assess- 
ment work  has  not  been  done,  and  thereby 
obtain  title  as  against  his  cotenants.  It 
was  held,  that  this  decision  did  not  rest 
involves  no  federal  question  reviewable 
upon  the  disposition  of  a  federal  ques- 
tion, which  can  be  reviewed  by  the  su- 
preme court  of  the  United  States  on  writ 
of  error  to  the  state  court.  Speed  r.  Mc- 
Carthy, 181  U.  S.  269,  45  L.  Ed.  855,  re- 
afiirmed  in  Wright  v.  Seminary  Tacoma. 
187  U.  S.  639,  47  L.  Ed.  345;  Wyoming, 
etc.,  Co.  V.  Crouch,  203  U.  S.  582,  51  L. 
Ed.    327. 

Whether  a  party  is  estopped  to  deny  the 
validity  of  a  mining  claim  or  not,  is  not  a 


696 


APPEAL  AXD  ERROR. 


in  favor  of  and  not  adverse  to  the  right  claimed  by  the  plaintiff  in  error  under  this 
statute,'^  the  writ  of  error  will  be  dismissed. 

(40)  Questwns  Relating  to  Public  Officers  and  Members  of  the  Cabinet. — 
Where  in  suits  against  United  States  officers,  such  as  marshals,  the  defendant 
claims  protection  of  "an  authority  exercised  under  the  United  States,"  and  the 
decision  is  against  the  protection  thus  claimed,  this  court  has  jurisdiction.^ 


federal  question  which  may  be  reviewed 
by  the  supreme  court  of  the  United  States 
on  writ  of  error  to  the  highest  court  of  a 
state.  Speed  v.  McCarthy,  181  U.  S.  269, 
45  L.  Ed.  855,  reaffirmed  in  Wright  v. 
Seminary  Tacoma,  187  U.  S.  639,  47  L.  Ed. 
345;  Wyoming,  etc.,  Co.  v.  Crouch,  203 
U.  S.  582,  51  L.  Ed.  327,  citing  and  ap- 
proving Gillis  V.  Stinchfield,  159  U.  S. 
658,  40  L.  Ed.  3*)5;  Pittsburg,  etc.,  Co.  v. 
Cleveland,  etc.,  Miii.  Co.,  178  U.  S.  270, 
44   L.    Ed.   1065. 

A  decisian  of  a  state  court  t^iat  the 
rights  involved  under  United  States  pat- 
ents to  mining  claims  has  been  forfeited 
by  an  estoppel,  involves  no  federal  ques- 
tion reviewable  by  this  court  on  writ  of 
error.  Pittsburg,  etc.,  Co.  v.  Cleveland, 
etc.,  Min.  Co.,  178  U.  S.  270,  44  L.  Ed. 
1G65,  reaffirmed  in  Wright  v.  Seminary 
Tacoma,  187  U.  S.  639,  47  L.  Ed.  345.  See 
Beals  V.  Cone,  188  U.  S.  186,  47  L.  Ed. 
435. 

7.  De  Lamar's  Nevada  Min.  Co.  v.  Nes- 
bitt,  177  U.  S.  523.  44  L-  Ed.  872. 

8.  Questions  relating  to  public  officers 
and  members  of  the  cabinet. — In  trespass 
in  a  state  court  against  the  inarshal  of  the 
United  States  for  kvying  on  goods  which 
ought  not  to  have  been  levied  on,  the 
marshal's  title  as  marshal  is  not  neces- 
sarily drawn  in  question.  He  may  be 
sued'  not  as  marshal,  but  as  trespasser. 
Hence,  a  judgment  in  a  state  court  against 
a  marshal  for  making  a  levy  alleged  to 
be  wrong,  is  not  necessarily  a  proper  sub- 
ject for  review  in  this  court,  under  the 
25th  section  of  t^e  judiciary  act,  allow- 
ing such  review  in  certain  cases  where 
"an  authority  exercised  under  the  United 
States  is  drawn  in  question,  and  the  de- 
cision is  against  its  validity."  Day  v.  Gal- 
kip,  2  Wall.  97,  17  L.  Ed.     855. 

A  suit  prosecuted  in  the  state  courts  to 
the  highest  court  of  such  state,  against 
a  marshall  of  the  United  States  for  tres- 
pass, who  defends  himself  on  the  ground 
that  the  acts  complained  of  were  per- 
formed by  him  under  a  writ  of  attachment 
from  the  proper  federal  court,  presents 
a  case  for  a  writ  of  error  under  the  25th 
section  of  the  judiciary  act,  when  the  final 
decision  of  the  state  courts  is  against 
the  validity  of  the  authority  thus  set 
up  by  the  marshal.  Buck  v.  Colbath,  3 
Wall.  334,  18  L.  Ed.  257.  reaffirmed  in 
Etheridge  v.  Sperry,  139  U.  S.  266,  35  L. 
Ed.  171. 

The  action  of  the  government  surveyors 
in  segregating  and  setting  apart  a  lake 
in     the     state     by     meander     lines     from 


the  public  lands  and  the  approval  of 
such  survey  by  the  commissioners 
of  the  general  land  office,  is  net 
an  adjudication  by  the  government 
that  the  lake  was  set  apart  as  the  property 
of  the  state  and  not  a  part  of  the  public 
land,  and  the  supreme  court  had  no  juris- 
diction to  review  a  judgment  of  the  state 
court  denying  the  titk  of  the  state.  Iowa 
V.  Rood,  187  U.  S.  87,  47  L.  Ed.  86,  cited 
in  Chapman,  etc..  Land  Co.  v.  Bigelow, 
206  U.   S.  41,  51   L.  Ed.  953. 

Where  an  action  of  trespass  to  try  title 
is  brought  against  officers  of  the  United 
States,  exercising  an  authority  under  the 
United  States,  in  holding  possession  of 
the  property  in  controversy,  and  the  de- 
fense is  set  up  that  they  were  acting 
under  authority  of  the  United  States,  in 
such  a  case  the  validity  of  an  authority 
exercised  under  the  United  States  is 
drawn  in  question,  and  where  the  fiaal 
judgment  or  decree  in  the  highest  coart 
of  a  state  in  which  a  decision  could  be 
had  is  against  its  validity,  jurisdiction  ex- 
ists in  this  court  to  review  that  decision 
on  writ  of  error.  Stanley  v.  Schwalby, 
147  U.   S.  508,  519.  37   L.   Ed.   259. 

Where  a  suit  was  brought  in  a  state 
court  upon  a  marshal's  bond,  under  the 
act  of  April  10,  1806,  ch.  21,  by  a  person 
injured  by  a  breach  of  the  condition  of 
the  bond,  and  the  defendants  set  up  as  a 
defense  to  the  action  that  the  suit  ought 
to  have  been  brought  in  the  name  of  the 
United  States,  and  the  court  decided  that 
it  was  well  brought  by  the  party  injured 
in  his  own  name;  held,  that  tfie  exemption 
here  set  up  being  merely  as  to  the  form 
of  the  action,  and  no  question  arising  as 
to  the  legal  liability  of  the  defendants  un- 
der the  act  of  congress,  this  court  had  no 
authority  to  re-examine  the  judgment,  so 
far  as  respected  the  construction  of  that 
part  of  the  act  which  provides  that  suits 
on  marshals'  bonds  "shall  be  commenced' 
and  prosecuted  within  six  j^ears  after  the 
said  right  of  action  shall  have  accrued, 
and  not  afterwards."  Montgomery  v. 
Hernandez.    12   Wheat.   129,   6   L.   Ed.  575. 

Secretary  of  Interior. — Where  the  con- 
struction of  the  acts  of  congress,  defining 
the  powers  of  the  secretary  of  the  inte- 
rior, is  drawn  in  question  in  a  state  court, 
and  the  decision  is  against  the  title  set 
up  by  maintaining  the  validity  of  the  sec- 
retary's decision,  this  court  has  jurisdic- 
tion to  revise  the  cage  on  writ  of  error. 
Magwire  v.  Tyler,  1  Black  195,  17  L.  Ed. 
137. 

Secretary      of      treasury. — No      federal 


APPEAL  AXD  ERROR. 


697 


(41)  Validity  of  State  Election  taxes. — The  decision  of  a  highest  court  of  a 
ate  upholding  the  vaHdity  of  state  statutes  claimed  to  be  in  contravention  to  the 
ct  of  congress  providing  for  the  appointment  of  electors  of  president  and  vice- 
president,  is  reviewable  by  this  court  under  §  709  of  the  Revised  Statutes. ^ 

(42)  Questions  Relating  to  Federal  Securities. — Where  it  is  insisted  in  a  state 
court  that  certain  federal  securities  are  exempt  from  taxation  under  the  consti- 
tution and  lav^^s  of  the  United  States,  but  the  exemption  is  denied  by  the  highest 
state  court,  it  is  clear  that  a  right,  privilege  or  immunity  is  claimed  under  the 
constitution  or  a  statute  of  the  Unied  States,  and  therefore  the  jurisdiction  of 
this  court  to  review  that  decision  is  undoubted. ^*^ 

(43)  Claim  of  Right  under  Legal  Tender  Act. — Any  denial  of  a  title,  right, 
privilege  or  immunity  claimed  under  the  legal  tender  act,  raises  a  federal  ques- 
tion which  may  be  reviewed  by  this  court.  ^^ 


<luestion  is  involved  in  the  decision  of  a 
?tate  court  in  a  suit  brought  by  the  exec- 
utors of  a  former  collector  of  the  customs 
against  an  attorney  collecting  inoney  for 
deceased  from  the  United  States  treasury, 
but  failing  to  pay  it  over,  in  which  it  was 
decided  that  the  defendant  was  estopped 
from  showing  that  the  moneys  in  question 
were  paid  out  of  the  United  States  treas- 
ury under  a  mistake  of  fact;  that  the  sec- 
retary had  vacated  the  award;  or  that  no 
\-alid  agency  existed  by  force  of  the  stat- 
utes of  the  United  States  to  collect  and 
pay  over  these  moneys.  Sherman  v.  Grin- 
nell,  144  U.  S.  198.  36  L.  Ed.  403. 

Secretary  of  agriculture. — Where  a  right 
or  immunity  is  claimed  under  an  order  of 
the  secretary  of  agriculture,  and  denied 
by  the  state  court,  a  writ  of  error  will  lie. 
Illinois  Central  R.  Co.  v.  McKendree.  203 
V.   S.    514.    ■^?A.   51    L.    Ed.   298. 

9.  Validity  of  state  election  laws. — Mc- 
Pherson  v.  Blackner,  146  U.  S.  1.  36  L. 
Ed.  869. 

10.  Questions  relating  to  federal  secu- 
rities.— Where  an  act  of  the  state  legisla- 
ture authorized  the  issue  of  bonds,  by  way 
of  refunding  to  banks  such  portions  of  a 
tax  as  had  been  assessed  on  federal  secu- 
rities made  by  the  constitution  and  stat- 
i:tes  of  the  United  States  exempt  from  tax- 
ation, and  the  officers  who  were  em- 
l>owered  to  issue  the  obligations  refused 
to  sign  them,  because,  as  they  alleged,  a 
portion  of  the  securities  for  the  tax  on 
which  the  bank  claimed  reiinbursement. 
was,  in  law,  not  exempt,  and  the  highest 
court  of  the  state  sanctioned  this  refusal; 
held,  that  this  was  a  decision  by  a  state 
court  against  a  right,  privilege,  or  immu- 
nity claimed  under  the  constitution  or  a 
statute  of  the  United  States,  and  so  that 
this  court  had  jurisdiction  under  the  25th 
section  of  the  judiciary  act,  and  the 
amendatory  act  of  February  5th,  1867. 
The  Brinks  v.  The  Mayor,  7  Wall.  16. 
IS   L.   Ed.   57. 

11.  Claim  of  right  under  legal  tender 
act.— Trebilcock  v.  Wilson,  12  Wall.  687, 
20  L.  Ed.  460;  Maryland  v.  Baltimore,  etc., 
R.  Co.,  22  Wall.  105,  22  L.  Ed.  713;  Wood- 
niflf  V.  Mississippi.  162  U.  S.  291,  40  L. 
Ed.    973. 


Where  a  plaintiff  in  error  set  up  in  the 
court  below  that  he  was  entitled  to  have 
a  note  held  by  him  and  made  by  the  de- 
fendant in  error,  paid  in  gold  or  silver 
coin  under  the  constitution,  upon  a  proper 
construction  of  various  clauses  of  that  in- 
strument, and  the  decision  of  the  court 
below  was  against  the  right  thus  set  up, 
this  court  has  appellate  jurisdiction  under 
the  25th  section  of  the  judiciary  act  of 
17!=!9,  or  the  2d  section  of  the  amendatory 
judiciary  act  of  1867,  to  review  tho  Aer\~ 
sion.  Trebilcock  v.  Wilson,  12  Wall.  687, 
20  L.  Ed.  460,  overruling  Roosevelt  v. 
Mever,   1   Wall.  512,   17  L.   Ed.  500. 

In  an  action  brought  in  a  state  court 
against  a  railroad  company  for  ejecting  the 
plaintiff  from  a  car,  the  defense  was  that 
a  silver  coin,  offered  by  him  in  payment 
of  his  fare,  was  so  abraded  as  to  be  no 
longer  legal  tender.  The  supreme  court 
of  the  state,  after  referring  to  the  con- 
gressional legislation  on  the  subject,  held 
that,  '"so  long  as  a  genuine  silver  coin  is 
worn  only  by  natural  abrasion,  is  not  ap- 
preciably diminished  in  weight,  and  re- 
tains the  appearance  of  a  coin  duly  issued 
from  the  mint,  it  is  a  legal  tender  for  its 
original  value."  The  railroad  company, 
although  denying  the  plaintiff's  claim,  set 
up  no  right  under  any  statute  of  the 
United  States  in  reference  to  the  effect  of 
the  reduction  in  weight  of  silver  coin  by 
natural  abrasion.  Judgment  being  given 
for  plaintiff,  the  railroad  company  sued 
out  a  writ  of  error  for  its  review.  Held, 
that  this  court  was  without  jurisdiction. 
Jersey  City,  etc.,  R.''  Co.  v.  Morgan,  160 
U.  S.,  288.  40  L.   Ed.  430. 

In  Jersev  Citv.  etc.,  R.  Co.  v.  Morgan, 
150  U.  S.  288,  40  L.  Ed.  430.  in  an  action 
brought  in  a  state  court  again  =  t  a  railroad 
companv  f'^r  ejecting  the  plaintiff  from  a 
car,  the  defense  was  that  a  silver  coin  of- 
fered by  him  in  payment  of  his  fare  was 
so  abraded  as  to  be  no  longer  legal  ten- 
der, and  that  defense  was  overruled.  And 
a  writ  of  error  having  been  sued  out  by 
the  railroad  company  from  this  court  to 
review  the  judgment  thereupon  rendered 
a aainst  it.  we  held  that  the  writ  could  not 
he  maintained.  It  was  here  said:  "The 
claim    which    defendant    now   states    it    re- 


698 


APPEAL  AXD  ERROR. 


(44)  Claim  of  Right  under  lutcnial  Revouic  Act. — The  decision  of  a  state 
court  against  a  right  claimed  under  the  internal  revenue  act,  gives  jurisdiction  to 
this  court.12 

(45)  State  Legislation  Regulating  Sale  of  Intoxicating  Liquors. — The  usual  and 
ordinary  legislation  of  the  states  regulating  or  prohibiting  the  sale  of  intoxicating 
liquors  raises  no  question  under  the  constitution  of  the  United  States  prior  to  the 
fourteenth  amendment  of  that  instrument. ^-^  The  question  as  to  what  licenses 
shall  or  shall  not  be  required  of  those  who  engage  in  the  liquor  traffic,  is  a  mat- 
ter properly  submitted  to  the  states  for  determination.  The  question  is  one  of  a 
particularly  local  character,  afifecting  solely  the  internal  police  of  the  state,  in  re- 
5pect  to  which  we  have  no  reviewing  power,  and  in  which  is  involved  no  matter 
of  a  federal  character,  or  of  general  commercial  law.^^ 

(46)  Questions  Arising  under  the  Public  Land  Acts. — In  General. — Where  a 
title  or  right  under  the  acts  of  congress  relating  to  the  public  lands  is  asserted  in  a 
state  court  and  denied,  this  court  has  jurisdiction. ^^     A  state  may  prescribe  the  pro 


lies  on  is  that  the  coin  in  question  was 
not  legal  tender  under  the  laws  of  the 
United  States.  This,  however,  is  only  a 
denial  of  the  claim  by  plaintiff  that  the 
coin  was  such,  and  as,  upon  the  facts  de- 
termined by  the  verdict,  the  state  courts 
so  adjudged,  the  decision  was  in  favor  of 
and  not  against  the  right  thus  claimed  un- 
der the  laws  of  the  United  States,  if  such 
a  right  could  be  treated  as  involved  on 
this  record,  and  this  court  has  no  juris- 
diction to  review  it.  Missouri  v.  An- 
driano,  138  U.  S.  496,  34  L.  Ed.  1012,  and 
cases  cited.  And.  although  denying  plain- 
tiff's claim,  defendant  did  not  pretend  to 
set  up  any  right  it  had  under  any  statute 
of  the  United  States,  in  reference  to  the 
effect  of  reduction  in  weight  of  silver 
coin  by  natural  abrasion."  Conde  v.  York, 
168  U.  S.  642,  650,  42  L.  Ed.  611,  reaffirmed 
in  Farmers'  National  Bank  z'.  Robinson, 
176   U.    S.    681,   682,   44    L.    Ed.    637. 

In  Maryland  v.  Baltimore,  etc.,  R.  Co., 
22  Wall.  105,  23  L-  Ed.  713,  in  which  the 
state  had  made  certain  advances  for 
the  railroad  company  in  gold  and 
sought  judgment  accordingly  and  the 
state  court  held,  that  it  was  only 
entitled  to  recovery  in  currency,  no  ob- 
jection was  raised  to  the  jurisdiction  of 
this  court  to  review  the  judgment. 
Woodruff  V.  Mississippi,  162  U.  S.  291, 
299,   40   L.   Ed.   973. 

Under  the  25th  section  of  the  judiciary 
act  where  the  record  shows  no  other  rea- 
son why  the  court  of  appeals  of  Kentucky 
sustained  a  demurrer  to  the  plea  than  that 
it  was  made  in  legal  tender  notes  of  the 
United  States,  it  sufficiently  appeared  that 
the  question  of  the  validity  of  these  notes 
as  a  tender  was  made  and  decided  in  the 
negative.  This  court,  therefore,  has  ju- 
risdiction to  review  the  judgment;  and 
though  the  note  sued  on  was  made  before 
the  passage  of  the  legal  tender  statutes  by 
Congress,  held  that  the  tender  was  a  valid 
tender,  and  that  the  judgment  of  the  court 
below  must  be  reversed.  Dooley  v. 
Smith,  13   Wall.   604,  20   L.    Ed.   547. 

A  decision  of  the  highest  state  court  as 


to  the  medium  in  which  an  issue  of  state 
bonds  are  payable,  and,  if  in  gold  coin,  the 
effect  thereof,  involves  the  right  to  en- 
force a  contract  according  to  the  mean- 
ing of  its  terms  as  determined  by  the 
constitution  and  laws  of  the  United  States, 
interpreted  by  the  tribunal  of  last  resort, 
and  therefore  raises  questions  of  a  federal 
nature  which  may  be  reviewed  by  this 
court  on  a  writ  of  error.  Woodruff  jf. 
Mississippi,    162   U.    S.   291.   40    L.    Ed.   973. 

12.  Claim  of  right  under  internal  reve- 
nue act. — McGuire  v.  The  Commonwealth, 
3   Wall.   382.  17   L.   Ed.    165. 

Where  a  party  is  indicted  in  a  state 
court  for  doing  an  act  contrary  to  the 
statute  of  the  state  as  selling  intoxicating 
liquors,  and  sets  up  a  license  from  the 
United  States  under  one  of  its  statutes, 
and  the  decision  of  the  state  court  is 
against  the  right  claimed  under  such  last- 
mentioned  statute,  this  court  has  jurisdic- 
tion under  the  25th  section  of  the  judi- 
ciary act  of  17S9.  McGuire  v.  The  Com- 
monwealth, 3  Wall.   382.  17  L.  Ed.  165. 

13.  State  legislation  regulating  sale  of 
intoxicating  liquors. — Bartemeyer  v.  Iowa, 
18  Wall.  129.  21  L.  Ed.  929. 

14.  Miller  v.  Ammon,  145  U.  S.  421,  433, 
36   L.   Ed.  759. 

15.  Questions  arising  under  the  public 
land  acts. — The  second  section  of  the  act 
of  the  29th  of  May,  1830.  providing,  that 
"if  two  or  more  persons  be  settled  upon 
the  same  quarter  section,  the  same  may 
be  divided  between  the  two  first  actual 
settlers,  if  by  a  north  and  south,  or  east 
and  west  line  the  settlement  or  improve- 
ment of  each  can  be  included  in  a  half 
quarter  section,"'  refers  only  to  tracts  of 
land  containing  one  hundred  and  sixty 
acres,  and  does  not  operate  upon  one  con- 
taining only  one  hundred  and  thirty-three 
acres.  Therefore,  where  tenants  in  com- 
mon of  a  tract  of  one  hundred  and  thirty- 
three  acres  applied  to  a  state  court  for  a 
partition  under  the  above  act,  the  judg- 
ment of  that  court  cannot  be  reviewed  by 
this  court,  when  brought  up  by  a  writ  of 
error  under  the  twenty-fifth  section  of  the 


APPEAL  AXD  ERROR.  699 

cedure  in  the  federal  courts  as  the  rule  of  practice  in  its  own  tribunals ;  it  may  au- 
thorize the  disposal  of  its  own  lands  in  accordance  with  the  provisions  for  the  sale 
of  the  public  lands  of  the  United  States;  and  in  such  cases  an  examination  may  be 
necessary  of  the  acts  of  congress,  the  rules  of  the  federal  courts,  and  the  practices 
of  the  land  department,  and  yet  the  questions  for  decision  would  not  be  of  a  fed- 
eral character.  The  inquiry  along  federal  lines  is  only  incidental  to  a  determina- 
tion of  the  local  question  of  w^hat  the  state  has  required  and  prescribed.  The  mat- 
ter decided  is  one  of  state  rule  and  practice.  The  facts  by  which  that  state  rule 
and  practice  are  determined  ma}-  be  of  a  federal  origin. ^^^ 

Federal  Question  Must  Be  Real,  Not  Fictitious.— Now,  in  ordinary  cases, 
it  would  not  be  doubted  that  a  party  entering  upon  vacant  land,  the  title  to  which 
had  been  conveyed  from  the  general  government  by  patent  to  an  individual,  could 
not  create  a  federal  question  such  as  to  give  this  court  jurisdiction  over  the  judg- 
ment of  the  highest  court  of  the  state,  by  simply  averring  that  such  possession  was 
taken  with  a  view  of  entering  the  land  under  the  homestead  laws  of  the  United 
States,  and  that  he  went  through  the  form  of  making  ap])lication  to  the  local  land 
office  for  permission  to  make  such  entry;  for  if  he  could,  almost  any  case  in  eject- 
ment could  be  taken  from  the  supreme  court  of  a  state  to  this.  In  order  that 
such  claim  of  the  party  in  possession  may  raise  a  genuine  federal  question,  there 
must  be  some  reason  to  believe  that  the  apparent  legal  title  transferred  by  the 
patent  from  the  United  States  was .  wrongfully  conveyed,  and  that  the  real  title 
in  fact  remains  in  the  government ;  and  whether  there  be  such  shadow  upon  the 
legal  title  of  the  defendant  in  error,  that  the  denial  of  plaintiflF  in  error's  right 
to  enter  the  land  as  a  homestead  presents  a  genuine  rather  than  a  fictitious  fed- 
eral question,  is  a  doubtful  matter.^'' 

(47)  Const itutiorml  Proznsion  Defining  the  Judicial  Pozver. — The  supreme 
court  of  the  United  States  has  jurisdiction  under  §  709  of  the  Revised  Stat- 
utes— when  a  plaintiff  in  error  alleges  that  a  court  .which  has  decided  a  case 
against  him  was  constituted  in  violation  of  the  federal  constitution,  and  the  su- 
preme court  of  the  state  where  the  court  sat  has  decided  that  it  was  not  so  con- 
stituted.^^ 

(48)  Claim  of  Title  or  Right  under  the  Patent  Lazvs. — In  General. — Where 
the  record  shows  that  some  question  was  raised  under  the  patent  law  and  denied 
by  the  state  court,  this  court  has  jurisdiction. i'' 

To  constitute  a  cause  as  one  arising  under  the  patent  right  laws  of  the 
United  States  in  any  proper  sense  of  the  term,  the  plaintiff  must  set  up  some 
light,  title,  or  interest  under  the  patent  laws,  or  at  least  make  it  appear  that  some 
right  or  privilege  will  be  defeated  by  one  construction,  or  sustained  bv  the  op- 
posite construction  of  these  laws.^'^     The  correctness  of  the  decision  of  the  highest 

judiciary    act,    because    the    right    asserted  court    cannot    be    doubted.      Anderson    v. 

does  nor   arise  under  an   act   of   congress.  Carkins,  135  U.  S.  483,  34  L.   Ed.  372,  cit- 

The    writ    of    error    must    be    dismissed.  ing    Murdock    v.    Memphis,    20    Wall.    590, 

Downes   v.    Scott,   4   How.   500.   11    L.    Ed.  22  L.  Ed.  429. 
1075.  16.  Miller  f.   Swann,   150   U.   S.   132,   137, 

Homestead   laws. — Where   to   a   bill    for  37  L.  Ed.  1028. 
specific  performance  of  a  contract,  the  de-  17.   Hambhn   t'^  Western   Land   Co.,   147 

fendants   answer  that  the   contract  is  void  U.   S.   531.   533,  37   L.    Ed.   267. 

tinder   the   homestead   laws   of   the   United  .    18.  Constitutional  provision  defining  the 

States,    but    notwithstanding    this    defense  judicial    power.— Mechanics'    and    Trader's 

so   expressly   stated,   a   decree   for   specific  Bank^z'.   Union   Bank,  22  Wall.  276,  22  L. 

performance   is   entered;  as  no  decree  could  Ed.   871. 

pass    against    the    defendants    without    de-  19-    Claim    of    title    or    right    under    the 

nying  the  protection  asserted  by  them  un-  patent   laws.      Brown   v.    Atwell.   92    U.   S. 

der  the  homestead  laws  it  follows  that  the  ■''27,  23   L.  Ed.  511. 

case  is  one  in  which  a  right  is  specifically  20.   Starin  v.   New   York,   115  U.   S.  248, 

set  up   and   claimed  under  the   statutes   of  20  L.  Ed.  388;     Germania  Ins.  Co.  v.  Wis- 

the    United    States,    and    the    decision    and  consin,  119  U.  S.  473,  30  U  Ed.  461;  Pratt 

judgment    of    the    state    court    are    against  v.  Paris   Gaslight,  etc.,  Co.,  168  U.  S.  255, 

that  right.     Hence,  the  jurisdiction  of  this  259,  42   L.   Ed.  458. 


700 


APPEAL  AND  ERROR. 


court  of  the  state,  upon  the  merits,  based  upon  the  existence  of  an  agreement 
whereby  an  inventor,  having  taken  out  letters  patent  for  his  invention,  agree! 
to  transfer  an  interest  therein  to  the  plaintiff,  and  not  necessarily  passing  upon 
any  question  under  the  patents  laws,  cannot  be  reviewed  by  this  court  on  a  writ 
of  error. 2^ 

"Cases"   Arising  under  Patent  Laws. — Section  711  does  not  deprive  the 


21.  Marsh  v.  Nichols,  140  U.  S.  344,  35 
L.  Ed.  413. 

An  action  upon  an  agreement  in  writ- 
ing, by  which,  in  consideration  of  a  li- 
cense from  the  patentee  to  make  and  sell 
the  invention,  the  licensee  acknowledges 
the  validity  of  the  patent,  stijnilates  that 
the  patentee  may  obtain  reissues  thereof, 
and  promises  to  pay  certain  royalties  so 
long  as  the  patent  shall  not  have  been  ad- 
iudged  invalid,  is  not  a  case  arising  under 
"the  patent  laws  of  the  United  States,  and 
is  within  the  jurisdiction  of  the  state 
courts;  and  the  correctness  of  a  decision 
of  the  higliest  court  of  a  state  upon  the 
merits  of  the  case,  based  upon  the  effect 
of  the  agreement,  witliout  passing  upon 
the,  validity  of  a  reissue  or  any  other 
question  under  those  laws,  cannot  be  re- 
viewed by  this  court  on  writ  of  error. 
Dale  Tile  Mfg.  Co.  v.  Hyatt,  125  U.  S.  46, 
31  L.  Ed.  683.  citing  Wilson  v.  Sandford. 
10  How.  99,  13  L.  Ed.  344;  Brown  z-. 
Shannon,  20  How.  55,  15  L.  Ed.  826:  Har- 
tell  ?'.  Tilghman,  99  U.  S.  547,  25  L.  Ed. 
357. 

Thus  in  Brown  v.  Shannon,  20  How. 
55,  15  L.  Ed.  826,  it  was  decided  that  a 
bill  in  equity  in  the  circuit  court  of  the 
United  States  by  the  owner  of  letters  pat- 
ent to  enforce  a  contract  for  the  use  of 
the  patent,  and  in  Wilson  v.  Sandford,  10 
How.  99,  13  L.  Ed.  344,  to  set  aside  such 
a  contract  because  the  defendant  had  not 
complied  with  its  terms,  was  not  within 
the  acts  of  Congress  by  which  an  appeal 
to  this  court  was  allowable  in  cases  aris- 
ing under  the  patent  laws,  without  re- 
gard to  the  value  of  the  matter  in  con- 
troversy. Marsh  v.  Nichols,  140  U.  S. 
344,  355,  35  L.  Ed.  413. 

So  in  Albright  ?'.  Teas,  106  U.  S.  613, 
27  L.  Ed.  295,  where  a  suit  was  brought 
in  a  state  court,  the  parties  thereto  being 
citizens  of  the  same  state,  for  moneys  al- 
k-ged  to  be  due  to  the  plaintiff  under  a 
contract,  whereby  certain  letters  patent 
granted  to  him  were  transferred  to  the 
defendant,  it  was  held  that  the  suit,  not 
involving  the  validity  or  the  construction 
of  the  patents,  was  not  one  arising  under 
a  law  of  the  United  States,  and  could  not 
be  removed  to  the  circuit  court.  Marsh 
V.  Nichols,  140  U.  S.  344,  355,  35  L.  Ed. 
413. 

In  Wood  Mowing,  etc.,  Co.  v.  Skinner. 
139  U.  S.  293,  35  L.  Ed.  193,  in  an  action 
for  breach  of  contract  in  refusing  to  ac- 
count and  pay  for  a  certain  patented  in- 
vention, the   supreme   court  of  New   York 


adjudged  upon  the  trial  that  plaintiff  in 
error  had  agreed  to  use  defendant  in  er- 
ror's device  upon  all  its  machines,  and  also 
that  it  had  in  fact  used  them  or  their  me- 
chanical equivalent;  but  the  court  in  gen- 
eral term,  in  aflfirming  the  judgment, 
found  it  unnecessary  to  determine  whether 
the  plaintifif  in  error  had  actually  made 
use  of  the  device  or  its  equivalent,  and 
held  it  to  be  liable  upon  the  ground  that 
it  had  agreed  to  use  it  upon  all  the  ma- 
cliines.  and  was  therefore  bound  to  pay 
its  value  as  fixed  by  the  referee.  The 
judgment  was  affirmed  by  the  court  of  ap- 
peals without  an  opinion,  and  the  writ  of 
error  from  this  court  was  dismissed,  be- 
cause it  was  apparent  that  the  case  might 
properly  have  been  determined  on  a 
ground  broad  enough  to  sustain  the  judg- 
ment without  resort  to  a  federal  question. 
Marsh  ?■.  Nichols.  140  U.  S.  344,  356,  35 
L.  Ed.  413. 

In  accordance  with  the  general  ru?e 
that  where  a  suit  is  brought  on  a  contract 
of  wliich  a  patent  is  the  subject  matter, 
cither  to  enforce  such  contract,  or  to  an- 
nul it,  the  case  arises  on  the  contract,  or 
out  of  the  contract,  and  not  under  the 
patent  laws,  this  court  has  no  jurisdiction 
to  review  on  a  writ  of  error  the  decision 
of  the  highest  state  court  in  a  controversy 
in  respect  to  the  rescission  of  a  contract 
for  the  exchange  of  an  invention  for  a 
stock  of  merchandise,  on  the  ground  of 
fraud  and  misrepresentation,  and  holding 
there  was  in  fact  no  fraud,  that  the  plain- 
tiff got  what  he  bargained  for,  and  was  not 
deceived  or  misled  in  the  premises,  be- 
cause the  decree  rests  on  grounds  broad 
enough  to  sustain  it  without  anv  refer- 
ence to  any  federal  question.  Wade  v. 
Lawder.    165   U.    S.   624,    41    L.    Ed.   851. 

Where  an  ordinary  action  of  assumpsit 
is  brought  upon  the  common  counts  for 
the  price  of  a  patented  machine,  to  re- 
cover damages  for  an  infringment  or  to 
enjoin  its  use  bv  the  defendant,  and  not 
to  test  its  validity,  the  fact  that  the  state 
court  admits  testimony  to  show  that  the 
patent  was  invalid,  and  the  machine  an 
infringment  upon  a  prior  patent,  presents 
no  federal  question  under  §  711  of  the 
Revised  Statutes  which  declares  that  "the 
jurisdiction  vested  in  the  courts  of  the 
United  States,  in  the  cases  and  proceed- 
ings hereinafter  mentioned,  shall  be  ex- 
clusive of  the  courts  of  the  several  states 
*  *  *  Fifth.  Of  all  cases  arising  under 
the  patent-right  or  copyright  laws  of  the. 
United  States."  Pratt  v.  Paris  Gaslight 
etc.,  Co.,  168  U.   S.  255,  42  L.   Ed.  458. 


APPEAL  AND  ERROR. 


701 


state  courts  of  the  power  to  determine  questions  arising  under  the  patent  laws, 
but  only  of  assuming  jurisdiction  of  "cases"  arising  under  tliose  laws.  There  is 
a  clear  distinction  between  a  case  and  a  question  arising  under  the  patent  laws. 
The  former  arises  when  the  plaintiff  in  his  opening  pleading — be  it  a  bill,  com- 
plaint or  declaration — sets  up  a  right  under  the  patent  laws  as  ground  for  a  re- 
covery. Of  such  the  state  courts  have  no  jurisdiction.  The  latter  may  appear 
in  the  plea  or  answer  or  in  the  testimony.  The  determination  of  such  question 
is  not  beyond  the  competency  of  the  state  tribunals. -^ 

Showing  as  to  Jurisdiction.— And  according  to  the  rule  that  in  order  to 
justify  a  writ  of  error  from  this  court  to  review  the  judgment  of  a  state  court, 
the  record  must  show  that  the  judgment  rests  upon  .the  disposition  of  a  federal 
question,  a  writ  of  error  will  be  dismissed  where  the  state  court  did  not  decide 
any  question  arising  under  the  patent  laws,  nor  did  the  judgment  require,  to 
sustain  it,  any  such  decision.  And  where  neither  the  validity  of  the  patent,  nor 
its  construction,  nor  the  patentability  of  the  device,  is  brought  under  considera- 
tion, even  collaterally. ^^ 

(49)  Questions  Relating  to  the  Indian  Tribes. — Where  a  right  is  claimed  in 
the  state  court  under  the  act  of  congress  of  March,  1802,  entitled  "An  act  to 
regulate  trade  and  intercourse  with  the  Indian  tribes,"  and  denied,  this  court  has 
jurisdiction. 2^  Likewise,  a  decision  of  a  state  court  that  an  Indian  had  no  au- 
thority to  convey  his  land  without  permission  from  the  president  previously  ob- 
tained, under  the  treaty  of  Prairie  du  Chien,  7  Stat.  320,  making  grants  of  lands 
to  certain  Indians,  upon  condition  that  they  should  never  be  leased  or  conveyed 
by  the  grantees  or  their  heirs,  to  any  persons  whatever,  without  the  permission  of 
the  president  of  the  United  States,  raises  a  federal  question. ^^ 

(50)  Federal  Statutes  Relating  to  Rivers  and  Harbors. — The  decision  of  a  state 
court  denying  the  petitioners  a  writ  of  prohibition  to  restrain  the  harbor  com- 
missioners of  a  state  from  extending  or  locating  harbor  lines  erected  by  and  be- 
longing to  the  petitioner,  the  averment  in  the  relator's  petition  being  that  "he  is 
now  and  has  been  for  thirty  years  last  past  the  owner  of  the  following  described 
property,  to  wit,  the  property  commonly  known  as  Yesler's  wharf  and  dock,  and 


22.  Pratt  v.  Paris  Gaslight,  etc.,  Co., 
168  U.  S.  255,  259,  42  L.  Ed.  458. 

23.  Marsh  v.  Nichols,  140  U.  S.  344,  35 
L.  Ed.  413;  Wilson  v.  Sandford,  10  How. 
99,  13  L.  Ed.  344.  Brown  v.  Atwell,  92 
U.  S.  3'>7,  330,  23  L.   Ed.  511. 

24.  Questions  relating  to  the  Indian 
tribes. — The  plaintiff  in  error  was  indicted 
in  the  supreme  court  of  the  county  of 
Gwinnett  in  the  state  of  Georgia,  "for 
residing  on  the  15th  July,  1831,  in  that 
part  of  the  Cherokee  Nation  attached  by 
the  laws  of  the  state  of  Georgia  in  that 
county,  without  a  license  or  permit  from 
the  Governor  of  the  state,  or  from  any 
one  authorized  to  grant  it,  and  without 
having  taken  the  oath  to  support  and  de- 
fend the  constitution  and  laws  of  the  state 
of  Georgia,  and  uprightly  to  demean  him- 
self as  a  citizen  thereof,  contrary  to  the 
laws  of  the  said  state."  To  this  indict- 
ment he  pleaded  that  he  was,  on  the  15th 
July,  1531,  in  the  Cherokee  Nation,  out 
of  the  jurisdiction  of  the  court  of  Gwin- 
nett county;  that  he  was  a  citizen  of  Ver- 
mont, and  entered  the  Cherokee  Nation 
as  a  missionary  under  the  authority  of 
the  President  of  the  United  States,  and 
has  not  been  required  by  him  to  leave  it. 
and  that  with  the  permission  and  approval 


of  the  Cherokee  Nation  he  was  engaged 
in  preaching  the  gospel;  that  the  state 
of  Georgia  ought  not  to  maintain  the 
prosecution,  as  several  treaties  had  been 
entered  into  by  the  United  States  with 
the  Cherokee  Nation,  by  which  that  na- 
tion was  acknowledged  to  be  a  sovereign 
nation,  and  by  which  the  territory  occu- 
pied by  them  was  guaranteed  to  them  by 
the  United  States,  and  that  the  laws  of 
Georgia,  under  which  the  plaintiff  in  error 
was  indicted,  are  repugnant  to  the  treaties, 
and  unconstitutional  and  void,  and  also 
that  they  are  repugnant  to  the  act  of  con- 
gress of  March.  1802,  entiued  "An  act  to 
regulate  trade  and  intercourse  with  the 
Indian  tribes."  The  superior  court  of 
Gwinnett  overruled  the  plea,  and  the 
plaintiff  in  error  was  tried  and  convicted 
and  sentenced  "to  hard  labor  in  the  peni- 
tentiary for  four  years."  Held,  that  this 
was  a  case  in  which  the  supreme  court 
of  the  United  States  had  jurisdiction  by 
writ  of  error,  under  the  twenty-fifth  sec- 
tion of  the  "Act  to  establish  the  judicial 
court  of  the  United  States"  passed  in 
1789.  Worcester  v.  Georgia,  6  Pet.  515, 
8  L.   Ed.  4S.?. 

25.    Pickering  v.    Lomax,    145    U.   S.    310, 
3(3  L.  Ed.  716. 


'02 


APPBAD  AND  ERROR. 


the  upland  abutting  on  the  shore  upon  which  said  wharf  and  dock  were  con- 
structed." is  not  against  any  title  or  right  of  the  relator  arising  under  a  statute 
of  the  United  States. 2« 

(51)  Ordinance  for  Government  of  Northivest  Territory. — The  general  provi- 
sions of  the  ordinance  of  1787  as  to  the  rights  of  property  cannot  give  jurisdic- 
tion to  this  court.  They  do  not  come  within  the  25th  section  of  the  judiciary 
act. 2" 

(52)  Federal  Statutes  Relating  to  Administration  of  Estates. — The  decision 
of  the  highest  state  court  as  to  whether  or  not  a  right  given  by  an  act  of  congress 
to  Ihe  "legal  representatives"  of  a  deceased  person  is  for  the  benefit  of  creditors 
as  against  the  next  of  kin,  presents  a  federal  question,  and  may  be  reviewed  upon 
a  writ  of  error  sued  out  by  the  executor  of  the  estate. ^^ 

(53)  Domestic  and  Social  Status  of  Persons,  Such  as  Slaves. — Where  the  suit 
in  a  state  court  was  one  affecting  the  personal  status  of  the  defendant  in  error,  a 
citizen  of  that  state,  in  other  words,  where  the  question  was  whether  defendnat 
was  a  citizen  of  the  state,  and  the  court  decided  he  was  not ;  it  was  held,  that  such  a 
decision  of  the  state  court  does  not  present  a  question  of  which  this  court  has 
jurisdiction. 29  Under  the  25th  section  of  the  judiciary  act,  this  court  has  fio  ju- 
risdicM'on  over  the  following  question,  viz:  "Whether  slaves  who  had  been  per- 
mitted by  their  master  to  pass  occasionally  from  Kentucky  into  Ohio  acquired 
thereby  a  right  to  freedom  after  their  return  to  Kentucky."  The  laws  of  Ken- 
tucky plone  could  decide  upon  the  domestic  and  social  condition  of  the  persons 
domiciled  within  its  territory,  except  so  far  as  the  powers  of  the  states  in  this 
respect  are  restrained  or  duties  and  obligations  imposed  upon  them  by  the  con- 
stitution of  the  United  States.  There  is  nothing  in  the  constitution  of  the  United 
States  that  can  in  any  decree  control  the  law  of  Kentucky  upon  this  subject.    The 


?6.  Federal  statutes  relating  to  rivers 
and  harbors. — Yesler  t'.  Washington,  etc.. 
Commissioners,  146  U.  S.  646.  .36  L.  Ed. 
111ft. 

27.  Ordinances  for  government  of  north- 
west territory. — Strader  v.  Graham,  10 
How.  82,  l.S  L.  Ed.  337;  Chapin  v.  Fye, 
179  U.   S.   127,  45   L.   Ed.  119. 

The  mother  of  Aspasia,  a  colored 
•woman,  was  born  a  slave  at  Kaskaskia, 
in  Illinois,  previous  to  1787.  and  before 
that  country  was  conquered  for  Virginia, 
Aspasia  was  born  in  Illinois  subsequent 
to  the  passage  of  the  ordinance  for  the 
government  of  that  territory.  Aspasia 
was  afterwards  sent  as  a  slave  to  the 
state  of  Missouri.  In  Missouri  Aspasia 
claimed  to  be  free  under  the  ordinance 
"for  the  government  of  the  territory  of  the 
United  States  northwest  of  the  River 
Ohio,"  passed  13th  July,  1787.  The  su- 
preme court  of  Missouri  decided  that  As- 
pasia was  free,  and  Menard,  who  claimed 
her  as  his  slave,  brought  this  writ  of  error 
under  the  25th  section  of  the  Act  of  1789. 
claiming  to  reverse  the  judgment  of  that 
court.  Held,  that  the  case  is  not  within 
the  provisions  of  the  25th  section  of  the 
Act  of  1789.  The  provisions  of  the  com- 
pact which  relate  to  "property,"  and  to 
"rights,"  are  general.  They  refer  to  no 
specific  property  or  class  of  rights;  it  is 
impossible,  therefore,  judicially,  to  limit 
their  application.  If  it  were  admitted 
that  Aspasia  is  the  property  of  the  plain- 
tiff in  error,  and  the  court  were  to  take 
jurisdiction    of   the    cause    under   the   pro- 


visions of  the  ordinance,  must  they  not 
on  the  same  ground  interpose  their  juris- 
diction in  all  other  controversies  respect- 
ing property  which  was  acquired  in  the 
northwestern  territory?  Whatever  right 
may  be  claimed  to  have  originated  under 
the  ordinance  of  1787,  it  would  seem  that 
a  right  to  the  involuntary  service  of  an 
individual  could  not  have  had  its  source 
in  that  instrument.  It  declares  that  "there 
shall  not  be  slavery  nor  involuntary  serv- 
itude in  the  territory."  If  this  did  not 
destroy  a  vested  right  in  slaves,  it  at 
least  did  not  create  or  strengthen  that 
right.  If  the  decision  of  the  supreme 
court  of  Missouri  had  been  against  As- 
pasia, it  might  have  been  contended  that 
the  reversing  power  of  this  court,  under 
the  25th  section  of  the  judiciary  act, 
could  be  exercised.  In  such  a  case  the  de- 
cision would  have  been  against  the  ex- 
press provision  of  the  ordinance  in  favor 
of  liberty,  and  on  that  ground,  if  that 
instrument  could  be  considered  under  the 
circumstances  as  an  act  of  congress,  within 
the  25th  section,  the  jurisdiction  of  this 
court  would  be  unquestionable.  But  the 
decision  was  not  against,  but  in  favor  of 
the  express  provision  of  the  ordinance. 
Menard  v.  Aspasia,  5  Pet.  505,  8  L.  Ed. 
207. 

28.  Federal  statutes  relating  to  adminis- 
tration of  estates. — Brings  v.  Walker,  171 
U.   S.   466.  42   L.    Ed.   243. 

29.  Domestic  and  social  status  of  per- 
sons, such  as  slaves. — Hunt  z\  Hunt,  131 
U.  S..  appx.  clxv,  24  L.  Ed.  1109. 


APPEAL  AXD  ERROR. 


703 


ordinance  of  1787  cannot  confer  jurisdiction  upon  this  court.  It  was  itself  su- 
perseded by  the  adoption  of  the  constitution  of  the  United  States,  which  placed  all 
the  states  of  the  Union  upon  a  perfect  equality,  which  they  would  not  be  if  the 
ordinance  continued  to  be  in  force  after  its  adoption.  Such  of  the  provisions  of 
the  ordinance  as  are  yet  in  force  owed  their  validity  to  acts  of  congress  passed 
under  the  present  constitution,  during  the  territorial  government  of  the  north- 
west territory,  and  since  to  the  constitutions  and  laws  of  the  states  formed  in  it.-^*^ 

(54)  Slave  Contracts  and  Transactions. — This  court  has  no  jurisdiction  to 
review  the  judgment  of  a  state  court,  deciding  as  to  the  validity  of  a  contract,  the 
consideration  for  which  was  a  sale  or  purchase  of  slaves.-^  ^ 

(55)  Impairment  of  Obligation  of  Contract — aa.  ///  General. — Section  709  of 
the  Revised  Statutes  gives  a  review  on  writ  of  error  of  the  judgments  of  a  state 
court  whenever  they  sustain  the  validity  of  a  state  statute  claimed  to  impair  the 
obligation  of  a  contract. ^■- 


30.  Strader  z:  Graham,  10  How.  82,  13 
L.  Ed.  .337;  Chapin  z:  Fye,  179  U.  S.  127. 
45  L.  Ed.  119;  Menard  r.  Aspasia.  .">  Pet. 
.505,   8    L.    Ed.   207. 

31.  Slave  contracts  and  transactions. — 
Where  suit  wa>  brought  in  a  state  c''"M-t 
against  an  administrator  upon  a  writing 
obligatory,  and  the  administrator  pleaded: 
First,  that  the  consideration  of  the  obli- 
gation was  the  purchase  of  slaves,  and 
that  they  were  all  emancipated  by  the 
constitution  of  the  state;  Second,  that 
the  slaves  were  emancipated  by  an 
amendment  to  the  constitution  of  the 
United  States,  and  that  the  consideration 
of  the  obligation  therebj'  wholly  failed; 
Third,  that  the  contract  was  originally 
null  and  void,  the  writ  of  error  to  the 
slate  court  will  be  dismissed.  Jackoway  z'. 
Denton,  154  U.  S.  appx.  583,  20  L.  Ed.  645. 

The  supreme  court  of  Arkansas  or- 
dered judgment  for  a  plaintifif  suing  on  a 
note  given  for  the  price  of  slaves.  Sub- 
sequently to  this  the  state  of  Louisiana 
ordained  as  part  of  its  constitution,  "that 
all  contracts  for  the  sale  or  purchase  of 
slaves  were  null  and  void,  and  that  no 
court  of  the  state  should  take  cognizance 
f'f  any  suit  founded  upon  such  contracts, 
and  that  no  amount  should  ever  be  col- 
lected or  recovered  on  any  judgment  or 
iecree  which  had  been,  or  should  there- 
after be.  rendered  on  account  of  any  such 
contract  or  obligation."  On  application 
by  the  defendant  in  the  suit  to  supersede 
and  perpetually  stay  all  proceedings  on 
the  judgment  against  him.  the  supreme 
court  overruled  the  application.  The  case 
being  brought  here  under  an  assumption 
that  it  was  within  the  25th  section,  held 
that  it  was  not  so;  and  the  case  was  dis- 
missed for  want  of  jurisdiction  accord- 
ingly. Sevier  v.  Haskell.  14  Wall.  12,  20 
L    Ed.   827. 

32.  Impairment  of  obligation  of  con- 
tract.— Railroads  r.  Richmcmd.  15  Wall.  3, 
21  L.  Ed.  118;  Holt  V.  Indiana  Mfg.  Co.. 
176  U.  S.  68,  72,  44  L-  Ed.  374;  Pierce  v. 
Somerset  R.  Co.,  171  U.  S.  641.  648.  43  L. 
Ed.  316;  Eustis  v.  Bolles.  150  U.  S.  361. 
366.  37  L.  Ed.  nil;  Covington  z:  Ken- 
tucky,   173   U.    S.    231.   232,    43    L.    Ed.   679; 


Houston,  etc..  R.  Co.  v.  Texas.  177  U.  S. 
66.  74.  44  L.  Ed.  673;  Armstrong  v.  The 
Treasurer.  16  Pet.  281,  10  L.  Ed.  965;  Cro- 
well  z\  Randell.  10  Pet.  368,  392.  9  L.  Ed. 
458;  McKinney  v.  Carroll.  12  Pet.  66,  9 
L.  Ed.  1002;  Curran  v.  Arkansas.  15  How. 
304.  319.  14  L.  Ed.  705,  713;  Walsh  v. 
Columbus,  etc..  R.  Co.,  176  U.  S.  469,  44 
L.  Ed.  548;  The  Binghamton  Bridge,  3 
Wall.  51,  18  L.  Ed.  137;  Wright  v.  Na- 
gle,   101   U.   S.   791,  25   L.   Ed.   921. 

W^hether  a  contract  is  such  as  to  be 
impaired  by  a  statute  subsequently  passed 
by  a  state,  is  one  of  the  questions  of 
which  this  court  has  jurisdiction  under 
§  709  of  the  Revised  Statutes.  University  v. 
People,  99  U.  S.  309,  25  L.  Ed.  387,  citing 
JeiTerson  Branch  Bank  z'.  Skelly,  1  Black 
436,  17  L.  Ed.  173;  Bridge  Proprietors 
V.  Hoboken,  etc.,  Co.,  1  Wall.  116,  144,  17 
L.  Ed.  571;  Delmas  v.  Merchant's  Ins. 
Co.,    14  Wall.   661,   668.  20   L.   Ed.   757. 

In  New  Orleans  z'.  Benjamin,  153  U.  S. 
411.  424.  38  L.  Ed.  764.  it  is  said:  "Or- 
dinarily the  question  of  the  repugnancy 
of  a  state  statute  to  the  impairment 
clause  of  the  constitution  is  to  be  passed 
upon  by  the  state  courts  in  the  first  in- 
stance, the  presumption  being  in  all  cases 
that  they  will  do  what  the  constitution 
and  laws  of  the  United  States  require, 
Chicago,  etc..  R.  Co.  v.  Wiggins  Ferry 
Co.,  108  U.  S.  18,  27  L.  E.  636;  and  if 
there  be  ground  for  complaint  of  their 
decision,  the  remedy  is  by  writ  of  error 
under  §  709  of  the  Revised  Statutes." 
Defiance  Water  Co.  v.  Defiance.  191  U. 
S.    184.   191,  48   L.   Ed.   140. 

Where  a  statute  of  a  state  creates  a  con- 
tract and  a  subsequent  statute  is  alleged 
to  impair  the  obligation  of  that  contract, 
and  the  highest  court  of  law  or  equity  in 
the  state  construes  the  first  statute  in 
such  a  manner  as  that  the  second  stat- 
ute does  not  impair  it.  whereby  the  second 
statute  remains  valid  under  the  constitu- 
tion of  the  United  States,  the  validity  of 
the  second  statute  is,  "drawn  in  question," 
and  the  decision  is  "in  favor"  of  its  valid- 
ity, within  the  meaning  of  the  25th  sec- 
tion of  the  judiciary  act  of  1789.  This 
court    may    accordingly    under     the     said 


704 


APPEAL  AND  ERROR. 


bb.  Prior  or  Subsequent  Legislation. — The  contract  clause  of  the  constitution 


section,  re-examine  and  reverse  the  judg- 
ment or  decree  of  the  state  court  given 
as  before  said.  Bridsre  Proprietors  v.  Ho- 
boken,  etc..  Co.,  1  Wall.  116.  17  L.  Ed. 
571,  distinguishing  Commercial  Bank  v. 
Buckingham,  5  How.  317.  12  L.  Ed.  169, 
Grier,   J.,    dissenting. 

Discharge  under  insolvency  laws. — 
Where  the  defendants  in  the  trial  court, 
in  an  action  against  them  to  recover  on  a 
promissory  note,  depended  on  a  discharge 
obtained  by  them  under  regular  proceed- 
ings under  the  insolvency  laws  of  the 
state,  and  this  defense  the  plaintiflfs  met 
by  alleging  that  the  statutes,  under  which 
the  defendants  had  procured  their  dis- 
charge had  been  enacted  after  the  promis- 
sory note  sued  on  had  been  executed  and 
delivered,  and  that,  to  give  eflfect  to  a 
discharge  obtained  under  such  subsequent 
laws,  would  impair  the  obligation  of  a 
contract,  within  the  meaning  of  the  con- 
stitution of  the  United  States,  it  is  plain 
that  if  the  highest  state  court  should  ad- 
judge that  question  adversely  to  the  plain- 
tiffs, a  federal  question  is  presented,  and 
it  is  the  duty  of  this  court  to  consider 
the  soundness  of  such  judgment.  Eustis 
^•.  Bolles,  150  U.  S.  361,  37  L.  Ed.  1111, 
followed  in  Winter  v.  Montgomery,  156 
U.   S.   385,  39   L.   Ed.   460. 

Reduction  of  railroad  rates. — A  judg- 
ment of  the  highest  court  of  a  state  af- 
firming an  order  awarding  a  peremptory 
writ  of  mandamus  commanding  a  rail- 
road company  to  reduce  its  rates  to  con- 
form with  a  state  law,  upon  the  ground 
that  on  its  incorporation  under  that  law 
it  became  subject  to  its  provisions,  is 
based  upon  a  federal  question  and  subject 
to  review  by  the  supreme  court  of  the 
United  States,  where  it  is  plain  from  the 
averments  of  the  answer  that  the  com- 
pany relied  upon  the  provisions  of  a 
prior  law.  authorizing  the  incorporation 
of  the  purchaser  of  railroads  after  sale  in 
foreclosure  proceedings,  as  constituting  a 
contract  protected  bv  the  constitution  of 
the  United  States.  Grand  Rapids,  etc.,  R. 
Co.  V.  Osborn.  193  U.  S.  17,  48  L.  Ed. 
598. 

Lottery  franchise. — Where  in  a  pro- 
ceeding by  quo  warranto  to  exclude  the 
plaintiffs  in  error  from  the  further  use  of 
the  franchises  of  a  lottery,  on  the  ground 
that  the  event  had  happened  which  fixed 
the  period  for  the  termination  of  the 
grant  under  which  they  were  acting,  but 
no  claim  was  made  under  any  of  the  stat- 
utes of  the  state  passed  for  the  suppres- 
sion of  lotteries,  and  no  effect  whatever 
was  given  to  any  law  of  the  state  impair- 
ing the  obligations  of  the  grant,  a  motion 
to  dismiss  will  be  granted,  on  the  ground 
that  no  federal  question  was  raised  or  de- 
cided. France  v.  Missouri.  154  U.  S.. 
appx.  667,  26  L.  Ed.  86.  See  Douglas  v. 
Kentucky,   168  U.  S.  488,  42   L.   Ed.   553. 


Condemnation  of  stock. — Where  the 
plaintiff  in  error  contends  that  the  pur- 
pose for  which  his  stock  is  sought  to  be 
obtained  vmder  a  state  statute  allowing 
the  lessee  railway  company,  who  is  the 
owner  of  three-fourths  of  the  stock,  to 
condemn  the  outstanding  shares  owned 
by  a  person  who  refuses  to  agree  to  the 
terms  of  purchase,  is  not  a  public  use; 
that  the  defendant  in  error  has  the 
power  and  authority  to  make  the  im- 
provements mentioned  in  its  application, 
which  will  be  as  advantageous  as  taking 
the  stock;  and  that  the  proceedings  and 
statute  are  in  violation  of  the  due  process 
clause  of  the  fourteenth  amendment  to  the 
constitution  of  the  United  States  and  im- 
pair the  contract  rights  of  the  plaintiff 
in  error  as  a  stockholder,  this  raises  a 
federal  question,  and  a  motion  to  dismiss 
will  therefore  be  denied.  Oflield  i>.  New 
York,  etc.,  R.  Co.,  203  U.  S.  372.  51  L. 
Ed.    231. 

Violation  of  contract  granting  ferry 
right. — The  jurisdiction  of  this  court, 
under  the  twenty-fifth  section  of  the  ju- 
fliciary  act.  extends  to  a  review  of  the 
judgment  of  a  state  court,  where  the  point 
involved  was  the  alleged  violation  of  a  con- 
tract granting  a  ferry  right  by  a  state  to 
an  individual,  but  it  does  not  extend  to 
a  case  where  the  alleged  violation  of  a 
contract  is,  that  a  state  has  taken  more 
land  than  was  necessary  for  the  easement 
which  is  wanted,  and  thus  violated  the 
contract  under  which  the  owner  held  his 
land  bv  a  patent.  It  rests  with  the  state 
legislature  and  state  courts  exclusively  to 
protect  their  citizens  from  injustice  and 
oppression  of  this  description.  "Were 
this  court  to  assume  jurisdiction,  and  re- 
examine and  revise  state  court  decisions, 
on  a  doubtful  construction,  that  an  in- 
terest in  l;«nd  held  by  patent  was  a  con- 
tract, and  the  owner  entitled  to  constitu- 
tional protection  by  our  decision  in  case 
of  abuse  and  trespass  by  an  oppressive 
exercise  of  state  authority,  it  would  fo4- 
low.  that  all  state  laws,  special  and  gen- 
eral, under  whose  sanction  roads,  ferries 
and  bridges  are  established,  would  be  sub- 
ject to  our  supervision.  A  new  source  of 
jurisdiction  would  be  opened,  of  endless 
variety  and  extent,  as,  on  this  assump- 
tion, all  such  cases  could  be  brought 
here  for  final  adjudication  and  settlement; 
of  necessity,  we  would  be  called  on  to 
adjuds-e  of  fairness  and  abuse  to  ascer- 
tain whether  jurisdiction  existed,  and  thus 
to  decide  the  law  and  facts;  in  short,  to 
do  that  which  state  courts  are  constantly 
doinar.  in  an  exercise  of  jurisdiction  over 
peculiarly  local  matters;  by  which  means 
a  vast  mass  of  municioal  powers,  hereto- 
fore supposed  to  beHng  exclusively  to 
state  cognizance,  would  be  taken  from 
the  states,  and  exercised  by  the  gen- 
eral     government,     through     the     instru- 


APPEAL  A.\D  ERROR. 


705 


of  the  United  States  has  reference  only  to  a  statute  of  a  state  enacted  after  the 


mentality  of  this  court.  That  such  a  doc- 
trine cannot  be  maintained  here  has  in 
effect  been  decided  in  previous  cases;  and 
specially  in  that  of  Charles  River  Bridge 
V.  Warren  Bridge,  11  Pet.  420,  650,  9  L. 
Ed.  773,  where  other  cases  are  cited  and 
reviewed."'  Mills  v.  St.  Clair  County,  8 
How.    .569.    12    L.    Ed.    1201,    1202. 

Municipal  securities. — In  a  suit  brought, 
in  one  of  her  courts,  by  the  state  of 
Louisiana,  seeking  to  restrain  payment  on 
the  bonds  issued  to  the  New  Orleans.  Mo- 
bile, and  Chattanooga  Railroad  Company, 
under  an  act  of  the  legislature  approved 
April  20,  1871,  and  praying  for  relief, 
upon  the  ground  that  the  act  was  in  vio- 
lation of  the  constitutional  amendment  of 
1870,  which  declares  "that,  prior  to  the 
first  day  of  January,  1890,  the  debt  of  the 
state  shall  not  be  so  increased  as  to  ex- 
ceed twenty-five  millions  of  dollars," 
which  limit,  it  was  claimed,  had  been  at- 
tained before  the  passage  of  the  act,  a 
holder  of  some  of  the  bonds,  who  was 
permitted  to  intervene,  set  up  that  they 
were  issued  in  discharge  and  release  of 
valid  and  then  subsisting  obligations  of 
the  state,  which,  prior  to  the  adoption  of 
the  amendment,  had  been  created  under 
her  legislation.  Held,  that  this  court  has 
jurisdiction  to  determine  whether  the 
amendment,  as  construed  by  the  court  be- 
low and  applied  to  the  facts  of  the  case, 
impairs  the  obligation  of  a  contract.  Wil- 
liams z\  Louisiana.  103  U.  S.  637,  26  L.  Ed. 
595,  reaffirmed  in  Durkee  v.  Board  of 
Liquidation,   103   U.   S.   646.  26  L.   Ed.   598. 

Issuance  of  unauthorized  bank  paper. — 
In  1810  the  Iccislature  of  Ohio  passed  an 
"act  to  prohibit  the  issuing  and  circula- 
tion of  unauthorized  bank  paper,"  and  in 
1839  an  act  amendatory  thereof;  and  the 
question  was.  whether  or  not  a  canal  com- 
pany, incorporated  in  1837,  was  subject  to 
these  acts.  In  deciding  that  it  was,  the 
supreme  court  of  Ohio  only  gave  a  con- 
struction to  an  act  of  Ohio,  which  neither 
of  itself,  nor  by  its  application,  involved 
Ml  any  way  a  repugnancy  to  the  consti- 
tution of  the  United  States,  by  impairing 
the  obligation  of  a  contract.  Lawler  v. 
Walker,    14   How.   149,    14   L.    Ed.   364. 

Act  allowing  state  to  be  sued. — Under 
the  constitution  of  the  state  of  Arkansas, 
the  legislature  passed  a  law  allowing  the 
state  to  be  sued.  According  to  this  law, 
a  suit  was  brought  upon  some  of  the  state 
bonds;  and  whilst  the  suit  was  going  on, 
the  legislature  passed  another  law,  re- 
quiring the  bonds  to  be  filed  in  court,  or 
the  suit  to  be  dismissed.  The  suitor  re- 
fusing to  file  his  bonds,  the  suit  was  dis- 
missed; and  the  case  was  carried  to  the 
supreme  court  of  the  state,  where  the 
judgment  was  affirmed.  The  ca-se,  being 
brought  to  this  court  under  the  twenty- 
fifth  section  of  the  judiciary  act,  must  be 

1  U  S  Enc— 45 


dismissed  for  want  of  jurisdiction.  The 
permission  to  bring  the  suit  was  not  a 
contract  whose  obligations  were  impaired 
by  the  passage  of  the  subsequent  law. 
Beers  v.  Arkansas.  20  How.  527.  15  L. 
Ed.   991. 

Provisions  in  railroad  charters. — The 
charter  of  the  Baltimore  and  Ohio  Rail- 
road Company  for  constructing  and  work- 
ing a  branch  railroad  between  Baltimore 
and  Washington  contained  a  stipulation 
that  the  company  at  the  end  of  every  six 
months  should  pay  to  the  , state  one-fifth 
of  the  whole  amount  received  for  the 
transportation  of  passengers.  This  char- 
ter was  accepted  and  complied  with  for 
many  years.  Held,  that  as  the  alleged 
unconstitutionality  of  the  stipulation  was 
set  up  as  a  defense,  the  state  court  was 
bound  to  pass  upon  it;  and  having  de- 
cided against  the  exemption  thus  claimed, 
this  court  is  authorized  to  review  the  de- 
cision. Railroad  Co.  v.  Maryland,  21 
Wall.   457,  22   L.   Ed.   678. 

A  decision  bj^  the  supreme  court  of  the 
state  of  Illinois  that  the  power  given  by 
the  charter  of  the  Illinois  Central  Rail- 
road Company  of  February  10.  1851,  "to 
'enter  upon  and  take  possession  of  and 
use  all  and  singular  any  lands,  streams 
and  materials  of  every  kind,  for  the  lo- 
cation of  depots  and  stopping  stages  for 
the  *  *  *  complete  operation  of  said 
road,'  and  the  grant  to  said  corporation 
of  'all  such  lands,  waters,  materials  and 
privileges  belonging  to  the  state,'  did  not 
include  lands  covered  by  the  waters  of 
Lake  Michigan."  and  was  not  impaired 
by  legislation  subsequent  to  the  charter 
of  the  railroad  company,  prohibiting  the 
driving  or  placing  of  any  piles,  stone, 
timber  or  other  obstruction  in  the  harbor 
of  the  city,  without  the  permission  of  the 
commissioner  of  public  works,  presents  a 
federal  question.  The  claim  is  certainly 
not  a  frivolous  one.  Illinois  Central  R. 
Co.  V.  Chicago,  176  U.  S.  646,  653.  44  L. 
Ed.  622,  citing  Bacon  v.  Texas,  163  U.  S. 
207;  41  L.  Ed.  132;  Walla  Walla  z:  Walla 
Walla  Water  Co.,  172  U.  S.  1,  23,  43  L. 
Ed.  341. 

Grant  of  land  to  state  by  congress. — A 
decision  by  the  supreme  court  of  the 
state  of  Ohio  that  the  act  of  congress  of 
May  24,  1828.  granting  to  the  state  of 
Ohio  500,000  acres  of  land  for  the  con- 
struction of  canals,  and  providing  that 
such  canals,  "when  completed  or  used, 
shall  be,  and  forever  remain,  public  high- 
ways, for  the  use  of  the  government  of 
the  United  States,"  and  the  acceptance 
thereof  by  the  general  assembly,  did  not 
constitute  a  contract  by  the  state  for  the 
perpetual  maintenance  of  such  canals  a-? 
public  highways,  at  least  until  they  were 
given  up  by  consent  of  the  United  States, 
and    that    the   subsequent   act   of  the   gen- 


706 


APPEAL  AND  ERROR. 


making  of  the  contract,  whose  obligation  is  alleged  to  have  been  impaired.^^  No 
jurisdiction  exists  in  this  court  under  the  25th  section  of  the  judiciary  act,  to 
review  a  decision  of  the  highest  court  of  the  state,  maintaining  the  validity  of  a 
law,  which  it  has  been  set  up  "impairs  the  obligation  of  a  contract."  when  the 
law  set  up  as  having  this  effect  was  in  existence  when  the  alleged  contract  was 
made,  and  the  highest  state  court  has  only  decided  that  there  was  no  contract 
in  the  case.^^     In  other  words,  where  the  federal  question  upon  which  the  juris- 


eral  assembly  of  May  18,  1894.  providing 
for  the  abandonment  of  such  canals,  with- 
out such  consent  being  given,  was  not 
obnoxious  to  that  provision  of  the  fed- 
eral constitution  declaring  that  no  state 
shall  pass  a  law  impairing  the  obligation 
of  contracts,  raises  a  federal  question. 
Walsh  V.  Columbus,  etc.,  R.  Co..  1,76  U. 
S.  469,  44  L.  Ed.  548,  reaffirmed  in  Walsh 
V.  Columbus,  etc.,  R.  Co.,  176  U.  S.  469, 
481.  44  L.  Ed.  548;  Gates  v.  Commission- 
ers,   183   U.    S.    693,   46   L.    Ed.   393. 

Curative  acts. — A  statute  which  merely 
cures  defects,  is  not  objectionable  as  im- 
pairing the  obligation  of  a  contract. 
In  1839,  a  treaty  was  made  between  the 
United  States  and  Mexico,  providing  for 
the  "adjustment  of  claims  of  citizens  of 
the  United  States  on  the  Mexican  Re- 
public.'' Under  this  treaty  a  sum  of 
money  was  awarded  to  be  paid  to  the 
members  of  the  Baltimore  Mexican  Com- 
pany, who  had  subscribed  money  to  fit 
out  an  expedition  against  Mexico,  under 
General  Mina,  in  1816.  The  proceeds  of 
one  of  the  shares  of  this  company  were 
claimed  by  two  parties;  one  as  being  the 
second  permanent  trustee  of  the  insolvent 
owner  of  the  share,  and  the  other  as  be- 
ing the  assignee  of  the  first  permanent 
trustee.  This  court  has  no  jurisdic- 
tion in  consequence  of  the  additional 
fact  that  the  legislature  of  Maryland 
passed  a  law  curing  certain  defects 
in  the  assignment  to  Oliver,  the  va- 
lidity of  which  law  was  drawn  into 
question,  as  impairing  the  obligation  of  a 
contract;  because,  if  there  had  been  no 
such  law,  the  decision  of  the  state  court 
would  have  been  the  same.  Williams  v. 
Oliver.    12    How.    Ill,    13    L.    Ed.    915.  . 

Prchibitory  liquor  law  of  state. — 
Where  it  appears  from  the  record  that 
the  point,  that  the  prohibitory  liquor  law 
of  Massachusetts  of  1869  impaired  the 
obligation  of  the  contract  contained  in 
the  charter  of  the  company,  was  made  on 
the  trial  of  the  case,  and  decided  adversely 
to  the  company,  and  was  afterwards  car- 
ried, by  a  bill  of  exceptions,  to  the  su- 
preme court  of  Massachusetts,  where  the 
rulings  of  the  lower  court  were  affirmed, 
this  court  has  jurisdiction.  Beer  Co.  v. 
Massachusetts,  97  U.  S.  25.  24  L.  Ed.  989. 

Confiscation  of  debts  by  confederacy. — ■ 
This  court  has  jurisdiction  under  the  25th 
section  of  the  judiciary  act  of  1789  to  re- 
examine and  reverse  upon  a  writ  of  error 
the  final  judgment  or  decree  in  the  high- 
est court  of  a  state,  holding  that  the  con- 
liscation   of   debts    due    to    citizens   of   the 


United  States,  under  an  act  of  the  con- 
federate government,  enforced  as  a  law 
of  the  state,  is  a  valid  proceeding.  Wil- 
liams V.  Brufify,  102  U.  S.  248,  26  L.  Ed. 
135,  citing  Richmond,  etc.,  R.  Co.  v. 
Louisa   R.   Co.,   13   How.   71,   14  L.   Ed.   55. 

A  writ  of  error  will  lie  from  this  court 
to  the  supreme  court  of  a  state,  where  it 
is  plain  that  a  debt  due  to  the  plaintiff 
was  sequestered  under  a  law  of  a  con- 
federation bv  one  state  with  another. 
Williams  f. 'Bruffy,  96  U.  S.  176,  24  L. 
Ed.    716. 

Mortgage  debt. — The  decision  of  a  state 
court,  relating  to  the  validity  of  statutes 
passed  subsequently  to  the  execution  of 
a  mortgage  holding  that  the  statute  did 
not  impair  the  obligation  of  the  contract 
contained  in  the  mortgage,  presents  a  fed- 
eral question  reviewable  by  this  court. 
Pierce  v.  Somerset  R.  Co.,  171  U.  S.  641. 
648,   43    L.    Ed.   316. 

Railroad  aid  bonds. — In  Smith  v.  Jen- 
nings, :?06  U.  S.  276,  51  L.  Ed.  1061.  the 
plaintiff  in  error  was  the  holder  of  cer- 
tain railroad  aid  bonds  issued  by  the  state 
in  aid  of  a  certain  railroad  company.  A 
state  statute  was  passed  authorizing  and 
requiring  the  state  treasurer  to  write  off 
the  books  in  his  office  these  bonds.  The 
holder  sued  out  an  injunction  in  the  state' 
court  to  restrain  the  treasurer  of  the  state 
from  obeying  the  requirements  of  the  act, 
on  the  ground  that  it  impaired  the  obH- 
gation  of  the  contract  made  by  the  bond. 
This  court  in  dismissing  the  writ  of  er- 
ror said:  "Nor  did  the  law  complained 
of  impair  the  obligation  of  the  state  to 
pay  the  bonds  therein  mentioned,  or  the 
remedy  to  recover  upon  them.  The 
obligation  and  the  remedy  remained  pre- 
cisely the  same  after  the  enactment  of 
the  law  as  before.  Neither  one  was  in 
the  slightest  degree  diminished  or  af- 
fected. The  law  merely  directed  a  change 
of  entries  in  the  books  of  the  state  treas- 
urer, and  could  by  no  possibilitj",  in  any 
respect  whatever,  deny,  obstruct,  impair  or 
affect  the  rights  of  the  plaintiff  in   error." 

33.  Prior  or  subsequent  legislation. — 
Lehigh  Water  Co.  r.  Easton.  121  U.  S. 
388,  391,  30  L.  Ed.  1059;  Pinney  v.  Nel- 
son, 183  U.  S.  144,  147,  46  L.  Ed.  125;  New 
Orleans  Waterworks  Co.  v.  Louisiana,  185 
U.  S.  336,  351,  46  L.  Ed.  936;  Oshkosh 
Waterworks  Co.  v.  Oshkosh,  187  U.  S. 
437,    446,    47    L.    Ed.    249. 

34.  Railroad  Co.  v.  McClure,  10  WaU. 
511.    19    L.    Ed.    997. 

Remedy  for  forfeiture  of  corporate 
charter. — On   writ    of    error   from   the    su- 


AFFBAL  AXD  ERROR, 


'07 


'liction  of  t'nis  court  is  based  grows  out  of  an  alleged  impairment  of  the  obliga- 
tion of  a  contract,  it  is  now  definitely  settled  that  the  contract  can  only  be  im- 
yjaired  within  the  meaning  of  this  clause  in  the  constitution,  and  so  as  to  give 
this  court  jurisdiction  on  writ  of  error  to  a  state  court,  by  some  subsequent  statute 
if  the  stale  which  has  been  upheld  or  effect  given  it  by  the  state  court.^^ 

cc.  Distinction  bctzccen  J'iolation  and  Impainnent. — And  while  it  is  true  that 
the  decision  of  a  state  court  in  favor  of  the  validity  of  any  statute  of  the  state 
impairing  the  obligation  of  a  contract  may  be  reviewed  here,  still  there  is  a  broad 
distinction  between  the  violation  of  a  contract  by  the  state  and  its  impairment.'^ 


preme  court  of  the  United  States  to  a 
state  court  to  review  a  proceeding  in  the 
entry  of  a  quo  warranto  brought  by  the 
attorney  general  of  the  state  to  obtain 
a  forfeiture  of  the  charter  of  the  defend- 
ant a  waterworks  company,  the  plaintiff 
in  error,  the  corporation  claimed  the  ex- 
istence in  the  record  of  a  federal  ques- 
tion which  the  brief  of  defendant  in  error 
set  forth  as  follows:  "If  mandamus  for 
the  forfeiture  be  sanctioned  by,  and 
sought  pursuant  to  a  state  statute,  subse- 
quent in  date  to  the  charter  of  the  water- 
works company,  does  not  such  a  statute 
impair  the  obligation  of  the  charter  con- 
tract, divest  vested  rights,  and  deny  to 
said  company  the  equal  protection  of  the 
laws?"  It  was  held  that  "there  is  no 
state  statute  subsequent  in  date  to  the 
charter  of  the  water  company  under  or 
by  virtue  of  which  this  proceeding  was 
commenced,  or  which  in  any  way  aflfects 
the  contract  of  plaintiflf  in  error.  The 
joint  resolution  of  the  legislature  of 
Louisiana  referred  the  whole  matter  to  the 
attorney  general  for  him  to  bring  suit  to 
forfeit  the  charter  or  to  take  such  action 
as  he  might  think  proper.  It  was  a 
simple  authority,  if  any  were  needed,  to 
present  the  question  to  the  court,  and 
neither  the  contract  nor  any  other  rights 
of  the  parties  were  in  anywise  altered  by 
such  resolution.  The  proceeding  herein 
is  based  solely  upon  an  alleged  violation 
of  the  terms  of  the  charter  by  the  cor- 
poration; that  question  has  been  judicially 
determined  after  a  full  investigation  by 
the  state  courts,  and  in  a  proceeding  to 
which  the  company  was  a  party  and  after 
a  full  hearing  has  been  accorded  it  in  such 
proceeding.  This  was  due  process  of 
law,  and  no  federal  question  arises  from 
the  decision  of  the  court."  New  Orleans 
Waterworks  Co.  v.  Louisiana.  18.5  U.  S. 
336,  46  L.  Ed.  936,  reaffirmed  in  Brew- 
ster V.  Cahill.  194  U.  S.  629.  48  L.  Ed. 
WSS;  Gates  v.  Parmly,  191  U.  S.  5.57,  48 
L.  Ed.  301;  Weltmer  v.  Bishop,  191  U.  S. 
560,  561,  48  L.  Ed.  302;  Coventry  v. 
Davis,  193  U.  S.  668,  48  L.  Ed.  840;  Ham- 
burg, etc..  Steamship  Co.  z'.  Lennan.  194 
U.  S.  628,  48  L.  Ed.  1157;  Iron  Bridge  Co. 
V.  Brennan,  194  U.  S.  630,  48  L.  Ed.  1158. 
35.  Lehigh  Water  Co.  z:  Easton.  121  U. 
S.  3S8,  30  L.  Ed.  1059;  New  Orleans 
Waterworks  Co.  v.  Louisiana  Sugar  Co., 
125  U.  S.  18.  31  L.  Ed.  607;  Central  Land 
Co.  V.   Laidley,   159   U.    S.   103,   109,   40   L. 


Ed.  91;  Bacon  v.  Texas,  163  U.  S.  207. 
216.  41  L.  Ed.  132;  Weber  v.  Rogan,  188 
U.    S.    10.    12,    47    L.    Ed.   363. 

Municipal  securities. — Where  a  consti- 
tutional amendment  is  adopted  while  a 
municipal  bond  is  still  in  the  possession 
of  the  state,  by  which  it  is  declared  that 
certain  of  the  state  bonds  are  void,  but 
subsequently  an  ofificer  of  the  state  puts 
such  bond  in  circulation  and  absconds,  a 
refusal  of  the  state  to  make  payment  to 
an  innocent  purchaser  for  value,  in  a  suit 
brought  by  him  to  recover  the  purchase 
money,  raises  no  federal  question.  If  the 
plaintiff  in  error  had  been  a  holder  for 
the  value  of  the  bond  when  the  constitu- 
tional amendment  was  adopted,  it  would 
evidently  be  beyond  the  power  of  the 
state,  by  act  of  the  legislature,  or  by  an 
amendment  to  its  constitution,  to  nullify 
such  bonds  in  his  hands.  But  if,  when  the 
constitutional  amendment  was  adopted, 
the  bond  was  still  in  the  possession  of  the 
state,  there  was  then  no  contract  with  the 
plaintiff  in  error  upon  which  such  amend- 
ment could  operate,  and  hence  no  contract 
subject  to  impairment.  In  other  words, 
there  is  no  objection  to  the  state  declar- 
ing bonds  still  in  its  possession  to  be  nuH 
and  void.  Bier  v.  McGehee,  148  U.  S. 
137,  37  L.  Ed.  397,  citing  New  Orleairs 
V.  New  Orleans  Waterworks,  142  U.  S. 
86,   35   L.   Ed.   946. 

36.  Brown  v.  Colorado,  106  U.  S.  95,  27 
L.    Ed.    132. 

Distinction  between  violation  and  im- 
pairment.— A  state  made  a  contract  with 
a  person  whom  it  employed  to  work  for 
it,  to  pay  him  so  much  money  for  his 
work;  the  money  to  be  paid  from  time 
to  time  as  the  work  went  on.  The  work 
was  done.  Payment  was  made  part  in 
money,  and  part  in  state  warrants  much 
depreciated  when  paid  out,  and  which  the 
contractor  was  obliged,  in  order  tn  keep 
his  engagement  to  the  state,  to  sell  at  a 
heavy  loss;  though  in  the  liands  of  the 
purchasers  they  were  ultimately  re- 
deemed. The  people  of  the  state  subse- 
quentl}'  ordained  by  its  cou'^titution  that 
the  debt  of  the  state  should  not  be  in- 
creased so  as  to  exceed  $25,000,000.  And 
after  this,  there  being  no  money  unap- 
propriated in  the  treasury-,  and  the  debt 
of  the  state  then  being  $25,000,000,  the 
legislature  passed  an  act  to  pay  the  con- 
tractor $50,331  to  reimburse  him  the  losses 
which    hf.    had    sustained    by     the     state's 


"08 


APPEAL  AXD  ERROR. 


dd.  Whether  a  Subseqiteiit  Shilutc  Has  Repealed  a  Contract. — Where  a  con- 
tract is  claimed  to  arise  from  a  state  law  and  it  is  held  below  that  a  subsequent 
statute  has  repealed  the  alleged  contract  and  effect  is  thereby  given  to  the  sub- 
sequent law,  the  mere  question  whether  the  alleged  contract  has  been  repealed 
by  the  subsequent  law  is  a  state  and  not  a  federal  question.  In  such  a  case  this 
court  concerns  itself  not  with  the  question  whether  the  state  law,  from  which 
the  contract  is  asserted  to  have  arisen,  has  been  repealed,  but  proceeds  to  de- 
termine whether  the  repeal  was  void  because  it  produced  an  impairment  of  the 
obligations  of  the  contract  within  the  purview  of  the  constitution  of  the  United 
States.  In  other  words,  where  the  state  court  has  given  effect  to  a  subsequent  law. 
this  court  decides  whether  such  effect,  so  given  by  the  state  court,  violates  the 
constitution  of  the  United  States. -^^ 

ee.  Bv-Lazvs  and  Orduiaiiccs. — It  is  not  necessary  that  the  law  of  a  state,  in 
order  to  come  within  this  constitutional  prohibition,  should  be  either  in  the  form 
of  a  statute  enacted  by  the  legislature  in  the  ordinary  course  of  legislation,  or  in 
the  form  of  a  constitution  established  by  the  people  of  the  state,  as  their  funda- 
mental law.  A  by-law  or  ordinance  of  a  municipal  corporation  may  be  such  an 
exercise  of  legislative  power  delegated  by  the  legislature  to  the  corporation  as  a 
political  subdivision  of  the  state,  having  all  the  force  of  law  within  the  limits  of 
the  municipality,  that  it  may  properly  be  considered  as  a  law  within  the  meaning  . 
of  this  article  of  the  constitution  of  the  United  States.^^ 

ff.  Impairment  by  Judicial  Department. — Regarding  the  impairment  of  any 
alleged  contract,  it  must  be  borne  in  mind  that  the  constitutional  provision  refers  to. 
state  legislation,  or  to  an  enactment    of  a  legislative  character,  though  by  a  municipal 


want  of  good  faith  in  paying  him  in 
money  all  that  it  owed  him  under  its  con- 
tract. On  an  application  for  a  mandamus, 
the  supreme  court  of  the  state  adjudged 
that  this  act  created  a  new  debt,  and  so 
increased  the  debt  of  the  state  above 
825.000,000,  and  was  void.  Held  in  this 
court,  that  no  writ  of  error  lay  under  the 
25th  section  of  the  judiciary  act.  "No 
question  as  to  the  repugnance  of  the  con- 
stitution of  Louisiana  to  the  constitution 
of  the  United  States  was  made  in  the  su- 
l^reme  court  of  the  state,  or  decided  by 
that  court;  nor  is  it  easy  to  see  how  such 
a  question  could  be  made."  Salomon  v. 
Graham.  15  Wall.  208,  21  L.  Ed.  37. 

Municipal  aid. — Statutes  of  a  state  au- 
thorized a  district  in  a  county,  defined  by 
exact  boundaries,  to  determine  by  the 
vote  of  its  inhabitants  to  subscribe  for 
stock  in  a  railroad  company,  and  required 
bonds  to  be  executed  in  its  name  by  the 
county  judge  to  the  railroad  company  for 
the  amount  of  stock  so  subscribed  for. 
By  later  statutes,  it  was  enacted  that  this 
district  should  be  entitled  to  vote  on  the 
amount  of  its  stock,  and  in  so  doing  be 
represented  by  certain  magistrates  of  the 
county;  and  that  it  should  have  a  certain 
corporate  name,  and  by  that  name  might 
sue  and  be  sued.  The  highest  court  of 
the  state  held  that  by  the  earlier  statutes 
the  district  was  made  a  corporation,  and 
entitled  to  vote  and  to  receive  dividends 
on  its  stock  in  the  railroad  company,  and 
that  the  later  statutes  made  no  change 
in  the  contract  created  by  the  earlier  stat- 
utes. Held,  that  this  court  had  no  juris- 
diction   on    writ    of    error.      "It    thus    ap- 


pears that  the  state  court,  upon  full  con- 
sideration, decided  that  the  acts  of  1870 
and  1873  conferred  no  new  rights,  but 
only  defined  more  clearly  the  manner  in 
which  the  rights  conferred  bj^  the  earlier 
statutes  should  be  exercised;  and  that  it 
based  its  judgments  entirely  upon  the  con- 
struction and  eflfect  of  the  earlier  stat- 
utes, and  upon  grounds  which  would  have 
been  equally  controlling  if  the  later  acts 
had  not  been  passed.  The  necessary  con- 
clusion is  that  this  court  has  no  jurisdic- 
tion to  review  those  judgments.  West 
Tenn.  Bank  v.  Citizens'  Bank.  13  Wall. 
432.  20  L.  Ed.  514;  S.  C,  14  Wall.  9,  20 
L.  Ed.  514;  Palmer  v.  Marston.  14  Wall. 
10,  20  L.  Ed.  826;  Kennebec  R.  v.  Port- 
land R.  Co.,  14  Wall.  23,  26,  20  L.  Ed. 
850;  Stevenson  f.  Williams,  19  Wall.  572. 
22  L.  Ed.  162;  New  Orleans  Waterworks 
r.  Louisiana  Sugar  Co..  125  U.  S.  18,  31 
L.  Ed.  607;  Kreiger  v.  Shelby  R.  Co.,  125 
U.    S.   39.   46.   31    L.    Ed.    675. 

37.  Whether  a  subsequent  statute  has 
repealed  a  contract. — Gulf,  etc.,  R.  Co.  v. 
Hewes.  183  U.  S.  66,  46  L.  Ed.  86;  North- 
ern Central  R.  Co.  z\  Maryland,  187  U. 
S.   258,  266.   47   L.   Ed.    167. 

38.  By-laws  and  ordinances. — Bacon  v. 
Texas.  163  U.  S.  207,  216,  41  L.  Ed.  132; 
St.  Paul  Gaslight  Co.  v.  St.  Paul,  181  U. 
S.  142,  45  L.  Ed.  788:  New  Orleans  Water- 
works Co.  V.  Louisiana  Sugar  Co.,  125 
U.  S.  18,  31  L.  Ed.  607;  Hamilton  Gas- 
light, etc.,  Co.  V.  Hamilton,  146  U.  S.  258. 
36  L.  Ed.  963;  Walla  Walla  v.  Walla 
Walla  Water  Co.,  172  U.  S.  1,  42  L.  Ed. 
341. 


APPEAL  AXD  ERROR. 


709 


corporation,  made  subsequent  to  the  contract,  and  wliich  impairs  its  obIigation.3» 
In  other  words,  in  order  to  come  within  the  provision  of  the  constitution  of  the 
Ignited  States,  which  declares  that  no  state  sliall  pass  any  law  impairii  g  the  obli- 
gation of  contracts,  not  only  must  the  obligation  of  a  contract  have  been  im- 
paired, but  it  must  have  been  impaired  by  some  act  of  the  legislative  power  of 
the  state,  and  not  by  a  decision  of  its  judicial  department  only>"^     This  court  does 


39.  Impairment  by  judicial  department. 

— Xew  Orleans  Waterworks  Co.  z\  Louisi- 
ana Sugar  Co..  125  U.  S.  18.  30,  31  L.  Eel. 
607;  St.  Paul  Gaslight  Co.  v.  St.  Paul.  181 
U.  S.  142,  148,  45  L.  Ed.  788;  New  Orleans 
Waterworks  Co.  v.  Louisiana,  185  U.  S. 
."^36,  350.  46  L.  Ed.  936,  reaffirmed  in 
Brewster  v.  Cahill,  194  U.  S.  629,  48  L. 
Ed.  1158;  Gates  z:  Parmly,  191  U.  S.  557, 
48  L.  Ed.  301;  Weltmer  r.  Bishop,  191  U. 
S.  560,  561,  48  L.  Ed.  302;  Coventry  v. 
Davis.  193  U.  S.  669,  48  L.  Ed.  840;  Ham- 
burg Steamship,  etc..  Co.  v.  Lennan,  194 
U.  S.  628.  48  L.  Ed.  1157;  Iron  Bridge  Co. 
f.  Brennan.  194  U.  S.  630,  48  L.  Ed.  1158; 
Hanford  v.  Davies,  163  U.  S.  273,  41  L. 
Ed.  157;  Savannah,  etc.,  R.  Co.  v.  Sa- 
vannah, 198  U.  S.  392,  396,  49  L.  Ed. 
T097. 

40.  Central  Land  Co.  v.  Laidley.  159  U. 
S.   103,   109,   40   L.    Ed.   91. 

The  state  court  may  erroneously  de- 
termine questions  arising  under  a  con- 
tract which  constitutes  the  basis  of  the 
suit  before  it;  it  may  hold  a  contract  void 
which,  in  our  opinion,  is  valid;  it  may  ad- 
judge a  contract  valid  which,  in  our  opin- 
ion, is  void;  or  its  interpretation  of  the 
contract  may,  in  our  opinion  be  radically 
wrong;  but,  in  neither  of  such  cases, 
would  the  judgment  be  reviewable  by  this 
court  under  the  clause  of  the  constitution 
protecting  the  obligation  of  contracts 
against  impairment  by  state  legislation, 
and  under  the  existing  statutes  defining 
and  regulating  its  jurisdiction,  unless  that 
judgment  in  terms  or  by  its  necessary 
operation,  gives  eflfect  to  some  provision 
of  the  state  constitution,  or  some  legis- 
lative enactment  of  the  state,  which  is 
claimed  by  the  unsuccessful  party  to  im- 
pair the  obligation  of  the  particular  con- 
tract in  question.  Railroad  v.  Rock,  4 
Wall.  177.  181.  18  L.  Ed.  381;  Railroad 
Co.  V.  McClure,  10  Wall.  511,  515,  19  L. 
Ed.  997;  Knox  v.  Exchange  Bank.  12 
Wall.  379,  383,  20  L.  Ed.  414;  Delmas  v. 
Merchants'  Ins.  Co.,  14  Wall.  661,  665.  20 
L.  Ed.  757;  University  r.  People,  99  U.  S. 
309.  319,  25  L.  Ed.  387;  Chicago  Life  Ins. 
Co.  V.  Needles.  113  U.  S.  574,  582.  28  L. 
Ed.  1084;  Lehigh  Water  Co.  v.  Easton, 
121  U.   S.   388,   392,   30   L.    Ed.    1059. 

It  was  said  by  Mr.  Justice  Miller,  in  de- 
Kyering  a  later  judgment  of  this  court: 
"We  are  not  authorized  by  the  judiciary 
act  to  review  the  judgments  of  the  state 
courts  because  their  judgments  refuse  to 
give  efifect  to  valid  contracts,  or  because 
those  judgments,  in  their  effect,  impair 
the    obligation    of    contracts.      If   we    did. 


every  case  decided  in  a  state  court  could 
be  brought  hiere,  where  the  party  setting 
up  a  contract  alleged  that  the  court  had 
taken  a  different  view  of  its  obligation  to 
that  which  he  held."  Knox  v.  Exchange 
Bank,  12  Wall.  379,  383,  20  L.  Ed.  414, 
approved  in  Central  Land  Co.  v.  Laidley, 
1.^)9  U.  S.  103,  110,  40  L.  Ed.  91;  Yazoo, 
etc.,  R.  Co.  V.  Adams,  180  U.  S.  41,  46,  45 
L.    Ed.   415. 

In  Turner  v.  Wilkes  County  Commis- 
sioners, 173  U.  S.  461,  43  L.  Ed.  768,  it 
was  said  that  "this  being  a  writ  of  error 
to  a  state  court,  we  cannot  take  jurisdic- 
tion under  the  allegation  that  a  contract 
has  been  impaired  by  a  decision  of  that 
court,  when  it  appears  that  the  state  court 
has  done  nothing  more  than  construe  its 
own  constitution  and  statutes  existing  at 
the  time  when  the  bonds  were  issued, 
there  being  no  subsequent  legislation 
touching  the  subject."  In  this  case,  too, 
the  plaintiff  in  error  sought  to  take  ad- 
vantage of  a  change  of  judicial  construc- 
tion b}^  the  supreme  court  of  the  state, 
which  had  held  that  the  bonds  were  void, 
because  the  acts  under  which  they  were 
issued  were  not  valid  laws,  not  having 
been  passed  in  the  manner  directed  by 
the  constitution.  Yazoo,  etc..  R.  Co.  v. 
Adams.  180  U.  S.  41,  46,  47,  45  L.  Ed. 
415. 

In  Central  Land  Co.  v.  Laidley,  159  U. 
S.  13,  40  L.  Ed.  91,  an  action  of  eject- 
ment was  brought  by  Laidley  against  the 
land  company  in  a  court  of  West  Vir- 
ginia. The  case  turned  upon  the  defec- 
tiveness of  a  wife's  acknowledgment  to 
a  deed  of  land.  The  court  of  appeals  of 
Virginia,  prior  to  the  organization  of  the 
state  of  West  Virginia,  had  in  several 
cases  held  that  acknowledgments  in  this 
form  were  sufficient;  but  the  court  of  ap- 
peals of  West  Virginia  in  this  case  held 
il  to  be  insufficient,  and  the  change  of 
the  settled  construction  of  the  statute  was 
charged  as  an  impairment  of  the  contract. 
This  court  held  that  under  the  contract 
clause  of  the  constitution,  not  only  must 
the  obligation  of  the  contract  be  impaired, 
but  it  must  have  been  impaired  by  some 
act  of  the  legislative  power  of  the  state 
and  not  by  decisions  of  the  judicial  de- 
partment only.  "The  appellate  jurisdic- 
tion of  this  court."  said  Mr.  Justice  Gray, 
"upon  writ  of  error  to  a  state  court,  on 
the  ground  that  the  obligation  of  a  con- 
tract has  been  impaired,  can  be  invoked 
only  when  an  act  of  the  legislature  al- 
leged to  be  repugnant  to  the  constitution 
of  the  United  States  has  been  decided  by 


710 


APPHAL  AM)  HKKUR. 


not  and  cannot  entertain  jurisdiction  to  review  the  judgment  of  a  state  court, 
solely  because  that  judgment  impairs  or  fails  to  give  effect  to  a  contract.  The 
judgment  must  give  effect  to  some  subsequent  state  statute,  or  state  constitution, 
or,  it  may  be  added,  some  ordinance  of  a  municipal  corporation  passed  by  the 
authority  of  the  state  legislature,  which  impairs  the  obligation  of  a  contract, 
before  the  constitutional  provision  regarding  the  impairment  of  such  contract 
comes  into  play.^^     This  court  cannot  review  the  decision  of  a  state  court,  upon 


the  state  court  to  be  valid,  and  wot  when 
an  act  admitted  to  be  valid  has  been  mis- 
construed by  the  court.  The  statute  of 
West  Virginia  is  admitted  to  have  been 
valid.  *  *  *  and  it  necessarily  follows  that 
the  question  submitted  to  and  decided  by 
the  state  court  M-as  one  of  construction 
only,  and  not  of  validity."  Yazoo,  etc., 
R.  Co.  V.  Adams,  180  U.  S.  41,  46,  45  L. 
Ed.  415. 

The  supreme  court  of  the  United  States 
on  writ  of  error  to  a  state  court  has  no 
jurisdiction  to  review  and  determine  an 
assertion  that  in  enforcing  a  condition 
which  is  impliedly  a  part  of  the  charter 
of  a  corporation,  the  state,  through  the 
regular  administration  of  the  law  by  its 
curts  of  justice,  has  by  such  courts 
erroneously  construed  its  own  laws. 
New  Orleans  Waterworks  Co.  v.  Lou- 
isiana, 185  U.  S.  336,  46  L-  Ed.  936, 
reaffirrried  in  Brewster  v.  Cahill,  194  U. 
S.  629,  48  L.  Ed.  1158;  Gates  v.  Parmly. 
191  U.  S.  557.  48  L.  Ed.  301;  Weltmer  V. 
Bishop,  191  U.  S.  560,  561,  48  L.  Ed.  302; 
Coventry  v.  Davis,  193  U.  S.  669,  48  L. 
Ed.  840;  Hamburg  Steamship,  etc.,  Co. 
V.  Lennan,  194  U.  S.  628,  48  L.  Ed.  1157; 
Iron  Bridge  Co.  v.  Brennan.  194  U.  S. 
630,   48   L.    Ed.   1158. 

Forfeiture  of  charter. — On  writ  of  er- 
ror from  the  supreme  court  of  the  United 
States  to  a  state  court  to  review  a  pro- 
ceeding in  the  entry  of  a  quo  warranto 
brought  by  the  attorney  general  of  the 
state  to  obtain  a  forfeiture  of  the  char- 
ter of  the  defendant  a  waterworks  com- 
pany, the  plaintiff,  in  error,  the  corpora- 
tion claimed  the  existence  in  the  record 
of  federal  questions  which  the  brief  of 
plaintiff  in  error  set  forth  as  follows: 
"(1)  Can  the  state  forfeit  such  a  charter 
and  take  back  the  franchises  at  the  same 
time  that  she  leaves  the  corporation  in 
possession  of  the  physical  property  de- 
pleted in  value  by  the  loss  of  the  fran- 
chise, and  at  the  same  time  that  she 
keeps  the  money  paid  for  the  property 
plus  the  franchise?  (2)  The  general 
laws  of  the  state  providing  a  restitutio  in 
integrum  in  all  cases  where  a  synallag- 
matic, commutative  contract  is  dissolved, 
and  the  charter  containing  no  special  pro- 
vision taking  the  state's  contract  from 
under  general  provisions  of  law,  is  not  a 
state  statute  authorizing  the  attorney  gen- 
eral to  institute  proceedings  to  forfeit  the 
contract  and  take  back  the  franchise,  at 
the  same  time  that  the  state  keeps  the 
consideration    paid    for    the    same*    a    stat- 


ute impairing  the  obligations  of  a  con- 
tract? (3)  Is  not  a  judicial  decision  re- 
fusing to  apply  to  this  contract  the  gen- 
eral provisions  of  the  law  of  contracts 
prevailing  in  the  state,  a  taking  by  the 
state  through  her  judiciary  of  the  prop- 
erty of  the  defendant  corporation  with- 
out due  process  of  law?  (4)  Is  not  the 
legislative  resolution,  the  action  of  the 
attorney  general,  and  the  action  of  the 
supreme  court  of  the  state,  the  taking  by 
the  state  of  property  without  due  process 
of  law  through  the  instrumentality  of  her 
legislative,  her  executive  and  her  judicial 
departments,  both  jointly  and  severally? 
(5)  Is  not  the  refusal  to  apply  to  this 
case  the  general  provisions  of  the  law  of 
contract  prevailing  in  the  state  of  Louisi- 
ana a  denial  to  the  plaintiff  in  error  of  the 
equal  protection  of  the  laws  of  the  state 
of  Louisiana?"  It  was  held  these  ques- 
tions are  composed  upon  the  proposition 
that  the  judicial  determination  of  these 
particular  questions  by  the  state  tribunal 
was  erroneous,  and  on  account  of  such 
error  the  rights  of  the  plaintiff  in  error, 
under  the  federal  constitution,  have  beew 
violated.  But  mere  error  in  deciding- 
questions  of  this  nature  furnishes  no 
ground  of  jurisdiction  for  this  court  to  re- 
view the  judgments  of  a  state  court.  The 
assumption  that  the  state  court  has  re- 
fused to  apply  to  the  contract  herein  set 
up  the  general  provisions  of  the  law  of 
contracts  prevailing  in  the  state,  and  that, 
therefore,  the  state  has  taken  through  her 
judiciary  the  property  of  the  plaintiff  in 
error  without  due  process  of  law,  is  wholly 
without  foundation.  If  it  were  otherwise, 
then  any  alleged  error  in  the  decision  by_ 
a  state  court,  in  applying  state  law  to  the 
case  in  hand,  resulting  in  a  judgment 
against  a  party,  could  be  reviewed  in  this 
court  on  a  claim  that  on  account  of  such 
error  due  process  of  law  had  not  been 
given  him.  This  cannot  be  maintained. 
New  Orleans  Waterworks  Co.  t'.  Louisi- 
ana. 185  U.  S.  336,  46  L.  Ed.  936,  reaf- 
firmed in  Brewster  v.  Cahill.  194  U.  S. 
628.  48  L.  Ed.  1158;  Gates  v.  Parmb%  191 
U.  S.  557,  48  L.  Ed.  301;  Weltmer  v. 
Bishop,  191  U.  S.  560,  561,  48  L.  Ed.  302T 
Coventry  v.  Davis,  193  U.  S.  668,  48  L. 
Ed.  840;  Hamburg,  etc..  Steamship  Co. 
V.  Lennan,  194  U.  S.  629,  48  L.  Ed.  1157; 
Iron  Bridge  Co.  v.  Brennan,  194  U.  S 
630,  48  L.  Ed.  1158. 

41.  New  Orleans  Waterworks  Co.  t'. 
Louisiana,  185  U.  S.  336.  852,  46  L.  Ed. 
936,    reaffirmed    in    Brewster  v.   Cahill,   194 


APPEAL  AXD  ERROR. 


711 


the  general  ground,  that  that  court  has  declared  a  contract  void,  which  this  court 
may  il.ink  to  be  vaHd>-  This  court  has  repeatedly  held,  that  we  cannot  revise 
the  judgment  of  the  highest  court  of  a  state  unless,  by  its  terms,  or  necessary 
operation,  it  gives  effect  to  some  provision  of  a  state  constitution  or  law  which, 
as  thus  construed,  impairs  the  obligation  of  a  precedent  contract.^^ 


U.  S.  629,  84  L.  Ed.  1158;  Gates  v.  Parmly, 
191  U.  S.  557,  48  L.  Ed.  301;  Weltmer  v.  ' 
Bishcp,  191  U.  S.  560,  561,  48  L-  Ed.  302; 
Coventry  f.  Davis,  193  U.  S.  669.  48  L. 
Ed.  840;  Hamburgh,  etc.,  Steamship  Co. 
V.  Lennan.  194  U.  S.  629,  48  L.  Ed.  1157; 
Iron  Bridge  Co.  v.  Brennan,  194  U.  S. 
630,  48  L.  Ed.  1158;  Knox  v.  Exchange 
Bank,  12  Wall.  379,  20  L.  Ed.  414,  reaf- 
firmed in  Northern  R.  Co.  v.  New  York, 
18  Wall.  384,  20  L.  Ed.  412. 

Where  a  writ  of  error  to  a  state  court 
is  sued  out  on  the  ground  that  the  judg- 
ment of  the  state  court  gives  effect  to 
some  statute,  or  state  constitution,  which 
impairs  the  obligation  of  a  contract,  or  is 
alleged  to  do  so  by  the  plaintiff  in  error, 
it  is  not  sufificient  in  such  case  that  the 
party  in  his  pleading  or  the  counsel  in 
argument  assailed  such  statute  on  that 
ground.  And  it  must  appear  that  the 
state  court  rested  its  judgment  on  the 
validity  of  the  statute,  either  expressly  or 
b^'  necessary  intendments.  Hence,  if  the 
judgment  of  the  court  would  have  been 
the  same  without  the  aid  of  the  special 
statutory  provisions  assailed  by  the  plain- 
tiff in  error,  there  is  no  case  for  review 
in  this  court.  Knox  v.  Exchange  Bank, 
12  Wall.  379,  20  L.  Ed.  414,  reaffirmed  in 
Northern  Railroad  z'.  People,  12  Wall. 
384. 

This  court  has  no  jurisdiction  to  re- 
view a  judgment  of  the  highest  court  of 
a  state,  on  the  ground  that  the  obligation 
of  a  contract  has  been  impaired,  unless 
some  legislative  act  of  the  state  has  been 
upheld  by  the  judgment  sought  to  be  re- 
viewed. The  general  rule,  as  applied  to 
this  class  of  cases,  has  been  clearly  stated 
in  two  opinions  of  this  court,  delivered 
by  Mr.  Justice  Miller.  "It  must  be  the 
constitution  or  some  law  of  the  state, 
which  impairs  the  obligation  of  the  con- 
tract, or  which  is  otherwise  in  conflict 
with  the  constitution  of  the  United  States; 
and  the  decision  of  the  state  court  must 
sustain  the  law  or  constitution  of  the  state, 
in  the  matter  in  which  the  conflict  is  sup- 
posed to  exist;  or  the  case  for  this  court 
does  not  arise."  Railroad  v.  Rock,  4  Wall. 
177.  181,  18  L.  Ed.  381;  New  Orleans,  etc., 
Co.  V.  Louisiana  Sugar,  Refin.  Co.,  125 
U.   S.   18,   39,   31   L.    Ed.   607. 

"We  are  not  authorized  by  the  judiciary 
act  to  review  the  judgments  of  the  state 
courts,  because  their  judgments  refuse  to 
give  effect  to  valid  contracts,  or  because 
those  judgments,  in  their  effect,  impair 
the  obligation  of  contracts.  If  we  did, 
every  case  decided  in  a  state  court  could 
be  brought  here,  where  the  party  setting 
up   a   contract   alleged   that   the   court   had 


taken  a  different  view  of  its  obligation 
to  that  which  he  held."  Knox  v.  Exchange 
Bank,  12  Wall.  379,  383,  20  L.  Ed.  414; 
New  Orleans,  etc.,  Co.  v.  Louisiana 
Sugar  Refin.  Co.,  125  U.  S.  18,  39.  31  L. 
Ed.    607. 

This  court  does  not  obtain  jurisdistion 
to  review  a  judgment  of  a  state  court  be- 
cause that  judgment  impairs  or  fails  to 
give  effect  to  a  contract.  The  state  court 
must  give  effect  to  some  subsequent  stat- 
ute or  state  constitution  which  impairs 
the  obligation  of  the  contract,  and  the 
judgment  of  that  court  must  rest  on  the 
statute  either  expressly  or  by  necessary 
implication.  Railroad  v.  Rock,  4  Wall. 
177,  180,  18  L.  Ed.  381;  Railroad  Com- 
pany V.  McClure,  10  Wall.  511,  19  L.  Ed. 
997;  Knox  v.  Exchange  Bank,  12  Wall. 
379,  20  L.  Ed.  414.  These  cases  are  re- 
ferred to  and  applied  in  Lehigh  Water 
Co.  v.  Easton.  121  U.  S.  388,  392,  30  L. 
Ed.  1059;  New  Orleans  Waterworks  Co. 
V.  Louisiana,  185  U.  S.  336,  344,  46  L.  Ed. 
936,  reaffirmed  in  Brewster  v.  Cahill,  194 
U.  S.  629,  48  L.  Ed.  1158;  Gates  v.  Parmly, 
191  U.  S.  557,  558,  48  L.  Ed.  .301;  Weltmer 
:•.  Bishop,  191  U.  S.  560,  561,  48  L.  Ed.  302; 
Coventry  v.  Davis,  193  U.  S.  669,  48  L. 
Ed.  840;  Hamburg,  etc..  Steamship  Co. 
r.  Lennan.  194  U.  S.  629,  48  L.  Ed.  1157; 
Iron  Bridge  Co.  v.  Brennan,  194  U.  S. 
630.  48  L.   Ed.  1158. 

42.  "In  Railroad  z'.  Rock,  4  Wall.  177. 
181,  18  L.  Ed.  381,  this  court  pronounced 
ii  a  'fundamental  error  that  this  court 
can.  as  an  appellate  tribunal,  reverse  the 
judgment  of  a  state  court,  because  that 
court  may  hold  a  contract  to  be  void, 
which  this  court  might  hold  to  be  valid.'  " 
Gulf,  etc..  R.  Co.  V.  Hewes,  183  U.  S.  66, 
78,    46    L.    Ed.    86. 

Rights  under  corporate  franchise. — The 
decision  by  the  highest  state  court  that 
a  transfer  by  a  corporation  of  its  fran- 
chises to  an  individual,  his  heirs,  execu- 
tors, administrators,  and  assigns,  of  all 
the  property  of  whatsoever  nature  or  de- 
scription, only  passes  a  life  estate,  which 
does  not  pass  to  his  heirs,  presents  no 
matter  of  a  federal  nature.  Because  the 
decision  does  not  deny  that  the  corpora- 
tion had  by  its  charter  a  valid  and  ex- 
clusive franchise,  but  merely  that  such 
conveyance  did  not  vest  in  the  grantee 
the  franchise  as  a  matter  of  private  prop- 
erty, passing  by  inheritance  to  his  heirs. 
Snell  V.  Chicago.  152  U.  S.  191,  38  L.  Ed. 
408. 

43.  Gulf.  etc..  R.  Co.  v.  Hewes.  183  U.  S. 
66,    75,   46   L.    Ed.   86. 

"In  Knox  z\  Exchange  Bank,  12  Wall. 
370.  383,  20  L.   Ed.  414.  it  was  said  by  Mr. 


712 


JPPEAL  AXD  ERROR. 


Alteration  of  Views  by  State  Court. — We  have  no  jurisdiction,  because  a 
state  court  changes  its  views  in  regard  to  the  proper  construction  of  its  state  stat- 
ute, although  the  effect  of  such  judgment  may  be  to  impair  the  value  of  what  the 
state  court  had  before  that  held  to  be  a  valid  contract.-** 

gg.  Acts  of  State  Officers. — Nor  does  the  constitutional  inhibition  apply  to  the 
acts  of  state  officers  under  statutes  in  force  at  the  time  of  the  making  of  the  con- 
tract.45 

hh.  Misconstruction  of  State  Statute  by  State  Court. — The  appellate  jurisdic- 
tion of  this  court,  upon  writ  of  error  to  a  state  court,  on  the  ground  that  the 
obligation  of  a  contract  has  been  impaired,  can  be  invoked  only  when  an  act 
of  the  legislature  alleged  to  be  repugnant  to  the  constitution  of  the  United  States 
has  been  decided  by  the  state  court  to  be  valid,  and  not  when  an  act  admitted 
to  be  valid  has  been  misconstrued  by  the  court.'**'  Upon  a  writ  of  error  to  a 
state  court,  this  court  cannot  take  jurisdiction  under  the  allegation  that  a  con- 
tract has  been  impaired  by  a  decision  of  that  court,  when  it  appears  that  the 


Justice  Miller:  'But  we  are  not  authorized 
by  the  judiciary  act  to  review  the  judg- 
ments of  the  state  courts  because  their 
jadgments  refuse  to  give  effect  to  valid 
contracts,  or  because  those  judgments,  in 
their  effect,  impair  the  obligation  of  con- 
tracts. If  we  did,  every  case  decided  in 
a  state  court  could  be  brought  here,  when 
the  party  setting  up  a  contract  alleged 
that  the  court  had  taken  a  different  view 
of  its  obligation  to  that  which  he  held.' 
To  the  same  effect  are  Lehigh  Water  Co. 
V.  Easton,  121  U.  S.  388,  392,  30  L.  Ed. 
1059;  New  Orleans,  etc.,  Co.  v.  Louisiana 
Sugar  Refm.  Co.,  125  U,  S.  18,  30,  31  L. 
Ed.  607."  Gulf,  etc.,  R.  Co.  v.  Hewes,  183 
U.    S.   66.   76.   46   L.    Ed.   86. 

44.  Bacon  v.  Texas,  163  U.  S.  207. 
221,  41  L.  Ed.  132.  distinguishing  Louisi- 
ana V.  Pilsbury,  105  U.  S.  278,  26  L.  Ed. 
1090;  Baker  v.  Bnckell,  166  U.  S.  717.  41 
L.  Ed.  1186;  Goodsell  v.  Delta,  etc.,  Land 
Co..  166  U.  S.  718,  41  L.  Ed.  1186; 
Wheelen  v.  Brickell,  166  U.  S.  718,  41  L. 
Ed.    1186. 

This  court  has  no  jurisdiction  to  re- 
view a  judgment  of  a  state  ccairt  on  writ 
of  error  because  such  jurisdiction  is  based 
upon  an  alleged  impairment  of  a  contract 
by  reason  of  the  alteration  by  a  state 
court  of  a  construction  theretofore  given 
by  it  to  siich  contract  or  to  a  particular 
statute  or  series  of  statutes  irf  existence 
when  the  contract  was  entered  into.  Ba- 
can  V.  Texas,  163  U.  S.  207,  41  L.  Ed. 
132. 

There  is  no  decision  in  the  case  of 
Louisiana  v.  Pilsbury,  105  U.  S.  278,  26  L. 
Ed.  1090,  which  gives  the  least  support  to 
the  proposition  that  jurisdiction  exists  in 
this  court  to  review  on  writ  of  error  to  a 
state  court,  its  holding  as  to  what  the 
contract  was,  simply  because  it  had 
changed  its  construction  thereof,  nor  that 
the  obligation  of  a  contract  may  be  im- 
paired within  the  contract  clause  of  the 
federal  constitution,  imless  there  has  been 
some  subsequent  act  of  the  legislative 
branch  of  the  government  to  which  effect 
has  been  given  by  the  judgment  of  the 
state  court.     The  case  may,  therefore,  be 


regarded  as  in  entire  harmony  with  the 
later  cases  on  the  subject.  The  opinion 
proceeds  upon  the  assumption  that  effect 
had  been  given  to  this  subsequent  legis- 
lation, and  it  proves  that  such  legislation 
impaired  the  contract  as  con-trued  here. 
Reviewed  in  Bacon  z'.  Texas.  163  U.  S. 
207,  223.  41  L.  Ed.  132,  reaffirmed  in 
Baker  v.  Brickell,  166  U.  S.  717,  41  L.  Ed. 
1186;  Goodsell  r.  Delta,  etc..  Land  Co., 
160  U.  S.  718.  41  L.  Ed.  1186;  Wheelan  V. 
Brickell.    166   U.   S.    718,  41    L.    Ed.   1186. 

A  change  of  opinion  by  a  state  court 
with  respect  to  riparian  rights  upon  tide 
waters,  does  not  raise  a  case  under  the 
contract  clause  of  the  constitution,  and 
the  supreme  court  has  no  jurisdiction  to 
review  the  judgment  of  the  state  court 
on  that  ground.  Mobile  Transportation 
Co.  c'.  Mobile.  187  U.  S.  479.  487.  47  L. 
Ed.  266,  reaffirmed  in  Transportation  Co. 
V.   Mobile,   199  U.   S.   604.  50  L.   Ed.  330. 

45.  Acts  of  state  officers. — Hanford  v. 
Davies.  163  U.  S.  273.  41  L.  Ed.  157; 
Weber  v.  Rogan,  188  U.  S.  10,  47  L.  Ed. 
363;  New  Orleans  Waterworks  Co.  v. 
Louisiana  Sugar  Co..  125  U.  S.  18,  31  L. 
Ed.  607;  Gulf.  etc..  R.  Co.  v.  Hewes.  183 
U.   S.   66.  77,  46  L.   Ed.   86. 

46.  Misconstruction  of  state  statute  by 
state  court. — Central  Land  Co.  v.  Laidley, 
159  U.  S.  103.  109.  110,  40  L.  Ed.  91; 
Henderson  Bridge  Co.  z\  Henderson  City, 
141  U.  S.  679,  68\  35  L.  Ed.  900;  Hender- 
son Bridge  Co.  r.  Henderson,  173  U.  S. 
592.    602.    43    L.    Ed.    835. 

Where  an  agreed  case  presented  no  is- 
sue as  to  the  validity  of  a  state  statute, 
but  simply  the  question  of  its  construc- 
tion, and  only  the  question  of  construc- 
tion was  considered  by  the  highest  court 
of  the  state  on  appeal,  this  court  cannot 
take  jurisdiction  upon  the  ground  that  the 
statute,  as  construed  by  that  court,  im- 
paired the  obligation  of  a  contract,  and 
denied  the  equal  protection  of  the  law. 
Louisville,  etc..  R.  Co.  v.  Louisville.  166 
U.  S.  709,  41  L.  Ed.  1173,  reaffirmed  in 
Baltimore,  etc..  R.  Co.  v.  Ocean  City,  179 
U.   S.   681,  45   L.    Ed.   384. 


APPEAL  AXD  ERROR. 


713 


state  court  has  done  nothing  more  than  construe  its  own  constitution  and  stat- 
utes existing  at  the  time  when  the  bonds  were  issued,  there  being  no  subsequent 
legislation  touching  the  sublet.  This  court  is  bound  by  the  decision  of  the 
state  court  in  regard  to  the  meaning  of  the  constitution  and  laws  of  its  own  state, 
and  its  decision  upon  such  a  state  of  facts  raises  no  federal  question.  Other 
principles  obtain  when  the  writ  of  error  is  to  a  federal  courts ^ 

ii.  Where  Court  Applies  General  Lazv. — When  a  decision  holding  a  contract 
void  is  made  by  the  highest  court  of  a  state  upon  the  general  principles  by  which 
courts  determine  that  a  transaction  is  good  or  bad  on  principles  of  public  policy, 
the  decision  is  one  which  this  court  is  not  authorized  to  review.'** 

jj.  Exemptions  from  Taxation. — A  decision  by  the  highest  state  court  that  a 
statute  exemptmg  a  corporation  from  taxation  is  void,  raises  a  federal  question, 


47-.  Turner  v.  Wilkes  County  Commis- 
sioners,  173   U.   S.   461,   463,   43   L-    Ed.   768. 

"The  difference  in  the  jurisdiction  of 
this  court  upon  writs  of  error  to  a  state 
as  distinguished  from  a  federal  court,  in 
questions  claimed  to  arise  out  of  the  con- 
tract clause  of  the  constitution,  is  set 
forth  in  the  opinion  of  the  court  in  Cen- 
tral Land  Co.  V.  Laidley,  159  U.  S.  103, 
40  L.  Ed.  91;  and  from  the  opinion  in 
that  case  the  following  extract  is  taken 
(p.  Ill):  'The  distinction,  as  to  the  au- 
thority of  this  court,  between  writs  of 
error  to  a  court  of  the  United  States  and 
writs  of  error  to  the  highest  court  of  a 
state,  is  well  illustrated  by  two  of  the 
earliest  cases  relating  to  municipal  bonds, 
in  both  of  which  the  opinion  was  de- 
livered by  Mr.  Justice  Swayne,  and  in 
each  of  which  the  question  resented  was 
whether  the  constitution  of  the  state  of 
Iowa  permitted  the  legislature  to  au- 
thorize municipal  corporations  to  issue 
bonds  in  aid  of  the  construction  of  a  rail- 
road. The  supreme  court  of  the  state,  by 
decisions  made  before  the  bonds  in  ques- 
tion were  issued,  had  held  that  it  did; 
but,  by  decisions  made  after  they  had 
been  issued,  held  that  it  did  not.  A  judg- 
ment of  the  district  court  of  the  United 
States  for  the  district  of  Iowa,  following 
the  later  decisions  of  the  state  court,  was 
reviewed  on  the  merits  and  reversed  by 
this  court,  for  misconstruction  of  the  con- 
stitution of  Iowa.  Gelpecke  v.  Dubuque, 
1  Wall.  175.  206,  17  L.  Ed.  520.  But  a 
writ  of  error  to  review  one  of  those  de- 
cisions of  the  supreme  court  of  Iowa  was 
dismissed  for  want  of  jurisdiction,  be- 
cause, admitting  the  constitution  of  the 
state  to  be  a  law  of  the  state,  within  the 
meaning  of  the  provision  of  the  consti- 
tution of  the  United  States  forbidding  a 
state  to  pass  any  law  impairing  the  obli- 
gation of  contracts,  the  only  question  was 
of  its  construction  bv  the  state  court. 
Railroad  Co.  v.  McClure,  10  Wall.  511. 
515.  19  L.  Ed.  997.  An  example  of  the 
jurisdiction  exercised  by  this  court  when 
reviewing  a  decision  of  a  federal  court 
with  regard  to  the  same  contract  clause 
is  found  in  the  same  volume.  Folsom  v. 
Ninety-Six,   159   U.    S.    Oil,   625,   40    L.   Ed. 


278."  Turner  v.  Wilkes  County  Com- 
missioners, 173  U.  S.  461,  463,  464,  43  L. 
Ed.    768. 

48.    Where  court  applies  general  law. — 

Tarver  v.  Keach,  15  Wall.  67,  21  L.  Ed. 
82,  following  Delmas  v.  Merchants'  Ins. 
Co.,   14  Wall.  661,  20   L.    Ed.  757. 

On  a  writ  of  error  to  a  state  court,  this 
court  cannot  revise  a  decision  founded  on 
the  ground  that  a  contract  is  void  on  the 
general  principles  of  public  policy  or 
morality,  when  that  is  the  only  ground 
en  which  the  contract  is  held  to  be  void. 
But  if  the  decision  of  a  state  court  is 
based  upon  a  constitutional  or  legislative 
enactment,  passed  after  the  contract  was 
made,  this  court  has  jurisdiction  to  in- 
quire whether  such  legislation  does  not 
inpair  the  obligation  of  the  contract,  and 
thereby  violate  the  federal  constitution. 
In  the  prosecution  of  that  inquiry,  this 
court  must  decide  for  itself,  whether  any- 
valid  contract  existed  when  the  legisla- 
tion complained  of  was  had,  and  in  the 
making  up  its  judgment  on  that  question 
is  not  concluded  by  the  decisions  of  the 
state  court.  Delmas  v.  Merchants'  Ins, 
Co..    14   Wall.    661,    20    L.    Ed.    757. 

Statute  avoiding  slave  contracts. — The 
supreme  court  of  Arkansas  ordered  judg- 
ment for  a  plaintiff  suing  on  a  note  given 
for  the  price  of  slaves.  Subsequently  to 
this  the  state  of  Louisiana  ordained  as 
part  of  its  constitution,  "that  all  contracts 
for  the  sale  or  purchase  of  slaves  were 
null  and  void,  and  that  no  court  of  the 
state  sliould  take  cognizance  of  any  suit 
founded  upon  such  contracts,  and  that  no 
amoimt  should  ever  be  collected  or  re- 
covered on  any  judgment  or  decree  which 
had  been,  or  should  thereafter  be,  ren- 
dered on  account  of  any  such  contract  or 
obligation."  On  application  by  the  de- 
fendant in  the  suit  to  supersede  and  per- 
petually stay  all  proceedings  on  the  judg- 
ment against  him,  the  supreme  court  over- 
ruled the  application.  The  case  being 
brought  here  under  an  assumption  that 
it  was  within  the  25th  section,  held  that  it 
was  not  so;  and  the  case  was  dismissed 
for  want  of  jurisdiction  accordingly. 
Sevier  v.  Haskell,  14  Wall.  12,  20  L.  Ed. 
827. 


714 


APPEAL  AND  ERROR. 


although  the  contract  clause  of  the  federal  constitution  was  not  discussed.** 
Where  the  state  court  sustains  a  statute  exempting  a  railroad  from  taxation, 
but  the  decision  is  put  not  on  the  ground  that  tljere  was  not  a  valid  contract 
between  the  state  and  the  company  exempting  its  property  from  taxation,  but 
that  the  exemption  did  not  extend  to  a  certain  class  of  property,  the  writ  of 
error  to  the  state  court  must  be  dismissed,  because  this  does  not  amount  to  a 
denial  of  any  right  under  that  provision  of  the  constitution  which  declares  that 
no  state  shall  pass  any  law  impairing  the  obligation  of  contracts.^o     Although 


49.  Exemptions  from  taxation. — Yazoo, 
etc.,  R.  Co.  V.  Adams,  180  U.  S.  41,  45  L. 
Ed.  415;  Stearns  v.  Minnesota,  179  U.  S. 
223,    45    L.    Ed.    162. 

An  insurance  company  conformed  to 
the  requirements  of  the  act  of  the  legis- 
lature of  Georgia,  and  received  from  the 
comptroller  general  a  certificate  author- 
izing it  to  transact  business  in  that  state 
for  one  year  from  Jan.  1,  1874.  That  act 
does  not,  expressly  or  by  implication, 
limit  or  restrain  the  e.xercise  of  the  tax- 
ing power  of  the  state,  or  of  any  munic- 
ipality. An  ordinance  of  the 'city  coun- 
cil of  Augusta,  passed  Jan.  5,  1874,  im- 
posed from  that  date  an  annual  license 
tax  "on  each  and  every  fire,  marine,  or 
accidental  insurance  company  located, 
having  an  office  or  doing  business  within" 
that  city.  Held,  that  the  ordinance  is  not 
in  violation  of  that  clause  of  the  consti- 
tution of  the  United  States  which  de- 
clares that  "no  state  shall  pass  any  law 
impairing  the  obligations  of  contracts." 
Home  Ins.  Co.  v.  Augusta  Council,  93  U. 
S.   116,  23   L.   Ed.  825. 

Where  a  question  is  raised  as  to 
whether  a  bank  at  the  time  of  the  imposi- 
tion of  a  license  tax  sued  for.  had  a  con- 
tract with  the  state  exempting  the  bank 
from  such  tax,  the  supreme  court  has  ju- 
risdiction. Citizens'  Bank  v.  Parker,  192 
U.    S.    73.   77,   48   L.    Ed.   346. 

Exemption  of  railroads. — This  court  has 
jurisdiction  to  review,  on  writ  of  error,  a 
decision  of  the  highest  court  of  a  state, 
in  which  it  is  decided  that  a  provision  in 
a  tax  act  of  the  state  that  it  shall  not 
apply  to  railroad  corporations  exempted 
from  taxation  by  their  charters  is  not  ap- 
plicable to  a  particular  corporation,  party 
to  the  suit,  although  its  charter  contains 
a  provision  respecting  exemption  from 
taxation.  Yazoo,  etc.,  R.  Co.  v.  Thomas, 
132   U.   S.   174,   33   L.   Ed.  302. 

Exemption  of  colleges  and  schools. — 
This  court  has  jurisdiction  to  review  the 
decision  of  the  supreme  court  of  Hlinois, 
upon  the  question  whether  the  statute  of 
that  state,  passed  in  1855.  exempting  all 
the  property  of  the  Northwestern  Uni- 
versity for  ever  from  ta.xation,  is  a  valid 
contract,  or  is  void  by  reason  of  its  con- 
flicting with  the  state  constitution  of  1848. 
University  v.  People,  99  U.  S.  309,  25  L. 
Ed.   387. 

An  act  was  passed  by  the  legislature  in 
1840,  by  which  certain  lands  held  under 
conveyances   from  the  president   and  trus- 


tees of  the  Ohio  University,  at  Athens, 
were  directed  to  be  assessed  and  taxed 
for  county  and  state  purposes.  A  bill 
was  filed  by  the  purchasers  of  the  land 
against  the  tax  collector,  praying  that  he 
should  be  perpetually  enjoined  from  en- 
forcing the  payment  of  the  ta.xes,  because 
the  lands  had  been  exempted  by  a  stat- 
ute of  Ohio,  of  1804;  which  the  bill  al- 
leged entered  into  the  conditions  of  sale, 
under  which  the  complainants  held  the 
land.  It  was  insisted  that  the  act  of  1840 
violates  the  contract  with  the  purchasers, 
and  is  void,  being  contrary  to  the  clause 
of  the  constitution  of  the  United  States 
which  prohibits  the  states  from  passing 
any  law  violating  the  obligation  of  con- 
tracts. The  supreme  court  of  Ohio  dis- 
missed the  bill  of  the  complainants.  Held, 
a  writ  of  error  will  lie.  Armstrong  v. 
The  Treasurer,  16   Pet.  281.  10  L.   Ed.  965. 

A  statute  of  Illinois,  passed  in  1855, 
declares  that  all  the  property  of  the 
Northwestern  University  shall  be  for- 
ever free  from  taxation.  As  construed  by 
the  assessors  and  by  the  supreme  court  of 
the  state,  a  statute  of  1872,  conforming 
taxation  to  the  new  constitution  of  1870, 
limiting  this  exemption  to  land  and  other 
property  in  immediate  use  by  the  institu- 
tion. Held,  that  whether  the  statute  of 
1855  is  a  valid  contract,  or  is  void  by  rea- 
son of  its  conflicting  with  the  state  con- 
stitution of  1848,  under  which  it  was 
made,  is  a  question  on  which  the  judg- 
ment of  that  court  can  be  reviewed  here. 
University  v.  People.  99  U.  S.  309,  25  L- 
Ed.  387,  citing  Jefferson  Branch  Bank  v. 
Skelley.  1  Black  436,  17  L.  Ed.  173;  Bridge 
Proprietors  v.  Hoboken,  etc.,  1  Wall. 
116,  17  L.  Ed.  571;  Delmas  v.  Merchants' 
Ins.   Co.,  14  Wall.   661,  668,  20  L.   Ed.  757. 

A  bill  which  alleges  contract  exemp- 
tions of  a  railroad  company  from  taxa- 
tion, which  existed  and  were  recognized 
for  many  j'ears  and  that  the  contract  has 
been  impaired  by  the  subsequent  acts  of 
the  state  legislature,  presents  a  federal 
question.  Illinois  Central  R.  Co.  v. 
Adams,  180  U.   S.   28,  45  L.  Ed.  410. 

50.  St.  Paul,  etc.,  R.  Co.  v.  Todd 
County,  142  U.  S.  282.  35  L.  Ed.  1014,  cit- 
ing with  approval  New  Orleans,  etc.,  Co. 
V.  Louisiana  Sugar  Refin.  Co.,  125  U.  S- 
18,  30,  31  L.  Ed.  607;  Railroad  v.  Rock,  4 
Wall.  177,  181.  18  L.  Ed.  381;  Knox  v. 
Exchange  Bank,  12  Wall.  379,  383,  20  L- 
Ed.  414;  Bank  ^^  Tennessee,  104  U.  S. 
493.    26    L.    Ed.    810. 


h 


APPEAL  AND  ERROR. 


715 


the  decision  of  the  state  court  concedes  the  vahdity  of  a  contract  of  exemption 
from  taxation  contained  in  the  state  statute,  only  denying  that  particular  prop- 
erty is  embraced  by  its  terms,  yet  if.  in  arriving  at  its  conclusions,  il  holds  that 
the  contract  does  not  confer  the  right  of  exemption  from  its  operation,  and 
gives  efifect  to  a  subsequent  law,  its  obligation  is  impaired  by  the  subsequent  law» 
and  if  the  inquiry  whether  it  did  or  did  not  was  necessarily  directly  passed 
upon,  this  court  has  jurisdiction. -^^ 

Repeal  of  Exemption. — The  question  whether  the  ruling  of  the  supreme 
court  of  a  state,  that  a  repealable  exemption  from  taxation  has  been  in  fact 
repealed  by  a  subsequent  statute,  is  one  which  turns  upon  the  construction  of 
the  state  law.  and  is  not  reviewable  by  the  United  States  supreme  court,  al- 
though if  the  exemption  were  irrepealable  and  thus  constituted  a  contract,  it 
would  be  the  duty  of  the  supreme  court  of  the  United  States  to  decide  whether 
the  subsequent  act  had  repealed  it  or  impaired  its  obligation. ^^ 

kk.  Detennination  as  to  Validity,  Interpretation  and  Existence  of  Contract. 
— In  General. — Where  the  jurisdiction  of  the  supreme  court  to  review  the 
decision  of  the  highest  court  of  the  state  is  dependent  upon  whether  a  state 
statute  impairs  the  obligation  of  contracts,  it  must  appear  that  there  was  a  legal 
contract  subject  to  impairment,  and  some  ground  to  believe  that  it  has  been 
impaired.53  Accordingly  the  doctrine  that  this  court  possesses  paramount  au- 
thority when  reviewing  the  final  judgment  of  a  state  court,  upholding  a  state 
enactment,  alleged  to  be  in  violation  of  the  contract  clause  of  the  constitution^ 
to  determine  for  itself  the  existence  or  nonexistence  of  the  contract  set  up.  its 
validity  and  construction  and  whether  its  obligation  has  been  impaired  by  the 
state    enactment,    has    been    affirmed    in    numerous    cases. ^^      Ttiis    court    mivst 


51.  Wilmington,  etc.,  R.  Co.  v.  Als- 
brook.  146  U.  S.  279,  36  L.  Ed.  972,  citing 
Nev,'  Orleans,  etc.,  Co.  v.  Louisiana  Sugar 
Refin.  Co.,  125  U.  S.  18,  31  L.  Ed.  607, 
and  distinguishing  Henderson  Bridge  Co. 
V.  Henderson  City.  141  U.  S.  679,  35  L. 
Ed.  900;  St.  Paul,  etc.,  R.  Co.  v.  Todd 
County.    142   U.    S.   282,   35    L.    Ed.    1014. 

52.  Gulf,  etc.,  R.  Co.  v.  Hewes,  183  U. 
S.   66.   46   L.    Ed.   86. 

53.  Determination  as  to  validity,  inter- 
pretation and  existence  of  contract. — 
Gulf.  etc..  R.  Co.  V.  Hewes,  183  U.  S.  66, 
40  L.  Ed.  86;  New  Orleans  v.  New  Or- 
leans Waterworks  Co.,  142  U.  S.  86.  -35 
L.    Ed.  946. 

54.  Ohio  Life  Ins.,  etc..  Co.  v.  Debolt, 
16  How.  416.  452,  14  L.  Ed.  997;  Wright 
V.  Nagle,  101  U.  S.  791,  794,  25  L.  Ed.  921  : 
Louisville  Gas  Co.  v.  Citizens  Gas  Light 
Co.,  115  U.  S.  683,  697,  29  L.  Ed.  510: 
Vicksburg,  etc..  R.  Co.  v.  Dennis.  116  U. 
S.  665.  667,  29  L.  Ed.  770;  New  Orleans, 
etc.,  Co.  V.  Louisiana  Sugar  Refin.  Co.. 
125  U.  S.  18.  36.  31  L.  Ed.  607;  Bryan  v. 
Board  of  Education.  151  U.  S.  639.  650, 
38  L.  Ed.  297;  Mobile,  etc.,  R.  Co.  v.  Ten- 
nessee. 153  U.  S.  486.  493,  38  L.  Ed.  793; 
Bacon  v.  Texas.  163  U.  S.  207.  219.  41  L. 
Ed.  132;  Douglas  v.  Kentucky.  168  U.  S. 
488,  502,  42  L.  Ed.  553;  Waggoner  v. 
FLnck,  188  U.  S.  595,  600,  47  L.  Ed.  609; 
Muhlker  v.  New  York,  etc.,  R.  Co..  197 
U.  S.  544.  49  L.  Ed.  872;  Jefferson  Branch 
Bank  v.  Skelley.  1  Black  436.  443.  17  L 
Ed.  173;  Rogers  r.  Alabama.  192  U.  S. 
226,  230,  48  L.  Ed.  417;  Chicago  R.  Co.  v. 
Nebraska,    170    U.    S.    57,    42    L.    Ed.    948; 


McCullough  V.  Virginia,  172  U.  S.  102,  45 
L.  Ed.  382;  Wilson  v.  Standefer,  184  U. 
S.  399,  411,  46  L.  Ed.  612;  Walsh  v.  Co- 
lumbus, etc..  R.  Co..  176  U.  S.  469.  44  L. 
Ed.  548;  Kies  v.  Lowrey,  199  U.  S.  233,  50 
L.  Ed.  167;  Stearns  v.  Minnesota,  179  U. 
S.  223,  233.  45  L  Ed.  162;  Houston,  etc., 
R.  Co.  V.  Texas,  177  U.  S.  66,  77,  44  L. 
Ed.  673;  Bridge  Proprietors  v.  Hoboken. 
etc..  Co.,  ]  Wall.  116,  17  L.  Ed.  571;  Uni- 
versity V.  People.  99  U.  S.  309,  25  L.  Ed. 
387;  Fisk  v.  Jefferson  Police  Jury,  116  U. 
S.  13L  29  L.  Ed.  587;  Central  Land  Co.  v. 
Laidley.  159  U.  S.  103,  109,  40  L.  Ed.  91; 
State  V.  Knoop,  16  How.  369.  14  L.  Ed. 
977;  Gates  v.  Commissioners,  183  U.  S. 
693,  46  L  Ed.  393;  Railroad  v.  Rock.  4 
Wall.  177.  18  L.  Ed.  381;  Louisville,  etc., 
R.  Co.  z'.  Palmes.  109  U.  S.  244,  254,  257. 
27  L.  Ed.  922. 

"While  the  rule  is  to  accept  the  con- 
struction placed  by  that  court  upon  its 
statutes,  an  exception  is  made  in  case  of 
contracts,  and  that  we  exercise  an  inde- 
pendent judgment  upon  the  question 
whether  a  contract  was  made,  what  its 
scope  and  terms  are,  and  also  whether 
there  has  been  any  law  passed  impair- 
ing its  obligation."  Douglas  v.  Kentucky,. 
168  U.  S.  488.  42  L.  Ed.  553:  Powers  v. 
Detroit,  etc..  R.  Co..  201  U.  S.  543,  556,  50' 
L.    Ed.    860. 

It  is  well  settled  that  the  decision  of 
a  state  court  holding  that,  as  a  matter  of 
construction,  a  particular  charter  or  a. 
charter  provision  does  not  constitute  a 
contract,  is  not  binding  on  this  court.  The 
question  of  the  existence  or  nonexistence 


716 


APPEAL  AND  ERROR. 


determine — indeed,  it  cannot  consistently  with  its  duty  refuse  to  determine — 
upon  its  own  responsibility,  in  each  case  as  it  arises,  whether  that  which  a  party 
seeks  to  have  protected  under  the  contract  clause    of    the    constitution  of  the 


of  a  contract  in  cases  like  the  present  is 
on€  which  this  court  will  determine  for 
itself,  the  established  rule  being  that 
where  the  judgment  of  the  highest  court 
of  a  state,  by  its  terms  or  necessary  oper- 
ation, gives  effect  to  some  provisions  of 
the  state  law  which  is  claimed  by  the  un- 
successful party  to  impair  the  contract 
set  out  and  relied  on,  this  court  has  ju- 
risdiction to  determine  the  question 
whether  such  a  contract  exists  as  claimed, 
and  whether  the  state  law  complained  of 
impairs    its    obligation. 

Mobile,  etc.,  R.  Co.  z-.  Tennessee,  153  U. 
S.  486,  492.  ^8  L.  Ed.  T93,  citing  Jefferson 
Branch  Bank  v.  Skelley.  1  Black  436,  443, 
17  L.  Ed.  173;  New  Orleans,  etc.,  Co.  v. 
Louisiana  Sugar  Relin.  Co.,  125  U.  S.  18, 
38,  31  L.  Ed.  607;  Wilmington,  etc.,  R. 
Co.  V.  Alsbrook,  146  U.  S.  279,  293.  36  L. 
Ed.  972;  Huntington  v.  Attrill,  146  U.  S. 
657,  684.  36  L.  Ed.  1123;  East  Hartford  v. 
Hartford  Bridge  Co..  10  How.  511,  531, 
13  L.  Ed.  518;  Ohio  Life,  etc.,  Ins.  Co.  v. 
Debolt,  16  How.  416,  431,  14  L.  Ed.  997; 
Bridge  Proprietors  v.  Hoboken.  etc.,  Co., 
1  Wall.  116,  144,  17  L.  Ed.  571;  Delmas 
V.  Merchants'  Ins.  Co.,  14  Wall.  661,  20  L. 
Ed.  757;  University  v.  People,  99  U.  S.  309, 
321,  25  L.  Ed.  387;  Louisville,  etc.,  R.  Co. 
r.  Palmes.  109  U.'  S.  244.  256,  27  L.  Ed.  922; 
Louisville  Gas  Co.  v.  Citizens  Gas  Light 
Co..  115  U.  S.  683,  697,  29  L.  Ed.  510; 
Vicksburg,  etc.,  R.  Co.  v.  Dennis,  116  U. 
S.  665,  29  L.  Ed.  770;  Yazoo,  etc.,  R.  z'. 
Thomas,  132  U.  S.  174,  33  L.  Ed.  302; 
Bryan  z'.  Board  of  Education.  151  U.  S. 
639,  650,  38   L.   Ed.  297. 

When  a  cause  is  brought  here  by  writ 
of  error  to  a  state  court,  on  the  ground 
that  the  obligation  of  a  contract  has  been 
impaired  and  propertjr  taken  for  public 
use  without  due  compensation,  in  viola- 
tion of  the  provisioTTS  of  the  constitution 
of  the  United  States,  the  first  duty  of  this 
court  is  to  inquire  whether  the  alleged 
contract  or  taking  of  property  exists. 
"The  existence  of  th^  contract  or  of  the 
right  is  part  of  the  federal  question  itself. 
The  Bridge  Proprietors  v.  The  Hoboken. 
etc.,  Co.,  1  Wall.  116,  145,  17  L.  Ed.  571." 
Hoadley  v.  San  Francisco,  124  U.  S.  639, 
645.    31    L.    Ed.    553. 

Where  an  impairment  of  a  contract  by 
state  legislation  is  charged,  the  existence 
or  nonexistence  of  the  contract  is  a  fed- 
eral question.  Yazoo,  etc.,  R.  Co.  v. 
Adams,   180  U.   S.  41.  45,  45  L.    Ed.   415. 

Chief  Justice  Taney. — As  earlv  as  Ohio 
Life  Ins..  etc.,  Co.  v.  Debolt,  16  How.  416, 
432,  14  ■  L.  Ed.  997,  Chief  Justice  Taney 
said:  "The  writ  of  error  to  a  state  court 
would  be  no  protection  to  a  contract,  if 
we  were  bound  to  follow  the  judgment 
which    the    state    court     had      given,      and 


which  the  writ  of  error  brings  up  for  re- 
vision here."  McCullough  v.  Virginia, 
172  U.  S.  102,  43  L.  Ed.  382;  Jefferson 
Branch  Bank  v.  Skelley,  1  Black  436,  17 
L.  Ed.  173;  Douglas  v.  Kentucky.  168  U. 
S.  488,  501,  42  L.  Ed.  553,  and  cases  cited. 
Deposit  Bank  z'.  Frankfort,  191  U.  S.  499. 
517,    48    L.    Ed.    276. 

Mr.  Justice  Harlan. — In  Douglas  v.  Ken- 
tucky, 168  U.  S.  488,  501,  42  L.  Ed.  553, 
Mr.  Justice  Harlan,  delivering  the  opinion, 
deals  with  the  question  as  follows:  "The 
defendant  insists  that  his  rights  having 
been  acquired  when  these  decisions  of 
the  highest  court  of*  Kentucky  were  in 
full  force,  should  be  protected  according 
to  the  law  of  the  state  as  it  was  adjudged 
to  be  when  those  rights  attached.  But  is 
this  court  required  to  accept  the  prin- 
ciples announced  by  the  state  court  as  to 
the  extent  to  which  the  contract  clause  of 
the  federal  constitution  restricts  the  pow- 
ers of  the  state  legislatures?  Clearly  not. 
The  defendant  invokes  the  jurisdiction 
of  this  court  upon  the  ground  that  the 
rights  denied  to  him  by  the  final  judg- 
ment of  the  highest  court  of  Kentucky, 
and  which  the  state  seeks  to  prevent  him 
from  exercising,  were  acquired  under  an 
agreement  that  constituted  a  contract 
within  the  meaning  of  the  federal  con- 
stitution. This  contention  is  disputed  by 
the  state.  So  that  the  issue  presented 
makes  it  necessary  to  enquire  whether 
that  which  the  defendant  asserts  to  be  a 
contract  was  a  contract  of  the  class  to 
which  the  constitution  of  the  United 
States  refers.  This  court  must  determine 
— indeed,  it  cannot  consistently  with  its 
duty  refuse  to  determine — upon  its  own 
responsibility,  in  each  case  as  it  arises, 
whether  that  which  a  party  seeks  to  have 
protected  under  the  contract  clause  of  the 
constitution  of  the  United  States  is  a  con- 
tract, the  obligation  of  which  is  protected 
by  that  instrument  against  hostile  state 
legislation."  Mobile,  etc.,  R.  Co.  v.  Ten- 
nessee, 153  U.  S.  486,  38  L.  Ed.  793;  Knox 
County  V.  Ninth  National  Bank,  147  U. 
S.  91,  37  L.  Ed.  93;  McGahev  v.  Virginia, 
135  U.  S.  662,  34  L.  Ed.  304;  Deposit  Bank 
V.  Frankfort,  191  U.  S.  499.  518,  48  L.  Ed. 
276. 

A  leading  case. — In  Jefferson  Branch 
Bank  v.  Skelley,  1  Black  436.  443,  17  L- 
Ed.  173,  which  involved  the  contract 
clause  of  the  constitution,  it  was  con- 
tended that  this  court  should  accept  as 
conclusive  the  interpretation  placed  by 
the  supreme  court  of  Ohio  upon  the  con- 
stitution and  laws  of  that  state  as  af- 
fecting certain  state  legislation  which,  it 
was  alleged,  constituted  a  contract,  the 
obligation  of  which  could  not  be  impaired 
by    legislation.      Mr.    Justice    Wayne,    de- 


APPEAL  AND  ERROR. 


7\7 


United  States  is  a  contract,  the  obligation  of  which  is  protected  by  that  instru- 
ment against  hostile  state  legislation.-^'^  If  there  was  no  such  contract,  as  is 
alleged,  then  no  right  has  been  denied  by  the  decree  below-^*^ 

Mr,  Justice  White  states  the  rule  as  follows:  "Where  subsequent  state  leg- 
islation is  asserted  to  be  repugnant  to  the  constitution  of  the  United  States  be- 
cause such  legislation  impairs  the  obligations  of  a  contract,  the  power  to  de- 
termine whether  there  be  such  impairment  imposes  also  on  this  court  the  duty, 
when  necessary,  to  ascertain  whether  there  was  a  contract  and  its  import.  And 
this,  though  it  be  in  a  given  case,  the  state  court  has  decided  that  there  was 
no  impairment  either  because  the  contract  had  never  existed  or  because  from 
an  interpretation  of  its  provisions  it  was  found  that  the  obligations  which  it  is 
asserted  were  impaired,  never  arose.  In  cases  of  this  nature,  therefore,  the 
questions  to  be  considered  are  these:     Was  there  a  contract,  and  if  yes,  what 


livering  the  unanimous  judgment  of  the 
court  said:  "The  constructions  given  by 
the  courts  of  the  states  to  state  legislation 
and  to  state  constitutions  have  been  con- 
clusive upon  this  court  with  a  single  ex- 
ception, and  that  is  when  it  has  been 
called  upon  to  interpret  the  contracts  of 
states,  'though  they  have  been  made  in 
forms  of  law,'  or  by  the  instrumentality 
of  a  state's  authorized  functionaries  in 
conformity  with  state  legislation.  It  has 
never  been  denied,  nor  is  it  now,  that  the 
supreme  court  of  the  United  States  has 
an  appellate  power  to  revise  the  judgment 
of  the  supreme  court  of  a  state,  whenever 
such  a  court  shall  adjudge  that  not  to  be 
a  contract  which  has  been  alleged,  in  the 
forms  of  legal  proceedings,  by  a  litigant, 
to  be  one,  within  the  meaning  of  that 
clause  of  the  constitution  of  the  United 
States  which  inhibits  the  states  from 
passing  any  law  impairing  the  obligation 
of  contracts.  Of  what  use  would  the  rip- 
pellate  power  be  to  the  litigant  who  feels 
himself  aggrieved  by  some  particular  state 
legislation  if  this  court  could  not  decide, 
independently  of  all  adjudication  by  the 
supreme  court  of  a  state,  whether  or  not 
the  phraseology  of  the  instrument  in  con- 
troversy was  expreFsive  of  a  contract  and 
with-"n  the  protection  of  the  constitution 
of  the  United  States,  and  that  its  obli- 
gation should  be  enforced  notwithstand- 
ing a  contrary  conclusion  by  the  supr-^me 
court  of  a  state?  It  never  was  intended, 
and  cannot  be  sustained  by  any  course  of 
reasoning,  that  this  court  should  or  could 
with  fidelity  to  the  constitution  of  the 
United  States  follow  the  construction  of 
the  supreme  court  of  a  state  in  such  a 
matter,  when  it  entertained  a  different 
opinion;  and  in  forming  its  judgment  in 
such  a  case  it  makes  no  difference  in  the 
obligation  of  this  court  in  reversing  the 
judgment  of  the  supreme  court  of  a  state 
upon  such  a  contract,  whether  it  be  one 
claimed  to  be  such  under  the  form  of  state 
legislation,  or  has  been  made  by  a  cove- 
nant or  agreement  by  the  agents  of  a 
state,  by  its  authority."  Douglas  v.  Ken- 
tucky,  IfiS  U.   S.  4  88.   .561,   42    L.   Ed.   ?>^?.. 

Immunity    of    stcckhoHers. — A    railway 
company   was    incorporated   by   an   act    of 


the  legislature  of  the  territory  of  Min- 
nesota in  ]85:i.  In  1858  the  state  of 
Minnesota  by  its  constitution  imposed 
liability  for  corporate  debts  upon  stock- 
holders. By  the  act  of  Minnesota  of 
March  2,  1881  the  consolidation  of  several 
railway  companies  was  ar,"horized.  Suit 
was  brought  to  enforce  the  stockholders' 
liability  against  the  share  holders  of  the 
consolidated  company.  The  protection  of 
§  10,  art.  1,  and  the  fourteenth  amend- 
ment of  the  constitution  of  the  United 
States  was  invoked  in  the  assign- 
ment of  errors  on  appeal  to  the  supreme 
court  of  Minnesota.  The  share  holders 
claimed  the  law  of  1853  as  the  contract 
and  not  explicitly  that  of  1881;  but  they 
also  claimed  that  the  act  of  1881  did  not 
create  a  new  corporation,  and  whether  it 
did  or  not,  that  the  act  continued  the 
immunity  from  liability  for  the  corporate 
debts  to  the  stock  and  stockholders  of 
the  consolidated  corporation.  It  was 
contended  that  the  state  court  did  not  de- 
cide the  federal  question,  but  decided  that 
the  act  of  1881  created  a  new  corporation 
which  became  subject  to  the  constitu- 
tional provision  imposing  liability  upon 
stockholders  for  corporate  debts,  and 
rested  its  judgment  on  that  construction. 
The  statp  court  said:  "Whatever  may  be 
ihe  liability  the  sf^veral  (constituent)  cor- 
porations we  need  not  inquire  because  the 
liability  here  sought  to  be  enforced  is  one 
against  individuals  who  have  been  and  are 
stockholders  in  the  new  corporation." 
And  again:  "other  questions  have  been 
raised  ;n(!  discussed  by  the  resnective 
counsel  but  a  decision  upon  them  by  this 
court  in  this  action  is  entirely  unneces- 
sary, and  we  express  no  opinion  thereon." 
It  was  held  that  this  was  in  effect  to  deny 
the,  existence  of  the  contract  claimed  by 
plaintiffs  in  error;  and  it  is  the  dutv  of 
the  supreme  court  to  decide  ff^r  itself  the 
fact  of  contract  and  its  impairment.  Mm- 
neapolis,  etc.,  R.  Co.  v.  Gardner.  177  U 
S.  332.  44  L.   Ed.  793. 

55.    Douglas  v.  Kentucky.  168  U.  S.  488. 
Rnn.   42    L.^Ed.   553. 

f.     Pryan    v.    Hoard    of    Education,    151 
U.   S.   639,  650,  38   L.   Ed.  397. 


718  APPEAL  AND  ERROR. 

obligations  arose  from  it?  and,  Has  there  been  state  legislation  impairing  the 
contract  obligations?  Abstractly  speaking,  the  duty  would  be  first  in  order  to 
determine  whether  the  contract  existed  and  its  true  meaning,  before  ascertaining 
whether  any  obligations  of  the  contract  had  been  impaired  by  subsequent  leg- 
islation."^''' 

Mr.  Justice  Holmes  states  the  rule  as  follows:  Where  the  state  court  has 
sustained  a  result  which  cannot  be  reached,  except  on  what  we  deem  a  wrong 
construction  of  the  charter,  without  relying  on  unconstitutional  legislation, 
this  court  cannot  decline  jurisdiction  of  a  case  which  certainly  never 
would  have  been  brought  but  for  the  passage  of  flagrantly  unconstitutional 
laws,  because  the  state  court  put  forward  the  untenable  construction  more  than 
the  unconstitutional  statutes  in  its  judgment.  To  hold  otherwise  would  open 
an  easy  method  of  avoiding  the  jurisdiction  of  this  court. -^^ 

This  rule  also  applies  to  a  contract  alleged  to  be  raised  by  a  state 
statute,  although  the  general  principle  is  undoubted  that  the  construction  put 
by  state  courts  upon  their  own  statutes  will  be  followed  here.^^ 

In  the  language  of  Mr.  Justice  Brewer,  "the  general  rule  of  this  court 
is  to  accept  the  construction  of  a  state  constitution  placed  by  the  state  supreme 
court  as  conclusive.  One  exception  which  has  been  constantly  recognized  is 
when  the  question  of  contract  is  presented.  This  court  has  always  held  that 
the  competency  of  a  state,  through  its  legislation,  to  make  an  alleged  contract, 
and  the  meaning  and  validity  of  such  contract,  were  matters  which  in  discharging 
its  duty  under  the  federal  constitution  it  must  determine  for  itself;  and  while 
the  leaning  is  towards  the  interpretation  placed  by  the  state  court,  such  leaning 
cannot  relieve  us  from  the  duty  of  an  independent  judgment  upon  the  question 
;of  contract  or  no  contract. "^^ 

Construction  of  State  Statute. — This  court,  even  on  writ  of  error  to  a 
state  court,  will  construe  for  itself  the  meaning  of  a  statute  as  affecting  an  al- 
leged contract  where  it  is  claimed  that  a  subsequent  statute  passed  by  the  state 
has  impaired  the  obligations  of  the  contract  as  claimed  by  the  party,  and  where 
such  subsequent  statute  has,  by  the  judgment  of  the  state  court,  in  some  way 
been  brought  into  play  and  effect  been  given  to  some  or  all  of  its  provisions. 
In  such  a  case  this  court  construes  the  contract  in  order  to  determine  whether 
the  later  statute  impairs  its  obligation.'' ^ 

Certain  Qualifications  of  the  General  Rule. — But  as  the  general  rule  is 
that  the  interpretation  put  on  a  state  constitution  or  laws  by  the  supreme  court 
of  such  state  is  binding  upon  this  court,  and  as  our  right  to  review  and  revise 

57.    St.    Paul    Gaslight   Co.   v.    St.    Paul,       g^j    543^   reaffirmed   in   Gates  v.   Commis- 
181    U.    S.    142,   147,    45    L.    Ed.   788,    citing        sioners.   183    U.    S.    693,   46   L.    Ed.    393. 
Houston,  etc.,  R.  Co.  v.  Texas,  177  U.   S.  ^j^j^    ^^^^^    ^^^    ^^   frequently   decided, 

^^\^^  ^"  ^  ,  ^^^'  .  t  .u  ,  .  notably  in  the  very  recent  case  of  Mc- 
"Because  the  supreme  court  of  the  state  (.^^u^,/,^  .,  Virginia,  172  U.  S.  102,  43  L. 
decided  the  controversy  solely  upon  its  ^^  ^^^^  ^^^^  .^  .^  ^j^^  ^  ^^  ^^-^  ^^^^^.^  ^^ 
-appreciation  of  the  meaning  of  the  origi-  j^^^j-mine  for  itself  the  proper  construc- 
nal  contract,  it  does  not  necessarily  fol-  ^^  ^^^  contract  upon  which  the  plain- 
low  that  no  ederal  question  is  presented  ^.^  ^  ^^^^  .^  ^^^^^  ^^  considered  no 
for  decision  St  Paul  Gaslight  Co.  ...  ^^  ^^  open  question.  New  Orleans, 
?««  etc.;  Co.  v.  Louisiana  Sugar  Refin.  Co.,  125 

L     T       •     -11      /^        /-  n-^-  n^c       U   S.  18,  31  L.  Ed.  607;  Bridge  Proprietors 

58    Louisvil  e    Gas    Co.   z^^  Citizens    Gas       ^   g       -^^       ^^^     ^^ ;  ^  ^^^^    ^^^^  ^^  ^ 

i;'f   V^    '  li^  t      L     ^'   rn'^     lh\?rl'       Ed.    571;    Columbia   Water    Power    Co.   v. 
510;  Terre  Haute,  etc.,  R.  Co.  v.  Indiana,       ^  :      (^.^.    p     --.^      179    tt     «;     47(5 

194  U.   S.   579.   589,   48   L.   Ed.   1124.  f^J^'T,    t     %/l^ 

59.    Jefferson    Branch    Bank   v.    Skelley,  ^87,  43   L.  Ed.   5.1. 

1   Black   436,   17   L.    Ed.   173;    McGahey  v.  60.    Stearns  v.  Minnesota,  179  U.  S.  22i, 

Virginia,    135    U.    S.    662,    34    L.    Ed.    304;  232,   233,  45  L.   Ed.   162. 

Douglas   V.    Kentucky,    168    U.    S.    488.    42  61.    Louisville   Gas   Co.   v.   Citizens   Gas 

L.    Ed.    553;    McCullough   v.   Virginia,    172  Light    Co.,    115    U.    S.    683,    697,   29    L.    Ed. 

U.  S.  102,  43  L.  Ed.  382;  Walsh  v.  Colum-  510 ;    Bacon   z-.   Texas,   163   U.   S.   207,   219, 

bus,  etc.,  R.  Co.,  176  U.  S.  469,  475,  44  L.  41  L.   Ed.   132. 


APPEAL  AND  ERROR. 


719 


decisions  of  the  state  courts  in  cases  where  the  question  is  of  an  impairment  by 
legislation  of  contract  rights,  is  an  exception,  perhaps  the  sole  exception,  to  the 
rule,  it  will  he  the  duty  of  this  court,  even  in  such  a  case,  to  follow  the  decision 
of  the  stale  court  when  the  ciuestion  is  one  of  doubt  and  uncertainty.  Especial 
respect  should  be  had  to  such  decisions  when  the  dispute  arises  out  of  general 
laws  of  a  state,  regulating  its  exercise  of  the  taxing  power,  or  relating  to  the 
state's  disposition  of  its  public  lands.*52  When  the  jurisdiction  of  this  court 
is  invoked  because  of  the  asserted  impairment  of  contract  rights  arising  from 
the  effect  given  to  subsequent  legislation,  it  is  our  duty  to  exercise  an  independ- 
ent judgment  as  to  the  nature  and  scope  of  the  contract.  Nevertheless,  when 
the  contract,  which  it  is  alleged,  has  been  impaired,  arises  from  a  state  statute, 
"for  the  sake  of  harmony  and  to  avoid  confusion,  the  federal  courts  will  lean 
towards  an  agreement  of  views  with  the  state  courts,  if  the  question  seems  to 
them  balanced  with  doubt. "'■•■^  The  settled  rule  of  the  supreme  court  of  the 
United  States  is  that,  even  in  a  case  where  that  court  may  exercise  an  independ- 
ent judgment  respecting  the  construction  of  a  state  statute  claimed  to  infringe 
the  contract  clause,  any  reasonable  doubt  will  be  resolved  in  favor  of  that  con- 
struction of  the  state  statute  which  has  been  adopted  by  the  court  of  last  resort 
in  that  state.^-*  In  arriving  at  the  meaning  of  a  contract,  Mr.  Justice  Pcckham 
says :  "The  decision  of  the  state  court  is  entitled  to  exercise  marked  influence 
upon  the  question  this  court  is  called  upon  to  decide,  and  where  it  cannot  be  said 
that    the  decision  is  in  itself  unreasonable  or  in  violation  of  the  plain  language  of  the 


62.  Wilson  v.  Standefer,  184  U.  S.  399, 
412.   46   L.    Ed.    612. 

There  is  no  doubt  of  the  general  propo- 
sition that,  where  a  contract  is  alleged  to 
have  been  impaired  by  subsequent  legisla- 
tion, this  court  will  put  its  own  construc- 
tion upon  the  contract,  though  it  may 
differ  from  that  of  the  supreme  court  of 
the  state.  The  authorities  upon  this  point 
are  very  numerous,  but  they  all  belong 
to  a  class  of  cases  in  which  it  was  averred 
that,  properly  construed,  the  contract  was 
impaired  by  subsequent  legislation. 
Yazoo,  etc.,  R.  Co.  v.  Adams.  180  U.  S. 
41,  44,  45    L.   Ed.   415. 

But  if  the  sole  question  be  whether  the 
supreme  ceurt  of  a  state  has  properly  in- 
terpreted the  contract,  and  there  be  no 
question  of  subsequent  legislative  impair- 
ment, there  is  no  federal  question  to  be 
answered.  Lehigh  Water  Co.  v.  Easton, 
1S1  U.  S.  388,  30  L.  Ed.  1059;  Yazoo,  etc.. 
R.  Co.  V.  Adams,  18©  U.  S.  41,  44,  45  L. 
Ed.   415. 

"While  the  decisions  of  the  supreme 
court  of  the  state  are  not  binding  upon  us 
in  determining  whether  a  contract  was 
made  which  is  entitled  to  protection  un- 
der the  federal  constitution,  we  may  no- 
tice the  case  of  Chicago  City  Railway 
Company  v.  People  ex  rel.  Story,  73  Illi- 
nois, 541."  Blair  v.  Chicago.  201  U.  S. 
400,  458,   50   L.    Ed.    801. 

63.  Board  of  Liquidation  v.  Louisiana, 
179  U.  S.  622.  638,  45  L.  Ed.  347,  citing 
Burgess  v.  Seligman,  107  U.  S.  20,  27  L. 
Ed.  359;  Tampa  Water  Works  v.  Tampa, 
199  U.   S.   241.   50   L.   Ed.    170. 

The  state  court  of  Louisiana  held  that 
Under  the  statutes  of  that  state,  both  the 
Board   of   Liquidation     and   the     Drainage 


Commission  occupy  such  a  fiduciary  re- 
L'tion  as  to  empower  them  to  assert  that 
the  enforcement  of  the  provisions  of  the 
state  constitution  would  impair  the  obli- 
gation of  contracts  entered  into  on  the 
faith  of  the  collection  and  application  of 
the  one  per  cent.  tax.  and  of  the  surplus 
arising  therefrom.  It  was  held  that  on 
writ  of  error  to  the  state  court,  the  su- 
preme court  of  the  United  States  will 
adopt  and  follow  the  construction  put 
upon  the  statutes  by  the  supreme  court  of 
the  state  of  Louisiana  since  it  is  a  mat- 
ter of  local  and  nonfederal  concern;  but 
without  implying  that  the  reasoning  by 
which  this  conclusion  was  deduced  would 
command  its  approval  if  the  matter  was 
being  considered  as  one  of  original  im- 
pression. And  the  case  will  not  be  dis- 
missed on  the  ground  that  the  constitu- 
tional question  was  raised  only  by  public 
boards  which  liad  no  capacity  to  raise  the 
question.  Board  of  Liquidation  7'.  Louisi- 
ana,   179   U.   S.   622.   45   L.   Ed.    347. 

Although  the  construction  of  a  local  or- 
dinance by  the  supreme  court  is  not  in- 
disputable, and  though  there  may  exist 
conflict  with  other  state  decisions,  if  it 
does  not  conflict  with  a  decision  made 
previous  to  the  inception  of  the  rights  in- 
volved, this  court  will  incline  to  an  agree- 
ment with   the  state  court. 

Burgess  v.  Seligman.  107  U.  S.  20,  27 
L.  Ed:  359;  Mead  v.  Portland.  200  U.  S. 
148,   50   L.    Ed.   413. 

64.  Burgess  v.  Seligman.  107  U.  S.  20,  27 
L.  Ed.  359;  Flash  v.  Conn,  109  U.  S.  371, 
379,  27  L.  Ed.  966;  Clark  v.  Bever,  139  U, 
S.  96,  35  L.  Ed.  88;  Board  of  Liquidation 
V.  Louisiana,  179  U.  S.  622,  45  L.  Ed.  347; 
Yazoo,  etc..  R.  Co.  v.  Adams,  181  U.  S. 
580,    583.    45    L.    Ed.    1011. 


'20 


APPEAL  AXD  ERROR. 


statute,  we  ought,  in  cases  engendering  a  fair  doubt,  to  follow  the  state  court 
in  its  interpretation  of  the  statutes  of  its  own  state. "^^  In  such  cases  it  is  fre- 
quently necessary  to  recur  to  the  history  and  situation  of  the  country  in  order 
to  ascertain  the  reason  as  well  as  the  meaning  of  the  laws,  and  knowledge  of 
such  particulars  will  most  likely  be  found  in  the  tribunals  whose  special  func- 
tion is  to  expound  and  interpret  the  state  enactments/'*' 

It  is  also  a  rule  that  the  supreme  court  has  no  jurisdiction  of  a  writ  of  error 
to  a  state  court  upon  the  ground  that  the  obligation  of  a  contract  has  been  im- 
paired, when  the  validity  of  the  statute  under  which  the  contract  is  made  is  ad- 
mitted, and  the  only  question  is  as  to  the  construction  of  the  statute  by  that 
court.""  While  the  question  of  contract  or  no  contract  in  a  particular  case  is 
one  which  must  be  determined  by  ourselves,  every  such  alleged  contract  is  pre- 
sumed to  have  been  entered  into  upon  the  basis,  and  in  contemplation  of,  the 
existing  constitution  and  statutes,  and  upon  the  established  construction  there- 
tofore put  upon  them  by  the  highest  judicial  authority  of  the  state.^'* 

11.  Shozinng  as  to  Jurisdiction. — In  General. — It  is  settled  that  this  court,  on 
error  to  a  state  court  upon  the  ground  of  denial  of  a  right  under  the  contract 
clause  of  the  constitution,  cannot  consider  the  federal  question,  where  the  record 
does  not  show  that  the  question  was  called  to  the  attention  of  the  state  court 
and  considered  by  it,  especially  where  it  was  not  necessarily  involved  in  the  de- 
termination of  the  cause."**  The  supreme  court  has  not  jurisdiction  on  a  writ 
of  error  to  the  supreme  court  of  a  state,  in  which  the  judgment  of  the  court  was 
not.  necessarily,  given  on  a  point  which  was  presented  in  the  case  involving  the 
constitutionality  of  an  act  of  the  legislature  of  the  state  asserted  to  violate  a 
contract."*^     But  the  fact  that  the  supreme  court  of  the  state  did  not  expressly 


65.  Chica.i?o  Theological  Seminary  v. 
Illinois.  188  U.   S.   662.   675.  47  L.   Ed.  641. 

In  Waggoner  v.  Flack,  188  U.  S.  595, 
600,  47  L.  Ed.  609,  the  court  said:  "As  the 
true  construction  of  the  particular  statute 
is  not  free  from  doubt,  considering  the 
former  legislation  of  the  state  upon  the 
same  subject,  we  feel  that  we  shall  best 
perform  our  dtity  in  such  case  by  fol- 
lowing the  decision  of  the  state  court 
npon  the  precise  question,  although  doubts 
as  to  its  correctness  may  have  been  ut- 
tered by  the  same  court  in  some  subse- 
quent case."  Wilson  v.  Standefer,  184  U. 
S.   399.   412,  46   L.   Ed.  612. 

66.  Wilson  v.  Standefer,  184  U.  S.  399. 
412,    46    L.    Ed.    612. 

67.  Central  Land  Co.  v.  Laidley.  159 
U.  S.  103.  40  L.  Ed.  91;  Weber  v.  Rogan, 
188   U.   S.   10,   14.  47   L.   Ed.  363. 

68.  Tavlor  v.  Ypsilanti,  105  U.  S.  60,  26 
L.  Ed.  1008;  W^ade  z'.  Travis  County,  174 
U.  S.  499.  509,  43  L.  Ed.  1060;  Gulf,  etc.. 
R.  Co.  V.  Hewes.  183  U.  S.  66,  71,  46  L. 
Ed.    86. 

69.  Showing  as  to  jurisdiction. — Capital 
City  Dairy  Co.  2:  Ohio.  183  U.  S.  238,  46 
L.  Ed.  171,  reaffirmed  in  Herold  7>.  Frank, 
191  U.  S.  558.  48  L.  Ed.  302;  Huber  v. 
Jennings-Heywood  Oil  Syndicate,  #01  U. 
S.  641.  50  L.  Ed.  901.  citing  Green  Bay. 
etc.,  Canal  Co.  v.  Patten  Paner  Co..  172 
U.  S.  58.  77.  43  L.  Ed.  364;  Oxley  Stave 
Co.  V.  Butler  County,  166  U.  S.  648,  654, 
655.    41    L.    Ed.   1149. 

Reference  to  Dartmouth  College  case. 
— The  jurisdiction  of  tliis  court  to  review 
a  Judgment  of  the  highest  state  court  on 


the  ground  that  a  state  law  implies  the  ob- 
ligation of  contracts,  contrary  to  the  fed- 
eral constitution,  cannot  be  maintained  by 
the  plaintiffs  in  error  merely  referring  to 
passages  in  the  opinion  of  the  state  court 
in  which  the  Dartmouth  College  case 
was  discussed  as  establishing  the  point. 
Osborne  v.  Clark.  204  U.  S.  565.  51  L. 
Ed.   619. 

70.  Mills  V.  Brown.  16  Pet.  525,  10  L. 
Ed.    1055. 

In  Eustis  V.  Bolles,  150  U.  S.  361.  37 
L.  Ed.  1111,  it  was  ruled  that  a  decision 
by  the  supreme  judicial  court  of  Massa- 
chusetts that  a  creditor  of  an  insolvent 
debtor  who  proved  his  debt  in  insolvency 
proceedings  under  the  state  statutes  and 
accepted  the  benefits  thereof,  thereby 
waived  any  right  he  might  otherwise  have 
had  to  object  to  the  validity  of  the  in- 
solvency statutes  as  impairing  the  obliga- 
tion of  contracts,  presented  no  federal 
question  for  review.  Cited  in  Israel  v. 
Arthur,    ]."2   U.    S.    355,   ,''.62.  38   L.    Ed.   474. 

Exemption  from  taxation. — Where  a 
complainant  alleged  that  a  school  tax, 
which  was  levied  upon  his  land,  was  con- 
trary to  the  spirit  and  meaning  of  a  law 
of  the  state  of  Ohio  which  exempted  his 
property  from  all  state  taxes,  and  con- 
flicted also  with  the  terms  and  conditions 
of  the  leases  by  which  he  held  his  land, 
and  the  state  court  dismissed  the  bill. 
this  decision  of  the  state  court  cannot  be 
reviewed  by  this  court  by  a  writ  of  error 
i'sucd  rndcr  the  twenty-fifth  section  of 
t'^e  judiciarv  ,Tct.  Smith  v.  Hunter,  7 
How.    738,    12    L.    Ed.    894. 


APPEAL  AND  ERROR. 


721 


refer  to  the  contract  clause  of  the  constitution  does  not  prevent  our  taking  juris- 
diction, if  the  appHcabihty  of  such  clause  were  necessarily  involved  in  its  de- 
cision.''^ 

Where  Decision  Rests  on  Rules  of  General  Law.— Where  it  is  charged 
that  the  obligation  of  a  contract  has  been  impaired  by  a  state  law,  as  by  the  gen- 
eral tax  law  of  the  state,  as  administered  by  the  state  authorities,  and  the  state 
courts  justify  such  impairment  by  the  application  of  some  general  rule  of  law 
to  the  facts  of  the  case,  it  is  our  duty  to  inquire  whether  the  jurisdiction  is  well 
grounded.  If  it  is  not,  the  party  is  entitled  to  the  benefit  of  the  constitutional 
protection.' 2 

Where  Decision  Rests  on  Independent  Grounds. — If  the  judgment  of 
the  state  court  gives  no  effect  to  the  subsequent  law  of  the  state,  and  the  state 
court  decides  the  case  upon  grounds  independent  of  that  law,  a  case  is  not 
made  for  review  by  this  court  upon  any  ground  of  the  impairment  of  a  con- 
tract."3     In  short,  although  the  state  has  passed  an  act  which  the  defendants  as- 


71.  Yazoo,  etc..  R.  Co.  v.  Adams,  180 
U.    S.    1.    15,   45    L.   Ed.   395. 

The  record  of  a  case  and  the  opinion  of 
the  court  therein  showed  that  the  defend- 
ant railway  company  relied  upon  rights 
acquired  under  its  charter  and  certain 
state  legislation  which  it  contended  was 
impaired  by  subsequent  legislation.  The 
case  turned  upon  the  existence  of  such 
contract  and  no  question  was  made  that 
if  there  had  been  a  contract  it  was  im- 
paired by  the  state  legislation.  It  was 
held  that  it  sufficiently  appeared  that  a 
federal  question  as  to  the  impairment  of 
the  obligation  of  the  contract  was  neces- 
sarily involved  in  the  case,  and  not  only 
must  have  been,  but  was  actually  passed 
upon  by  the  supreme  court  of  the  state. 
Yazoo,  etc.,  R.  Co.  v.  Adams,  180  U.  S.  1, 
45  L.  Ed.  395,  reafifirmed  in  Yazoo,  etc., 
R.  Co.  V.  Adams,  180  U.  S.  2C,  45  L.  Ed. 
408. 

72.  Given  v.  Wright,  117  U.  S.  648,  655. 
29  L.  Ed.  1021.  citing  ]\Iurdock  v.  Mem- 
phis, 20  Wall.   590.  22    L.   Ed.  429. 

73.  Bacon  v.  Texas,  163  U.  S.  207,  216, 
41  L.  Ed.  132,  distinguishing  Louisiana 
V.  Pilsbury.  105  U.  S.  278.  26  L.  Ed.  1090; 
Baker  v.  Brickell.  166  U.  S.  717,  41  L. 
Ed.  1186;  Goodsell  v.  Delta,  etc..  Land 
Co.,  166  U.  S.  718,  41  L.  Ed.  1186; 
Wheelan  v.  Brickell.  166  U.  S.  718,  41  L. 
Ed.    1186. 

Where  both  parties,  who  are  respec- 
tively plaintiflfs  and  defendants  in  the 
court  below,  derive  title  from  the  state 
by  patents  which  were  issued  in  execu- 
tion of  the  grant  to  it  of  swamp  and  over- 
flowed lands,  but  the  decision  of  the  state 
court  merely  determines  the  extent  of 
the  grant  to  the  state,  and  interpreting 
the  contending  patents  as  conveyances, 
decides  that  the  lands  described  in  that 
of  plaintifT  did  not  embrace  the  lands  in 
controversy,  and  that  the  lands  described 
in  that  of  defendant  did  embrace  it.  this 
is  but  an  interpretation  of  written  instru- 
ments, and  even  if  it  were  apparent  to  us 
to  be  wrong,  this  court  would  be  without 
po'wer  to  review  it.     In  short  when  a  state 

lU  S  Enc— 46 


court  has  parsed  its  decision  on  a  local 
or  state  question,  the  logical  course  is  to 
dismiss  the  writ  of  error.  White  v. 
Leovy,   174  U.   S.   91,  43   L.   Ed.   90 «. 

The  case  of  Wilmington,  etc.,  Co.  v. 
Alsbrook,  146  U.  S.  279,  36  L.  Ed.  972,  de- 
cides nothing  that  is  repugnant  to  it.  In 
that  case  the  jurisdiction  of  this  court 
was  questioned  on  the  ground  that  the 
contract  of  exemption  mentioned  in  the 
act  of  1834  was  acknowledged  to  be  valid 
by  the  supreme  court  of  North  Carolina, 
and  it  simply  denied  that  particular  prop- 
erty was  embraced  by  its  terms,  and  as  a 
consequence  it  was  claimed  that  the  de- 
cision did  not  involve  a  federal  question. 
To  which  this  court  replied,  speaking  by 
Mr.  Chief  Justice  Fuller,  as  follows:  "In 
arriving  at  this  conclusion,  however,  the 
state  court  gave  effect  to  the  revenue  law 
of  1891.  and  held  that  the  contract  did  not 
confer  the  right  of  exemption  from  its 
operation.  If  it  did,  its  obligation  was 
impaired  by  the  subsequent  law,  and  as 
the  inquiry  whether  it  did  or  not,  was 
necessarily  directly  passed  upon,  we  are 
of  opinion  that  the  writ  of  error  was  prop- 
erly allowed."  Bacon  v.  Texas,  163  U.  S. 
207.    317,    41    L.    Ed.    132. 

So  in  Mobile,  etc.,  R.  Co.  v.  Tennessee, 
]53  U.  S.  486,  38  L.  Ed.  793,  in  that  case  it 
was  contended  that  this  court  had  no  ju- 
risdiction to  review  the  judgment  of  the 
supreme  court  of  Tennessee,  because  the 
decision  of  that  court  proceeded  upon  the 
ground  that  there  was  no  contract  in  ex- 
istence between  the  railroad  company  and 
the  state  to  be  impaired,  and  that  the 
supposed  contract  was  in  violation  of  the 
state  constitution  of  1834,  and  hence  not 
within  the  power  of  the  legislature  to 
make.  In  truth,  however,  the  court  in  its 
decree  gave  effect  to  the  subsequent  stat- 
ute of  Tennessee,  which  it  was  claimed 
impaired  the  obligatif^n  of  the  contract 
entered  into  between  the  state  and  the 
railroad  company,  and  under  those  cir- 
cumstances this  court  exercised  jurisdic- 
tion to  review  the  decision  of  the  state 
court  on  the  question  as  to  v.'hether  there 


722 


APPEAL  AND  ERROR. 


sert  impair  the  obligation  of  their  contract,  so  long  as  the  court,  in  deciding  their 
case  holds  that  they  never  had  a  contract  as  they  never  had  complied  with  the 
provisions  of  the  original  statute,  and  so  long  as  it  gives  judgment  wholly  with- 
out reference  to  the  subsequent  act  and  without  upholding  or  in  any  manner  giv- 
ing efifect  to  any  provision  thereof,  this  court  has  no  jurisdiction  to  review  that 
decision  of  the  state  court,  however  erroneous  it  may  be  regarded  by  usJ'* 

The  result  of  the  authorities,  applying  to  cases  of  contracts  the  settled 
rules,  that  in  order  to  give  this  court  jurisdiction  of  a  writ  of  error  to  a  state 
court,  a  federal  question  must  have  been,  expressly  or  in  effect,  decided  by  that 
court,  and,  therefore,  when  the  record  shows  that  a  federal  question  an  J  an- 
other question  were  presented  to  that  court  and  its  decision  turned  on  the  other 
question  only,  this  court  has  no  jurisdiction,  may  be  summed  up  as  follows : 
When  the  state  court  decides  against  a  right  claimed  under  a  contract,  and  there 
was  no  law  subsequent  to  the  contract,  this  court  clearly  has  no  jurisdiction. 
When  the  existence  and  the  construction  of  a  contract  are  undisputed,  and  the 
state  court  upholds  a  subsequent  law,  on  the  ground  that  it  did  not  impair  the 
obligation  of  the  admitted  contract,  it  is  equally  clear  that  this  court  has  juris- 
diction. When  the  state  court  holds  that  there  was  a  contract  conferring  cer- 
tain rights,  and  that  a  subsequent  law  did  not  impair  those  rights,  this  court  has 
jurisdiction  to  consider  the  true  construction  of  the  supposed  contract,  and,  if 
it  is  of  opinion  that  it  did  not  confer  the  rights  afifirmed  by  the  state  court,  and 
therefore  its  obligation  was  not  impaired  by  the  subsequent  law,  may  on  that 
ground  affirm  the  judgment.  So.  when  the  state  court  upholds  the  subsequent 
law,  on  the  ground  that  the  contract  did  not  confer  the  right  claimed,  this  court 
may  inquire  whether  the  supposed  contract  did  give  the  right,  because,  if  it  did, 
the  subsequent  law  cannot  be  upheld.  But  when  the  state  court  gives  no  effect 
to  the  subsequent  law,  but  decides,  on  grounds  independent  of  that  law,  that 
the  right  claimed  was  not  conferred  by  the  contract,  the  case  stands  just  as  if 
the  subsequent  law  had  not  been  passed,  and  this  court  has  no  jurisdiction.'''^ 


was  a  contract  or  not,  and  as  to  the  mean- 
ing of  the  contract  if  there  were  one,  and 
whether  it  had  been  impaired  by  the  sub- 
.sequent  legislation  to  which  effect  had 
been  given.  Bacon  v.  Texas.  163  U.  S. 
207,   217,   41   L.    Ed.    132. 

74.  Bacon  v.  Texas,  163  U.  S.  207.  41 
L.   Ed.    132. 

75.  New  Orleans,  etc.,  Co.  v.  Louisi- 
ana Sugar  Refin.  Co.,  125  U.  S.  18,  38, 
31   L.   Ed.  607. 

The  distinction  between  the  two  classes 
of  cases — those  in  which  the  state  court 
has,  and  those  in  which  it  has  not,  given 
effect  to  the  statute  drawn  in  question  as 
impairing  the  obligation  of  a  contract — as 
affecting  the  consideration  by  this  court, 
on  writ  of  error,  of  the  true  construction 
and  effect  of  the  previous  contract,  is 
clearly  brought  out  in  Kennebec  R.  Co. 
V.  Portland  R.  Co.,  14  Wall.  23,  20  L.  Ed. 
8.50.  That  was  a  writ  of  error  to  the  su- 
preme judicial  court  of  Maine,  in  which  a 
foreclosure,  under  a  statute  of  1857,  of  a 
railroad  mortgage  made  in  1852,  was  con- 
tested upon  the  ground  that  it  impaired 
the  obligation  of  the  contract,  and  the 
parties  agreed  that  the  opinion  of  that 
court  should  be  considered  as  part  of  the 
record.  Mr.  Justice  Miller,  in  delivering 
judgment,  after  stating  that  it  did  appear 
that  the  question  whether  the  statute  of 
1857  impaired  the  obligation  of  the  mort- 


gage contract  "was  discussed  in  the  opin- 
ion of  the  court,  and  that  the  court  was 
of  the  opinion  that  the  statute  did  not 
impair  the  obligation  of  the  contract," 
said:  "If  this  were  all  of  the  case,  we 
should  undoubtedly  be  bound  in  this  court 
to  inquire  whether  the  act  of  1857  did,  as 
construed  by  that  court,  impair  the  obli- 
gation of  the  contract.  Bridge  Proprie- 
tors v.  Hoboken,  etc.,  Co..  1  Wall.  116, 
17  L.  Ed.  571.  But  a  full  examination  of 
the  opinion  of  the  court  shows  that  its 
judgment  was  based  upon  the  ground  that 
the  foreclosure  was  valid,  without  refer- 
ence to  the  statute  of  1857,  because  the 
method  pursued  was  in  strict  conformity 
to  the  mode  of  foreclosure  authorized, 
when  the  contract  was  made,  by  the  laws 
then  in  existence.  Now,  if  the  state  court 
was  right  in  their  view  as  it  stood  when 
the  contract  was  made,  it  is  obvious  that 
the  mere  fact  that  a  new  law  was  made 
does  not  impair  the  obligation  of  the  con- 
tract. And  it  is  also  clear  that  we  cannot  in- 
quire whether  the  supreme  court  of  Maine 
was  right  in  that  opinion.  Here  is.  there- 
fore, a  clear  case  of  a  sufificient  ground 
on  which  the  validity  of  the  decree  of  the 
state  court  could  rest,  even  if  it  had  been 
in  error  as  to  the  effect  of  the  act  of  1857 
in  impairing  the  obligation  of  the  con- 
tract. And  when  there  is  such  distinct 
and   sufficient   ground   for   the    support   of 


APPEAL  AXD  ERROR. 


723 


Subsequent  Legislation  Must  Be  Shown.— \Miere  no  legislative  act  is 
-hown  to  exist,  from  the  enforcement  of  which  an  impairment  of  the  obligations 
«>f  the  contract — within  the  purview  of  the  constitution — did  or  could  result,  but 
the  record  involves  solely  an  interpretation  of  the  contract,  this  presents  no  con- 
troyersy  within  the  jurisdiction  of  the  supreme  court  of  the  United  States  on 
writ  of  error  to  a  state  court.'*^ 

Invalidity  of  Legislation  Must  Be  "Specially  Set  Up  and  Claimed."— 
Jurisdiction  by  writ  of  error  to  the  supreme  court  of  a  state  from  the  supreme 
court  of  the  United  States  cannot  be  sustained  when  the  only  question  involved 
is  the  construction  of  a  charter  or  contract,  although  it  appears  that  there  were 
statutes  subsequent  thereto  which  might  have  been,  but  were  not,  relied  upon  as 
raising  a  federal  question  concerning  the  construction  of  the  contract.""  Where 
a  state  court  gives  a  certain  construction  to  a  contract,  it  is  not  the  duty  of  the 
supreme  court  of  the  United  States  to  search  the  subsequent  statutes  of  the  state 
10  find  out  whether  there  be  one  which,  under  a  different  construction  of  the  con- 
tract, may  be  held  to  impair  it  when  no  such  statute  is  set  up  in  a  pleadino-  or  in 
the  opinion  of  the  court."'* 


the  judgment  of  the  state  court,  we  can- 
not take  jurisdiction,  because  we  could 
not  reverse  the  case,  though  the  federal 
question  was  decided  erroneously  in  the 
court  below  against  the  plaintiff  in  error. 
Rector  v.  Ashlev,  6  Wall.  142.  18  L.  Ed. 
733:  Klinger  v.  Missouri,  13  Wall.  257,  20 
L.  Ed.  635;  Steines  v.  Franklin  County, 
14  Wall.  15,  20  L.  Ed.  846.  The  writ  of 
error  must  therefore  be  dismissed  for 
want  of  jurisdiction."  Kennebec  R.  Co.  v. 
Portland  R.  Co..  14  Wall.  23,  25,  26.  20  L. 
Ed.  850;  New  Orleans,  etc.,  Co.  v.  Louisi- 
ana Sugar  Refin.  Co..  125  U.  S.  18,  37.  31 
L.   Ed.   607. 

76.  St.  Paul  Gas  Light  Co.  v.  St.  Paul, 
181  U.   S.   142,  151,  45   L.   Ed.  788. 

When,  however,  the  authority  to  review 
the  judgment  of  the  supreme  court  of  a 
state,  and  in  doing  so  to  interpret 
the  contract  and  enforce  its  obligations, 
arises  solely  because  of  the  assertion  that 
the  obligations  of  the  contract  have  been 
impaired  by  subsequent  legislation,  the 
supreme  court  of  the  United  States  will 
first  consider,  whether.  under  any 
view  which  may  be  taken  of  the  con- 
tract, there  is  shown  on  the  record  any 
act  of  state  legislation  which  can  be  prop- 
erly said  to  have  impaired  the  obligations 
v[  the  contract  in  the  constitutional  im- 
port of  these  words.  That  is  to  say.  the 
court  will  first  consider,  even,  although 
ic  be  conceding  arguendo  that  the  su- 
preme court  of  the  state  erroneously  in- 
terpreted the  contract  relied  upon, 
whether  there  has  been  any  state  legis- 
lation impairing  the  obligation  of  such 
contract.  St.  Paul  Gas  Light  Co.  z:  St. 
Paul,  181  U.  S.  142,   147,  45   L.  Ed.  788. 

A  contention  of  impairment  of  the  ob- 
ligation of  a  contract,  arising  from  the 
provisions  of  a  municipal  ordinance  the 
enforcement  of  which  could  not  consti- 
tute such  impairment,  does  not  present  a 
federal  question,  determinable  ultimately 
in  the  supreme  court  of  the  United  States 
on  the  writ  of  error  to  a  state  court.     St. 


Paul  Gas  Light  Co.  v.  St.   Paul,  181  U.  S. 
142,  45  L.   Ed.  788. 

77.  Yazoo,  etc..  R.  Co.  z.:  Adams,  180 
U.    S.    41,   44,    45    L.    Ed.    415. 

Granting  that,  as  th«  case  arose  under 
the  second  clause  of  Rev.  Stat.,  §  709,  the 
invalidity  of  the  statute  need  not  be 
"specially  set  up  and  claimed,"  it  must 
appear  under  the  most  liberal  construc- 
tion of  that  section  that  it  was  necessa- 
rily involved,  and  must  indirectly,  at 
least,  have  been  passed  upon  in  the  opin- 
ion of  the  supreme  court.  Yazoo,  etc.,  R. 
Co.  V.  Adams.  180  U.  S.  41,  45,  46.  45  L. 
Ed.   415. 

78.  Yazoo,  etc.,  R.  Co.  v.  Adams,  180 
U.  S.  41.  45  L.  Ed.  415. 

Case  distinguished.— The  case  of  Yazoo, 
etc.,  Co.  z:  Thomas,  132  U.  S.  174,  32  L. 
Ed.  302.  was  a  bill  to  enjoin  a  collection 
of  taxes.  "  'The  illegality  complained  of 
was  that  the  tax  was  in  violation  of  the 
company's  charter,  by  which  it  was  in- 
sisted the  property  of  the  company  in- 
cident to  its  railroad  operations  was  ex- 
empted from  taxation;  and  it  was  averred 
that  the  charter,  as  respects  the  exemp- 
tion claimed,  was  a  contract  irrevocable, 
and  protected  by  the  contract  clause  of 
the  constitution  of  the  United  States;  that 
the  unwarranted  application  of  the  gen- 
eral laws  subsequently  passed,  as  well  as 
the  application  of  the  general  laws  in 
force  at  the  time,  is  equivalent  to  a  direct 
repeal  of  the  charter  exemption:  that  it 
is  an  eflfectual  abrogation  of  its  privilege 
of  exemption  by  means  of  authority  ex- 
ercised under  the  state.'  Not  only  does 
it  appear  from  the  opinion  that  the  taxes 
in  question  were  assessed  under  an  act 
passed  in  1888,  subsequent  to  the  charter, 
but  on  reference  to  the  original  bill, 
which  we  have  consulted  for  that  pur- 
pose, we  find  that  this  act  of  April  3, 
1888.  was  specially  set  up  and  pleaded  in 
the  bill,  and  was  charged  to  be  a  violation 
of  the  charter  contract,  which  exempted 
the   orator's   road   from  taxation,   and  that 


724 


APPEAL  AXD  ERROR. 


A  bare  averment  in  an  amended  and  supplemental  answer  that  an  or- 
dinance of  a  cit}-  impairs  the  obHgation  of  a  contract,  is  not  in  all  cases  sufficient. 
It  must  not  be  wholly  without  foundation.  There  must  at  least  be  color  of 
ground  for  such  averment,  otherwise  a  federal  question  might  be  set  up  in  almost 
any  case,  and  the  jurisdiction  of  this  court  invoked  simply  for  the  purpose  of 
delay.' 9 

Raising  Question  for  First  Time  in  This  Court. — AMiere  the  contention 
that  a  decision  of  a  state  court  impairs  the  obligation  of  a  contract,  is  raised  for 
the  first  time  in  this  court,  it  comes  too  late.  The  record  must  show  that  such 
proposition  was  set  up  in,  or  considered  by  the  state  court. ^^ 

(56)  Questions  Arising  under  the  Shipping  Laics. — The  denial  by  a  state  court 
of  a  right  set  up  and  claimed  under  the  acts  of  congress  regulating  shipping  is 
reviewable  by  this  court.^^ 

Attachment  of  Money  Due  Seaman. — A  decision  of  a  state  court,  sanction- 
ing an  attachment  of  money  in  the  hands  of  a  purser,  although  it  may  be  due  to 
seamen,  by  the  creditors  of  those  seamen,  may  be  revised  by  this  court  under 
the  25th  section  of  the  judiciary  act.s2 

(57)  Revic'tv  of  Mandamus  Proceedings. — A  writ  of  error  will  not  lie  to  re- 
view mandamus  proceedings  in  a  state  court,  or  in  any  court  of  appeals  of  the 
District  of  Columbia,  where  no  federal  question  is  involved. ^^ 


such  application  of  said  act  was  the  same 
as  a  repeal  or  revocation  of  the  granted 
exemption,  and  therefore  in  violation  of 
the  constitution  of  the  United  States  for- 
b^idding  such  violation.  In  other  words, 
the  bill  in  that  case  not  only  pointed  out 
the  exemptions  contained  in  the  plain- 
tiff's charter,  but  also  set  up  the  subse- 
quent statute,  which  it  was  contended  im- 
paired the  obligation  of  that  contract.  The 
bill  thus  contained  the  allegation  which  is 
wanting  in  this  case,  and  put  it  in  the 
power  of  this  court  to  say  whether  the 
contract  set  up  in  the  bill  had  been  prop- 
erly construed  by  the  state  court.  This 
was  also  the  case  in  Columbia  Water 
Power  Co.  V.  Columbia  Street  Railway 
Co.,  172  U.  S.  475,  43  L.  Ed.  521,  and  Mc- 
Cullough  V.  Virginia,  172  U.  S.  102,  43  L- 
Ed.  382."  Yazoo,  etc.,  R.  Co.  v.  Adams, 
180  U.  S.  41.  47,  48,  45  L.  Ed.  415. 

79.  New  Orleans  v.  New  Orleans  Water 
Works    Co.,    142   U.    S.    86,   35   L.    Ed.   946. 

80.  Winona,  etc..  R.  Co.  v.  Plainview. 
143  U.  S.  371,  36  L.  Ed.  191. 

When  an  objection  that  the  obligation 
of  a  contract  has  been  impaired  by  a 
state  statute  as  construed,  was  not  taken 
below,  it  is  not  open  here.  Northern  As- 
sur.  Co.  V.  Building  Association,  203  U.  S. 
106.  51  L.  Ed.  109. 

81.  Questions  arising  under  the  ship- 
ping laws. — When  the  question  in  the 
highest  court  of  law  or  equity  of  a  state 
is  whether  the  mortgage  of  a  vessel,  duly 
recorded  under  an  act  of  congress,  gives 
a  better  lien  than  an  attachment  issued 
under  a  state  statute,  and  the  decision  is, 
that  it  does  not;  a  proper  case  exists  for 
review  in  this  court,  under  the  25th  sec- 
tion of  the  judiciarv  act.  Aldrich  v.  yEtna 
Ins.  Co..  8  Wall.  491.  19  L.  Ed.  473. 

The  question  whether  the  fees  collected 
by    a     shipping    commissioner     were     ille- 


gally exacted,  and  can  be  recovered  back, 
is  not  one  of  federal  law,  and  therefore 
the  decision  of  the  state  court  thereon 
cannot  be  reviewed  in  this  court,  it  not 
afpearing  that  any  objection  was  made 
at  the  time  to  that  payment.  You'ng  v. 
Steamship  Co.,  105  U.  S.  41,  26  L.  Ed. 
96P. 

Collision. — Where  the  plaintiff  in  error 
expressly  claims  a  right  in  the  state  c^urt 
under  the  statutes  of  the  United  State?, 
to  navigate  his  vessel  on  the  Hudson  with 
a  masthead  light  and  side  lights  in  ac- 
cordance with  the  statutory  rules  on  that 
subject,  and  also  the  right  in  such  naviga- 
tion to  the  application  of  those  rules  in 
certain  other  particulars;  and  if  these 
rights  are  denied  by  the  state  court,  the 
jurisdiction  of  this  court  attaches  for  the 
determination  of  the  questions  thus  raised. 
Belden  v.  Chase,  150  U.  S.  674,  37  L.  Ed. 
121S. 

Maritime  liens. — Whether  the  Michi- 
gan statute  allowing  a  lien  on  all  water 
crafts  of  above  five  tons  burden,  navi- 
gating the  waters  of  a  state,  applies  to  a 
steamer  not  to  be  used  in  navigating  the 
waters  of  Michigan,  only  presents  a  ques- 
tion of  state  law,  upon  which  the  judg- 
ment of  the  state  court  is  final  and  con- 
clusive. "The  same  may  be  said  as  to  the 
objection  because  the  transportation  com- 
pany was  a  bona  fide  purchaser  without 
notice  of  complainant's  lien,  and  because 
complainant  did  not  within  a  year  file  its 
claim  for  a  lien  with  the  proper  court  in 
the  county  in  which  it  resided.  These  are 
state  questions,  likewise  concluded  bj'  the 
decision  of  the  state  court."  The  Winne- 
bago.  205   U.   S.   354.   360.   51   L.    Ed.   830. 

82.  Buchanan  v.  Alexander,  4  How.  20, 
11   L.    Ed.   857. 

83.  Columbia  Ins.  Co.  v.  Wheelright,  " 
Wheat.    534,    5    L-    Ed.    516;    Louisiana    v. 


APPEAL  AXD  ERROR. 


7T5 


(58)  Denial  of  Immunities  to  Receii^ers  Appointed  by  Federal  Courts. — Where 
a  receiver  is  exercising  his  authority  under  an  order  of  the  federal  court,  and 
claims  immunity  as  such  receiver  from  suit  without  previous  leave  of  the  state 
court,  under  the  act  of  congress  of  March  3,  1887,  c.  377.  24  Stat.  552,  and  the  de- 
cision of  the  state  court  is  adverse  to  such  claim,  he  is  entitled  to  a  review  of 
such  ruling  whether  his  claims  be  founded  upon  a  statute  or  upon 
principles  of  general  jurisprudence. ^-^  Rut  merely  because  of  his  ap- 
pointment as  receiver  by  a  circuit  court,  a  judgment  against  him 
in  a  state  court  does  not  amount  to  a  denial  of  the  validity  of  an  authority  exer- 
cised under  the  United  States  or  of  a  right  or  immunity  specially  set  up  or  claimed 
under  a  statute  of  the  United  States.  Although  he  is  an  officer  of  a  circuit  court, 
ihe  validity  of  his  authority  as  such  is  not  drawn  in  question.*^  The  mere  order 
of  the  circuit  court  of  the  United  States  appointing  a  receiver  for  a  corporation 
created  by  the  law  of  a  state,  at  the  suit  of  a  citizen  of  another  state,  and  where 


S.   568,   27   L.    Ed. 
,    Seymour,    153    U. 


New  Orleans,  108  U. 
823;  South  Carolina  t' 
S.  353,  38  L.   Ed.  742. 

Review  of  mandamus  proceedings.— 
Whether  a  state  possesses  power  to  issue 
writs  of  mandamus,  or  what  modifications 
of  its  power  may  be  imposed  on  it,  by  the 
laws  which  constitute  it,  this  court  can- 
not be  called  on  to  decide  under  the  25th 
section  of  the  judiciary  act.  But  whether 
that  court  has  power  to  issue  a  writ  of 
mandamus  to  officers  commissioned  by 
the  United  States,  such  as  a  register  of  a 
land  office  in  such  state,  and  it  is  imma- 
terial under  what  law  that  authority  be 
asserted,  the  controlling  power  of  this 
court  may  be  asserted  on  the  subject,  un- 
der the  description  of  an  exemption 
claimed  by  the  officer  over  whom  it  is 
exercised.  M'Clung  v.  Silliman,  6  Wheat. 
598.   5   L.   Ed.   340. 

84.  Denial  of  immunities  to  receivers 
appointed  by  federal  courts. — McXulta  v. 
Lochridge,  141  U.  S.  327,  35  L-  Ed.  796, 
citing  Buck  v.  Colbath,  3  Wall.  334,  18 
L.  Ed.  257;  Feibelman  v.  Packard,  109  U. 
S.  421,  27  L.  Ed.  984;  Pacific  Railroad  Re- 
moval Cases,  115  U.  S.  1.  29  L.  Ed.  319; 
Etheridge  v.  Sperry,  139  U.  S.  266,  35  L. 
Ed.  171;  Bock  v.  Perkins.  139  U.  S.  628, 
35  L.  Ed.  314.  See  Erb  v.  Morasch,  177  U. 
S.  584.  44  L.  Ed.  897. 

85.  Bausman  v.  Dixon,  173  U.  S.  113, 
114,  43  L.  Ed.  633,  reaffirmed  in  Stuart  v. 
Hauser,  203  U.  S.  585,. 51  L.   Ed.  328. 

"The  mere  order  of  the  circuit  court 
appointing  a  receiver  did  not  create  a 
federal  question  under  §  709  of  the  Re- 
vised Statutes,  and  the  receiver  did  not 
set  up  any  right  derived  from  that  order, 
which  he  asserted  was  abridged  or  taken 
away  by  the  decision  of  the  state  court." 
Bausman  v.  Dixon.  173  U.  S.  113,  114, 
43  L.  Ed.  633,  reaffirmed  in  Stuart  v. 
Hauser,  203  U.  S.  585.  51  L.  Ed.  328. 

"We  have  just  held  in  Capital  Nat.  Bank 
v.  First  Nat.  Bank,  172  U.  S.  425,  43  L. 
Ed.  502,  that  where  the  receiver  of  a 
national  bank  was  a  party  defendant  in 
the  state  courts,  contested  the  issues  on 
a  general  denial,  and  set  up  no  claim  of  a 
right  under  federal  statutes  withdrawing 
the  case   from   the  application   of   general 


law,  this  court  had  no  jurisdiction  to 
revise  the  judgment  of  the  highest  court 
of  the  state  resting  thereon;  and,  cer- 
tainly, an  officer  of  the  circuit  court  stands 
on  no  higher  ground  than  an  officer  of 
the  United  States."  Bausman  v.  Dixon, 
173  U.  S.  113,  114,  43  L.  Ed.  633,  reaf- 
firmed in  Stuart  v.  Hauser,  203  U.  S.  585, 
51    L.   Ed.   328. 

"In  Bausman  v.  Dixon,  173  U.  S.  113,  43 
L.  Ed.  633,  we  ruled  that  a  judgment 
against  a  receiver  appointed  by  a  circuit 
court  of  the  United  States,  rendered  in 
due  course  in  a-  state  court,  does  not  in- 
volve the  denial  of  an  authority  exercised 
under  the  United  States  or  of  a  right  or 
immunity  specially  set  up  or  claimed 
under  a  statute  of  the  United  States.  That 
was  an  action  to  recover  for  injuries  sus- 
tained by  reason  of  the  receiver's  negli- 
gence in  operating  a  railroad  company 
chartered  by  the  state  of  Washington, 
though  the  receiver  was  the  officer  of  the 
circuit  court,  and  we  said:  'It  is  true  that 
the  receiver  was  ?"'  officer  of  the  circuit 
court,  but  the  validity  of  his  authority  as 
such  was  not  drawn  in  question,  and  there 
was  no  suggestion  in  the  pleadings,  or 
during  the  trial,  or,  so  far  as  appears,  in 
the  state  supreme  court,  that  any  right 
the  receiver  possessed  as  receiver  was 
contested,  although  on  the  merits  the 
employment  of  plaintiff  was  denied,  and 
defendant  contended  that  plaintiff  had  as- 
sumed the  risk  which  resulted  in  the  in- 
jury, and  had  also  been  guilty  of  contrib- 
utory negligence.  The  mere  order  of  the 
circuit  court  appointing  a  receiver  did 
not  create  a  federal  question  under  §  709 
of  the  Revised  Statutes,  and  the  receiver 
did  not  set  up  any  right  derived  from 
that  order,  which  he  asserted  was 
abridged  or  taken  away  by  the  decision 
of  the  state  court.  The  liability  to  Dixon 
depended  on  principles  of  general  law 
applicable  to  the  facts,  and  not  in  any  way 
on  the  terms  of  the  order.'  And  although 
that  was  the  case  of  a  writ  of  error  to  a 
state  court,  we  applied  the  reasoning  in 
Pope  V.  Louisville,  etc..  R.  Co..  173  U.  S. 
573,  43  L.  Ed.  814."  Cited  in  Gableman  v. 
Peoria,  etc..  R.  Co..  179  U.  S.  335,  340, 
341,    45    L.    Ed.    220. 


726 


APPEAL  AXD  ERROR. 


the  jurisdiction  of  the  circuit  court  depended  on  the  diverse  citizenship  of  the 
parties,  does  not  create  a  federal  question  under  §  709  of  the  Revised  Statutes. ^^ 

(59)  Assignment  of  Claims  against  Government. — Where  tlie  final  judgment 
of  the  highest  state  court  denies  to  the  plaintiffs  in  error  a  right  specially  set  up 
and  claimed  by  them  under  §  3477  of  the  Revised  Statutes,  providing  that  all  trans- 
fers and  assignments  made  of  any  claim  upon  the  United  States,  shall  be  abso- 
lutely null  and  void,  this  court  has  jurisdiction  to  re-examine  that  final  judgment 
under  §  709  of  the  Revised  Statutes. s'  But  this  court  has  no  jurisdiction  to  re- 
view the  judgment  of  a  state  court  on  the  ground  that  it  denied  the  plaintiff  in 
error  a  title  or  right  set  up  or  claimed  under  §  3477  of  the  Revised  Statutes  of  the 
United  States,  where  the  controversy  in  said  court  is  merely  as  to  which  of  the 
claimants  had  the  superior  equity  in  the  fund ;  the  statute  being  only  collaterally 
involved,  and  the  plaintiffs  in  error  asserting  no  right  to  the  money  based 
upon  it.**^ 

(60)  Cruel  and  Unusual  Punishment. — As  a  federal  question,  it  has  always 
been  ruled  that  the  8th  amendment  of  the  constitution  of  the  United  States, 
which  prohibits  cruel  and  unusual  punishment,  does  not  apply  to  the  states.  Where 
it  is  not  assigned  in  this  court  as  error,  in  the  assignment  of  errors,  or  in  the  brief 
for  plaintiff'  in  error,  that  he  was  subjected  to  cruel  and  unusual  punishment 
in  violation  of  the  constitution  of  the  United  States,  the  error  will  not  be  consid- 
ered.^^ It  is  not  within  the  province  of  this  court  upon  a  writ  of  error  to  a  state 
court  to  consider  the  question  of  cruel  and  unusual  punishment  inflicted  under 
the   state  constitution.^^ 

(61)  Questions  of  General  Law — aa.  In  General. — It  has  been  held  repeatedly 
that  this  court  has  no  power  to  review  the  decisions  of  the  state  court  upon 
que^ions  of  general  law  alone. ''^     The  decisions  cf  state  tribunals  in  respect  of 


86.  Baggs  V.  Martin,  179  U.  S.  206,  208, 
45  L.  Ed.  155,  citing  Bailsman  v.  Dixon, 
173  U.  S.  113.  43  L.  Ed.  633. 

87.  Assignment  of  claims  against  gov- 
ernment.— Price  V.  Forrest,  173  U.  S.  410, 
43  L.  Ed.  749;  Delaware  City,  etc.,  Nav. 
Co.  V.  Reybold,  142  U.  S.  636.  35  L-  Ed. 
1141. 

Where  plaintiffs  in  error  based  their  de- 
fense in  part  upon  §  3477  Revised  Stat- 
utes which  declares  absolutely  null  and 
void  certain  transfers  and  assignments  of 
claims  against  the  United  States  and  in- 
sisted that  the  contract  sued  on  was  in 
violation  of  that  statute  and  that  they  and 
the  estate  of  another  third  party  were 
protected  by  its  provisions  against  any 
judgment  whatever  in  favor  of  plaintiffs 
below,  they  asserted  a  right  and  immu- 
nity under  a  statute  of  the  United  States 
and  as  such  right  and  immunity  was  de- 
nied to  them  by  the  state  court,  a  writ 
of  error  lay  to  this  court.  Nutt  v.  Knut, 
200  U.  S.   12,  50  L.  Ed.  348. 

88.  Conde  v.  York,  168  U.  S.  642,  42  L. 
Ed.  611. 

89.  Cruel  and  unusual  punishment.^ 
O'Niel  V.  Vermont,  144  U.  S.  323,  36  L. 
Ed.  450. 

90.  O'Niel  V.  Vermont,  144  U.  S.  323, 
36  L.  Ed.  450. 

91.  Questions  of  general  law. — United 
States  V.  Thompson,  93  U.  S.  586,  23  L- 
Ed.  982.  citing  Bethell  v.  Demaret,  10 
Wall.  537,  19  L.  Ed.  1007;  Delmas  v. 
United  States,  14  Wall.  661,  666,  20  L. 
Ed.  757;  New  York  Ins.  Co.  v.  Hendren, 
92    U.    S.    286,    287,    23    L.    Ed.    709;    Rock- 


hold  V.  Rockhold,  92  U.  S.  129,  130,  23  L. 
Ed.  507;  Bank  ::■.  McVeigh,  98  U.  S.  332. 
25  L.  Ed.  110;  Chicago,  etc.,  R.  Co.  v. 
Martin,  178  U.  S.  245.  44  L.  Ed.  1055; 
Chemical  Nat.  Bank  v.  City  Bank,  160  U. 
S.   646,   653,   40   L.    Ed.   568.   573. 

This  court  in  reviewing  the  final  judg- 
ment of  the  highest  court  of  a  state  will 
not  pass  upon  a  federal  question,  how- 
ever distinctly  presented  by  the  pleadings,, 
if  the  judgment  of  the  state  court  was 
based  upon  some  ground  of  local  or  gen- 
eral law  manifestly  broad  enough  in  it- 
self to  sustain  the  decision  independently 
of  any  view  that  might  be  taken  of  such 
federal  question.  Henderson  Bridge  Co. 
V.  Henderson,  173  U.  S.  592,  608,  43  L. 
Ed.    835. 

Where  a  decision  of  the  highest  court 
of  a  state  in  a  case  is  made  on  its  set- 
tled pre-existent  rules  of  general  juris- 
prudence, the  case  cannot  be  brought  here 
under  the  25th  section;  notwithstanding 
the  fact  that  the  state  has  subsequently 
made  those  rules  one  of  the  articles  of 
its  constitution,  and  the  case  be  one  where 
if  the  decision  had  been  made  on  the  con- 
stitution alone,  a  writ  of  error  under  the 
said  section  might  have  lain.  Bank  of 
West  Tennessee  v.  Citizens'  Bank. 
14  Wall.  9,  20  L.  Ed.  514,  reaffirmed  in 
Palmer  v.  Marston,  14  Wall.  10,  20  L.  Ed. 
826,  citing  Bethell  v.  Demaret,  10  Wall. 
537,  19  L.  Ed.  1007.  See  West  Tenn. 
Bank  v.  Citizens'  Bank,  13  Wall.  432,  20 
L.  Ed.  514. 

In  order  to  sustain  the  judgment  of  this 
court  upon  the  ground  that  a  federal  ques- 


APPEAL  AXD  ERROR. 


727 


matter  of  general  law  cannot  be  reviewed  on  the  theory  that  the  law  of  the  land 
is  violated  unless  their  conclusions  are  absolutely  free  from  error. ^^  Moreover, 
the  supreme  court  cannot  reverse  the  decisions  of  state  courts  in  regard  to  ques- 
lions  of  general  justice  and  equitable  considerations  in  the  taking  of  property.^^ 
bb.  Various  Specific  Applications  of  the  General  Rules. — And  these  rules  have 
been  applied  to  defenses  based  on  adverse  possession,^-*  to  a  question  concerning 
the  right  of  prescription,^-^  to  the  proper  degrees  of  guilt  in  homicide,^''  to  the 
question  whether  a  sale  of  mortgaged  property  under  a  decree  of  foreclosure 
should  be  set  aside,^^  to  the  validity  of  a  grant  of  Pueblo  lands, '^^  to  the  validity 


tion  is  presented,  it  should  appear  either 
that  such  question  was  apparent  in  the 
record,  and  that  a  decision  was  made 
thereon,  or  that,  from  the  facts  stated, 
such  question  must  have  arisen,  and  been 
necessarily  involved  in  the  case.  If  it 
appear  either  that  the  decision  of  the 
state  court  was  made  upon  rules  of  gen- 
eral jurisprudence,  or  that  the  case  was 
disposed  of  upon  other  grounds,  broad 
enough  in  themselves  to  sustain  the  judg- 
ment without  considering  the  federal  ques- 
tion, and  that  such  question  was  not  nec- 
essarily involved,  the  jurisdiction  of  this 
court  will  not  attach.  New  Orleans  z'. 
New  Orleans  Water  Works  Co.,  142  U. 
S.  86,  35   L.  Ed.  946. 

This  court  has  no  appellate  power  over 
the  decision  of  a  state  court  grounded 
upon  principles  of  law  and  equity,  as 
recognized  and  administered  in  the  state 
courts,  without  reference  to  the  construc- 
tion or  effect  of  any  provision  of  the  con- 
stitution, or  any  act  of  congress.  Hoyt 
V.  Sheldon,  1  Black  518,  17  L.   Ed.  65. 

"It  has  been  frequently  held  that  the 
contention,  even  if  formally  made,  that 
plaintiffs  in  error  were  seeking  to  avail 
themselves  of  some  right  or  immunity 
under  the  constitution  or  laws  of  the 
United  States  does  not  give  us  jurisdic- 
tion to  review  the  judgment  of  the  su- 
preme court  of  a  state  where  that  judg- 
ment was  based  upon  a  doctrine  of  gen- 
eral law  sufficient  of  itself  to  determine 
the  case."  Beaupre  v.  Noyes.  138  U.  S.  397, 
34  L.  Ed.  991;  Eustis  v.  Bolles.  150  U.  S. 
361,  37  L.  Ed.  1111;  Pierce  v.  Somerset  R. 
Co.,  171  U.  S.  641,  43  L.  Ed.  316;  Reming- 
ton Paper  Co.  v.  Watson,  173  U.  S.  443, 
43  L.  Ed.  762;  Seeberger  v.  McCormick, 
175  U.  S.  274,  280,  44  L.   Ed.   161. 

92.  Sayward  z'.  Denny,  158  U.  S.  180, 
186,  39  L.  Ed.  941,  reaffirmed  in  Texas, 
etc.,  R.  Co.  V.  Gay,  167  U.  S.  745,  42  L. 
Ed.  1209. 

as.  Fallbrook  Irrig.  Dist.  z^.  Bradley,  164 
U.  S.  112,  41  L.  Ed.  369;  Hooker  v.  Los 
Angeles,  188  U.  S.  314,  47  L.  Ed.  487. 

94.  Various  specific  applications  of  the 
general  rules. — O'Conor  v.  Texas,  202  U. 
S.  501,  50  L.  Ed.  1120. 

Adverse  possession. — An  action  brought 
in  a  California  court  to  recover  of  one  of 
the  plaintiffs  in  error  a  crop  of  wheat 
raised  by  him  on  land  claimed  by  the 
plaintiff  in  error  as  pre-emptor,  where  the 
question    of    the    title    to    the    land   is    not 


necessarily  involved  in  the  case,  but  the 
decision  was  put  entirely  on  the  ground 
that  the  owner  of  land  out  of  possession 
cannot  recover  from  one  in  possession, 
holding  adversely  under  claim  of  title,  the 
crops  raised  by  him  in  cultivating  the 
soil,  does  not  present  a  federal  question. 
Martin  v.  Thompson,  120  U.  S.  376,  30  L. 
Ed.  679. 

This  court  has  no  jurisdiction  upon  a 
writ  of  error  to  the  supreme  court  of  the 
state  of  California,  where  it  appears  that 
all  the  court  below  decided  was  "that  in 
California  the  title  of  the  true  owner  of 
lands  is  extinguished  by  an  adverse  pos- 
session under  coloi  of  right  for  the  length 
of  time  which  would  be  a  bar  to  a  recov- 
ery in  ejectment.  This  is  not  a  federal 
question."  Poppe  v.  Langford,  104  U.  S. 
770.  26  L.   Ed.  922. 

95.  Brand  Gulf,  etc.,  R..  Co.  v.  Marshall, 
12   How.   165,  13  L.  Ed.  938. 

96.  Homicide. — -"Assignments  of  error 
that  the  court  instructed  the  jury  that 
they  might  find  the  defendant  guilty  of 
murder  in  the  first  degree  if  they  were 
satisfied  from  the  evidence  that  he  did 
kill  and  murder  the  person  named  in  the 
indictment  "in  the  manner  and  form 
charged  in  either  of  the  counts,"  when 
one  of  the  counts  was  bad.  As  presented 
to  the  trial  court  at  the  time,  the  question 
involved  in  this  part  of  the  charge  was 
one  of  general  law  only,  and  not  in  any 
manner  dependent  upon  the  constitution 
or  laws  of  the  United  States."  Brooks  v. 
Missouri.     124  U.  S.   394,  396,  31  L.   Ed.  454. 

97.  Mode  of  sale  under  mortgage  fore- 
closure.— In  French  z\  Hopkins,  124  U. 
S.  524,  31  L.  Ed.  536;  the  only  question 
below  was,  whether  a  sale  of  mortgaged 
property  under  a  decree  of  foreclosure 
should  be  set  aside  because  the  property 
had  been  sold  "as  a  whole  and  in  one  par- 
cel," when  it  was  capable  of  division  into 
parts.  The  court  of  original  jurisdiction 
set  aside  the  sale,  but  the  supreme  court, 
on  appeal,  confirmed  it,  and  gave  judg- 
ment accordingly.  In  doing  this,  it  was 
held  to  be  "within  the  jurisdiction  of  the 
court  by  its  judgment  to  direct  that  the 
property  should  be  sold  in  one  or  several 
parcels,"  and  that  there  was  nothing  in 
the  statutes  of  the  state  to  the  contrary 
of  this.  That  was  the  only  decision  in  the 
case,  and  it  certainly  involved  no  question 
of   federal   law. 

98.  Mexican   laws. — This   court   has   no 


728 


APPEAL  AXD  ERROR. 


of  the  entry  of  a  judgment  in  favor  of  a  defendant  in  ejectment  for  rents  and 
profits. ^^  to  the  effect  of  war  upon  contracts,^  to  the  liability  of  a  corporation  for 
the  indebtedness  of  a  company  whose  property  it  has  acquired,^  to  the  construc- 
tion of  pleadings,-^  to  a  decision  upon  questions  of  boundaries,*  to  the  right  to 
recover  back^  money  paid,-^  to  a  decision  as  to  the  liability  of  a  railroad  for  in- 
juries, sustained  by  a  plaintiff  during  the  time  the  road  was  in  the  hands  of  a 
receiver ,*5  to  questions  of  local  or  general  law  relating  to  mortgages,"  to  the  ques- 


jurisdiction  of  a  writ  of  error  to  the  su- 
preme court  of  the  state  of  California 
determining  whether,  after  the  conquest 
and  before  the  incorporation  of  the  city 
of  San  Francisco,  and  before  the  adoption 
of  the  constitution  of  the  state  of  CaH- 
fornia,  a  person  exercising  the  functions 
of  an  alcalde  of  the  pueblo  of  San  Fran- 
cisco could  make  a  valid  grant  of  pueblo 
lands,  as  such  officers  had  been  before 
such  conquest  accustomed  to  do.  "This 
does  not  depend  on  any  legislation  of  con- 
gress, or  on  the  terms  of  the  treaty,  but 
on  the  effect  of  the  conquest  upon  the 
p>owers  of  local  government  in  the  pueblo 
under  the  Mexican  laws.  That  is  a  ques- 
tion of  general  public  law,  as  to  which 
the  decisions  of  the  state  court  are  not 
reviewable  here.  This  has  been  many 
times  decided.  Delmas  v.  Merchants'  Ins. 
Co.,  14  Wall.  661,  20  L.  Ed.  757;  Tarver 
V.  Keach,  15  Wall.  67,  21  L.  Ed.  82;  New 
York  Ins.  Co.  v.  Hendren,  92  U.  S.  286, 
23  L.  Ed.  709;  Dugger  v.  Bocock,  104  U.  S. 
596,  26  L.  Ed.  846;  Allen  v.  McVeigh,  107 
U.  S.  433,  27  L.  Ed.  572."  San  Francisco  f. 
Scott,  111  U.  S.  768,  769,  28   L.   Ed.  593. 

99.  Allowance  of  rents  and  profits  in 
^ectment. — Upon  a  writ  of  error  to  the 
state  court,  any  inadvertence  in  the '  en- 
tering of  judgment  in  favor  of  the  defend- 
ant for  rents  and  profits,  is  not  a  matter 
for  revision  by  this  court,  but  only  for 
consideration  by  the  court  below.  Tubbs 
V.  Wilhoit.  138  U.   S.  134,  34  L.  Ed.  887. 

1.  Effect  of  war  upon  contracts. — This 
court  has  no  jurisdiction  to  re-examine 
the  judgment  of  a  state  court  in  a  case 
where  the  pleadings  and  the  instructi'ms 
asked  for  snd  refused  present  questions 
as  to  the  effect,  under  the  general  public 
law,  of  a  sectional  civil  war  upon  the  con- 
tract which  was  the  subject  of  the  suit, 
and  when  it  was  not  contended  that  that 
law,  as  applicable  to  the  case,  had  been 
modified  or  suspended  by  the  constitution, 
laws,  treaties,  or  executive  proclamations 
of  the  United  States,  because  no  federal 
question  was  decided  or  necessarily  in- 
volved. Mr.  Justice  Bradlev  dissenting. 
New  York  Ins.  Co.  v.  Hendren,  92 
U.  S.  286,  23  L.  Ed.  709,  citing  Bethell  v. 
Demaret,  10  Wall.  537,  19  L.  Ed.  1007; 
Delmas  v.  Merchants'  Ins.  Co.,  14  Wall. 
661,  666.  20  L.  Ed.  757;  Tarver  v.  Keach,  15 
Wall.  67,  21  L.  Ed.  82;  Rockhold  v.  Rock- 
hold,  92  U.  S.  129,  23  L.  Ed.  507. 

2.  Liability  of  corporation  for  debt  of 
successsor. — The  question  whether  the 
successor  of  a  corporation  becomes  bound 


for  all  the  indebtedness  of  the  company 
whose  property  it  has  acquired,  does  not 
involve  a  federal  question.  National 
Foundry,  etc..  Works  v.  Oconto  Water 
Supply  Co.,  183  U.  S.  216,  46  L.  Ed.  157. 

3.  Libel  for  matters  in  a  pleading. — 
Abbott  V.  Tacoma  Bank  of  Commerce, 
175  U.  S.  409,  44  L.   Ed.  217. 

4.  Boundaries. — In  the  case  of  Doe  v. 
Mobile.  9  How.  451,  13  L.  Ed.  212,  it  was 
held  that  under  the  twenty-fifth  section  of 
the  judiciary  act  this  court  "cannot  re- 
examine the  decision  of  a  state  court  upon 
a  question  of  boundary  between  coter- 
minous proprietors  of  lands  depending 
upon  local  laws."  Bushnell  v.  Crooke 
Min.  Co.,  148  U.  S.  682,  689,  37  L.  Ed.  610. 

5.  Recovery  of  taxes. — Where  an  action 
was  commenced  in  the  state  court  of  Iowa 
to  recover  taxes  that  had  been  paid  by  the 
Iowa  Homestead  Company,  while  in  pos- 
se'^sion  and  occupancy  of  land  in  Iowa, 
which  was  afterwards  adjudged  to  have 
been  at  that  time  property  of  the  de- 
fendant, and  the  judgment  in  the  trial 
court  was  for  the  plaintiff,  which  was  af- 
firmed by  the  supreme  court  of  the  state 
on  appeal,  the  writ  of  error  sued  out  to 
this  court  by  the  defendant  below  was  dis- 
inissed  because  no  federal  question  was 
involved.  Wells  v.  Goodnow,  150  U.  S. 
84,  37  L-  Ed.  1007,  following  Chapman  v. 
Goodnow,   123   U.   S.   540,   31   L.   Ed.  235. 

Recovery  of  voluntary  payments. — In 
Young  V.  Steamship  Co.,  105  U.  S.  41,  26 
L.  Ed.  966,  it  was  held,  in  an  opinion  de- 
livered by  Mr.  Justice  Field,  that  the 
question  whether  fees  exacted  in  violation 
of  a  statute  of  the  United  States,  and  paid 
without  objection,  could  be  recovered 
back,  was  not  a  federal  question,  the  de- 
cision of  which  by  the  highest  court  of 
a  state  could  be  reviewed  by  this  court  on 
writ  of  error.  Rutland  R.  C'-'.  f.  Central 
Vermont  R.  Co.,  159  U.  S.  360,  641,  40  L- 
Ed.  284. 

6.  Personal  judgments. — Where  an  ac- 
tion is  brought  against  a  receiver  of  a  rail- 
road company  to  recover  for  injuries  sus- 
tained during  the  receivership,  the  conten- 
tion of  the  railway  company  that  a  personal 
judgment  could  not  be  rendered  against 
it  because  it  was  not  liable  for 
acts  of  negligence  committed  by  the  re- 
ceiver, is  a  question  of  general  law  for  the 
state  court  to  pass  upon.  Texas,  etc., 
R.  Co.  V.  Johnson,  151  U.  S.  81,  38  L. 
Ed.  81. 

7.  Chattel  mortgages. — Whether  and  to 
what  extent   a  chattel  mortgage  covering 


APPEAL  AND  ERROR. 


729 


lion  whether  a  receiver  can  be  vaHdl}-  appointed  for  an  entire  railroad  at  the 
suit  of  a  creditor  holding  bonds  secured  by  a  mortgage  whose  lien  is  restricted 
to  a  part  only  of  the  road,*  to  the  question  whether  the  evidence  is  sufficient  to 
justify  a  verdict,^  to  the  question  whether  one  holding  the  office  of  receiver  can 
be  held  responsible  for  the  acts  of  his  predecessor/"^*  to  the  question  whether  as 
between  vendor  and  vendee  there  can  be  a  sale  and  delivery  so  as  to  pass  title 
to  the  buyer,!  1  where  the  question  is  as  to  the  right  of  a  holder  of  a  banker's 
check, 12  to  the  decision  of  a  state  court  holding  a  contract  valid  or  void  when 
made  upon  general  principles  of  law,!^  to  a  decision  as  to  the  sufficiency  of  no- 


after  acquired  property  is  valid,  is  a  local 
question,  and  the  decisions  of  the  state 
court  will  be  followed  by  this  court  in 
such  case.  Dooley  z\  Pease,  180  U.  S.  126, 
45  L-  Ed.  457;  Thompson  v.  Fairbanks, 
196  U.  S.  516,  522,  49  L.   Ed.  577. 

Right  of  selection  as  between  mort- 
gager and  mortgagee. — -"Whether  the  right 
of  selection  recognized  as  between  mort- 
gagor and  mortgagee  is  also  applicable  as 
between  a  purchaser  upon  execution  and 
the  mortgagee,  is  not  a  federal  question, 
if  no  discrimination  be  made  against  ex- 
ecutions from  federal  courts.  This  was 
a  question  either  of  local  law  or  of  gen- 
eral law.  If  of  local  law,  of  course  the 
decision  of  the  supreme  court  of  Texas 
is  binding  upon  us.  If  of  general  law,  as 
it  involves  no  federal  element,  it  is  equally 
binding  in  this  proceeding,  since  only  fed- 
eral rights  are  capable  of  being  raised 
upon  writs  of  error  to  state  courts.  Con- 
ceding that,  if  the  question  had  arisen  on 
appeal  from  a  circuit  court  of  the  United 
States,  we  might  have  come  to  a  different 
conclusion,  it  bj"  no  means  follows  that 
we  can  do  so  upon  a  writ  of  error  to  a 
state  court,  whose  opinion  upon  a  ques- 
tion of  general  law  is  not  reviewable 
here."  Avery  z:  Popper,  179  U.  S.  305, 
315.  45   L.    Ed.   203. 

8.  Appointment  of  receiver. — Whether 
a  receiver  can  be  validly  appointed  for  an 
entire  railroad  at  the  suit  of  a  creditor 
holding  bonds  secured  by  a  mortgage 
whose  lien  is  restricted  to  part  only  of 
the  road,  is  a  question  for  the  state  court 
to  decide,  and  we  cannot  be  called  upon 
to  answer  it.  St.  Louis,  etc.,  R.  Co.  v. 
Merriam,  156  U.  S.  478,  484.  39  L.  Ed.  502. 

9.  The  question  whether  the  evidence 
in  the  case  was  sufficient  to  justify  the 
verdict  of  the  jury,  and  the  question 
whether  the  constitution  of  the  state  was 
complied  with  or  not  in  the  proceedings 
on  the  trial  which  are  challenged,  are  not 
federal  questions  which  this  court  can  re- 
view. Baldwin  v.  Kansas,  129  U.  S.  52, 
57,  32   L.    Ed.   640. 

10.  Whether  one  person  holding  the 
office  of  receiver  can  be  held  responsible 
for  the  acts  of  his  predecessor  in  the  same 
office,  is  not  a  federal  question,  but  a 
question  of  general  law.  McNulta  v.. 
Lochridge,  141  U.  S.  327,  35  L.   Ed.  796. 

11.  Sales. — Where  the  court  below  de- 
cides that  as  between  vendor  and  vendee 


there  could  be  a  sale  and  delivery  of  cot- 
ton so  as  to  pass  title  to  the  vendee  be- 
fore the  payment  of  the  government  tax 
assessed  upon  the  cotton,  under  the  act 
of  July  1,  1862,  12  Stat,  at  Large  465,  the 
writ  of  error  will  be  dismissed  for  want 
of  jurisdiction,  because  the  record  pre- 
sents no  federal  question.  This  is  a  case 
of  general  law  only.  The  plaintiff  in  error 
claims  no  right  or  title  under  the  tax 
laws  or  treasury  regulations.  The  court 
was  not  called  upon  to  decide  whether  the 
lien  of  the  tax  was  valid  or  invalid,  but 
only  whether,  so  long  as  the  lien  existed, 
the  ownership  of  the  property  subject  to 
the  lien  could  be  transferred.  Carbon  v. 
Ober,  131  U.  S.  appx.  clx,  25  L.  Ed. 
1157,  following  Long  v.  Converse,  91  U. 
S.    105,    112,   23    L.    Ed.   233. 

12.  Rights  of  holder  of  banker's  check. 
— \\'here  the  whole  controversy  in  the 
state  court  is  as  to  the  right  of  a  holder 
of  a  banker's  check  to  recover  against 
a  bank  having  funds  of  the  drawer  when 
presentation  has  been  duly  made  and  pay- 
ment demanded,  the  writ  of  error  will  be 
dismissed,  because  the  record  does  not 
show  that  some  title,  right,  privilege  or 
immunity  under  the  constitution  or  laws 
of  the  United  States  was  set  up  in  the 
pleading.  Boatmen's  Savings  Bank  v. 
State  Savings  Ass'n,  114  U.  S.  265,  29  L. 
Ed.    174. 

13.  Validity  of  contracts. — Bethell  v. 
Demaret,  10  Wall.  537.  19  L.  Ed.  1007; 
West  Tenn.  Bank  v.  Citizens'  Bank,  13 
Wall.  432,  20  L.  Ed.  514;  Delmas  v.  Mer- 
chants' Ins.  Co.,  14  Wall.  661,  20 
L.  Ed.  757,  in  which  it  was  ex- 
pressly held  that  this  court  cannot 
review  the  decision  of  a  state  court 
holding  a  contract  valid  or  void  when 
"made  upon  the  general  principles  by 
which  courts  determine  whether  a  con- 
sideration is  good  or  bad  on  principles  of 
public  policy."  Tarver  v.  Ke.ach,  15  Wall. 
67,   21   L.    Ed.   82;   Rockhold  v.    Rockhold, 

92  U.  S.  129,  23  L.  Ed.  507;  New  York 
Life  Ins.  Co.  r.  Hendren,  92  U.  S.  286,  23 
L.    Ed.    709;    United    States   v.   Thompson, 

93  U.  S.  586,  23  L.  Ed.  982;  Bank  v.  Mc- 
Veigh, 98  U.  S.  332.  25  L.  Ed.  110;  Bug- 
ger V.  Bocock,  104  U.  S.  596.  601,  26  L.  Ed. 
846;  Allen  v.  McVeigh,  107  U.  S.  433,  27 
L.  Ed.  572;  San  Francisco  v.  Scott,  111  U. 
S.  768.  28  L.  Ed.  593;  Grame  v.  Mut'^al  Ins. 
Co.,  112  U.  S.  273,  28  L.  Ed.  716;  Chicago, 


730 


APPEAL  AXD  ERROR. 


tice  oi  dishonor,^*  to  the  validity  of  a  foreign  divorce, ^^  to  the  question  whether 
cross-examination  must  be  confined  to  matters  pertinent  to  the  direct  examina- 
tion,^** to  the  question  whether  an  insurance  company  is  hable  on  its  poHcies  of 
insurance,^"  to  the  decision  of  a  state  court  as  to  what  shall  be  deemed  a  fraudu- 
lent conveyance, ^^  to  the  decision  of  a  state  court  as  to  the  authority  of  national 
bank  officers, ^^  to  decisions  dealing  with  the  general  law  of  negligence,^  to  a 


etc.,  R.  Co.  V.  Wiggins  Ferry  Co.,  119  U. 
S.    61.5.    624,   30    L.    Ed.    519. 

Validity  of  Confederate  transactions. — 
The  decision  of  a  state  court  which  sim- 
ply held  that  promissory  notes,  given  for 
the  loan  of  "Confederate  currency,"  to- 
gether with  a  mortgage  to  secure  the 
notes,  were  nullities,  on  the  ground  that 
the  consideration  was  illegal,  according 
to  the  law  of  the  state,  at  the  time  the 
contract  was  entered  into,  is  not  a  deci- 
sion repugnant  to  the  constitution. 
Bethell  v.  Demaret,  10  Wall.  537,  19  L. 
Ed.  1007,  reafifirmed  in  West  Tenn.  Bank 
V.  Citizens"  Bank,  13  Wall.  432.  433,  20 
L.  Ed.  514;  Hernan  v.  Texas,  198  U.  S. 
679.    49    L.    Ed.    1171. 

Stipulation  c-n  appeal — Sureties  on  bail 
bonds. — The  ruling  by  the  highest  court 
of  a  state  that  a  stipulation  given  by  the 
plaintiff  on  an  appeal  to  that  court  in  a 
prior  action  brought  to  foreclose  the 
mortgage  does  not  operate  to  prevent  a 
recovery,  and  that  it  is  not  a  part  of  the 
public  policy  of  the  state  to  insist  upon 
personal  liability  of  sureties  on  bail  bonds 
and  forbid  bail  to  become  indemnified, 
and  therefore  a  bond  and  mortgage  given 
to  indemnify  bail  in  a  criminal  case  are 
not  void  because  contrary  to  public  pol- 
icy, involve  no  federal  question.  Nelson 
V.  Moloney,  174  U.  S.  164,  43  L.  Ed.  934. 

14.  Sufficiency  of  notice  of  dishonor.^ 
The  decision  of  a  state  court  as  to  the 
sufficiency  of  a  notice  of  dishonor  to  an 
indorser  resting  within  the  Confederate 
lines  during  the  war,  presents  no  federal 
question  reviewable  by  this  court.  Allen 
V.  McVeigh,  107_U.  S.  433.  27  L.  Ed.  572. 

Constitutionality  of  ordinance  of  seces- 
sion.— A  federal  question  is  not  presented 
by  the  decision  of  the  supreme  court  of 
appeals  of  the  state  of  Virginia,  that  by 
the  general  principles  of  commercial  law, 
if,  during  the  late  civil  war,  an  indorser 
of  a  promissory  note  left  his  residence  in 
loyal  territory  and  went  to  remain  perma- 
nently within  the  Confederate  lines  before 
the  note  matured,  a  notice  of  protest  left 
at  his  former  residence  was  not  sufficient 
to  charge  him,  if  his  change  of  residence 
was  known,  or  by  the  exercise  of  reason- 
able diligence  might  have  been  known,  to 
the  holder  of  the  note  when  it  matured. 
Bank  v.  McVeigh,  98  U.  S.  332,  25  L.  Ed. 
110. 

15.  Validity  of  foreign  divorce. — A  de- 
eree  of  a  state  court  in  favor  of  the  valid- 
ity of  the  decree  of  a  foreign  court  an- 
nulling a  marriage,  presents  no  question 
of  which  we  can  take  cognizance  under  § 
709  of  the  Revised  Statutes.     Roth  v.  Eh- 


man,  107  U.  S.  319,  27  L.  Ed.  499,  cited 
and  aproved  in  Mutual  Life  Ins.  Co.  v. 
McGrew.  188  U.  S.  291,  312,  47  L.  Ed.  480. 

16.  Extent      of      cross-examination 

Whether  a  cross-exaniination  must  be  con- 
fined to  matters  pertinent  to  the  testi- 
mony in  chief,  or  may  be  extended  to  the 
matters  in  issue,  is  certainly  a  question  of 
state  law  as  administered  in  the  courts  of 
the  state,  and  not  of  federal  law.  Spies  v. 
Illinois.  123  U.  S.  131,  180,  31  L.   Ed.  80. 

17.  The  question  whether  an  insurance 
company  was  liable  on  its  policies  for 
losses  resulting  from  fire  purposely  set  by 
the  Confederate  authorities  within  the 
meaning  of  a  clause  in  the  policy  provid- 
ing against  fire  resulting  "from  civil  com- 
motion, insurrections,  or  the  invasion  of 
a  foreign  enemy,"  is  a  question  of  gen- 
eral, not  federal  law  and  is  not  reviewable 
here  upon  a  writ  of  error  to  the  state 
court.  Grame  v.  Mutual  Ins.  Co.,  112  U. 
S.   273,  28   L.    Ed.   716. 

18.  The  decision  of  the  state  court  as  to 
what  should  be  deemed  a  fraudulent  con- 
veyance does  not  present  any  federal 
question,  nor  does  the  application  by  the 
court  of  the  evidence  in  reaching  that 
decision  raise  one.  McKenna  v.  Simpson, 
129  U.  S.  506.  512.  32  L.  Ed.  771;  Thomp- 
son V.  Fairbanks,  196  U.  S.  516,  49  L.  Ed. 
577. 

19.  False  assumption  of  power  as  na- 
tional bank. — The  judgment  of  the  high- 
est court  of  a  state  holding  that  by  rea- 
son of  a  false  assumption  of  corporate 
authority,  the  officers,  directors  and  share- 
holders of  a  national  bank  which  had  no 
authority  to  transact  business,  become 
liable  as  partners  for  contracts  assumed 
in  the  corporate  name,  presents  no  fed- 
eral question,  but  is  a  question  of  gen- 
eral law,  and  not  federal  law,  and  hence 
a  writ  of  error  will  not  lie  to  review  such 
decision.  Seeberger  v.  McCormick,  175 
U.   S.   274.   44   L.    Ed.    161. 

20.  Law  of  negligence. — A  writ  of  error 
will  not  lie  from  this  court  to  a  state 
court  to  review  its  ruling  in  an  action 
brought  under  a  statute  of  the  state,  to 
recover  damages  for  wrongful  death,  upon 
the  ground  that  it  resulted  from  the  care- 
lessness and  negligence  of  the  defendant 
in  navigating  a  steamboat,  where  the 
plaintiff  in  error  simply  set  up  the  defense 
of  contributory  negligence  on  the  part  of 
the  deceased,  but  did  not  set  up  any 
claim  of  right,  privilege  or  immunity 
under  the  navigation  laws  of  the  United 
States.  Staten  Island  R.  Co.  v.  Lambert, 
131  U.  S.  appx.  ccxi,  24  L.  Ed.  615. 

An  action   upon  an   insurance   policy  to 


APPEAL  AND  ERROR. 


731 


decision  as  to  when  a  judge  may  be  held  Hable  for  acts  done  in  his  judicial  ca- 
pacity,^i  and  to  many  other  questions  instances  of  which  will  be  found  set  out 
in  the  notes. 22 


recover  for  the  loss  of  a  steamboat  by 
fire,  the  defense  to  which  action  is  that 
the  fire  was  caused  by  the  gross  negH- 
gence  of  the  plaintiff  and  the  use  of  tur- 
pentine, on  board  as  freight,  to  increase 
steam  while  racing  with  another  boat, 
presents  no  federal  question,  although  an 
act  of  congress  prohibited  the  transporta- 
tion of  turpentine  as  freight  on  steam- 
boats carrying  passengers,  except  in  cases 
of  special  license  for  that  purpose.  The 
plaintiff  in  error  claimed  below  no  title, 
right,  privilege  or  immunity  under  the 
constitution,  laws  or  treaties  of  the  United 
States,  and  no  such  title,  right,  privilege 
or  immunity  has  been  denied  him.  Marsh 
V.  Citizens'  Ins.  Co.,  131  U.  S.  appx. 
ccxiii,  25  L.  Ed.  9. 

21.  Liability  of  judge  in  judicial  capac- 
ity.— The  decision  of  a  state  court,  in  an 
action  of  tort  against  certain  persons  con- 
stituting a  court  of  commissioners  of 
Alabama  to  recover  damages  for  being 
prevented  from  acting  as  an  attorney  and 
chancellor  in  or  before  the  court,  that 
the  defendant  was  not  liable  in  damages, 
because  in  concurring  with  the  order  com- 
plained of,  he  acted  in  his  judicial  capac- 
ity, does  not  of  itself  iiwolve  a  federal 
question.  Manning  v.  French,  133  U.  S. 
186,  33  L.  Ed.  583,  citing  Lange  v.  Bene- 
dict, 99  U.  S.  68,  25  L.  Ed.  469;  Spies  v. 
Illinois,  123  U.  S.  131.  31  L-  Ed.  80;  Chap- 
pell  V.  Bradshaw.  128  U.  S.  132,  32  L.  Ed. 
369. 

This  court  having  in  Ex  parte  Lange,  IS 
Wall.  163,  21  L.  Ed.  872,  held  that  the 
judgment  against  him,  rendered  Nov.  8. 
1673,  was  not  authorized  by  law,  he 
brought  an  action  against  the  judge  who 
pronounced  it.  The  court  below  decided 
that  even  though  the  judgment  was  un- 
authorized, the  defendant  having,  in  pro- 
nouncing it,  acted,  in  his  judicial  capacity, 
and  it  not  b^ing  so  entirely  in  excess  of  his 
jurisdiction  as  to  make  it  the  arbitrary 
and  unlawful  act  of  a  private  person,  was 
not  liable  in  damages.  Held,  that  such 
decision  does  not  present  a  federal  ques- 
tion. Cited  in  Lange  v.  Benedict,  99  U. 
S.   68.   25   L.    Ed.   469. 

22.  Assessments  under  drainage  laws. — 
Where  upon  a  writ  of  error  to  the  su- 
preme court  of  Louisiana,  the  record 
showed  that  the  defendants  in  error 
sought  to  enjoin  the  collection  of  a  judg- 
ment against  their  property  to  enforce  an 
assessment  under  the  drainage  laws  of 
Louisiana,  it  was  held  that  no  federal 
question  was  involved.  Crossley  v.  \ew 
Orleans,    108   U.   S.    105.   27   L.    Ed.   667. 

Mandamus  to  compel  city  to  pay  debt. 
— Where  a  party  seeks  a  writ  of  manda- 
mus from  a  state  court  to  compel  a  city 
government  of  which  he   is   a  creditor   to 


apply  to  the  payment  of  his  debt  the  pro- 
ceeds of  a  proposed  sale  of  city  property, 
and  to  exhaust  its  powers  of  taxation,  and 
contiriue  to  do  so  until  the  relator's  debt 
is  paid,  and  the  state  court  denies  the 
prayer  as  to  the  application  of  the  pro- 
ceeds of  sale  of  the  property,  on  the 
ground  that  the  state  laws  require  it  to 
be  applied  to  the  retirement  of  other  debts 
of  the  city,  and  grants  the  writ  as  to  the 
residue  of  the  prayer,  no  federal  question 
arises.  Louisiana  z:  New  Orleans,  108  U. 
S.   568,   27   L.    Ed.   823. 

Instructions. — The  same  is  true  of 
an  instruction  that  the  jury  wer-e 
to  be  governed  by  the  law  as  given 
them  in  charge  by  the  court,  and 
of  the  refusal  to  allow  counsel  to  read  in 
his  argument  parts  of  the  opinion  of  the 
supreme  court  of  the  state,  in  a  case  de- 
cided by  that  court,  which,  as  was  claimed, 
stated  correctly  the  legal  principles  bear- 
ing upon  a  part  of  the  defense.  No  refer- 
ence was  made  to  any  provision  of 
the  constitution  or  laws  of  the  United 
States  which  gave  to  the  defendant  any 
rights  in  this  behalf.  Brooks  v.  Missouri, 
124   U.    S.   394,   396,   31   L.    Ed.   454. 

Construction  of  contract. — The  question 
of  the  proper  construction  of  a  contract 
nonfederal  in  its  nature,  is  not  subject 
to  review.  Commercial  Pub.  Co.  v.  Beck- 
with,    188   U.    S.    567.    571.    47    L.    Ed.    598. 

Liability  for  assessing  shares  of  na- 
tional bank  stock. — The  decision  of  the 
court  of  appeals  of  the  state  of  New  York, 
that,  in  the  absence  of  fraud  or  inten- 
tional wrong,  the  members  of  the  board 
of  assessors  for  the  city  of  Albany  are 
not  personally  liable  in  damages  to  a 
party  for  any  error  they  commit  in  offi- 
cially assessing  his  shares  of  national 
bank  stock,  does  not  present  a  federal 
question,  and  cannot  be  reviewed  here.  It 
is  a  question  of  general  municipal  law,  to 
be  governed  either  by  the  common  law 
or  the  statute  law  of  the  state.  Williams 
V.  Weaver,  lOO  U.   S.  547,  25   L.   Ed.  708. 

A  proceeding  by  quo  warranto  to  ex- 
clude the  plaintiffs  in  error,  from  the 
further  use  of  the  franchises  of  a  lottery, 
on  the  ground  that  the  event  had  hap- 
pened which  fixed  the  period  for  the 
termination  of  the  grant  under  which  they 
were  acting,  presents  no  federal  ques- 
tion. France  v.  Missouri,  154  U.  S.,  appx. 
667.  26  L.  Ed.  86. 

The  question  as  to  whether  a  covenant 
of  warranty  of  land  has  been  broken,  does 
not  present  the  question  of  federal  law 
which  this  court  can  review  in  a  judg- 
ment of  a  state  court.  Kansas  Pacific  R. 
Co.  V.  Dunmeyer,  113  U.  S.  629,  28  L.  Ed. 
1122. 

Forfeitures  of  corporate  charter. — It  has 


APPEAL  AND  ERROR. 


Questions  Respecting  the  Remedy  and  Admissibility  of  Evidence. — 

The  general  rule  is  that  all  matters  respecting  the  remedy  and  admissibility  of 
evidence  depend  upon  the  law  of  the  state  where  the  suit  is  brought.^s 

Contempt  of  Court. — What  constitutes  contempt,  as  well  as  the  time  during 
w^hich  it  may  be  committed,  is  a  matter  of  local  law.^^  An  objection  that  the 
information  in  criminal  contempt  was  not  supported  by  an  affidavit  until  after 
it  was  filed  cannot  be  considered  by  this  court  upon  a  writ  of  error  to  review  a 
judgment  of  the  state  court  upon  an  information  for  contempt,  because  this  is 
a  question  of  local  law.^^ 

cc.  Ad mimsf ration  of  the  Common  Lazu. — The  highest  court  of  a  state  may 
administer  the  common-law  according  to  its  understanding  and  interpretation  of 
it,  being  only  amenable  to  review  in  the  federal  supreme  court  where  some  right, 


been  held  that  a  decision  by  the  highest 
court  in  Tennessee  that  under  the  provi- 
sions of  their  statutes  a  failure  of  the 
company  to  complete  its  road  within  the 
time  limited  is  such  a  substantial  non- 
compliance with  the  requirements  and 
conditions  of  the  charter  as  subjects  the 
company  to  a  decree  of  forfeiture,  is  a 
question  of  state  law  alone,  as  to  which 
the  judgment  of  the  state  court  is  final. 
Nonconnah  Turnpike  v.  Tennessee,  131  U. 
S.,  appx.   clviii,  24  L.   Ed.  368. 

Incidents  of  lease. — A  decision  by  a  state 
court  as  to  what  are  the  incidents  of  a 
lease  is  not  reviewable  here,  upon  a  writ 
of  error  to  a  state  court  on  the  ground 
that  a  subsequent  contract  of  a  state  had 
impaired  the  obligation  of  a  contract. 
Columbia  Water  Power  Co.  v.  Columbia 
Street  R.  Co.,  172  U.  S.  475,  43  L.  Ed.  521. 

23.  Northern  Pacific  R.  Co.  v.  Babcock, 
154  U.  S.  190,  38  L.  Ed.  958;  Wilcox  v. 
Hunt,  13  Pet.  378,  10  L.  Ed.  209;  Pritchard 
V.  Norton,  106  U.  S.  124,  27  L.  Ed.  104; 
Bank  of  United  States  v.  Donnally,  8  Pet. 
361,  8  L.  Ed.  974;  Knights  of  Pythias  v. 
Meyer,  198  U.  S.  508,  517,  49  L.  Ed.  1146; 
Lewis  V.  Campaw,  3  Wall.  106,  18  L.  Ed. 
211. 

Rulings  of  a  state  court  as  to  the 
admission  of  an  award  or  of  a  receipt  in 
evidence  involve  the  application  either  of 
the  general  or  the  local  law  of  evidence, 
and  as  such  furnish  no  ground  for  our 
interposition.  Sherman  v.  Grinnell,  144 
U.  S.  198,  202,  36  L.  Ed.  403,  citing  New 
Orleans  v.  New  Orleans  Water  Works 
Co.,  142  U.  S.  86,  79,  35  L.  Ed.  946;  Ham- 
mond V.  Johnston,  142  U.  S.  73,  35  L.  Ed. 
941. 

This  court  has  no  jurisdiction  to  review 
the  ruling  of  the  highest  court  of  a  state, 
in  a  suit  to  remove  cloud  from  plaintiff's 
title,  excluding  from  the  evidence  a  letter 
written  by  the  secretary  of  the  interior 
to  the  commissioner  of  the  general  land 
office,  expressing  an  opinion  as  to  the 
character  of  land  lying  between  a  meander 
line  and  the  main  course  of  a  river,  writ- 
ten when  there  was  no  contest  before  the 
department  relating  to  the  matter,  on  the 
ground  that  it  was  res  inter  alios  acta. 
This  presents  no  federal  question.     Chap- 


man, etc.,  Land  Co.  v.  Bigelow,  206  U.  S. 
41,  51   L.   Ed.  953. 

The  question  whether  a  statutory  rem- 
edy is  cumulative  or  exclusive,  is  for  the 
state  court  to  determine,  and  its  action  in 
that  regard  raises  no  federal  question  for 
our  consideration.  Northern  Pacific  R. 
Co.  V.  Patterson,  154  U.  S.  130,  38  L-  Ed. 
934. 

"It  is  contended,  on  the  other  hand,  that 
where  taxes  are  levied  upon  property 
which  is  by  law  exempt  from  taxation,  the 
statutory  remedy  by  application  to  a 
board  of  review  is  only  cumulative  an4 
that  the  taxpayer  may  at  his  election  seek 
his  remedy  by  injunction  in  the  first  in- 
stance. But  it  was  for  the  supreme  court 
of  Montana  to  determine  whether  the 
statute  was  exclusive  and  whether  plain- 
tiff came  within  its  terms  or  not,  and  its 
action  in  that  regard  raises  no  federal 
question  for  our  consideration."  North- 
ern Pacific  R.  Co.  V.  Patterson,  154  U.  S. 
130,   133,   38   L.   Ed.  934. 

Form  of  action. — Where  the  state  courts 
have  recognized  the  action  brought  as  a 
proper  one  under  the  laws  of  the  state 
for  the  relief  sought  by  the  plaintiff,  the 
supreme  court  of  the  United  States  has  to 
consider  only  the  controlling  questions  of 
a  federal  nature  presented  by  the  record 
and  decided  by  the  state  court.  An  ob- 
jection that  the  form  of  action  is  not  the 
proper  remedy  will  not  be  considered. 
Scranton  v.  Wheeler,  179  U.  S.  141,  151, 
45  L.  Ed.  126. 

Remedy  legal  or  equitable. — The  ques- 
tion as  to  whether  the  plaintiff's  remedy 
was  at  law  or  in  equity  is  a  matter  de- 
pendent entirely  upon  local  law,  and  in- 
volves no  federal  right  whatever.  Loeber 
V.  Schroeder,  149  U.  S.  580,  585,  37  L.  Ed. 
856. 

The  question  concerning  the  nature  and 
effect  of  a  writ  of  error  in  the  courts  of 
Illinois  would  seem  not  to  be  reviewable 
here,  or,  if  it  were,  we  should  follow  the 
decisions  of  that  court  on  the  subject. 
Jenkins  v.  International  Bank,  106  U.  S. 
571,  572.  27   L.   Ed.   304. 

24.  Patterson  v.  Colorado,  205  U.  S. 
454,   461,   51    L.    Ed.   879. 

25.  Patterson  v.  Colorado,  205  U.  S. 
454,   51   L.   Ed.   879. 


APPEAL  AXD  ERROR. 


733 


litle,  immunity  or  privilege,  the  creation  of  the  federal  power,  has  been  asserted 
and  denied. 26  The  question  what  facts  constitute  a  common-law  marriage  is 
purely  a  local,  and  not  a  federal,  question,  and  wuU  not  sustain  a  writ  of  error 
from  this  court  to  a  state  court. 2^ 

dd.  General  Principles  of  Equity. — Whether  the  plaintiff  in  error  is  entitled 
to  relief  upon  general  principles  of  equitable  jurisdiction  is  not  a  matter  fcr  us 
to  inquire  into,  so  long  as  the  question  does  not  involve  the  constitutional  rights 
of  the  plaintiff. 28 

ec.  Principles  of  Comity. — Whether,  aside  from  the  federal  questions  dis- 
cussed, the  courts  of  one  state  should  permit  an  action  to  be  maintained  upon 
principles  of  comity  between  the  states,  is  a  question  within  the  exclusive  juris- 
diction of  the  state  court. ^^ 

ff.  Res  Adjudicata,  Laches  and  Estoppel. — As  a  general  rule,  questions  of 
res  judicata  and  estoppel  are  not  federal  questions,  but  are  rather  questions  of 
general  law.''"     A  question  of  estoppel  or  quasi  estoppel  does  not  raise  a  federal 


26.  Administration  of  the  common  law. 
— Bethell  v.  Demaret,  10  Wall.  537,  19  L. 
Ed.  1007;  Delmas  v.  Merchants'  Ins.  Co., 
14  WaU.  661,  20  L.  Ed.  757;  New  York 
Ins.  Co.  V.  Hendren.  92  U.  S.  286,  23 
L.  Ed.  709;  United  States  i'.  Thompson, 
93  U.  S.  586.  587,  23  L.  Ed.  982;  Pennsyl- 
vania R.  Co.  V.  Hughes,  191  U.  S.  477, 
486,  48  L.  Ed.  288;  West  v.  Louisiana.  194 
U.  S.  258,  261,  48  L.  Ed.  965;  Murdock  v. 
Memphis,  20  Wall.  590.  626.  22  L.  Ed. 
42«. 

At  the  trial  it  was  conceded  that  the 
law  of  the  state  where  the  contract  was 
made  permitted  the  making  of  a  contract 
limiting  the  liabilitj^  of  a  carrier  for  neg- 
ligence to  an  agreed  valuation  in  consid- 
eration of  a  lower  freight  rate  for  car- 
riage. The  highest  court  of  a  state  where 
the  trial  was  had  refused  to  apply  the 
law  of  the  place  of  contract  to  a  con- 
troversy respecting  the  right  of  a  carrier 
to  so  limit  its  liability.  It  was  held  that 
this  decision  ©f  the  state  court  did  not 
present  a  federal  question  which  will  sus- 
tain jurisdiction  of  a  writ  of  error  from 
the  supreme  court  of  the  United  States 
to  the  court.  Pennsylvania  R.  Co. 
V.   Hughes,   191   U.    S.   477.   48    L.    Ed.    268. 

27.  Keen  v.  Keen,  201  U.  S.  319,  50  L. 
Ed.  772. 

28.  General  principles  of  equity. — 
Skaneateles  Waterworks  Co.  v.  Skane- 
atele=.  184  U.  S.  354.  46  L.  Ed.  585. 

Liability  of  trustee  to  cestui  que  trust. 
— This  court  has  not  jurisdictii  n  to  re- 
examine the  decree  of  a  state  court  af- 
firming the  nonliability  of  a  trustee  to  his 
cestui  que  trust  for  the  loss  of  a  fund  not 
occasioned  by  his  laches  or  bad  faith,  but 
by  his  payment  of  the  same  into  the  hatids 
of  the  receiver  of  the  Confederate  states 
i«  ©bedience  to  a  military  order  which 
he  could  not  resist.  This  is  not  a  federal 
question,  but  one  of  general  law  only. 
Rockh  Id  V.  Rockhold,  92  U.  S.  129,  23 
L.  Ed.  507,  citing  Bethell  v.  Demaret.  10 
Wall.  537.  19  L.  Ed.  1007;  Delmas  v.  Mer- 
chants' Ins.  Co..  14  Wall.  661.  20  L.  Ed. 
757;  Tarvcr  v.  Keach,  15  Wall.  67.  21  L. 
E4.  82. 


What  amounts  to  a  trust.— Where  a 
complainant  ali"ging  himself  to  be  a  bona 
fide  purchaser,  and  setting  out  a  case  in 
the  highest  state  court  for  equitable  re- 
lief against  a  sale  to  other  parties  which 
an  owner  of  land  had  undertaken  to  make, 
alleged  that  the  party  in  making  such 
second  sale  had  violated  an  act  of  con- 
gress which  made  such  sale  void,  and 
that  the  purchaser  knew  this:  and  alleged 
also  that  the  sale  was  made  through  fraud 
and  imposition  on  the  vendor,  with  a 
prayer  that  the  purchaser  at  such  second 
sale  might  be  held  a  trustee  for  the  com- 
plainant— if.  in  such  case,  the  court,  hold- 
ing that  there  was  no  fraud  and  no  trust 
proved,  dismiss  the  bill  in  consequence  of 
that  want  of  proof,  and  consequently  for 
want  of  equitable  jurisdiction,  the  fact 
that  it  saj-s:  "The  most  that  can  be  said 
is  that  the  transaction  was  in  violation  of 
an  act  of  congress,  but  that  would  not 
give  a  court  of  chancery  jurisdiction  to 
hold  the  second  purchaser  a  trustee  and 
make  him  accountalDle  as  such,'"  does  not 
show  that  there  has  been  drawn  in  ques- 
tion t'^e  construction  of  a  statut°  of  the 
United  States,  and  that  the  decision  has 
been  against  the  title  or  right  set  up  or 
claimed  by  the  complainant  under  such 
statute.  The  case  rested  on  the  fact  of  a 
trust  proved,  and  on  the  extent  of  the 
state  court's  equitable  jurisdiction;  mat- 
ters not  the  subject  of  review  under  § 
709  of  the  Revised  Statutes,  the  25th  sec- 
tion of  the  judiciary  act  of  1789.  The 
case,  which  was  between  the  same  persons 
as  those  mentioned  in  Smith  i\  Ad^it,  16 
Wall.  185.  21  L.  Ed.  310,  held  to  be  un- 
distinguishable  from  that  one.  Smith  zk 
Adsit,  23  Wall.  368.  22  L.  Ed.  114. 

29.  Principles  of  comity. — Finney  v. 
Guy.  189  U.  S.  335.  47  L.  Ed.  839;  .Mien  v. 
Alleghany  Co..  196  U.  S.  458.  49  L.  Ed. 
551. 

30.  Res  adjiKiicata,  laches  and  estoppel. 
— Beals  <■.  Cone.  188  U.  S.  184.  47  L.  Ed. 
435,  reaffirmed  in  Stuart  v.  Hauser.  203 
U.  S.  585.  51  L.  Ed.  328;  Mobile  Trans- 
portation Co.  V.  Mobile,  187  U.  S.  479.  47 
L.  Ed.  266;  Pierce  v.  Somerset  R.  Co.,   I7l 


"34 


APPEAL  AND  ERROR. 


question. 31  Wl'ierd  it  is  plain  that  the  decision  in  the  court  below,  adverse  to 
plaintiffs  in  error,  was  made  upon  the  principles  of  laches  and  estoppel,  and  that 
there  was  no  decision  against  a  right,  title,  privilege  or  immunity,  claimed  un- 
der the  constitution,  or  any  statute  of,  or  authority  exercised  under,  the  United 
States,  no  federal  question  is  involved,  and  this  court  is  without  jurisdiction.'^^ 

Therefore,  the  decision  of  the  snpreme   court  of  a  state  as  to  the 
weight  to  be  given  a  former  judgment  rendered  by  it  is  not  reviewable  by 


U.  S.  641,  648,  43  L.  Ed.  316;  Pittsburgh, 
etc.,  R.  Co.  V.  Cleveland  Min.  Co.,  178  U. 
S.  270,  44  L.  Ed.  1065;  O'Conor  v.  Texas, 
'202  U.  S.  501,  50  L.  Ed.  1126;  Gillis  v. 
Stinchfield,  159  U.  S.  658,  40  L.  Ed.  295; 
Phoenix  Ins.  Co.  v.  Tennessee,  161  U.  S. 
174,  40  L-  Ed.  660;  Schaefer  v.  Werling, 
188  U.  S.  516,  519,  47  L-  Ed.  570;  Michigan 
V.  Flint,  etc.,  R.  Co.,  152  U.  S.  363,  38  L- 
Ed.  478;  Adams  County  v.  Burlington, 
etc.,  R.  Co.,  1\%  U.  S.  123,  28  L.  Ed.  678; 
Israel  v.  Arthar,  152  U.  S.  355,  38  L.  Ed. 
474. 

Where  the  decision  of  the  state  court 
was  that  the  grantor  of  a  mining  claim 
was  estopped,  under  the  law  of  California, 
from  claiming  priority  of  title  to  the 
space  of  vein-intersection  by  reason  of  the 
location  whioh  he  had  made  after  the 
execution  of  the  deed,  but  before  the  lo- 
cation by  the  grantee  of  the  ground 
conveyed  to  him,  it  was  held  that  this  was 
an  independent  ground  broad  enou'Th  to 
maintain  the  judgment,  and  therefore,  ac- 
cording to  well  settled  principles  the  writ 
of  error  must  be  dismissed.  Gillis  v. 
Stinchfield,  159  U.  S.  658.  40  L.  Ed.  295, 
citmg  Eustis  v.  Bolles,  150  U.  S.  361,  37 
L.  Ed.  1111;  Rutland  R.  Co.  v.  Central 
Vermont  R.  Co.,  159  U.  S.  360,  40  L.  Ed. 
284;  Speed  v.  McCarthy,  181  U.  S.  269, 
275,  45  L.  Ed.  855;  Pittsburgh,  etc..  R.  Co. 
V.  Cleveland  Min.  Co.,  178  U.  S.  270, 
44  L.  Ed.  1065.  See  Carotbers  v.  Mayer, 
164  U.   S.  385,  41  L.  Ed.   453. 

If  the  supreme  court  of  the  state  affirms 
the  decree  of  the  trial  court  primarily  on 
the  groitnd  of  laches,  and  if  this  be  an 
independent  ground,  involving  no  ques- 
tion under  the  federal  statutes,  the  deci- 
sion of  the  supreme  court  must  be  sus- 
triined  and  the  writ  of  error  dismissed. 
Eustis  V.  Bolles,  150  U.  S.  361,  37  L.  Ed. 
nil;  Moran  v.  Horsky,  178  U.  S.  205,  207, 
44  L.  Ed.   1038. 

The  sufficiency  of  a  defense  of  a  former 
adjudication  or  res  adjudicata  set  up  in  a 
state  court  is  a  question  of  general  law 
as  to  which  the  decision  of  the  state 
court  is  not  reviewable  here.  For  ex- 
ample, the  question  whether  an  equitable 
title  could  be  set  up  in  bar  of  the  action 
at  law,  and  the  same  is  true  of  the  ques- 
tion whether  the  pleadings  in  the  former 
action  were  such  as  to  present  the  equi- 
table defense  in  proper  form  for  final  ad- 
judication. Chouteau  v.  Gibson,  111  U.  S. 
200,  28  L.  Ed.  400;  California  v.  Holladay, 
159  U.  S.  415,  40  L.  Ed.  262;  San  Fran- 
cisco V.  Itsell,  133  U.  S.  65,  33  L.  Ed.  570; 


Beatty  v.  Benton,  135  U.  S.  244,  34  L.  Ed. 
124;  Eustis  v.  Bolles,  150  U.  S.  361,  37  L. 
Ed.  1111;  Hoadley  v.  San  Francisco,  94 
U.  S.  4,  24  L.  Ed.  34;  Hoadley  v.  San 
Francisco,  124  U.  S.  639,  31  L.  Ed.  553; 
Henderson  Bridge  Co.  v.  Henderson,  173 
U.   S.   592,  43  L.   Ed.   835. 

Where  the  record  of  the  pleadings,  find- 
ings of  fact  and  judgment  shows  that  it 
was  unnecessary  for  that  court  to  decide, 
and  its  opinion  filed  in  the  case  and 
copied  in  the  record  shows  that  it  did  not 
decide,  any  question  against  the  plaintiff 
in  error,  except  the  issue  whether  the 
forn>er  judgment  rendered  against  it  and 
in  favor  of  the  grantor  of  the  defendants 
in  error  was  a  b^ar  to  this  action,  the  writ 
of  error  will  be  dismissed  for  want  of 
jurisdiction.  That  is  a  question  of  gen- 
eral law  only,  in  nowise  depending  upon 
the  constitution,  treaties  or  statutes  of 
the  United  States.  Chouteau  v.  Gibson, 
111  U.  S.  200,  28  L.  Ed.  400;  San  Fran- 
cisco V.  Itsell,  133  U.  S.  65,  66,  33  E-  Ed. 
570. 

Where  the  question  decided  in  the  state 
court  against  the  plaintiff  in  error  was 
that  a  woman  who  has  been  divorced  from 
her  husband  by  an  invalid  decree  which 
does  not  bind  her,  and  who  takes  imto 
herself  another  husband,  is  estopped  by 
her  conduct  after  the  death  of  her  former 
husband  to  dispute  or  contest  the  validity 
of  said  decrees,  and  to  assert  the  property 
rights  conferred  by  law  upon  the  widow, 
raises  no  federal  question.  Because  to 
review  that  judgment  would  be  to  over- 
haul the  application  by  a  state  court  of 
principles  of  public  policy  and  of  estoppel, 
which  it  is  not  within  our  province  to  do. 
Israel  v.  Arthur,  152  U.  S.  355,  38  L.  Ed. 
474,  citing  Marrow  v.  Brinkley,  129  U.  S. 
178,  32  L.  Ed.  654;  Adams  County  v.  Burl- 
ington, etc.,  R.,  112  U.  S.  123,  28  L.  Ed. 
678;  Chouteau  v.  Gibson,  111  U.  S.  200, 
28  L.  Ed.  400;  Beaupre  v.  Noyes,  138  U.  S. 
397,   34    L.    Ed.    991. 

The  judgment  of  a  state  court  in  a  suit 
to  compel  the  funding  of  state  bonds,  that 
a  former  adverse  judgment  upon  bonds  of 
the  same  series  could  be  pleaded  as  an 
estoppel,  presents  no  Federal  question. 
Adams  v.  Louisiana  Board  of  Liquidation, 
144  U.  S.  651,  36  L.   Ed.   577. 

31.  Leonard  :■.  Vicksburg,  etc.,  R.  Co., 
198  U.  S.  416,  423,  49  L-  Ed.  1108,  reaf- 
firmed in  South  Carolina  v.  Jennings,  204 
U.    S.    667,    668,    51    L.    Ed.    671. 

32.  Marrow  v.  Brinkley,  129  U.  S.  l'J'8, 
32-  L.  Ed.  654. 


APPEAL  AND  ERROR. 


735 


us  because  it  is  not  a  federal  question.  "The  refusal  to  accord  to  it  all  that  was 
claimed  for  it  in  the  nature  of  an  estoppel  by  counsel  for  plaintiffs  in  error  was, 
in  any  event,  no  more  than  a  refusal  to  give  to  a  judgment  of  one  of  its  owa 
courts  that  degree  of  force  as  evidence  which  it  was,  by  the  general  law,  entitled 
to.  In  no  event  was  it  anything  other  than  error  committed  by  the  court  below 
in  regard  to  the  general  law  or  rule  of  evidence,  which  has  nothing  of  a  federal 
question  connected  with  it.  It  is  entirely  dift'erent  from  the  case  of  a  refusal  oi 
a  state  court  to  give  the  proper  effect  to  a  judgment  of  a  court  of  the  United 
States. "33  If  it  were  otherwise,  every  decision  of  a  state  court,  claimed  to  be 
erroneous,  which  involved  the  failure  to  give  what  the  defeated  party  might  claim 
to  be  the  proper  weight  to  one  of  its  own  judgments,  would  present  a  federal 
question,  and  would  be  reviewable  herc^-i 

On  Second  Appeal. — A  judgment  of  the  supreme  court  of  a  state  that  it  had 
no  power  upon  a  second  appeal  to  review  the  judgment  in  the  case,  because  the 
rights  of  the  parties  were  res  ad  judicata,  and  that  it  was  itself,  as  the  parties 
were,  bound  by  its  own  former  judgment,  is  not  subject  to  review  here.  Such 
judgment  is  rendered  in  accordance  with  well-settled  principles  of  law  not  in- 
volving any   federal  question. ^^ 

gg.  Qualifications  of  General  Rules. — While  the  decision  by  a  state  court  of  a 
question  of  local  or  of  general  law  involving  no  federal  element  does  not,  as  a 
matter  of  course  present  a  federal  question,  yet  where,  on  the  contrary,  a  fed- 
eral element  is  specially  averred  and  essentially  involved,  the  duty  of  this  court 
to  apply  to  such  federal  question  its  own  conceptions  of  the  general  law,  is  in- 
controvertible.^^    Although  the  judgment  of  the  state  court  rests  partly  on  grounds 


33.  Phcenix  Ins.  Co.  v.  Tennessee,  161 
U.   S.    174.   184,   185,   40   L.    Ed.  660. 

34.  Phcenix  Ins  Co.  v.  Tennessee,  161 
U.   S.   174.   185.  40  L.   Ed.   660. 

There  is  no  question  of  contract  in  the 
case.  It  is  wholly  one  of  evidence  as  to 
whether  or  not  a  prior  judgment  in  a 
slate  court  operated  as  an  estoppel  against 
the  plaintiff  below,  and  prevented  the 
state  court  from  granting  it  the  relief  to 
which  it  would  otherwise  be  entitled.  In 
granting  relief  it  was  bound  to  consider 
the  federal  question,  as  to  whether  there 
was  or  was  not  a  contract  of  immunity, 
and  that  question  was  open  to  review 
here  and  we  have  just  reviewed  it.  It  is 
moreover  quite  doubtful  whether  the  court 
below  cominitted  any  error,  even  if  the 
question  were  to  be  regarded  as  of  a 
federal  nature,  and  open  to  us  for  review. 
Keokuk,  etc..  R.  Co.  v.  Missouri,  152  U.  S. 
301,  314.  38  L.  Ed.  450;  Phcenix  Ins.  Co. 
V.  Tennessee,  161  U.  S.  174.  185.  186,  40 
L.   Ed.   660. 

35.  Northern  Pac.  R.  Co.  z:  Ellis,  144 
U.  S.  458,  36  L.   Ed.  504. 

36.  Qual'fications  of  general  rules. — 
Avery  v..  Popper,  179  U.  S.  305,  315,  45 
L.  Ed.  203;  Tullock  v.  Mulvane,  184  U. 
S.  497,  513.  46  L.  Ed.  657. 

Where  the  q-uestion  presented  and  de- 
cided by  the  state  court  is  not  simply  the 
scope  and  applicability  of  the  doctrine  of' 
subrogation  but  rather  as  to  what  extent, 
considering  the  obligations  cast  by  the 
revenue  laws  and  the  duties  of  common 
carriers  as  between  themselves  and  the 
shipper,  the  carriers  are  protected  by 
the   laws   of   the   United    States   in   paying 


custom  duties  exacted  under  them,  a  fed- 
eral question  is  involved  which  gives  the 
supreme  court  jurisdiction,  because  the 
question  is  solved  not  alone  upon  gen- 
eral principles  of  law,  but  involves  an  in- 
quiry as  to  the  effect  of  exactions  made 
under  authority  of  United  States  Statutes. 
Wabash  R.  Co.  v.  Pearce,  192  U.  S.  179. 
185,    48    L.    Ed.    397. 

A  motion  to  dismiss  a  writ  of  error 
upon  the  ground  that  no  federal  question 
is  presented  by  the  record,  it  being 
claimed  that  the  decision  and  judgment 
of  the  state  court  sought  to  be  reviewed 
was  based  solely  upon  a  consideration 
of  local  statutes  and  the  determiRation 
of  a  question  of  general  law,  viz,  the  ef- 
fect as  res  adjudicata  of  a  judgment  of  a 
court  of  the  state,  will  be  denied,  where 
a  claim  of  the  benefit  of  the  constitution 
of  the  United  States  was  specially  made 
in  the'  state  court  and  passed  upon  ad- 
versely to  the  moving  party.  Manley  v. 
Park,  187  U.  S.  547,  550,  47  L.  Ed.  296, 
citing  Missouri,  etc..  R.  Co.  v.  Elliett, 
184   U.    S.    530.   534.   46   L.    Ed.   673. 

Where  the  determination  of  an  alleged 
estoppel  embodied  in  the  ground  of  a  de- 
murrer to  an  answer,  which  was  sus- 
tained by  the  highest  court  of  a  state, 
necessarily  involved  a  consideration  of  a 
claim  of  a  contract  right,  protected  from 
impairment  by  the  constitution  of  the 
United  States,  such  question  being 
thereby  in  substance  if  not  in  express 
terms  passed  upon  by  the  court  below; 
a  federal  question  which  gives  the  su- 
preme court  of  the  United  States  juris- 
diction on  writ  of  error  to  the  state  court, 


736 


APPEAL  AND  ERROR. 


of  local  or  general  law  yet  if,  by  its  necessary  operation,  although  the  opinion  of 
the  state  court  does  not  expressly  refer  to  the  constitution  of  the  United 
States,  the  judgment  rejects  the  claim  of  plaintiff  in  error,  specially  set  up. 
that  the  relief  asked  cannot,  in  any  view  of  the  case,  be  granted  consistently 
either  with  the  contract  clause  of  the  constitution,  or  with  the  clause  prohibiting 
the  state  from  depriving  any  one  of  his  property  without  due  process  of  law. 
this  court  has  jurisdiction  to  review  the  judgment  under  §  709,  Rev.  Stat.-^' 
And  if  it  is  evident  that  a  ruling  purporting  to  deal  only  with  local  law  has,  for 
its  premise  or  necessary  concomitant,  a  cognizable  mistake,  that  may  be  suffi- 
cient  to  warrant  a  review.^ ^ 

(62)  Where  Decision  of  State  Court  Depends  upon  the  Construction  of  State 
Statutes  and  Constructions — aa.  In  General. — The  supreme  court  has  no  author- 
ity on  a  writ  of  error  from  a  state  court  to  declare  a  state  law  void  on  account 
of  its  collision  with  a  state  constitution."^  It  is  axiomatic  that  on  a  writ  of  er- 
ror to  a  slate  court,  questions  under  the  state  constitution  and  laws  cannot  be  con- 
sidered as  thev  might  be  on  errer  to  a  subordinate  court  of  the  United  States.*** 


arises  on  the  record.  Grand  Rapids,  etc.. 
R.  Co.  V.  Osborn,  193  U.  S.  17,  27,  48  L. 
Ed.   598. 

37.  We^it  Chicago,  etc.,  R.  Co.  v.  Chi- 
cago. 201  U.  S.  506,  r>0  L.  Ed.  845.  citing 
Chicago,  etc.,  R.  Co.  z:  Illinois.  200  U. 
S.   561,   50   L.   Ed.   596. 

So  far  as  the  judgment  of  the  state 
court  against  the  validity  of  an  authority- 
set  up  by  the  defendants  under  the  United 
States  necessarily  involves  the  decision 
of  a  question  of  law.  it  must  be  reviewed 
by  this  court,  whether  that  question  de- 
pends upon  the  constitution,  laws  or 
treaties  of  the  United  States,  or  upon  the 
local  law,  or  upon  principles  of  general 
jurisprudence.  For  instance,  if  a  marshal 
©f  the  United  States  takes  personal  prop- 
erty upon  attachment  on  mesne  process 
issued  by  a  court  of  the  United  States, 
and  is  sued  in  an  action  of  trespass  in  a 
state  court  by  cne  claiming  title  in  the 
property,  and  sets  up  his  authority  under 
the  United  States,  and  judguient  is  ren- 
dered agaiuFt  him  in  the  highest  court  of 
the  state,  he  may  bring  the  case  by  writ 
of  error  to  this  court;  and,  as  his  justi- 
fication depends  upon  the  question 
whether  the  title  to  the  property  was  in 
the  defendant  in  attachment,  or  in  the 
plaintiff  in  the  action  of  trespass,  this 
court,  upon  the  writ  of  error,  has  the 
power  to  decide  that  question,  so  far  as 
it  is  one  of  law,  even  if  it  depends  upon 
local  law,  or  upon  general-  principles. 
Buck  V.  Colbath,  3  Wall.  334,  18  L.  Ed. 
257;  Etherid!?e  v.  Sperry,  139  U.  S.  2fi6. 
35  L.  Ed.  171;  Bock  v.  Perkins.  139  U. 
S.  628.  35  L.  Ed.  314.  And  see  McNulta 
V.  Lockridge,  141  U.  S.  327.  331.  35  L.  Ed. 
796;  Dushane  v.  Beall.  161  U.  S.  513,  40 
L.  Ed.  791 ;  Stanley  v.  Schwalby.  162  U. 
S.    255,   278,    40    L.    Ed.    960. 

38.  Terre  Haute,  etc.,  R.  Co.  v.  In- 
diana, 194  U.  S.  579,  48  L.  Ed.  1124; 
Schlemmer  v.  BuflFalo,  etc..  R.  Co.,  205 
U.    S.    1.    11.   51    L.    Ed.   681. 

39  Where  decision  ri  state  court  de- 
pends ur>on  the  construction  of  state  strt- 
utes  and  constitutions. — Withers  v.  Buck- 


ley, 20  How.  84.  15  L.  Ed.  816;  Medberry 
V.  Ohio.  24  Hew.  4*3,  16  L.  Ed.  739; 
Porter  v.  Foley,  24  How.  415,  16  L.  Ed. 
740;  Satterlee  v.  Matthewson,  2  Pet.  38«, 
7  L.  Ed.  458;  Salomons  r.  Graham,  15 
Wall.  208.  21  L.  Ed.  37;  West  Tenn. 
Bank  z\  Citizens'  Bank.  13  Wall.  432,  29 
L.  Ed.  514:  S.  C,  14  Wall.  9,  20  L.  Ed.  514; 
Palmer  <•.  Marston.  14  Wall.  10,  20  L.  Ed. 
S26;  Sevier  z:  Haskell.  14  Wall.  12,  20  L. 
Ed.  827;  Jack-^on  v.  Lamphire.  3  Pet.  280, 
7    L.    Ed.    679. 

40.  Missouri  r.  Dockerv,  191  U.  S.  165, 
171.  48  L.  Ed.  133;  01se« 't'.  Smith.  105  U. 
S.  332,  342.  49  L.  Ed.  224;  Cargill  v.  Min- 
nesota, 180  U.  S.  4.52,  466,  45  L.  Ed.  619; 
Robertson  r.  Coulter.  16  How.  106.  107, 
14  L.  Ed.  864;  Cook  C  ninty  v.  Cplumet. 
etc..  Canal  Co.,  138  U.  S.  635,  34  L.  Ed.  1110; 
Miller  r.  Swann,  150  I,*.  S.  132,  :57  L.  Ed. 
1028;  Long  Island  W.-ter  Supply  Co.  v. 
Brooklyn.  166  U.  S.  6-5,  41  L.  Ed.  1165; 
Jacobson  z-.  Massachusetts.  197  U.  S.  11, 
49  L.  Fd.  643,  repffirmed  in  Cantwell  v. 
Mi=souri.  199  U.  S.  602,  50  L.  Ed.  329; 
Moeschen  z\  Tenement  House  Depart- 
ment. 203  U.  S.  583,  51  L.  Ed.  3'>8;  Na- 
tional Cotton  Oil  Co.  v.  Texas.  197  U.  S. 
115,  49  L.  Ed.  689;  Southern  Cotton  Oil 
Co.  v.  Texas.  197  U.  S.  1-34,  49  L.  Ed.  696; 
Murdock  z\  Memphis.  20  Wall.  590.  22 
L.  Ed.  429;  Grand  Gulf,  etc.,  R.  Co.  v.  Mar- 
shall. 12  How.  165,  13  L.  Ed.  938;  Knights 
of  Pythias  z:  Meyer.  198  U.  S.  508,  49  L. 
Ed.  1146;  Mead  z:  Portlaad,  200  U.  S. 
148.  50  L.  Ed.  413;  O'Conor  v.  Texas,  202 
U.  S.  501,  509,  51  L.  Ed.  1120,  reaffirmed  in 
Garza  z\  Texas.  205  U.  S.  536,  51  L.  Ed. 
920;  Glenn  z'.  Garth,  147  U.  S.  360.  37  L. 
Ed.  203;  Lloyd  z:  Matthews,  155  U.  S.  222, 
38  L.  Ed.  12i;  Banholz^r  v.  New  York 
Life  Ins.  Co..  178  U.  S.  402.  44  L.  Ed. 
1124;  Johnson  z\  New  York  Life  Ins.  Co.. 
187  U.  S.  491,  47  L.  Ed.  273;  Eastern 
Building,  etc..  Ass'n  z'.  Williamson.  189  U. 
S.  122,  47  L.  Ed.  735;  St.  Louis,  etc.,  R. 
Co.  V.  Paul.  173  U.  S.  404.  43  L.  Ed.  746; 
Missouri,  etc.,  R.  Co.  z\  McCann.  174  U. 
S.  580.  43  L.  Ed.  1083;  Tullis  z:  Lake 
Erie,  etc.,  R.  Co.,  175  U.   S.  348,  44  L.  Ed. 


APPEAL  AND  ERROR. 


The  supreme  court  of  a  state  is  the  ultimate  tribunal  to  determine  the 


737 


meanmgf 


192;  Smiley  v.  Kansas,  196  U.  S.  447,  49 
L.  Ed.  546,  reaffirmed  in  Rose  v.  Kansas, 
203  U.  S.  580,  51  L.  Ed.  326;  Thomas  v. 
Kansas.  205  U.  S.  535,  536.  51  L.  Ed.  919; 
Marchant  v.  Pennsylvania  R.  Co.,  153  U. 
S.  380,  385,  38  L.  Ed.  751;  Allen  v.  Smith, 
173  U.  S.  389,  43  L.  Ed.  741;  Gallup  z'. 
Schmidt,  183  U.  S.  300,  305.  46  L.  Ed.  207; 
Osborne  v.  Florida,  164  U.  S.  650,  41  L. 
Ed.  586;  Armour  Packing  Co.  v.  Lacy, 
200  U.  S.  226.  50  L.  Ed.  451;  American 
Steel  &  Wire  Co.  v.  Speed,  192  U.  S. 
500.  523,  48  L.  Ed.  538;  Storti  v.  Massa- 
chusetts, 183  U.  S.  138,  46  L.  Ed.  120;  Orr 
r.  Oilman.  183  U.  S.  278,  46  L.  Ed.  196; 
Louisville,  etc.,  R.  Co.  v.  Kentucky,  183 
U.  S.  503,  46  L.  Ed.  298;  Robinson  z:  Belt, 
187  U.  S.  41,  46.  47  L.  Ed.  65;  Telluride, 
etc.,  Co.  v.  Rio  Grande,  etc.,  R.  Co.,  187 
U.  S.  569.  47  L.  Ed.  307,  reaffirmed  in 
Dakota,  etc.,  R.  Co.  v.  Crouch.  203  U.  S. 
582,  51  L.  Ed.  327;  Iowa  Life  Ins.  Co.  v. 
Lewis,  187  U.  S.  335,  355.  47  L.  Ed.  204; 
Manley  v.  Park,  187  U.  S.  547,  47  L.  Ed. 
296;  Turner  v.  Wilkes  County  Coinmis- 
sioners,  173  U.  S.  461.  43  L.  Ed.  768; 
Brown  V.  New  Jersey,  175  U.  S.  172,  44 
L.  Ed.  119;  Erb  r.  Morasch,  177  U.  S. 
584.  585,  44  L.  Ed.  897;  Mobile  Transpor- 
tation Co.  V.  Mobile,  187  U.  S.  479,  491. 
47  L.Ed.  266;  Insurance  Co.  ?^.  The  Treas- 
urer, 11  Wall.  204.  208,  20  L.  Ed.  112; 
Powell  V.  Brunswick  County,  150  U.  S. 
433.  439,  37  L.  Ed.  1134;  Gulf,  etc.,  R.  Co. 
v.  Hewes,  183  U.  S.  66,  46  L.  Ed.  86; 
Downham  v.  Alexandria  Council.  10  Wall. 
173.  19  L.  Ed.  929;  Marshall  v.  Ladd.  131 
U.  S.  appx.  Ixxxix,  19  L.  Ed.  153;  Provi- 
dent Institution  for  Savings  v.  Jersey 
Citi^  113  U.  S.  506.  514,  28  L.  Ed.  1102; 
Spencer  z:  Mer«hant,  125  U.  S.  345,  352, 
31  L.  Ed.  763;  Worthy  V.  The  Commis- 
sioners, 9  Wall.  611.  613,  19  L.  Ed.  565; 
McBride  z\  Hoey.  11  Pet.  167.  9  L.  Ed. 
673;  Watts  v.  Washington  Territory 
91  U.  S.  580.  23  L.  Ed.  328;  Jackson  z: 
Lamphire,   3   Pet.   280,   7   L.    Ed.   679. 

We  are  bound  by  the  construction 
which  the  state  court  gives  to  its  own  con- 
stitution and  statutes  and  to  the  law  which 
may  obtain  in  the  state.  Among  many  of 
the  cases  to  that  effect  see  Brown  z'.  New 
Jersey,  175  U.  S.  172,  44  L.  Ed.  119;  West 
V.  Louisiana,  194  U.  S.  258,  261,  48  L.  Ed. 
965. 

"Upon  well  settled  principles,  matters 
of  state  practice  alone,  and  the  proper 
construction  of  that  statute,  rests  with  the 
state  court,  and  cannot  be  reviewed  by 
this  court  upon  a  writ  of  error  to  the  state 
court."  Loeber  f.  Schroeder.  149  U.  S. 
580,  37  L.   Ed.  856. 

Where  it  does  not  appear  that  there  was 
any  complaint  that  a  state  act  was  con- 
trary to  the  constitution  of  the  United 
States,  and  the  only  question  presented  to 
the    court,    and    decided     by      them,      was, 

1  U  S  Enc-47 


whether  the  provisions  of  the  state  act 
were  consistent  with  those  of  the  new 
state  constitution,  this  court  has  no  juris*- 
diction.     Medberrv  v.   Ohio,  24   How.  413, 

16  L.    Ed.    739. 

The  jurisdiction  of  the  supreme  court 
in  cases  brought  up  from  a  state  court 
does  not  extend  to  questions  of  fact  or 
of  local  law,  which  are  merely  prelimi- 
nary to,  or  the  possible  basis  of  a  federal 
question.  Telluride,  etc.,  Co.  v.  Rio 
Grande,  etc.,  R.  Co.,  175  U.  S.  639,  44  L. 
Ed.   305. 

The  supreme  court  of  the  United  States 
has  no  authority  to  revise  the  statutes  of 
a  state  upon  any  grounds  of  practice, 
policy  or  consistency  to  its  own  constitu- 
tion, as  such  questions  are  concluded  by 
the  decision  of  the  legislative  and  judicial 
authorities  of  the  state.  Orr  v.  Gilman. 
183    U.   S.   278,   283,   46   L.   Ed.    196. 

It  is  the  peculiar  province  and  privilege 
of  the  state  courts  to  construe  their  own 
statutes;  and  it  is  no  part  of  the  func- 
tions of  the  supreme  court  to  review  their 
decisions,  except  when  specially  au- 
thorized by  statute.  Commercial  Bankt^. 
Buckingham,  5  How.  317,  12  L.  Ed.  169; 
Adams  z\  Preston.  22  How.  473,  16  L.  Ed. 
273;    Congdon   v.    Goodman,   2    Black   574. 

17  L.  Ed.  257;  Scott  z\  Jones,  5  How. 
343,  12  L.  Ed.  181;  Smith  v.  Adsit,  16 
Wall.  185.  21  L.  Ed.  310;  Klinger  v.  Mis- 
souri, 13  Wall.  257.  20  L.  Ed.  635;  Murray 
r.  Gibson,  15  How.  421,  14  L.  Ed.  755; 
Nichol  v.  Levy,  5  Wall.  433,  18  L.  Ed. 
596;  Jackson  v.  Lamphire,  3  Pet.  280,  7 
L.    Ed.    679. 

In  the  language  of  Mr.  Justice  Peck- 
ham:  "We  are  1  und  by  the  decision  of 
the  supreme  court  of  Kansas  that  the 
statute  in  question  violated  no  provision 
of  the  constitution  of  that  state,  and  that 
it  was  a  valid  statute  so  far  as  that 
instrument  was  concerned.  This  doctrine 
is  familiar,  and  a  few  of  the  many  cases 
upon  the  subject  are  cited  in  Smiley  v. 
Kansas,  196  U.  S.  447,  49  L.  Ed.  546." 
Jack  V.  Kansas,  199  U.  S.  372.  379,  50 
L.    Ed.   234. 

Construction  and  not  validity. — Where 
the  validity  of  a  state  law  is  not  drawn  in 
question,  but  merely  its  construction,  no 
federal  question  arises.  Lloyd  v.  Mat- 
thews, 155  U.  S.  222,  227,  38  L.  Ed.  128. 

In  order  to  bring  a  case  within  the  re- 
viewing power  of  this  court,  as  prescribed 
by  the  25th  section  of  the  judiciary  act, 
it  is  necessary  that  the  record  should 
show  that  the  point,  giving  jurisdiction  to 
this  court,  was  raised  and  decided  in  the 
state  court.  Hence,  where  it  appears 
from  the  record  that  the  decision  of  the 
state  court  turned  upon  the  construction 
and  not  the  validity  of  a  state  law,  and 
that   the   question   of  its   validity  was  not 


738 


APPEAL  AND  ERROR. 


of  its  local  statutes.^  1  In  other  words,  the  decision  of  the  highest  court  of  a 
state,  that  an  act  of  the  state  is  not  in  conflict  with  a  provision  of  its  constitu 
tion,  is  conclusive  upon  this  court.*^  A  decision  of  a  state  court  sustaining  the 
validity  of  a  state  statute  when  tested  by  the  provisions  of  the  state  constitution, 
whatever  the  similarity  between  the  language  of  those  provisions  and  that  oi 
the  fourteenth  amendment,  cannot  be  regarded  as  having  decided  a  federal  ques- 
tion, if  it  appears  from  the  record  that  it  was  not  called  upon  to  do  so,  and  that 
its  decision  rested  on  another  ground."*^ 


raised,  this  court  has  no  jurisdiction. 
Grand  Gulf,  etc.,  R.  Co.  v.  Marshall,  12 
How.  165,  13  L.  Ed.  938,  citing  Planters' 
Bank  v.  Sharp,  6  How.  301,  12  L.  Ed.  447; 
Baldwin  v.  Payne,  6  How.  301,  332.  12  L. 
Ed.  447;  Armstrong  v.  The  Treasurer,  16 
Pet.   281.   285,   10    L.    Ed.    965. 

That  the  statutes  of  a  state  are  not  in 
conflict  with  its  constitution  is  settled 
by  the  decision  of  its  highest  court,  and 
a  decision  of  that  court  to  that  effect  is 
conclusive  on  the  supreme  court  of  the 
United  States  on  writ  of  error  to  the 
state  court.  Merchants'  Bank  v.  Penn- 
sylvania, 167  U.  S.  461,  4?  L.  Ed.  236; 
Backus  V.  Fort  Street  Union  Depot  Co., 
169  U.  S.  557,  566,  42  L.  Ed.  853;  Ras- 
mussen  i'.- Idaho,  181  U.  S.  199,  200.  45  L. 
Ed.  820;  Carstairs  v.  Cochran.  193  U.  S. 
10.    16.   48   L.    Ed.    596. 

The  supreme  court  of  the  United  States 
will  follow  the  state  court  as  to  the  state 
constitution,  and  assume  that  a  law  which 
that  court  has  held  valid  is  not  repugnant 
to  the  state  constitution.  The  question 
for  the  supreme  court  of  the  United  States 
is  whether,  if  the  state  constitution  under- 
takes to  authorize  such  a  law.  it  encoun- 
ters the  constitution  of  the  United  States. 
Rippey  v.  Texas,  193  U.  S.  504,  509,  48 
L.  Kd.  767,  citing  and  approving  Missouri 
V.  Dockery,  191  U.  S.  165,  171,  48  L.  Ed. 
133. 

In  an  action  of  ejectment,  defences  of 
estoppel,  license,  payment  of  taxes,  the 
unconstitutionality  of  a  state  statute,  be- 
cause the  title  of  the  act  does  not  de- 
scr'be  its  subject;  want  of  power  in  the 
state  to  convey  its  title  to  the  city,  and 
the  statute  of  limitations,  are  all  of  a  lo- 
cal nature  and  present  no  federal  ques- 
tion. Mobile  Transportation  Co.  v.  Mobile, 
187  U.  S.  479,  490,  47  L.  Ed.  266.  reaf- 
firmed in  Transportation  Co.  v.  Mobile, 
199   U.   S.   604,   50   L.   Ed.   330. 

Dismissal  of  writ  of  error. — Where  a 
case  is  brought  up  to  this  court  by  a  writ 
of  error  issued  to  the  supreme  court  of  a 
state,  under  the  twenty-fifth  section  of 
the  judiciary  act,  if  it  appears  that  the 
judgment  of  the  state  court  only  involved 
the  construction  of  state  statutes  which 
both  parties  in  the  cause  admitted  to  be 
valid,  the  writ  of  error  will  be  dismissed 
on  motion.  Michigan  Central  R.  Co.  v. 
Michigan  Southern  R.  Co.,  19  How.  378, 
15    L.    Ed.   689. 

41.  Bachtel  v.  Wilson.  204  U.  S.  36,  40, 
51    L.   Ed.   357. 


A  controversy  in  which  no  right  is 
claimed  under  the  constitution  or  laws  of 
the  United  States,  but  which  turns  en- 
tirely upon  the  validity  or  interpretation 
of  state  laws  and  constitution  is  ex- 
clusively within  the  jurisdiction  of  the 
state  court,  and  this  court  has  no  appel- 
late power  over  its  judgment.  Congdon 
V.   Goodman,   2   Black  574,   17   L.    Ed.   257. 

42.  Gut  f.  Minnesota,  9  Wall.  35,  19  L. 
Ed.  573,  citing  Randall  v.  Brigham,  7  Wall. 
523,  541,  19  L.  Ed.  285;  Provident  Institu- 
tion V.  Massachusetts,  6  Wall.  611,  630. 
18  L.  Ed.  907;  West  River  Bridge  v. 
Dix.  6  How.  507.  12  L.  Ed.  535;  Bucher 
V.  Cheshire  R.  Co.,  125  U.  S.  555,  31  L. 
Ed.  795;  Bell's  Gap  R.  Co.  v.  Pennsyl- 
vania, 134  U.  S.  232.  33  L.  Ed.  892;  Lewis 
V  Monson,  151  U.  S.  545.  38  L.  Ed.  265; 
Adams  Express  Co.  v.  Ohio,  165  U.  S. 
194,  41  L.  Ed.  683;  Long  Island  Water 
Supply  Co.  V.  Brooklyn,  166  U.  S.  685.  41 
L.  Ed.  1165;  Merchants',  etc.,  Bank  v.  Penn- 
svlvania,  167  U.S.  461,  463,42  L.Ed.  236; 
S'chaefer  v.  Werling,  188  U.  S.  516,  47 
L.  Ed.  570;  People's  National  Bank  v. 
Marye,   191   U.   S.   272.  276,   48   L.   Ed.   180. 

The  construction  by  the  state  court  of 
a  statute  under  which  a  court  made  an 
exclusive  grant  of  a  franchise  within 
designated  limits,  upon  conditions  which 
the  grantee  performed,  i^  not  conclusive 
here  upon  the  question  whether  a  subse- 
quent conflicting  grant  impairs  the  obli- 
gation of  a  contract.  It  is  true  that  or- 
dinarily a  construction  of  a  state  court 
would  be  conclusive  on  us.  One  excep- 
tion, however,  exists  to  this  rule,  and  that 
is  when  the  state  court  "has  been  called 
upon  to  interpret  the  contracts  of  states, 
'though  they  have  been  made  in  the  forms 
of  law,'  or  by  the  instrumentality  of  a 
state's  authorized  functionaries  in  con- 
formity with  state  legislation.'  Jefferson 
Branch  Bank  v.  Skelly,  1  Black  436,  17 
L.  Ed.  173;  Wright  v.  Nagle,  101  U.  S. 
791,   793.   25    L.    Ed.   921. 

A  claim  by  the  plaintiff  in  error  that 
the  supreme  court  of  the  state  erred  in 
holding  that  a  state  law  was  repugnant  to 
the  state  constitution,  raises  no  federal 
question.  Upon  this  question  the  decision 
of  the  state  court  is  conclusive.  Haire  v. 
Rice,  204  U.  S.  291,   51   L.   Ed.  490. 

43.  Layton  v.  Missouri,  187  U.  S.  356, 
360,  47  L.  Ed.  214,  reaffirmed  in  St.  Louis 
Expanded  Metal,  etc.,  Co.  v.  Standard 
Fireoroofing  Co..  195  U.  S.  627,  49  L. 
Ed.  '351;  New  York,  etc..  R.  Co.  v.  Ply- 
mouth,   193   U.   S.   668,   48   L.   Ed.  839. 


APPEAL  AND  ERROR. 


739 


Mr.  Justice  Holmes  states  the  rule  as  follows:  Where  a  state  statute,  as 
interpreted  by  the  state  court,  is  not  in  contravention  of  the  constitution  of  the 
united  States,  the  supreme  court  of  the  United  States  will  not  interfere  with  the 
construction  adopted  by  the  state  courts.^^  Nor  is  it  material  that  the  state  court 
ascertains  the  meaning  and  scope  of  the  statute,  as  well  as  its  validity,  by  pursu- 
ing a  different  rule  of  construction  from  what  we  recognize.  The  power  to 
determine  the  meaning  of  a  statute  carries  with  it  the  power  to  prescribe  its  ex- 
tent and  limitations  as  well  as  the  method  by  which  they  shall  be  determined.'*^ 

Binding  Force  of  State  Statutes.— Whether  certain  statutes  have  or  have 
not  binding  force,  is  for  the  state  to  determine,  and  that  determination  in  itself 
involves  no  infraction  of  the  constitution  of  the  United  States,  and  raises  no  fed- 
eral question  giving  the  courts  of  the  United  States  jurisdiction."*^ 

Construction  of  Statute  by  State  Courts  Accepted. — In  determining 
whether  a  state  statute  violates  the  federal  constitution,  the  construction  put  upon 
it  by  the  state  court  is  to  be  accepted  by  a  federal  court."*" 

This  court  does  not  exercise  jurisdiction  under  §  709  of  the  Revised 
Statutes  to  review  a  determination  of  a  state  court  as  to  the  proper  construction 
and  sufficiency  of  the  statutes  of  a  state.  This  court  has  no  more  power  than 
formerly  to  review,  upon  a  writ  of  error  to  the  state  court,  the  determination  of 
that  court  in  regard  to  the  particular  construction  to  be  given  to  the  statutes  of 
its  own  state."*^ 

City  Ordinances. — And  these  general  rules  apply  equalVv  to  city  ordinances.'** 


44.  Minnesota  Iron  Co.  v.  Kline,  199 
U.  S.  593,  50  L.  Ed.  322,  reaffirmed  in 
Stevenson  Min.  Co.  v.  Kibbe,  205  U.  S. 
537,  51  L.  Ed.  920;  Tampa  Waterworks 
Co.  V.  Tampa,  199  U.  S.  241,  50  L.  Ed. 
170;  Sopcr  v.  Lawrence  Bros.  Co..  201  U. 
S.  359.  50  L.  Ed.  788;  New  York  Central 
R.  V.  Miller,  202  U.  S.  584.  595.  50  L.  Ed. 
1155;  Strickley  v.  Highland  Bay  Gold 
Min.  Co.,  200  U.  S.  527,  50  L.  Ed.  .581; 
Borden  v.  Trespalacious  Rice  and  Irriga- 
tion   Co.,   204   U.    S.   667,    51    L.    Ed.   671. 

45.  Smiley  v.  Kansas,  196  U.  S.  447,  455, 
49  L.  Ed.  546.  reaffirmed  in  Rose  v.  Kan- 
sas, 203  U.  S.  580.  51  L.  Ed.  326;  Thomas 
r.  Kansas.  205  U.  S.  535,  536.  51  L.  Ed. 
t>19. 

46.  Luther  v.  Borden,  7  How.  1,  12  L. 
Ed.  581;  In  re  Duncan,  139  U.  S.  449, 
35  L.  Ed.  219;  Taylor  v.  Beckham,  178  U. 
S.  548,   579,  44   L.   Ed.   1187. 

47.  Cargill  v.  Minnesota,  180  U.  S.  452, 
4.53.   45    L.    Ed.    619. 

License  of  warehousemen. — The  highest 
court  of  the  state  having  decided  that  the 
requirement  of  a  license  for  a  warehouse 
by  chapter  146,  Gen.  Law  of  1895  Minn., 
was  separable  from  other  provisions,  it 
is  the  duty  of  the  federal  court  to  accept 
that  construction  of  the  statute.  Cargill 
V.  Minnesota,  180  U.  S.  452,  45  L.  Ed.  619. 

"The  questions  just  stated  are  questions 
of  local  law.  and  in  determining  whether 
the  statute  violates  any  right  secured  by 
the  federal  constitution  we  must,  in  the 
particulars  named,  accept  the  interpreta- 
tion put  upon  it  by  the  state  court.  In 
TulHs  V.  Lake  Erie  R.  Co.,  175  U.  S.  348, 
353,  44  L.  Ed.  192,  the  question  was  as 
to  the  constitu'-'onality  of  a  statute  of  In- 
diana relating  to  railroads  and  other  cor- 
porations,  except   municipal   corporations. 


The  supreme  court  of  that  state  held  that 
the  statute  was  capable  of  severance,  and 
that  its  provisions  as  to  railroads  were 
not  so  connected  in  substance  with  the 
provisions  relating  to  other  corporatiors 
that  their  validity  could  not  be  separately 
determined.  This  court  followed  that 
view,  declaring  it  to  be  an  elementary  rule 
that  it  should  adopt  'the  interpretation  of 
a  statute  of  a  state  affixed  to  it  by  the 
court  of  last  resort  thereof.'  See,  also, 
Missouri  Pac.  R.  Co.  v.  Nebraska,  164  U. 
S  403.  414,  41  L.  Ed.  489;  Chicago,  etc., 
R.  Co.  V.  Minnesota,  134  U.  S.  418,  456, 
33  L.  Ed.  970;  St.  Louis,  etc.,  R.  Co.  v. 
Paul.  173  U.  S.  404.  408,  43  L.  Ed.  746." 
Cargill  Co.  v.  Minnesota,  180  U.  S.  452, 
466,    467,    45    L.    Ed.    619. 

48.  Osborne  t'.  Florida,  164  U.  S.  650, 
41  L.  Ed.  586,  distinguishing  Horner  v. 
United  States,  143  U.  S.  570,  36  L.  Ed. 
266;  Carey  v.  Houston,  etc.,  R.  Co.,  150 
U.  S.  170.  37  L.  Ed.  1041;  on  the  ground 
that  they  both  refer  to  the  jurisdiction  of 
this  court  under  the  5th  section  of  the 
act  of  March  3.  1891,  upon  appeals  or 
writs  of  error  taken  direct  from  the  cir- 
cuit or  district  court  of  the  United  States 
to  this   court. 

49.  Construction  of  city  ordinances. — • 
The  decision  of  a  state  court,  on  the  con- 
struction of  a  municipal  ordinance,  where 
the  charter  prohibited  the  erection  of  cow 
stables  and  drains  "within  the  prescribed 
limits."  holding  it  to  be  equally  pos- 
sible to  declare  that  those  limits  should 
be  coincident  with  the  limits  of  the  city 
presents  no  federal  question  reviewable 
by  this  court.  Fischer  v.  St.  Louis,  194  U. 
S.  361,  48  L.  Ed.  1018;  Schefe  v.  St.  Louis. 
194  U.   S.   373,  48    L.   Ed.   1024. 

The   decision   of   a   state   supreme   court 


"40 


APPEAL  AND  ERROR. 


Whether  a  municipal  ordinance  is  or  is  not  valid,  and  the  extent  to  which 
it  is  so,  having  regard  to  the  state  constitution  and  laws,  is  wholly  a  state  and  not 
a  federal  question,  which  the  supreme  court  of  the  United  States  has  no  juris- 
diction to  review  on  writ  of  error  to  the  state  supreme  court. ^" 

Distinguished  from  Cases  Brought  from  Federal  Courts. — There  is  a 
vast  difference  in  this  regard  between  cases  which  come  to  this  court  from  the 
United  States  circuit  courts,  and  cases  which  come  up  by  writ  of  error  to  the 
supreme  court  of  a  state.  The  former  are  clearly  distinguishable,  and  cannot  be 
relied  upon  as  authority  to  this  court  to  review  the  decisions  of  state  courts  de- 
pending upon  an  act  of  its  own  legislature  and  upon  its  conformity  to  the  consti- 
tution of  the  state. ^^ 

bb.  Various  Specific  Applications  of  the  General  Rules. — And  these  general 
rules  have  been  applied  to  contests  over  state  offices,  dependent  for  their  solu- 
tion upon  the  construction  or  application  of  the  state  statutes  and  constitution,-''- 
to  the  construction  of  state  statutes  and  constitutions  on  the  subject  of  reading 
depositions  to  witnesses,^^  to  the  question  whether  the  state  court  possessed  power 
to  grant  a  writ  of  prohibition  under  the  state  constitution  and  laws,^^  to  the  ques- 
tion as  to  what  property  is  subject  to  be  attached  and  sold  under  the  constitution 
and  statutes  of  the  state,^^  to  the  decisions  of  state  courts  construing  the  state 
statutes   with   respect   to   corporations,^^   to  questions   depending  upon   the  con- 


that  defendant  was  guiltj^  of  maintaining 
a  dairy  and  cow  stable  without  permis- 
sion within  the  meaning  of  an  ordinance 
of  the  municipality,  involves  no  federal 
question  reviewable  by  this  court.  Fischer 
r.  St.  Louis,  194  U.  S.  361.  48  L.  Ed.  1018; 
Schefe  V.  St  Louis.  194  U.  S.  373,  48  L. 
Ed.    1024. 

50.  Lombard  v.  West  Chicago.  181  U. 
S.    a3.   43.   45    L.    Ed.    731. 

The  supreme  court  of  the  United  States 
■will,  on  writ  of  error  to  the  supreme  court 
of  a  state,  accept  the  conclusion  of  that 
court  as  to  the  existence  of  a  municipal 
ordinance  by  virtue  of  the  state  law  and 
constitution.  Lombard  v.  West  Chicago, 
181   U.   S.   33,   43,   45    L.    Ed.   731. 

51.  Mobile  Transportation  Co.  v.  Mo- 
bile, 187  U.  S.  479,  47  L.  Ed.  266,  reaf- 
firmed in  Transportation  Co.  v.  Mobile, 
159  U.  S.  604.  624,  50  L.  Ed.  330.  dis- 
tinguishing Illinois  Central  R.  Co.  v.  Illi- 
nois.  146   U.    S.    .''.87,   36   L.    Ed.    1018. 

52.  Various  specific  applications  of  the 
general  rules. — A  mere  contest  over  a 
state  office,  dependent  for  its  solution  ex- 
clusively upon  the  application  of  the  con- 
stitution of  a  state  or  upon  a  mere  con- 
struction of  a  provision  of  a  state  law,  in- 
volves no  possible  federal  question. 
Taylor  v.  Beckham,  178  U.  S.  548,  44 
L.  Ed.  1187;  Elder  v.  Colorado,  204  U.  S. 
85,   89,   51    L.   Ed.    381. 

53.  Reading  depositions  to  witnesses. — 
Whether  the  state  court  erred  in  its  con- 
struction of  the  state  constitution  and 
statutes  and  the  common  law  on  the  sub- 
ject of  reading  depositions  of  witnesses, 
is  not  a  federal  question,  reviewable  by 
this  court  on  writ  of  error  to  a  state 
court.  West  v.  Louisiana,  194  U.  S.  258. 
261.  48   L.    Ed.   965. 

54.  Prohibition  to  inferior  court. — 
Whether,  under  the  state  constitution  and 


laws,  the  supreme  court  of  Missouri 
possessed  the  power  to  grant  a  writ  of 
prohibition  directed  to  one  of  the  subor- 
dinate courts  of  that  state,  and  what  were 
the  legal  scope  and  effect  of  the  writ 
when  granted,  were  questions  for  that 
court  to  decide,  and  its  judgment  in  those 
particulars  is  not  subject  to  our  revision. 
St.  Louis,  etc.,  R.  Co.  v.  Merriam,  156 
U.    S.   478.   4S4,   39    L.    Ed.   502. 

55.  Attachment — Property  subject. — We 
must  accept  then  as  undeniable  the  ruling 
of  the  highest  court  of  Kansas,  that  un- 
der the  constitution  and  statutes  of  Kan- 
sas real  estate  situated  in  that  state,  the 
title  to  which  was  vested  in  a  nonresi- 
dent executor,  to  whom  letters  testa- 
mentary had  been  issued  by  a  court  of 
another  jurisdiction,  might  be  attached 
and  sold,  in  an  action  of  debt  against  the 
nonresident  executor.  The  construction 
adopted  by  the  supreme  court  of  Kansas 
of  the  pertinent  provisions  of  such  con- 
stitution and  laws,  is  binding  upon  this 
court  as  a  decision  upon  a  matter  of 
purely  local  law,  not  presenting  a  federal 
question.  Manley  v.  Park.  187  U.  S.  547, 
551,    47   L.    Ed.    296. 

56.  The  rulings  in  the  highest  state 
court  which  involve  only  questions  of 
state  law,  such  as  the  question  whether 
the  statutes  of  the  state  authorize  the  in- 
corporation of  a  bridge  company  to  build 
a  bridge  across  a  navigable  river,  whether 
the  laws  of  the  state  confer  the  right  of 
eminent  domain  on  the  corporation  of  an- 
other state,  whether  a  foreign  corporation 
can  only  exercise  in  another  state  such 
powers  as  are  conferred  upon  it  by  the 
state  of  its  creation,  are  concluded  by  the 
jidjudication  of  the  state  court.  Stone  v. 
Southern  Illinois,  etc..  Bridge  Co.,  206 
U.    S.   267.    51    L.    Ed.    1057. 

Where  a   state  court  construing  a  state 


APPEAL  AND  ERROR. 


741 


struction  or  application  of  the  state  laws  with  respect  to  taxation.     As,  for  ex- 
ample, whether  a  state  tax  is  in  accordance  with  the  state  law,^'^  to  decisions  of 


statute  an<d  constitution,  decides  that  a 
corporation  has  no  existence  in  the  state 
and  can  therefore  acquire  no  rights  as  a 
corporation,  the  decision  is  not  reviewable 
as  involving  a  federal  question  as  it  only 
expresses  the  meaning  and  effect  of  local 
statutes.  Telluride,  etc.,  Co.  v.  Rio 
Grande,  etc.,  R.  Co..  187  U.  S.  569,  47  L.  Ed. 
307,  reaffirmed  in  Dakota,  etc.,  R.  Co.  v. 
Crouch.  :?03  U.  S.  .'>82,  51   L.   Ed.  327. 

A  corporation  may  be  formed  in  any 
manner  that  a  state  sees  fit  to  adopt;  and 
when  the  highest  court  of  a  state  decides 
that,  by  certain  legislation,  a  corporation 
has  been  created,  such  decision  concludes 
not  only  the  courts  of  the  state,  but  also 
those  of  the  United  States.  It  is  a  matter 
over  which  we  have  no  review,  and  in  re- 
spect to  which  the  decision  of  the  state 
court  is  final.  It  is  a  matter  of  a  purely 
l<5cal  nature.  Hancock  v.  Louisville,  etc., 
R.    Co.,    145    U.    S.    409.    415.    36   L.    Ed.    755. 

Laws  regelating  building  and  loan  as- 
sociations.— The  construction  of  the  laws 
of  New  York  regarding  building  and  loan 
associations,  by  the  state  of  South  Caro- 
lina, involves  no  federal  question  review- 
able by  this  court.  Eastern  Building,  etc., 
Ass'n  V.  Williamson,  189  U.  S.  122.  47  L. 
Ed.    735. 

Carriers. — A  state  railroad  corporation 
voluntarily  formed  cannot  exempt  itself 
from  the  control  reserved  to  itself  by  the 
state  by  its  constitution,  and  if  not  pro- 
tected by  a  valid  contract,  cannot  success- 
fully invoke  the  interposition  of  the  fed- 
eral courts,  in  respect  to  the  long  and 
short  haul  clause  in  the  state  constitu- 
tion, on  the  ground  simply  that  the  rail- 
road is  proi>erty.  Louisville,  etc.,  R.  Co. 
v.  Kentucky.  183  U.  S.  503,  513,  46  L.  Ed. 
298. 

This  court  must  accept  as  final  the  de- 
cision of  the  highest  court  of  a  state  hold- 
ing that  a  certain  statute  determining  the 
liability  of  a  common  carrier,  is  applicable 
to  shipments  made  beyond  the  state.  Cen- 
tral of  Georgia  R.  Co.  v.  Murphey,  196 
U.    S.    194,    49    L.    Ed.    444. 

Whether  an  order  of  a  state  corpora- 
tion commission  was  arbitrary  and  un- 
reasonable, because  beyond  the  scope  of 
the  authorit}^  delegated  to  the  corpora- 
tion commission  by  the  state  law.  involves 
no  federal  question  and  is  concluded  by 
the  judgment  entered  below.  Atlantic 
Coast  Line  R.  Co.  v.  North  Carolina  Cor- 
poration Commission.  206  U.  S.  1,  51  L. 
Ed.  933. 

Whether  a  given  corporation  comes 
within  the  law  of  the  state,  and  is  en- 
titled to  assert  its  power,  presents  only  a 
question  of  state  law.  Stone  t'.  Southern 
Illinois,  etc..  Bridge  Co.,  206  U.  S.  267. 
273.   51    L.    Ed.    1057. 

57.  Whether  a  state  tax  is  in  accord- 
ance with  the  state  law  is  a  question  on 


which  the  decision  of  the  highest  court  of 
the  state  is  conclusive.  Pullman's  Palace 
Car  Co.  V.  Pennsylvania,  141  U.  S.  21,  35 
L.   Ed.   613. 

The  question  whether  a  state  statute 
regarding  taxation  violates  the  state  con- 
stitution in  not  stating  distinctly  the  tax 
and  the  object  to  which  it  is  to  be  applie<i» 
is  a  purely  local  question,  and  hence  is 
not  reviewable  by  us  on  writ  of  error  to 
a  state  court.  Hodge  v.  Muscatine 
County.  196  U.  S.  276.  282,  49   L.  Ed.  477. 

What  the  constitution  of  the  state  of 
Ohio  requires,  or  what  the  statutes  of  the 
state  require  as  to  taxation,  must  be  left 
to  be  decided  by  the  supreme  court  of 
the  state,  arid  whether  that  court  has  de~ 
cided,  logically  or  illogically,  that  a  tax 
authorized  by  the  laws  of  the  United 
States  on  the  shares  of  the  company 
satisfies  the  constitution  of  the  state  as  a 
tax  on  the  corporation,  is  not  open  to  our 
review  or  objection.  The  manner  of 
taxation  being  legal  under  the  statutes  of 
the  United  States,  its  effect  cannot  be 
complained  of  in  the  federal  tribunals. 
Cleveland  Trust  Co.  v.  Lander,  184  U. 
S.    111.    115,   46   L.    Ed.   456.- 

Taxable  interest. — The  question  whether 
under  the  state  statute,  a  railroad  has  any 
taxable  interest  in  lands,  under  the  act 
of  congress  authorizing  states  to  tax  rail- 
road land  grants  for  which  no  patent  is 
issued,  and  upon  which  the  costs  of  sur- 
veying have  not  been  paid,  is  not  a  fed- 
eral question,  but  a  question  as  to  the 
proper  construction  of  words  used  in  the 
state  statute.  "It  does  explicitly  appear 
that  authority  was  given  by  congress  to 
the  states  to  tax  these  lands;  but  whether, 
under  the  state  laws,  the  railroad  had  any 
taxable  interest  therein,  or  whether  the 
decision  of  the  court  that  it  had  no  such 
interest  in  the  unsurveyed  lands  is  con- 
sistent with  its  opinion  that  it  had  such 
interest  in  the  surveyed  lands,  is  imma- 
terial, so  long  as  no  federal  right  was 
denied  to  it."  Central  Pacific  R.  Co.  v. 
Nevada,  162  U.  S.  512,  523.  40  L.  Ed. 
1057. 

Exemption  from  taxation. — A  petitioner 
who  admits  that  his  own  tax  is  correct, 
cannot  have  a  writ  of  error  from  the 
United  States  supreme  court  to  review  a 
judgment  by  the  supreme  court  of  the 
state  construing  the  statutes  thereof  as 
exempting  express  companies  from  a  tax 
and  substituting  another,  on  the  ground 
that  he  will  be  deprived  of  property  with- 
out due  process  of  law,  and  denied  the 
equal  protection  of  laws  under  the  14th 
amendment  of  the  constitution  of  the 
United  States.  Missouri  v.  Dockery,  191 
U.  S.   165.  48  L.   Ed.  133. 

The  question  whether  lands  acquired 
from  the  United  States  are  taxable 
within  a  year  after  the  title  passed  out  of 


'42 


APPEAL  AND  ERROR. 


state  courts  depending  upon  the  construction  of  state  statutes  relating  to  assess- 
ments for  street  improvements,^^  to  a  plea  setting  up  an  immunity  under  a  state 
law,-'^^  to  decisions  of  state  courts  construing  the  state  registration  laws,'^"  to  the 


the  United  Stales  is  not  a  federal  ques- 
tion. It  relates  only  to  the  construction 
of  a  state  statute  which  is  in  no  way  in 
conflict  with  the  constitution  or  any  law 
of  the  United  States.  The  judgment  of 
the  state  court  on  that  question  is  final, 
and  not  reviewable  here.  Stryker  z\ 
Good  now,    12?,   U.    S.   527,    31    L.    Ed.    194. 

Repugnancy  between  tax  acts  and  state 
constitution. — The  laws  of  Louisiana  im- 
pose a  tax  of  ten  per  cent,  upon  what  an 
heir,  legatee,  or  donee  may  receive  upon 
the  succession  of  an  estate  of  a  person 
deceased,  where  such  heir,  legatee,  or 
donee  is  not  domiciliated  in  Louisiana, 
and  is  not  a  citizen  of  any  state  or  terri- 
tory of  the  Union.  They  also  provide 
that  the  executor,  etc.,  shall  pay  the  tax. 
Where  the  state  court  decided  that  this 
tax  was  properly  iinposed  upon  the  suc- 
cession accruing  to  persons  who  were 
born  in  France,  had  always  lived  in 
France,  without  ever  having  been  in 
Louisiana,  this  is  not  such  a  decision  as 
can  be  reviewed  by  this  court  under  the 
25th  section  of  the -judiciary  act.  No  ques- 
tion was  made  in  the  court  below  that 
these  laws  conflicted  with  any  provision 
of  the  constitution  of  the  United  States. 
Poydras  v.  Treasurer  of  Louisiana,  18 
How.    192,   15   L.    Ed.    350. 

Order  of  board  of  equalization. — Where 
the  highest  court  of  a  state  decided  that 
the  order  of  the  board  of  equalization  was 
legal  under  the  constitution  and  statutes 
of  the  state,  the  decision,  constituting  as 
it  does  an  interpretation  of  the  constitu- 
tion and  laws  of  the  state,  is  not  open  to 
dispute  in  the  supreme  court  of  the  United 
States  on  writ  of  error  to  the  state  court. 
Western  Union  Tel.  Co.  t-.  Gottlieb,  190 
U.   S.   412.   425,    47   L.    Ed.    1116. 

Privilege  taxes. — Where  the  levy  of  a 
merchant's  tax  violates  no  federal  right, 
the  mere  determination  of  who  are  mer- 
chants within  the  state  law  involves  no 
federal  question.  The  construction  of  the 
state  law  is  conclusive  upon  this  court, 
where  it  embraces  all  persons  doing  a 
like  business  with  the  plaintiff  in  error, 
because  in  such  case  there  is  no  discrimi- 
nation. American  Steel,  etc..  Co.  v. 
Speed,   192  U.   S.    501,   48   L.   Ed.    538. 

The  construction  placed  upon  the  stat- 
ute of  North  Carolina  imposing  a  tax  on 
every  meat  packing  house  doing  business 
in  this  state,  by  the  highest  court  of  that 
state,  that  the  tax  was  exacted  from  a  for- 
eign corporation  doing  both  an  interstate 
and  domestic  business  only  by  virtue  of 
the  latter,  is  not  subject  to  review  in  this 
court.  .Armour  Packing  Co.  v.  Lacy,  200 
U.   S.  226.   50   L.    Ed.   451. 

58.  Special  or  local  assessments. — The 
construction  placed  by  the  supreine  court 
of    a    state    upon    its    statutes    relating    to 


street  assessments  is.  as  a  general  rule, 
binding  upon  federal  courts.  Forsyth  f. 
Hammond.  166  U.  S.  506,  518,  41  L.  Ed. 
1095;  Schaefer  r.  Werling.  188  U.  S.  516, 
518,  47  L.  Ed.  570;  Waggoner  v.  Flack, 
188   U.   S.    595,   600,   47   L.   Ed.   609. 

In  Schaefer  r.  Werling,  188  U.  S.  516, 
47  L.  Ed.  570,  the  principle  was  reitei^ated 
that  the  construction  placed  by  the  high- 
est court  of  a  state  upon  a  statute  pro- 
viding for  paving  the  streets  and  distrib- 
uting the  assessment  therefor  was  con- 
clusive upon  this  court.  Hibben  z'.  Smith, 
191  U.  S.  310,  321,  48  L.  Ed.  195.  See^ 
also.  Merchants',  etc..  Bank  v.  Pennsyl- 
vania, 167  U.   S.  461,  42   L.   Ed.   236. 

The  supreme  court  of  a  state  held  that 
"it  was  competent  on  a  new  assessment 
to  determine  the  questions  of  benefit 
from  the  proof,  even  though  in  so  doing 
a  diflFerent  result  was  reached  from  that 
which  had  been  arrived  at  when  the 
former  assessment  which  had  been  set 
aside  was  made."  On  writ  of  error  to  the 
supreme  court  of  the  United  States,  it 
was  held,  that  the  state  court  had  decided 
a  local  and  not  a  federal  question.  Lom- 
bard V.  West  Chicago,  181  U.  S.  33.  44. 
45    L.    Ed.    731. 

This  court  has  no  power  to  correct  the 
error  of  the  state  court  in  respect  to  the 
details  of  assessments  made  by  municipal 
corporations  upon  private  property  to  de- 
fray the  expenses  of  street  improvements. 
Upon  all  such  questions  the  action  of  the 
state  court  is  final.  Corry  v.  Campbell, 
154  U.   S     appx.,  625).  24  L.   Ed.  926. 

59.  A  plea  made  in  a  state  court  which 
sets  up  a  defense  under  the  state  law  or 
state  constitution,  presents  no  matter  of 
which  this  court  has  jurisdiction,  and 
however  much  the  party  ma}'  be  aggrieved 
by  the  decision  of  the  state  court,  if  he 
sets  up  in  his  plea  an  immunity  under  a 
state  law  and  not  under  the  constitution, 
laws  or  treaties  of  the  United  States,  no 
federal  question  is  presented.  Mitchell  v. 
Clark,  110  U.  S.  633.  28  L.   Ed.  279. 

60.  Construction  of  registration  laws. — 
The  state  supreme  court  of  Missouri  hav- 
ing decided  that  the  provision  of  the  state 
constitution  respecting  the  enactment  of 
registration  laws  does  not  limit  the  power 
of  the  general  assembly  to  create  more 
than  one  class  composed  of  cities  having 
a  population  in  excess  of  one  hundred 
thousand  inhabitants,  and  hence  that  the 
Nesbit  registration  law  was  not  repug- 
nant to  the  state  constitution,  this  con- 
clusion must  be  accepted  by  this  court. 
Backus  V.  Fort  Street  Union  Depot  Co.. 
169  U.  S.  557.  566,  42  L.  Ed.  853;  Mer- 
chants', etc..  Bank  v.  Pennsylvania,  167 
U.  S.  461,  462,  42  L.  Ed.  236;  Mason  f. 
Missouri,  179  U.  S.  328.  334,  45  L.  Ed. 
214. 


APPEAL  AND  KRROR. 


7AZ 


construction  of  state  laws  enacted  to  dispose  of  the  swamp  and  overflowed  lands 
granied  to  the  state  by  federal  government/^ i  to  questions  arising  under  the  ad- 
1  inisiration  of  the  criminal  laws  of  the  state.*'^  to  decisions  construing  the  con- 
stitution and  laws  of  a  state  in  regard  to  the  selection  of  grand  and  petit  jurors,«3 
to  a  question  as  to  whether  a  judgment  binding  the  ward's  estate  binds  also  the 
sureties  on  the  guardian's  bond,«*  to  the  construction  of  state  statutes  concern- 
ing pilotage,^^  to  the  powers  of  a  mayor  under  a  city  charter,^«  to  the  question 
wliether  a  defendant  in  a  suit  for  the  foreclosure  of  a  mortgage  has  fully  com- 
plied with  the  requirements  of  the  state  statute  in  order  to  make  a  complete  ten- 
der,^" to  the  construction  of  state  statutes  with  respect  to  divorce  and  alimony,^^ 


61.    Grants  of  land  by  state  to   county. 

— On  the  22d  cf  June.  1852,  an  act  of  the 
general  assembly  of  the  state  of  Illinois 
was  approved,  entitled  an  act  to  dispose 
of  the  swamp  and  overflowed  lands,  and 
to  pay  the  expenses  of  selecting  and  sur- 
veying the  same,  which  provided  that  all 
such  lands  granted  to  the  state  by  the 
act  of  congress  were  thereby  granted  to 
the  county.  Upon  a  writ  of  error  to  the 
state  court,  it  was  held,  that  where  the 
judgment  of  the  court  was  upon  the  con- 
struction of  the  terms  and  conditions  of 
the  grant  of  the  state  to  the  county  by 
this  act,  and  the  validitj^  of  this  enact- 
ment was  not  drawn  in  question,  there 
was  no  decision  against  the  claim  of  title 
under  the  United  States,  but  simply  that 
the  county  did  not  obtain  title  under  the 
grant  from  the  state.  Cook  County  v. 
Calumet,  etc..  Canal  Co.,  138  U.  S.  635, 
34    L.    Ed.    1110. 

^.  Administration  of  criminal  laws  of 
state. — Where  it  appears  by  the  statement 
of  the  plaintiffs  in  error  in  their  petition 
for  a  reargument  that  no  federal  question 
was  raised  or  considered  in  the  circuit 
court  or  in  the  superior  court  of  a  state, 
in  respect  to  the  admission  of  the  evi- 
dence, so  that  there  was  no  basis  on 
which  to  claim  error  in  this  respect  in 
those  courts,  and  that  the  supreme  court 
did  not.  in  passing  upon  the  contention, 
deal  with  it  as  a  federal  question,  but  as 
a  mere  question  arising  under  the  ad- 
ministration of  the  criminal  law  of  the 
state,  there  is,  therefore,  nothing  in  its 
action  for  the  supreme  court  of  the  United 
States  to  review.  Mallett  v.  North  Caro- 
lina.   181   U.    S.   589.    601.   45    L.    Ed.   1015. 

63.  Selection  of  jury. — Where  the  con- 
stitution and  laws  of  a  state  in  regard  to 
jury  selection,  as  construed  by  the  court 
of  the  state,  are  consistent  with  the 
fourteenth  amendment,  this  court  can  go 
no  further,  and  the  decision  of  the  state 
court  as  to  whether  the  local  law  has  been 
complied  with  will  not  be  revised.  Rawl- 
ins V.  Georgia,  201  U.  S.  638,  .50  L.  Ed. 
899. 

Selection  of  grand  jury. — The  refusal 
'^y  a  state  court  to  quash  an  indictment 
n  the  ground  that  a  state  statute,  under 
the  provisions  of  which  the  grand  jury 
was  drawn,  was  unconstitutional,  in  that 
it  was  alleged  to  be  a  local  or  special 
law,    and    not    enacted    according    to    the 


constitutional  requirement  of  previous 
public  notice,  presents  no  federal  ques- 
tion. Murray  v.  Louisiana.  163  U.  S.  101, 
41  L.   Ed.   87. 

64.  Guardian  and  ward.— A    suit    by    a 
guardian     to     restrain     the    collection    of 

taxes  levied  on  the  estate  of  his  ward  be- 
ing finally  settled  in  favor  of  the  state, 
and  the  only  federal  question  presented 
in  the  case  determined  in  favor  of  tiie 
right  of  the  state  to  enforce  the  tax  upon 
the  property  of  the  ward;  the  supreme 
court  of  the  United  States  will  not  con- 
sider the  purely  local  question  as  to 
whether  a  judgment  binding  the  estate 
binds  also  the  sureties  on  the  guardian's 
bond.  Baldwin  v.  Maryland.  179  U.  S.  220, 
45  L.  Ed.  160,  citing  and  approving  Mur- 
dock  V.  Memphis,  20  Wall.  590,  22  L.  Ed. 
429;  Myrick  v.  Thompson,  99  U.  S.  291, 
297,  25  L.  Ed.  324,  and  Swope  v.  LeflSng- 
well.  105  U.   S.  3.  26  L.  Ed.  939. 

65.  Pilotage  laws. — Whether  certain 
clauses  in  a  state  statute  concerning  pilot- 
age, illegal  because  in  contravention  of  § 
4237  of  the  Revised  Statutes  prohibiting 
discrimination  with  respect  to  pilotage  by 
states  in  favor  of  domestic  over  foreign 
vessels,  can  be  eliminated  without  de- 
stroying the  other  provisions  of  the  stat- 
ute, is  a  state  and  not  a  federal  question. 
Olsen  V.  Smith,  195  U.  S.  332.  342,  49  L. 
Ed.  224. 

66.  Power  of  mayor  under  city  charter. 
— Whether  the  provisions  of  a  city  char- 
ter enabled  the  council  to  delegate  any 
power  to  the  mayor  is  not  within  our 
competency  to  decide.  That  is  necessar- 
ily a  state  question,  and  we  are  confined 
to  a  consideration  of  whether  the  power 
conferred  does  or  does  not  violate  the 
constitution  of  the  United  States.  Wilson 
V.  Eureka  City,  173  U.  S.  32.  35,  43  L.  Ed. 
603. 

67.  Sufficiency  of  tender. — The  ques- 
tion whether  a  defendant  in  a  suit  for  the 
foreclosure  of  a  mortgage  has  fully  com- 
plied with  the  requirements  of  the  state 
statute  in  order  to  make  a  complete  ten- 
der, is  not  a  federal  question.  Hooker 
V.  Burr.  194  U.  S.  415.  48  L.   Ed.  1046. 

68.  Alimony  and  divorce. — The  action 
of  the  courts  of  a  state  with  respect  to  the 
provisions  of  a  decree  in  another  state 
for  the  payment  of  alimony  in  the  future, 
for  bond,  sequestration,  receiver  and  in- 
junction, which  being  in  the  nature  of  ex- 


744 


APPEAL  AXD  ERROR. 


to  the  question  whether  there  is  a  conflict  between  the  state  statutes  authorizing 
the  condemnation  of  property,**^  as  to  the  power  of  a  municipahty  under  a  state 
statute  to  change  the  grade  of  streets J^  to  the  decisions  of  a  state  court  depend- 
ing upon  the  construction  of  state  banking  laws,'^  to  a  decision  of  a  state  court 
upon  the  question  whether  the  governor  of  the  state  was  authorized  by  the  state 
statute  to  sell  the  state  bonds,"-  to  a  decision  of  a  state  court  as  to  whether  a 
municipality  within  the  state  has  the  power,  under  the  constitution  and  laws  of 
the  state,  to  make  certain  contracts,"^  and  to  many  other  decisions  of  state  courts 


ecution,  and  not  of  judgment,  can  have  no 
extra  territorial  operation,  and  depend  on 
the  local  statutes  and  practice  of  the 
state,  involves  no  federal  question  which 
may  be  reviewed  on  writ  of  error  to  a 
state  court  from  the  supreme  court  of  the 
United  States.  Lynde  v.  Lynde.  181  U. 
S.  183.  45  L.  Ed.  810.  reaffirmed  in  Jones 
V.  Vane.  200  U.  S.  614,  50  L.  Ed.  621. 

69.  Eminent  domain. — A  decision  of  the 
state  court  is  conclusive  upon'  the  ques- 
tion whether  there  is  a  conflict  between 
the  statutes  of  the  state  authorizing  con- 
demnation of  property  or  proceedings  had 
there  under,  and  the  constitution  of  the 
state.  Long  Island  Water  Supply  Co. 
V.  Brooklyn,  166  U.  S.  685,  41  L.  Ed.  1165, 
citing  West  River  Bridge  Co.  v.  Dix,  6 
How.  507,  12  L.  Ed.  534;  Bucher  r.  Ches- 
hire R.  Co.,  125  U.  S.  555.  31  L.  Ed.  795; 
Adams  Express  Co.  v.  Ohio,  165  U.  S. 
194,   41    L.    Ed.   683. 

70.  Change  of  grade  of  streets  by  city. — 
The  construction  of  a  state  statute,  where 
no  federal  question  is  involved  by  the 
highest  court  of  a  state,  as  to  the  power 
thereunder,  of  authorizing  a  municipality 
to  change  the  grade  of  streets,  must  be 
accepted  as  conclusive  bj'^  this  court. 
Mead  v.  Portland.  200  U.  S.  148,  50  L.  Ed. 
413. 

The  interpretation  b\'  the  supreme  court 
of  Oregon,  of  the  local  act  of  October 
18th  1878,  in  regard  to  the  change  of  the 
grade  of  Morrison  street  in  Portland  in- 
volves no  federal  question,  nor  does  it 
become  such  by  the  circumstances  of  the 
case.  Mead  v.  Portland,  200  U.  S.  148, 
50   L.   Ed.   413. 

71.  Banking  laws. — Where  an  assign- 
ment by  a  bank  to  trustees  was  adjudged 
by  the  state  court  of  Louisiana  to  be 
void  under  the  act  of  the  state  court  of 
Mississippi,  of  1840.  providing  that  it  should 
Hot  be  lawful  for  any  bank  in  Mississippi 
to  transfer  by  endorsement  or  otherwise 
any  note,  bill  receivable  or  other  debt, 
and  that  this  act  is  a  violation  of  the  char- 
ter granted  to  the  bank  and  impairs  the 
obligation  of  the  contract  which  the  char- 
ter created  between  the  state  and  corpo- 
ration, it  was  held  that  in  order  to  bring 
the  case  within  the  reviewing  power  of 
this  court  as  prescribed  by  the  25th  §  of 
the  judiciary  act,  the  record  must  show 
that  the  decision  of  the  state  court  turned 
upon  the  constitutionality  or  validity  of 
this  act  of  Mississippi,  and  was  decided.  If 
it  appears  from   the  record  that   the  deci- 


sion of  the  state  court  turned  merely  upon 
the  construction  of  a  state  law,  and  that 
the  question  of  its  validity  was  not  raised. 
this  court  has  no  jurisdiction.  Grand 
Gulf,  etc.,  R.  Co.  z:  Marshall,  12  How. 
]65.  13  L.  Ed.  938.  citing  Planter's  Bank 
V.  Sharp.  6  How.  301.  12  L.  Ed.  447;  Bald- 
win v.  Payne,  6  How.  301,  332,  12  L.  Ed. 
447;  Armstrong  v.  Athens  Co.,  16  Pet. 
281,  10  L.   Ed.  965. 

Where  the  legislature  of  Ohio,  in  the 
year  1824.  passed  a  general  law  relating 
to  banks,  and  afterwards,  in  1829,  char- 
tered another  bank;  and  the  question  be- 
fore the  state  court  was.  whether  or  not 
some  of  the  provisions  of  the  act  of  1824 
applied  to  the  bank  subsequently  char- 
tered, the  question  was  one  of  construc- 
tion of  the  state  statutes,  and  not  of  their 
validity.  This  court  has  no  jurisdiction 
over  such  a  case.  Commercial  Bank  v. 
Buckingham,  5  How.  317,  12  L.   Ed.  169. 

In  1816,  the  legislature  of  Ohio  passed 
an  "Act  to  prohibit  the  issuing  and  circu- 
lation of  unauthorized  bank  paper,"  and 
in  1839,  an  act  amendatory  thereof;  and 
the  question  was,  whether  or  not  a  canal 
company,  incorporated  in  1837,  was  sub- 
ject to  these  acts.  In  deciding  that  it 
was,  the  supreme  court  of  Ohio  only  gave 
a  construction  to  an  act  of  Ohio,  which 
neither  of  itself,  nor  by  its  application,  in- 
volved in  any  way  a  repugnancy  to  the 
constitution  of  the  L'nited  States,  b)'^  im- 
pairing the  obligation  of  a  contract. 
Lawler  v.  Walker,  14  How.  149,  14  L.  Ed. 
364. 

72.  Power  of  governor  to  sell  state 
bonds. — A  judgment  of  the  state  court 
upon  the  question  whether  bonds  of  the 
state  were  sold  by  the  governor  of  the 
state  within  the  authority  vested  in  him 
bj"  the  statute  of  the  state  under  which 
they  were  issued,  involves  no  federal  ques- 
tion. "There  is.  in  the  consideration  and 
determination  of  this  question,  no  resort 
to  any  federal  law;  it  is  purely  a  question 
of  the  construction  of  a  state  statute  and 
of  the  power  which  was  conferred  by  it 
iipon  her  agents — nothing  more  nor  less. 
The  govenor.  acting  in  their  disposal,  was 
limited  by  the  language  of  the  statute. 
He  could  sell  the  bonds  or  exchange  them 
for  treasury  notes,  state  or  confederate; 
he  could  not  dispose  of  them  in  any  other 
way."  Sage  v.  Louisiana  Board  of  Liqui- 
dation, 144  U.  S.  647.  650,  651,  36  L.  Ed. 
577. 

73.  Ultra  vires  contracts  by  municipal- 
ities.— No     federal     question     is     involved 


AFFBAL  AMD  BRROR. 


745 


depending  upon  the  construction  of  the  state  statutes  and  constitution,  instances 
of  which  will  be  found  in  the  notes."'* 


when  the  supreme  court  of  a  state  decides 
that  a  municipal  corporation  within  the 
-tate  had  not  power,  under  the  constitu- 
tion and  laws  of  the  state,  to  make  the 
contract  sued  on.  Missouri  v.  Harris,  144 
U.  S.  210.  36  L.  Ed.  409,  citing  Railroad 
V.  Rock,  4  Wall.  177.  181.  18  L.  Ed.  .381; 
Lehigh  Water  Co.  v.  Easton,  121  U.  S. 
388,  30  L.Ed.  1059;  New  Orleans,  etc., 
Co.  V.  Louisiana  Sugar  Refin.  Co..  125  U. 
S.  18,  30.  31  L.  Ed.  607;  and  St.  Paul  R. 
Co.  V.  Todd  County,  142  U.  S.  282,  35  L. 
Ed.   1014. 

74.  Extent  of  powers  of  trustee. — In  the 
state  of  Mississippi,  a  judgment  of  forfei- 
ture was  rendered  against  the  Commer- 
cial Bank  of  Natchez,  and  a  trustee  ap- 
pointed to  take  charge  of  all  promissory 
notes  in  possession  of  the  bank.  The 
trustee  brought  an  action  upon  one  of 
these  promissory  notes.  The  defendant 
pleaded  that  the  plaintiff,  as  trustee,  had 
collected  and  received  of  the  debts,  effects, 
and  property  of  the  bank,  an  amount  of 
money  sufficient  to  pay  the  debts  of  the 
bank,  and  all  costs,  charges,  and  expenses 
incident  to  the  performance  of  the  trust. 
To  this  plea  the  plaintifif  demurred.  The 
action  was  brought  in  a  state  court,  and 
the  highest  court  of  the  state  overruled 
the  demurrer,  and  gave  judgment  for  the 
defendant.  This  court  has  no  jurisdiction 
under  the  twenty-fifth  section  of  the  ju- 
diciary act  to  review  this  decision.  The 
question  was  merely  one  of  construction 
of  a  statute  of  the  state,  as  to  the  extent 
of  the  powers  of  the  trustee  under  the 
statute.  Robertson  v.  Coulter.  16  How. 
106.  14  L.   Ed.   864. 

Forfeiture  of  corporate  charter. — A  writ 
of  error  will  not  lie  from  this  court  to  a 
state  court,  to  reverse  a  decree  of  the 
state  court  decreeing  that  a  charter  of  a 
turnpike  company  be  forfeited,  and  an- 
nulled and  vacated  under  a  state  statute, 
and  that  the  company  be  perpetually  en- 
joined from  exercising  any  of  the  powers, 
franchises,  rights  and  privileges  granted 
by  the  charter.  This  is  a  question  of  state 
law  alone.  Nonconnah  Turnpike  Co.  v. 
Tennessee,  131  U.  S.  appx.  clviii,  24  L. 
Ed.  368. 

State  insolvent  laws. — In  1839  a  treaty 
was  made  between  the  United  States  and 
Mexico,  providing  for  the  "adjustment  of 
claims  of  citizens  of  the  United  States  on 
the  Mexican  Republic."  Under  this  treaty 
a  sum  of  money  was  awarded  to  be  paid 
to  the  members  of  the  Baltimore  Mexican 
Company,  who  had  subscribed  in  money 
to  fit  out  an  expedition  against  Mexico, 
under  General  Mina,  in  1816.  See  the 
case  of  Gill  v.  Oliver's  Executors.  11 
Howard  529.  The  proceeds  of  one  of  the 
shares  of  this  company  were  claimed  by 
two  parties;  one  as  being  the  second  per- 


manent trustee  of  the  insolvent  owner  of 
the  share,  and  the  other  as  being  the  as- 
signee of  the  first  permanent  trustee.  The 
court  of  appeals  of  Maryland  decided  that 
the  plaintifif.  viz;  of  the  second  permanent 
trustee,  did  not  take  the  claim  under  the 
insolvent  laws  of  Maryland.  This  deci- 
sion is  not  reviewable  by  this  court,  un- 
der t>e  25th  section  of  the  judiciary  act. 
Williams  v.  Oliver,  12  How.  111.  13  L.  Ed. 
915,  reaffirmed  at  p.  921,  citing  Gill  v.  Oli- 
ver.  11   How.  529,   13  L.   Ed.   799. 

Whether  a  deed  is  fraudulent  under  a 
state  statute  against  fraudulent  convey- 
ances is  not  a  federal  question  but  one  de- 
pendent entirely  upon  local  laws.  Cramer 
V.  Wilson.  195  U.  S.  408,  416.  49  L.  Ed. 
256. 

Conformity  of  ordinance  to  constitution. 
— In  error  to  a  state  court,  this  court  can- 
not pass  upon  the  question  of  the  con- 
formity of  a  municipal  ordinance  with  the 
requirements  of  the  constitution  of  the 
state.  Barbier  v.  Connolly.  113  U.  S.  27, 
28   L.  Ed.  923. 

State  statute  regulating  jurisdictional 
amount  of  its  courts. — Where  the  state 
court  dismissed  the  case  upon  the  ground 
that  the  matters  involved  were  purely  pe- 
cuniary and  that  the  amount  in  contro- 
versy in  each  case  was  less  than  sufficient 
to  give  the  court  jurisdiction  under  the 
constitution  of  the  state,  a  writ  of  error 
from  this  court  to  the  state  court  must  be 
dismissed.  Callan  v.  Bransford,  139  U.  S. 
197.  35   L.   Ed.   144. 

Construction  of  territorial  law. — -The 
plaintiff  and  the  defendant  in  an  action  of 
ejectment  in  a  state  court  in  Colorado 
both  claimed  title  under  a  valid  entry  of 
the  original  site  of  the  city  of  Denver, 
m.ade  by  the  probate  judge  under  the  town 
site  act  of  May  23,  1844,  5  Stat.  657,  c.  17. 
as  extended  to  Arapahoe  County  in  Col- 
orado by  the  act  of  May  28,  1864,  13  Stat 
94,  c.  99.  The  deed  under  which  the  de- 
fendant claims  was  executed  by  the  pro- 
bate judge  and  delivered  several  years  be- 
fore that  executed  and  delivered  by  his 
successor  to  the  plaintiff.  The  elder  deed 
was  assailed  as  defective  by  reason  of  fail- 
ure in  the  performance  by  the  grantee 
of  some  of  the  requirements  of  a  territo- 
rial statute,  prescribing  rules  for  the  exe- 
cution of  the  trust  arising  under  the  act 
of  congress.  The  supreme  court  of  the 
state  held  that  that  deed,  being  regular 
on  its  face,  and  purporting  to  have  been 
executed  in  pursuance  of  authorit3%  was 
not  open  to  attack  in  a  collateral  proceed- 
ing for  defects  or  omissions  in  the  initia- 
tory proceedings.  Held,  that  this  deci- 
sion proceeded  upon  the  proper  construc- 
tion of  a  territorial  law.  without  regard  to 
anv  right,  title  or  privilege  of  the  plain- 
tiff under  an  act  of  congress,  and  that  the 


746 


APPEAL  AND  ERROR. 


cc.  Enactment  of  State  Statutes. — The  question  whether  a  state  statute  was 
passed  in  conformity  with  the  constitution  of  the  state  is  a  question  for  the  de 
termination  of  the  state  court,  and  its  judgment  is  final."'^ 

dd.  Construction  of  Objection  That  State  Statute  Is  "Unconstitutional  and 
yoid.'' — We  have  no  jurisdiction  on  a  writ  of  error  to  a  state  court  to  declare 
a  state  law  void  on  account  of  its  collision  with  a  state  constitution,  and  it  was 


writ  of  error  iTiu?t  be  dismissed  for  want 
of  jurisdiction.  Chever  v.  Horner,  142  U. 
S.  r?A.  35  L.  Ed.  959. 

Statute  of  limitations. — The  question  as 
to  what  time  the  cause  of  action  brought 
by  a  corporation  against  a  subscriber  for 
shares  accrues,  within  the  meaning  of  the 
statute  of  limitations  of  the  state,  is  not 
a  federal  question,  but  a  local  question, 
upon  which  the  judgment  of  the  highest 
court  of  the  state  cannot  be  reviewed  by 
this  court.  Great  Western  Telegraph  Co. 
V.   Purdy,   162  U.   S.  329,  40  L.  Ed.  986. 

"Carothers  v.  Mayer,  164  U.  S.  325,  41 
L.  Ed.  453,  is  worthy  of  notice,  for  in  that 
case,  although  not  under  precisely  similar 
circumstances,  it  was  held  that  a  question 
arising  under  the  statute  of  limitations  as 
against  a  title  asserted  under  the  federal 
law  presented  no  federal  question,  and  so 
also  as  to  equitable  rights  asserted  as 
against  an  original  right  under  the  laws 
of  congress.  See.  also.  The  Pittsburgh, 
etc.,  R.  Co.  V.  Cleveland  Min.  Co.,  178  U. 
S.  270.  44  L.  Ed.  1065."  Moran  v.  Horsky, 
178  U.   S.  205,   214,  44  L.   Ed.   1038. 

Statute  of  limitations. — Where  suit  was 
commenced,  Nov.  16,  1868,  for  rent 
claimed  to  be  due  up  to  Aug.  8,  1865,  and 
where,  throughout  the  whole  intervening 
time,  the  district  within  which  the  cause 
of  action,  if  any  arose,  was  under  the 
control  of  the  federal  authorities,  and  the 
defendant  could  not  be  served  there  with 
process.  Held,  "It  is  quite  clear  that  it 
was  competent  for  the  supreme  court  of 
the  state  to  construe  and  apply  the  stat- 
ute of  limitations  enacted  by  the  state 
legislature,  and  that  their  decision  in  that 
regard  is  not  subject  to  re-examination 
here  under  a  writ  of  error  to  a  state 
court."  Harrison  v.  Myer,  92  U.  S.  Ill,  23 
L.  Ed.  606. 

A  case  brought  here  as  within  the  25th 
section  of  the  judiciary  act  will  be  dis- 
missed, where  neither  the  record  nor  the 
opinion  of  the  supreme  court  show  any 
question  before  that  court,  except  one  re- 
lating to  the  interruption  of  a  "prescrip- 
tion" (statute  of  limitations)  set  up  as  a 
defense,  and  the  opinion  showing  that  this 
question  was  decided  exclusively  upon  the 
principles  of  the  jurisprudence  of  the 
state.  Marqueze  v.  Bloom,  16  Wall.  351, 
21  L.  Ed.  280. 

The  administration  of  the  law  by  the  of- 
ficers or  the  courts  of  the  state  involves 
no  questions  of  which  we  can  take  juris- 
diction. The  law  being  valid,  the  courts 
of  the  state  have  exclusive  jurisdiction, 
appellate      or      otherwise,      of      all      cases 


brought  before  them  involving  proceed- 
ings for  its  enforcement.  Southwestern 
R.  Co.  V.  Wright,  116  U.  S.  231,  237,  29 
L.   Ed.   626. 

Power  of  city  to  lease  public  utilities. — 
Where  by  the  laws  of  the  state  the  board 
of  public  works  were  authorized  to  sell 
or  lease,  for  hydraulic  purposes,  surplus 
water  in  the  canals  of  the  state  not  re- 
quired for  the  purposes  of  navigation,  the 
question  whether  the  city  has  acted  in  ex- 
cess of  the  grant,  and  violated  the  provi- 
sions of  the  statute,  so  as  to  render  itself 
liable  for  damages  on  that  account,  is  for 
the  state  court  to  determine,  and  its  de- 
cision on  that  question  is  not  reviewable 
here.  Fox  v.  Cincinnati,  104  U.  S.  783, 
2G   L.   Ed.  928. 

75.  En£.-tm*it  of  state  statutes. — Smith 
V.  Jennings,  206  U.  S.  276,  51  L.  Ed.  1061. 
citing  Burt  v.  Smith,  203  U.  S.  129,  135,  51 
L.  Ed.  121;  Haire  v.  Rice.  204  U.  S.  291, 
51    L.    Ed.   490. 

Whether  statutes  of  a  legislature  of  a 
state  have  been  duly  enacted  in  accord- 
ance with  the  requirements  of  the  consti- 
tution of  such  state,  is  not  a  federal  ques- 
tion, and  the  decision  of  state  courts  as 
to  what  are  the  laws  of  the  state  is  bind- 
ing upon  the  courts  of  the  United  States. 
South  Ottawa  v.  Perkins,  94  U.  S.  260, 
268.  24  L.  Ed.  154;  Post  v.  Supervisors, 
105  U.  S.  667.  26  L.  Ed.  1204;  Norton  V. 
Shelby  County,  118  U.  S.  425,  440,  30  L. 
Ed.  178;  Railroad  Co.  v.  Georgia,  98  U. 
S.  359.  366,  25  L.  Ed.  185;  Baldwin  v. 
Kansas,  129  U.  S.  52,  57,  32  L.  Ed.  640; 
Leeper  v.  Texas,  139  U.  S.  462.  467.  35 
L.  Ed.  225,  affirmed  in  Davis  v.  Texas, 
139  U.   S.   651,  652,  35   L.   Ed.  300. 

It  is  the  duty  of  the  federal  court  to 
follow  the  rulings  of  the  highest  court 
of  the  state  on  the  question  whether  a 
particular  enactment  found  in  the  printed 
statutes  had  been  passed  in  such  a  man- 
ner as  to  become,  under  its  constitution, 
a  law  of  the  state.  Wilkes  County  v. 
Coler,  180  U.  S.  506,  524,  45  L.  Ed.  642; 
citing  and  approving  South  Ottawa  v. 
Perkins,  94  U.  S.  260,  2G7,  24  L.  Ed.  154; 
Post  V.  Supervisors.  105  U.  S.  667,  26  L. 
Ed.  1204,  and  distinguishing  Field  v. 
Clark,  143  U.  S.  679,  36  L.  Ed., 294. 

Whether  a  different  principle  would  ap- 
ply in  cases  where  rights  had  accrued  un- 
der a  statute  previously  adjudged  by  the 
state  court  to  have  been  passed  as  to  be- 
come a  law,  was  not  decided.  Wilkes 
County  V.  Coler,  180  U.  S.  506.  524,  45  L- 
Ed.   642. 


APPEAL  AND  ERROR. 


7A7 


long  ago  held,  that  where  it  was  objected  in  the  state  courts  that  an  act  of  the 
state  was  "unconstitutional  and  void,"  the  objection  was  properly  construed  in 
those  courts  as  raising  the  question  whether  the  slate  legislature  had  the  power 
under  the  state  constitution  to  pass  the  act  and  not  as  having  reference  to  any 
repugnance  to  the  constitution  of  the  United  States.""" 


76.  Construction  of  objection  that  state 
statute  is  "unconstitutional  and  void." — 
Porter  v.  Foley,  24  How.  415,  16  L.  Ed. 
740;  Kipley  v.  Illinois,  170  U.  S.  182,  186, 
42  L.  Ed.  998.  Miller  v.  Cornwall  R.  Co., 
168  U.  S.  131,  134.  42  L.  Ed.  409.  reaffirmed 
in  Charleston,  etc.,  Bridge  Co.  v.  West 
Virginia,  168  U.  S.  704,  42  L.  Ed.  1212; 
Kipley  v.  Illinois.  170  U.  S.  182,  187,  42 
L.    Ed.   998. 

Where  it  is  merely  alleged  that  the 
slate  law  is  invalid  and  unconstitutional, 
hut  it  is  not  alleged  that  the  law  is  repug- 
nant to  any  particular  provision  of  the 
constitution  of  the  United  States,  nor  that 
the  court  of  original  jurisdiction  rendered 
any  decision  upon  that  subject,  it  is  not 
sufficient  to  show  jurisdiction  in  the  su- 
preme court  under  §  709  of  the  Revised 
Statutes.  The  reason  for  this  rule  is  that 
a  mere  assignment  that  the  law  is  invalid 
and  unconstitutional  is  satisfied  if  held 
to  refer  to  the  constitution  of  the  state, 
in  which  event  the  question  raised  is  not 
one  cognizable  here  under  a  writ  of  er- 
ror to  a  state  court.  Messenger  v.  Ma- 
son, 10  Wall.  507,  509,  19  L.  Ed.  1028; 
Bridge  Proprietors  v.  Hoboken,  etc.,  Co.. 
1  Wall.  116,  17  L.  Ed.  571;  Furman  v. 
Nichol,  8  Wall.  44,  19  L.  Ed.  370;  Max- 
well V.  Newbold.  18  How.  511.  516,  15  L. 
Ed.  506;  Farney  v.  Towle,  1  Black  350, 
351,  17  L.  Ed.  216;  Hoyt  v.  Sheldon,  1 
Black  521;  Railroad  v.  Rock.  4  Wall.  177, 
180,  18  L.  Ed.  381;  Edwards  v.  Elliott,  21 
Wall.  532,  22  L.   Ed.  487. 

In  a  writ  of  error  to  a  state  court, 
something  more  must  be  set  forth,  to 
raise  the  federal  question,  than  the  mere 
allegation  that  the  law  is  invalid  and  un- 
constitutional, as  such  an  assignment  is 
satisfied  if  held  to  refer  to  the  constitu- 
tion of  the  state,  in  which  event  the  ques- 
tion raised  is  not  cognizable  here  under 
a  writ  of  error  to  a  state  court.  There- 
fore, complaint  made  that  the  subordinate 
court  improperly  decided  that  the  lien 
law  of  the  state  is  valid  and  constitu- 
tional, but  where  it  is  not  alleged  that 
the  law  is  repugnant  to  any  particular 
provision  of  the  constitution  of  the  United 
States,  nor  that  the  court  of  original  ju- 
risdiction rendered  any  decision  upon  that 
subject,  the  writ  of  error  will  be  dis- 
missed for  want  of  jurisdiction.  Edwards 
V.   Elliott,   21   Wall.  532,  22   L.    Ed.   487. 

Where  it  appears  from  the  proceed- 
ings on  the  trial,  and  the  grounds  as- 
signed for  the  motion  for  a  new  trial, 
that  the  unconstitutionality  of  the  act  was 
relied  on  in  defense,  but  the  record  does 
not  show  that  it  was  contended  in  the 
trial  court  that  the  act  was  in  contraven- 


tion of  the  constitution  of  the  United 
States,  the  supreme  court  cannot  review  the 
decision  as  it  is  settled  that  the  objec- 
tion in  the  state  courts  that  an  act  of  the 
state  is  "unconstitutional  and  void,"  .re- 
lates only  to  the  power  of  the  state  leg- 
islature under  the  state  constitution.  Mil- 
ler V.  Cornwall  R.  Co.,  168  U.  S.  131,  42 
L.  Ed.  409;  Jacobi  v.  Alabama.  187  U.  S. 
133,  47  L.  Ed.  106;  Layton  v.  Missouri, 
187  U.  S.  356,  358,  47  L.  Ed.  214.  re- 
affirmed in  St.  Louis  E.xpanded  MetaU 
etc.,  Co.  V.  Standard  Fireproofing  Co., 
195  U.  S.  627,  49  L.  Ed.  351;  New  York, 
etc.,  R.  Co.  V.  Plymouth.  193  U.  S.  66«, 
48  L.  Ed.  839. 

Where  an  act  of  assembly  of  the  state 
of  Kentucky  was  objected  to  in  the  state 
court  because  said  act  and  supplement 
were  unconstitutional  and  void,  the  court 
properly  considered  the  question  as  re- 
hiting  to  the  power  of  the  legislature  to 
pass  the  act  under  the  constitution  of  the 
state,  and  not  under  the  constitution  of 
the  United  States.  There  is,  therefore, 
no  ground  for  the  exercise  of  jurisdic- 
tion by  this  court  under  the  25th  section 
of  the  judiciary  act.  Porter  v.  Foley,*  24- 
How.    415,    16    L.    Ed.    740. 

The  averment  in  an  answer,  that  the 
statute  of  Illinois  is  unconstitutional  and 
void,  must  be  taken  as  intended  to  ap- 
ply to  the  constitution  of  that  state,  and 
not  to  the  constitution  of  the  United 
States.  Miller  v.  Cornwall  R.  Co..  168 
U.  S.  131,  134,  42  L.  Ed.  409;  Kipley  v. 
Illinois,  170  U.  S.  182,  187,  42  L.  Ed.  998, 
reaffirmed  in  Harkins  v.  Ashville.  180  U 
S.  635,  45  L.  Ed.  709;  Ross  v.  King,  172 
U.  S.  641;  Jones  v.  Vane,  200  U  S  614 
50    L.    Ed.   621. 

Where  no  federal  right  is  specially  set 
up  or  claimed  at  the  proper  time  oi;  in 
the  proper  way,  nor  is  any  such  right  in 
issue  and  necessarily  determined,  but  the 
judgment  rests  on  nonfederal  grounds  en- 
tirely sufficient  to  support  it,  and  a  mo- 
tion for  a  new  trial  pursues  a  common 
formula,  and  one  of  the  grounds  assigned 
is  that  the  judgment  is  "contrary  to  law," 
this  cannot  be  construed  as  having  a 
single  meaning,  and  distinctly  referring 
to  the  denial  of  a  right  claimed  under  an 
act  of  congress,  consistently  with  the 
requirements  of  §  709  of  the  Revised 
Statutes.  Capital  Nat.  Bank  v.  First  Nat. 
Bank,  172  U.  S.  435,  43  L.  Ed.  502. 

Right  of  confrontation. — Where,  in  a 
trial  of  a  criminal  case  in  a  state  court, 
the  former  testimony  of  an  absent  wit- 
ness for  the  state  is  objected  to  by  the 
defendant  upon  the  ground  that  he  has 
the    right    to    be    confronted    by    the    wit- 


748 


APPEAL  AND  ERROR. 


ee.  Qualifications  of  General  Rules. — But  where  a  question  involved  in  the 
construction  of  state  statutes  practically  affects  those  remedies  of  creditors  which 
are  protected  by  the  constitution,  this  court  will  exercise  its  own  judgment  on 
the  meaning  of  the  statutes,  irrespective  of  the  decisions  of  the  state  courts,  and 
if  it  deems  these  decisions  wrong,  will  not  follow  them ;  and  this  whether  the  case 
come  here  from  the  circuit  court  in  ordinary  course,  or  from  the  supreme  court 
of  the  state  under  the  25th  section  of  the  judiciary  act."''' 

(63)  Where  Decision  of  State  C^urt  Dep-ends  upon  Questions  of  State  Prac- 
tice and  Procedure. — In  General. — So  far  as  respects  any  matter  of  procedure, 
the  decision  of  the  state  court  is  conclusive."* 


ness  against  him,  but  no  reference  is  made 
in  the  objection  to  the  constitution  of  the 
United  States,  and  the  constitution  of  the 
state  in  which  the  trial  takes  place,  also 
provides  that  the  accused  shaU  be  con- 
fronted by  the  witness  against  him,  it  will 
be  deemed  that  the  objection  was 
based  upon  the  state  rather  than  the 
federal  constitution,  and  the  supreme 
court  of  the  United  States  will  not 
review  the  judgment  of  the  state 
court.  Jacobi  v.  Alabama,  187  U.  S.  133. 
47  L.  Ed.  106.  citing  Spies  v.  Illinois,  123 
U.  S.  131,  31  L.  Ed.  80;  Brooks  v.  Mis- 
souri, 124  U.  S.  394,  31  L.  Ed.  4.54;  Bald- 
win V.  Kansas,  129  U.  S.  52,  32  L.   Ed.  640. 

77.  Qualifications  of  general  rules. — 
Butz  v.  City  of  Muscatine.  8  Wall.  57.5, 
19  L.  Ed.  490,  followed  in  United  States 
Army  v.  Burlington,  154  U.  S.  568.  19  L. 
Ed.    495. 

78.  Where  decision  of  state  court  de- 
pends upon  questions  of  state  practice  and 
procedure. — Long  Island  Water  Supply 
Co.  V.  Brooklyn,  166  U.  S.  685.  41  L.  Ed. 
1165.  citing  West  River  Bridge  Co.  v. 
Dix,  6  How.  507,  12  L.  Ed.  535;  Bucher 
V.  Cheshire  R.  Co.,  125  U.  S.  555,  31  L- 
Ed.  795;  Adams  Express  Co.  v.  Ohio,  165 
U.  S.  194,  41  L.  Ed.  683;  Johnson  v. 
Drew,   171    U.   S.  93,  98,  43   L.   Ed.   88. 

The  decision  of  a  state  court  holding 
that  no  cause  of  action  is  set  forth  in  the 
pleadings,  and  that  it  is  against  the  pub- 
lic policy  of  the  state  to  permit  an  action 
for  a  certain  purpose,  involves  no  federal 
question.  Finney  v.  Guy,  189  U.  S.  335, 
47    L.    Ed.    839. 

Questions  of  variance,  and  whether  the 
judgment  should  be  one  of  dismissal  or 
•simply  for  a  new  trial,  involve  merely 
questions  of  state  procedure.  California 
Nat.  Bank  v.  Thomas,  171  U.  S.  441.  43 
L.    Ed.    231. 

Where  the  question  decided  by  the  su- 
preme court  of  Louisiana  was,  that  the 
introduction  of  a  judgment  obtained  in 
Mississippi  for  the  same  cause  of  action 
which  was  then  before  the  court  of 
Louisiana  was  not  such  an  alteration  of 
the  substance  of  the  demand  as  was  for- 
bidden by  the  code  of  practice,  this  is  not 
a  question  which  can  be  revised  by  this 
eourt  under  the  twenty-fifth  section  of  the 
judiciary  act;  it  being  merely  a  question 
of  pleading  and  evidence  in  support  of  a 
new    allegation,    arising   according    to    the 


practice  in  Louisiana  so  as  to  reach  the 
merits  of  the  case.  "There  is  no  com- 
plaint that  the  obligation  of  a  contract 
has  been  impaired,  nor  that  any  right  has 
been  claimed  and  refused  under  any 
treaty  or  act  of  congress.  The  cause  must 
therefore  be  dismissed,  for  want  of  juris- 
diction." White  V.  Wright.  22  How.  19, 
23.    16   L.    Ed.   279. 

The  decision  of  the  supreme  court  of 
California,  that  as  no  appeal  was  prose- 
cuted from  the  final  judgments,  the  order 
denying  the  application  to  remove  was 
not  open  to  review,  and  its  judgment 
thereupon  dismissing  the  appeal  from  the 
orders  refusing  to  set  aside  the  judgments 
of  the  court  below  rest  upon  grounds  of 
states  procedure  with  which  it  is  not  our 
province  to  interfere,  and  presents  no  fed- 
eral question.  Tripp  v.  Santa  Rosa  St.  R. 
Co.,   144  U.   S.  126,  130,  36  L.  Ed.  371. 

Upon  a  writ  of  error  to  a  state  court, 
the  question  whether  on  the  death  of  a 
party  after  judgment  another  party  was 
properly  substituted  in  that  court,  before 
the  suing  out  of  the  writ  of  error,  is  a 
question  of  practice  which  the  state  court 
has  exclusive  right  to  determine,  and  is 
not  reviewable  here.  Renaud  v.  Abbott, 
116   U.    S.   277.  29    L.    Ed.  629. 

Whether  a  case  shall  be  regarded  as 
pending  while  it  is  possible  that  a  peti- 
tion for  rehearing  may  be  filed,  or.  if  in 
an  appellate  court,  until  the  remittitur  is 
issued,  are  questions  which  the  local  law 
can  settle  as  it  pleases  without  interfer- 
ence from  the  constitution  of  the  United 
States.  Patterson  v.  Colorado,  205  U.  S. 
454,   460,   51    L.    Ed.    879. 

Allowance  of  appeal. — This  court  will 
not  review  or  reverse  the  action  of  a  state 
court  in  allowing  an  appeal  in  the  nature 
of  a  bill  of  review,  on  the  ground  that  it 
was  improperly  allowed  under  the  prac- 
tice of  the  state  in  such  cases.  Central 
Nat.  Bank  %\  Stevens.  169  U.  S.  432,  433, 
42    L.    Ed.    807. 

Premature  appeals. — The  court  of  ap- 
peals of  Maryland,  in  dismissing  this  case, 
said:  "The  defendant,  long  after  the  time 
fixed  bv  the  rule  of  court,  demanded  a 
jury  trial,  and,  without  waiting  for  the 
action  of  the  court  upon  his  motion,  and 
indeed  before  there  was  any  trial  of  the 
case  upon  its  merits  and  before  any  judg- 
ment, final  or  otherwise,  was  rendered, 
this   appeal  was  taken  from  what  the  or- 


APPEAL  AND  ERROR. 


749 


Questions  relating  to  matters  of  pleading  and  practice  under  the  laws 
of  the  state,  involve  no  federal  question,  and  are  not  proper  for  our  considera- 
tion.'^ 

Pleading  and  Proof  of  Fraud.— A  decision  by  a  state  court  that,  in  an  ac- 
tion for  fraud  and  deceit,  the  plaintifif  is  bound  to  prove  the  fraud,  as  alleged  in 
the  declaration,  in  order  to  maintain  the  action,  involves  no  federal  question. «» 

Discretionary  Matters.— The  decision  of  a  state  court  upon  a  matter  of 
practice  under  state  procedure,  as,  for  example,  that  a  certain  application  being 
addressed  to  the  court's  discretion,  could  not  be  revised,  raises  no  federal  ques- 
tion.^^ 

Sufficiency  of  Pleadings.— A  decision  by  a  state  court  that  the  pleadings 
were  sufficient  to  permit  of  the  examination  and  determination  of  the  point  on 


der  of  appeal  calls  the  order  of  court  of 
the  6th  of  February,  1896,  denying  the 
defendant  the  right  of  a  jury  trial;  but 
no  such  order  appears  to  have  been 
passed.  On  the  day  mentioned  in  the 
order  of  appeal  there  was  an  order  passed 
by  the  court  below  fixing  the  case  for 
trial,  but  there  was  no  action  taken  in 
pursuance  of  such  order  until  subsequent 
to  this  appeal.  There  is  another  appeal 
pending  here  from  the  orders  which  were 
ultimately  passed."  Held,  that  no  federal 
question  was  disposed  of  by  this  decision. 
Chappell  Chemical  Co.  v.  Sulphur  Klines 
Co..   172   U.   S.   472,   43   L.   Ed.    517. 

Reprieve. — Whether,  when  the  gov- 
ernor of  a  state  has  issued  a  reprieve  in  a 
capital  case  which  carried  the  date  of  ex- 
ecution beyond  the  time  fixed  in  the  de- 
cision of  the  state  supreme  court,  such  ac- 
tion rendered  unnecessary  the  fixing  by 
the  court  of  a  new  day  for  execution,  was 
purely  a  question  of  state  practice,  not 
controlled  by  the  federal  constitution  or 
laws,  and  upon  which  the  state  court  had 
final  jurisdiction.  Rogers  v.  Peck,  199 
U.  S.  42.5,  435,  50  L.  Ed.  256;  Lambert  v. 
Barrett.   159  U.   S.  697,  699,  39  L.   Ed.  865. 

Place  of  sitting  of  state  court — 
Whether  the  state  supreme  court  should 
be  held  in  each  county  or  at  the  state 
capital  for  all  the  counties,  is  entirely  a 
question  of  state  procedure,  presenting  no 
federal  question.  Rogers  v.  Peck,  199  U. 
S.  425,  435.  50  L.  Ed.  256. 

79.  Buena  Vista  County  v.  Iowa  Falls, 
etc..  R.  Co.,  112  U.  S.  165,  177.  28  L.  Ed. 
680. 

Whether  the  pleadings  in  a  cause  in  a 
state  court  justified  a  grant  of  affirmative 
relief,  considered  as  a  mere  question  of 
practice,  presents  no  federal  question. 
National  Foundry,  etc.,  Works  v.  Oconto 
Water  Supply  Co.,  183  U.  S.  216,  237,  46 
L.   Ed.    157. 

80.  Forsvth  v.  Vehmever,  177  U.  S.  177. 
180,  44  L.  Ed.  723,  followed  in  Bullis  v. 
O'Beirne.  195  U.  S.  606,  617,  49  L.  Ed. 
340. 

Where  it  is  claimed  that  a  jude:ment 
rendered  by  a  state  court  is  not  released 
by  a  discharge  of  the  debtor  in  bank- 
ruptcy  because    it    is   one    rendered    in   an 


action  for  fraud,  whether  the  complaint  in 
the  state  court  sufficiently  charged  fraud 
is  not  a  federal  question,  this  being  purely 
a  question  of  state  procedure.  Bullis  v. 
O'Beirne,  195  U.  S.  606,  49  L.  Ed.  340, 
citing  Forsyth  v.  Vehmeyer,  177  U.  S. 
177,   44    L.    Ed.    723. 

Special  pleas  setting  up  a  federal  ques- 
tion were  filed  after  the  case  had  been 
decided  by  the  supreme  court  of  a  state 
and  remanded  to  the  lower  court  for  a 
new  trial.  No  leave  was  applied  for  or 
granted  to  file  these  additional  pleas  as 
required  by  the  state  practice.  It  was 
held,  that  "even  if  leave  had  been  asked 
to  file  them,  it  was  a  matter  of  discretion 
with  the  trial  court  to  permit  it,  and  a 
matter  of  state  practice  which  cannot  be 
inquired  into  here."  Carr  v.  Nichols, 
157  U.  S.  370,  39  L.  Ed.  736;  Mexican  Cen- 
tral Railway  Co.  v.  Pinkney,  149  U.  S. 
194,  199,  37  L.  Ed.  699;  Long  Island 
Water  Co.  v.  Brooklyn,  166  U.  S.  685, 
688,  41  L.  Ed.  1165;  Yazoo,  etc.,  R.  Co.  v. 
Adams,  180  U.  S.  1.  45  L.  Ed.  395,  re- 
affirmed in  Yazoo,  etc.,  R.  Co.  ■:•.  Adams, 
180   U.   S.   26,   45   L.   Ed.   408. 

Nature  cf  foreclosure  proceeding. — The 
question  whether  an  action  to  foreclose 
a  lien  for  unpaid  assessments  for  street 
improvements  is  in  rem,  or  in  personam, 
under  the  practice  in  California,  is  one 
upon  which  the  decision  of  the  supreme 
court  is  binding,  and  its  ruling  that  plain- 
tiff, being  no  part}-  to  defendants'  suits 
to  foreclose,  had  a  right  to  show  by  evi- 
dence aliunde  the  invalidity  of  the  judg- 
ments obtained  by  them,  is  not  a  proper 
subject  for  review  by  this  court.  In  no 
aspect  does  the  case  present  a  federal 
question.  Wood  i\  Brady,  150  U.  S.  18, 
23.  37  L.  Ed.  981,  followed  in  Dougherty 
r.  Nevada  Bank,  160  U.  S.  171,  40  L.  Ed. 
382. 

What  constitutes  the  commencement  of 
an  action  in  a  state  court  being  matter 
of  state  law.  the  decision  of  that  court 
on  this  point  is  not  a  federal  question, 
and  is  not  therefore  reviewable  here. 
Richmond  Min.  Co.  v.  Rose,  114  U.  S. 
576.    583,  29    L.    Ed.   273. 

81.  Thorington  v.  Montgomery,  147  U. 
S.    490,    37    L.    Ed.   252. 


750 


APPEAL  AND  ERROR. 


which  its  decision  turned,  involves  no  federal  question. ^^ 

Contempt. — No  decision  of  this  court  has  gone  so  far  as  to  hold  that  the  con- 
struction which  the  highest  court  of  a  state  places  upon  its  own  judgment,  and 
under  which  construction  it  holds  that  a  party  thereto  has  not  been  guilty  of 
contempt,  presents  a  federal  question,  such  as  would  confer  jurisdiction  upon 
this  court  to  re-examine  or  reverse  such  a  judgment. ^-^ 

Review  of  Facts  by  State  Appellate  Court. — The  supreme  court  of  the 
United  States  cannot  review  the  decision  of  the  highest  court  of  a  state  on  con- 
troverted questions  of  fact,  even  where,  under  the  statutes  of  that  state,  the 
court  does  not  re-examine  such  controverted  questions.^* 

Criminal  Practice. — A  ruling  by  a  state  court  to  the  efifect  that  the  accused 
shall  be  deemed  to  have  waived  compliance  with  the  statute,  if  the  record  does 
not  show  that  he  objected  at  the  time  to  the  action  of  the  court,  is  an  adjudica- 
tion simply  of  a  question  of  criminal  practice  and  local  law,  and  is  not  reviewable 
by  the  supreme  court  of  the  United  States. ^^ 

(64)  Decision  That  Right  under  Constitution  Has  Been  Waived. — There  is 
nothing  to  prevent  a  party  from  waiving  a  federal  right  if  he  chooses  to  do  so, 
either  in  express  terms  or  as  a  necessary  implication  from  his  manner  of  pro- 
ceeding in  the  cause. ^^  The  decision  of  a  state  court  holding  that  the  right  a  per- 
son claims  under  the  constitution  has  been  waived,  does  not  present  a  federal 
question,  which  will  sustain  a  writ  of  error  to  the  state  court.  "A  person  may, 
by  his  acts  or  omission  to  act,  waive  a  right  which  he  might  otherwise  have  un- 
der the  constitution  of  the  United  States  as  well  as  under  a  statute,  and  the 
question  whether  he  has  or  has  not  lost  such  right  by  his  failure  to  act  or  by  his 
action,  is  not  a   federal  one."*' 


82.  Grand  Rapids,  etc.,  R.  Co.  v.  But- 
ler, 159   U.  S.  87,  40  L.   Ed.  85. 

It  is  manifest  that  it  was  never  con- 
templated by  the  framers  of  the  consti- 
tution that  this  court  should  sit  in  review- 
as  an  appellate  court,  of  such  a  question 
as  that  presented  by  the  record  in  the 
case  at  bar,  viz,  whether  or  not  the  highest 
court  of  a  state  erred  in  holding  that  it 
could  rightfully  determine  from  the  state- 
ments in  the  pleadings  filed  by  both  par- 
ties to  a  controversy  pending  before  it 
that  the  averments  of  an  answer  set 
forth  no  defense  to  the  claim  of  the  plain- 
tiff. Iowa  Central  R.  Co.  v.  Iowa,  160  U. 
S.  389,  393.  40  L.  Ed.  467,  reaffirmed  in 
Stallcup  V.  Tacoma,  165  U.  S.  719,  41  L. 
Ed.   1185. 

83.  Newport  Light  Co.  v.  Newport,  151 
U.   S.   527,  539,  38   L.   Ed.  259. 

84.  Chemical  Nat.  Bank  v.  City  Bank, 
160   U.   S.   646,   40   L.    Ed.  568. 

85.  Dreyer  v.  Illinois,  187  U.  S.  71.  47 
L.  Ed.  79,  reaflfirmed  in  Moss  v.  Glenn, 
189  U.   S.   586,   47   L.   Ed.   921. 

86.  Decision  that  right  under  constitu- 
tion has  been  waived. — Harding  v.  Illinois, 
196  U.  S.  78.  88,  49  L.  Ed.  394,  reaffirmed 
in  Robinson  v.  Wingate.  198  U.  S.  580, 
49  L.  Ed.  1171;  Chicago,  etc.,  R.  Co.  v. 
Newell,  198  U.  S.  579,  49  L.  Ed.  1171; 
Scale  V.  Georgia.  201  U.  S.  642,  50  L.  Ed. 
902. 

87.  Pierce  v.  Somerset  R.  Co.,  171  U. 
S.  641,  649,  43  L.  Ed.  316,  citing  Clay  v. 
Smith,  3  Pet.  411,  7  L.  Ed.  723;  Eustis  v. 
Bolles.  150  U.  S.  361,  37  L.  Ed.  1111;  Hale 
V.  Lewis.  181  U.   S.  473,  45   L.   Ed.  959. 


"In  Pierce  v.  Somerset  R.,  171  U.  S.  641, 
648,  43  L.  Ed.  316,  we  said:  'A  person 
may  by  his  acts  or  omission  to  act  waive 
a  right  which  he  might  otherwise  have 
under  the  constitution  of  the  United 
States  as  well  as  under  a  statute,  and  the 
question  whether  he  has  or  has  not  lost 
such  right  by  his  failure  to  act  or  by  his 
action,  is  not  a  federal  one.'  Eustis  v. 
Bolles,  150  U.  S.  361,  37  L.  Ed.  1111; 
Rutland  R.  Co.  v.  Central  Vermont  R. 
Co.,  159  U.  S.  630,  40  L.  Ed.  284,  and 
Seneca  Nation  of  Indians  v.  Christy,  163 
U.  S.  283.  40  L.  Ed.  970,  were  cited." 
Leonard  v.  Vicksburg.  etc.,  R.  Co.,  198 
U.  S.  416,  422,  49  L.  Ed.  1108.  reaffirmed 
in  South  Carolina  v.  Jennings,  204  U.  S. 
667,    668,    51    L.    Ed.    671. 

Eustis  V.  Bolles,  150  U.  S.  361,  37  L.  Ed. 
1111,  was  an  action  to  recover  the  resi- 
due of  a  note,  the  holder  having  received 
one-half  of  the  amount  under  certain  in- 
solvency proceedings  in  Massachusetts. 
Defendants  pleaded  the  proceedings  in 
insolvency,  an  offer  of  composition,  its 
acceptance  by  plaintiff  and  the  receipt  of 
the  amount  coming  to  him  under  the  com- 
position. Plaintiff  demurred,  and  insisted 
that  the  statute,  which  had  been  enacted 
after  the  note  had  been  executed,  im- 
paired the  obligation  of  his  contract.  The 
supreme  court  held,  that  the  action  of 
plaintiff  in  accepting  his  dividend  under 
the  insolvency  proceedings  was  a  waiver 
of  his  right  to  object  to  the  validity  of 
the  statute.  Upon  writ  of  error  from 
this  court,  we  held  that,  in  deciding  that 
it  was  competent  for  plaintiff  to  waive  his 


APPEAL  AND  ERROR. 


751 


{6S)  Sufficiency  of  Shoiving  in  State  Court. — The  question  whether  a  right 
or  privilege,  claimed  under  the  constitution  or  laws  of  the  United  States,  was  ais- 
tinctJy  and  sufficiently  pleaded  and  brought  to  the  notice  of  a  state  court,  is  it- 
self a  federal  question,  in  the  decision  of  which  this  court,  on  writ  of  error,  is 
not  concluded  by  the  view  taken  by  the  highest  court  of  the  state.** 

r.  Amount  in  Controversy. — No  value  is  required  to  bring  cases  to  this  court 
from  state  courts  under  the  25th  section  of  the  judiciary  act.'^^ 

s.  Transfer  of  Cause — (1)  In  General. — Writs  of  error  to  a  state  court  re- 
move the  suit  to  this  court,  and  whether  or  not  juu'sdiction  may  be  entertained, 
it  is  for  this  court  to  determine  when  the  question  properly  arises.  And  so  if 
there  be  a  controversy  in  respect  of  the  form  of  the  writs,  parties,  citation  and 
service,  or  otherwise,  these  are  matters  for  the  disposition  of  this  court  with- 
out interference  from  any  other.  Therefore,  the  circuit  court  cannot  prevent 
this  court,  or  a  justice  thereof,  'or  the  presiding  judge  of  the  state  court,  from 
granting  writs  of  error,  by  restraining  the  parties  from  applying  therefor;  nor 
can  it  properly  direct  their  dismissal,  after  it  has  been  granted.  In  short,  cases 
transferred  to  this  court  must  be  dealt  with  by  this  court. ^" 

(2)  What  Law  Governs. — The  judgment  or  decree  of  the  state  court  may  be 
re-examined  by  writ  of  error  in  the  same  manner  as  if  rendered  in  a  cir- 
cuit court. ^1     A  writ  of  error,  under  the  25th  section  of  the  judiciary  act.  so  far 


legal  rights,  and  that  accepting  his  divi- 
dend under  the  insolvency  proceedings 
was  such  a  waiver,  the  court  did  not  de- 
cide a  federal  question,  and  the  writ  of  er- 
ror was  dismissed.  Citing  Beaupre  v. 
Noyes,  138  U.  S.  397,  34  L.  Ed.  991.  See, 
also.  Electric  Co.  v.  Dow.  166  U.  S.  489, 
41  L.  Ed.  1088;  Pierce  v.  Somerset  R.  Co., 
171  U.  S.  641,  43  L.  Ed.  316;  Seneca  Na- 
tion of  Indians  v.  Christy.  162  U.  S.  283. 
40  L.  Ed.  970,  Hale  v.  Lewis,  181  U.  S. 
473,   480,   45    L.    Ed.   959. 

In  Moran  v.  Horsky,  178  U.  S.  205,  44 
L.  Ed.  1038,  a  defense  under  the  laws  of 
the  United  States  was  held  by  the  su- 
preme court  of  Montana  to  have  been 
waived  by  the  laches  of  the  plaintiff.  This 
was  also  held  to  be  a  nonfederal  ground 
sufficient  to  support  the  judgment,  and 
the  writ  of  error  was  dismissed.  Hale  v. 
Lewis,   181   U.   S.  473,   480.  45  L.   Ed.  959. 

Construction  of  New  Hampshire  mill 
act. — .\  decision  of  the  supreme  court  of 
New  Hampshire  that  the  plaintiff  in  er- 
ror, by  availing  itself  of  the  power  con- 
ferred by  the  general  mill  act  of  that 
state,  approved  July  3,  1868,  which  pro- 
vides that  in  proceedings  against  mill 
owners  to  recover  damages  resulting  from 
overflows  of  land  caused  by  dams  erected 
by  them,  "if  either  party  shall  so  elect, 
said  court  shall  direct  an  issue  to  the  jury 
to  try  the  facts  alleged  in  the  said  peti- 
tion and  assess  the  damages;  and  judg- 
inent  rendered  on  the  verdict  of  such 
jury,  with  fifty  per  cent,  added,  shall  be 
final,  and  said  court  may  award  costs  to 
either  party  at  its  discretion,"  and  join 
in  a  trial  for  the  assessment  of  damages. 
1^  P' ecluded  from  denying  the  validity  of 
that  provision  which  prescribes  that  fifty 
per  cent,  shall  be  added  to  the  amount  of 
the  verdict,  cannot  be  reviewed  by  this 
court  on  a  writ  of  error,  because  its  judg- 


ment is  not  based  on  any  federal  ques- 
tion. Electric  Co.  v.  Dow,  166  U.  S.  489, 
41  L.  Ed.  1088,  citing  Beaupre  v.  Noyes, 
138  U.  S.  397,  34  L.  Ed.  991;  Eustis  v. 
Bolles,  150  U.  S.  361,  37  L.  Ed.  1111.  re- 
affirmed in  Minneapolis,  etc.,  R.  Co.  v. 
Gano,   190   U.   S.   557,  47   L.   Ed.    1183. 

88.  Sufficiency  of  showing  in  state 
court. — Neal  v.  Delaware,  103  U.  S.  37e, 
396.  397,  26  L.  Ed.  567;  Mitchell  v.  Clark, 
110  U.  S.  633.  645,  28  L.  Ed.  279;  Boyd  v. 
Thayer.  143  U.  S.  13-5.  l»e,  36  L.  Ed.  103; 
Carter  v.  Texas,  177  U.  S.  442,  447,  44  L. 
Ed.  839;  Erie  R.  Co.  v.  Purdy,  185  U.  S. 
148,   152,  46   L.    Ed.   847. 

89.  Amount  in  controversy. — Weston  v. 
Charleston,  2  Pet.  449,  7  L.  Ed.  481; 
Holmes  z'.  Jennison,  14  Pet.  540.  10  L. 
Ed.  579;  The  Paquette  Habana,  175  U.  S. 
677.   44   L.    Ed.   320. 

The  appellate  jurisdiction  of  this  court, 
in  cases  brought  from  the  state  courts, 
arising  under  the  constitution,  laws,  and 
treaties  of  the  union,  is  not  limited  by 
the  value  of  the  matter  in  dispute.  Its 
jurisdiction  in  such  cases  extends  to  a 
case  where  both  parties  claim  a  right  or 
title  under  the  same  act  of  congress,  and 
the  decision  is  against  the  right  or  title 
claimed  by  either  party.  Buel  v.  Van 
Ness,   8   Wheat.   312;   5   L.   Ed.  624. 

90.  Transfer  of  cause. — In  re  Chet- 
wood,   165   U.   S.   443,   41    L.    Ed.    782. 

91.  What  law  governs. — Martin  v.  Hun- 
ter,  1  Wheat.  304,  305.  4  L.  Ed.  97. 

Section  1003  provides  that  "writs  of  er- 
ror from  the  supreme  court  to  a  state 
court,  in  cases  authorized  by  law.  shall 
be  issued  in  the  same  manner,  and  under 
the  same  regulations,  and  shall  have  the 
same  effect,  as  if  the  judgment  or  decree 
complained  of  had  been  rendered  or 
passed  in  a  court  of  the  United  States." 
This    is    almost    the    exact    language    of   a 


752 


APPEAL  AND  ERROR. 


as  it  depends  on  the  form  of  proceeding  and  the  nature  of  ^he  judgment,  must 
be  governed  by  the  same  rules  that  apply  to  similar  rights  under  the  226.  sec- 
tion and  under  the  act  relating  to  the  District  of  Columbia. ^^ 

(3)  Remedy  for  Transferring  Cause. — Writ  of  Error. — Appeals  do  not  lie 
from  a  state  court  to  this  court  in  any  case,  as  the  act  of  congress  gives  no  such 
remedy. ^3  The  only  appellate  jurisdiction  which  has  ever  been  conferred  by  con- 
gress upon  this  court  to  review  the  judgments  or  decrees,  at  law  or  in  equity,  of 
the  highest  court  of  a  state,  has  been  by  writ  of  error. '-*■* 

Mandamus. — A  writ  of  error  is  the  proper  remedy  and  is  an  adequate  one, 
to  review  decisions  of  a  state  court,  under  §  709  of  the  Revised  Statutes.^''  The 
remedy  for  alleged  errors  in  the  decree  of  a  state  court,  if  any,  is  by  writ  of  error 
a,nd  not  by  mandamus.     The  remedy  on  error  is  not  only  entirely  adequate  and 


similar  provision  in  the  twenty-fifth  sec- 
tion of  the  judiciary  act  of  1789,  and  we 
are  not  aware  it  was  ever  supposed  that 
writs  issued  to  the  state  court  under  that 
section  were  not  subject  to  the  limitation 
prescribed  for  writs  to  the  circuit  courts 
by  the  twenty-second  section.  In  Brooks 
V.  Norris,  11  How.  304,  13  L.  Ed.  665, 
this  seems  to  have  been  assumed,  and  a 
writ  to  a  state  court  was  dismissed  "on 
the  ground  that  it  is  barred  by  the  limi- 
tation of  time  prescribed  by  the  act  of 
congress."  Cummings  v.  Janes,  104  U. 
S.    419,    26    L.    Ed.    824. 

The  language  of  the  statute  of  1867  is 
that  "the  judgment  (of  the  state  court) 
may  be  re-examined  and  reversed  or  af- 
firmed on  writ  of  error  in  the  same  man- 
ner and  under  the  same  regulations,  and 
the  writ  of  error  shall  have  the  same  ef- 
fect as  if  the  judgment  or  decree  com- 
plained of  had  been  rendered  or  passed 
in  the  court  of  the  United  States."  It 
was  held,  that  the  phra-se  "  'in  the  same 
manner  and  under  the  same  regulations, 
and  the  writ  shall  have  the  same  effect' 
is  intended  to  furnish  the  rule  by  which 
the  court  shall  be  guided  in  the  consid- 
erations which  should  enter  into  the  judg- 
ment that  it  shall  render.  That  the  writ 
of  error  shall  have  the  same  effect  as  if 
directed  to  a  circuit  court  can  mean  no 
more  than  that  it  shall  transfer  the  case 
to  the  supreme  court,  and  with  it  the 
record  of  the  proceedings  in  the  court 
below.  This  is  the  effect  of  the  writ  and 
its  function  and  purpose.  When  the  court 
comes  to  consider  the  case,  it  may  be 
limited  by  the  nature  of  the  writ,  but 
what  it  shall  review,  and  what  it  shall  not, 
must  depend  upon  the  jurisdiction  of  the 
court  in  that  class  of  cases  as  fixed  by 
the  law  governing  that  jurisdiction.  So 
the  regulations  here  spoken  of  are  mani- 
festly the  rules  under  which  the  writ  is 
issued,  served,  and  returned;  the  notice 
to  be  given  to  the  adverse  party,  and  time 
fixed  for  appearance,  argument,  etc." 
Murdock  v.  Memphis,  20  Wall.  590,  623, 
22   L.   Ed.  429. 

92.  Holmes  v.  Jennison.  14  Pet.  540, 
565.   10    L.    Ed.    579. 

93.  Remedy  for  transferring  cause. — ■ 
Slaughter  House  Cases,  10  Wall.  273,  297, 


19   L.   Ed.   915. 

No  appeal  can  be  taken  from  the  final 
decision  of  a  state  court  of  last  resort, 
under  the  25th  section  of  the  judiciary 
act,  to  the  supreme  court  of  the  United 
States.  A  writ  of  error  alone  can  bring 
up  the  cause.  Verden  v.  Coleman,  22 
How.    192,    16   L.   Ed.   336. 

94.  Cohens  v.  Virginia,  6  Wheat.  264, 
410,  5  L.  Ed.  257;  Verden  v.  Coleman,  22 
How.  192,  16  L.  Ed.  33S;  Act  of  Septem- 
ber 24,  1789.  c.  20.  §  25;  1  Stat.  85;  Act 
of  February  5,  1867,  c.  28,  §  2;  14  Stat. 
386;  Rev.  Stat..  §  709;  Act  of  March  3, 
1S91,  c.  517,  §  5;  26  Stat.  827;  Dower  v. 
Richards,  151  U.  S.  658,  666,  38  L.  Ed. 
305;  Leeper  v.  Texas,  159  U.  S.  462,  35 
L.    Ed.    225. 

A  writ  of  error  is  the  proper  remedy 
to  revise  a  judgment  of  the  state  court, 
refusing  to  obey  the  mandate  of  the 
United  States  supreme  court,  because  it 
is  a  final  judgment  in  a  suit  in  a  state 
court,  denying  the  validity  of  the  statute 
of  the  United  States;  and  there  is  no 
legal  distinction  between  proceedings  un- 
der a  mandate,  and  proceedings  in  an 
original  suit.  Furthermore,  in  cases  of 
mandate  to  the  circuit  courts  if  the  man- 
date be  not  correctly  executed,  a  writ  of 
error  or  appeal  has  always  been  supposed 
to  be  a  proper  remedy,  and  has  been  rec- 
ognized as  such  in  the  former  decisions 
of  this  court.  Opinion  of  Story.  J.,  in 
Martin  v.  Hunter,  1  Wheat.  304,  4  L.  Ed. 
97.  (A  case  in  which  the  court  of  ap- 
peals of  Virginia  refused  to  obey  the 
mandate  of  the  United  States  supreme 
court.) 

"It  is,  therefore,  too  obvious  to  need 
comment,  that  this  statute  was  designed 
to  bring  equity  suits  to  this  court  from 
the  state  courts  by  writ  of  error,  as  well 
as  law  cases,  and  that  it  was  not  intended 
that  they  should  be  re-examined  in  the 
same  manner  as  if  brought  here  from  a 
court  of  the  United  States,  in  the  sense 
of  the  proposition  we  are  considering." 
Murdock  v.  Memphis.  20  Wall.  590,  622, 
22    L.    Ed.    429. 

95.  In  re  Blake.  175  U.  S.  114,  44  L.  Ed. 
94;  Stanlev  v.  Schwalby,  162  U.  S.  255,  40 
L.    Ed.   960. 


APPEAL  AND  ERROR. 


753 


open  to  be  song^^t  unrestrained  by  the  amount  involved,  but,  in  respect  of  deal- 
ing with  state  tribunals,  is  manifestly  the  proper  remedy.^** 

(4)  AUozvancc  of  Writ  of  Error^aa.  In  General. — In  allowing  a  writ  of  er- 
ror from  this  court  to  the  highest  court  of  a  state,  and  in  issuing  a  citation,  the 
chief  justice  of  that  court  does  but  exercise  an  authority  vested  by  congress  in 
him  concurrently  with  each  of  the  justices  of  this  court.  When  counsel  apply- 
ing for  the  allowance  of  the  writ  of  error  insist  that  a  federal  question  has  been 
decided  against  the  plaintiff  in  error,  the  chief  justice  of  the  state  court  may  feel 
bound  to  allow  the  writ,  for  the  purpose  of  submitting  to  the  final  determination 
of  this  court  whether  such  a  question  was  necessarily  involved  in  the  judgment 
sought  to  be  reviewed. 9"  A  writ  of  error  to  the  highest  court  of  a  state  is  not 
allowed  as  of  right,  and  ought  not  to  be  sent  out  when  the  court  in  session,  after 
hearing,  is  of  opinion  that  it  is  apparent  upon  the  face  of  the  record  that  the  issue 
of  the  writ  could  only  result  in  the  affirmance  of  the  judgment.^**  Applications 
to  this  court  for  a  writ  of  error  to  a  state  court  are  not  entertained  unless  at  the 
request  of  one  of  the  members  of  the  court,  concurred  in  by  his  associates. ^^ 

bb.  Necessity  for  Allowance. — This  court  has  repeatedly  decided  that  an  al- 
lowance of  a  writ  of  error,  either  by  a  justice  of  this  court  or  by  a  judge  of  the 
state  court,,  is  necessary,  upon  a  writ  of  error  addressed  to  the  highest  court  of 
the  state  by  which  the  judgment  or  decree  could  be  rendered.^ 


96.  In  re  Blake,  175  U.  S.  114,  44  L. 
Ed.    94. 

97.  Allowance  of  writ  of  error. — Parnie- 
lee  V.  Lawrence,  11  Wall.  36,  39,  30  L. 
Ed.  48;  Brown  v.  Atwell,  92  U.  S.  327, 
330.  23  L.  Ed.  511;  Adams  County  v. 
Burlington,  etc.,  R.,  112  U.  S.  123,  129,  28 
L.  Ed.  678;  Felix  v.  Scharnweber.  125  U. 
S.  54,  59,  31  L.  Ed.  687;  Gleason  v. 
Florida,  9  Wall.  779,  19  L.  Ed.  730;  Barte- 
meyer  v.  Iowa,  14  Wail.  26,  20  L.  Ed.  792. 

In  our  opinion  a  writ  ought  not  to  be 
allowed  by  this  court,  to  a  state  court,  if 
it  appears  from  the  face  of  the  record 
that  the  decision  of  the  federal  question 
which  is  complained  of  was  so  plainly 
right  as  not  to  require  argument,  and  es- 
pecially if  it  is  in  accordance  with  our 
well-considered  judgments  in  similar 
cases.  That  is  in  effect  what  was  done  in 
Twitchell  V.  Pennsylvania,  7  Wall.  321, 
19  L.  Ed.  223,  where  the  writ  was  refused, 
because  the  questions  presented  by  the 
record  were  "no  longer  subjects  of  dis- 
cussion here,"  although  if  they  had  been 
in  the  opinion  of  the  court  "open."  it 
would  have  been  allowed.  Spies  v.  Illi- 
nois, 123  U.  S.   131.  164,  31   L.   Ed.  80. 

98.  Spies  V.  Illinois,  123  U.  S.  131,  31 
L.  Ed.  80;  In  re  Kemmler,  136  U.  S.  436, 
438.  34  L.  Ed.  519;  Craemer  v.  Washing- 
ton. 164  U.  S.  704,  41  L.  Ed.  1183;  Kru^ 
V.  Washington,  164  U.  S.  704,  41  L.  Ed. 
1183. 

In  Spies  z:  Illinois.  123  U.  S.  131,  143, 
31  L.  Ed.  80,  Mr.  Chief  Justice  Waite 
made  the  following  announcement:  "Fol- 
lowing the  precedent  in  Twitchell  z'.  The 
Pennsylvania.  7  Wall.  321,  19  L.  Ed.  223,  we 
have  permitted  this  motion  to  be  made  in 
open  court,  at  the  suggestion  of  Mr.  Justice 
Harlan,  to  whom  the  application  was  first 
presented,  on  account  of  the  urgency  of 
the  case  and  its  importance.     But,  as  was 

1  U  S  Edc-48 


said  in  that  case  'writs  of  error  to  the 
state  courts  have  never  been  allowed  as 
of  right.'  that  is  to  say,  as  of  course,  aud 
it  is  the  duty  of  him  to  whom  an  applica- 
tion for  such  a  writ  is  made  to  ascertain 
from  an  examination  of  the  record  of  the 
state  court,  'whether  any  question,  cog- 
nizable here  on  appeal,  was  made  and  de- 
cided in  the  proper  court  of  the  state,  and 
whether  the  case  on  the  face  of  the  record 
will   justify   the   allowance   of  the  writ." 

99.  In  re  Robertson,  156  U.  S.  183,  184, 
39    L.    Ed.    389. 

1.  Necessity  for  allowance. — North- 
western Union  Packet  Co.  v.  Home  Ins. 
Co.,  154  U.  S.  588,  20  L.  Ed.  463,  citing 
Callan  v.  May,  2  Black  541,  543.  17  T.  Ed. 
2^1  ;  Twitchell  v.  Pennsylvania,  7  Wall'. 
321.  19  L.  Ed.  223;  Gleason  v.  Florida,  9 
Wall.  779,  19  L.  Ed.  730.  and  distinguish- 
ing Davidson  v.  Lanier,  4  Wall.  447.  433,  18 
L.  Ed.  377,  because  that  was  a  writ  of  er- 
ror addressed  to  an  inferior  court  of  the 
United  States.  Downes  r.  Scott,  4  How. 
500.   502,    11    L.    Ed.   1075. 

The  foundation  of  the  jurisdiction  of 
this  court  over  the  judgments  of  state 
courts  is  the  writ  of  error;  and  no  writ 
of  error  to  a  state  court  can  issue  with- 
out allowance,  either  by  the  pr^^per  judge 
of  the  state  court  or  by  a  judge  of  this 
court,  after  examination  as  just  stated. 
Gleason  v.  Florida,  9  Wall.  779,  784,  19 
L.  Ed.  730,  citing  Twitchell  v.  Pennsyl- 
vania. 7  Wall.  321.   19   L.   Ed.  223. 

Writs  of  error  to  state  courts  cannot 
issue  without  the  allocatur  of  a  judge  of 
this  court.  But  this  allocatur  is  not  con- 
clusive upon  the  court.  "There  is  hardly 
a  term  in  which  a  case  of  that  description 
has  not  been  dismissed  upon  the  ground 
that  the  transcript  did  not  sh^w  a  case  in 
which  a  writ  of  err^r  w^uld  h'e.  A  con- 
trary  doctrine    would    be    exceedingly   in- 


/54 


APPEAL  AND  ERROR. 


cc.  By  Whom  Allozved. — It  is  essential  to  the  exercise  by  this  court  of  re- 
visory jurisdiction  over  the  final  judgments  or  decrees  of  the  courts  of  the  states. 
Ihat  the  writ  of  error  should  be  allowed  either  by  a  justice  of  this  court,  or  by 
the  proper  judge  of  the  state  court,  after  ascertaining  by  an  examination  of  the 
record  that  a  question  cognizable  here  was  made  and  decided  in  the  state  court, 
and  that  such  allowance  was  justified. ^  It  is  the  settled  doctrine  of  this  couri 
that  a  writ  of  error  to  a  state  court  must  be  allowed  by  one  of  the  justices  of 
this  court,  or  by  the  chief  justice  of  the  state  court,  or  it  will  be  dismissed  for 
want  of  jurisdiction.^  But  in  case  of  a  writ  to  a  court  composed  of  a  single 
judge  or  chancellor,  the  writ  may  be  allowed  by  that  judge  or  chancellor,  or  by 
a  justice  of  the  supreme  court  of  the  United  States.-*  Where  it  appears  from  the 
record  that  the  chief  justice  of  the  state  court  was  absent  when  the  writ  or  error 
was  allowed,  and  it  is  stated  an  associate  justice  allowed  it,  it  is  to  be  presumed 
that  its  associate  justice  was  the  presiding  justice  of  the  court  in  the  absence  of 
chief  justice.^ 


convenient  if  it  could  be  maintained,  and 
would  throw  upon  a  single  judge  the  re- 
sponsibility which  properly  belongs  to  the 
court.  And  it  does  not  by  any  means 
follow  that  the  judge  who  authorizes  the 
appeal  has  made  up  his  own  mind  that 
the  party  is  legally  entitled  to  it."  Callan 
v.  May,  2  Black  541,  543,  17  L.  Ed.  281. 

No  writ  of  error  to  a  state  court  can 
issue  without  allowance,  either  by  the 
proper  judge  of  the  state  court  or  by  a 
judge  of  this  court,  after  examination  of 
the  record,  in  order  to  see  whether  any 
question  cognizable  here  on  appeal  was 
made  and  decided  in  the  proper  court  of 
the  state,  and  whether  the  case,  upon  the 
face  of  the  record,  will  justify  the  allow- 
ance of  the  writ;  and  this  is  to  be  con- 
sidered as  the  settled  construction  of  the 
judiciary  act  on  this  subject.  Gleason  v. 
Florida,  9  Wall.  779,  19   L.   Ed.  730. 

Writs  of  error  to  state  courts  have 
never  been  allowed,  as  of  right.  It  has 
always  been  the  practice  to  submit  the 
record  of  the  state  courts  to  a  judge  of 
this  court,  whose  duty  has  been  to  ascer- 
tain upon  examination  whether  any  ques- 
tion, cognizable  here  upon  appeal,  was 
made  and  decided  in  the  proper  court  of 
the  state,  and  whether  the  case  upon  the 
face  of  the  record  will  justify  the  allow- 
ance of  the  writ.  Twitchell  v.  Penn- 
sylvania, 7  Wall.  321,  324,  19  L.  Ed.  223. 

2.  By  whom  allowed. — Gleason  v. 
Florida,  9  Wall.  779,  19  L.  Ed.  730;  But- 
ler V.  Gage.  138  U.  S-  52,  55,  34  L.  Ed. 
869. 

3.  Bartemeyer  v.  Iowa,  14  Wall.  26,  20 
L.  Ed.  792,  three  justices  dissenting,  re- 
affirmed in  Havnor  v.  New  York,  170  U. 
S.   408.   411,   42   L.    Ed.    1087. 

A  writ  of  error  to  the  highest  court  of 
a  state  must  be  allowed  either  by  a  justice 
of  the  United  States  court  or  by  a  judge 
of  such  state  court.  Northwestern  Union 
Packet  Co.  v.  Home  Ins.  Co.,  154  U.  S. 
588,  20  L.  Ed.  463.  See,  also,  Callan  v. 
May,  2  Black  541,  17  L.  Ed.  281;  Butler 
V.  Gage,  138  U.  S.  52,  55,  34  L.  Ed.  869. 
Barrel    v.    Western    Transp.    Co.,    3    Wall. 


424.  18  L.  Ed.  168;  Gleason  v.  Florida,  9 
Wall.  779,  19  L.  Ed.  730,  and  note,  784. 

When  a  supreme  court  of  a  state  is 
composed  of  a  chief  justice  and  several 
associates,  writs  of  error  to  the  court  un- 
der the  25th  section  of  the  judiciary  act 
must  be  signed  by  the  chief  justice;  and 
if  signed  by  one  of  the  associates  only,  it 
will  be  dismissed  for  want  of  jurisdic- 
tion. Bartemeyer  v.  Iowa,  14  Wall.  26, 
20  L.  Ed.  792.  The  Chief  Justice  and  Mr. 
Justice  Bradley  and  Mr.  Justice  Swayne, 
dissenting. 

And  it  was  hel-d  in  Bartemeyer  v.  Iowa, 
14  Wall.  26,  20  L.  Ed.  792,  that  when  the 
supreme  court  of  a  state  is  composed  of 
a  chief  justice  and  several  associates,  and 
the  judgment  complained  of  was  rendered 
by  such  court,  the  writ  could  only  be  al- 
lowed by  the  chief  justice  of  that  court 
or  by  a  justice  of  this  court.  Cited  in 
Butler  V.  Gage,  138  U.  S.  52.  56.  34  L. 
Ed.   869. 

An  allowance  of  a  Avrit  of  error  by  the 
chief  judge  of  the  court  in  which  the 
judgment  was,  in  fact,  rendered,  is  not 
ground  for  dismissing  the  writ  of  error, 
though  the  record,  by  order  of  such 
court,  may  have  been  sent  to  an  inferior 
court,  and  an  additional  entry  of  what 
was  adjudged  in  the  appellate  one  there 
entered.  Aldrich  v.  /Etna  Ins.  Co.,  % 
Wall.  491,  19  L.  Ed.  473. 

4.  Bartemeyer  v.  Iowa,  14  Wall.  26, 
28,    20    L.    Ed.    792. 

5.  Butler  v.  Gage,  138  U.  S.  52,  34  L- 
Ed.    869. 

A  writ  of  error  to  a  state  court  will  be 
dismissed  on  the  ground  that  it  is  not 
properly  allowed,  where  it  appears  tha* 
the  state  court  was  composed  of  a  chief 
judge  and  several  associate  judges,  and 
the  writ  of  error  is  allowed  and  the  cita- 
tion signed  by  an  associate  judge  who 
did  not  purport  to  act  as  chief  judge  or 
chief  judge  pro  tem.  of  the  court.  For 
example,  the  signature  to  the  allowance 
of  the  writ  was  as  follows:  "Edward  T. 
Bartlett,  Asso.  Judge,  N.  Y.  Court  of  Ap- 
peals;"   while    following    the    signature    to 


APPEAL' AX D  ERROR.  755 

dd.  Proof  of  AUoivance. — It  has  been  doubted  whether  in  any  case  the  af- 
fidavit of  a  party  to  the  record  can  be  used  as  evidence  of  the  fact  of  such  al- 
I'.v.-ance.  And  the  affidavit  of  such  a  party  v\'as  refused  in  a  case  where  the  court 
thought  it  highly  probable  that  he  was  mistaken  in  his  recollection.® 

(5)  Form  and  Requisites  of  Writ  of  Error — aa.  In  General. — The  appellate 
jurisdiction  of  this  court,  under  the  25th  section  of  the  judiciary  act  of  1789,  c. 
20,  may  be  exercised  by  a  writ  of  error  issued  by  the  clerk  of  a  circuit  court,  un- 
der the  seal  of  that  court,  in  the  form  prescribed  bv  the  act  of  the  8lh  of  May, 
1792,  c.  137,  §  9.' 

bb.  Specifications  in  Writ. — The  writ  of  error  need  not  state  that  it  is  directed 
to  a  final  judgment  of  the  highest  court  in  the  state,^  nor  that  it  is  directed  to 
llie  highest  court  of  law  or  equity  in  the  state  in  which  a  decision  in  the  suit 
could  be  had.^ 

cc.  Teste  of  Writ. — \Arits  of  error  from  this  court  must  bear  the  teste  of  the 
chief  justice. 1^ 

dd.  Signature. — Signed  by  Clerk  of  State  Court  Only. — A  writ  of  error  to 
a  state  court  will  not  be  dismissed  because  it  is  issued  and  signed  by  the  clerk  of 
that  court  only;  such  error  would  be  amendable  under  §  1005.  which  provides 
lliat  the  supreme  court  may  allow  an  amendment  of  a  writ  of  error  in  all  par- 
ticulars of  form.^i 

(6)  Issuance  and  Service  of  Writ  of  Error — aa.  In  General. — The  issuance 
of  a  writ  of  error  is  absolutely  necessary  before  this  court  can  take  jurisdiction 
over  a  state  court.  ^^ 

bb.  Prom  Whence  Issued. — The  appellate  jurisdiction  of  this  court  under  the 
25th  section  of  the  judiciary  act  of  1789  may  be  exercised  by  a  writ  of  error  is- 
sued bv  the  clerk  of  the  circuit  court,  under  the  seal  of  that  court,  in  the  form 
prescribed  by  the  act  of  May  8th.  1792,  ch.  137.  §  9.^^ 

cc.  To  li  hat  Court  the  Writ  Should  Be  Directed. — In  General. — As  this  court 
can  only  revise  the  judgment  of  the  highest  court  in  the  state  which  can  exercise 

the    citation   was    the    designation:    "Asso.  porting  to  be   the   writ  of  error  is   in  the 

Trdge,    Court    of    Appeals,    State    of    New  name    and    bears    the    teste    of    the    chief 

York."     There  is  nothing  contained  in  the  justice  of  the  supreme   court  of  Louisiana 

record    warranting    an    inference    that    the  and  is  signed  by  the  clerk  and  sealed  with 

;">sociate  judge  was  at  the  time  acting  as  the  seal  of  that  court.     Held,  that  the  suit 

cliief  judge  pro  tern,   of  the   court.     Hav-  must    be    dismissed   for    want    of   jurisdic- 

nor  V.  New  York,  170  U.  S.  408,  42  L.  Ed.  tion.       The     writ     cannot     be     amended. 

1087.  citing  Bartemeyer  v.  Iowa,  14  Wall.  Bondurant   v.    Watson,    103   U.    S.   281,   26 

rr,,  36,  20  L.   Ed.  792;    Butler  v.   Gage,   138  L.    Ed.    447. 

U.    S.   52.   55,   34   L.    Ed.   869.  The  exact  form   of  a  writ  of  error  to  a 

In   Butler  t'.    Gage,   138   U.   S.   52,   34   L.  state  court   will  be  found  in  Worcester  v. 

Ed.   869,  however,  the  judge  allowing  the  Georgia,   fi  Pet.   515.   531,  8   L.   Ed.   483. 

writ     described      himself      as      "Presiding  g.    Specifications   in  writ.— Buel  v.   Van 

Judge  of  the   Supreme   Court  of  the  State  Ness,  8  Wheat    312.  5  L    Ed    624 

of    Colorado."      As     the     constitution     of  ^     p^^^,   ^^,    ^^^   j^^        g   ^,,^^^^    3        ^ 

Colorado    provided    that    when    the    chief  j      g^    j,.-,_j 

justice   was   absent,   the   judge   having   the  \,^     rjy   ~         r        ■        ,,       •             ^ 

next   shortest   term   should   preside   in   his  }^;    Teste  of  writ.— Mussina  v.  Cavazos. 

stead,  and  as  the  record  showed  that  the  6  Wall.  355,  357    18   L.  Ed.  810;   Germain 

chief   justice   was   absent   at   the    time   the  ^-  Mason.  154  U.  S.  587,  20  L.   Ed.  689. 

writ   was    allowed,    and    counsel    conceded  11.    Signature. — Miller  v.  Texas,   153   U. 

Ihat  the  judge   who  allowed   the  writ  had  S.    535,    38    L.    Ed.    812,    citing    Ex    parte 

the    next    shortest    term   to    serve,    it    was  Ralston,    119   U.    S.    613,    30    L.     Ed.      506, 

lield,  that  the   writ   was  properly  allowed.  Sheppard   v.    Wilson.    5    How.    210,    12    L. 

Cited  in   Havnor  v.   New  York.  170  U.   S.  Ed.   120.   and   distinguishing   Bondurant  v. 

408.   411,   42   L.    Ed.   1087.  Watson.  103   U.  S.   281,  26  L.   Ed.  447. 

6.  Proof  of  allowance. — Gleason  r.  12.  Issuance  and  service  of  writ  of  er- 
Florida,    9   Wall.    779.   19    L.    Ed.    730.  ror.— Ex   parte   Ralston,    119   U.   S.  613,   30 

7.  Form  and  reouisites  of  writ  of  er-  E.  Ed.  506,  citing  Mussina  zk  Cavazos,  6 
ror.- Buel  z:  Van  Ness.  8  Wheat.  312,  5  Wall.  355,  18  L-  Ed.  810;  Bondurant  v. 
L.  Ed.   G^A.  Watson,   103  U.  S.  281,  26  L.  Ed.  447. 

On    error    to    the     supreme      court      of  13.    From   whence  issued. — Buel  v.  Van 

Louisiana,  the  only  paper  in  the  case  pur-        Ness,  8  Wheat.  312,  5  L.  Ed.  624. 


756 


APPEAL  AND  ERROR. 


jurisdiction  in  the  case,  the  writ  of  error  should  be  directed  to  such  court ;  unless 
the  record  shall  have  been  transmitted  to  an  inferior  tribanal.^"^ 

Where  Record  Is  Transmitted  to  or  Remains  in  Inferior  Tribunal, — 
But  if  the  highest  court  has,  after  judgment,  sent  its  record  and  judgment  in  ac- 
cordance with  the  law  of  the  state  to  an  inferior  court  for  safe  keeping,  and  no 
•onger  has  them  in  its  own  possession,  we  may  send  our  writ  either  to  the  highest 
court  or  to  the  inferior  court.  If  the  highest  court  can  and  will,  in  obedience  to 
ihe  requirement  of  the  writ,  procure  a  return  of  the  record  and  judgment  from 
the  inferior  court,  and  send  them  to  us,  no  writ  need  go  to  the  inferior 
court;  but,  if  it  fails  to  do  this,  we  may  ourselves  send  direct  to  the  court  having 
the  record  in  its  custody  and  under  its  control.  So,  too,  if  we  know  that  the  rec- 
ord is  in  the  possession  of  the  inferior  court,  and  not  in  the  highest  court,  we  may 
send  there  without  first  calling  upon  the  highest  court ;  but  if  the  law  requires 
the  highest  court  to  retain  its  own  records,  and  they  are  not  in  practice  sent  down 
to  the  inferior  court,  our  writ  can  only  go  to  the  highest  court.  That  court,  be- 
ing the  only  custodian  of  its  own  records,  is  alone  authorized  to  certify  them  to 
us.^^  And  in  some  of  the  s'ates — as,  for  instance.  New  York  and  Massachusetts 
— the  practice  is  for  the  highest  court,  after  its  judgment  has  been  pronounced,  to 
send  the  record  and  the  judgment  to  the  inferior  court,  where  they  thereafter  re- 


14.  To  what  court  the  writ  should  be 
directed. — Downes  z'.  Scott,  4  How.  502, 
n  L.  Ed.  1075;  Atherton  v.  Fowler.  91  U. 
S.    143.   23    L.    Ed.    265. 

A  writ  of  error  from  the  supreme  court 
of  the  United  States  to  review  the  judg- 
ment of  a  state  court  must  be  issued  to 
the  highest  court  of  the  state  in  which 
a  decision  of  the  case  could  be  had,  even 
if  that  court  be  an  inferior  court  of  the 
state.  Accordingly,  where  a  circuit  court 
of  Virginia  had  jurisdiction  to  decide  a 
case  finally,  the  court  of  appeals  of  that 
state  not  having  jurisdiction  to  review 
the  decision,  by  reason  of  the  amount  in 
controversy  being  under  $500.  a  writ  of 
error  from  this  court  issued  to  the  court 
of  appeals  was  dismissed.  If  allowable  at 
all,  the  writ  should  have  been  issued  to 
the  circuit  court.  Miller  v.  Joseph,  17 
Wall.   655.  21    L.   Ed.   741. 

Under  the  25th  section  of  the  judiciary 
act,  the  writ  of  error  must  be  directed  to 
the  highest  court  of  the  state  that  can 
render  a  decision  in  the  cause.  The  fact 
tfcat  the  general  assembly  might  set  aside 
that  judgment,  would  not  make  it  proper 
to  direct  the  writ  of  error  to  the  general 
assembly,  because  they  could  not  make 
a  decision.  Olney  v.  Arnold,  3  Dall.  308, 
1    L.    Ed.    614. 

The  writ  of  error  should  be  "directed  to 
the  court  which  holds  the  proceedings  as 
part  of  its  own  records,  and  exercises  ju- 
dicial power  over  them."  Hunt  v.  Palas. 
4  How.  589.  590,  11  L.  Ed.  1115.  If  the 
highest  court  of  the  state  retains  the 
record,  the  writ  should  go  there,  as  that 
court  can  best  certify  to  us  the  proceed- 
ings upon  which  it  has  acted  and  given 
judgment.  Atherton  v.  Fowler.  91  U.  S. 
143,  146,  23  L.  Ed.  265,  followed  in  Ather- 
ton V.  Fowler,  154  U.  S.  620,  23  L.  Ed. 
267. 

Where   a  judgment   of   the    corporation 


court  of  .Alexandria  county,  Virginia,  was 
aflirmed  by  the  supreme  court  of  that 
state,  and  judgment  given  in  the  supreme 
court  allowing  the  defendant  in  error  to 
recover  his  damages  and  costs  from  the 
plaintifif  in  error,  and  such  judgment  is 
entered  up  in  the  corporation  court,  the 
writ  of  error  under  the  25th  section  of 
the  judiciary  act  must  be  directed  to  the 
supreme  court,  and  not  to  the  corporation 
court.  Underwood  ?•.  McVeigh,  131  U.  S. 
appx.   cxix,   21   L.    Ed.   952. 

15.  Where  record  is  transmitted  to  or 
remains  in  inferior  tribunal. — Atherton 
r.  Fowler.  91  U.  S.  143.  148.  23  h. 
Ed.  265.  citing  Cohens  v.  Virginia, 
6  Wheat.  264,  5  L.  Ed.  257;  Hunt 
V.  Palas,  4  How.  589,  590.  11  L.  Ed.  1115; 
Gelston  v.  Hoyt,  3  Wheat.  246.  4  L.  Ed. 
3'''i:  McGuire  v.  The  Commr^nwcalth.  Z 
Wall.  382.  17  L.  Ed.  165;  Webster  v. 
Pe^d,  11  How.  437.  457.  13  L.  Ed.  761; 
Gelston  V.  Hoyt,  3  Wheat.  286,  304,  4  L- 
Ed.    ?.9?. 

Where  according  to  the  practice 
existing  in  the  state,  the  record  it- 
self is  remitted  to  the  inferior  court, 
and  does  not,  nor  does  a  copy  of 
it  remain  in  the  supreme  court,  the 
writ  of  error  is  properly  directed  to  the 
inferior  court  to  bring  the  record  here. 
Polleys  V.  Black  River  Co.,  113  U.  S.  81, 
28  L.  Ed.  938,  citing  Gelston  7'.  Hoyt,  3 
Wheat.  246,  4  L.  Ed.  381;  Atherton  v. 
Fowler.  91  U.  S.  143,  23  L.  Ed.  265:  Mc- 
Donald v.  Massachusetts.  180  U.  S.  311, 
45  L.  Ed.  542;  Rothschilds  v.  Knight.  184 
U.    S.   334,  46  L.    Ed.  573. 

Under  the  judiciary  act  of  1789,  ch.  20, 
s.  25,  giATng  appellate  jurisdiction  to  the 
supreme  court  of  the  United  States,  from 
the  final  judgment  or  decree  of  the  high- 
est court  of  law  or  equity  of  a  state,  in 
certain  cases,  the  writ  of  error  may  be 
directed  to  any  court  in  which  the  record 


APPEAL  AND  ERROR. 


757 


main.  If  in  such  a  case  our  writ  should  be  sent  to  the  highest  court,  that  court 
might  with  truth  return  that  it  had  no  record  of  its  proceedings,  and,  therefore, 
could  not  comply  with  our  demand.  Upon  the  receipt  of  such  a  return,  we 
should  be  compelled  to  send  another  writ  to  the  court  having  the  record  in  its 
possession.  1^^     Where  it  appears  from  the  form  of  the  order  of  the  highest  court 


and  judgment  on  which  it  is  to  act  may- 
be found;  and  if  the  record  has  been  re- 
mitted by  the  highest  court,  etc.,  to  an- 
other court  of  the  state,  it  may  be 
brought  by  the  writ  of  error  from  that 
court.  Gelston  i\  Hoyt.  3  Wheat.  246.  4 
L.  Ed.  381,  applied  in  Webster  v.  Reid,  11 
How.  437,  4.'57,   13  L-   Ed.  761. 

As  the  appellate  jurisdiction  of  this 
court  over  the  state  courts  is  confined  to 
a  re-examination  of  the  final  judgment  or 
decree  in  any  suit  in  the  highest  court  of 
a  state  in  which  the  decision  of  a  suit 
could  be  had,  the  writ  of  error  sued  out 
here  should  be  sent  only  to  such  court; 
unless  the  latter,  after  pronouncing  judg- 
ment, sends  its  record  and  judgment,  in 
accordance  with  the  laws  and  practice  of 
the  state,  to  the  inferior  court,  where  they 
thereafter  remain.  In  such  case,  the  writ 
may  be  sent  either  directly  to  the  latter 
court,  or  to  the  highest  court,  in  order 
that,  through  its  instrumentality,  the 
record  may  be  obtained  from  the  inferior 
court  having  it  in  custody  or  under  con- 
trol. Atherton  v.  Fowler,  91  U.  S.  143,  23 
L.   Ed.  265. 

A  writ  of  error  from  this  court  is  prop- 
erly directed  to  the  court  in  which  the 
final  judgment  was  rendered,  and  by 
whose  process  it  must  be  executed,  and 
in  which  the  record  remains,  although 
such  court  may  not  be  the  highest  court 
of  the  state,  and  although  such  highest 
court  may  have  exercised  a  revisory  ju- 
risdiction over  points  in  the  case,  and 
certified  its  decision  to  the  court  below. 
The  omission  in  the  record  of  these  points 
and  the  action  in  the  highest  court  upon 
them,  make  no  ground  for  certiorari  on 
account  of  diminution.  McGuire  v.  The 
Commonwealth,  3  Wall.  382.  17  L.  Ed. 
le.'i. 

This  case  comes  from  the  circuit  court 
'if  Emmet  County,  Michigan.  It  was 
iriginally  commenced  in  that  court,  where 
a  decree  was  rendered  dismissing  the  suit. 
On  appeal  to  the  supreme  court  of  the 
state,  the  decree  was  reversed,  and  the 
circuit  court  directed  to  enter  a  decree 
in  favor  of  the  plaintiff  for  the  relief 
prayed  in  the  bill  of  complaint.  The  cir- 
cuit court  having  complied  with  the  man- 
date of  the  supreme  court  by  entering  that 
decree,  the  defendant  sued  out  the  writ 
of  error  from  this  court  to  review  it.  The 
writ  was  directed  to  the  judge  of  the  cir- 
cuit court  because  the  final  decree  was 
entered  and  the  record  of  the  suit  re- 
mained there.  Atherton  7K  Fowler,  91  U. 
S  143.  23  L.  Ed.  265:  Gelston  v.  Hoyt,  3 
Wheat.  246,  4  L.  Ed.  3S1 :  Lee  v.  Johnson, 
116   U.   S.    48,   29    L.    Ed.    570. 


"A  petition  for  a  writ  of  error  to  the 
court  of  civil  appeals  having  been  pre- 
sented to  the  supreme  court  of  the  state, 
and  denied,  the  present  writ  of  error  from 
this  court  was  properly  addressed  to  the 
court  of  civil  appeals,  in  which  the  record 
'remained.  Rev.  Stat.,  §  709;  Gregory  v 
McVeigh,  23  Wall.  294,  23  L.  Ed.  156 
Polleys  V.  Black  River  Co.,  113  U.  S.  81 
28  L.  Ed.  938;  Fisher  v.  Perkins.  122  U 
S.  522,  30  L.  Ed.  1192."  Stanley  v. 
Schwalby,  162  U.  S.  255,  269,  40  L.  Ed 
960. 

Where  a  judgment  was  rendered  by 
the  supreme  court  for  Iowa  Territory  and 
the  record  certified  to  this  court  by  the 
supreme  court  of  the  state  of  Iowa,  after 
her  admission  into  the  Union,  and  the  sub- 
ject matter  is  within  the  jurisdiction  of 
this  court,  it  will  take  jurisdiction  over 
the  case.  "The  subject  matter  being 
clearly  within  our  jurisdiction,  and  hav- 
ing possession  of  the  record,  we  see  no 
objection  to  an  examination  of  the  case. 
This  court  held  in  Gelston  v.  Hoyt,  3 
Wlieat.  246,  4  L.  Ed.  381.  under  the  twenty- 
fifth  section  of  the  judiciary  act  of  1789, 
giving  appellate  jurisdiction  to  this  court 
from  the  final  judgment  of  the  highest  state 
court,  'the  writ  of  error  may  be  directed  to 
any  court  in  which  the  record  and  judg- 
ment on  which  it  is  to  act  may  be  found,  and 
if  the  record  has  been  remitted  by  the 
highest  court  and  to  another  court  of  the 
state,  it  may  be  brought  by  writ  of  error 
from  that  court.'  In  principle,  that  case 
is  analogous  to  the  one  under  considera- 
tion. If  the  record  contain  the  judgment 
duly  certified,  over  which  we  can  exer- 
cise jurisdiction,  it  is  not  essential  that  it 
should  be  certified  by  the  court  rendering 
the  judgment."  Webster  v.  Reid,  11  How. 
437,    13    L.    Ed.    761. 

16.  It  has  been  so  expressly  decided  in 
Gelston  r.  Hoyt,  3  Wheat.  246,  4  L.  Ed. 
381,  and  McGuire  v.  The  Commonwealth, 
3  Wall.  382,  17  L.  Ed.  165;  Atherton  v. 
Fowler,  91  U.  S.  143,  146.  23  L.  Ed.  265. 

When  the  supreme  court  of  the  state 
renders  final  judgment,  and  sends  the 
judgment  to  a  court  below  for  execution, 
and  with  the  judgment  the  record,  a  writ 
of  error  to  review  the  judgment  may  be 
issued  to  the  latter  court.  For  example: 
Where  the  record  was  sent  by  the  court 
of  appeals  of  New  York,  to  the  supreme 
court  of  that  state,  and  the  judgment  wa.s 
entered  in  the  latter  court  in  conformity 
with  the  direction  of  the  former,  this  be- 
came a  final  judgment,  on  which  execn- 
tion  could  issue  only  when  entered,  in 
the    supreme    court,    to    which    the    record 


758 


APPEAL  AND  ERROR. 


disposing  of  the  case  that  the  record  remained  in  the  lower  court  where  judgment 
was  ordered  to  be  entered,  the  writ  of  error  should  run  to  the  court  where  the 
judgment  had  to  be  rendered. ^''^  So,  too,  if  we  are  in  any  way  judicially  in- 
formed, that,  under  the  laws  and  practice  of  a  state,  the  highest  court  is  not  the 
custodian  of  its  own  records,  we  may  send  to  the  highest  court,  and  seek  through  its 
instrumentality  to  obtain  the  record  we  recjuire  from  the  inferior  court  having 
it  in  keeping,  or  we  may  call  directly  upon  the  inferior  court  itself.  But  if  the 
highest  court  is  the  legal  custodian  of  its  own  records,  and  actually  retains  them, 
we  can  only  send  there. ^^ 

Refusal  of  Leave  to  Appeal. — Where,  by  the  laws  of  a  state,  an  appeal  can 
be  taken  from  an  inferior  court  of  the  state  to  the  highest  court  of  the  same,  only 
with  leave  of  this  latter  or  of  a  judge  thereof,  and  that  leave  has  been  refused  in  any 
particular  case,  in  the  regular  order  of  proceeding — the  refusal  not  being  the  sub- 
ject of  appeal  to  this  court — a  writ  of  error,  if  there  be  in  the  case  a  "federal 
question,"  properly  lies,  under  §  709  of  the  Revised  Statutes,  to  the  inferior 
court,  and  not  to  the  highest  one.^^ 

Dismissal  by  Highest  State  Court  for  Want  of  Jurisdiction. — So,  also, 
when  the  highest  court  of  a  state  dismisses  a  suit  brought  up  from  the  trial  court 
for  want  of  jurisdiction,  the  federal  question,  if  there  be  one  in  it,  was  decided 
by  the  trial  court,  and  the  writ  of  error  should  be  directed  to  that  court.20 

The  writ  of  error  need  not  state  that  it  is  directed  to  the  highest  court  of 
law  or  equity  in  the  state  in  which  a  decision  in  the  suit  could  be  had. 21 

The  writ  of  error  will  be  dismissed,   when  it  is  not  properly  directed. 22 

(7)  Return  of  JVrit. — In  General. — By  a  rule  of  this  court,  the  return  of  a 
copy  of  the  record  of  the  proper  court,  under  the  seal  of  that  court,  annexed  to  the 
writ  of  error,  is  a  sufficient  return  of  such  writ.^^ 


was  returned,  and  where  it  remained. 
Green  v.  Van  Buskirk,  3  Wall.  448,  18  L. 
Ed.   245. 

17.  Rothschild  v.  Knight.  184  U.  S.  334, 
46  L.  Ed.  573;  Wedding  v.  Meyler,  192  U. 
S.    573.   581,   48    L.    Ed.    570. 

18.  Atherton  v.  Fowler,  91  U.  S.  143, 
147,   23    L.    Ed.    265. 

19.  Gregory  v.  McVeigh,  23  Wall.  294, 
23    L.    Ed.    156. 

20.  Lane  v.  Wallace,  131  U.  S.  appx. 
ccxix.  26  L.  Ed.  703. 

Where  an  action  upon  a  mortgage  is 
brought  in  a  state  court,  and  in  the  course 
of  the  proceedings  in  that  court,  a  peti- 
tion for  removal  to  a  United  States  court 
was  filed,  and  the  state  court  denies  this 
petition  and  renders  a  money  judgment 
in  favor  of  the  plaintiffs,  their  claim  un- 
der the  mortgage  being  denied,  and  the 
defendants  appeal  to  the  state  supreme 
court,  which  dismisses  the  appeal  for  want 
of  jurisdiction;  it  was  held,  that  the  writ 
of  error  from  this  court  should  be  directed 
to  the  inferior  state  court  instead  of  the 
state  supreme  court.  Lane  v.  Wallace, 
131   U.  S.  appx.  ccxix.  26  L.   Ed.  703. 

Where  the  supreme  court  of  the  state 
of  Kansas  has  decided  that  it  has  no  ju- 
risdiction to  review  a  decision  of  the 
Kansas  City  court  of  appeals  involving  a 
federal  question,  a  writ  of  error  from  this 
court  is  properly  directed  to  the  Kansas 
City  court  of  appeals.  Missouri,  etc.,  R. 
Co.  V.  Elliott,  184  U.  S.  530,  46  L.  Ed. 
673. 

Where    the    writ    of   error    is    dismissed 


by  the  state  court  solely  and  expressly 
because  of  a  want  of  jurisdiction,  and 
since  the  effect  of  the  formal  entry,  ad- 
judging that  the  court  was  without  juris- 
diction to  pass  upon  the  questions  pre- 
sented by  the  writ  of  error,  cannot  be 
different  from  what  it  would  have  been 
had  the  court  not  given  expression  to  its 
views  in  a  written  opinion,  the  necessary 
result  of  the  ruling  that  the  court  had  not 
jurisdiction  of  the  writ  of  error  was  to 
determine  that  the  trial  court  was  the 
final  court  where  the  questions  presented 
by  the  writ  could  be  decided;  and,  hence, 
the  writ  of  error  should  have  been  di- 
rected to  that  court.  Missouri,  etc.,  R.  Co. 
z;.  Elliott.  184  U.  S.  530,  539.  46  L.  Ed.  673; 
Western  Union  Tel.  Co.  v.  Hughes,  203 
U.   S.  505,  507,  51   L.   Ed.  294. 

21.  Buel  V.  Van  Ness.  8  Wheat.  312.  5 
L.    Ed.  624. 

22.  Underwood  v.  McVeigh,  131  U.  S. 
appx.  cxix,  21  L.   Ed.  952. 

23.  Return  of  writ. — Martin  v.  Hunter. 
1   Wheat.  304,  4  L.  Ed.  97. 

This  court  adopted  the  following  rule 
on  this  subject  in  1797:  "It  is  ordered  by 
the  court  that  the  clerk  of  the  court  to 
which  any  writ  of  error  shall  be  directed, 
may  make  the  return  of  the  same  by  trans- 
mitting a  true  copy  of  the  record,  and  of 
all  proceedings  in  the  cause,  under  his 
hand,  and  the  seal  of  the  court."  The 
power  of  the  court  to  adopt  this  rule 
cannot  be  questioned;  and  it  seems  to 
have  regulated  the  practice  ever  since  its 
adoption.      In    some   cases,    the    certificate 


APPEAL  AXD  ERROR. 


759 


Compelling  Return. — Where  writ  of  error  to  state  court  had  been  served  on 
the  clerk  of  Siale  court,  and  no  return  had  been  made,  before  any  further  pro- 
ceeding is  had,  a  rule  was  made  upon  the  clerk  to  make  the  return  at  next  term 
or  show  cause,  and  case  was  continued.-^ 

(8)  Amendment  of  Writ.— Under  §  1005  of  the  Revised  Statutes  this  court 
may  amend  a  writ  of  error  to  a  state  court  which  bears  the  teste  of  the  chief 
justice  of  the  supreme  court  of  a  state,  and  is  signed  by  the  chief  justice  and 
clerk,  and  sealed  with  the  seal  of  that  court. ^^  Where  a  writ  of  error  from  the 
United  States  supreme  court  to  a  state  appellate  court  is  signed  by  the  clerk  of 
the  state  court,  instead  of  by  the  clerk  of  the  United  States  supreme  court  or 
United  States  circuit  court  for  the  proper  district,  the  defect  is  amendable  under 
§   1005,  Rev.   Stat.,  U.   S.26 

(9)  The  Citation— Zd..  Signature. — The  twenty-fifth  section  of  the  judiciary 
act  of  1798  provides  that  the  citation  must  be  signed  by  the  chief  justice,  or  judo-e, 


of  the  court,  or  the  presiding  judge  has 
been  affixed  to  the  record;  but  this  court 
has  decided,  where  the  ciuestion  has  been 
raised,  that  such  certificate  is  unnecessary. 
So  far  as  the  authentication  of  the  record 
is  concerned,  it  is  impossible  to  make  a 
distinction  between  a  civil  and  a  criminal 
case.  What  may  be  sufficient  to  authen- 
ticate the  proceedings  in  a  civil  case,  must 
be  equally  so  in  a  criminal  one.  The 
verity  of  the  record  is  of  as  much  im- 
portance in  the  one  case  as  in  the  other. 
Worcester  v.  Georgia,  6  Pet.  515,  8  L.  Ed. 
483,  503. 

Is  it  necessary,  in  such  a  case,  that  the 
record  should  be  certified  by  the  judge 
who  held  the  court?  In  the  case  of  Mar- 
tin z'.  Hunter's  Lessee,  which  was  a 
writ  of  error  to  the  court  of  appeals  of 
Virginia,  it  was  objected  that  the  return 
to  the  writ  of  error  was  defective,  be- 
cause the  record  was  not  so  certified;  but 
the  court  in  that  case  said:  "'The  forms 
of  process,  and  the  modes  of  proceeding 
in  the  exercise  of  jurisdiction,  are,  with 
few  exceptions,  left  by  the  legislature  to 
be  regulated  and  changed,  as  this  court 
may,  in  its  discretion,  deem  expedient." 
By  a  rule  of  this  court,  "the  return  of  a 
copy  of  a  record,  of  the  proper  court, 
annexed  to  the  writ  of  error,  is  declared 
to  be  a  sufficient  compliance  with  the 
mandate  of  the  writ.  The  record  in  this 
case  is  duly  certified  by  the  clerk  of  the 
court  of  appeals,  and  annexed  to  the  writ 
of  error.  The  objection,  therefore,  which 
has  been  urged  to  the  sufficiency  of  the 
return  cannot  prevail."  (1  Wheat.  304.) 
Worcester  v.  Georgia,  6  Pet.  515,  8  L.  Ed. 
483,   502. 

The  forms  of  process,  and  the  modes 
of  proceeding  in  the  exercise  of  jurisdic- 
tion, are,  with  few  exceptions,  left  by  the 
legislature,  to  be  regulated  and  changed, 
as  this  court  may,  in  its  discretion,  deem 
expedient.  By  a  rule  of  this  court,  the 
return  of  a  copy  of  a  record  of  the  proper 
court,  under  the  seal  of  that  court,  an- 
nexed to  the  writ  of  error,  is  declared  to 
be  "a  sufficient  compliance  with  the  man- 
date of  the  writ."  Where  the  record  is 
duly  certified  by  the  clerk  of  the  court  of 


appeals,  and  annexed  to  the  writ  of  error, 
an  objection,  urged  to  the  sufficiency  of 
the  return,  cannot  prevail.  Martin  v. 
Hunter.  1  Wheat.   304,  361,  4  L.   Ed.  97. 

A  writ  of  error  was  issued  to  "the 
judges  of  the  superior  court  for  the 
county  of  Gwinnett  in  the  state  of  Geor- 
gia," commanding  them  to  send  to  the 
supreme  court  of  the  United  States,  the 
record  and  proceedings  in  the  said  su- 
perior court  of  the  county  of  Gwinnett, 
between  the  state  of  Georgia,  plaintifif, 
and  Samuel  .\.  Worcester,  defendant,  on 
an  indictment  in  that  court.  The  record 
of  the  court  of  Gwinnett  was  returned, 
certified  by  the  clerk  of  the  court,  and 
was  also  authenticated  by  the  seal  of  the 
court.  It  was  returned  with,  and  annexed 
to,  a  writ  of  error  issued  in  regular  form, 
the  citation  being  signed  by  one  of  the 
associate  justices  of  the  supreme  courts 
and  served  on  the  governor  and  attorney 
general  of  the  state  more  than  thirty  days 
before  the  commencement  of  the  term  to 
which  the  writ  of  error  was  returnable. 
By  the  court:  The  judicial  act,  so  far 
as  it  prescribes  the  mode  of  proceeding, 
appears  to  have  been  literally  pursued. 
In  February,  1797,  a  rule  was  made  on 
this  subject  in  the  following  words:  "It 
is  ordered  by  the  court  that  the  clerk  of 
the  court  to  which  any  writ  of  error  shall 
be  directed,  may  make  return  of  the  same 
by  transmitting  a  true  copy  of  the  record, 
and  of  all  proceedings  in  the  same,  under 
his  hand  and  the  seal  of  the  court."  This 
has  been  done.  But  the  signature  of  the 
judge  has  not  been  added  to  that  of  the 
clerk.  The  law  does  not  require  it.  The 
rule  does  not  require  it.  Worcester  v. 
Georgia.  6  Pet.   515,  8   L.   Ed.  483. 

24.  United  States  v.  Booth.  18  How. 
476,  15  L.  Ed.  464.  See  Ableman  v.  Booth, 
21    How.    506.    512,    16    L.    Ed.    169. 

25.  Amendment  of  writ. — Texas,  etc., 
R.  Co.  r.  Kirk.  Ill  U.  S.  486,  28  L.  Ed. 
481,  citing  McDonogh  v.  Millaudon,  3 
How.  693,  11   L.   Ed.  787. 

26.  Miller  v.  Texas,  153  U.  S.  535,  38 
L.  Ed.  812.  citing  Texas,  etc.,  R.  Co.  v. 
Kirk,   111  U.   S.   486,  28   L.  Ed.  481. 


760  APPEAL  AXD  ERROR. 

or  chancellor  of  the  court  rendering"  or  passing  the  judgment  or  decree  com- 
plained of,  or  by  a  justice  of  the  supreme  court  of  the  United  States.  If  the  cita- 
tion is  signed  by  a  district  judge,  it  is  without  authority  of  law,  and  the  citatiou 
is,  therefore,  witlwut  effect. 2" 

Section  999  of  the  Revised  Statutes  provides  that  the  citation  shall  be 
signed  by  the  chief  justice  judge  or  chancellor  of  the  court  rendering  the  judg- 
»ient  or  passing  the  decree  complained  of,  or  by  a  justice  of  this  court. ^^ 

bb.  Service. — The  only  mode  in  which  a  state  can  be  cited  to  appear  is  by 
serving  the  process  on  some  one  or  more  of  its  officers.  But  the  citation  must  be 
(fe-ected  to  the  party  on  the  record,  and  served  on  him.  And  when  an  ofificer  of 
the  state  is  the  party  prosecuting  the  suit  for  the  state,  the  citation  must  be  served 
on  him.-^  Tlie  "adverse  party,"  within  the  meaning  of  the  language  of  the  act 
of  1789,  ch.  20,  which  directs  the  "adverse  party"  to  be  cited  on  a  wTit  of  error 
or  appeal,  is  the  one  which  appealed  in  the  suit,  and  who  prosecuted  or  defended 
it,  and  in  whose  favor  the  judgment  was  rendered,  which  the  plaintiff  in  the  writ 
of  error  seeks  to  reverse.-^^ 

(10)  Appeal  Booid. — An  application  for  leave  to  prosecute  a  writ  of  error  to 
a  state  court,  without  giving  security  as  required  by  §  1000  of  the  Revised  Stat- 
utes, under  an  act  of  congress  of  July  20,  1892,  27  Stat.  252,  must  be  denied. 
The  ruling  has  uniformly  been,  and  has  been  enforced  in  repeated  instances,  that 
that  act  has  no  application  to  proceedings  in  the  supreme  court  of  the  United 
States.-"'^  But  it  need  not  appear,  that  the  judge  who  granted  tHe  writ  of  error 
did,  upon  issuing  the  citation,  take  a  bond,  as  required  by  the  22d  section  of  the 
judiciary  act.  That  provision  is  merely  directory  to  the  judge,  and  the  presump- 
tion of  law  is,  until  the  contrary  appears,  that  every  judge  who  signs  a  citation 
lias  obeyed  die  injunctions  of  the  act.-^- 

(11)  Limitations. — In  General. — Xo  judgment  or  decree  of  a  state  court  can 
be  reviewed  in  this  court  unless  the  writ  of  error  is  brought  within  two  years 
after  the  entry  of  the  judgment.-^^     ^Moreover,  the  act  of  ]\Iarch  3,  1891,  c.  517, 

27.  Signature. — Palmer  v.  Donner,  7  cient.  He  was  the  "adverse  party,"  un- 
Wall.   5.41,  19   L.   Ed.  99.  der   the  judiciary   act.     The   tenth   rule   of 

Writs   of  error   to   the   state   courts    can  this  court,   directing  process  to  be  served 

only  issue  when  one  of  the  questions  men-  upon    the    chief    executive    magistrate   and 

tioned  in  the  25th  section  of  the  judiciary  attorney    general,    applies    to    those    cases 

act  was  decided  by  the  court  to  which  the  only  in  which  the   state  is  a  party  on  the 

writ   is   directed,   and   in    order    that   there  record.      When   an   ofificer   of   the    state   is 

may   be   some    security   that    such   a   ques-  the    party    prosecuting    the    suit     for      the 

tion  was   decided  in   the   case,   the   statute  state,  the  citation  must  be  served  on  him. 

requires   that   the   citation   must  be  signed  Poydras   v.    The    Treasurer    of    Louisiana, 

by    the    chief    justice    or    judge,    or    chan-  17  How.  1,  15  L.  Ed.  93. 

ccllor   of   the   court    rendering   or   passing  31.     Appeal     bond. — Gallaway     v.     Fort 

the    judgment    or    decree    complained    of,  Worth  Bank.  186  U.  S.  177,  178,  46  L.  Ed. 

or  by   a   justice   of   the   supreme    court   of  1111.    approved    in    Bradford    v.    Southern 

the    United    States.      Bartemeyer   v.    Iowa,  R.   Co.,   195  U.   S.  24.3.   247.  49   L.  Ed.  178. 

14  Wall.  26,  20  L.   Ed.  792.  32.     Martin   v.   Hunter,   1   Wheat.   304,  4 

A    district    judge    has    no  'authority    to  L.   Ed.   97. 

sign  a  citation  upon  a  writ  of  error  to  a  33.    Limitations  in  general. — Rev.  Stat., 

state  court.     When  the   citation   has   been  §  1008;  Cummings  v.  Jones,  104  U.  S.  419, 

.thus  signed,  the  writ  of  error  will  be  dis-  26   L.    Ed.    824;    Scarborough   v.    Pargoud, 

missed   on   motion.     Palmer  v.   Donner,   7  108  U.  S.  567,  27  L.  Ed.  824. 

Wall.  541.  19  L.  Ed.  99.  Section  1008  of  the  Revised  Statutes  de- 

28.  Butler  v.  Gage.  138  U.  S.  52.  55,  56,  clares  that  "No  judgment,  decree,  or  or- 
34   L.   Ed.   869.  der   of  a   circuit   or   district   court,   in   any 

29.  Service. — Poydras  v.  Treasurer  of  civil  action  at  law.  or  in  equity,  shall  be 
Louisiana.  17  How.  1,  15  L.  Ed.  93.  reviewed    by   the    supreme   court,   on   writ 

30.  Poydras  v.  Treasurer  of  Louisiana,  of  error  or  appeal,  unless  the  writ  of  er- 
17   How.  1,  15   L.   Ed.  93.  ror   is   brought,    or    the    appeal     is      taken 

Where    a    proceeding    was    instituted    in  within   two  years   after  the   entry  of  such 

Louisiana,    in    the    name    of   the    treasurer  judgment,  decree,  or  order."     This  rule  is 

of    the    state,    to    recover    a    tax    imposed  applicable    to   writs   of   error   to   the   state 

upon  property  inherited  bv  aliens,  a  cita-  courts  in  like  manner  as  to  circuit  corrts. 

tion    served    upon    that    ofificer    was    suffi-  Scarborough   v.    Pargoud,    108    U.    S.    567, 


APPEAL  AXD  ERROR. 


761 


26  Slat,  at  L.  826,  did  not  operate  to  reduce  the  time  in  which  writs  of  error 
could  issue  from  the  supreme  court  to  the  state  courts.^^ 

The  statute  of  limitations  begins  to  run  from  the  time  of  the  entry  of 
the  judgment  in  the  state  court.  On  that  day  the  plaintiff  has  a  right  to  his  writ, 
and  on  that  day  the  two  years  begins  to  run  as  described  by  §  1003  of  the  Re- 
vised Statutes.-'''' 

(12)  Parties  to  Proceeding — aa.  In  General. — Any  person  who,  in  the  state 
courts,  has  substantially  made  himself  a  party  to  the  case,  by  asserting  on  the 
record  his  interest,  and  conducting  the  defense  in  the  highest  court  of  the  state, 
rnay  prosecute  a  writ  of  error  in  his  own  name  in  this  court  under  the  25th  sec- 
tion of  the  judiciary  act."*^  However  it  may  be  in  regard  to  the  rights  of  parties 
on  appeal  in  the  state  court,  in  order  to  be  heard  in  this  court  on  writ  of  error  to  a 
state  court,  the  question  must  have  been  raised  in  the  state  court  by  the  individual 
who  seeks  to  have  it  reviewed  here.  A  plaintiff  in  error  in  this  court  must  show 
that  he  has  himself  raised  the  question  in  the  state  court  which  he  argues  here, 
and  it  will  not  aid  him  to  show  that  someone  else  had  raised  it  in  the  state  court, 
while  he  failed  himself  to  do  so.^' 

bb.  Appealable  Interest. — The  jurisdiction  of  the  supreme  court  of  the  United 
States  can  only  be  invoked  by  a  party  having  a  personal  interest  in  the  litigation. 
It  follows  that  a  party  cannot  sue  out  a  writ  of  error  in  behalf  of  third  persons.^* 
Moreover,  the  interest  of  an  appellant  in  the  supreme  court  of  the  United  States 
should  be  a  personal  and  not  an  official  interest.^^ 

The  fact  that  a  personal  judgment  for  costs  was  rendered  against  a 
public  official  who  has  sought  advise  of  the  courts  of  his  own  state  in  his  official 
capacity,  will  not  give  the  supreme  court  of  the  United  States  jurisdiction  of  the 
cause  on  writ  of  error  to  the  state  court.'*^*     Besides,  the  fact  that  the  various 


27  L.  Ed.  824;  Polleys  v.  Black  River  Co., 
11.3   U.   S.  81,   82,  28   L.   Ed.  938. 

"This  is  a  writ  of  error  to  the  supreme 
court  of  Louisiana,  brought  more  than 
two  but  less  than  five  years  after  the 
judgment  to.  be  reviewed  was  rendered, 
and  one  of  the  questions  raised  on  this 
motion  is  whether  the  limitation  of  two 
years  prescribed  by  §  1008  of  the  Revised 
Statutes,  for  bringing  writs  of  error  to 
the  circuit  and  district  courts,  applies  to 
writs  of  error  to  state  courts.  We  have 
no  hesitation  in  saying  it  does."  Cum- 
mings  V.  Jones.  104  U.  S.  419.  26  L.  Ed. 
824,  citing  Brooks  r.  Norris,  11  How. 
204.  13  L.  Ed.  66.5. 

34.  Allen  v.  Southern,  etc..  R.  Co.,  173 
U.  S.  479,  43  L.  Ed.  775,  reaffirmed  in  Holt 
V.  Indiana  Mfg.  Co.,  176  U.  S.  68,  44  L. 
Ed.    374. 

35.  Polleys  v.  Black  River  Co.,  113  U. 
S.  81,  28  L.  Ed.  938,  citing  Brooks  v.  Nor- 
ris, 11  How.  204,  13  L.  Ed.  665. 

In  the  case  of  Brooks  v.  Norris,  12 
How.  204,  13  L-  Ed.  665,  construing  the 
25th  section  of  the  judiciary  act  of  1789, 
IT  is  said  "that  the  writ  of  error  is  not 
brought,  in  the  legal  meaning  of  the  term, 
until  it  is  filed  in  the  court  which  ren- 
dered the  judgment.  It  is  the  filing  of 
the  writ  that  removes  the  record  from  the 
inferior  to  the  appellate  court,  and  the 
period  of  limitation  prescribed  by  the  act 
of  congress  must  be  calculated  accord- 
irely."  fbis  languap-'"  i«  repeated  in  M'is- 
sina  V.  Cavazos,  6  Wall.  355,  18  L.  Ed. 
810,   and   in    Scarborough   v.    Pargoud.   10;> 


U.  S.  567.  27  L.  Ed.  824.    Polleys  v.  Black 
River  Co.,  113  U.  S.  81,  83,  28  L.   Ed.  938. 

36.  Parties  to  proceeding  in  general. — 
Steamboat  Burns,  9  Wall.  237,  19  L.  Ed. 
620. 

37.  Sulley  v.  American  Nat.  Bank,  178 
U.   S.  289,  297,  44  L.   Ed.    1072. 

38.  Appealable  interest. — Tyler  v. 
Judges  of  Court  of  Registration,  179  U. 
S.  405,  45  L.  Ed.  252;  Clark  t'.  Kansas 
City,  176  U.  S.  114,  44  L.  Ed.  392:  Turpin 
r.  Lemon.  187  U.  S.  51,  47  L.  Ed.  70;  Lam- 
pasas z:  Bell,  180  U.  S.  276,  45  L.  Ed.  527; 
Ludeling  v.  Chaflfe,  143  U.  S.  301.  3i.  -,. 
Ed.  313;  Giles  v.  Little,  134  U.  S.  645.  .13 
L.  Ed.  1062;  Smith  v.  Indiana,  191  U.  S. 
138,    148,    48    L.    Ed.    125. 

39.  Smith  z:  Indiana,  191  U.  S.  138.  149. 
48  L.   Ed.   125. 

A  county  auditor  having  sought  t'^- 
advice  of  the  courts  of  his  own  state  in 
his  ofiicial  capacity,  in  order  to  test  the 
constitutionality  of  a  law  purely  in  the 
interest  of  third  persons,  viz,  the  taxpay- 
ers, is  not  entitled  to  a  writ  of  error  from 
the  United  States  supreme  court  to  re- 
view the  judgment  of  the  state  court. 
Smith  z'.  Indiana,  191  U.  S.  138.  48  L.  Ed. 
125.  citing  and  approving  Caffrey  v.  Okla- 
.homa,  177  U.   S.  346,  44  L.   Ed.   799. 

40.  Smith  v.  Indiana,  191  U.  S.  138,  48 
L.  Ed.  125. 

"It  seems  to  be  well  settled  that  even  if 
the  fact  that  costs  are  awarded  against 
a  party,  gives  him  an  appealable  intere.«t. 
of  which  there  appears  to  be  considerabl'- 
tiwubt,    Travis    z'.    Waters,    12    Johns.    500: 


762 


APPEAL  AXD  ERROR. 


statutes  fixing  the  jurisdiction  of  the  circuit  courts  of  the  United  States,  and  of 
this  court,  which  from  the  original  juchciory  act  of  1789  have,  where  the  amounr 
involved  was  made  the  test  of  jurisdiction,  uniformly  used  the  words  "exclusive 
of  costs,"  would  indicate,  so  far  as  the  federal  courts  are  concerned,  that  a  mere 
judgment  for  costs  could  not  ordinarily  be  made  the  basis  of  an  appeal  to  this 
court.-*  1 

(13)  Assignment  of  Errors^^ — Necessity  for. — Objections  not  assigned  in 
this  court  as  error,  in  the  'assignments  of  error,  or  in  the  brief  for  plaintifif  in 
error,  will  not  be  considered.'*^  Where  a  writ  of  error  is  brought  for  a  review 
of  a  judgment  of  a  state  court,  but  no  assignment  of  errors  is  returned  with  the 
writ  as  required  by  §  997  of  the  Revised  Statutes,  this  court  will  affirm  the  judg- 
ment under  §  4  of  Rule  21.  108  U.  S.  585,  for  want  of  a  due  prosecution  of  the 
writ  of  error.^-* 

Requisites  and  Sufficiency. — x'\n  assignment  of  error  in  the  highest  court 
of  a  state  to  the  decision  of  an  inferior  state  court,  that  the  latter  had  decided  .i 
particular  state  statute  "valid  and  constitutional,"  and  a  judgment  entry  by  the 
latter  court  that  the  statute  was  not  "in  any  respect  repugnant  to  the  constitu- 
tion of  the  United  States,"  is  not  specific  enough  to  give  jurisdiction  to  the  su- 
preme court  of  the  United  States  under  §  709  of  the  Revised  Statutes ;  there  be- 
ing nothing  else  anywhere  in  the  record  to  show  to  which  provision  of  the  con- 
stitution of  the  United  States  the  statute  was  alleged  to  be  repugnant.*-^ 
However,  where  the  record  showed  that  the  case  was  one  of  the  assertion  of  a 
lien  under  a  state  statute  for  building  a  vessel  at  a  town  on  what  the  court  might 
perhaps  judically  notice  was  an  estuary  of  the  sea,  and  where  the  entry  of  judg- 
ment showed  also  that  the  court  had  adjudged  "that  the  contract  for  building  the 
vessel  in  question  was  not  a  maritime  contract,  and  that  the  remedy  given  by  the 
lien  law  of  the  state  did  not  conflict  with  the  constitution  or  laws  of  the  United 
States,"  the  court  held,  that  the  latter  statement,  in  view  of  the  whole  record,  was 
s^ifficient  to  give  this  court  jurisdiction.^*^  A  ground  of  error  assigned  in  the 
state  court  that  "the  charge  of  the  court,  the  verdict  of  the  jury,  and  the  judg- 
ment below,  are  each  against  and  in  conflict  with  the  constitution,  and  laws  of  the 
United  States,  and  therefore  erroneous,"  is  too  general  and  indefinite  to  come 
within  the  provisions  of  the  act,  or  the  decisions  of  this  court.-*' 


Reid  V.  Vanderheyden,  5  Cow.  719.  736,  it 
does  not  give  him  an  appealable  interest 
in  the  judgment  upon  the  merits,  but  lim- 
its hnm  to  the  mere  question  of  costs. 
Studebaker  r.  Markley.  7  Ind.  App.  368; 
Hone  V.  Schaick,  7,  Paige  221;  Card  v. 
Bird,  10  Paige  426;  Cuyler  v.  Moreland. 
6  Page  '273;"  Smith  v.  Indiana,  191  U.  S. 
138,  149,  48  L.  Ed.  125. 

If  plaintiff  in  error  objected  to  the 
judgment  for  costs,  he  might  have  moved 
to  modify  it  in  that  particular.  Not  hav- 
ing done  so,  his  appeal  is  presumptively 
from  the  judgment  on  the  merits,  Amer- 
ican Ins.  Co.  V.  Gibson,  104  Indiana  336, 
342,  and  as  his  individual  rights  were  not 
affected  by  such  judgment,  he  is  not  en- 
titled to  an  appeal.  Smith  zk  Indiana,  191 
U.    S.   138,   149,   48   L.    Ed.    125. 

41.  Smith  V.  Indiana,  191  U.  S.  138.  149. 
48   L.   Ed.   125. 

42.  Assignment  of  errors. — For  an  ex- 
ample of  what  form  an  assignment  of  er- 
ror should  be  in  a  writ  of  error  to  a  state 
court,  see  Fletcher  i'.  Rhode  Island,  5 
How.    540.    11    L.    Ed.    272. 

43.  O'Neil  v.  Vermont,  144  U.  S.  323, 
36    L.    Ed.   450. 


44.  Dugger  v.  Tayloe,  121  U.  S.  286, 
30   L.    Ed.  946. 

45.  Edwards  v.  Elliott.  21  Wall.  532.  22 
L.    Ed.   487. 

46.  Edwards  v.  Elliott,  21  Wall.  532, 
22    L.    Ed.    487. 

47.  "This  case  cannot  be  distin8:riished 
from  the  case  of  Lawler  z\  Walker,  14 
How.  149.  14  L.  Ed.  364.  In  that  case  the 
state  court  certified  that  there  was  drawn 
in  question  the  validity  of  statutes  of 
the  state  of  Ohio,  etc.,  without  saying 
what  statutes.  And  in  the  opinion  of  this 
court  dismissing  the  case  for  want  of  ju- 
risdiction, they  say:  'The  statutes  com- 
plained of  in  this  case  should  have  been 
stated;  without  that,  the  court  cannot  ap- 
ply them  to  the  subject  matter  of  litiga- 
tion to  determine  whether  or  not  they 
violated  the  constitution  of  the  United 
States.'  So  in  the  case  before  us,  the 
clause  in  the  constitution  and  the  law  of 
congress  should  have  been  specified  by 
the  plaintiffs  in  error  in  the  state  court, 
in  order  that  this  court  might  see  what 
was  the  right  claimed  by  them,  and 
whether  it  was  denied  to  them  by  ihe 
decision  of  the  state  court."  Maxwell  v. 
Xewbold,   18    How.   511,   15   L.   Ed.   506. 


APPBAL  AND  ERROR. 


763 


t.  The  Record — (1)  In  General. — This  court  cannot  go  out  of  the  record  to 
re-examine  any  question  under  a  writ  of  error  to  a  state  court.-^'^  We  are  to 
try  the  case  upon  the  duly  certified  record,  legaUy  made  in  the  state  court,  and 
upon  which  its  decision  rests^^  Neither  the  petition  for  a  rehearing  nor  petition 
lor  writ  of  error  in  the  state  court  after  judgment,  or  assignments  of  error  ia 
this  court,  can  supply  deficiencies  in  the  record  of  the  state  court,  if  any  exist, 
in  order  to  give  this  court  jurisdiction  to  review  a  federal  question  from  a  state 
court.^<* 

Exceptions  to  General  Rule. — It  is  generally  true,  that  a  party  claiming  a 
right  under  an  act  of  congress,  must  avail  himself  of  some  legal  means  to  place 
on  record  that  claim,  and  the  facts  on  which  it  rests:  otherwise,  he  cannot  have 
the  benefit  of  a  re-examination  of  the  judgment  upon  a  writ  of  error.  But  this 
duty  does  not  exist  in  a  case  in  which  he  cannot  perform  it  without  surrendering 
some  part  of  the  right  which  the  act  secured  to  him,  and  in  which  the  court, 
where  the  matter  is  depending,  is  expressly  prohibited  from  taking  any  further 
proceeding.^^ 


48.  Edwards  v.  Elliott.  21  Wall.  532. 
549,  22  L.   Ed.   487. 

The  record  in  general. — Fisher  v.  Cook- 
erell,  5  Pet.  248,  8  L.  Ed.  114;  Davis  v. 
Packard,  7  Pet.  281,  8  L.  Ed.  684;  Inglee 
V.  Coolidge,  2  Wheat.  363,  4  L.  Ed,  261; 
New  York  State  v.  Barker.  179  U.  S.  279, 
45  L.  Ed.  190,  distinguishing  Cummings 
V.  National  Bank,  101  U.  S.  153.  162,  25 
1,.  Ed.  903;  Goodenough  Horse  Shoe  Co. 
V.  Rhode  Island  Horse  Shoe  Co.,  154  U. 
Su  635.  24  L.  Ed.  368;  Walker  v.  Villavaso, 
6  Wall.  124.  18  L.  Ed.  853;  Moore  v.  Mis- 
sissippi, 21  Wall.  636,  639,  22  L.  Ed.  653, 
approved  in  Otis  v.  Oregon  Steamship 
Co..  116  U.  S.  548,  550.  29  L-  Ed.  719;  Wil- 
liams V.  Norris,  12  Wheat.  117,  118,  6  L. 
Ed.  571;  Davis  v.  Packard,  6  Pet.  48.  8  L. 
Ed.  315;  Otis  v.  Bacon,  7  Cranch  596.  3 
L.  Ed.  451;  Moore  v.  Mississippi,  21  Wall. 
636,  22  L.   Ed.  653. 

The  second  section  of  the  act  of  con- 
gress of  February  5,  1867,  amending  the 
judiciary  act  of  1789,  is  to  a  great  ex- 
tent a  transcript  of  the  25th  section  of  the 
latter  act.  There  are  several  alterations 
of  phraseology  which  are  not  material. 
But  at  the  close  of  the  second  section 
there  is  a  substantial  addition  and  omis- 
sion. The  omission  is  of  these  words  in 
the  25th  section  of  the  original  act,  1  Stat. 
at  L.  85:  "But  no  other  error  shall  be 
regarded  as  a  ground  of  reversal  in  any 
such  case,  as  aforesaid,  than  such  as  ap- 
pears on  the  face  of  the  record,  and  im- 
mediately respects  the  before-mentioned 
questions  of  validity  or  construction  of 
the  said  constitution,  treaties,  statutes, 
commissions,  or  authorities  in  dispute." 
Stewart  v.  Kahn,  11  Wall.  493,  502,  20  L. 
Ed.  176. 

The  25th  section  of  the  act  to  estab- 
lish the  judiciary  courts  of  the  United 
States,  which  gives  to  this  court  the  power 
of  revising  certain  judgments  of  state 
courts,  limits  that  power  in  these  words 
"that  no  other  error  shall  be  assigned  or 
regarded  as  a  ground  of  reversal  in  any 
such   case   as   aforesaid    than    such    as   ap- 


pears on  the  face  of  the  record."  Fisher 
V.  Cockerell,  5  Pet.  248,  8  L.  Ed.  114;  Har- 
ris V.  Dennie,  3  Pet.  292,  7  L.  Ed.  68.T; 
Craig  V.  Missouri,  4  Pet.  410,  7  L.  Ed.  903; 
Owings  V.  Norwood,  5  Cranch  344,  3  L. 
Ed.  120;  Miller  v.  Nicholls,  4  Wheat.  311, 
312,   4    L.    Ed.    578. 

In  the  exercise  of  the  appellate  juris- 
diction of  the  supreme  court  on  the  de- 
cisions of  state  courts,  the  supreme  court 
is  not  at  liberty  to  resort  to  forced  in- 
ferences and  conjectural  reasonings,  or 
possible  or  even  probable  suppositions  of 
the  points  raised  and  actually  decided  by 
those  courts.  The  court  must  see, 
plainly,  that  the  decision  was  either  li- 
rectly  made  of  some  matter  within  the 
purview  of  the  25th  section  of  the  act 
of  1789,  or  that  the  decision  could  not 
have  been  such  as  it  was,  without  neces- 
sarily involving  such  matter.  It  is  to 
the  record,  and  to  the  record  alone,  that 
the  supreme  court  can  resort  to  ascertain 
its  appellate  jurisdiction,  in  cases  decided 
in  the  supreme  or  superior  court  of  a 
state.  Ocean  Ins.  Co.  v.  Polleys,  13  Pet. 
157,    10   L.    Ed.    105. 

The  preceedings  on  a  motion  to  dismiss 
made  in  the  state  supreme  court,  form 
no  part  of  the  record.  Davis  v.  Packard, 
6  Pet.  41,  48,  8  L.  Ed.  315. 

49.  Powell  V.  Brunswick  County,  150 
U.  S.  433,  37  L.  Ed.  1134;  Harding  :-. 
Illinois,  196  U.  S.  78,  49  L.  Ed.  394,  re- 
affirmed in  Robinson  v.  Wingate,  198  U. 
S.  580,  49  L.  Ed.  1171;  Chicago,  etc.,  R- 
Co.  V.  Newell,  198  U.  S.  579.  49  L.  Ed. 
1171;  Scale  v.  Georgia,  201  U.  S.  642,  50 
L.  Ed.  902. 

50.  Simmerman  v.  Nebraska,  116  U.  S. 
54,  29  L.  Ed.  535;  Harding  v.  Illinois,  19'> 
U.  S.  78,  84,  49  L.  Ed.  394.  reaffirmed  in 
Robinson  v.  Wingate,  198  U.  S.  580,  49 
L.  Ed.  1171;  Chicago,  etc.,  R.  Co.  v.  New- 
ell, 198  U.  S.  579,  49  L-  Ed.  1171;  Scale 
V.  Georgia,  201  U.  S.  642,  50  L.  Ed.  902.      ' 

51.  Kanouse  v.  Martin,  15  How.  193. 
209.    14    L.    Ed.    660. 

For  it  is  as  true  in  this  court  as  in  the 


7b4 


APPEAL  AXD  ERROR. 


(2)  Form  and  Contents  of  Record — aa.  In  General. — Where  in  the  transcript 
on  a  writ  of  error  from  the  supreme  court  of  the  United  States  to  the  highest 
state  court,  there  are  no  pleadings,  no  judgment  other  than  an  allegation  in  what 
is  called  a  bill  of  exceptions  of  an  adjudication  in  insolvency,  and  the  recital  in 
such  bill  of  objections  to  the  form  of  commencing  the  action,  and  certifying  pro- 
ceedings therein,  the  writ  of  error  will  be  dismissed. ^- 

bb.  A'ecessity  for  Setting  Out  Treaty,  Act  of  Congress  or  Constitutionul  Pro- 
vision.— It  is  well  settled  in  the  supreme  court  of  the  United  States  that  it  must 
be  made  to  appear  that  some  provision  of  the  federal,  as  distinguished  from  the 
state,  constitution  was  relied  upon,  and  that  such  provision  be  set  forth.'^^  jt  Js 
not  always  necessary  to  refer  to  the  precise  words  or  to  the  particular  section 
of  the  constitution,  under  which  some  right,  title,  privilege  or  immunity  is  claimed, 
it  is  sufficient  if  it  appears  affirmatively  from  the  record  that  a  right,  title,  priv- 
ilege or  immunity  is  specially  set  up  or  claimed  under  that  instrument  or  un- 
der the  authority  of  the  United  States/^^  A  party  relying  on  this  court  for  re- 
examination and  reversal  of  the  decree  or  judgment  of  the  highest  state  court, 
under  the  25th  section  of  the  judiciary  act  of  1789,  need  not  set  forth  specially  the 
clause  of  the  constitution  of  the  United  States  on  which  he  relies.  If  the  pleadings 
make  a  case  which  necessarily  comes  within  the  provisions  of  the  constitution. 
It  is  enough-f^s     "jt   would  be  a  new  rule  of  pleading,  and  one  altogether  su- 


superior  court  of  New  York  that,  upon  a 
writ  of  error,  this  court  looks  only  at  the 
tc:hnical  record,  and  affirms  or  reverses 
the  ,:udj;nKiil,  according  to  what  may  ap- 
pear thereon.  Clnglee  v.  Coolidge,  2 
Wheat.  363,  4  L.  Ed.  261;  Fisher  v.  Cock- 
erell.  5  Pet.  248,  8  L-  Ed.  114;  Reed  v. 
Marsh,  13  Pet.  153,  10  L.  Ed.  103.)  But 
lliK'-  is  only  one  of  the  rules  of  evidence 
for  the  exercise  of  its  jurisdiction  as  a 
court  of  error;  it  prescribes  what  shall 
^nd  what  shall  not  be  received  as  evi- 
dence of  what  was  done  in  the  court  be- 
low; and  when  an  act  of  congress  can- 
not be  executed  without  desregarding  this 
general  rule,  it  becomes  the  duty  of  this 
court  to  disregard  it.  The  plaintiff  in 
error,  having  a  right  to  have  the  errone- 
ous judgment  reversed,  must  also  have 
the  right  to  have  the  only  legal  proceed- 
ings, which  could  be  had  consistently  with 
the  act  of  congress,  examined  to  show 
that  error.  Kanouse  v.  Martin,  15  How. 
198.   210.    14   L.    Ed.   660. 

When  a  record  from  the  highest  court 
of  the  state  disclosed  the  fact  that  a  per- 
son had  been  indicted  on  an  indictment 
which  contained  certain  counts  charging 
him  with  selling  lottery  tickets,  and  cer- 
"tain  others  charging  him  with  keeping  a 
gaming  table,  both  in  violation  of  stat- 
ute, and  that  he  pleaded  in  bar  to  the 
whole  indictment,  a  statute  of  earlier  date 
which  went  to  justify  his  issuing  of  the 
lottery  tickets,  but  not  to  justify  his  keep- 
ing of  a  gaming  table,  and  the  plea,  on 
demurrer,  was  held  bad,  and  on  his  then 
pleading  not  guilty,  he  was  found  guilty, 
generally,  and  a  proper  judgment  entered 
against  him;  this  court  held,  there  hav- 
ing been  no  bill  of  exceptions  taken  at  the 
trial  and  no  error  specifically  stated  in 
the  record — that  it  would  not  look  out  of 
the  record — into  the  opinion   of  the  court 


(made  part  of  the  transcript)  or  else- 
where— to  see  that  the  defendant  had  set 
up  that  the  statute  under  which  he  was  in- 
dicted and  convicted  violated  the  ob- 
ligation, of  a  contract  made  by  the 
prior  one,  which  he  had  set  up  in 
bar  to  the  whole  indictment.  The 
record  showing  that  the  plea  had  an- 
swered but  part  of  the  indictment,  the 
judgment  had  a  proper  base  for  it,  and 
no  other  matter  being  properly  alleged 
for  error  it  was  rightly  to  be  affirmed. 
Moore  v.  Mississippi,  21  Wall.  636,  22  L. 
Ed.   653. 

52.  Form  and  contents  of  record  in 
general.— Clarke  v.  McDade.  165  U.  S. 
168.  41   L.   Ed.  673. 

53.  Necessity  for  setting  out  treaty, 
act  of  congress  or  constitutional  provi- 
sion.— Porter  v.  Foley,  24  How.  415,  16 
L.  Ed.  740;  Miller  it.  Cornwall  R.  Co.,  168 
U.  S.  131.  42  L.  Ed.  409;  Dewey  v.  Des 
Moines,  173  U.  S-  193,  43  L.  Ed.  665;  Keo- 
kuk, etc..  Bridge  Co.  t'.  Illinois,  175  U. 
S.  626,  44  L.  Ed.  299;  Chapin  v.  Eye,  179 
U.  S.  127,  45  L.  Ed.  119;  New  York,  etc., 
R.  Co.  v._  New  York,  186  U.  S.  269.  273, 
46   L.   Ed.   1158. 

54.  Oxley  Stave  Co.  v.  Butler  County, 
166  U.  S.  648,  657,  41  L.  Ed.  1149,  ex- 
plaining Maxwell  v.  Newbold,  18  How. 
511,  15  L.  Ed.  506;  Hoyt  v.  Shelden.  1 
Black  518,  17  L.  Ed.  65,  reaffirmed  in 
Harkins  v.  Ashville.  180  U.  S.  635,  45 
L.  Ed.  709;  Baldwin  v.  t^ounty  Commis- 
sioners, 168  U.  S.  705,  42  L.  Ed.  1313; 
Tompkins  v.  Cooper,  170  U.  S.  703,  42  L. 
Ed.  1217;  Mutual  Life  Ins.  Co.  v.  Kir- 
choff,  169  U.  S.  103,  42  L.  Ed.  677;  Chap- 
pell  V.  Stewart.  169  U.  S.  733,  42  L.  Ed. 
1215;  Fenwick  Hall  Co.  v.  Old  Saybrook, 
169  U.   S.   734.  42  L.   Ed.   1215. 

55.  Bridge  Proprietors  v.  Hoboken,  etc, 
Co.,    1    Wall.    116,    17   L.    Ed.    571. 


APPEAL  AXD  ERROR. 


765 


perfluous,  to  require  a  party  to  set  out  specially  the  provision  of  the  constitution 
of  the  United  States,  on  which  he  relies  for  the  action  of  the  court  in  the  protec- 
tion of  his  rights.  If  the  courts  of  this  country,  and  especially  this  court,  can  be 
supposed  to  take  judicial  notice  of  anything  without  pleading  it  specially,  it  is 
the  constitution  of  the  United  States/'^e  In  the  construction  of  the  25th  section 
of  the  judicial  act,  passed  24th  of  September,  1789,  this  court  has  never  required 
that  the  treaty,  or  act  of  congress,  under  which  the  party  claims,  who  brings  tlie 
final  judgment  of  a  state  court  into  review  before  this  court,  should  have  been 
pleaded  specially  or  spread  upon  the  record.  But  it  has  always  been  deemed  es- 
sential to  the  exercise  of  jurisdiction  in  such  a  case,  that  the  record  should  show 
a  complete  title  under  the  treaty  or  act  of  congress,  and  that  the  judgment  of  the 
court  is  in  violation  of  that  treaty  or  act.-'''" 

cc.  Orders  in  State  Court  Subsequent  to  Removal. — No  orders  in  the  state 
court,  after  the  removal  of  the  record  into  this  court  (not  made  by  way  of 
amendment,  but  introducing  new  matter),  can  be  brought  into  the  record  here. 
The  cause  must  be  heard  and  determined  upon  the  record  as  it  stood  when  re- 
moved.5* 

dd.  Petition  for  Rehearing. — A  petition  for  a  reheari^  in  the  state  court  is 
no  part  of  tlie  record. -^^ 

ee.  Petition  for  Writ  of  Error. — It  must  be  regard-ed  as  settled  that  a  petition 
for  a  writ  of  error  forms  no  part  of  the  record  on  which  it  is  to  be  ascertained 
whether  the  state  court  decided  a   federal  question.^*^ 


56.  Bridge  Proprietors  v.  Hoboken  Co., 
1  Wall.   116,  142,   17   L.   Ed.   571. 

57.  Hickie  v.  Starke,  1  Pet.  94,  7  L.  Ed. 
87;  Crowell  v.  Randell,  10  Pet.  368,  39.J, 
9  L-  Ed.  458;  McCullough  v.  Virginia,  17~' 
U.   S.    102,    118,    43   L.    Ed.   382. 

58.  Orders  in  state  court  subsequent 
to  removal. — Williams  v.  Xorris.  12 
Wheat.   117.  6   L.   Ed.  571. 

59.  Petition  for  rehearing. — Grame  v. 
Mutual  Assur.  Soc,  154  U.  S.  appx.  676, 
26  L-  Ed.  740;  La  Grange  v.  Chouteau,  4 
Pet.  287,  7  L.   Ed.   861. 

A  petition  for  a  rehearing,  filed  in  the 
court  below  after  judgment,  which  has 
been  refused,  is  no  part  of  the  record  to 
be  returned  here  with  a  writ  of  error  for 
a  review  of  the  judgment.  Steines  v. 
Franklin  County,  14  Wall.  15.  21,  20  L. 
Ed.  846;  Grame  v.  Mutual  Assur.  Soc.  154 
U.  S.  appx.  676,  26  L.  Ed.  740;  Harding  v. 
Illinois.  196  U.   S.   78,  84,  49   L.   Ed.  394. 

After  the  decision  of  the  case  in  the  su- 
preme court  of  the  state  of  Missouri,  the 
plaintiflf  presented  a  petition  for  a  re- 
hearing, claiming  his  freedom  under  the 
provisions  of  the  ordinance  of  congress 
of  the  13th  of  July.  1787,  for  the  govern- 
ment of  the  territory  of  the  United  States 
northwest  of  the  River  Ohio.  The  su- 
preme court  refused  to  grant  the  rehear- 
ing, and  the  plaintifT  prosecuted  a  writ 
of  error  to  this  court  under  the  twenty- 
fifth  section  of  the  judiciary  act  of  1789. 
Held,  that  as  the  petition  for  rehearing 
forms  no  part  of  the  record,  it  cannot  be 
noticed.  The  jurisdiction  of  this  court  de- 
pends on  the  matter  disclosed  in  the  bill 
of  exceptions.  LaGrange  v.  Chouteau.  4 
Pet.  287.  7  L.  Ed.  861. 

In  order  for  this  court  to  review  judg- 
ments   of    state    courts    on    federal    ques- 


tions, it  must  appear  unmistakably  that 
the  court  either  knew,  or  ought  l  .  i.avo 
known,  prior  to  judgment,  that  a  federal 
question  was  involved  in  the  decision  to 
be  made.  And  the  fact  that  the  federal 
question  was  suggested  for  the  first  time 
on  a  petition  for  rehearing,  "is  unim- 
portant I'.ere.  because  our  jurisdiction  ex- 
tends only  to  a  review  of  the  judgment 
as  it  stands  in  the  record.  We  act  on 
the  case  as  made  to  the  court  below  when 
the  judgment  was  rendered,  and  cannot 
incorporate  into  the  record  any  new  mat- 
ter which  appears  for  the  first  time  after 
the  judgment,  on  a  petition  for  rehearing. 
Such  a  petition  is  no  part  of  the  record 
on  which  the  judgment  rests."  Susque- 
hanna Boom  Co.  V.  W^est  Branch  Boom 
Co.,  110  U.  S.  57,  28  L.  Ed.  69,  citing  and 
approving  Brown  f.  Colorado,  106  U.  S. 
95,  27  L.   Ed.   132. 

60.  Petition  for  writ  of  error. — !Man- 
ning  r.  French,  133  U.  S.  186,  33  L.  Ed. 
582;  Clark  v.  Pennsylvania.  128  U.  S. 
395,  32  L.  Ed.  487;  Warfield  v.  Chafife,  91 
U.  S.  690,  23  L.  Ed.  383;  Butler  v.  Gage. 
138  U.  S.  52,  56,  34  L.  Ed.  869;  Leeper  v. 
Texas,  139  U.  S.  462.  467,  35  L.  Ed.  225; 
French  v.  Taylor,  199  U.  S.  274,  50  L. 
Ed.  189;  Sayward  v.  Denny,  158  U.  S.  180, 
183,  39  L.  Ed.  941,  reaffirmed  in  Texas, 
etc..  R.  Co.  V.  Gay,  167  U.  S.  745,  42  L- 
Ed.  1209;  California  Powder  Works  v. 
Davis,  151  U.  S.  389,  393.  38  L.  Ed.  206; 
Harding  v.  Illinois,  196  U.  S.  78.  84.  49 
L.    Ed.   394. 

The  fact  that,  after  the  final  judgment, 
and  in  the  petition  for  a  writ  of  error  to 
this  court,  which  seems  to  have  been 
treated  also  as  a  petition  for  rehearing. 
a  federal  question  was  presented  is  not 
enough.      It    was    so    decided    in    Susque- 


766 


APPEAL  AND  ERROR. 


ff.  Arguments  of  Counsels. — Nor  do  the  arguments  of  counsel  form  part  of 
the  record  upon  which  action  is  taken  here,  though  the  opinions  of  the  state 
courts  are  now  made  such  by  rule/'^  The  certification  of  the  briefs  by  the  clerk 
of  the  state  supreme  court,  which  are  no  part  of  the  record,  will  not  sufficiently 
raise  a  federal  question  to  give  this  court  jurisdiction  to  review  the  state  court's 
decision. "^^ 

gg.  Opinion  of  the  State  Court — aaa.  Under  the  25th  Section  of  the  Judiciary 
Act. — The  25th  section  of  the  judiciary  act  restricted  this  court,  in  reviewing 
on  error  the  final  judgment  or  decree  of  the  highest  court  of  a  state,  to  the  con- 
sideration of  such  errors  as  appeared  on  the  face  of  the  record.  Therefore,  the 
opinion  of  the  state  court  could  not  be  looked  to  in  order  to  determine  the  errors 
committed,  or  whether  such  a  question  was  involved  as  would  give  this  court 
jurisdiction,  because  such  opinion  formed  no  part  of  the  record.®^ 

bbb.  Under  Later  Statutes. — But  in  the  second  section  of  the  act  of  February 
5th,  1867,  14  Stat.' at  Large  385.  amending  the  judiciary  act  of  1789,  that  clause, 
in  the  act  of  1789,  restricting  this  court  to  the  consideration  of  such  errors  as 


hanna  Boom  Co.  v.  West  Branch  Boom 
Co.,  110  U.  S.  57,  28  L.  Ed.  69.  As  was 
said  in  that  case:  "We  act  on  the  case 
as  made  to  the  court  below  when  the 
judgment  was  rendered,  and  cannot  in- 
corporate into  the  record  any  new  mat- 
ter which  appears  for  the  first  time  after 
the  judgment,  on  a  petition  for  rehearing. 
Such  a  petition  rs  no  part  of  the  record 
on  which  the  judgment  rests."  Simmer- 
man  V.  Nebraska,  116  U.  S.  54,  29  L.  Ed. 
535. 

Where  a  petition  for  a  writ  of  error 
from  the  supreme  court  of  the  United 
States  to  a  state  court  and  the  assign- 
ment of  error  therein,  set  up  federal  ques- 
tions, they  form  no  part  of  the  record  on 
which  to  determine  whether  a  federal 
question  was  decided  by  a  state  court. 
Corkran  Oil  Co.  v.  Arnaudet.  199  U.  S. 
182,  50  L.  Ed.  143,  citing  Leeper  7'.  Texas, 
139  U.  S.  462,  35  L.  Ed.  225;  Chapin  v. 
Fye,  179  U.  S-   127,  45   L.  Ed.   119. 

61.  Arguments  of  counsel. — Gibson  v. 
Cl-outeau,  8  Wall.  314,  19  L.  Ed.  317; 
Frmielee  v.  Lawrence,  11  Wall.  36,  20 
L.  Ed.  48;  Gross  v.  United  States  Mr.rt- 
gage  Co.,  108  U.  S.  477.  484,  27  L.  Ed.  795; 
United  States  v.  Taylor,  147  U.  S.  095, 
700,  37  L.  Ed.  335;  Sayward  v.  Denny, 
158  U.  S.  180,  183,  39  L.  Ed.  941,  reaf- 
firmed in  Texas,  etc.,  R.  Co.  v.  Gay,  167 
U.    S.    745,   42    L.    Ed.    1269. 

It  is  necessary  to  the  jurisdiction  of  this 
^  uirt,  under  the  25th  section  of  the  ju- 
'Mciary  act,  that  the  record  show,  either 
\<y  express  words  or  necessary  legal  in- 
lendment,  that  one  of  the  questif^ns  inen- 
tioned  in  that  act  was  before  the  state 
court,  and  was  decided  bv  it.  The  argu- 
ments of  counsel  cannot  be  looked  to  for 
this  purpose.  Gibson  i\  Chouteau,  8  Wall. 
:'14,   19  L.   Ed.  317. 

62.  Zadig  v.  Baldwin,  166  U.  8.  4  85, 
4  1  L-  Ed.  1087;  Harding  v.  Illinois,  196 
U.  S.  78,  49  L.  Ed.  394.  reaffirmed  in  Rob- 
iison  V.  Wingate,  198  U.  S.  580,  49  L. 
Ed.  1171;  Chicago,  etc.,  R.  Co.  v.  Newell. 
198    U.    S.    579,    49    L.    Ed.    1171;    Seale    v. 


Georgia,  201  U.  S.  642,  50  L.  Ed.  902. 

6C  Under  the  25th  section  of  the  ju- 
diciary act. — Williams  v.  Norris,  12 
Wheat.  117,  6  L.  Ed.  571;  Rector  v.  Ash- 
ley, 6  Wall.  142,  143,  18  L.  Ed.  733;  Gib- 
son V.  Chouteau,  8  Wall.  314,  19  L.  Ed.  317; 
Medberry  v.  Ohio,  24  How.  413,  16  L.  Ed. 
739;  Davis  v.  Packard,  6  Pet.  41,  47,  8  L. 
Ed.  312;  Cockcroft  v.  Vose,  14  Wall  5, 
20  L.  Ed.  875;  Kenebec  R.  Co.  v.  Port- 
land R.  Co.,  14  Wall.  23,  25,  30  L.  Ed. 
850. 

The  old  rule,  established  by  early  cases, 
restricted  our  inquiries  as  to  the  exist- 
ence and  decision  of  the  question  "to  the 
face  of  the  record."  Previous  to  the  act 
of  1867,  Rev.  Stat.,  §  709,  it  was  uniformly 
held,  except  as  to  the  state  of  Louisiana, 
where  a  peculiar  practice  prevails,  that 
we  would  not  look  into  the  opinions  of 
the  courts  to  ascertain  what  had  been 
decided.  Gibson  v.  Chouteau,  8  Wall. 
317,  19  L.  Ed.  317;  Rector  v.  Ashley,  C 
Wall.  142.  18  L.  Ed.  733;  Williams  v. 
Norris.  12  Wheat.  117,  6  L.  Ed.  571; 
Grand  Gulf,  etc.,  R.  Co.  v.  Marshall,  12 
How.  165,  13  L.  Ed.  938;  Cousin  v.  Laba- 
tut.  19  How.  202,  15  L.  Ed.  601. 

The  opinion  of  the  state  court  is  not 
made  a  part  of  the  record  so  that  it  might 
be  examined  on  error  from  the  United 
States  courts,  by  a  state  statute  requir- 
ing the  opinion  in  writing  to  be  filed 
among  the  papers  in  the  cause.  Williams 
T'.  Norris,  12  Wheat.  117,  6  L.  Ed.  571; 
Rector  v.  Ashley,  6  Wall.  142,  143,  18  L- 
Ed.    733. 

Where  the  record  before  the  court,  on 
a  case  from  a  state  court,  shows  a  decla- 
ration, pleas  to  it,  issue  on  them,  verdict 
on  those  issues  and  judgment  en  the  ver- 
dict, without  allusion  to  any  demurrer, 
the  court  will  not  refer  to  opinions  in 
books  of  printed  reports  of  the  state  court 
to  contradict  the  record  and  to  show  that 
there  was  a  demurrer  to  the  declaration, 
and  that  judgment  overruling  the  de- 
murrer was  given.  Edwards  v.  Elliott,  21 
Wall.    532,   22   L-    Ed.   487. 


APPEAL  AXD  ERROR. 


767 


appeared  on  the  face  of  the  record,  was  omitted,  and  the  court  held,  that  the 
opinion  of  the  state  court,  when  properly  certified  or  authenticated,  might  be 
examined  to  ascertain  what  was  decided,  in  the  case.*'-*  And  it  is  the  settled 
course  of  decision  now  that  this  court  may  examine  opinions  so  delivered  and 
recorded  to  ascertain  the  ground  of  the  judgment  of  the  state  court.**'^ 


64.  Under  later  statutes. — Murdock  v. 
Memphis,  20  Wall.  .590.  22  L.  Ed.  429; 
Gross  V.  United  States  Mortgage  Co.,  108 
U.   S.    477,    27    L.    Ed.    795. 

In  Murdock  v.  Memphis,  20  Wall.  590, 
633,  22  L.  Ed.  429,  it  was  said  that  in  de- 
termining whether  a  federal  question  was 
actually  raised  and  decided  in  the  state 
court,  "'this  court  has  been  inclined  to 
restrict  its  inquiries  too  much  by  this  ex- 
press limitation  of  the  inquiry  'to  the  face 
of  the  record."  What  was  the  record  of  a 
case  was  pretty  well  understood  as  a  com- 
mon-law phrase  at  the  time  that  statute 
(act  of  1789)  was  enacted.  But  the  stat- 
utes of  the  state  and  new  modes  of  pro- 
ceedings in  those  courts  have  changed 
and  confused  the  matter  very  much  since 
that  time."  After  observing  that  it  was 
in  reference  to  one  of  the  necessities  thus 
brought  about  that  this'  court  had  long 
since  determined  to  consider  as  part  of 
the  record  the  opinions  delivered  in  such 
cases  by  the  supreme  court  of  Louisiana, 
it  was  said:  "And  though  we  have  re- 
peatedly deckled  that  the  opinions  of 
other  state  courts  cannot  be  looked  into 
to  ascertain  what  was  decided,  we  see  no 
reason  why,  since  this  restriction  is  re- 
moved, we  should  not.  so  far  exam.ine 
those  opinions,  when  properly  authenti- 
cated, as  may  be  useful  in  determining 
that  question." 

65.  Kreiger  v.  Shelby  R.  Co.,  125  U.  S. 
39,  44.  31  L.  Ed.  675;  Dibble  v.  Belling- 
ham  Bay  Land  Co.,  163  U.  S.  63,  69,  41 
L.  Ed.  72;  Moore  v.  Mississippi,  21  Wall. 
636,  638,  22  L.  Ed.  653;  Philadelphia  Fire 
Ass'n  V.  New  York,  119  U.  S.  110,  116,  30 
L.  Ed.  342;  Dale  Tile  Mfg.  Co.  v.  Hyatt, 
125  U.  S.  46,  53.  31  L.  Ed.  683;  Columbia 
Water  Power  Co.  v.  Columbia  Street  R. 
Co.,  172  U.  S.  475,  43  L.  Ed.  521;  Wood 
Mowing,  etc.,  Co.  v.  Skinner,  139  U.  S. 
203,  35  L.  Ed.  193;  Say  ward  v.  Denny,  158 
U.  S.  180,  39  L.  Ed.  941;  Egan  v.  Hart, 
1«5  U.  S.  188,  41  L.  Ed.  680;  Castillo  v. 
McConnico,  168  U.  S.  674,  677,  42  L.  Ed. 
622;  Board  of  Liquidation  v.  Louisiana, 
179  U.  S.  622.  637,  45  L.  Ed.  347;  San 
Jose  Land,  etc.,  Co.  v.  San  Jose  Ranch 
Co.,  189  U.  S.  177,  47  L.  Ed.  765;  Mur- 
dock V.  Memphis.  20  Wall.  590,  633,  22 
L.  Ed.   429. 

"It  was  formerly  held  that,  even  in 
writs  of  error  to  a  state  court,  the  opinion 
of  the  court  below  was  not  a  part  of  the 
record  (Williams  v.  Norris,  12  Wheat.  117, 
119,  6  L.  Ed.  571;  Rector  v.  Ashley,  6  Wall. 
142,  18  L.  Ed.  733;  Gibson  v.  Chouteau,  8 
Wall.  314,  19  L.  Ed.  317);  but  the  incon- 
venience of  this  rule  became  so  great  that 
!!■  was  subsequently  changed'  (Murdock  7>. 


Memphis.  20  Wall.  590,  22  L.  Ed.  429); 
and,  finally,  the  eighth  rule  of  this  court 
was  so  modified,  in  1873,  as  to  require  a 
copy  of  the  opinion  to  be  incorporated  in 
the  transcript."  United  States  v.  Taylor, 
147   U.    S.    695,   700,   37   L.    Ed.   335. 

In  Murdock  v.  Memphis,  20  Wall.  .590, 
22  L.  Ed.  429,  the  subject  was  again  under 
consideration,  by  reason  of  the  omission 
from  the  act  of  1867  of  that  provision  in 
the  25th  section  of  the  act  of  1789  re- 
stricting this  court,  when  reviewing  the 
final  judgment  or  decree  of  the  highest 
court  of  a  state,  to  the  consideration  of 
such  errors  as  appeared  "on  the  face  of 
the  record."  It  was  there  said,  that,  in 
determining  whether  a  federal  question 
was  raised  and  decided  in  a  state  court: 
"This  court  has  been  inclined  to  restrict 
its  inquiries  too  much  by  this  express  lim- 
itation of  the  inquiry  'to  the  face  of  the 
record.'  "  "What  was  the  record  of  n 
case,"  the  court  observed,  speaking  by 
Mr.  Justice  Miller,  "was  pretty  well  un- 
derstood as  a  common-law  phrase  at  the 
time  that  statute  was  enacted.  But  the 
statutes  of  the  states,  and  new  modes  of 
proceedings  in  those  courts,  have  changed 
and  confused  the  matter  very  much  since 
that  time.  It  is  in  reference  to  one  of 
the  necessities  thus  brought  about  that 
this  court  long  since  determined  to  con- 
sider as  part  of  the  record  the  opinions  de- 
livered in  such  cases  by  the  supreme  court 
of  Louisiana.  Grand  Gulf,  etc.,  R.  C«. 
V.  Marshall.  12  How.  165,  13  L.  Ed.  938; 
Cousin  V.  Labatut,  19  How.  202,  15  L.  Ed. 
601.  And  though  we  have  repeatedly  de- 
cided that  the  opinions  of  other  state 
courts  cannot  be  looked  into  to  ascertain 
what  was  decided,  we  see  no  reason  why, 
since  this  restriction  is  removed,  we 
should  not  so  far  examine  those  opinions, 
when  properly  authenticated,  as  may  be 
useful  in  determining  that  question.  We 
have  been  in  the  habit  of  receiving  the 
certificate  of  the  court,  signed  by  its  chief 
justice  or  presiding  judge,  on  that  point, 
though  not  as  conclusive,  and  these  opin- 
ions are  quite  as  satisfactory,  and  may 
more  properly  be  treated  as  part  of  the 
record  than  such  certificate."  Gross  v. 
United  States  Mortgage  Co.,  108  U.  S. 
477.    485.    27    L.    Ed.    795. 

Supreme  court  of  Illinois. — "The  sub- 
ject was  again  considered  in  Gross  v. 
United  States  Mortgage  Co.,  108  U.  S. 
477,  486,  27  L-  Ed.  795,  which  came  from 
the  supreme  court  of  Illinois,  .'\fter  re- 
ferring to  what  was  said  in  Murdock  v. 
Memphis,  20  Wall.  590.  22  L.  Ed.  429,  this 
court  said:  'We  cannot,  therefore,  doubt 
that  in  the  existing  state  of  the  law  it  is 


APPEAL  AND  ERROR. 


In  the  language  of  Mr.  Justice  Harlan,  it  has  long  been  the  practice  of 
this  court,  in  cases  coming  from  a  state  court,  to  refer  to  its  opinion  made  part 
of  the  record  for  the  purpose  of  ascertaining  whether  any  federal  right,  specially 
set  up  or  claimed,  had  been  denied  to  the  plaintiff  in  error,  or  whether  the  judg- 
ment rested  upon  any  ground  of  local  law  sufScient  to  dispose  of  the  case  with- 
out reference  to  any  question  of  a  federal  character.  And  we  have  done  this 
without  stopping  to  inquire  whether  there  was  any  statute  of  the  state  requiring 
the  opinion  of  the  court  to  be  filed  in  the  case  as  part  of  the  record.^*^ 

Where  a  state  statute  requires  the  opinions  of  the  supreme  court  to  be 
spread  upon  the  records  of  the  court,  this  court,  upon  error  to  a  state  court,  may 
examine  such  opinion  in  connection  with  other  portions  of  the  record,  to  ascertain 
whether  any  federal  question  was  raised  and  decided.^"     In  other  words,  when- 


our  duty  to  examine  the  opinion  of  the 
supreme  court  of  Illinois,  in  connection 
with  other  portions  of  the  record,  for  the 
purpose  of  ascertaining  whether  this  writ 
of  error  properly  raises  any  question  de- 
termined by  the  state  court  adversely  to 
a  right,  title,  or  immunity  under  the  con- 
stitution or  laws  of  the  United  States 
and  especially  set  up  and  claimed  by  the 
party  bringing  the  writ.'  It  is  true  that 
in  that  case  the  court  stated  that  any 
difficulty  upon  the  subject  was  removed 
by  the  statutes  of  Illinois  regulating  that 
subject;  but  the  decision  was  not  plac-d 
upon  that  ground."  Loeb  r.  Columbia 
Township  Trustees,  179  U.  S.  472.  484, 
45    L.    Ed.    280. 

66.  Loeb  i'.  Columbia  Township  Trus- 
tees, 179  U.  S.  472.  484.  485,  45  L.  Ed. 
280. 

67.  Gross  v.  United  States  Mortgage 
Co.,  108  U.  S.  477,  27  L.   Ed.  795. 

"But  if  we  look  to  the  opinions,  which, 
under  the  laws  of  Iowa,  must  be  filed  be- 
fore a  judgment  is  rendered,  at  which, 
when  such  is  the  law.  may  certainly  be 
looked  at  to  aid  in  construing  doubtful  ex- 
pressions in  a  decree,  it  is  shown  unmis- 
takably that  the  decision  was  put  on  that 
ground  alone.  Gross  v.  United  States 
Mortgage  Co.,  108  U.  S.  477.  486,  27  L.  Ed. 
795."  Adams  County  v.  Burlington,  etc., 
R.    Co.,   112  U.   S.   123,   129,  28  L.    Ed.   'w8. 

In  California  the  opinion  of  the  court 
forms  part  of  the  record,  and  therelore 
may  be  considered  by  this  court  upon  a 
"writ  of  error  to  the  supreme  court  of  that 
state.  Martin  z'.  Thompson,  120  U.  S. 
376,  30  L.   Ed.   679. 

In  Illinois  the  provision  of  the  Revised 
Statutes,  1874,  p.  329.  c.  37,  §  16,  directing 
that  the  justices  of  the  supreme  court  of 
the  state  shall  deliver  and  file  written 
opinions,  and  that  "such  opinions  shall 
also  be  spread  at  large  upon  the  records 
of  the  court,"  is  effective  to  permit  an 
examination  by  the  United  States  supreme 
court  into  the  opinion  of  the  state  court 
brought  up  on  error.  Gross  z'.  United 
States  Mortgage  Co.,  108  U.  S.  477,  27 
L.    Ed.    795. 

"We  cannot,  therefore,  doubt  that  in  the 
existing  state  of  the  law  it  is  our  duty  to 
examine  the  opinion  of  the  supreme  court 


of  Illinois,  in  connection  with  other  por- 
tions of  the  record,  for  the  purpose  of 
ascertaining  whether  this  writ  of  error 
properly  raises  any  question  determined 
by  the  state  court  adversely  to  a  right, 
title,  or  immunit3^  under  the  constitution 
or  laws  of  the  United  States  and  specially 
set  up  and  claimed  by  the  party  bringing 
the  writ.  Any  difficulty  existing  upon  this 
subject -is  removed  by  that  provision  of 
the  Revised  Statutes  of  Illinois  which  re- 
quires, not  only  that  the  justices  of  the 
supreme  court  of  the  state  shall  deliver 
and  file  written  opinions  in  cases  sub- 
mitted to  it,  but  that  'such  opinions  shall 
also  be  spread  at  large  upon  the  records 
of  the  court.'  Rev.  Stat.  111.,  1874,  p.  32^), 
ch.  37,  §  16.  This  statutory  provision 
would  seem  to  bring  the  case  within  the 
rule  which  permits  an  examination  of  the 
opinions  of  the  supreme  court  of  Lou- 
isiana to  ascertain  whether  the  case  was 
determined  upon  any  ground  necessarily 
invohing  a  federal  question  within  the 
reviewing  power  of  this  court."  Gross 
V.  United  States  Mortgage  Co.,  108  U.  S. 
477,    486,    27    L.    Ed.    795. 

The  statutes  of  Kentucky  require  writ- 
ten opinions  to  be  delivered  by  the  court 
of  appeals  in  all  cases,  and  to  be  recorded 
by  its  clerk.  Code  of  Civil  Procedure,  § 
765;  Gen.  Stat.  c.  28.  art.  2,  §  10;  c.  IS, 
art.  1.  §  1.  By  the  settled  course  of  de- 
cision under  the  existing  judiciary  acts 
of  the  United  States,  this  court  may  ex- 
amine opinions  so  delivered  and  recorded, 
to  ascertain  the  ground  of  the  judgment 
of  the  state  court.  Murdock  v.  Memphis, 
20  Wall.  590,  6.33.  22  L.  Ed.  429;  Mc- 
Manus  z/.  O'Sullivan.  91  U.  S.  578,  23  L. 
Ed.  390;  Gross  v.  United  States  Mort- 
gage Co.,  108  U.  S.  477,  481,  487,  27  L. 
Ed.  795;  Adams  County  z'.  Burlington, 
etc.,  R.  Co.,  112  U.  S.  123.  129.  28  L.  Ed. 
678;  Detroit  City  R.  Co.  v.  Guthard,  114 
U.  S.  133.  137,  29  L.  Ed.  118;  Jacks  n. 
Helena,  115  U.  S.  288,  29  L.  Ed.  392;  Phil- 
adelphia Fire  Ass'n  v.  New  York,  119 
U.  S.  110,  30  L.  Ed.  342.  The  decision  m 
Fisher  v.  Cockerell,  5  Pet.  248,  255.  8  L. 
Ed.  114,  cited  by  one  of  the  defendants  in 
error,  in  which,  on  a  writ  of  error  to  the 
court  of  appeals  of  Kentucky,  this  court 
held  that   tlic   opinion   of  that  court  coald 


APPEAL  AND  ERROR. 


769 


ever  a  case  comes  from  the  highest  court  of  a  state  for  review,  and  by  statute 
or  settled  practice  in  that  state  the  opinion  of  the  court  is  a  part  of  the  record, 
we  are  authorized  to  examine  such  opinion  for  the  purpose  of  ascertaining  the 
grounds  of  the  judgment/'* 

ccc.  Reviezv  of  Cases  from  Louisiana. — It  was  uniformly  held,  even  under  the 
25th  section,  that  in  cases  coming  to  this  court  from  the  supreme  court  of  Louisi- 
ana, the  opinion  of  the  court  below,  as  set  out  in  the  record,  may  be  referred  to, 
if  necessary,  to  determine  whether  the  judgment  is  one  we  have  authority  to 
review.^^ 


not  be  taken  into  consideration,  was  de- 
cided under  the  judiciary  act  of  1789, 
which  contained  a  provision,  omitted  in 
the  later  acts,  expressly  requiring  the 
error  assigned  as  a  ground  of  reversal  to 
appear  on  the  face  of  the  record.  Acts 
of  September  25,  1789,  c.  20.  §  25,  1  Stat. 
86;  February  5,  1867.  c.  28,  §  2,  14  Stat. 
.'586;  Rev.  Stat..  §  709.  Kreiger  v.  Shelby 
R.  Co.,  125  U.  S.  39,  44,  31   L.  Ed.  675. 

68.  New  Orleans,  etc.,  Co.  v.  Louisiana 
Sugar  Refin.  Co.,  ]25  U.  S.  18,  31  L.  Ed. 
007;  Kreiger  v.  Shelby  R.  Co..  125  U.  S. 
,39,  31  L.  Ed.  675;  Egan  v.  Hart,  165  U.  S. 
188,  41  L.  Ed.  680;  Thompson  v.  Maxwell 
Land  Grant  Co.,  168  U.  S.  451.  456,  42 
L.  Ed.  539,  reaffirmed  in  Bent  v.  Miranda, 
168  U.   S.  471,  42  L.    Ed.  547. 

69.  Review  of  cases  from  Louisiana. — 
Armstrong  z'.  The  Treasurer.  16  Pet.  281, 
285,  10  L.  Ed.  965;  Almonester  v.  Ken- 
ton, 9  How.  1,  13  L.  Ed.  21;  Grand  Gulf, 
etc.,  R.  Co.  V.  Marshall,  12  How.  165,  13 
L.  Ed.  938;  Cousin  v.  Labatut,  19  How. 
202,  207,  15  L.  Ed.  601;  Murdock  v.  Mem- 
phis, 20  Wall.  590,  22  L.  Ed.  429;  Cross- 
ley  V.  New  Orleans,  108  U.  S.  105.  27  L. 
Ed.  667;  Weatherly  v.  Bowie.  131  U.  S. 
appx.   ccxv,    25   L.    Ed.    6©6. 

In  Louisiana  the  opinion  of  the  court 
is  a  part  of  the  record,  and  in  cases  com- 
ing to  the  United  States  supreme  court 
from  Louisiana  the  opinion  of  the  court 
below,  as  set  out  in  the  record,  may  be 
referred  to,  if  necessary,  to  determine 
whether  the  judgment  is  one  which  the 
federal  court  has  authority  to  review. 
This  was  so  even  under  act  of  1789, 
and  a  fortiori  under  the  more  liberal  act 
of  1867.  Crossley  z:  New  Orleans,  108 
U.  S.  105.  27  L.  Ed.  667;  Grand  Gulf,  etc., 
R.  Co.  V.  Marshall.  12  How.  165,  13  L. 
Ed.  938;  Cousin  v.  Labatut.  19  How.  202, 
15  L.  Ed.  601;  Armstrong  v.  The  Treas- 
urer, 16  Pet.  281,  10  L.  Ed.  965;  Almones- 
ter v.  Kenton,  9  How.  1,  13  L.  Ed.  21; 
Egan  V.  Hart,  165  U.  S.  188.  41  L.  Ed. 
680. 

According  to  the  law  and  practice  of 
Louisiana,  the  supreme  court  of  that  state, 
in  cases  brought  before  it  by  appeal  from 
inferior  courts,  determines  the  matter  in 
controversy,  as  presented  by  the  record, 
both  as  to  fact  and  law,  without  regard 
to  the  particular  rulings  of  the  courts  be- 
low, and  its  opinion,  showing  the  grounds 
of   its    judgment,    constitutes    part    of    the 

1  U  S  Enc— 49 


record  to  be  reviewed  in  this  court,  upon 
writ  of  error,  when  the  question  for  de- 
termination is  whether  the  supreme  cotort 
of  the  state  decided  a  federal  questi«Mi, 
necessary  to  the  decision  of  the  case, 
without  respect  to  the  rulings  of  the  in- 
ferior state  court.  Crescent  City  Live- 
stock Co.  r.  Butchers'  Union  Slaughter- 
House  Co.,  120  U.  S.  141,  30  L.  Ed.  614, 
citing  Parks  z,'.  Turner,  12  How.  39,  43, 
13  L.  Ed.  883;  Cousin  v.  Labatut,  19  How. 
202,  15  L.  Ed.  601;  Grand  Gulf,  etc.,  R. 
Co.  V.  Marshall,  12  How.  165,  13  L.  Ed. 
938;  Murdock  v.  Memphis,  20  Wall.  590, 
22  L.  Ed.  429;  Crossley  v.  New  Orleans, 
108  U.  S.  105,  27  L.  Ed.  667;  Caperton  v. 
Bowyer,  14  Wall.  216,  20  L.   Ed.  882. 

"The  grounds  upon  which  the  supreme 
court  of  Louisiana  gave  judgment  for  the 
defendants  appear  by  its  opinion,  which, 
under  the  practice  of  that  state,  is  strictly 
part  of  the  record,  and  has  always  been 
so  considered  by  this  court  on  writs  of 
error,  as  well  under  the  judiciary  act  of 
1789,  which  provided  that  "no  other  error 
shall  be  assigned  or  regarded  as  a  ground 
of  reversal  than  such  as  appear  on  the 
face  of  the  record,"  as  under  the  later 
acts,  in  which  that  provision  is  omitted. 
Acts  of  September  24,  1789,  c.  20,  §  25, 
1  Stat.  86;  February  5,  1867,  c.  28,  §  2,  14 
Stat.  386;  Rev.  Stat.  §  709;  .Mmonester  v. 
Kenton,  9  How.  1.  9,  13  L.  Ed.  21;  Grand 
Gulf,  etc.  R.  V.  Marshall.  12  How.  165, 
13  L.  Ed.  938;  Cousin  v.  Labatut,  19  How. 
202,  15  L.  Ed.  601;  Delmas  v.  Merchants' 
Ins.  Co.,  14  Well.  661,  663,  667,  20  L.  Ed. 
757;  Crossley  v.  New  Orleans,  108  U.  S. 
105,  27  L.  Ed.  667;  Crescent  City  Live- 
stock Co.  V.  Butchers'  Union  Slaughter- 
House  Co.,  120  U.  S.  141,  146,  30  L-  Ed. 
614."  New  Orleans,  etc.,  Co.  v.  Louisiana 
Sugar  Refin.  Co.,  125  U.  S.  18,  27,  31  L. 
Ed.  607. 

It  is  likewise  settled  that  on  error  to 
the  suprerr»e  court  of  Louisiana,  the  opin- 
ion of  that  court  is  to  be  treated  as  part 
of  the  record,  and  that  it  may  be  examined 
in  order  to  ascertain  the  question  pre- 
sented, and  this  court  may  for  the  pur- 
pose, not  of  deciding  the  facts,  but  by 
way  of  throwing  light  on  the  findings, 
look  into  the  entire  record.  Crossley  v. 
New  Orleans.  108  U.  S.  105,  27  L.  E<L 
667;  Gross  v.  United  States  Mortgage  Co., 
108  U.  S.  477,  27  L.  Ed.  795;  Egan  V. 
Hart,  165  U.  S.  188,  189,  41  L.  Ed.  680. 


770  APPEAL  AND  ERROR. 

hh.  Assignment  of  Errors. — Where  the  record  fails  to  show  that  a  federal 
question  was  raised,  the  assignment  of  errors  cannot  be  reviewed  for  that  put  ■ 
pose.  It  makes  no  part  of  the  record  proper,  to  which  alone  we  can  resort  l  > 
ascertain  the  subject  matter  of  the  litigationJ^  A  petition  for  a  writ  of  erro; 
from  the  supreme  court  to  the  state  court  and  the  assignments  of  error  therein, 
form  no  part  of  the  record  on  which  it  is  to  be  ascertained  whether  the  state 
court  de-cided  a  federal  questional 

ii.  Instriiciions. — Where  the  charge  of  the  court  is  not  before  us,  nor  is  any 
exception  taken  to  any  part  of  it,  the  verdict  and  judgment  must  be  held  to  have 
been  rendered  on  the  facts  according  to  lawJ^ 

jj.  Certificate  of  Chief  Judge  of  State  Court. — The  certificate  of  the  chief 
justice  of  the  slate  court  is  not  properly  a  part  of  the  recordJ^ 

kk.  Certificate  or  Statement  of  Clerk  or  Judge. — A  writ  of  error,  under  the 
25th  section  of  the  judiciary  act,  will  not  lie  to  a  state  court  in  a  case  in  which 
the  proceedings  of  the  court  which  the  writ  of  error  seeks  to  revise,  appear  from 
a  certificate  by  the  clerk  of  the  state  court."**  Upon  a  writ  of  error  to  a  state 
court,  a  certificate  of  the  clerk  of  the  state  court,  that  certain  documents  were 
read  in  evidence,  and  among  them  a  patent  for  land  under  which  the  plaintiff 
in  error  claimed,  issued  by  the  governor  of  the  state,  cannot  be  considered  a 
part  of  the  record.  Because  the  unauthorized  certificate  of  the  clerk  that  any 
document  was  read,  or  any  evidence  given  to  the  jury,  cannot  make  that  docu- 
ment or  that  evidence  a  part  of  the  record  so  as  to  bring  it  to  the  cognizance 
of  this  court.'^^  The  certificate  of  the  clerk  of  the  court,  that  a  motion  was  made 
for  a  new  trial,  and  reasons  and  certain  papers  filed,  on  which  the  motion  was 
founded,  which  are  on  the  files  of  the  court,  is  not  a  part  of  the  record;  nor 
do  the  reasons  on  the  files  of  the  court  become  a  part  of  the  record,  by  such 
certificate.'^' 

Report  of  Judge  of  State  Court. — The  report  of  the  judge  who  tried  the 
cause  in  the  state  court,  which  contains  a  statement  of  the  facts,  is  not  to  be 
considered  as  a  part  of  the  record.  It  is  not  like  a  special  verdict  or  a  state- 
ment of  facts  agreed  of  record,  upon  which  the  court  is  to  pronounce  its  judg- 
ment. The  judgment  is  rendered  upon  a  general  verdict,  and  the  report  is  mere 
matter  in  pais,  to  regulate  the  discretion  of  the  court  as  to  the  propriety  of  grant- 
'  ing  relief,  or  sustaining  a  motion  for  a  new  trial."" 

11.  Supplemental  Transcript. — A  supplemental  transcript  cannot  be  considered, 
when  it  does  not  appear  how  it  came  to  be  filed  and  no  motion  was  made  for 
leave  to  file  it."^^ 

70.  Assignment  of  errors. — Medberry  v.  10  Pet.  368,  9  L.  Ed.  458;  Fisher  v.  Cocke- 
Ohio,  24   How.   413.   16   L.   Ed.   739;    Hard-        rell,  5  Pet.  248,  8  L.   Ed.  114. 

ing  V.   Illinois.   196  U.   S.  78,  84,  49   L.   Ed.  75.  Fisher  v.  Crockerell.  5  Pet.  248,  8  L. 

394;  Corkran  Oil  Co.  v.  Arnaudet,  199  U.  Ed.    114,   approved   in    Reed   v.    Marsh,   13 

S.    182,    193,    50     L.     Ed.     143;     Leeper    v.  Pet.    153,   155,   10    L.    Ed.   103. 

Texas,    139    U.    S.    462,    35    L.     Ed.    225;  76.     Reed   v.    Marsh,   13    Pet.    153,   10   L. 

Chapin   v.    Eye,   179    U.    S.    127,   45    L.    Ed.  Ed.   103. 

119.  77.     Inglee    v.    Coolidge,    2    Wheat.    .363, 

71.  French  v.  Taylor,  199  U.  S.  274,  50  368,  4  L.  Ed.  261;  Suydan  v.  Williamson, 
L.  Ed.  189,  affirmed  in  South  Carolina  v.  20  How.  427,  439,  15  L.  Ed.  978;  Pome- 
Jennings,  204  U.  S.  667,  668,  51  L.  Ed.  roy  v.  Bank  of  Indiana,  1  Wall.  592,  603, 
671.                      _  17   L.    Ed.   638. 

72.  Instructions. — Hamburg,  etc..  Steam-  78.  Supplemental  transcript. — On  a  writ 
ship  Co.  V.  Lennan.  194  U.  S.  628,  48  L.  of  error  from  the  supreme  court  of  a 
Ed.  1157;  Hamburg-American  Steamship  state,  a  supplemental  transcript  was  filed, 
Co.  V.  Grube,  196  U.  S.  407,  413,  49  L.  Ed.  after  argument  and  decision  of  the  case 
^9.  in   the   supreme   court   of   the   state,   there 

73-     Certificate   of   chief   judge    of   state  was   nothing  to   show  how  it  came  to  be 

court. — Home  for  Incurables  v.  New  York  filed,  no  motion  had  been  made  to  file  it; 

City,  187  U.    S.  J55,  47  L-  Ed.  117.  no    certiorari    issued    to    bring    it    up;    no 

74.    Certificate  or  statement  of  clerk  or  order  allowing  it   to  be   filed.      Held,   that 

judge. — Reed    v.    Marsh.    13    Pet.    153,    10  it   was    a   mere   superfluity   on   the    record 

Lr.   Ed.   103,  following  Crowell  v.   Randell,  and    hence    cannot    be    considered   by    the 


APPEAL  AXD  ERROR.  77\ 

(3)  Exammation  of  Record. — This  court,  upon  a  writ  of  error  to  a  state 
court,  receives  the  transcript  of  the  record  in  the  cause  as  it  is  certified  here  by 
Ihat  court,  in  answer  to  the  precept  of  the  writ  of  error  allowed  and  issued  to 
that  end.  When  brought  here  it  is  open  to  examination  only  for  the  purpose 
of  deciding  whether^  it  contains  a  federal  question  within  our  jurisdiction,  and 
if  so,  whether  there  is  error  in  the  decision  of  that  question  by  the  supreme  court 
of  the  state. _  Accordingly,  the  question  whether  on  the  death  of  the  plaintiff  in 
error  after  judgment  the  present  plaintiff  in  error  ought  to  have  been  substi- 
tuted for  the  deceased  plaintiff'  in  the  judgment  to  be  reviewed,  is  a  question 
of  practice  under  the  laws  of  the  state,  which  the  state  court  has  exclusive  right 
to  determine.     It  is  not  open  to  any  inquiry  on  our  part  here.'^ 

(4)  Impcachmevvt  or  C oniradiction  of  Record. — Upon  a  writ  of  error  to  re- 
view the  decision  of  the  lower  court  in  a  criminal  case,  the  objection  that  the 
defendants  were  not  actually  present  in  the  supreme  court  of  the  stale  at  the 
time  sentence  was  pronounced  cannot  be  shown,  when,  on  the  face  of  the  record, 
it  shows  that  they  were  present.  If  this  is  not  in  accordance  with  the  fact,  the 
record  must  be  corrected  below  and  not  here.^*' 

(5)  Authentication  of  Record. — On  a  writ  of  error  to  a  state  court,  the  record 
may  be  authenticated  by  the  seal  of  the  court  and  the  certificate  or  signature 
of  the  clerk,  without  that  of  the  judge. *^ 

(6)  Certiorari.— \n  a  writ  of  error  to  a  state  court,  if  parts  of  the  record  be- 
low are  omitted  in  the  transcript,  we  may,  by  certiorari,  have  the  omission  sup- 
plied, "but  we  cannot  here  correct  errors  which  actually  exist  in  the  record  as  it 
stands  in  the  state  court.  For  that  purpose,  application  must  be  made  there,  and, 
if  necessary,  upon  sufficient  showing,  this  court  may  remand  the  case  in  order 
that  tlie  court  may  proceed. "^^ 

(7)  Amendment. — We  can  only  re-examine  the  final  judgment  in  the  suit, 
and  for  that  purpose  must  look  alone  to  the  record  of  that  judgment  as  it  is 
sent  to  us.*-^ 

u.  Scope  of  Re7'iezv — (1)  In  Genera!. — The  language  of  the  second  section 
of  the  act  of  February  5th,  1867  (14  Stat,  at  Large  385).  "to  amend"  the  ju- 
diciary act  of  1789,  that  "the  judr^nent  may  be  re-examined  and  reversed  or 
affirmed  on  a  writ  of  error  *  *  *  j^^  ^}-,g  same  manner  and  under  the  same 
regulations,  and  the  writ  shall  have  the  same  effect  as  if  the  judgment  or  decree 
complained  of  had  been  rendered  or  passed  in  a  court  of  the  United  States," 
does  not  require  the  examination  of  any  other  than  questions  of  federal  law. 
The  phrase  above  quoted  has  reference  to  the  manner  of  issuing  the  writ,  its 
return  with  the  record  of  the  case,  its  effect  in  removing  the  case  to  this  court, 
and  the  general  rules  of  practice  which  govern  the  progress  of  such  cases  to 
final  judgments,  and  is  not  intended  to  prescribe  the  considerations  which  should 
govern  this  court  in  forming  that  judgment.^"*     Upon  a  writ  of  error  to  a  state 

■court.     Telluride,  etc..  Co.  v.  Rio  Grande,  Cohens    v.    Virginia,    6    Wheat.    264.    5    L. 

•etc..  R.  Co.,  175  U.  S.  639.  44  L.  Ed.  30.5,  re-  Ed.    2.57. 

affirmed  in  Dakota,  etc.,  R.  Co.  v.  Crouch,  82.   Certiorari.^Goodenough  Horse  Shoe 

203    U.    S.    582,    51    L.    Ed.    327,    following  Co.  v.  Rhode  Island  Horse   Shoe   Co..  154 

Goodenough    Horse    Shoe    Co.    v.    Rhode  U.   S.,  appx..  635.  24  L.  Ed.  368. 

Island   Horse   Shoe   Co.,   154  U.   S.,   appx.,  83.      Amendment. — Goodenough      Horse 

«35.  24  L.   Ed.  368.  Shoe  Co.  v.  Rhode  Island  Horse  Shoe  Co., 

79.  Examination  of  record.— Renaud  v.  154  U.  S..  appx.,  635,  636,  24  L.  Ed.  36S. 
Abbott,  116  U.  S.  277,  29  L.  Ed.  629.  84.    Scope  of  review  in  general. — Mur- 

80.  Impeachment  or  contradiction  of  dock  z'.  Memphis.  20  Wall.  590,  22  L.  Ed. 
record.— Spies  z\  Illinois.  123  U.  S.  131,  31  429;  .A.llen  v.  McVeigh,  107  U.  S.  433,  27 
L.  Ed.  80.  L.  Ed.  572;  Hannibal,  etc.,  R.  Co.  v.     Mis- 

81.  Authentication  of  record. — Wor-  souri  River  Packet  Co.,  125  U.  S.  260, 
cester  r.  Georgia,  6  Pet.  515,  8  L.  Ed.  272,  31  L.  Ed.  731;  Baldwin  z:  Maryland, 
483,  492,  citing  Martin  v.  Hunter,  1  Wheat.  179  U.  S.  220,  45  L.  Ed.  160;  Traer  v. 
••-i04.  4  L.  Ed.  97:  Buel  v.  Van  Ness,  8  Clews,  115  U.  S.  528,  542,  29  L.  Ed.  467; 
Wheat.  312,  5  L.  Ed.  (^24;  McCulloch  v.  Southwestern  R.  Co.  v.  Wright,  116  U.  S. 
Maryland,    4    Wheat.    316,    4    L.    Ed.    579;  231,  236,  29  L-  Ed.  626;  Bonaparte  v.  Tax 


'72 


APPEAL  AND  ERROR. 


court  on  the  ground  that  a  state  statute  violates  the  federal  constitution,  the 
authority  of  this  court  extends  no  farther  than  to  ascertain  whether  the  state 
statute  violates  the  constitution  of  the  United  States ;  the  question  whether  it 
violates  the  state  constitution  is  not  before  this  court.*^     The  judgment  of  the 


Court,  104  U.  S.  592,  595,  26  L.  Ed.  845; 
Wiggins  Ferry  Co.  v.  East  St.  Louis,  107 
U.  S.  365,  378,  27  L.  Ed.  419.  See  opinion 
of  Mr.  Justice  McKann,  in  Knights  of 
Pythias  v.  Meyer,  198  U.  S.  508,  519,  49 
L.   Ed.   1146. 

The  language  of  the  second  section  of 
the  act  of  Feb.  5th,  1867  (14  Stat,  at 
Large  385),  "to  amend"  the  judiciary  act 
of  1789,  in  making  the  jurisdiction  of 
this  court  dependent  on  the  decision  of 
certain  questions  by  the  state  c  urt 
stgainst  the  right  set  up  under  federal 
law  or  authority,  conveys  the  strongest 
implication  that  these  questions  alone  are 
to  be  considered  when  the  case  is  brought 
here  for  revision.  This  view  is  confirmed 
by  the  course  of  decisions  in  this  court 
for  eighty  years,  by  the  policy  of  con- 
gress, as  shown  in  numerous  statutes, 
conferring  the  jurisdiction  of  this  class 
of  cases  in  courts  of  original  jurisdiction, 
viz,  the  district  and  circuit  courts,  whether 
originally  or  by  removal  from  state 
courts,  when  it  intends  the  whole  case 
t©  be  tried,  and  by  the  manifest  purpose 
which  caused  the  passage  of  the  law. 
Murdock  v.  Memphis,  20  Wall.  590,  22  L. 
Ed.   429. 

"It  requires  but  slight  examination  of 
the  reports  of  the  decisions  or  familiarity 
with  the  practice  of  this  court,  to  know 
that  it  does  not  examine  into  or  decide 
all  the  errors,  or  matter  assigned  for 
error,  of  the  most  of  the  cases  before 
them.  Many  of  these  are  found  to  be 
immaterial,  the  case  being  reversed  or 
afifirmed  on  some  important  point  which 
requires  of  itself  a  judgment  without  re- 
gard to  other  matters."  Murdock  v.  Mem- 
phis, 20  Wall.    5&0,   623,   22   L.    Ed.   429. 

Congress  did  not  intend,  by  omitting 
in  this  statute  the  restrictive  clause  at 
the  close  of  the  twenty-fifth  section  of  the 
act  of  1789  (limiting  the  supreme  court 
to  the  consideration  of  federal  questions 
in  cases  so  removed)  to  enact  affirma- 
tively that  the  court  should  consider  all 
other  questions  involved  in  the  case  that 
might  be  necessary  to  a  final  judgment 
or  decree.  Murdock  v.  Memphis,  20  Wall. 
590,  22  L.   Ed.   429. 

Where  upon  error  to  a  state  court,  it 
appears  that  two  defenses  are  interposed 
in  the  state  court,  either  of  which,  if  sus- 
tained, will  bar  the  action,  but  the  sec- 
ond involves  a  federal  question,  and  the 
other  docs  not,  and  the  court  in  its  de- 
cree sustains  them  both,  and  the  finding 
is  broad  enough  to  maintain  the  decree 
even  though  the  federal  questions  involved 
in  the  other  defense  was  decided  wrong, 
this  court  will  affirm  the  decree,  without 
considering    that    question    or    expressing 


any  opinion  upon  it.  Jenkins  v.  Lowen- 
thai,  110  U.  S.  222,  28  L.  Ed.  129.  citin  ; 
Murdock  v.  Memphis.  20  Wall.  590,  22  L. 
Ed.    429. 

The  defenses  of  the  act  of  limitation* 
and  bona  fide  purchaser  raised  in  the  state 
court,  come  within  the  restriction  found 
in  the  concluding  part  of  the  25th  sec- 
tion, which  declares  "  'that  no  other  er- 
ror shall  be  assigned  or  regarded  by  this 
court  as  a  ground  of  reversal,  tlian  such 
as  immediately  respects  the  before-men- 
tioned questions  of  validity  or  construc- 
tion of  the  constitution,  treaties,  statutes 
commissions,  or  authorities,  in  dispute.' 
Mr.  Justice  Story  comments  on  the  fore- 
going restraining  clause,  in  the  case  if 
Martin  v.  Hunter,  l  Wheat.  304,  358,  4  L. 
Ed.  97,  which  construction  we  need  nr,t 
repeat."  Lytle  v.  Arkansas.  22  How.  193,. 
204,   16  L.   Ed.  306. 

Where  the  judginent  of  a  state  court 
upon  the  federal  question  was  right,  the 
judgment  must  be  affirmed.  "We  can 
only  look  beyond  the  federal  question 
when  that  has  been  decided  erroneously^ 
and  then  only  to  see  whether  there  are 
any  other  matters  or  issues  adjudged  by 
the  state  court  sufficiently  broad  to  main- 
tJiin  the  judgment,  notwithstanding  the  er- 
ror in  the  decision  of  the  federal  question. 
Murdock  z\  Memphis,  20  Wall.  590,  22  L. 
Ed.  429."  McLaughlin  v.  Fowler,  154  U. 
S.,   appx.,   663,   26   L.    Ed.   176. 

In  all  cases  of  a  motion  to  dismiss  the 
writ  of  error  for  want  of  jurisdiction,  the 
court  must  necessarily  examine  the  record 
to  find  the  questions  decided  by  the  state 
court.  But  in  many  cases  the  question  of 
jurisdiction  is  so  involved  with  the  other 
questions  decided  in  the  case,  that  this 
court  cannot  eliminate  it  without  the  ex- 
amination of  a  voluminous  record,  and 
passing  on  the  whole  merits  of  the  case. 
In  such  instances,  the  court  will  reserve 
the  question  of  jurisdiction  till  the  case 
is  heard  on  the  final  argument  on  the 
merits.  Semple  v.  Hager,  4  Wall.  431,  433, 
18  L.  Ed.  402. 

If  a  federal  question  raised  was  not  de- 
cided by  the  court  below,  this  court  has 
no  jurisdiction.  This  court  can  only  look 
beyond  the  federal  question  when  that 
has  been  decided  erroneously,  and  then 
only  to  see  whether  there  are  any  other 
matters  or  issues  adjudged  by  the  state 
court  sufficiently  broad  to  maintain  the 
judgment,  notwithstanding  the  error  in 
the  decision  of  the  federal  question.  Mc- 
Laughlin V.  Fowler,  154  U.  S.,  appx.,  663, 
26  L.  Ed.  176.  citing  Murdock  z:  Mem- 
phis,   20    Wall.    590.    591.    22    L.    Ed.   429. 

85.  Watson  v.  Mercer,  8  Pet.  88,  8  L. 
Ed.    876;    Barbier    v.    Connolly,    113    U.    S- 


APPEAL  AXD  ERROR. 


773 


supreme  court  of  the  United  States,  in  a  case  brouglit  by  writ  of  error  to  a  court 
of  a  state,  must  be  confined  to  the  error  alleged  in  the  decision  of  the  state  court 
upon  the  construction  of  the  act  of  congress  before  the  state  court. s*5 

Review  of  Grounds  of  Decision. — It  is  also  a  rule  that  upon  error  to  a  state 
court,  the  question  before  this  court  is  whether  the  judgment  was  correct;  not 
the  ground  on  which  that  judgment  was  given. ^" 

Qualifications  of  General  Rule. — But  where,  on  error  to  the  supreme  court 
of  a  state,  the  record  shows  a  decision  of  the  state  court  on  a  federal  question 
properly  presented,  and  of  which  this  court  could  take  jurisdiction,  and  shows 
also  the  decision  of  a  local  question,  the  writ  of  error  will  not  be  dismissed  on 
motion  in  advance  of  the  hearing.  The  parties  are  entitled  to  be  heard  on  the 
soundness  of  the  decision  below  on  the  federal  question,  on  the  sufficiency  of 
that  question  to  control  the  judgment  in  the  whole  case,  and  on  the  sufficiency 
of  any  other  point  decided  to  affirm  the  judgment  even  if  the  federal  question 
was  erroneously  decided. ^^ 

Distinguished  from  Direct  Appeals  to  Circuit  Court. — When  a  case  prop- 
erly is  taken  to  the  supreme  court  from  the  circuit  court  upon  constitutional 
grounds,  the  whole  case  is  open.  But  it  is  otherwise  when  a  case  comes  from  a 
state  court. ^'^ 

(2)  Irregularities  and  Mere  Errors. — Irregularities  and  mere  errors  in  tlie 
proceedings  can  only  be  corrected  in  the  state  courts.  Our  authority  does  not 
extend  beyond  an  examination  of  the  power  of  the  courts  below  to  proceed 
at  all.^^o 

(3)  Discretionary  Matters. — In  General. — There  are  errors  also  which  may 
he  sufficiently  manifest  of  which  the  appellate  court  has  no  jurisdiction,  as  in 
regard  to  a  motion  for  a  new  trial,  or  to  quash  an  indictment,  or  for  a  continu- 
ance, or  amendment  of  pleadings,  or  some  other  matter  which,  however  im- 
portant to  the  merits  of  the  case,  is  within  the  exclusive  discretion  of  the  in- 
ferior court. ^^ 


27,  28  L.   Ed.  923;  Ashley  v.   Ryan,  153  U. 
S.  436.   440.   38   L.   Ed.   773. 

86.  Pollard  z:  Kibhe,  14  Pet.  3.53,  10  L. 
Ed.  490;  Matthews  r.  Zane,  7  Wheat.  164, 
5   L.    Ed.   42.5. 

87.  McClung  V.  Silliman.  6  Wheat.  598, 
5  L.  Ed.  340;  Davis  v.  Packard,  6  Pet.  41, 
48,   8    L.    Ed.   312.    ' 

88.  Railroad  Co.  r.  Maryland,  20  Wall. 
643,  22  L.  Ed.  446,  citing  Murdock  v.  Mem- 
phis, 20  Wall.  590,  22   L.   Ed.  429. 

89.  Horner  v.  United  States,  143  U.  S. 
570,  36  L.  Ed.  266;  German  Savings  So- 
ciety V.  Dormitzer,  192  U.  S.  125,  128,  48 
L.  Ed.  373,  citing  Osborne  v.  Florida,  164 
U.  S.  650,  41  L.  Ed.  586;  McLaughlin  v. 
Fowler,  154  U.  S.  appx.,  663,  26  L.  Ed. 
]76;    Murdock   v.    Memphis,   20   Wall.    590, 

22  L.  L.  Ed.  429. 

90.  Irregularities  and  mere  errors — 
Kennard   v.    Louisiana,   92   U.    S.   480,   481, 

23  L.   Ed.  478. 

91.  Discretionary  matters. — Murdock 
z>.  Memphis,  20  Wall.  590,  623,  22  L.  Ed. 
429. 

"The  supreme  court  of  the  state  held 
that  the  refusal  of  the  trial  court  to  per- 
mit the  defendant  to  amend  his  petition 
for  removal  was  proper.  Amendments  of 
pleadings  or  other  proceedings  are  as  a 
rule  matters  of  discretion  with  the  trial 
court,  and  a  writ  of  error  will  not  lie  t  •> 
review  its  action  in  respect  thereto.    Wal- 


den  V.  Craig,  9  Wheat.  576.  6  L.  Ed.  164; 
Chirac  v.  Reinicker,  ll  Wheat.  280,  6  L. 
Ed.  474;  United  States  v.  Buford,  3  Pet. 
12,  7  L.  Ed.  585;  Matheson  v.  Grant,  2 
How.  263."  Stevens  v.  Nichols,  157  U.  S. 
370,  39   L.   Ed.  736. 

The  decision  of  the  highest  court  of  a 
state  in  granting  or  refusing  to  grant  a 
motion  for  a  rehearing  in  an  equity  suit 
is  not  re-examinable  in  this  court  under 
any  writ  of  error  which  the  court  can 
issue  to  review  the  judgment  or  decree  of 
a  state  court.  Steines  v.  Franklin  County, 
14  Wall.  15,  20  L.  Ed.  846. 

When  the  ground  relied  on  for  the  re- 
versal by  this  court  of  a  judgment  of  the 
highest  court  of  a  state  is  that  the  error 
complained  of  is  so  gross  as  to  amount 
in  law  to  a  denial  by  the  state  of  a  trial 
by  an  impartial  jury  to  one  who  is  ac- 
cused of  crime,  it  must  be  made  clearly  to 
appear  in  order  to  obtain  a  reversal,  that 
such  is  the  fact,  and  that  the  case  is  not 
one  which  leaves  something  to  the  con- 
science or  discretion  of  the  court.  Spies 
V.  Illinois,  123  U.  S.  131,  31  L.  Ed.  80, 
following  Reynolds  v.  United  States,  9S 
U.   S.   145,   25   L.    Ed.   244. 

It  is  for  the  state  court  to  determine 
whether  the  discretionary  power  of  the 
trial  court  in  refusing  a  continuance  or 
a  motion  for  a  new  trial,  has  been  so 
abused  as  to  amount  to  error,  and  whether 


774 


APPEAL  AND  ERROR. 


Change  of  Venue. — The  denial  by  a  state  court  of  an  application  for  a 
change  of  venue  on  the  ground  of  local  prejudice,  involves  no  federal  question, 
especially  as  the  granting  of  a  change  of  venue  in  a  criminal  case  rests  largely 
in  the  discretion  of  the  trial  court. 9- 

(4)  Questions  of  Fact — aa.  In  General. — It  is  well  settled  that  this  court,  in. 
an  action  at  law.  at  least,  has  no  jurisdiction  to  review  the  decision  of  the  high- 
est court  of  a  state  upon  a  pure  question  of  fact,  although  a  federal  question 
would  or  would  not  be  presented  according  to  the  way  in  which  the  question  of 
fact  was  decided.^^     On  writ  of  error  to  a  state  court  from  the  supreme  court 


its  reconsideration,  upon  a  motion  for  a 
new  trial,  or  the  refusal  to  continue,  calls 
for  revision.  In  short,  the  matter  is  for 
the  state  courts  to  decide,  and  the  action 
presents  no  federal  question.  Davis  v. 
Texas,  139  U.  S.  651,  35  L.  Ed.  300. 

The  action  of  a  state  court  in  refus- 
ing to  allow  an  amendment  to  respond- 
ent's answer  to  a  mandamus  in  which  it 
was  attempted  to  set  up  and  claim  cer- 
tain rights,  privileges  and  immunities 
under  the  federal  constitution,  does  not 
raise  a  federal  question  which  this  court 
can  examine,  because  it  is  in  the  discre- 
tion of  the  court  to  deny  the  motion  to 
amend,  when  no  reasons  are  assigned  for 
its  allowance,  and  to  hold  the  parties  to 
the  issues  made  by  the  original  petition 
and  answer."  Such  action  cannot  be  as- 
signed for  error,  for  there  is  nothing  in 
the  record  justifying  the  conclusion  Uiat 
its  discretion,  in  that  regard,  was  exer- 
cised with  the  intent  or  so  as  to  de- 
prive the  defendant  either  of  any  right  or 
immunity  to  which  he  was  entitled  under 
the  constitution  or  laws  of  the  United 
States,  or  of  the  privilege  of  setting  up 
or  claiming  in  due  time  and  in  proper 
form  any  such  right  or  immunity.  Kipley 
V.  Illinois.  170  U.  S.  182,  42  L.  Ed.  998,  re- 
affirmed in  Harkins  v.  Ashville,  180  U.  S. 
635,  45  L.  Ed.  7G9;  Ross  v.  King.  172  U. 
S.  641,  43  L.  Ed.  1180;  Jones  v.  Vane,  200 
U.  S.  614,  50  L.  Ed.  621. 

Injunctions. — Cases  arise  undoubtedly 
where  a  court  of  equity  will  enjoin  a  cor- 
poration not  to  proceed  under  an  amend- 
ment to  their  charter  passed  by  their 
assent,  as  where  the  effect  would  be  to 
enable  the  corporation  to  violate  their 
contracts  with  third  persons,  but  no  such 
question  is  here  presented  for  the  deci- 
sion of  this  court,  nor  can  it  ever  be 
under  a  writ  of  error  to  a  state  court. 
Questions  of  that  kind  are  addressed  very 
largely  to  the  judicial  discretion  of  the 
court  and  create  the  necessity  for  inquiry 
into  the  facts  of  the  case  and  for  an  ex- 
amination into  all  the  surrounding  cir- 
cumstances. Beyond  doubt  such  a  question 
may  be  presented  in  the^  circuit  court  in 
the  exercise  of  its  jurisdiction,  concur- 
rent with  the  state  courts,  but  it  is  clear 
that  such  a  question  can  never  be  brought 
here  for  re-examination  by  a  writ  of  error 
to  a  state  court,  as  such  a  writ  only  re- 
moves into  this  court  the  questions,  or 
some    one    of   the   questions,    described   in 


the  twenty-fifth  section  of  the  judiciary 
act.  Pennsylvania  College  Cases,  13  Wall. 
190,   219,   20   L.    Ed.    550. 

92.  Barrington  v.  Missouri,  205  U.  S. 
483,   51    L.    Ed.   890. 

83.  Questions  of  fact  in  general. — 
Dower  v.  Richards,  151  U.  S.  658,  668,  38 
L.  Ed.  305;  Barton  v.  Geiler,  108  U.  S. 
161,  27  L.  Ed.  687;  Israel  v.  Arthur,  152 
U.  S.  355.  362,  38  L.  Ed.  474;  Egan  v. 
Hart,  165  U.  S.  188,  41  L.  Ed.  680;  Backus 
V.  Fort  Street  Union  Depot  Co.,  169  U. 
S.  557.  42  L.  Ed.  853;  Chapman,  etc.,  Land 
Co.  V.  Bigelow,  206  U.  S.  41,  51  L.  Ed. 
953;  Telluride,  etc.,  Co.  v.  Rio  Grande, 
etc.,  R.  Co.,  175  U.  S.  639,  44  L.  Ed.  305; 
Republican  River  Bridge  Co.  v.  Kansas 
Pac.  R.  Co.,  92  U.  S.  315,  23  L.  Ed.  515; 
Noble  V.  Mitchell,  164  U.  S.  367,  41  L.  Ed. 
472;  Hedrick  v.  Atchison,  etc.,  R.  Co.,  167 
U.  S.  673,  677,  42  L.  Ed.  320;  Turner  v. 
New  York,.  168  U.  S.  90,  95,  42  L.  Ed. 
392;  Chrisman  v.  Miller,  197  U.  S.  313,  319,. 
49  L.  Ed.  770;  Clipper  Min.  Co.  v.  Eli 
Min..  etc.,  Co.,  194  U.  S.  220,  48  L.  Ed. 
944;  Kaufman  v.  Tredway,  195  U.  S.  271, 
49  L.  Ed.  190;  Smiley  v.  Kansas,  196  U. 
S.  447.  49  L.  Ed.  546;  Chicago,  etc.,  R. 
Co.  V.  Chicago,  166  U.  S.  226,  242,  41  L- 
Ed.  979;  Gardner  v.  Bonestell,  180  U.  S. 
362,  45  L.  Ed.  574,  reaffirmed  in  Rose  v. 
Kansas,  203  U.  S.  580.  51  L-  Ed.  326;. 
Thomas  v.  Kansas,  205  U.  S.  535,  536,  51 
L.  Ed.  919;  Western  Union  Tel.  Co.  v. 
Call  Pub.  Co.,  181  U.  S.  92,  103,  45  L.  Ed. 
765;  Hartwell  v.  Havighorst,  196  U.  S. 
635,  49  L.  Ed.  629;  Keokuk,  etc..  Bridge 
Co.  V.  Illinois,  175  U.  S.  626,  44  L.  Ed. 
299;  German  Savings  Society  v.  Dormit- 
zer,  192  U.  S.  125,  48  L.  Ed.  373;  In  re 
Buchanan,  158  U.  S.  31,  36,  39  L.  Ed.  884; 
Stanley  v.  Schwalby.  162  U.  S.  255,  278,  40 
L.  Ed.  960;  Grand  Rapids,  etc.,  R.  Co.  v. 
Butler.  159  U.  S.  87,  40  L.  Ed.  85;  Quimby 
V.  Boyd,  128  U.  S.  488,  32  L.  Ed.  502;  Da- 
kota, etc.,  R.  Co.  V.  Crouch,  203  U.  S.  582, 
51  L.  Ed.  327;  Minneapolis,  etc.,  R.  Co. 
V.  Minnesota,  193  U.  S.  53,  64,  48  L.  Ed. 
614;  Kenney  v.  Effinger,  115  U.  S.  577,. 
29  L.  Ed.  498;  Compare  Murdock  v.  Mem- 
phis, 20  Wall.   590,  625,  22  L-   Ed.  429. 

"It  is  well  settled  that  the  findings  of 
fact  in  the  state  courts  are  on  a  writ  of 
error  conclusive  with  us.  Hedrick  v.  At- 
chison, etc.,  R.  Co.,  167  U.  S.  673,  677, 
42  L.  Ed.  320,  and  cases  cited  therein; 
Bement  v.  Nat.  Harrow  Co.,  186  U.  S.  70^ 
46   L.   Ed.   1058.     In   other   words,   we   ap- 


APPEAL  AXD  ERROR. 


//o 


of  the   United  States,  whatever  was  a  question  of  fact  in  the  former  court  is 


ply  the  law  to  the  facts  settled  in  the 
state  courts,  and  we  do  not  search  the 
record  to  see  if  there  be  not  disclosed  by 
the  testimony  some  other  matters  not  em- 
braced in  the  findings  which  may  affect 
the  conclusion."  Jenkins  v.  Neff,  186  U. 
S.  230,  235,  46  L-   Ed.   1140. 

The  verdict  of  the  jury  settles  all  ques- 
tions of  fact.  In  Missouri,  etc.,  R.  Co. 
V.  Haber,  169  U.  S.  613,  639,  42  L.  Ed. 
878,  it  is  said:  "Much  was  said  at  the  bar 
about  the  finding  of  the  jury  being  against 
the  evidence.  We  cannot  enter  upon  such 
an  inquiry.  The  facts  must  be  taken  as 
found  by  the  jury,  and  this  court  can  only 
consider  whether  the  statute  as  interpreted 
to  the  jury,  was  in  violation  of  the  fed- 
eral constitution.  Chicago,  etc.,  R.  Co. 
V.  Chicago,  166  U.  S.  226,  242,  246,  41  L. 
Ed.  979."  Smiley  v.  Kansas,  196  U.  S. 
447,  49  L.  Ed.  546,  reaffirmed  in  Rose  v. 
Kansas.  203  U.  S.  580,  51  L.  Ed.  326; 
Tomas  z\  Kansas,  205  U.  S.  535,  536,  51  L. 
Ed.  919. 

Illustrative  cases. — In  Lytle  v.  Arkan- 
sas, 22  How.  193,  16  L.  Ed.  306,  in  which 
the  supreme  court  of  Arkansas  had  de- 
cided against  a  pre-emptive  right  claimed 
under  the  laws  of  the  United  States,  Mr. 
Justice  Catron  said:  "It  is  not  material 
whether  the  invalidity  of  the  title  was 
decreed  in  the  supreme  court  of  Arkansas 
upon  a  question  of  fact  or  of  law.  The 
fact  that  the  title  was  rejected  in  that 
court  authorizes  this  court  to  re-exam- 
ine the  decree."  Those  observations  must 
be  taken  as  applied  to  the  case  before  the 
court,  in  which  the  decision  of  the  ques- 
tion of  fact  depended  on  the  legal  effect 
of  acts  of  officers  of  the  United  States  re- 
garding that  title;  and  that  it  was  not 
intended  to  enlarge  the  scope  of  the  ap- 
pellate jurisdiction  of  this  court  is  evi- 
dent from  the  cases  there  cited.  See, 
also,  Magwire  v.  Tyler,  1  Black  195,  203, 
17   L.    Ed.    137. 

A  decision  of  the  highest  state  court  in 
an  action  against  the  collector  of  the  port 
and  a  firm  of  warehousemen  for  a  con- 
spiracy in  having  certain  cargoes  of  rags 
belonging  to  the  plaintiffs  condemned  as 
unclean  and  infectious  property,  that  the 
collector  never  ordered  the  rags  to  be  dis- 
infected, is  a  ruling  upon  a  matter  of  fact, 
and  hence  not  reviewable  here.  Bartlett 
V.  Lockwood,  160  U.  S.  357,  40  L.  Ed. 
455. 

Validity  of  contract. — "The  only  federal 
question  raised  in  the  record  is  as  to  the 
validity  of  contracts  A  and  B,  with  re- 
gard to  the  act  of  congress  on  the  sub- 
ject of  trusts.  Act  of  July  2,  1890,  ch. 
647,  26  Stat.  209.  That  is  a  question  of 
law,  plainly  raised  in  the  record,  and  we 
are  not  precluded  from  its  consideration 
by  any  action  of  the  state  courts."  Be- 
ment  t'.  Nat.  Harrow  Co..  186  U.  S.  70, 
83,  46   L.  Ed.  1058. 


Confederate  contracts. — A  writ  of  error 
to  a  state  court  does  not  bring  up  for 
review  a  question  of  fact  whether  a  con- 
tract was  made  with  reference  to  Confed- 
erate notes.  Kennedy  z:  Effinger,  115  U. 
S.    577,    29    L.    Ed.    498. 

License  to  real  property. — Where  the 
decision  of  the  court  below  is  that,  as  a 
matter  of  fact,  there  was  no  license  to 
take  minerals  from  certain  land,  this  court 
has  no  jurisdiction;  this  was  a  finding  by 
the  court  of  a  question  of  fact  upon  the 
submission  of  the  whole  case  by  the  par- 
ties, rather  than  a  judgment  upon  a  ques- 
tion at  law.  Mining  Co.  v.  Boggs.  3 
Wall.  304.  17  L.  Ed.  245. 

Mines  and  mining. — This  court  cannot 
review  the  decision  of  a  state  court  upon 
the  question  of  fact  whether  the  ledge, 
at  the  time  when  the  town  site  patent 
took  effect,  w^as  known  to  be  valuable  for 
mining  purposes.  Dower  v.  Richards,  151 
U.    S.    658,    ;!8    L.    Ed.    305. 

Qualification  of  jurors. — A  question  in 
relation  to  the  physical  and  mental  con- 
dition of  a  juror  and  his  competency  to 
return  a  verdict,  is  a  question  of  fact, 
and  this  court  upon  a  writ  of  error  to 
the  highest  court  of  a  state,  in  an  action 
at  law  cannot  review  its  judgment  upon 
such  a  question.  Dower  z\  Richards,  151 
U.  S.  658.  664,  38  L.  Ed.  305;  In  re  Buch- 
anan, 158  U.   S.   31,  36,  39   L.   Ed.   884. 

Special     benefits     for     improvements 

The  amount  of  benefits  resulting  from  an 
improvement  where  the  assessment  is 
made  under  the  statute  of  a  state  which 
the  supreme  court  of  the  United  States 
has  held  to  be  constitutional,  is  a  ques- 
tion of  fact,  and  a  hearing  upon  it  being 
assumed,  the  decision  of  the  board  is 
final.  And  no  constitutional  question  of 
a  federal  nature  arises  therefrom.  Hibben 
v.   Smith,  19]   U.   S.  310,  48  L.   Ed.  195. 

Percolating  water  on  land. — Where  the 
contention  is  that  the  state  courts  de- 
cided against  the  claim  of  plaintiffs  in 
error  to  the  rights  of  a  riparian  owner, 
and  to  the  ownership  of  alleged  perco- 
lating waters,  as  derived  from  patents  of 
the  United  States  as  well  as  from  Mex- 
ican grants,  or  under  the  treaty  of  Guada- 
loupe  Hidalgo,  it  was  held,  that  the  ques- 
tion of  the  e.-dstenee  of  percolating  water 
is  merely  a  question  of  fact.  Hooker  z. 
Los  Angeles,  188  U.  S.  314,  47  L  Ed.  487, 
citing  San  Francisco  i\  Scott,  111  U.  S. 
768,  28  L.  Ed.  593;  California  Powder 
Works  V.  Davis.  151  U.  S.  389,  38  L.  Ed. 
206. 

Possession   by   defendant  in   replevin 

The  decision  of  the  state  court  in  an  ac- 
tion of  replevin  to  recover  logs  cut  upon 
public  land,  that  the  defendant  was  not  in 
possession,  involves  no  federal  question,  or 
any  other  question  of  law,  but  a  mere  in- 
ference of  fact  from  the  evidence,  which 
this  court  is  not  authorized  to  review  on 


//O 


APPEAL  AND  ERROR. 


writ  of  error.  Dower  v.  Richards,  151  U. 
S.  658,  38  L.  Ed.  305;  Egan  v.  Hart,  165 
U.  S.  188,  41  L.  Ed.  680;  Turner  v.  New 
York,   168   U.   S.   90.  95,   42    L.    Ed.   392. 

Whether  the  dividing  line  between  two 
states,  which  crosses  a  bridge  running 
from  one  state  to  the  other,  was  improp- 
erly located,  is  a  question  of  fact,  the  find- 
ing of  which  by  a  state  court  is  not  re- 
viewable. Keokuk,  etc..  Bridge  Co.  v. 
Illinois,    175    U.    S.    626,    44    L.    Ed.    299. 

Assessment  of  bridge  between  states. — 
Whether  a  bridge  dividing  two  states  has 
been  assessed  at  more  than  its  value  or 
not  is  question  of  fact,  the  finding  of 
which  by  a  state  court  is  not  reviewable 
here.  Keokuk,  etc..  Bridge  Co.  v.  Illinois, 
175  U.,  S.   626,   44   L.    Ed.   399. 

In  an  action  for  the  settlement  of  ad- 
verse claims  to  mineral  lands,  the  ques- 
tion as  to  priority  of  location,  is  a  ques- 
tion of  fact,  and  not  of  law,  and  involves 
no  federal  question.  Telluride,  etc.,  Co. 
:■.  Rio  Grande,  etc.,  R.  Co.,  175  U.  S.  639, 
44  L.  Ed.  305.  following  Eilers  v.  Boat- 
man,   111    U.    S.    356.   28   L.    Ed.   454. 

Revenue  stamps — Value  of  land. — In 
Lewis  V.  Campau,  3  Wall.  106,  18  L.  Ed. 
211,  a  decision  of  the  state  court  as  to  the 
:alue  of  land  conveyed  by  deed,  upon 
>vhich  depended  the  requisite  amount  of 
stamps  under  the  revenue  law  of  the 
United  States,  was  held  not  to  be  review- 
;ible,  although,  if  the  value  of  the  land 
had  been  admitted,  a  federal  question 
would  have  been  presented.  Hall  v.  Jor- 
dan, 15  Wall.  393,  21  L.  Ed.  72. 

Boundaries. — In  Moreland  v.  Page,  20 
How.  522,  15  L.  Ed.  1009,  this  court  dis- 
missed a  writ  of  error  to  review  the 
judgment  of  a  state  court  upon  a  question 
of  the  proper  boundary  between  two 
tracts  of  land,  although  the  owner  of  each 
•  ■laimed  under  a  grant  from  the  United 
States;  and  Mr.  Justice  Grier  in  deliver- 
'ng  judgment  said:  "It  is  a  question  of 
fact,  depending  on  monuments  to  be 
found  on  the  ground,  documents  in  the 
l;ind  office,  or  the  opinion  of  experts  or 
surveyors  appointed  by  the  court  or  the 
parties.  If  the  accident  to  the  controversy 
that  both  parties  claim  title  under  the 
United  States  should  be  considered  as 
sufficient  to  bring  it  within  our  jurisdic- 
tion, then  every  controversy  involving  the 
'itle  to  such  lands,  whether  it  involve  the 
inheritance,  partition,  devise  or  sale  of  it, 
may,  with  equal  propriety,  be  subject  to 
the  examination  of  this  court  in  all  time 
to  come." 

In  Almon«ster  v.  Kenton,  9  How.  1,  7, 
13  L-  Ed.  21,  Mr.  Justice  Catron  said: 
"Now  that  this  court  has  no  jurisdiction, 
under  the  twenty-fifth  section  of  the  ju- 
diciary act  of  1789,  to  re-examine  the  de- 
cision of  a  state  court,  which  drew  in 
(luestion  the  mere  fact  of  where  a  divid 
I  ig  line  between  two  tracts  of  land  was, 
is  ton  plain  for  discussion.  Had  the  de- 
cision  of   the   supreme   court   of   Louisiana 


stopped  here,  "then  certainly  jurisdiction 
would  be  wanting."  And  this  court  as- 
sumed jurisdiction  of  that  case  solely  be- 
cause the  state  court  had  gone  further, 
and  had  given  a  construction  to  an  act 
of  congress. 

Right  of  possession. — In  Mining  Co.  v. 
Boggs,  3  Wall.  304,  17  L.  Ed.  245,  a  right 
of  possession  for  the  purpose  of  extract- 
ing gold  from  quartz  rock  was  claimed 
"by  a  license  inferred  from  the  general 
policy  of  the  state  or  of  the  United 
States,  in  relation  to  mines  of  gold  and 
silver  and  the  lands  containing  them;" 
and  a  writ  of  error  to  review  a  decision 
of  the  supreme  court  of  California  against 
the  claim  was  dismissed  by  this  court, 
speaking  by  Chief  Justice  Chase,  for  the 
following  reasons:  "We  doubt  whether 
such  a  claim,  even  if  made  in  the  plead- 
ings, would  be  such  an  allegation  as 
would  give  jurisdiction  to  this  court. 
However  that  may  be,  there  was  no  de- 
cision of  the  court  against  the  validity  of 
such  a  license.  The  decision  was,  that  no 
such  license  existed;  and  this  was  a  find- 
ing by  the  court  of  a  question  of  fact 
upon  the  submission  of  the  whole  case 
by  the  parties,  rather  than  a  judgment 
upon  a  question  of  law." 

Claim  of  title  under  federal  govern- 
ment.— In  Carpenter  v.  Williams,  9  Wall. 
785,  19  L.  Ed.  827,  it  was  held,  that  this 
court  had  no  jurisdiction  where  the  de- 
cision of  the  state  court  turned  upon  the 
identity  of  the  person  to  whom  a  re- 
corder of  land  titles  confirmed,  or  in- 
tended to  confirm,  a  lot  of  ground;  and 
Mr.  Justice  Miller,  in  delivering  judgment, 
said:  "It  is  a  mistake  to  suppose  that 
every  suit  for  real  estate,  in  which  the 
parties  claiming  under  the  federal  gov- 
ernment are  at  issue  as  to  which  of  them 
is  entitled  to  the  benefit  of  that  title, 
necessarily  raises  a  question  of  federal 
cognizance.  If  this  were  so,  the  title  to 
all  the  vast  domain,  once  vested  in  the 
United  States,  could  be  brought  from  the 
state  courts  to  this  tribunal." 

In  Republican  River  Bridge  Co.  v.  Kan- 
sas Pac.  R.  Co.,  92  U.  S.  315,  23  L.  Ed. 
515,  in  an  action  at  law  concerning  the 
title  to  real  estate,  in  which  each  party 
claimed  under  a  grant  from  congress,  a 
district  court  of  the  state  of  Kansas,  to 
which  the  case  had  been  submitted  with- 
out the  intervention  of  a  jury,  made  find- 
ings of  fact,  upon  which  it  declared  the 
law  to  be  for  the  defendant;  its  judgment 
was  affirmed  by  the  supreme  court  of  the 
state,  and  the  plaintiflf  sued  out  a  writ  of 
error  from  this  court.  Mr.  Justice  Miller, 
in  delivering  the  opinion,  said:  "The 
finding  by  the  district  court  was  received 
by  the  supreme  court  of  the  state  as  con- 
clusive ?4S  to  all  facts  in  issue,  and  it  is 
equally  conclusive  upon  us.  Where  a 
right  is  set  up  under  an  act  of  congress 
m  a  state  court,  any  matter  of  law  found 
in  the  record,  decided  by  the  highest  court 


APPEAL  AXD  ERROR. 


777 


tjucslion  of  fact  in  the  latter  court.^-*     The  finding  of  facts  made  in  the  higher 


of  the  state,  bearing  on  the  right  so  set 
up  under  the  act  of  congress,  can  be  re- 
examined here.  In  chancery  cases,  or  in 
anj^  other  class  of  cases  where  all  the 
evidence  becomes  part  of  the  record  in 
the  highest  court  of  the  state,  the  same 
record  being  brought  here,  this  court  can 
review  the  decision  of  that  court  on  both 
the  law  and  the  fact,  so  far  as  may  be 
necessary  to  determine  the  validity  of  the 
right  set  up  under  the  act  of  congress. 
But  in  cases  where  the  facts  are  sub- 
mitted to  a  jury,  and  are  passed  upon  by 
the  verdict,  in  a  common-law  action,  this 
court  has  the  same  inability  to  review 
those  facts  in  a  case  coming  from  a  state 
court  that  it  has  in  a  case  coming  from  a 
circuit  court  of  the  United  States.  This 
conclusiveness  of  the  facts  found  extends 
to  the  finding  by  a  state  court  to  whom 
they  have  been  submitted  by  waiving  a 
jury,  or  to  a  referee,  where  they  are  so 
held  by  state  laws,  as  well  as  to  the  ver- 
dict of  a  jury."  Citing  Mining  Co.  i'. 
Boggs,  3  Wall.  304,  17  L.  Ed.  245;  and 
Crary  v.  Devlin,  154  U.  S..  appx.,  619,  23 
L.   Ed.   510,  as   supporting  this  conclusion. 

Validity  of  preferences  under  bankrupt 
act. — This  court  is  concluded  by  the  find- 
ing of  fact  by  a  state  court  upon  an  issue 
whether  or  not  certain  transactions  were 
invalid  under  the  bankrupt  act,  because 
it  operated  to  give  a  preference  to  some 
creditors  over  others.  Eau  Claire  Nat. 
Bank  v.  Jackman,  204  U.  S.  522,  51  L.  Ed. 
596. 

Fraudulency  of  title  to  land. — In  Cali- 
fornia Powder  Works, ^'.  Davis,  151  U.  S. 
389,  38  L.  Ed.  206,  in  which  each  party 
to  a  suit  to  quiet  title  claimed  under  a 
patent  from  the  United  States  confirm- 
ing a  Mexican  grant,  and  the  judgment 
of  the  supreme  court  of  California  rested 
on  the  proposition  of  fact  that  the  grant 
under  which  the  plaintiff  in  error  de- 
raigned  title  was  simulated  and  fraudu- 
lent, this  court  dismissed  the  writ  of  error 
for  want  of  jurisdiction. 

Failure  of  proof. — In  Crary  v.  Devlin, 
154  U.  S.,  appx..  619,  23  L.  Ed.  510  (de- 
cided February  21,  1876),  in  an  action  to 
recover  the  price  of  alcohol  sold,  the  de- 
fendants contended  that  the  sale  was  un- 
lawful because  of  a  violation  of  the 
internal  revenue  laws  of  the  United  States. 
The  court  of  appeals  of  New  York  gave 
judgment  for  the  plaintifif,  because  no  such 
violation  was  proved;  and  this  court  dis- 
missed the  writ  of  error,  upon  the  au- 
thority of  Mining  Co.  v.  Boggs,  3  Wall. 
304,  17  L.  Ed.  245,  Chief  Justice  Waite 
saying:  "There  could  have  been  no  de- 
cision of  the  court  of  appeals  against  the 
validity  of  any  statute  of  the  United 
States,  because  it  was  found  that  the  facts 
upon  which  the  defendants  below  relied 
to  bring  their  case  within  the  statute  in 
question  did  not  exist.     The  judgment  did 


not  deny  the  validity  of  the  statute,  bi.i 
the  existence  of  the  facts  necessary  t'. 
bring    the    case    within    its    operation." 

Foreign  corporations. — A  decision  by 
the  highest  state  court  in  an  action  against 
a  foreign  insurance  company  to  recover 
on  a  policy  issued  by  it,  that  there  was  n^' 
adequate  proof  that  the  policy  in  con- 
troversy was  issued  by  a  foreign  corpora- 
tion, is  a  mere  question  of  fact,  and  there- 
fore is  not  subject  to  review  here  on  a 
writ  of  error.  Noble  v.  Mitchell,  164  U. 
S.  367,  41  L.  Ed.  472.  citing  Dower  v. 
Richards,  151  U.  S.  658,  38  L.  Ed.  305; 
In  re  Buchanan,  158  U.  S.  31,  39  L.  Ed. 
884. 

94.  Eastern  Building  &  Loan  Ass'n  v. 
Ebaugh,  185  U.   S.  114.  46   L.   Ed.  830. 

Proof  of  foreign  laws. — A  finding  of 
facts  by  a  trial  court  of  a  state  as  to  what 
the  statutory  law  of  another  state  is  and 
what  its  application  is  under  the  decision 
of  the  courts  of  that  state,  is  binding  upon 
the  supreme  court  of  the  United  States 
on  writ  of  error  to  the  highest  court  of 
that  state,  which  has  held  that  such  find- 
ing of  facts  are  not  subject  to  review 
but  are  conclusive  upon  it.  Eastern 
Building  &  Loan  Ass'n  v.  Ebaugh,  185  U. 
S.   114,  46   L.   Ed.   830. 

This  court  said,  speaking  by  Chief  Jus- 
tice Waite,  in  Chicago,  etc.,  R.  Co.  z'. 
Wiggins  Ferry  Co.,  119  U.  S.  615,  30  L. 
Ed.  519,  where,  as  in  the  case  at  bar,  was 
invoked  that  provision  of  the  constitution 
of  the  United  States  which  requires  the 
courts  of  one  state  to  give  full  faith  and 
credit  to  the  public  acts  of  another: 
"Whenever  it  becomes  necessary  under 
this  requirement  of  the  constitution  for  a 
court  of  one  state,  in  order  to  give  faith 
and  credit  to  a  public  act  of  another 
state,  to  ascertain  what  efifect  it  has  in 
that  state,  the  law  of  that  state  must  be 
proved  as  a  fact-  No  court  of  a  state  ?s 
charged  with  knowledge  of  the  laws  of 
another  state;  but  such  laws  are  in  that 
court  matters  of  fact,  which,  like  other 
facts,  must  be  proved  before  they  can  be 
acted  upon.  This  court,  and  the  other 
courts  of  the  United  States,  when  exer- 
cising their  original  jurisdiction,  take  no- 
tice, without  proof,  of  the  laws  of  the 
several  states  of  the  United  States;  but  in 
this  court,  when  acting  under  its  appellate 
jurisdiction,  whatever  was  matter  of  fact 
in  the  court  whose  judgment  or  decree  is 
under  review,  is  matter  of  fact  here.  This 
was  expressly  decided  in  Hanley  v. 
Donoghue.  116  U.  S.  1,  39  L.  Ed.  535,  in 
respect  to  the  faith  and  credit  to  be  given 
by  the  courts  of  one  state  to  the  judg- 
ments of  the  courts  of  another  state,  and 
it  is  equally  applicable  to  the  faith  and 
credit  due  in  one  state  to  the  public  acts 
of  another."  Approved  in  En-tern  Build- 
ing &  Loan  Ass'n  t'.  Ebaugh,  185  U.  S. 
1]4,    121.    46    L.    Ed.    830. 


"8 


APPBAL  AXD  ERROR. 


court  of  a  state  is  binding  upon  the  supreme  court  of  the  United  States,  and 
will  be  the  basis  of  decision  there. ^•'' 

And  this  for  the  reason,  that  the  last  clause  of  the  seventh  amendment  is 
not  restricted  in  its  application  to  suits  at  common  law  tried  before  juries  in  the 
courts  of  the  United  States.  It  applies  equally  to  a  case  tried  before  a  jury  in 
a  state  court  and  brought  here  by  writ  of  error  from  the  highest  court  of  the 
state.^^  To  this  may  be  added  that  congress  has  provided  that  the  final  judgment 
of  the  highest  court  of  a  stale,  in  cases  of  which  this  court  may  take  cognizance, 
shall  be  re-examined  upon  writ  of  error,  a  process  of  common-law  origin,  which 
removes  nothing  for  re-examination  but  questions  of  law  arising  upon  the 
record.^" 

Affirmance  by  Divided  Court. — Where  the  highest  court  of  a  state  affirms 
the  judgment  of  the  trial  court,  though  by  an  equally  divided  court,  and  there 
is  no  statement  of  the  facts  by  that  court,  its  decision  constitutes  an  affirmance 
of  the  findings  of  the  trial  court. ^"^ 

bb.  Ridings  on  Questions  of  Evidence. — In  General. — This  court  cannot  go 
behind  the  final  judgment  of  the  state  court  for  the  purpose  of  re-examining  and 
weighing  the  evidence,  and  of  determining  whether,  upon  the  facts,  the  jury 
erred  in  not  returning  a  verdict  in  favor  of  the  plaintiff  in  error  for  a  larger  sum, 
and  this  not  only  because  of  the  seventh  amendment  of  the  constitution  providing 
that  "in  suits  at  common  law,  where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  common  law,"  but  also  because  §  709  of  the  Revised  Stat- 
utes provides  that  the  fiyal  judgment  of  the  highest  court  of  a  state  may  be  re- 
examined in  this  court  only  upon  a  writ  of  error. ^^     On  error    to  a  state  court. 


95.  Adams  v.  Church.  193  U.  S.  510,  48 
L.  Ed.  769,  citing  and  approving  Egan  v. 
Hart,  165  U.  S.  188.  41  L.  Ed.  680;  and 
Dower  v.  Richards,  151  U.  S.  658,  38  L. 
Ed.  305. 

96.  Chicago,  etc..  R.  Co.  v.  Chicago.  1G6 
U.  S.  226,  242,  243,  41  L.  Ed.  979;  The 
Justices  V.  Murray,  9  Wall.  274,  19  L.  Ed. 
658. 

The  ratio  decidendi,  the  line  of  thought 
pervading  and  controlling  the  whole  opin- 
ion in  Parsons  v.  Bedford,  3  Pet.  433.  7 
L.  Ed.  732,  was  that  the  seventh  amend- 
ment undoubtedly  prohibited  any  court  of 
the  United  States  from  re-examining  facts 
once  tried  by  a  jury  in  a  lower  court  of 
the  United  States,  and  that  there  was  no 
reason  why  the  prohibition  should  not 
equally  apply  to  a  case  brought  into  a 
court  of  the  United  States  from  a  state 
court.  "In  both  instances,"  it  was  said. 
"the  cases  are  to  be  disposed  of  by  the 
same  system  of  laws,  and  by  the  same 
judicial  tribunal."  Railroad  Company  v. 
Schurmeier,  9  Wall.  272.  277,  279,  19  L.  Ed. 
74.  In  Chicago,  etc.,  R.  Co.  v.  Chicago, 
166  U.  S.  226,  242,  244,  41  L.  Ed.  979.  the 
same  course  of  reasoning  was  followed, 
and  was  applied  to  a  case  brought  by  writ 
of  error  from  the  highest  court  of  a  state 
to  this  court.  Capital  Traction  Co.  v. 
Hof,  174  U.  S.  1,  12,  43  L.  Ed.  873,  opin- 
ion of  Mr.  Justice  Gray. 

The  provision  in  the  seventh  amend- 
ment of  the  constitution  of  the  United 
States,  which  declares  that  no  fact  tried 
by  a  jury  shall  be  otherwise  re-examined 


in  any  court  of  the  United  States  than 
according  to  the  rules  of  the  common 
law,  applies  to  the  facts  tried  by  a  jury  in 
a  cause  in  a  state  court.  "It  seems  to  us 
also  that  cases  of  federal  cognizance, 
coming  up  from  state  courts,  are  not  only 
within  the  words,  but  are  also  within  the 
reason  and  policy  of  the  amendment. 
They  are  cases  involving  questions  aris- 
ing under  the  constitution,  the  laws  of  the 
United  States,  and  treaties,  or  under  some 
other  federal  authorit)';  and,  therefore, 
are  as  completely  within  the  exercise  of 
the  judicial  power  of  the  United  States, 
as  much  so  as  if  the  cases  had  been 
originally  brought  in  some  inferior  fed- 
eral court.  No  other  cases  tried  in  the 
state  courts  can  be  brought  under  the 
appellate  jurisdiction  of  this  court  or  any 
inferior  federal  court,  on  which  appellate 
jurisdiction  may  have  been  conferred." 
The  Justices  v.  Murray,  9  Wall.  274,  19  L. 
Ed.  658. 

97.  Eagan  v.  Hart,  165  U.  S.  188.  41  L. 
Ed.  680;  Chicago,  etc.,  R.  Co.  v.  Chicago, 
166  U.  S.  226,  246,  41  L.  Ed.  979. 

98.  Minneapolis,  etc.,  R.  Co.  v.  Minne- 
sota.  193  U.  S.  53.  48  L.   Ed.  614. 

99.  Rulings  in  questions  of  evidence. 
—Chicago,  etc..  R.  Co.  v.  Chicago,  166  U. 
S.  226,   242,  41   L.    Ed.  979. 

The  powers  of  the  supreme  court  are 
limited  in  cases  coming  up  from  the  state 
courts,  under  the  twenty-fifth  section  of 
the  judiciary  act.  to  questions  of  law, 
where  the  final  judgment  or  decree  draws 
in    question    the    validity    of    a    treaty    or 


APPEAL  AXD  ERROR. 


779 


this  court  cannot  re-examine  the  evidence,  and  when  the  facts  are  found  below 
we  are  conchided  by  such  finding.i  Upon  a  writ  of  error  to  a  state  court  this 
court  has  no  right  to  review  its  decision  upon  the  ground  that  the  lindin^  was 
against  evidence  or  the  weight  of  evidence.2  This  court,  upon  a  writ  of^'error 
10  a  state  court,  cannot  enter  upon  an  inquiry  as  to  whether  the  finding  of  the 
jury  is  against  the  evidence.  The  facts  must  be  taken  as  found  by  the  jurv 
and  this  court  can  only  consider  whether  the  statute,  as  interpreted  to  the  jury' 
is  in  violation  of  the  federal  constitution.^  Where,  according  to  the  rulincr  of 
tlie  highest  state  court,  findings  of  fact  by  the  trial  court  in  the  state,  upon  con- 
llictmg  evidence  are  conclusive,  and  will  not  be  reviewed  by  such  court,  that  rule 
is  equally  binding  on  this  court.^ 

Qualifications   of  General  Rule.— W  hile   the   mere  rejection  of  a  defend- 


statute  of  the  United  States,  etc.,  or  where 
their  eonstructioii  is  drawn  in  question,  or 
an  authority  exercised  under  them;  and 
as  the  admission  of  evidence  to  establish 
the  mere  fact  of  boundary  in  regard  to 
the  extent  of  grant  cannot  raise  a  question 
involving  either  the  validity  or  construc- 
tion of  an  act  of  congress,  etc.,  this  court 
has  no  jurisdiction  to  consider  ai>d  revise 
the  decision  of  a  state  court,  however 
erroneous  it  may  be  in  admitting  evidence 
to  establish  the  fact.  But  when  evidence 
i.s  admitted  as  competent  for  this  purpose, 
and  it  is  sought  to  give  it  effect  for  other 
purposes  which  do  involve  questions  giv- 
ing this  court  jurisdiction,  then  the  deci- 
sions of  state  courts  on  the  effect  of  such 
evid-ence  may  t'e  full3'  considered  here, 
and  their  judgments  reversed  or  affirmed, 
in  a  similar  manner  as  if  a  like  question 
had  arisen  in  a  supreme  court  of  error 
of  a  state,  when  reserving  the  proceed- 
ings of  inferior  courts  of  original  juris- 
diction— and  on  this  principle  we  are 
compelled  to  act  in  the  present  suit,  when 
dealing  with  the  instruction  given  on  be- 
half of  the  defendant.  Mackay  v.  Dillon, 
4  How.  421,  437,  447,  11  L.  Ed.  1046,  1050. 
When,  indeed,  the  question  decided  by 
the  state  court  is  not  merely  of  the  weight 
or  sufficiency  of  the  evidence  to  prove  a 
fact,  but  of  the  competency  and  legal  ef- 
fect of  the  evidence  as  bearing  upon  a 
question  of  federal  law,  the  decision  may 
be  reviewed  by  this  court.  It  was  ac- 
cordingly said  by  Mr.  Justice  Catron: 
"The  powers  of  the  supreme  court  are 
limited  in  cpses  coming  up  from  the  state 
courts,  under  the  twenty-tifth  section  of 
the  judiciary  act,  to  questions  of  law, 
where  the  final  judgment  or  decree  draws 
in  question  the  validity  of  a  treaty  or 
statute  of  the  United  States,  etc..  or 
where  their  construction  is  drawn  in 
question,  or  an  authority  exercised  under 
them;  and  as  the  admission  of  evidence 
to  establish  the  mere  fact  of  boundary  in 
regard  to  the  extent  of  grant  cannot  raise 
a  question  involving  either  the  validity 
or  construction  of  an  act  of  congress,  etc.. 
this  court  has  no  jurisdiction  to  consider 
and  revise  the  decision  of  a  state  court, 
however  erroneous  it  may  be  in  admittin'2: 
the    evidence    to    establish    the    fact.      But 


when  evidence  is  admitted  as  competent 
for  this  purpose,  and  it  is  sought  to  give 
it  effect  for  other  purposes  which  do  in- 
volve questions  giving  this  court  jurisdic- 
tion, then  the  decisions  of  state  courts 
on  the  effect  of  such  evidence  may  be 
fully  considered  here,  and  their  judg- 
ments reversed  or  affirmed,  in  a  similar 
manner  as  if  a  like  question  had  arisen 
in  a  supreme  court  of  error  of  a  state, 
when  reversing  the  proceedings  of  in- 
ferior courts  of  original  jurisdiction." 
Mackay  v.  Dillon,  4  How.  421,  447,  11  L. 
Ed.  1046;  Dower  v.  Richards,  15l'  U  S. 
658,    667,    38    L.    Ed.    .30.5. 

1.  Dower  V.  Richards,  151  U.  S.  658.  38 
L.  Ed.  305;  Bartlett  v.  Lockwood.  160  U. 
S.  357,  40  L.  Ed.  455;  Stanley  v.  Schwalby, 
162  U.  S.  255,  278,  40  L.  Ed.  960;  Egan  v. 
Hart,  165  U.  S.  188,  189,  41   L.  Ed.  680. 

Where  a  writ  of  error  is  sued  out  from 
this  court  to  review  a  decree  of  affirm- 
ance of  the  highest  state  court  rejecting 
a  petition  filed  by  the  plaintiffs  in  error 
in  seeking  to  enjoin  the  erection  of  a  dam 
on  the  ground  that  it  would  obstruct  the 
navigation  of  the  stream  and  therefore 
violate  the  laws  of  the  United  States, 
findings  by  the  court  that  the  said  stream 
is  nonnavigable,  and  the  concurrent  par- 
ticipation of  the  United  States  and  the 
state  in  the  building  of  the  dam,  are 
purely  questions  of  fact  and  are  therefore 
conclusive.  Egan  v.  Hart,  165  U.  S.  188. 
41  L.  Ed.  680.  reaffirmed  in  Milburn  Gin, 
etc..  Co.  V.  German  Bank,  173  U.  S.  701, 
43   L.   Ed.   1185. 

2.  Egan  V.  Hart,  165  U.  S.  188,  '41  L. 
Ed.  680;  Gardner  v.  Bonestell,  180  U.  S. 
362,  370,  45  L.  Ed.  574;  Bement  v.  Nat. 
Harrow  Co.,  186  U.  S.  70,  83,  46  L.  Ed. 
1058;  Jenkins  v.  Neff.  186  U.  S.  230,  235, 
40  L.  Ed.  1140;  Thayer  v.  Spratt.  189  U. 
S.    346,    353,    47    L.    Ed.    845. 

3.  Missouri,  etc.,  R.  Co.  v.  Haber,  169 
U.  S.  613,  42  L.  Ed.  878,  citing  Chicago, 
etc.,  R.  Co.  V.  Chicago,  166  U.  S.  226,  41 
L.   Ed.  979. 

4.  Central  Pac.  R.  Co.  v.  California, 
162  U.  S.  91,  40  L.  Ed.  903.  citing  Repub- 
lican River  Bridge  Co.  v.  Kansas  Pac.  R. 
Co..  9?  U.  S.  315.  23  L.  Ed.  515;  Dower 
V.   Richards,   151  U.   S.   658,  38   L.   Ed.   305. 


■80 


APPEAL  AXD  ERROR. 


ant's  offers  of  proof  by  a  state  court  in  a  case  involving  the  validity  of  a  state 
statute,  under  the  federal  constitution,  does  not  strictly  present  a  federal  question, 
the  supreme  court  may  properly  regard  the  exclusion  of  evidence  upon  the 
ground  of  its  incompetency  or  immateriality  under  the  statute  as  showing  what, 
k  the  opinion  of  the  state  court,  is  the  scope  and  meaning  of  the  statute.^ 

cc.  Findings  of  Fact  by  Referee. — Whenever  the  judgment  of  the  highest  court 
of  a  state  is  brought  here  for  the  re-examination  of  some  decision  of  a  federal 
question,  we  must  consider  the  question  as  it  comes  to  us  from  that  court.  Upon 
writs  of  error  to  the  courts  of  the  United  States,  we  cannot  be  called  upon  to 
decide  a  question,  whether  a  finding  of  fact  by  a  referee  should  be  set  aside  be- 
cause not  sustained  by  the  evidence,  because  the  finding  of  the  court  below  as 
to  facts  is  conclusive  upon  us.^ 

dd.  Findings  of  Court. — Where  a  jury  is  waived  at  the  trial,  and  the  court 
makes  a  finding  of  facts,  the  findings  of  fact  by  the  trial  court  and  by  the  su- 
preme court  of  the  state,  are  conclusive  upon  us.^ 


5.  Jacobson  v.  Massachusetts,  197  U.  S. 
11.    24,    49    L.    Ed.    643. 

6.  Findings  of  fact  by  referee. — Norris 
V.  Jackson,  9  Wall.  125.  127,  19  L.  Ed. 
608;  Insurance  Co.  v.  Sea,  21  Wall.  15S. 
1€0,  22  L.  Ed.  511;  Melendy  v.  Rice.  94 
U.    S.    796,    797,    24    L.    Ed.    143. 

In  Iowa  a  different  practice  pre- 
vaiis.  and  our  rule  has  been  so  far,  and 
only  so  far,  relaxed  as  to  permit  the  ap- 
pellate court  to  set  aside  a  judgment  of 
an  inferior  court,  because  against  the 
weight  of  the  evidence,  when  there  is  no 
ey-idence  whatever  to  support  it.  or  when 
there  is  such  an  absence  of  evidence  that 
ft  may  be  presumed  to  have  been  given 
through  the  influence  of  passion,  preju- 
dice, or  favor.  Rice  r.  Melendy.  41  Iowa 
400;  Wilson  v.  B.  &  M.  R.  Railroad  Co., 
33  Iowa  592;  Starker  v.  Leese  &  Mahone, 
33  Iowa  595;  Pearson  v.  Minturn.  18  Iowa 
37;  Bellamy  v.  Doud,  11  Iowa  255.  Me- 
lendy V.  Rice,  94  U.  S.  796,  798,  24  L.  Ed. 
143. 

Where  the  judgment  of  the  highest 
court  of  a  state  is  here  for  re-examination, 
the  federal  question,  which,  it  is  claimed, 
arises  in  the  record,  will  be  considered 
here  as  it  comes  from  that  court.  Where, 
therefore,  the  point  there  arising  was 
whether  the  evidence  in  the  record  sus- 
tained a  finding  of  fact  upon  which  the 
judgment  of  an  inferior  court  had  been 
entered,  and  the  appellate  court  was  per- 
mitted by  its  rules  to  set  aside  the  judg- 
ment as  against  the  weight  of  evidence 
only  where  there  was  no  evidence  to  sup- 
port it,  or  such  an  absence  of  evidence 
^at  it  mig+it  be  presumed  to  have  been 
given  through  the  influence  of  prejudice, 
passion,  or  favor,  this  court  will  not,  upon 
a  question  of  preponderance  of  testimony 
alone,  reverse  the  judgment  of  the  latter 
court.  So  held,  where  the  question  be- 
l«w  was.  whether  a  party,  when  he  pur- 
chased property,  had  reasonable  cause  to 
believe  that  his  vendor  was  insolvent,  and 
wa^  making  the  sale  in  fraud  of  the  bank- 
rupt law.  Melendy  v.  Rice,  94  U.  S.  796, 
24  L.   Ed.   143. 


TItc  only  federal  question  raised  in  the 
record  was  as  to  the  validity  of  contracts 
A  and  B,  with  reference  to  the  act  of 
congress  on  the  subject  of  trusts,  act  of 
July  2,  1890,  ch.  647,  26  Stat.  209.  It  was 
held,  that  if  facts  not  found  by  the 
referee  are  necessary  for  the  purpose  of 
connecting  those  contracts  with  otkers 
not  found  in  such  report,  the  supreme 
court  of  the  United  States  cannot  supply 
the  omission  to  find  those  facts.  Bement 
7'.  Nat.  Harrow  Co..  186  U.  S.  70,  83,  46 
L.    Ed.    1058. 

7.  Findings  of  court. — Republican  River 
Bridge  Co.  v.  Kansas  Pac.  R.  Co..  92  U. 
S.  315,  23  L.  Ed.  515;  Dower  v.  Richards, 
151  U.  S.  658,  672.  38  L.  Ed.  305;  Egan 
V.  Hart.  165  U.  S.  188,  41  L.  Ed.  680;  Hed- 
rick  V.  Atchison,  etc.,  R.  Co.,  167  U.  S. 
673,  677.  42  L.  Ed.  320;  Andrews  v.  East- 
ern Oregon  Land  Co.,.  203  U.  S.  127,  51 
L.  Ed.  119;  Thayer  v.  Spratt,  189  U.  S. 
346.  47  L.  Ed.  845;  Adams  v.  Church,  193 
U.  S.  510,  48  L.  Ed.  769;  Clipper  Min.  Co. 
V.  Eli  Min..  etc.,  Co.,  194  U.  S.  220,  48 
L.  Ed.  944;  Gulf,  etc.,  R.  Co.  v.  Texas, 
204  U.    S.   403,   411.   51   L.    Ed.    541. 

Where  a  case  is  tried  without  a  jary 
and  no  special  findings  of  fact  are  made, 
and  the  proceedings  in  the  trial  court 
have  been  approved  by  the  supreme  court 
of  the  state  without  any  opinion,  the  su- 
preme court  of  the  United  States  will  af- 
firm the  judgment,  if  there  be  evidence 
to  sustain  it,  although  there  may  be  other 
testimony  of  a  contradictory  nature. 
Gleason  v.  White,  199  U.  S.  54.  50  L. 
Ed.  87. 

On  writ  of  error  from  the  supreme 
court  of  the  United  States  to  the  su- 
preme court  of  a  state  to  review  its  judg- 
ment in  proceedings  to  collect  a  special 
assessment  to  improve  a  street,  ''the 
question  whether  the  benefit  accruing  to 
each  particular  piece  of  property  assessed 
equalled  the  sum  of  the  assessment 
placed  thereon  was  foreclosed  by  the 
findings  of  fact  of  the  trial  court,  _  to 
which  court  the  case  was  submitted  with- 
out the  intervention  of  a  jury."   Lombard 


APPEAL  AXD  ERROR. 


781 


ee.  Rule  In  Equity  Proceedings.— In  an  early  decision  by  this  court,  it  was 
said,  that  where  a  right  is  set  up  under  an  act  of  congress  in  a  state  court,  any 
matter  of  law  found  in  the  record,  decided  by  the  highest  court  of  the  state,  bear- 
ing on  the  right  so  set  up  under  the  act  of  congress,  can  be  re-examined  here. 
In  chancery  cases,  or  in  any  other  class  of  cases  where  all  the  evidence  becomes 
part  of  the  record  in  the  highest  court  of  the  state,  the  same  record  being  brought 
here,  this  court  can  review  the  decision  of  that  court  on  both  the  law  and  the  fact, 
so  far  as  may  be  necessary  to  determine  the  validity  of  the  right  so  set  up  under 
the  act  of  congress ;  but  in  cases  where  the  facts  are  submitted  to  a  jury,  and  are 
passed  upon  by  the  verdict,  in  a  common-law  action,  this  court  has  the  same  in- 
ability to  review  those  facts  in  a  case  coming  from  a  state  court,  that  it  has  in  a 
case  coming  from  a  circuit  court  of  the  United  States.  This  conclusiveness  of 
the  facts  found  extends  to  the  finding  by  a  state  court  to  whom  they  have  been 
submitted  by  waiving  a  jury  or  to  a  referee,  where  they  are  so  held  by  state 
laws,  as  well  as  to  the  verdict  of  a  jury.^  And,  in  a  more  recent  case,  the  point 
was  adverted  to  but  not  decided. »  But  the  rule  is  now  settled  as  follows:  Not 
only  the  very  nature  of  a  writ  of  error,  but  also  the  rulings  of  this  court  from 
the  beginning,  make  it  clear  that  on  error  to  a  state  court  in  a  chancery  case,  as 
in  a  case  at  law,  when  the  facts  are  found  by  the  court  below,  this  court  is  con- 
cluded by  such  finding.  1^ 

ff.  .Rule  Where  Court  Directs  a  Verdict. — If  the  court  below  finds  the  facts, 
we  are  bound  thereby,  but  if  the  court  below  did  not  find  the  facts,  but  instructs 
a  verdict  for  the  defendant,  being  of  the  opinion  that  upon  no  view  of  the  evi- 
dence was  there  a  case  made  which  would  have  justified  a  verdict  for  the  plain- 
tiff, this  raises  a  question  of  law,  which  is  this :  Was  the  evidence  such  as  would 
have  justified  the  jury,  under  any  reasonable  view  thereof,  to  find  for  the  plain- 
tiff; in  other  words,  was  there  sufficient  evidence  to  warrant  the  submission  of 
the  case  to  the  jury?  This  brings  us  to  consider  the  evidence,  in  order  to  as- 
certain what  inferences,  one  way  or  the  other,  might  reasonably  have  been  drawn 
by  the  jury  therefrom.^ ^ 


V.  West    Chicago,    181   U.    S.    33,   40.   45    L- 
Ed.    731. 

Although  the  supreme  court  of  a  state, 
without  any  evidence  before  it,  sets  aside 
the  findings  of  fact  made  by  the  trial 
court,  without  making  any  special  find- 
ings, such  judgment  will  not  be  reversed 
by  this  court,  wiiere  its  statement  of  what 
was  before  it  for  consideration  and  its 
conchisions  therefrom  are  sufficient  to 
sustain  the  judgment.  It  is  the  highest 
court  of  a  state  and  we  may  not  ignore 
its  recital  of  what  it  considered,  especially 
where  it  appears  that  testimony  was  in 
fact  taken,  although  the  record  fails  to 
show  how  the  facts  were  brought  to  its 
knowledge.  "And  when  its  conclusions 
are  in  harmony  with  the  general  rule  of 
the  effect  to  be  given  to  a  patent  of  the 
United  States,  we  are  not  justified  in  set- 
tin.GT  aside  the  judgment  upon  any  pre- 
sumption of  what  might  have  been  the 
testimony  upon  which  the  trial  court  made 
its  findings."  Andrews  v.  Eastern  Oregon 
Land   Co..  203  U.   S.   127.  .51    L.   Ed.   119. 

8.  Rule  in  equity  proceedings. — Merced 
Min.  Co.  7'.  Boggs,  3  Wall.  304,  18  L.  Ed. 
245;  Republican  River  Bridge  Co.  v.  Kan- 
^.^s  Pac.  R.  Co..  92  U.  S.  315,  316,  23  L- 
Ed.  515. 

9.  Ouppre,  as  to  the  extent  of  the  power 
of  this  court  upon  a  writ   of  error  to  the 


highest  court  of  a  state,  in  chancery  cases, 
to  review  its  judgment  upon  a  question 
of  fact?  Grand  Rapids,  etc.,  R.  Co.  v. 
Butler.   159  U.   S.  87,  40   L.   Ed.   85. 

10.  Egan  V.  Hart.  165  U.  S.  188,  189.  41 
L.  Ed.  680;  Bement  v.  Nat.  Harrow  Co., 
186  U.  S.  70,  83,  46  L.  Ed.  1058;  Dower  v. 
Richards,  151  U.  S.  658.  666,  38  L.  Ed. 
305;  Israel  v.  Arthur.  152  U.  S.  355.  38 
L.  Ed.  474;  Hedrick  v.  Atchison,  etc., 
R.  Co.,  167  U.  S.  673,  677.  42  L.  Ed.  320; 
Weltmer  v.  Bishop,  191  U.  S.  560.  561.  48 
L.  Ed.  302;  Hamburg,  etc..  Steamship 
Co.  V.  Lennan,  194  U.  S.  628.  48  L.  Ed. 
1167;  Milburn  Gin,  etc.,  Co.  v.  German 
Bank.  173  U.  S.  701,  43  L.  Ed.  11S5;  Den- 
nison  v.  Christian,  196  U.  S.  637.  49  L. 
Ed.  630. 

True  it  is  that  in  Dower  v.  Richards, 
151  U.  S.  658,  38  L.  Ed.  305,  the  court  (re- 
ferring to  the  dictum  in  Republican  River 
Bridge  Co.  v.  Kansas  Pac.  R.  Co.,  92  U. 
S.  315,  317,  23  L.  Ed.  515),  treated  as 
open  for  further  consideration  the  ques- 
tion whether  in  chancery  cases  the 
power  exi'^ted  in  this  court  to  review  the 
decision  of  state  courts  on  both  the  law 
and  the  fact.  Egan  v.  Hart,  165  IT  S. 
188.  ♦!'''>     41    T      TTH     c-r^ 

:i.  Rule  where  ccurt  (!|j:ects  a  verdict. 
— Rector  v.  Lil>  iJcp-s.i  Ewn*«:  <^o.,  liu^j  J. 
S.   405,   412,   420,   50   L.    Ed.   327. 


782  AFFEAL  AND  ERROR. 

(5)  Denial  of  Right  by  Municipal  Ordinance. — Where  a  writ  of  error  is  sued 
out  from  this  court  to  a  state  court,  our  jurisdiction  is  Hmited  to  tlie  question 
whether  the  plaintiff  in  error  has  been  denied  a  right  in  violation  of  the  constitu- 
tion, laws,  or  treaties  of  the  United  States.  But  where  the  federal  question  is 
that  the  appellant  has  been  denied  some  right  under  the  constitution  of  the  United 
States  by  the  ordinances  of  a  municipal  corporation  of  the  state,  this  court  will 
put  an  independent  construction  upon  such  ordinance.  ^^ 

(6)  Denial  of  Right  to  Remove  Causes. — Where  this  court  holds  that  a  case 
cannot  be  removed  under  §  641,  Rev.  Stat.,  from  the  state  court  into  the  circuit 
court,  it  will  not  pass  upon  the  merits  of  any  federal  question  which  may  arise 
in  the  case.^-^ 

V.  Affirnmncc,  Reversal  or  Dismissal — (1)  In  General. — Where  it  appears 
that  this  court  has  jurisdiction,  it  must  examine  the  judgment  so  far  as  to  enable 
it  to  decide  whether  this  claim  of  right  was  correctly  adjuMcated  by  the  state 
court.  If  it  finds  that  it  was  rightly  decided,  the  judgment  must  be  affirmed.  If 
it  was  erroneously  decided,  then  the  court  must  further  inquire  whether  there 
is  any  other  matter  or  issue  adjudged  by  the  state  court  sufficiently  broad  to 
maintain  the  judgment,  notwithstanding  the  error  in  the  decision  of  the  federal 
question.  If  this  be  found  to  be  the  case,  the  judgment  must  be  affirmed  with- 
out examination  into  the  soundness  of  the  decision  of  such  other  matter  or  issue. 
But  if  it  be  found  that  the  issue  raised  by  the  question  of  federal  law  must  con- 
trol the  whole  case,  or  that  there  has  been  no  decision  by  the  state  court  of  any 
other  matter  which  is  sufficient  of  itself  to  maintain  the  judgment,  then  this  court 
will  reverse  that  judgment,  and  will  either  render  such  judgment  here  as  the  state 
court  should  have  rendered,  or  will  remand  the  case  to  that  court  for  further  pro- 
ceedings, as  the  circumstances  of  the  case  may  require.^* 

(2)  Affirmance — aa.  In.  General. — In  a  writ  of  error  to  a  state  court,  where 
the  federal  questions  involved  in  the  case  were  correctly  decided  by  the  state  su- 
preme court,  the  settled  rule  of  this  court  is  that  the  judgment  must  be  affirmed 
without  determining  the  other  questions  not  of  a  federal  character. ^^  In  short, 
where  upon  a  writ  of  error  to  a  state  court,  this  court  can  find  no  error  in  the 
record  in  respect  of  any  question  of  a  federal  nature,  the  judgment  will  be  af- 
firmed.^^     If  this  court  finds  that  the  federal  questions  were  properly  decided  as 

12.  Denial  of  right  by  municipal  ordi-  jiidgment  brought  up  for  revision.  But 
nance. — Yick  Wo  v.  Hopkins,  118  U.  S.  undf-r  the  22d  section  of  the  judiciary  act, 
356,  30  L.   Ed.  220.  a    different    rule    prevails.       That     section 

13.  Denial  of  right  to  remove  causes.  provides,  in  effect,  that  iinal  judgments  in 
— Kentucky  v.  Powers,  201  U.  S.  1,  50  L.  a  circuit  court  brought  there  by  original 
Ed.   033.  process  may  be  re-examined,  and  reversed 

14.  Affirmance,  reversal  or  dismissal.  or  affirmed,  in  this  court,  upon  a  writ  of  er- 
— Murdock  v.  Memphis,  20  Wall.  .590,  22  ror;  and  where  the  cause  is  brought  into 
L.    Ed.   429.  this  court  upon  a  writ  of  error  issued  un- 

An    important    distinction    exists    in    re-  der   that   section,   and   all   the   proceedings 

spect   to   writs   of   error   issued   under   the  are   regular,  and   no   question  is   presented 

22d    section    of    the    judiciary    act,    from  in  the  record  for  revision,  it  follows  by  the 

those    issued    under    the    25th    section    of  express    words  of  the  section,  that  the  judg- 

the  same  act,  which  it  becomes  necessary  ment    of    the    court     must      be      affirmed, 

to  notice  in   this  connection.     In  order  to  Minor  v.  Tillotson,  1  How.  392,  11  L.  Ed. 

maintain  a  writ  of  error  to  this  court  froin  312;   Stevens  7'.   Gladding,   19   How.   64,  15 

a   state    court    within    the    25th    section    of  L.   Ed.   569;    Lathrop   z'.  Judson,    19   How. 

that  act,  it  must  appear  on  the  face  of  the  66,   15  L.   Ed.  553;  Suydam  v.  Williamson, 

record  that  some  one,  at  least,  of  the  ques-  20  How.   427,   15   L.   Ed.   978. 

tions    stated    in    that    section   did    arise    in  15.     Grounds    of    affirmance   in   general, 

the  state  court,  and  that  the  question  was  — Myrick  v.  Thompson,  99  U.   S.  291,  297, 

decided  in  the  state   court,  as  required   in  25  L.  Ed.  324,  citing  Murdock  v.  Memphis, 

the   section;   and  if  it   does   not  so   appear  20  Wall.  590,  22  L.  Ed.  429. 

in  the  record,  then  this  court  has  no  juris-  16.    Missouri,  etc.,  R.   Co.  v.  Haber,  169 

diction  of  the  case,  and  in  that  event  the  II.  S.  613,  42  L.  Ed.  878;  Laclede  Gaslight 

writ   of   error  must   be   dismissed,   as'  this  Co.   v.    Murphy,    170   U.    S.    78,    42    L.    Ed. 

court,  under   those   circumstances,   has   no  955;    Nutt    v.    Knut,    200    U.    S.    12,   22,    50 

power    either    to    reverse    or     affirm,     the  L.   Ed.  348;   Swope  v.  Leffingwell,   105  U. 


APPEAL  AND  ERROR. 


783 


U)  one  class  of  persons  affected  by  the  judgment,  we  must  sustain  that  part  of 
It.  although  we  come  to  that  conckision  for  a  different  reason  from  that  ex- 
pressed by  the  state  court,  and  one  upon  which  that  point  is  in  conflict  with  its 
opinion  but  not  with  its  judgment.''  So,  also,  on  a  writ  of  error  to  a  state  court, 
where  there  is  no  dispute  as  to  the  law  and  both  the  trial  court  and  the  supreme 
court  of  the  state  have  found  the  same  way  on  a  question  of  fact,  the  judgment 
will  be  affirmed. ^*^ 

bb._  Want  of  Substantiality  in  Claim.— Kxen  if  the  formal  raising  of  a  federal 
question  was  alone  considered  on  the  motion  to  dismiss,  and  therefore  the  un- 
substantial nature  of  the  federal  question  for  the  purposes  of  the  motion  to 
dismiss  were  to  be  put  out  of  view,  the  judgment  below  would  have  to  be  af- 
firmed. This  follows,  since  it  is  plain  that  as  the  substantiality  of  the  claim  of 
federal  right  is  the  matter  upon  which  the  merits  depend,  and  that  claim  being 
without  any  substantial  foundation,  the  motion  to  affirm  would  have  to  be 
granted.'^ 

cc.  Moot  Cases. — Where  the  supreme  court  of  the  state  to  which  a  writ  of 
error  is  directed  under  the  25th  section  of  the  judiciary  act  has  not  considered 
the  question,  as,  for  example,  where  the  record  satisfies  the  court  that  it  is  a 
moot  case,  made  up  to  obtain  the  opinion  of  this  court  on  a  constitutional  ques- 
tion without  the  existence  of  the  facts  necessary  to  raise  that  question,  this  court 
will  not  feel  at  liberty  to  go  out  of  its  usual  course  to  decide  it.2«  If  the  final 
ruling  of  a  state  court  at  the  trial  is  based  upon  a  state  of  facts  which  puts  a 
statute  which  it  is  insisted  is  in  conflict  with  the  federal  constitution,  entirely 
out  of  the  case,  the  supreme  court  of  the  United  States  is  not  called  upon  to  con- 
sider any  expression  of  opinion  concerning  the  validity  of  the  statute,  for  such 
expression  is  not  necessary  for  the  decision.  Moot  questions  require  no 
answer. 21 

dd.  Division  of  Opinion  in  State  Court. — Where  the  highest  court  of  a  state 
affirmed  the  judgment  of  the  court  below,  in  consequence  of  an  equal  division 
between  the  judges  thereof,  such  judgment  of  affirmance  is  considered,  when  the 


S.  3,  26  L.  Ed.  939;  Plant  v.  Stovall,  154 
U.   S.   584,  20   L.    Ed.  538. 

"Although  no  right,  title,  privilege  or 
immunity  was  specially  set  up  or  claimed 
at  the  proper  time  ?nd  in  the  proper  way, 
and  no  federal  question  was  passed  upon 
by  the  state  courts  or  raised,  except  by 
the  general  averment  in  the  petition  for 
rehearing  that  the  indictment  was  so  de- 
fective that  it,  or  the  statute  which  au- 
thorized it,  contravened  the  constitution, 
yet,  as  ftill  argument  was  permitted  at 
the  bar.  upon  the  assumption  that  the 
writ  of  error  was  providently  issued,  we 
will  instead  of  dismissing  the  writ,  affirm 
the  judgment."  Leeper  z'.  Texas.  139  U. 
S.   462,  468,  35   L.   Ed.   225. 

Where  upon  a  writ  of  error  to  a  state 
court,  this  court  concurs  with  the  state 
court  in  the  view  that  was  taken,  this 
court  will  not  retain  the  case  for  further 
p.rgument,  but  the  judgment  will  be  af- 
fnaied.  Pichardscn  v.  Louisville,  etc.,  R. 
Co.,  169  U.  S.  128,  42  L.  Ed.  687,  citing 
Chanute  City  v.  Trader,  132  U.  S.  210.  32 
L.    Ed.   345. 

17.  Bank  of  Commerce  Z'.  Tennessee, 
163    U.    S.   416,    41    L.    Ed.   211. 

18.  Lammers  v.  Nissen.  154  U.  S.  650, 
25  L.    Ed.    562. 

19.  Want  rf  substantiality  in  cHi-n. — 
Equitable       Life      Assurance      Society     z'. 


Brown,  187  U.  vS.  308.  314,  47  L.  Ed.  190, 
reaffirmed  in  Chicago,  etc.,  R.  Co.  v. 
Newell,  198  U.  S.  579.  49  L.  Ed.  1171,  fol- 
lowing Chanute  City  t'.  Trader,  132  U.  S. 
210,  32  L.  Ed.  345;  Richardson  z'.  Louis- 
ville, etc.,  R.  Co.,  169  U.  S.  128.  42  L.  Ed. 
6S7;  Blythe  v.  Hinckley,  180  U.  S.  333, 
338.   45   L.    Ed.   557. 

20.  Moot  cases. — gartemeyer  v.  Iowa. 
18  Wall.   129.  21   L.   Ed.  929. 

21.  Missouri,  etc.,  R.  Co.  v.  Ferris, 
179    U.    S.    602,    45    L.    Ed.    337. 

The  act  of  the  Texas  legislature  of 
April  22.  1897,  makes  the  statutory  pro- 
vision for  ex  parte  depositions,  to  the  ef- 
fect that  reTusal  to  answer  shall  be 
deemed  an  admission,  inapplicable  to  cases 
where  either  party  to  any  suit  is  a  cor- 
poration. The  Texas  court  in  the  first  in- 
stance expressed  an  opinion  that  the  act 
v.-as  constitutional,  yet  its  final  ruling  was 
based  upon  the  fact  that  there  was  no 
such  refusal  as  would  entitle  the  defend- 
ant to  have  the  interrogatories  taken  as 
confessed  if  the  general  statutory  pro- 
vision itself  were  applicable  to  the  case. 
It  was  held,  that  no  federal  question  re- 
mained for  the  consideration  of  the  su- 
preme court  of  the  United  States  on  writ 
of  error  to  the  state  court.  Missouri,  etc., 
R.    Co.  v.   Ferris,   179  U.  S.  602.  45  L.   Ed. 


784 


APPEAL  AND  ERROR. 


case  is  brought  here  under  the  twenty-fifth  section  of  the  judiciary  act,  as  an  af- 
firmance of  the  ruHngs  of  the  court  below. ^^ 

ee.  Uniting  Motion  to  Affirm  zvitJi  Motion  to  Dismiss. — Rule  6,  §  5,  of  this 
court  provides,  "that  there  may  be  united  with  a  motion  to  dismiss  a  writ  of  error 
to  a  state  court  a  motion  to  affirm,  on  the  ground  that,  although  the  record  may 
show  that  this  court  has  jurisdiction,  it  is  manifest  the  writ  was  taken  for  delay 
only,  or  that  the  question  on  which  the  jurisdiction  depends  is  so  frivolous  as 
not  to  need  further  argument. "^3  But  if  a  party  desires  to  obtain  an  affirmance 
under  the  operation  of  this  rule,  his  motion  must  be  to  affirm  as  well  as  to  dis- 
miss,2-*  and  of  this  the  plaintiff'  in  error  must  have  the  requisite  notice,  so  that 
he  may  resist  if  he  chooses.-^ 


22.  Division  of  opinion   in   state   court. 

— Lessieur    v.    Price,    12    How.    59,    13    L- 
Ed.    893. 

23.  Uniting  motion  to  affirm  with  mo- 
tion to  dismiss. — Force  v.  McVeigh,  131 
U.  S.  appx.  cxHi.  23  L.  Ed.  1010;  Foster 
V.  Kansas,  112  U.  S.  201.  206,  28  L.  Ed. 
«29. 

Where  a  federal  question  is  presented 
by  the  record,  but  it  is  so  frivolous  as  to 
make  it  manifest  that  the  writ  was  taken 
for  delay  merely,  the  motion  to  dismiss 
for  want  of  jurisdiction  will  be  overruled, 
but  the  motion  to  affirm  under  Rule  6.  as 
amended  May  8,  1876.  will  be  granted. 
Ruckman  v.  Bergholz.  131  U.  S.  appx. 
cxliii,  23  L.  Ed.  1008. 

A  motion  to  affirm  the  judgment  of  a 
sta-te  court  should  be  granted  by  the  su- 
preme court  of  the  United  States  where 
the  assignments  of  error  are  frivolous  and 
the  court  convinced  thrt  the  writ  was 
taken  only  for  delay.  This  is  the  ground 
for  the  dismissal  in  Chanute  City  z\ 
Trader,  132  U.  S.  210,  214,  32  L.  Ed.  345; 
jMid  Richardson  v.  Louisville,  etc.,  R.  Co., 
169  U.  S.  128,  132,  4S  L.  Ed.  687;  Blythe 
V.  Hmckley,  IPO  U.  S.  333.  45  L.  Ed.  557, 
reaffirmed  in  Dennison  v.  Christian,  196 
U.   S.   637.  49   L.   Ed.   630. 

In  an  action  in  a  state  court  by  a  real 
estate  broker  tn  recover  commis'^ions  on 
sales  of  land,  the  -^-xclusion  of  evidence 
that  he  had  not  paid  the  tax  or  received 
the  license  required  by  the  statutes  of 
the  United  States,  when  propei-h^  ex- 
cepted to,  raises  a  federal  question;  but 
in  this  case  the  question  was  frivolous, 
and  manifestly  tai-en  for  delay.  Ruckman 
V.  Ber-^holz,  131  U.  S.  appx.  cxliii,  23  L. 
Ed.  1008. 

Tn  a  writ  of  error  to  a  state  court,  al- 
thors:h  a  federal  question  was  presented 
by  the  record,  vet  if  it  is  so  frivol'^us  as 
to  make  it  manifest  that  the  writ  of  error 
was  taken  for  delay  merely,  the  motion 
to  dismiss  for  want  of  jurisdiction  will 
be  overruled,  but  the  motion  to  affirm 
under  Rule  6,  as  ?mended  May  8,  1876, 
will  be  f^ranted.  Rrrkman  v.  Bergholz. 
131  U.  S.  appx.  cxliii.  23  L.  Ed.  1008, 
fallowed  in  Foree  7'.  McVeigh,  131  U.  S. 
appx.   cxlii,   23    L.   Fd.   1010. 

"So  far  as  we  can  discover  from  the 
record,  the  only  federal  question  involved 


in  this  case  was  decided  at  the  present 
term  in  Windsor  v.  McVeigh,  93  U.  S. 
274,  23  L.  Ed.  914,  and  if  there  had  been 
united  with  the  motioH  to  dismiss  a  mo- 
tion to  affirm,  we  should,  as  at  present  ad- 
vised, have  been  inclined  to  enter  a  judg- 
ment of  affirmance.  The  only  motion 
made,  however,  is  one  to  di'^miss,  and 
that  is  the  only  motion  of  which  the  plain- 
tiff in  error  has  had  notice.  He  has  never 
been  called  upon  te  meet  a  motion  to  af- 
firm." Foree  v.  McVeigh,  131  U.  S.  appx. 
cxlii,   23    L.    Ed.    1010. 

Motions  for  allowance  of  writ  of  error. 
— "When,  under  §  5  of  our  Rule  6,  a  mo- 
tion to  affirm  is  united  with  a  motion  to 
dismiss  for  want  of  jurisdiction,  the  prac- 
tice has  been  to  grant  the  motion  to  affirm 
when  'the  question  on  which  our  jurisdic- 
tion depends  was  so  manifestly  decided 
right,  that  the  case  ought  not  to  be  held 
for  further  argument.'  Arrowsmith  v. 
Harmrning,  118  U.  S.  194,  195,  30  L.  Ed. 
243;  Church  7-.  Kelsey,  121  U.  S.  282,  30 
L.  Ed.  960.  The  propriety  of  adopting  a 
similar  rule  upon  motions  in  open  court 
for  the  allowance  of  a  writ  of  error  is 
apparent,  for  certainly  we  would  not  be 
justified  as  a  court  in  sending  out  a  writ 
to  bring  up  for  review  a  judgment  of  the 
highest  court  of  a  state,  when  it  is  appar- 
ent on  the  face  of  the  record  that  our  duty 
would  be  to  grant  a  motion  to  affirm  as 
scon  as  it  was  made  in  proper  form." 
Spies  7'.  Illinois.  123  U.  S.  131.  164,  31  L. 
Ed.  80. 

Amendment  by  motion  to  affirm. — 
Where  it  appears  that  the  writ  of  error 
was  sued  out  only  for  delay,  or  that  the 
question  on  which  the  jurisdiction  depends 
is  so  frivolous  as  not  to  need  further  ar- 
gument, but  no  motion  to  affirm  is  united 
with  the  motion  to  dismiss,  the  further 
hearing  of  the  motion  to  dismiss  will  be. 
postponed,  with  leave  to  the  defendant 
in  error  to  amend  by  adding  a  motion  t© 
affirm  becj'use  the  question  involved  has 
been  already  decided  and  no  further  argu- 
ment is  necessary.  Foree  7'.  McVeigh, 
131  U.  S.    appx.  cxlii,  23  L.  Ed.  1010. 

24.  Foree  v.  McVeigh.  131  U.  S.  appx. 
cxlii,   23   L.    Ed.   1010. 

25.  Foree  v.  McVeigh,  131  U.  S.  appx. 
cxHi.  23  L.  Ed.  1010. 


APPEAL  AND  ERROR. 


785 


Necessity  for  Color  to  Dismiss.— In  order  for  the  appellate  court  to  affirm 
the  judgment  on  motion,  the  record  must  show  some  color  for  the  motion  to 
dismiss. 2«     There  is  sufficient  color  for  a  motion  to  dismiss  the  writ  of  error  to 


26.  Abbott  V.  Tacoma  Bank  of  Com- 
merce, 175  U.  S.  409.  44  L.  Ed.  217;  Texas, 
etc.,  R.  Co.  V.  Southern  Pac.  Co.,  137  U. 
S.  48.  34  L.  Ed.  614;  Douglas  v.  Wallace, 
161   U.   S.   346,  40    L.   Ed.   727. 

Where  there  is  color  for  a  motion  to 
dismiss,  on  the  ground  that  no  federal 
question  is  involved — the  case  may  prop- 
erly be  disposed  of  on  a  motion  to  affirm. 
St.  Louis  Min.  Co.  v.  Montana  Min.  Co., 
171  U.  S.  654,  42  L.  Ed.  320;  Southern  R. 
Co.  V.  Carson.  194  U.  S.  136.  137.  48  L- 
Ed.  907. 

There  is  color  for  a  motion  to  dismiss 
a  writ  of  error  to  a  state  court  predicated 
upon  a  denial  of  the  existence  of  a  federal 
question  so  presented  as  to  be  available, 
where  it  does  not  appear  that  any  such 
question  was  raised  in  the  state  court. 
Sugg  z:  Thornton,  132  U.  S.  524,  32  L.  Ed. 
447. 

Where  a  writ  of  error  is  sued  out  to 
the  supreme  court  of  Tennessee  on  the 
ground  that  the  statute  of  that  state  pro- 
viding that  no  more  than  two  new  trials 
shall  be  granted  to  any  party  in  an  action 
at  law;  or  upon  the  trial  by  jury  of  an  is- 
sue of  fact  in  equitj-,  is  repugnant  to  the 
14th  amendment  of  the  constitution,  and 
a  motion  is  made  to  dismiss  the  writ  of 
error  and  with  it  is  united  a  motion  to 
affirm  the  judgment,  it  was  held,  that 
there  was  clearly  color  for  the  motion  to 
dismiss,  and  ordinarily  the  case  mav  be 
disposed  of  upon  a  motion  to  affirm. 
Louisville,  etc.,  R.  Co.  v.  Woodson.  134 
U.  S.   614.   33    L.   Ed.   1032. 

In  East  Tennessee,  etc.,  R.  Co.  v.  Fra- 
zier,  139  U.  S.  288.  35  L.  Ed.  196,  the  facts 
were  that  upon  the  pleadings  no  federal 
question  was  presented.  Not  onlj'  that, 
but  in  the  assignment  of  error,  which  was 
made  when  the  case  was  taken  to  the  su- 
preme court  of  the  state,  no  reference 
was  made  to  any  federal  question;  and 
the  unconstitutionality  of  the  act  was 
rested  solely  upon  the  supposed  conflict 
with  the  state  constitution.  "When  on 
October  26,  1889,  the  decree  of  the  su- 
preme court  of  the  state  was  entered,  af- 
firming the  ruling  of  the  chancellor  as  to 
the  liability  of  the  property,  the  points 
decided  were  specifically  stated  in  it,  and 
in  them  no  reference  is  made  to  any  fed- 
eral question.  Two  days  thereafter  an 
entry  appears  on  the  records  of  that  court, 
stating  that  upon  application  of  counsel 
for  the  railway  company,  the  decree  is 
modified  so  as  to  show  that  upon  the  ar- 
gument of  the  case  the  question  of  the  in- 
validity of  the  act  of  1877,  by  reason  of 
the  inhibition  of  the  federal  constitution, 
was  presented  by  counsel,  and  that  the 
decision  of  the  court  was  adverse  to  st'-^h 
contention.      Upon    these    facts,    we    think 

1  U  S  Enc-50 


there  was  color  for  the  motion  to  dis- 
miss. The  pleadings  in  the  trial  court, 
the  assignment  of  error,  the  opinion  of 
the  supreme  court  and  the  original  decree 
of  that  court,  contain  no  reference  to  any 
federal  question.  The  invalidity  of  the 
act  of  1877,  in  all  these  proceedings,  is 
placed  upon  a  supposed  conflict  with  the 
state  constitution.  Obviously  that  was 
the  substantial  matter  litigated.  The  fact 
that  two  days  after  the  decision  the  pres- 
entation of  a  federal  question  was  recog- 
nized by  the  supreme  court,  is  not  to  be 
taken  as  a  declaration  that  the  federal 
question  was  a  principal  one — one  which 
it  had  theretofore  ignored — but  rather  im- 
plies that  it  was  a  subordinate  and  inci- 
dental matter,  which  though  noticed  by 
counsel  was  not  made  the  stress  of  the 
argument  or  the  burden  of  the  complaint." 

In  an  action  in  a  state  court  to  recover 
damages  for  a  libel,  alleged  to  have  been 
contained  in  the  pleadings  of  defendants 
in  error,  the  trial  court  dismissed  the  ac- 
tion, and  the  judgment  was  affirmed  by 
the  highest  state  court,  and  from  thence 
brought  here  by  writ  of  error.  A  motion 
was  made  to  dismiss  the  action  or  affirm 
the  judgment  of  the  lower  court.  Held, 
that  there  being  color  for  the  motion 
of  dismissal,  the  motion  to  affirm  should 
be  considered,  and  as  the  judgment  of  the 
court  of  last  resort  in  the  state  did  not 
deprive  plaintiff  of  any  right,  privilege  or 
immunity  secured  to  him  by  the  consti- 
tution or  laws  of  the  United  States,  it 
should  be  affirmed.  Abbott  v.  Tacoma 
Bank  of  Commerce,  175  U.  S.  409,  44 
L.  Ed.  217. 

Denial  of  right  under  national  bank  act. 
— Where  a  writ  of  error  is  sued  out  to 
this  court  to  review  the  judgment  of  a 
state  court  deciding  as  to  whether  under 
the  statutes  of  the  United  States  in  re- 
spect to  national  banks,  it  is  within  its 
power  to  become  the  agent  of  the  defend- 
ant in  error  to  sell  certain  notes  to  a 
third  person;  and  not  within  the  power 
of  its  cashier,  to  conduct  any  transaction 
to  bind  the  bank  by  such  contract  of 
agency,  and  the  defendant  in  error  moves 
to  dismiss  the  writ  of  error,  or,  if  that 
motion  is  not  sustained,  that  the  judg- 
ment be  affirmed,  a  contention  that  the 
judgment  of  the  state  court  rests  on 
two  grounds,  one  of  which,  broad  enough 
in  itself  to  sustain  the  judgment,  involves 
no  federal  question,  is  so  justified  as  to 
give  color  to  the  motion,  so  that  this 
court  has  authority  to  pass  on  the  motion 
to  affirm.  First  Nat.  Bank  v.  Anderson, 
17''   U.   S.  573.  43   L.  Ed.  558. 

Removal  of  cases. — The  action  of  a 
circuit  court  in  remanding  a  cause  after 
its  removal  on  the  first  application  is  not 


/85 


APPEAL  AND  ERROR. 


3.  state  court  on  the  ground  that  a  receiver  appointed  by  a  federal  court  has 
been  sued  without  previous  leave  of  such  court  in  contravention  of  the  federal 
statute,  to  enable  us  to  dispose  of  the  motion  to  affirm.^^ 

Rule  Qualified. — Even  where  the  motion  to  dismiss  is  denied,  and  where 
such  motion  should  be  treated  as  without  color,  considering  alone  the  formal 
making  of  such  question,  yet  notwithstanding  the  provisions  of  subdivision  5  of 
rule  6,  the  power  to  consider  and  sustain  a  motion  to  affirm  obtains  where  the 
assignments  of  error  on  the  merits  are  obviously  and  unquestionably  frivolous, 
or  when  it  is  patent  that  the  writ  of  error  has  been  prosecuted  for  mere  delay, 
or  where  it  is  evident  on  the  face  of  the  record  that  the  question  on  the  merits 
is  not  open  to  possible  contention  because  it  has  previously  been  so  specifically 
and  adversely  ruled  on  by  the  court  as  to  absolutely  foreclose  further  conten^^ 
lion  on  the  subject. ^^  Where  there  was  a  motion  to  dismiss  a  writ  of  error  to  a 
state  court  for  want  of  jurisdiction,  to  which  was  united  a  motion  to  affirm,  al- 
though this  court  may  be  in  doubt  whether  under  our  rules  there  is  sufficient 
color  for  the  motion  to  dismiss,  to  justify  the  court  in  considering  a  motion  to 
affirm,  yet  where  the  supreme  court  of  the  state  does  not  seem  to  have  expressly 
l)assecl  upon  the  federal  question,  although  it  is  clearly  in  the  record,  we  may 
'consider  that  there  was  color  for  making  the  motion  to  dismiss. ^^ 

ff.  Damages  Azcarded  for  Frivolous  Appeal. — Where  it  appears  that  the  writ 
of  error  could  have  been  prosecuted  only  for  delay,  the  judgment  will  be  affirmed 
with  ten  per  cent,  damages.-*^*^' 

(3)  Reversal — aa.  In  General. — Where  the  judgment  of  the  state  court  may 
be  sustained  on  error,  on  any  ground  within  the  exclusive  cognizance  of  that 
court,  this  court  will  not  reverse  such  judgment  merely  because  some  point  which 
can  be  examined  here,  was  erroneously  ruled.^^  The  fact  that  a  state  statute 
enacted  subsequently  to  the  rendition  of  the  judgment  under  review,  had  the 
effect  of  taking  away  the  power  of  the  state  to  enforce  such  judgment,  will  not 


open  to  revision  on  writ  of  error  from 
this  court  to  a  state  court.  Missouri  Pac. 
R.  Co.  V.  Fitzgerald,  160  U.  S.  556,  40  L. 
Ed.  536.  And  if  the  state  court  did  not 
err  in  denying  the  second  application,  the 
motion  to  afifirm  must  be  sustained,  as 
the  effect  of  the  remanding  order  gives 
color  for  the  motion  to  dismiss.  Whit- 
comb  V.  Smithson,  175  U.  S.  635,  637,  44 
L.  Ed.  303. 

Constitutionality  of  statutes  compelling 
removal  cf  grade  crossings. — Where  a 
writ  of  error  is  sued  out  to  review  a  de- 
cision of  a  state  court  sustaining  the  con- 
stitutionality of  laws  compelling  the  re- 
moval of  grade  crossings  on  railroads, 
and  a  motion  to  dismiss  the  writ  of  error 
for  want  of  jurisdiction  is  made,  and  with 
it  is  united  a  motion  to  affirm  on  the 
ground  that  although  the  record  may 
show  that  this  court  has  jurisdiction,  it 
is  manifest  "that  the  writ  or  appeal  was 
taken  for  delay  only,  or  that  the  question 
on  which  the  jurisdiction  depends  is  so 
frivolous  as  not  to  need  further  argu- 
ment." this  court  held,  that  as  that  juris- 
diction rests  on  so  narrow  a  foundation, 
becarse  of  the  repeated  decisions  hold- 
ing it  to  be  within  the  exercise  of  the 
police  power  of  the  state  to  abolish  grade 
crossings,  that  there  was  sufficient  color 
for  the  motion  to  dismiss  to  justify  the 
disposal  of  the  case  on  motion  to  affirm. 
New  York,  etc.,  R.   Co.  v.   Bristol,  151  U. 


S.  556,  38  L.  Ed.  269.  followed  in  Con- 
necticut V.  Woodruff,  153  U.  S.  689,  38  L. 
Ed.  869.  See  Wheeler  v.  New  York,  etc., 
Co..    178    U.    S.    321,    324,    44    L.    Ed.    1085. 

27.  McNulta  v.  Lochridge,  141  U.  S. 
327.  35  L.   Ed.  796. 

28.  Chanute  City  v.  Trader,  132  U.  S- 
210,  32  L.  Ed.  345;  Richardson  v.  Louis- 
ville, etc.,  R.  Co.,  169  U.  S.  128,  42  L.  Ed. 
687;  Blythe  v.  Hinckley,  180  U.  S.  333, 
338,  45  L.  Ed.  557;  Equitable  Life  As- 
surance Society  v.  Brown.  187  U.  S.  308, 
311,  47  L.  Ed.  190.  reaffirmed  in  Chicago, 
etc.,  R.  Co.  V.  Newell.  198  U.  S.  579,  49 
L.    Ed.   1171. 

29.  Bell's  Gap  R.  Co.  v.  Pennsylvania, 
134  U.   S.  232,  33   L.    Ed.  892. 

30.  Damages  awarded  for  frivolous  ap- 
peal.— "The  court  refused  to  dismiss,  for 
want  of  jurisdiction,  a  case  brought  here 
as  within  the  25th  section  of  the  judiciary 
act,  when  they  could  see  a  federal  ques-, 
tion  raised  under  it,  though  raised  some- 
what obscurely;  and  though  they  had  "a 
very  clear  conviction"  that  the  decision 
of  the  state  court  was  correct,  so  clear 
indeed  that  as  it  finally  turned  out  (see 
infra,  next  case)  they  affirmed  it  with  10 
per  cent,  damages,  because  any  writ  of 
error  could  have  been  prosecuted  only  for 
delay."  Pennywit  v.  Eaton,  15  Wall.  380, 
21    L.    Ed.    72. 

31.  In  general. — Erwin  v.  Lowry,  7 
How.  172,  12  L.  Ed.  655. 


APPEAL  AXD  ERROR. 


7%7 


give  this  court  jurisdiction  to  reverse  the  judgment  of  the  highest  court  of  a  state 
independently  of  the  federal  questions  involved,  or  in  other  words  without  pass- 
ing on  the  federal  question.  "It  is  our  duty  to  decide  the  federal  question  upon 
which  the  writ  of  error  was  prosecuted,  and  leave  open  the  purely  local  ques- 
tion, which  has  arisen  since  the  decision  by  the  lower  court. "^2 

bb.  Harmless  Error.— It  has  been  the  uniform  doctrine  of  this  court  that, 
where  it  appears  that  the  judgment  of  the  state  court  must  be  aflfirmed  on  other 
grounds  disclosed  in  the  record,  it  will  not  be  reversed  for  an  erroneous  ruling 
of  the  state  court  on  a  federal  question  not  necessary  to  the  decision  of  the 
cause.-^-^  In  other  words,  where  the  case  is  brought  here  by  a  writ  of  error  to  a 
state  court  for  re-examination,  the  court  is  not  inclined  to  reverse  the  judgment 
unless  there  is  some  substantial  error  to  the  prejudice  of  the  complaining  party, 
and  especially  not  where  it  appears  that  the  error  has  become  immaterial  and 
that  the  same  party  will  be  entitled  to  judgment  if  a  new  trial  is  granted.-"^-* 

(4)  Dismissal — aa.  Grounds  for  Dismissal — aaa.  Want  of  Jurisdiction. — 
Where  the  record  in  the  court  below  does  not  show  that  any  federal  question 
was  presented  by  the  pleadings,  or  decided  by  the  state  court,  the  writ  will  be  dis- 
missed for  want  of  jurisdiction.-^-^  g^f  ^  motion  to  dismiss  a  writ  of  error  to  a 
st£te  court  from  the  supreme  court  of  the  United  States,  for  lack  of  jurisdiction, 
must  be  denied  where  a  federal  question  is  duly  raised,  although  the  claim  may 
not  be  well  founded. -^^ 

bbb.  When  State  Court  Proceeds  on  Non-Federal  Grounds. — When  we  find  it 
unnecessary  to  decide  any  federal  question,  and  when  the  state  court  has  based  its 
decision  on  a  local  or  state  question,  our  logical  course  is  to  dismiss  the  writ  of 
^rror.^'^ 


32.  Campbell  r.  California,  200  U.  S. 
87,  50  L.  Ed.  :!:S2. 

33.  Harmless  error. — Murdock  v.  Mem- 
phis, iO  Wall.  .5'!0.  6?A.  22  L.  Ed.  429;  Jen- 
kins V.  Loewenthal,  110  U.  S.  222,  28  L. 
Ed.  129;  Erwin  v.  Lowry.  7  How.  172. 
12  L.  Ed.  655;  Gibson  v.  Chouteau.  8 
Wall.  .314,  19  L.  Ed.  317;  Crescent  City 
Live-Stock  Co.  v.  Butchers'  Union 
Slaughter-House  Co..  120  U.  S.  141,  156, 
30    L.    Ed.    614. 

34.  Pugh  V.  McCormick,  14  Wall.  361, 
374,  20  L.   Ed.  789. 

Where  on  a  writ  of  error  to  the  high 
est  court  of  the  state,  it  appears  that  the 
only  question  m  the  case  was  whether 
as  a  matter  of  fact,  when  the  plaintiff  in 
error  purchased  from  the  United  States 
lot  No.  so  and  so.  Dakota  land  district, 
there  was  in  front  and  outside  of  the  me- 
andered line  of  the  lot  any  land  that  could 
be  cultivated  or  that  bore  trees  of  value 
or  grass  sufficient  for  grazing  purposes. 
and  the  district  court  of  a  county  in  the 
state  found  that  there  was  such  land  and 
this  finding  was  affirmed  by  the  supreme 
court  of  the  state  on  appeal,  and  there 
was  no  dispute  between  the  parties  as  to 
the  law,  this  court  will  not  disturb  the 
judgment  of  the  state  court  unless  the 
error  is  clear.  The  court  said:  "No  less 
stringent  rule  should  be  applied  in  cases 
of  this  kind  than  that  which  formerly 
governed  in  admiralty  appeals,  when  two 
courts  had  found  in  the  same  way,  on  a 
ouestion  of  fact."  Lammers  z'.  Nissen, 
154    U.    S.    650,    25    L.    Ed.    562. 

35.  Want    of    jurisdiction. — Warfield    v. 


Chaffe.  91  U.  S.  690.  23  L.  Ed.  383;  Allen 
v.  Tarlton.  154  U.  S.  596.  21  L.  Ed.  955. 

Where  the  record  does  not  show  thnt 
a  federal  question  was  presented  to  the 
supreme  court  of  the  state  for  determ  - 
nation,  or  that  it  was  decided,  or  that  its 
decision  was  in  any  manner  necessary  to 
the  judgment  as  rendered,  a  motion  to 
dismiss  the  cause  for  want  of  jurisdiction 
will  be  granted.  Bergner  v.  Palethorp, 
131   U.  S.  appx.  ccviii. 

The  court  reiterates  the  proposition 
that  unless  it  can  be  seen  from  the  record 
that  a  state  court  decided  the  question 
relied  on  to  give  this  court  jurisdiction, 
the  writ  of  error  will  be  dismissed.  Cock- 
roft  T'.  Vose,  14  Wall.  5,  20  L.   Ed.  875. 

Where  the  record  shows  that  no  ques- 
tion under  the  25th  section  of  the  judi- 
ciary act  was  passed  upon  by  the  state 
court,  no  ground  appears  of  jurisdiction 
in  this  court  over  the  judgment,  and  the 
writ  of  error  must  be  dismissed  for  want 
of  jurisdiction.  Davidson  v.  Starcher,  154 
U.    S..  app.x..   .566,   19    L.    Ed.    52. 

36.  Blythe  z>.  Hinckley,  180  U.  S.  33a, 
45  L.  Ed.  557,  reaffirmed  in  Dennison  v. 
Christian,    196   U.    S.   637.   49   L.    Ed.   630. 

37.  When  state  court  proceeds  on  non- 
federal grounds.  —  St.  Louis,  etc.,  R. 
Co.  V.  Merriam,  156  U.  S.  478,  39  L. 
Ed.  502;  Hamblin  v.  Western  Land  Co., 
147  U.  S.  531,  37  L.  Ed.  267;  Ca'^tillo  v. 
McConnico.  168  U.  S.  674,  42  L.  Ed.  622; 
White  V.  Leovy,  174  U.  S.  91,  96,  43  L. 
Ed.  907;  Remington  Paper  Co.  v.  Wat- 
son. 173  U.  S.  443.  451.  452,  43  L.  Ed  762, 
reaffirmed  in   Delahanty  z'.   Pitkin,   193   U. 


788 


APPEAL  AND  ERROR. 


ccc.  Frivolous  Appeals. — Where  the  question  is  not  of  the  vaHdity  but  of  the  ex- 
istence of  an  authority,  and  we  are  satisfied  that  there  was  and  could  have  been 
no  decision  by  the  state  court  against  any  authority  of  the  United  States,  the  writ 
of  error  will  be  dismissed  as  frivolous.^*  If  the  federal  questions  involved  are 
frivolous  and  undeserving  of  notice,  the  appeal  may  be  dismissed.^^  A  writ  of 
error  to  a  state  court  will  be  dismissed  where  there  is  nothing  to  sustain  it  ex- 
cept a  contention  of  a  federal  right  for  which  there  is  no  color.  As,  for  example, 
where  a  husband  has  appeared  and  been  heard  in  a  proceeding  for  alimony,  there 
is  no  color  for  a  contention  that  he  is  deprived  of  his  property  without  due  proc- 
ess of  law.'**^  Although  the  brief  of  counsel  alleges  that  certain  federal  questions 
were  duly  raised  and  so  disposed  of  as  to  sustain  the  jurisdiction  of  this  court, 
yet  if  these  questions  were  wholly  without  merit  or  were  no  longer 
open  by  reason  of  our  previous  decisions,  the  writ  of  error  will  be 
aismissed.*^ 

ddd.  Want  of  Substantiality  in  Claim. — Although  in  considering  a  motion  to 
dismiss,  it  be  found  that  a  question  adequate,  abstractly  considered,  to  confer 
jurisdiction  was  raised,  if  it  likewise  appear  that  such  question  is  wholly  formal, 
is  so  absolutely  devoid  of  merit  as  to  be  frivolous,  or  has  been  so  explicitly  fore- 


S.  602,  50  L.  Ed.  328;  Archer  v.  Baltimore 
Building  &  Loan  Ass'n,  179  U.  S.  679,  45 
L.  Ed.  383;  Winter  v.  Montgomery,  156  U. 
S.  385,  39  L.  Ed.  460;  Eustis  v.  Bolles, 
150  U.  S.  361,  37  L.   Ed.   1111. 

In  Remington  Paper  Co.  v.  Watson, 
173  U.  S.  443,  43  L.  Ed.  762,  we  had  oc- 
casion to  repeat  and  affirm  the  rule  an- 
nounced in  Eustis  V.  Bolles,  150  U.  S. 
361,  370,  37  L.  Ed.  1111,  "that  when  we 
find  it  unnecessary  to  decide  any  federal 
question,  and  when  the  state  court  has 
based  its  decision  on  a  local  or  state 
question,  our  logical  course  is  to  dismiss 
the  writ  of  error."  White  v.  Leovy.  174 
U.  S.  91,  96,  43  L.  Ed.  907. 

"Having  reached  the  conclusion  that 
■we  are  not  called  upon  to  determine  any 
federal  question,  nor  to  consider  whether 
the  state  court  was  right  or  wrong  in  its 
decision  of  the  other  question  in  the  case, 
it  only  remains  to  inquire  whether  that 
conclusion  requires  us  to  affirm  the  judg- 
ment of  the  court  below,  or  to  dismiss  the 
writ  of  error.  An  examination  of  our 
records  will  show  that,  in  similar  cases, 
this  court  has  sometimes  affirmed  the 
judgment  of  the  court  below,  and  some- 
times has  dismissed  the  writ  of  error. 
This  discrepancy  may  have  originated 
in  a  difference  of  views  as  to  the  precise 
scope  of  the  questions  presented.  How- 
ever that  may  be,  we  think  that,  when  we 
find  it  unnecessary  to  decide  any  federal 
question,  and  when  the  state  court  has 
based  its  decision  on  a  local  or  state 
question,  our  logical  course  is  to  dismiss 
the  writ  of  error.  This  was  the  judg- 
ment pronounced  in  Klinger  v.  Missouri, 
13  Wall.  257,  20  L.  Ed.  635;  New  Or- 
leans, etc.,  Co.  V.  Louisiana  Sugar  Refin. 
Co.,  125  U.  S.  18,  31  L.  Ed.  607;  Kreiger 
V.  Shelby  R.  Co.,  125  U.  S.  39,  31  L.  Ed. 
€75;  De  Saussure  v.  Gaillard,  127  U.  S. 
516,  32  L.  Ed.  125;  Hale  v.  Akers,  132 
U.  S.  554,  33  L.  Ed.  442;  Hopkins  v.  Mc- 
Lure,  133  U.  S.  380,  33  L.   Ed.  660;    John 


son  V.  Risk.  137  U.  S.  300,  307,  34  L.  Ed. 
6S3."  Eustis  V.  Bolles,  150  U.  S.  361.  370,. 
37  L.  Ed.  1111. 

"In  such  cases  as  this  it  has  sometimes 
been  the  practice  of  this  court  to  affirm 
the  judgment  and  sometimes  to  dismiss 
the  writ.  'An  examination  of  our  records 
will  show  that  in  some  cases  this  court 
has  affirmed  the  judgment  of  the  court 
below  and  sometimes  has  dismissed  the 
writ  of  error.  This  discrepancy  may 
have  originated  in  a  difference  of  views 
as  to  the  precise  scope  of  the  question 
presented.  However  that  may  be,  we 
think  that  when  we  find  it  unnecessary  to 
decide  any  federal  question,  and  that  when 
the  state  court  has  based  its  decision  on 
a  local  or  state  question,  our  logical 
course  is  to  dismiss  the  writ.'  "  Eustis 
V.  Bolles,  150  U.  S.  361.  37  L.  Ed.  1111. 
Accordingly  the  judgment  in  the  case  last 
cited  was  one  of  dismissal.  The  same 
judgment  was  given  in  the  two  cases  in 
Rutland  R.  Co.  v.  Central  Vermont  R. 
Co..  159  U.  S.  360,  40  L.  Ed.  284;  and 
Gillis  V.  Stinchfield,  159  U.  S.  658,  and 
also  in  the  very  latest  case  on  the  sub- 
ject, that  of  the  Seneca  Nation  of  Indians 
V.  Christy,  162  U.  S.  283.  40  L.  Ed.  970. 
Bacon  v.  Texas,  163  U.  S.  207,  228.  41  L. 
Ed.    132. 

38.  Frivolous  appeals. — Millingar  v. 
Hartupee,  6  Wall.  2.58.  18  L.  Ed.  829; 
New  Orleans  v.  New  Orleans  Water- 
works Co.,  142  U.  S.  86.  87,  35  L.  Ed. 
946;  Hamblin  v.  Western  Land  Co.,  147' 
U.  S.  531,  37  L.  Ed.  267:  Walsh  v.  Co- 
lumbus, etc..  R.  Co.,  176  U.  S.  469,  476, 
44  L.  Ed.  548,  reaffirmed  in  Gates  v.  Com- 
missioners,  183   U.    S.    693,   46   L.    Ed.   393. 

39.  Mobile  Transportation  Co.  v.  Mo- 
bile,   187    U.    S.    479,   47    L.    Ed.    266. 

40.  Lynde  v.  Lynde,  181  U.  S.  183,  45 
L.  Ed.  810,  reaffirmed  in  Jones  -v.  Vane, 
200   U.    S.    614,   50    L.    Ed.    621. 

41.  Barrington  v.  Missouri,  205  U  S- 
483,  51  L.  Ed.  890. 


APPEAL  AND  ERROR. 


789 


closed  by  a  decision  or  decisions  of  this  court  as  to  leave  no  room  for  real  con- 
troversy, the  motion  to  dismiss  will  prevail."* 2  In  other  words,  where  the  federal 
question  asserted  to  be  contained  in  a  record  is  manifestly  lacking  all  color  of 
merit  or  is  no  longer  open  by  reason  of  previous  decisions,  the  writ  of  error  must 
be  dismissed.-*'^  But  the  power,  however,  to  dismiss  because  of  the  want  of  sub- 
stantiality in  the  claim  upon  which  the  assertion  of  jurisdiction  is  predicated, 
does  not  apply  to  cases  where  the  subject  matter  of  the  controversy  is  per  se  and 
inherently  federal.*'* 

eee.  Moot  Cases. — The  duty  of  this  court,  as  of  every  other  judicial  tribunal, 
is  to  decide  actual  controversies  by  a  judgment  which  can  be  carried  into  effect,' 
and  not  to  give  opinions  upon  moot  questions  or  abstract  propositions,  or  to  de- 
clare principles  or  rules  of  law  which  cannot  affect  the  matter  in  issue  in  the 
case  before  it.  It  necessarily  follows  that  when,  pending  an  appeal  from  the 
judgment  of  a  lower  court,  and  without  any  fault  of  the  defendant,  an  event 
occurs  which  renders  it  impossible  for  this  court,  if  it  should  decide  the  case  in 
favor  of  the  plaintiff,  to  grant  him  any  effectual  relief  whatever,  the  court  will 
not  proceed  to  a  formal  judgment,  but  will  dismiss  the  appeal.  The  reasons  are 
quite  as  strong,  to  say  the  least,  for  applying  the  rule  to  a  writ  of  error  to  a  state 
court,  on  which  the  jurisdiction  of  this  court  is  limited  to  federal  questions  only, 
as  to  a  writ  of  error  to  a  circuit  court  of  the  United  States,  on  which  the  juris- 
diction of  this  court  extends  to  the  whole  case.'*''     A  writ  of  error  will  not  lie 


42.  Want    of    substantiality   in    claim. — 

New  Orleans  Waterworks  Co.  v.  Louis- 
iana. 18.T  U.  S.  336.  345,  46  L.  Ed.  936; 
Equitable  Life  Assurance  Society  v. 
Brown.  187  U,  S.  308.  311,  47  L.  Ed.  190, 
reaffirmed  in  Chicago,  etc.,  R.  Co.  v. 
Newell.   198   U.   S.   .')79,   49   L.   Ed.   1171. 

Although  a  federal  question  is  raised 
below  in  a  formal  manner,  yet  if  that 
question,  when  examined  with  reference 
to  the  averments  of  fact  upon  which  it 
is  made  to  depend,  is  one  which  has  been 
so  explicitly  decided  by  this  court  as  to 
foreclose  further  argument  on  the  sub- 
ject, this  will  cause  the  federal  ques- 
tion relied  upon  to  be  devoid  of  any  sub- 
stantial foundation  or  merit.  Equitable 
Life  Assurance  Society  v.  Brown.  187  U. 
S.  308,  47  L.  Ed.  190.  reaffirmed  in  Chi- 
cago, etc.,  R.  Co.  V.  Newell.  198  U.  S. 
579,  49  L.  Ed.  1171,  citing  New  Orleans 
Waterworks  Co.  v.  Louisiana.  185  U.  S. 
336,  46  L.   Ed.  936. 

43.  Swafford  v.  Templeton,  185  U.  S. 
487,  493,  46  L-  Ed.  1005;  Wabash  R.  Co.  v. 
Flannigan,  192  U.  S.  29,  38,  48  L.  Ed.  328; 
reaffirmed  in  Iron  Bridge  Co.  v.  Brennan, 
194  U.  S.  630,  48  L.  Ed.  1158;  Watkins  v. 
American  Nat.  Bank,  199  U.  S.  599,  50  L. 
Ed.  327;  Delahanty  v.  Pitkin,  199  U.  S. 
602,  50  L.  Ed.  427;  Barrington  v.  Mis- 
souri. 205   U.   S.  483,  484,  51   L.   Ed.  890. 

Denial  of  full  faith  and  credit. — 
Where  the  supreme  court  of  one  state 
has  entered  a  judgment  directing  a  lower 
court  of  that  state  to  render  a  judgment 
for  plaintiff,  the  fact  that  such  lower  court 
refuses  to  offset  against  the  amount  of  the 
judgment  directed,'  the  sum  of  a  judg- 
ment recovered  in  attachment  suit  in  an- 
other state  subsequently  to  the  decision 
of  the  supreme  court  of  the  former  state. 
will  not  give  the  federal  court  jurisdiction 


on  the  ground  of  denial  of  the  full  faith 
and  credit  to  which  judgments  are  en- 
titled by  virtue  of  §  1,  art.  4,  of  the  con- 
stitution of  the  United  States,  when  no- 
where in  the  proceeding  had  in  the  courts 
of  the  latter  state  were  rights  set  up  spe- 
cifically based  on  the  foreign  judgment, 
claiming  for  that  judgment  an  effect 
which  if  denied  it  would  have  impaired  its 
force  and  effect,  or  claiming  any  right  to 
the  relief  demanded  upon  the  effect  due 
to  the  foreign  judgment.  Wabash  R.  Co. 
V.  Flannigan,  192  U.  S.  29,  37,  48  L.  Ed. 
328,  reaffirmed  in  Iron  Bridge  Co.  v. 
Brennan,  194  U.  S.  630,  48  L.  Ed.  1158; 
Watkins  v.  American  Nat.  Bank,  199  U. 
S.  599,  50  L.  Ed.  327;  Delahanty  v.  Pitkin, 
199  U.  S.  602,  50  L.  Ed.  328. 

44.  Swafford  v.  Templeton,  185  U.  S. 
487,  493,  46  L.  Ed.  1005;  Equitable  Life 
Assurance  Society  v.  Brown,  187  U.  S. 
308,  311,  47  L.  Ed.  190,  reaffirmed  in 
Chicago,  etc.,  R.  Co.  v.  Newell,  198  U.  S. 
579,  49  L.  Ed.  1171. 

45.  Moot  cases. — Mills  v.  Green,  159  U. 
S.  651,  653,  40  L.  Ed.  293;  Kimball  v. 
Kimball,  174  U.  S.  158,  162,  43  L.  Ed.  932, 
reaffirmed  in  Cedar  Rapids  Water  Co.  v. 
Cedar  Rapids,  199  U.  S.  600.  50  L.  Ed. 
327. 

The  rule  was  applied  to  a  writ  of  error 
to  the  court  of  errors  and  appeals  of  the 
state  of  New  Jersey  in  Little  v.  Bowers, 
134  U.  S.  547,  33  L.  Ed.  1016.  See  Kim- 
ball V.  Kimball,  174  U.  S.  158.  162,  43  L. 
Ed.  932,  reaffirmed  in  Cedar  Rapids  Water 
Co.  V.  Cedar  Rapids,  199  U.  S.  600,  50  L. 
Ed.  327. 

The  refusal  on  the  part  of  an  insurance 
commissioner  to  grant  authority  to  plain- 
tiff to  transact  the  business  of  insurance 
under  a  new  permit  after  the  expiration 
of  an  old  permit,  does  not  raise  a  federal 


790 


APPEAL  AND  ERROR. 


from  this  court  to  a  state  court  under  §  25  of  the  judiciary  act,  where  the  record 
does  not  aver  any  facts  which  show  that  an  actual  question  has  arisen.  A  pres- 
entation of  a  possible,  but  not  actual  question,  one  which  may  hereafter  arise, 
but  which  has  not  arisen  as  yet,  is  not  sufficient.^^  Where  a  municipal  tax  is 
questioned  on  the  ground  that  the  tax  impairs  the  obligation  of  the  contract, 
and  is  also  an  attempt  to  take  property  without  due  process  of  law,  if  there  is  no 
law  of  the  state  authorizing  the  imposition  of  the  tax,  there  is  no  federal  ques- 
tion involved  which  will  give  the  supreme  court  jurisdiction.*'^ 

This  court  of  its  own  motion  must  determine  whether  the  enactment  of  a 
statute  subsequent  to  the  decision  by  the  state  court,  so  obviously  has  the  effect 
of  relieving  the  plaintiff  in  error  from  the  burden  imposed  by  the  judgment 
below,  as  to  cause  the  federal  question  to  become  merely  a  moot  one.^^ 

bb.  Operation  and  Effect  of  Decree. — Where  two  writs  of  error  are  taken 
from  the  highest  state  court  to  the  supreme  court  of  the  United  States,  the  first 
of  which  incorrectly  describes  the  judgment  of  the  state  court  while  the  second 
correctly  describes  it,  the  former  may  be  dismissed  without  prejudice  to  the  pro- 
ceeding in  the  latter.*^ 

cc.  Hearing  and  Determination  of  Motion. — The  merits  of  the  controversy 
cannot  be  revised  in  this  tribunal  upon  a  motion  to  dismiss  the  writ  of  error  for 
want  of  jurisdiction.  We  can  inquire  only  whether  the  record  shows  that  the 
constitution,  or  a  treaty,  or  a  law  of  the  United  States,  has  been  violated  by  the 
decision  of  the  state  court.^<*     Whether  a  state  has  or  has  not  impaired  the  ob- 


question,  where,  since  the  writ  of  error 
was  filed  the  permit  has  ceased  to  have 
any  effect,  and  therefore  an  event  has  oc- 
curred which  renders  it  impossible  for 
this  court  to  grant  any  effectual  relief  in 
favor  of  the  plaintiff  in  error.  In  such 
case,  this  court  will  dismiss  the  writ  of 
error.  Security  Life  Ins.  Co.  v.  Prewitt, 
300  U.  S.  446,  50  L.  Ed.  545;  Travellers' 
tns.  Co.  V.  Prewitt.  200  U.  S.  450.  50  L. 
Ed.  549,  citing  Alills  v.  Green,  159  U.  S. 
651,  40  L.  Ed.  293;  Tennessee  v.  Condon, 
189  U.  S.  64.  47  L.  Ed.  709;  Jones  v.  Mon- 
tague, 194  U.  S.  147,  48  L.   Ed.  913. 

46.  Downham  v.  Alexander  Council,  10 
Weill.   173.   19   L.   Ed.   829. 

What  the  courts  of  the  state  may  decide 
as  to  jurors  we  do  not  wish  to  anticipate, 
and  plaintiff  in  error  cannot  complain  un- 
til he  is  made  k)  suffer.  Lloyd  v.  Dolli- 
son,  194  U.   S.  445,  450,  48   L.    Ed.   1062. 

The  fact  that  a  state  has  enacted  a  new 
inheritance  tax  law,  after  a  judgment  of 
the  highest  state  court,  sustaining  the 
previous  inheritance  tax  law,  as  against 
the  claim  that  it  denied  the  equal  protec- 
tion of  the  laws,  as  guaranteed  by  the 
United  States  constitution,  does  not  con- 
vert the  above  federal  question  into  a 
moot  question,  hence  the  decision  will  be 
reviewed  by  this  court  unless  it  is  plain 
that  the  new  inheritance  law  relieved  the 
plaintiffs  in  error  from  their  previous  ob- 
ligations under  the  earlier  law.  Campbell 
V.   California,  200  U.   S.   87,  50   L.   Ed.   382. 

47.  Savannah,  etc.,  R.  Co.  v.  Savannah, 
198  U.  S.  392,  396.  49  L.  Ed.  1097,  citing 
Barney  v.  New  York  City,  193  U.  S.  430, 
48  L.  Ed.  737. 

^3.  Campbell  v.  California.  ::oo  U.  S.  87, 
50  L.   Ed.  382. 


49.  Operation  and  effect  of  decree. — 
Northern  Pac.  R.  Co.  v.  Ely,  197  U.  S.  L 
49  L.  Ed.  639,  citing  Wheeler  v.  Harris. 
13  Wall.  51,  20  L.  Ed.  531;  Silsby  v.  Foote, 
20  How.  290,  15  L.  Ed.  822^  Northern 
Pac.  R.  Co.  V.  Hasse,  197  U.  S.  9.  49  L. 
Ed.    642. 

50.  Hearing  and  determination  of  mo- 
tion.— New  Orleans  z'.  De  Armas,  9  Pet. 
224,  234.  9   L.   Ed.   109. 

A  lot  of  ground  situated  in  the  city  of 
New  Orleans,  which  was  occupied,  under 
an  incomplete  title,  for  some  time  b)' 
permission  of  the  Spanish  government, 
granted  before  the  acquisition  of  Louisi- 
ana by  the  United  States,  was  confirmed 
to  the  claimants,  under  the  laws  of  the 
United  States,  and  a  patent  was  issued 
for  the  same  on  the  17th  of  February, 
1821.  The  city  of  New  Orleans  claiming 
this  lot  as  being  part  of  a  quay  dedicated 
to  the  use  of  the  city  in  the  original  plan 
of  the  town,  and  therefore  not  grantable 
by  the  King  of  Spain,  enlarged  the  levee 
in  front  of  New  Orleans  so  as  to  include 
it.  The  patentees  from  the  United  States 
brought  a  suit  in  the  district  court  of  the 
state  of  Louisiana  for  the  lot,  which  pro- 
nounced judgment  in  their  favor,  and  that 
judgment  was  afiirmed  by  the  supreme 
court  of  the  state.  The  judgment  was 
removed  to  this  court,  under  the  twenty- 
fifth  section  of  the  judicial  act.  A  motion 
was  made  to  dismiss  the  writ  of  error 
for  want  of  jurisdiction.  By  the  court: 
The  merits  of  this  controversy  cannot  be 
revised  in  this  tribunal.  The  only  in- 
quiry here  is.  whether  the  record  shows 
that  the  constitution,  or  a  treaty,  or  a  law 
ff  the  United  Stnt'^s  hn<;  hep^  vinl^t'-''  hy 
the  decision  of  that  court.  New  Orleans 
I'.  De  Armas,  y  let.  2x!4,  y  L.  x^d.  u.u. 


APPEAL  AND  ERROR. 


791 


ligation  of  a  contract  is  not  a  question  wliich  can  be  properly  passed  upon,,  on  a 
-.notion  to  dismiss,  so  long  as  the  complainant  claims  in  his  "bill  that  it  has  that 
effect,  and  such  claim  is  apparently  made  in  good  faith,  and  is  not  a  frivolous 
one.-^^ 

(5)  Hearing  and  Determination.— Upon  a  writ  of  error  from  a  state  court, 
where  the  federal  question  upon  which  the  jurisdiction  depends  is  also  the  iden- 
tical question  upon  which  the  merits  depend,  and  is,  in  fact,  without  merit,  and 
there  is  a  motion  to  affirm  as  well  as  a  motion  to  dismiss,  the  supreme  court  will 
cause  its  decree  to  respond  to  the  question  which  arises  first  in  order  for  decision 
and  dismiss  the  writ  of  error. ^^ 

w.  Effect  of  Transfer  of  Cause— {\)  In  General— A  writ  of  error  issued 
under  the  twenty-fifth  section  of  the  judiciary  act  is  in  the  nature  of  a  commission 
by  which  the  judges  of  one  court  are  authorized  to  examine  a  record  upon  which 
a  judgment  or  decree  was  given  in  another  court,  and  on  such  examination  to 
reverse  or  affirm  that  judgment  or  decree.  When  regular  in  form,  and  duly 
served,  the  writ  of  error  operates  upon  the  record  of  the  court  to  which  it  is  ad- 
dressed in  the  case  described  in  the  writ,  and  it  has  the  effect  to  remove  that 
record  into  the  court  granting  the  writ  of  error  and  to  submit  it  to  re-examina- 
tion, and  the  twenty-third  section  of  the  judiciary  act  provides  to  the  effect  that 
where  all  the  conditions  prescribed  in  that  section  concur  in  the  case  the  juris- 
diction of  the  court  where  the  record  remained  when  the  writ  of  error  was  sued 
out  and  served  shall  be  suspended  until  the  cause  is  determined  by  or  remanded 
from  the  appellate  tribunal. ^*''^ 

(2)  Supersedeas. — In  General. — Under  the  act  of  1867  providing  for  the  ex- 
amination by  this  court  of  final  judgments  or  decrees  in  the  highest  state  court, 
it  was  held,  that  the  effect  of  the  writ  and  of  the  regulations  governing  it  is  that 
when  accompanied  by  proper  bond,  given  and  approved  within  the  prescribed 
time,  it  operates  as  a  supersedeas  to  further  proceedings  in  the  inferior  court. 
The  phrase  "in  the  same  manner  and  under  the  same  regulations,  and  the  writ 
shall  have  the  same  effect"  in  the  act  of  1867  providing  that  a  final  judgment  or 
decree  in  any  suit  in  the  highest  court  of  a  state  in  which  a  decision  in  the  suit 
can  be  had,  may  be  re-examined  and  reversed  or  affirmed  in  the  supreme  court 
of  the  United  States  upon  a  writ  of  error,  is  one  eminently  appropriate  to  the 
expression  of  the  idea  that  these  cases,  though  coming  from  state  instead  of  fed- 


51.  New  Orleans  v.  New  Orleans  Water- 
works Co.,  143  U.  S.  86,  88,  35  L.  Ed. 
946;  City  R.  Co.  v.  Citizens'  Street  R.  Co., 
166  U.    S.   557,  564.  41    L.   Ed.   1114. 

52.  Hearing  and  determination. — Equi- 
table Life  Assurance  Society  v.  Brown, 
187  U.  S.  308,  47  L.  Ed.  190,  reaffirmed  in 
Chicago,  etc.,  R.  Co.  v.  Newell,  198  U.  S. 
579.  49   L.   Ed.  1171. 

"This  being  the  case,  it  is  obvious  that, 
on  this  record,  either  the  motion  to  dis- 
miss must  be  allowed  or  the  motion  to 
affirm  granted,  and  that  the  allowance  of 
the  one  or  the  granting  of  the  other  as 
a  practical  question  will  have  the  like 
effect,  to  finally  dispose  of  this  contro- 
versy. The  question  then  is,  to  which  of 
the  motions  should  the  decree  which  we 
are  to  render  respond?  As  there  is  a  case 
governed  bj'  the  principles  controlling 
writs  of  error  to  state  courts,  it  follows  that 
the  federal  question  upon  which  the  juris- 
diction depends  is  also  the  identical  ques- 
tion upon  which  the  merits  depend,  and 
therefore  the  unsubstantiality  of  the  fed- 
eral question  for  the  purpose  of  the  mo- 
tion to  dismiss  and  its  unsubstantiality  for 


the  purpose  of  the  motion  to  affirm  are 
one  and  the  same  thing,  that  is,  the  two 
questions  are  therefore  absolutely  coter- 
minous. Hence,  in  reason,  the  denial  of 
one  of  the  motions  necessarily  involves 
the  denial  of  the  other,  and  hence  also 
one  of  the  motions  cannot  be  allowed 
except  upon  a  ground  which  also  would 
justify  the  allowance  of  the  other.  Under 
this  state  of  the  case  (there  being  of 
course  no  inherently  federal  question, 
Swafford  v.  Templcton,  185  U.  S.  487.  493, 
46  L-  Ed.  1005),  we  think  the  better  prac- 
tice is  to  cause  our  decree  to  respond  to 
the  question  which  arises  first  in  order 
for  decision,  that  is,  the  motion  to  dis- 
miss, and  therefore  the  writ  of  error  is 
dismissed."  Equitable  Life  Assurance  So- 
ciety V.  Brown,  187  U.  S.  308,  315,  47  L. 
Ed.  190,  reaffirmed  in  Chicago,  etc.,  R.  Co. 
V.   Newell,  198  U.  S.  579,  49  h.  Ed.  1171. 

53.  In  general. — Cohens  v.  Virginia,  6 
Wheat.  264,  410,  5  L.  Ed.  257;  Suydam  v. 
WilUmson,  20  How  427,  437,  15  L.  Ed. 
978;  Barton  v.  Forsyth,  5  Wall.  190,  18  L. 
Ed.  545;  Slau.ghter-House  Cases,  10  Wall. 
273,   19    L.    Ed.    915. 


792  APPEAL  AND  ERROR. 

eral  tribunals,  shall  be  conducted  in  their  progress  through  the  court,  in  the  mat- 
ter of  the  general  course  of  procedure,  by  the  same  rules  of  practice  that  pre- 
vail in  cases  brought  under  writs  of  error  to  the  courts  of  the  United  States. 
"The  word  manner  also  much  more  appropriately  expresses  the  general  mode  of 
proceeding  with  the  case,  after  the  writ  has  been  allowed,  the  means  by  which  the 
exigency  of  the  writ  is  enforced,  as  by  rule  on  the  clerk,  or  mandamus  to  the 
court,  and  the  progress  of  the  case  in  the  appellate  court ;  as  filing  the  record, 
docketing  the  case,  time  of  hearing,  order  of  the  argument,  and  such  other  mat- 
ters as  are  merely  incident  to  final  decision  by  the  court. "^^ 

Service  of  Writ  of  Error. — Writs  of  error  issued  under  the  twenty-fifth  sec- 
tion of  the  judiciary  act  have  the  same  effect  as  if  the  judgments  or  decrees  were 
rendered  in  a  circuit  court,  and  they  operate  as  a  supersedeas  and  stay  execution 
only  where  the  writ  of  error  is  served  by  a  copy  thereof  being  lodged  for  the  ad- 
verse party  in  the  clerk's  ofiice  where  the  record  remains,  within  ten  days,  Sun- 
days exclusive,  from  the  date  of  the  judgment  or  decree.-^"'  Exceptional 
cases  arise  where  the  judgment  or  decree  given  on  appeal  in  the  highest 
court  of  a  state  is  required  by  the  law  of  the  state  to  be  returned  to  the 
subordinate  court  for  execution,  and  in  such  cases  it  is  held,  that  the  writ  of  er- 
ror from  this  court  may  operate  as  a  supersedeas,  if  granted  and  served  at  any 
time  within  ten  days  from  the  return  entry  of  the  proceedings  in  the  court  from 
which  the  record  was  removed,  but  in  all  other  cases  the  writ  of  error  must  be 
issued  and  served  within  ten  days  from  the  date  of  the  judgment  or  decree,  in 
order  that  it  may  operate  as  a  supersedeas  and  stay  execution.'^^ 

(3)  Execution  on  Judgment  of  State  Court. — The  provision  of  §  1007  of  the 
Revised  Statutes,  to  the  efTect  that,  in  cases  where  a  writ  of  error  may  be  a 
supersedeas,  executions  shall  not  issue  until  the  expiration  of  ten  days,  does  not 
apply  to  judgments  in  the  highest  court  of  a  state.^" 

(4)  Effect  on  Injunction  Proceedings. — A  writ  of  error  to  a  state  court  can- 
not have  any  greater  efifect  than  if  the  judgment  or  decree  had  been  rendered  or 
passed  in  a  circuit  court,  and  it  is  quite  certain  that  neither  an  injunction  nor  a 
decree  dissolving  an  injunction  passed  in  a  circuit  court  is  reversed  or  nullified 
by  an  appeal  or  writ  of  error  before  the  cause  is  heard  in  this  court. ^^ 

54.  Supersedeas. — Murdock  v.  Memphis,  tions  of  the  revision."  Doyle  v.  Wiscoii- 
20  Wall.  590,  624.  22  L.  Ed.  429.  sin,   94    U.    S.    50,   52,   24   L.    Ed.    64,   citing 

55.  Slaughter-House  Cases,  10  Wall.  Board  of  Commissioners  v.  Gorman,  19 
273,  290,  19  L.  Ed.  915.  Wall.   661,  664.  22   L.   Ed.   226. 

56.  McGuire  v.  The  Commonwealth,  ?,  58.  Effect  on  injunction  proceedings. — 
Wall.  .382,  386.  17  L.  Ed.  165;  Gelston  v.  Slaughter- House  Cases,  10  Wall.  273,  297, 
Hoyt,  3  Wheat.   246,  4   L.   Ed.   381;   Green  19    L.    Ed.   915. 

V.   Van    Buskirk,   3   Wall.    448,   450,    18    L.  Injunctions    to    state    courts. — There    is 

Ed.  245;  Slaughter-House  Cases,  10  Wall.  no   appellate   relation   between   a   subordi- 

273,  291,  19  L.  Ed.  915.  nate    state    court    and    the    supreme    court 

57.  Execution  on  judgment  of  state  of  the  United  States,  and  where  no  such 
court. — Foster  v.  Kansas,  112  U.  S.  201,  relation  is  established  by  law,  the  prohi- 
204,  28  L.  Ed.  629;  Doyle  v.  Wisconsin,  bition  of  that  section  (the  fifth  section  of 
94  U.  S.  50,  24  L.  Ed.  64.  the   act   of  the   second   of   March,   1793) — 

Section    1007    of    the    Revised    Statutes,  "nor  shall  a  writ  of  injunction  be  granted 

which,  as  amended  by  the  act  of  Feb.  18,  to    stay    proceedings    in    any    court    of    a 

1875    (18    Stat.,    part    3,    p.    316),    provides  state'' — applies    to    the    supreme    court    as 

that,   where   a   writ   of   error   may   operate  well    as    to   the    circuit    court.      1    Stat,    at 

as  a  supersedeas,  execution  shall  not  issue  Large    335.      Slaughter-House     Cases,    10 

until  the  expiration   of  ten  days  after  the  Wall.  273,  298,  19   L.   Ed.  915. 

rendition   of   the   judgment,   has   reference  Where  injunctions  had  been  granted  in 

only   to    the   judgments    of   the    courts    of  the   district   court   of   the   state   of   Louisi- 

the  United  States.     "It  was  not  the  inten-  ana,    and    suspensive     appeals     had     been 

tion  of  congress,  under  the  act  of  1789,  to  taken   to   the   supreme   court   of   the   state, 

interfere    at    all    with    the    practice    of   the  where    the    decrees    granting    the    injunc- 

state   courts   as   to   executions   upon    their  tions    had    been    affirmed,    and    a    writ    of 

judgments,  until   a  supersedeas   was   actu-  error  under  the   25th  section   of  the  judi- 

ally    perfected,    and    that    the    same    efifect  ciary   act    sued    out    to    that   judgment   of 

must   be   given   to   the   corresponding   sec-  affirmance,    the    writ    of    error    and    bond, 


APPEAL  AXD  ERROR. 


793 


X.  Presumptions  on  Appeal.— In  General.— As  state  tribunals  are  presumed 
to  do  their  duty,  their  decisions  will  not  be  disturbed  by  the  United  States  su- 
preme court  on  appeal  or  writ  of  error  under  the  25th  section  of  the  judiciary 
act  unless  very  manifestly  improper  or  erroneous.  Therefore,  where  the  plain- 
itf  in  error  asserts  that  such  right  or  title  has  been  improperly  overruled  by  the 
-tate  court,  the  burden  devolves  on  him  to  show  it.-^^  This  court  will  not  pre- 
sume that  the  court  below  decided  erroneously  in  order  to  defeat  their  own  juris- 
diction, in  the  case  of  a  writ  of  error  to  this  court  under  the  25th  section  of  the 
judiciary  act.^^*  Where  a  case  has  been  decided  in  an  inferior  court  of  a  state  on 
a  single  point  which  would  give  this  court  jurisdiction,  it  will  not  be  presumed 
here  that  the  supreme  court  of  the  state  decided  it  on  some  other  ground  not 
found  in  the  record  or  suggested  in  the  latter  court.*^" 

That  Public  Officers  Perform  Their  Duties.— The  supreme  court  of  the 
United  States  will  not  and  ought  not  to  presume  a  violation  of  duty  by  public 
officials  in  the  absence  of  allegations  and  proofs  to  that  effect.*^^ 

y.  Mandate — (1 )  Remand  for  Further  Proceedings. — This  court  may,  at  their 
discretion,  remand  the  cause  to  the  state  court  from  which  it  was  removed  by 
the  writ. « 2 


though  filed  within  ten  days  of  the  af- 
firmance, did  not  authorize  this  court  to 
enjoin  or  supersede  the  action  of  the  dis- 
trict court  in  giving  effect  to  the  said 
injunctions  subsequent  to  the  issuing  of 
the  writ  of  error.  The  supersedeas  of  the 
act  operated  alone  upon  the  supreme  court 
of  the  state  to  which  the  writ  of  error 
is  directed  under  the  said  25th  section. 
The  appeals  from  the  district  to  the  su- 
preme court  of  the  state  operated  as  a 
stay  of  execution,  and  suspended  all  juris- 
diction to  proceed  further  until  the  cause 
-was  remanded.  But  when  the  supreme 
court  rendered  its  final  judgment  and  per- 
petuated the  injunction,  whatever  condi- 
tions were  annexed  to  the  appeal  were 
abrogated,  as  the  appeal  was  then  fully 
executed.  Slaughter-House  Cases,  10 
Wall.   273,    19    L.    Ed.   915. 

59.  Presumptions  on  appeal. — Doe  v. 
Eslava.  9  How.  421,  13  L.  Ed.  200,  citing 
Garnett  v.  Jenkins,  8  Pet.  75,  8  L.  Ed.  871; 
Carroll  v.  Peake,  1  Pet.  18,  23,  7  L.  Ed. 
34;  Bagnell  v.  Broderick,  13  Pet.  436,  447, 
10  L.  Ed.  235;  United  States  v.  .\rredonda, 
6  Pet.  691,  727,  8  L.  Ed.  547;  Strother  v. 
Lucas,   12   Pet.   410,  435,  9   L.    Ed.    1137. 

59a.  Tvler  r.  Magwire,  17  Wall.  253,  280, 
21  L.  Ed.  576,  citing  Neilson  v.  Lagow,  12 
How.  98,  110.  13  L.  Ed.  909;  Magwire  v. 
Tyler,  1   Black   195,  199,  17  L.   Ed.   137. 

We  cannot  assume  error  in  the  decision 
of  the  state  court.  We  accept  it,  as  we 
are  bound  to  do,  as  a  correct  exposition 
of  the  law  of  the  state — common,  statu- 
tory and  constitutional.  Howard  r.  Ken- 
tucky,  200  U.   S.    164,   173,  50   L.   Ed.   421. 

60.  Keith  v.  Clark,  97  U.  S.  454,  24  L. 
Ed.   1071. 

61.  New  York  State  v.  Barker.  179  U. 
S.  279,  45  L.  Ed.  190,  distinguishing  Cum- 
mings  r.  National  Bank,  101  U.  S.  153,  25 
L.   Ed.  903. 

The  supreme  court  of  the  United  States 
cannot,  with  reference  to  the  action  of  the 
public    and    sworn    officials    of    New    York 


city,  assume  without  evidence  that  they 
have  violated  the  laws  of  their  state,  .\i.cii 
the  highest  court  of  the  state  itself  re- 
fuses, in  the  absence  of  evidence,  to  as- 
sume any  such  violation.  New  York  State 
V.  Barker,  179  U.  S.  279,  45  L.  Ed.  190. 

62.  Remand  for  further  proceedings. — 
Rev.   Stat.,  §  709. 

Power  to  re-examine,  in  a  certain  class 
of  cases,  final  judgments  and  decrees  in 
the  highest  court  of  law  or  equity  of  a 
state,  and  to  reverse*or  affirm  same  upon 
a  writ  of  error,  was  conferred  upon  the 
supreme  court  by  the  twenty-fifth  section 
of  the  judiciary  act,  and  the  same  section 
provides  that  the  writ  of  error  shall  have 
the  same  effect  as  if  the  judgment  or 
decree  had  been  rendered  or  passed  in 
the  circuit  court,  and  that  the  proceeding 
upon  the  reversal  shall  also  be  the  same, 
except  that  the  supreme  court,  instead  of 
remanding  the  cause  for  a  final  decision, 
may,  at  their  discretion,  if  the  cause  shall 
have  been  once  before  remanded,  proceed 
to  a  final  decision  of  the  same,  and  award 
execution.  1  Stat,  at  L.  86.  Where  the 
reversal  is  in  favor  of  the  original  plain- 
tiff, and  the  damages  to  be  assessed  or 
matters  to  be  decreed  are  uncertain,  the 
supreme  court  will  remand  the  cause  for 
a  final  decision,  unless  the  same  shall  have 
been  once  before  remanded,  in  which  case 
the  court  may,  at  their  discretion,  pro- 
ceed to  a  final  decision  of  the  cause. 
Execution  in  that  event  may  be  awarded 
here,  but  the  court,  in  all  other  appellate 
cases,  will  send  a  special  mandate  to  the 
subordinate  court  for  all  further  necessary 
proceedings.  Such  were  the  directions 
of  the  judiciary  act,  but  the  congress,  on 
the  5th  of  February,  1867,  amended  that 
section  in  several  particulars,  and  pro- 
vided that  the  writ  of  error,  in  such  a 
case,  shall  have  the  same  eflfect  as  if  the 
judgment  or  decree  had  been  rendered  or 
passed  in  a  federal  court,  and  that  the 
proceeding  upon  the  reversal  shall  also  be 


794 


APPEAL  A\D  ERROR. 


(2)  Rendering  and  Ordering  Final  Judgnuvnt. — By  §  25  of  the  judiciary  act,  this 
court  was  given  power  on  writs  of  error  to  the  state  courts  to  re-examine,  reverse 
or  affirm  their  final  judgments  "in  the  same  manner  and  under  the  same  regula- 
tions, and  the  writ  shall  have  the  same  effect  as  if  the  judgment  or  decree  com- 
plained of  had  heen  rendered  or  passed  in  a  circuit  court,  and  the  proceeding 
upon  the  reversal  shall  also  be  the  same,  except  that  the  supreme  court,  instead 
of  remanding  the  cause  for  a  final  decision,  *  *  *  may,  at  their  discretion, 
if  the  cause  shall  have  been  once  remanded  before,  proceed  to  a  final  decision  of 
the  same,  and  award  execution."^^  The  re-enactment  of  the  provisions  as  to 
writs  of  error  to  the  highest  court  of  a  state,  contained  in  §  709  of  the  Revised 
Statutes,  manifests  the  purpose  to  continue  in  force  the  power  in  such  cases  to 
render  the  judgment  required  by  the  ends  of  justice.  The  language  of  the  stat- 
ute is  that  on  such  writs  the  judgment  of  the  slate  court  "may  be  re-examined 
and  reversed  or  affirmed  in  the  supreme  court  upon  a  writ  of  error.  The  writ 
shall  have  the  san^e  eft'ect  as  if  the  judgment  or  decree  complained  of  had  been 
rendered  or  passed  in  a  court  of  the  United  States."  "The  supreme  court  may 
reverse,  modify  or  affirm  the  judgment  or  decree  of  such  state  court,  and  may, 
at  their  discretion,  award  execution,  or  remand  the  same  to  the  court  from  which 
it  was  removed  by  the  writ."*^*  Under  the  power  thus  conferred,  it  has  never 
been  questioned  that  this  court  possessed  authority  upon  reversal  for  error  of 
a  final  judgment  to  award  a  new  trial.'"-^'  But  the  rule  is  equally  well  settled,  that 
where  the  cause  has  once  before  been  remaiided  and  the  state  court  declines  or 
refuses  to  carry  into  effect  the  mandate  of  the  supreme  court,  the  court  will  pro- 
ceed to  a  final  decision  of  the  same  and  award  execution  to  the  prevailing  party.^^** 


the  same,  except  that  the  supreme  court 
may,  at  their  discretion,  proceed  to  a 
final  decision  of  the  same  and  award 
execution  or  remanjj  the  same  to  the  in- 
ferior court.  14  Stat,  at  L.  387.  Tyler  v. 
Magwire,  17  Wall.  253,  272,  21  L.  Ed.  576. 

An  action  to  recover  the  title  and  pos- 
session of  land  against  officers  of  the 
United  States  setting  up  title  in  the 
United  States,  and  defendant  by  the  dis- 
trict attorney  of  the  United  States,  was 
dismissed  by  the  highest  court  of  the 
state  as  against  the  United  States;  but 
judgment  was  rendered  against  the  offi- 
cers, upon  the  ground  that  they  could 
not  avail  themselves  of  the  statute  of  limi- 
tations. This  court,  on  writ  of  error,  re- 
versed that  judgment,  and  remanded  the 
case  for  further  proceedings.  The  high- 
est court  of  the  state  thereupon  held  that 
the  United  States  were  a  party  to  the 
action,  and  decided,  upon  evidence  insuf- 
ficient in  law,  that  the  United  States  had 
no  valid  title,  because  they  took  with 
notice  of  a  prior  conveyance;  and  gave 
judgment  against  the  officers  for  title  and 
possession,  and  against  the  United  States 
for  costs.  This  court,  upon  -i  second 
writ  of  error,  reverses  the  judgment,  and 
remands  the  case  with  instructions  to 
dismiss  the  action  against  the  United 
States,  and  to  enter  judgment  for  the 
individual  defendants,  with  costs.  Stan- 
ley V.  Schwalby,  162  U.  S.  255,  40  L.  Ed. 
960.  cited  in  Chicago,  etc.,  R.  Co.  v.  Illi- 
nois,  200   U.    S.    561,    601,   50    L.    Ed.    596. 

63.  Rendering  and  ordering  final  judg- 
ment.— Ballew  V.  United  States,  100  U.  S. 
187,    199.  40  L.   Ed.   388. 


64.  Ballew  v.  United  States,  160  U.  S. 
187,   200,   40   L.    Ed.   388. 

65.  Ballew  z:  United  States.  160  U.  S. 
187,    199,   40   L.    Ed.    388. 

66.  Tyler  v.  Magwire.  IT  Wall.  253,  290, 
21  L.  Ed.  576.-  citing  Martin  v.  Hunter,  1 
Wheat.  304.  354,  4  L.  Ed.  97;  Gibbons  v. 
Ogden,  9  Wheat.  186,  2.39,  6  L.  Ed.  68; 
Williams  v.  BruflFy.  96  U.  S.  176,  193,  24 
L.   Ed.   716. 

In  Magwire  v.  Tyler,  17  Wall.  253,  21  L- 
Ed.  576,  this  court,  at  December  term, 
1869,  adjudged  that  a  decree  in  equity  of 
the  supreme  court  of  Missouri  b"  re- 
\erscd,  and  the  case  remanded  with  direc- 
tions to  enter  a  decree  affirming  the  de- 
cree of  an  inferior  court  of  the  state; 
•  but,  upon  motion  of  counsel,  modified  its 
judgment  so  as  to  remand  the  cause  for 
further  proceedings  in  conformity  to  the 
opinion  of  this  court,  and  declared  this  to 
''be  more  in  accordance  with  the  usual 
practice  of  the  court  in  such  cases."  Ma- 
guire  V.  Tyler.  8  Wall.  650,  658,  662.  19 
L.  Ed.  320.  The  supreme  court  of  Mis- 
souri, after  receiving  the  mandate  of  this 
court,  entered  a  decree  dismissing  the 
suit  because  there  was  an  adequate  rem- 
edy at  law;  and  thereupon  this  court,  at 
December  term,  1872,  upon  a  second  writ 
of  error,  entered  judgment  here,  revers- 
ing that  decree,  with  costs,  and  ordering 
a  writ  of  possession  to  issue  from  thi.s 
court;  and,  speaking  by  Mr.  Justice  Clif- 
ford, after  referring  to  the  difference  be- 
tween the  provisions  of  the  acts  of  1789 
and  1867,  said:  "Much  discussion  of  those 
provisions  is  unnecessary,  as  it  is  clear 
that    the    court,    under    either,    possesses 


APPEAL  AXD  ERROR. 


795 


(3)   Direction  of  Mandate. — Upon  a 
25th  section  of  the  judiciary  act,  where 

the  power  to  remand  the  cause  or  to  pro- 
ceed to  a  final  decision.  Judging  from  the 
proceedings  of  the  state  court  under  the 
former  mandate,  and  the  reasons  assigned 
by  the  court  for  their  judicial  action  in 
the  case,  it  seems  to  be  quite  clear  that 
it  would  be  useless  to  remand  the  cause 
a  second  time,  as  the  court  has  virtually 
decided  that  they  cannot,  in  their  view  of 
the  law,  carry  into  effect  the  directions  of 
this  court  as  given  in  the  mandate.  Such 
being  the  fact,  the  duty  of  this  court  is 
l)lain,  and  not  without  an  established  prec- 
ident.  The  precedent  referred  to  was 
Martin  v.  Hunter,  1  Wheat.  304,  4  L.  Ed. 
97."  Approved  in  Stanley  v.  Schwalby, 
162  U.   S.   255,  280,  40   L.   Ed.  960. 

Under  the  judiciary  act,  as  well  as  un- 
der that  of  the  5th  of  February,  1867, 
amendatory  of  it,  on  a  second  writ  of 
error  to  a  state  court,  this  court  "maj' 
proceed  to  a  final  judgment  and  award 
execution."  Tyler  v.  Maguire,  17  Wall. 
2)3,  21  L.  Ed.  576;  Martin  v.  Hunter,  i 
Wheat.  304,   354,   4  L-   Ed.  97. 

The  supreme  court  of  the  state  of  Mis- 
souri, on  appeal,  dismissed  a  petition 
which  sought  to  have  the  title  to  lands 
held  by  the  defendant,  under  a  patent 
from  the  United  States,  divested,  and 
vested  in  the  somplainant.  From  this  de- 
cree of  dismissal,  a  writ  of  error  brought 
up  the  case  under  the  twenty-fifth  section 
of  the  judiciary  act,  the  complainant 
claiming  the  land  under  a  former  patent 
from  the  United  States.  This  court  de- 
termined that  the  legal  title  to  the  prem- 
ises was  in  the  complainant  under  the 
second  patent,  reversed  the  decree,  and 
remanded  the  cause  "for  further  proceed- 
ings in  conformity  to  the  opinion  of  the 
court."  Maguire  v.  Tyler,  8  Wall.  668, 
672,  19  L.  Ed.  420.  The  opinion  given, 
declared  also  that  on  the  merits  (which 
were  gone  into,  and  in  which  utterance 
was  given  as  to  every  point  which  it  was 
necessary  to  decide  in  order  to  dispose 
cf  the  case  on  them),  the  case  was  with 
the  plaintiff  or  complainant.  On  the  pres- 
entation of  the  mandate  to  the  supreme 
court  of  the  state,  they  directed  it  to  be 
filed,  and  entered  up  an  order  reversing 
their  former  decree,  and  the  cause  again 
coming  up  to  be  disposed  of.  the  court 
decided  that  the  legal  title  to  the  premises 
was  vested  by  the  second  patent  in  the 
complainant,  as  declared  by  this  court, 
and  that  on  such  a  title  under  the  laws 
and  practice  of  the  state  there  was  a 
plain  and  adequate  remedy  at  law,  and 
that  equity  had  no  jurisdiction  of  the  case 
made  by  the  petition,  and,  therefore,  de- 
creed dismissing  the  petition.  To  this 
decree  the  complainant  sued  out  a  second 
writ  of  error,  under  the  twenty-fifth  sec- 
tion. Hel'l.  that  the  legal  sufficiency  of 
the    ground    maintained    by    the    supreme 


writ_  of  error  to  a  state  court  under  the 
the  judgment  of  the  highest  court  of  the 

court  of  the  state  for  its  decree,  to  wit, 
that  by  the  laws  and  practice  of  the  state 
the  complainant's  remedy  on  a  legal  title 
was  at  law,  and  not  in  equity,  is  a  ques- 
tion within  the  jurisdiction  of  this  court, 
and  revisable  under  the  twenty-fifth  sec- 
tion on  a  second  writ  of  error.  Tyler  v. 
Maguire,  17  Wall.  253,  21  L.   Ed.  576. 

Under  the  judiciary  act  of  September 
24,  1789,  ch.  20,  §  25,  a  final  judgment  or 
decree  in  the  highest  court  of  a  state  in 
which  a  decision  could  be  had  might  "be 
re-examined  and  reversed  or  affirmed"  in 
this  court  upon  a  writ  of  error,  "in  the 
same  manner  and  under  the  same  regula- 
tions, and  the  writ  shall  have  the  same 
efifect,  as  if  the  judgment  or  decree  com- 
plained of  had  been  rendered  or  passed 
in  a  circuit  court;  and  the  proceeding 
upc«i  the  reversal  shall  also  be  the  same, 
except  that  the  supreme  court,  instead  of 
remanding  the  cause  for  a  final  decision 
as  before  provided,  may,  at  their  discre- 
tion, if  the  cause  shall  have  been  once 
remanded  before,  proceed  to  a  final  de- 
cision of  the  same,  and  award  execution. "' 
1  Stat.  86.  The  qualification,  "if  the 
cause  shall  have  been  once  remanded  be- 
fore," restricted  only  the  power  to  pro- 
ceed to  a  final  decision  and  award  execu- 
tion in  this  court,  and  did  not  restrict  the 
power  of  this  court  to  reverse  or  affirm 
the  judgment  of  the  state  court,  as  jus- 
tice might  require.  Accordingly,  in  the 
leading  case  upon  the  subject  of  the  ap- 
pellate jurisdiction  of  this  court  from  the 
courts  of  a  state,  this  court,  upon  the 
first  writ  of  error  to  the  court  of  appeals 
of  Virginia,  not  only  reversed  the  judg- 
ment of  that  court,  but  affirmed  the  judg- 
ment of  the  inferior  court  of  the  state, 
which  had  been  reversed  by  the  court  of 
appeals,  and  issued  its  mandate  to  the 
court  of  appeals  accordingly;  and,  upon 
that  court  declining  to  obey  the  mandate, 
this  court,  upon  a  second  writ  of  error, 
rendered  judgment  in  the  same,  terms  as 
before.  Fairfax  v.  Hunter,  7  Cranch  603, 
628,  3  L.  Ed.  453;  Martin  v.  Hunter.  1 
Wheat.  304,  323,  362,  4  L.  Ed.  97;  Stanley 
V.  Schwalby,  162  U.  S.  255,  279,  40  L.  Ed. 
960. 

The  act  of  February  15,  1867,  ch.  28,  §  2, 
revising  the  subject,  omitted  the  qualifi- 
cation "if  the  calise  shall  have  been  once 
remanded  before,"  and  put  the  last  clause 
of  the  section  in  this  form,  "and  the  pro- 
ceeding upon  the  reversal  shall  also  be 
the  same,  except  that  the  supreme  court 
may,  at  their  discretion,  proceed  to  a 
final  decision  of  the  case,  and  award  execu- 
tion, or  remand  the  same  to  an  inferior 
court."  14  Stat.  386.  The  sections  of  the  acts 
of  1'7'!9  and  1867  are  printed  side  by  side  in 
17  Wall.  681,  682.  Stanley  v.  Schwalby, 
162   U.    S.   255,   280,   40   L-    Ed.   060. 

Section  2  of  the  act  of   1867   was  sub- 


796 


APPEAL  AXD  ERROR. 


state  is  reversed,  and  that  of  the  lower  court  affirmed,  the  mandate  mu^t  go  to 
the  latter  court.*'^ 

(4)  Compliance  icnth  Mandate. — This  court  will  not  take  action  to  cause  the 
judgment  of  a  state  court  to  be  reversed  as  upon  a  noncompliance  with  the  man- 
date of  this  court,  where  it  does  not  appear  that  the  petitioner  has  ever  applied 
to  the  highest  court  of  the  state  to  carry  the  mandate  of  this  court  into  effect.*'* 
The  state  court,  in  complying  with  the  mandate  of  this  court,  which  does  not 
prescribe  in  terms  the  judgment  which  should  be  rendered  by  the  state  court, 
cannot  be  compelled  to  violate  its  rule  not  to  reverse  any  judgment  for  error  of 
fact  not  apparent  on  the  face  of  the  record.''^ 

(5)  Recalling  Mandate. — Where,  upon  a  petition  for  a  rehearing  of  a  cause, 
previously  decided  by  this  court  on  a  writ  of  error  to  the  state  court,  we  have 
failed  to  exercise  our  appropriate  jurisdiction  in  refusing  to  decide  a  certain 
question,  it  is  our  duty,  upon  the  question  now  being  brought  to  our  attention, 
to  recall  the  mandate  in  examining  the  question.  "If  we  find  the  federal  ques- 
tions properly  decided  as  to  one  class  of  persons  affected  by  the  judgment,  we 
must  sustain  that  part  of  it,  although  we  come  to  that  conclusion  for  a  different 
reason  from  that  expressed  by  the  state  court,  and  one  which  upon  that  point 
is  in  conflict  with  its  opinion  but  not  with  its  judgment. "'^ 

8.  Over  Military  Courts  and  Tribunals"  ^ — In  General. — Military  tri- 
bunals are  not  courts  with  jurisdiction  in  law  or  equity  within  the  meaning  of 
those  terms  as  used  in  the  3d  article  of  the  constitution.'^^ 


stantially  re-enacted  in  Rev.   Stat.,  §  709. 

By  the  act  of  February  18,  1875,  ch.  80. 
entitled  "An  act  to  correct  errors  and  to 
supply  omissions  in  the  Revised  Statutes 
of  the  United  States."  §  709  of  the  Revised 
Statutes  was  amended  by  striking  out  this 
provision:  "and  the  proceeding  upon  the 
reversal  shall  be  the  same,  except  that  the 
supreme  court  may,  at  their  discretion, 
proceed  to  a  final  decision  of  the  case,  and 
award  execution,  or  remand  the  same  to 
the  court  from  which  it  was  so  removed." 
18  Stat.  318;  Rev  Stat.  (2d  Ed.),  p.  133.  The 
repeal  of  this  provision  may  not  have  re- 
vived that  provision  of  the  act  of  1789 
which  had  been  superseded  by  the  act  of 
1867.  Rev.  Stat.,  §  12.  But  it  did  not 
affect  the  general  power,  conferred  by  § 
709  of  the  Revised  Statutes,  as  by  all 
former  acts,  by  which  the  judgment  of  the 
state  court  may  be  "re-examined  and  re- 
versed or  affirmed"  by  this  court,  and  in 
the  exercise  of  which  this  court,  in  Fair- 
fax V.  Hunter,  7  Cranch  603.  3  L.  Ed.  453. 
and  Martin  v.  Hunter,  1  Wheat.  304,  362, 
4  L-  Ed.  97,  above  cited,  ordered  the 
proper  judgment  to  be  entered  in  the  state 
court.  Stanley  v.  Schwalby,  162  U.  S. 
255,  281,  40  L.  Ed.  960. 

67.  Direction  of  mandate. — Where  the 
highest  court  of  a  state  refuses  to  obey 
the  mandate  of  this  court  for  any  reason, 
this  court  will  direct  that  the  mandate 
be  recalled,  and  that  final  judgment  be 
entered  here,  and  for  this  purpose  may 
direct  this  mandate  either  to  an  appellate 
or  an  inferior  state  court.  Williams  v. 
Bruf?y,  102  U.  S.  248.  26  L.  Ed.  135;  Mar- 
tm  V.  Hunter,  1  Wheat.  304.  4  L.  Ed.  97; 
Gierke  r.   Harwood.   3   Dall.   342. 

68.  Compliance    with    mandate. — In    re 


Royall,  125  U.  S.  696,  32  L.   Ed.  855. 

The  supreme  court  of  the  United  States 
reversed  a  decree  of  the  supreme  court  of 
Illinois  affirming  the  action  of  the  su- 
perior court  in  granting  an  injunction 
against  the  prosecution  of  a  suit  in  a  cir- 
cuit court  of  the  United  States;  and  re- 
m.anded  the  cause  for  further  proceedings. 
In  pursuance  of  the  mandate,  the  supreme 
court  of  Illinois  reversed  and  set  aside 
the  injunction  decree  of  the  superior 
court,  and  directed  a  dismissal  of  the  bill. 
Ii  WPS  contended  that  the  supreme  court 
of  Illinois  went  further  and  beyond  the 
m.andate,  in  directing  the  superior  court 
to  dismiss  the  bill  and  a  writ  of  error  was 
sued  out  asking  the  supreme  court  of  the 
United  States  to  supervise  and  reverse 
the  action  of  the  supreme  court  of  Illi- 
nois in  that  respect.  It  was  held,  that  the 
action  of  the  supreme  court  of  Illinois 
does  not  involve  a  federal  question  which 
the  supreme  court  of  the  United  States 
has  jurisdiction  to  review,  for  the  dis- 
missal of  the  bill  if  it  affected  any  federal 
rights  at  all  was  not  a  decision  against 
the  parties  invoking  them.  Lake  Street 
Elevated  R.  Co.  v.  Farmers'  Loan  &  Trust 
Co.,  182  U.  S.  417,  45  L.  Ed.   1161. 

69.  Davis  v.  Packard,  8  Pet.  312,  8  L. 
Ed.  957. 

70.  Recalling  mandate. — Bank  of  Com- 
merce V.  Tennessee,  163  U.  S.  416,  421,  41 
L-  Ed.  211,  distinguishing  Murdock  v. 
Memphis,  20  Wall.   590.   22   L.   Ed.   429. 

71.  Over  military  courts  and  tribunals. 
—See  the  titles  ARMY  AND  NAVY; 
MILITARY  LAW. 

72.  In  re  Vidal,  179  U.  S.  126,  45  L.  Ed. 
118. 


APPEAL  AXD  ERROR. 


797 


Naval  Court -Martial.— Neither  the  supreme  court  of  the  District  of  Cokim- 
bia  nor  this  court  has  any  appellate  jurisdiction  over  the  naval  court-martial,  nor 
over  offenses  which  such  a  court  has  power  to  try.  Neither  of  these  courts  is 
authorized  to  interfere  with  it  in  the  performance  of  its  duty,  by  way  of  a  writ 
of  prohibition  or  any  order  of  that  nature."^ 

By  Certiorari.— The  supreme  court  of  the  United  States  is  not  empowered 
by  §  716  of  the  Revised  Statutes  to  review  the  proceedings  of  military  tribunals 
by  certiorari.'^  Nor  has  the  supreme  court  of  the  United  States  power  to  re- 
view by  certiorari  the  proceedings  of  a  military  commission  ordered  by  a  general 
officer  of  the  United  States  army,  commanding  a  military  department.  "The  ap- 
pellate powers  of  the  supreme  court,  as  granted  by  the  constitution,  are  limited 
and  regulated  by  the  acts  of  congress,  and  must  be  exercised  subject  to  the  ex- 
ceptions  and  regulations   made  by  congress. "''^ 

9.  Over  Supreme  Court  of  Philippine  Islands — a.  In  General. — Section 
10  of  the  Philippine  Act  of  July  1,  1902,  32  Stat.  c.  1369,  pp.  691.  695,  provides: 
"That  the  supreme  court  of  the  United  States  shall  have  jurisdiction  to  review, 
revise,  reverse,  modify,  or  affirm  the  final  judgments  and  decrees  of  the  supreme 
court  of  the  Philippine  Islands  in  all  actions,  cases,  causes,  and  proceedings  now 
pending  therein  or  hereafter  determined  thereby  in  which  the  constitution  or  any 
statute,  treaty,  title,  right,  or  privilege  of  the  United  States  is  involved,  or  in 
causes  in  which  the  value  in  controversy  exceeds  twenty-five  thousand  dollars,  or 
in  which  the  title  or  possession  of  real  estate  exceeding  in  value  the  sum  of  twenty- 
five  thousand  dollars,  to  be  ascertained  by  the  oath  of  either  party  or  of  other 
competent  witnesses,  is  involved  or  brought  in  question ;  and  such  final  judgments 
or  decrees  may  and  can  be  review^ed,  revised,  reversed,  modified,  or  affirmed  by 
said  supreme  court  of  the  United  States  on  appeal  or  writ  of  error  by  the  party 
aggrieved,  in  the  same  manner,  under  the  same  regulations,  and  by  the  same  pro- 
cedure, as  far  as  applicable,  as  the  final  judgments  and  decrees  of  the  circuit 
courts  of  the  United  States.""^ 

b.    Amount  in  Controversy. — Under  §  10  of  the  Philippine  Islands  act  of  1902 


73.  Wales  v.  Whitley,  114  U.  S.  564, 
570,  29  L.  Ed.  277;  United  States  v. 
Fletcher,  148  U.  S.  84,  92,  37  L.  Ed.  378, 
citing  Dynes  v.  Hoover,  20  How.  65,  15 
L.  Ed.  838;  Smith  v.  Whitney,  116  U.  S. 
167,  29  L.  Ed.  601;  Keyes  v.  United  States. 
1C9   U.    S.    336,    28    L.    Ed.    954. 

74.  In  re  Vidal,  179  U.  S.  126,  45  L.  Ed. 
118. 

The  question  of  the  issue  of  the  writ 
of  certiorari  in  the  exercise  of  inherent 
general  power  cannot  arise  in  respect  to 
military  tribunals.  In  re  Vidal.  179  U.  S. 
126.   45   L.    Ed.    118. 

By  the  act  of  congress  of  April  12, 
1900,  31  Stat.  77,  ch.  191,  taking  effect  by 
its  terms  on  the  1st  of  May,  the  military 
tribunal  established  for  the  department 
of  Porto  Rico  was  discontinued,  and  a 
United  States  district  court  established 
as  its  successor,  authorized  to  take  pos- 
session of  its  records  and  to  take  juris- 
diction of  all  cases  and  proceedings  pend- 
ing therein.  It  was  held,  that  the  su- 
preme court  of  the  United  States  has  no 
jurisdiction  to  review  proceedings,  had  in 
the  said  military  tribunal.  In  re  Vidal. 
179  U.  S.  126,  45  L.  Ed.  118. 

75.  Durousseau  v.  United  States,  6 
Cranch  307.  314,  3  L.  Ed.  232:  Barry  v. 
Mercein,   5    How.    103,   119,   12   L.    Ed.    70; 


United  States  v.  Curry,  6  How.  106,  113, 
12  L.  Ed.  363;  Forsythe  v.  United  States. 
9  How.  571,  13  L.  Ed.  262;  Ex  parte  Val- 
landigham,   l   Wall.   243,  17  L.    Ed.   589. 

It  is  not  "within  the  letter  or  spirit  of 
the  grants  of  appellate  jurisdiction  to  the 
supreme  court.  It  is  not  in  law  or  equity 
within  the  meaning  of  those  terms  as 
used  in  the  3d  article  of  the  constitution. 
Nor  is  a  military  commission  a  court 
within  the  meaning  of  the  14th  section  of 
the  judiciary  act  of  1789.  That  act  is  de- 
nominated to  be  one  to  establish  the  ju- 
dicial courts  of  the  United  States,  and 
the  14th  section  declares  that  all  the  be- 
fore mentioned  courts  of  the  United 
States  shall  have  power  to  issue  writs  of 
scire  facias,  habeas  corpus,  and  all  other 
writs  not  specially  provided  for  by  stat- 
ute, which  may  be  necessary  for  the  ex- 
ercise of  their  respective  jurisdictions, 
agreeably  to  the  principles  and  usages  of 
law.  The  words  in  the  section,  'the  be- 
fore mentioned'  courts,  can  only  have 
preference  to  such  courts  as  were  estab- 
lished in  the  preceding  part  of  the  act, 
and  excludes  the  idea  that  a  court  of  mil- 
itary commission  can  be  one  of  them." 
Ex  parte  Vallandigham,  1  Wall.  243,  IT 
L.  Ed.  589. 

76.  In  general.— Fisher  v.  Baker,  203  U. 
S.  174,  181,  51  L.  Ed.  142. 


79d>  APPEAL  AM)  ERROR. 

allowing  appeals  in  all  cases  where  the  amount  in  controversy  exceeds  $25,CX)0, 
this  court  has  no  power  to  create  an  exception  not  made  in  the  statute,  since 
that  would  be  judicial  legislaticnJ^  For  the  purposes  of  the  jurisdiction  of  this 
court  over  the  supreme  court  of  the  Philippine  Islands  in  a  suit  for  divorce,  "it 
makes  no  difference  whether  the  amount  claimed  be  termed  alimony  or  the  wife's 
share  of  the  community  property.  It  is  sufficient  that  she  claimed  to  be  entided 
to  an  amount  exceeding  twenty-five  thousand  dollars.'"^ ^ 

c.  Roncdics  for  Transferring  Cause. — Judgments  of  the  supreme  court  of  the 
Philippine  Islands,  rendered  in  an  action  at  law,  can  be  reviewed  here  only  by 
writ  of  error.  This,  in  the  absence  of  modification,  by  statute,  is  the  rule  in 
respect  to  all  courts  whose  records  are  brought  here  for  review."^ 

Habeas  Corpus  Proceedings. — Under  that  part  of  §  10  of  the  Philippine 
Island  act  of  July  1,  1902,  32  Stat.,  c.  1369,  pp.  691,  695,  providing  that  final 
judgments  or  decrees  of  the  supreme  court  of  the  Philippine  Islands  may  and 
can  be  reviewed,  revised,  reversed,  modified  or  affirmed  by  the  supreme  court  of 
the  United  States  on  appeal  or  writ  of  error  by  the  party  aggrieved,  in  the  same 
manner  and  under  the  same  regulations  and  by  the  same  procedure,  as  far  as  ap- 
plicable, as  the  final  judgments  and  decrees  of  the  circuit  courts  of  the  United 
States,  final  orders  of  the  supreme  court  of  the  Philippine  Islands  in  habeas  cor- 
pus can  only  be  reviewed  by  appeal  and  not  by  writ  of  error,  because  a  proceed- 
ing in  habeas  corpus  is  a  civil  and  vk>\.  a.  criminal  proceeding,  and  final  orders  of 
the  circuit  courts  or  district  courts  of  the  United  States  in  habeas  corpus  can 
only  be  reviewed  by  appeal  and  not  by  writ  of  error. -'^^ 

d.  Re-Examination  of  Facts. — The  territorial  practice  act  of  April  7,  1874,  18 
Stat.  27,  by  virtue  of  which  the  jurisdiction  of  this  court  on  appeal  from  the 
supreme  court  of  a  territory  does  not  extend  to  a  re-examination  of  the  facts, 
but  is  limited  to  determining  whether  the  findings  of  fact  support  the  judgment 
and  to  reviewing  errors  in  the  admission  or  rejection  of  testimony  on  exceptions 
duly  taken,  has  no  application  to  appeals  from  the  Philippine  Islands. ^^  The 
Philippine  Code  of  Procedure  (Public  Laws  of  Philippine  Commission,  Acts,  1900, 
1901)  prescribes  in  chapter  22  the  practice  of  the  supreme  court  in  reviewing  the 
judgments  of  courts  of  first  instance.  It  confines  the  review  to  questions  of  law, 
with  certain  exceptions,  one  of  which  is  as  follows:  "If  the  excepting  party  filed 
a  motion  in  the  court  of  first  instance  for  a  new  trial,  upon  the  ground  that  the 
findings  of  fact  were  plainly  and  manifestly  against  the  weight  of  evidence,  and 
the  judge  overrules  said  motion,  and  due  exception  was  taken  to  his  overruling 
the  same,  the  supreme  court  may  review  the  evidence  and  make  such  findings 
upon  the  facts  and  render  such  final  judgment  as  justice  and  equity  require.  But, 
if  the  supreme  court  shall  be  of  the  opinion  that  the  exception  is  frivolous  and  not 
made  in  good  faith,  it  may  impose  double  or  treble  additional  costs  upon  the  ex- 
cepting party,  and  may  order  them  to  be  paid  by  counsel  prosecuting  the  bill  of 
exceptions,  if  in  its  opinion  justice  so  requires. "^^  ^^  appeal  to  this  court  from 
a  judgment  of  the  supreme  court  of  the  Philippine  Islands  in  a  proceeding  for 
divorce  calls  for  a  re-examination  of  the  grounds  upon  which  the  petition  for  a 
separation  of  the»conjugal  property  and  alimony  pendente  lite  was  denied. ^^  De- 
cisions of  the  supreme  court  of  the  Philippine  Islands,  where  the  amount  exceeds 
825,000,  ?re  reviewable  on  appeal  or  writ  of  error,  under  §  10  of  the  act  of  July 
1,  1902,  32  Stat.  691,  in  the  same  manner  as  judgments  of  the  circuit  courts  of 
the  United  States,  and  such  appeals  extend  to  an  examination  of  the  facts  as  well 

77.  Amount    in     controversy. — De     La       Ed.    142. 

Rama  v.   De   La   Rama,  201  U.   S.   303,  50  81.     Re-examination    of    facts. — De    La 

L.   Ed.  765.  Fama   v.   De    La    Rama.   201   U.   S.   303,  50. 

78.  De  La  Rama  v.  De  La  Rama,  201  U.        L.  Ed.  765. 

S    303,  311,  50  L.  Ed.  765.  92.    Behn    v.    Campbell,    205    U.    S.    403. 

79.  Remedies   for   transferring   cause. —      408.  51  L.  Ed.  857. 

Behn  v.   Campbell,   205   U.   S.   403,   407,   51  83.    De  La  Rama  v.  De  La  Rama,  201  U. 

L.  Ed.  857.  S.    303,   50   L.    Ed.   765. 

80.  Fisher  v.  Baker,  103  U.  S.  174,  51  L. 


APPEAL  AXD  ERROR.  799 

as  the  law,  and  in  a  case  where  alimony  or  separation  of  conjugal  property  has 
been  awarded  by  the  decree  of  divorce  to  an  amount  exceeding  $25  000  and  ju- 
risdiction of  the  appeal  is  taken  by  this  court  on  account  of  the  amount  involved 
It  may  pass  upon  the  sufficiency  of  the  testimonv  authorizing  or  refusing  the 
decree,  if  necessary  to  determine  whether  the  decree  was  right  in  that  respect.^^ 
But  the  rule  that  upon  a  writ  of  error  only  questions  of  law  ai)parent  on  the  rcc- 
<ird  can  be  considered,  and  that  there  can  be  no  inquiry  whether  there  was  error 
in  dealing  with  questions  of  fact,  applies  equally  to  appeals  from  the  supreme 
court  of  the  Philippine  Islands.^5  Whether  the  supreme  court  of  the  Philippine 
Islands  erred  in  setting  aside  the  conclusions  of  the  lower  court,  plainly  and  mani- 
festly against  the  weight  of  evidence,  is  not  a  question  of  law  which  may  be 
brought  here  by  a  writ  of  error. ^^ 

e.  Appeals  by  the  Government  in  Criminal  Cases. — The  government  no  longer 
has  a  right  of  appeal  in  criminal  cases  in  the  Philippine  Islands.^" 

f.  Assignment  of  Errors. — It  is  provided  in  the  act  giving  this  court  juris- 
diction to  review  the  judgments  of  the  supreme  court  of  tlie  Philippine  Islands 
that  they  may  be  reviewed  here  "in  the  same  manner,  under  the  same  regula- 
tions, and  by  the  same  procedure  as  far  as  applicable,  as  the  final  judgments^ and 
decrees  of  the  circuit  court  of  the  United  States."  In  such  cases  alleged  errors, 
not  stated  in  the  assignment  of  errors  filed  with  the  petition  for  the  writ,  have 
sometimes  been  considered.  The  limits  of  this  practice  is  accurately  stated  in 
the  thirty-fifth  rule  of  this  court.  There  it  is  said  that  if  errors  are  not  assigned 
with  the  petition  for  the  writ  they  will  be  disregarded,  except  that  the  court,  in 
its  option,  may  notice  a  plain  error  not  thus  assigned.** 

g.  Reversal. — The  judgment  of  the  court  of  first  instance  of  the  Philippine 
Islands,  finding  that  the  wife  in  a  divorce  proceeding  had  not  committed  the  of- 
fense charged  in  the  bill,  should  not  be  reversed  by  the  supreme  court  of  the 
Philippine  Islands  unless  the  findings  of  that  court  were  plainly  and  manifestly 
against  the  weight  of  evidence.*'' 

10.  Over  Court  of  Private  Laxd  Claims — a.  Right  of  Appeal. — Congress  has 
power  to  confer  upon  this  court  jurisdiction  to  entertain  appeals  from  decisions 
of  the  court  of  private  land  claims.-'"  And  an  appeal  lies  to  this  court  from  a  de- 
cree of  the  district  court  for  California,  in  a  proceeding  under  the  act  of  14th  of 
June,  1860  (12  Stat,  at  Large  ZZ),  commonly  called  the  survey  law.^^ 

84.  De  La  Rama  v.  De  La  Rama,  201  U.  S.  100.  49  L.  Ed.  114,  followed  in  Dorr 
U  S.  .303,  50  L.  Ed.  765,  citing  Beyer  v.  v.  United  States,  195  U.  S.  138,  49  L.  Ed. 
LeFevre,  186  U.  S.  114.  119.  46  L.  Ed.  128;  Mendezona  v.  United  States,  195  U. 
1080.  S.  158,  49  L.  Ed.  136,  citing  United  States 

85.  De  La   Rama   case   distinguished. —  v.  Sanges,  144  U.  S.  310,  36  L.  Ed.  445. 

It    was    held    in    De    La    Rama    :■.    De    La  Military  order.   No.   58,   as   amended   by 

Rama,   201   U.   S.   303,  50   L.   Ed.   765,  that  ?ct    of   the    Philippine    commissioner.    No. 

upon    an    appeal    this    court    will    consider  194,   in   so   far  as  it   undertakes   to   permit 

whether  a  reversal  by  the  supreme  court  an    appeal    by    the    government    after    ac- 

of   the    findings    of   the    court    of    first    in-  quittal,  is  repealed  by  the  act  of  congress 

stance    was    justified    on    the    ground    that  of    July.     1902,    provided    immunity    from 

the  findings  below  were  plainly  and  man-  second  jeopardy  for  the  same  criminal  of- 

ifestly    against    the    weight    of    evidence,  fense.      Kepner   v.    United    States,    195    U. 

and   upon   being   satisfied   that   the   action  S.    100,    49    L.    Ed.    114;    Dorr    v.    United 

of  the   supreme   court   was  not   warranted  States,  195  U.  S.  138.  49  L.  Ed.  128;  Men- 

on    that    ground    would    reverse    it.      But  dezona  v.  United  States.  195  U.  S.  158,  49 

this  case  was  one  of  appeal,  and  the  vital  L.   Ed.   136. 

distinction  between   an   appeal   and  a   writ  88.      Assignment     of     errors. — Behn     v. 

of   error    has    already    been    shown.      The  Campbell,   205    U.    S.    40.T,   409,    51    L.    Ed. 

principle   acted   upon    in    that    case   is    not  587. 

applicable    to    writs    of    error.      Behn    v.  89.    Reversal. — De   La   Rama  v.   De   La 

Campbell.    205    U.  S.  403,  409,  51  L.  Ed.  587.  Rama,  201  U.  S.  303.  50  L.  Ed.  765. 

86.  Behn  v.  Campbell,  205  U.  S.  403,  51  90.  Right  of  appeal.— United  States  v. 
L.   Ed.  857,  distinguishing  De  La  Rama  v.  Coe,  155  U.   S.   76.  S4.  39   L.   Ed.  76. 

De  La  Rama.  201  U.  S.  303,  50  L.  Ed.  765.  91.    The    Fossat    Case,    2    Wall.    649.    17 

87.  Appeals  by  the  government  in  crim-        L.  Ed.  739. 

inal  cases. — Kepner  v.   United   State?.    195  A   proceeding   in    the   district   or   circuit 


800  APPEAL  AND  ERROR. 

But  appeals  on  frivolous  grounds,  from  decrees  in  cases  of  California  sur- 
veys, in  the  name  of  the  United  States,  acting  for  intervenors,  under  the  act  of 
June  14,  1860,  were  discouraged  as  being  liable  to  abuse ;  since  on  the  one  hand, 
the  party  wronged  by  the  appeal  gets  no  costs  from  the  government ;  while,  on 
the  other,  the  government  is  made  to  pay  the  expenses  of  a  suit  promoted  under 
its  name  by  persons  who  may  be  litigious   intervenors  merely.^- 

There  can  no  longer  be  an  appeal  to  the  supreme  court  of  the  United  States 
from  an  order  of  the  district  court  of  the  United  States  sustaining  a  demurrer  to 
and  dismissing  a  petition  for  the  enforcement  of  a  decree  confirming  a  claim,  un- 
der the  act  of  congress  to  ascertain  and  settle  private  land  claims  in  the  state  of 
California,  passed  March  3,  1851,  because  even  if  the  court  of  appeals  act  does 
not  apply  to  the  case,  the  appellate  jurisdiction  of  this  court  was  clearly  taken 
away  by  §  3  of  the  act  of  1864,  and  transferred  to  the  circuit  court  of  the  United 
States  for  California,  except  as  to  appeals  which  had  already  been  taken.  And  if 
there  had  been  no  reservation  of  pending  cases,  even  such  cases  would  have  fallen 
within  the  law.^"^ 

b.  The  Remedy  for  Reviewing. — Causes  in  the  court  of  private  land  claims  are, 
in  effect,  equity  causes  and  brought  to  this  court  by  appeal,  and.  as  observed  by 
Chief  Justice  Ellsworth,  in  \\'iscart  v.  D'Auchy,  3  Dall  321.  1  L.  Ed.  61".  "an 
appeal  is  a  process  of  civil-law  origin,  and  removes  a  cause  entirely;  subjecting- 
the  fact,  as  well  as  the  law,  to  a  review  and  retrial ;  but  a  writ  of  error  is  a  proc- 
ess of  common-law  origin  and  it  removes  nothing  for  re-examination  but  the 
law."9* 

c.  Questions  Reznewable—(\)  In  General. — The  jurisdiction  of  the  board  of 
commissioners  for  the  settlement  of  private  land  claims  in  California,  and  of  the 
courts  of  the  United  States  on  appeal,  extends  not  only  to  the  adjudication  of 
questions  relating  to  the  genuineness  and  authenticity  of  the  grant,  and  others  of 
a  similiar  character,  but  also  all  questions  relating  to  its  location  and  boundaries; 
and  does  not  terminate  until  the  issue  of  a  patent  conformably  to  the  decree. ^^ 
Likewise,  an  appeal  will  lie  from  an  order  of  the  district  court  setting  aside  and 
annulling  surveys  of  land  claims  arising  by  virtue  of  a  right  or  title  derived  from 
the  Spanish  or  American  government."'*  Rut  the  decrees  of  the  district  court  on 
California  land  surveys  under  the  acts  of  congress  are  final,  not  only  a*-  <<■  the 

court  of  the  United  States  under  the  act  circuit."  United  States  v.  Circuit  Judges, 
of  March  nd,  1851,  9  Stat,  at  Large,  fi31.  3  Wall.  673,  17  L-  EH.  111. 
for  the  ascertainment  and  settlement  of  The  action  of  congress  under  the  act  of 
private  land  claims  in  the  state  of  Cali-  Dec.  22,  1858,  11  Stat.  374,  confirming;  title 
fornia,  is  in  the  nature  of  a  proceeding  in  to  private  land  claims  of  the  Pueblo  In- 
equity. A  decree  of  the  circuit  court  in  dians,  is  not  subject  to  judicial  review  in 
one  of  these  cases  transferred  to  it  is  this  or  any  other  forum;  the  right  is  not 
therefore  subject  to  appeal  to  the  supreme  given  by  act  of  congress.  United  States 
court  of  the  United  States  under  the  v.  Conway,  175  U.  S.  60.  44  L.  Ed.  72; 
amendatory  judicial  act  of  March  3d,  1803,  Tameling  v.  United  States  Freehold,  etc., 
2  Stat,  at  Large  244.  "By  the  22d  section  Co.,  9.3  U.  S.  644.  662.  23  L  Ed.  998.  See, 
of  the  judiciary  act,  in  connection  with  also.  Maxwell  Land  Grant  Case.  121  ¥. 
the   act   of    March    3,    1803,   all   judgments  S.   325,  30   L-   Ed.  949. 

and  decrees  in  civil  actions,  and  in  suits  in  92,     United    States    v.    Billing,    2    WaH. 

equity  in  a  circuit  court  brought  there  by  444    jy  l,    Ed.  848. 

original   process,    or   removed   there    from  nn      n     •            tt   -^   j    o*   ^         -.a,    n     c 

^  .        r   , ,                   14.^                              A  93.     Gwm    V.    United    States,    184    U     0. 

courts   or   the   several    states,   or   removed  „._     ,.   y      t?j     ,~a-,           cc         a    ■      n^^.   « 

^,          ,                  1  r               A..'^            ^  669.   46    L.    Ed.    741,   reaffirmed   m    Gore  v. 

there  by  appeal  from  a  district  court,  may  jy    ■.     ,  a.^,-  ^    -.««  tt    c    en,    -n  t     rtA    voq 

,                        ■       i        A                  A             cc         J  United  btates,  199  U.  b.  604,  z>Q  L,.  bo.  .U^. 

be   re-examined   and   reversed   or   airirmed  _,                 ,      .             .      .           tt         i 

in  the  supreme  court.     It  is  said  that  the  94.    The  remedy  for  reviewing.— United 

present  case  was  not  brought  into  the  cir-  States    v.    Coe,    155    U.    S.    76,    83.    .39    L. 

cuit  by  an  appeal  from   the  district  court,  E^.  7G. 

and     hence    is    not    within    the    provision.  95.     Questions   reviewable   in   general.— 

The  case,  as  we  have  seen,  comes  into  the  United  States  v.  Fossatt,  21   How.  445.  16 

circuit  under  the  4th  section  of  the  act  of  L.   Ed.   186. 

1864,   not   by   appeal,   but   by   an    order   of  96.    Higueras  v.   United   States,  5   Wall 

the    district    court    transferring    it    to    the  827,  18  L.  Ed.  469. 


APPEAL  AND  ERROR.  801 

(juestions  of  title,  but  as  to  the  boundaries  which  it  specifies;  and  the  remedy,  if 
erroneous,  is  by  appeal. ^^ 

(2)  Necessity  for  Finality  of  Decision.— This  court  might  have  reviewed  the 
decrees  of  the  district  court  under  this  act,  which  were  not  final  decrees  under 
ihe  judiciary  act  of  1789.''^ 

(3)  Discretionary  Matters.— \Where,  under  the  statute  of  June  14,  1860,  re- 
lating to  surveys  of  Mexican  grants  in  California,  notice  has  been  given  to  all 
parties  having  or  claiming  to  have  any  interest  in  the  survey  and  location  of  the 
claim,  to  appear  by  a  day  designated,  and  intervene  for  the  protection  of  their 
interest,  and  upon  the  day  designated  certain  parties  appeared,  and  the  default 
of  all  other  parties  was  entered ;  the  opening  of  such  default  with  respect  to  any 
party  subsequently  applying  for  leave  to  appear  and  intervene,  is  a  matter  rest- 
ing in  the  discretion  of  the  district  court,  and  its  action  on  the  subject  is  not  open 
to   revision    on   appeal.^" 

(4)  Questions  of  Fact.— The  supreme  court  of  the  United  States  will  not  re- 
view and  reverse  the  decision  of  the  court  of  private  land  claims  as  to  the  suflfi- 
ciency  of  the  evidence  of  possession  under  a  Spanish  grant,  where  the  evidence 
is  such  that  different  inferences  might  be  drawn  therefrom. ^ 

d.  Transfer  of  Cause — (1)  In  General. — The  12th  section  of  the  act  of 
August  31st,  1852,  provides  that,  in  every  case  in  which  the  board  of  land  com- 
missioners in  California  shall  render  a  final  decision,  it  shall  be  their  duty  to  have 
two  certified  transcripts  of  their  proceedings  and  decisions,  and  of  the  papers  and 
evidence  on  which  the  same  were  founded,  made  out,  one  of  which  transcripts 
shall  be  filed  with  the  clerk,  shall  ipso  facto  operate  as  an  appeal  for  the  partv 
against  whom  the  decision  shall  be  rendered ;  and  if  such  decision  shall  be  against 
the  private  claimant,  it  shall  be  his  duty  to  file  a  notice  with  the  clerk  of  the  court, 
within  six  months  thereafter,  of  his  intention  to  prosecute  the  appeal;  and  if 
the  decision  shall  be  against  the  United  States,  it  shall  be  the  duty  of  the  at- 
lorney  general  of  the  United  States,  within  six  months  after  receiving  the  sai«l 
transcript,  to  cause  to  be  filed  with  the  clerk  aforesaid  a  notice  that  the  appeal 
will  be  prosecuted  by  the  United  States ;  and  on  the  failure  of  either  party  to  file 
such  notice  with  the  clerk,  the  appeal  shall  be  regarded  as  dismissed. - 

(2)    What  Lazv  Governs. — Appeals  from  the  district  courts  of  California,  un- 

97.  United  States  v.  Billings,  2  Wall.  A  decree  was  entered  by  the  court  of 
444,  17  L.  Ed.  848,  following  United  States  private  land  claims  confirming  title  of  the 
t:.  Halleck,  1  Wall.  4.39.  17  L.  Ed.  nfi  < ;  m-mnal  grantees  to  a  tract  of  land  from 
The  Fossat  Case.  2  Wall.  649,  17  L.  Ed.  whom  the  petitioners  derived  their  title. 
739.  For  the  purpose  of  proving  a  grant  a  cor- 

98.  Necessity  for  finality  of  decision. —  rect  copy  of  the  original  record  showing 
After  the  authenticity  of  a  grant  of  land  the  proceedings  taken  before  a  civil  judge 
ir:  California  is  ascertained  in  this  court,  of  the  canton  under  the  provisions  of  the 
and  a  reference  has  been  made  to  the  law  of  the  republic  of  Mexico,  May  23, 
district  court,  to  determine  the  external  18.37,  to  perpetuate  evidence  of  the  title 
bounds  of  the  grant,  in  order  that  the  final  was  introduced  in  evidence.  On  an  ap- 
confirmation  may  be  made,  another  ap-  peal  to  the  supreme  court  of  the  Unites 
peal  cannot  be  claimed  until  the  whole  States,  it  was  held  that  in  the  absence  of 
of  the  directions  of  this  court  are  com-  any  sufficient  attack  upon  the  record  or 
plied  v/ith,  and  that  decree  made.  "In  the  of  any  evidence  on  the  part  of  the  goy- 
exercise  of  the  jurisdiction  conferred  by  ernment  going  to  disprove  or  di'-credit 
this  act  (Act  of  1824)  and  acts  of  a  sim-  the  averments  contained  therein,  it  formed 
ilar  character,  this  court  has  habitually  enough  of  a  basis  for  the  finding  of  the 
revised  decrees  of  the  district  court,  which  court  below  that  there  was  a  grant  made 
were  not  final  decrees  under  the  judiciary  as  stated  in  its  findings,  and  that  such 
act  of  1789."  United  States  v.  Fossatt,  grant  and  the  record  thereof  in  the  ar- 
21   How.  446,  16  L.  Ed.  186.  chives   had  been   destroyed  under   the   cir- 

99.  Discretionary      matters.— U  n  i  t  e  d       cumstances   mentioned.      United    States   v. 
States  V.  Estudillo,  1  Wall.  710.  17  L.   Ed.       Pendell,  185  U.   S.   189,  46  L.   Ed.  866. 
702.  2.     Transfer    of    cause    in    general. — D* 

1.  Questions  of  fact.— United  States  v.  Yturbide  v.  United  States,  22  How.  290, 
Pendell,   185  U.   S.  189,  46   L-   Ed.   866.  16  L-   Ed.   342,  343. 

1  U  S  Enc-51 


802  APPEAL  AND  ERROR. 

der  the  act  of  March  3d,  1851 — which,  while  giving  an  appeal  from  them  to  thi> 
court,  makes  no  provision  concerning  returns  here,  and  none  concerning  cita- 
tions, and  which  does  not  impose  any  limitation  of  time  within  which  the  appeal 
may  be  allowed — are  subject  to  the  general  regulations  of  the  judiciary  acts  of 
1789  and  1803,  as  construed  by  this  court.  Hence,  the  allowance  of  the  appeal, 
together  with  a  copy  of  the  record  and  the  citation,  when  a  citation  is  required, 
must  be  returned  to  the  next  term  of  this  court  after  the  appeal  is  allowed.-' 

(3)  Allowance  of  Appeal. — An  associate  justice  of  the  court  of  private  land 
claims  may  allow  an  appeal  to  this  court.^ 

(4)  Parties  to  the  Appeal. — The  United  States  government  may  appeal  from 
a  decision  of  the  court  of  private  land  claims  in  favor  of  a  petitioner,  and  even 
though  the  government  have  no  interest  in  the  result  of  the  litigation.  Upon  such 
appeal,  the  government  is  at  liberty  to  show  that  the  petitioner  is  not  entitled  to 
a  confirmation  of  his  claim.^  The  9th  section  of  the  act  of  congress  of  1824, 
making  it  the  duty  of  the  district  attorney  in  every  case  of  claim  to  land  in  Mis- 
souri, under  that  act,  where  the  decision  is  against  the  United  States,  and  the 
claim  exceeds  1,000  acres,  to  report  the  case  to  the  attorney  general,  who,  if  he 
shall  think  the  decision  erroneous,  shall  direct  an  appeal  to  be  taken,  does  not 
prevent  the  United  States  from  appealing  when  a  claim  is  for  less  than  1,000 
acres.^ 

Controversy  between  Individuals. — When  the  government  does  not  claim 
land  in  California  as  public  land,  this  court  will  not  entertain  jurisdiction  of  an 
appeal  by  the  United  States  from  a  district  court  there  under  the  act  of  March 
3d,  1851,  for  the  settlement  of  private  land  claims;  it  has  no  jurisdiction  under 
that  act — nor  has  the  district  court — when  the  controversy  fs  between  individ- 
vtals  wholly.'^  In  an  appeal  by  the  United  States  from  a  decree  of  one  of  those 
courts,  where  the  proceeding  below  was  to  have  a  land  title  confirmed  under  this 
act  of  March  3,  1851,  an  assertion  by  the  counsel  of  the  United  States  that  the 
controversy  is  between  individuals  wholly,  and  that  the  United  States  have  no 
interest  in  the  case,  is  sufficient  to  satisfy  the  court  of  that  fact  so  far  as  re- 
spects the  United  States  itself.  But  it  is  not  sufficient,  the  record  itself  not  show- 
ing the  fact,  to  satisfy  the  court  as  respects  the  opposing  party.  Hence,  although 
if  this  court  have  no  jurisdiction  because  the  controversy  is  between  private  in- 
dividuals wholly,  the  court  below  had  none  either,  yet  where  the  fact  of  such  in- 
dividual interest  in  the  suit  rests  wholly  on  the  admission  of  the  United  States 
here,  and  the  opposing  party  is  not  represented  here  by  counsel,  this  court  will 
not  reverse  the  decree  below,  but  will  only  dismiss  the  case.^ 

(5)  Notice  of  Intention  to  Appeal. — The  12th  section  of  the  act  of  31st  of 
Aueust,  1852,  providing  for  an  appeal  from  the  board  of  land  commissioners  in 
California  to  the  district  court,  directs  that  notice  of  an  intention  to  appeal  shall 
be  filed  within  six  months ;  and  on  failure  to  file  such  notice,  the  appeal  shall  be 
regarded  as  dismissed.  This  language  is  mandatory  on  the  court,  and  admits  of 
no  discretion.     In  case  of  such  failure,  the  appeal  must  be  dismissed.^ 

3.  What  law  governs.— Castro  v.  United  U.  S.  408,  42  L.  Ed.  1087."  United  States  ». 
States,   3   Wall.   46,   18  L.   Ed.   163.  Pena,  175  U.  S.  500,  502,  44  L.  Ed.  251. 

4.  Allowance  of  appeal. — United  States  5.  Parties  to  the  appeal. — United  States 
V.   Pena,  175  U.  S.   500,  44  L.   Ed.   251.  v.  Conway,  175  U.   S.  60,  44   L.   Ed.  72. 

"A  final  contention  is  that  the  allowance  6.     United    States    v.    Porche,    12    How. 

of   appeal    was    not   made   by   the    presid-  426,  13  L.  Ed.  1051. 

ing  judge  but  by  one  of  the  associate  jus-  7.   United  States  v.  Morillo,  1  Wall.  706, 

tices  of  that  court.    But  the  provisions  of  17  L.   Ed.   626. 

§  9  is   that   appeals   shall  be   taken   in   the  8.     United    States    v.    Morillo,    1    Wall, 

same   manner   and   upon   the    same   condi-  706,  17  L.  Ed.  626. 

tions    as    appeals   from    the   judgments    of  9.    Notice  of  intention  to  appeal. — Ytur- 

a  circuit  court  of  the   United   States,   and  bide    v.    United    States,    22    How.    290,    16 

by  §  999  of  the  Revised  Statutes  any  judge  L.  Ed.  34'?. 

of  such  court  has  the  power  to  act.     The  In    United    States    v.    Ritchie,    17    How. 

rule   is   diflferent   in   cases   coming  from   a  524,  15  L.  Ed.  236,  it  was  objected  that  the 

state    court.      Havnor    v.    New    York,    170  12th  section   of  the   act  of  1852  providing 


APPEAL  AXD  ERROR. 


803 


(6)  Limitations  of  Appeal. —Section  9  of  the  act  creating  the  court  of  private 
land  claims,  act  of  March  3.  1891,  c.  539,  26  Stat.  854,  858.  while  giving  to  either 
party  the  right  of  appeal  within  six  months  from  the  date  of  the  decision,  also 
j)rovides  that  on  the  rendition  of  a  judgment  confirming  any  claim  it  shall  be  the 
duty  of  the  attorney  of  the  United  States  to  notify  the  attorney  general  in  writ- 
ing of  the  judgment,  giving  a  clear  statement  of  the  case  and  the  points  decided 
—a  statement  to  be  verified  by  the  certificate  of  the  presiding  judge  of  the  court; 
and  also  that  if  the  attorney  general  shall  not  receive  such  statement  within  sixt>' 
days  next  after  the  rendition  of  a  judgment,  the  right  of  appeal  on  the  part  of 
the  United  States  shall  continue  to  exist  until  six  months  next  after  the  receipt 
of  the  statement.  1*^ 

e.  ExccptioYis  and  Objections. — In  appeals  from  orders  of  the  district  court, 
with  respect  to  surveys  of  land  claims  arising  by  virtue  of  a  right  or  title  derived 
from  the  Spanish  or  Mexican  government,  the  questions  for  decision  here  are 
those  only  which  are  presented  in  the  exceptions. ii  Accordingly,  when  certain 
testimonials  of  title,  under  a  Spanish  grant,  have  been  admitted  without  excep- 
tion, before  the  commissioners  of  the  United  States  for  the  adjustment  of  claims 
to  lands  in  Florida,  and  before  the  superior  court  in  Middle  Florida,  without  ob- 
jecticHi  as  to  the  mode  and  form  of  their  proof;  the  supreme  court,  on  an  appeal, 
will  not  interfere  with  the  question  as  to  the  sufficiency  of  the  proof,  or  the  au- 


for  an  appeal  from  a  final  decision  of 
a  board  of  commissioners  to  sell  private 
land  claims  in  California,  makes  no  pro- 
vision for  notice  to  the  party  in  whose 
favor  the  decision  had  been  rendered  by 
the  commissioners,  of  the  appeal  to  the 
district  court.  The  court  said:  "He  has 
notice  of  the  appeal,  as  the  filing  of  the 
transcript  by  the  board,  according  to  the 
act,  has  that  effect;  and  then  ordinary 
diligence  will  enable  the  party  to  be  heard 
on  the  appeal.  Besides,  the  court  has  the 
power,  doubtless,  to  regulate  the  time  of 
the  hearing,  and  provide  for  reasonable  no- 
tice by  its  rules,  so  as  to  prevent  sur- 
prise." 

10.  Limitations  of  appeal. — United 
States  V.  Pena.  175  U.  S.  500.  501,  44  L. 
Ed.  251. 

Sufficient  reason  for  the  delay  of  the 
United  States  attornej'  in  failing  to  give 
notice  to  the  attornej^  general  of  a  judg- 
ment confirming  a  private  land  claim, 
thereby  extending  the  time  for  an  appeal 
by  the  United  States  is  shown  by  the  al- 
lowance of  an  appeal  by  a  justice  whose 
attention  was  called  to  it.  thereby  ap- 
proving the  action  of  the  attorney.  United 
States    V.  Pena,  175  U.  S.  500,  44  L.  Ed.    251. 

Under  §  9  of  the  act  creating  the  court 
of  private  land  claims,  act  of  March  3, 
1891,  c.  539.  26  Stat.  854,  858,  it  is  pro- 
vided that  either  party  may  appeal  within 
six  months  from  the  date  of  the  decision, 
and  that  on  the  rendition  of  a  judgment 
conferring  any  claim  it  should  be  the  duty 
of  the  attornej^  of  the  United  States  to 
notify  the  attorney  general  in  writing  of 
the  judgment,  giving  a  clear  statement  of 
the  case  and  the  points  decided;  and  also 
if  the  attorney  general  shall  not  receive 
such  statement  within  sixty  days  next 
after  the  rendition  of  a  judgment,  the 
right  of  appeal  on  the  part  of  the  United 


States  should  continue  to  exist  until  six 
months  next  after  the  receipt  of  the  state- 
ment. Held,  where  the  decree  was  en- 
tered on  December  1st,  1896,  but  no  such 
statement  was  sent  to  the  attorney  gen- 
eral until  March  9th.  1898.  or  received  by 
him  until  March  25th.  1898,  that  the  leave 
for  an  appeal  on  the  part  of  the  United 
States  had  not  expired.  United  States  v. 
Pena,   175   U.   S.   500,   44   L.    Ed.   251. 

Act  for  adjustment  of  land  claims  in  Lou- 
isiana.— The  9th  section  of  the  act  of  26t]i 
of  May,  1824,  relative  to  the  action  of  the 
attorney  general  in  cases  of  appeal,  is 
only  directory,  and  its  nonobservance 
does  not  vitiate  an  appeal,  provided  it  be 
taken  by  the  district  attorney  and  sanc- 
tioned in  this  court  by  the  attorney  gen- 
eral. "The  ninth  section  of  said  act  has 
this  provision:  'That  it  shall  be  the  duty 
of  the  district  attorney  of  the  United 
States  for  the  district  in  which  the  suite 
authorized  by  this  act  shall  be  instituted, 
in  every  case  where  the  decision  is  against 
the  United  States,  and  the  claim  exceeds 
one  thousand  acres,  to  make  out  and 
transmit  to  the  attorney  general  of  the 
United  States  a  statement  containinjr  the 
facts  of  the  case,  and  the  points  of  law  on 
which  the  same  was  decided;  and  if  the  at- 
torney general  shall  be  of  opinion  iWat  the 
decision  of  the  district  court  was  erro- 
neous, it  shall  be  his  duty  to  direct  an  ap- 
peal to  be  made  to  the  supreme  court  of  the 
United  States,  and  to  appear  and  prose- 
cute the  said  appeal  in  that  court;  and  it 
shall  be  the  further  duty  of  the  district 
attorney  to  observe  the  instructions  given 
to  him  by  the  attorney  general  in  that  re- 
spect." United  States  v.  Curry,  6  How. 
106.  12  L.   Ed.  363. 

11.  Exceptions  and  objections. — Hi- 
gueras  v.  United  States,  5  Wall.  827,  18 
L.  Ed.  469. 


804  APPEAL  AND  ERROR. 

thenticity  of  the  acts  relating  to  the  title,  which  had  been  admitted  by  the  author- 
ities in  Florida,  which  was  the  tribunal  to  judge  of  the  evidence. ^^ 

f.  Effect  of  Appeal. — It  is  provided  in  the  ninth  section  of  the  act  of  March  3, 
1891,  c.  539,  26  Stat.  854,  establishing  the  court  of  Private  Land  Claims,  that, 
upon  any  appeal  from  such  court,  "the  supreme  court  shall  retry  the  cause,  as 
well  the  issues  of  fact  as  of  law,  and  may  cause  testimony  to  be  taken  in  addi- 
tion to  that  given  in  the  court  below,  and  may  amend  the  record  of  the  proceed- 
ings below  as  truth  and  justice  may  require;  and  on  such  retrial  and  hearing  every 
question  shall  be  open."^''  An  appeal  from  a  decree  of  the  district  court  to  the 
supreme  court,  in  California  land  cases,  suspends  the  operation  and  efifect  of  the 
decree  only  when,  by  a  judgment  of  the  supreme  court,  the  claim  of  the  con- 
firmee in  the  premises  in  controversy  may  be  defeated.^* 

g.  Who  May  Allege  Error. — The  general  rule  that  parties  who  have  not  ap- 
pealed are  not  entitled  to  be  heard  in  this  court,  except  in  support  of  the  decree 
in  the  court  below,  applies  equally  to  appeals  taken  in  these  proceedings.'^'' 

h.  Dismissal  of  Appeal. — "What  Constitutes. — The  act  of  August  31st.  1852, 
relating  to  appeals  from  the  board  of  Land  Commissioners  to  ascertain  and  set- 
tle private  land  claims  in  California,  created  under  the  act  of  March  3d,  1851, 
provides  that  the  filing  of  a  transcript  of  the  decision  and  proceedings  of  the  board 
with  the  clerk  of  the  district  court  shall  operate  ipso  facto  as  an  appeal  on  behalf 
of  the  party  against  whom  the  decision  was  rendered,  and  that  the  attorney  gen- 
eral shall,  within  six  months  after  receiving  a  certified  transcript  of  such  decree 
and  proceedings,  when  the  decision  is  against  the  United  States,  cause  notice  to 
be  filed  with  the  clerk  that  the  appeal  will  be  prosecuted,  and  on  failure  to  give 
such  notice  that  "the  appeal  shall  be  regarded  as  dismissed."  Under  this  act.  when 
the  attorney  general  gave  notice  that  he  would  not  prosecute  the  appeal,  such 
appeal  was  for  all  legal  purposes  in  fact  dismissed,  and  the  decree  of  the  board 
took  effect  precisely  as  if  no  appeal  had  ever  been  taken ;  and  an  order  or  decree 
of  the  district  court  giving  leave  to  the  claimant  to  proceed  upon  the  decree  of 
the  board  as  upon  a  final  decree  was  a  proper  disposition  of  the  case.'^' 

Vacating  Dismissal. — An  appeal  of  a  case  originating  below  under  the  stat- 
ute of  Jwne  14,  I860,  relating  to  surveys  of  Mexican  grants  in  California,  and 
in  which  the  appellants  appear  on  the  record  as  the  United  States,  simply  (no 
intervenors  being  named),  remains  within  the  control  of  the  attornev  general; 
and  a  dismissal  of  the  case  under  the  29th  rule  of  this  court  is  not  subject  to  be 
vacated  on  the  application  of  parties  whose  names  do  not  actuallv  appear  in  the 
record  as  having  an  interest  in  the  case,  even  although  it  is  obvious  that  below 
there  were  some  private  owners  contesting  the  case  under  cover  of  the  govern- 
ment name,  and  that  some  such  were  represented  by  the  same  counsel  who  now 
profess  to  represent  them  here.^'^ 

12.  United  States  ?'.  Delespine.  15  Pet.  trict  court,  under  the  act  of  June  14.  1860, 
319,  10  L.  Ed.  TS.*?,  citing  United  States  v.  relatin.e:  to  surveys  of  Mexican  grants  in 
Clarke,  8  Pet.  436.  4.54,  8  L.  Ed.  1001.  California  to  appear  and  contest  the   sur- 

13.  Effect  of  appeal.— United  States  v.  vey  and  location,  the  order  of  the  court 
Chaves.  159  U.   S.  452,  455,  40  L.   Ed.  215.  permittmg    such    appearance    and    contest 

..ry-  -Kr  r\         n    /.  Txr  11    n^o    -,  o       should  be   Set  forth   in   the   record.      Only 

14.  Grisar  v.  McDowell,  6  Wall.  363.   18        .,  u       u  u        a 

T     KH    fifi^  those    persons,    who.    by    such    order,    are 

..«•     Tiru  n                         Tc  made    parties    conte'^tant,     will    be    heard 

15.  Who  may  allege  error. — If  no   ap-                    '     ,      tt   u  ^   c^  ^            w  ^    rn      -, 
,   .     .   ,  4.     4.U-              i.  u      iU  TT   -4-1       on   appeal.      United    btates  v.   Estudillo,   1 

peal  IS  taken  to  this  court  bv  the   United  ,,.  m    „-,^  -r,  t      t>j    n./^f^     tvj-h        c 

o^   .        r                1                f  4.U     J-  4.  •  4.            <-  Wall,   710.  17   L,.   Ed.   702;   Miller,   Swayne 

States  from  a  decree  of  the  district  court  j    V-,      •       tt      a-         *•          t*              r>     i 

r   /~i  1-r        •       •                       A-             J        i-u  and      )avis,    IJ.,   dissenting:     laney.    L.   J., 

of   California,   in    a   proceeding  under   the  j   ^  ■  t       u       <. 

.      r  T          -,  I    ..o^r.Vio  C4.  4.   ?        4-  T  and   drier,  J.,  absent. 

act  of  June  14,  1860  (12  Statutes  at  Large  ■' 

33),  commonly  called  the  survey  law,  they  16.  Dismissal  of  appeal.— Beard  i:  Fed- 
may  appear  in  this  court  as  appellees,  cy,  3  Wall.  478,  18  L-  Ed.  88. 
but  cannot  demand  a  reversal  or  chancre  17.  United  States  z'.  Estudillo,  1  Wall. 
of  the  decree.  The  Fossat  Case,  2  Wall.  710,  17  L.  Ed.  702,  Swayne  and  Davis,  JJ., 
649,  17  L.  Ed.  739.  "  dissenting;  Taney,  C.  J.,  and  Crier,  J.,  ab- 
Where  parties  are  permitted  by  the  dis-  sent. 


APPEAL  AND  ERROR.  805 

11.  Over  Supreme  Court  of  Porto  Rico  and  the  United  States  District 
Court— a.  In  General.— The  35th  section  of  the  Porto  Rico  act  is  in  these  words : 
•'That  writs  of  error  and  appeals  from  the  final  decisions  of  the  supreme  court 
of  Porto  Rico  and  the  district  court  of  the  United  States  shall  be  allowed  and  may 
be  taken  to  the  supreme  court  of  the  United  States  in  the  same  manner  and 
under  the  same  regulations  and  in  the  same  cases  as  from  the  supreme  courts  of 
the  territories  of  the  United  States ;  and  such  writs  of  error  and  appeal  shall  be 
allowed  in  all  cases  where  the  constitution  of  the  United  States,  or  a  treaty 
thereof,  or  an  act  of  congress,  is  brought  in  question  and  the  right  claimed  there- 
under is  denied ;  and  the  supreme  and  district  courts  of  Porto  Rico  and  the  re- 
spective judges  thereof  may  grant  writs  of  habeas  corpus  in  all  cases  in  vvhicn 
the  same  are  grantable  by  the  judges  of  the  district  and  circuit  courts  of  the 
United  States.  All  such  proceedings  in  the  supreme  court  of  the  United  States 
shall  be  conducted  in  the  English  language."'^ 

Effect  of  Circuit  Court  of  Appeals  Act.— In  a  lengthy  opinion  by  Mr.  Jus- 
tice Harlan,  in  which  all  the  statutes  bearing  on  the  question  were  reviewed  and 
discussed,  it  was  held,  that  writs  of  error  and  appeals  may  be  prosecuted  to  this 
court  from  the  district  court  of  the  United  States  for  Porto  Rico  in  the  same 
manner,  under  the  same  regulations  and  in  the  same  cases  as  from  the  supreme 
court  of  the  territories  of  the  United  States.  And,  this,  so  far  as  the  final  judg- 
ments of  the  district  courts  of  the  United  States  for  Porto  Rico  are  concerned, 
is  not  afifected  by  anything  in  the  circuit  court  of  appeals  act  of  1891.  "If  con- 
gress had  intended  that  the  judgments  of  the  United  States  court  for  Porto  Rico 
should,  in  any  class  of  cases,  be  re-examined  in  some  circuit  court  of  appeals  of 
the  United  States,  it  would  have  so  declared  by  appropriate  words.  It  did  not  so 
declare.  "^^ 

Appellate  Jurisdiction  of  Court  of  Appeals. — The  Porto  Rico  act  of  1900 
does  not  refer  to  the  circuit  court  of  appeals  act  of  1891,  nor  contain  any  pro- 
vision looking  to  the  assignment  of  Porto  Rico  to  one  of  the  established  cir- 
cuits. This  tends  to  show  that  it  was  the  intention  of  the  act  of  1900  to  establish 
a  direct  connection  between  this  court  and  the  United  States  court  for  Porto  Rico 
in  respect  to  every  case  which,  if  determined  by  the  supreme  court  of  a  territory 
of  the  United  States,  could  have  been  brought  here  under  the  statutes  in  force 
when  the  act  of  1891  was  passed.  In  our  opinion,  congress  did  not  intend  that 
any  connection  should  exist  between  the  United  States  court  for  Porto  Rico  and 
any  circuit  court  of  appeals  established  under  the  act  of  1891. ^^  Unless  the  case 
is  one  in  which  the  judgment  can  be  reviewed,  then  such  judgment  is  final  and 
not  subject  to  review ;  for  no  case  determined  in  the  United  States  court  for  Porto 
Rico  can  be  carried  to  a  circuit  court  of  appeals.  Congress  did  not  intend  that 
any  connection  should  exist  between  the  United  States  court  for  Porto  Rico  and 
any  circuit  court  of  appeals  established  under  the  act  of  1891.21 

18.  Over  supreme  court  of  Porto  Rico  States  for  Porto  Rico  under  the  35th 
and     the     United     States     district     court  section    of   the    act    of   congress    of   April 

31      Stat.      77,      a.^l.      c.      191;      Serralles  12th,  1900,  c.  191,  where  the  matter  in  dis- 

V.  Esbri,  200  U.  S.  103,  50  L-  Ed.  391;  pute  exceeds  the  sum  of  $5,000,  and  the 
Royal  Ins.  Co.  v.  Martin,  192  U.  S.  149,  final  judgment  in  a  like  case  "in  the  su- 
159,  48  L.  Ed.  385.  reaffirmed  in  Resales  preme  court  of  one  of  the  territories  of 
Cueli  V.  Rodriguez,  198  U.  S.  581,  49  L.  the  United  States  could  have  been  re- 
Ed.  1172-  Garrozi  v  Dastas,  204  U.  S.  64,  viewed  here.  Hijo  v.  United  States,  194 
51  L.  Ed'  369;  Rodriguez  r.  United  States,  U.  S-  315,  48  L.  Ed.  994;  Royal  Ins.  Co. 
198  U  S.  156,  49  L.  Ed.  994;  Crowley  v.  v.  Martin.  192  U.  S.  149,  48  L.  Ed.  385. 
United  States  194  U.  S.  461.  48  L.  Ed.  20.  Royal  Ins.  Co.  v.  Martm,  192  U.  S. 
1075.  149,   160,  48   L.   Ed.  385,   reaffirmed  in  Ro- 

19,  Royal  Ins  Co.  v.  Martin,  192  U.  S.  sales  Cueli  v.  Rodriguez,  198  U.  S.  581,  49 
149,  48  L.  Ed  385-  Rosales  Cueli  v.  Rod-  L.  Ed.  1172;  Garrozi  v.  Dastas,  204  U.  S. 
roguez,    198    U.    S.    581,    49    L.    Ed.    1172;  64.  51  L.   Ed.  369. 

Garrozi  v.  Dastas,  204  U.  S.  64,  51  L.  Ed.  369.  21.   Amado   v.  United   States,   195   U.   S. 

This  court  has  jurisdiction  to  review  a       172,  176,  49  L.  Ed.  145;   Royal  Ins    Co.  v. 

decision  of  the  district  court  of  the  United       Martin,   192  U.  S.   149,  160,  48  L.   Ed.  385. 


S06  APPEAL  AND  BKKOK. 

Section  15  of  Court  of  Appeals  Act. — The  territories  of  the  United  States, 
referred  to  in  the  15th  section  of  the  act  of  1891,  are  those  which  it  was  con- 
templated would  be  assigned  to  some  circuit,  and  they  do  not  embrace  Porto  Rico ; 
and  the  words  in  the  act  of  1900,  "in  the  same  manner  and  under  the  same  regu- 
lations and  in  the  same  cases  as  from  the  supreme  court  of  a  territory  of  the 
United  States,"  refer  not  to  the  act  of  1891  but  to  those  general  statutes  author- 
izing this  court  to  review  the  final  judgment  of  the  supreme  court 
of  a  territory  of  the  United  States  in  every  case,  without  regard  to 
the  sum  or  value  in  dispute,  where  the  constitution  of  the  United 
States  or  a  treaty  thereof  or  an  act  of  congress  is  brought  in  ques- 
tion and  the  right  claimed  thereunder  is  denied,  and  in  every  other  case  where 
the  sum  or  value  in  dispute  exceeds  $5000,  exclusive  of  costs.22  These  views 
as  to  the  scope  and  effect  of  the  Porto  Rico  act  of  1900  are  not  at  all  affected  by 
the  provisions  in  the  acts  relating  to  the  re-examination  of  the  final  judgments  of 
the  highest  court  of  the  Indian  Territory,  Hawaii  and  Alaska. ^^  Those  acts  had 
exclusive  reference  to  the  particular  territories  named — each,  upon  its  face,  show- 
ing that  the  final  judgments  of  the  courts  of  those  territories,  at  least  in  certain 
cases,  should  be  reviewable,  primarily,  in  a  designated  circuit  court  of  appeals  of 
the  United  States.  No  such  provisions  are  found  in  the  act  of  1900,  and  this 
court  has  not  assumed  to  assign  Porto  Rico  to  any  circuit  of  the  United  States.^^ 

b.  Jurisdiction  as  Dependent  on  Amount  in  Controversy. — By  the  act  of  April 
12,  1900  (31  Stat.  L.  85,  ch.  191),  the  general  rule  governing  the  right  of  this 
court  to  review  by  writs  of  error  or  appeal  final  decisions  of  the  district  court 
of  the  United  States  for  Porto  Rico,  was  made  as  to  amount  to  conform  to  that 
c>btaining  as  to  the  territories  of  the  United  States,  viz.  five  thousand  dollars.^^ 
The  supreme  court  of  th«  United  States  has  no  jurisdiction  to  review  a  judgment 
of  the  district  court  of  Porto  Rico  for  $5,000  and  costs,  although  it  carries  in- 
terest, for  it  is  the  amount  of  the  judgment  that  furnishes  the  test  of  jurisdiction. 2» 
Where  the  case  does  not  involve  the  requisite  jurisdictional  amount,  it  follows 
that  the  right  of  review  does  not  exist  unless  the  case  is  within  the  provision  of 
the  statute  conferring  jurisdiction  to  review  in  this  court  "in  all  cases  where 
*  *  *  an  act  of  congress  is  brought  in  question  and  the  right  claimed  therein 
is  denied. "2^ 

c.  Jurisdiction  cks  Dependent  on  Claim  of  Federal  Right. — In  General. — This 
court  has  jurisdiction  to  review  the  judgment  of  the  supreme  court  of  Porto  Rico 
under  §  35  of  the  Foraker  act  (April  12th,  1900),  where  a  right  is  claimed  un- 
der a  statute  of  the  United  States  and  denied. ^s  But  the  Porto  Rican  laws  in 
force  at  the  time  of  the  adoption  of  the  act  of  congress  of  April  12,  1900,  com- 

22.  Royal  Ins.  Co.  v.  Martin,  192  U.  S.  28.  Jurisdiction  as  dependent  on  claim 
149,  160,  48  L-  Ed.  385,  reaffirmed  in  Ro-  of  federal  right. — A  right  is  claimed  and 
sales  Cueli  v.  Rodriguez,  198  U.  S.  581,  49  denied  under  a  statute  of  the  United 
L.  Ed.  1172;  Garrozi  v.  Dastas,  204  U.  S.  States  within  the  meaning  of  the  Foraker 
64.  51   L,.  Ed.  369.  act    of   April    12th,    1900,    giving   the    court 

23.  Indian  Territory,  26  Stat.  826,  c.  517,  jurisdiction  to  review  the  judgment  of  the 
§  13;  Hawaii,  31  Stat.  141,  158,  c.  339,  §  supreme  court  of  Porto  Rico,  where  a 
86;   Alaska,  31   Stat.  321,  245,  c.  786.  judgment  of   the   supreme   court   of   Porto 

24.  Royal  Ins.  Co.  v.  Martin,  192  U.  S.  Rico  requires  an  indebtedness  to  be  paid 
149.  160,  48  L.  Ed.  385,  reafifirmed  in  Ro-  in  American  money  at  the  rate  of  one  dol- 
sales  Cueli  v.  Rodriguez,  198  U.  S.  581,  49  lar  for  each  peso  of  indebtedness,  as 
L.  Ed.  1172;  Garrozi  v.  Dastas,  204  U.  S.  against  the  claim  of  appellant  who  as- 
64,  51   L.   Ed.  369.  serts    his    right   under   §    11    of   the    act   of 

25.  Jurisdiction  as  dependent  on  congress  of  April  12th,  1900,  under  which 
amount  in  controversy. — American  R.  Co.  the  rate  of  liquidation  is  sixty  cents  of 
;■  Castro,  204  U.  S.  453,  454,  51  L.  Ed.  American  money  to  each  peso  of  indebt- 
564.  edness,   and   the   claim   of  appellant  being 

26.  Ortega  v.  Lara,  202  U.  S.  339,  50  denied  on  the  ground  that  there  was  a  clear 
L.  Ed.  1055;  Dones  v.  Urrutia,  202  U.  S.  contract  to  pay  as  demanded  by  the  ap- 
614,   50   L.    Ed.   1172.  pellee,   and   that   the   act   of   congress   had 

27.  American  R.  Co.  :■.  Castro,  204  U.  no  application  to  the  case.  Serralles  v. 
S.   453,  454,   51   L.   Ed.   564.  Esbri,  200  U.  S-  103,  50  L.   Ed.  391. 


APPEAL  AND  ERROR.  807 

monly  known  as  the  "Foraker  Act"  did  not  thereby  become,  by  adoption,  laws 
of  the  United  States,  so  that  a  denial  of  the  right  or  claim  under  them  by  the 
district  court  of  Porto  Rico,  would  give  the  supreme  court  of  the  United  States 
jurisdiction  to  review  the  judgment  upon  the  ground  that  a  federal  question  was 
involved.29  Under  the  act  of  April  12,  1900,  31  Stat.  L.  85,  ch.  191,  governing 
the  right  of  this  court  to  review  by  writs  of  error  or  appeal  final  decisions  of  the 
district  court  of  the  United  States  for  Porto  Rico,  which  gives  a  right  of  review 
regardless  of  amount  "in  all  cases  where  an  act  of  congress  is  brought  in  ques- 
tion and  the  right  claimed  therein  is  denied,"  it  is  held,  tliat  the  mere  assertion  of 
a  federal  right,  and  its  denial,  did  not  justify  our  assuming  jurisdiction  where  it 
indubitably  appears  that  the  federal  right  asserted  is  frivolous,  that  is,  without 
color  of  merit. -^^ 

When  Is  the  Act  "Brought  in  Question."— Under  the  act  of  congress  of 
April  12,  1900,  31  Stat.  L.  85,  ch.  191,  giving  this  court  a  right  to  review  by  writs 
of  error  or  appeal  final  decisions  of  the  district  court  of  the  United  States  for 
Porto  Rico,  without  regard  to  the  amount,  in  all  cases  where  an  act  of  congress 
is  brought  in  question  and  the  right  claimed  therein  is  denied  ;  "It  has  been  settled 
that  where,  in  the  course  of  litigation  pending  in  the  court  just  referred  to,  a 
party  asserts  a  right  under  an  act  of  congress,  the  act  'is  brought  in  question,' 
and  when  the  right  so  claimed  is  denied  the  case  can  be  brought  hei^."^^ 

Criminal  Cases. — The  words,  "brought  in  question,"  in  the  act  of  April  12. 
1900,  do  not  mean  that  the  accused,  in  order  to  bring  the  final  judgment  here, 
must  have  disputed  the  validity  of  the  acts  of  congress  which  were  alleged  to 
liave  been  violated  to  their  prejudice.  It  was  quite  sufficient  that  they  should  as- 
sert rights  under  those  acts  and  that  the  rights  so  claimed  were  denied  to  them.-^- 
A  prosecution  in  the  United  States  district  court  of  Porto  Rico  for  violation  of  § 
3082  of  the  Revised  Statutes  providing  punishment  for  importing  dutiable  arti- 
cles without  paying  duty,  is  not  reviewable  by  the  supreme  court  of  the  United 
States. ^"^  An  objection  that  an  indictment  does  not  set  forth  "an  offense  under 
the  statutes  of  the  United  States,"  amounts  to  nothing  more  than  a  plea  of  not 
guilty,  or  a  general  demurrer,  and  is  not  an  assertion  of  any  particular  right  un- 
der the  constitution,  treaty  or  act  of  congress,  so  as  to  give  the  United  States  su- 
preme court  jurisdiction  to  review  a  judgment  of  the  United  States  district  court 
of  Porto  Rico.-^-* 

A  right  is  claimed  and  denied  under  a  statute  of  the  United  States, 
in  order  to  give  this  court  jurisdiction  to  review  the  decision  of  a  district  court 
under  the  §  35  of  the  Foraker  act  of  April  12,  1900,  where  the  prisoner  claimed 
in  the  United  States  court  of  Porto  Rico  that  the  qualifications  of  the  grand  ju- 
rors presenting  an  indictment  against  him  should  have  been  ascertained  under  the 
local  act  of  January  21,  1901,  and  the  district  court  decides  adversely  to  his  con- 
tention.-5  Under  the  act  of  April  12,  1900  (31  Stat,  at  L.  85,  ch.  191),  provid- 
ing that  writs  of  error  and  appeal  may  be  prosecuted  from  the  final  decisions  of 
the  district  court  of  the  United  States  for  the  district  of  Porto  Rico  in  all  cases 
where  an  act  of  congress  is  brought  in  question  and  the  right  claimed  thereunder 
is  denied,  it  was  held  that  the  supreme  court  of  the  United  States  can  review  on 

29.  Ortega  r. '  Lara,  202  U.  S.  339,  50  v.  United  States.  194  U.  S.  461.  48  L.  Ed. 
L.  Ed.  105.^);  Dones  7:  Urrutia,  202  U.  S.  1075;  Scrralles  v.  Esbri.  200  U.  S.  10.^. 
614,  50  L.   Ed.  1172.  50  L.  Ed.  391;  American  R.  Co.  v.  Castro. 

30.  American    R.    Co.   v.   Castro,   204    U.  204  U.  S.  453,  51  L-  Ed.  564. 

S.  453,  51   L.   Ed.  564.  33.    Amado  v.   United  States,   195  U.    S. 

31.  Crowley  r.  United  States.  194  U.   S.        179,  49  L.  Ed.  145. 

461,   48   L.    Ed.    1075;    American    R-    Co.   y.  3^     Amado  v.   United   States,   195   U.   S. 

Castro.  204  U.   S.   453,  455,  51   L.    Ed.  o64;  _,    .^.  r     p  , 

Serralles  r.  Esbri,  200  U.  S.  103,  50  L.  Ed.        ^^I;    '^'  ^^^^  ^^^/*J. 

391;    Rodriguez   v.    United    States.    198    U.  ,,f  \5T°''i7  !'n.V"    !  /^  ^^''^^ 

q    j-r    10   T      PH    QQii  461,  48  L.   Ed.  1075,  cited  m  Rodriguez  :. 

'    32!'RndrTguT:zt     U^^;-^1    Spates.   198   T^  United    States.    198    U.    S.    156,    161,    49    L. 

S.  156,   164,  49   L.    Ed.  Qd-i.  citing  Crowley  ^"-   9^^- 


808 


APPEAL  AND  ERROR. 


writ  of  error  a  final  decree  of  the  district  court  of  the  United  States  for  the  dis- 
trict of  Porto  Rico  overriding  a  motion  in  arrest  of  judgment  by  the  accused  on 
the  ground,  among  others,  that  the  jurors  had  not  been  selected  or  drawn  in  the 
mode  required  by  the  Revised  Statutes  of  the  United  States.-^^  The  su- 
preme court  has  jurisdiction  to  review,  on  writ  of  error,  the  proceedings  of 
the  district  court  of  the  United  States  for  the  district  of  Porto  Rico,  had  under 
the  act  of  February  12,  1900,  31  Stat.  77,  85,  where  such  proceedings  were  in  the 
nature  of  a  criminal  case  in  which  the  defendant  claimed  that  rights  arising  un- 
der acts  of  congress  were  denied  him.s'^ 

d.  Scope  of  Reznezv. — The  review  by  the  supreme  court  of  the  United  States 
of  the  final  judgments  of  the  district  court  of  the  United  States  for  Porto  Rico 
is  not  restricted  by  the  act  of  April  12th,  1900,  31  Stat,  at  L.  77,  84,  ch.  191,  § 
34,  to  those  cases  in  which  the  constitution  or  a  treaty  of  the  United  States  is 
brought  in  question  and  the  right  claimed  under  it  denied.  There  may  be  cases, 
certainly  civil  cases,  in  the  United  States  district  court  for  Porto  Rico,  that  do 
not  involve  any  question  arising  under  the  constitution  or  a  treaty,  or  an  act  of 
congress,  and  yet  if  the  case  be  one  which,  if  determined  in  the  supreme  court  of 
one  of  the  territories  of  the  United  States,  could  be  brought  here  for  re-examination, 
the  final  judgment  could  be  reviewed  by  this  court,  although  no  right  of  a  distinctly 
federal  nature  was  involved.^*  On  an  appeal  to  this  court  from  a  decree  of  the 
district  court  of  the  United  States  for  the  district  of  Porto  Rico,  in  a  suit  for  par- 
tition, a  claim  not  set  up  in  the  bill  nor  in  the  court  below,  nor  suggested  until 
after  the  argument  in  this  court,  will  not  be  considered  on  appeal  by  this  court.^^ 

12.  Review  of  Decisions  of  Interstate  Commerce  Commission. — In  Gen- 
eral.— Since  the  passage  of  the  circuit  court  of  appeals  act,  no  direct  appeal  will 
lie  from  this  court  to  review  the  decisions  of  the  interstate  commerce  commis- 
fion.4'> 

Weight  of  Finding's. — The  findings  of  the  interstate  commerce  commission 
are  made  by  law  prima  facie  true.  This  court  has  ascribed  to  them  the  strength 
due  to  the  judgments  of  a  tribunal  appointed  by  law  and  informed  by  experi- 


36.  Rodriguez  v.  United  States,  198  U. 
S.  156,  49  L.  Ed.  994,  citing  Crowley  v. 
United  States,  194  U.  S.  461,  48  L.  Ed. 
1075. 

37.  Rodriguez  v.  United  States,  198  U. 
S.  156,  161,  49  L.  Ed.  994.  citing  Crowley 
r.  United  States,  194  U.  S.  461,  462,  48 
L.   Ed.  1075. 

38.  Scope  of  review. — Amado  v.  United 
States,  195  U.  S.  172,  175,  49  L.  Ed.  145; 
Royal  Ins.  Co.  v.  Martin,  192  U.  S.  149, 
160,  48  L.  Ed.  385;  Hijo  v.  United  States, 
194  U.  S.  315,  320,  48  L-  Ed.  994;  Crowley 
V.  United  States,  194  U.  S.  461,  48  L.  Ed. 
1075. 

39.  Rodriguez  v.  Vivoni,  201  U.  S.  S71, 
50   L.   Ed.  792. 

40.  Review  of  decisions  of  interstate 
commerce  commission. — Interstate  Com- 
merce Commission  f.  Atchison,  etc.,  R. 
Co..  149  U.  S.  264,  37  L.  Ed.  727;  citing 
McLish  V.  Roff,  141  U.  S.  661,  35  L.  Ed. 
S93;  Lau  Ow  Bew  v.  United  States,  144 
V.  S.  47,  36  L.  Ed.  340;  Hubbard  v.  Soby, 
146  U.  S.  56,  36  L.  Ed.  886;  Chicago,  etc., 
K.  Co.  V.  Osborne,  146  U.  S.  354.  36  L. 
Ed.  1002.  / 

Assuming  that  §  16  of  the  interstate 
commerce  act  remained  unrepealed,  it 
was  .  nevertheless  so  far  affected  as  that 
the  appeal  from  the  trial  court  had  to  be 
prosecuted  to  the  circuit  court  of  appeals 


instead  of  to  this  court.  Interstate  Com- 
merce Commission  v.  Atchison,  etc.,  R. 
Co.,  149  U.  S.  264,  37  L.  Ed.  727;  Louis- 
ville, etc.,  R.  Co.  V.  Behlmer,  169  U.  S. 
644,   646,  42  L.   Ed.  889. 

By  the  sixteenth  section  of  the  inter- 
state commerce  act  (24  Stat.  c.  104,  379; 
25  Stat.  c.  382,  855),  it  was  provided  that 
where  the  commission  had  made  any  law- 
ful order  or  requirement,  and  a  party  re- 
fused to  obey  or  perform  it,  it  should  be 
lawful  for  the  commission,  or  any  per- 
son or  company  interested  therein,  to  ap- 
ply to  the  circuit  court  sitting  in  equity 
for  the  enforcement  of  such  order;  and 
it  was  further  provided,  in  respect  of  the 
action  of  the  circuit  court,  that  "whenever 
the  subject  in  dispute  shall  be  of  the  value 
of  two  thousand  dollars  or  more,  either 
party  to  such  proceedings  before  said 
court  may  appeal  to  the  supreme  court  of 
the  United  States,  under  the  same  reg- 
ulations now  provided  by  law  in  respect 
of  security  for  such  appeal."  In  Inter- 
state Commerce  Commission  v.  Atchison, 
149  U.  S.  264,  37  L.  Ed.  727,  where  an  ap- 
peal was  taken  directly  to  this  court  after 
July  1,  1891,  from  an  order  in  a  proceed- 
ing under  that  act,  we  held  that  it  would 
not  lie.  Little  Rock,  etc.,  R.  Co.  v.  East 
Tenn.,  etc.,  R.  Co.,  159  U.  S.  698,  699, 
700,  40   L.    Ed.   311. 


APPEAL  AXD  ERROR. 


809 


ence^i  And  in  any  special  case  of  conflicting  evidence,  a  probative  force  must 
he  attributed  to  the  findings  of  the  commission,  which,  in  addition  to  "knowledge 
of  rondit-n^s.  of  environment  and  of  transportation  relations,"  has  had  the  wit- 
nesses before  it  and  has  been  able  to  judge  of  them  and  their  manner  of  testify- 
ing.-- li.is  court  will  not  review  and  reverse  the  findings  of  the  interstate  com- 
merce commission  which  were  affirmed  by  the  circuit  court  and  the  circuit  court 
of  appeals,  because  the  commission  declined  to  adopt  inferences  of  mixed  law  and 
fact,  which,  like  all  presumptions,  are  rebuttable,  and  therefore  the  commission 
in  reaching  its  ultimate  judgment  may  have  given  them  all  the  weight  to  which 
thev  were  entitled. 4" 

Questions  of  Law  or  Fact.— The  inquiry  as  to  the  result  of  competition 
upon  the  reasonableness  of  a  railroad  rate,  is  essentially  one  of  fact,  and  an  at- 
tempt to  make  competition  an  inference  of  law  dominating  against  the  findings 
f>f  the  commission  and  their  affirmance  by  the  circuit  court  will  be  of  no  avail.^-* 
The  question  of  the  reasonableness  of  a  railroad  rate  is  a  question  of  fact.  But 
the  conclusions  of  the  commission  are  subject  to  review  if  it  excludes  facts  and 
circumstances  that  ought  to  have  been  considered.^s  Whether  the  interstate  com- 
merce commission  gave  too  much  weight  to  some  parts  of  the  testimony  and  too 
li'ttle  weight  to  other  parts  of  it  is  a  question  of  fact  and  not  of  law.^e 

Effect  of  Appeal. — When  the  interstate  commerce  commission  was  created 
and  provision  made  for  the  enforcement  of  its  orders  by  the  circuit  courts,  while 
appeals  were  allowed  from  the  decrees  of  those  courts  to  this  court,  it  was  the 
legislative  will  that  such  appeals  should  not  suspend  the  operation  of  the  decrees 
appealed  from.  It  is  quite  true  that  if  the  circuit  court  reversed  the  order  of  the 
commission  and  dismissed  the  petition,  the  question  of  superseding  such  a  de- 
cree might  not  be  material,  but.  as  the  section  provided  that  either  party  might 
appeal,  the  inhibition  on  the  efifect  of  the  appeal  applied  alike  to  either.  But  this 
section  does  not  apply  to  appeals  from  circuit  court  of  appeals ;  in  such  cases 
the  judgment  of  the  circuit  court  of  appeals  operates  as  a  supersedeas.*" 


41.  Louisville,  etc.,  R.  Co.  v.  Behlmer, 
169  U.  S.  644,  648,  42  L.  Ed.  889;  East 
Tenn.,  etc.,  R.  Co.  v.  Interstate  Coinmerce 
Commission,  181  U.  S.  1.  27,  45  L.  Ed. 
"J'O;  Illinois  Central  R.  Co.  v.  Interstate 
Commerce  Commission,  206  U.  S.  441, 
434.  .51   L.   Ed.   1128. 

"The  statute  gives  prima  facie  effect  to 
the  findiup-s  of  the  commission,  and  when 
those  findings  are  concurred  in  by  the 
circuit  court,  we  thinV  they  should  not  be 
interfered  with,  unless  the  record  estab- 
lishes that  clear  and  unmistakable  error 
l-^s  been  committed."  Cincinnati,  etc.,  R. 
Co.  V.  Interstate  Commerce  C'^mmission, 
206  U.  S.  142,  .'il  L.  Ed.  99.5;  Illinois  Cen- 
tral R.  Co.  V.  Interstate  Commerce  Com- 
mission. 206  U.   S.  441,  466.  51  L-   Ed.  1128. 

42.  Illinois  Central  R.  Co.  v.  Intprstate 
Commerce  Commission.  206  U.  S.  441, 
454.  51    L.   Ed.  1128. 

43.  Illinois  Central  R.  Co.  v.  Interstate 
Commerce  Commission,  206  U-  S.  441. 
51  L.  Ed.  1128. 

44.  Illinois  Central  R.  Co.  v.  Interstate 
("om'-t-ierce  Commission.  206  U.  S.  441,  51 
L.    Ed.    1128. 

45.  Texas,  etc.,  R.  Co.  v.  Interstate 
Commerce  Commission.  162  U.  S.  197,  40 
L.  Ed.  9-10;  Cincinnriti.  etc..  R.  Co.  f.  In- 
terstate Commerce  Commission.  206  U.  S. 
142.  51  E.  Ed.  995 

46.  Illinois  Central   R.  Co.  v.  Interstate 


Commerce  Commission,  206  U.  S.  441, 
51  L.  Ed.  1128. 

47.  Louisville,  etc..  R.  Co.  v.  Behlmer. 
169  U.   S.  644,  646.  42  L.   Ed.  889. 

Se-^i'-^n  11  of  the  act  of  March  3,  1891, 
provided  among  other  things  as  follows: 
".\nd  all  provisions  of  law  now  in  force 
regulating  the  methods  and  system  of 
review,  through  appeals  or  writs  of  error, 
shall  regulate  the  method,  and  system  of 
appeals  and  writs  of  error  provided  for 
in  this  act  in  respect  of  the  circuit  court 
of  appeals,  including  all  provisions  for 
bonds  or  other  securities  to  be  reauired 
and  taken  on  such  appeals  and  writs  of 
error,  and  any  judge  of  the  circuit  court 
of  appeals,  in  respect  of  cases  brought  or 
to  be  brought  to  that  court,  shall  have  the 
same  powers  and  duties  as  to  the  allow- 
ance of  appeals  or  writs  of  error,  and  the 
conditions  of  such  allowance,  as  now  by 
law  belong  to  the  justices  or  judges  in 
respect  of  the  existing  courts  of  the 
United  States  respectively."  .A.nd  it  is 
argued  that  the  words  "all  provisions  for 
bonds  or  other  securities,"  which  were  in 
force  at  the  time  of  the  adoption  of  the 
act  of  1891.  include  as  applicable  to  ap- 
peals from  the  circuit  courts  of  appeals  the 
provision  of  §  16  of  the  interstate  com- 
merce act,  that  the  appeal  therein  referred 
t'->  shall  not  operate  to  staj^  or  supersede. 
We   cannot   accede   to   that   view,   for   the 


810  APPEAL  AAD  ERROR. 

E.  Under  Circuit  Court  of  Appeals  Act — 1.  Causes  That  Brought 
ABOUT  THE  Legislation. — Up  to  the  time  of  the  passage  of  the  act  of  1891, 
creating  the  circuit  courts  of  appeal,  the  theory  of  federal  jurisprudence  had  been, 
a  single  appellate  court,  to  wit,  the  supreme  court  of  the  United  States,  by  which 
a  final  review  of  all  cases  of  which  the  lower  federal  courts  had  jurisdiction 
was  to  be  made.  It  is  true  there  existed  certain  limitations  upon  the  right  of 
appeal  and  review,  based  on  the  amount  in  controversy  and  other  considerations; 
but  such  limitations  did  not  recognize  or  provide  for  the  existence  of  another 
appellate  court,  and  did  not  conflict  with  the  thought  that  this  court  was  to  be 
the  single  tribunal  for  reviewing  all  cases  and  questions  of  a  federal  nature. 
The  rapid  growth  of  the  country  and  the  enormous  amount  of  litigation  involv- 
ing questions  of  a  federal  character  so  added  to  the  number  of  cases  brought 
here  for  review,  that  it  was  impossible  for  this  court  to  keep  even  pace  with 
the  growing  docket.  The  situation  had  become  one  of  great  peril,  and  many 
plans  for  relief  were  suggested  and  discussed.'*^  The  outcome  was  the  act  of 
March  3,  1891,  c.  517,  26  Stat.  826,  the  thought  of  which  was  the  creation  in 
each  of  the  nine  circuits  of  an  appellate  tribunal  composed  of  three  judges, 
whose  decision  in  certain  classes  of  cases  appealable  thereto  should  be  final.^^ 

2.  Effect  on  Prior,  Inconsistent  Legiseation. — Section  14  of  the  act  of 
1891,  after  specifically  repealing  §  691  of  the  Revised  Statutes  and  §  3  of  the 
act  of  February  16,  1875,  further  provides  that  all  acts  and  parts  of  acts  re- 
lating to  appeals  or  writs  of  error,  inconsistent  with  the  provisions  for  review 
by  appeals  or  writs  of  error  in  the  preceding  §§  5,  6,  of  this  act,  are  hereby 
repealed.^"  The  object  of  the  specific  repeal,  as  this  court  has  declared,  was  to 
get  rid  of  the  pecuniary  limit  in  the  acts  referred  to.^^  And,  although  neither 
§  692  nor  §  695  of  the  Revised  Statutes  is  repealed  by  name,  yet,  taking  into 
consideration  the  general  repealing  clause,  together  with  the  affirmative  pro- 
visions of  the  act,  the  case  comes  within  the  decision  in  an  analogous  case,  in 
which  this  court  said :  "The  provisions  relating  to  the  subject  matter  under 
consideration  are,  however,  so  comprehensive,  as  well  as  so  variant  from  those 
of  former  acts,  that  we  think  the  intention  to  substitute  the  one  for  the  other 
is  necessarily  to  be  inferred  and  must  prevail. "''^  Review  by  appeal,  by  writ 
of  error  or  otherwise,  must  be  as  prescribed  by  the  act,  and  review  by  certificate 
is  limited  by  the  act  to  the  certificate  by  the  circuit  courts,  made  after  final  judg- 
ment, of  questions  raised  as  to  their  own  jurisdiction  and  to  the  certificate  by 

appeal  treated  of  in  §  IG  is  an  appeal  from  do  so,  in  order  that  new  and  substantive 

the   trial   court,   and   does  not  refer  to  an  findings    of    fact    may    be    evolved,    upon 

appeal   from   the   circuit   court   of   appeals.  which   the   order   of   the  commission   may 

"Either   party   to   such   proceeding   before  be  sustained.     Interstate  Commerce  Com- 

said   court   may   appeal,"   is   the   language,  mission    v.    Chicago,   etc.,    R.    Co.,    186   U. 

and    as   "said   court"   confessedly   referred  S.   320,   342,   46   L.   Ed.   1182,   citing  Louis- 

to    the    circuit    court,    the    only    question  ville,    etc.,    R.    Co.   v.    Behlmer,    169    U.   S. 

would  be  whether  the  scope  of  the  provi-  644,   648,   42   L-    Ed.    889. 

sion  had  been  enlarged  by  the  act  of  1891,  cz.    Causes  that  brought  about  the  leg- 

ir   the   matter  under  consideration,   which  islation.— Forsyth  v.  Hammond.  166  U.  vS. 

we   do  not   think   it   had.     Louisville,   etc.,  506.  511,  512,  41  L.  Ed.  1095,  reaffirmed  in 

R.   Co.  V.   Behlmer,   169   U.   S.   644,  647,  42  Archer  v.   Building  &  Loan  Ass'n,  179  U. 

L.   Ed.  889.  S.   679,   45   L.    Ed.   383. 

On   appeal   from   the   decree   of  the   cir-  49.    McLish  v.  Rofif,   141  U.   S.  661,  666. 

cuit  court  of  appeals,  affirming  the  decree  35  L.   Ed.  893;   Forsyth  v.   Hammond,  166 

of  the  circuit  court  refusing  to  command  U.   S.   506,   512,  41   L.   Ed.   1095,  reaffirmed 

compliance  with  an  order  of  the  interstate  in   Archer  v.   Building  &  Loan   Ass'n,   179 

commerce  commission,  the  supreme  court  U.   S.   679,   45   L.    Ed.   383. 

of  the  United  States,  being  constrained  to  50.    Effect  on  prior,  inconsistent  legisla- 

the  conclusion  that  the  order  of  the  com-  tion. — 26   Stat.   829,   830. 

mission    was    not    sustained    by    the    facts  51.    McLish  v.   Roff,   141   U.   S.  661,  667, 

upon  which  it  was  predicated,  cannot  enter  35  L.    Ed.   893. 

into    an   independent   investigation    of   the  52.    Fish  v.   Henarie,  142  U.  S.  459.  468, 

facts,   even    if   it   be    conceded   the    record  35    L.    Ed.    1080;    The     Paquete     Habana, 

is   in   a   condition   to   enable   that   court   to  175  U.  S.  677,  684,  44  L-  Ed.  320. 


AFFHAL  AND  ERROR. 


811 


the  circuit  courts  of  appeals  of  questions  of  law  in  relation  to  which  our  advice 
is  sought  as  therein  provided.^-" 

3.  Purpose  or  Object  of  Statute.— The  primary  object  of  this  act,  well 
known  as  a  matter  of  public  history,  manifest  on  the  face  of  the  act,  and  ju- 
dicially declared  in  the  leading  cases  under  it,  was  to  relieve  this  court  of  the 
overburden  of  cases  and  controversies,  arising  from  the  rapid  growtli  of  the 
country,  and  the  steady  increase  of  litigation;  and,  for  the  acco'mplislim?nt  of 
this  object,  to  transfer  a  large  part  of  its  appellate  jurisdiction  to  the  circuit 
courts  of  appeals  thereby  established  in  each  judicial  circuit,  and  to  distribute 
between  this  court  and  those,  according  to  the  scheme  of  the  act,  the  entire  ap- 
pellate jurisdiction  from  the  circuit  and  district  courts  of  the  United  States.^* 
The  act  has  uniformly  been  so  construed  and  applied  by  this  court  as  to  pro- 
mote its  general  purpose  of  lessening  the  burden  of  litigation  in  this  court,  trans- 
ferring the  appellate  jurisdiction  in  large  classes  of  cases  to  the  circuit  court 
of  appeals,  and  making  the  judgments  of  that  court  final,  except  in  extraordi- 
nary cases. ^^ 

4.  Construction  of  Statute — a.  In  General. — The  circuit  court  of  appeals 
act,  like  all  acts  of  congress,  and  even  the  constitution  itself,  is  to  be  read  in 
the  light  of  the  common  law,  from  which  our  system  of  jurisprudence  is  de- 
rived.^" 

b.  Retroactive   Operation   of  Statute. — Appeals  taken  prior  to  the  passage  of 


53.  United  States  z'.  Rider.  163  U.  S. 
132.    139,    41    L.    Ed.    101. 

54.  Purpose  or  object  of  statute. — Mc- 
lAsh  V.  Roff,  141  U.  S.  661.  666.  35  L.  Ed. 
893;  Law  Ow  Bew,  141  U.  S.  583,  35  L. 
Ed.  868;  Law  Ow  Bew  r.  United  States. 
144  U.  S.  47,  36  L.  Ed.  340;  American 
Construction  Co.  v.  Jacksonville,  etc.,  R. 
Co..  148  U.  S.  372,  382.  37  L.  Ed.  486;  In 
re  Woods,  143  U.  S.  202,  36  L.  Ed.  125; 
The  Paqnete  Habana,  175  U.  S.  677. 
681,  44  L.  Ed.  320;  Bassette  v.  Conkey  Co.. 
194  U.  S.  324,  336.  48  L.  Ed.  997;  reaf- 
firmed in  In  the  Matter  of  Lewis,  202 
U.  S.  614,  50  L.  Ed.  1172;  Louisville,  etc.. 
R.  Co.  V.  Behlmer,  169  U.  S.  644.  646,  42 
L.  Ed.  889;  United  States  v.  American 
Bell  Tel.  Co.,  159  U.  S.  548.  551,  40  L. 
Ed.  255;  Warner  v.  New  Orleans.  167  U. 
S.  467,  474,  42  L.  Ed.  239.  reaffirmed  in 
O'Neill  Ry.  Co.  v.  Trust  Co.,  172  U.  S. 
642.   43   L.    Ed.   1180. 

It  is  a  matter  of  public  history,  anl  is 
manifest  on  the  face  of  that  act,  that  its 
primary  object  was  to  facilitate  the 
prompt  disposition  of  cases  in  the  su- 
preme court,  and  to  relieve  it  of  the  enor- 
mous overburden  of  suits  and  cases  re- 
sulting from  the  rapid  growth  of  the 
country  and  the  steady  increase  of  its  lit- 
igations. That  act,  in  substance,  creates 
a  new  and  distinct  circuit  court  of  ap- 
peals, in  each  circuit,  to  be  composed  of 
three  judges,  namely,  the  circuit  justice 
when  present,  and  two  circuit  judges, 
and  also,  in  the  absence  of  any  one  of 
those  three,  a  district  judge  selected  by 
assignment  for  the  purpose  of  completing 
the  court.  It  then  provides  for  the  dis- 
tribution of  the  entire  appellate  jurisdic- 
tion of  our  national  judicial  system,  be- 
tween   the    supreme   court    of   the    United 


States  and  the  circuit  court  of  appeals, 
therein  established,  by  designating  the 
classes  of  cases  in  respect  of  which  each 
of  those  two  courts  ^hnll  respectively  have 
final  jurisdiction.  McLish  v.  Rofif.  141  U. 
S.  661.  666,  35  L.   Ed.  893. 

55.  American  Construction  Co.  v.  Jack- 
sonville, etc.,  R.  Co.,  148  U.  S.  372.  :jS2. 
37   L.   Ed.   486. 

"The  object  of  the  act  of  March  3.  1891.  c. 
517.  was  to  distribute  between  this  court 
and  the  circuit  courts  of  appeals  the  entire 
appellate  jurisdiction  over  the  circuit 
courts  of  the  United  States."  United 
States  V.  Rider,  163  U.  S.  132,  41  L.  Ed. 
101;  Motes  V.  United  States,  178  U.  S. 
458.  467,  44  L.  Ed.  1150. 

The  judiciary  act  of  March  3,  1891,  in 
distributing  the  appellate  jurisdiction  of 
the  national  judicial  system  between  the 
supreme  court  and  the  circuit  court  of  ap- 
peals therein  established,  designated  the 
classes  of  cases  in  respect  of  which  each 
of  these  courts  was  to  have  final  juris- 
diction (the  judgments  of  the  latter  be- 
ing subject  to  the  supervisory  power  of 
this  court  through  the  writ  of  certiorari 
as  provided"),  and  the  act  has  uniformly 
been  so  construed  and  applied  as  to  pro- 
mote its  general  and  manifest  purpose  of 
lessening  the  burden  of  litigation  in  this 
court.  Carey  v.  Houston,  etc.,  R.  Co.,  150 
U.   S.   170,   179,   37   L.    Ed.   1041. 

56.  Construction  of  statute  in  general. 
— United  States  v.  Sanges.  144  U.  S.  310, 
36  L.  Ed.  445,  citing  Charles  River  Bridge 
V.  Warren  Bridge.  11  Pet.  420.  545,  9  L. 
Ed.  773;  Rice  v.  Minnesota,  etc.,  R.  Co.,  1 
Plack  358,  374,  375,  17  L.  Ed,  147;  United 
States  V.  Carll,  105  U.  S.  611,  26  L.  Ed. 
1135;  Ex  parte  Wilson,  114  U.  S.  417, 
422,   29   L.    Ed.   89;    1    Kent   Com.   336. 


812 


APPEAL  AND  ERROR. 


the  act  of  March  3,  1891,  are  not  governed  by  that  act.^'^ 

5.  Time  of  Taking  Effect.— The  act  of  March  3,  1891,  26  Stat.  826,  c.  517, 
went  immediately  into  effect  on  its  enactment''^ 

6.  Effect  on  Pending  Cases. — In  view  of  the  general  rule  that  if  a  law 
conferring  jurisdiction  is  repealed,  without  any  reservation  as  to  pending  cases, 
all  such  cases  fall  with  the  law,  a  joint  resolution  was  passed  on  March  3,  1891, 
providing  "that  nothing  in  said  act  shall  be  held  or  construed  in  anywise  to  im- 
pair the  jurisdiction  of  the  supreme  court  or  any  circuit  court  of  the  United 
States  in  any  case  now  pending  before  it ;"  and  it  was  added,  "or  in 
respect  of  any  case  wherein  the  w^it  of  error  or  the  appeal  shall  have 
been  sued  out  or  taken  to  any  of  said  courts  before  the  first  day  of 
July,     Anno    Domini,  eighteen     hundred     and     ninety-one. "^^      It     is     settled 


57.  Retroactive   operation   of  statute. — 

Mattingly    v.    Northwestern    Va.    R.    Co.. 
158  U.  S.  53,  39  L.   Ed.  894. 

An  appeal  taken  prior  to  the  passage 
of  the  act  of  March  3,  1891,  is  not  gov- 
erned by  that  act,  although  the  citation 
i.-?  not  signed  until  April  14,  1891,  and  not 
served  until  the  17th  of  the  month;  be- 
cause neither  the  signing  nor  the  service 
of  the  citation  is  jurisdictional,  its  only 
office  being  to  give  notice  to  the  appel- 
lees. Mattingly  v.  Northwestern  Va.  R. 
Co.,  158  U.  S.  53,  39  L.  Ed.  894,  citing 
Jacobs  V.  George,  150  U.  S.  415,  37  L.  Ed. 
1127. 

58.  Time  of  taking  effect. — McLish  z\ 
Roff,  141  U.  S.  661,  664,  35  L.  Ed.  893;  In 
re  Claasen,  140  U.  S.  200,  35  L.  Ed.  409; 
Mason  v.  Pewabic  Min.  Co.,  153  U.  S.  361, 
363,  38   L.   Ed.   745. 

59.  Effect  on  pending  cases. — 26  Stat. 
1115,  1116;  National  Exchange  Bank  z: 
Peters,  144  U.  S.  570,  572,  36  L.  Ed.  545, 
citing  Railroad  Co.  v.  Grant,  98  U.  S.  398, 
25  L.  Ed.  231;  Gurnee  v.  Patrick  County, 
137  U.  S.  141,  34  L.  Ed.  601;  Wauton  v. 
DeWolf,  142  U.  S.  138,  35  L.  Ed.  965; 
Lutcher  v.  United  States,  157  U.  S.  427, 
39  L.  Ed.  759,  citing  Cincinnati  Safe,  etc., 
Co.  V.  Grand  Rapids  Deposit  Co.,  146  U. 
S.  54,  36  L.  Ed.  885;  Ogden  v.  United 
States,  148  U.  S.  390,  37  L.  Ed.  493;  Aspen 
Min.  Co.  V.  Billings,  150  U.  S.  31.  37  L. 
Ed.  986;  Voorhees  v.  Noye  Mfg.  Co.,  151 
U.  S.  135,  38  L-  Ed.  101;  Mason  v.  Pe- 
wabic Mining  Co.,  153  U.  S.  361,  366,  38 
L.  Ed.  745. 

By  the  joint  resolution  of  March  3, 
1891  (26  Stat.  1115).  the  jurisdiction  was 
preserved  as  to  pending  cases,  and  cases 
wherein  the  writ  of  error  or  appeal  should 
be  sued  out  or  taken  before  July  1,  1891. 
The  language  of  the  joint  resolution  of 
March  3,  1891  (26  Stat.  1115),  is  as  fol- 
lows: "And  be  it  further  resolved:  That 
nothing  in  said  act  shall  be  held  or  con- 
strued in  any  wise  to  impair  the  jurisdic- 
tion of  the  supreme  court  or  any  cir- 
cuit court  of  the  United  States  in  any 
case  now  pending  before  it,  or  in  respect 
of  any  case  wherein  the  writ  of  error  or 
the  appeal  shall  have  been  sued  out  or 
taken  to  any  of  said  courts  before  the  first 


day  of  July,  Anno  Domini  eighteen  hun- 
dred and  ninety-one."  Cincinnati,  etc.,  Co. 
V.    Grand    Rapids    Deposit    Co.,    146   U.   S. 

54,  36   L.   Ed.   885. 

Judgment  was  rendered  in  this  case  by 
the  circuit  court  of  the  United  States  for 
the  southern  district  of  Ohio  on  April  25, 

1891.  An  entry  was  made  of  record,  June 
19,  1891,  that  the  court  "allows  a  writ  of 
error  to  the  supreme  court  of  the  United 
States,  with  stay  of  execution,  upon  th€ 
filing  of  a  supersedeas  bond,"  as  described, 
and  such  a  bond  was  filed  and  approved 
June  20,  1891.  A  petition  for  the  allow- 
ance of  the  writ  of  error  and  an  assign- 
ment of  errors  were  filed  in  the  clerk's 
office  of  the  circuit  court,  July  3,  1891, 
,'ind  the  writ  of  error  bears  teste  and  was 
filed  in  that  office  on  that  day,  and  a  cita- 
tion to  the  adverse  party  signed  and 
served.  Held,  the  motion  to  dismiss  must 
be  sustained.  Cincinnati,  etc.,  Co.  v. 
Grand   Rapids   Deposit   Co.,   146   U.   S.   54, 

55,  36  L.  Ed.  885,  following  Wauton  v. 
DeWolf,  142  U.  S.  138,  35  L.  Ed.  965; 
Brooks  V.  Norris,  11  How.  204,  13  L.  Ed. 
665;  Credit  Co.  v.  Arkansas  Central  R. 
Co.,  128  U.  S.  258,  32  L.   Ed.  448. 

In  Voorhees  v.  Noye  Mfg.  Co.,  151  U. 
S  135,  38  L.  Ed.  101,  the  decree  was  en- 
tered January  7.  1891.  On  January  9,  1892, 
at  the  November  term,  1891,  a  motion  for 
rehearing  was  made;  on  February  3,  1892, 
the  motion  was  argued;  and  on  February 
17,  1892,  the  rehearing  was  denied.  March 
23,  1892,  the  refusal  of  certain  defendants 
to  join  in  an  appeal  was  filed,  which  refusal 
was  dated  January  17,  1891.  April  15,  1892, 
an  appeal  bond  was  given,  conditioned  for 
the  prosecution  of  the  appeal  allowed  Janu- 
ary 7,  1891,  approved  by  the  court  and 
filed  April  18,  1892.  The 'record  was  filed 
in  this  court  April  19,  1892,  certified  by 
the  clerk  of  the  circuit  court  April  5,  1892. 
The  bond  is  certified  to  by  the  clerk  of 
the    circuit    court    under    date    April    21, 

1892.  It  was  held,  that  as  the  jurisdiction 
of  the  court  below  depended  solely  upon 
the  diverse  citizenship  of  the  parties,  the 
appeal  must  be  dismissed,  because  the  ju- 
risdiction of  this  court  taken  away  m  suctl 
cases  was  not  preserved  by  the  joint  res- 
olution of  March  3,  ^891,  26  Stat.  1115,  as 
.to   pending   cases    and   cases    wherein   the 


APPEAL  AND  ERROR.  813 

"that  by  the  joint  resolution  of  March  3,  1891,  26  Stat.  1115,  the  jurisdic- 
tion was  preserved  as  to  pending  cases  and  cases  wherein  the  writ  of  error  or 
appeal  should  be  sued  out  or  taken  before  July  1,  1891. "^o  Where  an  appeal  frorn 
the  circuit  court  of  the  United  States  to  this  court,  does  not  come  within  any  of 
the  class  of  cases  specified  in  §  5,  and  the  appeal  is  not  taken  until  after  July  1, 
1891,  it  must  be  dismissed  in  accordance  with  the  act  and  joint  resolution  of 
March  3,  1891,  providing  "that  nothing  in  said  act  shall  be  held  or  construed 
in  anywise^  to  impair  the  jurisdiction  of  the  supreme  court  or  any  circuit  court 
of  the  United  States  in  any  case  now  pending  before  it."''i  The  provision  of 
the  joiHt  resolution  of  March  3,  1891,  "to  provide  for  the  organization  of  the 
circuit  court  of  appeals,"  26  Stat.  1115,  that  nothing  in  the  act  of  March  3,  1891, 
26  Stat.  826,  c.  517,  should  be  held  or  construed  to  impair  the  jurisdiction  of 
the  supreme  court  in  any  case  then  pending  before  it  or  in  respect  of  any  case 
wherein  the  appeal  had  been  taken  to  that  court  before  the  first  day  of  July,  1891, 
merely  preserves  the  jurisdiction  as  stated,  and  does  not  operate  to  give  juris- 
diction as  to  appeals  not  perfected,  which  would  not  otherwise  have  existed.*'^ 

7.  Remedies. — It  was  no  purpose  of  the  act  of  1891  to  change  the  forms  of 
remedies  theretofore  pursued. "^^ 

8.  Review  by  Certificate. — Review  by  certificate  is  limited  to  the  certifi- 
cates by  the  circuit  or  district  courts,  made  after  final  judgment,  of  questions 
made  as  to  their  own  jurisdiction,  and  to  the  certificates  by  the  circuit  courts 
of  appeals  of  questions  of  law  in  relation  to  which  the  advice  of  this  court  is 
sought  as  therein  provided.^* 

9.  Appellate  Jurisdiction  of  Circuit  Court  of  Appeals — a.  In  General. 
— The  court  of  appeals  act  provides,  in  §  6,  that  the  circuit  courts  of  appeals 
established  by  it  shall  exercise  appellate  jurisdiction  to  review,  by  appeal  or  by 
writ  of  error,  "final  decisions"  in  the  existing  circuit  courts  in  all  cases  other 
than  those  provided  for  in  §  5  of  the  act,  unless  otherwise  provided  by  law,  and 
that  "the  judgments  or  decrees  of  the  circuit  courts  of  appeals  shall  be  final  in 
all  cases  in  which  the  jurisdiction  is  dependent  entirely  upon  the  opposite  parties 
to  the  suit  or  controversy,  being  aliens  and  citizens  of  the  United  States,  or 
citizens  of  dififerent  states,"  as  well  as  in  cases  arising  under  the  patent  laws, 
the  revenue  laws,  the  criminal  laws,  and  in  admiralty  cases. ^-^     By  §  6,  the  circuit 

appeal    should    be    taken    before    Jul-y    1,  reach   the  proceedings  in  the  latter  court. 

1891.  Lutcher   v.   United    States,    157   U.    S.   427. 

"Jurisdiction  as  existing  before  the  pas-  39  L-  Ed.  759. 

sage  of  the  act  was   preserved  by  a  joint  eo.    Wauton  v.  De  Wolf,  142  U.   S    138, 

resolution  of  March  3,  1891.  26  Stat.  1115,  140,    35    L.    Ed.    965;    Mason    v.    Pewabic 

as   to  pending   cases   wherein   the   writ   of  Min.    Co.,    153   U.    S.   361,   38    L.    Ed.    745; 

error    or    appeal    should    be    sued    out    or  Gulf,  etc.,  R.  Co.  v.  Shane,  157  U.  S.  348. 

taken   before    July    1,    1891.      In    this    case  349^  39  l_  EJ    727. 

the  decree  was  not  rendered  until  the  first  ^^     National  Exchange  Bank  z'.   Peters, 

day  of  October  of  that  year.      It   follows  ^^^  ^   5    .^^^  3^  ^    ^^            ^.^.       ^^^^on 

l.at   the   appeal   must  be   dismissed.     N a-  ,,   q^  ^^jf^  ^^2  U    g    ^gg   3^  ^   ^^   gg. 

tional  Exchange  Bank  v.  Peters,  144  u.  o.  „„       .              ,,•                   ^              -n,.,,- 

570,  36   L.   Ed.   545."    Little   Rock,  etc.,   R.  62      Aspen    Min.,    etc      Co.    v.    Billings, 

Co.  V.  East  Tenn.,  etc.,   R.   Co.,  159  U.   S.  150  U.  S.  31.  35.  37  L-  Ed.  986. 

698,  699.  40  L    Ed    311  63.     Remedies.— In    re    Lennon,    150    U. 

To  what  courts  applicable.— Where  the  S.    393,    37    L.    Ed.    1120;    Ekiu   z:    United 

petition    for   the    allowance   of   the   writ   of  States,  142  U.  S.  651,  35  L.  Ed.  1146;  Gon- 

error  from  this  court  to  the  circuit  court  zales    v.    Cunningham,    164    U.    S.    612.    41 

states  that  the  circuit  court  of  appeals  re-  L.    Ed.    572;      Rice    v.    Ames,    180    U.    S. 

fused   to   allow   the   cause   to   be   docketed  371,  374,  45  L-   Ed.   577. 

and    the    transcript    of    the    record    to    be  64.        Review      by      certificate.— United 

filed  therein,  on  the  ground  that  the  cause  States  v.    Rider,   163  U.   S.   132,  41   L.    Ed. 

should  have  been  taken  to  this  court  and  101;    Mexican   Central   R.   Co.  v.   Eckman, 

not  to  that  court,  it  was  held,  that  as  the  187    U.    S.    429.    432.    47    L.    Ed.    245.      See 

last  clause   of  §   6   of  the  judiciary  act  of  ante,   "Appellate  Jurisdiction   over   Partic- 

March   3,  1891,  refers  to  the  circuit  court  ular  Courts  and  Tribunals,"  III.  D;^  post, 

of  appeals  and  not  to  the  circuit  court,  a  '"Certificate  of  Division  of  Opinion,"  V. 

writ  of  error  to  the  circuit  court  and  not  65.      Appellate     jurisdiction     of     circuit 

to  the  circuit  court   of  appeals,  does   not  court    of    appeals    in    general. — Northern 


814 


APPEAL  AND  ERROR. 


courts  of  appeals  "shall  exercise  appellate  jurisdiction  to  review  by  appeal  or 
by  writ  of  error,"  final  decisions  of  the  circuit  courts  "in  all  cases  other  than 
those  provided  for  in  the  preceding  section  of  this  act  unless  otherwise  provided 
by  law."  The  appellate  jurisdiction  not  vested  in  this  court  was  thus  vested  in 
the  court  created  by  the  act,  and  the  entire  jurisdiction  distributed.**^ 

b.  Construction  of  Words  "unless  Othcrn'isc  Provided  by  Law." — The  words 
"unless  otherwise  provided  by  law"  were  manifestly  inserted  out  of  abundant 
caution,  in  order  that  any  qualification  of  the  jurisdiction  by  contemporaneous 
or  subsequent  acts  should  not  be  construed  as  taking  it  away  except  when  ex- 
pressly so  provided.  Implied  repeals  were  intended  to  be  thereby  guarded 
against.  To  hold  that  the  words  referred  to  prior  laws,  would  defeat  the  pur- 
pose of  the  act  and  be  inconsistent  with  its  context  and  its  repealing  clause.^*^ 
In  other  words,  in  the  grant  of  the  appellate  jurisdiction  to  the  circuit  court 
of  appeals,  by  §  6,  in  all  cases  other  than  those  in  which  this  court  has  direct  ap- 
pellate jurisdiction  under  §  5,  the  exception,  "unless  otherwise  provided  by  law," 
looks  only  to  provisions  of  the  same  act,  or  to  contemporaneous  or  subsequent 
acts  expressly  providing  otherwise,  and  does  not  include  provisions  of  earlier 
statutes.^^ 

c.  Admiralty  Cases. — By  the  sixth  section  of  the  judiciary  act  of  March  3, 
1891,  it  is  provided  that  the  judgments  or  decrees  of  the  circuit  courts  of  appeals 
in  admiralty  cases  shall  be  final ;  and  no  appeal  to  this  court  lies  therefrom.*^ 
Under  §  6  of  the  act  of  March  3,  1891,  c.  517,  26  Stat.  827,  an  appeal  cannot 
be  taken  to  this  court  from  an  order  of  the  district  court  dismissing  a  libel  in 
admiralty.  The  remedy  is  by  appeal  to  the  circuit  court  of  appeals."^^  Appeals 
to  the  supreme  court  of  the  United  States  will  not  lie  from  the  judgments  or 
decrees  of  the  circuit  court  of  appeals  in  proceedings  to  limit  the  liability  of 
fhip  owners,  such  proceedings  being  admiralty  cases."  ^ 

d.  Rez'cnue  Cases. — The  circuit  courts  of  appeals  exercise  appellate  juris- 
diction under  the  sixth  section  in  all  cases  other  than  those  in  which  the  juris- 


Pac.  R.  Co.  V.  Amato,  144  U.  S.  465,  471, 
36  L.  Ed.  506. 

Where  the  case  before  us  is  one  of 
habeas  corpus,  but  the  jurisdiction  of  the 
circuit  court  was  not  in  issue,  nor  was 
the  construction  or  application  of  the  con- 
stitution of  the  United  States  involved, 
nor  the  constitutionality  of  any  law  of 
the  United  States,  or  the  validity  or  con- 
struction of  any  treaty  made  under  its 
authority,  drawn  in  question,  it  does  not 
fall  within  either  of  the  classes  of  cases 
which  may  be  brought  directly  to  this 
court  under  the  act,  and  was,  therefore, 
properly  carried  to  the  circuit  court  of 
appeals.  Lau  Ow  Bew  v.  United  States, 
144  U.    S.   47,   58,  36   L.   Ed.   340. 

66.  McLish  V.   Rofif,   141   U.   S.   661,  666, 

35  L.  Ed.  893;  Lau  Ow  Bew  v.  United 
States,    144   U.    S.   47,   56,   36   L.   Ed.   340. 

67.  Construction  of  words  "unless 
otherwise  provided  by  law." — Lau  Ow 
Bew  V.  United  States,  144  U.  S.  47,  56,  57, 

36  L.  Ed.  340;  In  re  Lennon,  150  U.  S. 
393,  398,  37  L.  Ed.  1120;  Mason  v.  Pe- 
wabic  Min.  Co.,  153  U.  S.  361,  365,  38  L- 
Ed.    745. 

68.  Lau  Ow  Bew  v.-  United  States,  144 
U.  S.  47,  57,  36  L.  Ed.  340;  Hubbard  v. 
Soby.  146  U.  S.  56,  36  L.  Ed.  886;  Amer- 
ican Construction  Co.  v.  Jacksonville,  etc., 
R.   Co.,   148   U.    S.    372,   383,   37   L.    Ed.   486. 

"By   §   6   of   the   act   of  1801,   this   court 


is  relieved  of  much  of  the  appellate  ju- 
risdiction that  it  had  before;  the  appel- 
late jurisdiction  from  the  district  and  cir- 
cuit courts  'in  all  cases  other  than  those 
provided  for  in  the  preceding  section  oF 
this  act,  uriless  otherwise  provided  by 
law,'  is  vested  in  the  circuit  court  of  ap- 
peals; and  its  decisions  in  admiralty  cases^ 
as  well  as  in  cases  arising  under  the  crim- 
inal laws,  and  in  certain  other  classes  of 
cases,  are  made  final,  except  that  that 
court  may  certify  to  this  court  questions 
of  law,  and  that  this  court  may  order  up 
the  whole  case  by  writ  of  certiorari.  It 
is  settled  that  the  words  'unless  other- 
wise provided  by  law,'  in  this  section,  re- 
fer only  to  provisions  of  the  same  act,  or 
of  contemporaneous  or  subsequent  acts, 
and  do  not  include  provisions  of  earlier 
statutes."  Lau  Ow  Bew  v.  United  States, 
144  U.  S.  47,  57,  36  L.  Ed.  340;  Hubbard 
V.  Soby,  146  U.  S.  56,  36  L.  Ed.  886;  Amer- 
ican Construction  Co.  v.  Jacksonville,  etc., 
R.  Co.,  148  U.  S.  372,  383,  37  L.  Ed.  486; 
The  Paquete  Habana,  175  U.  S.  677.  721, 
44  L.  Ed.  320. 

69.  Admiralty  cases. — Oregon  R.  & 
Nav.  Co.  r.  Balfour,  179  U.  S.  55,  45  L. 
Ed.  82. 

70.  In  re  Morrison,  147  U.  S.  14,  37  L. 
Ed.  60. 

71.  Oregon  R.  &  Nav.  Co.  v.  Balfour, 
179  U.   S.  55,  45  L.  Ed.  82. 


APPEAL  AND  ERROR. 


815 


diction  of  this  court  is  exercised  under  the  fifth,  among  which  cases  are  in- 
cluded all  revenue  cases;  that  is,  cases  under  laws  imposing  duties  or  imports 
or  tonnage,  or  providing  in  terms  for  revenue.'^  Cases  "arising  under  the 
revenue  laws"  are_made  final  in  the  circuit  court  of  appeals  by  tlie  judiciary  act 
of  March  3,  1891J''  Such  cases  can  only  come  here  on  the  merits  on  certificate 
or  certiorari."-'  Where  in  a  suit  against  the  United  States  under  the  act  of 
March  3,  1887,  24  Stat.  505,  c.  359,  the  application  for  appeal  is  not  made  untH 
August  9,  1892,  such  appeal  will  be  dismissed  on  motion  of  the  solicitor  gen- 
eral, because  such  appeal  is  not  authorized  by  the  act  of  March  3,  1891,  26  Stat. 
826,  entitled  "an  act  to  establish  the  circuit  court  of  appeals. ""^ 

It  is  true  that  under  the  act  of  June  10,  1890,  an  appeal  would  lie  di- 
rectly from  the  circuit  courts  to  this  court  if  the  circuit  court  should  be  of  opin- 
ion that  the  question  involved  was  of  such  importance  as  to  require  a  review 
of  its  decision  by  this  court,  and  that  in  the  order  allowing  this  appeal  the  cir- 
cuit court  of  appeals  stated  "that  the  question  involved  is  of  such  importance 
as  to  require  a  review  of  said  decision  and  decree  by  the  supreme  court  of  the 
United  States;"  but  the  judiciary  act  of  March  3,  1891,  prescribes  a  dilTerent 
rule  as  to  the  prosecution  of  appeals.'^^ 

e.  Criminal  Cases—{\)  In  General. — By  the  sixth  section,  the  circuit  court 
of  appeals  are  vested  with  appellate  jurisdiction  "to  review  by  appeal  or  b)' 
writ  of  error  final  decisions  in  the  district  courts  and  the  existing  circuit  courts 
in  all  cases  other  than  those  provided  for  in  the  preceding  section  of  this  act, 
unless  otherwise  provided  by  law,"  and  their  judgments  are  made  final  in, 
among  others,  cases  arising  under  the  criminal  laws."'''     But  the  criminal  cases    in 


72.  Revenue  cases. — United  States  v. 
Hill,  123  U.  S.  681.  31  L.  Ed.  275;  Unite- 
States  V.  Jahn,  155  U.  S.  109,  112.  39  U 
Ed.   87. 

Judgment  in  action  against  United 
States  to  recover  compensation  for  serv- 
ices as  clerk. — The  judgment  of  the  dis- 
trict court  in  an  action  at  law  under  the 
act  of  March  3,  1887,  c.  359.  24  Stat.  505, 
is  reviewable  by  the  circuit  court  of  ap- 
peals upon  a  writ  of  error.  United  States 
V  Harsha,  172  U.  S.  567,  43  L.  Ed.  556, 
cfting  Chase  v.  United  States,  155  U.  S. 
480,  489,  39  L.  Ed.  234;  United  States  v. 
King,  164  U.  S.  703,  41  L.   Ed.  1182. 

73.  Anglo-California  Bank  v.  United 
States,  175  U.  S.  37,  44  L.   Ed.  64. 

Under  the  judiciary  act  of  March  3, 
1891  (26  Stat,  at  Large,  p.  828),  a  judg- 
ment of  the  circuit  court,  on  an  appeal 
from  the  decisions  of  the  board  of  general 
appraisers  is  reviewable,  not  in  the  su- 
preme court,  but  in  the  circuit  court  of 
appeals,  the  case  being  one  arising  under 
the  general  revenue  laws.  United  States 
V.  Hill,  123  U.  S.  681,  31  L.  Ed.  275;  Lau 
Ow  Bew  V.  United  States,  144  U.  S.  47, 
36  L.   Ed.   340. 

No  appeal  will  lie  to  this  court  from  a 
decision  of  the  circuit  court  of  appeals, 
affirming  a  decree  of  the  circuit  court 
overruling  a  decision  of  the  board  of  gen- 
eral appraisers  in  the  matter  of  the  classi- 
fication of  certain  imported  articles.  The 
decision  is  one  "arising  under  the  revenue 
laws"  which  by  the  judiciary  acts  of 
March  3,  1891,  is  final  in  the  circuit  court 
of  appeals.  Anglo-Californian  Bank  v. 
United  States,   175  U.  S.  37,  44   L.   Ed.  64. 


74.  United  States  v.  Jahn,  155  U.  S.  109, 
112,  39  L.   Ed.  87. 

75.  Ogven  v.  United  States,  148  U.  S. 
390,  37  L.  Ed.  493,  following  National  Ex- 
change Bank  v.  Peters,  144  U.  S.  570,  38 
L.  Ed.  545;  Hubbard  v.  Soby,  146  U.  S. 
56,    36    L.    Ed.    886. 

This  was  a  suit  brought  October  9,  1896, 
in  the  circuit  court  of  the  United  States 
tor  the  district  of  Connecticut  to  recover 
an  alleged  excess  of  duties  upon  imports 
exacted  by  plaintiff  in  error  in  his  capacity' 
of  collector  of  customs  of  the  port  «' 
Hartford,  prior  to  the  going  into  effect 
of  the  act  of  congress  of  June  10,  189«, 
entitled  "an  act  to  simplify  the  laws  in 
relation  to  the  collection  of  the  revenues." 
36  Stat.  131.  Judgment  was  given  for  de- 
fendant in  error,  February  27,  1892,  .uid 
on  June  11,  1892,  the  pending  writ  of  err»r 
was  sued  out.  Held,  the  motion  to  dis- 
miss the  writ  must  be  sustained.  Hub- 
bard V.  Soby,  146  U.  S.  56,  60,  36  L.  Ed. 
886,  following  Lau  Ow  Bew  v.  United 
States,  144  U.  S.  47,  36  L.  Ed.  340;  Mc- 
Lish  V.  Rofif,  141  U.  S.  661,  35  L.  Ed. 
893. 

76.  Anglo-Californian  Bank  v.  United 
States,  175   U.   S.  37.  39,  44   L.   Ed.  64. 

77.  Criminal  cases  in  general. — Folsom 
V  United  States,  160  U.  S.  121,  126,  40  L. 
Ed.  363;  Cary  Mfg.  Co.  v.  Acme  Clasp 
Co..   187   U.   S.   427,  47   L.    Ed.   244. 

The  act  of  March  3rd,  1891,  §  6.  giving 
to  the  circuit  courts  of  appeals  appellate 
jurisdiction  to  review  by  appeal  or  writ 
of  error  final  decisions  in  the  district 
court,  and  the  existing  circuit  courts,  in 
all  cases  other  than  those  provided  for  in 


816  APPEAL  AND  ERROR. 

which  the  judgments  of  the  circuit  courts  of  appeals  are  made  final  by  §  6  do 
not  embrace  capital  cases  or  cases  of  infamous  crimes.  Accordingly,  this  court 
and  not  the  circuit  court  of  appeals  has  appellate  jurisdiction  in  such  cases.'^^ 

(2)  Contempt  Cases. — The  only  right  of  review  given  to  the  circuit  court  of 
appeals  in  contempt  proceedings  is. derived  from  the  act  giving  that  court  such 
right  in  criminal  cases. '''^  Proceedings  for  contempt  may  be  divided  into  those 
which  have  for  their  purpose  the  vindication  of  the  authority  and  dignity  of 
the  court,  and  those  seeking  to  punish  parties  guilty  of  a  disregard  of  such 
erders  as  are  remedial  in  their  character,  and  intended  to  enforce  the  rights 
©f  private  parties,  to  compel  obedience  to  orders  and  decrees  made  to  enforce 
their  rights  and  to  give  them  a  remedy  to  which  the  court  deems  them  entitled.  The 
one  class  is  criminal  and  punitive  in  its  nature,  in  which  the  government  and  the 
public  are  interested,  and  the  other  civil,  remedial  and  coercive  in  its  character,  in 
which  those  chiefly  concerned  are  individuals  whose  private  rights  and  remedies  are 
undertaken  to  be  protected  and  enforced.  Proceedings  which  are  criminal  in  their 
nature  and  intended  for  the  vindication  of  public  justice,  rather  than  the  coercion 
ef  the  opposite  party  to  do  some  act  for  the  benefit  of  another  party  to  the  action, 
are  the  only  ones  reviewable  in  the  circuit  court  of  appeals  under  its  power  to 
take  jurisdiction  of  and  determine  criminal  cases. '^o  The  circuit  court  of  appeals 
has  jurisdiction  to  review  a  judgment  rendered  in  a  contempt  proceeding  crim- 
inal in  its  nature,  and  having  for  its  object  the  vindication  of  the  authority  of 
the  court,  but  not  one  in  the  nature  of  a  proceeding  to  enforce  an  order  seeking 
the  protection  of  the  rights  of  the  party  to  the  suit  for  whose  benefit  it  was 
made.^^  The  circuit  court  of  appeals  has  jurisdiction  to  review  an  order  or 
judgment  of  the  circuit  court  of  the  United  States,  finding  a  person  guilty  of 
contempt  for  violation  of  an  order  of  that  court  and  imposing  a  fine  for  the 
contempt,  because  they  are  criminal  in  their  nature,  and  the  orders  imposing 
punishment  are  final. ^^  f^g  "act  to  establish  circuit  courts  of  appeals  and  to 
define  and  regulate  in  certain  cases  jurisdiction  of  the  courts  of  the  United 
States,  and  for  other  purposes,"  approved  March  3,  1891  (26  Stat.  826),  au- 
thorizes a  review  by  a  circuit  court  of  appeals  of  a  judgment  or  order  of  a  cir- 
cuit court  of  the  United  States,  finding  a  person,  not  a  party  to  the  suit,  guilty 
of  contempt  for  violation  of  an  order  of  that  court  made  in  such  suit  and  im- 
posing a  fine  for  such  contempt. ^'^  The  circuit  court  of  appeals  has  no  juris- 
diction to  review  an  order  made  in  the  circuit  court,  undertaking  to  punish  for 
contempt  for  violation  of  an  order  made  for  the  production  of  books  and  papers 
in  a  common-law  action  under  §  724  of  the  Revised  Statutes  of  the  United 
States,  because  such  order  is  made  in  other  than  a  proceeding  of  a  criminal  char- 
acter.84 

§    5,   construed   with    a    subsequent   clause  79.    Contempt  cases. — Doyle  v.   London 

which  makes  the  decision   of  the  court  of  Guarantee,  etc.,  Co.,  204  U.  S.  599,  604,  51 

appeals  final  "in  all  cases  arising     *     *     *  ^    Ed.  641. 

under    the    criminal    laws"    includes    crim-  80.    Doyle    v.    London    Guarantee,    etc., 

inal    cases.      United    States    v.    Rider,    163  Co.,  204  U.  S.  599,  604,  51  L.  Ed.  641,  fol- 

U.'    S.    132,    41    L.    Ed.    101;    Bessette    v.  lowing  Bessette  v.  Conkey  Co..  194  U.  S. 

Conkey  Co.,  194  U.   S.   324,  48   L.   Ed.  997,  324.  48  L.  Ed.  997. 

reaffirmed  in  In  the   Matter  of  Lewis,  202  81.    Doyle    v.    London    Guarantee,    etc., 

U.   S.  614,  50  L.  Ed.  1172.  Co..  204  U.   S.   599,  606,    51    L.   Ed.   641. 

And  by  §  6  the  judgments  or  decrees  of  82.    Bessette   v.    Conkey    Co.,   194   U.   S. 

the    circuit   courts   of   appeals    were    made  324,    325,   48   L.    Ed.    997.   reaffirmed   in   In 

final  "in  all  cases  arising  under  the  crim-  the   Matter  of  Lewis,  202  U.  S.  614,  50  L. 

inal  laws,"  and  in  certain  other  classes  of  Ed.  1172;     In  re  Christensen   Engineerini^ 

rnses,    unless    questions    were    certified    to  Co.,   194  U.  S.   458.  48   L.   Ed.   1072. 

this  court,   or   the   who^e  case   ordered  up  83.    Bessette   t'.    Conkey   Co.,    194   U.    S. 

by  writ  of  certiorari,  as  therein  provided.  324,   325.   48   L.    Ed.   997,   reaffirmed   in    In 

American    Construction    Co.    v.    Jackson-  the  Matter  of  Lewis,  202  U.  S.  614,  50  L. 

ville,    etc.,  R.  Co.,  148  U.  S.  372,  380,    37    L.  Ed.    1072. 

Ed.    486;    United    States   v.    Rider,    163    U.  84.    Doyle    v.    London     Guarantee    Co., 

S.  132,  138,  41  L.  Ed.   101.  204    U.    S.    599.    51    L.    Ed.    641,    discussing 

78.    Folsom  7'.  United   States,   160  U.   S.  at    great    length    Bessette   v.    Conkey   Co.. 

121,  40  L.  Ed.  363.  194  U.  S.  324,  48  L.  Ed.  997;   In  re  Chris- 


APPEAL  AND  ERROR. 


817 


(3)  IVrit  of  Scire  Facias  upon  Recog^iizance. — A  writ  of  scire  facias  upon 
a  recognizance  to  answer  a  criminal  charge  is  a  case  "arising  under  the  criminal 
laws,"  of  which  the  jurisdiction  of  the  circuit  court  of  appeals  is  made  final  by 
the  act  of  Alarch  3,  1891,  c.  517,  §  6,  26  Stat.  828.85 

f.  Cases  Arising  under  Patent  Laivs. — Judgments  and  decrees  of  the  circuit 
court  of  appeals  in  all  cases  arising  under  the  patent  laws  are  made  final  by 
§  6  of  the  judiciary  act  of  March  3,  1891. ^^ 

g.  Jurisdiction  Dependent  on  Citizenship — (1)  In  General. — By  the  act  of 
March  3,  1891  (26  Stat.  826,  c.  517),  establishing  the  circuit  courts  of  appeals, 
the  jurisdiction  of  this  court  over  an  appeal  from  a  circuit  court,  in  cases  de- 
pendent upon  diverse  citizenship,  was  taken  away.^"  The  act  provides,  in  §  6, 
that  the  circuit  courts  of  appeals  shall  have  appellate  jurisdiction  to  review  judg- 
ments and  decrees  of  the  circuit  courts  in  all  cases  in  which  a  direct  appeal  is 
not  allowed  by  §  5  to  this  court,  and  that  the  judgments  and  decrees  of  the  cir- 
cuit courts  of  appeals  shall  be  final  in  all  cases  in  which  the  jurisdiction  is  de- 
pendent  entirely   on   diversity  of  citizenship. ^^     The   jurisdiction  referred   to  is 


tensen  Engineering  Co.,  194  U.   S.  458.  48 
L.    Ed.    1172. 

85.  Writ  of  scire  facias  upon  recogni- 
zance.—Hunt  r.  United  States,  166  U.  S. 
424,  425,  41  L.  Ed.  1063,  reaffirmed  in 
United  States  v.  McGlashan,  170  U.  S. 
703,   42    L.    Ed.    1218. 

A  vmt  of  scire  facias  upon  a  recogni- 
zance to  answer  to  a  charge  of  crime,  even 
if  it  be,  techrricafly  considered,  a  civil  ac- 
tion, and  cnly  incidentai  and  collateral 
to  the  criminal  prosecution,  is  certainly 
a  case  arising  under  the  criminal  laws; 
for  it  is  a  suit  to  enforce  the  penalty  of 
a  recognizance  taken  to  secure  the  ap- 
pearance of  the  principal  to  answer  the 
charge  and  to  abide  any  sentence  against 
him;  the  provision  of  §  1014  of  the  Re- 
vised Statutes,  under  which  the  recog- 
nizance in  suit  was  taken,  is  contained  in 
chapter  18  of  title  13  of  the  Revised 
Statutes,  under  the  head  of  "Criminal 
Procedure."  and  in  the  first  of  the  sec- 
tions regulating  arrest,  bail,  indictments, 
pleadings,  commitments,  challenges,  wit- 
nesses, trial,  verdict,  sentence  and  execu- 
tion, in  criminal  cases;  and  this  recog- 
nizance is,  as  it  is  described  in  §  1020,  a 
"recoenizance  in  a  criminal  cause."  Hi'nt 
V.  United  States,  166  U.  S.  424,  426.  427, 
41  L.  Ed.  1063,  reaffirmed  in  United  States 
V.  McGlashan,  170  U.  S.  703,  42  L.  Ed. 
1218. 

86.  Cases  arising  under  patent  laws. — 
Cary  Mfg.  Co.  v.  Acme  Flexible  Clasp  Co., 
187  U.  S.  427,  47  L.  Ed.  244,  citing  Robinson 
r.  Caldwell,  165  U.  S.  359,  41  L.  Ed.  745; 
American  Sugar  Ref.  Co.  v.  New  Orleans, 
181  U.  S.  277,  45  L.  Ed.  859;  Hugul^y 
Mfg.  Co.  V.  Galeston  Cotton  Mills,  184 
U.  S.  290.  46  L.  Ed.  546;  Ayres  v.  Pols- 
dorfer.   i«~  TT.   S.   585.   47   L.   Ed.  314. 

87.  Jurisdiction  dependent  on  citizen- 
ship in  general. — Wanton  v.  DeWolf.  142 
U.  S.  138.  140.  35  L.  Ed.  965;  Howard  v. 
United  States,  184  U.  S.  676,  680,  46  L- 
Ed.  754.  26  Stat.   828.  §  6. 

88.  Huguley  Mfg.  Co.  v.  Galeton  Cotton 
Mills.   1«4    U.    S.    290,    294,    46    L.    Ed.    546, 

1  U  S  E«c-S2 


reaffirmed  in  Hardmg  v.  Hart.  187  U.  S. 
638,  47  L.  Ed.  344;  Spencer  v.  Duplan  Silk 
Co.,  191  U.  S.  526.  -.t,  L,.  u^. 
firmed  in  Empire,  etc.,  Min.  Co.  v.  Bun- 
ker Hill,  etc.,  Min.  Co..  200  U.  S.  613.  50 
L.  Ed.  620;  Russell  v.  Russell,  200  U.  S. 
613,  50  L.  Ed.  620;  Warder  v.  Loomis, 
197  U.  S.  619,  49  L.  Ed.  909;  Watkins  v. 
American  Nat.  Bank.  199  U.  S.  ^'^^.  50 
L.  Ed.  327;  Transportation  Co.  v.  Mobile, 
199  U.  S.  604,  50  L.  Ed.  330.  citing  Col- 
orado, etc.,  Min.  Co.  v.  Turck.  150  U.  S. 
138.  37  L.  Ed.  1030;  Borgmeyer  v.  Idler, 
159  U.  S.  408,  40  L.  Ed.  109:  Press  P'-H. 
Co.  V.  Monroe,  164  U.  S.  105,  41  L.  Ed. 
367;  Cochran  v.  Montgomery  County,  199 
U.  S.  260,  50  L.  Ed.  182;  Empire,  State- 
Tdaho  Min.,  etc..  Co.  v.  H^nlev,  198  U.  S. 
292.  298,  49  L.  Ed.  1056;  Mexican  Central 
R.  Co.  V.  Eckman.  187  U.  S.  429,  433,  47 
L.  Ed.  245;  Continental  National  Bank  v. 
Puford.  191  U.  S.  119.  122,  48  L.  Ed.  119; 
Kimball  v.  ChicPSfO,  '^tc,  Co.,  194 
U.  S.  631,  48  L.  Ed.  115S;  Warder  v. 
Loomis,  197  U.  S.  619,  49  L.  Ed.  909; 
Pope  V.  Louisville,  etc.,  R.  Co.,  173  U.  S. 
573.    576,    43    L.    Ed.    814. 

"In  this  case  appellants  did  not  attempt 
to  take  an  appeal  directly  to  this  court 
from  the  circuit  court,  nor  could  they  have 
dene  so  since  no  question  was  so  raised 
as  to  bring  the  case  within  either  of  the 
classes  named  in  §  5.  Cornell  v.  Green, 
163  U.  S.  75,  41  L.  Ed.  76.  The  ground 
on  which  the  jurisdiction  of  the  circuit 
court  was  invoked  was  solely  diversity  of 
citizenship,  and  the  record  does  not  show 
anything  to  the  contrary,  so  that  the  de- 
cree of  the  circuit  court  of  appeals  can- 
not he  regarded  otherwise  than  as  made 
final  by  the  statute."  Huguley  Mfg.  Co.  v. 
Galeton  Cotton  IMills.  184  U.  S.  290,  295, 
46  L.  Ed.  546,  reaffirmed  in  Harding  v. 
Hrrf.   187   U.    S.   638,    47    L.    Ed.    344. 

This  c^urt  has  no  jurisdiction  to  re- 
view the  judgment  of  the  circuit  court  of 
apnea's  affirrning  the  judsrment  of  the  cir- 
cuit court  di=missing  the  cau=e  in  thr» 
court    for    failure    of    the    record   to   show 


818 


APPEAL  AND  ERROR. 


the  jurisdiction  of  the  circuit  court  as  originally  invoked.*'' 

"When  Questions  under  §  5  Are  Also  Raised. — The  judgment  of  the  cir- 
cuit court  of  appeals  is  final  if  the  jurisdiction  of  the  circuit  court  were  originally 
invoked  solely  upon  the  ground  of  citizenship.^  And  this  is  true  althougn 
another  ground  of  jurisdiction  might  be  developed  in  the  course  of  the  proceed- 
ings, as  it  must  appear  at  the  outset  th^t  the  suit  is  one  of  that  character  ot 
which  the  circuit  court  could  properly  take  cognizance  at  the  time  its  jurisdic- 
tion is  invoked. ^^     The  circuit  court  of  appeals  has  power  to  review  the  judg- 


that  th€  suit  could  have  been  maintained 
in  the  circuit  court  in  the  name  of  the 
assignor.  And  the  jurisdiction  is  none  the 
less  dependent  on  diverse  citizenship  as 
between  complainant  and  defendant,  be- 
cause it  might  be  defeated  if  the  com- 
plainant did  not  bring  himself  within  the 
restriction.  "The  diverse  citizenship  of  the 
assignors  of  the  claiins  was  not  another 
ground  of  jurisdiction  than  the  diverse 
citizenship  of  complainant  and  defendant, 
and  the  sixth  section,  in  referring  to  cases 
in  which  the  jurisdiction  is  dependent  en- 
tirely on  diverse  citizenship  between  the 
opposite  parties  to  the  suit  or  contro- 
versy, refers  to  cases  where  no  other  dis- 
tinct ground  of  jurisdiction  is  relied  on. 
It  frequently  happens  that  more  than  one 
ground  is  set  up  as  between  the  same  par- 
ties, and  also  separate  and  different 
grounds  in  respect  of  one  or  more  of 
several  parties."  Benjamin  v.  New  Or- 
leans, 169  U.  S.  161,  164,  42  L.  Ed.  700; 
Board  of  Supervisors  v.  Thompson.  196 
U.    S.    637,    49    L.    Ed.    630. 

In  any  case  in  which  the  jurisdiction  of 
the  circuit  court  depends  entirely  on  the 
citizenship  of  the  parties,  and  in  which 
the  jurisdiction  of  that  court  is  not  in 
issue,  the  appeal  given  from  its  judgments 
and  decrees,  whether  final  or  interlocu- 
tory, lies  to  the  circuit  court  of  appeals 
only;  and  the  judgments  of  the  latter 
court  are  final,  unless  either  that  court 
certifies  questions  or  propositions  of  law 
to  this  court,  or  else  this  court,  by  cer- 
tiorari or  otherwise,  orders  the  whole 
case  to  be  sent  up  for  its  review  and  de- 
termination. American  Construction  Co. 
V.  Jacksonville,  etc.,  R.  Co.,  148  U.  S.  372, 
382,  37  L.  Ed.  486;  Benjamin  v.  New  Or- 
leans. 169  U.   S.   161.  42   L.   Ed.  700. 

Death  by  wrongful  act. — Since  the  pas- 
sage of  the  act  of  March  3,  1891  (26  Stat. 
at  L.  826,  ch.  517,  U.  S.  Comp.  Stat.  1901. 
p.  547),  the  federal  supreme  court  has  no 
jurisdiction  to  review  the  judgments  or 
decrees  of  the  district  and  circuit  courts 
directly  by  appeal  or  writ  of  error  in 
cases  pending  in  the  circuit  court  to  re- 
cover damages  for  death  by  wrongful  act, 
where  the  jurisdiction  of  the  circuit  court 
rested  on  diversity  of  citizenship.  Ex 
parte  Glaser,  198  U.  S.  171,  49  L.  Ed. 
1000. 

Removal  of  causes. — Where  a  suit  is 
removed  from  the  state  court  to  the  cir- 
cuit court  of  the  United  States  because 
of   prejudice   or   local   influence,   the   judg- 


ment of  the  circuit  court  of  appeals  is 
final  and  not  subject  to  review  by  the  su- 
preme court,  as  such  a  case  is  one  where 
the  jurisdiction  is  dependent  entirely  upon 
the  opposite  parties  to  it  being  citizens 
of  different  states.  Cochran  v.  Mont- 
gomery County,  199  U.   S.  260,   50  L.   Ed. 

is;:-. 

National  bank  act. — Under  the  judiciary 
act  of  March  3,  1891,  the  judgment  of  the 
circuit  court  of  appeals  is  final  in  an  ac- 
tion brought  in  a  circuit  court  of  the 
United  States  by  a  national  bank  against 
a  banking  corporation  of  another  state 
where  no  federal  questions  are  presented 
upon  which  the  suit  depends,  and  the  only 
ground  of  jurisdiction  is  diversity  of  citi- 
zenship. The  mere  fact  that  the  com- 
plaining bank  is  organized  under  the  na- 
tional banking  law  does  not  render  the 
controversy  one  arising  under  the  laws 
of  the  United  States.  Continental  Na- 
tional Bank  v.  Buford.  191  U.  S.  119,  48 
L.  Ed.  119.  reaffirmed  in  Kimball  v.  Chi- 
cago, etc.,  Co.,  194  U.  S.  631,  48  L. 
Ed.  1158;  Warder  v.  Loomis,  197  U.  S. 
619,  49  L.  Ed.  909;  Russell  v.  Russell,  200 
U.    S.    613,    50    L.    Ed.    620. 

89.  Colorado,  etc.,  Min.  Co.  v.  Turck, 
150  U.  S.  138,  37  L.  Ed.  10.30;  Press  Pub. 
Co.  V.  Monroe,  164  U.  S.  105,  41  L.  Ed. 
367;  Ex  parte  Jones.  164  U.  S.  691,  41  L. 
Ed.  601;  American  Sugar  Ref.  Co.  v.  New 
Orleans.  181  U.  S.  277.  45  L.  Ed.  859; 
Arkansas  v.  Kansas,  etc.,  Coal  Co.,  183 
U.  S.  185,  46  L.  Ed.  144;  Huguley  Mfg. 
Co.  V.  Galeton  Cotton  Mills,  184  U.  S. 
290,  293,  46  L.  Ed.  546,  reaffirmed  in 
Harding  v.  Hart,  187  U.  S.  638,  47  L. 
Ed.  344;  Ayres  v.  Polsdorfer,  187  U.  S. 
585,    588,   47   L.    Ed.   314. 

90.  Ex  parte  Jones.  164  U.  S.  691.  41 
L.  Ed.  601.  citing  Colorado,  etc.,  Min.  Co. 
r.  Turck,  150  U.  S.  138,  37  L.  Ed.  1030; 
Borymeyer  v.  Idler,  159  U.  S.  408,  40  L. 
Ed.    199. 

91.  Colorado,  etc.,  Min.  Co.  v.  Turck, 
150  U.  S.  138,  37  L.  Ed.  1030;  Ex  parte 
Jones,  164  U.  S.  691,  693,  41  L.  Ed.  601; 
Third  Street,  etc.,  R.  Co.  v.  Lewis,  173  U. 
S.  -!56;  Pope  V.  Louisville,  etc..  R.  Co., 
173  U.  S.  573,  578,  43  L.  Ed.  814;  Ayers  v. 
Polsdorfer,  187  U.  S.  585,  588.  47  L.  Ed. 
314,  citing  and  explaining  at  length  Loeb 
V.  Columbia  Township  Trustees,  179  U. 
S.  473,  45  L.  Ed.  280,  reaffirmed  in  Wirg- 
man  v.  Persons,  196  U.  S.  636,  49  L.  Ed. 
629. 


APPEAL  AND  ERROR. 


819 


ment  of  the  circuit  court  in  every  case  in  which  the  jurisdiction  of  that  court 
attaches  solely  by  reason  of  diverse  citizenship,  notwithstanding  constitutional 
questions  may  have  arisen  after  the  jurisdiction  attached. -'^ 

(2)  Construction  of  Term  "Aliens." — The  terms  "aliens"  as  used  in  §  6  of 
the  judiciary  act  of  March  3,  1891  making  the  judgments  and  decrees  of  the 
circuit  court  of  appeals  final  in  cases  in  which  the  jurisdiction  is  dependent  en- 
tirely on  the  opposite  parties  to  the  suit  or  controversy  being  citizens  of  different 
states  or  aliens  and  citizens  of  the  United  States,  embraces  subjects  or  citizens 
of  foreign  countries,  and  not  merely  persons  resident  in  this  country,  who  owe 
alleg'iance  to  another. '^-^ 

(3)  Rule  U  here  Jurisdiction  Is  A^ot  Dependent  Solelv  on  Diversity  of  Citi- 
zenship.— In  General. — When  the  jurisdiction  of  the  circuit  court  is  invoked 
on  the  ground  of  diversity  of  citizenship,  and  in  the  course  of  the  proceedings 
it  is  claimed  that  a  state  statute  or  constitution  is  in  contravention  of  the  con- 
stitution of  the  United  States,  the  case  may  be  taken  directly  to  the  supreme 
court  for  review,  or  it  may  be  reviewed  by  the  circuit  court  of  appeals,  but  if 
taken  to  the  latter  court,   its  decree  is  final. ^* 

The  rules  have  been  summed  up  as  follows:     When  the  jurisdiction  of 


92.  American  Sugar  Ref.  Co.  v.  New 
Orleans.  181  U.  S.  277.  280,  45   L.   Ed.  859. 

Where  the  plaintiff  invokes  the  juris- 
cliction  of  the  circuit  court  solely  upon 
the  ground  of  diverse  citizenship,  and 
where  the  claim  of  the  invalidity  of  a 
state  statute  under  the  constitution  of  the 
United  States  came  from  the  defendant 
or  arose  after  the  filing  of  the  petition  or 
daring  the  progress  of  the  suit,  then  the 
judgment  of  the  circuit  court  of  appeals 
is  final  within  the  meaning  of  the  sixth 
section  of  the  act  of  1891,  26  Stat.  826, 
828,  ch.  517.  declaring  that  "the  judgments 
or  decrees  of  the  circuit  courts  of  appeals 
shall  be  final  in  all  cases  in  which  the  ju- 
risdiction is  dependent  entirely  upon  the 
opposite  parties  to  the  suit  or  contro- 
versy being  aliens  and  citizens  of  the 
United  States  or  citizens  of  dififerent 
states."  Colorado,  etc..  Min.  Co.  v.  Turck. 
150  U.  S.  138,  37  L.  Ed.  1030;  Borgmeyer 
V.  Idler,  159  U.  S.  408,  414,  40  L.  Ed.  199; 
Ex  parte  Jones,  164  U.  S.  691,  693.  41  L. 
Ed.  601;  Loeb  v.  Columbia  Township 
Trustees.  179  U.  S.  472,  479,  45  L.  Ed. 
280,  explained  in  Ayers  v.  Polsdorfer,  187 
U.  S.  585,  589,  47  L.  Ed.  314,  in  a  lengthy 
opinion   by   Mr.   Justice   McKenna. 

"Section  6  provides  that  the  circuit 
courts  of  appeals  shall  exercise  appellate 
jurisdiction  to  review  the  final  decisions 
of  the  district  and  circuit  courts  'in  all 
cases  other  than  those  provided  for  in 
the  preceding  section  of  this  act,  unless 
otherwise  provided  by  law,  and  the  judg- 
ments or  decrees  of  the  circuit  courts  of 
appeals  shall  be  final  in  all  cases  in  which 
the  jurisdiction  is  dependent  entirely  upon 
the  opposite  parties  to  the  suit  or  con- 
troversy being  aliens  or  citizens  of  the 
United  States  or  citizens  of  different 
states.'  The  jurisdiction  referred  to  is  the 
jurisdiction  of  the  circuit  court,  and  as 
the  judgment  of  the  court  of  appeals  is 
made  final  in  all  cases  in  which  the  juris- 
diction of  the  circuit  court  attaches  solely 
by    reason    of    diverse    citizenship,    it    fol- 


lows that  the  court  of  appeals  has  power 
to  review  the  judgment  of  the  circuit  court 
in  every  such  case,  notwithstanding  con- 
stitutional questions  may  have  arisen  after 
the  jurisdiction  of  the  circuit  court  at- 
tached, by  reason  whereof  the  case  be- 
came embraced  by  §  5."  American  Sugar 
Ref.  Co.  V.  New  Orleans.  181  U.  S.  277, 
280,    45    L.    Ed.    859. 

93.  Construction  of  term  "aliens." — 
Hennessy  v.  Richardson  Drug  Co.,  189  U. 
S.  25.   47   L.    Ed.   697 

94.  Rule  where  jurisdiction  is  not  de- 
pendent solely  on  diversity  cf  citizenship. 
— Ayres  v.  Polsdorfer,  187  U.  S.  585,  590, 
47  L.  Ed.  314,  reafifirmed  in  Wirgnian  v. 
Persons,    196   U.   S.   636.   49   L.   Ed.   629. 

Thus,  it  was  held,  in  Loeb  v.  Columbia 
Township  Trustees,  179  U.  S.  472,  45  L. 
Ed.  280,  where  the  jurisdiction  of  the  cir- 
cuit court  rested  on  diverse  citizenship, 
but  the  state  statute  involved  was  claimed 
in  defense  to  be  in  contravention  of  the 
constitution  of  the  United  States,  that  a 
writ  of  error  could  be  taken  directly  from 
this  court  to  revise  the  judgment  of  the 
circuit  court,  although  it  was  also  ruled 
that  the  plaintiff  might  have  carried  the 
case  to  the  circuit  court  of  appeals,  and 
that  if  a  final  judgment  were  rendered  by 
that  court  against  him,  he  could  not 
thereafter  have  invoked  the  jurisdiction 
of  this  court  directly  on  another  writ  of 
error  to  review  the  judgment  of  the  cir- 
cuit court.  But  this  case  is  explained  in 
Ayres  v.  Polsdorfer,  187  U.  S.  585.  589, 
47   L.  Ed.  314. 

Where  the  jurisdiction  of  the  circuit 
court  rests  on  diverse  citizenship,  and 
not  on  any  other  ground,  if  on  appeal  the 
circuit  court  of  appeals  decide  the  case, 
its  decision  is  final,  and  the  interposition 
of  the  supreme  court  of  the  United  States 
can  only  be  invoked  by  certiorari.  This 
is  so  notwithstanding  one  of  the  defenses 
was  that  an  ordinance  was  in  contraven- 
tion of  the  constitution  of  the  United 
States.     American  Sugar  Ref.  Co.  v.  New 


820 


APPEAL  AXD  ERROR. 


the  circuit  court  is  invoked  solely  on  the  ground  of  diversity  of  citizenship  two 
classes  of  cases  can  arise,  one  in  which  the  questions  expressed  in  §  5  appear 
in  the  course  of  the  proceedings  and  one  in  which  other  federal  questions  ap- 
pear. Cases  of  the  first  class  may  be  brought  to  this  court  directly  or  may  be 
taken  to  the  circuit  court  of  appeals.  But  if  taken  to  the  latter  court  they  cannot 
then  be  brought  here.  Cases  of  the  second  class  must  be  taken  to  the  circuit 
court  of  appeals  and  its  judgment  will  be  final. ^^  If  after  the  jurisdiction  of  the 
circuit  court  attaches  on  the  ground  of  diversity  of  citizenship,  under  the  circuit 
court  of  appeals  act  of  March  3,  1891,  issues  are  raised,  the  decision  of  which 
brings  the  case  w'ithin  either  of  the  classes  set  forth  in  §  5,  then  the  case  may  be 
brought  directly  to  this  court ;  although  it  may  be  carried  to  the  circuit  court  of 
appeals,  in  which  event  the  final  judgment  of  that  court  could  not  be  brought 
here  as  of  right. ^^  But  if  the  jurisdiction  of  the  circuit  court  rests  solely  on  the 
ground  that  the  suit  arises  under  the  constitution,  laws  or  treaties  of  the  LTnited 
States,  under  the  circuit  court  of  appeals  act  of  March  3,  1891,  then  the  jurisdic- 
tion of  this  court  is  exclusive,  but  if  it  is  placed  on  diverse  citizenship,  and  also 
on  grounds  independent  of  that,  then,  if  carrierl  to  the  court  of  appeals,  the  de- 
cision of  that  court  would  not  be  made  final,  and  appeal  or  writ  of  error 
would  lie.^''' 

Although  the  case  is  one  arisin;?  under  the  copyright  laws  of  the  United 
States,  and  therefore  may  be  appealed  to  this  court  from  the  circuit  court  of 
appeals,  yet  where  it  appears  that  the  jurisdiction  of  the  circuit  court  was  ob- 
tained and  exercised  solely  because  of  the  parties  being  citizens  of  dififerent 
states,  the  judgment  of  the  circuit  court  of  appeals  is  final. ^^ 

Corporation  Organized  under  Acts  of  Congress. — The  judgment  of  the 
circuit  court  of  appeals  is  not  made  final  in  a  case  where  the  jurisdiction  of  the 
circuit  court  is  not  dependent  entirely  upon  the  fact  that  the  opposite  parties  to 
the  suit  were  one  of  them  an  alien  and  the  other  a  citizen  of  the  United  States, 
or  one  of  them  a  citizen  of  one  state  and  the  other  a  citizen  of  a  diflferent  state, 
but  the  jurisdiction  of  the  circuit  court  depends  also  upon  the  fact  that  the  de- 
fendant i^eing  a  corporation  created  by  an  act  of  congress,  the  suit  arose  under  a 


Orleans.  181  U.  S.  277.  45  L.  Ed.  859.  cit- 
ing and  approving  Colorado,  etc..  Min. 
Co.  7:  Ttirck,  150  U.  S.  138,  37  L.  Ed.  1030; 
Press  Pub.  Co.  v.  Monroe,  164  U.  S.  105, 
41  L.  Ed.  307,  and  Ex  parte  Jones,  164 
U.  S.   691.  694,  41    L.   Ed.   601. 

Tn  Colorado,  etc.,  Min.  Co.  r.  Turck, 
1.50  U.  S.  138,  37  L.  Ed.  1030.  the  juris- 
diction of  the  circuit  court  was  invoked 
on  the  ground  of  diversity  of  citizenship. 
but  the  defendant  claimed  to  have  set  up 
in  defense  a  federal  question  arising  un- 
der §  2323  of  the  Revised  Statutes  of  the 
United  States,  and  on  that  ground  insisted 
that  the  judgment  of  the  circuit  court  of 
appeals  in  the  case  was  not  final.  Re- 
jecting the  contention  and  dismissing  the 
writ  of  error,  this  court  held,  that  before 
the  defense  under  §  2322  of  the  Revised 
Statutes  had  been  set  up  jurisdiction  had 
"already  attached  and  could  not  be  af- 
fected by  subsequent  developments."  Ju- 
risdiction, it  was  said,  "depended  entirely 
ttpon  diverse  citizenship  when  the  suit 
•was  commenced,  and  to  that  point  of  time 
the  inquiry  must  necessarily  be  referred." 
The  same  idea  was  expressed  in  subse- 
quent cases  though  in  somewhat  different 
language.  But  a  distinction  was  not  pre- 
cisely made  between  the  questions  em- 
braced in  §  5  and  other  federal  questions. 


That  distinction  was  presented  in  Loeb 
v.  Columbia  Township  Trustees.  179  U. 
S.  47?.  45  L.  Ed.  280;  Avres  r.  Polsdorfer, 
187  U.  S.  5<»5.  588.  47  L.  Ed.  314,  reaf- 
firmed in  Wirgman  z'.  Persons,  196  U.  S. 
636.   49  L.    Ed.   629. 

95.  Avres  r.  Polsdorfer,  187  U.  S.  585, 
590.  47  L.  Ed.  314.  reaffrmed  in  Wirgman 
V.  Persons.  196  U.  S.  fi:?6.  49  L.  Ed.  629, 
r'l-'no-  T  ,^nh  -■  Columbia  Ti^wnship  Trus- 
tees, 179  U.  S.  472,  45  L.  Ed.  280,  as  the 
case  presenting  the  distinction  between 
the  questions  embraced  in  §  5  and  other 
federal   questions. 

96.  Loeb  V.  Columbia  Township  Trustees, 
179  U.  S.  472,  45  L.  Ed.  2S0;  Huguley  Mfg. 
Co.  V.  Galeton  Cotton  Mills,  184  U.  S.  200, 
295,  46  L.  Ed.  546,  reaffirmed  in  Harding 
V.  Hart,  187  U.  S.  638,  47  L.  Ed.  344.  But 
see  the  opinion  of  Mr.  Justice  McKemia 
in  Ayres  v.  Polsdorfer,  187  U.  S.  589.  47 
L.   Ed.   314. 

?7.  American  Sugar  Ref.  Co.  zk  New 
Orleans,  181  U.  S.  277,  45  L.  Ed.  859; 
Huguley  Mfg.  Co.  v.  Galeton  Cotton 
Mills,  184  U.  S.  290,  295,  46  L.  Ed.  546, 
reaffirmed -in  Harding  v.  Hart,  187  U.  S. 
638,  47  L.   Ed.    344. 

98.  Press  Pub.  Co.  v.  Monroe,  164  U. 
S.  105,  41   L.   Ed.  367. 


APPEAL  AND  ERROR. 


821 


law  of  the  United  States,  without  reference  to  the  citizenship  of  the  plaintiff.*^ 
(4)  Rez'iczv  of  Ancillary,  Auxiliary  or  Supplemental  Proceedings. — When  an 
action  or  suit  is  commenced  by  a  receiver,  appointed  by  a  circuit  court,  to  ac- 
compHsh  the  ends  sought  and  directed  by  the  suit  in  which  the  appointment  was 
made,  such  action  or  suit  is  regarded  as  ancillary  so  far  as  the  jurisdiction  of 
the  circuit  court  as  a  court  of  the  United  States  is  concerned;  and  we  have  re- 
peatedly held  that  jurisdiction  of  these  subordinate  actions  or  suits  is  to  be  at- 
tributed to  the  jurisdiction  on  which  the  main  suit  rested  ;  and  hence  that  where 
jurisdiction  of  the  main  suit  is  predicated  on  diversity  of  citizenship,  and  the 
decree  therein  is,  therefore,  made  final  in  the  circuit  court  of  appeals,  the  judg- 
ments and  decrees  in  the  ancillary  litigation  are  also  final. ^     Manifestly,  the  de- 


99.  Xorthern  Pac.  R.  Co.  v.  Amato,  144 
U.  S.  465,  36  L.  Ed.  506,  citing  and  recon- 
ciling Lau  Ow  Bew  v.  United  States,  144 
U.  S.  47,  36  L.  Ed.  340:  McLish  v.  Roff, 
141  U.  S.  661,  35  L.  Ed.  893;  Chicago,  etc., 
R.  Co.  v.  Roberts.  141  U.  S.  690,  35  L.  Ed. 
905.  But  see  this  case  reviewed  and  ex- 
plained in  Ayres  f.  Polsdorfer.  187  U.  S. 
589,    47    L.    Ed.    314. 

In  Sonnentheil  v.  Moerlein  Brewing 
Co.,  172  U.  S.  401.  43  L.  Ed.  492,  an  ac- 
tion had  been  brought  in  the  circuit  court 
of  the  Unfted  States  for  the  eastern  dis- 
trict of  Texas  by  a  citizen  of  Texas, 
against  an  Ohio  corporation  and  a  United 
States  marshal,  the  jurisdiction  depending 
as  to  one  defendant  on  diverse  citizenship 
and  as  to  the  other  on  the  case  arising 
under  the  constitution  and  laws  of  the 
United  States,  and  the  question  was 
whether  the  judgment  of  the  circuit  court 
of  appeals  was  made  final  by  the  act  of 
March  3,  1891  which  we  held  it  was  not. 
as  the  jurisdiction  was  not  dependent  en- 
tirely upon  the  opposite  parties  to  the 
suit  being  citizens  of  different  states.  Dis- 
tinguished in  Chicago,  etc.,  R.  Co.  v.  Mar- 
tin,  178  U.   S.   245,  34S,  44  L.   Ed.   1055. 

1.  Revi«w  of  ancillary,  auxiliary  or  sup- 
plemental proceedings. — Rouse  f.  Letcher, 
156  U.  S.  47.  39  L.  Ed.  341;  Gregory  v. 
Van  Ee.  160  U.  S.  643,  40  L.  Ed.  566; 
Carey  v.  Houston,  etc.,  R.  Co..  161  U.  S. 
115.  40  L.  Ed.  638;  Pope  v.  Louisville,  etc., 
R.  Co..  173  U.  S.  573,  577,  43  L.  Ed.  814; 
Gableman  v.  Peoria,  etc.,  R.  Co.,  179  U.  S. 
335.   342,    45   L.    Ed.   220. 

Proceedings  on  intervention. — In  Rouse 
V.  Letcher.  156  U.  S.  47.  39  L.  Ed.  341. 
we  held  that  if  the  decree  of  a  circuit 
court  of  appeals  is  final  under  the  sixth 
section  of  the  judiciary  act  of  March  3, 
1891.  a  decree  upon  an  intervention  in  the 
same  suit  must  be  regarded  as  equally  so 
because  the  intervention  is  entertained  in 
virtue  of  jurisdiction  in  the  circuit  court 
already  subsisting.  It  was  pointed  out 
that  where  property  is  in  the  actual  pos- 
session of  the  circuit  court,  this  draws  to 
it  the  right  to  decide  upon  conflicting 
claims  for  its  ultimate  possession  and  con- 
trol, and  that  where  assets  are  in  the 
course  of  administration  all  persons  en- 
titled to  participate  may  come  in  under 
the  jurisdiction  acquired  between  the 
original    parties,    by    ancillary    or    supple- 


mental proceedings,  even  though  juris- 
diction in  the  circuit  court  would  be  lack- 
ing if  such  proceedings  had  been  inde- 
pendently prosecuted;  that  the  exercise 
of  the  power  of  disposition  by  a  circuit 
court  of  the  United  States  over  such  an 
intervention  is  the  exercise  of  power  in- 
voked at  the  institution  of  the  main  suit; 
and  that  it  is  to  that  point  of  time  that 
the  inquiry  as  to  the  jurisdiction  of  the 
circuit  court  must  necessarily  be  referred. 
Therefore,  that,  if  the  decree  in  the  main 
suit  were  final,  decrees  in  accessory  and 
subordinate  proceedings  would  be  also 
final,  and  appeals  therefrom  could  not  be 
sustained.  Gregory  z\  Van  Ee,  160  U.  S. 
643.    645,    40    L.    Ed.    566. 

Where  the  jurisdiction  of  the  circuit 
court  of  appeals  is  invoked  throughout 
the  litigation  upon  the  ground  of  diverse 
citizenship,  and  a  bill  in  equity  is  filed  by 
a  corporation  or  the  stockholders  of  a 
corporation  in  the  circuit  court  to  set 
aside  a  final  decree  of  that  court  against 
the  corporation  in  a  foreclosure  suit  upon 
the  ground  that  such  a  decree  was  ob- 
tained by  collusion  and  fraud,  and  the 
court  had  no  jurisdiction  to  make  it.  as 
this  bill  must  be  regarded  as  ancillary, 
auxiliary  or  supplemental  to  the  fore- 
closure suit,  or,  as  it  were,  in  continua- 
tion thereof,  the  decree  of  the  circuit  court 
of  appeals  therein  is  made  final  by  the 
6th  section  of  the  act  of  March  3,' 1891, 
and  therefore  an  appeal  to  this  court  from 
that  decree  will  not  lie.  Carey  v.  Hous- 
ton, etc.,  R.  Co.,  161  U.  S.  115,  40  L.  Ed. 
638.  citing  Rouse  v.  Letcher.  156  U.  S. 
47,  39  L.  Ed.  341;  Colorado,  etc.,  Min.  Co. 
V.  Turck,  150  U.  S.  138,  37  L.  Ed.  1030; 
Gregory  v.  Van  Ee,  160  U.  S.  643,  40  L. 
Ed.  566;  Murphy  v.  Colorado  Paving  Co.. 
166  U.  S.  719.  41  L.  Ed.  1188;  Darragh  v. 
Manufacturing  Co.,  169  U.  S.  735,  42  L. 
Ed.   1216. 

Pope  V.  Louisville  reviewed. — In  Pope 
V.  Louisville,  etc.,  R.  Co.,  173  U.  S.  573, 
43  L.  Ed.  814,  the  right  of  appeal  tc  this 
court  from  the  circuit  court  of  appeals 
was  asserted  on  the  ground  that  the  case 
arose  under  the  constitution  and  laws  of 
the  United  States,  because  Pope  was  a 
receiver  of  a  federal  court.  We  decided 
that  the  suit  was  ancillary  to  the  original 
cases  in  which  the  receiver  was  appointed, 
and    that    the    jurisdiction    was    dependent 


822 


APPEAL  AND  ERROR. 


cree  in  the  main  suit  cannot  be  revised  through  an  appeal  from  a  decree  on  an- 
cillary or  supplemental  proceedings,  thus  accomplishing  indirectly  what  could 
not  be  done  directly.  And  even  if  the  decree  on  such  proceedings  may  be  in 
itself  independent  of  the  controversy  between  the  original  parties,  yet  if  the 
proceedings  are  entertained  in  the  circuit  court  because  of  its  possession  of  the 
subject  of  the  ancillary  or  supplemental  application,  the  disposition  of  the  latter 
must  partake  of  the  finality  of  the  main  decree,  and  cannot  be  Drought  here  on 
the  theory  that  the  circuit  court  exercised  jurisdiction  independently  of  the 
ground  of  jurisdiction  which  was  originally  invoked  as  giving  cognizance  to  that 
court  as  a  court  of  the  United  States. ^ 

Judgment  upon  Claims  of  Intervenors. — In  accordance  with  that  section 
of  the  circuit  court  of  appeals  act  providing  that  the  decisions  of  that  court  shall 
be  final  in  all  cases  in  which  the  jurisdiction  of  the  court  is  dependent  entirely 
upon  the  opposite  parties  being  citizens  of  dififerent  states,  it  was  held,  that  the 
judgment  of  the  court  of  appeals  upon  the  claim  of  an  intervenor,  set  up  in  a 
circuit  court  against  the  receiver  of  a  railroad  by  that  court  in  a  suit  for  the  fore- 
closure of  a  mortgage  upon  the  road,  is  final  under  this  section.  "Nor  can  the 
conclusion  be  otherwise  because  separate  appeals  may  be  allowed  on  such  inter- 
ventions.    Decrees  upon  controversies  separable  from  the  main  suit  may  indeed 


Gn  the  ground  of  jurisdiction  in  those 
cases,  and  we  also  held,  that  the  receiver's 
orders  of  appointment  were  not  equiva- 
lent to  laws  of  the  United  States  in  the 
meaning  of  the  constitution,  and  that  the 
mere  order  of  a  federal  court,  sitting  in 
chancery,  appointing  a  receiver,  did  not 
in  itself  form  adequate  ground  of  juris- 
diction. We  said:  "The  bill  nowhere 
asserted  a  right  under  the  constitution  or 
laws  of  the  United  States,  but  proceeded 
on  common-law  rights  of  action.  We 
cannot  accept  the  suggestion  that  the 
mere  order  of  a  federal  court,  sitting  in 
chancery,  appointing  a  receiver  on  a 
creditor's  bill,  not  only  enables  the  re- 
ceiver to  invoke  federal  jurisdiction,  but 
to  do  this  independently  of  the  ground  of 
jurisdiction  of  the  suit  in  which  the  or- 
der was  entered,  and  thereby  affect  the 
finality  of  decrees  in  the  circuit  court  of 
appeals  in  proceedings  tali  en  by  him.  The 
validity  of  the  order  of  the  appointment 
of  the  receiver  m  this  instance  depended 
on  the  jurisdiction  of  the  court  that  en- 
tered it,  and  that  jurisdiction,  as  we  have 
seen,  depended  exclusively  upon  the  di- 
verse citizenship  of  the  parties  to  the 
suits  in  which  the  appointment  was  made. 
The  order,  as  such,  created  no  liability 
against  defendants,  nor  did  it  tend  in  any 
degree  to  establish  the  receiver's  right 
to  a  money  decree,  nor  to  any  other 
remedy  prayed  for  in  the  amended  bill. 
The  liability  of  defendants  arose  under  . 
general  law.  and  was  neither  created  nor 
arose  under  the  constitution  or  laws  of  the 
United  States."  The  question  there  was  as 
to  whether  or  not  the  decision  of  the  circuit 
court  of  appeals  was  made  final  by  the 
sixth  section  of  the  judiciary  act  of  March 
3.  1891,  and  we  held  that  it  was.  and  dis- 
missed the  appeal.  We  could  not,  how- 
ever, have  arrived  at  that  conclusion  if 
the  jurisdiction  had  rented  on  the  ground 
that  the  case  arose  under  the  constitution 


or  laws  of  the  United  States,  as  such 
cases  are  not  among  the  classes  enumer- 
ated in  that  section,  in  which  the  de- 
cisions of  that  court  are  made  final.  Ap- 
proved in  Gableman  v.  Peoria,  etc.,  R. 
Co.,  179  U.  S.  335,  341.  342,  45  L.  Ed.  220; 
Bausman  v.  Dixon,  173  U.  S.  113,  43  L. 
Ed.    633. 

Suits  in  nature  of  creditors'  bills. — • 
"The  suits  in  which  this  receiver  was  ap- 
pointed were  in  the  nature  of  creditors' 
bills  alleging  an  indebtedness  due  from 
the  Atlantic  Company;  the  insolvency  of 
that  company;  that  certain  corporations 
had  in  their  possession  assets  of  the  At- 
lantic Company;  and  praying  for  the  ap- 
pointment of  a  receiver;  the  marshaling 
of  assets;  the  winding  up  of  the  Atlantic 
Company,  and  the  application  of  its  as- 
sets to  the  payment  of  its  debts.  The  only 
ground  of  federal  jurisdiction  set  up  in 
the  bills  was  diversity  of  citizenship,  and 
if  the  decrees  therein  had  been  passed  on 
by  the  circuit  court  of  appeals,  the  de- 
cision of  that  court  would  have  been  final 
under  the  statute.  And  as  this  suit  was 
in  effect  merely  in  collection  of  alleged 
assets  of  the  Atlantic  Company,  it  must 
be  regarded  as  auxiliary,  and  the  same 
finality  attaches  to  the  decree  of  the  cir- 
cuit court  of  appeals  therein.  And  this 
is  true  although  another  ground  of  juris- 
diction might  be  developed  in  the  course 
of  the  proceedings,  as  it  must  appear  at 
the  outset  that  the  suit  is  one  of  that 
character  of  which  the  circuit  court  could 
properly  take  cognizance  at  the  time  its 
jurisdiction  is  invoked.  Colorado,  etc., 
Min.  Co.  r.  Turck,  150  U.  S.  138,  37  L- 
Ed.  1030;  Ex  parte  Jones,  164  U.  S.  691, 
693,  41  L.  Ed.  601 ;  Third  Street  R.  Co.  v. 
Lewis,  173  U.  S.  457,  43  L.  Ed.  766." 
Pope  V.  Louisville,  etc.,  R.  Co.,  173  U. 
S.   573,   577.   578,   43  L.   Ed.   814. 

2.  Gregory  v.  Van  Ee,  160  U.  S.  643, 
646,  40  L.    Ed.    566. 


APPEAL  AND  ERROR. 


823 


be  separately  reviewed  but  the  jurisdiction  of  the  circuit  court  over  such  contro- 
versies is  not,  therefore,  to  be  ascribed  to  grounds  independent  of  jurisdiction 
in  the  main  suit.  We  are  unable  to  attribute  to  congress  the  intention  of  allow- 
ing final  orders  on  every  incidental  controversy,  involving  over  one  thousand 
dollars,  to  be  brought  to  this  court  for  review,  while  denying  such  review  of  the 
principal  decree,  although  involving  millions. "^ 

h.  Effect  of  Bankruptcy  Act. — The  fifth  and  sixth  sections  of  the  judiciary  act 
of  March  3,  1891,  were  not  changed  by  the  bankruptcy  act.  The  sixth  section 
gives  the  courts  of  appeals  jurisdiction  to  review  by  appeal  or  writ  of  error  final 
decisions  in  the  district  and  circuit  courts  in  cases  other  than  those  provided  for 
in  the  fifth  section.^  Apart  from  §  25,  the  circuit  courts  of  appeals  have  juris- 
diction on  petition  to  superintend  and  revise  any  matter  of  law  in  bankruptcy 
proceedings  and  also  jurisdiction  of  controversies  over  which  they  would  have 
appellate  jurisdiction  in  other  cases.  The  decisions  of  those  courts  might  be  re- 
viewed here  on  certiorari,  or  in  certain  cases  bv  appeal,  under  §  6  of  the  act 
of  1891.5 

i.  Finality  of  Judgments  and  Decrees^' — (1)  ///  General. — The  general  rule  is 
that  the  circuit  court  of  appeals  has  no  jurisdiction  to  review  interlocutory  judg- 
ments, orders  and  decrees.  This  court  is  governed  by  the  same  principles  in 
this  regard  as  other  courts  of  the  United  States.'     The  circuit  court  of  appeals 


3.    Rouse   V.    Fletcher,    156   U.   S.    47,   50. 

39  L.  Ed.  341. 

Where  the  jurisdiction  of  the  circuit 
court  over  a  petition  of  intervention  filed 
in  a  suit  for  the  foreclosure  of  a  mort- 
gage, is  clearly  referable  to  its  jurisdic- 
tion of  the  equity  suit  which  depended 
wholly  upon  diverse  citizenship,  because 
this  intervention  is  nothing  more  than  an 
application  for  the  allowance  of  a  claim 
under  the  foreclosure  proceedings  and  as 
against  the  property  or  fund  being  ad- 
ministered by  the  court,  and  therefore  the 
case  comes  directly  within  recent  de- 
cisions of  this  court  that  under  such  cir- 
cumstances the  judgments  and  decrees  of 
the  circuit  courts  of  appeals  are  made 
final  by  §  6  of  the  judiciary  act  of  March 
3,  1891.     Rouse  v.  Hornsby.  161  U.  S.  588, 

40  L.  Ed.  817,  citing  Rouse  v.  Letcher, 
156  U.  S.  47,  39  L.  Ed.  341;  Gregory  c'. 
Van  Ee,  160  U.  S.  643,  40  L.  Ed.  566; 
Carey  v.  Houston,  etc.,  R.  Co..  161  U.  S. 
115,   40    L.    Ed.    638. 

In  Rouse  v.  Letcher,  156  U.  S.  47,  50, 
39  L.  Ed.  341,  we  have  already  adjudged 
that  the  sixth  section  authorizes  no  ap- 
peal to  this  court  from  a  decree  of  a 
circuit  court  of  appeals  in  an  ancillary  or 
supplemental  suit  or  proceeding  in  the 
circuit  court,  where  the  jurisdiction  of 
that  court  in  the  main  or  original  suit 
depends  entirely  upon  the  parties  being 
citizens  of  different  states.  In  that  case 
the  main  foreclosure  suit  was  between 
citizens  of  different  states,  and  receivers 
had  been  appointed.  A  proceeding  by  in- 
tervention was  afterwards  instituted  in  the 
circuit  court  against  the  receivers,  who 
appealed  to  this  court  from  the  decree  of 
the  circuit  court  of  appeals  against  them, 
and  the  appeal  was  dismissed  because  the 
opposite  parties  to  the  foreclosure  suit 
were   citizens   of   different   states,   and   the 


decree  was  therefore  made  final  bv  the 
statute.  Rouse  v.  Letcher.  156  U.  S.  47, 
39  L.  Ed.  341,  was  followed  in  Gregory 
V.  Van  Ee.  160  U.  S.  643,  646,  40  L.  j^a. 
566,  and  it  was  thus  observed.  Carey  7\ 
Houston,  etc.,  R.  Co.,  161  U.  S.  115,  128, 
129.  40  L.  Ed.  S38,  reaffirmed  in  Murphy 
V.  Colorado  Paving  Co.,  166  U.  S.  719, 
41  L.  Ed.  1188,  Darragh  v.  Manufacturing 
Co.,  169  U.  S.  735,  42  L.   Ed.  1216. 

4.  Effect  of  bankruptcy  act. — Elliott  v. 
Toeppner,  187  U.  S.  327,  334,  47  L.  Ed. 
200.  following  Bardes  v.  Hawarden  First 
Nat.  Bank,  175  U.  S.  526,  44  L.  Ed.  261. 
See  the  title  BANKRUPTCY. 

5.  Mueller  v.  Nugent,  184  U.  S.  1,  46 
L.  Ed.  405;  Huntington  v.  Saunders,  163 
U.  S.  319,  41  L.  Ed.  174;  .\ztec  Min.  Co. 
V.  Ripley,  151  U.  S.  79.  81,  38  L.  Ed.  80; 
Denver  First  Nat.  Bank  v.  Klug,  186  U. 
S.   203.   205,   46    L.    Ed.    1127. 

6.  Finality  of  judgments  and  decrees. 
— For  particular  judgments  and  decrees, 
see   post,   "Decisions    Reviewable,"    IV. 

7.  In  general. — 26  Stat.  826,  828,  c.  517, 
§  6;  Guarantee  Co.  v.  Mechanics'  Savings 
Bank,  etc.,  Co.,  173  U.  S.  582,  585,  43  L. 
Ed.  818;  McLish  v.  Roff,  141  U.  S.  661, 
35  L.  Ed.  893;  Kingman  Co.  v.  Western 
Mfg.  Co.,  170  U.  S.  675,  677,  42  L.  Ed. 
1192.  For  specific  instances,  see  post, 
"Decisions   Reviewable,"   IV. 

By  §  6,  the  circuit  courts  of  appeals  are 
empowered  to  review  final  decisions  of 
the  district  and  circuit  courts,  except 
where  cases  are  carried,  under  §  5,  di- 
rectly to  this  court,  but  by  the  seventh 
section,  as  amended  by  the  act  of  Feb- 
ruary 19,  1895,  c.  96,  28  Stat.  666,  jurisdic- 
tion is  given  to  the  courts  of  appeals  from 
appeals  from  interlocutory  orders  in  in- 
junction proceedings.  Kirwan  v.  Murphy. 
170   U.    S.    205,    42    L.    Ed.    1009;    Kingifian 


824  APPEAL  AND  ERROR. 

act  of  1891  gives  no  right  to  review  other  than  final  judgments  in  the  district 
and  circuit  courts,  except  in  injunction  orders,  as  provided  in  §  7  of  the  act.^ 

(2)  Interlocutory  Orders  Granting  or  Refusing  Injunctions. — In  General. — 
But  §  7  of  the  act  of  March  3,  1891,  c.  826,  creating  circuit  courts  of  appeal, 
26  vStat.  517,  as  amended  February  18,  1895,  c.  96,  28  Stat.  666,  provides :  "That 
where,  upon  a  hearing  in  equity  in  a  district  court  or  a  circuit  cottrt.  an  injunc- 
tion shall  be  granted,  contirtued,  refused  or  dissolved  by  an  interlocutory  order 
or  decree,  or  an  application  to  dissolve  an  injunction  shall  be  refused  in  a  case 
in  which  an  appeal  from  a  final  decree  maj  be  taken  under  the  provisions  of 
this  act  to  the  circuit  court  of  appeals,  an  appeal  may  be  taken  from  such  inter- 
locutory order  or  decree  granting,  continuing,  refusing,  dissolving  or  refusing 
to  dissolve  an  injunction  to  the  circuit  court  of  appeals:  Provided,  that  the  ap- 
peal must  be  taken  within  thirty  days  from  the  entry  of  such  order  or  decree, 
and  it  shall  take  precedence  in  the  appellate  court ;  and  the  proceedings  in  other 
respects  in  the  court  below  shall  not  be  stayed  unless  otherwise  ordered  by  that 
court  during  the  pendency  of  such  appeal ;  and  provided  further,  that  th«  court 
below  may  in  its  discretion  require,  as  a  condition  of  the  appeal,  additional  in- 
junction bond."^ 

The  manifest  intent  of  this  provision,  read  in  the  light  of  the  previous  prac- 
tice in  the  courts  of  the  United  States,  contrasted  wit!;  the  practice  in  courts  of 
equity  of  the  highest  authority  elsewhere,  appears  to  this  court  to  have  been, 
not  only  to  permit  the  defendant  to  obtain  immediate  relief  from  an  injunction, 
the  continuance  of  which  throughout  the  progress  of  the  cause  might  seriously 
afifect  his  interests ;  but  also  to  save  both  parties  from  the  expense  of  further  lit- 
igation, should  the  appellate  court  be  of  opinion  that  the  plaintiff  was  not  en- 
titled to  an  injunction  because  his  bill  had  no  equity  to  support  it.^*^ 

An  interlocutory  order  appointing  a  receiver,  standing  alone,  is  not  appeal- 
able from  the  circuit  court  to  the  circuit  court  of  appeals,  nor  does  it  become  so 
by  the  incorporation  into  it  of  a  direction  to  the  defendant,  its  officers,  direct- 
ors,  agents  and  employees,  to  turn  over  and  deliver  to  the  receiver  the  property 
in  their  hands,  under  §  7  of  the  act  of  March  3,  1891,  c.  826.12 

&    Co.    V.    Western    Mfg.    Co.,    170    U.    S.  A  writ  of  certiorari   wiil  not  be  issued 

675,    677,    42    L.    Ed.    1192,    reaffirmed    in  by    the    supreme     court      of      the      United 

International  Trust  Co.  v.  Weeks,   193  U.  States    to    review    interlocutory   orders    of 

S.  667.  48  L.  Ed.  839.  the    circuit    court    such    as    a    preliminary 

8.  McLish  V.  Roff,  141  U.  S.  661.  668,  restraining  order,  and  an  order  appoint- 
35  L.  Ed.  893;  Doyle  v.  London  Guar-  ing  a  receiver  and  continuing  the  injunc- 
antee,  etc..  Co.,  204  U.  S.  599,  608,  51  L.  tion  in  aid  of  the  receivership,  on  the 
Ed.   641.  ground  that  both  these  orders  were  void  for 

9.  Interlocutory  orders  granting  or  re-  want  of  power  in  the  circuit  judge  to  grant 
fusing  injunctions. — Highland  .\ve.,  etc.,  them  outside  of  his  circuit,  because  an 
R.  V.  Columbus  Equipment  Co.,  168  U.  S.  appeal  to  the  circuit  court  of  appeals  may 
627,  629,  42  L.  Ed.  605;  Kirwan  v.  Mur-  be  taken  from  these  orders  or  from  an 
phy,  170  U.  S.  305,  209.  42  L.  Ed.  1009;  order  refusing  to  set  them  aside  and  dis- 
Smith  v.  Vulcan  Iron  Works,  165  U.  S.  solve  the  injunction.  "By  the  seventh 
9l8.  520,  41  L.  Ed.  810.  For  its  present  section  of  the  judiciary  act  of  March  3, 
provision  see  act  of  June  6,  1900,  ch.  803,  1891,  c.  517.  26  Stat.  826,  828,  as  amended 
as  amended  by  act  of  Feb.  18,  1895,  ch.  by  the  act  of  February  18,  1895,  c.  96,  38 
96,  28  Stat.  L.  666.  Stat.    666,    it    is    provided:      'That    where, 

10.  Smith  V.  Vulcan  Iron  Works.  165  upon  a  hearing  in  equity,  in  a  district 
U.  S.  518,  520,  41  L.   Ed.  810.  court  or  a  circuit  court,  an  injunction  shall 

12.  Highland  Ave.,  etc.,  R.  Co.  v.  Co-  be  granted,  continued,  refused  or  dis- 
Inmbian  Equipment  Co.,  168  U.  S.  627.  42  solved  by  an  interlocutory  order  or  de- 
L.  Ed.  605.  distinguishing  Smith  v.  Vulcan  cree  or  an  application  to  dissolve  an  in- 
Iron  Works,  165  U.  S.  518,  41  L-  Ed.  810;  junction  shall  be  refused  in  a  case  in 
In  re  Tampa  Suburban  R.  Co.,  168  U.  S.  which  an  appeal  from  a  final  decree  may 
583,  42  L.  Ed.  589,  on  the  ground  that  be  taken  under  the  provisions  of  this  act 
each  of  those  cases  proceeded  upon  the  to  the  circuit  court  of  appeals,  an  appeal 
fact  that  there  was  a  distinct  order  grant-  may  be  taken  from  such  interlocutory  or- 
ing,  continuing  or  dissolving  an  injunc-  ing,  dissolving  or  refusing  to  dissolve  an 
ti^n.  while  in  the  case  at  bar  there  was  injunction  to  the  circuit  court  of  ap- 
no  such   order.  peals,' "    and    this    even   though    the    ques- 


APPEAL  AXD  ERROR.  825 

Fragmentary  Appeals.— The  provision  of  §  7  of  the  act  of  1891,  that  where 
•'upon  a  hearing  in  equity"  in  a  circuit  court  "an  injunction  shall  be  granted  or 
continued  by  an  interlocutory  order  or  decree,"  in  a  cause  in  which  an  appeal 
from  a  final  decree  might  be  taken  to  the  circuit  court  of  appeals,  "an  appeal 
may  be  taken  from  such  interlocutory  order  or  decree  granting  or  continuing 
such  injunction"  to  that  court  authorizes,  according  to  its  gramniatical  construc- 
tion and  natural  meaning,  an  appeal  to  be  taken  from  the  whole  of  such  inter- 
locutory order  or  decree,  and  not  from  that  part  of  it  only  which  grants  or 
continues  an  injunction. '^•^ 

Orders  of  District  Court  of  Alaska. — Reading  the  acts  of  Congress  of 
June  6,  1900.  31  Stat.  321.  c.  786,  §  504,  regulating  appeals  from  the  district 
court  of  Alaska,  and  §  7  of  the  judiciary  act  of  Alarch  3,  1891,  as  amended  by 
the  act  of  February  18,  1895,  28  Stat.  666,  c.  96,  and  as  further  amended  on 
June  6.  1900,  31  Stat.  660,  c.  803,  in  pari  materia,  appeals  from  interlocutory  or- 
ders from  the  said  district  court  of  Alaska  appointing  receivers  may  be  pros- 
ecuted within  sixty  days  from  the  entry  of  such  order. ^^ 

Effect  of  Appeal. — The  power  of  the  appellate  court  over  the  cause,  of  which 
it  has  acquired  jurisdiction  by  the  appeal  from  the  interlocutory  decree,  is  not 
affected  by  the  authority  of  the  court  appealed  from,  recognized  in  the  last 
clause^  of  the  section,  and  often  exercised  by  other  courts  of  chancery,  to  take 
further  proceedings  in  the  cause,  unless  in  its  discretion  it  orders  them  to  be 
stayed,  pending  the  appeal. ^^ 

Scope  of  Review. — Under  this  section  it  has  been  decided  that  vhen  an 
appeal  is  taken  from  an  interlocutory  order  or  decree  granting  or  dissolving  an 
injunction,  the  whole  of  such  interlocutory  order  or  decree  is  before  the  court 
of  appeals  for  review,  and  not  simply  that  part  which  grants  or  dissolves  the 
injunction,  and  that  on  the  hearing  in  the  court  of  appeals,  that  court  may  con- 
sider and  decide  the  case  upon  its  merits. ^"^  In  a  suit  in  equity  for  the  infringe- 
ment of  a  patent,  an  appeal  to  the  circuit  court  of  appeals  from  an  interlocutory 
order  or  decree  of  the  circuit  court,  granting  an  injunction,  and  referring  the 
case  to  a  master  to  take  an  account  of  damages  and  profits,  may  be  from  the 
whole  order  or  decree,  and  it  is  not  restricted  to  that  part  of  it  which  grants  the 
injunction;  and  the  circuit  court  of  appeals,  upon  such  an  appeal,  may  consider 
and  decide  the  merits  of  the  case,  and,  if  it  decides  them  in  the  defendant's  favor, 
may  order  the  bill  to  be  dismissed. ^^ 

tioii  of  the  jurisdiction  of  the  circuit  court  R.  Co..  168  U.  S.  583,  42  L.  Ed.  589,  de- 
is  involved.  And  the  appeal  carries  up  cided  before  the  statute  was  amended,  it 
The  entire  order,  and  the  case  may,  in-  was  held,  that  an  appeal  would  lie  from 
deed,  on  occasion,  be  considered  and  de-  an  interlocutory  order  granting  an  injunc- 
cided  on  its  merits.  In  re  Tampa  Subur-  tion  in  connection  with  the  appointment 
ban  R.  Co..  168  U.  S.  583,  42  L.  Ed.  589,  of  a  receiver  and  would  bring  up  the  en- 
citing  United  States  v.  Jahn,  155  U.  S.  tire  order,  including  the  appointment.  In 
109.  39  L.  Ed.  87;  Smith  v.  Vulcan  Iron  Highland  Ave.,  etc.,  R.  Co.  v.  Columbia 
Works,  165  U.  S.  518.  41  L.  Ed.  810.  Equipment  Co.,  168  U.  S.  627,  42  L.  Ed. 
13.  Smith  z'.  Vulcan  Iron  Works,  165  605.  the  order  was  confined  to  the  ap- 
U.   S.   518,  524,  41  L.   Ed.   810.  pointment    of   the   receiver   and   contained 

15.  In  re  McKenzie,  180  U.  S.  536,  45  no  injunction.  In  re  McKenzie,  180  U. 
L.    Ed.    657.  S.   536.   45    L.    Ed.    657. 

16.  Hovey  v.  McDonald,  109  U.  S.  150,  18.  Smith  v.  Vulcan  Iron  Works  Co.. 
160,    161,   27   L.    Ed.   888;    In   re    Haberman  165  U.  S.   518,  520,  41   L.   Ed.  810. 

Mfg.    Co.,    147   U.   S.    525,   37    L.    Ed.    266;  In  Smith  v.  Vulcan  Iron  Works,  165  U. 

Smith   V.   Vulcan    Iron    Works,    165    U.    S.  S.  518,  41  L.  Ed.  810,  it  was  held,  that  the 

518,  525.  41   L.   Ed.  810.  circuit    courts  of  appeals,  on  an  appeal  from 

17.  Smith  V.  Vulcan  Iron  Works,  165  an  interlocutory  order  or  decree  of  the 
U.  S.  518,  41  L.  Ed.  810;  In  re  Tampa  circuit  courts  granting  an  injunction  and 
Suburban  R.  Co.,  168  U.  S.  583,  42  L.  Ed.  ordering  an  accounting  in  a  patent  suit, 
589;  Highland  Ave.,  etc.,  R.  Co.  v.  Co-  might  consider  and  decide  the  case  on  its 
liimbia  Equipment  Co.,  168  U.  S.  627.  630,  merits,  and  thereupon  render  or  direct  a 
42  L.  Ed.  605;  Ex  parte  National  Enamel-  final  decree  dismissing  the  bill;  and  this 
ing  Co..  201  U.  S.  156,  162,  50  L.  Ed.  707.  course    might    be    pursued    in    other   cases. 

In   the   case   of   In   re   Tampa   Suburban       r^Iills   v.   Green,   159  U.   S.   651,   40    L.   Ed. 


826 


APPEAL  AND  ERROR. 


How  Much  of  Cause  Transferred. — Obviously  that  which  is  contemplated 
is  a  review  of  the  interlocutory  order,  and  of  that  only.  It  was  not  intended 
that  the  cause  as  a  whole  should  be  transferred  to  the  appellate  court  prior  to 
the  final  decree.  The  case,  except  for  the  hearing  on  the  app'.-al  from  the  in- 
terlocutory order,  is  to  proceed  in  the  lower  court  as  though  no  such  appeal  had 
been  taken,  unless  otherwise  specially  ordered,  i'* 

Mandamus  and  Prohibition. — Under  the  act  of  congress  of  June  6,  1900, 
31  Stat.  660,  c.  803,  a  plain  and  adequate  remedy  exists  by  appeal  to  the  circuit 
court  of  appeals  for  the  fifth  circuit  from  an  interloctuory  order  granting  an  in- 
junction and  hence  neither  a  writ  of  mandamus  nor  prohibition  will  lie  according 
to  settled  principles.  After  a  final  decree,  an  appeal  to  this  court  would  lie  in 
respect  of  the  jurisdiction  if  the  question  were  properly  raised  and  certified,  or 
if  issues  were  raised  and  decided  bringing  the  case  within  §  5  of  the  act  of  March 
3.  1891  ;  or  to  the  circuit  court  of  appeals. ^o 

Hearing  and  Determination. — The  power  of  the  court  of  appeals  to  order 
the  dismissal  of  the  bill  before  answer  filed,  or  proof  taken,  upon  appeal  from 
an  order  granting  a  temporary  injunction  must  be  determined  on  the  circum- 
stances of  the  particular  case.  If  the  showing  made  by  the  plaintiff  be  incom- 
plete; if  the  order  for  the  injunction  be  reversed,  because  injunction  was  not  the 
proper  remedy,  or  because  under  the  particular  circumstances  of  the  case,  it 
should  not  have  been  granted ;  or  if  other  relief  be  possible,  notwithstanding  the 
injunction  be  refused,  then,  clearly,  the  case  should  be  remanded  for  a  full  hear- 
ing upon  pleadings  and  proofs.  But  if  the  bill  be  obviously  devoid  of  equity 
upon  its  face,  and  such  invalidity  be  incapable  of  remedy  by  amendment ;  or  if, 
in  a  patent  case,  the  patent  manifestly  fails  to  disclose  a  patentable  novel./  in  the 
invention,  to  save  a  protracted  litigation,  the  court  may  order  the  bill  to  be  dis- 
missed.^^ 

But  in  a  suit  for  infringement  of  a  patent,  the  circuit  court  of  appeals, 
should  not  on  reversing  the  order  of  the  circuit  court,  granting  a  preliminary 
mjunction  on  ex  parte  affidavit,  dismiss  the  bill,  where  it  appears  that  the  com- 


293.  Here,  however,  the  court  of  appeals 
did  not  finally  determine  the  case  by  its 
judgment,  and  whether  the  temporary  in- 
junction should  be  made  permanent  or 
not,  was  left  to  the  circuit  court  to  decide 
when  the  final  decree  was  entered.  Kir- 
wan  V.  Murphy,  170  U.  S.  205,  209,  42  L. 
Ed.  1009,  reaffirmed  in  International 
Trust  Co.  V.  Weeks,  193  U.  S.  667.  48  L. 
Ed.   839. 

19.  Ex  parte  National  Enameling  Co., 
201  U.  S.  156,  50  L.  Ed.  707,  citing  Smith 
V.  Vulcan  Iron  Works,  165  U.  S.  518,  41 
L.  Ed.  810;  Mast,  etc.,  Co.  v.  Stover  Mfg. 
Co.,  177  U.  S.  485,  494,  44  L.  Ed.  856,  860; 
S.   C,   177  U.   S.   495,  44  L.    Ed.  861. 

20.  In  re  Huguley  Mfg.  Co.,  184  U.  S. 
29~.  301,  46  L.   Ed.   549. 

21.  Mast,  etc.,  Co.  v.  Stover  Mfg.  Co., 
177  U.  S.  485,  44  L.  Ed.  856;  Castner  v. 
Coffman,  178  U.  S.  168,  44  L.  Ed.  1021; 
Mast,  etc.,  Co.  v.  Stover  Mfg.  Co.,  177  U. 
S.  485,  44  L.  Ed.  856;  Harriman  v. 
Northern  Securities  Co.,  197  U.  S.  244, 
287,   49    L.    Ed.    739. 

"In  Mast,  etc.,  Co.  v.  Stover  Mfg.  Co.. 
177  U.  S.  485,  44  L.  Ed.  861,  we  con- 
sidered the  question  as  to  the  power  of  a 
circuit  court  of  appeals,  in  reviewing  the 
action  of  a  circuit  court  in  allowing  a  tem- 
porary injunction  pendente  I'te,  upon  af- 
fidavits,   to    consider    the    case    upon    the 


merits  and  direct  a  final  decree  dismissing 
the  bill.  It  was  held,  that  the  propriety 
of  the  exercise  of  such  a  power  must  be 
determined  from  the  circumstances  of  the 
particular  case.  And  it  was  added:  'If 
the  showing  made  bj'  the  plaintiff  be  in- 
complete; if  the  order  for  the  injunction 
be  reversed,  because  injunction  was  not 
the  proper  remedy,  or  because  under  the 
particular  circumstances  of  the  case  it 
should  not  have  been  granted;  or  if  other 
relief  be  possible,  notwithstanding  the  in- 
junction be  refused,  then  clearly,  the  case 
should  be  remanded  for  a  full  hearing 
upon  pleadings  and  proofs.  But  if  the 
bill  be  obviously  devoid  of  equity  upon 
its  face,  and  such  invalidity  be  incapable 
of  remedy  by  amendment,  or  if  the  patent 
manifestly  fail  to  disclose  a  patentable 
novelty  in  the  invention,  we  know  of  no 
reason  why,  to  save  a  protracted  litiga- 
tion, the  court  may  not  order  the  bill  to 
be  dismissed.' "  Castner  v.  Coflfman,  178 
U.    S.   168,    183,   44   L.   Ed.   1021. 

In  Smith  v.  Vulcan  Iron  Works,  165  U. 
S  518,  41  L.  Ed.  810,  the  "interlocutory 
injunction  was  granted  after  answer  and 
replication  filed,  a  full  hearing  had  upon 
pleadings  and  proofs,  and  an  interlocutory 
decree  entered  adjudging  the  validity  of 
the  patent,  the  infringement  and  injunc- 
tion,   and    a    reference    of    the    case    to    a 


APPEAL  AND  ERROR. 


827 


plainant  had  no  chance  prior  to  the  hearing  in  the  trial  court,  to  inspect  the  af- 
fidavits of  defendants,  and  was  refused  leave  to  rebut  the  affidavits. -^ 

j.  Limitations  upon  Appeal. — By  §  11  of  the  act  of  March  3,  1891,  c.  517,  26 
Stat.  826,  it  is  provided  that  "no  appeal  or  writ  of  error  by  which  any  order, 
judgment  or  decree  may  be  reviewed  in  the  circuit  courts  of  appeals  under  the 
provisions  of  this  act  shall  be  taken  or  sued  out  except  within  six  months  after 
the  entry  of  the  order,  judgment  or  decree  sought  to  be  reviewed. "^^  And  while 
the  language  of  §  11  refers  to  the  entry  of  the  order,  judgment  or  decree,  yet 
the  meaning  must  be  confined  to  final  orders,  judgments  or  decrees. ^^  Within 
the  meaning  of  this  section,  it  is  held  that  a  judgment  of  the  circuit 
court  of  appeals  is  not  final  so  that  the  jurisdiction  of  the  appellate  court  may- 
be invoked,  while  it  is  under  the  control  of  the  trial  court  through  the  pendency 
of  a  motion  for  a  new  trial.  Therefore  the  limitation  prescribed  by  this  section 
does  not  commence  to  run  until  the  motion  for  a  new  trial  is  overruled. -^ 

k.  Double  Appeals. — In  General. — The  general  intention  of  the  circuit  court 
of  appeals  act  of  March  3,  1891,  was  to  distribute  the  appellate  jurisdiction  and 
to  permit  an  appeal  to  only  one  court. 2*^  "The  intention  of  the  act  in  general 
was  that  the  appellate  jurisdiction  should  be  distributed,  and  that  there  should 
iK)t  be  two  appeals,  but  in  cases  where  the  decisions  of  the  courts  of  appeals  are 
not  made  final,  it  is  provided  that  'there  shall  be  of  right  an  appeal  or  writ  of 
error  or  review  of  the  case  by  the  supreme  court  of  the  United  States  where  the 
matter  in  controversy  exceeds  one  thousand  dollars  besides  costs.'  "  But  "the 
right  of  two  appeals  would  exist  in  every  case  (the  litigated  matter  having  the 
requisite  value),  where  the  jurisdiction  of  the  circuit  court  rested  solely  on  the 
ground  that  the  suit  arose  under  the  constitution,  laws  or  treaties  of  the  United 
States,  if  such  cases  could  be  carried  to  the  circuit  court  of  appeals,  for  their 
decisions  would  not  come  within  the  category  of  those  made  final.'"-"     It  was  not 


master  to  take  an  account  of  profits  and 
damages.  In  that  case  we  held  that,  if 
the  appellate  court  were  of  opinion  that 
the  plaintiflE  was  not  entitled  to  an  in- 
junction because  his  bill  was  devoid  of 
equity,  such  court  might,  to  save  the  par- 
ties from  further  litigation,  proceed  to 
consider  and  decide  the  case  upon  its 
merits,  and  direct  a  final  decree  dismiss- 
ing the  bill."  Mast,  etc.,  Co.  v.  Stover 
Mfg.  Co..  177  U.  S.  485,  494,  44  L.  Ed. 
856. 

22.  Suit  for  infringement  of  patent. — 
Brill  V.  Peckham.  189  U.  S.  57,  47  L.  Ed. 
706,  distinguishing  Mast,  etc.,  Co.  z'. 
Stover  Mfg.  Co.,  177  U.  S.  485.  44  L.  Ed. 
856.  In  this  case,  the  court  said:  "The 
situation  then  is  this:  The  order  for  a 
preliminary  injunction  was  reversed  as 
part  of  the  decree  directing  the  dismissal 
of  the  bill,  and  not  independently  of  the 
grounds  on  which  that  conclusion  rested. 
But  the  court  of  appeals  had  the  power 
to  vacate  the  preliminary  injunction,  and 
had  only  this  been  done,  an  appeal  to  this 
court  could  not  have  been  taken,  nor 
would  a  certiorari  ordinarily  have  been 
granted  in  such  circumstances."  "Con- 
sidering the  peculiar  attitude  in  which  the 
case  is  presented,  v,-e  prefer  not  to  dis- 
cuss the  question  how  far  the  appellate 
courts  are  justified  in  reversing  orders  of 
the  circuit  courts  granting  preliminary  in- 
junctions, when  their  discretion  has  not  . 
been  improperly  exercised,  and  the  order 
will    be  the  decree  of  the  circuit  court  of  ap- 


peals reversed,  and  cause  remanded  to 
the  circuit  court  with  a  direction  to  pro- 
ceed to  final  hearing  in  due  course;  the 
latter  court  being  left'  at  liberty  to  deal 
with  the  preliminary  injunction  as  it 
otherwise  might  but  for  this   decree." 

23.  Limitations  upon  appeal. — Kingman 
&  Co.  f.  Western  Mfg.  Co.,  170  U.  S.  675. 
42  L.  Ed.  1192,  reaffirmed  in  International 
Trust  Co.  V.  Weeks,  193  U.  S.  667,  48  L. 
Ed.    839. 

24.  Kingman    &    Co.    v.    Western    Mfg.  ' 
Co.,  170  U.  S.  675.  677,  42  L.  Ed.  1192,  re- 
affirmed   in    International     Trust     Co.      v. 
Weeks.   193  U.  S.  667,  48   L.   Ed.   839. 

25.  Kingman  &  Co.  v.  Western  Mfg. 
Co.,  170  U.  S.  675,  42  L.  Ed.  1192,  reaf- 
firmed in  International  Trust  Co.  v. 
Weeks.   193   U.    S.   667,   48   L.    Ed.   839. 

26.  Double  appeals. — Robinson  z'.  Cald- 
well. 165  U.  S.  359,  41  L.  Ed.  745;  Hugu- 
ley  Mfg.  Co.  v.  Galeton  Cotton  Mills.  184 
U.  S.  290,  295,  46  L.  Ed.  546,  reaffirmed  in 
Harding  v.  Hart.  187  U.  S.  638,  47  L.  Ed. 
344;  Ayres  v.  Polsdorfer,  187  U.  S.  585. 
588.  47   L.   Ed.  314. 

27.  American  Sugar  Ref.  Co.  v.  New 
Orleans,  181  U.  S.  277,  281,  45  L.  Ed.  859; 
Spreckles  Sugar  Ref.  Co.  v.  McClain,  192 
U.  S.  397.  48   L.  Ed.  496. 

Illustrative  cases. — In  Carter  v.  Roberts, 
177  U.  S.  496,  44  L.  Ed.  861,  it  was  held, 
"that  when  cases  arise  which  are  con- 
trolled by  the  construction  or  application 
of  the  constitution  of  the  United  States, 
a   direct   appeal   lies   to   this    court,   and   if 


828 


APPEAL  AND  ERROR. 


the  purpose  of  the  act  to  give  a  party  who  was  defeated  in  a  circuit  court  of  the 
United  States  the  right  to  have  the  case  finally  determined  upon  its  merits  both 
in  this  court  and  in  the  circuit  court  of  appeals. ^^     The  act  of  March  3,  1891, 


such  cases  are  carried  to  the  circuit  courts 
of  appeals,  those  courts  may  decline  to 
take  jurisdiction;  or.  where  such  con- 
struction or  application  is  involved  with 
other  questions,  may  certify  the  consti- 
tutional question  and  afterwards  proceed 
to  judgment;  or  may  decide  the  whole 
case  in  the  first  instance.  But  when  the 
circuit  court  of  appeals  has  acted  on  the 
whole  case,  its  judgment  stands  unless 
revised  by  certiorari  to  or  appeal  from 
that  court  in  accordance  with  the  act  of 
March  3.  1891.  Robinson  v.  Caldwell,  165 
U.  S.  359,  41  L.  Ed.  745;  Holt  v.  Indiana 
Mfg.  Co.,  176  U.  S.  68,  44  L.  Ed.  374; 
United  States  v.  Jahn,  155  U.  S.  109,  39 
L.  Ed.  87;  New  Orleans  v.  Benjamin,  153 
U.  S.  411,  38  L.  Ed.  764;  Benjamin  v.  New 
Orleans,  169  U.  S.  161,  42  L.  Ed.  700." 
Cincinnati,  etc.,  R.  Co.  v.  Thiebaud,  177 
U.   S.  615.  620,  44  L.  Ed.  911. 

A  captain  of  the  United  States  army 
was  arraigned  and  tried  before  a  court 
martial  convened  according  to  law;  found 
guilty  upon  certain  charges  and  specifica- 
tions; sentenced  to  dismissal;  to  suffer  a 
fin^e;  to  be  imprisoned;  and  to  publication 
of  crime  and  punishment.  This  sentence 
was  approved  by  the  secretary  of  war  and 
confirmed  by  the  president.  A  writ  of 
liabeas  corpus  directed  to  the  military  au- 
thority having  him  in  custody,  was  is- 
sued by  the  circuit  court  of  the  United 
States.  This  writ'  was  dismissed  and  he 
was  remanded  to  custody.  From  this 
final  order  an  appeal  was  taken  to  the 
circuit  court  of  appeals  which  entered 
judgment  affirming  the  judgment  of  the 
circuit  court.  On  January  24.  1900  and 
February  5,  1905,  an  application  for  the 
>  writ  of  certiorari  to  the  circuit  court  of 
appeals  was  made  to  the  supreme  court  of 
the  United  States  which  on  February  26, 
1900,  was  denied.  On  the  same  day  an 
appeal  from  the  final  order  of  the  circuit 
court  directly  to  the  supreme  court  of  the 
United  States  was  allowed  by  a  judge  of 
the  circuit  court,  as  also  a  writ  of  error. 
It  was  held,  that  the  appeal  cannot  be 
maintained,  as  a  defeated  party  in  a  cir- 
cuit court  has  no  right  to  have  his  case 
finally  determined  both  in  the  supreme 
court  of  the  United  States  and  the  cir- 
cuit court  of  appeals  on  independent  ap- 
peals. Carter  v.  Roberts,  177  U.  S.  496, 
44   L.    Ed.   861. 

Carter  v.  Roberts  explained. — "In  Car- 
ter V.  Roberts.  177  U.  S.  496.  44  L.  Ed. 
861,  we  said:  'When  cases  arise  which 
are  controlled  by  the  construction  or  ap- 
plication of  the  constitution  of  the  United 
States,  a  direct  appeal  lies  to  this  court, 
and  if  such  cases  are  carried  to  the  cir- 
cuit courts  of  appeals,  those  courts  may 
decline  to  take  jurisdiction,  or  where  such 


construction  or  application  is  involved 
with  other  questions,  may  certify  the  con- 
stitutional question  and  afterwards  pro- 
ceed to  judgment,  or  may  decide  the  whole 
case  in  the  first  instance.'  These  ob- 
servations perhaps  need  some  qualifica- 
tion. Undoubted!}''  where  the  jurisdiction 
of  the  circuit  court  depends  solely  on  di- 
verse citizenship  and  it  turns  out  that  the 
case  involves  the  construction  or  applica- 
tion of  the  constitution  of  the  United 
States;  or  the  constitutionality  of  a  law 
of  the  United  States  or  the  validity  or  con- 
struction of  a  treaty  is  drawn  in  ques- 
tion; or  the  constitution  or  law  of  a  state 
is  claimed  to  be  in  contravention  of  the 
constitution  of  the  United  States;  the  cir- 
cuit court  of  appeals  may  certify  the  con- 
stitutional or  treaty  question  to  this  court, 
and  proceed  as  thereupon  advised;  or  may 
decide  the  whole  case;  but  language 
should  not  have  been  used  susceptible  of 
the  meaning  that  in  cases  where  the  ju- 
risdiction below  is  invoked  on  the  ground 
of  diverse  citizenship,  the  circuit  court  of 
appeals  might  decline  to  take  jurisdiction, 
or,  in  other  words,  might  dismiss  the  ap- 
peal or  writ  of  error  for  want  of  jurisdic- 
tion. The  mere  fact  that  in  such  a  case 
one  or  more  of  the  constitutional  ques- 
tions referred  to  in  §  5  may  have  so  arisen 
that  a  direct  resort  to  this  court  might 
be  had,  does  not  deprive  the  court  of  ap- 
peals of  jurisdiction  or  justify  it  in  de- 
clining to  exercise  it."  American  Sugar 
Ref.  Co.  V.  New  Orleans,  181  U.  S.  277, 
282.   45   L.   Ed.   859. 

28.  Robinson  v.  Caldwell,  165  U.  S.  359. 
362,  41  L.  Ed.  745;  McLish  v.  Rofif,  141 
U.  S.  661.  35  L.  Ed.  893;  Loeb  v.  Colum- 
bia Township  Trustees,  179  U.  S.  472,  45 
L.  Ed.  280;  Ayres  v.  Polsdorfer,  187  U.  S. 
585,   589,    47   L.    Ed.    314. 

In  Robinson  v.  Caldwell,  165  U.  S.  359, 
41  L.  Ed.  745,  was  held,  that  the  judiciary 
act  of  March  3.  1891.  does  not  give  a  de- 
feated party  in  a  circuit  court  the  right  to 
have  his  case  finally  determined  both  in 
this  court  and  in  the  circuit  court  of  ap- 
peals on  indenendent  appeals.  Carter  v. 
Roberts.  177  U.  S.  496,  499,  44  L.  Ed.  861. 

The  case  of  Robinson  v.  Caldwell,  165 
U.  S.  359.  41  L.  Ed.  745,  "was  heard  in 
the  circuit  court  of  the  United  States  for 
the  district  of  Idaho  upon  its  merits, 
which  included  the  consideration  of  ques- 
tions involving  the  construction  of  a 
treaty  and  the  validity  of  an  act  of  con- 
gress. Judgment  passed  for  plaintiff,  and 
defendant  was  allowed  a  direct  appeal  to 
this  court.  Pending  this,  defendant  had 
also  prosecuted  an  appeal  to  the  circuit 
court  of  appeals,  and  the  case  was  there 
again  heard  and  determined.  29  U.  S- 
App.  468.     When  subsequently  the  appeal 


APPEAL  AND  ERROR. 


829 


c.  517,  26  Stat.  826,  does  not  contemplate  several  separate  appeals  or  writs  of 

•rror,  on    the  merits,  in    the  same  case    and  at  the    same  time    to  two    appellate 

ourts,  and  therefore  a  writ  of  error  to  this  court,  which  was  taken  while  the 

ase  was  pending  in  the  circuit  court  of  appeals,  ought  to  be  dismissed. ^^ 

Although  a  party  to  a  patent  or  criminal  case  in  the  circuit  court  of  the 

United  States  might  be  entitled  to  have  the  decision  of  .the  circuit  court  reviewed 

by  the  supreme  court  upon  the  ground  that  it  involves  the  denial  of  constitutional 

rights,  yet  if  he  does  not  do  so,  and  carries  his  case  to  the  circuit  court  of  appeals 

he  must  abide  by  the  judgment  of  that  court. •^^' 
But  where  there  exists  a  doubt  as  to  the  right  to  appeal  directly  from 

the  circuit  court  to  this  court,  the  right  to  appeal  to  this  court  is  not  waived  by 

appealing  at  the  same  time  to  the  circuit  court  of  appeals.-^ ^ 


to  this  court  was  heard,  it  was  dismissed, 
because  we  held,  that  we  could  not  prop- 
erly retain  cognizance  thereof  in  face  of 
the  fact  that  the  case  had  been  adjudi- 
cated by  the  court  of  appeals,  whose  judg- 
ment remained  undisturbed.  Pullman's 
Palace  Car  Co.  v.  Central  Transportation 
Co..  171  U.  S.  138,  43  L.  Ed.  108,  is  not 
to  the  contrary."  Approved  in  Carter  v. 
Roberts,  177  U.  S.  496.  499,  500,  44  L- 
Ed.   861. 

"It  is  true  that  the  plaintiff  might  have 
carried  this  case  to  the  circuit  court  of 
appeals,  and  a  final  judgment  having  been 
rendered  in  that  court  upon  his  writ  of 
error,  he  could  not  thereafter  have  in- 
voked the  jurisdiction  of  this  court  upon 
nnother  writ  of  error  to  review  the  judg- 
nient  of  the  circuit  court;  for,  as  said  in 
Robinson  v.  Caldwell,  165  U.  S.  359,  362, 
41  L.  Ed.  745,  'it  was  not  the  purpose  of 
the  judiciary  act  of  1891  to  give  a  party 
who  wa«  defeated  in  a  circuit  court  of  the 
United  States  the  right  to  have  the  case 
finally  determined  upon  its  merits  b^th  in 
this  court  and  in  the  circuit  court  of  ap- 
peals,' although  the  latter  court,  before 
disposing  of  a  case  which  might  have 
been  brought  here  directly  from  the  "cir- 
cuit court,  may  certify  to  this  court  ques- 
tions or  propo.=itions  as  indicated  in  the 
sixth  section  of  the  above  act."  Loeb  v. 
Columbia  Township  Trustees,  179  U.  S. 
472.  4  79,  45  L.  Ed.  280.  But  see  Ayers 
V.  Polsdorfer;  187  U.  S.  585.  589.  47  L. 
Ed.   314. 

29.  Columbus  Construction  Co.  v.  Crane 
Co..  174  U.  S.  600,  601,  43  L.  Ed.  1102, 
distinguishes  Pullman's  Palace  Car  Co. 
?'.  Central  Transportation  Co.,  171  U.  S. 
138,  43  L.  Ed.  108,  as  follows:  "An  ob- 
vious distinction  between  that  case  and 
this  is  that  there  the  appeal  was  first  taken 
to  this  court.  Accordingly  the  circuit 
court  of  appeals  declined  either  to  decide 
the  case  on  its  merits  or  to  dismiss  the 
appeal,  while  the  case  was  pending  on  a 
prior  appeal  to  this  court,  and  continued 
the  cause  to  await  the  result  of  the  ap- 
peal to  the  supreme  court.  39  U.  S. 
App.    307." 

In  Crilnmbus  Construction  Co.  v.  Crane 
Co.,  174  U.  S.  600,  43  L.  Ed.  1102,  it  was 
laid  down   that   the   act   of  March  3.   1891, 


does  not  contemplate  several  separate  ap- 
peals or  writs  of  error,  on  the  merits,  in 
the  same  case  and  at  the  same  time  to  or 
from  two  appellpte  courts;  and  as  the 
record  disclosed  in  that  case  that  two 
writs  of  error  to  the  judgment  of  the 
circuit  court  were  pending,  one  in  the  cir- 
cuit court  of  appeals  and  the  other  and 
subsequent  writ  in  this  court,  the  latter 
was  dismissed.  Cincinnati,  etc..  R.  Co.  v. 
Thiebaud,  177  U  S.  615,  620,  621,  44  L. 
Ed.   911. 

SO.  Cary  Manf.  Co.  v.  Acme  Flexible 
Clasp  Co.,  187  U.  S.  427.  47  L-  Ed.  244,  c.t- 
Robinson  v.  Caldwell,  165  U.  S.  359.  41  L. 
Ed.  745;  American  Sugar  Ref.  Co.  v.  New 
Orleans,  181  U.  S.  277.  45  L.  Ed.  859;  Hugu- 
ley  Mfg.  Co.  V.  Galeton  Cotton  Mills,  184 
U.  S.  290,  46  L.  Ed.  546;  Ayres  v.  Pols- 
dorfer,   187    U.    S.    585,   47    L.    Ed.    314. 

31.  Pullman's  Palace  Car  Co.  v.  Cen- 
tral Transportation  Co.,  171  U.  S.  138,  43 
L.  Ed.  108,  followed  in  Johnson  v.  South- 
ern Pac.  R.  Co..  196  U.  S.  1.  13,  49  L.  Ed. 
363;  Montana  Min.  Co.  v.  St.  Louis  Min. 
Co.,  204  U.  S.  204,  51  L.  Ed.  444,  but  dis- 
tinguished in  Columbus  Construction  C'^. 
r.  Crane  Co.,  174  U.  S.  600,  43  L.  Ed. 
1102;  Union,  etc..  Bank  v.  Memphis,  189 
U.    S.    71.    74,    47    L.    Ed.    712. 

This  case  was  also  distinguished  in  Car- 
ter V.  Roberts.  177  U.  S.  496.  44  L.  Ed.  861, 
as  follows:  In  Pullman's  Palace  Car  Co. 
V.  Central  Transportation  Co.,  171  U.  S. 
138,  43  L.  Ed.  108.  -The  Pullman  Company 
liad  taken  an  appeal  directly  from  the  cir- 
cuit court  to  this  court,  on  the  theory  that 
the  case  involved  the  construction  or  ap- 
plication of  the  constitution,  and  had  also 
taken  an  appeal  to  the  circuit  court  of  ap- 
peals for  the  third  circuit.  The  circuit 
court  of  appeals  overruled  a  motion  to 
dismiss,  but  postponed  further  argument 
until  the  appeal  to  this  court  was  dis- 
posed of.  39  U.  S.  App.  307.  A  motion 
to  dismiss  was  also  made  in  this  court, 
whereupon  an  application  was  made  for 
a  writ  of  certiorari  to  the  circuit  court 
of  appeals,  and  by  reason  of  the  circum- 
stances, was  granted,  and  the  record  re- 
turned by  virtue  of  that  writ.  And  we 
proceeded  to  dispose  of  the  case  on  the 
merits  without  passing  on  the  question, 
which    had   become     immaterial,     whether 


830  AFFHAL  AND  ERROR. 

The  result  of  the  authorities  may  be  stated  as  follows:  If  the  case,  as 
made  by  the  plaintiff's  statement,  involves  no  other  question  than  some  of  those 
mentioned  in  §  5  of  the  court  of  appeals  act,  as,  for  example,  the  constitutional- 
ity of  an  act  of  congress,  or  the  construction  or  application  of  the  federal  con- 
stitution, this  court  alone  has  jurisdiction  to  review  the  judgment  of  the  circuit 
court.  But  where  the  jurisdiction  of  the  circuit  court  involves  questions  other 
than  those  relating  to  grounds  that  would  bring  the  case  within  §  5  of  the  act 
of  1891,  the  circuit  court  of  appeals  has  jurisdiction  to  review  the  judgment  of 
the  circuit  court,  although  if  the  plaintiff  elects  to  bring  it  here  directly,  this 
court  has  jurisdiction  to  determine  all  the  questions  arising  upon  the  record. 
In  other  words,  the  plaintiff  is  entitled  to  bring  it  here  directly  from  the  circuit 
court,  or  at  his  election,  to  go  to  the  circuit  court  of  appeals  for  a  review  of 
the  whole  case.  Of  course,  where  the  plaintiff  has  elected  to  go  to  the  circuit 
court  of  appeals  for  a  review  of  the  judgment,  he  cannot  thereafter,  if  unsuc- 
cessful in  that  court  upon  the  merits,  prosecute  a  writ  of  error  directly  to  this 
court.-"' 2 

Cases  Arising  under  Revenue  Laws. — x\s  the  judgment  of  the  circuit 
court  of  appeals  may  be  brought  to  this  court,  as  of  right,  where  the  jurisdiction 
of  the  circuit  court  rested  upon  the  diversity  of  citizenship,  and  also  upon 
grounds  that  would  bring  the  case  within  §  5  of  the  act  of  1891,  it  must  be  held, 
that  the  judgment  of  the  circuit  court  of  appeals  is  not  final,  within  the  meaning 
of  the  sixth  section,  in  a  case  which,  although  arising  under  a  law  providing  for 
internal  revenue  and  involving  the  construction  of  that  law.  is  yet  a  case  also 
involving,  from  the  outset,  from  the  plaintiff's  showing,  the  construction  or  ap- 
plication of  the  constitution  or  the  constitutionality  of  an  act  of  congress."^ 

1.  Rule  in  John's  Case — Yet  if  in  any  of  the  above  cases  a  final  judgment 
were  rendered  because  of  want  of  jurisdiction,  that  judgment  could  be  reviewed  by 
this  court  upon  a  certificate  of  the  circuit  court,  while  if  jurisdiction  were  sus- 
tained and  the  merits  adjudicated,  although  the  question  of  jurisdiction  might 
be  brought  up  directly,  the  circuit  court  of  appeals  would  undoubtedly  have 
jurisdiction  to  review  the  case  upon  the  merits.  The  provision  that  any  case  in 
wdiich  the  question  of  jurisdiction  is  in  issue  may  be  taken  directly  to  this  court, 
necessarily  extends  to  other  cases  than  those  in  which  the  final  judgment  rests 
on  the  ground  of  want  of  jurisdiction,  for  in  them  that  would  be  the  sole  ques- 
tion, and  the  certificate,  though  requisite  to  our  jurisdiction  under  the  statute, 
would  not  be  in  itself  essential,  however,  valuable  in  the  interest  of  brevity  of 
record.  But  in  such  other  cases,  the  requirement  that  the  question  of  jurisdic- 
tion alone  should  be  certified  for  decision  was  intended  to  operate  as  a  limitation 
upon  the  jurisdiction  of  this  court  of  the  entire  case  and  of  all  questions  in- 
volved in  it.  a  jurisdiction  which  can  be  exercised  in  any  other  class  of  cases 
taken  directly  to  this  court  under  §  5.^^     The  act  certainly  did  not  contemplate 

the   direct   appeal   could   have   been   main-  the    case,    having   gone    to   judgment,   was 

tained  or  not.' "  carried    to    the    circuit    court    of    appeals, 

32.    Huguley  Mfg.    Co.   v.    Galeton   Cot-  and  the  judgment  affirmed.     A  writ  of  er- 

ton    Mills,    184   U.    S.   290.   46   L.    Ed.    546;  ror  from  this  court  was  then  sought  to  be 

Robnison    v.    Caldwell,    165    U.    S.    359,    41  sustained  because,   as   was   contended,   the 

L.    Ed.   745;   Loeb   z>.   Columbia  Township  evidence    disclosed,    though   the    pleadings 

Trustees,    179    U.    S.    472,    45    L.    Ed.    280;  did    not,    that    the    parties    claimed    under 

Ayres  v.   Polsdorfer,   187   U.   S.   585,  47  L.  grants   of   different    states.      But   we    held, 

Ed.  314;   American  Sugar  Refin.  Co.  77.  New  that  if  the   emergence   of  such   a   question 

Orleans,    181    U.    S.    277,    45    L.    Ed.    859;  might    have    justified    taking    the    case    di- 

Union    Pac.    R.    Co.    7'.    Harris,    158   U.    S.  rectly   to   this    court,   having   gone   to   the 

326,  39  L.  Ed.  1003;  Spreckels  Sugar  Refin.  court  of  appeals,   it   could   not   after  judg- 

Co.  V.   McClain,   192   U.   S.   397,   48   L.   Ed.  ment  then  be  brought  here.     Approved  in 

490.  Stevenson   v.   Fain,   195   U.    S.    165,   170,  49 

Ayres   v.    Polsdorfer,    187   U.    S.   585.   47  L.    Ed.    142. 

L.    Ed.    314,    was    an    action    of   ejectment  33.    Spreckels    Sugar    Refin.    Co.    v.    Mc- 

brought    in    the    circuit    court    by    citizens  Clain,  192  U.  S.  397,  410,  48  L.  Ed.  496. 

of  one  state  against  those  of  another,  and  34.     Rule     in     John's    case. — Horner    v. 


APFEAL  AXD  ERROR. 


831 


•wo  appeals  or  writs  of  error  at  the  same  time  by  the  same  party  to  two  different 
courts,  nor  does  it  seem  to  us  that  it  was  intended  to  compel  a  waiver  of  the  ob- 
jection to  the  jurisdiction  altogether  or  of  the  consideration  of  the  merits.  By 
taking  a  case  directly  to  this  court  on  the  question  of  jurisdiction,  the  contention 
on  the  merits  would  be  waived,  but  it  does  not  follow  that  the  jurisdictional  ques- 
tion could  not  be  considered,  if  the  case  were  taken  to  the  circuit  court  of  ap- 
peals. The  act  was  passed  to  facilitate  the  prompt  disposition  of  cases  in  this 
court  and  to  relieve  it  from  the  oppressive  burden  of  general  litigation,  but  the 
rights  of  review  by  appeal  or  writ  of  error,  and  of  invoking  the  supervisory  ju- 
risdiction of  this  tribunal,  were  sought  to  be  amply  secured  and  should  not  be 
circumscribed  by  too  narrow  a  construction. ^^ 

m.  Mandate. — The  circuit  court  of  appeals  cannot  review  by  writ  of  error  the 
judgment  of  the  circuit  court  in  execution  of  the  mandate  of  this  court.^'^ 

F.  Appellate  Jurisdiction  as  Dependent  upon  Amount  or  Value  in  Con- 
troversy—1.  History  op  Lugislatiox— a.  Under  Early  Statiites.~ln  Gen- 
eral.— The  judiciary  acts  of  the  United  States,  for  a  century  after  the  organiza- 
tion of  the  government  under  the  constitution,  did  impose  pecuniary  limits  upon 
appellate  jurisdiction.-'"    . 

In  actions  at  law  and  suits  in  equity,  the  pecuniary  limit  of  the  appellate  ju- 
risdiction of  this  court  from  the  circuit  court  of  the  United  Stales  was  for  a  lono- 
time  fixed  at  $2,000.-''S  In  1875  it  was  raised  to  $5,000.3^  And  in  1889  this  was 
modified  by  providing  that,  where  the  judgment  or  decree  did  not  exceed  the  sum 
of  $5,000,  this  court  should  have  appellate  jurisdiction  upon  the  question  of  the 
jurisdiction  of  the  circuit  court,  and  upon  that  question  only.-*'^ 

civil  actions  and  suits  in  equity  in  a  circuit 
court,  where  the  matter  in  dispute  ex- 
ceeds the  sum  or  value  of  two  thousand 
dollars,  exclusive  of  costs,"  to  be  revised 
bj  this  court  on  writ  of  error  or  appeal. 
1  Stat.  84.  Kurtz  v.  Moffitt,  115  U  S. 
487,    494,    29    L.    Ed.    458. 

Where  the  final  decree  of  the  circuit 
court  was  for  less  than  $2,000,  no  appeal 
from  its  decree  will  lie  to  this  court. 
Sampson  r.  Welsh,  24  How.  207,  16  L. 
Ed.    632. 

Section  692,  Rev.  Stat.,  permitted  ap- 
peals to  this  court  "from  all  tinal  decrees 
of  any  circuit  court,  or  of  any  district 
court  acting  as  a  circuit  court,  in  cases 
of  equity,  and  of  admiralty  and  maritime 
jurisdiction,  where  the  matter  in  dispute, 
exclusive  of  costs,  exceeds  the  sum  or 
value  of  $2,000."  Terry  v.  Hatch.  93  U.  S. 
44,    45,    23    L.    Ed.    796. 

As  the  Code  of  Practice  of  Louisiana 
provides  that  all  definite  or  final  judg- 
ments must  be  signed  by  the  judge  ren- 
dering them,  this  court,  under  §  691  of 
the  Revised  Statutes,  as  amended  by  the 
act  of  Feb.  16,  1875  (18  Stat.  316),  can- 
not, where  the  matter  in  dispute  does  not 
exceed  the  sum  or  value  of  $5,000,  ex- 
clusive of  costs,  review  the  judgment  of 
a  circuit  court  of  the  United  States  sit- 
ting in  that  state,  signed  subsequently  to 
May  1,  1875.  "Section  691  of  the  Re- 
vised Statutes,  as  amended  by  the  act  of 
Feb.  16,  1875  (18  Stat.  316)  provides  for 
the  re-examination  in  this  court  of  all 
final  judgments  of  the  circuit  courts  ren- 
dered previous  to  May  1,  1875,  where  the 
matter    in    dispute    exceeds     the    sum    or 


United  States,  143  U.  S.  570,  577,  36  L.  Ed. 
266;  United  States  v.  Jahn,  155  U.  S.  109, 
112,  39  L.  Ed.  87;  In  re  Tampa  Suburban 
R.  Co.,  168  U.  S.  583,  587,  42  L-  Ed.  580; 
Anglo-American  Provision  Co.  v.  Davis 
Provision  Co.,  191  U.  S.  373.  376,  48  L- 
Ed.    225. 

35.  United  States  v.  Jahn,  155  U.  S. 
109.   113.   39   L.    Ed.   87. 

36.  Mandate.— Cook  v.  Burnley,  11 
Wall.  659,  672,  677,  20  L.  Ed.  29;  Stewart 
7'.  Salamon.  97  U.  S.  361,  24  L.  Ed.  1044; 
Humphrey  v.  Baker,  103  U.  S.  736,  26  L- 
Ed.  456;  Texas,  etc.,  R.  Co.  v.  Anderson. 
149    U.    S.   237,    242,    37    L.    Ed.    717. 

37.  History  of  legislation  under  early 
statutes. — The  Paquete  Habana.  175  U. 
S.    677,   680,   44   L.    Ed.    320. 

S8.  Acts  of  September  24,  1789,  c.  20,  § 
22;  1  Stat.  84;  March  3,  1803,  c.  40;  2 
Stat.  244;  Gordon  v.  Ogden,  3  Pet.  33,  7 
L.    Ed.    592. 

39.  Act  of  February  16,  1875,  c.  77,  § 
3;   18   Stat.   316. 

40.  Act  of  February  25.  1889,  c.  236.  § 
1;  25  Stat.  693;  Parker  v.  Ormsby,  141  U. 
S.  81.  35  L.  Ed.  654;  The  Paquete  Habana, 
175   U.   S.  677,   680,  44   L.    Ed.   320. 

History  of  the  increase  given  chrono- 
logically— Five  hundred. — By  the  first  act 
of  congress  upon  the  subject,  the  juris- 
diction of  this  court  was  limited  to  con- 
troversies in  which  the  sum  or  value  of 
the  object  in  controversv,  should  amount 
to  $500.  Hulsecamp  v.  Teel,  2  Dall.  358, 
1  L.   Ed.   414. 

Two  thousand. — But  the  judiciary  act 
of  September  24,  1789,  ch.  20,  §  22.  au- 
thorized  "final   judgments   and   decrees   in 


832  APPEAL  AND  ERROR. 

As  to  cases  of  admiralty  and  maritime  jurisdiction,  including  priz 
causes,  the  judiciary  act  of  1789,  in  §  9,  vested  the  original  jurisdiction  in  the  dis 
trict  courts,  without  regard  to  the  sum  or  value  in  controversy;  and  in  §  21,  per- 
mitted an  appeal  from  them  to  the  circuit  court  where  the  matter  in  dispute  ex- 
ceeded the  sum  or  value  of  $300>i  By  the  act  of  March  3,  1803,  c.  40,  appeals 
to  the  circuit  court  were  permitted  from  all  final  decrees  of  a  district  court  where 
the  matter  in  dispute  exceeded  the  sum  or  value  of  $50;  and  from  the  circuii 
courts  to  this  court  in  all  cases  of  admiralty  and  maritime  jurisdiction,  and  of 
prize  or  no  prize,  in  which  the  matter  in  dispute  exceeded  the  sum  or  value  of 
$2,000.42  The  acts  of  March  3,  1863,  c.  86,  §  7,  and  June  30,  1864.  c.  174,  § 
13,  provided  that  appeals  from  the  district  courts  in  prize  causes  should  lie  di- 
rectly to  this  court,  where  the  amount  in  controversy  exceeded  $2,000,  or  on  the 
certiificate  of  the  district  judge  that  the  adjudication  involves  a  question  of  gen- 
eral importance."*^  The  provision  of  the  act  of  1803,  omitting  the  words,  "and 
of  prize  or  no  prize,"  was  re-enacted  in  §  692  of  the  Revised  Statutes :  and  the 
provision  of  the  act  of  1864,  concerning  prize  causes,  was  substantially  re-en- 
acted in  §  695  of  the  Revised  Statutes.*"* 

b.  Under  Circuit  Court  of  Appeals  Act. — But  all  this  has  been  changed  by  th'' 
act  of  March  3,  1891,  c.  517,  establishing  the  circuit  courts  of  appeals,  and  creat- 
ing a  new  and  complete  scheme  of  appellate  jurisdiction,  depending  upon  the 
nature  of  the  different  cases,  rather  than  upon  the  pecuniary  amount  involved.*"' 
By  that  act,  as  this  court  has  declared,  the  entire  appellate  jurisdiction  from  ^he 
circuit  and  district  courts  of  the  United  States  was  distributed,  "according  to  the 
scheme  of  the  act,"  between  this  court  and  the  circuit  courts  of  appeals  thereby 
established,  "by  designating  the  classes  of  cases"  of  which  each  of  these  courts 
was  to  have  final  jurisdiction.*^  The  intention  of  congress,  by  the  act  of  1891. 
to  make  the  nature  of  the  case,  and  not  the  amount  in  dispute,  the  test  of  the  ap- 
pellate jurisdiction  of  this  court  from  the  district  and  circuit  courts  clearly  ap- 
pears upon  examination  of  the  leading  provisions  of  the  act.*" 

Direct  Appeals  from  Circuit  and  District  Courts.-— Section  5  provides 
that  "ayipcals  or  writs  or  error  may  be  taken  from  the  district  courts,  or  from  the 
existing  circuit  courts,  direct  to  the  supreme  court,  in  the  following  cases :  First, 
in  any  case  in  which  the  jurisdiction  of  the  court  is  in  issue;  in  such  cases  the 
question  of  jurisdiction  alone  shall  be  certified  to  the  supreme  court  from  the 
court  below  for  decision."  This  clause  includes  "any  case,"  without  regard  to 
amount,  in  wliich  the  jurisdiction  of  the  court  below  is  in  issue.*^  Second. 
"From  the  final  sentences  and  decrees  in  prize  causes."  This  clause  includes  the 
whole  class  of  "the  final  sentences  and  decrees  in  prize  causes,"  and  omits  all  pro- 
value  of  $2,000,  and  of  such  as  were  ton  v.  Jarvis.  8  Pet.  4,  11,  8  L.  Ed.  846. 
rendered  after  that   date  where  it  exceeds  42.    f?  Stat.  244;  Stratton  v.  Jarvis,  8  Pet. 

55,000."      Yznaga    Del    Valle    v.    Harrison,       4,  11.  8  L.   Ed.  846;  The   Admiral.  3  Wall. 
0.^.    T'.    S.    ''■^?~,.   2?,    L.    Ed.    892.  603,    612,    18    L.    Ed.    .58. 

Five  thousand.— By  the  act  of  February  43.    12  Stat.  760;   13  Stat.  310. 

16,    18T5,    c.    77,    §    3,    which    differs    from  44.    The  Paqnete  Habana,  175  U.  S.  677, 

earlier  laws  only  in  increasing  the  amount       G80,   44   L.    Ed.   320. 

'cquired  to  give  this  court  appellate  juris-  45     Under  circuit  court  of  appeals  act.— - 

diction  from  a  circuit  court  of  the  United       .^g  stat.  826;  The  Paquete  Habana,  175  U. 
States,    it    is    necessary    that    "the    matter       g    g-.^    gg^j^    44   j^    gj    320 
in   dispute  shall   exceed   the   sum   or  value  "         "^i^Lish  z^.   Roflf.   141  U.   S.   661.  666, 

of    five    thousand    dollars      exclusive      of  ^    ^^  American  Construction  Co. 

costs.       18  Stat.   316.     Gibson  v.   Shufeldt.  t^    ,  .,,'  ^        1.0    tt     c     ot« 

122  U.  S.  27.  28,  30  L.   Ed.  1083;   Western       lJ\fl''''^f\J'^r    ^°'    ^t?    ^V  ^^    ^7' 
'7'".      ^  ,    A^    '     x>r^^^r:    00  TT    c    sfi-    OQ       382,  37  L.  Ed.  486;  Carey  v.  Houston,  etc., 

V"'!?^  \~\    ^{  ^',  ^"-^'^'  ^■'^,  %.^^";  i       R.  Co.,  150  U.  S.  170,  179,  37  L.   Ed.  1041; 
L.  Ed.  977;  Shacker  v.  Hartford  Fire  Ins.       a;;       -o  .     xj^k,»,o     it-   tt    c    ctt    <iei 

Co.,  93  U.   S.   241.  23  L.   Ed.   862;  Thomp-       ^h^,  ^?,^;^''^'        ^^^"''   '^"   ^^   ^^    ^^^^  ^^'' 

Butler,  95  U.  S.  694.  696.  24  L.   Ed.       ^*    ^-    ^^-   ■^'-"■ 

47,  The  Paquete  Habana,  175  U.  S.  677, 
1,  44  L.   Ed.  320. 

48.  The  Paquete 
Nancy,  3  Wheat.  546,  4  L.  Ed.  456;  Strat-       682,  44  L.   Ed.  320. 


son 
540 


41.    1   Stat.   77,   83;   Glass  v.   The   Betsy.       681,  44  L.  Ed.  320. 
3   Dall.   6,   16,   1   L.   Ed.  485;  The   Amiable  48.    The  Paquete  Habana,  175  U.  S.  677, 


APPEAL  AND  ERROR. 


833 


visions  of  former  acts  regarding  amount  in  controversy,  or  certificate  of  a  dis- 
trict judge.-'''  The  act  of  March  3rd,  1891,  confers  upon  this  court  jurisdiction 
of  appeals  from  all  final  sentences  and  decrees  in  prize  causes  from  the  district 
and  circuit  courts  of  the  United  States,  without  regard  to  the  amount  in  dispute, 
and  without  any  certificate  of  the  district  judge  as  to  the  importance  of  the  par- 
ticular case.^^'  Fourth.  "In  any  case  that  involves  the  construction  or  applica- 
tion of  the  constitution  of  the  United  States. "^^  Fifth.  "In  any  case  in  which 
the  constitutionality  of  any  law  of  the  United  States,  or  the  validity  or  construc- 
tion of  any  treaty  made  under  its  authority,  is  drawn  in  question. "^2  Sixth. 
"In  any  case  in  which  the  constitution  or  law  of  a  state  is  claimed  to  be  in  con- 
travention of  the  constitution  of  the  United  States."  Each  of  these  last  three 
clauses,  again,  includes  "any  case"  of  the  class  mentioned.  They  all  relate  to 
what  are  commonly  called  federal  questions,  and  cannot  reasonably  be  construed 
to  have  intended  that  the  appellate  jurisdiction  of  this  court  over  such  questions 
should  be  restricted  by  any  pecuniary  limit — especially  in  their  connection  with 
the  succeeding  sentence  of  the  same  section :  "Nothing  in  this  act  shall  affect 
the  jurisdiction  of  the  supreme  court  in  cases  appealed  from  the  highest  court 
of  a  state,  nor  the  construction  of  the  statute  providing  for  review  of  such  cases." 
Writs  of  error  from  this  court  to  review  the  judgments  of  the  highest  court  of 
a  state  upon  such  questions  have  never  been  subject  to  any  pecuniary  limit.^^ 

2.  What  Law  Governs — a.  In  General. — Where  a  court  is  established  by  an 
act  of  congress,  but  there  is  no  special  provision  in  the  act  which  regulates  ap- 
peals to  this  court,  it  will  be  governed  by  the  gener^il  law.'""^ 

b.  Rule  Governing  Appeals. — The  amount  prescribed  for  writs  of  error  ap- 
plies also  to  appeals  under  that  section  which  provides  that  appeals  shall  be  sub- 
ject to  the  same  rules,  regulations,  and  restrictions  as  are  prescribed  in  law  in 
case  of  writs  of  error. ^-^ 


49.  The  Paqnete  Habana,  175  U.  S.  677. 
683.   44   L.   Ed.   320. 

50.  The  Paqnete  Habana,  17.5  U.  S.  677, 
44  L.  Ed.  320,  approved  in  Holt  v.  In- 
diana Mfg.  Co.,  176  U.  S.  68,  44  L.  Ed. 
374.  reaffirmed  in  Woey  Ho  v.  United 
States,  191  U.  S.  558,  48  L.   Ed.  301. 

51.  The  Faquete  Habana,  175  U.  S.  677, 
682,  44  L.   Ed.   320. 

52.  The  Faquete  Habana,  175  U.  S. 
677,   682.   44    L.    Ed.   320. 

53.  Act  of  September  24,  1789.  c.  20,  § 
25;  1  Stat.  85;  Buel  v.  Van  Ness,  8  Wheat. 
312,  5  L.  Ed.  624;  Act  of  February  5,  1867, 
c.  28.  §  2;  14  Stat.  386;  Rev.  Stat.,  §  709; 
The  Faquete  Habana,  175  U.  S.  677,  682, 
44   L.    Ed.    320. 

54.  What  law  governs  in  general — Ap- 
peals from  district  courts. — Appeals  to 
this  court  from  the  circuit  courts  of  the 
United  States,  and  from  districts  courts 
exercising  the  jurisdiction  of  circuit 
courts,  are  regulated  by  the  act  of  1803, 
ch.  40,  where  not  otherwise  specially  pro- 
vided for  by  act  of  congress.  There  is 
no  special  provision  in  the  act  estab- 
lishing the  district  court  in  Wisconsin 
which  regulates  appeals  to  this  court,  and 
consequently  they  are  governed  by  the 
general  law  above  referred  to;  and  by 
that  law  an  appeal  will  lie,  unless  the 
sum  or  value  in  controversy  exceeds 
$2,000;  and  that  facf  i.-ust  be  shown  to 
the  court  in   order  to   give  jurisdiction  in 

1  U  S  Enc— 53 


the  appeal.  Richmond  v.  Milwaukee,  21 
Ho\v.   80.    16   L.    Ed.   GO. 

55.  Rule  governing  appeals. — "Appeals 
from  decrees  of  the  circuit  court  to  this 
court  are  allowed  where  the  matter  in  dis- 
pute, exclusive  of  costs,  exceeds  the  sum 
01  value  of  two  thousand  dollars,  and  the 
provisions  is  that  such  appeals  shall  be 
subject  to  the  same  rules,  regulations,  and 
restrictions  as  are  prescribed  in  law  in 
case  of  writs  of  error.  2  Stat,  at  Large 
344."  Bigler  v.  Waller,  12  Wall.  142,  148, 
20    L.    Ed.   260. 

Power  to  re-examine  the  decrees  of  the 
circuit  court,  removed  there  by  appeal 
from  the  district  courts,  was  conferred 
upon  this  court  by  the  22d  section  of  the 
judiciary  act,  where  the  matter  in  dispute 
exceeds  the  sum  or  value  of  $2,000.  ex- 
clusive of  costs.  Such  decrees,  however, 
could  only  be  removed  here  under  that  act 
by  virtue  of  a  writ  of  error,  but  the  sub- 
sequent act  allowing  the  removal  to  be 
made  by  appeal  in  cases  of  equity,  or  ad- 
miralty, and  maritime  jurisdiction,  and  of 
pr'-e  or  no  prize,  contains  the  same  limi- 
tation that  the  matter  in  dispute  "shall 
exceed  the  sum  or  value  of  $2,000,  ex- 
clusive of  costs,"  and  also  provides  that 
such  appeals  shall  be  subject  to  the  same 
rules,  regulations,  and  restrictions  as  are 
prescribed  in  law  in  case  of  writs  of  er- 
ror. 1  Stat,  at  Large  84;  2  Stat,  at  Large 
244;  The  San  Pedro,  2  Wheat.  132.  KO, 
4  L.  Ed.  202,  205;  United  States  v.  Good- 


834 


APPEAL  AND  ERROR. 


3.  Re;vie;w  of  Proceedings  in  Particular  Courts — a.  Appeals  from  Ter- 
ritorial Courts. — Formerly,  this  court  had  jurisdiction  to  review  the  final  judg- 
ments and  decrees  of  the  supreme  courts  of  any  territory  except  Washington, 
only  when  the  amount  exceeded  one  thousand  dollars.^^ 

But,  "under  the  existing  acts  of  congress,  (except  in  the  cases  so  trans- 
ferred to  the  circuit  courts  of  appeals,  and  in  cases  of  habeas  corpus,  cases  involv- 
ing the  validity  of  a  copyright,  and  cases  depending  upon  the  constitution  or  a 
'Statute  or  treaty  of  the  United  States)  the  appellate  jurisdiction  of  this  court  to 
^review  and  reverse  or  affirm  the  final  judgments  and  decrees  of  the  supreme  court 
■of  a  territory  includes  those  cases,  and  those  cases  only,  at  law  or  in  equity,  in 
which  "the  matter  in  dispute,  exclusive  of  costs,  shall  exceed  the  sum  of  five 
thousand  dollars. "'''>'^ 

By  the  act  of  March  3,  1885,  23  Stat.  443,  c.  355,  "no  appeal  or  writ 

•  of  error  shall  hereafter  be  allowed  from  any  judgment  or  decree  in  any  suit  at 

law  or  in  equity     *     *     *     in  the  supreme  court  of  any  of  the  territories  of  the 

United  States,  unless  the  matter  in  dispute  exclusive  of  costs,  shall  exceed  the 


^in,  7  Cranch.  108,  111,  3  L.  Ed.  284;  Wis- 
'cart  V.  D'Auchy,  3  Dall.  321,  328,  1  L. 
:Ed.  619;  Glass  v.  The  Betsey,  3  Dall.  6, 
16;  The  Admiral,  3  Wall.  603.  18  L.  Ed. 
58;  Merrill  v.  Petty.  16  Wall.  338,  341,  21 
L.   Ed.   499. 

56.  Appeals  from  territorial  courts. — 
Thomas  v.  Murray.  34  L.  Ed.  539;  Simms 
V.  Simms,  175  U.  S.  162,  166,  44  L.  Ed. 
115;  Potts  V.  Chumasero,  92  U.  S.  358,  23 
L.  Ed.  499;  United  States  v.  Union  Pac. 
R.    Co.,   105   U.   S.   263,  26   L.    Ed.   1021. 

57.  Simms  v.  Simms,  175  U.  S.  162,  166, 
44  L.    Ed.   115. 

Five  thousmd  dollars  is  the  amount 
now  required  tor  our  jurisdiction,  on  ap- 
peals and  writs  of  error  from  the  su- 
preme courts  of  the  territories.  Act  of 
March  3.  1885,  23  Stat.  443.  c.  355;  Talk- 
inton  V.  Dumbleton,  123  U.  S.  745,  746,  31 
L.    Ed.    313. 

By  the  act  of  congress  organizing  the  in- 
habitants of  Oregon  territory  into  a  gov- 
ernment it  is  provided  (§  9)  that  writs  of 
error  and  appeals  from  final  decisions  of 
the  supreme  court  of  Oregon  shall  be  al- 
lowed to  the  supreme  court  of  the  United 
States,  where  the  value  of  the  property,  or 
the  amount  in  controversy,  shall  exceed 
two  thousand  dollars,  to  be  ascertained 
by  the  oath  of  either  partjs  or  by  a  com- 
petent witness.  Lownsdale  z'.  Parrish,  21 
How.   290,   16   L.   Ed.   80. 

Montana  territory. — This  court  has  no 
jurisdiction  to  review  the  judgment  of  the 
supreme  court  of  the  territory  of  Wyom- 
ing, unless  the  record  shows  that  the 
matter  actually  in  dispute  exceeds  $1,000. 
Nagle  V.  Rutlege,  100  U.  S.  675.  25  L.  Ed. 
772. 

Section  702  of  the  Revised  Statutes  pro- 
vides as  follows:  ''The  final  judgments 
and  decrees  of  the  supreme  court  of  any 
territory,  except  the  territory  of  Wash- 
irgton,  in  cases  where  the  value  of  the 
matter  in  dispute,  exclusive  of  costs,  to 
be  ascertpined  by  the  oath  of  either  party, 
or    of    other     competent      witnesses,      ex- 


ceeds one  thousand  dollars,  may  be  re- 
viewed and  reversed  or  affirmed  in  the 
supreme  court,  upon  writ  of  error  or  ap- 
peal, in  the  same  manner  and  under  the 
same  regulations  as  the  final  judgments 
and  decrees  of  a  circuit  court.  In  the 
territory  of  Washington,  the  value  of  the 
matter  in  dispute  must  exceed  two  thou- 
sand dollars,  exclusive  of  costs.  And  any 
final  judgment  or  decree  of  the  supreme 
court  of  said  territory  in  any  cause 
(when)  the  constitution  or  a  statute  or 
treaty  of  the  United  States  is  brought  in 
question  may  be  reviewed  in  like  man- 
ner." This  does  not  apply  to  or  cover 
a  case  from  the  territory  of  Montana. 
Farnsworth  v.  Montana,  129  U.  S.  104, 
109,   32   L.   Ed.   616. 

Section  1909  of  the  Revised  Statutes 
provides,  that  writs  of  error  and  appeals 
from  the  final  decisions  of  the  supreme 
court  of  any  one  of  eight  named  terri- 
tories, of  which  Montana  is  one,  "shall 
be  allowed  to  the  supreme  court  of  the 
United  States,  in  the  same  manner  and 
under  the  same  regulations  as  from  the 
circuit  courts  of  the  United  States,  where 
the  value  of  the  property  or  the  amount 
in  controversy,  to  be  ascertained  by  the 
oath  of  either  party,  or  of  other  compe- 
tent witnesses,  exceeds  one  thousand  dol- 
lars, except  that  a  writ  of  error  or  ap- 
peal shall  be  allowed  to  the  supreme 
court  of  the  United  States  upon  writs  of 
habeas  corpus  involving  the  question  of 
personal  freedom."  This  does  not  apply 
to  or  cover  a  case  from  the  territory  of 
Montana.  Farnsworth  v.  Montana,  129 
U.  S.  104,  110,  32  L.  Ed.  616. 

Writs  of  error  and  appeals  lie  to  this 
court  from  the  supreme  court  of  the  ter- 
ritory of  Montana  only  in  cases  where 
the  value  of  the  property  or  the  amount 
in  controversy  exceeds  the  sum  of  one 
thousand  dollars,  and  from  decisions  upon 
writs  of  habeas  corpus  involving  the 
question  of  personal  freedom.  Rev.  Stat., 
§  1909.  Potts  V.  Chumasero,  92  U.  S.  358, 
23    L.    Ed.   499. 


APPEAL  AND  ERROR. 


835 


sum  of  five  thousand  dollars. "^^ 

b.  Appeals  in  Admiralty. — The  district  court,  as  a  court  of  original  jurisdic- 
tion, had  general  jurisdiction  of  all  causes  of  admiralty  and  maritime  jurisdiction, 
without  reference  to  the  sum  or  value  of  the  matter  in  controversy.  But  the  ap- 
pellate jurisdiction  of  this  court  and  of  the  circuit  courts,  depends  upon  the  sum 
or  value  of  the  matter  in  dispute  between  the  parties,  having  independent  inter- 

€StS.59 

c.  Appeals  from  Circuit  Courts. — Although  the  act  of  March  3,  1875,  ch.  137 
(18  Stat.,  pt.  3,  p.  470).  gave  the  circuit  courts  of  the  United  States  original 
cognizance  of  suits  of  a  civil  nature  arising  under  the  constitution  and  laws  of  the 
United  States,  where  the  matter  in  dispute  exceeds,  exclusive  of  costs,  the  sum 
or  value  of  $500,  it  did  not  change  our  jurisdiction  for  the  review  of  the  judg- 
ments and  decrees  of  those  courts.  That  depended  on  the  value  of  the  matter  m 
dispute,  which  must  exceed  $5,000.*^" 

d.  Appeals  from  District  of  Columbia. — One  Hundred  Dollars. — At  first, 
this  court  had  jurisdiction  upon  appeals  or  writs  of  error  to  the  District  of  Co- 
lumbia, if  the  amount  in  controversy  exceeded  one  hundred  dollars.^ ^ 

One  Thousand  Dollars. — But  the  act  of  April  2,  1816,  ch.  39,  §  1,  provided 

that  no  cause  should  be  brought  to  this  court  by  appeal  or  writ  of  error  from  the 

circuit  court  for  the  District  of  Columbia  "unless  the  matter  in  dispute  in  such 

cause  shall  be  of  the  value  of  one  thousand  dollars  or  upwards,  exclusive  of 
costs."*  2 


58.  Cameron  r.  United  States.  146  U. 
S.   5;i3,   534,   36   L.    Ed.   1077. 

This  court  may  review  the  final  judg- 
ment of  the  supreme  court  of  one  of  the 
territories  of  the  United  States  in  any 
case,  without  regard  to  the  sum  or  value 
in  dispute,  where  the  constitution  or  a 
statute  or  treaty  is  brought  in  question, 
and  in  every  other  case  whatever  where 
the  sum  or  value  in  dispute  exceeds  $5,000, 
exclusive  of  costs.  Royal  Ins.  Co.  v.  Mar- 
tin, 192  U.  S.  149,  159,  48  L.  Ed.  385,  re- 
affirmed in  Rosales  Cueli  v.  Rodriguez, 
198  U.  S.  581.  49  L.  Ed.  1172;  Garrozi  v. 
Dastas,   204    U.    S.    64,    51    L.    Ed.    369. 

59.  Appeals  in  admiralty. — Stratton  v. 
Jarvis.  8   Pet.  4,   11,  8  L.   Ed.  846. 

Although  no  apportionment  of  the 
salvage  among  the  various  claimants  was 
formally  directed  to  be  made  by  any  in- 
terlocutory order  of  the  district  court,  an 
apportionment  appears  to  have  been  in 
fact  made  under  its  authority.  A  sched- 
ule is  found  in  the  record  containing  the 
names  of  all  the  owners  and  claimants, 
the  gross  sales  of  their  property,  and  the 
amount  of  salvage  apportioned  upon  each 
of  them  respectively.  By  this  schedule 
the  highest  salvage  chargeable  on  any 
distinct  claimant  is  nine  hundred  and  six 
dollars  and  seventeen  cents,  and  the 
lowest  forty-seven  dollars  and  sixty  cents, 
the  latter  sum  being  below  the  amount 
for  which  an  appeal  by  the  act  of  3d  of 
March,  1803  (ch.  93),  is  allowed  from  a 
<lecree  of  the  district  court  in  admiralty 
and  maritime  causes.  Stratton  v.  Jarvis, 
8    Pet.    4,   8   L.    Ed.   846. 

.60.  Appeals  fr->m  circuit  courts.— 
Whitsitt  V.  Depot  and  R.  Co.,  103  U.  S. 
770,  26  L.  Ed.  337;  Stickney  v.  Wilt,  29 
Wall.   150,  23  L.  Ed.   .50. 


Appeals  from  district  to  circuit  courts. 

— "Appeals  from  the  decrees  of  the  dfe- 
trict  court  to  the  circuit  court  were  al- 
lowed by  the  judiciary  act,  where  the  mat- 
ter in  dispute  exceeded,  exclusive  of  costs, 
the  sum  or  value  of  three  hundred  dollars, 
and  the  final  judgments  rendered  in  the 
district  courts  might  be  re-examined  in 
the  circuit  court  on  writ  of  error,  where 
the  matter  in  dispute  exceeded,  exclusive 
Oi'  costs,  the  sum  or  value  of  fifty  dollars; 
and  a  similar  provision  is  made  for  the 
re-examination  by  this  court  of  the  final 
judgments  and  decrees  of  the  circuit 
courts,  where  the  matter  in  dispute,  ex- 
clusive of  costs,  exceeds  the  sum  or  value 
of  two  thousand  dollars."  The  Baltimore, 
8  Wall.  377,  389,   19   L.   Ed.   463. 

61.  Appeals  from  District  of  Colum- 
bia.— Curtiss  V.  Georgetown,  etc.,  Co.,  C 
Cranch  233,  3   L.   Ed.   209. 

Upon  a  writ  of  error  to  the  circuit  court 
for  the  District  of  Columbia,  this  court 
has  no  jurisdiction  if  the  sum  awarded 
be  less  than  $100,  although  a  greater  sum 
may  have  been  originally  claimed.  Wise 
V.  Columbian  Turnpike  Co..  7  Cranch  37C, 
3   L.   Ed.   341. 

62.  3  Stat.  261;  Kurtz  v.  Moflfitt,  115  U. 
S.  487,  495,  29  L.  Ed.  458;  Columbian  Ins. 
Co.  V.  Wheelwright,  7  Wheat.  534,  5  L. 
Ed.  516;  Peyton  v.  Robertson,  9  Wheai. 
527,  6  L.  Ed.  151;  Keogh  v.  Orient  Fire 
Ins.   Co.,  154  U.  S.  639,  24  L.   Ed.  558. 

The  law  does  not  give  to  this  court 
jurisdiction  of  appeals  from  the  supreme 
court  of  the  District  of  Columbia  when 
the  amount  in  controversy  is  less  thau 
$1,000.  Pierce  v.  Cox,  9  Wall.  786,  787.  19 
L.    Ed.   786. 

To  give  us  jurisdiction  in  appeals  from 
the   supreme   court   of  the  District  of  Co- 


836 


APPEAL   AND  UKKOK. 


Two  Thousand,  Five  Hundred  Dollars. — By  a  later  statute,  the  amount  was 
increased  to  two  thousand,  five  hundred  dollars. ^^ 

Five  Thousand  Dollars. — By  the  act  of  March  3,  1885,  regulating  appeals 
from  the  supreme  court  of  the  District  of  Columbia  (23  Stat.  443,  ch.  355),  no 
appeal  or  writ  of  error  can  be  allowed  from  any  judgment  or  decree  in  any  suit 
at  law  or  in  equity  in  the  supreme  court  of  the  District  of  Columbia,  unless  the 
matter  in  dispute  exclusive  of  costs  shall  exceed  the  sum  of  five  thousand  dol- 
lars, except  that  where  the  case  involves  the  validity  of  any  patent  or  copyright,, 
or  the  validity  of  a  treaty  or  statute  of,  or  an  authority  exercised  under,  the 
United  States,  is  drawn  in  question,  jurisdiction  may  be  maintained  irrespective 
of  the  amount  of  the  sum  or  value  in  dispute.^^  By  the  act  of  February  9.  1893, 
c.  74,  27  Stat.  434,  the  supreme  court  of  the  United  States  was  authorized  to  re- 
view a  final  judgment  or  decree  of  the  court  of  appeals  of  the  District  of  Colum- 
bia in  any  case  where  the  matter  in  dispute,  exclusive  of  costs,  shall  exceed  the 
sum  of  $5,000.65 

e.  Origin-al  Jurisdiction  of  Circuit  Courts.^^ — The  language  of  the  first  section 
of  the  act  of  March  3,  1887.  as  corrected  by  the  act  of  August  13,  1888.  is :  "That 
the  circuit  courts  of  the  United  States  shall  have  original  cognizance,  concurrent 
with  the  courts  of  the  several  states,  of  all  suits  of  a  civil  nature,  at  common-law 
or  in  equity,  where  the  matter  in  dispute  exceeds,  exclusive  of  interest  and  costs. 


lumbia,  the  amount  in  dispute  must  ex- 
ceed $1,000.  Keogh  V.  Orient  Fire  Ins. 
Co..  154  U.  S.  639,  24  L.  Ed.  558,  citing 
Rev.    Stat.,    §    705. 

To  give  this  court  jurisdiction  of  ap- 
peals from  the  orphans'  court,  through 
the  circuit  court  for  the  county  of  Wash- 
ington, the  matter  in  dispute,  exchisive  of 
costs,  must  exceed  the  value  of  $1,000. 
NichoUs  V.  Hodges,  1  Pet.  562,  7  L.  Ed. 
263. 

The  supreme  court  of  the  United  States 
has  jurisdiction  of  appeals  from  the 
orphans'  court,  through  the  circuit  court 
for  the  county  of  Washington,  by  vir- 
tue of  the  act  of  congress  of  February  13, 
1801,  by  which  the  circuit  court  for  the 
District  of  Columbia  was  created;  and  by 
the  act  of  congress  subsequently  passed, 
but  the  matter  in  dispvite,  exclusive  of 
costs,  must  exceed  the  value  of  $1,000  in 
©rder  to  entitle  the  party  to  an  appeal. 
Nicholls    V.  Hodges,  1  Pet.  562.  7  L.  Ed.  263. 

63.  National  Bank  v.  Miller.  25  L.  Ed. 
529;  Baltimore,  etc.,  R.  Co.  v.  Grant,  98 
U.  S.  398.  25  L.  Ed.  231;  Bank  v.  Millard, 
154  U.  S.  656.  25  L-  Ed.  529;  Keller  v. 
Ashford,  133  U.  S.  610,  33  L.  Ed.  667; 
Hilton  V.  Dickinson,  108  U.  S.  165.  176,  27 
L.   Ed.  688. 

Where  on  a  writ  of  error  to  the  su- 
preme court  of  the  District  of  Columbia, 
the  value  of  the  matter  in  dispute  is  less 
than  $2,500,  the  judgment  is  not  review- 
able here.  National  Bank  v.  Miller,  25 
L.  Ed.  529,  citing  Baltimore,  etc.,  R.  Co. 
3.  Grant.  98  U.  S.  398,  25  L.  Ed.  231. 

In  Baltimore,  etc.,  R.  Co.  v.  Grant,  98  U. 
S.  398,  25  L.  Ed.  231.  we  held  that  the  act 
of  Feb.  25.  1879,  ch.  99.  §§  4,  5  (20  Stat. 
320),  took  away  our  right  to  hear  and 
determine  cases  from  the  supreme  court 
erf  the  District  of  Columbia  where  the 
matter   in   dispute    did   not   exceed   $2,500, 


and  that  it  operated  on  pending  cases 
which  had  been  brought  here  under  the 
provisions  of  §  847  of  the  Revised  Statutes 
relating  to  the  district.  Dennison  v.  Alex- 
ander,  103  U.   S.   522,  26  L.   Ed.  313. 

64.  Washington,  etc.,  R.  Co.  v.  District 
of  Columbia.  146  U.  S.  227,  231.  36  L.  Ed. 
951;  Shappirio  v.  Goldberg.  192  U.  S.  232, 
240.  48  L.  Ed.  419;  In  re  Craft,  124  U.  S. 
370,  31  L.  Ed.  449;  District  of  Columbia 
V.  Brewer.  131  U.  S.  434,  33  L.  Ed.  213 

Where  an  appeal  from  the  supreme 
court  of  the  District  of  Columbia  was 
claimed  and  allowed  February  16,  1885, 
at  which  time  this  court  had  jurisdiction 
over  that  court  and  the  matter  in  dispute 
exceeded  $2,500,  "the  case  is  not  afifected 
by  the  act  of  March  3,  1885,  c.  355.  §  1, 
further  limiting  the  appellate  jurisdiction 
of  this  court,  because  that  act  only  pro- 
vides that  'no  appeal  or  writ  of  error  shall 
hereafter  be  allowed'  from  any  such  judg- 
ment or  decree,  unless  the  matter  in  dis- 
pute, exchisive  of  costs,  exceeds  the  sum 
of  five  thousand  dollars.  23  Stat.  443.  The 
change  of  phraseology,  referring  to  the 
time  when  the  appeal  or  writ  of  error  is 
allowed,  instead  of  to  the  time  when  it  is 
entertained  by  this  court,  was  evidently 
intended  to  prevent  cutting  oflf  appeals 
taken  and  allowed  before  the  passage  of  ; 
the  act.  as  had  been  held  to  be  the  ef- 
fect of  the  language  used  in  the  act  of 
1879.  Baltimore,  etc.,  R.  Co.  v.  Grants 
98  U.  S.  398,  25  L.  Ed.  231."  Keller  v. 
Ashford,  133  U.  S.  610.  617.  33  L.  Ed. 
667. 

65.  Overbv  v.  Gordon,-  177  U.  S.SiU^ 
218.  44  L.  Ed.  741.  approving  Shields  v. 
Thomas.  17  How.  3.  15  L.  Ed.  93;  Ma- 
gruder  v.  Armes,  180  U.  S.  496.  45  L.  Ed. 
638. 

66.  Original  jurisdiction  of  circuit 
courts.— See  the  title  COURTS. 


APPEAL  AND  ERROR. 


837 


the  sum  or  value  of  two  thousand  dollars,  and  arising  under  the  constitution 
or  laws  of  the  United  States,  or  treaties  made,  or  which  shall  be  made,  under 
their  authority.  It  was  held,  that  the  sum  or  value  named  was  jurisdictional, 
and  that  the  circuit  court  could  not,  under  the  statute,  take  original 
cogtiizance  of  a  case  arising  under  the  constitution  or  laws  of  the 
United  States  unless  the  sum  or  value  of  the  matter  in  dispute,  exclusive  of  costs 
and  interest,  exceeded  two  thousand  dollars/'"  And  the  conclusion  reached  is 
not  affected  by  the  fact  that  the  operation  of  the  act  of  March  3,  1891,  was  to  do 
away  with  any  pecuniary  limitation  on  appeals  directly  from  the  circuit  courts 
to   tins  court.^* 

4.  The  Phrase  ''Matter  in  Dispute"  Defined. — By  matter  in  dispute  is 
meant  the  subject  of  litigation,  the  matter  upon  which  the  action  is  brought  and 
i.ssue  is  joined,  and  in  relation  to  which,  if  the  issue  be  one  of  fact,  testimony  is 
taken.  It  is  conceded  that  the  pecuniary  value  of  the  matter  in  dispute  may  be  de- 
termined, not  only  by  the  money  judgment  prayed,  where  such  is  the  case,  but 
in  some  cases  by  the  increased  or  diminished  value  of  the  property  directly  af- 
fected by  the  relief  prayed,  or  by  the  pecuniary  result  to  one  of  the  parties  im- 
mediately from  the  judgment.  Thus,  a  suit  to  quiet  the  title  to  parcels  of  real 
property,  or  to  remove  a  cloud  therefrom,  by  which  their  use  and  enjoyment  by 
the  owner  are  impaired,  is  brought  within  the  cognizance  of  the  court,  under  the 
statute,  only  by  the  value  of  the  property  affected.**^  By  matter  in  dispute  is 
meant  the  subject  of  litigation — the  matter  for  which  the  suit  is  brought — and 
upon  which  issue  is  joined,  and  in  relation  to  which  jurors  are  called  and  wit- 
nesses examined.  In  an  action  upon  a  money  demand,  where  the  general  issue 
is  pleaded,  the  matter  in  dispute  is  the  debt  claimed ;  and  its  amount,  as  stated 
in  the  body  of  the  declaration,  and  not  merely  the  damages  alleged,  or  the  prayer 
for  judgment  at  its  conclusion,  must  be  considered  in  determining  the  question 
whether  this  court  can  take  jurisdiction  on  a  writ  of  error  sued  out  by  the  plain- 
tiff."*^ For  the  purposes  of  jurisdiction,  this  court  may  consider  that  as  in  dis- 
pute which  would  be  settled  by  the  decree  if  it  had  not  been  appealed  from.'^' 


67.  United  States  v.  Sayward,  160  U. 
S  49.3.  40  L.  Ed.  .508,  reaffirmed  in  Fish- 
back  ■:•.  Western  Union  Tel.  Co.,  161  U. 
S    96,  99.  40  L.  Ed.  630. 

68.  The  Paquete  Habana.  175  U.  S.  677, 
44  L.  Ed.  320;  Holt  v.  Indiana  Mfg.  Co., 
]7f>   U.    S.   6S.   12.   44   L.    Ed.   374. 

69.  The  phrase  "matter  in  dispute"  de- 
fined.— Alexander  7'.  Pendleton,  8  Cranch 
402.  3  L.  Ed.  624;  Peirsoll  v.  Elliott,  6 
Pet.  95,  8  L.  Ed.  332;  Stark  z-.  Starr,  6 
Wall.   402,  18   L.   Ed.   925;  lones  v.  Bolles, 

9  Wall.  364,  369,  19  L.  Ed.  734.  and  Hol- 
land -c\  Challen.  110  U.  S.  15,  38  L.  Ed. 
52;  Smith  z:  Adams,  130  U.  S.  167,  175, 
33    L.    Ed.    895. 

Tho  words  "matter  in  dispute,"  in  the 
12th  station  of  the  judiciary  act,  do  not 
refer  to  disputes  in  the  country,  or  the 
intentions  or  expectations  of  the  parties 
concerning  f^em,  but  to  the  claim  pre- 
sented on  the  record  to  the  legal  consid- 
eration of  the  court.  What  the  plaintiff 
thus  claims,  is  the  matter  in  dispute, 
though  that  claim  may  be  incapable  of 
proof,  or  only  in  part  well  founded.  So 
il  was  held  under  this  section  of  the  stat- 
ute, and  in  reference  to  the  right  of  re- 
moval, in   Gordon  v.   Longest,   16   Pet.   97, 

10  L.  Ed.  900;  and  the  same  construction 
has  been  put  upon  the  eleventh  and 
twenty-second    sections    of    the    judiciary 


act  which  makes  the  jurisdiction  of  this 
court  and  the  circuit  court  dependent  on 
the  amount  or  value  of  "the  matter  in 
dispute."  The  settled  rule  is,  that  until 
some  further  judicial  proceedings  have 
taken  place,  showing  upon  the  record  that 
the  sum  demanded  is  not  the  matter  in 
dispute,  that  sum  is  the  matter  in  dispute 
in  an  action  for  damages.  (Green  v. 
Liter,  8  Cranch  229.  3  L.  Ed.  545;  Wise 
V.  Columbian  Turnpike  Co.,  7  Cranch 
276,  3  L.  Ed.  341 ;  Gordon  v.  Ogden,  3  Pet. 
33.  7  L.  Ed.  592;  Smith  v.  Honey,  3  Pet. 
469,  7  L.  Ed.  744;  Den  v.  Wright,  1  Pet. 
C.  C.  64;  Miner  v.  Dupont,  2  Wash.  C,  C. 
463;  Sherman  v.  Clark,  3  McLean  91.) 
Kanouse  v.  Martin.  15  How.  198,  207,  14 
L.  Ed.  467. 

70.  Lee  v.  Watson,  1  Wall.  337,  339,  17 
L.    Ed.   557. 

71.  Germanica  Nat.  Bank  v.  Case,  131 
U.   S.  appx.  cxliv,  23  L.  Ed.  961. 

Where  the  decree  requires  the  stock- 
holders of  an  insolvent  ban':  to  pay  not 
only  70  per  cent,  upon  the  amount  of  the 
stock  held  by  them,  but  also  adjudges  that 
each  shall  be  liable  to  further  contribution 
as  stockholders  until  a  sufficient  sum  is  re- 
alized to  pay  the  debts  of  the  bank,  it  is 
apparent  that  the  matter  in  dispute  is  not 
alone  the  70  per  cent,  but  a  sum  in  addi- 
tion  that   may  amount  to   30  per  cent,   of 


838 


APPEAL  AND  ERROR. 


5.  Must  Exce;ed  Jurisdictional  Amount. — The  jurisdiction  of  this  court  to 
re-examine  judgments  of  the  circuit  courts  is  limited  to  cases  where  the  matter 
in  dispute  exceeds  the  amount  prescribed.  Where  it  but  equals  that  sum.  the 
jurisdiction  does  not  exist."  ^ 

6.  Effect  of  Repeal  Pending  Appeal. — Where  a  law  regulating  the  appel- 
late jurisdiction  of  this  court  with  respect  to  the  amount  in  controversy  is  re- 
pealed without  any  reservation  as  to  pending  cases,  all  such  cases  fall  with  the 
law,  and  it  takes  away  our  right  to  hear  and  determine  the  cause,  if  the  matter  in 
dispute  is  less  than  the  jurisdictional  amount  prescribed  by  the  repealing  act.'^ 

7.  General  Construction  of  Statute. — Congress,  it  is  conceded,  has  not  ex- 
pressly enacted  that  final  judgments  and  decrees  shall  not  be  re-examined 
here  where  the  matter  in  dispute  does  not  exceed  the  sum  or  value  men- 
tioned, but  inasmuch  as  the  appellate  power  of  the  court  is  conferred  by  the 
constitution,  with  such  exceptions  and  under  such  regulations  as  congress  shall 
make,  the  rule  of  construction  is  that  the  negative  of  any  other  jurisdiction  in 
that  respect  is  implied  from  the  intent  manifested  by  the  affirmative  description 
contained  in  that  section  of  the  judiciary  act.'^^ 


the  stock.  For  the  purposes  of  jurisdic- 
tion this  court  may  consider  that  as  in 
dispute  which  would  be  settled  by  the  de- 
cree if  it  had  not  been  appealed  from. 
Germanica  Nat.  Bank  v.  Case,  131  U.  S. 
appx.   cxliv,  23   L.   Ed.   961. 

72.  Must  be  in  excess  of  required 
amount. — Walker  v.  United  States,  4 
Wall.  163,  18  L.  Ed.  319,  discussing  and 
explaining  Knapps  v.  Banks,  2  How.  73, 
11  L.  Ed.  184;  The  D.  R.  Martin.  91  U. 
S.  365,  366,  23  L.  Ed.  439;  Western  Union 
Tel.  Co.  V.  Rogers,  93  U.  S.  565,  567,-  23 
L.  Ed.  977;  Thompson  v.  Butler,  95  U. 
S.  694.  695,  24  L.  Ed.  540;  Hilton  v.  Dick- 
inson. 108  U.  S.  165,  173,  27  L.  Ed.  688; 
Henderson  v.  Wadsworth,  115  U.  S.  264, 
276.  29  L.  Ed.  377;  District  of  Columbia 
V.  Gannon,  130  U.  S.  227,  228,  32  L.  Ed. 
922. 

73.  Effect  of  repeal  pending  appeal. — 
United  States  v.  Boisdore,  8  How.  113,  12 
L.  Ed.  1009;  McNulty  v.  Batty,  10  How. 
72,  13  L.  Ed.  333;  Norris  v.  Crocker,  13 
How.  429,  14  L.  Ed.  210;  Insurance  Co. 
V.  Ritchie,  5  Wall.  541,  18  L.  Ed.  540;  Ex 
parte  McCardle,  7  Wall.  506,  514,  19  L. 
Ed.  264;  The  Assessor  v.  Osbnrnes,  9 
Wall.  567,  19  L.  Ed.  748;  United  States  v. 
Tynen,  11  Wall.  88.  20  L.  Ed.  153;  Balti- 
more, etc.,  R.  Co.  V.  Grant,  98  U.  S.  398, 
25   Ed.  231. 

The  jurisdiction  conferred  upon  this 
court  by  §  847  of  the  Revised  Statutes  re- 
lating to  the  District  of  Columbia  was 
taken  away  by  the  act  of  congress  ap- 
proved Feb.  25,  1879,  which  enacts  that  a 
judgment  or  a  decree  of  the  supreme  court 
•of  that  district  may  be  re-examined  here 
"where  the  matter  in  dispute,  exclusive 
of  costs,  exceeds  the  value  of  $2,500." 
This  court,  therefore,  dismisses  a  writ  of 
error  sued  out  Dec.  6,  1875,  to  reverse  a 
final  judgment  of  that  court  where  the 
matter  in  dispute  is  of  the  value  of  $2,250. 
Baltimore,  etc.,  R.  Co.  v.  Grant,  98  U.  S. 
398,   25    L.    Ed.    231. 

In   Baltimore,   etc.,   R.   Co.   v.    Grant.   98 


U.  S.  398,  402,  25  L.  Ed.  231,  Mr.  Chief 
Justice  Waite  said:  "Usually  where  a  lim- 
ited repeal  only  is  intended,  it  is  so  ex- 
pressly declared.  Thus,  in  the  act  of 
1875  (18  Stat.  316),  raising  the  jurisdic- 
tional amount  in  cases  brought  here  for 
review  from  the  circuit  courts,  it  was  ex- 
pressly provided  that  it  should  apply  only 
to  judgments  thereafter  rendered;  and  in 
the  act  of  1874  (Id.  27),  regulating  appeals 
to  this  court  from  the  supreme  courts  of 
the  territories,  the  phrase  is,  'that  this  act 
shall  not  apply  to  cases  now  pending  in 
the  supreme  court  of  the  United  States 
where  the  record  has  already  been  filed.' 
Indeed,  so  common  is  it,  when  a  limited 
repeal  only  is  intended,  to  insert  some 
clause  to  that  express  effect  in  the  repeal- 
ing act,  that  if  nothing  of  the  kind  is 
found,  the  presumption  is  always  strong 
against  continuing  the  old  law  in  force 
for   any  purpose." 

74.  General  construction  of  statute. — 
Durousseau  v.  United  States,  6  Cranch 
307,  318,  3  L.  Ed.  232;  Merrill  7:  Petty.  15 
Wall.   338,   345,  21    L.    Ed.   499. 

"The  spirit  as  well  as  the  letter  of  a 
statute  inust  be  respected,  and  where  the 
whole  context  of  the  law  demonstrates  a 
particular  intent  in  the  legislature  to  ef- 
fect a  certain  object,  soine  degree  of  im- 
plication may  be  called  in  to  aid  that  in- 
tent. It  is  upon  this  principle  that  the 
court  implies  a  legislative  exception  from 
its  constitutional  appellate  power  in  the 
legislative  affirmative  description  of  those 
powers.  Thus,  a  writ  of  error  lies  to  the 
judgment  of  a  circuit  court,  where  the 
matter  in  controversy  exceeds  the  value 
of  2.000  dollars.  There  is  no  express  dec- 
laration that  it  will  not  lie  where  the  mat- 
ter in  controversy  shall  be  of  less  value. 
But  the  court  considers  this  affirmative 
description  as  manifesting  the  intent  of 
the  legislature  to  except  from  its  appet- 
late  jurisdiction  all  cases  decided  in  the 
circuits  where  the  matter  in  controversy 
is     of    less     value,     and    implies     negative 


APPEAL  AND  ERROR. 


839 


8.  Consent  or  Agreement  of  Parties. — The  consent  or  agreement  of  parties 
cannot  give  jurisdiction  to  this  court.  Its  appellate  power  is  regulated  and  limited 
by  \a.\\''^  In  accordance  with  this  rule,  that  consent  cannot  give  jurisdiction,  an 
agreement  between  the  parties  that  two  cases  should  be  heard  together,  cannot 
avail  the  parties.'^ '^  Though  consent  cannot  give  jurisdiction  to  this  court  by  way 
of  appeal,  where  the  matter  in  dispute  is  less  than  the  required  amount,  yet  an 
admission  of  a  sufficient  value  by  the  parties  is  presumed  to  be  correct  where  the 
record  does  not  establish  the  contrary.'^ ''^ 

9.  To  What  Parties  Applicable. — In  General. — To  justify  this  court  in 
taking  jurisdiction,  there  must  be  a  controversy  which  involves  pecuniary  value 
exceeding  $5,000  to  the  party  appealing.  In  other  words,  there  must  be  a  dis- 
pute which  involves  a  sum  in  excess  of  $5,000,  and  such  sum,  or  property  of  its 
value,  must  be  taken  from  him  by  the  judgment  which  he  seeks  to  review.  The 
plaintiff  in  error  and  appellant  must  show  that  he  has  an  interest  in  the  matter 
in  dispute.'^^ 


words."  Durousseau  v.  United  States,  6 
Cranch  307,  314.  3  L.  Ed.  232,  cited  in 
Baltimore,  etc.,  Co.  v.  Grant.  98  U.  S.  398. 
25   L.   Ed.   231. 

75.  Consent  or  agreement  of  parties. — 
Sampson  v.  Welsh,  24  How.  207,  16  L.  Ed. 
632. 

Upon  a  libel  to  recover  damages  against 
ship  owners,  a  decree  passed  against  them 
for  over  $2,000,  with  leave  to  set  off  a 
sum  due  them  for  freight,  which  would 
reduce  the  amount  decreed  against  them 
to  less  than  $2,000,  the  party  elected  to 
make  the  set-off,  saving  his  right  to  ap- 
peal to  this  court.  The  reduced  decree 
was  the  final  decree,  and  the  party  can- 
not save  a  right  of  appeal  where  it  is  not 
allowed  by  act  of  congress.  Sampson  v. 
Welsh,  24  How.  207,   16  L.   Ed.  632. 

Therefore,  where  a  vessel  was  libeled 
in  the  district  court  and  sold  by  agree- 
ment of  parties,  and  the  proceeds  of  sale 
amounted  only  to  $8.50.  which  was  paid 
into  the  registry,  this  is  insufficient  to 
bring  the  case  within  the  jurisdiction  of 
this  court,  although  an  agreement  of  coun- 
sel was  filed  admitting  the  value  of  the 
vessel  to  be  more  than  two  thousand  dol- 
lars. This  agreement  would  be  evidence 
of  the  value  if  nothing  to  the  contrary  ap- 
peared in  the  record.  But  the  decision  of 
the  court  would  only  determine  the  right 
to  the  proceeds  of  sale,  viz,  $850,  and  the 
case  must  therefore  be  dismissed,  for 
want  of  jurisdiction.  Gruner  v.  United 
States.  11  How.  163,  13  L.  Ed.  647. 

76.  An  appeal  on  a  libel  in  personam  for 
a  collision  by  the  owners  of  a  schooner 
against  the  owners  of  a  sloop  that  had 
been  sunk  in  the  collision,  dismissed;  the 
decree  having  been  for  $1,292.84,  and 
therefore,  "not  exceeding  the  sum  or 
value  of  $2,000."  The  fact  that  prior  to 
this  libel  in  personam,  the  owners  of  the 
sloop  had  filed  in  another  district  a  libel 
in  rem  against  the  schooner,  laying  their 
damages  at  $4781.84,  and  that  in  the  dis- 
trict and  circuit  courts  below,  both  cases 
might  have  been  heard  as  one  (a  fact  as- 
serted by  counsel  but  not  apparent  in  the 


record),  held  not  to  affect  the  matter;  the 
cases  never  having  been  brought  into  the 
same  district  or  circuit,  nor  in  any  man- 
ner consolidated.  Merrill  v.  Petty,  16 
Wall.  338,  21  L.  Ed.  499. 

77.  Oliver  v.  Alexander,  6  Pet.  143,  148. 
8  L.  Ed.  349,  citing  Sheppard  v.  Taylor, 
5   Pet.  675,   8   L.   Ed.  269. 

78.  To  what  parties  applicable.— Caffrey 
V.  Oklahoma,  177  U.  S.  346,  348,  44  L.  Ed. 
799. 

The  assessed  valuation  of  the  property 
of  Oklahoma  county  was  increased 
twenty-four  per  cent,  by  the  territorial 
board  of  equalization  and  plaintiff  in  er- 
ror as  county  clerk,  notified  thereof;  he 
refused  to  comply  with  the  order  and  a 
writ  of  mandamus  was  issued  by  the  su- 
preme court  of  the  territory  to  compel  a 
compliance  therewith.  Declining  to  obey 
the  writ,  he  was  cited  for  contempt,  and 
such  proceedings  were  had  on  the  citation 
that  he  was  adjudged  guilty,  and  com- 
mitted to  jail  until  he  should  comply  with 
the  writ;  and  the  case  was  then  brought 
to  the  supreme  court  of  the  United  States. 
There  is  controversy  between  the  parties, 
respectively  supported  by  affidavits, 
whether  the  effect  of  the  order  of  the  ter- 
ritorial board  of  equalization  has  in- 
creased the  taxes  of  the  county  $3179.27. 
or  $28751.87.  But  whether  it  is  one  sum 
or  the  other,  plaintiff  in  error  and  appel- 
lant did  not  show  that  he  had  any  interest 
in  it.  He  did  not  allege  that  he  is  a 
property  owner  or  a  taxpayer  of  the 
county,  but  alleged  he  is  its  county  clerk, 
and  bases  his  residence  to  the  order  of 
the  territorial  board  of  equalization  upon 
his  duty  as  such  officer.  It  was  held  that 
the  supreme  court  of  the  United  States 
had  no  jurisdiction.  Caffrey  v.  Oklahoma, 
177  U.  S.  346,  44  L.  Ed.  799. 

Colvin  V.  Jacksonville,  158  U.  S.  456,  .■^9 
L.  Ed.  1053,  was  a  suit  in  equity  to  re- 
.=train  the  issue  of  bonds  by  the  city  of 
Jacksonville,  and  was  brought  in  the  circuit 
court  of  the  United  States  for  the  northern 
district  of  Florida.  Colvin  alleged  that 
he   was   a   taxp.  yer,   and   that   the   amount 


840 


APPEAL  AXD  ERROR. 


The  United  States. — Section  3  of  the  "act  to  facilitate  the  disposition  of  cases 
in  the  supreme  court  of  the  United  States,  and  for  other  purposes,'"  approved 
February  16,  1875,  18  Stat.  315,  c.  77,  §  3.  fixing  the  amount  necessary  to  give 
jurisdiction  to  this  court  of  writs  of  error  from  the  circuit  courts  at  a  sum  in 
excess  of  five  thousand  dollars,  applies  to  the  Ignited  States  as  well  as  to  other 
parties,  except  in  the  cases  enumerated  in  §  699  of  the  Revised  Statutes.'^ 

10.  Cross  Appeals. — A  motion  to  dismiss  a  cross  appeal  of  the  defendants  be- 
low, for  want  of  jurisdiction,  on  the  ground  that  the  amount  in  controversy  is 
less  than  the  jurisdictional  amount,  will  be  overruled,  where  such  cross  appeal 
is  from  a  part  of  the  judgment  rendered  against  him  and  in  favor  of  the  plain- 
tififs  below  for  an  amount  sufficient  to  give  this  court  jurisdiction,  because  the 
cross  appeal  is  incident  to  the  other  which  opens  the  whole  controversy  here.^® 

11.  Amount  Actually  ix  Disputk  Controls — a.  In  General. — The  juris- 
diction of  this  court  is  limited  to  the  amount  actually  in  dispute  in  the  suit.^^ 
In  determining  the  appellate  jurisdiction,  the  amount  of  the  judgment  from  which 
the  appeal  or  writ  of  error  may  be  prosecuted,  and  not  the  amount  originally  in- 
volved in  the  suit,  is  the  amount  in  controversy. '^^     j^   j-^^}-  be  laid  down  as  a 


of  taxes  that  would  be  assessed  upon  the 
property  owned  by  him  in  the  city  would 
exceed  two  thousand  dollars.  This  was 
<lenied,  and  the  complainant  then  con- 
tended that  not  the  amount  of  his  taxes 
but  the  amount  of  the  bonds  proposed  to 
he  issued  (one  million  dollars)  was  the 
:  'nount  in  controversy.  The  circuit  court 
dismissed  the  case  for  want  of  jurisdic- 
tion, and  this  court  sustained  the  ruling, 
saying  by  the  chief  justice,  that  "the 
amount  of  the  interest  of  complainant,  and 
not  the  entire  issue  of  bonds,  was  the 
amount  in  controversy,  and,  in  respect  to 
that,  we  have  no  doubt  the  ruling  of  the 
circuit  court  was  correct."  El  Paso  Wa- 
ter Co,  r.  El  Paso,  1.52  U.  S.  157.  38  L- 
Ed.  396,  was  cited  and  approved.  Caflfrey 
V.  Oklahoma,  177  U.  S.  346,  348,  44  L.  Ed. 
799. 

79.  United  States  v.  Broadhead.  127  U. 
S.  212.  213.  32  L.  Ed.  147;  United  States  v. 
Union  Pac.  R.  Co.,  10.5  U.  S.  263,  26  L. 
Kd.  1021. 

Under  §§  702  and  1909  of  the  Revised 
Statutes,  writs  of  error  and  appeals  from 
the  final  judgments  and  decrees  of  the  su- 
preme court  of  Wyoming  lie  to  this  court 
only  when  the  amount  in  controversy  ex- 
ceeds $1,000,  or  the  judgment  is  on  a  writ 
of  habeas  corpus,  involving  a  question  of 
personal  freedom.  No  exception  is  made 
in  favor  of  tlie  United  States,  and  this  is 
not  an  action  brought  for  the  enforcement 
<if  any  revenue  law.  Consequently  the 
T  United  States  are  not  entitled  to  a  writ 
>  'f  error  or  appeal  if  the  same  remedy 
would  not  be  afforded  under  similar  cir- 
\-umPtances  to  a  private  party.  United 
States  7:  Thompson.  93  U.  S.  586,  23  L. 
Ed.  982:  United  States  v.  Railroad.  105  U. 
S.   263,  26  L.   Ed.  1021. 

80.  Cross  appeals. — Walsh  v.  Maver.  Ill 
U.    S.   31.   3S.  2S   L.    Ed.   338. 

81.  Amount  actually  in  dispute  controls 
in  general. — Grav  r.  Blanchard.  97  U.  S. 
.564.  •?4  L.  Kd.  11  OS;  Tintsman  7'.  National 
BanK-.    100  U.   S.   6,  25   L.   Ed.   530;    Parker 


V.  Morrill,  106  U.  S.  1.  27  L.  Ed.  72;  Elgin 
V.  Marshall,  106  U.  S.  578,  27  L.  Ed.  249; 
Jenness  t'.  Citizens'  Nat.  Bank.  110  U.  S. 
52.  28  L.  Ed.  67;  Farmers'  Bank  v.  Hooff. 
7  Pet.  168,  8  L.  Ed.  646;  Vicksburgh,  etc., 
R.  Co.  V.  Smith,  135  U.  S.  195.  34  L.  Ed. 
95;  Dows  z:  Johnson.  110  U.  S.  223,  28 
L.  Ed.  128;  The  Steamship  Haverton,  137 
U.   S.   145,  34  L.  Ed.  603. 

Where  the  judgment  below  was  for 
$7,000,  but  it  appears  affirmatively  on  the 
face  of  the  record  that  the  dispute  was 
only  in  reference  to  an  amount  less  than 
$5,000,  this  court  has  no  jurisdiction.  Jen- 
ness V.  Citizens'  Nat.  Bank,  110  U.  S.  52, 
28  L.  Ed.  67,  citing  Gray  v.  Blanchard,  97 
U.  S.  564.  24  L.  Ed.  1108;  Tintsman  v. 
National  Bank,  100  U.  S.  6.  25  L.  Ed.  530; 
Hilton  V.  Dickinson,  108  U.  S.  165,  27  L. 
Ed.   688. 

Plaintiff  sued  in  the  district  court  of  a 
territory  for  several  items  and  recovered 
judgment  for  less  than  amount  sued  for 
but  over  $5,000  with  interest  at  six  per 
cent.  Defendant  alone  sued  out  a  writ 
of  error  from  the  supreme  court  of  the 
territory  which  disallowed  $4,880  of  the 
judgment  including  interest  at  six  per 
cent.  Plaintiff  having  appealed  to  this 
court  and  prayed  for  reinstatement  of  the 
district  court  judgment,  when  the  case 
was  reached  for  hearing  here,  assigned 
as  additirinal  error  that  the  district  court 
had  not  allowed  twenty-five  per  cent. 
instead  of  six  per  cent,  interest  which 
would  have  made  the  amount  disallowed 
exceed  $5,000.  Held,  that  as  plaintiff  had 
not  complained  of  the  district  court  judg- 
ment the  only  matter  in  dispute  was  that 
part  of  the  district  court  judgment  which 
the  territorial  supreme  court  disallowed 
and  that  being  less  than  $5,000  the  appeal 
to  this  could  not  be  maintained  under  act 
of  March  3.  1885,  23  Stat.  443.  New  Mex- 
ico V.  .Atchison,  etc..  R.  Co..  201  U.  S. 
41.  50  L.  Ed.   651. 

82.  New  Mexico  7\  Atchison,  etc.,  R. 
Co.,   201   U.   S.  41,  386.   50   L.   Ed.   65L 


APPEAL  AXD  ERROR. 


841 


general  proposition  that  no  mere  pretense  as  to  the  amount  in  dispute  will  avail 
to  create  jurisdiction."-^ 

b.  Value  of  Property. — In  General. — In  accordance  with  the  rule  stated 
above  that  the  real  amount  in  controversy  determines  the  jurisdiction  of  this 
court,  it  has  been  held,  that  if  the  title  to  the  property  claimed  or  recovered  is 
not  in  fact  in  issue,  but  only  a  part  thereof,  the  value  of  that  part  will  control.^^ 

Where  an  action  at  law  is  brought  to  recover  a  tract  of  land  part  of  a 
larger  tract,  and  it  appears  that  the  parcel  of  land  in  controversy  is  below  the 
jurisdictional  amount,  the  appeal  will  be  dismissed  for  want  of  jurisdiction  al- 
though the  value  of  the  larger  tract  may  be  above  this  amount,  because  such 
latter  parcel  of  land  was  not  actually  in  controversy.^-^ 

Where  upon  a  libel  filed  to  recover  the  value  of  a  vessel  sunk  in  a  col- 
lision and  also  of  certain  personal  effects  on  board  of  her  at  the  time,  the  total 
valuation  of  boat  and  personal  effects  is  determined  to  have  been  $6,057.  and  for 
this  amount  a  decree  is  entered  by  the  district  court,  but  on  appeal  the  circuit 
court  awards  the  sum  of  $3,028.50,  one-half  the  valuation,  this  court  has  no  ju- 
risdiction of  an  appeal  from  the  circuit  court,  because  the  matter  actually  in  dis- 
pute in  this  court  is  not  $6,057,  but  only  $3,028.50.^6 

c.  Usurious  Claims. — Where  only  that  part  of  a  claim  sued  on  which  the  court 
decides  to  be  usurious  is  in  controversy,  the  amount  in  dispute  is  only  the  usu- 
rious sum.  unaffected  by  any  contingent  loss  which  may  be  sustained  by  either 
one  of  the  parties  through  the  probative  effect  of  the  judgment,  however  certain 
it  mav  be  that  such  loss  will  occur. ^" 


83.  Schunk  f.  Moline.  etc.,  Co.,  147  U. 
S.  oOO.  37  L.  Ed.  255.  citing  Bowman  v. 
Chicago,  etc..  R.  Co.,  115  U.  S.  611,  29  L. 
Ed.  502;  Upton  v.  McLaughlin,  105  U.  S. 
640.  26  L.  Ed.  1197. 

84.  Value  of  property. — Vicksburg,  etc., 
R.  Co.  r.  Smith.  135  U.  S.  195.  34  L.  Ed. 
95;  Old  Grant  v.  McKee,  1  Pet.  248,  7 
L.   Ed.   131. 

Thus  in  Old  Grant  v.  McKee,  1  Pet. 
24S,  7  L.  Ed.  131,  it  was  held,  that  the 
court  would  not  take  jurisdiction  of  a  case 
where  the  title  to  a  piece  of  land  of  less 
Aalue  than  the  jurisdiction-^l  sum  was  di- 
rectly involved,  although  tlie  whole  prop- 
erty claimed  by  the  lessor  of  the  plain- 
tiff under  a  patent,  rnd  which  was  re- 
covered in  ejectment  in  the  court  below, 
exceeded  that  sum. 

The  value  of  the  undivided  part  in  con- 
troversy and  not  that  of  the  whole  of  the 
kind  determines  t'^e  appellate  jurisdiction 
in  a  petition.  ^TcCarthy  v.  Provost,  103 
U.  S.  673,  26  L.   Ed.  337. 

Where  a  b'll  in  equity  is  filed  by  an 
owner  rf  land  which  is  worth  more  than 
$5,000.  to  set  aside  and  cancel,  as  cre- 
ating a  cl^^ud  upon  his  title,  a  tax  deed, 
and  a  certi'icate  of  tax  sale  procured  by 
the  other  defendants,  and  the  defendant 
in  his  answer,  offers  to  waive  his  claim 
of  title  to  the  land  and  reconvey  it  to 
the  plaintiff,  if  the  plaintiff  would  pay  him 
the  sums  paid  by  him,  with  penalties  ac- 
crued thereon  and  ten  per  cent,  interest, 
and  the  circuit  court  holds  that  the  sums 
v/hich  the  plaintiff  was  in  equity  bound 
to  pay  the  defendants  amounted  to  less 
than  ,'p5  rro.  and  entered  a  final  decree  in 
favor  of  the  defend?nts  from  which  they 
appealed,    the    amour.t    in    controversy    is 


insufificient  to  support  the  appellate  ju- 
risdiction of  this  court,  and  the  appeal 
must  be  dismissed.  "Upon  the  admis- 
sions of  the  answers,  and  upon  the  claims 
made  by  the  defendants  in  the  circuit 
court,  and  renewed  in  this  court,  it  clearly 
appears  that  the  plaintiff's  title  to  the 
land  was  not  really  contested,  but  that 
the  only  matter  in  controversy  was  the 
amount  of  money  which  the  plaintiff  was 
eqritably  bound  to  pay  to  the  defend- 
ants, and  that  the  difference  between  the 
sum  which  the  circuit  court  held  him. to 
pay  and  the  highest  sum  claimed  by  the  de- 
fendants was  less  than  $5,000."  Carne  v. 
Fuss,  152  U.  S.  250.  251,  38  L.  Ed.  428, 
citing  Act  of  February  16,  1875,  c.  77.  § 
3;  18  Stat.  316;  Peyton  v.  Robertson,  9 
Wheat.  527,  6  L.  Ed.  151;  Farmers'  Bank 
r.  Hooff,  7  Pet.  168,  8  L.  Ed.  646;  Ross 
7'.  Prentiss,  3  How.  771.  11  L.  Ed.  824; 
Tintsman  f.  National  Bank,  100  U.  S.  6. 
25    L.    Ed.    530. 

85.  Vicksburg,  etc..  R.  Co.  v.  Smith,  135 
U.  S.  195.  34  L.  Ed.  95,  citing  Elgin  v. 
Marshall,  106  U.  S.  578,  27  L.  Ed.  249; 
Opelika  City  v.  Daniel,  109  U.  S.  108,  27 
L.  Ed.  873;  Bruce  V.  Manchester,  etc., 
R.  Co.,  117  U.  S.  514.  29  L.  Ed.  990;  Gib- 
son V.  Shufeldt,  122  U.  S.  27,  30  L.  Ed. 
1083. 

86.  Steamship  Haverton.  137  U.  S.  145, 
34  L.  Ed.  603,  citing  Dows  V.  Johnson, 
110  U.  S.  223.  28  L.  Ed.  128,  and  distin- 
guishing The  Alaska,  130  U.  8.  201.  32  L. 
Ed.    923. 

87.  Usurious  claims. — New  England 
Mortgage  Securitv  Co.  r.  Gay,  145  U.  S. 
123.    36    L.    Ed.    646. 

In  New  England  Mortgage  Securitv  Co. 
V.    Gay,    145    U.    S.    123,    36    L.    Ed.    G46,    it 


842 


APPEAL  AND  ERROR. 


d.  Settlement  of  Decedents'  Estates'. — Where  it  appears  upon  an  appeal  in 
equity  to  compel  the  defendant  to  turn  over  to  the  executor  the  estate  of  the  de- 
ceased, that  the  total  amount  involved  is  only  $5,377.83,  and  the  interest  of  the 
plaintiff  in  that  sum  is,  under  the  will,  only  one  sixth  thereof,  or  $896,303^,  this 
court  has  no  jurisdiction  of  the  appeal. ^'^ 

e.  Collateral  Effect  of  Judgment. — It  has  been  uniformly  held,  in  actions  at 
law,  where  the  plaintiff's  claim  is  for  money,  that  the  amount  in  controversy  is 
determined  by  that  particular  demand  which  the  plaintiff  sues  for,  and  not  by 
any  contingent  loss  which  either  party  may  sustain  through  the  indirect  or  pro- 
bative effect  of  the  judgment,  however  certain  it  may  be  that  such  loss  will  oc- 
cur.^^  Or,  as  the  rule  has  been  otherwise  stated,  it  is  well  settled  that  our  ap- 
pellate jurisdiction,  when  dependent  upon  the  sum  or  value  really  in  dispute  be- 
tween the  parties,  is  to  be  tested  without  regard  to  the  collateral  effect  of  the 
judgment  in  another  suit  between  the  same  or  other  parties.  No  matter  that  it 
may  appear  that  the  judgment  would  be  conclusive  in  a  subsequent  action,  it  is 
the  direct  effect  of  the  judgment  that  can  alone  be  considered. ^"^ 


appeared  that,  while  the  plaintiff  sued 
to  recover  $8,500  and  interest,  he  actu- 
ally recovered  $6,800  and  interest  and  at- 
torney fees,  amounting  in  all  to  $9,725.66, 
so  that  the  amount  actually  in  dispute 
between  the  parties  in  this  court  is  the 
difference  between  the  amount  claimed 
and  the  amount  of  the  verdict.  Comput- 
ing interest  at  eight  per  cent,  upon  the 
entire  amount  of  the  notes  and  adding 
an  attorney  fee  of  ten  per  cent.,  the 
limount  due  according  to  the  plaintiff's 
theory  was  approximately  $12,155,  or 
$2,429.34  more  than  the  amount  recovered. 
This  is  the  proper  method  of  ascertain- 
ing the  amount  in  dispute  in  this  court. 
Tintsman  v.  National  Bank,  100  U.  S.  6, 
25  L.  Ed.  530;  Jenness  v.  Citizens'  Nat. 
Bank,  110  U.  S.  52.  27  L.  Ed.  67;  Wa- 
bash, etc.,  R.  Co.  V.  Knox,  110  U.  S.  304, 
27  L.  Ed.  155;  Hilton  v.  Dickinson,  108 
U.   S.    165,  27   L.   Ed.   688. 

88.  Settlement  of  decedent's  estates. — 
Miller  v.  Clark,  138  U.  vS.  22:i,  34  L.  Ed. 
966;  Stearns  v.  Todd.  204  U.  S.  669.  51 
L.    Ed.    672. 

On  the  other  hand,  where  judgment  is 
sought  against  a  bank  for  the  sum  of  $65,- 
000  and  the  defendant  disputes  the  whole 
of  that  claim,  the  ?:'.m  sued  for,  the  entire 
claim  having  been  rejected,  is  the  value 
of  the  matter  in  dispute  here;  and  our 
jurisdiction  to  determine  that  dispute  can- 
not depend  upon  an  inquiry  as  to  whether 
the  estate  of  "  the  deceased,  when  fully 
distributed,  may  or  may  not  yield  to  the 
plaintiff,  if  successful  here,  something  in 
exce.^s  of  $5,000.  "Such  an  inquiry  is  as 
inadmissible,  on  this  writ  of  error,  as  it 
would  be  if  the  judgment  had  established 
the  claim  of  the  plaintiff  against  Green's 
administrator  for  the  full  amount,  and  a 
writ  of  error  had  been  prosecuted  by 
him  to  reverse  that  judgment.  The  case 
is  different  from  Miller  v.  Clark,  138  U. 
S.  223.  34  L.  Ed.  966,  decided  at  the  pres- 
ent term,  where  the  appeal  was  dismissed, 
because  it  appeared,  affirmatively  that  the 
appellant,    who    was    the    plaintiff    below. 


did  not  claim,  and  could  not  possibly  re- 
cover for  himself,  a  sum  in  excess  of 
$5,000."  Clark  r.  Bever,  139  U.  S.  96,  35 
L.    Ed.    88. 

89.  Collateral  effect  of  judgment. — New 
PIngland  Mortgage  Security  Co.  v.  Gay, 
14.%  U.  S.  123,  36  L.  Ed.  646;  Elgin  v. 
Marshall.  106  U.  S.  578.  27  L.  Ed.  249; 
Gibson  v.  Shufeldt,  122  U.  S.  27,  30  L.  Ed. 
1083;  Clay  Center  ?'.  Fafmers'  Loan  & 
Trust  Co..  145  U.  S.  224,  225,  36  L.  Ed. 
685;  Washington,  etc..  R.  Co.  v.  Dis- 
trict of  Columbia.  146  U.  S.  227,  36  L.  Ed. 
951;  Trask  v.  Wanamaker.  147  U.  S.  149, 
37  L.  Ed.  118;  Hollander  z:  Fechheimer. 
162  U.  S.  326,  328,  40  L.  Ed.  985;  The 
Jessie  Williamson,  Jr.,  108  U.  S.  305,  310, 
27  L.  Ed.  730;  Ross  v.  Prentiss.  3  How. 
771,  11  L.  Ed.  824. 

90.  New  England  Mortgage  Security  Co. 
V.  Gray,  145  U.  S.  123.  36  L.  Ed.  646;  Clay 
Center  v.  Farmers'  Loan  and  Trust  Co., 
145  U.  S.  224,  36  L.  Ed.  685;  Gibson  v.  Shu- 
feldt, 122  U.  S.  27,  30  L.  Ed.  1083;  Wash- 
ington, etc..  R.  Co.  V.  District  of  Colum- 
bia, 146  U.  S.  227.  231,  36  L.  Ed.  951;  El- 
gin V.  Marshall,  106  U.  S.  578,  27  L.  Ed. 
249;  Hilton  v.  Dickinson,  108  U.  S.  165, 
27  L.  Ed.  688;  The  Jessie  Williamson, 
Jr..  108  U.  S.  305.  27  L.  Ed.  730;  New 
Jersey  Zinc  Co.  v.  Trotter,  108  U.  S.  564, 
27  L.  Ed.  828;  Opelika  City  v.  Daniel, 
109  U.  S.  108,  27  L.  Ed.  873;  Wabash, 
etc..  Railroad  v.  Knox.  110  U.  S.  304.  27 
L.  Ed.  155;  Bradstreet  Co.  v.  Higgins, 
112  U.  S.  227.  28  L.  Ed.  715;  Bruce  v. 
Manchester,  etc..  R.  Co..  117  U.  S.  514, 
29  L.  Ed.  990;  The  Sydney,  139  U.  S.  331, 
35  L.   Ed.  117. 

Sections  691  and  692,  Rev.  Stat.,  which 
as  amended  by  §  3  of  the  act  of  Feb.  16. 
1875.  c.  77,  limit  the  jurisdiction  of  this 
court,  on  writs  of  error  and  appeal,  to 
review  final  judgments  in  civil  actions, 
and  final  decrees  in  cases  of  equity  and  of 
admiralty  and  maritime  jurisdiction,  to 
those  where  the  matter  in  dispute,  ex- 
clusive of  costs,  exceeds  the  sum  or  value 
of    $5,000.    have    reference    to    the    matter 


APPEAL  AND  ERROR. 


843 


Modification  of  General  Rules — Railroad  Rates. — But  a  very  important 
modification  of  these  rules  was  made  in  a  suit  brought  for  the  dissolution  of  an 
association  of  railroad  companies,  and  to  enjoin  them  from  further  conspiring  to- 


which  is  directly  in  dispute,  in  the  par- 
ticular cause  in  which  the  judgment  or 
decrees  ought  to  be  reviewed,  has  been 
rendered,  and  do  not  permit  us,  for  the 
purpose  of  determining  its  sum  or  value, 
to  estimate  its  collateral  effect  in  a  sub- 
sequent suit  between  the  same  or  other 
parties.  Elgin  v.  Marshall,  106  U.  S.  578, 
27  L.  Ed.  349,  reaffirmed  in  Plainview 
V.  Marshall,  106  U.  S.  583,  27  L.  Ed.  250, 
citing  Grant  v.  M'Kee,  1  Pet.  248,  7  L.  Ed. 
131;  Stinson  v.  Dousman,  20  How.  461.  15 
L.  Ed.  966;  Gray  v.  Blanchard.  97  U.  S.  564, 
24  L.  Ed.  1108;  Tintsman  v.  National 
Bank,  100  U.  S.  6,  25  L.  Ed.  530;  Parker 
V.    Morrill.   106   U.   S.   1,   27  L.    Ed.   72. 

If  jurisdiction  is  invoked  because  of  the 
collateral  effect  a  judgment  may  have  in 
another  action,  it  must  appear  that  the 
judgment  conclusively  settles  the  rights 
of  the  parties  in  a  matter  actually  in  dis- 
pute, the  sum  or  value  of  which  exceeds 
the  required  amount.  Troy  f.  Evans,  97 
U.  S.  1,  3,  24  L.  Ed.  941. 

Reason  of  rule. — "The  language  of  the 
rule  limits,  by  its  own  force,  the  required 
valuation  to  the  matter  in  dispute,  in  the 
particular  action  or  suit  in  which  the  ju- 
risdiction is  invoked;  and  it  plainly  ex- 
cludes, by  a  necessary  implication,  any 
estimate  of  value  as  to  any  matter  not 
actually  the  subject  of  that  litigation.  It 
would  be,  clearly,  a  violation  of  the  rule, 
to  add  to  the  value  of  the  matter  deter- 
mined any  estimate  in  money,  by  reason 
of  the  probative  force  of  the  judgment 
itself  in  some  subsequent  proceeding. 
That  would  often  depend  upon  contin- 
gencies, and  might  be  mere  conjecture  and 
speculation,  while  the  statute  evidently  con- 
templated an  actual  and  present  value 
in  money,  determined  by  a  mere  inspec- 
tion of  the  record.  The  value  of  the  judg- 
ment, as  an  estoppel,  depends  upon 
whether  it  could  be  used  in  evidence  in 
a  subsequent  action  between  the  same 
parties;  and  yet,  before  the  principal  sum, 
iti  the  present  case,  or  any  future  install- 
ments of  interest  shall  have  become  due. 
the  bonds  may  have  been  transferred  to  a 
stranger,  for  or  against  whom  the  pres- 
ent judgment  would  not  be  evidence.  And 
in  every  such  case  it  would  arise  as  a  ju- 
risdictional question,  not  how  much  is  the 
value  of  the  matter  finally  determined 
between  the  parties  to  the  suit,  but  also, 
whether  and  in  what  circumstances,  and 
to  what  extent,  the  judgment  will  con- 
clude other  controversies  thereafter  to 
arise  between  them,  and  thus  require  the 
trial  and  adjudication  of  issuable  matter, 
both  of  law  and  fact,  entirely  extraneous 
to  the  actual  litigation,  and  altogether  in 
anticipation  of  further  controversies,  that 
mav  never  arise.  It  is  not  the  actual  value 


of  the  judgment  sought  to  be  re- 
viewed which  confers  jurisdiction,  other- 
wise it  might  be  required  to  hear 
evidence  that  it  could  not  be  collected;  but 
it  is  the  nominal  or  apparent  sum  or  value 
of  the  subject  matter  of  the  judgment. 
It  is  impossible  to  foresee  into  what  mazes 
of  speculation  and  conjecture  we  may 
not  be  led  by  a  departure  from  the  sim- 
plicity of  the  statutory  provision."  Elgin 
r.  Marshall,  106  U.  S.  578.  580,  27  L.  Ed. 
249;  reaffirmed  in  Plainview  v.  Marshall, 
106    U.    S.    583,   27    L.    Ed.    250. 

Illustrative  cases. — A  promise  by  a 
third  person  to  grant  to  a  litigant  certain 
lands  or  make  particular  donations  in 
case  of  a  successful  prosecution  of  a  suit, 
will  not  confer  jurisdiction  on  this  court 
to  review  the  judgment,  if  without  such 
promise  or  conditional  donation  the  court 
would  not  have  the  requisite  jurisdiction. 
Smith  V.  Adams,  130  U.  S.  167,  176,  32 
L.   Ed.  895. 

Where  a  suit  was  for  an  account  inyolv- 
ing  a  very  large  sum  of  money,  the  claim- 
ant claiming  sums  greatly  exceeding 
$2,000,  and  the  defendant  insists  on  an 
award  as  a  bar  to  the  whole  claim,  it  was 
held  that  the  amount  in  controversy  was 
sufficient  to  justify  an  appeal  to  this  court, 
and  it  was  no  answer  to  say  that  if  this 
suit  should  be  defeated  the  claimant  may 
have  some  other  title  which  will  not  be 
worth  $2,000  less  than  the  value  of  what 
he  now  claims.  McCormick  v.  Gray,  13 
How.    26,    39,    14    L.    Ed.    36. 

Usurious  claims.— In  New  England 
Mortgage  Co.  v.  Gay,  145  U.  S.  123,  36  L. 
Ed.  646,  which  was  an  action  in  assumpsit 
upon  promissory  notes,  there  had  been  a 
finding  by  a  jury  that  the  transaction  was 
usurious.  The  amount  involved  in  the 
particular  suit  was  less  than  $5,000,  but  the 
effect  of  the  judgment  under  the  laws  of 
Georgia  was  to  invalidate  a  mortgage 
given  as  security  upon  property  worth 
over  $200,000.  It  was  held  that,  notwith- 
standing such  indirect  effect,  this  court 
had  no  jurisdiction,  the  amount  directly 
in   dispute   being   only    the   usurious    sum. 

Suit  to  collect  interest  on  railroad 
bonds. — A  good  application  of  this  doc- 
trine will  be  found  in  Bruce  v.  Manches- 
ter, etc.,  R.  Co.,  117  U.  S.  514,  515.  29  L. 
Ed.  990.  In  that  case  two  bond  holders  of 
a  certain  railroad  brought  a  suit  to  col- 
lect interest  due  on  certain  bonds  of  the 
railroad  by  the  foreclosure  of  a  mortgage 
made  to  trustees  to  secure  a  series  of 
bonds.  There  were  other  parties,  both 
plaintiff  and  defendant,  when  the  suit  was 
begun,  but  a  discontinuance  was  entered 
before  the  decree  as  to  all  but  two.  These 
two  complainants  although  in  no  way 
authorized    to    represent    the    other    bond 


844 


APPEAL  AXD  ERROR. 


gether  to  control  rates,  etc.  It  was  claimed  by  way  of  defense  that  without  such 
an  agreement  the  competition  between  them  for  traffic  would  be  so  severe  as  to 
cause   great   losses   to   each  defendant   and   possibly   ruin   the   companies   repre- 


holders,  sued  for  themselves  and  all  others 
in  like  situation  who  might  join  with 
them,  but  no  one  saw  fit  to  join.  The 
record  shows  that  the  two  parties  to  the 
suit  owned  bonds  for  $7500,  on  which  in- 
terest was  past  due  and  unpaid  to  the 
amount  of  not  more  than  $3400.  As  the 
others  would  not  join  these  two  were  al- 
lowed to  proceed  alone  and  the  payment 
to  them  of  their  interest  would  have  been 
a  bar  to  the  further  prosecution  of  the 
suit.  "So,  if  a  decree  had  been  rendered 
in  their  favor  without  others  joining  in  the 
suit,  either  by  petition  or  by  proof  before 
a  master,  or  otherwise,  it  would  have  been 
satisfied  by  the  payment  of  the  amount 
found  due  to  them,  and  no  further  pro- 
ceedings could  thereafter  be  had.  It  is 
true,  if  such  a  payment  should  not  be 
made,  and  a  resort  to  a  sale  of  the  mort- 
gaged property  should  be  necessary  to 
collect  what  was  due  to  them,  the  other 
bondholders  would  have  an  interest  in 
the  proceeds  and  could  be  called  in  be- 
fore a  master  for  that  purpose;  but  that 
would  be  only  one  of  the  collateral  or  in- 
direct effects  of  the  decree  not  to  be  con- 
sidered in  determining  our  jurisdiction. 
*  *  *  It  follows  that  the  matter  in  dis- 
pute here  is  less  than  our  jurisdictional 
limit." 

Suit  to  enjoin  collection  of  tax. — This 
rule  has  been  applied  to  a  bill  to  restrain 
the  collection  of  the  specific  tax  levied 
under  a  general  and  continuing  law.  The 
matter  in  dispute  in  its  relation  to  juris- 
diction is  the  particular  taxes  attacked, 
and  unaccrued  or  unspecified  taxes  can- 
not be  included,  upon  conjecture,  to  make 
up  the  requisite  amount.  Washington, 
etc.,  R.  Co.  V.  District  of  Columbia,  146 
U.  S.  237,  36  L.  Ed.  951. 

Effect  of  judgment  of  ouster. — The  ef- 
fect of  a  judgment  of  ouster  from  oflfice 
in  a  suit  to  recover  emoluments  for  the 
past  is  collateral,  even  though  the  judg- 
ment might  be  conclusive  in  such  sub- 
sequent action.  Albright  v.  New  Mex- 
ico. ?00  U.  S.  9.  50  L.  Ed.  346,  citing  New 
Kngland  Mortgage  Co.  -u.  Gay,  145  U.  S. 
133,  36  L.  Ed.  646;  Washington,  etc.,  R. 
Co.  V.  District  of  Columbia,  146  U.  S. 
227,   36   L.   Ed.   951. 

Where  entire  title  to  property  in- 
cidentally involved. — In  Farmers'  Bank  v. 
Hooff,  7  Pet.  168,  8  L.  Ed.  646,  a  bill  was 
filed  for  the  purpose  of  foreclosing  a 
deed  of  trust  given  to  secure  a  sum  of 
money  less  than  $1,000.  It  appeared 
that  the  property  covered  by  the  deed 
exceeded  that  sum  in  value,  but  the 
court  held  the  real  matter  in  controversy 
to  be  the  debt  claimed  in  the  bill,  "and, 
though  the  title  of  the  lot  may  be  in- 
quired into  incidentally,  it  does  not  con- 
stitute the  object  of  the  suit." 


A  similar  ruling  was  made  in  Ross  v. 
Prentiss,  3  How.  771,  11  L.  Ed.  824, 
where  a  bill  was  filed  to  enjoin  the  mar- 
shal from  levying  an  execution  of  less 
than  $2,000  upon  certain  property,  the 
value  of  which  was  more  than  $2,000.  In 
this  case  as  in  the  other,  the  argument 
was  made  that  the  defendant  might  lose 
the  whole  benefit  of  his  property  by  the 
forced  sale  under  the  execution,  but  the 
court  held  that  it  did  not  depend  upon 
the  amount  of  any  contingent  loss,  and 
dismissed  the   bill. 

Ejectment  to  recover  portion  of  land. — 
In  Grant  v.  McKee,  1  Pet.  248,  7  L.  Ed. 
131.  it  refused  to  take  jurisdiction,  be- 
cause the  value  of  the  premises,  the  title 
to  which  was  involved  in  that  action,  was 
less  than  the  jurisdictional  limit,  although 
they  were  part  of  a  larger  tract,  held 
under  one  title,  on  which  the  recovery 
in  ejectment  had  been  obtained  against 
several  tenants,  whose  rights  all  depended 
on   the    same    questions. 

Action  to  recover  on  municipal  secu- 
rities.— In  Elgin  V.  Marshall,  106  U.  S. 
578,  27  L.  Ed.  249,  an  action  was  brought 
against  a  town  to  recover  the  amount 
due  upon  certain  coupons  or  interest  war- 
rants, detached  from  municipal  bonds,  al- 
leged to  have  been  issued  by  it  in  aid  of 
a  railroad  company.  The  defense  set  up 
was  that  the  bonds  and  coupons  were 
void,  the  statute  under  the  assumed  au- 
thority of  which  they  had  been  issued,  be- 
ing, as  was  alleged,  unconstitutional.  Judg- 
ment was  given  for  less  than  $5,000,  but 
the  bonds  were  for  a  larger  sum  than 
$5,000.  This  court  nevertheless  dismissed 
the  writ  of  error  for  want  of  jurisdiction 
over  the  contention  of  counsel  that  though 
the  judgment  recovered  was  less  than 
$5,000  yet  the  value  of  the  matter  in  dis- 
pute was  in  excess  of  that  sum.  because 
the  defendants  in  error  being  the  holders 
and  owners  of  the  bonds,  to  the  amount 
of  $7,500,  have  obtained,  by  the  present 
judgment,  an  adjudication,  conclusive  upon 
the  plaintiff  in  error,  as  an  estoppel,  of 
its  liability  to  pay  the  entire  amount  of 
the  principal  sum.  "Section  691  and  692, 
Rev.  Stat.,  which,  as  amended  by  §  3  of 
the  act  of  Feb.  16.  1875,  c.  77,  limit  the 
jurisdiction  of  this  court,  on  writs  of  er- 
ror and  appeal,  to  review  final  judgments 
in  civil  actions,  and  final  decrees  in  cases 
of  equity  and  of  admiralty  and  maritime 
jurisdiction,  to  those  where  the  matter 
in  dispute,  exclusive  of  costs,  exceeds 
the  sum  or  value  of  $5,000,  have  reference 
to  the  matter  which  is  directly  in  dispute, 
in  the  particular  cause  in  which  the  judg- 
ment or  decrees  ought  to  be  reviewed, 
has  been  rendered,  and  do  not  permit  us, 
for  the  purpose  of  determining  its  sum 
or   value,   to    estimate   its   collateral   effect 


APPEAL  AXD  ERROR. 


845 


sented  in  the  agreement.     Upon  these  facts  appearing  in  the  record  and  a  stipu- 
lation between  thd  parties,  it  was  held,  that  it  sufficiently  appeared  that  the  right 


in  a  subsequent  suit  between  the  same  or 
'>ther   parties." 

Effect  of  refusal  to  give  instructions. — 
The  declaration  was  for  a  balance  of  ac- 
counts of  nine  hundred  and  eighty-eight 
dollars  and  ninety-four  cents,  and  the  ad 
damnum  was  laid  at  two  thousand  dollars. 
The  bill  Qf  exceptions  showed  that  the 
United  States  claimed  interest  on  the  bal- 
ance due  them.  Under  those  circum- 
stances it  is  no  objection  to  the  jurisdic- 
tion that  the  bill  of  exceptions  was  taken 
by  the  counsel  for  the  United  States,  to 
a  refusal  of  the  court  to  grant  an  instruc- 
tion asked  by  the  United  States,  which 
was  applicable  to  certain  items  of  credit 
only  claimed  by  the  defendants,  which 
would  reduce  the  debt  below  the  sum  of 
one  thousand  dollars.  The  court  cannot 
judicially  know  what  influence  that  re- 
fusal had  upon  the  verdict.  United  States 
r.   McDaniel,   6    Pet.  634,   8   L.    Ed.   527. 

Suits  in  admiralty. — When  the  libelant 
is  awarded  a  decree  for  $8252.47  against 
two  vessels  by  the  circuit  court,  and  both 
boats  are  condemned  therefor,  and  one  of 
the  boats  is  sold  for  $2100  and  the  pro- 
ceeds are  paid  into  court,  and  a  stipula- 
tion for  value  as  to  the  other  boat  in  the 
amount  of  $1000  is  filed  by  consent,  but 
the  owner  of  both  the  boats,  appeals  to 
this  court,  it  was  held  that,  in  as  much 
as  the  aggregate  value  of  the  two  boats 
does  not  exceed  $5000  and  there  is  no  de- 
cree against  any  person  in  personam,  this 
court  has  no  jurisdiction.  The  Sydney, 
139  U.  S.  331,  35  L.  Ed.  177,  following 
Elgin  V.  Marshall,  106  U.  S.  578,  27  L. 
Ed.  249;  The  Jesse  Williamson,  Jr.,  108 
U.   S.    305.   27    L.    Ed.    730. 

"The  principle  involved  in  Elgin  v.  Mar- 
shall. 106  U.  S.  578,  27  L.  Ed.  249,  was,  on 
the  authority  of  that  case,  applied  by  this 
c^-irt  in  ^n  admiralty  cause.  The  Jessie 
Williamson,  Jr.,  108  U.  S.  305.  27  L.  Ed. 
730,  the  facts  in  which  were  substantially 
Hke  those  in  the  present  case.  In  the  case 
of  The  Jessie  Williamson,  Jr.,  the  counsel 
for  the  appellant  invoked  the  authority  of 
The  Enterprise,  2  Curtis  317.  as  taking 
the  case  out  of  the  rule  laid  down  in  El- 
gin V.  Marshall.  In  The  Jessie  William- 
son, Jr.,  the  libelant  in  a  suit  in  rem,  in 
admiralty,  against  a  vessel,  claimed  in  his 
libel  to  recover  $27,000  for  damages  grow- 
ing out  of  a  collision.  A  stipulation  in  the 
sum  of  $2,100,  as  the  appraised  value  of 
the  vessel,  was  given  in  the  district  court. 
The  libel  having  been,  on  appeal,  dis- 
missed by  the  circuit  court,  the  libelant 
appealed  to  this  court,  which  held  that 
the  matter  in  dispute  did  not  exceed  the 
sum  or  value  of  $5,000,  exclusive  of  costs, 
and  that  it  had  no  jurisdiction  of  the  ap- 
peal. In  The  Jessie  Williamson.  Jr.,  it 
w.as  said  by  this  court,  that,  although  the 


libelant  might  recover  $27,000  against  the 
vessel,  it  was  plain  that  he  could  not  re- 
cover on  the  stipulation  for  value,  which 
represented  her  more  than  $2,100,  and 
could  not  recover  against  the  sureties  in 
the  stipulation  more  than  that  amount; 
and  that,  the  suit  being  one  in  rem  only, 
the  value  of  the  vessel,  represented  by 
the  stipulation,  was  all  that  was  in  dis- 
pute, because  that  was  all  that  the  libel- 
ant could  obtain  or  the  stipulators  lose 
in  the  suit.  It  was  further  shown,  in  the 
opinion  in  The  Jessie  Williamson,  Jr., 
that  the  facts  in  that  case  differed  from 
the  facts  in  the  case  of  The  Enterprise; 
so  that,  whatever  was  said  by  this  court 
in  apparent  recognition  of  the  propriety 
of  the  decision  in  the  case  of  The  Enter- 
prise must  be  regarded  as  obiter  dictum, 
and  the  views  set  forth  in  the  opinion  in 
the  last-mentioned  case,  so  far  as  they 
conflict  with  the  actual  rulings  of  this 
court  in  the  cases  of  Elgin  v.  Marshall 
and  The  Jessie  Williamson,  Jr.,  must  be 
regarded  as  not  having  had  the  affirma- 
tive approval  of  this  court."  The  Sydney, 
139    U.    S.   ?^^,   335,   35    L.    Ed.    177. 

Effect  of  decision  on  future  taxation 

"Treating  this  bill  as  setting  up  a  case 
arising  under  the  constitution  or  laws  of 
the  United  States  on  the  ground  that  the 
laws  of  Indiana  authorized  the  taxation 
in  question,  and  were  therefore  void  be- 
cause patent  rights  granted  by  the  United 
States  could  not  be  subiected  to  state  tax- 
ation, or  because  the  obligation  of  the  con- 
tract existing  between  the  inventor  and  the 
general  public  would  be  thereby  impaired, 
or  for  any  other  reason,  the  difficulty  is  that 
the  pecuniary  limitation  of  over  two  thou- 
sand dollars  applied,  and  the  taxes  in 
question  did  not  reach  that  amount.  And 
the  effect  on  future  taxation  of  a  decision 
that  the  particular  taxation  is  invalid 
cannot  be  availed  of  to  add  to  the  sum 
or  value  of  the  matter  in  dispute.  New 
England  Mortgage  Co.  v.  Gay.  145  U.  S. 
123.  36  L.  Ed.  646;  Clay  Center  v.  Farm- 
ers Loan  &  Trust  Co..  145  U.  S.  224,  36 
L.  Ed.  685;  Citizens'  Bank  v.  Cannon,  164 
U.  S.  319.  41  L.  Ed.  451."  Holt  V.  In- 
diana Mfg.  Co.,  176  U.  S.  68,  72,  44  L.  Ed. 
374. 

Where  decision  will  affect  other  persons 
and  interests. — A  writ  of  error  will  not 
lie  to  the  supreme  court  of  the  District 
of  Columbia,  to  review  an  order  denying 
mandamus  to  the  postmaster  general 
seeking  to  compel  him  to  readjust  the 
salary  of  a  postmaster  when  the  additional 
amount  to  become  due  will  be  less  than 
the  jurisdictional  amount,  although  it  ift 
stated  that  the  questions  of  law  involved 
"concern  the  interest  of  more  than  one 
thousand  persons,  ex-postmasters,  who  re- 
side   in    many    different    states    and    terri- 


846 


APPEAL  AND  ERROR. 


involved  is  a  right  which  is  of  a  requisite  pecuniary  value.     Because  a  reduction 
of  the  rates  by  only  the  fractional  part  of  one  per  centum  would,  in  the  aggre- 


tories,  and  are  in  like  case  with  herself 
and  who  have  presented  claims  for  like 
relief  before  the  postmaster  general,  and 
that  all  of  such  claims  amount  to  more 
than  one  hundred  thousand  dollars;"  and 
praying  that  the  writ  be  allowed  "under 
§  706  of  the  Revised  Statutes."  Trask  v. 
Wanamaker,  147  U.  S.  149,  37  L.  Ed.  118, 
distinguishing  United  States  v.  Vilas,  124 
U.    S.   86.   31    L.    Ed.   329. 

In  a  suit  to  recover  two  installments 
of  hydrant  rental  for  $1,850  each,  the  bill 
prayed  that  the  defendant  be  decreed  to 
pay  directly  to  it  so  much  of  the  hydrant 
rental  as  might  be  necessary  to  pay  the 
interest  on  the  bonds  issued  by  the  water 
company  for  the  purpose  of  borrowing 
money  to  complete  the  construction  of  its 
works.  The  decree  sustained  the  contract 
and  awarded  recovery  to  the  amount  of 
$4,042.  The  court,  in  dismissing  the  ap- 
peal for  want  of  jurisdiction,  said:  "The 
value  of  the  matter  in  dispute  was  the 
accrued  rental  and  interest,  and  although 
the  determination  that  such  rental  was 
due  and  should  be  paid  to  the  trustee  in- 
volved the  existence  and  validity  of  the 
contract,  yet  causes  of  action  for  hydrant 
rental  which  had  not  accrued  but  might 
subsequently  accrue  cannot  be  availed  of 
to  make  out  jurisdiction  of  the  case  by 
this  court  upon  appeal.  New  England 
Mortgage  Security  Co.  ?;.  Gay,  145  U.  S. 
123,  36  L.  Ed.  646."  Clay  Center  v. 
Farmers  Loan  &  Trust  Co.,  145  U.  S.  224, 
36  L.   Ed.   685. 

Removal  of  county  seat. — The  mere  fact 
that  the  county  may  acquire  or  lose  a 
parcel  of  land  in  a  certain  locality,  which 
exceeded  in  value  $5,000,  according  as  the 
county  seat  is  kept  at  or  removed  from 
the  place  designated  as  county  seat  by 
the  election,  the  validity  of  which  is  con- 
tested, is  not  sufficient  to  give  this  court 
jurisdiction.  "The  acquisition  or  loss  of 
the  land  in  question  is  not  a  necessary 
consequence  of  the  election  for  the  county 
seat,  such  result  not  being  created  by  law, 
but  by  a  mere  accident  arising  from  a 
voluntary  gift  by  Aberdeen,  made  con- 
tingent upon  the  removal  of  the  county 
seat  to  that  place  and  its  continuance 
there."  Smith  v.  Adams,  130  U.  S.  167, 
176,   32    L.    Ed.   895. 

Case  reconciled. — Stinson  v.  Dousman, 
20  How.  461,  15  L.  Ed.  966,  was  an  action 
at  law  for  the  recovery  of  rent,  where 
the  claim  and  judgment  against  the  de- 
fendant below  were  less  than  the  amount 
required  to  give  this  court  jurisdiction  on 
a  writ  of  error;  but  in  giving  judgment 
for  the  plaintifif  below,  for  any  sum  at  all, 
the  court  necessarily  passed  upon  a  de- 
fense of  the  defendant,  set  up  by  way  of 
answer  in  the  nature  of  a  counterclaim, 
insisting  upon  an  equitable  right  to  a 
conveyance    of   the '  land,   out   of   which   it 


was  alleged  the  rent  issued,  and  the  value 
of  which  was  in  excess  of  the  limit  re- 
quired for  the  jurisdiction  of  the  court. 
The  efifect  of  the  judgment  was  to  adjust 
the  legal  and  equitable  claims  of  the  par- 
ties to  the  subject  of  the  suit,  which  was, 
not  merely  the  amount  of  the  rent 
claimed,  but  the  title  of  the  respective  par- 
ties to  the  land.  On  that  ground  alone 
the  jurisdiction  of  the  court  was  upheld. 
Cited  and  reconciled  with  the  above  rule 
in  Elgin  v.  Marshall,  106  U.  S.  578,  581, 
27  L.  Ed.  249;  New  England  Mortgage 
Co.  V.  Gay,  145  U.  S.  123,  131,  36  L.  Ed. 
646. 

Where  judgment  will  operate  an  estop- 
pel.— Although  the  question  actually  liti- 
gated below  relates  to  the  title  of  the 
parties  to  the  land,  and  the  verdict  will 
be  conclusive  on  that  question  as  an  es- 
toppel in  some  other  case,  yet  .  for  the 
purpose  of  estimating  the  value  on  which 
our  jurisdiction  depends,  reference  can 
only  be  had  to  the  matter  actually  in  dis- 
pute in  the  particular  cause  in  which  the 
judgment  to  be  reviewed  was  rendered, 
and  this  court  is  not  permitted  to  con- 
sider the  collateral  effect  of  the  judgment 
in  another  suit  between  the  same  or  other 
parties.  It  is  the  money  value  of  wlvit 
has  been  actually  adjudged  in  the  cause 
that  is  to  be  taken  into  the  account,  not 
the  probative  force  of  the  judgment  in 
some  other  suit.  New  Jersey  Zinc  Co.  v. 
Trotter,  108  U.  S.  564.  27  L.  Ed.  828.  cit- 
ing Hilton  V.  Dickinson,  108  U.  S.  165,  27 
L.  Ed.  688;  Elgin  v.  Marshall,  106  U.  S. 
578,    27    L.    Ed.    249. 

Conclusiveness  of  judgment  in  another 
proceeding. — In  Troy  v.  Evans,  97  U.  S. 
1,  24  L.  Ed.  941,  action  was  brought  to 
recover  certain  installments  upon  bonds, 
the  aggregate  of  which  bonds  exceeded 
$5,000,  but  the  judgment  was  for  less.  The 
case  was  dismissed,  although  it  appeared 
that  the  judgment  would  be  conclusive  in 
another  action  upon  future  installments 
upon   the  same   bonds. 

A  like  ruling  was  made  in  Elgin  v.  Mar- 
shall, 106  U.  S.  578.  27  L.  Ed.  249,  where 
a  judgment  was  rendered  for  $1,660.75, 
against  a  town,  on  interest  coupons  de- 
tached from  bonds  which  it  had  issued 
under  a  statute  claimed  to  be  uncon- 
stitutional. The  case  was  dismissed  in  an 
elaborate  opinion  by  Mr.  Justice  Mat- 
thews, although  it  appeared  that  the  judg- 
ment miglit  be  conclusive  as  an  estoppel 
in  any  subsequent  action  upon  other 
coupons,  or  upon  the  bonds  themselves. 

New  Jersey  Zinc  Co.  v.  Trotter,  108  U. 
S.  564,  27  L.  Ed.  828,  was  an  action  ol 
trespass,  the  declaration  in  which  there 
were  three  counts:  Two  quare  clausum 
fregit,  joined  with  one  de  bonis  aspor- 
tatis.     The  plea  was  not  guilty.     No  other 


APPEAL  AND  ERROR. 


847 


i^ate,  soon  annjunt  to  more  than  the  jurisdictional  requirement.^ ^  In  general 
terms,  the  appellate  jurisdiction  may  be  sustained  where  the  value  of  the  right 
in  controversy  exceeds  the  jurisdictional  amount,  although  such  value  is  made  up 
in  part  of  the  future  exercise  of  the  right,  when  the  continuance  of  the  right  is 
fixed  and  the  value  thereof  is  certainly  ascertainable.^^ 

f.  Where  There  Is  a  Valid  Defense  to  the  Action. — The  fact  of  a  valid  defense 
to  a  cause  of  action,  although  apparent  on  the  face  of  the  petition,  does  not  di- 
minish the  amount  that  is  claimed,  nor  determine  what  is  the  matter  in  dispute; 
for  who  can  say  in  advance  that  that  defense  will  be  presented  by  the  defendant,  or', 
if  presented,  sustained  by  the  court?  We  do  not  mean  that  a  claim,  evidently 
fictitious,  and  alleged  simply  to  create  a  jurisdictional  amount,  is  sufficient  to 
give  jurisdiction.^" 

g.  Where  Part  of  Demand  Is  Not  Due. — Where  an  action  is  brought  on  a  claim 
before  it  is  due  in  accordance  with  the  statute;  and  the  amount  actually  due  and 
payable  is  less  than  the  jurisdictional  amount,  but  the  entire  claim  exceeds  the 
amount,  this  court,  nevertheless,  has  jurisdiction.  "Although  there  might  be  a 
perfect  defense  to  the  suit  for  at  least  the  .amount  not  yet  due.  yet  the  fact  of  a 
defense,  and  a  good  defense,  too.  would  not  affect  the  question'  as  to  what  was 
the  amount  in  dispute.  Suppose  an  action  were  brought  on  a  nonnegotiable  note 
for  $2,550.  the  consideration  for  which  was  fully  stated  in  the  petition,  and  which 
was  a  sale  of  lottery  tickets,  or  any  other  matter  distinctly  prohibited  by  statute, 
can  there  be  a  doubt  that  the  circuit  court  would  have  jurisdiction?  There 
would  be  presented  a  claim  to  recover  the  $2,500;  and  whether  that  claim  was 
sustainable  or  not,  that  would  be  the  real  sum  in  dispute."^* 


issue  was  raised  by  the  pleadings. 
Neither  party  set  up  title,  so  that  the  only 
matter  in  dispute  was  the  liability  of  the 
defendant  to  pay  for  the  property  which 
it  was  alleged  had  been  wrongfully  taken 
and  carried  awa\-.  The  plaintifif  recovered 
a  judgment  for  $3,320  damages  $750  costs 
of  suit.  It  was  held  that  the  matter  in 
dispute  was  the  judgment  for  damages. 
and  as  that  is  less  than  $5,000,  the  appeal 
must  be  dismissed.  The  court  said:  "It 
may  be  that  the  question  actually  litigated 
below  related  to  the  title  of  the  parties  to 
the  land  from  which  the  ore  in  contro- 
versy was  taken,  and  that  the  verdict  will 
be  conclusive  on  that  question  as  an  es- 
toppel in  some  other  case;  but.  as  was 
also  said  at  the  present  term,  in  Elgin  v. 
Marshall,  106  U.  S.  578,  27  L.  Ed.  249,  for 
the  purpose  of  estimating  the  value  on 
which  our  jurisdiction  depends,  reference 
can  only  be  had  to  the  matter  actually  in 
dispute  in  the  particular  cause  in  which 
the  judgment  to  be  reviewed  was  ren- 
dered, and  we  are  not  permitted  to  con- 
sider the  collateral  effect  of  the  judg- 
ment in  another  suit  between  the  same 
or  other  parties.  It  is  the  money  value 
of  what  has  been  actually  adjudged  in  the 
cause  that  is  to  be  taken  into  the  account, 
not  the  probative  force  of  the  judgment 
in  some   other  suit." 

91.  United  States  r.  Freight  Ass'n,  166 
U.   S.   290,   310,   41   L.   Ed.    1007. 

92.  Harris  v.  Barber,  129  U.  S.  366,  32 
L.  Ed.  697;  United  States  v.  Freight 
Ass'n,  166  U.   S.  290,  41   L.   Ed.   1007. 

Where  a  creditor's  suit  is  instituted  by 
A  on  behalf  of  himself  and  of  other  cred- 


itors of  the  company,  who  may  come  in 
and  contribute  to  the  costs  of  the  suit, 
and  it  appears  from  the  record  that  A 
claimed  to  be  the  holder  and  owner  of  a 
very  large  amount  of  the  debts,  which 
were  first  liens  upon  the  property  in  liti- 
gation, which  had  been  sold  by  special 
commissioners  appointed  by  the  court  to 
the  complainant  A,  which  debts  were  first 
liens  upon  the  property,  and  to  which  the 
surplus  of  the  cash  payment  which  would 
remain  after  paying  the  costs  of  suit  and 
expenses  of  sale  would  be  applicable,  that 
the  sale  was  for  $380,700,  and  of  that  sum 
$38,070  was  paid  in  cash,  and  that  A  in- 
sisted that  after  deducting  the  costs  of 
suit  and  expenses  of  sale  therefrom,  the 
larger  part,  if  not  the  whole  of  the  bal- 
ance should  be  repaid  to  him,  it  was  held, 
that  a  motion  to  dismiss  would  be  denied, 
because  A's  interest  as  claimed  might 
cover  more  than  $5,000,  if  the  disallow- 
ances should  be  sufficiently  large.  Stuart 
V.  Boulware.  133  U.  S.  78.  33  L.   Ed.  568. 

93.  Where  there  is  a  valid  defense  to 
the  action.— Schunk  v.  Moline,  etc.,  Co., 
147    U.    S.    500,   505,  37   L.    Ed.   255. 

94.  Where  part  of  demand  is  not  due. 
— Schunk  2'.  Moline,  etc.,  Co.,  147  U.  S 
500,  504,   37   L.    Ed.   255. 

In  Schunk  v.  Moline,  etc.,  Co.,  147  U. 
S.  500.  505.  37  L.  Ed.  255,  the  court  cited 
Upton  V.  McLaughlin.  105  U.  S.  640,  26 
L.  Ed.  1197,  as  a  case  very  much  in  point, 
and  reviewed  it  in  the  following  words: 
"In  other  words,  it  was  held,  that  al- 
though there  was  a  perfect  defense  ap- 
parent upon  the  face  of  the  petition,  yet 
the  court  had  jurisdiction — i.  e.,  the  t^ght 


848 


APPEAL  AND  ERROR. 


12.  Matter  in  Dispute;  Not  Suscuptip.IvE  op"  Pi:cuniary  Estimation — a. 
In  General. — In  order  to  give  this  court  jurisdiction  in  cases  dependent  upon  the 
amount  in  controversy,  the  matter  in  dispute  must  be  money,  or  some  right,  tlie 
value  of  which  can  be  calculated  in  money. ^^ 


to  hear  and  determine;  and  further,  in 
that  case,  that  the  defense  was  not  avail- 
able when  suggested  for  the  first  time  in 
the  appellate  court.  So,  here,  the  circuit 
court  had  jurisdiction,  because  the  amount 
claimed  was  over  two  thousand  dollars; 
and  although  it  appeared  upon  the  face 
of  the  petition  that  a  part  of  the  claim 
was  not  yet  due,  still  the  court  had  juris- 
diction— the  right  to  hear  and  determine 
whether  this  matter  constituted  a  good 
defense  to  any  part  of  the  amount 
claimed." 

95.  Matter  in  dispute  must  be  suscep- 
tible of  pecuniary  estimation. — De  Krafft 
V.  Barney,  2  Black  704.  17  L.  Ed. 
350,  citing  Old  Grant  v.  McKee.  1  Pet. 
248,  7  L.  Ed.  131;  Ritchie  v.  Mauro,  2  Pet. 
243,  7  L.  Ed.  411;  Scott  v.  Lunt.  6  Pet. 
349,  8  L.  Ed.  423;  Ross  v.  Prentiss,  3  How. 
771,  772,  11  L.  Ed.  824;  United  States  v. 
Addison,  22  How.  174,  181,  16  L.  Ed.  304; 
Sparrow  v.  Strong,  3  Wall.  97.  101.  17  L. 
Ed.  49;  Barry  v.  Mercein.  5  How.  103,  12 
L.  Ed.  70;  Pratt  v.  Fitzhugh,  1  Black 
271,  17  L.  Ed.  206;  Potts  v.  Chumasero, 
93  U.  S.  358,  361,  23  L.  Ed.  499;  Youngs- 
town  Bank  v.  Hughes,  106  U.  S.  523,  .'524, 
27  L.  Ed.  268;  De  La  Rama  v.  De  La 
Rama,  201  U.  S.  303,  307,  .50   L.  Ed.  765. 

The  right  of  a  party  to  a  writ  of  error 
from  this  court,  under  the  22d  section  of- 
the  judiciary  act,  is  expressly  confined  to 
cases  where  the  matter  in  dispute  ex- 
ceeds the  sum  or  value  of  two  thousand 
dollars  exclusive  of  costs.  This  means  a 
property  value  capable  of  being  ascer- 
tained and  measured  by  the  ordinary 
standard  of  value,  and  unless  the  fact 
necessary  to  bring  the  case  within  the 
statute  be  shown  by  the  record  or  by  evi- 
dence aliunde,  this  court  has  no  jurisdic- 
tion to  review  the  judp:ment  of  the  cir- 
cuit court.  Pratt  v.  Fitzhugh,  1  Black 
271,  17  L.  Ed.  206.  distinguishing  Weston 
V.  Charleston,  2  Pet.  449,  7  L.  Ed.  481; 
Holmes  v.  Jennison,  14  Pet.  540,  10  L. 
Ed.    579. 

"The  rule,  it  is  true,  is  an  arbitrary  one, 
as  it  is  based  upon  a  fixed  amount,  repre- 
senting pecuniary  value,  and.  for  that 
reason,  excludes  the  jurisdiction  of  this 
court,  in  cases  which  involve  rights  that, 
because  they  are  priceless,  have  no 
measure  in  money.  Lee  v.  Lee,  8  Pet. 
44,  8  L.  Ed.  860;  Barry  v.  Mercein,  5 
How.  103,  12  L.  Ed.  70;  Pratt  v.  Fitzhugh, 
1  Black  271,  17  L.  Ed.  206;  Sparrow  v. 
Strong,  3  Wall.  97,  17  L.  Ed.  49.  But,  as 
it  draws  the  boundary  line  of  jurisdiction, 
it  is  to  be  construed  with  strictness  and 
rigor.  As  jurisdiction  cannot  be  conferred 
by  consent  of  parties,  but  must  be  given 
by  the  law,  so  it  ought  not  to  be  extended 


by  doubtful  constructions."  Elgin  v. 
Marshall.  106  U.  S.  578,  580,  27  L.  Ed. 
249,  reaffirmed  in  Plainview  v.  Marshall, 
106  U.    S.   583,   27    L.   Ed.   250. 

Contested  election  over  removal  of 
county  seat. — This  court  has  no  jurisdic- 
tion upon  error  to  the  supreme  court  of 
the  territory  of  Montana  in  a  contested 
election  over  the  removal  of  the  seat  of 
government,  where  the  petitioners,  to 
show  that  they  have  such  a  special  in- 
terest in  the  question  presented  for  ad- 
judication as  entitled  them  to  maintain 
the  action,  allege  that  they  are  attorneys 
and  counsellors  at  law,  and  that  by  the 
removal  of  the  seat  of  government,  their 
expenses  will  be  increased  while  in  at- 
tendance upon  the  courts  pursuant  to 
their  professional  engagement,  because 
the  contest  is  not  for  money,  or  any  right 
the  value  of  which  can  be  measured  by 
money.  Potts  v.  Chumasero,  92  U.  S. 
358,   23   L.   Ed.   499. 

Suit  for  freedom. — The  plaintiffs  in  er- 
ror filed  a  petition  for  freedom  in  the  cir- 
cuit court  of  the  United  States  for  the 
county  of  Was^hington,  and  they  proved 
that  they  were  born  in  the  state  of  Vir- 
ginia as  slaves  of  Richard  B.  Lee,  now 
deceased,  who  moved  with  his  family  into 
the  county  of  Washington,  in  the  District 
of  Columbia,  about  the  vear  1816.  leav- 
ing the  petitioners  residing  in  Virginia 
as  his  slaves,  until  the  year  1820,  when 
the  petitioner  Barbara  was  removed  to 
the  county  of  Alexandria  in  the  District 
of  Columbia,  where  she  was  hired  to  Mrs. 
Muir.  and  continued  with  her  thus  hired 
for  the  period  of  one  year.  That  the  pe- 
titioner Sain  was  in  like  manner  removed 
to  the  county  of  Alexandria,  and  was 
hired  to  General  Walter  Jones  for  a 
period  of  aboi^t  five  or  six  months.  That 
after  the  expirat'on  of  the  said  periods 
of  hiring,  the  petitioners  were  removed  to 
the  said  county  of  Washington,  where  they 
continued  to  reside  as  tl"ie  slaves  of  the 
said  Richard  B.  Lee,  until  his  death,  and 
since  as  the  slaves  of  his  widow,  the  de-  , 
fcndant.  On  the  part  of  the  defendant  in 
error  a  preliminary  objection  was  made 
to  the  jurisdiction  of  this  court,  growing 
out  of  the  act  of  congress  of  the  2nd  of  , 
April,  1816,  which  declares  that  no  cause 
shall  be  removed  from  the  circuit  court 
for  the  District  of  Columbia  to  the  su- 
preme court  by  appeal  or  writ  of  error, 
unless  the  matter  in  dispute  shall  be  of 
the  value  of  one  thousand  dollars,  or  up- 
wards. Bv  the  court:  The  matter  in  dis- 
pute in  this  case  is  the  freedom  of  the 
petitioners.  The  judgment  of  the  court 
below  is  against  their  claims  to  freedom; 
the  matter  in  dispute  is,  therefore,  to  the 


APPEAL  AND  ERROR. 


849 


The  value  of  color  of  title  to  property  is  hardly  capable  of  pecuniary  t-sti- 
mate.'^*'' 

b.  Appeals  from  District  of  Columbia  and  the  Territories. — Under  the  act  of 
March  3,  1885,  23  Stat.  443,  which  provides  that:  "No  appeal  or  writ  of  error 
shall  hereafter  be  allowed  from  any  judgment  'or  decree  in  any  suit  at  law  or  in 
equity  in  the  supreme  court  of  the  District  of  Columbia,  or  in  the  supreme  court 
of  any  of  the  Territories  of  the  United  States,  unless  the  matter  in  dispute,  ex- 
clusive of  costs,  shall  exceed  the  sum  of  five  thousand  dollars,"  it  has  uniformly 
been  held,  that  the  first  section  of  that  statute  applies  solJy  to  judgments  or  de- 
crees in  suits  at  law  or  in  equity  measured  by  a  pecuniary  value.'^'      While  the 


plaintiffs  in  error,  the  value  of  their  free- 
dom, and  this  is  not  susceptible  of  a  pe- 
cuniary valuation.  Had  the  judgment 
been  in  favor  of  the  petitioners,  and  the 
writ  of  error  brought  by  the  party  claim- 
ing to  be  the  owner,  the  value  of  the 
slaves  as  property  would  have  been  the 
matter  in  dispute,  and  affidavits  might  be 
admitted  to  ascertain  such  value.  But  af- 
fidavits estimating  the  value  of  freedom 
are  entirely  inadmissible,  and  no  doubt 
is  entertained  of  the  jurisdiction  of  the 
court.  Lee  v.  Lee,  8  Pet.  44,  8  L.  Ed. 
860. 

Where  the  averments  in  the  petition 
for  a  mandamus  do  not.  under  the  prin- 
ciples of  the  law  of  false  imprisonment 
prevailing  in  this  country,  state  a  cause 
of  action  even  against  individuals,  much 
less  against  a  sovereignty;  nor  is  it  shown 
that  the  alleged  wrong  was  actionable 
under  the  laws  of  Germany,  so  far  as  ap- 
pears, the  right  to  assert  the  demand  in 
question  upon  the  German  Empire  is 
merely  a  right  to  appeal  to  the  grace  of 
that  country.  The  value  of  such  a  right 
is  manifestly  purely  conjectural,  and  not 
susceptible  of  a  pecuniary  estimate.  It 
certainly  cannot  be  said  to  have  the  value 
declared  by  the  statute  to  be  essential  to 
our  power  to  entertain  a  writ  of  error. 
The  writ  of  error  must  therefore  be  dis- 
missed. Holzendorf  7'.  Hay,  194  U.  S. 
373.   376,    48   L.    Ed.    ^025. 

Pill  to  enjoin  investigation  into  false 
return  of  personalty  for  taxation. — In 
Youngstown  Bank  x'.  Hughes,  106  U.  S. 
523,  27  L.  Ed.  268,  the  auditor  of  a  county 
in  Ohio  under  the  authority  of  a  statute 
of  that  state  enabling  him  to  summon  and 
charge  anybody  whom  he  suspects  hav- 
ing made  an  erroneous  return  of  his  per- 
sonal property  subject  to  taxation,  called 
on  the  cashier  of  a  bank  to  appear  and 
te=t'fy,  and  because  he  could  not  testify 
without,  to  bring  with  him  the  books  of 
the  bank  showing  its  deposits.  There- 
upon the  bank  filed  a  bill  in  equity  to  en- 
join the  auditor,  alleging  for  cause  that 
such  a  proceeding  on  his  part  would  un- 
lawfully expose  its  business  aflfairs.  lessen 
prbl'c  crr'^rl'^pre  in  it  as  a  depository  of 
moneys,  diminish  its  deposits,  and  grep*^'y 
impair  the  value  of  its  franchises.  The 
circuit  court  dismissed  the  bill,  and  the 
bank  appealed.     A  motion  in  this  cause  to 

1  U  S  Enc-S4 


dism'ss  the  appeal  for  want  of  jurisdic- 
ticn  was  granted,  because  the  value  of  the 
matter  in  dispute  did  not  exceed  $5,000. 
Under  tV.e  rule  that  to  give  this  court 
jurisdiction  in  cases  dependent  upon  the 
amount  in  controversy,  the  matter  in  dis- 
pute must  be  money,  or  some  right,  the 
value  of  which,  in  money,  can  be  calcu- 
lated and  ascertained.  ''The  present  suit 
is  not  for  mrney,  nor  for  anything  the 
value  of  which  can  be  measured  by 
money.  The  bank  has  no  interest  in  the 
taxes  to  be  placed  on  the  tax  duplicate. 
There  is  no  property  in  dispute  between 
the  auditor  and  the  bank.  If  the  cashier 
is  compelled  to  testify  and  to  produce  the 
books  to  be  used  in  evidence  for  the  pur- 
poses required,  the  damages,  if  any,  re- 
sulting to  the  bank,  would  be,  in  the 
highest    degree,    remote    and    speculative." 

The  value  of  a  "mining  claim"  in  Ne- 
vada may  be  the  subject  of  estimate  in 
money;  and  this  court  will  take  jurisdic- 
tion of  a  suit  concerning  such  a  claim,  if 
of  the  requis'te  value,  though  the  land 
where  the  claim  exists  has  never  been 
surveyed  and  broup-ht  into  market.  Spar- 
row_  V.  Strong.  3  Wall.  97.  17  L.  Ed.  49, 
distinguishing  Lownsdale  v.  Parrish,  21 
How.  290,  15  L.  Ed.  80,  distinguished  in 
Durham  v.  Seymour,  161  U.  S.  235.  239, 
40    L.    Ed.    682. 

Distinguishing  this  case,  it  was  said: 
"In  Sparrow  v.  Strong,  3  Wall.  97,  17  L. 
Ed.  49,  there  was  an  affidavit,  uncontra- 
dicted by  anything  in  the  record,  that  the 
mining  claim  in  dispute  was  of  the  req- 
uisite pecuniary  value."  South  Carolina 
r.   Seymour,   153  U.  S.   353,  358.  38   L.   Ed. 

74;?. 

96.  Cameron  v.  Un'ted  States.  146  U. 
S.    533,    36    L.    Ed.    1077. 

97.  Appeals  from  District  of  Columbia 
and  the  territrries. — Fnrnsworth  f.  Mon- 
tana, 129  U.  S.  104,  111,  32  L.  Ed.  616; 
Snow  7-  TT,^;tPf1  Cfptes,  118  IT.  S.  346,  351, 
30  L.  Ed.  207;  Kurtz  v.  Moffitt.  11.-)  U.  a 
487,  495,  496,  29  L.  Ed.  458;  Durham  V. 
Seymour,  161  U.  S.  235.  40  L.  Ed.  683; 
P^rrire  v.  Slack.  1G4  U.  S.  4i2.  41  L.  Ed. 
510:  S'''-nms  v.  Simms.  175  U.  S.  162,  167, 
44   L.    Ed.    115. 

Both  sections  of  the  act  of  M^rch  S, 
1F85,  r""-"1^tinp-  anneals  froni  the  .=iinreme 
court  of  the  District  of  Columbia  (23 
Stat.   443,   ch.   355),  apply  to   cases   where 


850 


APPEAL  AND  ERROR. 


act  of  congress  of  March  3,  1885,  allowing  appeals  or  writs  of  error  from  the 
supreme  court  of  a  territory  to  this  court  in  certain  cases  without  regard  to  the 
sum  or  value  in  dispute,  does  not  prescribe  the  amount,  some  sum  or  value  must 
be  in  dispute. ^^ 

By  §  8  of  the  Act  of  February  9,  1893,  c.  74,  establishing  a  court  of 
appeals  for  the  District  of  Columbia,  as  in  the  previous  act  of  March  3,  1885, 
c.  355,  regulating  appeals  from  the  supreme  court  of  the  district  and  the  supreme 
courts  of  the  territories,  no  case  can  be  brought  to  this  court  by  appeal  or 
'writ  of  error,  unless  "the  matter  in  dispute,  exclusive  of  costs  shall  exceed  the 
sum  of  $5,000."  In  order  to  bring  a  case  within  this  provision,  the  matter  in 
■dispute,  according  to  the  settled  construction,  must  be  money,  or  some  right  the 
value  of  which  can  be  estimated  and  ascertained  in  money,  and  which  appears  by 
the  record  to  be  of  the  requisite  pecuniary  value.^^     In  short,  the  term  "matter  in 


there  is  a  matter  in  dispute  measurable 
l)y  some  sum  or  value  in  money.  Farns- 
•worth  V.  Montana,  129  U.  S.  104.  112,  32 
Iv.  Ed.  616;  Cross  v.  Burke,  146  U.  S.  82, 
36  L.  Ed.  896;  Washington,  etc.,  R.  Co. 
V.  District  of  Columbia,  146  U.  S.  227, 
231,    36    L.    Ed.    951. 

Both  sections  of  the  act  of  March  3rd, 
1885.  23  Stat.  443,  c.  355,  regarding  ap- 
peals to  this  court  from  the  supreme  court 
of  a  territory,  apply  to  cases  where  there 
is  a  matter  in  dispute  measurable  by  some 
•s«m  or  value  in  money  although  the 
amount  is  not  restricted  under  the  second 
section.  Washington,  etc.,  R.  Co.  v.  Dis- 
trict of  Columbia.  146  U.  S.  227,  36  L- 
Ed.  951;  Farnsworth  v.  Montana,  129  U. 
S.  104,  32  L.  Ed.  616;  Albright  v.  New- 
Mexico,  200  U.  S.  9,  50  L.  Ed.  316,  re- 
aflfirmed  in  Gutierrnez  v.  New  Mexico, 
202  U.  S.  614,  50  L.   Ed.  1171. 

98,  McLean  v.  Denver,  etc.,  R.  Co.,  203 
U.  S.  38.  51  L.  Ed.  78,  citing  Albright  v. 
New   Mexico,   200   U.   S.   9,   50    L.    Ed.   346. 

89.  Columbian  Ins.  Co.  v.  Wheelright, 
7  Wheat.  534.  5  L.  Ed.  516;  Kurtz  v.  Mof- 
fitt,  115  U.  S.  487,  29  L.  Ed.  458;  Street 
V.  Ferry,  119  U.  S.  385.  30  L.  Ed.  439; 
Smith  V.  Adams,  130  U.  S.  167,  176,  32  L. 
Ed.  895;  Cross  v.  Burke,  146  U.  S.  82, 
88,  36  L.  Ed.  896;  Washington,  etc..  R.  Co. 
V.  District  of  Columbia,  146  U.  S.  227,  36 
L.  Fd.  951;  Cameron  v.  United  States, 
146  U.  S.  533.  535,  36  L.  Ed.  1077;  Cam- 
eron V.  United  States,  148  U.  S.  301.  303, 
37  L.  Ed.  459;  South  Carolina  v.  Seymour, 
153  U.  S.  353,  357,  38  L.  Ed.  742;  Chap- 
man V.  United  States,  164  U.  S.  436,  41 
L.  Ed.  504;  Prather  v.  United  States.  164 
U.  S.  452,  41  L.  Ed.  510;  Holzendorf  v. 
Hay,  194  U.  S.  373,  376,  48  L.   Ed.  1025. 

Appeals  to  this  court  from  the  court 
of  appeals  of  the  District  of  Columbia  are 
governed  by  §  8  of  the  act  of  February 
9,  1893.  It  is  essential  to  our  jurisdiction 
that  it  should  appear  that  the  matter  in 
dispute  in  the  courts  below  was  money 
to  an  amount  exceeding  five  thousand 
dollars  exclusive  of  costs,  or  some  right, 
the  value  of  which  could  be  ascertained 
in  money  and  exceeded  that  sum;  or  that 
the  validity  of  a  patent  or  copyright  was 
involved;   or  that  the  validity  of  a  treaty 


or  statute  of  or  an  authority  exercised 
under  the  United  States  was  drawn  in 
question.  South  Carolina  v.  Seymour, 
153  U.  S.  353.  38  L.  Ed.  742,  and  cases 
cited.  Durham  v.  Seymour,  161  U.  S. 
235,   237,    40    L.    Ed.    682. 

The  eighth  section  of  the  act  of  Feb- 
ruary 9,  1893,  establishing  the  court  of 
appeals  of  the  District  of  Columbia,  is  as 
follows:  "Sec.  8.  That  any  final  judg- 
ment or  decree  of  the  said  court  of  ap- 
peals may  be  re-examined  and  affirmed, 
reversed  or  modified  by  the  supreme 
court  of  the  United  States,  upon  writ  of 
error  or  appeal,  in  all  causes  in  which  the 
matter  in  dispute,  exclusive  of  costs,  shall 
exceed  the  sum  of  five  thousand  dollars, 
in  the  same  manner  and  under  the  same 
regulations  as  heretofore  provided  for  in 
cases  of  writs  of  error  on  judgment  or 
appeals  from  decrees  rendered  in  the  su- 
preme court  of  the  District  of  Columbia; 
and  also  in  cases,  without  regard  to  the 
sum  or  value  of  the  matter  in  dispute, 
wherein  is  involved  the  validity  of  any 
patent  or  copyright,  or  in  which  is  drawn 
in  question  the  validity  of  a  treaty  or  stat- 
ute of  or  an  authority  exercised  under 
the  United  States."  We  regard  this  sec- 
tion and  the  act  of  1885  as  the  same  in 
their  meaning:  and  legal  effect.  The  act 
of  1885  prohibits  appeals  or  writs  of  er- 
ror unless  the  matter  in  dispute  exceeds 
the  sum  of  $5,000  and  provides  that  the 
restriction  shall  not  apply  to  certain 
enumerated  cases,  "but  that  in  all  such 
cases  an  appeal  or  writ  of  error  shall  be 
brought  without  regard  to  the  sum  or 
value  in  dispute."  Chapman  v.  United 
States,  164  U.  S.  436,  449,  41  L.  Ed.  504; 
Falk  V.  United  States,  180  U.  S.  636.  45 
L.    Fd.   709. 

The  act  of  1893  allows  appeals  or  writs 
of  error  whenever  the  matter  in  dispute 
exceeds  the  sum  of  $5,000,  and  also  in 
cases  "without  regard  to  the  sum  or 
value  of  the  matter  in  dispute,"  wherein 
the  validity  of  any  patent  or  copyright 
or  of  a  treaty  or  statute  of  or  an  au- 
thority exercised  under  the  United  States 
is  drawn  in  question,  being  the  same 
cases  mentioned  in  the  second  section  of 
the  act  of  1885.     We  think  as  that  section 


APPEAL  AND  ERROR. 


851 


•dispute"  as  used  in  the  statutes  regulating  appeals  from  the  District  of  Columbia, 
as  respects  a  money  demand,  has  relation  to  justiciable  demands  according  to 
the  settled  construction,  and  must  be  money,  or  some  right  the  value  of  which  can 
be  estimated  and  ascertained  in  money,  and  which  appears  by  the  record  to  be 
■of  the  requisite  pecuniary  value. ^ 

c.  Criminal  Prosecutions. — The  uniform  ruling  of  this  court  in  construing 
statutes  regulating  appeals  to  this  court  from  the  supreme  court  and  court  of  ap- 
peals of  the  District  of  Columbia,  and  in  fact  in  the  construction  of  any  statute 
prescribing  an  amount  as  a  prerequisite  to  the  appellate  jurisdiction  of  this  court, 
is  that  they  have  no  application  to  criminal  cases,  because  of  the  rule  that  the  mat- 
ter in  dispute  must  be  susceptible  of  pecuniary  estimation. ^     And  the  same  rule 


clearly  applied  to  cases  where  there  was 
a  pecuniary  matter  in  dispute,  measurable 
by  some  sum  or  value,  as  has  been  re- 
peatedly decided,  the  last  clause  of  sec- 
tion eight  of  the  act  of  1893,  must  re- 
ceive the  same  construction.  The  mean- 
ing of  both  statutes  is  that  in  the  cases 
enumerated  the  limitation  on  the  amount 
is  removed,  but  both  alike  refer  to  cases 
where  there  is  a  pecuniary  matter  in  dis- 
pute, measurable  by  some  sum  or  value, 
and  they  alike  have  no  application  to 
criminal  cases.  Chapman  v.  United  States, 
164  U.  S.  436,  4.50.  41  L.  Ed.  504;  Falk  v. 
United  States,  180  U.  S.  636,  45  L.  Ed. 
709. 

1.  South  Carolina  v.  Seymour,  153  U. 
S.  353,  38  L.  Ed.  742;  Holzendorf  v.  Hay, 
194   U.    S.    373.    376,    48    L.    Ed.    1025. 

2.  Criminal  prosecutions. — Farnsworth 
V.  Montana,  129  U.  S.  104.  32  L.  Ed.  616; 
Cross  V.  Burke.  146  U.  S.  82,  36  L.  Ed. 
896;  Washington,  etc.,  R.  Co.  v.  District 
of  Columbia.  146  U.  S.  227,  36  L.  Ed.  951; 
United  States  v.  Sanges,  144  U.  S.  310, 
36  L.  Ed.  445;  Snow  v.  United  States,  118 
U.  S.  345,  30  L.  Ed.  207;  Chapman  v. 
United  States,  164  U.  S.  436,  41  L.  Ed. 
504;  United  States  v.  More.  3  Cranch  159, 
2   L.   Ed.   397. 

On  the  same  third  of  March,  A.  D. 
1885,  congress  passed  an  act  "regulating 
appeals  from  the  supreme  court  of  the 
District  of  Columbia  and  the  supreme 
courts  of  the  several  territories."  23 
Stat.  443.  c.  355.  The  first  section  of  this 
act  provided  "that  no  appeal  or  writ  of 
error  shall  hereafter  be  allowed  from  any 
judgment  or  decree  in  any  suit  at  law  or 
in  equity  in  the  supreme  court  of  the  Dis- 
trict of  Columbia,  or  in  the  supreme  court 
of  any  of  the  territories  of  the  United 
States,  unless  the  matter  in  dispute,  ex- 
clusive of  costs,  shall  exceed  the  sum  of 
five  thousand  dollars;"  and  the  second 
section,  that  the  first  section  should  not 
apply  to  any  case  "wherein  is  involved 
the  validity  of  any  patent  or  copyright, 
or  in  which  is  drawn  in  question  the 
validity  of  a  treaty  or  statute  of  or  an 
authority  exercised  under  the  United 
States;  but  in  all  such  cases  an  appeal  or 
writ  of  error  may  be  brought  without  re- 
gard to  the  sum  or  value  in  dispute."  We 
liave   repeatedly   decided   that   this   act   did 


not  apply,  in  either  section,  to  any  crimi- 
nal case,  and  that  it  was  only  applicable 
to  judgments  and  decrees  in  suits  at  law 
or  in  equity  in  which  there  was  a  pecuni- 
ary matter  in  dispute.  Gonzales  v.  Cun- 
ningham, 164  U.  S.  612.  617,  41  L.  Ed. 
572. 

On  examining  the  act  "concerning  the 
District  of  Columbia,"  the  court  is  of 
opinion  that  the  appellate  jurisdiction, 
granted  by  that  act,  is  confined  to  civil 
cases.  The  words  "matter  in  dispute," 
seem  appropriate  to  civil  cases,  where 
the  subject  in  contest  has  a  value  beyond 
the  sum  mentioned  in  the  act.  But  in 
crirninal  cases,  the  question  is  the  guilt 
or  innocence  of  the  accused.  And  al- 
though he  may  be  fined  upwards  of  $100, 
yet  that  is,  in  the  eye  of  the  law,  a  pun- 
ishment for  the  offense  committed,  and 
not  the  particular  object  of  the  suit. 
United   States  v.  More,  3  Cranch  159,  173, 

2  L.  Ed.  397,  opinion  of  Mr.  Chief  Jus- 
tice Marshall;  Albright  v.  New  Mexico, 
200  U.  S.  9,  50  L.  Ed.  346,  reaffirmed  in 
Gutierrnez  v.  New  Mexico.  202  U.  S.  614, 
50   L.   Ed.   1171. 

Embezzlement  by  fiduciary. — A  writ  trf 
error  will  not  lie  from  this  court  to  the 
court  of  appeals  of  the  District  of  Co- 
Inmbia  to  review  its  judgment  affirming 
the  judgment  of  the  supreme  court  by 
which  a  defendant  was  convicted  of  em- 
bezzlement undo  §  841  of  the  District 
Code,  because  tht  collateral  effect  of  the 
conviction  operates  as  a  forfeiture  of  all 
right  or  claiai  to  any  commissions  which 
the  accused  may  have,  for  the  reason  that 
under  the  provisions  of  §  233  of  the  act 
regulating  the  review  by  this  court  of  the 
judgments  or  decrees  of  the  court  of  ap- 
peals of  the  District  of  Columbia,  the 
matter  in  dispute  must  be  susceptible  of 
pecuniary  estimation,  while  the  only  direct 
pecuniary  result  of  a  conviction  under 
this  statute  is  a  fine  not  exceeding  $1,000, 
and  that  as  a  punishment  for  the  offense. 
Fields  V.  United  States,  205  U.  S.  292,  51 
L.   Ed.  807,  citing  United  States  v.   More, 

3  Cranch  159,  2  L.  Ed.  397,  and  distin- 
guishing Smith  V.  Whitney,  116  U.  S.  167, 
29    L.    Ed.    601. 

And  the  rule  is  the  same  in  judgments 
in  criminal  cases,  although  the  life  or  lib- 
erty  of  the  party  may  depend  on  the  de- 


852 


APPEAL  AXD  ERROR. 


Mas  applied  in  construing  the  act  of  March  3,  1885.  authorizing  a  writ  of  error 
from  this  court  to  the  supreme  court  of  any  territory  in  any  case  "in  which  is 
drawn  in  question  the  vahdity  of  a  treaty  or  statute  of,  or  an  authority  exercised 
under,  the  United  States."^ 

Imposition  of  Fine. — And  because  the  punishment  for  conviction  by  the  stat- 
ute under  which  plaintiff  in  error  is  indicted,  tried  and  convicted,  embraces  a 
fine,  does  not  aher  the  rule.  In  the  language  of  Mr.  Chief  Justice  Marshall : 
"In  criminal  cases,  the  question  is  of  the  guilt  or  innocence  of  the  accused.  And 
although  he  may  be  fined  upwards  of  one  hundred  dollars,  yet  that  is,  in  the  eye 
of  the  law,  a  punishment  for  the  offense  committed,  and  not  the  particular  ob- 
ject of  the  suit."^ 

d.  Habeas  Corpus. — In  General. — As  it  is  well  settled  that  a  proceeding  in 
habeas  corpus  is  a  civil  and  not  a  criminal  proceeding,  and  is  only  availed  of  to 
assert  the  civil  right  of  personal  liberty,  the  matter  in  dispute  has  no  money  value, 
and  an  appeal  will  not  lie.^     In  order  to  give  this  court  jurisdiction  under  the  act 


cision  of  the  circuit  court.  Kurtz  v.  Mof- 
fitt.  115  U.  S.  487,  29  L.  Ed.  4.58,  citing 
Barrj'  v.  Mercein.  5  How.  103,  12  L. 
Ed.   70. 

3.  Farnsworth  v.  Montana,  129  U.  S. 
104,  32  L.  Ed.  616;  Snow  v.  United  States. 
118  U.  S.  346,  30  L.  Ed.  207;  United 
States  V.  Sanges,  144  U.  S.  310,  36  L.  Ed. 
445. 

4.  United  States  v.  More.  3  Cranch 
159,  2  L.  Ed.  397;  Chapman  v.  United 
States,  164  U.  S.  436,  41  L.  Ed.  504; 
Prather  v.  United  States,  164  U.  S.  452, 
41  L.  Ed.  510;  Fields  v.  United  States, 
205   U.    S.   292.   51   L.    Ed.   807. 

5.  Habeas  corpus. — Cross  z;.  Burke,  146 
U.  S  82.  36  L.  Ed.  896;  Farnsworth  v. 
Montana,  129  U.  S.  104,  32  L.  Ed.  616; 
United  States  v.  Sanges,  144  U.  S.  310, 
320,  36  L.  Ed.  445;  Washington,  etc.,  R. 
Co.  V.  District  of  Columbia,  146  U.  S. 
227,  36  L.  Ed.  951;  In  re  Lennon,  150  U. 
S.  393,  397,  37  h.  Ed.  1120;  In  re  Chap- 
man, 156  U.  S.  211,  215.  39  L.  Ed.  401;  Ex 
parte  Belt.  159  U.  S.  95.  100,  40  L.  Ed. 
88;  Chapman  v.  United  States,  164  U.  S. 
436,  41  L.  Ed.  504;  Perrine  v.  Slack.  164 
U.  S.  452,  41  L.  Ed.  510;  Gonzales  v.  Cun- 
ningham, 164  U.  S.  612.  618,  41  L.  Ed.  572; 
Fisher  v.  Baker,  203  U.  S.  174,  51  L.  Ed. 
142;  Ex  parte  Tom  Tong,  108  U.  S.  556, 
27  L.  Ed.  826;  Kurtz  v.  Mofifitt.  115  U. 
S.  487,  29  L.  Ed.  458;  Campbell  v.  Waite, 
180  U.  S.  635,  45  L.  Ed.  709;  In  re  Bur- 
rus.   136  U.   S.  586.  34  L.   Ed.  500. 

"From  this  review  of  the  statutes  and 
decisions,  the  conclusion  is  inevitable  that 
a  jurisdiction,  conferred  by  congress  upon 
anv  court  of  the  United  States,  of  suits 
at  law  or  in  equity  in  which  the  matter 
in  dispute  exceeds  the  sum  or  value  of  a 
certain  number  of  dollars,  includes  no 
case  in  which  the  right  of  neither  party  is 
capable  of  being  valued  in  money;  and 
therefore  that  writs  of  habeas  corpus  are 
rot  removable  from  a  state  court  into  a 
circuit  court  of  the  United  States  under 
the  act  of  March  3,  1875,  ch.  137,  §  2." 
Kurtz  V.  MofBtt,  115  U.  S.  487,  498,  29  L. 
Fd.  458.  See,  also,  Barry  v.  Marcein,  5 
How.   103,   12   L.   Ed.   70. 


Therefore,  where  a  cause  conies  into 
this  court  on  writ  of  error  to  a  circuit 
court  of  the  United  States,  and  it  appears 
that  no  question  is  controverted  between 
the  parties,  except  whether  the  defend- 
ants below  were  liable  to  imprisonment, 
and  that  question  is  raised  upon  an  order 
of  the  circuit  court  discharging  them  on 
habeas  corpus,  the  w-rit  of  error  must  be 
dismi-^sed  for  want  of  jurisdiction.  Pratt 
V.  Fitzhugh.  1  Black  271,  17  L.  Ed.  206. 

In  Pratt  v.  Fitzhugh,  1  Black  271,  17 
L.  Ed.  206,  decided  in  1861,  this  court  dis- 
missed for  want  of  jurisdiction  a  writ  of 
error  to  reverse  a  judgment  of  the  circuit 
court  for  the  Northern  District  of  New 
York,  discharging  on  habeas  corpus  per- 
sons imprisoned  upon  an  execution  issued 
by  that  court  directing  the  marshal  to 
levy  the  amount  of  a  decree  for  $21,581.28 
out  of  their  goods  and  chattels,  and.  for 
want  thereof,  to  arrest  and  keep  them 
until  the  monevs  were  paid.  Mr.  Justice 
Nelson,  in  delivering  the  opinion,  said 
that  the  22d  section  of  the  judiciary  act 
had  always  been  held  to  mean  a  property 
value;  and  he  distinguished  the  case  of 
Holmes  v.  Jennison.  14  Pet.  540,  10  L. 
Ed.  579  (which  was  a  writ  of  error  to  re- 
verse a  judgment  of  the  supreme  court  of 
Vermont  on  habeas  corpus,  remanding  to 
cust<^dy  a  prisoner  under  a  warrant  of  ex- 
tradition from  the  governor  of  that  state)^ 
upon  the  ground  that  it  was  brought  up 
froin  a  state  court  under  the  25th  section 
of  the  judiciary  act,  in  which  case  no 
value  was  required.  Kurtz  v.  Moflitt, 
115  U.  S.   487,  496.  29   L.   Ed.  458. 

Under  the  act  of  1789,  ch.  20,  §  22,  pro- 
vidinsr  that  final  judgments  and  decrees 
in  civil  actions  and  suits  in  equity  in  a 
circuit  court,  where  the  matter  in  dispute 
exceeds  the  sum  or  value  of  $2,000,  ex- 
clusive of  costs,  may  be  re-examined  and 
reversed  or  affirmed  in  the  supreme  court, 
it  was  held,  that  no  writ  of  error  will  lie 
upi^ii  the  judgment  of  the  circuit  court 
refusing  to  grant  a  writ  of  habeas  corpus. 
Because  this  court  can  exercise  no  appel- 
late  power  unless   it   is    conferred   by   act 


APPEAL  AND  ERROR. 


853 


of  March  3,  1885.  entitled  an  act  regulating  appeals  from  the  supreme  court  of 
the  District  of  Cohmibia.  and  the  supreme  courts  of  the  several  territories,  the 
matter  in  dispute  must  be  money,  or  some  right,  the  vakie  of  which  in  money  can 
be  calculated  and  ascertained.  Therefore  habeas  corpus  proceedings  are  not  re- 
viewable.'' 

Construction  of  Circuit  Court  of  Appeals  Act.— As  a  case  of  habeas  cor- 
pus is  not  one  in  which  the  matter  in  controversy  involves  a  money  value,  no 
appeal  lies  from  the  circuit  court  of  appeals  to  this  court  under  §  6  of  the  cir- 
cuit court  of  appeals  act." 

e.  Title  and  Right  to  Office. — It  has  been  held  that  a  judgment  awarding  a 
peremptory  writ  of  mandamus  to  admit  one  to  an  office,  or  a  judgment  of  ouster 
from  an  office,  might  be  reviewed  by  this  court  upon  writ  of  error,  if  the  salary 
during  the  term  of  office  would  exceed  the  sum  named  in  the  statute  defining  its 
appellate  jurisdiction.^  So  in  a  case  impeaching  the  right  to  an  office,  the  amount 
of  the  salary  attached  to  it  is  considered  as  determining  the  value  of  the  matter 
in  dispute.**     But    an  appeal  will  not  lie  to  this  court  from  the  supreme  court  of 


of  congress,  and  this  act,  under  which 
the  case  can  only  be  brought  up,  gives 
the  right  of  revision  in  those  cases  unless 
where  the  rights  of  property  are  con- 
cerned, and  where  the  matter  in  dispute 
has  a  known  and  certain  value,  which  can 
be  proved  and  calculated  in  the  ordinary 
mode  of  a  business  transaction.  Barry 
V.  Mercein,  5  How.  103,  12  L.  Ed.  70,  re- 
viewed in  In  re  Burrus,  136  U.  S.  586, 
594.  34  L.  Ed.  500.  and  followed  in  Per- 
rine  v.  Slack.  164  U.  S.  452.  454,  41  L. 
Ed.  510. 

6.  Kurtz  V.  Moffitt.  115  U.  S.  487,  29 
L.  Ed.  458;  Cross  v.  Burke.  146  U.  S.  82, 
8S.  .-He   L.   Ed.   396. 

7.  Lau  Ow  Bew  v.  United  States.  144 
U.  S.  47,  58.  36  L.  Ed.  340,  citing  Kurtz 
V.  Moffitt,  115  U.  S.  487,  29  L.  Ed.  45S; 
Whitney  v.  Dick,  202  U.  S.  132.  50  L.  Ed. 
963. 

8.  Title  and  right  to  office. — Columbia 
Ins.  Co.  V.  Wheelwright.  7  Wheat.  534.  5 
L.  Ed.  516;  United  States  v.  Addison,  22 
How.  174,  16  L.  Ed.  304;  Smith  z:  Whit- 
ney, 116  U.  S.  167,  173.  29  L.  Ed.  601. 

The  deprivation  erf  a  man's  political  and 
social  rights  properly  may  be  alleged  to 
involve  damage  up  to  the  jurisdictional 
amount,  capable  of  estimation  in  money. 
Giles  r.  Harris,  189  U.  S.  475,  485,  47  L. 
Ed.  909,  citing  Wilev  v.  Sinkler.  179  U. 
S.  58,  45  L.  Ed.  84;  Swafford  v.  Temple- 
ton.  185  U.   S.  487.  46   L.   Ed.   1005. 

A  writ  of  error  will  lie  from  this  court 
to  the  circuit  court  for  the  District  of  Co- 
lumbia to  reverse  the  judgment  of  the 
circuit  court  awarding  a  peremptory 
mandamus  to  admit  the  defendants  in  er- 
ror to  the  offices  of  directors  in  the  Co- 
lumbian Insurance  Company  if  the 
amount  in  controversy  amounts  to  $1,000, 
th'at  sum  being  required  to  give  this  court 
appellate  jurisdiction  from  the  former 
judgment  or  decrees  of  the  circuit  court 
for  the  District  of  Columbia.  The  amount 
hi  controvers}-  is  the  value  of  the  office, 
and  its  value  must  be  ascertained  by  the 


salary.  Columbian  Ins.  Co.  v.  Wheel- 
right.  7  Wheat.  534,  5   L.   Ed.  516. 

Where  the  matter  in  controversy  was 
the  right  to  the  mayoralty  in  Georgetown, 
the  salary  of  which  office  was  $1,000  per 
annum,  payable  monthly,  and  the  dura- 
tion of  which  office  was  two  years,  this 
court  has  jurisdiction  of  a  case  coming  up 
by  writ  of  error  from  the  circuit  court  of 
the  United  States  for  the  District  of  Co- 
lumbia. The  fact  that  the  salary  is  pay- 
able monthly  makes  no  difference;  the 
appropriation,  when  made,  being  made  for 
the  whole  sum.  United  States  v.  Addison, 
22  How.  174,  16  L.  Ed.  304;  S.  C,  6  Wall. 
291.  296,  18  L.  Ed.  919.  distinguishing  Co- 
lumbus Ins.  Co.  V.  Wheelright.  7  Wheat. 
534,    5    L.    Ed.   516. 

But  in  United  States  v.  Addison,  22 
How.  174,  16  L.  Ed.  304.  it  was  said:  "In 
the  Columbian  Ins.  Co.  v.  Wheelright, 
7  Wheat.  534,  5  L.  Ed.  516.  it  was  held,  that 
a  writ  of  error  will  lie  from  this  court 
upon  the  judgments  of  the  circuit  courts 
awarding  a  peremptory  mandamus,  if  the 
matter  in  controversy  is  of  sv:fficient 
value.  Rut  in  that  case,  it  did  appear 
that  the  office  of  director  of  the  insurance 
company,  which  was  the  matter  in  con- 
troversy, was  of  less  value  than  $1,000 
n.nd  that  its  value  was  to  be  ascertained 
by  the  salary  paid;  the  court  held  it  had 
no  jurisdiction.  The  weight  of  this  au- 
thority is  not  lessened  by  the  fact  on 
which  the  question  of  jurisdiction  turned. 
The  salary  of  the  mayor  of  Georeetown 
was  established  by  law  at  $1,000  per 
annum;  and  if  this  be  the  matter  of  con- 
troversy,  it    settles   the    iurisdiction." 

9.  Thus  in  Smith  r.  Whitney,  116  U.  S. 
167.  173,  29  L.  Ed.  601,  where  the  appli- 
cation was  for  a  writ  of  prohibition  re- 
straining proceedings  by  court  martial 
against  an  officer,  an  objection  being 
taken  to  the  appellate  jurisdiction  of  this 
court  on  the  ground  that  the  subject  mat- 
ter of  the  suit  was  incapable  of  pecuniary 
estimation,  the  court,  by  Mr.  Justice  Gray, 
replied:      "The     matter      in      dispute      is 


854 


APPEAL  AND  ERROR. 


a  territory  under  either  section  of  the  act  of  March  3rd,  1885,  c.  355,  regarding; 
appeals  to  this  court  from  a  supreme  court,  of  a  territory  in  a  quo  warranto 
proceeding  for  the  alleged  usurpation  of  ofifice,  where  the  matter  in  dispute  is 
the  alleged  usurpation;  and  the  liability  to  a  fine  on  judgment  of  ouster  does  not 
make  that  matter  measurable  by  some  sum  or  value  in  money.  The  fine  is,  in  the 
eye  of  the  law,  a  punishment  for  the  offense  committed,  and  not  the  particular 
object  of  the  suit,  and,  moreover,  the  appellant  cannot  invoke  our  jurisdiction  on 
the  ground  that  if  his  appeal  were  sustained  he  might  be  fined  on  a  new  judgment. ^f' 

f.  Right  to  Have  Goods  Transported  by  a  Carrier. — At  common-law,  a  cause 
of  action  arose  from  the  refusal  of  the  common  carrier  to  transport  goods  for 
carriage.  Therefore,  where  the  matter  in  dispute  is  a  right  of  the  appellants  ta 
have  their  goods  which  were  tendered  for  shipment  transported  by  railroad  com- 
panies to  the  place  of  destination,  this  is  a  valuable  right,  measurable  in  money,, 
within  the  meaning  of  the  act  of  congress  of  March  3,  1885.^^ 

g.  Custody  of  Children. — A  claim  to  the  guardianship  of  the  person  and  prop- 
erty of  children,  not  on  account  of  any  pecuniary  value  attached  to  the  office,  but 
upon  other  considerations,  is  not  within  the  jurisdiction  of  this  court. ^^     Thus.. 


■whether  the  petitioner  is  subject  to  a 
prosecution  which  may  end  in  a  sentence 
dismissing  him  from  the  service,  and  de- 
priving him  of  a  salary,  as  paymaster 
general  during  the  residue  of  his  term  as 
such,  and  as  pay  inspector  afterwards, 
which  in  less  than  two  years  would  ex- 
ceed the  sum  of  five  thousand  dollars. 
Rev.  Stat..  §§  1556.  1565.  1624,  arts.  8,  22, 
48,  53."  Smith  v.  Adams.  130  U.  S.  167, 
175.   32    L.   Ed.   895. 

Where  the  matter  in  dispute  is  whether 
the  petitioner  for  a  writ  of  prohibition  is 
subject  to  a  prosecution  which  may  end 
in  a  sentence  dismissing  him  from  the 
service,  and  depriving  him  of  a  salary  as 
paymaster  general  during  the  residue  of 
his  term  as  such,  and  as  pay  inspector  aft- 
erwards, which  in  less  than  two  years, 
would  exceed  the  sum  of  five  thousand  dol- 
lars, this  court  has  appellate  jurisdiction. 
And  an  objection  that  this  court  has  no  ap- 
pellate jurisdiction  because  there  is  noth- 
ing in  dispute  the  value  of  which  can  be  es- 
timated in  money,  cannot  be  sustained. 
Smith  V.  Whitney,  116  U.  S.  167,  29  L.  Ed. 
601,  citing  Kurtz  v.  Moffitt,  115  U.  S.  487, 
29  L.  Ed.  458;  Columbian  Ins.  Co.  v. 
Wheelright,  7  Wheat.  534,  5  L.  Ed.  516; 
United  States  v.  Addison,  22  How.  174, 
16  L.  Ed.  304,  distinguished  in  Fields  v. 
United  States,  205  U.  S.  292,  51  L.  Ed. 
807. 

"The  case  cannot  be  distinguished  in 
principle  from  those  in  which  it  has  been 
held,  that  a  judgment  awarding  a  pereinp- 
tory  writ  of  inandamus  to  admit  one  to 
an  office,  or  a  judgment  of  ouster  from 
an  office,  might  be  reviewed  by  this  court 
upon  writ  of  error,  if  the  salary  during 
the  term  of  the  office  would  exceed  the 
sum  named  in  the  statute  defining  its  ap- 
pellate jurisdiction.  Columbian  Ins.  Co. 
V.  Wheelright,  7  Wheat.  534,  5  L.  Ed. 
516;  United  States  v.  Addison,  22  How. 
174.  16  L.  Ed.  304."  Smith  v.  Adams.  130 
U.    S.    167,   176,   32   L.    Ed.   895. 

In    Columbian    Ins.    Co.    v.    Wheelright, 


7  Wheat.  534,  5  L.  Ed.  516,  this  court 
quaMicU  a  writ  of  error  to  review  a  judg- 
ment upon  a  writ  of  mandamus  to  admit 
to  an  office,  the  salary  of  which  was  not 
shown  to  be  of  the  pecuniary  value  re- 
quired to  support  the  jurisdiction  of  this 
court.  See,  also.  United  States  v.  Addi- 
son, 22  How.  174,  16  L.  Ed.  304;  Smith 
V.  Whitney,  116  U.  S.  167,  173,  29  L.  Ed. 
601;  United  States  v.  Wanamaker,  147  U. 
S.  149,  37  L,.  Ed.  118;  South  Carolina  v. 
Seymour.  153  U.  S.  353.  358,  38  L.  Ed. 
742. 

10.  Albright  v.  New  Mexico,  200  U.  S. 
9,  50  L.  Ed.  346.  reaffirmed  in  Gutierrez 
V.  New  Mexico,  202  U.  S.  614,  50  L.  Ed. 
1171. 

11.  Right  to  have  goods  transported  by 
a  carrier. — McLean  v.  Denver,  etc.,  R.  Co.,. 
203   U.   S.   38,   51   L.    Ed.   78. 

12.  Custody  of  children. — De  Kraflft  v. 
Barney,  2  Black  704,  17   L.  Ed.  350. 

In  DeKrafft  v.  Barney.  2  Black  704.  17 
L.  Ed.  350,  decided  in  1862,  an  appeal  was 
taken  from  a  decree  of  the  circuit  court 
for  the  District  of  Columbia,  awarding 
the  custody  of  a  child  to  the  father  as 
against  the  divorced  mother;  and  Lee  v. 
Lee,  8  Pet.  44,  8  L.  Ed.  860,  was  referred 
to  as  supporting  the  right  of  appeal.  But 
this  court  dismissed  the  appeal  for  want 
of  jurisdiction.  Chief  Justice  Taney  say- 
ing that  the  case  was  not  distinguishable 
from  Barry  V.  Mercein,  5  How.  103.  12 
L.  Ed.  70;  and  in  that  case  it  was  held, 
"that  in  order  to  give  this  court  jurisdic- 
tion under  the  22d  section  of  the  judiciary 
act  of  1789,  the  matter  in  dispute  must  be 
money,  or  some  right,  the  value  of  which 
could  be  calculated  and  ascertained  in 
money."  Kurtz  v.  Moffitt.  115  U.  S.  487. 
496.   29    L.    Ed.   458. 

In  Barry  v.  Mercein,  5  How.  103.  12  L 
Ed.  70,  decided  in  1847.  this  court  dis 
missed  for  want  of  jurisdiction  a  writ  of 
error  to  reverse  a  judgment  of  the  cir- 
cuit court  for  the  Southern  District  pf 
New   York,  refusing  to   grant  to  a  father 


APPEAL  AND  ERROR.  855 

where  the  controversy  is  between  the  mother  and  the  testamentary  guardian  of 
infant  children,  each  claiming  the  right  to  their  custody  and  care,  since  the  matter 
in  dispute  is  of  such  a  nature  as  to  be  incapable  of  being  reduced  to  any  pecun- 
iary standard  of  value,  the  writ  of  error  will  be  dismissed.i^ 

h.  GiMrdian  and  Ward. — The  value  of  the  interest  a  guardian  has  in  the  min- 
or's estate  is  not  the  value  of  the  estate,  but  that  of  the  office  of  guardian.  This 
is  of  no  value,  except  so  far  as  it  affords  a  compensation  for  labors  and  services; 
and  in  a  controversy  between  persons  claiming  adversely  as  guardians,  having 
no  distinct  interest  of  their  own,  it  cannot  be  considered  as  amounting  to  a  suffi- 
cient sum  to  authorize  an  appeal  to  this  court,  from  a  circuit  court  of  the  Dis- 
trict of  Columbia.^-* 

i.  Registration  of  Tradcma  -ks. — A  writ  of  error  will  not  lie  from  this  court  to 
review  a  judgment  of  the  court  of  appeals  of  the  District  of  Columbia,  denying 
a  writ  of  mandamus  to  the  commissioner  of  patents  to  register  a  trademark, 
where  the  matter  in  dispute  is  not  the  right  to  the  trademark,  but  the  right  to 
have  it  registered,  and  there  is  no  evidence  whatever  in  the  record  that  the  value 
of  the  registration  is  susceptible  of  an  estimate  in  money. ^^ 

j.  Denial  of  Application  for  a  Patent-— The  matter  in  dispute  must  have  ac- 
tual value,  and  that  cannot  be  supplied  by  speculation  on  the  possibility  that,  in 
a  given  case,  an  invention  might  be  held  patentable. i**  Therefore,  the  rio-ht  to 
apply  for  a  patent  cannot  be  regarded  for  jurisdictional  purposes  as  in  itself 
property  or  a  right  of  property  having  an  actual  value  susceptible  of  estimation 
in  money.  Where  the  question  was  whether  the  alleged  invention  was  patentable 
or  not,  that  question  has  no  relation  to  its  value  in  money.  If  the  invention  is 
not  patentable,  the  applicant  has  suffered  no  loss;  if  the  invention  were  patent- 
able, it  is  immaterial  whether  it  had  or  had  not  a  money  value. ^'' 

k.  Divorce  and  Alimony. — No  appeal  lies  to  this  court  from  a  decision  of  the 
supreme  court  of  a  territory  granting  or  refusing  a  divorce,  since  it  is  a  matter 
which  cannot  be  estimated  in  money.^^  But  the  long-established  rule  that  the 
courts  of  the  United  States  have  no  jurisdiction  on  the  subject  of  divorce  or  for 
the  allowance  of  alimony,  either  as  an  original  proceeding  in  chancery,  or  an  in- 

a  writ   of  habeas  corpus   to  take  his   child  no  appellate  power  unless   it   is   conferred 

out   of   the    custody   of   his   wife   who   was  by   act   of   congress,   the   writ   of   error   in 

living    apart    from    him.        Chief      Justice  this    case    must    be    dismissed.      Cited    in 

Taney,    in    delivering   the     opinion,      after  Kurtz    v.    Mofifitt,    115    U.    S.    487,    495,    29    ' 

quoting   the    22d    section    of   the    judiciary  L.    Ed.   458. 

act  of  1789,  said:     "In  order,  therefore,  to  13.    Perrine   v.   Slack,   164   U.   S.   452,   41 

give    us    appellate    power    under    this    sec-  L.    Ed.    510,    following    Barry    v.    Mercein, 

tion,  the  matter  in  dispute  must  be  money,  5    How.    103,    12    L.    Ed.    70;    Chapman    v. 

or  some  right,  the  value  of  which  in  money  United    States,    164   U.    S.    436,   41    L.    Ed! 

can    be    estimated    and   ascertained."      The  504;  Campbell  v.  Waite,  180  U.  S.  635,   4.5 

words  of  the  act  of  congress  are  plain  and  L.    Ed.    709;    Woey    Ho   v.    United    States, 

Unambiguous.     They  give  the  right  of  re-  191  U.  S.  558,  48  L.   Ed.  301. 

vision  in  those  cases  only  where  the  rights  14.     Guardian     and     ward. Ritchie      v. 

of  property  are   concerned,  and  where  the  Mauro,  2   Pet.  243,  7  L.   Ed    411 
matter  in   dispute   has   a   known   and   cer-  jg.    Registration  of  trademarks.-South 

tain   value,  which   can  be  proved  and   cal-  Carolina  r.   Seymour.  153  U.  S    353    38   L 

culated.  m   the   ordinary   mode   of   a   busi-  g^j     Y42  '         ' 

ness   transaction.     There  are  no  words  in  i/?    tn      •  i     r         i-       • 

fhe   law.  which  by  any  just  interpretation  16.  Denial  of  application  for  a  patent.— 

can  be  held  to  extend  the  appellate  juris-  P^p^'^J^  Seymour,  161  U.  S.  235,  239,  40 

diction  beyond  those  limits,  and  authorize  ^-    e,   ■ 

us   to   take   cognizance   of   cases   to   which  17.    Durham  t^.  Seymour,   161   U.   S.  235, 

no   test    of   monev   value    can    be    applied.  40   L.   Ed.    682,    distinguishing   Sparrow   z: 

Nor  indeed  is  this  limitation  upon  the  ap-  Strong,  3  Wall.  97,  17  L.  Ed.  49,  and  dis- 

pellate    power    of    this    court    confined    to  tinguishing    Gandy    v.    Marble.    123    U.    S. 

cases    like    the    one    before    us.      It    is    the  432.  30   L.   Ed.   1223;   Hill  v.  Wooster,  132 

same   in   judgments   in   criminal    cases,   al-  ^'-    S.   693,   33    L.     Ed.      502;      Morgan      v. 

though  the  liberty  or  life  of  the  party  may  Daniels.   153  U.   S.   120.  38  L.   Ed.  657. 
depend    on    the    decision    of     the      circuit  18.     Divorce    and    alimony. — Simms     v. 

court.     And  since  this   court   can   exercise  Simms.  175  U.  S.  162,  44  L.  Ed.  115. 


856 


APPEAL  AND  ERROR. 


ctdent  of  a  divorce,  on  the  ground  that  no  pecuniary  vakie  is  involved,  has  no 
application  to  the  jurisdiction  of  territorial  courts,  or  to  the  appellate  jurisdic- 
tion of  this  court  over  those  courts. ^^  Hence,  an  appeal  may  be  allowed  from 
the  supreme  court  of  a  territory  to  the  supreme  court  of  the  United  States  on  a 
decree  dismissing  a  suit  of  a  husband  for  divorce  and  awarding  the  wife  counsel 
fees  and  alimony,  to  the  sum  of  $5,000  or  more.^^ 

13.  Aggregate  Amount  of  Demand— a.  In  General. — It  is  well  settled  in 
(his  court  that  when  two  or  more  plaintififs.  having  several  interests,  unite  for 
fhe  convenience  of*  litigation  in  a  single  suit,  it  can  only  be  sustained  in  the  court 
of  original  jurisdiction,  or  on  appeal  in  this  court,  as  to  those  whose  claims  ex- 
ceed the  jurisdictional  amount;  and  when  two  or  more  defendants  are  sued  by 
the  same  plaintifif  in  one  suit  the  test  of  jurisdiction  is  the  joint  or  several  char- 
acter of  the  liability  to  the  plaintifif.^i  The  rule  is  clearly  stated  as  follows  by 
Mr.  Justice  Gray :  W?ien  a  suit  is  brought  by  two  or  more  plaintiffs,  or  against 
two  or  more  defendants,  or  to  recover  or  charge  property  owned  or  held  by  dif- 
ferent persons  (which  more  often  happens  under  the  flexible  and  comprehensive 
forms  of  proceeding  in  equity  and  admiralty,  than  under  the  stricter  rules  of  the 
common-law),  the  question  what  is  the  matter  in  dispute  becomes  more  difficuh. 
Generally  speaking,  however,  it  may  be  said,  that  the  joinder  in  one  suit  of  sev- 
eral plaintiffs  or  defendants,  who  might  have  sued  or  been  sued  in  separate  ac- 
tions, does  not  enlarge  the  appellate  jurisdiction ;  that  when  property  or  money 
is  claimed  by  several  persons  suing  together,  the  test  is  whether  they  claim  it  under 
<me  common  right,  the  adverse  party  having  no  interest  in  its  apportionment  or  dis- 
tribution among  them,  or  claim  it  under  separate  and  distinct  rights,  each  of  which 


19.  De  La  Rama  v.  De  La  Rama,  201 
U  S.  303.  50  L.  Ed.  765,  citiner  Simms  v. 
Simms,  175  U.  S.  1&2,  44  L.  Ed.  115;  and 
di.stingtiishing  Barber  v.  Barber,  21  How. 
582.  16  L.  Ed.  226;  Kurtz  v.  Moffitt,  115 
U.  S.  487,  29  L.  Ed.  458;  Durham  v.  Sey- 
H»our,  161  U.  S.  235,  40  L.  Ed.  682;  Per- 
rine  V.  Slack,  164  U.  S.  452,  41   L.  Ed.  510. 

20.  Simms  v.  Simms.  175  U.  S.  162.  44 
L.    Ed.    115. 

A  decree  for  alimony  and  counsel 
fees,  although  in  one  sense  an  incident 
to  the  suit  for  divorce,  is  a  distinct  and 
severable  final  judgment  in  favor  of  the 
defendant  for  a  sum  of  money  of  a  suffi- 
cient jurisdictional  amount,  and  is  there- 
fore good  ground  of  appeal,  for  the  same 
reason  that  a  judgment  for  or  against  the 
defendant  upon  a  counterclaim  of  like 
amount  would  support  the  appellate  juris- 
diction. Dushane  v.  Benedict,  120  U.  S. 
6.30,  636.  30  L.  Ed.  810;  Stuart  v.  Boul- 
ware,  133  U.  S.  78,  33  L.  Ed.  568;  Block 
7K  Darling,  140  U.  S.  234,  35  L.  Ed.  476; 
Simms  V.  Simms,  175  U.  S.  162,  169,  44 
L.    Ed.    115. 

21.  In  general. — Seaver  v.  Bigelow.  5 
Wall.  208.  18  L.  Ed.  595;  Russell  v.  Stan- 
sell.  105  U.  S.  303,  26  L.  Ed.  989:  Farm- 
ers' Loan  and  Trust  Co.  v.  Waterman, 
106  U.  S.  265,  27  L.  Ed.  115;  Hawley  v. 
Fairbanks.  108  U.  S.  543,  27  L.  Ed.  820; 
Stewart  v.  Dunham,  115  U.  S.  61,  29  L. 
Ed.  329;  Gibson  v.  Shufeldt,  122  U.  S.  27, 
M  L.  Ed.  1083;  Clay  7:  Field.  138  U.  S. 
464,  54  L-  Ed.  1044;  Walter  z\  Northeast- 
ern R.  Co.,  147  U.  S.  370,  373,  37  L.  Ed. 
206;  Wheeler  r.  Cloyd.  134  U.  S.  537,  33 
L.    Ed.    100«;    Davis    r.    Schwartz.    155    U. 


S.  631.  647,  39  L.  Ed.  289;  McDaniel  v. 
Traylor,   196  U.   S.   415,  49   L.   Ed.  533. 

The  general  principle  observed  in  all 
is,  that  if  several  persons  be  joined  in  a 
suit  in  equity  or  admiralty,  and  have  a 
common  and  undivided  interest,  though 
separable  as  between  themselves,  the 
amount  of  their  joint  claim  or  liability 
will  be  the  test  of  jurisdiction;  but  where 
their  interests  are  distinct,  and  they  are 
joined  for  the  sake  of  convenience  only, 
and  because  they  form  a  class  of  parties 
whose  rights  or  liabilities  arose  out  of 
the  same  transaction,  or  have  relation  to 
a  common  fund  or  mass  of  property 
sought  to  be  administered,  such  distinct 
demands  or  liabilities  cannot  be  aggre- 
gated together  for  the  purpose  of  giving 
this  court  jurisdiction  by  appeal,  but  each 
must  stand  or  fall  bv  itself  alone.  Shields 
7-.  Thomas,  17  How.  3,  15  L.  Ed.  93; 
Market  Co.  v.  Hoffman.  101  U.  S.  112,  35 
L.  Ed.  782:  The  Connemara,  103  U.  S.  754, 
26  L.  Ed.  322:  The  Mamie,  105  U.  S.  773, 
26  L.  Ed.  937;  Davies  v.  Corbin,  112  U. 
S.  36,  28  L.  Ed.  627;  Estes  v.  Gunter.  121 
U.  S.  183,  30  L.  Ed.  884;  Handley  v.  Stutz, 

137  U.  S.  366.  34  L.  Ed.  706;  Clay  v.  Field, 

138  L.   Ed.  464,   479,    34   L.    Ed.   1044. 
Distinct    and    separate    interests    cannot 

be  united  for  the  purpose  of  making  up 
the  amount  nece.'^sary  to  give  us  jurisdic- 
tion on  appeal.  Russell  v.  Stansell,  105 
U.   S.   303.  26   L.    Ed.   989. 

If  the  matter  before  the  court  is  divis- 
ible, each  of  these  separate  claims  must 
be  of  itself  sufficient  in  amount  to  give 
jurisdiction  to  an  appellate  court.  Elgin 
V.   Marshall,   106  U.   S.  578,  27  L.   Ed.  249; 


APPEAL  AND  ERROR. 


857 


is  contested  by  the  adverse  party ;  that  when  two  persons  are  sued,  or  two  par- 
cels of  property  are  sought  to  be  recovered  or  charged,  by  one  person 
in  one  suit,  the  test  is  whether  the  defendants'  alleged  liability  to  the  plaintiff, 
or  claim  to  the  property,  is  joint  or  several ;  and  that,  so  far  as  affected  by  any 
such  joinder,  the  right  of  appeal  is  mutual,  because  the  matter  in  dispute  be- 
tween the  parties  is  that  which  is  asserted  on  the  one  side  and  denied  on  the 
other.22 


Tapper  v.  Wise,  110  U.  S.  398.  28  L.  Ed. 
189;  Fourth  Nat.  Bank  v.  Stout,  113  U.  S. 
684.  28   L.   Ed.   1152. 

"Indeed,  so  strictly  has  it  been  applied, 
that,  in  cases  where,  although  the  entire 
matter  in  dispute  in  the  suit  exceeds  in 
value  the  jurisdictional  limit,  neverthe- 
less, if  there  are  several  and  separate  in- 
terests in  that  sum,  belonging  to  distinct 
parties,  and  constituting  distinct  causes 
of  action,  although  actually  united  in  one 
suit  and  growing  ort  of  the  same  trans- 
action, the  jurisdiction  of  the  court  has 
been  constantly  denied.  We  have  had  oc- 
casion to  repeat  and  apply  this  principle 
in  several  cases  at  the  present  term.  Ex 
parte  Baltimore  &  Ohio  Railroad  Co., 
Schwed  t'.  Smith,  Farmers'  Lonn  &  Trust 
Co.  V.  Waterman,  Adams  v.  Crittenden, 
ante,  pp.  .5.  188.  265,  .576."  Elgin  v.  Mar- 
shall, 106  U.  S.  .578,  582,  27  L.  Ed.  249. 
reaffirmed  in  Plainview  z'.  Marshall,  106 
U.    S.   583,  27    L.    Ed.   250. 

"In  some  of  these  cases,  the  value  of 
the  matter  in  dispute,  actually  determined 
against  the  party  invoking  onr  appellate 
jurisdiction,  actually  was  largely  in  ex- 
cess of  its  limit,  and  yet  its  .exercise  was 
forbidden,  because  it  was  divided  into 
distinct  claim=.  no  one  of  which  was  suf- 
ficient of  itself  to  entitle  either  party  to 
an  appeal,  although  the  decision  in  one 
was  necessarily  the  same  in  all,  because 
rendered  upon  nrec'sely  the  same  state 
of  facts.  Pus'^ell  7-.  Stan  =  ell.  105  U.  S.  303, 
26  L.  Ed.  989."  Elgin  v.  Marshall.  106  U. 
P.  578.  582.  27  L.  Ed.  240.  reaffirmed  in 
Plainview  v.  Marshall.  106  U.  S.  583,  27 
L.    Ed.    250. 

22.  Gihs'-n  v.  Shufeldt.  122  U.  S.  27. 
SO.   :^0   L.  Ed.   1083. 

niuPtrative  cases. — Several  judements 
severallv  held  by  diflferent  complainants 
who  unite  in  the  prosecution  of  a  cred- 
itors' bill  cannot  be  added  together  in 
order  to  make  the  amount  exceeding  two 
thousand  dollars,  which  is  necessary  in 
order  to  enable  the  court  to  take  appel- 
late jurisdiction.  Hunt  t.  Bender.  154  U. 
S.  5.56.  18  L.  Ed.  915.  citing  Seaver  V. 
Bieelow.   5   Wall.   ^08.   18   L.   Ed.   595. 

In  a  creditors'  bill  brought  by  distinct 
creditors  upon  distinct  judgments  to  reach 
the  property  of  their  common  debtor,  the 
amoi'nt  due  the  several  creditors  could 
net  be  joined  to  give  t"risdiction  on  an 
appeal  by  the  defendants.  Hawlev  7*. 
Fairbanks,  108  U.  S.  54.3.  .549,  27  L.  Ed. 
R?0.  citing  Schwed  7'.  Smith,  106  U.  S. 
]8S.  27  L.  Ed.  1.56:  Sf^aver  v.  Bigclow,  5 
Wall.    208.    18    L,.    Ed.    595. 


Where  a  bill  is  filed  by  several  cred- 
itors to  set  aside  a  fraudulent  conveyance 
by  their  debtor,  unless  the  claim  of  each 
one  of  the  claimants  is  sufficient  to  '^'ve 
this  court  jurisdiction,  the  appeal  will  be 
dismissed  as  to  any  one  of  such  creditors 
whose  claim  is  for  less  than  that  amount. 
Smith  Middlings  Purifier  Co.  v.  Mc- 
Groarty,  136  U.  S.  237,  34  L.  Ed.  346,  cit- 
ing Stewart  v.  Dunham.  115  U.  S.  61,  29 
L.  Ed.  329;  Gibson  v.  Shufeldt.  122  U.  S. 
27,    30    L.    Ed.    1083. 

An  appeal  by  creditors  v^ho  are  joined 
in  a  suit  to  set  aside  a  fraudulent  convey- 
ance by  their  debtor,  will  be  dismissed 
where  the  amounts  found  due  the  appel- 
lants respectively  are  less  than  the  ju- 
risdictional amount.  Seaver  v.  Bigelow, 
5  Wall.  208,  18  L.  Ed.  595;  Schwed  v. 
Smith,  106  U.  S.  188,  27  L.  Ed.  156;  Chat- 
field  V.  Boyle,  105  U.  S.  231.  26  L.  Ed. 
944. 

In  a  suit  by  several  creditors  secured 
under  a  deed  of  assignment,  to  set  aside 
a  fraudulent  conveyance  made  by  that 
debtor,  it  w-as  held,  that  the  claims  of  the 
several  complainants  are  seoarate  and  dis- 
tinct, and  cannot  be  united  for  the  pur- 
pose of  making  up  the  amount  necessary 
to  give  us  iurisdiction.     Chatfield  v.  Boyle, 

105  U.    S.   231,   26   L.   Ed.   944. 

In  a  suit  to  set  aside  a  fraudulent  con- 
veyance by  a  debtor,  which  consisted  in 
the  confession  of  a  judgment  ag-iinst 
himself  in  favor  of  one  of  its  creditors, 
it  was  held,  that  if  each  several  claim  of 
the  appealing  creditor  is  less  than  $5  f>oo, 
but  the  aggregate  claims  exceed  that 
P-nornt  --n  anoeal  will  not  lie.  Because 
the  creditors  have  separate  and  distinct 
interest  depending  on  separate  and  dis- 
tinct judgments  as  well  as  separate  and 
distinct    attachments.      Schwed    v.    SmUh. 

106  U.  S.  188,  27  L.  Ed.  156.  following 
Seaver  v.  Bigelow,  5  Wall.  208,  18  L.  Ed. 
595. 

In  Gibson  v.  Schufeldt.  ]?2  U.  S.  27. 
30  L.  Ed.  1083,  a  suit  was  brought  by  gen- 
eral creditors  to  set  aside  as  fraudulent  a 
conveyance  in  trust  for  the  benefit  "^^  pre- 
ferred creditors.  The  decree  set  aside  the 
conveyance  as  fraudulent  so  far  onlv  as 
it  affected  the  rights  of  the  plaintiffs. 
But  one  of  such  gen<»ral  creditor^  '^id  a 
claim,  amounting  to  $5,000.  A  motion  to 
dismiss  the  appeal  as  to  all  otlipr  plnin- 
tiflFs  was  sustained,  the  court  holding  that 
the  sole  matter  in  dispute  between  the 
defendants  and  each  plaintiff  was  as  to 
the  am.ount  which  the  latter  shoidd  re- 
cover, and  that  the  motion  to  dismiss  the 


858 


APPEAL  AXD  ERROR. 


b.  Several  Liabilities  of  Different  Defendants. — It  is  also  settled  that  neither 


appeal  of  the  defendants  as  to  all  the 
plainlifts,  except  the  one  whose  debt  ex- 
ceeded the  jnri?dictional  amount,  should 
be  granted.  ''Had  the  appellants  recov- 
ered against  _  the  appellees  the  amount 
collected  by  the  latter  upon  their  judg- 
ments, it  is  clear  that  the  amount  in  dis- 
pute for  the  purpose  of  determining  ju- 
risdiction would  be  the  amount  of  recov- 
ery assessed  r..  ''inst  each  defendant 
separately.  Henderson  v.  Wadsworth. 
115  U.  S.  264.  29  L.  Ed.  377;  Friend  v. 
Wise,  111  U.  S.  797,  28  L.  Ed.  602."  Fol- 
lowed in  Chamberlin  v.  Browning,  177 
U.  S.  605,  608,  44  L.  Ed.  906;  People's 
Nat.  Bank  of  Charlottesville  v.  Saville, 
201   U.   S.   641,  50   L.    Ed.   901. 

Where  one  of  several  creditors  secured 
under  a  deed  of  assignment,  filed  a  cred- 
itor's bill,  in  behalf  of  himself  and  the 
other  creditors  secured  under  the  assign- 
ment, to  set  aside  a  fraudulent  conveyance 
in  favor  of  one  Davis,  and  prevent  him 
from  participating  in  the  benefits  of  the 
general  assignment,  on  the  ground  that 
he  was  not  in  reality  a  creditor  of  the  in- 
solvent firm,  but  one  of  the  partners,  it 
was  held  that  the  matter  in  dispute  is  not 
the  whole  amount  of  the  fund  in  the  court 
which  is  claimed  by  Davis,  but  only  so 
much  as  would  be  distributable  to  the 
complainants  under  the  assignment.  if 
Davis  is  adjudged  to  be  a  partner  and  not 
a  creditor.  Chatfield  v.  Boyle.  105  U.  S. 
231,  26  L.  Ed.  944,  citing  and  following 
Terry  v.  Hatch,  93  U.  S.  44,  23  L.  Ed. 
796. 

Where  attaching  creditors  are  not 
jointly  asserting  their  claims  nor  claim- 
ing under  a  common  right,  but  their 
claims  and  the  judgments  based  thereon 
were  separate  and  distinct,  the  one  from 
the  other,  their  claims  cannot  be  united 
to  make  out  the  amount  requisite  to  give 
jurisdiction  of  an  appeal  from  a  decree 
denying  an  injunction  against  the  enforce- 
ment of  their  judgments  against  real  es- 
tate. Chamberlain  v.  Browning,  177  U.  S. 
605.  44  L.  Ed.  906,  following  Gibson  v. 
Shufeldt,  122  U.  S.  27,  30  L.  Ed.  1083; 
People's  Nat.  Bank  of  Charl'^ttesville  v. 
SavM'e,  201   U.   S.  641.   50  L.  Ed.  901. 

Where  a  suit  is  brought  to  set  aside 
sundry  mortgages  to  different  persons  on 
the  eround  that  they  were  executed  in 
fraiid  of  creditors,  if  the  validity  of  each 
depended  upon  its  own  consideration,  in- 
dependent of  the  others,  and  the  decree 
in  favor  of  each  mortgagee  is  several  and 
distinct,  a  motion  to  dismiss  will  be 
granted.  Davis  v.  Schwartz,  155  U.  S. 
631,    38    L.    Ed.    289.      . 

In  Seaver  v.  Bigelow,  5  Wall.  208,  18 
L.  Ed.  595,  a  bill  in  equity  by  two  judg- 
ment creditors  for  less  than  $1,000  each, 
against  their  debtor  and  a  person  alleged 
to   have   fraudulently   obtained   possession 


of  a  fund  of  more  than  $2,000  in  value,  ti. 
compel  satisfaction  of  the  debts  out  of 
that  fund,  was  dismissed,  and  the  plain- 
tiffs appealed.  This  court  dismissed  the 
appeal  for  lack  of  jurisdiction,  Mr.  Jus- 
tice Nelson  saying:  "The  judgment  cred- 
itors who  have  joined  in  this  bill  have 
separate  and  distinct  interests,  depending 
upon  separate  and  distinct  judgments.  In 
no  event  could  the  sum  in  dispute  of 
either  party  exceed  the  amount  of  their 
judgment,  which  is  less  than  $2,000.  The 
bill  being  dismissed,  each  fails  in  obtain- 
ing payment  of  his  demands.  If  it  had 
been  sustained,  and  a  decree  rendered  in 
their  favor,  it  would  only  have  been  for 
the  amount  of  the  judgment  of  each." 
"It  is  true,  the  litigation  involves  a  com- 
mon fund,  which  exceeds  the  sum  of 
$2,000,  but  neither  of  the  judgment  cred- 
itors has  any  interest  in  it  exceeding  the 
amount  of  his  judgment.  Hence,  to  sus- 
tain an  appeal  in  this  class  of  cases,  where 
separate  and  distinct  interests  are  in  dis- 
pute, of  an  amount  less  than  the  statute 
requires,  and  where  the  joinder  of  parties 
is  permitted  by  the  mere  indulgence  of 
the  court,  for  its  convenience,  and  to  save 
expense,  would  be  giving  a  privilege  to 
the  parties  not  common  to  other  litf- 
gants,    and    which    is    forbidden    by    law," 

Seaver  v.  Bigelow  explained. — "In  that 
case,  indeed,  the  whole  amount  of  both 
debts  did  not  exceed  $2,000.  But  the  opin- 
ion, as  appears  by  the  reasoning  above 
quoted,  and  by  the  reference  in  it  to 
Oliver  z:  Alexander.  6  Pet.  143,  8  L..  Ed. 
349,  and  Rich  v.  Lambert,  12  How.  347, 
13  L.  Ed.  1017.  was  evidently  framed  to 
cover  two  other  cases,  argued  and  de- 
cided contemporaneously  with  Seaver  v. 
Bigelow,  which  do  not  appear  in  the  of- 
ficial reports,  except  in  this  brief  note: 
'Similar  decree  made  for  the  same  reason 
in  the  case  of  Field  v.  Bigelow,  and  in 
one  branch  of  Myers  v.  Fenn.'  5  Wall. 
211,  note."  Gibson  v.  Shufeldt.  122  U.  S- 
27,   35,   30   L.    Ed.    1083. 

"The  opinion  of  Mr.  Justice  Nelson  in 
those  two  cases,  remaining  on  file,  and 
published  in  the  edition  of  the  Lawyers' 
Co-Operative  Publishing  Company  (Bk. 
18,  p.  604),  show  the  following  facts:  In 
Field  V.  Bigelow,  the  whole  amount  of 
debts  sued  for  was  more,  although  each 
debt  was  less,  than  $2,000.  and  Mr.  Jus- 
tice Nelson  said,  'No  one  of  the  three 
separate  and  distinct  classes  of  creditors 
held  a  judgment  exceeding  $2,000.  Neither 
judgment  creditor,  therefore,  is  entitled 
to  an  appeal  to  this  court  within  the  stat- 
ute, as  decided  in  the  case  of  Seaver  v. 
Bigelow.'  In  Myers  v.  Fenn,  the  appeal 
was  dismissed,  on  the  authority  of 
Seaver  v.  Bigelows,  as  to  creditors  whose 
claims  were  severally  less,  but  not  as  to 
those  whose   claims   were   severally   more. 


APPEAL  AXD  ERROR^ 


859 


codefenclants  nor  coplaintiffs  can  unite  their  separate  and  distinct  interests  for 


than  that  sum."  G'bsnn  z'.  Shufeldt,  122 
;.  S.  27,  35,  30  L.  Ed.   1083. 

In  Gibson  z:  Shufeldt,  132  U.  S.  27, 
39,  30  L.  Ed.  1083,  it  was  said:  "The 
true  line  of  distinction,  as  applied  to  cases 
like  that  now  before  us,  is  sharply  brought 
out  by  the  recent  decisions  of  Stewart  v. 
Dunham.  115  U.  S.  61,  29  L.  Ed.  329,  and 
Estes  v.  Gunter,  121  U.  S.  183,  30  L.  Ed. 
884,  in  each  of  which  a  preferred  creditor 
for  more  than  $5,000  was  on  one  side, 
and  general  creditors  for  less  than  $5,000 
each  were  on  the  other.  In  Stewart  v. 
Dunham,  the  suit  being  brought  by  the 
general  creditors  against  the  debtor  and 
the  preferred  creditor  to  whom  the  debtor 
had  made  the  convej'ance  alleged  to  be 
fraudulent,  and  the  latter  seeking  no  af- 
firmative relief,  the  matter  in  dispute  as 
between  the  defendants  and  each  of  the 
plaintiff's  was  the  amount  of  the  claim  of 
that  plaintiff;  but  in  Estes  v.  Gunter,  the 
suit  being  brought  by  the  preferred  cred- 
itor against  the  trustee  in  the  deed  of 
assignment  by  which  he  was  preferred, 
and  the  general  creditors  being  sum- 
moned in  as  defendants,  and  themselves 
asking  no  affirmative  relief,  the  matter 
in  dispute  was  the  value  of  the  debt  pre- 
ferred and  of  the  property  assigned  to 
secure   the  preference." 

Suits  by  several  lessors. — Where  the 
subject  matter  of  the  controversy  con- 
sists in  leasehold  interests  held  by  a  cor- 
poration on  coal  lands  belonging  to  sev- 
eral lessors,  and  these  several  parties  are 
allowed  to  intervene  in  a  suit  for  the  ap- 
pointment of  the  receiver,  for  the  purpose 
of  having  their  leases  canceled,  but  there 
is  no  joint  interest  on  the  part  of  these 
several  intervenors,  the  amount  of  the  in- 
terest of  each  is  the  limit  of  this  court's 
appellate  jurisdiction.  While  the  stipula- 
tions in  the  various  leases  respecting 
forfeiture  are  alike,  the  proceedings  for 
forfeiture  are  different;  and  even  if 
similar  proceedings  were  taken  in  each 
case,  that  would  not  make  the  unity  of 
interest  in  the  various  lessors.  The  for- 
feiture of  each  lease  is  an  independent  cause 
of  action,  in  respect  to  which  the  receivers 
in  the  other  leases  have  no  interest.  The 
failure  of  the  one  would  not  defeat  the 
risht  of  the  other.  Henderson  v.  Car- 
bordale  Coal,  etc.,  Co.,  140  U.  S.  25,  35 
L.  Ed.  332.  citing  Gibson  v.  Shufeldt,  122 
U.   S.   27,   30   L.    Ed.   1083. 

Suit  to  enforce  unpaid  stock  subscrip- 
tions.— Where  a  suit  is  brought  to  compel 
three  stockholders  in  a  corporation  to 
pay  their  respective  alleged  unpaid  sub- 
scriptions to  the  capital  stock  of  a  cor- 
poration, this  court  has  no  jurisdiction  to 
review  a  judgment  awarded  severally  fpd 
separately  against  each,  unless  the  unpnid 
subscription  due  by  each  of  the  stockhold- 
ers was  above  the  atnoimt  npre=^pry  to 
give    this    court    jurisdiction,    because    the 


several  subscriptions  could  not  be  united 
to  make  up  the  amount.  And  although 
the  defendants  contend  that  the  amount 
due  from  each  on  their  several  subscrip- 
tions had  been  paid  by  a  conveyance  of 
land  which  was  owned  by  them  jointlj^  this 
is  immaterial,  because  the  matter  in  dispute 
was  the  liability  of  each  for  $5,000,  and 
the  fact  that  their  several  subscriptions 
may  have  been  paid  with  joint  property 
will  not  make  the  question  of  the  liability 
of  each  the  question  of  the  liability  of  all, 
and  they  did  not  seek  a  recovery  over. 
Wilson  r.  Kiesel,  164  U.  S.  248,  41  L.  Ed. 
422,  citing  Chapman  v.  Handley,  151  U. 
S.   443,    38    L.    Ed.    277. 

In  a  suit  for  the  foreclosure  of  a  mort- 
gage on  a  railroad,  it  was  held,  that  claims 
for  back  pay  and  supplies,  cannot  be 
joined  together  so  as  to  make  the  amount 
in  the  aggregate  sufficient  to  give  this 
court  jurisdiction,  since  the  recovery  by 
one  claimant  will  not  necessarily  involve  a 
recovery  by  another  claimant.  There  is 
in  the  case  as  many  separate  and  distinct 
controversies  as  there  are  claims  and  in- 
tervenors. "The  several  intervenors  da 
not,  as  in  The  Connemara,  103  U.  S.  754> 
26  L.  Ed.  322.  claim  under  one  and  the 
same  title,  and  it  is  material  to  the  pur- 
chasers how  much  is  allowed  to  each  and 
every  one,  for  the  amount  of  the  recov- 
ery is  not  determined  by  any  fixed  sum. 
but  by  the  aggregate  of  all  the  separate 
sums  allowed  the  several  claimants  in- 
dividually. The  amount  of  the  recovery 
by  one  is  not  affected  in  any  manner  by 
what  is  allowed  to  another.  Clearly,  there- 
fore, distinct  causes  of  action  in  favor  of 
distinct  parties  have  been  joined  m  the 
same  suit,  and  distinct  decrees  rendered 
in  favor  of  the  distinct  parties."  Farm- 
ers' Loan,  etc.,  Co.  v.  Waterman.  106. 
U.  S.  265.  27  L.  Ed.  115,  cited  and  ap- 
proved in  Hassall  v.  Wilcox,  115  U.  S. 
598.   29    L.    Ed.    504. 

Suit  for  foreclosure  by  bondholders. — 
It  has  been  held,  that  an  appeal  by  half 
of  the  bondholders  of  a  railroad  to  fore- 
close a  mortgage  executed  by  the  railroad 
to  secure  its  bonds  must  be  dismissed, 
w^here  the  amount,  at  par  value,  held  by 
each  of  the  respective  appellants  owning 
them,  is  not  sufficient  to  give  this  court 
jurisdiction  to  review  the  decree  below, 
so  far  as  it  affects  them.  Because  each 
claim  is  distinct  and  separate  from  the 
claims  of  all  other  appellants;  and  the 
right  of  each  claimant  to  be  regarded  as 
a  bona  fide  holder  for  value  depends  upon 
the  special  circumstances  under  which  he 
took  the  bonds  now  held  by  him.  Mc- 
Maury  v.  ]\Ioran,  134  U.  S.  150.  33  L.  Ed. 
814,  following  Gibson  v.  Shufeldt,  122  U. 
S.  27,  30  L.  Ed.  1083;  Jewell  z:  Knight, 
123    U.    S.    426,    427.    31    L.    Ed.    190. 

Purchasers  under  'mortgage  foreclosure. 
—In  Wheeler  v.   Cloyd,  134  U.   S.  537,   33 


860 


APPEAL  AND  ERROR. 


the  purpose  of  making  up  the  amount  necessary  to  give  this  court  jurisdiction 


L.  Ed.  1008,  it  appeared  that  the  plaintiffs 
who  derived  title  from  a  purchaser  under 
the  foreclosure  of  a  mortgage  executed 
by  a  county  to  secure  its  bonds,  filed  their 
bill  against  the  defendants  who  had  pur- 
chased from  the  county  part  of  the  land 
covered  by  the  mortgage  before  fore- 
closure, and  in  this  bill  there  was  a  prayer 
that  defendants  be  compelled  each  to  re- 
deem the  land  so  held  by  them  in  a  given 
time;  it  was  decreed  after  hearing  on 
pleadings  and  proof  that  each  defendant 
acting  for  himself  or  herself,  and  not  for 
any  other,  should  redeem  the  respective 
tracts  of  land,  at  date  of  service  upon 
them  of  process  or  entry  of  appearance, 
held  and  owned  the  equity  of  redemption 
or  residuary  interest  of  the  county.  The 
persons  affected  by  this  decree  took  a 
j©int  appeal.  It  was  held,  that  the  ap- 
peal should  be  dismissed,  because  the 
amount  adjudged  against  any  one  of 
them,  in  order  that  he  might  redeem  his 
respective  tract  or  tracts  of  land,  does 
not  in  any  cas€  reach  the  amount  neces- 
sary to  give  him  jurisdiction  to  entertain 
the  appeal,  and  this  for  the  reason  that 
the  decree  from  which  it  is  taken  is  not 
a  joint  decree,  because  the  liability  of 
each  one  of  the  defendants  under  the  de- 
cree can  be  neither  increased  nor  dimin- 
ished by  any  action  on  the  part  of  any  of 
his  codefendants.  The  right  of  every  one 
of  the  defendants  to  appeal  from  the  de- 
cree is  separate  and  distinct  from  that  of 
the  other  defendants.  Citing  Ex  parte 
Phoenix  Ins.  Co.,  117  U.  S.  367,  29  L.  Ed. 
923;  Gibson  v.  Shufeldt,  122  U.  S.  27,  30 
L.   Ed,    1083. 

Suit  to  enjoin  collection  of  tax. — It  has 
often  been  held,  that  the  distinct  and 
separate  interests  of  complainants  in  a 
suit  for  relief  against  assessments,  cannot 
be  united  for  the  purpose  of  making  up 
the  amount  necessary  to  give  this  court 
or  the  circuit  court  jurisdiction.  Ogden 
City  V.  Armstrong,  168  U.  S.  324,  42  L. 
Ed.  444;  Russell  z'.  Stansell.  105  U.  S.  303. 
26  L.  Ed.  989;  Walter  v.  Northeastern  R. 
Co.,  147  U.  S.  370,  37  L.  Ed.  206;  Wheless 
V.  St.  Louis,  180  U.  S.  379,  382,  45  L.  Ed. 
583.  reaffirmed  in  Stearns  v.  Todd,  204  U. 
S.  669,  51  L.  Ed.  672;  Brown  v.  Denver, 
186   U.    S.    480,    46    L.    Ed.    1259. 

In  Russell  v.  Stansell.  105  U.  S.  303,  26 
L.  Ed.  989.  land  within  a  particular  dis- 
trict was  assessed  for  taxation,  each  owner 
being  liable  only  for  the  amount  where- 
with he  was  separately  charged;  a  bill  of 
complaint  was  filed  by  a  number  of  them, 
praying  for  an  injunction  against  the  col- 
lection of  the  assessment,  and  from  a  de- 
cree dismissing  the  bill  an  appeal  was 
taken  to  this  court.  It  was  heM.  that,  while 
the  complainants  were  permitted,  for  con- 
venience and  to  save  expense,  to  unite  in 
a  petition  setting  forth  the  grievances  of 
which     complaint    was    made,    the    object 


was  to  relieve  each  separate  owner  from 
the  amount  for  which  he  personally, 
or  his  property,  was  found  to  be  account- 
able, and  that  such  distinct  and  separate 
interests  could  not  be  united  for  the  pur- 
pose of  making  up  the  amount  necessary 
to  give  this  court  jurisdiction  on  appeal. 
Ogden  City  v.  Armstrong,  168  U.  S.  224, 
232,    42    L.    Ed.    444. 

A  circuit  court  of  the  United  States  has 
no  jurisdiction  over  a  bill  in  equity  to  en- 
join the  collection  of  taxes  from  a  rail- 
road company,  when  distinct  assessments, 
in  separate  counties,  no  one  of  which 
amounts  to  $2,000,  and  for  which,  in  case 
of  payment  under  protest,  separate  suits 
must  be  brought  to  recover  back  the 
amounts  paid,  are  joined  in  the  bill  and 
make  an  aggregate  of  over  $2,000.  North- 
ern Pac.  R.  Co.  T.  Walker,  148  U.  S.  391, 
37  L.  Ed.  494,  following  Walter  v.  North- 
eastern R.  Co..  147  U.  S.  370.  37  L.  Ed. 
200. 

In  Walter  v.  Northeastern  R.  Co.,  147 
U  S.  370,  37  L.  Ed.  206,  we  held  that  "a 
circuit  court  of  the  United  States  has  no 
jurisdiction  over  a  bill  in  equity  to  enjoin 
the  collection  of  taxes  from  a  railroad 
company,  when  distinct  assessments  in 
separate  counties,  no  one  of  which 
amounts  to  two  thousand  dollars,  and 
for  which,  in  case  of  payment  under  pro- 
test, separate  suits  must  be  brought  to 
recover  back  the  amounts  paid,  are  joined 
together  in  the  bill,  making  an  aggregate 
of  over  two  thousand  dollars."  Fishback 
V.  Western  Union  Tel.  Co..  161  U.  S.  96, 
100;  Fishback  v.  Pacific  Express  Co., 
161  U.   S.   101,  40  L.   Ed.   630. 

The  general  averment  in  a  bill  to  enjoin 
the  collection  of  separate  county  taxes  by 
separate  county  ofificers  that  "the  amount 
or  value  in  controversy  in  this  suit  ex- 
ceeds the  sum  of  two  thousand  dollars, 
exclusive  of  interest  and  costs."  was  a 
mere  conclusion,  and  it  was  nowhere 
shown  that  the  amount  of  ary  of  these 
distinct  county  assessments,  the  collection 
of  which  was  entrusted  to  these  tax  col- 
lectors, exceeded  that  sum,  while,  on  the 
contrary,  the  total  valuation  of  the  prop- 
erty of  the  telegraph  comoany  assessed 
a«  belonging  to  or  operated  bv  it  in  one 
county  was  such  as  to  preclude  the  idea 
that  the  amount  of  the  assessment  in  such 
county  would  approach  two  thousand  dol- 
lars. "Although  if  these  county  assess- 
ments were  aggregated  they  would  con- 
siderably exceed  two  thousand  dollars, 
yet  the  several  county  clerks  or  tax  col- 
lectors cannot  be  joined  in  a  single  suit 
in  a  federal  court  and  the  jurisdiction  sus- 
tained on  the  ground  that  the  total 
amount  involved  exceeds  the  jurisdictional 
limitation,  as  already  ruled  in  Walter's 
case,  nor  do  we  find  any  ground  as  we  did 
in  Northern  Pac.  R.  Co.  7'.  Walker,  148 
U.   S.   391,   37   L.   Ed.   494,   upon  which  an 


APPEAL  AXD  ERROR. 


861 


upon  writ  of  error  or  appeal.^s  In  short,  the  rule  applicable  to  several  plaintiffs 
liaving  separate  claims,  that  each  must  represent  an  amount  sufficient  to  give 
the  court  jurisdiction,  is  equally  applicable  to  several  liabilities  of  different  de- 


amendment  could  be  permitted.''  Fish- 
back  V.  Western  Union  Tel.  Co.,  161  U. 
S.  96.  100.  40  L.  Ed.  630;  Fishback  v.  Pa- 
cific Express  Co.,  161  U.  S.  101,  40  L.  Ed. 
632. 

In  Citizens'  Bank  v.  Cannon,  164  U.  S. 
319,  41  L.  Ed.  451,  a  bill  in-  equity  was 
filed  in  the  circuit  court  of  the  United 
States  for  the  western  district  of  Louis- 
iana, against  several  defendants  who  were 
sheriflfs  respectivel)^  of  a  number  of  par- 
ishes in  that  district,  seeking  to  enjoin 
the  defendants  from  enforcing  the  pay- 
ment of  taxes  alleged  to  be  due  from  the 
bank  on  lands  owned  by  it  in  the  several 
parishes.  But  Jhe  bill  contained  no  spe- 
cific allegation'  as  to  the  amount  of  the 
assessment  or  taxes  for  any  one  parish, 
but  averred  that  the  taxes  so  assessed 
exceeded,  exclusive  of  interest  and  costs, 
the  sum  of  two  thousand  dollars.  The 
court,  in  dismissing  the  bill  for  want  of 
jurisdiction,  said:  "This  must  be  under- 
stood to  mean  that  the  aggregate  amount 
of  the  taxes  for  the  several  parishes  ex- 
ceeded two  thousand  dollars,  and  the 
theory  of  that  part  of  the  bill  evidently 
was  that  the  amount  involved,  in  order  to 
confer  jurisdiction  en"  the  circuit  court, 
could  be  reached  by  adding  together  the 
taxes  for  the  several  parishes.  But,  for 
reasons  given  in  the  recent  cases  of  Wal- 
ter V.  Northeastern  R.  Co.,  147  U.  S.  370, 
37  L.  Ed.  206,  and  Northern  Pac.  R.  Co. 
V.  Walker,  148  U.  S.  391.  37  L.  Ed.  494, 
jurisdiction  cannot  be  conferred  on 'the 
circuit  court  by  joining  in  one  bill  against 
distinct  defendants  claims  no  one  of 
which  reached  the  jurisdictional  amount." 

In  accordance  with  the  well-settled  rule 
of  this  court  that,  in  a  suit  in  equity 
brought  by  two  or  more  persons  on  sev- 
eral and  distinct  demands,  the  defendant 
can  appeal  to  this  court  as  to  those  plain- 
tiffs only  to  each  of  whom  more  than 
$.5,000  was  decreed,  it  is  held,  that  in  a 
suit  by  several  separate  property  owners 
to  restrain  the  collection  of  taxes  assessed 
upon  separate  lots,  it  is  not  competent  to 
make  rp  the  sum  necessary  to  give  this 
court  jurisdiction  by  uniting  the  several 
sums  for  which  each  taxpayer  is  liable. 
Ogden  City  v.  Armstrong.  168  U.  S.  224, 
42  L.  Ed.  444.  following  Russell  v.  Stan- 
sell,  105  U.  S.  303,  26  L.  Ed.  989;  Gibson 
V.  Shnfeldt,  122  U.  S.  27,  30  L.  Ed.  1083. 

Where  a  writ  of  mandamus  was  issued 
to  compel  a  county  clerk  to  extend  upon  a 
tax  collector's  books  a  sum  sufficient  to 
pay  several  distinct  judgments  held  by 
different  persons,  it  was  held,  that  the 
case  was  like  Seaver  v.  Bigelow,  5  Wall. 
208,  18  L.  Ed.  595,  and  Schwed  v.  Smith. 
106  U.  S.  188,  27  L.  Ed.  156,  and  the  de- 
fendant's  right   of   appeal   was  determined 


by  the  amount  of  each  judgment.  Hawley 
V.  Fairbanks,  108  U.  S.  543,  27  L.  Ed.  820. 
Application  for  distribution  of  estate.— 
Under  the  statutes  of  Utah  providing  for 
the  distribution  of  personal  property 
amoung  the  persons  by  law  entitled 
thereto,  upon  the  final  settlement  of  the 
accounts  of  an  executor  or  administrator, 
the  claims  of  distributees  are  several  and 
not  joint,  and  a  joint  application  for  dis- 
tribution can  only  result  in  judgments  in 
severalty.  And  accordingly  this  court  has 
no  jurisdiction  unless  the  distributive 
share  of  each  reaches  the  sum  necessary 
to  give  this  court  jurisdiction.  Chapman 
V.  Handley,  151  U.  S.  443,  38  L.  Ed.  277, 
citing  Gibson  v.  Shufeldt,  122  U.  S.  27,  30 
L.  Ed.  1083;  Miller  v.  Clark.  138  U.  S. 
223,  34  L.  Ed.  966;  Henderson  v.  Carbon- 
dale  Coal,  etc.,  Co.,  140  U.  S.  25,  35  L. 
Ed.  332;  New  Orleans  Pac.  R.  Co.  v.  Par- 
ker, 143  U.  S.  42.  36   L.   Ed.  66. 

23.  Several  liabilities  of  different  defend- 
ants.— Rich  V.  Lambert,  12  How.  347.  13 
L.  Ed.  1017;  Seaver  v.  Bigelow,  5  Wall. 
208,  18  L.  Ed.  595;  Paving  Co.  v.  Mulford. 
100  U.  S.  147,  25  L.  Ed.  591;  Russell  v. 
Stansell,  105  U.  S.  303,  26  L.  Ed.  989;  Ex 
parte  Baltimore,  etc.,  R.  Co.,  106  U.  S.  5. 
27  L.  Ed.  78;  Farmers'  Loan,  etc.,  Co. 
V.  W^aterman,  106  U.  S.  265,  27  L.  Ed.  115; 
Adams  z'.  Crittenden,  106  U.  S.  576,  27  L. 
Ed.  99;  Hawley  v.  Fairbanks,  108  U.  S. 
543,  27  L.  Ed.  820;  New  Jersey  Zinc  Co. 
V.  Trotter,  108  U.  S.  543,  564,  27  L.  Ed. 
820;  Tupper  v.  Wise,  110  U.  S.  398,  28  L. 
Ed.  189;  Fourth  Nat.  Bank  v.  Stout,  113 
U.  S.  684.  28  L.  Ed.  1152;  Henderson  v. 
Wadsworth.  115  U.  S.  264,  276,  29  L.  Ed. 
377;  Chamberlin  v.  Browning,  177  U.  S. 
605,   608,   44  L.   Ed.  906. 

"It  is  well  settled  that  neither  code- 
fendants  nor  co-complainants  can  unite 
their  separate  and  distinct  interests  for 
the  purpose  of  making  up  the  amount 
necessary  to  give  us  jurisdiction  on  an 
appeal.  Seaver  v.  Bigelow,  5  Wall.  208, 
18  L.  Ed.  595;  Rich  v.  Lambert,  12  How. 
347,  13  L.  Ed.  1017;  Oliver  v.  Alexander, 
6  Pet.  143,  8  L.  Ed.  349;  Stratton  v.  Jarvis, 
8  Pet.  4,  8  L.  Ed.  846.  In  such  cases,  the 
appeal  of  each  separate  defendant  or  com- 
plainant must  stand  or  fall  according  as 
his  own  interest  in  the  controversy  ex- 
ceeds or  falls  short  of  our  jurisdictional 
amount.  The  same  principle  applies  here. 
For  the  purposes  of  an  appeal,  each  sep- 
arate controversy  must  be  treated  as  a 
separate  suit.  Under  this  appeal,  two 
separate  controversies  have  been  brought 
here,  and  in  neither  is  the  amount  in- 
volved sufficient  to  give  us  jurisdiction." 
Paving  Co.  v.  Mulford,  100  U.  S.  147,  148. 
25  L.  Ed.  591. 


862 


APPEAL  AND  ERROR. 


fendants  to  the  same  plaintiff. 2* 

c.  Bill  by  Single  Plaintiff  to  Enforce  Distinct  Liabilities. — Upon  the  same 
principle,  neither  party  can  appeal  from  a  decree  upon  a  bill  by  a  single  plaintiff 
to  enforce  separate  and  distinct  liabilities  against  several  defendants,  if  the  sum 
for  which  each  is  alleged  or  found  to  be  liable  is  less  than  the  jurisdictional 
amount. 25 

d.  Decree  against  Appellant  for  Several  Distinct  Claims. — The  same  rule  has 
been  applied  in  many  recent  cases  where  the  appeal  has  been  taken  by  the  party 
who  had  been  ordered  by  the  decree  below  to  pay  several  distinct  claims  amount- 
ing together  to  more  than  $5,000.2^ 


24,  Walter  v.  Northeastern  R.  Co.,  147 
U.   S.   370.   374,   37   L-    Ed.   206. 

As  illustrative  of  the  rule  as  applied  to 
cases  of  joint  defendants,  it  was  held  in 
Stratton  v.  Jarvis.  8  Pet.  4,  8  L.  Ed.  846. 
that,  where  a  libel  for  salvage  was  tiled 
against  several  packages  of  merchandise,  " 
and  a  decree  was  rendered  against 
each  consignment  for  an  amount  not 
sufficient  in  itself  to  authorize  an 
appeal  by  any  one  claimant,  the  ap- 
peal of  each  claimant  must  be  treated 
as  a  separate  one,  and,  the  amount 
in  each  case  being  insufficient,  this  court 
had  no  jurisdiction  of  the  appeal  of  any 
claimant.  A  similar  ruling  was  made  in 
Spear  v.  Henry  Place,  11  How.  522,  13  L. 
Ed.   796. 

In  Paving  Co.  v.  Mulford,  100  U.  S. 
147,  25  L.  Ed.  591,  a  bill,  filed  against  two 
defendants,  alleging  that  each  held  certifi- 
cates of  indebtedness  belonging  to  the 
plaintifif.  was  dismissed  on  final  hearing, 
and  plaintiff  appealed,  and  it  was  held, 
that,  as  the  recovery,  if  any,  must  be 
against  the  defendant  severally,  and  as 
the  amount  claimed  from  each  did  not  ex- 
ceed the  requisite  sum,  this  court  had  no 
jurisdiction. 

In  Schwed  v.  Smith,  106  U.  S.  188,  190, 
27  L.  Ed.  156,  certain  creditors  recovered 
separate  judgments  against  a  debtor 
amounting  in  the  aggregate  to  more  than 
$5,000,  but  none  of  which  exceeded  that 
sum,  and  filed  a  bill  against  him  and  a 
preferred  creditor  to  subject  to  the  pay- 
ment of  their  judgment  goods  which  had 
been  seized  upon  a  prior  judgment,  in 
which  they  succeeded,  and  defendant  ap- 
pealed. The  appeal  was  dismissed,  the 
court  holding  that  if  the  decree  were 
several  as  to  the  creditors,  it  was  equally 
so  as  to  their  adversaries.  "The  theory 
is,  that,  although  the  proceeding  is  in 
form  but  one  suit,  its  legal  effect  is  the 
same  as  though  separate  suits  had  been 
begun  on  each  of  the  separate  causes  of 
action." 

So  in  Henderson  v.  Wadsworth,  115 
U.  S.  264,  29  L.  Ed.  377,  it  was  held,  that 
where  a  suit  was  brought  against  sev- 
eral heirs  to  enforce  their  liability  for  the 
payment  of  a  note  on  which  their  ances- 
tor was  bound,  and  separate  judgments 
were  rendered  against  each  for  his  pro- 
portionate  share,   this   court   had   jurisdic- 


tion   in    error    only   over    such   judgments 
as    exceeded    $5,000. 

And,  again,  in  Ex  parte  Phoenix  Ins. 
Co.,  117  U.  S.  367,  29  L.  Ed.  923,  that 
distinct  decrees  against  different  parties 
on  a  single,  cayse  of  action  in  which  there 
were  distinct  liabilities,  could  not  be 
joined  to  give  this  court  jurisdiction  on 
appeal.  In  that  case  the  suit  was  brought 
upon  a  single  policy  of  insurance  written 
by  four  diflferent  companies,  and  the  de- 
cree was  against  each  company  severally 
for  its  separate  obligation. 

25.  Bill  by  single  plaintiff  to  enforce 
distinct  liabilities. — Gibson  v.  Shufeldt, 
122  U.  S.  27,  37,  30  L-   Ed.  1083. 

For  instance,  it  was  decided  in  Paving 
Co.  V.  Mulford,  100  U.  S.  147,  25  L.  Ed. 
591,  that  the  plaintiff  could  not  appeal 
from  the  dismissal, of  a  bill  to  assert  a 
right  against  two  defendants  in  two  dis- 
tinct certificates  of  indebtedness,  held  by 
them  severally,  for  sums  severally  less, 
though   together  more,  than  that  amount. 

And  in  Ex  parte  Phoenix  Ins.  Co.,  117 
U.  S.  367,  29  L.  Ed.  923,  that  four  in- 
surance companies  could  not  appeal  from 
a  decree  that  each  of  them  should  pay 
$3,000  to  the  plaintiff. 

26,  Decree  against  appellant  for  several 
distinct  claims. — Gibson  t'.  Shufeldt,  122 
U.  S.  27,  36,  30  L.  Ed.   1083. 

In  Schwed  v.  Smith,  106  U.  S.  188,  27 
L.  Ed.  156,  property  worth  more  than 
$5,000  having  been  taken  on  execution 
upon  a  judgment  confessed  by  the  owners 
in  favor  of  one  Heller  for  more  than 
$5,000,  subsequent  attaching  creditors, 
whose  claims  were  jointly  more,  but  sev- 
erally less,  than  that  sum,  filed  a  bill  in 
equity  against  the  debtors.  Heller  and  the 
sheriff,  and  obtained  a  decree  declaring 
Heller's  judgment  void  as  against  the 
plaintiffs.  An  appeal  by  the  defendants 
was  dismissed  on  motion  for  want  of 
jurisdiction,  the  chief  justice  saying:  It 
is  impossible  to  distinguish  this  case  in 
principle  from  Seaver  v.  Bigelow,  5  Wall, 
208,  18  L.  Ed.  595.  "If  the  decree  is  sev- 
eral as  to  the  creditors,  it  is  difficult  to 
see  why  it  is  not  as  to  their  adversaries. 
The  theory  is,  that,  although  the  proceed- 
ing is  in  form  but  one  suit,  its  legal  effect 
is  the  same  as  though  separate  suits  had 
been  begun  on  each  of  the  separate  causes 
of   action."      "Although    the    effect   of   the 


APPEAL  AND  ERROR. 


863 


e.  Distinct  Judgments  and  Decrees  against  Distinct  Parties  on  Distinct  Causes. 
— The  rule  is  well  settled  that  distinct  decrees  against  distinct  parties  on  dis- 
tinct causes  of  action,  or  on  a  single  cause  of  action  in  which  there  are  distinct 
liabilities,  cannot  be  joined  to  give  this  court  jurisdiction  on  appeal. ^^ 


decree  is  to  deprive  Heller  in  the  aggre- 
gate of  more  than  $5,000,  it  has  been  done 
at  the  suit  of  several  parties  on  several 
claims,"  who  might  have  sued  separately, 
but  whose  suits  have  been  joined  in  one 
for  convenience  and  to  save  expense." 

In  Farmers'  Loan  &  Trust  Co.  v.  Wa- 
terman, 106  U.  S.  265,  27  L.  Ed.  115,  the 
purchasers  of  a  railroad  subject  to  the 
debts  of  intervening  petitioners  appealed 
from  a  decree  ordering  them  to  pay  vari- 
ous sums  to  the  petitioners  respectively, 
amounting  in  all  to  more  than  $5,000,  and 
the  appeal  was  dismissed  as  to  those  peti- 
tioners whose  debts  were  severally  less 
than  that  sum. 

And  in  Hassall  v.  Wilcox,  115  U.  S.  598, 
29  L-  Ed.  504,  a  similar  decision  was  made 
upon  an  appeal  by  the  trustee  in  a  rail- 
road mortgage  from  a  decree  in  favor  of 
several  creditors  claiming  prior  liens. 

In  Fourth  Nat.  Bank  v.  Stout,  113  U.  S. 
684,  28  L.  Ed.  1152,  the  court  dismissed 
the  appeal  of  a  bank  from  a  decree  ad- 
judging that  it  held  property  of  another 
corporation  in  trust  for  the  creditors  of 
the  latter  (one  of  whom  had  filed  the 
bill,  and  the  others  had  intervened  by 
leave  of  court  pending  the  suit),  and  di- 
recting the  bank  to  pay  to  the  creditors 
severally  sums  of  less  than  $5,000,  amount- 
ing in  all  to  more  than  $5,000.  Gibson  v. 
Shufeldt,  122  U.  S.   27,   37,  30   L.   Ed.   1083. 

In  Stewart  v.  Dunham,  115  U.  S.  61, 
29  L.  Ed.  329,  upon  a  bill  in  equity  in 
behalf  of  judgment  creditors  (including 
some  who  came  in  pending  the  suit), 
against  their  debtor  and  one  to  whom  he 
had  made  a  conveyance  of  property  al- 
leged to  be  fraudulent  and  void  as  against 
his  creditors,  by  the  decree  below  the 
conveyance  was  adjudged  to  have  been 
made  to  hinder,  delay  and  defraud  cred- 
itors, with  the  knowledge  and  connivance 
of  the  grantee,  and  was  canceled,  set  aside, 
and  declared  to  be  null  and  void,  and  the 
defendants  were  ordered  to  pay  out  of 
the  property  to  the  plaintiffs  respectively 
various  sums,  one  of  which  was  more  and 
the  others  less  than  $5,000;  and  the  de- 
fendants took  an  appeal,  which  was  dis- 
missed as  to  all  the  creditors  except  the 
one  to  whom  more  than  $5,000  had  been 
awarded.  Expressly  approved  in  Gibson 
V.  Shufeldt.  122  U.  S.  27,  37,  30  L-  Ed. 
1083. 

27.  Distinct  judgments  and  decrees 
against  distinct  parties  on  distinct  causes. 
— Seaver  v.  Bigelow,  5  Wall.  208,  18  L. 
Ed.  595;  Ex  parte  Baltimore,  etc.,  R.  Co., 
106  U.  S.  5,  27  L.  Ed.  78;  Schwed  v. 
Smith,  106  U.  S.  188,  27  L.  Ed.  156;  Farm- 
ers' Loan  &  Trust  Co.  v.  Waterman,  106 
U.    S.    265,    270,   27    L.    Ed.    115;    Adams    v. 


Crittenden,  106  U.  S.  576,  27  L.  Ed.  99; 
Hawley  v.  Fairbanks.  108  U.  S.  5-13.  27 
L.  Ed.  820;  Fourth  Nat.  Bank  v.  Stout, 
113  U.  S.  684,  28  L.  Ed.  1152;  Stewart  v. 
Dunham,  115  U.  S.  61,  64,  29  L.  Ed.  329; 
Ex  parte  Phcenix  Ins.  Co.,  117  U.  S.  367, 
369,  29L.  Ed.  923;  Farmers'  Loan  &  Trust 
Co.  V.  Waterman,  106  U,  S.  265.  27  L.  Ed. 
115;  Clay  7'.  Field.  138  U.  S.  464,  479.  34 
L.  Ed.  1044;  Tupper  v.  Wise,  110  U.  S. 
398,  399,  28  L-  Ed.  189,  reaffirmed  in  Lynch 
V.   Bailev,  110  U.  S.  400,  28  L.  Ed.  190. 

"In  all  of  these  cases  the  procedure  is, 
in  truth,  a  joinder  of  separate  and  distinct 
causes  of  action,  the  decrees  in  which, 
where  several  in  their  nature,  should  be 
treated  as  several  in  their  operation  even 
though  joint  in  form."  See,  also,  Hanrick 
V.  Patrick,  119  U.  S.  156,  30  L.  Ed.  396; 
Russell  V.  Stansell,  105  U.  S.  303,  26  L. 
Ed.  989,  citing  Paving  Co.  v.  Mulford, 
100  U.  S.  147,  25  L.  Ed.  591;  Seaver  v. 
Bigelow,  5  Wall.  208,  18  L.  Ed.  595;  Rich 
V.  Lambert,  12  How.  347,  13  L.  Ed.  1017; 
Stratton  v.  Jarvis,  8  Pet.  4,  8  L.  Ed.  846; 
Oliver  v.  Alexander,  6  Pet.  143,  8  L.  Ed. 
349. 

In  Henderson  v.  Wadsworth,  115  U.  S. 
264,  276,  29  L.  Ed.  377,  where  in  an  action 
against  heirs  upon  a  debt  of  their  ance.'itor, 
separate  judgments  were  rendered  against 
them  for  their  proportionate  shares,  it  was 
held,  that  no  one  who  had  been  thus 
charged  with  less  than  $5,000  could  ap- 
peal; and  Mr.  Justice  Woods,  in  deliver- 
ing judgment,  declared  it  to  be  well 
settled  that  "where  a  judgment  or  decree 
against  a  defendant,  who  pleads  no  coun- 
terclaim or  set-off,  and  asks  no  affirmative 
relief,  is  brought  by  him  to  this  court  by 
writ  of  error  or  appeal,  the  amount  in 
dispute  on  which  the  jurisdiction  depends 
is  the  amount  of  the  judgment  or  decree 
which  is  sought  to  be  reversed,"  and  that 
"neither  codefendants  nor  coplaintiffs  can 
unite  their  separate  and  distinct  interests 
for  the  purpose  of  making  up  the  amount 
necessary  to  give  this  court  jurisdiction 
upon  writ  of  error  or  appeal." 

In  Adams  v.  Crittenden,  106  U.  S.  576, 
27  L.  Ed.  99,  a  suit  was  begun  in  equity 
by  an  assignee  in  bankruptcy  and  a  pur- 
chaser of  certain  lands  sold  under  an  or- 
der of  the  bankrupt  court,  to  restrain  one 
defendant  from  enforcing  a  decree  in  his 
favor  against  the  property  for  $1,828,  and 
another  defendant  from  enforcing  a  decree 
in  his  favor  for  $2,348.  The  decrees  to  be 
enjoined  were  entirely  separate  and  dis- 
tinct from  each  other,  having  been  ren- 
dered in  different  suits.  The  two  suits 
presented  substantially  the  same  questions, 
for  adjudication,  but  they  were  in  all  other 
respects    distinct.      The    court    held    that 


864 


APPEAL  AND  ERROR. 


i.  Appeals  in  Admiralty. — It  has  been  held,  that  when  in  admirahy  distinct 
causes  of  action  in  favor  of  distinct  parties,  growing  out  of  the  same  transaction, 
are  united  in  one  suit,  according  to  the  practice  of  the  courts  of  that  jurisdic- 
tion, distinct  decrees  in  favor  of  or  against  distinct  parties  cannot  be  joined 
to  give  this  court  jurisdiction,  on  appeal. ^^ 


although  the  aggregate  of  the  two  de- 
crees, with  interest  added  to  the  date  of 
the  dismissal  of  the  bill,  did  not  exceed 
$5,000,  nevertheless  this  court  did  not 
have  jurisdiction,  under  the  rule  that  dis- 
tinct decrees  in  favor  of  or  against  dis- 
tinct parties  cannot  be  joined  to  give  this 
court  jurisdiction. 

28.  Appeals  in  admiralty. — Oliver  v. 
Alexander,  6  Pet.  143,  8  L.  Ed.  349;  Strat- 
ton  V.  Jarvis,  8  Pet.  4,  8  L.  Ed.  846;  Spear 
V.  Henry  Place,  11  How.  522,  13  L-  Ed. 
796;  Rich  v.  Lambert,  12  How.  347,  13  L. 
Ed.  1017;  Ex  parte  Baltimore,  etc.,  R.  Co., 
106  U.  S.  5,  27  L.  Ed.  78. 

In  equity,  as  in  admiralty,  when  several 
persons  join  in  one  suit  to  assert  several 
and  distinct  interests,  and  those  interests 
alone  are  in  dispute,  the  amount  of  the 
interest  of  each  is  the  limit  of  the  appel- 
late jurisdiction.  Gibson  v.  Shufeldt,  122 
U.  S.   27,  34,  30  L.   Ed.  1083. 

When  separate  claims  are  interposed, 
although  the  libel  is  joint  against  the 
whole  property,  each  claim  is  treated  as 
a  distinct  and  independent  proceeding  in 
the  nature  of  a  several  suit,  upon  which 
there  may  be  a  several  independent  hear- 
ing, decree  and  appeal.  Stratton  v.  Jarvis, 
8  Pet.  4.  8  L.  Ed.  846. 

Where  several  owners  of  a  cargo  filed 
libels  in  rem  against  the  vessel  for  dam- 
ages done  to  the  goods,  and  these  libels 
were  consolidated  by  order  of  the  court, 
which  afterwards  decreed  damages  in 
favor  of  the  libelants,  in  some  cases  to 
more  and  in  some  to  less  than  $2,000. 
those  cases  where  the  damages  are  less 
than  that  sum  must  be  dismissed,  on  an 
appeal  to  this  court,  for  want  of  jurisdic- 
tion. Rich  V.  Lambert,  12  How.  347,  13 
L.  Ed.  1017. 

Where  a  libel  was  filed  to  recover 
freight  on  cotton,  and  a  decree  .rendered. 
in  favor  of  the  libelant,  for  the  amount 
of  the  freight,  $2,338.06.  and  that  B.  pay 
to  the  libelant  $583.84  thereof,  and  that 
S.  pay  $1,754.22  thereof,  and  S.  appealed 
from  the  decree  to  this  court,  the  court 
dismissed  the  appeal,  on  the  ground  that 
the  decree  against  S.  is  less  than  $2,000. 
The  freight  was  separately  awarded 
against  the  claimants,  in  proportion  to  the 
cotton  shipped  by  each  one,  and  the  rights 
of  each  were  distinct  and  independent. 
But  if  it  were  otherwise,  and  the  whole 
of  the  freight  was  jointly  decreed  against 
the  claimants,  the  appeal  must  still  be 
dismissed,  as  then  both  the  claimants 
should  have  joined  in  it.  Sheldon  v.  Clif- 
ton, 23   How.  481,   16  L.   Ed.  429. 

Where  in  a  suit  for  collisi(nn,  distinct 
causes  of  action   in  favor   of  distinct  par- 


ties are  united  in  one  suit,  and  distinct 
decrees  in  favor  of  the  parties  are  entered 
against  the  vessel,  unless  the  sum  de- 
creed to  each  exceeds  $5,000^  an  appeal 
will  not  lie  to  this  court.  Ex  parte  Bal- 
timore, etc.,  R.  Co.,  106  U.  S.  5,  27  L.  Ed. 
78,  distinguishing  Shields  v.  Thomas,  17 
How.  3,  15  L.  Ed.  93;  Market  Co.  v.  Hoff- 
man, 101  U.  S.  112.  25  L.  Ed.  782;  The 
Connemara,  103  U.  S.  754,  26  L.  Ed.  322, 
on  the  ground  that  the  controversies  m 
those  cases  were  about  matters  in  Which 
the  several  claimants  were  interested  col- 
lectively under  a  common  title.  They 
each  had  an  undivided  interest  in  the 
claim,  and  it  was  perfectly  immaterial  to 
their  adversaries  how  the  recovery  was 
shared  among  them.  If  a  dispute  arose 
about  the  division,  it  would  be  between  the 
claimants  themselves,  and  not  those  with 
whom  the  claim  was  made.  The  distinc- 
tion between  the  two  classes  of  cases  was 
clearly  stated  by  Chief  Justice  Taney  in 
Shields  V.  Thomas.  17  How.  3,  15  L.  Ed. 
93.  It  may  not  always  be  necessary  to 
determine  the  class  to  which  a  particular 
case  belongs,  but  the  rule  recognizing 
the  existence  of  the  two  classes  has  long 
been  established. 

But  in  The  Propeller  Burlington.  137 
U.  S.  386.  34  L.  Ed.  731,  the  libelant  filed 
his  libel  in  the  district  court  to  recover 
damages  for  the  loss  of  a  barge  while 
being  towed  because  of  the  negligent  and 
careless  management  of  the  tow.  And  the 
district  court  entered  final  decree  fixing 
the  damages  for  the  loss  of  the  cargt-  at 
$3,361.93.  and  for  the  loss  of  the  barge 
;md  freight  at  the  sum  of  $2,829.83,  in  all, 
$6,191.76;  and  it  further  appearing  to  the 
court  that  the  propeller  had  been  duly 
appraised  at  the  sum  of  $5,300.  and  that 
a  stipulation  with  sureties  had  been  filed 
in  that  amount  to  secure  the  judgment  of 
the  court,  it  was  ordered  that  the  said 
sum  of  $5,300  be  apportioned  and  dis- 
tributed as  follows:  $2,422.28  to  libelant 
for  his  damages  by  reason  of  the  loss  of 
the  barge  and  freight,  and  $2,877.72  to 
libelant  as  trustee  for  the  owners  of  the 
cargo.  The  claimants  appealed  to  the  cir 
cuit  court,  and  the  appeal  having  been 
heard,  that  court  entered  a  decree  valuing 
the  vessel  at  $7,000  and  distributing  this 
amount  to  tlie  libelant  and  other  parties 
interested.  In  this  subsequent  proceeding 
the  court  holding  that  the  proportion  due 
the  lihelnnt  was  only  $4,658  and  not  $5,300 
as  adjudged  by  the  district  court.  It  was 
held,  that  this  court  had  jurisdiction  al- 
though the  libelant  recovered  for  himself 
as  owner  only  the  sum  of  $2,544.61,  and  for 
the   owner  of  the  cargo  only  the   sum   of 


AFFEAL  AMD  ERROR. 


865 


g.  Suit  to  Recover  Possession  of  Land. — In  ejectment  against  two  defendants 
^'or  two  parcels  of  land,  if  each  defendant  claims  only  one  parcel,  the  value  of 


$3,023.04.  For  in  both  of  these  cases  the 
owners  of  the  vessel  and  the  owners  of 
the  cargo  were  parties  to  the  proceedings 
and  recovered  the  amounts  due  them  re- 
■^pectively.  The  libelant  here  is  to  be 
ireated  in  all  respects  as  the  sole  libelant, 
and  the  decree  is  for  a  sum  in  excess  of 
the  jurisdictional  amount,  and  it  is  im- 
material that  this  amount  was  subse- 
quently apportioned  so  as  to  show  the 
allowance  for  the  loss  of  the  barge  and 
that  for  the  loss  of  the  cargo  separately, 
because  the  decree  for  the  recovery  of  the 
aggregate  remained  the  same  and  the 
execution  ordered  against  the  claimants 
and  their  sureties  on  appeal  would  issue 
for  the  single  amount.  Nor  does  the  fact 
that  upon  the  subsequent  proceedings  for 
limitation  of  liability,  it  appeared  that  the 
Ii1)elant  could  not  collect  more  than 
$4,468,  his  pro  rata  share  of  the  limit  de- 
creed, affect  the  question.  Distinguishing 
Ex  parte  Baltimore,  etc.,  R.  Co.,  106  U. 
S.  5,  27  L.  Ed.  78;  The  Nevada,  106  U.  S. 
154,  27  L.  Ed.   149. 

Cases  of  salvage. — The  decisions  in 
cases  of  salvage  illustrate  the  applica- 
tion of  the  rule  to  different  states  of  facts. 
From  a  decree  on  a  libel  for  salvage  of  a 
ship  and  cargo,  or  of  several  parcels  of 
goods,  belonging  to  different  owners, 
when  the  salvage  demanded  against  the 
whole  exceeds  the  jurisdictional  limit,  but 
the  amount  chargealile  on  the  property  of 
each  owner  is  within  it,  no  appeal  lies, 
either  by  the  salvors  or  by  the  owners. 
Stratton  v.  Jarvis,  8  Pet.  4,  8  L.  Ed.  846; 
Spear  v.  Henry  Place,  11  How.  522,  13 
L.    Ed.    796. 

The  reasons  for  this  were  summed  up 
bv  Chief  Justice  Taney,  as  follows:  "The 
salvage  service  is  entire;  but  the  goods  of 
each  owner  are  liable  only  for  the  sal- 
vage with  which  they  are  charged,  and 
have  no  common  liability  for  the  amounts 
due  from  the  ship  or  other  portions  of 
the  cargo.  It  is  a  separate  and  distinct 
controversy  between  himself  and  the 
salvors,  and  not  a  common  and  undivided 
one.  for  which  the  property  is  jointly 
liable."  Shields  v.  Thomas,  17  How.  3,  6, 
15    L.    Ed.    93. 

Because  the  salvage  service  is  entire, 
and  is  the  common  service  of  all  the 
salvors  acting  together,  and  the  salvage 
awarded  is  for  that  service,  and  the  m.at- 
ter  in  dispute  is  the  amount  due  the 
salvors  collectively,  and  it  is  of  no  con- 
sequence to  the  owner  of  the  property 
saved  how  the  money  recovered  is  ap- 
portioned among  those  who  have  earned 
it,  this  court  has  since  decided  that  the 
owner  of  a  ship  may  appeal  from  a  decree 
against  the  ship  for  salvage  which 
exceeds  the  sum  of  $5,000,  although  the 
amount    awarded    to    each    salvor    is    less 

1  U  S  Enc— 55 


than  that  sum.  The  Connemara,  103  U. 
S.  754,  26  L.  Ed.  322. 

In  the  appeal  here,  as  in  that  from  the 
district  court,  the  case  of  each  claimant 
having  a  separate  interest  must  be  treated 
as  a  separate  appeal,  pro  interesse  suo, 
from  the  decree,  so  far  as  it  regards  that 
interest;  and  the  salvage  chargeable  on 
him  constitutes  the  whole  matter  in  dis- 
pute between  him  and  the  libelants;  with 
the  fate  of  the  other  claims,  however  dis- 
posed of,  he  has  and  can  have  nothing  to 
do.  It  is  true  that  the  salvage  service 
was  in  one  sense  entire;  but  it  certainly 
cannot  be  deemed  entire  for  the  purpose 
of  founding  a  right  against  all  the  claim- 
ants jointly,  so  as  to  make  them  all 
jointly  responsible  for  the  whole  salvage. 
On  the  contrary,  each  claimant  is  respon- 
sible only  for  the  salvage  properly  due 
and  chargeable  on  the  gross  proceeds  or 
sales  of  his  own  property,  pro  rata.  It 
would  otherwise  follow  that  the  propert}- 
of  one  claimant  might  be  made  charge- 
able with  the  payment  of  the  whole  sal- 
vage, which  would  be  against  the  clearest 
principles  of  law  on  this  subject.  The 
district  and  circuit  courts  manifestly 
acted  upon  this  view  of  the  matter,  and 
their  decrees  would  be  utterly  unintelli- 
gible upon  any  other.  Their  decrees,  re- 
spectively, in  giving  a  certain  proportion 
of  the  gross  sales  must  necessarily  appor- 
tion that  amount  pro  rata  upon  the  whole 
proceeds,  according  to  the  distinct  inter- 
ests of  each  claimant.  This  court  has  no 
jurisdiction  to  entertain  the  present  ap- 
peal in  regard  to  any  of  the  claimants, 
and  the  cause  must  for  this  reason  be 
dismissed.  Stratton  v.  Jarvis,  8  Pet.  4.  8 
L.   Ed.   846. 

Where  the  admiralty  court  decreed  that 
a  vessel  should  pay  salvage  to  the  amount 
of  one-fifth  of  her  value,  and  that  value 
was  shown  to  be  $2,600,  an  appeal  to  this 
court  would  not  lie,  for  want  of  jurisdic- 
tion. It  is  the  amount  of  salvage,  and 
not  of  the  vessel,  which  tests  the  jurisdic- 
tion; the  salvage  only  being  in  contro- 
versy. The  master  could  not  properly 
represent  (without  special  authority)  the 
consignees  of  the  cargo  who  had  received 
their  respective  consignments  before  the 
filing  of  the  libel.  They  lived  in  the  place 
where  the  court  was  held,  and  ought  to 
have  represented  their  own  interests. 
The  master,  therefore,  cannot  appear  for 
them  all  conjointly,  and  in  this  case  the 
amount  of  salvage  to  be  paid  by  the 
largest  consignee  would  be  only  $1,136.80. 
Neither  the  salvage  upon  the  vessel  nor 
cargo,  therefore,  is  sufficient  in  amount 
to  bring  the  case  within  the  jurisdiction 
of  this  court.  Spear  v.  Henry  Place,  1 1 
How.  522,  13  L.  Ed.  793,  citing  Wilson 
V.   Daniel,   3  Dall.   401,   1   L.   Ed.   655:   Oli- 


S66 


APPEAL  AND  ERROR. 


each  parcel  is  the  limit  of  appellate  jurisdiction. ^^     But  if  both  defendants  jointl\- 
claim  both  parcels,  the  value  of  both   is  the   test.^*^ 

h.  Hearing  Causes  Together. — Where  it  is  agreed  between  the  parties  thai 
two  cases  involving  the  same  questions  should  be  heard  together,  but  the  record 
contains  no  evidence  of  such  agreement,  nor  does  it  appear  that  any  attempt 
was  made  to  consolidate  them  or  to  discontinue  one  and  transfer  it  into  the 
court  where  the  other  was  pending,  but,  on  the  contrary,  though  they  were  both 
heard  at  the  same  time,  it  appears  that  separate  decrees  were  entered,  each  in 
ihe  respective  court  where  the  suit  was  commenced,  and  that  separate  appeals 
were  also  taken  by  the  losing  party  in  the  court  where  the  decree  was  entered, 


ver  V.  Alexander,  6  Pet.  143,  8  L.  Ed.  349; 
Stratton  v.  Jarvis,  8  Pet.  4,  11,  8  L.  Ed. 
346.  The  court  said:  "There  does  not 
appear  to  have  been  any  joint  interest 
among  them;  and  though  the  decree  be- 
low is  inartificial,  yet  each  should  pay 
and  be  ordered  to  pay  the  salvage  on  his 
ovv^n  goods,  and  no  others,  as  much  as  if 
each  had  in  person  put  in  a  separate 
<:laim." 

Claims  by  seamen  for  their  wages. — In 
the  leading  case  of  Oliver  v.  Alexander, 
6  Pet.  143,  8  L.  Ed.  349,  upon  a  libel  in 
admiralty  against  the  owners  of  a  vessel 
to  recover  seamen's  wages,  and  an  at- 
tachment of  the  proceeds  of  the  vessel  in 
the  hands  of  assignees,  the  libelants  ob- 
tained a  decree  for  the  payment  out  of 
those  proceeds  to  them  respectively  of 
sums  less  than  $1,000,  but  amounting  in 
all  to  more  than  $2,000,  and  the  assignees 
appealed.  This  court,  at  January  term 
1832,  in  a  judgment  delivered  by  Mr.  Jus- 
tice Story,  dismissed  the  appeal,  for  the 
reasons  that  the  shipping  articles  consti- 
tuted a  several  contract  with  each  seaman 
to  all  intents  and  purposes;  that,  although 
the  libel  was  in  form  joint,  the  contract 
with  each  libelant,  as  well  as  the  decree 
in  his  favor,  was  in  truth  several,  and 
none  of  the  others  had  any  interest  in 
that  contract,  or  could  be  aggrieved  by 
that  decree;  that  the  matter  in  dispute  be- 
tween each  seaman  and  the  owners,  or 
other  respondents,  was  the  sum  or  value 
of  his  own  demand,  without  any  reference 
to  the  demands  of  others;  that  it  was 
very  clear,  therefore,  that  no  seaman  could 
appeal  from  the  circuit  court  to  this  court, 
unless  his  claim  exceeded  $2,000;  "and  the 
same  rule  applies  to  the  owners  or  other 
respondents,  who  are  not  at  liberty  to 
consolidate  the  distinct  demands  of  each 
seaman  into  an  aggregate,  thus  making 
the  claims  of  the  whole  the  matter  in 
dispute;  but  they  can  appeal  only  in  re- 
gard to  the  demand  of  a  seaman  which 
exceeds  the  sum  required  by  law  for  that 
purpose,  as  a  distinct  matter  in  dispute." 
Gibson  v.  Shufeldt,  122  U.  S.  27,  30,  30 
L.  Ed.  1083. 

In  the  case  of  the  seaman,  though  the 
contract  is  separate  and  not  joint,  all  may 
join  in  the  libel  and  carry  on  the  pro- 
ceedings, in  form,  jointly,  to  the  decree, 
which  assigns  to  each  severally  the 
;imount  due.     If  the  sum  thus  assigned  is 


under  $2,000,  neither  party  can  appeal. 
Oliver  v.  Alexander,  6  Pet.  143,  8  L.  Ed. 
349.  So  in  respect  to  the  case  of  salvage, 
where  the  amount  charged  upon  the  goods 
of  each  of  the  several  claimants  is  less 
than  this  sum.  United  States  v.  Carr,  6 
How.  1,  9,  12  L.  Ed.  963;  Spear  v.  Henry 
Place,  11  How.  522,  13  L.  Ed.  796;  Sea- 
ver  V.  Bigelow,  5  Wall.  208,  210.  18  L. 
Ed.   595. 

Form  of  motion  to  dismiss. — In  the  in- 
termediate case  of  The  Rio  Grande,  19 
Wall.  178.  22  L.  Ed.  60,  in  which  material- 
men joining  in  a  libel  in  rem  had  sever- 
ally recovered  in  the  circuit  court  various 
sums,  a  motion  by  them  to  dismiss  the 
appeal  of  the  owners  of  the  vessel  was 
not  sustained,  because  the  motion  was 
"to  dismiss  the  appeal"  generally,  and 
not  as  to  those  only  who  had  recovered 
sums  insufficient  to  give  this  court  juris- 
diction. 

29.  Suit  to  recover  possession  of  land. 
— Tupper  V.  Wise,  110  U.  S.  398,  28  L. 
Ed.  189;  Lynch  v.  Bailey,  110  U.  S.  400, 
28  L.  Ed.  190. 

Where  in  a  suit  to  recover  the  posses- 
sion of  land  of  which  there  was  no  joint 
ownership  or  joint  possession,  and  in 
which  each  defendant  claimed  a  separate 
and  distinct  interest  in  a  separate  part  of 
the  land,  and  the  jury  finds  separate  and 
distinct  judgments,  such  judgments  can- 
not be  joined  to  give  this  court  jurisdic- 
tion, and  unless  each  one  of  such  judg- 
ments exceeds  the  jurisdictional  amount 
the  writ  of  error  will  be  dismissed.  Tup- 
per V.  Wise,  110  U.  S.  398.  28  L.  Ed.  189, 
reaffirmed  in  Lynch  v.  Bailey,  110  U.  S. 
400,  28  L.   Ed.   190. 

30.  Friend  v.  Wise,  111  U.  S.  797,  28  L- 
Ed.    602. 

Where  the  value  of  the  two  sections  of 
land  which  are  in  dispute  in  ejectment  is 
conceded  to  be  more  than  $5,000,  and  the 
complaint  alleges  a  joint  entry  and  ouster, 
and  the  answer  does  not  set  up  separate 
claims  to  distinct  parcels  of  the  land  by 
the  several  defendants,  the  judgment  for 
the  recovery  of  the  possession  is  against 
all  the  defendants  jointly,  and  this  court 
has  jurisdiction.  Friend  v.  Wise,  111  U. 
S.  797,  798.  ?S  L.  Ed.  602,  distinguishing 
Tupper  V.  Wise,  110  U.  S.  398,  28  L.  Ed. 
198;  Lynch  v.  Bailey,  110  U.  S.  400,  28 
L.  Ed.  190. 


APPEAL  AM)  ERROR. 


867 


and  that  the  two  appeals  were  separately  entered  on  the  calendar  of  this  court, 
we  have  no  jurisdiction.-'^^ 

i.  Qualifications  of  General  Rule — (1)  Persons  Having  Common  and  Urk- 
divided  Interest.— In  General.— The  general  principle  is  that  if  several  persons 
be  joined  in  a  suit  in  equity  or  admiralty,  and  have  a  common  and  undivided 
interest,  though  separable  as  between  themselves,  the  amount  of  their  joint 
claim  or  liability  will  be  the  test  of  jurisdiction.32     i„  Q^j-igj.  ^vords,  where  the 


31.  Hearing  causes  together. — Merrill 
V.   Petty.   16   Wall.   ?>?,?,.   21   L.   Ed.  499. 

^2.  Persons  having  common  and  undi- 
vided interest. — Shields  v.  Thomas,  17 
How.  3,  15  L.  Ed.  93:  Market  Co.  v.  Hofif- 
man,  101  U.  S.  112.  25  L.  Ed.  782;  The 
Connemara,  103  U.  S.  754,  26  L.  Ed.  322; 
The  Mamie,  105  U.  S.  773,  26  L.  Ed.  937; 
Davies  v.  Corbin,  112  U.  S.  36,  28  L.  Ed. 
•627;  Estes  v.  Gunter.  121  U.  S.  183.  30  L. 
Ed.  884;  Handley  r.  Stutz,  137  U.  S.  366, 
34  L.  Ed.  706;  Clay  v.  Field.  138  U.  S. 
464,  34  L.  Ed.  1044;  The  Propeller  Bur- 
lington, 137  U.  S.  386,  34  L.  Ed.  731;  Gib- 
son V.  Shufeldt,  123  U.  S.  27,  30  L.  Ed. 
10.83;  Texas,  etc.,  R.  Co.  v.  Gentry,  163 
U.  S.  353.  41  L.  Ed.  186;  Overby  v.  Gor- 
don, 177  U.  S.  214.  44  L.  Ed.  741;  Mc- 
Daniel  v.  Taylor,  196  U.  S.  415,  428,  49  L. 
Ed.  533.  See  Illinois  Central  R.  Co.  v. 
Adams,  180  U.  S.  28.  40,  45  L.  Ed.  410. 

Cases  reviewed  and  reconciled. — "In  all 
the  cases  where  we  have  held  that  several 
sunrs  decreed  in  favor  of  or  against  dif- 
ferent persons  could  not  be  united  to  give 
Tis  jurisdiction  on  appeal,  it  will  be  found 
that  the  matters  in  dispute  were  entirely 
separate  and  distinct,  and  were  joined  in 
one  suit  for  convenience  and  to  save  ex- 
pense. Thus,  in  Beaver  v.  Bigelow,  5 
Wall.  208,  18  L.  Ed.  595,  separate  judg- 
ment creditors  joined  to  set  aside  a  fraud- 
ulent conveyance  of  their  debtor,  and  the 
appeal  was  from  a  decree  dismissing  their 
bill;  in  Rich  t'.  Lambert.  12  How.  347,  13  L. 
Ed.  1017,  several  owners  of  a  cargo,  who 
had  distinct  interests,  united  in  a  libel 
against  the  ship  to  recover  for  damages 
done  to  the  goods,  and  the  appeal  was 
from  a  decree  in  favor  of  each  owner  for 
his  separate  loss;  in  Oliver  v.  Alexander, 
«  Pet.  143,  8  L.  Ed.  349,  the  libel  was  by 
seamen  to  recover  their  wages,  and  the 
decree  was  in  favor  of  each  man  sepa- 
rately for  the  amount  due  him  individu- 
ally; and  in  Stratton  v.  Jarvis,  8  Pet.  4,  8 
L.  Ed.  846,  the  decree  was  against  each 
claimant  of  the  goods  saved  by  salvage 
service  for  his  separate  and  distinct  share 
of  the  salvage.  The  cases  were  heard,  so 
far  as  the  merits  were  concerned,  precisely 
the  same  as  if  separate  libels  had  been 
filed  for  each  cause  of  action,  and  the 
decrees  as  entered  were  as  in  case  of  sep- 
arate suits.  Rich  V.  Lambert,  supra. 
Here,  however,  the  matter  in  controversy 
was  the  amount  due  the  salvors  col- 
lectively, and  not  the  particular  sum  to 
which  each  was  entitled  when  the  amount 
due  was  distributed  among  them.  As  in 
Shields  v.  Thomas,   17   How.  3,  15   L.   Ed. 


93,  'they  all  claimed  under  one  and  the 
sarne  title.  They  had  a  common  and  un- 
divided interest  in  the  claim,  and  it  was 
perfectly  immaterial  to  the  appellants  how 
it  was  to  be  shared  among  them.  If  there 
was  any  difficulty  as  to  the  proportions. 
*  *  *  the  dispute  was  among  them- 
selves." ■'  The  Connemara,  103  U.  S.  754, 
755,  26  L.  Ed.  322. 

The  earliest  case  of  this  class  is  Shields 
V.  Thomas,  17  How.  3,  15  L.  Ed.  93,  in 
which  this  court  held,  that  an  appeal 
would  lie  from  a  decree  in  equity,  order- 
ing a  defendant,  who  had  converted  to 
his  own  use  property  of  an  intestate,  to 
pay  to  the  plaintiffs,  distributees  of  the 
estate,  a  sum  of  money  exceeding  $2,000, 
and  apportioning  it  among  them  in  shares 
less  than  that  sum.  The  case  was  dis- 
tinguished from  those  of  Oliver  v.  Alex- 
ander, 6  Pet.  143,  8  L.  Ed.  349,  and  Rich 
V.  Lambert,  12  How.  347,  13  L.  Ed.  1017, 
upon  the  following  grounds:  "The  mat- 
ter in  controversy,"  said  Chief  Justice 
Taney,  "was  the  sum  due  to  the  repre- 
sentatives of  the  deceased  collectively: 
and  not  the  particular  sum  to  which  each 
was  entitled,  when  the  amount  due  was 
distributed  among  them,  according  to  the 
laws  of  the  state.  They  all  claimed  under 
one  and  the  same  title.  They  had  a  com- 
mon and  undivided  interest  in  the  claim; 
and  it  was  perfectly  immaterial  to  the  ap- 
pellant how  it  was  to  be  shared  among 
them.  He  had  no  controversy  with  either 
of  them  on  that  point;  and  if  there  was 
any  difficulty  as  to  the  proportions  in 
which  they  were  to  share,  the  dispute  was 
among  themselves,  and  not  with  him.  It 
is  like  a  contract  with  several  to  pay  a 
sum  of  money.  It  may  be  that  the  money, 
when  recovered,  is  to  be  divided  between 
them  in  equal  or  unequal  proportions. 
Yet,  if  a  controversy  arises  on  the  con- 
tract, and  the  sum  in  dispute  upon  it  ex- 
ceeds two  thousand  dollars,  an  appeal 
would  clearly  lie  to  this  court,  although 
the  interest  of  each  individual  was  less 
than  that  sum." 

The  doctrines  of  Shields  v.  Thomas 
have  been  frequently  recognized  by  this 
court.  In  the  recent  case  of  Overby  v. 
Gordon,  177  U.  S.  214,  218,  44  L.  Ed.  741, 
743,  the  court,  interpreting  the  decision 
in  that  case,  said:  "It  was  held,  that, 
where  the  representatives  of  a  deceased 
intestate  recovered  a  judgment  against 
an  administrator  for  an  amount  in  excess 
of  the  sum  necessary  to  confer  jurisdic- 
tion to  review,  and  such  recovery  was  had 
under   the   same    title   and   for    a   common 


868 


APPEAL  AND  ERROR. 


defendants    are     jointly     interested     in    the    question,    and    it    i-    not    tlie    case 


and  undivided  interest,  this  court  had  ju- 
risdiction, although  the  amount  decreed 
to  be  distributed  to  each  representative 
was  less  than  the  jurisdictional  sum."  See, 
also.  The  Connemara,  103  U.  S.  754.  756, 
26  L.  Ed.  323;  Handley  v.  Stutz,  137  U.  S. 
366,  369,  34  L.  Ed.  706.  708;  New  Orleans 
Pac.  R.  Co.  V.  Parker,  143  U.  S.  42.  51,  36 
h-  Ed.  66.  68;  Texas,  etc.,  R.  Co.  v.  Gentry, 
163  U.  S.  353,  361.  41  L.  Ed.  186;  Davis  v. 
Schwartz,  155  U.  S.  631,  647,  39  L.  Ed. 
289,  29G;  McDaniel  v.  Traylor,  196  U.  S. 
415,  49  L.   Ed.  533. 

To  the  same  class  belongs  Freeman  v. 
Dawson,  110  U.  S.  264.  28  L.  Ed.  141,  in 
which  the  only  matter  in  dispute  was  the 
legal  title  to  the  whole  of  a  fund  of  more 
than  $5,000,  as  between  a  judgment  cred- 
itor and  the  grantee  in  a  deed  of  trust, 
no  question  arose  of  payment  to  or  dis- 
tribution among  the  cestui  que  trust,  and 
this  court  therefore  took  jurisdiction  of 
an  appeal  by  the  trustee  from  a  decree  in 
favor  of  the  judgment  creditor.  Citing 
Ex  parte  Baltimore,  etc.,  R.  Co.,  106  U.  S. 
5,  27  L.  Ed.  78. 

Tax  levied  for  joint  benefit  of  relators 
in  mandamus. — -Where  a  writ  of  manda- 
mus commanded  a  collector  to  collect  a 
tax  of  one  per  cent,  upon  the  property  of 
a  county,  which  had  already  been  levied 
for  the  joint  benefit  of  all  the  relators,  it 
was  held,  that  the  case  was  like  Shields 
V.  Thomas  and  The  Connemara,  and  that 
the  right  of  appeal  depended  upon  the 
whole  amount  of  the  tax.  Davies  v.  Cor- 
bin.   112  U.   S.   36,  28   L-   Ed.   627. 

Suit  to  enjoin  sale  under  attachment. — - 
G.,  being  embarrassed,  assigned  his  prop- 
erty, amounting  in  value  to  more  than 
$5,000,  to  S.  for  the  benefit  of  his  cred- 
itors, with  preferences  in  favor  of  E.  to 
the  amount  of  $10,000.  B.,  an  unpreferred 
creditor,  sued  out  a  writ  of  attachment 
for  $3,000,  which  was  followed  by  similar 
writs  on  behalf  of  other  creditors.  E. 
filed  a  bill  in  equity  against  G.  and  S.  and 
B.,  and  other  attaching  creditors,  to  en- 
join a  sale  under  the  attachments  and  to 
)ia\  e  the  assignment  declared  valid;  but 
during  the  progress  of  the  suit,  dismissed 
the  suit  as  to  the  other  attaching  cred- 
itors. The  bill  was  dismissed  on  the 
ground  that  the  assignment  was  made  to 
hinder  and  delay  creditors.  E.  appealed 
to  this  court.  On  a  motion  to  dismiss  on 
the  ground  that  the  claim  of  B.  was  not 
sufficient  to  give  this  court  jurisdiction, 
held,  that  the  court  had  jurisdiction,  the 
suit  being  brought  not  simply  to  defeat 
B.'s  attachment,  but  to  establish  the  as- 
signment and  make  it  available  for  E.'s 
benefit.  Estes  v.  Gunter,  121  U.  S.  183, 
30  L.  Ed.  884,  following  Shields  v. 
Thomas,  17  How.  3,  15  L.  Ed.  93;  Market 
Co.  V.  Hofifman,  lOl  U.  S.  112,  25  L.  Ed. 
782;  The  Connemara,  103  U.  S.  754,  26 
L.  Ed.  322;  The  Mamie,  105  U.  S.  773,  2b 


L.    Ed.    937;    Davies    v.    Curbin.    112    U.    S. 
36,    28    L.    Ed.    627. 

Where  a  bill  was  filed  by  several  dis- 
tributees of  an  estate,  to  compel  the  pay- 
ment of  money  alleged  to  be  due  to  them, 
and  a  decree  was  rendered  in  their  favor, 
this  court  has  jurisdiction  over  an  appeal, 
although  the  amount  payable  to  each  in- 
dividual claimant  was  less  than  two  thou- 
sand dollars.  McDaniel  v.  Traylor,  igs* 
[J.  S.  415,  428,  49  L.  Ed.  533,  following- 
Shields  V.  Thomas,  17  How.  3,  15  L. 
Ed.  93. 

Judgment  in  action  for  wrongful  death. 
— Although  there  is  in  form  a  separate 
judgment  in  favor  of  each  of  the  persons 
for  whose  benefit  an  action  is  brought 
under  the  Texas  statute,  providing  for 
an  action  for  wrongful  death,  which  shall 
be  for  the  exclusive  benefit  of  the  surviv- 
ing husband,  wife,  children  and  parents, 
and  authorizing  the  action  to  be  brought 
by  all  the  parties  interested,  or  by  any 
one  or  more  of  them  for  the  benefit  of  all, 
and  requiring  the  jury  to  divide  the 
amount  recovered  among  the  persons  en- 
titled to  the  benefit  of  the  action,  the 
Texas  statute  creates  a  single  liability  on 
the  part  of  the  defendant,  and  contem- 
plates but  one  action  for  the  sole  and  ex- 
clusive benefit  of  the  surviving  husband, 
wife,  children  and  parents,  of  the  persm 
whose  death  was  caused  in  any  of  the 
specified  modes.  Accordingly,  the  matter 
in  controversy  within  the  meaning  of  the 
6th  section  of  the  act  of  March  3,  1891,  c. 
517,  which  declares  that  in  all  cases  net  by 
that  section  made  final  "there  shall  be  of 
right  an  appeal  or  writ  of  error  nr  re- 
view of  the  case  by  the  supreme  court  of 
the  United  States  where  the  matter  in 
controversy  shall  exceed  one  thousand 
dollars  besides  costs,"  is  the  liability  of 
the  defendant  company  in  that  amount  by 
reason  of  the  single  injury  complained  of. 
If  the  defendant  was  liable  in  that  sum, 
and  such  liability  is  fixed  upon  it  by  the 
verdict  and  tinal  judgment  thereon,  it  is 
of  no  concern  to  it  how  that  amount  was 
divided  among  the  parties  entitled  to  sue, 
on  account  of  the  single  injury  alleged  to- 
have  been  committed.  Texas,  etc.,  R.  Co. 
V.  Gentry.  163  U.  S.  353,  41  L:  Ed.  186, 
citing  Shields  v.  Thomas,  17  How.  3,  IS 
L.  Ed.  93;  Ex  parte  Baltimore,  etc.,  R. 
Co.,  106  U.  S.  5,  27  L.  Ed.  78;  Market  Co. 
V.  Hofifman,  101  U.  S.  112,  25  L.  Ed.  782; 
The  Connemara,  103  U.  S.  754,  26  L.  Ed. 
322;  Estes  v.  Gunter,  121  U.  S.  183,  30  L. 
Ed.  884;  Gibson  v.  Shufeldt,  122  U.  S. 
27,  30  L.  Ed.  1083;  Clay  v.  Field,  138  U. 
S.  464.  34  L.  Ed.  1044;  New  Orleans  Pac. 
P  Co.  y.  Parker,  143  U.  S.  42,  36  L. 
Ed.  66. 

«.-i^.xnants  of  fund  paid  into  regfiEt»-"  in 
admiralty. — In    Rodd   z'.    Heartt,   17  11. 

354,  21  L.  Ed.  627,  which  was  in  admiralty, 
a      fund      exceeding      the      jurisdictional 


APPEAL  AA'U  ERROR. 


860 


of    a    fund    amounting    to    more    than  the  requisite    sum    which    is    to    be    paid 


amount  paid  into  the  registry  of  the  court 
was  claimed  on  the  one  hand  by  several 
creditors  secured  by  one  mortgage,  and 
on  the  other  by  a  number  of  mariners 
and  materialmen.  A  decree  having  been 
made  adverse  to  the  mortgagees,  an  ap- 
peal was  taken  by  them  to  this  court,  and 
it  was  held,  that  although  no  one  of  the 
claims  under  the  mortgage  equalled  the 
jurisdictional  amount,  yet  as  the  claim  of 
the  appellants,  which  was  disallowed,  ex- 
ceeded  that  sum,  an   appeal   would   lie. 

In  The  Connemara,  103  U.  S.  754,  26  L. 
Ed.  322,  it  was  held,  that  where  salvors 
united  in  a  claim  for  a  single  salvage  serv- 
ice, jointly  rendered  by  them,  the  owner 
of  the  property  was  entitled  to  an  ap- 
peal where  the  sum  decreed  exceeded 
$5,000,  though  in  the  division  among  the 
several  parties  sharing  in  the  recovery, 
several  were  awarded  less  than  $5,000. 
Distinguishing  Seaver  z'.  Bigelow,  5  Wall. 
208,  18  L.  Ed.  595;  Rich  v.  Lambert.  12 
How.  ;U,  13  L.  Ed.  1017;  Oliver  v.  Al- 
exander. 6  Pet.  143.  8  L.  Ed.  349;  Strat- 
ton  c'.  Jarvis.  8  Pet.  4,  8  L.  Ed.  840. 
In  line  with  these  cases  are  those  of 
Davies  v.  Corbin.  112  U.  S.  36,  28  h.  Ed. 
627,  and  Handley  v.  Stutz,  137  U.  S.  366, 
34  L.   Ed.   706. 

Act  limiting  liability  of  ship  owners. — 
It  was  held,  in  the  case  of  The  Mamie, 
105  U.  S.  773,  26  L.  Ed.  937,  that  from  a 
decree  dismissing  a  petition  to  obtain  the 
benefit  of  the  act  of  congress  limiting  the 
liability  of  ship  owners,  the  owner  of  the 
vessel  might  appeal,  even  if  the  value  of 
the  thing  surrendered  was  less  than  $5,000, 
when  the  claims  against  it  were  for  much 
more  than  twice  that  sum  in  the  aggre- 
gate, though  for  only  $5,000  each;  because, 
as  explained  in  Ex  parte  Baltimore,  etc., 
R.,  106  U.  S.  5,  27  L.  Ed.  78,  the  matter  in 
dispute  was  the  owner's  right  to  sur- 
render the  vessel,  and  to  be  discharged 
from  all  further  liability,  and  if  that  right 
was  established,  he  had  nothing  to  do 
with  the  division  of  the  fund  thus  created 
among    those    having    claims     against    it. 

Creditors  secured  by  one  mortgage — 
To  the  same  class  may  perhaps  be  as- 
signed Rodd  V.  Heartt,  17  Wall,  354,  21 
L.  Ed.  n27,  where  the  appeal,  which  the 
court  declined  to  dismiss,  was  by  many 
creditors,  secured  by  one  mortgage  for 
more  than  $5,000,  from  a  decree  in  rem, 
postponing  that  mortgage  to  claims  of 
materialmen  upon  the  vessel;  but  the  re- 
port, both  of  the  facts  and  the  opinion,  is 
so  brief,  that  it  is  difficult  to  ascertain 
exactly  upon  what  ground  the  court  pro^ 
ceeded. 

Injunction  by  various  occupiers  of  stalls 
in  a  market. — In  Market  Co.  ?■.  Hoffman, 
101  U.  S.  112,  25  L.  Ed.  782,  in  wh-'ch, 
upon  the  bill  of  a  number  of  occupiers  of 
stalls  in  a  market,  a  perpetual  injunction 
was  granted  to  restrain   the  market  com- 


pany from  selling  the  stalls  by  auction, 
the  reason  assigned  by  this  court  for  en- 
tertaining the  appeal  of  the  company  was 
that  "the  case  is  one  of  two  hundred  and 
six  complainants  suing  jointly,  the  de- 
cree is  a  single  one  in  favor  of  them  all, 
and  in  denial  of  the  right  claimed  by  the 
company,  which  is  of  far  greater  value 
than  the  sum  which,  by  the  act  of  con- 
gress, is  the  limit  below  which  an  appeal 
is   now  allowable." 

Suits  by  taxpayers. — Where  the  griev- 
ance complained  of  is  common  to  all  the 
plaintiffs  and  to  all  whom  they  represent, 
as  where  a  number  of  taxpayers  file  a 
bill  to  restrain  a  levy  of  a  tax  to  pay  for 
railroad  aid  bonds,  the  rule  as  to  each 
claiming  a  separate  and  distinct  right  and 
in  respect  to  a  separate  and  distinct  lia- 
bility is  not  applicable.  Therefore,  if  its 
aggregate  amount  exceed  the  jurisdic- 
tional limits,  this  court  has  jurisdiction. 
Brown  v.  Trousdale,  138  U.  S.  389,  34  L. 
Ed.  987. 

In  Brown  v.  Trousdale,  138  U.  S.  389, 
394,  34  L.  Ed.  987,  several  hundred  tax- 
payers of  a  county  in  Kentucky,  for  them- 
selves and  others  associated  with  them, 
numbering  twelve  hundred,  and  for  and 
on  behalf  of  all  other  taxpayers  in  the 
cotinty,  "and  for  the  benefit  likewise  of 
said  county,"  filed  their  bill  of  complaint 
against  the  county  authorities  and  certain 
funding  officers,  and  all  the  holders  of 
the  bonds,  seeking  a  decree  adjudging  the 
invalidity  of  two  series  of  bonds  aggre- 
gating many  hundred  thousand  dollars, 
and  perpetually  enjoining  their  collection; 
and  an  injunction  was  also  asked  as  in- 
cidental to  the  principal  relief  against  the 
collection  of  a  particular  tax  levied  to 
meet  the  interest  on  the  bonds.  The 
leading  question  here  was  whether  the 
case  had  been  properly  removed  from  the 
state  court,  and  no  consideration  was 
given  to  the  case  upon  the  merits.  As  to 
the  jttrisdiction  of  this  court,  we  said: 
"The  main  question  at  issue  was  the  valid- 
ity of  the  bonds,  and  that  involved  the 
levy  and  collection  of  taxes  for  a  series 
of  years  to  pay  interest  thereon,  and 
finally  the  principal  thereof,  and  not  the 
mere  restraining  of  the  tax  for  a  single 
year.  The  grievance  complained  of  was 
common  to  all  the  plaintift's  and  to  all 
whom  they  professed  to  represent.  The 
relief  sought  could  not  be  legally  inju- 
rious to  any  of  the  taxpayers  of  the 
county,  as  such,  and  the  interest  of  those 
who  did  not  join  in  or  authorize  the  suit 
was  identical  with  the  interest  of  the 
plaintiffs.  The  rule  applicable  to  plain- 
tiffs, each  claiming  under  a  separate  and 
distinct  liability  and  that  contested  by  the 
adverse  party,  is  not  applicable  here.  For 
althoufrh  as  to  the  tax  for  the  particular 
year,  the  injunction  sought  might  restrain 
only  the  amount  levied  against  each,  that 


870 


APPEAL  AND  ERROR. 


to   different   parties    in    sums   less   than    the     jurisdictional    amount,    this    court 


order  was  but  preliminary,  and  was  not 
the  main  purpose  of  the  bill,  but  only 
incidental.  The  amount  in  dispute,  in 
view  of  the  main  controversy,  far  ex- 
ceeded the  hmit  upon  cur  jurisdiction,  and 
disposes  of  the  objection  of  appellees  in 
that  regard."  Distinguished  from  Col- 
vin  V.  Jacksonville,  158  U.  S.  456,  460,  39 
L.  Ed.  1053,  reaffirmed  in  Merritt  v.  Bow- 
doin  College,  167  U.  S.  745,  42  L-  Ed.  1209. 

Mandamus  to  compel  collection  of  sin- 
gle tax. — This  court  has  jurisdiction  to 
review  a  judgment  in  a  mandamus  pro- 
ceeding compelling  a  tax  collector  to 
collect  a  single  tax  which  has  been  levied 
for  the  joint  benefit  of  all  the  relators,  and 
in  which  they  have  an  undivided  interest, 
where  the  amount  of  the  tax  is  more  than 
$5,000,  because  the  value  of  the  matter  in 
dispute  is  measured  by  the  whole  amount 
of  the  tax,  and  not  by  the  separate  parts 
into  which  it  is  to  be  divided  when  col- 
lected. Davies  v.  Corbin.  112  U.  S.  36, 
28  L.  Ed.  627.  distinguishing  Hawley  v. 
Fairbanks,  108  U.  S.  543,  27  L.  Ed.  820, 
and  following  Shields  z'.  Thomas,  17  How. 
3,  15  L.  Ed.  93;  The  Connemara,  103  U. 
S.   754.   26   L.    Ed.   322. 

The  suit  is  to  remove  a  cloud  on  the 
title  to  certain  lands  (jf  the  value  of 
$16,000.  The  plaintiffs,  being  three  of  the 
six  heirs  at  law  of  the  intestate,  jointly 
own  an  undivided  interest  of  one-half  of 
those  lands,  but  no  interest  in  any  par- 
ticular part  of  them.  If  the  value  of  their 
joint,  undivided  interest  ($8,000),  or  the 
value  of  the  undivided  interest  of  each 
(one  third  of  $8,000),  is  to  be  taken  as 
the  value  of  the  matter  in  dispute,  then  the 
circuit  court  had  jurisdiction.  But  we 
are  of  the  opinion  that,  within  the  mean- 
ing of  the  judiciary  act  of  1887-88,  the  ju- 
risdiction of  the  circuit  court,  in  this  case 
depended  upon  the  value  in  dispute  meas- 
ured by  the  aggregate  amount  of  the 
claims  of  the  defendants.  McDaniel  v. 
Traylor,  196  U.   S.  415,  49   L-   Ed.  533. 

Suit  in  admiralty  for  wrongful  death. 
— In  a  suit  in  admiralty,  in  rem,  in  a  dis- 
trict court,  against  a  British  steamship, 
brought  by  the  widows  of  five  persons, 
to  recover  $5,000  each,  for  the  loss  of 
their  lives,  on  board  of  a  pilot  boat,  by 
a  collision  which  occurred  on  the  high 
seas  between  the  two  vessels,  through 
the  negligence  of  the  steamship,  a  stip- 
ulation for  value  was  given  by  the  claim- 
ant of  the  steamship,  in  the  sum  of  $25,000, 
to  obtain  her  release.  The  district  court 
dismissed  the  libel.  It  was  ainended  by 
claiming  $10,000  for  the  loss  of  each  life, 
and  then  the  libelants  appealed  to  the  cir- 
cuit court,  which  made  the  same  decree. 
The  libelants  having  appealed  to  this 
court,  the  appellee  made  a  motion,  under 
subdivision  5  of  Rule  6,  to  dismiss  the 
appeal  for  want  of  jurisdiction,  and  united 
with  it  a  motion  to  affirm,  held,  that   the 


amount  involved,  if  not  the  entire  sum  of 
$25,000,  was,  at  least,  the  sum  of  $10,000  in 
each  case,  and  that  the  motion  to  dismiss 
must  be  denied.  "The  fund  of  $25,000 
is  a  common  fund  for  the  benefit  of  the 
five  parties;  and,  on  the  facts  of  this  case, 
the  amount  involved,  on  the  question  of 
jurisdiction,  if  not  the  entire  sum  of 
$25,000,  is,  at  least,  the  sum  of  $10,000  in 
each  case.  Gibson  v.  Shufeldt,  122  U. 
S.  27,  31,  30  L.  Ed.  1083,  and  cases  cited." 
The  Alaska,  130  U.  S.  201,  208,  32  L.  Ed. 
923. 

Order  for  payment  of  money. — Where 
a  decree  was  made  by  the  circuit  court, 
sitting  in  admiralty,  that  two  persons 
should  pay  freight,  one  in  the  sum  of 
$583.84,  and  the  other  in  the  sum  of 
$1,754.22,  and  the  latter  only  appealed  to 
this  court,  the  appeal  must  be  dismissed, 
as  the  amount  in  controversy  is  less  than 
$2,000.  Clifton  V.  Shelton.  23  How.  481, 
16   L.    Ed.    429. 

The  rights  of  the  two  were  distinct  and 
independent;  but  if  the  freight  be  consid- 
ered a  joint  matter,  both  should  have 
joined  in  the  appeal.  Clifton  v.  Sheldon, 
23  How.  481,  16   L.   Ed.  429. 

Creditor's  suit  to  compel  payment  of 
unpaid  subscriptions  to  stock. — In  Hand- 
ley  V.  Stutz,  137  U.  S.  366,  370,  34  L-  Ed. 
706,  a  bill  in  equity  was  filed  by  some, 
in  behalf  of  all,  of  the  creditors  of  a  cor- 
poration, against  the  corporation  and 
holders  of  stock  therein.  The  bill  was  not 
founded  upon  any  direct  liability  of  the 
stockholders  to  the  plaintiffs;  but  upon  the 
theory  that,  the  corporation  being  in- 
solvent and  having  no  other  assets,  the 
sum  due  to  it  from  the  stockholders  on 
their  unpaid  subscriptions  to  stock  ought 
to  be  paid  by  them  to  the  corporation  as 
a  trust  fund  to  be  distributed  among  the 
plaintiffs  and  all  other  creditors  of  the 
corporation,  so  far  as  required  to  satisfy 
their  just  claims,  and  that,  the  corporation 
having  neglected  to  collect  these  sums 
or  to  administer  the  trust,  and  the  plain- 
tiffs and  defendants  being  citizens  of  dif- 
ferent states,  the  circuit  court,  sitting  in 
equity,  should  compel  those  sums  to  be 
paid  in  by  the  stockholders,  to  be  admin- 
istered as  a  trust  fund  and  to  be  distrib- 
uted among  all  creditors  who  should 
come  in.  Each  of  the  appellants  has  been 
charged  by  the  decree  below  with  a  sum 
of  more  than  $5,000;  and  it  is  undisputed 
that  each  of  them,  if  the  others  should 
prove  insolvent,  would  be  obliged  to  pay 
the  whole  sum  charged  against  him,  and 
that  each,  therefore,  has  more  than 
$5,000  at  stake.  Held,  the  trust  fund  so 
administered  and  ordered  to  be  distrib- 
uted by  the  circuit  court  amounting  tcv 
much  more  than  $5,000,  the  appellate  ju- 
risdiction of  this  court  is  not  affected  by 
the  fact  that  the  amounts  decreed  to  some 
of   the   creditors  are   less   than   that   sum. 


APPEAL  AND  ERROR. 


871 


has  judisriction-3-'^ 

(2)  Claimants  under  a  Common  Title. — As  we  have  shown,  if  distinct  causes 
of  action  in  favor  of  distinct  parties,  though  growing  out  of  the  same  trans- 
action, are  joined  in  one  suit,  and  distinct  decrees  are  rendered  in  favor  of  the 
several  parties,  these  decrees  cannot  be  joined  to  give  us  jurisdiction;  but  i^ 
the  controversy  is  about  a  matter  in  which  several  parties  are  interested  col- 
lectively under  a  common  title,  and  in  the  decree,  after  establishing  the  common 
right,  a  division  is  made  among  the  claimants  according  to  their  respective  in- 
terests, this  separation  of  the  decree  into  parts  will  not  prevent  an  appeal.-^-* 


It  was  immaterial  to  the  appellants  how 
the  sums  decreed  to  be  paid  by  them 
should  be  distributed,  and  (which  is  more 
decisive)  such  a  bill  as  this  could  not  have 
been  filed  by  one  creditor  in  his  own  be- 
half only,  and  the  case  does  not  fall  under 
that  class  in  which  creditors,  who  might 
have  sued  severally,  join  in  one  bill  for 
convenience  and  to  save  expense.  This 
court,  therefore,  has  jurisdiction  of  the 
whole  appeal,  according  to  the  rule  af- 
firmed in  Gibson  v.  Sliufeldt,  122  U.  S. 
27,  30  L.  Ed.  1083,  and  the  cases  there 
collected. 

33.  United  States  v.  Freight  Ass'n,  166 
U.  S.  290,  311,  41  L.  Ed.  1007,  distinguish- 
ing Gibson  V.  Shufeldt,  122  U.  S.  27.  30 
L.    Ed.    1083. 

In  equity,  as  in  admiralty,  when  the 
sym  sued  for  is  one  in  which  the  plaintiffs 
have  a  joint  and  common  interest,  and 
the  defendant  has  nothing  to  do  with 
its  distribution  among  them,  the  wl'ole 
sum  sued  for  is  the  test  of  the  jurisdic- 
tion. Gibson  V.  Shufeldt,  122  U.  S.  27,  33, 
30  L.  Ed.  1083. 

34.  Claimants  under  a  common  title. — 
Farmers'  Loan  &  Trust  Co.  v.  Waterman, 
106  U.  S.  265,  270,  27  L.  Ed.  115,  cited 
in  Elgin  v.  Marshall,  106  U.  S.  578,  582, 
27  L.  Ed.  249;  Hawley  --.  Fairbanks,  108  U. 
S.  543,  548,  27  L-  Ed.  820;  Tupper  v.  Wise, 
110  U.  S.  398,  399,  28  L-  Ed.  189;  Stewart 
V.  Dunham,  115  U.  S.  61,  65,  29  L.  Ed. 
329;  Henderson  v.  Wadsworth,  115  U.  S. 
264,  276,  29  L-  Ed.  377;  Hassall  v.  Wilcox, 
115  U.  S.  598,  599,  29  L.  Ed.  504;  Ex 
parte  Phoenix  Ins.  Co.,  117  U.  S.  367,  369, 
29  L.  Ed.  923;  Gibson  v.  Shufeldt,  122  U. 
S.  27,  37,  30  L.  Ed.  1083;  Walter  v.  North- 
eastern R.  Co.,  147  U.  S.  370,  373,  37  L. 
Ed.    206. 

The  rulings  of  this  court  are  uniform 
and  consistent  to  the  efifect  that,  where 
several  plaintiffs  claim  under  the  same 
title,  and  the  determination  of  the  cause 
necessarily  involves  the  validity  of  that 
title,  this  court  has  jurisdiction,  though 
the  individual  claims  do  none  of  them  ex- 
ceed the  requisite  amount,  but  when  the 
matters  in  dispute  are  separate  and  dis- 
tinct, and  are  joined  in  one  suit  for  con- 
venience or  economy,  the  case  will  be 
dismissed  as  to  claims  not  exceeding 
$5,01)0.  Schwed  t/.  Smith,  106  U.  S.  188,  27 
L.Ed.  156;  Hawley  z'.  Fairbanks.  108  U.  S. 
54  3,  27  L.  Ed.  820;  Stewart  v.  Dunham, 
115  U.  S.  61,  29  L.   Ed.  329;  Estes  v.  Gun- 


ter,  121  U.  S.  183,  30  L.  Ed.  884;  Gibson 
v.  Shufeldt,  122  U.  S.  27,  30  L.  Ed.  1083; 
Henderson  v.  Carbondale  Coal,  etc..  Co.. 
140  U.  S.  25.  35  L.  Ed.  332;  New  Orleans 
Pac.  R.  Co.  V.  Parker,  143  U.  S.  42,  36  L. 
Ed.  66;  Chapman  z:  Handley,  151  U.  S. 
443,  38  L.  Ed.  277;  Davis  v.  Schwartz, 
155   U.   S.   631,   647,   39    L.    Ed.   289. 

Where  several  plaintiffs  claim  under 
the  same  title,  and  the  determination  of 
the  cause  necessarily  involves  the  validity 
of  that  title,  and  the  aggregate  exceed.'^ 
$5,000,  this  court  has  jurisdiction  as  to  all 
such  plaintiffs,  though  the  individual 
claims  of  none  of  them  exceed  five  thou- 
-arrl  dollars.  New  Orleans  Pac?  R.  Co. 
V.  Parker,  143  U.  S.  42,  51,  36  L.  Ed.  66. 

The  true  distinction  is  between  cases  in 
which  there  are  several  plaintiffs  inter- 
ested collectively  under  a  common  title, 
and  those  wherein  the  matters  in  dispute 
are  separate  and  distinct,  and  are  joined 
in  one  suit  for  convenience  or  economy. 
New  Orleans  Pac.  R.  Co.  v.  Parker,  14."', 
U.    S.   42,   52,   36    L.    Ed.   66. 

In  a  proceeding  to  assert  the  validity  of 
an  alleged  will  where  the  controversy  was 
whether  an  estate  valued  at  more  than 
$9,000  should  pass  in  the  mode  provided 
in  the  alleged  will,  or  in  the  mode  pro- 
vided by  the  law  of  the  domicil  of  the 
decedent  for  the  transmission  of  an  in- 
testate estate,  the  matter  in  dispute  is  the 
value  of  the  estate  effected  by  that  in- 
strument. The  matter  in  dispute  must 
necessarily  be  the  same  as  to  those  in- 
terested in  upholding  the  validity  of  the 
alleged  will  and  as  to  the  unsuccessful 
next  of  kin  who  were  prosecuting  the  writ 
of  error,  and  the  amount  of  whose  several 
interests  in  the  estate  of  the  decedent 
was  not  a  question  litigated  below.  The 
next  of  kin  sought  not  an  allotment  to 
them  of  their  interests,  if  any,  in  the  es- 
tate, but  an  adjudication  that  the  alleged 
last  will  and  testament  possessed  no  va- 
lidity, and  that  contention  was  advanced 
by  virtue  of  a  claim  of  common  title 
in  the  next  of  kin  of  the  decedent  to  the 
corpus  of  the  estate,  such  title,  if  any,  be- 
ing derived  from  the  law  of  the  alleged 
domicil  of  the  deceased.  In  this  aspect, 
the  amount  of  the  estate  was  the  matter 
in  dispute.  Overby  v.  Gordon,  177  U.  S. 
214,  218,  44  L.  Ed.  741.  citing  New  Orleans 
Pac.  R.  Co.  V.  Parker,  143  U.  S.  42,  51.  52, 
36  L.  Ed.  66;  Shields  v.  Thomas,  17  How. 
3,   15   L.    Ed.   93.' 


872 


APPEAL  AND  ERROR. 


(3)  Aggrecfation  to  Ai'oid  Multiplicity  of  Suits. — Where  a  suit  in  equity  is 
brought  to  annul  several  judgments  against  the  plaintiff,  all  of  which  are  held 
in  the  same  right,  and  the  validity  of  which  depends  upon  the  same  facts,  the 
defendant,  in  order  to  avoid  a  multiplicity  of  actions,  and  to  protect  itself  against 
the  vexation  and  costs  that  would  come  from  numerous  executions  and  levies, 
is  entitled  to  bring  one  suit  for  a  decree  finally  determining  the  matter  in  dis- 
pute in  all  cases.-^^' 

j.  Practice. — Where  distinct  causes  of  action  in  favor  of  distinct  parties  are 
united  for  convenience  and  to  save  expense  in  one  suit  and  distinct  orders  are 
made,  the  writ  of  error  will  be  dismissed  as  to  those  in  which  the  jurisdictional 
amount  is  insufficient,  and  the  cause  will  be  retained  for  adjudication  as  to  those 
on  which  the  amount  is  sufficient.-^*' 

Mandate. — Where  separate  claims,  of  different  defendants  have  been  joined 
in  one  suit,  the  circuit  court  is  without  jurisdiction  (act  of  March  3,  1887,  24 
Stat.  552,  c.  373;  Act  of  August  13,  1888,  2b  Stat.  433,  c.  866),  but  as  perhaps 
by  amendment  the  bill  might  be  retained  as  to  some  one  of  the  defendants,  this 
court  will  not  direct  its  dismissal.  In  pursuance  of  §  10  of  the  judiciary  act 
March  3,  1891,  26  Stat.  829,  c.  517,  the  decree  of  the  circuit  court  will  be 
reversed  at  the  costs  of  the  appellant,  and  the  cause  remanded  to  that  court  with 
a  direction  for  further  proceedings  in  conformity  with  the  opinion."^ 

14.  SivT-Off  and  Counterclaim. — Counterclaims  and  set-offs  introduced  by 
the  defendant  are  as  to  him  to  be  considered  a  part  of  the  amount  in  contro- 
versy. In  short,  the  amount  in  controversy  is  the  sum  shown  by  the  whole 
record,  including  counterclaims  and  set-offs  and  not  by  the  claims  set  up  by  the 
plaintiff  only.-'^ 


35.  Aggregation    to    avoid    multiplicity 

of   suits.— Marshall   v.    Holmes,    141    U.    S. 
589,   595,   35    L.    Ed.    870. 

36.  Practice. — Hawley  v.  Fairbanks,  108 
U.  S.  543,  27  L.  Ed.  820,  following  Farm- 
ers' Loan  &  Trust  Co.  v.  Waterman,  106 
U.  S.  265,  27  L.  Ed.  115. 

37.  Northern  Pac.  R.  Co.  v.  Walker, 
148    U.    S.     191,    392,    37    L.    Ed.    494. 

38.  Set-off  and  counterclaim. — Brad- 
street  Co.  V.  Higgins.  112  U.  S.  227,  28  L. 
Ed.  715;  Lamar  v.  Micou,  104  U.  S.  465, 
26  L-  Ed.  774;  Thompson  v.  Butler,  93 
U.  S.  694,  24  L.  Ed.  540;  Sampson  v. 
Welch,  24  How.  207,  16  L.  Ed.  632;  Simms 
V.  Simms,  175  U.  S.  162,  169,  44  L-  Ed.  115. 

In  considering  the  amount  necessary 
for  the  jurisdiction  of  this  court  on  a 
writ  of  error,  not  only  is  the  amount  of 
the  judgment  against  the  plaintiff  in  error 
to  be  regarded,  but,  in  addition,  the 
amount  of  a  counterclaim  which  he  would 
have  recovered,  if  his  contention  setting 
it  up  had  been  sustained.  Clark  v.  Sid- 
way,  142   U.   S.  682,  35   L-   Ed.   1157. 

As  said  in  Hilton  v.  Dickinson,  108  U. 
S.  165,  175,  27  L.  Ed.  688,  this  court  has 
jurisdiction  "of  a  writ  of  error  or  appeal 
by  a  defendant  when  the  recovery  against 
him  is  as  much  in  amount  or  value  as  is 
required  to  bring  a  case  here,  and  when, 
liaving  pleaded  a  set-oflf  or  counterclaim 
ior  enough  to  give  us  jurisdiction,  he  is 
defeated  upon  his  plea  altogether,  or  re- 
covers only  an  amount  or  value  which,  be- 
ing deducted  from  his  claim  as  pleaded, 
leaves  enough  to  give  us  jurisdiction, 
which   has   not   been   allowed." 


Where  in  an  action  of  assumpsit  to  re- 
cover $813  for  goods  sold  and  delivered, 
the  record  shows  that  the  defendants  set 
up  a  counterclaim  seeking  to  recover  the 
sum  of  $7,000  in  excess  of  the  plaintiff's 
claim,  this  is  the  sum  in  dispute,  and  there- 
fore the  plaintiff's  motion  to  dismiss  the 
writ  of  error,  for  want  of  a  sufficient 
amount  in  dispute  to  give  this  court  ju- 
risdiction, cannot  be  sustained.  Dushane 
V.  Benedict,  120  U.  S.  630,  30  L.  Ed.  810, 
citing  Ryan  v.  Bindley.  1  Wall.  66,  17  L. 
Ed.  559;  Act  of  Congress  of  February  16, 
187.%.   c.   77,   §  3,  18   Stat.   316. 

Where  in  a  case  to  recover  damages  for 
a  breach  of  a  contract,  the  plaintiff  iays 
his  damages  to  the  amount  of  $6,750  and 
the  interest  thereon,  no  part  of  which  as 
he  alleges  has  been  paid,  except  the  sum 
of  $1,900  on  account,  and  the  additional 
claim  of  $2,500  as  special  damages,  and 
the  answer  of  the  defendant  sets  up  a 
general  denial,  except  that  he  admits  that 
he  has  paid  $1,900,  and  also  sets  up  a  coun- 
terclaim for  $6,000  damages  for  the  fail- 
ure of  the  plaintiff  to  perform  the  con- 
tract, a  motion  to  dismiss  for  want  of 
jurisdiction  will  be  denied.  In  as  much 
as  the  defendant  loses  by  the  judgment 
$2,485,  exclusive  of  interest  and  costs  and 
in  addition  to  that  does  not  recover  any- 
thing on  account  of  his  counterclaim  of 
$6,000,  the  aggregate  amount  is  sufficient 
to  give  this  court  jurisdiction.  Sire  v.  El- 
lithorpe  Air  Brake  Co..  137  U.  S.  579,  34 
L.   Ed.   801. 

Where  the  plaintiff  sues  for  an  amount 
in  excess  of  the 'sum  necessary  to  give  us 


APPEAL  AND  ERROR. 


873 


Set-Oil. — \\  liere  a  declaration  claims  a  sum  not  sufficiently  large  to  warrant 
error  to  this  court,  but  where  the  plea  pleads  a  set-off  of  a  sum  so  considerable 
that  the  excess  between  the  sum  claimed  and  that  pleaded  as  a  set-off  would 
do  so.  the  amount  in  controversy  is  not  the  sum  claimed  but  the  sum  in  excess, 
in  those  circuits  where  by  the  law  of  the  state  adopted  in  the  circuit  court,  judg- 
ment may  be  given  for  the  excess  as  aforesaid.-"  V\  here  the  defendants  in  an 
action  to  recover  on  a  money  demand,  not  only  dispute  the  whole  of  the  plain- 
tiff's demand,  but  claim  judgment  over  against  him  for  the  amount  of  their 
counterclaim,  this  court  has  jurisdiction  of  an  appeal  by  the  defendant.  In 
other  words  the  disallowance  altogether  of  the  defendants'  counterclaim  entitles 
liim  to  a  writ  of  error  that  will  bring  up  the  whole  case,  the  original  cause  of 
action  as  well  as  the  defense  and  counterclaim.'*'^'  In  the  absence  of  anything 
to  the  contrary,  the  prayer  for  judgment  by  the  defendant  in  his  counterclainl 
or  set-oft",  will  be  taken  as  indicating  the  amount  in  dispute,  unless  the  actual 
amount  in  dispute  otherwise  appears  in  the  record.^  i 

IS.  Interest  and  Costs — a.  In  General— In  determining  the  jurisdictional 
sum  or  amount,  it  is  obvious  that  neither  interest  on  the  judgment  nor  costs  of 
suit  can  enter  into  the  computation,  for  costs  form  no  part  of  the  matter  in  dis- 
pute, and  interest  on  the  judgment  can  only  arise  after  rendition,  while  the  ju- 
risdictional amount,  if  determined  by  the  judgment,  is  fixed  at  rendition.'*^  The 
general  rule  is  well  settled  that  in  cases  brought  here  on  a  writ  of  error  for  the 
re-examination  of  judgments  of  affirmance  in  the  supreme  court  of  the  District 
of  Columbia,  the  value  of  the  matter  in  dispute  is  determined  by  the  judgment 
affirmed,   without   adding  interest  or  costs.'*^ 

b.    Interest. — In  General. — The  amount  required  is  to  be  ascertained  and  de- 


jurisdiction,  but  the  defendants  deny  their 
liability  in  any  sum,  and  by  way  of  coun- 
terclaim ask  for  judgment  in  the  sum  of 
ten  thousand  dollars,  the  matter  in  dis- 
pute in  this  court,  where  the  writ  of  error 
is  sued  out  by  the  defendant,  is  tlie 
amount  of  the  counterclaim,  and  this 
court  has  jurisdiction  although  the  verdict 
and  judgment  were  in  favor  of  the  plain- 
tifif  for  less  than  five  thousand  dollars. 
Buckstaff  V.  Russell  &  Co.,  151  U.  S.  626, 
38   L.    Ed.   292. 

39.  For  example:  A  declaration  in  as- 
sumpsit claimed  one  thousand  dollars 
damages — a  sum  insufficient  to  give  the 
supreme  court  jurisdiction,  more  than  two 
thousand  being  required  for  that  purpose. 
The  plea  pleaded  a  set-off  of  four  thou- 
sand, and  by  the  laws  of  Ohio,  adopted 
in  the  federal  courts  sitting  in  that  state, 
judgment  might 'be  given  for  the  three 
thousand  in  excess,  if  the  set-off  was 
proved.  Held,  that  three  thousand,  and 
not  one  thousand,  was  the  amount  in  dis- 
pute; and,  accordingly,  that  the  jurisdic- 
tion of  the  supreme  court  attached.  Ryan 
V.  Bindley,  1  Wall.  66,  17  L-  Ed.  559,  cited 
with  approval  in  Dushane  v.  Benedict,  120 
U.   S.   6?.0,   636,   30   L.    Ed.   810. 

40.  Block  V.  Darling,  140  U.  S.  234,  35 
L.  Ed. -176,  following  Hilton  z^.  Dickinson, 
108  U.  S.  165,  27  L.  Ed.  688;  Bradstreet 
Co.  V.  Higgins,  112  U.  S.  227,  28  L.  Ed. 
715. 

41.  Gray  v.  Blanchard,  97  U.  S.  564,  24 
L.  Ed.  1108. 

42.  In  general. — Knapp  v.  Banks,  2  How. 
73.  11  L.  Ed.  184;  Walker  v.  United  States, 


4  Wall.  163,  164.  18  L.  Ed.  319;  Rail- 
road Co.  V.  Trook,  100  U.  S.  112,  25  L. 
Ed.  571;  Western  Union  Tel.  Co.  v.  Rog- 
ers, 93  U.  S.  565,  23  L.  Ed.  977;  Walker  v. 
United  States,  4  Wall.  163,  18  L.  Ed.  319; 
New  York  Elevated  R.  Co.  v.  Fifth  Nat. 
Bank,  118  U.  S.  608,  30  L.  Ed.  259;  Or- 
tega V.  Lara,  202  U.  S.  339,  342,  50  L.  Ed. 
1055. 

Before  the  act  of  Feb.  16,  1875  (18 
Stat.  316),  increasirg  the  sum  or  value  of 
the  matter  in  dispute,  necessary  to  give 
this  court  jurisdiction,  from  $2,000  to 
$5,000,  after  May  1,  1875,  it  was  held,  that 
we  had  no  jurisdiction  in  cases  where  the 
matter  in  dispute  was  $2,000,  and  no  more, 
and  that  in  determining  the  jurisdictional 
amount  "'neither  interest  on  the  judgment 
nor  costs  of  suit  can  enter  into  the  com- 
putation." Walker  v.  United  States,  4 
Wall.  163,  164,  18  L.  Ed.  319;  Knapp  v. 
Banks,  2  How.  73,  11  L.  Ed.  184;  Western 
Union  Tel.  Co.  v.  Rogers,  93  U.  S.  565. 
566,  23    L.   Ed.   977. 

43.  District  of  Columbia  v.  Gannon,  130 
U.    S.   227,   32   L.    Ed.    922. 

Where  a  judgment  for  the  recovery  of 
money,  affirmed  in  the  supreme  court  of 
the  District  of  Columbia,  is  brought  here 
for  re-examination,  the  amount  thereof, 
without  adding  interest  or  costs,  deter- 
mines the  value  of  "the  matter  in  dispute," 
under  the  act  of  Feb.  25,  1879  (20  Stat. 
320),  and,  if  it  does  not  exceed  $2.5L'0,  this 
court  has  no  jurisdiction.  Railro-^d  Co.  f. 
Trook,  100  U.  S.  112,  23  L-  Ed.  571,  cit- 
ing Railroad  Co.  v.  Grant,  93  U.  S-  398,  U 
L.   Ed.  231. 


874 


APPEAL  AND  ERROR. 


termined  by  the  sum  in  controversy  at  the  time  of  the  judgment  in  the  circuit 
court,  and  not  by  any  subsequent  additions  thereto,  such  as  interest."*^ 

Libel  in  Admiralty. — Where  the  claim  is  founded  on  dohars  and  cents, 
whether  it  be  a  hbel,  a  bill  in  chancery,  or  an  action  at  law,  the  damages  must 
appear,  to  give  jurisdiction,  on  the  face  of  the  pleading  on  which  the  claim  is 
made.  No  computation  of  interest  will  be  made  to  give  jurisdiction,  unless  it 
be  specially  claimed  in  the  libel.  If  not  intended  to  be  included  in  the  claim 
of  damages,  it  should  be  specially  stated.  This  would  certainly  be  the  case  in 
an  action  at  law,  and  no  reason  is  perceived  why  the  rule  should  be  relaxed  in 
a  case  of  libel.^^ 


44.  Interest.— Merrill  v.  Pet^y,  16  Wall. 
338,  345,  21  L-  Ed.  499,  citing  G^rrlon  v. 
Ogden,  3  Pet.  33.  7  L.  Ed.  .593;  Wise  v. 
Columbian  Turnpike  Co.,  7  Cranch  276,  3 
L.  Ed.  341;  Knarp  v.  Banks,  2  How.  73, 
11  L.  Ed.  184;  Walker  v.  United  States, 
4  Wall.  163,  18  L.  Ed.  319;  Western  Union 
Tel.  Co.  V.  Rogers,  93  U.  S.  565,  23  L. 
Ed.  977. 

Where  the  defendant  in  error  recov- 
ered judgment  in  the  supreme  court  of  the 
District  of  Columbia,  against  the  district, 
for  $3,000,  in  an  action  on  the  case  for 
personal  injuries,  which  judgment,  as  ren- 
dered at  a  special  term,  was  affirmed  with 
costs,  but  not  with  interest;  the  general 
term  thereby  simply  declaring  that  it  was 
satisfied  to  let  the  former  judgment  stand, 
a  motion  to  dismiss  for  want  of  jurisdic- 
tion will  be  granted.  It  would  have  been 
otherwise  if,  by  the  judgment  of  affirm- 
ance, interest  had  been  directed  to  be 
paid  to  the  judgment  at  special  term.  Dis- 
trict of  Columbia  v.  Gannon,  130  U.  S. 
227,  32  L.  Ed.  922,  following  Railroad  Co. 
V.  Trook,  100  U.   S.   112,  25   L.   Ed.  571. 

The  act  of  congress  provides  that  ap- 
peals shall  be  allowed  to  the  supreme 
court  from  the  final  decrees  rendered  in 
the  circuit  courts,  in  cases  of  equity  juris- 
diction, where  the  matter  in  dispute,  ex- 
clusive of  costs,  shall  exceed  the  sum  or 
value  of  two  thousand  dollars.  The  ex- 
pression, sum  or  value  of  the  matter  in 
dispute  has  reference  to  the  date  of  the 
decree  below,  alike  in  case  of  appeals  in 
equity,  and  writs  of  error  at  law;  they 
are  each  grounded  on  the  original  proc- 
ess of  this  court  operating  on  the  final 
decree  or  judgment,  and  are  limited  to 
the  sum  or  value  then  in  controversy,  and 
of  which  the  decree  or  judgment  furnishes 
the  better  evidence,  should  it  furnish  any. 
The  matter  in  dispute  in  the  circuit  court, 
was  a  claim  to  have  deducted  from  the 
judgment  at  law,  one  thousand  dollars, 
with  interest  thereon,  after  the  rate  of  six 
per  centum,  from  the  8th  day  of  July, 
1819,  up  to  the  date  of  the  decree,  in  No- 
vember, 1836;  being  upwards  of  seven- 
teen years;  and  the  circuit  court  decreed 
the  reformation  to  be  made  of  the  judg- 
ment at  law,  by  expunging  therefrom,  and 
as  of  its  date,  the  one  thousand  dollars, 
with  the  interest.  The  eflCect  was  to  cut 
t'ff   the   interest   that   had   accrued   on   the 


one  thousand  dollars  from  the  date  of  the 
judgment  in  1827  to  that  of  the  decree  in 
1836,  interest  on  the  principal  sum  re- 
covered, being  an  incident  of  the  con- 
tract by  the  laws  of  Kentucky,  as  well 
after  judgment  as  before.  Th"  nrarfVal 
consequence  of  the  decree  will  immedi- 
ately be  manifest  when  the  bill  is  dis- 
missed by  the  order  of  this  court;  the  ap- 
pellants will  then  issue  their  execution  at 
law,  and  enforce  the  one  thousand  dol- 
lars, with  the  accruing  interest,  from  the 
8th  of  July.  1819,  unt'l  payment  is  made. 
It  follows  that,  upon  the  most  favorable 
basis  of  calculation,  and  disregarding  the 
statute  of  Kentucky  of  1789,  giving  ten 
per  cent,  damages  in  addition  to  legal  in- 
terest on  the  sum  enjoined,  the  amount  to 
which  the  decree  below  relieved  the  ap- 
pellees, and  deprived  the  bank  of  the  right 
of  recovery,  was  two  thousand  and  forty 
dollars;  that  is,  one  thousand  dollars  prin- 
cipal, with  seventeen  years  and  four 
months  of  interest;  this  being  the  aggre- 
gate amount  in  dispute,  and  enjoined  by 
the  decree,  of  course,  the  supreme  court 
has  jurisdiction  of  the  writ  of  error. 
United  States  Bank  v.  Daniel,  12  Pet.  32, 
9   L.   Ed.  989. 

Where  a  verdict  and  judgment  for 
$5,000  was  entered  for  the  plaintifif  in  the 
court  below,  but  on  an  ex  parte  motion 
of  the  defendant,  the  judgment  was 
amended  to  include  interest  on  the  ver- 
dict, it  was  held  that  as  the  judgment  orig- 
inally rendered  did  not  exceed  the  sum  or 
value  of  $3,000,  it  could  not  be  amended 
on  motion  of  the  defendant  by  the  addi- 
tion of  an  amount  not  claimed  by  the 
plfiintiff,  so  as  to  bring  the  case  withm  our 
jurisdiction.  "Since  the  defendant  con- 
fessedly made  its  motion  with  the  sole 
object  of  obtaining  a  writ  of  error  not 
otherwise  allowable,  and,  in  doing  so, 
conceded  that  the  amount  sought  to  be 
added  was  not  in  dispute,  we  decline  to 
permit  what  was  done  to  be  efficacious;  in 
the  accomplishment  of  the  purpose  de- 
signed." Northern  Pacific  R.  Co.  v.  Booth, 
152   U.    S.   671,   672     38    L.    Ed.    591. 

45.  Udall  V.  Steamship  Ohio,  17  How. 
17,  15  L.   Ed.  42. 

Where  the  amount  claimed  in  a  libel 
does  not  exceed  $2,000,  this  court  has  no 
jurisdiction,  and  the  appeal  will  be  dis- 
missed, although  if  proper  interest  to  time 


APPEAL  AND  ERROR. 


875 


Effect  of  Local  Rules  of  Practice.— But  when  the  judgment  actually  ren~ 
dered  in  the  court  below  was  for  an  amount  giving  this  court  jurisdiction,  which 
amount  was  reached  by  adding  to  a  verdict  for  $5,000,  interest  from  the  time 
of  the  verdict  to  the  time  of  the  entry  of  the  judgment  in  a  district  where  the 
local  state  law  does  not  permit  that  to  be  done,  and  the  plaintiff  below,  although 
excepting  to  the  allowance  of  interest,  and  to  the  refusal  of  the  court  below  to 
permit  a  remittitur,  brings  no  writ  of  error  to  correct  the  alleged  error,  this  court 
cannot  dismiss  a  writ  of  error  brought  by  the  defendant  to  review  other  rulings 
in  the  case>^ 

c.  Costs. — In  determining  the  jurisdictional  sum  or  amount,  costs  cannot  enter 
into  the  computation,  for  costs  form  no  part  of  the  matter  in  dispute.^'  Hence^ 
an  appeal  cannot  be  taken  to  this  court  from  a  decree  of  the  court  below  that 
the  plaintiff  pay  into  court  the  costs  of  the  suit  and  $1,000.  where  it  does  not 
involve  an  amount  sufficient  to  give  this  court  jurisdiction. ^'^ 

d.  Limitations  of  General  Rule. — In  General. — \\  here  interest  antecedent  to 
the  judgment  appealed  from  is  included  in  such  judgment,  and  the  amount,  with 
the  added  interest,  exceeds  the  necessary  amount,  jurisdiction  will  attach.^^     So, 


of  the  trial  be  added,  it  will  exceed  $-2. 000. 
Udall  V.  Steamship  Ohio,  17  How.  17,  15 
L.   Ed.   42. 

In  Olney  z'.  Steamship  Falcon,  17  How. 
19,  15  L.  Ed.  43,  the  appellant  claimed  in 
his  libel  that  he  was  entitled  to  recover  of 
said  vessels  the  damages  by  him  sus- 
tained, "which  amount  to  the  sum  of  $800 
and  upwards."  This  court,  in  dismissing 
the  case  for  want  of  jurisdiction  on  the 
ground  that  the  sum  was  not  sufficient  to 
bring  it  within  the  jurisdiction  of  this 
court,  said:  "The  words,  'and  upwards,' 
it  is  said,  were  intended  to  embrace  the 
interest,  and  that,  if  this  be  calculated 
from  the  time  of  filing  the  libel  up  to  the 
time  of  the  trial,  the  sum  would  e.xceed 
two  thousand  dollars.  The  interest,  in 
an  action  of  this  kind,  if  taken  into  view, 
is  considered  as  a  part  of  the  damages, 
being  merged  in  that  claim,  and  is  not  es- 
timated as  a  distinct  item.  The  claim 
of  more  than  eighteen  hundred  dollars, 
is  too  indefinite  to  give  jurisdiction  under 
the  act  of  congress;  and  the  interest  not 
being  specially  claimed,  for  the  reason 
stated,  cannot  be  computed.  The  appeal 
is,  therefore,  dismissed,  for  want  of  ju- 
risdiction. Gordon  v.  Ogden,  3  Pet.  33, 
34,  7  L.  Ed.  592;  Scott  v.  Lunt,  6  Pet.  349, 
8  L.    Ed.   423." 

46.  B-iltimore.  etc.,  R.  Co.  v.  Griffith, 
159  U.  S.  603,  605,  39  L-  Ed.  274,  citing 
Pacific  Pcslal,  etc..  Co.  v.  O'Connor,  128 
U.  S.  394,  32  L.  Ed.  488;  Massachusetts 
Benefit  Ass'n  v.  Miles,  137  U.  S.  689,  34  L. 
Ed.   834. 

47.  Costs. — Knapp  v.  Banks,  2  How.  73, 
11  L.  Ed.  184;  Walker  v.  United  States, 
4  Wall.  163,  18  L.   Ed.  319. 

Where  a  judgment  in  a  patent  case  was 
affirm  d  hy  this  court  with  a  blank  in  the 
record  for  costs,  and  the  circuit  court 
afterwards  taxed  these  costs  at  a  sum  less 
than  two  thousand  dollars,  and  allowed  a 
writ  of  error  to  this  court,  this  writ  must 
be  dismissed  on  motion.  Sizer  v.  Many, 
16  How.  98,  14  L.  Ed.  861. 


Co. 


-The 
457; 
Ed. 
617, 


48.  Johnson    v.    St.    Louis,   etc.,    R. 
141    U.    S.    1302,    25    L.    Ed.    875. 

49.  Limiiaticns  of  general  rule.- 
Patapsco,  12  Wall.  451,  20  L.  Ed. 
The  Rio  Grande,  19  Wall.  178.  22  L. 
60;  Zeckendorf  v.  Johnson,  123  U.  S. 
31  L.  Ed.  277;  District  of  Columbia  v. 
Gannon,  130  U.  S.  227,  32  L.  Ed.  922;  New 
York  Elevated  R.  Co.  v.  Fifth  Nat.  Bank, 
118  U.  S.  608,  30  L.  Ed.  259;  Keller  r. 
Ashford,  133  U.  S.  610,  33  L.  Ed.  667; 
Massachusetts  Benefit  Ass'n  v.  Miles,  137 
U.  S.  689.  34  L.  Ed.  834;  Woodward  v. 
Jewell,  140  U.  S.  247,  35  L.  Ed,  478;  Guth- 
rie Nat.  Bank  v.  Guthrie,  173  U.  S.  538,. 
533,    43    L.    Ed.    796. 

In  order  to  give  this  court  appellate  ju- 
risdiction, interest  to  the  date  of  judgment 
may  be  included.  The  Patapsco,  12  Wall. 
451,  20  L.  Ed.  457,  followed  in  The  Rio. 
Grande,    19    Wall.    178,   22   L.    Ed.    60. 

Upon  a  decree  in  the  circuit  court  for 
a  sum  less  than  $2,000,  "with  interest 
from  a  date  named,"  an  appeal  lies  here 
under  the  statute  which  gives  an  appeal 
"where  the  sum  in  dispute  *  *  *  gj^. 
ceeds  $2,000,"  provided  that  the  sum  for 
which  the  decree  is  given  and  the  inter- 
est added  to  it  together  exceed  $2,000.  The 
Patapsco,   12   Wall.   451,   20  L.    Ed.   457. 

Where  the  verdict  was  for  $5,000,  and 
the  judgment  was  for  that  amount,  and 
$306  interest  for  the  time  between  verdict 
and  judgment,  and  for  $60.25  costs,  held,, 
that  the  matter  in  dispute  exceeded  the 
sum  or  value  of  $5,000,  exclusive  of  costs. 
within  the  act  of  February  16,  1875,  c.  77. 
§  3,  18  Stat.  316,  even  though,  without  the 
interest  included  in  the  judgment,  the 
amount,  exclusive  of  co^ts,  would  not  be 
over  $5,000.  Quebec  Steamship  Co.  v. 
Merchant,  133  U.  S.  375,  33  L.  Ed.  65G, 
citing  New  York  Elevated  R.  Co.  v.  Fifth 
Nat.   Bank,  118  U.  S.  608,  30  L.   Ed.  259. 

In  Zeckendorf  v.  Johnson,  123  U.  S.  617,. 
31  L.  Ed.  277,  a  judgm  nt  was  rendered 
September  28,  1885,  by  the  district  court 
of  Arizona,  in  and  for  the  county  of  Pim.;, 


S76 


APPEAL  AND  ERROR. 


also,  where  interest,  instead  of  accompanying  the  judgment  or  decree  as  damages 
for  the  detention  of  a  specitic  amount  adjudged  or  decreed,  is  part  of  the  claim 
litigated,  and  the  judgment  or  decree  is  so  framed  as  to  provide  for  it  to  run 
from  a  period  antecedent  to  the  rendition  of   such  judgment  or  decree,  or,  in 


against  L.  Zeckendorf  &  Co.,  the  appel- 
lants, and  in  favor  of  Johnson,  the  ap- 
pellee, for  $4,304.93,  "with  interest  on  $2,800 
on  said  sum,  at  the  rate  of  two  per  cent, 
per  month  from  the  date  hereof  until  paid, 
and  interest  on  $1,504.33,  at  the  rate  of 
ten  per  cent,  per  annum  from  the  date 
hereof  until  paid."  This  judgment  was 
affirmed  by  the  supreme  court  of  the  ter- 
ritory, on  appeal,  November  8,  1886.  From 
that  judgment  of  affirmance  this  appeal 
was  taken,  which  the  appellee  moves  to 
dismiss  on  the  ground  that  the  value  of 
the  matter  in  dispute  does  not  exceed 
$5,000,  as  now  required  by  law.  Act  of 
March  3,  1885,  c.  355,  23  Stat.  443.  The 
court  said  "The  value  of  the  matter  in 
dispute  is  to  be  determined  by  the  amount 
due  at  the  time  of  the  judgment  brought 
here  for  review,  to  wit,  the  judgment  of 
the  supreme  court  of  the  territory,  and 
not  at  the  time  of  the  judgment  of  the 
district  court.  Adding  the  interest  to  the 
judgment  of  the  district  court  until  the 
date  of  the  supreme  court,  as  we  must  for 
the  purpose  of  determining  our  jurisdic- 
tion, The  Patapsco,  12  Wall.  451,  20  L. 
Ed.  457;  New  York  Elevated  R.  Co.  v. 
Fifth  Nat.  Bank,  118  U.  S.  608,  30  L.  Ed. 
259,  we  find  that  the  amount  due  at  the 
time  of  the  judgment  of  the  supreme  court 
was  considerably  more  than  $5,000.  The 
motion  to  dismiss  is.  therefore,  denied." 

In  a  suit  founded  upon  a  contract,  the 
sum  in  dispute  at  the  time  of  the  judg- 
ment or  decree  appealed  from,  including 
any  interest  then  accrued,  is  the  test  of 
appellate  jurisdiction.  Keller  v.  Ashford, 
133  U.  S.  610,  617,  33  L.  Ed.  667,  citing 
United  States  Bank  v.  Daniel,  12  Pet.  32, 
52,  9  L.  Ed.  989;  The  Patapsco,  12  Wall. 
451,  20  L.  Ed.  457;  New  York  Elevated  R. 
Co.  V.  Fifth  Nat.  Bank,  118  U.  S.  608.  30  L. 
Ed.  259;  Keckendorf  v.  Johnson,  123  U.  S. 
617,  31  L.  Ed.  277.  and  distinguishing  Rail- 
road V.  Trook.  100  U.  S.  112,  25  L.  Ed.  571; 
District  of  Columbia  v.  Gannon,  130  U.  S. 
227,  32  L.  Ed.  922.  on  the  ground  that  the 
judgment  in  special  term  was  for  damages 
in  an  action  sounding  in  tort,  which  bore 
no  interest,  either  by  the  general  law,  or 
by  the  judgment  of  affirmance  in  general 
term. 

Where  under  the  peculiar  practice  ob- 
taining in  Pennsylvania,  a  judgment  in  a 
federal  court  for  $5,000  is  entered  up  gen- 
erally "in  favor  of  the  plaintiff  and  against 
the  defendant  on  the  verdict,"  and  an  act 
of  the  legislautre  of  that  state  gives  inter- 
est upon  such  sum  from  the  date  of  verdict, 
ibis  court  has  jurisdiction,  the  Revised 
Statutes  of  the  United  States  to  the  con- 
trary notwithstanding,  because  both  in 
Holden  v.  Trust   Co.,   100   U.   S.   72,   25   L. 


Ed.  567,  and  in  Ohio  v.  Frank,  103  U.  S. 
697,  26  L.  Ed.  531,  it  was  held,  that  the 
question  of  interest  is  always  one  of  local 
law.  Massachusetts  Benefit  i\ss'n  v. 
Miles,   137   U.   S.   689,  34  L.   Ed.  834. 

Appeals  in  admiralty. — Five  libelants, 
on  separate  libels  in  rem,  got  a  decree  in 
the  circuit  court  of  one  circait  against  a 
vessel  for  sums  each  one  under  $2,000,  and 
so  without  right  of  appeal  here,  and  costs. 
Before  they  could  get  satisfaction  from 
the  vessel,  she  was  taken  out  to  sea.  The 
vessel  happening  to  be  subsequently  in  an- 
other district  the  same  five  libelants  now 
sent  and  libelled  her  there;  not  filing  five 
separate  libels  as  in  the  former  district, 
but  all  five  persons  joining  in  one  libel, 
claiming  for  each  the  old  sums,  with  in- 
terest from  a  day  named,  and  claiming  in 
one  sum,  and  without  any  specification  ol 
what  portion  of  it  was  for  which  libel- 
ant, the  sum  of  $1,767.62,  costs  of  the 
courts  of  the  first  district,  "and  also  all 
costs  in  this  behalf  expended."  The  cir- 
cuit court  decreed  in  favor  of  the  libel- 
ants the  amount  claimed  by  each  with 
8  per  cent,  interest  from  a  day  named,  to 
the  date  of  the  circuit  court's  decree;  and 
"the  further  sum  of  $1,767.62  costs  in  the 
district  and  circuit  courts"  of  the  former 
district,  and  all  costs  in  the  district 
and  circuit  courts  where  the  libels 
had  last  been  filed.  With  the  inter- 
est thus  allowed  the  claims  of  two  of  the 
five  libelants  exceeded  the  sum  of  $2,000, 
but  even  with  it  added  tlie  claims  of  the 
remaining  three  did  not  do  so.  The  own- 
ers of  the  vessel  having  taken  an  appeal 
to  this  court,  a  motion  "to  dismiss  the  ap- 
peal," for  want  of  jurisdiction,  because 
"the  matter  in  dispute  did  not  exceed  the 
sum  or  value  of  $2,000,"  was  denied;  the 
ground  for  the  denial  assigned  being  that 
"the  motion  is  to  dismiss  the  appeal"  and 
that  the  decree  in  favor  of  two  of  the 
libelants  was  greater  than  $2,000  when 
the  interest  allowed  by  the  circiuit  court 
to  the  date  of  its  decree  was  included  with 
the  principal.  The  Rio  Grande.  19  Wall. 
ITS.  22  L.  Ed.  60,  citing  The  Patapsco,  12 
Wall.  451,  20  L.  Ed.  457. 

Where  a  verdict  is  recovered  against  a 
railroad  company  for  $5,000  for  injuries 
to  real  estate,  and  at  the  time  of  the  ren- 
dition of  the  verdict  the  railroad  company 
moves  for  a  new  trial,  which  motion  is 
denied,  and  judgment  is  entered  for 
$5,068.33.  that  being  the  amount  of  the 
verdict  with  interest  added  to  the  date  of 
the  judgment,  this  court  has  jurisdiction. 
"It  is  true  that  our  jurisdiction  depends 
on  the  amount  of  the  judgment,  exclusive 
of  interest  thereon.  Knapp  v.  Banks,  2 
How.   73,   11   L.    Ed.   184;   Western   Union 


APPEAL  AXD  ERROR.  877 

actions  ex  contractu,  according  to  the  terms  of  the  contract  upon  which  the  action 
is  hased.  jurisdiction   may  attach.'^'^' 

Where  a  judgment  of  the  district  court  of  a  territory  is  affirmed  by  the 
supreme  court  of  a  territory,  and  at  the  date  of  the  affirmance  the  interest,  added 
to  the  original  judgment,  is  sufficient  to  give  this  court  jurisdiction,  the  value 
of  the  matter  in  dispute  is  to  be  determined  by  the  amount  due  at  the  time  of 
the  judgment  of  the  supreme  court  of  the  territory.-^ ^ 

The  distinction  is  elementary  between  interest  as  such  and  the  use  of 
an  interest  calculation  as  an  instrumentality  in  arriving  at  the  amount  of  dam- 
ages to  be  avvarded  on  the  principal  demand.  And  much  confusion  of  thought 
often  results  from  the  failure  to  distinguish  between  a  principal  and  an  accessory 
demand.  Accordingly,  in  an  action  on  a  warranty  of  title  in  a  deed,  the  sum 
of  the  principal  demand  is  the  amount  of  the  purchase  money  paid,  although 
interest  and  price  and  other  things  may  have  constituted  some  of  the  elements 
entering  into  the  legal  unit,  as  the  damage  which  the  party  was  entitled  to 
recover.^  2 

16.  Showing  and  De:termination  of  Amount — a.  In  General. — To  ascertain 
the  right  of  jurisdiction  as  dependent  on  the  amount  in  controversy,  we  look 
not  to  a  single  feature  of  the  case,  but  to  the  entire  controversy  between  the 
parties.^^ 


Tel.  Co.  V.  Rogers,  93  U.  S.  565,  566,  23 
L.  Ed.  977;  but  here  the  interest  accrued 
before  judgment,  and  not  after.  In  The 
Patapsco,  12  Wall.  451,  20  L.  Ed.  457, 
jurisdiction  was  taken  in  a  case  where  the 
decree  was  for  $1,982,  'and  interest  from 
the  (]pte  of  the  report,'  which  made  more 
than  $2,000  due  at  the  time  of  the  decree. 
I!  t  1  einiT  then  the  jurisdictional  limit." 
New  York  Elevated  R.  Co.  v.  Fifth  Nat. 
Bank,  118  U.  S.  608.  610,  30  L.  Ed.  259. 

Suits  for  accounting. — Where  in  an  ac- 
tion in  equity,  brought  in  the  court  below 
by  the  appellant,  for  the  purpose  of  hav- 
ing an  account  stated  between  him  and  the 
appellee,  the  case  was  referred  to  a  spe- 
cial auditor,  who  reported  a  balance  due 
to  the  appellant  of  $784.53,  and  the  ac- 
count involved  a  large  number  of  items, 
amounting  in  the  aggregate  to  several 
thousand  dollars,  but  the  complainants 
filed  exceptions  to  the  report  of  the  au- 
ditor, which  were  overruled  and  judgment 
entered  for  the  complainant  for  the 
amnurt  awarded  by  the  special  auditor,  it 
was  held,  that  the  matters  in  dispute  on 
this  a;)peal  were  those  presented  by  the 
exceptions  to  the  master's  report,  and  if 
the  addition  of  interest  to  this  amount, 
from  the  date  at  which  the  master  made 
up  the  account,  until  the  decree  below, 
will  not  make  the  value  of  the  amount  in 
dispute  equal  to  that  necessary  to  eive 
this  court  jurisdiction,  the  appeal  will  be 
dismissed.  Burr  v.  Myers,  154  U.  S.  654, 
25  L.   Ed.  976. 

50.  Zeckendorf  v.  Johnson,  123  U.  S. 
617,  31  L.Ed.  277;  The  Patapsco.  12  Wall. 
451,  20  L.  Ed.  457;  The  Rio  Grande.  19 
Wall.  178,  22  L.  Ed.  60;  District  of  Colum- 
bia V.  Gannon,  130  U.  S.  227,  228,  32  L. 
Ed.  922. 

51.  Benson  Min.,  etc.,  Co.  v.  Alta  Min., 
«tc.,  Co.,  145  U.  S.  428,  36  L.  Ed.  762,  fol- 


lowing Zeckendorf  v.  Johnson.  123  U.  S. 
617,   31   L.    Ed.   277. 

In  Zeckendorf  v.  Johnson,  123  U.  S. 
617,  31  L.  Ed.  277,  a  judgment  was  ren- 
dered September  28,  1885,  by  the  dis- 
trict court  of  Arizona,  in  and  for  the 
county  of  Pima,  against  L.   Zeckendorf  & 

Co.,    the    ar''^"""r.t=     -i"-'    •"    """--r    -f    T^u^_ 

son,  the  appellee,  for  $4,304.93,  "with  in- 
terest en  ;p.i,ou(j  .1  saiu  i.  nx,  at  m  ,  ..  i 
two  per  cent,  per  month  from  the  date 
hereof  until  paid,  and  interest  on  $1,504.33, 
at  the  rate  of  ten  per  cent,  per  annum 
from  the  date  hereof  until  paid."  This 
judgment  was  affirmed  by  the  supreme 
court  of  the  territory,  on  appeal,  Novem- 
ber 8,  1886.  From  that  judgment  of  af- 
firmance this  appeal  was  taken,  which 
the  appellee  moves  to  dismiss,  on  the 
ground  that  the  value  of  the  matter  in  dis- 
pute does  not  exceed  $5  000,  as  now  re- 
quired by  law.  Act  of  March  3,  1885,  c. 
355,  23  Stat.  443.  The  court  said:  "The 
value  of  the  matter  in  dispute  is  to  be  de- 
termined by  the  amount  due  at  the  time 
of  the  judgment  brought  here  for  review, 
to  wit,  the  judgment  of  the  supreme  court 
of  the  territory,  and  not  at  the  time  of  the 
judgment  of  the  district  court.  Adding  the 
interest  to  the  judgment  of  the  district 
court  until  the  date  of  that  of  the  supreme 
court,  as  we  must  for  the  piirpo«e  of  de- 
termining our  jurisdiction.  The  Patapsco,. 
12  Wall.  451,  20  L.  Ed.  457;  New  York 
Elevated  R.  Co.  v.  Fifth  Nat.  Bank,  118 
U.  S.  608.  30  L.  Ed.  259,  we  find  that  the 
amount  due  at  the  time  of  the  judgment 
of  the  supreme  court  was  consi''''"rably 
more  than  $5,000.  The  motion  to  dismiss 
is,  therefore,  denied." 

52.  Brown  v.  Webster,  156  U.  S.  328,  39 
L.   Ed.   440. 

53.  In  general. — Stinson  f.  Dous'-^-^n,  20 
How.    461,    15    E.    Ed.    966;     Shappirio    v. 


878 


AFFBAL  AND  HKKOR. 


Must  Appear  Affirmatively. — The  fact  of  value  in  excess  of  the  limit  pre- 
scribed by  congress  to  give  this  court  appellate  jurisdiction  must  affirmatively 
appear  in  the  record,  as  it  is  essential  to  the  existence  and  exercise  of  jurisdiction. 
This  court  will  not  proceed  in  any  case  unless  its  right  and  duty  to  do  so  are 
apparent  upon  the  face  of  the  record. ^^  Enough  must  appear  to  show  affirma- 
tively that  the  jurisdiction  exists.  A  writ  of  error  to  a  circuit  court  in  an  eject- 
ment was  dismissed,  where  the  record  stated  that  the  land  for  which  the  suit 
was  brought  was  "of  the  value  of  $500  and  over."^^  The  practice  of  ascertaining 
the  damages  in  the  circuit  court  cannot  affect  the  question  of  jurisdiction.  The 
amount  claimed  must  be  sufficient  on  the  face  of  the  pleading.^*^  Where  the 
plaintiff  in  error  fails  to  show,  either  from  the  record,  or  by  affidavits,  that  the 
matter  in  dispute  exceeds  five  thousand  dollars,  this  court  will  dismiss  the  writ 
for  want  of  jurisdiction.^'  That  the  requisite  amount  is  involved  may  be  made 
to  appear  in  such  manner  as  shall  establish  it  to  the  satisfaction  of  the  court.^* 

b.  Burden  of  Proof  and  Weight  of  Evidence. — The  burden  of  showing  juris- 
diction is  on  the  plaintiff  in  error.  He  must  establish  as  a  fact  by  a  fair  pre- 
yjonderance  of  testimony  that  the  value  of  the  property  in  dispute  exceeds  the 
jurisdictional  amount.^**  In  like  manner,  where  it  is  contended  by  the  appellant  that 
the  controversy  does  not  involve  the  requisite  amount,  exclusive  of  interest  and 
costs,  the  burden  of  proof  is  upon  the  appellant  to  establish  by  a  preponderance 
of  the  evidence  that  the  amount  involved  is  less  than  the  jurisdictional  amount.*" 

Preponderance  of  Evidence. — Where  upon  an  examination  of  the  record 
as  returned,  it  appears  that  the  jurisdictional  value  is  not  made  out  by  a  pre- 
ponderance of  evidence,  the  writ  of  error  will  be  dismissed.^ ^     The  value  of  the 

Coldberg,  192  U.  S.  232,  240,  48  L.  Ed. 
419;  Kirby  v.  American  Soda  Fountain 
Co.,    194    U.    S.    141,    144,   48    L-    Ed.   911. 

54.  Elgin  V.  Marshall,  106  U.  S.  578,  27 
L.  Ed.  249,  reaffirmed  in  Plainview  v.  Mar- 
shall, 106  U.  S.   583,  27  L.   Ed.  250. 

The  appellant  to  sustain  his  appeal  must 
show  affirmatively  that  more  in  pecuniary 
value  than  our  jurisdictional  requirement 
>ias  been  adjudged  against  him.  Green 
V.  Fisk,  103  U.  S.  518,  26  L-  Ed.  486. 

"To  support  that  jurisdiction,  it  is  neces- 
sary that  it  should  appear  upon  the  face 
of  the  record,  or  upon  affidavits  to  be 
filed  by  the  parties,  that  the  sum  or  value 
in  controversy  exceeds  $2,000,  exclusive 
of  costs."  Hagan  v.  Foison,  10  Pet.  160, 
9    L.    Ed.    381,    382. 

55.  Parker  v.  Latey,  12  Wall.  390,  20  L. 
Ed.  404. 

A  motion  to  dismiss  an  appeal  will  be 
granted  where  it  does  not  appear  in  the 
record  or  by  affidavits  that  the  value  of 
the  matter  in  dispute  exceeds  $5,000.  Par- 
Iker  V.  Morrill,  106  U.  S.  1,  27  L.  Ed.  72. 

Where  the  record  shows  that  the  ap- 
pellee, who  raises  the  objection  that  the 
lands  which  are  the  matter  in  controversy 
are  not  of  sufficient  value  to  give  this 
court  jurisdiction,  bought  them  for 
$21,000,  and  by  virtue  of  that  purchase 
claims  them  here,  and  the  prayer  for  ap- 
peal, which  is  verified  by  the  affidavit  of 
the-  appellant,  shows  that  they  are  worth 
more  than  $5,000,  held,  that  this  court  has 
jurisdiction.  May  v.  Sloan,  101  U.  S.  231, 
35    L.    Ed.    797. 

In  order  to  review  the  decision  of  a  ter- 
ritorial supreme  court,  it  must  appear  that 
this    court    has    jurisdiction    of    the    case. 


and  such  jurisdiction  does  not  exist  if  the 
value  of  the  subject  matter  in  dispute  does 
not  exceed  $5,000.  McClung  v.  Penny, 
189  U.   S.  143,  47  L.   Ed.  751. 

56.  Udall  V.  Steamship  Ohio,  17  How. 
17,    15   L.    Ed.   42. 

57.  Johnson  v.  Wilkins,  116  U.  S.  392, 
29  L.  Ed.  671. 

58.  United  States  v.  Freight  Ass'n., 
166  U.   S.  290,   310,  41   L.   Ed.   1007. 

59.  Burden  of  proof  and  weight  of  evi- 
dence.— Wilson  V.  Blair,  119  U.  S.  387, 
388,  30  L.  Ed.  439;  United  States  v.  The 
Union,  4  Cranch  216,  2  L-  Ed.  600;  Hagan 
V.  Foison,  10  Pet.  160,  9  L.  Ed.  381;  John- 
son V.  Wilkins,  116  U.  S.  392,  29  L.  Ed. 
671;  Troy  v.  Evans,  97  U.  S.  1,  24  L.  Ed. 
941. 

"The  onus  probandi  of  the  amount  in 
controversy,  to  establish  the  jurisdiction 
in  a  case  brought  before  the  court  by 
writ  of  error,  is  upon  the  party  seeking  to 
obtain  a  revision  of  the  case.  He  may 
prove  that  the  value  exceeds  two  thou- 
sand dollars  exclusive  of  costs.  In  this 
case,  the  matter  in  question  is  the  owner- 
ship of  one  negro  woman  and  two  chil- 
dren, who  were  slaves,  and  it  is  not  sup- 
posed their  value  can  be  equal  to  that 
sum.  The  writ  of  error  was  dismissed." 
Hagan  v.  Foison,  10  Pet.  160,  9  L.  Ed. 
381. 

60.  Hunt  V.  New  York  Cotton  Ex- 
change, 205  U.  S.  322,  51  L.  Ed.  821,  cit- 
ing Sheppard  v.  Graves,  14  How.  505, 
14  L.  Ed.  309;  Wctmore  v.  Rymer,  169 
U.  S.  115,  42  L.  Ed.  682;  Gage  v.  Pum- 
pelly,   108   U.   S.    164.  26   L.   Ed.   668. 

61.  Red    River   Cattle   Co.   v.   Needham,. 
137    U.    S.    632,    633,    34   L.    Ed.    799. 


APPEAL  AND  ERROR. 


879 


inatter  in  contr(3versy  cannot  be  supplied  by  speculation.*'^ 

c.  Right  to  hvtroduce  Evidence  to  Prove  Amount. — In  General. — It  has  long 
l)een  the  settled  practice  of  the  courts  of  the  United  States  in  actions  where 
I  he  demand  is  not  money,  and  the  nature  of  the  action  does  not  require  the  value 
(jf  the  property  in  controversy  to  be  stated,  to  allow  the  value  to  be  proved  at 
ihe  trial.'^-^  The  value  of  the  subject  matter  in  controversy  may  be  shown  from 
ihe  record,  or  by  evidence  aliunde,  when  it  is  disputed.'''* 

This  court  will  permit  viva  voce  testimony  to  be  given  of  the  value  of 
the  matter  in  dispute.''-^ 

Thus,  on  an  appeal  in  admiralty,  where  the  record  has  failed  to  show  that 
the  sum  necessary  to  give  this  court  jurisdiction  of  such  an  appeal  was  in  con- 
troversy below,  the  court,  in  a  proper  case,  and  where  it  is  asserted  by  the  ap- 
pellant that  such  sum  was  really  in  controversy,  will  allow  him  a  limited  time 
to  make  proof  of  the  fad.*"' 

Weight  and  Sufficiency. — An  appraisement  made  by  order  of  the  district 
judge,  by  three  sworn  appraisers,  is  not  conclusive  evidence  of  the  value,  but 
it  is  better  evidence  than  the  opinion  of  a  single  witness,  examined  viva  voce 
in  open  court. *'^ 

Continuance. — After  deciding  the  question  of  value,  upon  the  weight  of  the 
evidence,  the  court  will  not  continue  the  cause,  for  the  party  to  produce  further 
evidence  as  to  the  value.*'^ 

d.  Affidavits.— In  General. — Where  the  value  does  not,  according  to  the  usual 
forms  of  proceeding,  appear  in  the  pleadings  or  evidence  in  the  record,  affidavits 
of  value  may  be  received  here,  in  order  to  show  that  the  value  is  large  enough 
to  give  jurisdiction  to  this  court.*'^ 


62.  Durham  v.  Seymour,  161  U.  S.  235, 
40  L.  Ed.  682;  Huntington  v.  Saunders, 
163    U.    S.   319,   41    L.   Ed.   174. 

63.  Right  to  introduce  evidence  to  prove 
amount. — Ex  parte  Bradstreet.  7  Pet  643, 
G47,  8  L.  Ed.  810;  Beard  v.  Federy,  3  Wall. 
478,  494,   18   L.   Ed.   88. 

In  an  appeal  in  admiralty,  where  the 
record  has  failed  to  show  that  the  sum 
necessary  to  give  this  court  jurisdiction 
of  such  an  appeal  was  in  controversy  be- 
low, the  court,  in  a  proper  case,  and  where 
it  is  asserted  by  the  appellant  that  such 
sum  was  really  in  controversy,  will  allow 
him  a  limited  time  to  make  proof  of  the 
fact.  The  Grace  Girdler,  6  Wall.  441.  18 
L.  Ed.  790,  citing  Rush  v.  Parker.  5 
Cranch  287,  3  L.  Ed.  810.  But  see  Rich- 
mond V.  Milwaukee.  21  How.  391,  16  L. 
Ed.  72. 

When  the  pleadings  in  an  action  of  eject- 
ment do  not  state  the  value  of  the  prop- 
erty in  controversy,  the  value  may  be 
shown  at  the  trial.  Beard  v.  Federy,  3 
Wall.    478,   480,   18    L.    Ed.   88. 

64.  Beebe  v.  Russell,  19  How.  283.  286. 
15  L.  Ed.  668. 

.  65.      United     States    v.     The     Union,     4 
Cranch  216,  2   L-   Ed.  600. 

Extrinsic  evidence. — Where  an  appel- 
lee comes  and  enters  an  appearance  for 
the  purposes  of  his  motion,  which  motion 
was  to  set  aside  and  annul  the  judgment 
of  reversal  and  to  dismiss  the  appeal,  be- 
cause the  value  of  the  matter  in  dispute 
did  not  exceed  $2.. 500,  but  it  appears  upon 
the  face  of  the  record  that  the  decree  ap- 
pealed  from   is    for   the    full   jurisdictional 


amount,  this  court  will  not  consider  ex- 
trinsic evidence  after  notice  to  him  to  ap- 
pear, for  the  purpose  of  ascertaining  the 
amount  in  dispute.  Dodge  v.  Knowles, 
114    U.   S.   430,   29    L.   Ed.    144. 

66.  The  Grace  Girdler,  6  Wall.  441,  18 
L.    Ed.   790. 

67.  United  States  v.  The  Union,  4 
Cranch    216,   2    L.    Ed.   600. 

68.  United  States  v.  The  Union,  4 
Cranch  216.  2  L.    Ed.   600. 

69.  Affidavits  admissible  to  show  value. 
— Course  V.  Stead,  4  Ball.  22,  1  L.  Ed.  724 
Rush   V.    Parker,   5    Cranch   287,   3    L.    Ed 
103,   Mr.  Justice  Livingston  disapproving 

1  agan  v.  Foison,  10  Pet.  160,  9  L.  Ed. 
381;  Williamson  v.  Kincaid,  4  Dall.  20.  1 
L.  Ed.  723;  Street  v.  Ferry,  119  U.  S.  385, 
30  L.  Ed.  439;  Glacier  Mountain  Silver 
;^  in.  Co.  V.  Willis,  127  U.  S.  471,  479,  32  L. 
Ed.  172;  Richmond  v.  Milwaukee,  21  How. 
391,  16  L.  Ed.  72;  United  States  v.  Mc- 
Dowell, 4  Cranch  316,  2   L.   Ed.  632. 

Where  there  is  nothing  in  the  record 
to  show  the  value  of  the  matter  in  dis- 
pute, it  is  good  practice  to  allow  the  par- 
ties in  the  court  below  leave  on  motion, 
to  file  affidavits  and  counterclaims  of 
value.  Wilson  v.  Blair,  119  U.  S.  387,  30 
L.   Ed.   439. 

"Undoubtedly,  congress,  in  establishing 
a  rule  for  determining  the  appellate  jur'is- 
diction  of  this  court,  among  other  reasons 
of  convenience  that  dictated  the  adop- 
tion of  the  money  value  of  the  matter 
in  dispute,  had  in  view  that  it  was  precise 
and  definite.  Ordinarily,  it  would  appear 
in   the  pleadings  and  judgment,  where  the 


880 


AFFBAL  AAD  ERROR, 


The  result  of  the  cases  may  be  fairly  stated  to  be  that  where  a  writ 
of  error  is  brought  or  an  appeal  taken  without  question  as  to  the  value,  and  the 
latter  is  nowhere  disclosed  by  the  record,  affidavits  may  be  received  to  establisli 
the  jurisdictional  amount,  and  counter  affidavits  may  be  allowed  if  the  existence 
of  such  value  is  denied  in  good  faith. '''^ 

Affidavits  Presented  by  Supplemental  Record. — Although  where  the 
value  is  not  definitely  determined  by  the  pleadings  or  decree,  it  should  gener- 
ally be  settled  in  the  first  instance  by  the  circuit  court  upon  notice  and  testimony, 
and  not  upon  additional  testimony  here,  yet  it  is  undoubted  that  it.  is  not  in  the 


claim  must  be  stated  and  determined;  but 
where  the  recovery  of  specific  property, 
real  or  personal,  is  sought,  affidavits  of 
value  were  permitted,  from  the  beginning, 
as  a  suitable  mode  of  ascertaining  the 
fact,  and  bringing  it  upon  the  record. 
Williamson  v.  Kincaid,  4  Dall.  20,  1  L. 
Ed.  723;  Course  v.  Stead,  4  Dall.  22,  1  L. 
Ed.  724;  United  States  v.  The  Union,  4 
Cranch  216,  2  L.  Ed.  600."  Elgin  z: 
Marshall.  106  U.  S.  578,  580,  27  L.  Ed. 
249,  reaffirmed  in  Plainview  7'.  Marshall, 
106  U.   S.   583,   27   L.   Ed.   250. 

As  stated  by  Mr.  Chief  Justice  Taney, 
in  Richmond  r.  ^Milwaukee,  21  How.  391, 
16  L.  Ed.  72,  in  cases  in  which  the  value 
does  not,  according  to  the  usual  forms  of 
proceeding,  appear  in  the  pleadings  or 
evidence  in  the  record,  affidavits  have 
been  received  to  show  that  the  value  is 
large  enough  to  give  jurisdiction  to  this 
court:  Course  r.  Stead,  4  Dall.  22,  1  L. 
Ed.  723;  Williamson  v.  Kincaid,  4  Dall. 
20,  1  L.  Ed.  723,  but  "in  Rush  z:  Parker, 
5  Cranch  287.  3  L.  Ed.  103,  Mr.  Justice 
Livingston  expressed  his  opinion  strongly 
against  giving  time  to  file  affidavits  of 
value,  and  the  court  refused  to  continue 
the  case  for  that  purpose."  And  the 
chief  justice  added  that  a  practice  to 
postpone  or  reinstate  a  case  in  order  to 
give  the  party  time  to  furnish  such  affi- 
davits "would  be  irregular  and  incon- 
venient, and  might  sometim^es  produce 
conflicting  affidavits,  and  bring  on  a  con- 
troversy about  value  occupying  as  much 
of  the  time  of  the  court  as  the  merits  of 
the  case."  Red  River  Cattle  Co.  v.  Need- 
ham,    137    U.    S.    632,    634,   34   L.    Ed.    799. 

Where,  in  a  suit  for  partition,  there  was 
no  distinct  statement  anywhere  in  the 
record  of  the  value  o£  the  property  in 
controversy,  the  parties  will  be  permitted 
to  file  affidavits  in  this  court  on  that  sub- 
ject, and  if  the  affiant  swears  that  the 
property  is  worth  more  than  the  juris- 
dictional amount,  this  court  will  entertain 
the  appeal.  Whiteside  z'.  Haselton,  110 
U.   S.   296,  28  L.   Ed.   152. 

Where,  as  in  ejectment  or  a  suit  for 
dower,  the  value  does  not  appear  in  the 
pleadings  or  evidence,  affidavits  may  be 
received  to  show  that  the  value  is  large 
enough  to  give  jurisdiction  to  this  court. 
Richmond  v.  Milwaukee.  21  How.  391,  16 
L.   Ed.  72. 

Suit  to  decide  title  to  land. — Where  the 
suit  is  not  one  to  recover  a  sum  of  mone}\ 


but  to  decide  a  question  of  title  to  a  con- 
siderable tract  of  land,  it  is  competent 
to  show  by  ex  parte  affidavits  the  amount 
of  the  value  of  the  matter  in  dispute.  Carr 
r.    Fife,   156   U.    S.   494.   39   L.   Ed.   508. 

Pecuniary  value  of  slaves. — In  Lee  v. 
Lee.  8  Pet.  44.  8  L.  Ed.  860,  decided  in 
1834.  a  petition  to  the  circuit  court  for 
the  District  of  Columbia  set  forth  that 
the  petitioners  were  entitled  to  their  free- 
dom, and  were  held  in  slavery  by  the  de- 
fendant; he  pleaded  that  they  were  not 
entitled  to  their  freedom  as  they  had  al- 
leged; upon  that  plea  issue  was  joined, 
and  a  verdict  and  judgment  rendered  for 
the  defendant;  and  the  petitioners  sued 
out  a  writ  of  error.  A  preliminary  ob- 
jection to  the  jurisdiction  of  this  court 
was  overruled,  and  the  judgment  below 
considered  on  the  merits  and  reversed. 
The  ground  of  the  decision  upon  the  qires- 
ticn  of  jurisdiction  appears  to  have  been 
that  the  single  matter  in  dispute  between 
the  parties  was  the  freedom  of  slavery 
of  the  petitioners — to  the  petitioners,  the 
value  of  their  freedom,,  not  to  be  esti- 
mated in  money;  to  the  defendant,  claim- 
ing to  be  their  owner,  the  pecuniary  value 
of  the  slaves  as  property,  which,  if  he 
had  been  the  plaintiff  in  error,  might 
have  been  ascertained  by  affidavits. 
Cited  in  Kurtz  z:  Moffitt.  115  U.  S.  487, 
495,  29   L.   Ed.   458. 

Where  the  matter  in  dispute  is  the 
freedom  of  slaves,  this  court  has  no  juris- 
diction, because  the  matter  in  dispute,  the 
value  of  their  freedom,  is  not  susceptible 
of  pecuniary  valuation.  And  affidavits 
estimating  the  value  of  freedom,  are  en- 
tirely inadmissible.  Lee  v.  Lee,  8  Pet. 
44,  8   L.  Ed.  860. 

70.  Red  River  Cattle  Co.  v.  Needham, 
137   U.   S.   632,  635,   636.  34   L.    Ed.   799. 

The  bill  need  not  state,  in  so  many 
words,  that  a  certain  amount  e,xceeding 
one  thousand  dollars  is  in  controversy 
in  order  that  this  court  may  have  juris- 
diction on  appeal  from  the  circuit  court 
of  appeals.  The  statutory  amount  must, 
as  a  matter  of  fact,  be  in  controversy, 
yet  that  fact  may  appear  by  affidavit  after 
the  appeal  is  taken  to  this  court.  White- 
side V.  Haselton,  110  U.  S.  296,  28  L  Ed. 
152;  Red  River  Cattle  Co.  v.  Needham, 
137  U.  S.  632,  34  L.  Ed.  799;  United 
States  V.  Freight  Ass'n,  166  U.  S.  290, 
310.  41  L.  Ed.  1007;  Coulter  v.  Louisville, 
etc..  R.  Co.,  196  U.  S.  606,  49  L.  Ed.  615. 


APPEAL  A.\D  ERROR.  881 

power  of  the  circuit  court  to  determine  the  extent  and  Hmits  of  our  jurisdiction, 
for  that  is  a  matter  which  this  court  must  finally  decide  for  itself.  Accordingly, 
this  court  will  consider  subsequent  affidavits,  presented  to  this  court  by  a  supple- 
mental record  brought  up  by  stipulation  of  the  parties.'^ ^ 

Dismissal. — Where  affidavits  of  value  are  filed  in  the  court  below  after  the 
allowance  of  an  appeal,  and  these  affidavits  are  sent  here  with  the  transcript,  and 
other  affidavits  are  filed  in  this  court  after  the  case  is  docketed,  if  this  court  is 
satisfied  on  consideration  of  the  whole  that  the  value  is  not  sufficient  to  give 
us  jurisdiction,  the  appeal  will  be  dismissed." - 

Where  Value  Is  Apparent  on  Record. — Rut  affidavits  can  only  be  used  to 
furnish  evidence  of  value  not  appearing  on  the  face  of  the  record  when  the  nature 
of  the  matter  in  dispute  is  such  as  to  admit  of  an  estimate  of  its  value  in  money ."^^ 
Therefore,  where  the  value  is  stated  in  the  pleadings  or  proceedings  of  the  court 
below,  affidavits  here  have  never  been  received  to  vary  it  or  enhance  it,  in  order 
to  give  jurisdiction.'^^  The  result  of  the  cases  may  be  fairly  stated  to  be,  that 
where  the  demand  is  not  for  money  but  the  nature  of  the  action  requires  the  value 
of  the  thing  demanded  to  be  stated  in  the  pleadings,  affidavits  will  not  be  received 
here  to  vary  the  value  as  appearing  iipcm  the  face  of  the  record.'^ ^ 

Right  to  Contradict  Finding  of  Court  Below. — So,  also,  when  the  value 
of  the  property  in  dispute  is  one  of  the  questions  in  the  case  and  was  necessarily 
involved  in  its  determination  in  the  court  below,  this  court  will  not,  on  a  motion 
to  dismiss  for  want  of  jurisdiction,  consider  affidavits  tending  to  contradict  the 
finding  of  that  court  in  respect  of  its  value. '^ 


71.  Rector  v.  Lipscomb,  141  U.  S.  557, 
35  L.  Ed.  857.  distinguishing  Red  River 
Cattle  Co.  7'.  Needham,  137  'U.  S.  632,  34 
L.    Ed.    799. 

72.  Street  v.  Ferry,  119  U.  S.  385.  30 
L.   Ed.  439,  441. 

73.  Youngstown  Bank  v.  Hughes,  106 
U.    S.    523.    525,   27    L.    Ed.    268. 

74.  Red  Piver  Cattle  Co.  v.  Needham, 
13T  U.  S.  632,  34  L.  Ed.  799;  Henderson 
V.  Carbondale  Coal,  etc.,  Co.,  140  U.  S. 
25.  32.  35  L.  Ed.  7y]2;  Richmond  v.  Mil- 
waukee. 21  How.  391.  16  L.   Ed.  72. 

In  Talkington  v.  Dvmbleton,  123  U.  S. 
745.  31  L.  Ed.  313,  it  was  accordingly 
held,  that  when  the  value  of  the  property 
in  dispute  was  necessarily  involved  in  the 
determination  of  the  case  in  the  court 
below,  this  court  would  not,  on  a  mo- 
tion to  dismiss  for  want  of  jurisdiction, 
consider  affidavits  tending  to  contradict 
the   finding   of   that   court   in   that   respect. 

And  Mr.  Cliief  Justice  Waite  remarked, 
in  Zeigler  v.  Hopkins.  117  U.  S.  683,  689, 
29  L.  Ed.  1019,  "Where  affidavits  were 
submitted,  the  finding  of  the  court  below 
as  to  value  was  not  a  material  question 
in  the  case  upon  its  merits,  but  was  more 
in  the  nature  of  an  inquiry  for  the  pur- 
pose of  determining  whether  an  appeal 
should  be  allowed,  as  in  Wilson  f.  Blair, 
119  U.  S.  387,  30  L.  Ed.  439.  Here,  how- 
ever, the  value  of  the  property  was  one 
of  the  questions  in  the  case  and  neces- 
sarily  involved   in   its   determination." 

"In  Zeigler  v.  Hopkins.  117  U.  S.  683, 
29  L.  Ed.  1019,  this  court  treated  the 
finding  of  the  court  below  upon  the  ques- 
tion of  value  as  entitled  to  well  nigh  con- 
clusive weight;   while   in   Wilson   i\    Blair, 

1  U  S  Enc— 56 


it  was  declared  to  be  good  practice  for 
the  circuit  court  to  allow  affidavits  and 
counter  affidavits  of  value  to  be  filed,  .us 
calculated  to  save  trouble  to  the  parties 
and  to  the  court.  There,  as  in  the  case 
at  bar,  the  district  judge  holdin.g  the  cir- 
cuit court,  without  the  formality  of  de- 
ciding the  question  of  value,  allowed  the 
writ  of  error,  thus  sending  the  case  here 
on  the  affidavits  free  from  any  decision 
whatever  as  to  their  affects."  Red  River 
Cattle  C-  z:  Xeedham,  137  U.  S.  635.  34 
L.    Ed.   799. 

In  Gage  v.  Pumpelly,  108  U.  S.  164,  26 
L.  Ed.  668,  the  appeal  was  allowed  after 
a  contest  as  to  the  value  of  the  matter  in 
dispute,  Judge  Blodgett,  who  held  the 
circuit  court,  filing  an  opinion  upon  the 
question;  and  Mr.  Chief  Justice  Waite. 
speaking  for  the  court,  said:  "When  ao 
appeal  has  been  allowed,  after  a  contest 
as  to  the  value  of  the  matter  in  dispute, 
and  there  is  evidence  in  the  record  whicfh 
sustains  our  jurisdiction,  the  appeal  will 
not  be  dismissed  simply  because  upon 
examination  of  all  the  affidavits  we  may 
be  of  the  opinion  that  possibly  the  esti- 
mates acted  upon  below  were  too  high." 

75.  Red  River  Cattle  Co.  v.  Needham. 
137  U.  S.  632,  635,  34  L.   Ed.  799. 

76.  Talkington  ?'.  Dumbleton.  123  U.  ^. 
745,  31  L.  Ed.  313,  distinguishing 
Zeigler  v.  Hopkins.  117  U.  S.  683.  689,  29 
L.  Ed.  1019:  Wilson  v.  Blair,  119  U.  S. 
387,  30  L.   Ed.  439. 

Where  the  court  below  has  fotn^d  as  a 
fact  that  the  value  of  the  matter  in  dis- 
pute exceeds  the  jurisdicti  nal  amoun*. 
and  this  appears  on  the  face  of  the  recor.l, 
a    motion    to    dismiss    will    be    denied,    ai- 


882 


AFFEAL  AND  HRROR. 


Where  No  Conclusion  Is  Drawn  from  Proof  Offered. — The  result  of  the 
cases  may  be  fairly  stated  to  be  that  the  filing  of  affidavits  will  not  be  ordinarily 
permitted  where  evidence  of  value  has  been  adduced  below  on  both  sides,  and  the 
proofs  have  been  transmitted  either  with  or  without  the  announcement  of  a  defi- 
nite conclusion  deduced  therefrom.'^"  The  practice  of  permitting  affidavits  to  be 
Ifiled  in  this  court  arose  from  instances  of  accidental  omission,  where  the  value 
'was  not  really  in  dispute,  and  it  should  not  be  encouraged  to  the  extent  of  re- 
■quiring  us  to  reach  a  result  upon  that  careful  weighing  of  conflicting  evidence, 
:5o  frequently  involved  in  determining  issues  of  fact.  If  there  be  a  leal  contro- 
versy on  the  point,  let  it  be  settled  below  in  the  first  instance  and  on  due  notice ; 
not  here,  upon  ex  parte  opinions,  which  may  embody  nothing  more  than  specula- 
•tive  conclusions^^ 

Notice. — Notice  must  be  given  the  opposite  parties,'^ ^  and  motion  for  leave 
Uo  file  is  necessary.^*' 

Time  for  Introducing  Affidavits. — A  case  will  not  be  postponed  or  rein- 
stated, in  order  to  give  the  party  time  to  produce  affidavits  of  value.*^  They  come 
too  late,  after  the  case  has  been  heard  and  dismissed  for  want  of  jurisdiction. ^2 

After  Hearing  Below. — Where  motion  is  made  for  leave  to  file  a  petition 
for  rehearing  under  the  eighty-eighth  rule  in  equity,  on  the  ground  that  no 
appeal  would  lie  from  the  decree  of  the  circuit  court  to  the  supreme  court  of  the 
United  States,  for  the  reason  that  the  amount  involved  was  insufficient,  which 
does  not  appear  to  have  been  controverted  by  the  defendant,  but  to  have  been 
conceded  as  true,  the  petitioner  cannot,  after  hearing  in  the  court  below,  file  af- 
fidavits to  show  that  the  amount  involved  exceeds  the  jurisdictional  amount.  His 
concession  upon  which  the  petition  was  heard  cannot  now  be  recalled.  He  should 
have  shown  that  the  matter  in  controversy  was  sufficient  at  the  time  the  motion 
for  leave  to  file  the  petition  for  rehearing  was  argued,  instead  of  conceding  its 
insufficiency  as  alleged.""' 

Sufficiency  of  Showing. — H  the  affidavits  show  by  a  fair  preponderance  of 
the  evidence  that  the  value  in  dispute  exceeds  the  amount  this  is  sufficient.^* 
When  an  appeal  has  been  allowed,  after  a  contest  as  to  the  value  of  the  matter 


though  affidavits  as  to  vahie  as  entered 
by  the  movant,  taken  by  themselves,  show 
that  possibly  the  amount  may  be  less. 
They  are  not  enough  to  overcome  the 
finding  of  the  court  below  that  it  was 
actually  worth  more  than  that  sum.  Zeig 
ler  V.  Hopkins,  117  U.  S.  683.  29  L.  Ed. 
1019. 

77.  Red  River  Cattle  Co.  v.  Needham, 
137  U.  S.  632,  635,  34  L.  Ed.  799. 

In  Red  River  Cattle  Co.  v.  Needham. 
137  U.  S.  632,  636,  34  L.  Ed.  799,  it  was 
said:  "In  the  case  in  hand,  the  value  of 
the  whole  property  was  alleged  in  the 
petition,  but  was  not  an  issuable  fact,  and 
the  circuit  court  allowed  the  writ  of  error 
upon  the  prima  facie  showing  made  bj' 
the  defendant,  and  on  plaintifT's  subse- 
quently presenting  evidence  to  the  con- 
trary, the  controversy  was  referred  to  this 
court.  This  being  the  attitude  of  the 
case,  we  do  not  think  it  proper  to  allow 
affidavits  to  be  filed  here  as  if  the  ques- 
tion were  now  raised  for  the  first  time." 

78.  Red  River  Cattle  Co.  v.  Needham, 
137  U.   S.  632,  636,  34   L-   Ed.  799. 

79.  Glacier  Mountain  Silver  Min.  Co. 
r.  Willis,  127  U.  S.  471,  32  L.  Ed.  172. 

Where,  on  writ  of  error,  the  value  of 
the  matter  in  dispute  does  not  appear  on 


the  record,  and  cannot  be  determined  by 
plaintiff's  demand,  nor  fi.xed  by  the  finding 
of  the  jury,  it  may  be  ascertained  by  affi- 
davits, on  ten  days'  notice;  the  writ  of 
error  not  to  be  supersedeas.  Williamson 
V.   Kincaid,  4  Dall.  20.  1   L.   Ed.   723. 

80.  Wilson  7'.  Blair,  119  U.  S.  387,  30 
L.   Ed.  439. 

81.  Richmond  v.  Milwaukee,  21  How. 
391,  16  L.  Ed.  72,  citing  Williamson  v. 
Kincaid,  4  Dall.  20.  1  L.  Ed.  723;  Rush  v. 
Parker,  5  Cranch  287,  3  L.  Ed.  103. 

82.  Richmond  v.  Milwaukee,  21  How. 
391,  16  L.  Ed.  72.  See  Dodge  v.  Knowles, 
114  U.  S.  430,  29  L.  Ed.  144. 

After  the  decree  of  the  court  below  is 
reversed,  and  an  entry  made  to  that  ef- 
fect, this  court  will  not  consider  extrinsic 
evidence  at  this  late  day  for  the  purpose 
of  ascertaining  whether  the  value  of  the 
matter  in  dispute  exceeded  the  jurisdic- 
tional amount,  especially  where  upon  the 
face  of  the  record,  our  jurisdiction  is  com- 
plete. Dodge  V.  Knowles,  114  U.  S.  430, 
29   L.   Ed.   144. 

83.  Moelle  v.  Sherwood,  148  U.  S.  21, 
37   L.    Ed.   350. 

84.  Cissel  V.  Dutch,  122  U.  S.,  appx., 
638. 


AF^HAL  A.\D  ERROR. 


883 


in  dispute,  and  there  is  evidence  in  the  record  which  sustains  our  jurisdiction, 
the  appeal  will  not  be  dismissed  simply  because  upon  examination  of  all  the 
affidavits  we  may  be  of  the  opinion  that  possibly  the  estimates  acted  upon  below 
were  too  high.*-^ 

Counter  Affidavits. — The  defemlants  in  error  may  file  counter  affidavits  to 
contradict  the  showing  made  by  the  plaintififs  in  error. ^'^ 

Amendment  by  Affidavit. — Although  the  record  does  not  contain  a  specific 
allegation  that  the  matter  in  dispute  exceeds  the  jurisdictional  amount,  at  the 
time  of  entering  the  final  decree,  this  defect  may  be  cured  by  an  amendment  by 
affidavits.*"  A  more  formal  proceeding,  where  the  record  is  permitted  to  be 
amended  by  affidavits  to  supply  the  formal  averments  of  value,  is  to  set  the  de- 
cree aside,  and  renew  it  after  the  amendment  has  been  made :  but  where  the 
term  at  which  the  decree  was  entered  is  not  ended,  so  that  the  court  still  had 
power  to  permit  the  amendment  of  the  record,  this  court  will  not  reverse  the 
decree  because  of  the  manner  in  which  the  court  below  exercised  its  power  of 
amendment. ^^ 

e.  Order  of  Court. — Where  in  addition  to  affidavits  filed  on  the  subject  of 
value,  the  record  contains  an  order  made  by  the  supreme  court  of  the  territory 
on  application  for  appeal,  stating  that  the  value  of  the  matter  in  controversy  is 
more  than  five  thousand  dollars,  a  motion  to  dismiss  the  appeal  must  be  denied, 
"because  this  court  will  assume  that  the  order  was  based  upon  proof  as  to  value.** 

f.  Detennumtion  from  Pleadings — (1)  In  General. — It  is  the  established  rule 
that  in  an  action  upon  a  money  demand,  where  the  general  issue  is  pleaded,  the 
matter  in  dispute  is  the  debt  claimed,  and  its  amount,  as  stated  in  the  body  of 
the  declaration  ;  and  not  merely  the  damages  alleged,  or  the  prayer  for  judgment 
at  its  conclusion,  must  be  considered  in  determining  whether  this  court  can  take 
jurisdiction  on  a  writ  of  error  sued  out  by  the  plaintiff.^"     Ordinarilv  the  plain- 


85.  Gage  z\  Pumpelly.  108  U.  S.  164. 
?6  L.   Ed.   668. 

86.  "'Neither  the  pleadings  nor  the  evi- 
dence found  in  the  records  show  the 
value  of  the  property,  but  on  suing  out 
the  writs  of  error  the  plaintiffs  in  error 
in  each  case  filed  two  affidavits  to  the 
effect  that  the  value  was  more  than 
$5,000.  Since  the  cases  were  docketed 
here,  however,  the  defendant  in  error  has 
filed  counter  affidavits  which  prove  be- 
yond all  doubt  that  this  is  a  mistake,  and 
that  the  value  in  every  one  of  the  cases 
is  very  much  less  than  our  jurisdictional 
limit."  Wells  v.  Wilkins.  116  U.  S.  39.3, 
394,   29   L.    Ed.   671. 

87.  Carr  v.  Fife,  156  U.  S.  494,  39  L. 
Ed.    508. 

88.  Carr  v.  Fife.  156  U.  S.  494.  39  L.  Ed. 
508. 

89.  Order  of  court. — Potts  v.  Hollen. 
177  U.   S.   365,  369.   44  L.    Ed.   808. 

90.  Determination  from  pleadings. — Lee 
V.  Watson.  1  Wall.  337.  17  L.  Ed.  557; 
■Schacker  v.  Hartford  Fire  Ins.  Co.. 
«3  U.  S.  241,  23  L.  Ed.  862;  Gray 
■».    Blanchard.    97    U.    S.    564.    24    L.     Ed. 

"1108;  Tinstman  v.  National  Bank.  100  U. 
S.  6,  25  L.  Ed.  530;  Banking  Ass'n  v.  In- 
surance Ass'n.  102  U.  S.  121,  26  L.  Ed. 
45;  Hilton  v.  Dickinson,  108  U.  S.  165.  27 
L.  Ed.  688;  Webster  c'.  Buffalo  Ins.  Co., 
110  U.   S.   386.   388.   28   L-    Ed.    172. 

It  is  undoubtedly  true  that  until  it  is 
in  some  way  shown  by  the  record  that 
the   sum    demanded   is   not   the   matter    in 


dispute,  that  sum  will  govern  in  all  ques- 
tions of  jurisdiction,  but  it  is  equally  true 
that  when  it  is  shown  that  the  sum  de- 
manded is  not  the  real  matter  in  dispute, 
the  sum  shown.-  and  not  the  sum  de- 
manded, will  prevail.  Lee  v.  Watson,  1 
Wall.  337.  17  L.  Ed.  557;  Schacker  v.  Hart- 
ford Fire  Ins.  Co.,  93  U.  S.  241,  23  L.  Ed. 
862;  Gray  r.  Blanchard,  97  U.  S.  564.  24 
L.  Ed.  1108;  Tinstman  z'.  National  Bank, 
100  U.  S.  6,  25  L.  Ed.  530;  Banking  Ass'n 
V.  Insurance  Ass'n,  102  U.  S.  121,  26  L. 
Ed.  45;  Hilton  v.  Dickinson,  108  U.  S.  165, 
174,  27    L.    Ed.  688. 

Where  the  plaintiff  sues  for  an  amount, 
exceeding  $2,000,  if  by  reason  of  any 
erroneous  ruling  of  the  court  below  he 
recovers  nothing,  or  less  than  that  sum, 
the  sum  claimed  by  the  plaintiff  in  his 
writ  and  declaration  in  that  state  of  the 
case,  is  the  sum  in  controversy  for  which 
a  writ  of  error  will  lie.  Merrill  v.  Petty, 
16  Wall.  338,  345,  21  L.  Ed.  499,  citing 
Gordon  v.  Ogden.  3  Pet.  33,  34,  7  L.  Ed. 
592;  Wise  v.  Columbian  Turnpike  Co., 
7  Cranch  276,  33  L.  Ed.  341;  Kanouse  v. 
Martin,  15  How.  198,  207,  14  L.  Ed.  467. 

It  has  often  been  decided  that  the  sum 
in  controversy  in  a  suit  is  the  damages 
claimed  in  the  declaration.  If  the  plain- 
tiff shall  recover  less  than  five  hundred 
dollars,  it  cannot  affect  the  jurisdiction 
of  the  court,  a  greater  sum  having  been 
claimed  in  his  writ.  But  in  such  case, 
the  plaintiff  does  not  recover  his  costs; 
and,    at    the    discretion    of    the    court,    he 


884 


AFPUAL  AIMV  ERROR. 


tiff's  claim  with  respect  to  the  vakie    of  the    property    taken    from    him    or    the 
amount   of  damages  incurred  by  him  through  the  defendants'  wrongful  act,  meas- 


may  be  adjudged  to  pay  costs.  The  dam- 
ages claimed  by  the  plaintiff  in  his  suit 
give  jurisdiction  to  the  court,  whether  it 
be  an  original  suit  in  the  circuit  court  of 
the  United  States  or  brought  there  by 
petition  from  a  state  court.  Gordon  v. 
Longest,  16  Pet.  97,  10  L.  Ed.  900;  Mer- 
rill V.  Petty,  16  Wall.  338,  345,  21  L.  Ed. 
499. 

An   action   was   instituted  in   the   circuit 
court  of  Jefferson  county,  in  the   state   of 
Kentucky,  by  a  citizen   of  that   state,  un- 
der an  act  of  the  legislature  of  Kentucky, 
against  a  citizen  of  the  state  of  Pennsyl- 
vania,   to    recover    damages,    alleging    the 
same   in    the   declaration   to   be   one   thou- 
sand  dollars,   for  having  taken   on   board 
of  the  steamboat  Guyandotte,  commanded 
by   him,    a    slave   belonging   to    the    plain- 
tiff,   from    the    shore    of    Indiana,    on    the 
voyage    of   the    steamboat,   proceeding   up 
the    Ohio    River    from    Louisville    to    Cin- 
cinnati.     The    act    of    the    legislature    of 
Kentucky  subjects  the  master  of  a  steam- 
boat to  the  penalties  created  by  the  law, 
who    shall    take    on   board   the    steamboat 
under    his    command,    a    slave    from    the 
shore  of  the  Ohio,  opposite  to  Kentucky, 
m    the    same    manner   as    if    he    had    been 
taken  on  board  from  the  shores  or  rivers 
within    the    state.      On    entering    his    ap- 
pearance,   the    defendant    claimed    to    re- 
move the  cause  to  the  circuit  court  of  the 
United    States    for    the    District    of    Ken- 
tucky,   he    being    a    citizen    of     Pennsyl- 
vania,    and     the     plaintiff     a     citizen     of 
Kentucky;    and    offered    to    comply    with 
the    requisitions    of    the    judiciary    act    of 
1789.     The  court  refused  to  allow  the  re- 
moval  of   the   cause,   deciding   that   it   did 
not    appear    to    its    satisfaction    that    the 
damages    exceeded    five    hundred    dollars. 
The   case   went   on   to   trial,   and   the   jury 
gave    a    verdict    for    the    plaintiff    for    six 
hundred  and   fifty  dollars;   and   on   a   writ 
of  error  to  the  court  of  appeals   of   Ken- 
tucky,  the  judgment   of   the    circuit   court 
on   the  verdict   was   affirmed.      Before   the 
■court  of  appeals  the  plaintiff  in  error  ex- 
cepted to  the  jurisdiction   of  the  court  of 
Jeffejson   county,   and   also  to  the   consti- 
.  tutionality    of    the    law    of    Kentucky    on 
which   the    suit   was   founded.      Held,   that 
the   decision   of  the   court   of  appeals   was 
erroneous,  and  the  judgment  of  that  coirt 
was  reversed.     Gordon  z'.  Longest,  16  Pet. 
91,  10  L.   Ed.  900. 

Where  the  law  gives  no  rule,  as  in  ac- 
tions of  tort  or  trespass,  the  demand  of 
the  plaintiff  furnishes  the  rule;  but  where 
the  law  gives  the  rule,  as  in  actions  of 
debt  on  a  bond,  the  legal  cause  of  action, 
and  not  the  plaintiff's  demand,  must  be 
regarded.  Wilson  v.  Daniel,  3  Dall.  401, 
1  L.  Ed.  655,  overruled  m  Gordon  v.  Og- 
den,  3  Pet.  34.  7  L.   Ed.  593. 


"The  demand  of  the  plaintiff  is  alone  to 
be  regarded;  but  that  the  value  of  the 
thing  put  in  demand  furnished  the  rule. 
The  nature  of  the  case  must  certainly 
guide  the  judgment  of  the  court;  and 
whenever  the  law  makes  a  rule,  that  rule 
must  be  pursued.  Thus,  in  an  action  of 
debt  on  a  bond  for  £100,  the  principal 
and  interest  are  put  in  the  demand,  and 
the  plaintiff  can  recover  no  more,  though 
he  may  lay  his  damages  at  £10,000.  The 
form  of  the  action,  therefore,  gives  in  that 
case  the  legal  rule.  But  in  an  action  of 
trespass,  or  assault  and  battery,  where 
the  law  prescribes  no  limitation  as  to 
the  amount  to  be  recovered,  and  the  pl;nn- 
tiff  has  a  right  to  estimate  his  damages 
at  any  sum,  the  damage  stated  in  the 
declaration  is  the  thing  put  in  demand, 
and  presepts  the  only  criterion,  to  which, 
from  the  nature  of  the  action,  we  can  re- 
sort in  settling  the  question  of  jurisdic- 
tion. The  proposition  then  is  simply 
this:  Where  the  law  gives  no  rule,  the 
demand  of  the  plaintiff  must  furnish  one, 
but  where  the  law  gives  the  rule,  the 
legal  cause  of  action  and  not  the  plain- 
tiff's demand,  must  be  regarded."  Wilson 
V.  Daniel,  3  Dall.  401,  407,  1  L.  Ed.  655, 
657,  overruled  in  Gordon  z'.  Ogden,  3  Pet. 
34.  7   L.   Ed.  593. 

The  plaintiff  claimed  in  his  declaralion 
the  sum  of  one  thousand,  two  hundred  and 
forty-one  dollars,  and  laid  his  damages  at 
one  thousand  dollars;  a  general  verdict 
having  been  given  against  him,  the  mat- 
ter in  dispute  is  the  sum  he  claims  in  the 
ad  damnum.  The  court  cannot  judicially 
take  notice,  that  by  computation  it  may 
possibly  be  made  out  as  matter  of  in- 
ference from  the  plaintiff's  declaration 
that  the  claim  may  be  less  than  one  thou- 
sand dollars;  much  less  can  it  take  such 
notice  in  a  case  where  the  plaintiff  might 
be  allowed  interest  by  a  jury,  so  as  to 
swell  the  claim  beyond  one  thousand  dol- 
lars. Scott  V.  Lunt,  6  Pet.  349,  8  L  Ed. 
423. 

Where  a  bill  asking  for  an  injunction  i» 
filed,  seeking  the  aid  of  this  court  to  pro- 
hibit the  infringement  of  a  patent  right 
assigned  to  the  complainants,  the  sum 
mentioned  in  the  bill,  and  for  which  the 
privilege  to  use  the  patent  in  question 
was  sold  by  the  appellant  must  be  taken 
as  the  true  value  of  the  amount  in  con- 
troversy; and  if  such  amount  is  less  than 
$2,000,  the  appeal  must  be  dismissed  lor 
want  of  jurisdiction  in  this  court.  Brown 
V.  Shannon,  30  How.  55,  15  L.  Ed.  806. 
Definiteness  of  claim.- -Where  the 
amount  claimed  in  a  libel  is  "eighteen  j 
hundred  dollars  and  upwards,"  although  ' 
these  terms  were  intended  to  embrace  the  [ 
interest,  which  to  the  time  of  trial  would 
increase  the   sum  to  over  $2,000,  the  claim 


APPEAL  AND  ERROR. 


885 


ures  for  jurisdictional  purposes  the  value  of  the  matter  in  controversy,^ i  un- 
less, upon  inspection  of  the  plaintiff's  declaration,  it  appears  that,  as  a  matter 
of  law,  it  is  not  possible  for  the  plaintiff  to  recover  the  jurisdictional  amount.»2 
And  the  rule  that  the  plaintiff's  allegations  of  value  govern  in  determining  the  ju- 
risdiction, except  where,  upon  the  face  of  his  own  pleadings,  it  is  not  legally  pos- 
sible for  him  to  recover  the  jurisdictional  amount,  controls  even  where  the  dec- 
laration shows  that  a  perfect  defense  might  be  interposed  to  a  sufificient  amount 
of  the  claim  to  reduce  it  below  the  jurisdictional  amount.^-^ 

(2)  In  Tort  Actions. — In  suits  brought  to  recover  damages  for  a  tort,  there 
can  be  no  rule  to  ascertain  the  jurisdiction  of  the  court  but  the  value  laid  in 
the  declaration.^* 

(3)  Where  Damages  Are  Liquidated. — Cases,  as  we  have  already  seen,  may 


is  too  indefinite  to  give  this  court  juris- 
diction. The  interest  not  being  specially 
claimed  in  the  pleadings,  cannot  be  con- 
sidered on  this  question.  "The  interest 
in  an  action  of  this  kind,  if  taken  into 
view,  is  considered  as  a  part  of  the  dam- 
ages, being  merged  in  that  claim,  and  is 
not  estimated  as  a  distinct  item.  The 
claim  of  more  than  $1,800  is  too  indefinite 
to  give  jurisdiction  under  the  act  ot  con- 
gress; and  the  interest  not  being  specially- 
claimed,  for  the  reason  stated,  cannot  be 
computed.  The  appeal  is  therefore  dis- 
missed for  want  of  jurisdiction.  Gordon 
V  Ogden,  3  Pet.  33.  34,  7  L.  Ed.  592;  Scott 
V.  Lunt,  6  Pet.  349,  8  L.  Ed.  423."  Olney 
V.  Steamship  Falcon,  17  How.  19,  15  L. 
Ed.    43. 

Eminent  domain  proceedings. — In  a 
proceeding  under  the  statute  of  Alabama 
to  ascertain  the  amount  of  cnnnpcnsation 
to  be  paid  the  railroad  company  for  the 
appropriation  of  its  property  to  the  uses 
of  the  telegraph  company,  the  value  of 
the  matter  in  dispute  in  this  court  is  the 
difference  between  the  amount  of  com- 
pensation claimed  by  the  railroad  com- 
pany on  its  intervention  and  the  amount 
assessed  by  the  jury.  Hilton  v.  Dickin- 
son, 108  U.  S.  165,  27  L.  Ed.  688.  "There 
is  nothin»g  in  the  record  to  show  that  the 
alleged  value  of  the  property  is  not  the 
true  measure  of  the  compensation  to  be 
assessed.  As  this  amount  is  $12,000,  and 
the  jury  allowed  only  $500,  it  follows  that 
the  value  of  the  matter  in  dispute  is  sufifi- 
cient to  give  us  jurisdiction."  East  Tenn.. 
etc.,  R.  Co.  V.  Southern  Tel.  Co.,  113  U. 
S.    306,    309,    28    L-    Ed.    746. 

Where  exemplary  damages  are  claimed. 
■ — Where  exemplary  damages  beyond  the 
sum  necessary  to  give  a  circuit  court  of 
the  United  States  jurisdiction  are  claii!ied 
in  an  action  for  a  malicious  trespass,  the 
court  should  not  dismiss  the  case  for 
want  of  jurisdiction  simply  because  the 
record  shows  that  the  actual  injury  caused 
to  the  plaintiff  by  the  trespass  was  less 
than  the  jurisdictional  amount.  Barry  v. 
Edmunds,   116  U.   S.   550,  29   L.    Ed.  72D. 

In  Smith  v.  Greenhow,  109  U.  S.  669, 
671.  27  L.  Ed.  1080,  the  value  of  the  prop- 
erty taken  was  stated  in  the  declaration 
to  be  $100,  while  the  damages  for  the  al- 
leged trespass  were  laid  at  $6,000,  and  no 


circumstances  of  malice  or  of  special  dam- 
age were  averred.  It  was  said  by  the 
court:  "We  cannot,  of  course,  assume  as 
a  matter  of  law  that  the  amount  laid,  or 
a  less  amount,  greater  than  $500,  is  not 
recoverable  upon  the  case  otated  in  the 
declaration,  and  cannot,  therefore,  justify 
the  order  remanding  the  cause  on  the 
ground  that  the  matter  in  dispute  does 
not  exceed  the  sum  or  value  of  $500.  But 
if  the  circuit  court  had  found,  as  matter 
of  fact,  that  the  amount  of  damages  stated 
in  the  declaration  was  colorable,  and  had 
been  laid  beyond  the  amount  ot  a  reason- 
able- expectation  of  recovery,  for  the  pur- 
pose of  creating  a  case  removable  under 
the  act  of  congress,  so  that,  in  the  words 
of  the  5th  section  of  the  act  of  1875  it 
anoeared  that  the  suit  'did  not  really  and 
substantially  involve  a  dispute  or  con- 
troversy properly  within  the  jurisdiction 
of  said  circuit  court,'  the  order  remanding 
it  to  the  state  court  could  have  been  sus- 
tained." Barry  v.  Edmunds,  116  U.  S. 
550,   559,   29   L.   Ed.   729. 

91.  Smith  V.  Greenhow.  109  U.  S.  669, 
27  L.  Ed.  1080;  Barry  v.  Kdmunds,  116 
U.  S.  550,  29  L.  Ed.  729,  Scott  v.  Donald, 
165  U.  S.  58,  41  L.  Ed.  632;  Wiley  v.  Siyk- 
ler,  179  U.  S.  58,  45  L.  Ed.  84;  Smithers 
V.  Smith,  204  U.  S.  632,  642,  51  L.  Ed. 
656. 

92.  Lee  v.  Watson,  1  Wall.  337,  17  L. 
Ed.  557;  Schacker  v.  Hartford  Fire  Ins. 
Co.,  93  U.  S.  241,  23  L.  Ed.  862;  Vance 
V.  Vandercook  Co.,  170  U.  S.  468,  42 
L.  Ed.  1111;  North  American  Trans- 
portation Co.  V.  Morrison,  178  U.  S. 
262,  44  L.  Ed.  1061;  Smithers  v.  Smith, 
204   U.   S.    632,   642,   51    L.   Ed.    656. 

93.  Schunk  v.  Moline,  etc.,  Co.,  147  LI. 
S.  500,  37  L.  Ed.  255;  Smithers  v.  Smith, 
204  U.   S.  632,  642,  51   L.   Ed.  656. 

94.  In  tort  actions. — Hulsecamp  v.  Teel, 
2   Dall.    358,    1   L.    Ed.    414. 

In  actions  of  tort,  it  is  the  dainages 
claimed  which  determine  the  amount  in 
dispute,  but,  in  an  action  to  recover  a 
specific  sum  of  money,  the  court  examines 
the  bodv  of  the  declaration,  and  tlie  cause 
of  action  set  out,  to  determine  what  is  the 
real  sum  in  dispute.  Hilton  v.  Dickin- 
son, 108  U.  S.  165,  174,  27  L.  Ed.  688; 
Lee  V.  Watson,  1  Wall.  337,  17  L.  Ed, 
557. 


886 


APPEAL  AND  H.KKUK. 


exist,  where  a  rule  of  law,  as  in  certain  cases  ex  contractu,  in  which  the  amount 
recoverable  is  liquidated  by  the  terms  of  the  agreement,  fixes  the  limit  of  a 
possible  recovery. ^^ 

(4)  From  Prayer  of  Bill. — In  determining  the  question  as  to  the  amount  in 
controversy,  we  may  look  to  the  allegations  and  prayer  of  the  bill  to  ascertain 
the  relief  sought,  and  the  real  extent  of  the  controversy  between  the  parties.**^ 
Where  the  prayer  of  a  bill  in  equity  shows  that  the  demand  of  the  complainant 
is  susceptible  of  definite  computation,  and  that  there  can  be  no  recovery  over 
the  jurisdictional  amount,  the  appeal  to  this  court  will  be  dismissed  on  motion, 
for  want  of  jurisdiction.^" 

(5)  Amended  Pleadings. — In  General. — When  an  amended  complaint  de- 
mands a  sum  different  from  that  demanded  in  the  original,  the  amended  and  not 
the  original  complaint  is  to  be  looked  to  in  determining  the  question  of  jurisdic- 
tion.^** But  where  a  pleading  is  amended  for  the  sole  purpose  of  giving  juris- 
diction to  this  court,  by  increasing  the  amount  in  dispute,  the  writ  of  error  will 
be  dismissed.®® 


95.  Where    damages    are    liquidated. — 

Such  was  the  case  of  Lee  f.  Watson,  1 
Wall.  337,  17  L.  Ed.  557,  where  it  ap- 
peared "that  in  the  progress  of  the  cause 
an  amendment  was  made  in  the  amount 
of  damages  claimed  for  the  purpose  of 
bringing  the  case  within  the  appellate  ju- 
risdiction of  this  court."  As  was  said  in 
Hilton  V.  Dickinson,  108  U.  S.  165,  174, 
27  L.  Ed.  688.  "It  is  undoubtedly  true, 
that  until  it  is  in  some  way  shown  by  the 
record  that  the  sum  demanded  is  not  the 
matter  in  dispute,  that  sum  will  govern 
in  all  questions  of  jurisdiction,  but  it  is 
equally  true  that,  when  it  is  shown  that 
the  sum  demanded  is  not  the  real  matter 
in  dispute,  the  sum  shown  and  not  the 
sum  demanded  will  prevail."  Barrj'  v. 
Edmunds,  116  U.  S.  550,  561,  29  L.  Ed. 
729. 

96.  From  prayer  of  bill. — Shappirio  v. 
Goldberg,  192  U.  S.  232,  240,  48  L.  Ed. 
419. 

Where  a  bill  contains  a  prayer  for  the 
conveyance  of  a  small  strip  of  ground, 
which  was  purchased  for  $300,  if  that 
were  the  only  subject  matter  of  the  suit, 
the  amount  required  to  give  the  supreme 
court  the  right  to  review  would  not  be 
in  controversy.  But  where  if  this  relief 
is  denied,  the  complainants  seek,  in  the 
alternative,  to  have  the  contract  rescinded 
and  the  payment  of  the  sum  of  $6,000,  the 
purchase  money,  with  costs  and  interest, 
decreed  against  the  respondents;  this  sum 
is  also  in  dispute  between  the  parties, 
and  the  supreme  court  has  jurisdiction. 
Shappirio  v.  Goldburg,  192  U.  S.  232,  240, 
48    L.    Ed.    419. 

97.  Sewall  v.  Chamberlain,  5  How.  6, 
12  L.   Ed.   25. 

98.  Amended  Pleadings. — Washer  v.  Bul- 
litt  County,   110  U.   S.   558,   28   L.   Ed.  249. 

When  a  petition  is  amended  by  leave 
of  the  court,  the  cause  proceeds  on  the 
amended  petition.  Washer  v.  Bullitt 
Cotint}',    110  U.   S.    558,   562,  28  L.    Ed.  249. 

99.  Bowman  v.  Chicago,  etc.,  R.  Co., 
11.'  U.  S.  611,  29  L.  Ed.  502,  citing  Lee  v. 
Watson,  1  Wall.  337,  17  L.   Ed.  557:  Smith 


V.    Greenhow,    109    U.    S.    669,    27    L.    Ed. 
1080. 

In  a  suit  against  a  carrier  for  refus- 
ing to  receive  and  carry  goods,  it  appears 
that  there  were  two  counts  to  the  declara- 
tion on  the  same  cause  of  action,  and  in 
each  it  is  stated  that  the  damages  sus- 
tained amounted  to  $1,200.  Pleas  were 
tiled  by  the  companj^  setting  up  excuses, 
for  not  receiving  and  carrying  the  goods, 
to  which  pleas  plaintifif  demurred,  and 
that  the  declaration  was  amended  by  leave 
of  the  court  so  as  to  incr-ease  the  damages 
demanded  to  $10,000.  The  demurrer  to 
the  pleas  was  overruled  on  the  same  day 
that  they  were  filed,  and  the  parties  then 
filed  a  stipulation  that  in  making  up  the 
record  to  this  court  the  clerk  of  the  circuit 
court  should  only  transmit  the  amended 
declaration  and  pleas  thereto;  and 
judgment  was  then  entered  for  defendant 
on  the  demurrer.  Held:  "Upon  the  face 
of  this  record  it  is  apparent  that  the  ac- 
tual value  of  the  matter  in  dispute  is 
not  sufficient  to  give  us  jurisdiction.  It 
is  now  well  settled  that  our  jurisdiction 
in  an  action  upon  a  money  demand  is  gov- 
erned by  the  value  of  the  actual  matter 
in  dispute  in  this  court,  as  shown  by  the 
whole  record,  and  not  by  the  damages 
claimed  or  the  prayer  for  judgment  alone. 
Lee  V.  Watson,  1  Wall.  337,  17  L.  Ed. 
557;  Schacker  v.  Hartford  Fire  Ins  Co.,. 
93  U.  S.  241,  23  L.  Ed.  862;  Gray  v, 
Blanchard,  97  U.  S.  564.  24  L.  Ed.  1108; 
Tintsman  v.  National  Bank,  100  U,  S. 
6,  25  L.  Ed.  530;  Banking  Ass'n  v. 
Insurance  Ass'n,  102  U.  S.  121,  26  L. 
Ed.  45;  Hilton  v.  Dickinson,  108  U.  S. 
165,  174.  27  L.  Ed.  688;  The  Jesse  Wil- 
liamson, Jr.,  108  U.  S.  305,  309,  27  L.  Ed. 
730;  Jenness  v.  Citizens'  Nat.  Bank, 
110  U.  S.  52,  28  L.  Ed.  67;  Webster  v. 
Buffalo  Ins.  Co.,  110  U.  S.  386,  388.  28 
L.  Ed.  172;  Bradstreet  Co.  v.  Higgins,  112 
U.  S.  227,  28  L.  Ed.  715.  As  was  said  in, 
Hilton  V.  Dickinson,  'It  is  undoubted)  ■ 
true  that  until  it  is  in  some  way  shown 
by  the  record  that  the  sum  demanded  is 
not    the   matter   in   dispute,   that   sum    will 


APPEAL  AND  ERROR.  .S87 

Right  to  Increase  Amount  by  Amendments. — An  amendment  will  not  be 
allowed  solely  for  the  purpose  of  making  up  the  required  amount.  If  amend- 
ments were  allowed,  so  as  to  give  jurisdiction  to  this  court,  where  there  was  no 
jurisdiction  when  the  trial  was  had  and  the  appeal  taken,  parties  would  be  taken 
by  surprise  and  litigation  would  be  encouraged.  The  plaintiff,  in  such  circum- 
stances, would  never  fail  to  sustain  the  jurisdiction  of  this  court  on  appeal.^ 
Hence,  it  is  too  late,  when  the  case  has  reached  this  court,  to  amend  a  libel  by 
inserting  a  special  claim  of  interest  in  order  to  make  up  the  amount  required  to 
give  jurisdiction.  The  twenty-fourth  admiralty  rule  ought  not  to  be  construed 
to  extend  the  cases  where  an  amendment  would  give  jurisdiction,  which  would 
not  exist  without  such  amendment. - 

(6)  Cross  Bills. — When  the  averments  of  the  cross  bill  are  directly  responsive 
to  the  allegations  in  the  original  bill,  and  the  matter  set  up  is  directly  connected 
with  the  transaction  which  he  alleges  as  the  gravamen  of  his  complaint,  the 
amount  claimed  by  the  cross  bill  can  properly  be  taken  into  consideration  in  de- 
termining the  jurisdiction  of  this  court;  and  if  that  amount  is  more  than  the  ju- 
risdictional amount,  a  motion  to  dismiss  for  want  of  jurisdiction  will  be  denied.-' 

(7)  Qualifications  of  General  Rule. — In  General. — While  in  the  absence  of 
anything  to  the  contrary  the  prayer  for  judgment  by  the  plaintiff  in  his  declara- 
tion or  complaint,  upon  a  demand  for  money  only,  or  by  the  defendant  in  his 
counterclaim  or  set-oft",  will  be  taken  as  indicating  the  amount  in  dispute,  vet  if 
the  actual  amount  in  dispute  does  otherwise  appear  in  the  record,  reference  may 
be  had  to  that  for  the  purpose  of  determining  our  jurisdiction.  Ordinarily  this 
will  be  found  in  the  pleadings,  but  we  need  not  necessarily  confine  ourselves  to 
them.  We  hear  the  case  upon  the  record  which  is  .sent  up,  and  if,  taking  the 
whole  record  together,  it  appears  that  we  have  no  jurisdiction,  the  case  must 
be  dismissed.-*  The  amount  as  stated  in  the  body  of  the  declaration,  and  not 
merely  the  damages  alleged,  or  the  prayer  for  judgment  at  its  conclusion,  must  be 
shown  in  determining  whether  this  court  can  take  jurisdiction.  The  same  is  true 
of  the  counterclaim  or  set-oft'.  It  is  the  actual  matter  in  dispute  as  shown  bv 
the  record  and  not  the  ad  damnum  alone,  which  must  be  looked  to.'' 


govern     in     all     questions     of    jurisdiction.  Soda    Fountain   Co.,    194   U.   S.   141,   145.  4S 

but    it    is    equally    true    that,    when    it    is  L.    Ed.   911. 

shown   that   the  sum  demanded  is   not  the  4.    Qualifications  of  general  rule —Cray 

real  matter  m  dispute,  the  sum  shown,  and  -,    Blanchard,  97   U.   S.  .564,  .56.5,  24  L.   Ed. 

not     the    sum     demanded,     will     prevail.'"  n08. 

Bowman   v.   Chicago,   etc.,    R.    Co.,    115   U.  _      tt;i»        .     r»:   i  •  1^0    tt     e     ,  ■- 

S.   611.  613,  29   L.   Ed.   .502.  J;   "i!^°"««-    D.ckmson,    108    U.    S.    Iba 

1.  Udall    V.    Steamship    Ohio.    17    How.  ^^.u'  .?~    17  t'     Fh"^-7     r  '•  nf "' . 
17,    15    L.    Ed.    42:    Northern    Pac.    R.    Co.  ^^h     n"    W     q     -«^     -«f '.^T    PH    'mh^ 
z^   Booth,   152  U.   S.  671,  38  L.   Ed.  591.  Z^:Jv.           S/.T'  HP*    ''r  ^^   r^'   I     W 

When,   to   authorize    the   re-examination  i'^''>';.;  •T"^^^*°•l/''■"   ^"^-  C°-  ''  U- 

e        i2      1    •    J  ^      r    ^u         •         ..  »  >^-    241,    2.^    L.    Ed.    862. 

of   a    hnal   judgment   ot    the   circuit    court, 

the    matter    in    dispute    must    exceed    the  "We   have   held,   at   this   term,   on   a   tull 

sum    or    value    of   $2,000.    that    amount— if  review  ot   the   subject,   in   Hilton   v.    Dick- 

the  action  be  upon  a   money  demand   and  mson,    108   U.    S.    165,   27   L.   Ed.   688,    that 

the    general    issue     be    pleaded— must    be  ^^'iT'e    we    have    jurisdiction    of    a    writ    of 

stated  both  in  the  body  of  the  declaration  error  or  appeal  by  a  plaintiff  below  when 

and  in  the  damages  claimed,  or  the  prayer  he  ^ues  for  as  much  as  or  more  than  our 

for  judgment.     When   the  amount   alleged  jurisdiction    requires    and    recovers    noth- 

to  be   due   in   the   body   of   the   declaration  '"g-    the    actual    matter    in    dispute   in    this 

is  less  than  $1,000,  an  amendment   merely  court,   as    shown    by    the    record,   and    not 

in     the     matter     of     amount     of     damages  'ilone   the   damages   alleged   or   prayed   for 

claimed,   so   as   to    exceed   $2,000.    will   not  '"   the   declaration,   must   be    looked    to   in 

give  jurisdiction   to  this  court,  and  enable  determining   the   question   of  jurisdiction." 

it    to    review    the    final    judgment    in    the  The  Jessie   Williamson,  Jr.,  108  U.   S.  305, 

case.     Lee  v.   Watson,   1    Wall.   337,   17   L.  '■''^^-   --7   L.   Ed.    730. 
F.d.     557.  A   writ  of  error   sued   out   upon   a  jndg- 

2.  Udall  7'.  Steamship  Ohio,  17  How.   17,  ment    on    a    money    demand    will    be    dis- 
!•'   L.  Ed.  591.  missed      where      it      affirmatively     appears 

3.  Cross  bills. — Lovell  z:  Cragin,  136  U.  from    the    record,    taken    as   a   whole,    that 
S.   130,  34   L.   Ed.  372:   Kirby  v.  American  the  amount  actually  in  dispute  is  not  suf- 


888 


Ai'l'i'.AL  .L\V  JiKKUR. 


Claim  Must  Be  Made  in  Good  Faith. — Nevertheless,  however  stringent  and 
far  reaching  the  rule  may  he  tha*  \i  is  the  plaintiff's  statement  of  his  case  whicl; 


ficient  to  give  this  court  jurisdiction. 
Gray  i\  Blancliard,  97  U.  S.  564,  24  L. 
Ed.  1108,  citing  Lee  v.  Watson,  1  Wall. 
337  17  L.  Ed.  557;  Schacker  v.  Hartford 
Fire  Ins.  Co.,  93  U.  S.  241,  23  L.  Ed. 
862. 

In  Hihon  v.  Dickinson,  108  U.  S.  165, 
27  L.  Ed.  688,  it  was  decided,  on  full 
consideration,  that  our  jurisdiction  for 
the  review  of  the  judgments  and  decrees 
of  the  circuit  courts,  in  actions  to  recover 
money,  depends  on  the  value  of  the  mat- 
ter in  dispute  here,  and  that  it  is  the  ac- 
tual matter  in  dispute,  as  shown  by  the 
whole  record,  and  not  the  ad  damnum 
alone,    which    governs. 

Action  on  promissory  note. — This  court 
would  not  hear  a  case  where  the  plain- 
tiff counted  solely  upon  a  promissory  note 
of  two  hundred  dollars,  simply  because 
he  concluded  his  declaration  with  an  aver- 
ment that  he  had  sustained  damages  from 
its  nonpayment  of  over  two  thousand, 
and  prayed  judgment  for  the  latter  sum. 
Reference  must  be  had  both  to  the  debt 
claimed,  and  to  the  damages  alleged,  or 
the  prayer  for  judgment.  The  damages 
or  prayer  for  judgment  must  be  regarded, 
inasmuch  as  the  plaintiff  may  seek  a  re- 
covery for  less  than  the  sum  to  which 
he  appears  entitled  by  the  allegations  in 
the  body  of  the  declaration.  Lee  v.  Wat- 
son,  1    Wall.   337,   339,    17   L.    Ed.    557. 

Where  in  an  action  upon  a  policy  of  in- 
surance upon  a  cargo  of  goods,  although 
the  value  of  the  goods  is  alleged  to  be 
more  than  $5,000,  and  a  judgment  is  asked 
for  that  amount,  yet  if  it  appears  dis- 
tinctly by  the  pleadings  that  the  insurance 
was  in  fact  for  a  less  amount,  the  writ  of 
error  will  be  dismissed,  and  this  court 
will  not  accept  a  stipulation  of  the  parties 
that  judgment  might  be  entered  for  a 
sum  in  excess  of  that  amount.  "Arrange- 
ments between  parties  contradictory  to 
their  pleadings,  and  so  evidently  made  for 
the  purpose  of  enlarging  the  case  suffi- 
ciently to  bring  it  within  the  jurisdic- 
tion of  this  court,  cannot  be  recognized 
here."  Webster  v.  Buffalo  Ins.  Co.,  110 
U.    S.    386,    389,    28    L.    Ed.    172. 

In  Schacker  v.  Hartford  Fire  Ins.  Co., 
93  U.  S.  241,  23  L.  Ed.  862,  citing  Lee  v. 
Watson,  1  Wall.  337.  17  L.  Ed.  557,  we 
dismissed  a  case  in  which  it  appeared  that 
the  action  was  upon  a  policy  of  insurance 
for  $1,400,  because,  although  damages  to 
our  jurisdictional  amount  were  claiined, 
«t  was  apparent  from  the  whole  record 
•hat  there  could  not  be  a  recovery  for 
more  than  the  amount  of  the  poi;cy,  and 
a    srafill    sum    in    addition    for    interest. 

Interpleader-funds  and  deposits  in  court. 
— In  Hilton  v.  Dickinson,  108  U.  S.  165; 
27  L.  Ed.  688,  a  bill  of  interpleader  was 
filed  by  a  trustee  against  A.,  B.  and  C.  to 
determine   the  ownership  of  $2,500,  which 


he  held  as  trustee.  The  fund  was  paid 
into  court,  and  when  a  decree  below  was 
rendered,  had  increased  by  investment  to 
more  than  $3,000.  A.,  B.  and  C.  each 
claimed  a  whole.  The  court  at  special 
term  decreed  the  whole  to  A.  From  this 
decree  both  B.  and  C.  appealed.  Then 
the  decree  at  special  term  was  modified 
so  as  to  direct  the  payment  of  the  fund 
to  A.  and  B.  in  equal  moieties  and  to  ad- 
judge the  costs  to  A.  alone.  It  was  held, 
that  the  matter  in  dispute  is  only  the  dif- 
ference between  what  A.  has  recovered 
and  what  he  is  sued  for,  and  as  that  is 
only  one-half  of  the  $3,000,  it  follows  as 
to  him  that  the  matter  in  dispute  in  this 
court  is  only  $1,500.  On  appeal  from  the 
supreme  court  to  the  District  of  Columbia 
we  have  jurisdiction  only  when  the  master 
in    dispute    exceeds   $2,500. 

Action  of  trespass. — In  Smith  v.  Green- 
how,  109  U.  S.  669,  27  L.  Ed.  1080,  the 
action  begun  in  a  state  court  was  tres- 
pass for  taking  and  carrying  away  per- 
sonal property  of  the  value  of  $100,  but 
the  damages  were  laid  at  $6,000.  On  the 
removal  of  the  case  to  the  circuit  court 
of  the  United  States,  it  was  remanded, 
on  the  ground  that  the  case  was  not  one 
arising  under  the  constitution  or  laws  of 
the  United  States.  This  we  decided  was 
error,  and,  therefore,  reversed  the  order 
to  remand,  but,  in  doing  so,  remarked 
that,  "if  the  circuit  court  had  found,  as 
matter  of  fact,  that  the  amount  of  dam- 
ages stated  in  the  declaration  was  color- 
able, and  had  been  laid  beyond  the  amount 
of  reasonable  expectation  of  recovery,  ior 
the  purpose  of  creating  a  case  removable 
under  the  act  of  congress,  *  *  *  the 
order  remanding  it  to  the  state  court 
could  have  been  sustained."  This  was 
said  in  reference  to  the  requirement  of 
the  removal  act  of  1875,  which  limits  the 
jurisdiction  of  the  circuit  courts,  under 
such  circumstances,  to  cases  "where  the 
matter  in  dispute  exceeds  *  *  *  the  sum 
of  five  hundred  dollars,"  but  it  is  equally 
applicable  to  appeals  and  writs  of  error 
to  this  court  where  our  jurisdiction  de- 
pends on  the  money  value  of  the  matter  in 
dispute.  Bowman  v.  Chicago,  etc.,  R. 
Co.,   115  U.   S.   611,  614,   29   L.   Ed.   502. 

Supreme  court  of  District  of  Columbia. 
— In  a  case  brought  up  by  writ  of  error 
to  the  court  of  the  District  of  Columbia, 
jurisdiction  cannot  be  vested  in  the  su- 
preme court  of  the  United  States  by  a 
mere  claim  of  damages  unsupported  by 
facts.  Magruder  v.  Armes,  180  U.  S.  496, 
45  L.  Ed.  638,  citing  and  approving  Bow- 
man V.  Chicago,  etc.,  R.  Co.,  115  U.  S. 
611,   29   L.    Ed.   502. 

A  declaration  alleged  that  the  plaintiff 
was  damaged  to  the  amount  of  $6,000,  by 
the  payment  of  less  than  $90  to  preserve 
from   sale   under   levy   of   execution   prop- 


APPEAL  AND  ERROR. 


889 


governs  in  determining  the  jurisdiction,  it  does  not  exclutle  the  power  of  the 
court  to  protect  itself  against  fraud.<*  In  other  words  the  general  rule  that  where 
judgment  goes  for  the  defendant,  the  amount  of  the  plaintiff's  claim  is  the  test 
of  jurisdiction,  is  -subject  to  the  qualification  that  the  demand  shall  appear  to 
have  been  made  in  good  faith  for  such  amount.  If  it  appear  clearly  from  the 
whole  record  that  under  no  aspect  of  the  case  the  plaintiff  could  recover  the  full 
amount  of  his  claim,  this  court  will  decline  to  assume  jurisdiction  of  the  case.  If, 
for  instaiKe,  a  greater  amount  than  $5.0CX)  were  claimed  in  the  ad  damnum  clause 
of  the  declaration,  and  the  bill  of  particulars  showed  the  actual  claim  to  be  less, 
the  latter  would  determine  the  jurisdiction.  Examples  of  the  distinction  between 
the  sum  demanded  and  the  sum  actually  in  dispute  are  frequent  in  the  decisions 
of  this  court.'  Where  the  plaintiff  asserts,  as  his  cause  of  action,  a  claim  which 
he  cannot  be  legally  permitted  to  sustain  by  evidence,  a  mere  ad  damnum  clause 


erty  worth  only  $1,800.  The  declaration 
charged  illegality  and  spite,  but  there 
was  no  allegations  of  personal  violence, 
insult  or  anything  which  sometimes  opens 
the  door  to  punitive  damages.  It  was  held, 
that  jurisdiction  is  not  given  to  the  su- 
preme court  of  the  United  States  on  writ 
of  error  to  the  district  court  of  Colum- 
bia by  such  allegations.  Magruder  v. 
Armes,  180  U.  S.  496,  45  L.  Ed.  638,  cit- 
ing and  approving  Bowman  v.  Chicago, 
etc.,  R.  Co.,  115  U.  S.  611,  29  L.  Ed. 
502. 

6.  Claim  must  be  made  in  good  faith. — 
Smith ers  v.  vSmith,  304  U.  S.  633.  643,  51 
L.    Ed.   656. 

This  was  pointed  out  in  Smith  v.  Green- 
how,  109  U.  S.  669,  27  L.  Ed.  1080,  where 
ft  was  said  that,  if  the  court  found  as  a 
fact  that  the  damages  were  laid  in  the 
declaration  colorably  and  beyond  a  rea- 
sonable expectation  of  recovery  for  the 
purpose  of  creating  jurisdiction,  there 
would  be  authority  for  dismissing  the 
case,  and,  following  this  statement  of  the 
law.  it  was  held,  that  where  the  judge  of 
the  circuit  court,  upon  sufficient  evidence, 
found  that  the  damages  had  been  claimed 
and  magnified  fraudulently  beyond  the  ju- 
risdictional amount,  the  action  should  be 
dismissed.  Globe  Refining  Co.  v.  Landa 
Cotton  Oil  .Co.,  190  U.  S.  540,  47  L.  Ed. 
3171;  Smithers  v.  Smith,  204  U.  S.  632. 
643,    51    L.    Ed.   656. 

7.  When  sum  demanded  not  test  of  ju- 
risdiction.— Lee  2'.  Watson,  1  Wall.  337,  17 
L-  Ed.  557;  Schacker  v.  Hartford  Fire  Ins. 
Co.,  93  U.  S.  341.  23  L.  Ed.  862;  Gray  v. 
Blanchard,  97  U.  S.  564,  24  L.  Ed.  1108; 
Tinstman  v.  National  Bank.  100  U.  S.  6,  25 
L.  Ed.  503;  Hilton  v.  Dickinson,  108  U.  S. 
165,  27  L.  Ed.  688;  Jenness  v.  Citizens' 
Nat.  Bank,  110  U.  S.  52.  28  h-  Ed.  67; 
Wabash,  etc.,  R.  Co.  v.  Knox,  110  U.  S. 
304,  28  L.  Ed.  155;  Gorman  v.  Havird,  141 
U.  S.  206,  208,  35  L.  Ed.  717;  Barry  v. 
Edmunds,  116  U.  S.  550,  560,  29  L.  Ed. 
729;  Wilson  v.  Daniel,  3  Dall.  401,  407, 
1  L.  Ed.  655;  Vance  v.  Vandercook  Co., 
170    U.    S.    468,    472,    42    L.    Ed.    1111. 

The  amount  of  damages  la'd  in  the  dec- 
laration, however,  in  cases  where  the  law 
gives  no  rule,  is  not  conclusive  upon  tlie 
question   of   jurisdiction;   but   if  upon    the 


case  stated  there  could  legally  be  a  re- 
covery for  the  amount  necessary  to  the 
jurisdiction,  and  that  amount  is  claimed, 
it  would  be  necessary,  in  order  to  defeat 
the  jurisdiction  since  the  passage  of  the 
act  of  March  3,  1875,  for  the  court  to  find, 
as  matter  of  fact,  upon  evidence  legally 
sufficient,  "that  the  amount  of  damages 
stated  in  the  declaration  was  colorable, 
and  had  been  laid  beyond  the  amount  of 
a  reasonable  expectation  of  recovery,  for 
the  purpose  of  creating  a  case"  within  the 
jurisdiction  of  the  court.  Then  it  would 
appear  to  the  satisfaction  of  the  court 
that  the  suit  "did  not  really  and  substan- 
tially involve  a  dispute  or  controversy 
properly  within  the  jurisdiction  of  said 
circuit  court."  Barry  v.  Edmunds,  116  U. 
S.    550,    560,    29    L.    Ed.    729. 

"It  is  true,  indeed,  that  in  some  cases 
it  might  appear  as  matter  of  law,  from  the 
nature  of  the  case  as  stated  in  the  plead- 
ings, that  there  could  not  legally  be  a 
judgment  recovered  for  the  amount  neces- 
sary to  the  jurisdiction,  notwithstanding 
the  damages  were  laid  in  the  declaration 
at  a  larger  sum.  In  the  early  case  of 
Wilson  V.  Daniel,  3  Dall.  401,  407,  1  h- 
Ed.  655,  decided  in  this  court  in  1798,  un- 
der the  judiciarv  act  of  1789,  then  in  force, 
it  was  declared,  by  Chief  Justice  Ells- 
worth, that.  'The  nature  of  the  case 
must  certainly  guide  the  judgment  of  the 
court;  and  whenever  the.  law  makes  a 
rule,  that  rule  must  be  pursued.  Thus,  in 
an  action  of  debt  on  a  bond  for  £l00, 
the  principal  and  interest  are  put  in  de- 
mand and  the  plaintiff  can  recover  no 
more,  though  he  may  lay  his  damages  at 
£  10,000.  The  form  of  the  action,  there- 
fore, gives  in  that  case  the  legal  rule. 
But  in  an  action  of  trespass,  or  assault  and 
battery,  where  the  law  prescribes  no  limi- 
tation as  to  the  amount  to  be  recovered 
and  the  plaintiflf  has  a  right  to  estimate 
his  damages  at  any  sum,  the  damage 
stated  in  the  declaration  is  the  thing  nut 
in  demand,  and  presents  the  only  crite- 
rion to  which,  from  the  nature  of  the  ac- 
tion, we  can  resort  in  settling  the  question 
of  jurisdiction.  The  proposition,  then,  is 
simply  this:  Where  the  law  g'ves  no 
ri'le.  the  demand  of  the  plaintiff  must 
furnish  one;  but  where  the  law  gives  the 


890 


APPEAL  AXD  ERROR. 


will  not  confer  jurisdiction  on  the  circuit  court,  but  the  court  on  motion  or  de- 
murrer, or  of  its  own  motion,  ma}-  dismiss  the  suit.^  While  it  has  sometimes 
been  said  that  it  is  the  amount  claimed  by  the  plaintiff  in  his  declaration  that 
brings  his  case  \\ithin  the  jurisdiction  of  the  circuit  court,  that  was  in  suits  for 
unliquidated  damages,  in  which  the  amount  which  the  plaintiff  was  entitled  to 
recover  was  a  question  for  the  jury;  an  inspection  of  the  declaration  did  not 
disclose  and  could  not  disclose  but  that  the  plaintiff'  was  entitled  to  recover  the 
amount  claimed,  and  hence,  even  if  the  jury  found  a  verdict  in  a  sum  less  than 
the  jurisdictional  amount,  the  jurisdiction  of  the  court  would  not  be  defeated.* 

(8)  Suffidcncy  of  Pleadings. — An  allegation  that  the  amount  instead  of  the 
matter  exceeds  the  jurisdictional  requirement  is  sufficient.  The  meaning  of  such 
an  allegation  is  clear. ^'^ 

g.  From  Exceptions  to  Master's  Report. — In  suits  for  accounting,  the  matter 
in  dispute  may  be  shown  by  the  exceptions  to  the  master's  report.'^ 

h.  Jurisdiction  Dependent  upon  Sum  in  Dispute  as  Case  Stands  in  This  Conrt. 
— The  matter  in  dispute,  on  which  our  jurisdiction  depends,  is  the  matter  in  dis- 
pute between  the  parties,  as  the  case  stands  upon  the  writ  of  error  or  appeal ; 
that  is,  the  same  as  it  stands  in  this  court. ^^ 


rule,  the  legal  cause  of  action,  and  not 
the  plaintiff's  demand,  must  be  regarded."  " 
Barry  i:  Edmunds.  116  U.  S.  5.50,  560,  29 
L.    Ed.    729. 

Since  the  courts  of  South  Carolina  have 
held  that  in  an  action  of  trover  conse- 
quential damages  are  not  recoverable,  and 
have  also  held  that  in  the  action  of  claim 
and  delivery,  damages  for  the  detention 
must  have  respect  to  the  property  and  to 
a  direct  injury  arising  from  the  deten- 
tion, it  follows  that  they  cannot  be  con- 
sidered in  making  up  the  jxirisdictional 
amount,  though  claimed  in  the  declara- 
tion. Vance  r.  Vandercook  Co..  170  U. 
S.  468,  480,  42  L.   Ed.   1111. 

8.  North  American  Transportation  Co. 
V.  Morrison,  178  U.  S.  262.  267,  44  L.  Ed. 
1061, 

9.  Barry  v.  Edmunds.  116  U.  S.  550,  29 
L.  Ed.  729:  Scott  V.  Donald,  165  U.  S. 
58,  89,  41  L.  Ed.  632:  North  American 
Transportation  Co.  z\  Morrison,  178  U.  S. 
262,    266,    44    L.    Ed.    1061. 

10.  Sufficiency  of  pleading. — Blackburn 
V.  Portland  Gold  Min.  Co.,  175  U.  S.  571, 
44  L.  Ed.  276. 

11.  From  exceptions  to  master's  report. 
— Burr  c'.  Myers,  154  U.  S.  654.  25  L.  Ed. 
976. 

W'here  the  controversy  in  the  suit  is 
as  to  the  account  between  the  appellant 
and  the  railroad  company,  and  the  amount 
in  dispute,  as  shown  by  the  exceptions  to 
the  master's  report,  is  more  than  $5,000; 
and  that  the  appellee  seeks  payment  of  a 
debt  due  him  from  the  appellant  out  of 
the  proceeds  of  the  litigation  between  the 
appellant  and  the  railroad  company,  and 
if  it  should  appear  that  the  appellant  was 
not  bound  to  return  the  company  any  of 
the  money  which  was  paid  to  her,  he  can 
have  no  decree  against  her  personally,  and 
it  appears  that  the  original  claim  of  the 
appellee  exceeded  $5,000,  and  the  appel- 
lant resists  the  payment  of  the  whole,  and 
it  has  all  been  allowed  in  the  progress  of 


tlie  cause,  tliis  court  has  jurisdiction,  al- 
though the  final  decree  in  the  appellee's 
favor  was  less  than  $5,000.  where  the  re- 
mainder of  the  claim  had,  by  an  order  of 
the  court,  been  paid  before  from  the  pro- 
ceeds of  the  litigatioH.  Scruggs  v.  Mem- 
phis, etc.,  R.  Co..  131  U.  S.  appx.  cciv,  26 
L.  Ed.  741. 

12.  Jurisdiction  dependent  upon  sum  in 
dispute  as  case  stands  in  this  court. — 
Gordon  i:  Ogden.  3  Pet.  33,  7  L.  Ed.  592, 
overruling  Wilson  :■.  Daniel,  3  Dall.  401, 
1    L.    Ed. ''655. 

The  jurisdiction  of  the  supreme  court 
is  determined  by  the  value  of  the  matter 
in  dispute  in  that  court.  New  Jersey 
Zinc  Co.  z\  Trotter,  108  U.  S.  564.  27  L- 
Ed.  828,  citing  Hiltan  v.  Dickinson,  1C8 
U.  S.  165,  27  L.  Ed.  688,  which  reviews  all 
the    cases    on    this    point. 

Where  a  suit  is  brought  to  recover  an 
amount  in  excess  of  $5,000,  but  a  judg- 
ment is  in  fact  rendered  for  less,  this  court 
has  no  jurisdiction,  under  the  rule  la'd 
down  in  Hilton  v.  Dickerson,  108  U.  S. 
165,  27  L.  Ed.  688,  holding  that  the  juris- 
diction of  this,  court  depends  on  the  value 
of  the  matter  in  dispute  here.  Dows  v. 
Johnson,    110   U.    S.   323,   28    L.    Ed.    128. 

"As  to  both  parties,  the  matter  in  dis- 
pute, on  which  our  jurisdiction  depends, 
is  the  matter  in  dispute  'between  the  par- 
ties as  the  case  stands  upon  the  writ  of 
error'  or  appeal,  that  is  to  say,  as  it 
stands  in  this  court.  That  was  the  ques- 
tion in  Wilson  v.  Daniel,  3  Dall.  401,  1 
L.  Ed.  655.  Where  it  was  held  that,  to 
avoid  giving  one  party  an  advantage  over 
another,  it  was  necessary  to  make  juris- 
diction depend  'on  the  matter  in  dispute 
when  the  action  was  instituted.'  When, 
therefore,  that  case  was  overruled  in  Gor- 
don 7'.  Ogden,  3  Pet.  33,  7  L.  Ed.  592,  and 
it  was  held,  as  to  a  defendant,  that  his 
rights  depended  on  the  matter  in  dispute 
in  t'^''^  court,  we  entertain  no  doubt  it  was 
the  intention   of  the   court  to  adopt  as  an 


APFBAL  AND  ERROR. 


891 


i.  Distinction  hetzveeii  Appeals  by  Plaintiff  and  by  Defendant. — In  General. 
—Formerly  it  was  a  good  deal  controverted  whether  the  sum  or  value  in  con- 
troversy is  to  be  determined  by  reference  to  the  amount  claimed  or  the  amount 
of  the  judgment,  or  the  amount  in  dispute  in  this  court.  It  has  been  lor^  set- 
tled, however,  that  when  the  judgment  is  for  the  defendant  or  for  the  plaintiff., 
and  for  less  than  the  jurisdictional  amount,  and  the  plaintifif  sues  out  the  writ  of 
error,  this  court  has  jurisdiction  if  the  damages  claimed  in  the  declaration  ex- 
ceed that  sum;  but  that  if  the  judgment  is  for  the  plaintiff  and  not  for  more  than 
the  jurisdictional  amount  and  the  defendant  prosecutes  in  error,  this  court  has 
not  jurisdiction,  for  the  amount  in  controversy,  as  to  the  defendant,  is  fixed  by 
the  judgment.  1" 

Appeals  by  Plaintiff. — Where  a  judgment  is  for  the  defendant,  and  the 
plaintiff  appeals,  the  amount  in  controversy  is  the  amount  of  the  demand  in  the 
plaintiff's  declaration. i"* 

Appeals  by  Defendant. — It  is  the  settled  rule  that  where  a  judgment  or  de- 


entirety  the  position  of  Mr.  Justice  Ire- 
dell in  his  dissenting  opinion,  and  to  put 
both  sides  upon  an  equal  footing.  Cer- 
tainly it  could  not  have  been  irttended  to 
give  a  plaintiff  any  advantage  over  a  de- 
fendant, when  there  is  nothing  in  the  law 
to  show  any  such  superiority  in  position." 
Hilton  V.  Dickinson,  108  U.  S.  16.5,  175. 
27  L.    Ed.   688. 

13.  Distinction  between  appeals  by 
plaintiff  and  by  defendant. — Cooke  v. 
Woodrow,  ,j  Cranch  13,  3  L.  Ed.  22;  Wise 
V.  Columbian  Turnpike  Co..  7  Cranch  276. 
3  L.  Ed.  341:  Gordon  v.  Ogden,  3  Pet  33, 
7  L.  Ed.  592:  Smith  v.  Honey,  3  Pet.  469,  7 
L.  Ed.  744;  Walker  :■.  United  vStates,  4 
Wall.    163,    164,    18    L.    Ed.    319. 

This  court  has  jurisdiction  over  final 
judgments  and  decrees  of  the  circuit  court 
where  the  matter  in  dispute  exceeds  the 
.sum  or  value  of  two  thousand  dollars. 
The  jurisdiction  of  the  court  has  been  sup- 
po.sed  to  depend  on  the  sum  or  value  of 
the  matter  in  dispute  in  this  court,  not 
on  that  which  was  in  dispute  in  the  cir- 
cuit court.  Tf  the  writ  of  error  be  brought 
by  the  plaintiff  below,  then  the  sum  which 
his  declaration  shows  to  be  due  may  be 
still  recovered,  should  the  judgment  for 
a  smaller  sum  be  reversed:  and  conse- 
quently the  whole  sum  claimed  is  still  in 
dispute.  But  if  the  writ  of  error  be 
brought  by  the  defendant  in  the  original 
action,  the  judgment  of  this  court  can 
only  affirm  th^t  of  the  circuit  court,  and 
consequently  the  matter  in  dispute  can- 
not exceed  the  amount  of  that  judgment. 
Nothing  but  that  judgment  is  in  dispute 
between  the  parties.  Gordon  v.  Ogden. 
3  Pet.  33.  34,  7  L.  Ed.  .592. 

In  cases  where  the  plaintiff  sues  for 
money,  and  claims  in  his  pleadings  a 
larger  sum  than  $2,000,  and  obtains  a 
judgment  for  a  smaller  amount,  the  sum 
for  which  the  judgment  is  rendered  is  the 
only  matter  in  controversy,  when  the  de- 
fendant brings  the  wr.t  of  error.  Be- 
cause, if  the  plaintiff  rests  satisfied  with 
it,  and  takes  no  step  to  reverse  it.  he  is 
bound  by  it  as  well  as  the  defendant. 
Both    parties,    therefore,    stand    upon    an 


equal  footing  in  that  respect.  But  if  the 
plaintiff  brings  the  writ  of  error  upon  the 
ground  that  he  is  entitled  to  more  than 
the  judgment  was  rendered  for,  then  his 
averment  in  his  declaration  shows  "  the 
amount  he  claimed:  and  as  that  claim  is 
the  matter  for  which  he  brings  suit,  he 
is  entitled  to  the  writ  of  error  if  that 
claim  appears  to  be  large  enough  to  give 
jurisdiction  to  this  court.  Bennett  v.  But- 
terworth,  8  How.  124,  129,  12  L.  Ed.  1013. 

The  right  of  appeal  from  the  circuit 
to  the  supreme  court  is  given,  "where  the 
matter  in  dispute  exceeds  the  sum  or 
value  of  two  thousand  dollars,  exclusive 
of  costs."  The  defendant  can  appeal,, 
where  the  judgment  or  decree  against 
him  exceeds  the  sum  or  value  of  two 
thousand  dollars:  but  an  appeal  may  be 
taken  by  the  plaintiff  where  his  claim  of 
damages,  in  the  declaration  or  libel,  ex- 
ceeds the  above  sum,  or  where  the  value 
of  the  thing  claimed  exceeds  it.  as  this 
is  held  to  be  the  matter  in  dispute.  Olney 
f.  Steamship  Falcon,  17  How.  19.  22,  15 
L.    Ed.    43. 

14.  Cook  V.  Woodrow.  5  Cranch  12,  13,  3 
L.  Ed.  22;  Pratt  v.  Law,  9  Cranch  456. 
457,  3  L.  Ed.  791;  Gordon  v.  Ogden,  3 
Pet.  33.  7  L.  Ed.  592:  Knapp  7-.  Banks. 
2   How.   73,   11   L.    Ed.   184. 

We  have  jurisdiction  of  a  writ  of  er- 
ror or  appeal  by  a  plaintiff  below  when 
he  sues  for  as  much  as  or  more  than  our 
jurisdiction  requires  and  recovers  nothing. 
or  recovers  only  a  sum  which,  being  de- 
ducted from  the  amount  or  value  sued  for. 
leaves  a  sum  equal  to  or  more  than  our 
jurisdictional  limit,  for  which  he  failed 
to  get  a  judgment  or  decree.  Hilton  v. 
Dickinson,  108  U.  S.  165,  175,  27  L.  Ed. 
688. 

Where  the  plaintiff  in  the  court  below 
claims  $2,000  or  more,  and  the  ruling  of 
the  courts  is  for  a  less  sum,  he  is  entitled 
to  a  writ  of  error.  But  the  defendant  is 
not  entitled  to  such  writ  where  the  judg- 
ment against  him  is  for  a  less  sum  than 
$2,n00  at  t'"me  of  the  rendition  thereof. 
Knapp  V.  Banks,  2  How.  73,  11  L.  Ed. 
184. 


892 


APPEAL  AMJ  EKROR. 


cree  against  a  defendant,  who  pleads  no  counterclaim  or  set-off,  and  asks  no 
affirmative  relief,  is  brought  by  him  to  this  court  by  writ  of  error  or  appeal,  the 
amount  in  dispute  on  which  the  jurisdiction  depends  is  the  amount  of  the  judg- 
ment or  decree  which  is  sought  to  be  reversed. ^^     The  same  rule  is  applicable  to 


15.  Gordon  v.  Ogden,  3  Pet.  33,  7  L.  Ed. 
.592;  Oliver  v.  Alexander,  6  Pet.  143,  8 
L.  Ed.  349;  Knapp  v.  Banks,  2  How.  73,  11 
L.  Ed.  184;  Rich  v.  Lambert,  12  How.  347, 
13   L.   Ed.   1017;   Walker  v.  United   States, 

4  Wall.  163,  18  L.  Ed.  319;  Merrill  v. 
Petty,  16  Wall.  338,  21  L.  Ed.  499;  Troy 
V.  Evans,  97  U.  S.  1,  24  L.  Ed.  941;  Hil- 
ton V.  Dickinson,  108  U.  S.  165,  27  L.  Ed. 
688;    Bradstreet    Co.    v.    Higgins,    112    U. 

5  227,  28  L.  Ed.  715;  First  National  Bank 
V.  Redick,  110  U.  S.  224,  28  L.  Ed.  124; 
Henderson  v.  Wadsworth,  115  U.  S.  264, 
276,  29  L.  Ed.  377;  Smith  v.  Honey,  3  Pet. 
469,  7  L.  Ed.  744;  Thompson  v.  Butler, 
95  U.  S.  694,  695,  24  L.  Ed.  540;  United 
States  V.  84  Boxes  of  Sugar,  7  Pet.  453, 
458,  8  L.  Ed.  745;  Pacific  Express  Co. 
V.  Malin,  131  U.  S.  394,  33  L.  Ed.  204; 
Lamar  v.  Micou,  104  U.  S.  465,  26  L.  Ed. 
774. 

Prima  facie,  the  judgment  against  a  de- 
fendant in  an  action  for  money  is  the 
measure  of  our  jurisdiction  in  his  behalf. 
This  prima  facie  case  continues  until  the 
contrary  is  shown.  Troy  v.  Evans,  97  U. 
S.  1,  3,  24  L-  Ed.  941;  Gray  v.  Blanchard, 
97   U.    S.    564,   24   L.    Ed.    1108. 

The  rule  is  settled  that,  when  a  writ 
of  error  is  sued  out  from  this  court  by 
the  defendant  below,  and  no  question  is 
presented  growing  out  of  a  partial  defense 
to  the  action,  or  a  counterclaim  or  a  set- 
off, the  value  of  the  matter  in  dispute  is 
fixed  by  the  amount  of  the  judgment. 
Gordon  v.  Ogden,  3  Pet.  33,  7  L.  Ed.  593: 
Hilton  V.  Dickinson,  108  U.  S.  165,  27 
L.  Ed.  688;  Henderson  v.  Wadsworth,  115 
U.  S.  264,  276,  29  L.  Ed.  377;  New  York 
Elevated  R.  Co.  v.  Fifth  Nat.  Bank,  118 
U.    S.    608,    609,   30   L.    Ed.    259. 

Where  the  plaintiff  below  claims  more 
than  $2,000  in  his  declaration,  but  ob- 
tains a  judgment  for  a  less  sum,  it  was 
held,  that  a  writ  of  error  will  be  dismissed 
because  the  court  has  no  jurisdiction  of 
the  cause.  Gordon  v.  Ogden,  3  Pet.  33, 
7  L.  Ed.  592,  following  Wise  v.  Columbian 
Turnpike  Co.,  7  Cranch  276,  3  L.  Ed.  341, 
overruling  Wilson  v.  Daniel,  3  Dall.  401, 
1   L.   Ed.  655. 

\i  the  verdict  is  given  against  the  de- 
fendant for  a  less  sum  than  $2,000,  and 
judgment  is  rendered  against  him  accord- 
ingly, in  that  state  of  the  case  nothing 
is  in  controversy  between  him  and  the 
plaintiff,  if  the  plaintiff  acquiesces  in  the 
judgment,  beyond  the  sum  for  which  the 
judgment  is  given,  and  consequently  the 
defendant  is  not  entitled  to  any  writ  of 
error.  Knapp  v.  Banks,  2  How.  73,  11  L. 
Ed.  184;  Winston  v.  United  States,  3 
How.  771,  11  L.  Ed.  823;  Rogers  v.  St. 
Charles.  19  How.  108,  112,  15  L.  Ed.  563; 
Udall  V.  Steamship     Ohio,  17  How.  17,  15 


L.  Ed.  42;  Olney  v.  Steamship  Falcon,  17 
How.  19,  15  L.  Ed.  43;  Gruner  v.  United 
States,  11  How.  163,  13  L.  Ed.  647;  Brown 
V.  Shannon,  20  How.  55,  15  L.  Ed.  836; 
Oliver  v.  Alexander,  6  Pet.  143,  8  L.  Ed. 
349;  Spear  v.  Henry  Place,  11  How.  522, 
13  L.  Ed.  796;  Rich  v.  Lambert,  12  How. 
347,  13  L.  Ed.  1017;  Clifton  v.  Sheldon, 
23  How.  481,  16  L.  Ed.  429:  Sampson  v. 
Welsh,  24  How.  207,  16  L.  Ed.  632;  Sea- 
ver  V.  Bigelow,  5  Wall.  2('8,  18  L.  Ed.  595; 
Merrill  v.  Petty,  16  Wall.  338.  344,  21  L. 
Ed.    499. 

"The  rule  in  this  court  has  been  settled 
for  the  period  of  sixty  years,  that  where 
the  writ  of  error  is  brought  by  the  defend- 
ant in  the  original  action,  the  matter  in 
dispute  is  the  amount  of  the  judgment 
rendered  in  the  circuit  court,  as  this  caurt 
can  only  affirm  the  judgment  rendered  in 
that  court.  Gordon  v.  Odgen,  3  Pet.  33, 
34,  7  L.  Ed.  592:  Wise  v.  Columbian  Turn- 
pike Co.,  7  Cranch  276,  3  L.  Ed.  341.* 
ML-rrill  v.  Petty,  16  Wall.  338,  344,  21  t. 
Ed.    499. 

When  a  defendant  brought  a  case  here, 
the  judgment  or  decree  against  him  gov- 
erned our  jurisdiction,  unless  he  had  asked 
affirmative  relief,  which  was  denied;  and 
this  because  as  to  him  jurisdiction  de- 
pended on  the  matter  in  dispute  here.  If 
the  original  demand  against  him  was  for 
more  than  our  jurisdictional  limit,  and 
the  recovery  for  less,  the  record  would 
show  that  he  had  been  successful  below 
as  to  a  part  of  his  claim,  and  that  his 
object  in  bringing  the  case  here  was^not 
to  secure  what  he  had  already  got,  but  to 
get  more.  As  to  him,  therefore,  the 
established  rule  is  that,  unless  the  ad- 
ditional amount  asked  for  is  as  much 
as  our  jurisdiction  requires,  we  can- 
not review  the  case.  Hilton  v.  Dickinson, 
ir8  U.  S.  165,  174,  27  L.  Ed.  688,  citing 
Cook  V.  Woodrow,  5  Cranch  12,  3  L. 
Ed.    22. 

We  have  jurisdiction  of  a  writ  of  error 
or  appeal  by  a  defendant  when  the  recor- 
ery  against  him  is  as  much  in  amount  or 
value  as  is  required  to  bring  a  case  here, 
and  when,  having  pleaded  a  set-off  or 
counterclaim  for  enough  to  give  us  ju- 
risdiction, he  is  defeated  upon  his  plea 
altogether,  or  recovers  only  an  amount  or 
value  which,  being  deducted  from  his  claim 
as  pleaded,  leaves  enough  to  give  us  ju- 
risdiction, which  has  not  been  allowed. 
Hilton  V.  Dickinson,  108  U.  S.  165,  175, 
27    L.    Ed.    688. 

This  court  cannot  take  jurisdiction  of 
a  writ  of  error  sued  out  by  the  defen<lant 
below,  when  the  judgment  against  him 
upon  a  money  demand  is  for  only  $1,118, 
although  the  record  shows  that,  having 
pleaded  the  general  issue,  he  gave  notice 


AtFHAL  JXD  ERROR. 


893 


plaintiffs  in  replevin  suits,  where  the  defendant  gets  judgment  for  a  return 
of  property  taken  and  dehvered  under  the  writ,  or  its  vahie.  Thus,  where  in 
replevin  judgment  was  rendered  in  favor  of  the  plaintiff  for  a  portion  of  the 
property  delivered  under  the  writ,  and  in  favor  of  the  defendant  for  a  return  of 
the  residue,  or  its  value,  the  same  not  being  $5,000,  and  the  plaintiff'  sued  out 
a  writ  of  error  to  this  court,  the  writ  must  be  dismissed  for  want  of  jurisdic- 
tion, i*'  And  the  case  is  not  changed  by  the  fact  that  if,  under  an  appeal  which 
is  pending  in  another  suit,  it  shall  be  found  the  appellant  was  credited  in  this 
suit  with  an  amount  which  properly  belonged  to  that,  the  decree  in  that  suit  will 
be  reduced,  while  the  one  in  this  cannot  be  correspondingly  increased. ^'^ 

Amendment  of  Judgment  by  Defendant. — Where  a  judgment  as  origi- 
nally rendered  does  not  exceed  the  sum  or  value  of  five  thousand  dollars,  it  can- 
not be  amended  on  the  motion  of  the  defendant  by  the  addition  of  an  amount  not 
claimed  by  the  plaintiff,  so  as  to  bring  the  case  within  our  jurisdiction. ^^ 

Appeals  from  Intermediate  Courts.— Where  the  libelant  in  his  libel  de- 
manded $25,000  damages,  but  he  recovered  in  the  district  court  a  decree  for 
$500,  which,  upon  appeal  by  the  adverse  party,  the  libelant  riot  appearing,  was 
reversed  by  the  circuit  court,  and  the  libel  dismissed,  and  the  libelant  thereupon 
appealed  to  this  court  from  the  decree  of  the  circuit  court,  it  was  held,  that  the 
amount  in  controversy  in  the  circuit  court  and  here  being  but  $500,  the  ap- 
peal must  be  dismissed. ^^ 

j.  Amount  or  Kind  of  Money. — Our  jurisdiction  is  to  be  determined  by  the 
amount  of  money  to  be  paid   and  not  the  kind.^o 

k.  Value  of  Property  or  Right — (1  )  /;;  General. — Where  the  possession  or  en- 
joyment of  property  is  in  litigation,  the  value  of  the^propertv  of  which  the  de- 
fendant may  be  deprived  by  the  decree  sought  is  the  test  of  jurisdiction,  and  not 
the  claim  of  the  complainant, ^i  provided  the  title  of  so  much  land  as  is  necessary 


of  a  set-off  claiming  $10,000.  Gray  v. 
Blanchard,  97  U.  S.  564,  24  L.  Ed.  1108. 

Case  overruled. — The  decision  in  Wil- 
son V.  Daniel,  3  Dall.  401,  1  L.  Ed.  655, 
that  the  thing  demanded  and  not  the  thing 
found  constitutes  the  matter  in  dispute  be- 
tween the  parties,  was  overruled  in  Gor- 
don   V.    Ogden,    3    Pet.    33,    7    L.    Ed.    592. 

In  an  action  of  trover,  if  the  judg- 
ment below  be  in  favor  of  the  orig- 
inal defendant,  the  value  of  the  matter 
in  dispute  upon  the  writ  of  error  in  the 
supreme  court  of  the  United  States,  is 
the  sum  claimed  as  damages  in  the  dec- 
laration. Cook  i<.  Woodrow,  5  Cranch  12, 
3  L.  Ed.  22,  cited  in  Hilton  v.  Dickinson, 
108  U.  S.  169,  27  L.  Ed.  688. 

16.  Pierce  v.  Wade,  100  U.  S.  444,  445, 
25   L.    Ed.   735. 

17.  Lamar  v.  Micou,  104  U.  S.  465,  26  L. 
Ed.  774,  citing  Thompson  v.  Butler,  95  U. 
S.  694,  24  L.  Ed.  540;  Sampson  v.  Welsh, 
24   How.   207,   16   L.    Ed.   632. 

18.  Right  of  defendant  to  amend  judg- 
ment.— Northern  Pac.  R.  Co.  v  Booth, 
152    U.    S.    671,    38    L.    Ed.    591. 

19.  Appeals  from  intermediate  courts. 
— Where  the  libehmt  recovered  in  the 
district  court  a  decree  for  $500,  which, 
upon  appeal  by  the  adverse  party,  was  re- 
versed by  the  circu't  court  and  the  iibel 
dismissed,  and,  the  libelant  thereupon  ap- 
pealed to  this  court,  held,  that,  the 
amount  in  controversy  in  the  circuit  court 
and  here  beuig  but  $500,  the  apneal  must 
be   dismissed.      "As   the   matter   in    dispute 


here  is  that  which  was  in  dispute  in  the 
circuit  court,  it  follows  that  the  amount 
in  controversy  between  the  parties  in  the 
present  state  of  the  proceedings  is  not 
sufficient  to  g've  us  iuricd'ct'^-n.  <^-nrAr^x\ 
V.  Ogden,  3  Pet.  33,  34,  7  L.  Ed.  592; 
Smith  V.  Honey,  .'!  Pet.  469,  7  L.  Ed.  744; 
Walker  v.  United  States,  4  Wall.  163.  16-i. 
18  L.  Ed.  319."  The  D.  R.  Martin,  91  U. 
S.   365,   23    L.    Ed.    439. 

20.  Amount  or  kind  of  money — Thomp- 
son V.  Butler,  95  U.  S.  694,  697,  24  L.  Ed 
540.  * 

21.  In  general. — Tones  v.  Fritschle,  154 
U.  S.  590,  21  L.  Ed.  522;  Hunt  v.  New 
York  Cotton  Exchange,  205  U.  S.  322, 
337,  51  L.  Ed.  821;  United  States  v.  84 
Boxes  of  Sugar,  7  Pet.  453,  458,  8  L.  Ed 
745. 

Where  a  plaintiff  in  the  court  below 
filed  a  petition  for  the  recovery  from  the 
defendant  of  four  slaves,  whose  value 
lie  alleged  to  be  $2,700,  and  the  jury 
found  a  verdict  for  the  plaintiff  "for 
$1,200,  the  value  of  the  negro  slaves  in 
suit,"  and  the  plaintiff  thereupon  released 
the  judgment  for  $1,200,  and  the  court 
adjudged  that  he  recover  of  the  said  de- 
fendant the  said  slaves,  the  case  is  within 
the  appellate  jurisdiction  of  this  court. 
The  Dlaintiff  averred  in  hi'^  pet't'on,  that 
the  slaves  were  worth  $2,700,  and  by  hia 
releasing  the  judgment  for  $1,200,  the  only 
question  before  this  court  i«  the  ri^ht  to 
the  property.  And  as  the  def.'ndant  below 
prosecuted    the    appeal,    the    plaintiff   can- 


894 


APPEAL  A\U  ERROR. 


not  be  allowed  to  deny  here  the  truth 
of  his  own  averment  of  the  vabje  of  the 
property  in  dispute.  Bennett  v.  Butter- 
worth,  8   How.   124,   12   L.   Kd.   1013. 

Under  a  contract  for  land,  containing 
the  clause  that  in  case  the  vendee  fails 
to  perform  any  covenant  on  his  part,  the 
vendor  may  declare  the  contract  void, 
and  recover  by  distress  or  otherwise,  all 
the  interest  due  on  the  contract  as  rent: 
nn  failure  of  payment  of  the  first  install- 
ment, or  of  the  taxes,  or  to  insure,  as 
agreed,  the  vendor  may  recover  such  in- 
terest as  rent.  Although  the  rent  claimed 
was  not  of  the  value  of  $1,000,  yet  as  the 
title  to  land  valued  at  $8,000  was  in  dis- 
pute, this  court  has  jurisdiction.  Stinson 
v.  Dousman,  20  How.  461.  15  L.  Ed.  966, 
citing  Bennett  v.  Butterworth,  8  How. 
124,  12  L.  Ed.  101.3,  approved  in  Kirby 
V.  American  Soda  Fountain  Co.,  194  U.  S. 
141,   144,  48  L.   Ed.   911. 

The  matter  in  dispute  in  Richmond  v. 
Milwaukee,  21  How.  391,  16  L.  Ed.  72, 
was  the  title  "to  the  lots  which  have  been 
sold  by  the  municipal  authorities  for  the 
nonpayment  of  the  taxes.  The  taxes  as- 
sessed were  charged  upon  the  respective 
lots,  and  created  no  personal  re- 
sponsibility upon  the  owner,  the  lots 
alone  being  liable  for  the  payment. 
And  the  only  evidence  or  averment 
of  their  value  is  the  statement  of 
the  complainant  in  his  bill,  that  they 
were  worth  more  than  $500,  and  his  com- 
plaint that  more  than  two  hundred  per 
cent,  upon  their  value  as  mentioned  in 
the  books  of  the  corporation,  was  charged 
upon  them  by  the  assessment,  and  the 
proceedings  of  the  city  authorities  un- 
der it.  There  is  nothing  in  the  allega- 
tions of  the  parties,  or  in  the  evidence, 
to  show  that  the  value  of  the  lots  in  ques- 
tion exceeded  $:^000  nor  anything  from 
which    it    can    be    inferred." 

Where  the  plaintiff  in  error  brought 
suit  and  recovered  judgment  in  the  court 
below  for  certain  property,  but  the  judg- 
ment also  was  in  favor  of  the  defendant 
in  error  for  a  lien  of  $1508,  which  the 
plaintiff  in  error  was  adjudged  to  pay  be- 
fore it  could  obtain  its  property,  it  was 
held,  that  the  only  matter  in  dispute  be- 
tween the  parties  is  a  judgment  of  $1508, 
and  this  is  not  sufficient  in  amount  to 
give  such  jurisdiction.  The  case  is  not 
one  where  the  value  of  the  property  in 
controversy  shows  the  value  of  the  mat- 
ter in  dispute.  Pittsburg  Locomotive 
Works  V.  State  Nat.  Bank.  154  U.  S. 
626,  24  L.  Ed.  270,  distinguishing  Ben- 
nett V.  Butterworth,  8  How.  124,  128,  12 
L.    Ed.    1013. 

Where  a  bill  in  equity  is  filed  to  abate 
a  nuisance,  or  to  set  aside  a  deed,  or  for 
a  decree  giving  other  mandatory  or  pre- 
ventive relief,  it  is  the  value  of  the  prop- 
erty of  which  the  defendant  may  be  de- 
prived by  the  decree  sought  which  is  the 
test  of  jurisdiction,  and  not  the  claim  of 
tlu    complainant.      Railroad   Co.   v.   Ward, 


2  Black  485;  Market  Co.  v.  Hoffman,  101 
U.  S.  112,  25  L.  Ed.  782;  Estes  v.  Gunter, 
121    U.    S.    183,   30    L.    Ed.   884. 

A  proceeding  by  the  United  States  to 
compel  the  defendant  to  abate  a  wire 
fence,  by  which  he  was  alleged  to  have 
inclosed  a  large  tract  of  public  land,  be- 
longing to  the  United  States,  and  subject 
to  entry  as  agricultural  lands,  in  viola- 
tion of  the  act  of  February  25,  1885,  23 
Stat.  321,  c.  149,  to  prevent  the  unlawful 
occupancy  of  public  lands,  the  question 
at  issue  between  the  parties  being  whether 
the  defendant  had  color  of  title  to  the 
land  in  question,  does  not  involve  the  req- 
uisite jurisdictional  amount,  although  the 
property  in  controvers\'  exceeded  in  value 
the  sum  of  $5,000,  because  it  is  not  the 
value  of  the  property  in  dispute  in  this 
case  which  is  involved,  but  the  value  of 
the  color  of  title  to  property.  Cameron 
V.  United  States,  146  U.  S.  533,  36  L.  Ed. 
1077. 

This  is  an  appeal  from  a  decree  of  the 
circuit  court  of  the  United  States  for  the 
northern  district  of  California  in  a  proceed- 
ing under  the  act  of  congress  of  February 
25,  1885,  entitled  "An  act  to  prevent  unlaw- 
ful occupancy  of  the  public  lands,"  23  Stat. 
321,  c.  149,  whereby  appellant  was  di- 
rected to  remove  a  fence  and  enclosure 
from  certain  sections  of  land  therein  de- 
scribed, in  default  of  which  it  was  de- 
creed that  the  same  should  be  destroyed 
by  the  marshal  for  said  uistrict.  The 
value  of  the  fence  was  claimed  to  exceed 
$5,000;  but  the  fence  was  not  the  matter 
in  dispute,  nor  was  the  appellant  deprived 
thereof.  For  want  of  the  iurisdictional 
amount,  Cameron  v.  United  States,  146  U. 
S.  533.  36  L.  Ed.  1077,  the  appeal  must  be 
dismissed.  Abadie  v.  United  States,  149 
U.   S.  261,  262,   37  L.   Ed.  726. 

Bill  to  redeem  land. — Where  a  bill  in 
equity  is  filed  by  an  owner  of  land  which 
is  worth  more  than  $5,000,  to  set  aside 
and  cancel,  as  creating  a  cloud  upon  his 
title,  a  tax  deed,  and  a  certificate  of  tax 
sale  procured  by  the  other  defendants, 
and  the  defendant  in  his  answer,  offers  to 
waive  his  claim  of  title  to  the  land  and 
reconvey  it  to  the  plaintiff,  if  the  plaintiff 
would  pay  him  the  sums  paid  by  him, 
with  penalties  accrued  thereon  and  ten 
per  cent  interest,  and  the  circuit  court 
holds  that  the  sums  which  the  plaintiff  was 
in  equity  bound  to  pay  the  defendants 
amounted  to  less  than  $5,000,  and  entered 
a  final  decree  in  favor  of  the  defendants 
from  which  they  appealed,  the  amount  in 
controversy  is  insufficient  to  support  the 
appellate  jurisdiction  of  this  court,  and 
the  appeal  must  be  dismissed.  "Upon  the 
admissions  of  the  answers,  and  upon  the 
claims  made  by  the  defendants  in  the 
circuit  court,  and  renewed  in  this  court, 
it  clearly  appears  that  the  plaintiff's  title 
to  the  land  was  not  really  contested,  but 
that  the  only  matter  in  controversy  was 
the  amount  of  money  which  the  plaintiff 
was  equitably  bound  to  pay  to  the  defend- 


APPEAL  AXD  ERROR. 


895 


to  give  this  cciirt  jurisdiction,  is  actually  in  issue. 22  Where  the  controversy  re- 
lates only  to  certain  land,  the  value  of  which,  as  stated  in  the  pleading,  is  less 
than  the  jurisdictional  amount,  and  the  statement  is  confirmed  by  the  evidence, 
the  appeal  must  be  dismissed.--^  If,  however,  when  the  case  gets  to  this  court, 
the  property  is  no  longer  in  dispute,  but  the  sole  question  is  as  to  liens  and  en- 
cumbrances on  tlie  property,  and  these  are  below  the  iuri^dictior.al  cirnounT.  v/« 
have  no  jurisdiction.-"*  It  is  also  a  rule  that  jurisdiction  is  to  be  tested  by  the 
value  ot  the  object  to  be  gained  by  the  bill.^^ 

(2)  Removal  of  Trustees. — In  accordance  with  the  general  law  that  the  value 
of  the  specific  property  which  is  in  litigation  must  determine  the  jurisdiction  of 
this  court,  it  was  held,  that  upon  an  appeal  froiri  an  order  removing  the  trustee, 
his  right  of  commissions  as  trustee  does  not  constitute  the  whole  matter  in  dis- 
pute, but  that  it  involves  his  ownership  and  control  of  the  trust  estate  for  the  ob- 
jects expressed  in  the  will,  and  therefore  the  value  of  the  estate  is  the  value  of 
the  matter  in  dispute  for  the  purpose  of  an  appeal  by  him.-^ 

(3)  Nuisances. — \Miere  a  bill  in  equity  is  filed  to  abate  a  nuisance,  the  juris- 
diction is  tested  by  the  value  of  the  object  to  be  gained  by  the  bill,  and  that  ob- 
ject is  the  removal  of  the  nuisance.  And  the  want  of  a  sufficient  amount  of  dam- 
age having  been  sustained  to  give  the  federal  courts  jurisdiction,  will  not  de- 
feat the  remedy. 2" 


ants,  and  that  the  difference  between  the 
sum  which  the  circuit  court  held  him  to 
pay  and  the  highest  sum  claimed  by  the 
defendants  was  less  than  $.5,000."  Carne 
V.  Russ,  152  U.  S.  250,  251,  38  L.  Ed.  428, 
citing  Act  of  February  16,  1875,  c.  77,  § 
3;  18  Stat.  316;  Peyton  v.  Robertson,  9 
Wheat.  527,  6  L.  Ed.  151,  Farmers'  Bank 
V.  Hooff,  7  Pet.  168,  8  L.  Ed.  646,  Ross  v. 
Prentiss,  3  How.  771,  11  L.  Ed.  824;  Tints- 
man  V.  National  Bank,  100  U.  S.  6,  25  L. 
Ed.  .-,:!0. 

In  an  action  of  trespass  two  counts 
(juare  clausum  fregit  arc  joined  with  one 
de  bonis  asportatis,  the  plea  is  not  guilty, 
and  no  other  issue  is  raised  bj^  the  plead- 
ings. The  court  said  obiter  that  had  the 
<lefendant  pleaded  title  to  the  land,  and 
issue  had  been  joined  on  that  plea,  the 
land  might  have  been  the  matter  for  ad- 
judication, and  thus  the  matter  in  dis- 
pute on  the  record.  But  where  neither 
party  sets  up  title,  and  it  does  not  appear 
by  the  record  that  the  title  is  involved, 
the  amount  of  the  judgment  for  damages 
is  the  matter  in  dispute.  New  Jersev 
Zinc  Co.  V.  Trotter,  108  U.  S.  564,  27  L. 
Ed.    828. 

22.  Carne  v.  Russ,  152  U.  S.  250,  38  L. 
Ed.    428. 

In  Reynolds  v.  Burns,  141  U.  S.  117, 
35  L.  Ed.  648,  the  facts  were  that  the 
grantor  had,  land  re-entered  for  condition 
broken,  the  annuity  charged  thereon  be- 
ing $1,300  in  arrear,  and  sold  the  same  to 
the  plaintiff  for  less  than  that  amount. 
The  prior  grantee  obtained  judgment  in 
ejectment'  against  the  plaintiffs,  and  was 
sued  to  enjoin  enforcement  of  the  judg- 
ment, the  only  allegation  of  their  bill  be- 
ing that  the  whole  estate  was  "not  worth 
$6,000,"  though  how  much  less  it  was 
worth  was  not  stated.  It  further  appeared 
that  the  plaintiffs'  deeds  did  not  cover  the 
•whole  of  such  estate,  and  that  the  amount 


due  and  unpaid  upon  the  annuity  at  the 
time  these  sales  were  made  is  about 
$1_,300.  Held,  the  appeal  must  be  dis- 
missed for  want  of  jurisdictioii. 

In  ejectment,  the  matter  in  dispute  is 
the  value  of  the  property  as  set  forth  in 
the  declaration.  Old  Grant  z-.  M'Kee,  1  Pet. 
248.  7  L.  Ed.  131;  Green  v.  Liter,  8  Cranch 
229,  242.  3  L.  Ed.  545;  Vicksburg.  etc.,  R. 
Co.  V.   Smith,   135  U.   S.   195,  34  L.   Ed.   95. 

Amount  actually  in  dispute  controls. — 
The  court  will  not  take  jurisdiction  of  a 
case  where,  although  the  whole  property 
claimed  by  the  lessor  of  the  plaintiff  in 
error  under  a  patent,  and  which  was  re- 
covered in  ejectment,  exceeded  two  thou- 
sand dollars;  the  title  to  a  lot  of  ground, 
part  of  the  whole  tract,  which  was  of 
less  value  than  five  hundred  dollars,  was 
only  involved  in  the  case  before  the  court. 
Old  Grant  v.  M'Kee,  1  Pet.  248,  7  L  Ed 
131. 

23.  Jones  v.  Fritschle,  154  U.  S.  590,  21 
L.    Ed.    552. 

24.  Where  the  only  matter  in  dispute 
between  the  parties  is  a  judgment  of 
$1,508,  recovered  against  the  plaintiff  in 
error  and  the  surety  upon  a  delivery  bond, 
this  is  not  sufficient  in  amount  to  give 
this  court  jurisdiction.  Pittsburg  Loco- 
motive Works  <'.  State  Nat.  Bank,  154 
U.  S.  626,  24  L.  Ed.  270,  distinguishing 
Bennett  v.  Butterworth,  8  How.  124,  128, 
12  L.  Ed.  1013,  on  the  ground  that  that 
case  was  one  where  the  value  of  the  prop- 
erty in  controversy  showed  the  value  of 
the    matter    in    dispute. 

25.  Hunt  V.  New  York  Cotton  Ex- 
change, 205  U.  S.  322,  51  L.  Ed.  821,  cit- 
ing Mississippi,  etc.,  R.  Co.  v.  Ward,  2 
Black   485,    17    L.    Ed.    311. 

26.  Removal  of  trustees. — Keneday  v. 
Edwards,   134  U.   S.   117,  33   L.   Ed.   853. 

27.  Nuisances. — Mississippi,  etc.,  R.  Co. 
V.  Ward,  2  Black  485,  17  L.  Ed.  -^h;  Hunt 


896 


AFFEAL  AA'D  ERROR. 


(4)  ///  Suits  for  Partitwii. — In  a  suit  for  partition,  the  value  of  the  matter  in 
dispute  is  the  value  of  the  undivided  interest,  and  not  the  value  of  the  entire 
tract  to  be  partitioned. ^^ 

(5)  In  Suits  to  Restrain  Levy  and  CoUe<riion  of  Tax. — In  a  bill  in  equity  to 
restrain  the  collection  of  a  specific  tax  levied  utider  a  general  and  continuing  law, 
the  matter  in  dispute  in  its  relation  to  jurisdiction  is  the  particular  taxes  attacked, 
and  unaccrued  or  unspecified  taxes  cannot  be  included,  upon  conjecture,  to 
make  up  the  requisite  amount. ^^  On  the  other  hand,  in  a  suit  brought  by  several 
taxpayers  in  behalf  of  themselves  and  all  other  taxpayers  of  a  county  to  restrain 
the  levy  of  a  tax,  for  a  particular  year,  to  pay  the  interest  on  a  series  of  bonds 
the  validity  of  which  was  the  main  question  at  issue,  it  was  held,  that  the  amount 
in  dispute  was  the  value  of  the  bonds,  and  not  the  amount  of  the  particular  tax 
to  be  levied.^^  In  a  suit  in  equity  by  a  taxpayer  -to  enjoin  and  restrain  the  issue, 
sale,  delivery,  pledge,  or  other  disposition  of  a  certain  issue  of  bonds  by  a  mu- 
nicipality, the  amount  of  the  interest  of  tlie  com])lair.ant,  and  not  the  entire  issue 
©f  bonds,  is  the  amount  in  controversy.^^ 

(6)  Funds  and  Deposits  in  Court. — The  matter  in  dispute  is  not  the  whole 
amount  of  the  fund  in  court  but  only  so  much  as  is  distributable  to  the  com- 
plainants.^^ 

(7)  In  Detinue  and  Replei'in. — The  value  of  property  sued  for  is  not  always 


V.  New  York  Cotton   Exchange,  205  U.  S. 
322,   51   L.    Ed.   821. 

28.  In  suits  for  partition. — Pnrker  v. 
Morrill,   106    U.    S.    1,   27    L.    Ed.   72. 

Where  a  suit  wa.s  brought  to  recover 
one-two  hundred  and  fortieth  part  of  cer- 
tain lands,  and  for  a  partition  so  as  to 
set  off  to  the  appellant  in  severalty  that 
interest,  the  matter  in  dispute  is  only  the 
value  of  one-two  hundred  and  fortieth 
part  of  the  whole  property,  and  not  the 
value  of  the  property  sought  to  be  par- 
titioned. McCarthy  i'.  Provost,  103  U.  S. 
673,   26   L.    Ed.   337. 

Where  there  is  a  motion  to  dismiss  an 
appeal  in  a  partition  suit  because  the  value 
of  the  matter  in  dispute  does  not  e.xceed 
$5,000,  and  the  appellees,  complainants  be- 
low, claim  to  be  the  owners  each  of 
one-eighth  of  the  property  to  be  divided, 
which  it  is  admitted  is  worth  only  $10,000. 
and  in  the  petition  it  is  alleged  that  the 
value  of  the  annual  income  is  $5,000,  the 
motion  to  dismiss  will  be  granted.  As 
the  appellant  to  sustain  his  appeal  must 
show  affirmatively  that  more  in  pecun- 
iary value  than  our  jurisdictional  require- 
xnent  has  been  adjudged  against  him,  he 
has  failed  to  make  a  case  for  us  to  con- 
sider. Green  v.  Fisk,  103  U.  S.  518,  26 
L.    Ed.    486. 

29.  In  suits  to  restrain  levy  and  collec- 
.tion  of  tax. — Washington,  etc.,  R.  Co.  z'. 
District  of  Columbia,  146  U.  S.  227,  36  L. 
Ed.     951. 

30.  Brown  v.  Trousdale,  138  U.  S.  389, 
34   L.   Ed.   987. 

31.  Colvin  V.  Jacksonville,  158  U.  S.  456, 
39  L.  Ed.  1053,  citing  El  Paso  Water  Co. 
v.  El  Paso,  152  U.  S.  157,  38  L.  Ed.  396, 
and  distinguishing  Brown  ?■.  Trousdale, 
138  U.  S.  389,  34  L.  Ed.  987;  Merritt  v. 
V.  Bowdoin  College,  167  U.  S.  745,  42  L. 
Ed.    1209. 

Ip.   El   Paso   Water   Co.  v.   El   Paso,   152 


U.  S.  157.  159.  38  L.  Ed.  396,  which  was 
a  bill  filed  by  the  water  company  against 
the  city  of  El  Pa^o  for  an  injunction,  it 
was  alleged,  among  other  things,  that  if 
certain  bonds  were  issued,  the  complain- 
ant would  be  compelled  to  pay  taxes  on 
its  property  for  the  interest  on  the  bonds 
and  to  provide  a  sinking  fund  for  the 
principal  thereof,  but  the  amount  of  the 
tax  that  would  be  thereby  cast  upon  com- 
plainant's property  was  not  disclosed,  and 
we  said  upon  the  question  whether  there 
was  a  sufficient  amount  in  controversy  to 
give  this  court  jurisdiction:  "The  bill 
is  filed  by  the  plaintiff  to  protect  its  in- 
dividual interest,  and  to  prevent  damage 
to  itself.  It  must,  therefore,  affirmatively 
appear  that  the  acts  charged  against  the 
city,  and  sought  to  be  enjoined,  would 
result  in  its  damage  to  an  amount  in  ex- 
cess of  $5,000.  So  far  as  it  respects  the 
matter  of  taxes  which,  by  the  issue  of 
bonds,  would  be  cast  upon  the  property 
of  the  plaintiff,  it  is  enough  to  say  that 
the  amount  thereof  is  not  stated,  nor  any 
facts  given  from  which  it  can  be  fairly 
inferred."  Colvin  7'.  Jacksonville,  158  U. 
S.  456.  460.  39  L.  Ed.  1053,  re-affirmed  ia 
Merritt  v.  Bowdoin  College,  167  U.  S. 
745,    42    L.    Ed.    1209. 

32.  Funds  and  deposits  in  court. — In  » 
suit  by  its  creditors  against  an  insoJvprtt 
bank,  which  had  made  an  assignment  for 
their  benefit,  claims  amounting  to 
$440,000,  including  a  decree  in  favor  of  A.. 
for  $33,297,  and  judgments  in  favor  of  B. 
for  $88,000,  were  proved  and  allowed. 
There  was  realized  under  the  assignment 
$30,000,  the  pro  rata  distribution  of  which 
was  decreed  by  the  court.  A.  filed  an 
exception  to  the  allowance  of  B.'s  claim, 
which  was  overruled;  whereupon  he,  by 
leave  of  the  court,  took  a  separate  ap- 
peal, "without  joining  any  party  to  the 
record    with    him    as    appellant,"    or    any 


AFFBAL  AND  HKKOR. 


897 


:he  matter  in  dispute.     In  replevin,  for  instance,  if  the  action  is  brought  as  a 
.neans  of  trying  the  thle  to  property,  the  value  of  the  property  replevied  is  the 

natter  hi  dispute;  but  if  the  replevin  is  of  property  distrained  for  rent,  the  amount 
for  which  avowry  is  made  is  the  real  matter  in  dispute,  and  the  limit  of  juris- 

iiction.3^ 

(8)  Right  of  Possession  of  Property. — In  General.— Where  the  matter  in 
dispute  is  the  right  of  possession  of  real  property,  and  the  record  shows  that  the 
value  of  the  right  of  possession  reaches  our  jurisdictional  amount,  this  court  has 
jurisdiction.=54  Although  the  naked  legal  title  to  a  homestead  remains  with  the 
United  States  in  trust  for  the  person  who  may  own  it,  yet  in  determining  the 
value  of  the  matter  in  dispute,  where  a  defendant  claims  to  have  acquired  by 
his  entry  and  settlement  a  vested  interest  in  the  entire  land  held  by  his  entry,  this 
court  should  look  at  the  value  of  the  land,  and  not  simply  at  the  value  of  the  right 
of  present  possession.^^ 

But  this  court  has  no  jurisdiction  to  review  the  decision  of  a  territorial  su- 


■party  as  defendant  except  B.  Held,  that 
the  amount  in  dispute  here  is  the  interest 
of  A.  in  that  portion  of  the  $30,C00  pay- 
able by  the  decree  to  B.,  which  the  for- 
mer would  have  received  had  his  exception 
been  sustained,  and  the  amount  decreed 
the  latter  been  distributed  pro  rata 
among  all  the  creditors.  As  that  interest 
is  less  than  $2,000,  this  court  has  no  ju- 
risdiction. Terry  v.  Hatch,  93  U.  S.  44, 
23  L.  Ed.  79G,  cited  and  approved  in  Chat- 
field  V.  Boyle,  105  U.  S.  231,  26  L.  Ed.  944. 

Where  the  litigation  below  involved 
in  the  appeal  was  between  the  plaintiflf 
and  the  insurance  company,  as  to  the 
ownership  of  a  fund  in  court  for  distri- 
lynticn  amounting  to  $1411.44,  and  each 
oi  the  parties  claimed  the  whole,  but  the 
court  divided  it  between  them,  giving  the 
plaintiflf  $729.16.  and  the  insurance  com- 
pany $682.29,  and  the  plaintiff  appeals  but 
the  insurance  company  is  satisfied,  it  is 
clear  that  the  value  of  the  matter  in  dis- 
pute is  only  $6S2.29.  Keogh  v.  Orient 
Fire  Ins.  Co.,  154  U.  S.  639,  24  L.  Ed.  ■ 
55S. 

In  a  suit  for  the  foreclosure  of  a  mort- 
gage upon  a  railroad  company,  which 
mortgage  was  given  to  tlie  plaintififs,  as 
trustees  to  secure  5500  bonds,  of  $1,000 
each  issued  by  the  company,  and  pay- 
able to  the  plaintiffs  or  bearer,  a  motion 
was  made  to  dismiss  the  appeal  on  the 
ground  that  this  court  had  no  jurisdic- 
tion of  it  because  the  amount  involved 
was  not  more  than  '$5,000.  The  ground 
argued  was  that  the  amount  involved, 
so  far  as  the  appeal  by  Richardson  and 
Day  was  concerned,  was  only  $2,173, 
which  was  the  amount  Day,  as  assignee 
of  Richardson,  was  directed  to  pay  into 
court  as  having  been  overpaid  on  his 
claim.  But  it  appeared  by  the  master's 
repprt  that  he  disallowed  the  claim  of 
Richardson  as  pledgee  or  purchaser  for 
400  bonds  other  than  the  200  bonds  the 
claim  to  which  was  allowed  to  Richard- 
son. Therefore  the  amount  of  money  in- 
volved in  the  claim  of  Richardson  and 
Day   to   these    400   bonds    largely    exceeds 

1  U  S  Enc— 57 


the  sum  of  $5,000,  and  the  motion  to  dis- 
miss will  be  denied.  Richardson  v.  Green, 
130    U.    S.    104,    32    L.    Ed.    872. 

33.  In  detinue  and  replevin. — Peyton  v. 
Robertson,  9  Wiieat.  527,  6  L.  Ed.  151; 
Gibson  v.  Shufeldt,  122  U.  S.  27,  29.  30 
L.    Ed.   1083. 

In  replevin,  if  it  be  of  goods  distrained 
for  rent,  the  amount  for  which  avowry 
is  made  is  the  value  of  the  matter  in 
controversy;  but  if  the  writ  be  issued  to 
try  the  title  to  property,  it  is  in  the  na- 
ture or  detinue,  and  the  value  of  the  ar- 
ticle replevied  is  the  value  of  the  matter 
in  controversy,  so  as  to  give  jurisdic- 
tion to  this  court  upon  a  writ  of  error. 
Peyton  v.  Robertson.  9  Wheat.  527,  6  L. 
Ed.  151. 

34.  Right   of   possession   of   property. — 

Willis  V.  Eastern  Trust,  etc.,  Co.,  167  U. 
S.  76,  42  L.   Ed.   83. 

The  petition  for  the  writ  of  certiorari 
to  a  justice  of  the  peace  alleges,  upon 
the  oath  of  the  petitioner,  that  he  is  in 
the  possession  of  the  premises  under  a 
lease  having  nearly  a  year  to  run,  with 
a  privilege  of  extension  for  four  years 
more;  and  that  he  has  expended  $15,000 
in  permanent  improvements  upon  the 
leased  property,  of  which  he  will  be  de- 
prived, if  the  judgment  of  the  justice  of 
the  peace,  which  he  alleges  to  be  void 
for  want  of  jurisdiction,  is  not  set  aside 
by  writ  of  certiorari.  The  reasonable  in- 
ference from  this  is.  that  the  possession 
of  the  premises,  with  the  right  to  use 
these  improvements,  throughout  the 
lease  and  the  extension  thereof,  would 
be  worth  more  than  $5,000,  showing  th:*" 
the  matter  in  dispute  is  of  sufficient  pe- 
cuniary value  to  support  the  jurisdiction 
of  this  court,  under  the  act  of  March  3, 
1885,  c.  355.  23  Stat.  443.  Harris  v.  Bar- 
ber, 129  U.  S.  366.  369,  32  L.  Ed.  697.  dis- 
tinguished in  Willis  v.  Eastern  Trust, 
etc.,  Co.,  167  U.  S.  76,  80.  42  L.  Ed.  83. 

35.  Possession  of  land  claimed  as  home- 
stead.—P.ln'-k  V.  Jackson,  177  U.  S.  349, 
44   L.   Ed.   801. 


898 


APPEAL  AND  ERROR. 


]^reme  court,  afifirming  a  decree  in  an  action  of  forcible  entry  and  detainer,  wherv 
ir   is  clear   that   the  value  of  possession   does  not  exceed  $5,000.-^" 

Relinquishment  of  Homestead  Entry. — Where  one  has  made  a  homestea  i 
or  pre-emption  entry,  but  has  filed  in  the  land  office  a  relinquishment  of  all  rights 
obtained  thereby,  since  the  relinquishment  operates  only  against  the  party  making 
the  .relinquishment  and  does  not  destroy  any  adverse  rights  of  which  there  is  in 
the  land  office  an  existing  record,  but  simply  substitutes  one  party  for  another 
in  any  legal  proceedings  which  he  may  thereafter  institute  to  assert  his  rights,  it 
is  clear  that  the  value  of  a  relinquishment  cannot  be  greater  than  that  of  the  land 
itself,  in  spite  of  affidavits  by  witnesses  to  the  contrary.-^' 

(9)  Interference  znth  Exclusive  Prwilcges. — In  an  action  by  a  corporation  to 
which  a  city  has  granted  an  exclusive  privilege,  to  prevent  the  municipality  from 
interfering  with  such  exclusive  right,  this  court  has  no  jurisdiction,  unless  it  af- 
firmatively appears  from  the  record  that  the  acts  charged  against  the  city,  and 
sought  to  be  enjoined,  would  result  in  its  damage  to  an  amount  in  excess  of 
$5,000.^^  But  in  a  suit  by  an  exchange  to  enjoin  a  third  person  from  receiving 
and  using  the  quotations  of  sales  made  upon  the  exchange,  the  amount  in  con- 
troversy is  not  merely  the  rate  paid  by  the  appellant  to  the  telegraph  company 
from  which  he  received  the  quotations,  but  is  the  right  to  keep  the  control  6{ 
the  quotations  by  the  exchange  and  its  protection  from  the  competition  of  bucket 
shops  or  the  identity  of  its  business  with  that  of  bucket  shops,  and  its  value  de- 
termines our  jurisdiction,  not  the  rate  paid  by  the  appellant  to  the  telegraph  com- 
pany.^ ^ 

(10)  Proof  of  J'alue. — Admissions  by  the  plaintiff  in  his  pleadings  as  to  the 
value  of  the  propcrt}-.  are  binding  on  him  where  the  defendant  below  prosecutes 
the  appeal.""' 

1.  Amount  of  Debt. — When  the  object  of  a  suit  is  to  apply  property  worth 
more,  to  the  payment  of  a  debt  for  less,  than  the  jurisdictional  amount,  it  is  the 
amount  of  the  debt,  and  not  the  value  of  the  property,  that  determines  the  ju- 
risdiction of  this  court.  This  is  well  illustrated  by  two  cases,  in  one  of  which 
the  appeal  was  taken  by  the  creditor,  and  in  the  other  by  a  mortgagee  of  the 


36.  McChing  r.  Penny,  189  U.  S.  143, 
47    L.    Ed.    751^ 

37.  McClung  v.  Penny,  189  U.  S.  143. 
47   L.   Ed.   751. 

38.  Interference  with  exclusive  privi- 
leges.— El  Paso  Water  Co.  v.  El  Paso, 
ln2    U.    S.    157,   38   L.    Ed.   396. 

39.  Hunt  V.  New  York  Cotton  Ex- 
change,  205   U.    S.   322,   51    L.    Ed.   821. 

40.  Proof  of  value. — Where  a  plaintiff 
in  the  court  below  filed  a  petition  for  the 
recovery  from  the  defendant  of  four 
slaves,  whose  value  he  alleged  to  be 
$2,700,  and  the  jury  found  a  verdict  for 
the  plaintiff  "for  $1,200,  the  value  the 
negro  slaves  in  suit,"  and  the  plaintiff 
thereupon  released  the  judgment  for 
$1,200,  and  the  court  adjudged  that  he  re- 
cover of  the  said  defendant  the  said 
sfaves,  the  case  is  within  the  appellate 
jurisdiction  of  this  court.  The  plaintiff 
averred  in  his  petition,  that  the  slaves 
were  worth  $2,700,  and  by  his  releasing 
the  judgment  for  $1,200.  the  only  ques- 
tion before  this  court  is  the  right  to  the 
property.  And  as  the  defendant  below 
prosecuted  the  appeal,  the  plaintiff  can- 
not be  allowed  to  deny  here  the  truth  of 
his   own   averment   of   the    value     of     the 


property    in   dispute.      Bennett    v.    Butter- 
worth,  8  How.  124,  12  L.  Ed.  1013,  1014. 

Court  bound  by  complainants  allegation 
of  value. — Where  a  person  entered  land 
according  to  law.  but  omitted  to  obtain  a 
patent  for  it.  and  another  person  after- 
wards obtained  a  patent  from  the  United 
States  by  proceeding  as  if  it  were  vacant 
land,  knowing  at  the  same  time  that  it 
was  not  vacant,  the  patent  thus  obtained 
will  be  set  aside.  Nor  is  it  sufficient  ob- 
jection to  a  decree,  that  the  process  was 
by  an  information  in  the  nature  of  a  bfll 
in  chancery,  filed  by  the  attorney  for  the 
United  States.  A  simple  bill  in  equity 
would  have  been  better,  but  this  process 
being  so  in  substance,  the  case  will  not 
be  dismissed  for  want  of  form.  An  in- 
dividual owner  of  land  would,  in  such  a 
case,  be  entitled  to  the  relief  of  having 
the  patent  set  as'de;  and  the  United 
States,  as  a  landholder,  must  be  entitled 
to  the  same.  The  deeds  of  conveyance 
filed  as  exhibits  show  the  property  to  have 
been  sold  for  two  thousand  dollars,  and 
that  it  was  afterwards  converted  into_  n 
sugar  estate.  This  is  sufficient  to  main- 
tT'in  the  jrri;:dicticn  of  this  court.  Un't'-'l 
States  V.  Hughes,  11  How.  552,  13  L.  Ed. 
809. 


APPEAL  AXD  ERROR. 


899 


■.Xjroperty.** 

m.  Determination  as  of  What  Time. — In  General. — The  amount  in  contro- 
versy is  to  be  decided  by  the  sum  in  controversy  at  tlie  time  of  the  judgment,  and 
not  by  any  subsequent  additions  thereto,  such  as  interest.  The  distinction  con- 
stantly maintained  is  this :  Where  the  plaintiff  sues  for  an  amount  exceeding  the 
jurisdictional  amount,  and  the  ad  damnum  exceeds  that  amount,  if  by  reason  of 
any  erroneous  ruling  of  the  court  below,  the  plaintiff  recovers  nothing,  or  less 
than  the  amount,  there,  die  sum  claimed  by  the  plaintiff  is  the  sum  in  controversy 
for  which  a  writ  of  error  will  lie.  But  if  a  verdict  is  given  against  the  defend- 
ant, for  a  less  sum  than  the  amount,  and  judgment  passes  against  him  accord- 
ingly, there  it  is  obvious  that  there  is,  on  the  part  of  the  defendant,  nothing  in 
controversy  beyond  the  sum  for  which  the  judgment  is  given;  and  consequently 
he  is  not  entitled  to  any  writ  of  error.  We  cannot  look  beyond  the  time  of  the 
judgment  in  order  to  ascertain  whether  the  writ  of  error  lies  or  not."*^ 

Amount  to  Be  Determined  as  of  Time  of  Prayer  for  Appeal. — A  case 
must  stand  before  this  court  on  the  appeal  with  respect  to  the  amount  in  con- 
troversy, as  it  stood  before  the  court  below  at  the  same  time  the  appeal  was  prayed. 
No  >id)sequent  action  of  the  court,  such  as  a  sale  of  the  property,  can  affect  the 
question.*-^ 

n.  Subsequent  Change  in  lvalue  of  Subject  of  Controversy. — When  the  sum 
in  c<:)ntroversy  is  large  enough  to  give  the  court  jurisdiction  of  a  case,  such  ju- 
risdiction once  properly  obtained  is  not  taken  away  by  a  subsequent  change  in  the 
value  of  the  subject  of  controversy .*'*  The  expression,  sum  or  value  of  the  mat- 
ter in  dispute,  has  reference  to  the  date  of  the  decree  below,  alike  in  cases  of  ap- 
peals in  equity,  and  writs  of  error  at  law ;  they  are  each  grounded  on  the  original 
process  of  this  court,  operating  on  the  final  decree  or  judgment,  and  are  limited 


41.  Amount  of  debt. — Gibson  v.  Shu- 
fcldt,   122  U.  S.  27.  29,  30  L.  Ed.  1083. 

In  Farmers'  Bank  v.  Hoofif.  7  Pet.  168, 
8  L.  Ed.  646,  this  court  dismissed  an  ap- 
peal from  a  decree  of  the  circuit  court 
for  the  District  of  Columbia,  dismissing 
a  bill  to  have  land,  worth  more  than 
$1,000,  sold  for  the  paj^ment  of  a  debt  of 
less  than  $1,000.  which  was  the  limit  of 
jurisdiction.  Chief  Justice  Marshall  say- 
ing: "The  real  matter  in  controversy  is 
the  debt  claimed  in  the  bill;  and  though 
the  title  of  the  lot  maj-  be  inquired  into 
incidentally,  it  does  not  constitute  the  ob- 
ject  of   the   suit." 

In  Ross  V.  Prentiss.  3  How.  771,  11  L. 
Ed.  H34.  land  worth  more,  and  mortgaged 
for  more,  than  $2,000.  was  about  to  be 
sold  on  execution  for  a  debt  of  a  less 
.sum.  and  a  bill  by  the  mortgagee  to  stay 
the  sale  was  dismissed.  He  appealed  to 
this  court,  and  insisted  that  its  jurisdic- 
tion depended  on  the  value  of  the  property 
and  the  amount  of  his  interest  therein,  and 
that  he  might  lose  the  whole  benefit  of 
his  mortgage  by  a  forced  sale  on  execu- 
tion. 'But  the  appeal  was  dismissed. 
Chief  Justice  Taney  saying:  "The  only 
matter  in  controversy  between  the  par- 
ties is  the  amount  claimed  on  the  execu- 
tion. The  dispute  is  whether  the  prop- 
erty in  question  is  liable  to,  be  charged 
with  it  or  not.  The  jurisdiction  does  not 
depend  on  the  amount  of  any  contingent 
loss  or  damage  which  one  of  the  parties 
may  sustain  by  a  decision  against  him, 
h\xt   upon   the   amount   in   dispute   between 


them;  and  as  that  amount  is  in  this  case 
below  two  thousand  dollars,  the  appeal 
must    be    dismissed." 

42.  Determination  as  of  what  time.^ — 
Knapp  V.  Banks.  2  How.  73.  11  L.  Ed. 
184. 

43.  The  claimants  of  eighty-four  boxes 
of  sugar,  seized  in  the  port  of  New  Or- 
leans for  an  alleged  breach  of  the  reve- 
nue laws,  and  condemned  as  forfeited  to 
the  United  States  for  having  been  en- 
tered as  brown  instead  of  white  sugar, 
claimed  an  appeal  from  the  district  court 
of  the  United  States  to  the  supreme  court. 
The  sugars,  while  under  seizure,  were  ap- 
praised at  two  thousand,  six  hundred  and 
two  dollars  and  fifty-one  cents;  and  after 
condemnation  they  were  sold  for  two 
thousand,  three  hundred  and  thirty-eight 
dollars  and  forty-eight  cents;  leaving, 
after  deducting  the  expenses  and  costs  of 
sale,  the  sum  of  two  thousand,  one  hun- 
dred and  fifty  dollars  and  six  cents.  The 
duties  on  the  sugars,  considering  them  as 
white  or  brown,  being  deducted  from  the 
amount,  reduced  the  net  proceeds  below 
two  thousand  dollars,  the  amount  upon 
which  an  appeal  could  be  taken.  Held. 
that  the  value  in  controversy  was  the 
value  of  the  property  at  the  time  of  the 
seizure,  exclusive  of  the  duties,  and  that 
the  claimant  had  a  right  to  appeal  to  this 
court.  United  States  v.  84  Boxes  of  Sugar, 
7   Pet.  4.53.   8   L.   Ed.  74.5. 

44.  Subsequent  change  in  value  of  sub- 
ject of  controversy. — Cooke  t'.  United 
States,  2  Wall.  218,  17  L.   Ed.  755. 


900  APPEAL  AND  ERROR. 

to  the  sum  or  value  then  in  controversy,  and  of  which  the  decree  or  judgment 
furnishes  the  better  evidence,  should  it  furnish  any.^^ 

o.  Determination  of  Amount  in  Particular  Proceedings — (1)  In  Injunction 
Proceedings. — The  penalty  of  an  injunction  bond,  taken  when  an  injunction  is 
awarded,  cannot  be  referred  as  evidence  of  the  amount  or  value  in  dispute.^"' 

(2)  In  Actions  on  Official  Bonds. — In  deciding  whether  the  matter  in  dis- 
pute be  sufficient  to  sustain  the  jurisdiction  of  this  court  in  an  action  of  debt  for 
the  penalty  of  an  official  bond  given  by  the  defendant  for  the  faithful  execution 
of  the  duties  of  his  office,  it  will  look  to  the  sum  due  upon  the  condition  of  the 
bond,  and  not  to  the  penalty.^' 

(3)  In  Probate  Proceedings. — If  the  probate  of  a  will  has  any  legal  op- 
eration, and  is  not  merely  void,  the  controversy  as  to  the  validity  of  that  probate 
is  the  matter  in  dispute  equal  to  the  value  of  the  estate  devised  away  from  the 
heirs  seeking  to  revoke  the  probate  of  the  will.     Opinion  of  Story,  J."*'*" 

(4)  In  Suits  for  Specific  Performance. — Where  the  amount  agreed  upon 
in  a  contract  for  the  sale  of  land  is  tendered  and  refused,  and  a  suit  for  specific 
performance  is  brought,  the  value  of  the  matter  in  dispute  between  the  parties 
is  the  amount  so  tendered.'* '-^ 

(5)  In  Suits  to  Foreclose  Mortgages — The  amount  in  controversy  in  a 
suit  to  foreclose  a  mortgage  is  the  entire  amount  of  the  encumbrance,  and  not 
merely  the   amount  of  the  deficiency  decree.^*^ 

p.  Appeals  after  Issuance  of  Mandate. — Upon  a  second  appeal  or  writ  of  error 
to  this  court,  after  the  mandate  was  issued  to  the  court  below,  only  the  amount 
allowed  by  the  court  after  receiving  the  mandate  can  be  considered  in  determin- 
ing our  jurisdictional  amount.  Accordingly,  where  a  judgment  was  affirmed 
by  this  court  with  a  blank  in  the  record  for  costs,  and  the  circuit  court  afterwards 
taxed  these  costs  at  a  sum  less  than  the  required  amount,  and  allowed  a  writ  of 
error  to  this  court,  the  writ  must  be  dismissed  on  motion.^ ^ 

q.  Reduction  of  Amount — (1)  Reduction  by  Remission. — In  General. — If 
there  is  no  local  statute  on  the  subject  of  remittitur,  it  is  within  the  discretion 
of  the  court,  before  rendering  judgment,  to  allow  a  remittitur  reducing  the  sum 
recovered  below  the  amount  required  to  sustain  an  appeal ;  and,  if  the  court  does 
so,  and  renders  judgment  for  the  reduced  sum,  the  appeal  must  be  dismi.s;sed.°* 

45.  United  States  Bank  v.  Daniel,  12  49.  In  suits  for  specific  performance. — 
Pet.  33,  52,  9  L.  Ed.  989.  On   an   appeal   from   a   decree   denying  an 

46.  In  injunction  proceedings. — Brown  a?sic:nee  the  specific  enforcement  of  a 
V.  Shannon,  20  How.  55,  15  L.  Ed.  826.  contract  for  the  sale  of  school  hands  by  a 

Where  a  bill  is  filed  for  an  injunction  county  the  matter  in  dispute  between  the 
to  prohibit  the  infringement  of  a  patent  appellant  and  the  county,  is  the  sum  ten- 
right  assigned  to  the  complainant,  the  dered  to  the  county  and  its  officers,  and 
value  or  amount  in  controversy  cannot  not  the  several  interests  of  the  county 
be  estimated  by  referring  to  the  penalty  officers.  Corbin  v.  County,  105  U.  S.  659, 
of  the  bond  taken  in  a  circuit  court  when  664.  26  L.   Ed.  1136. 

the   injunction   was    granted.       Brown     v.  50.    In   suits   to   foreclose   mortgages.— 

Shannon,   20   How.   55.   15   L.   Ed.   826.  Elliott  v.  Sackett,  108  U.  S.  132.  27  L.  Ed. 

47.  In  actions  on  official  bonds. — United  678. 

States   V.   McDowell,   4   Cranch   316.   2   L.  51.    Appeals  after  issuance  of  mandate. 

Ed.   632;   United  States  v.   Hill.   123   U.   S.  — Sizer   v.    Many.   16   How.   98.    14   L.    Ed. 

681,   31   L.   Ed.  275.  861.     See   City  Bank  v.  Hunter,  152  U.   S. 

48.  In  probate  proceedings. — An  appeal  512.  38   L.    Ed.   534. 

lies    to    this    court    from    the    sentence    of  52.     Reduction   by   remission. — Alabama 

the    circuit    court    of   the    District    of    Co-  Gold    Life    Ins.   Co.  v.    Nichols,   109   U.    S. 

lumbia,   affirming  the   sentence   of  the   or-  232,   239,   27    L.    Ed.    915;      Pacific    Postal, 

phans'  court  of  Alexandria  county,  which  etc.,  Co.  v.  O'Connor,  128  U.  S.  394.  32  L. 

dismissed    a    petition    to    revoke    the    pro-  Ed.   488;  Texas,  etc.,   R.   Co.   ..   riorn.  151 

bate  of  a  will  over  an  objection  that  "the  U.  S.  110,  38  L.   Ed.  91:  Simms  v.  Sirni.is, 

decree  of   dismissal  is   not  any  final  judg-  175   U.   S.   162,   169,  44   L.    Ed.    115;    Balti- 

ment,  order  or  decree  of  the  circuit  court,  more,  etc..  R.  Co.  v.  Trook,  100  U.  S.   112,^ 

wherein    the   matter   in    dispute,    exclusive  25  L.  Ed.  571. 

of    costs,    exceeds    $100."      Carter   v.    Cut-  Where   a  judgment   has^rbeen   recovere-d 

ting,  8   Cranch   251,   3   L.   Ed.   553.  in   a   territorial   district   court   of  sufficient 


APPEAL  AND  ERROR. 


901 


Before  Judgment. — Where  the  party  in  whose  favor  the  verdict  is  rendered 
in  the  court  below  remits  by  leave  of  court  such  part  of  his  recovery  before  judg- 
ment as  reduces  the  recovery  below  the  jurisdictional  amount,  the  appeal  or  writ 
of  error  will  be  dismissed  for  want  of  jurisdiction.^^ 

Remission  after  Judgment. — But  when  the  jurisdiction  of  the  supreme  court 
on  appeal  has  once  attached,  it  cannot  be  defeated  by  a  waiver  or  release  of  the 
amount  of  the  judgment  below  in  excess  of  the  jurisdictional  amount  on  appeal.^* 


amount  to  give  this  court  jurisdiction 
from  the  supreme  court  of  the  territory, 
but  the  party  obtaining  the  judgment  has 
the  right  to  remit  by  release  a  sufficient 
amount  of  the  judgment  to  reduce  it  be- 
low the  jurisdiction  of  this  court,  while 
t4ie  case  is  pending  on  appeal  in  the  ter- 
ritorial court  and  the  release  is  not  re- 
garded by  the  territorial  court,  but  the 
judgment  of  the  district  court  is  affirmed, 
this  court  will,  on  appeal  by  the  adverse 
party,  modify  the  judgment  of  the  su- 
preme territorial  court,  to  the  amount  in 
Liie  release,  and  the  decree  will  be  af- 
firmed as  reduced  without  a  consideration 
of  the  rules  of  the  case.  Simms  v.  Simms, 
175  U.  S.  162,  44  L.  Ed.  115. 

53.  Thompson  v.  Butler.  95  U.  S.  694, 
24  L.  Ed.  540.  followed  in  Northwestern 
Mutual  Ins.  Co.  v.  Martin,  24  L.  Ed.  543; 
Pacific  Postal,  etc.,  Co.  v.  O'Connor,  128 
U.  S.  394,  32  L.  Ed.  488;  Alabama  Gold 
Life  Ins.  Co.  v.  Nichols,  109  U.  S.  232, 
27  L.  Ed.  915;  First  Nat.  Bank  v.  Redick, 
110   U.    S.   224,   28    L.    Ed.   124. 

When  the  plaintifif  below  in  open  court, 
by  permission  of  court,  remits  all  of  the 
verdict  in  excess  of  $5,000  and  judgment 
is  entered  for  that  sum  and  costs,  the 
writ  of  error  will  be  dismissed  for  want  of 
jurisdiction.  First  Nat.  Bank  v.  Redick, 
110  U.  S.  224.  28  L.  Ed.  124.  citing  Thomp- 
son V.  Butler,  95  U.  S.  694,  24  L.  Ed.  540; 
Alabama  Gold  Life  Ins.  Co.  v.  Nichols, 
109   U.   S.   232,   27  L.    Ed.   915. 

Where  verdicts  have  been  rendered 
against  the  plaintiff  in  error  (the  defend- 
ant below),  for  more  than  $5,000,  but  the 
plaintififs  respectively  remit  all  over  that 
sum,  and  judgments  are  entered  by  the 
court  against  the  remonstrance  of  the  de- 
fendant for  $5,000  and  no  more,  and  the 
case  is  brought  here  by  the  defendant  be- 
low, the  writ  of  error  will  be  dismissed 
because  the  amount  in  controversy  is 
not  sufficient  to  give  us  jurisdiction. 
Northwestern  Mutual  Ins.  Co.  v.  Martin, 
24  L.  Ed.  542,  following  Thomp- 
son V.  Butler,  95  U.  S.  604.  24  L.  Ed.  540. 

It  was  held,  in  Alabama  Gold  Life  Ins. 
Co.  V.  Nichols,  109  U.  S.  232,  27  L.  Ed. 
915,  that  it  was  within  the  discretion  of 
the  court  of  the  United  States  sitting  in 
Texas,  if  a  plaintiff  appears  in  open  court 
and  remits  the  part  of  the  verdict  in  his 
favor,  to  make  the  proper  reduction  and 
enter  judgment  accordingly.  And  if  such 
remittittir  reduces  the  amount  below  our 
jurisdictional  amount,  errors  in  the  record 
will  be  shut  out  from  our  re-examination 


in  cases  where  our  jurisdiction  depends 
on  the  amount  in  controversy.  Citing 
and  following  Thompson  v.  Butler,  95  U. 
S.  694,  24  L.   Ed.  540. 

In  Thompson  v.  Butler,  95  U.  S.  694, 
24  L.  Ed.  540,  we  declined  to  take  juris- 
diction where  the  verdict  was  for  more 
than  $5,000,  but  the  plaintifif,  before  judg- 
ment, with  leave  of  the  court,  remitted 
the  excess,  and  actually  took  judgment 
for  $5,000  and  no  more.  In  that  case  it 
was  said,  p.  696:  "Undoubtedly  the  trial 
court  may  refuse  to  permit  a  verdict  to 
be  reduced  by  a  plaintiff  on  his  own  mo- 
tion; and  if  the  object  of  the  reduction  is 
to  deprive  the  appellate  court  of  jurisdic- 
tion in  a  meritorious  case,  it  is  to  be  pre- 
sumed the  trial  court  will  not  allow  it 
to  be  done.  If,  however,  the  reduction  is 
permitted,  the  errors  in  the  record  will 
be  shut  out  from  our  re-examination  in 
cases  where  our  jurisdiction  depends  upon 
the  amount  in  controversy."  Opelika 
City  V.  Daniel,  109  U.  S.  108,  109.  27  L. 
Ed.  873. 

In  a  suit  in  the  circuit  court,  where  the 
defendant  pleaded  neither  a  set-off  nor  a 
counterclaim,  the  plaintiff  remitted  so 
much  of  a  verdict  in  his  favor  as  was  in 
excess  of  $5,000,  and  took  judgment  for 
the  remainder  "in  coin."  The  defendant 
sued  out  a  writ  of  error.  Held,  that  the 
amount  in  controversy,  whether  payable 
in  coin  or  any  other  kind  of  money,  is 
not  sufficient  to -give  this  court  jurisdic- 
tion. "If  the  remittitur  had  not  been  en- 
tered until  after  the  judgment,  the  case 
would  have  been  different,  and,  if  the 
reduction  was  made  without  the  assent  of 
the  defendant,  more  like  Kanouse  v.  Mar- 
tin, 15  How.  198,  14  L.  Ed.  467,  where  a 
declaration  was  amended  in  a  state  court 
so  as  to  reduce  the  damages  claimed  be- 
low the  jurisdictional  amount,  after  the 
necessary  steps  had  been  taken  for  the 
transfer  of  the  cause  to  the  circuit  court, 
and  in  which  we  held  that  the  jurisdic- 
tion of  the  circuit  court  could  not  be  de- 
feated in  that  wav."  Thompson  v.  But- 
ler, 95   U.   S.   694.  24   L.    Ed.    540. 

54.  New  York  Elevated  R.  Co.  v.  Fifth 
Nrt.   Bank,  118  U.  S.  608,  30  L.  Ed.  259. 

"Our  jurisdiction  cannot  be  invoked  un- 
til after  a  final  judgment,  and,  until  such 
a  judgment  has  been  rendered,  the  cause 
remains  in  the  full  judicial  control  of  the 
court  in  which  it  is  pend'ne.  It  was  be- 
cnuse  of  this  that  we  declined  to  take  ju- 
risdiction in  Thompson  v.  Butler,  95  U. 
S.   094,   24   L.   Ed.    540,   where   the   verdict 


902 


APPEAL  AND  ERROR. 


(2)  Rcductiun  Authorized  by  Act  of  Congress. — The  mere  fact  that  an.- 
act  of  congress  authorizes  a  j'.i.lgnient  obtained  by  the  government  against  a  party 
lo  be  discharged  by  the  payment  of  a  sum  less  than  the  required  amount,  is  no^ 
ground  to  ask  a  dismissal  of  a  case  of  which  the  court  had  properly  obtained  ju- 
risdiction before  the  act  passed.  The  party  may  not  choose  thus  to  settle  the  judg- 
ment, but  prefer  to  try  to  reverse  it  altogether. ^^ 

(3)  Reduction  by  Payment  and  Settlement. — Where  at  the  time  of  is- 
suing and  serving  the  writ  of  error,  the  sum  in  controversy  is  large  enough  to 
give  this  court  jurisdiction,  such  jurisdiction  cannot  be  taken  away  by  a  subse- 
quent reduction  of  the  amount  by  an  actual  payment.^^  But  where  the  defendant 
by  his  own  action  has  reduced  the  judgment  by  a  voluntary  settlement  and  pay- 
ment below  the  amount  which  is  necessary  to  give  this  court  jurisdiction  to  re- 
view it,  this  is  fatal  to  the  appeal.^'     And  although  the  facts  as  to  the  settlement 


was  for  more  than  $5,000.  but  was  re- 
duced to  that  amount,  by  leave  of  the 
court,  before  the  judgment,  which  was 
for  the  reduced  sum.'"  New  York  Ele- 
vated R.  Co.  V.  Fifth  Nat.  Bank,  118  U. 
S.   608.   609,  30   L.   Ed.   259. 

In  Pacific  Postal,  etc..  Co.  v.  O'Con- 
nor, 128  U.  S.  394.  32  L.  Ed.  488,  the 
plaintiff  below  who  had  recovered  a  ver- 
dict for  $5,500.  on  the  day  after  the  judg- 
ment was  entered  thereon,  asked  leave  in 
open  court  to  remit  the  sum  of  $500. 
which  was  granted,  and  judgment  ren- 
dered for  $5,000  and  costs.  The  subse- 
quent motion  by  the  defendant  below  to 
set  aside  the  allowance  of  the  remittitur 
and  to  correct  the  judgment  was  denied, 
although  the  remittitur  was  rendered  in 
the  absence  of  the  defendant  and  his 
counsel. 

In  Texas,  etc.,  R.  Co.  v.  Horn,  151  U. 
S.  110.  38  L.  Ed.  91.  upon  the  trial  of  a 
cau-e  a  verdict  was  returned  for  the  plain- 
tiff in  the  sum  of  $11,000.  and  upon  the 
suggestion  of  the  court  the  plaintiff  en- 
tered a  remittitur  of  $6,001  and  prayed 
that  the  same  be  allowed,  and  judgment 
entered  for  $4,999.  A  bill  of  exceptions, 
a  writ  of  error  and  the  citation  all  de- 
scribed the  judgment  as  being  for  $4,999. 
The  judgment,  however  was  in  form  for 
$11,000,  but  recited  that  the  plaintiff  had 
filed  a  remittitur  for  $6,001,  and  ordered 
that  execution  should  issue  for  $4,999 
only.  It  was  held  that,  "Although  the 
judgment  was  entered  immediately  upon 
the  return  of  the  verdict  in  accordance 
with  the  practice  in  that  jurisdiction,  and 
therefore,  for  the  amount  of  the  verdict, 
it  was  within  the  power  of  the  court  to 
allow  the  remittitur;  and  while  the  order 
to  that  effect  might  have  been  more  ac- 
curately worded,  we  are  of  opinion  that, 
upon  the  entire  record,  plaintiff  in  error 
cannot  be  permitted  to  insist  that  the 
judgment  as  it  stands  is  for  a  larger  sum 
than  $4,999,  nor  can  it  be  hereafter  held 
liable  as  on  judgment  for  any  other 
amornt." 

55.  Reduction  authorized  by  act  of  con- 
gress.— Cooke  V.  United  States,  2  Wall. 
:is.   17    L.    Ed.   755. 


56.  Reduction  by  payment  and  settle- 
ment.— Cooke  V.  United  States,  2  Wall. 
218,    17    L.    Ed.    755. 

57.  Thorp  V.  Bonnifield,  177  U.  S.  15,. 
44  L.  Ed.  652;  Pacific  Coast  Steamship  Co. 
V.  Pande.  180  U.  S.  635,  45  L.  Ed.  709; 
Shute  V.  Keyser,  149  U.  S.  649,  37  L.  Ed. 
884. 

■■  riie  plaintiff  in  error  cites  various 
cases  to  maintain  the  proposition  that 
when  the  defendant  in  the  case  below 
brings  it  here  for  review  the  amount  of 
the  judgment  or  decree  against  him  gov- 
erns our  jurisdiction,  and.  as  in  this  case,, 
the  judgment  is  more  than  seven  thou- 
sand dollars,  he  maintains  that  this  court 
has  jurisdiction  notwithstanding  the  pay- 
ment and  settlement  above  mentioned. 
But  those  cases  have  no  application 
when  the  defendant  by  his  own  action  ha.s 
reduced  the  judgment  by  a  voluntary  set- 
tlement and  payment  below  the  amount 
which  is  necessary  in  order  to  give  this 
court  jurisdiction  to  review  it.  The  real 
matter  in  dispute  is  in  such  case  the  bal- 
ance still  remaining  due  on  the  judgment. 
Otherwise  he  might  voluntarily  settle  the 
controversy  and  pay  the  whole  judgment, 
and  then  seek  to  review  it.  An  event  has 
intervened  subsequently  to  the  entry  of 
the  judgment,  and  one  which  owes  its 
existence  to  the  act  of  the  defendant  him- 
self, which  has  taken  away  his  right  of 
review  in  this  court."  Thorp  v.  Bonni- 
field.   177   U.    S.    15.    18,   44    L.    Ed.    652. 

Compromise  or  settlement  pending  ap- 
peal.— In  Cox  7'.  Western  Land,  etc.,  Co., 
133  U.  S.  375,  31  L.  Ed.  178,  a  suit  was 
brought  originally  to  recover  135  head  of 
Colorado  steers,  alleged  to  be  worth 
$6,000.  At  the  time  of  the  judgment  only 
79  head  were  in  dispute.  As  to  the  rest, 
a  settlement  had  been  made  during  the 
pendency  of  the  suit.  The  court  has 
found  as  a  fact  that  the  79  head  were  sold 
in  open  market  the  day  after  they  were 
taken  possession  of  under  the  writ  in 
this  case,  and  that  the  net  proceeds  of 
the  sale  only  amounted  to  $4,526.15.  There 
is  nothing  to  show  that  they  were  really 
any  less  valuable  at  the  time  of  the  sale 
than    when    they   were    taken.      Upon    the 


AFFHAL  A.\U  ERROR. 


''03 


niul  payment  appear  in  the  record  here,  they  may  be  shown  by  other  evidence.-^ ^ 
(4)  Reduction  by  Amendment  or  Set-Off.— Where  the  amount  is  re- 
duced by  amendment  or  set-off  before  the  appeal  is  taken,  this  will  defeat  our 
jurisdiction.  The  rule  is  the  same  whether  the  reduction  is  made  before  trial 
or  after  verdict."'^  But  where  a  citizen  of  New  Jersey  was  sued  in  a  state  court 
in  New  York,  and  filed  his  petition  to  remove  the  case  into  the  circuit  court  of  the 
United  States,  offering  a  bond  with  surety,  the  amount  claimed  in  the  declara- 
tion being  $1,000,  it  became  the  duty  of  the  state  court  to  accept  the  surety,  and 
proceed  no  further  in  the  cause.  Consequently,  it  was  erroneous  to  allow  the 
plaintiff  to  amend  the  record  and  reduce  his  claim  to  $499.^'^ 

r.  Effect  of  Admissions  by  Parties. — The  writ  will  be  dismissed,  although  the 
judgment  was  for  $8,233.59,  if  by  an  agreed  statement  of  facts  in  the  record,  it 
appears  that  the  defendant  admitted  he  owed  $5,099.59  of  the  amount  re- 
covered.*'^ 


facts  as  found  the  recovery  could  not 
have  exceeded  five  thousand  dollars  if 
there  had  been  a  judgment  in  favor  of 
Cox,  the  plaintiff  in  error.  Accordingly, 
the  motion  to  dismiss  was  granted. 

58.  Thorp  7\  Bonniheld,  177  U.  S.  15, 
44  L.  Ed.  652;  Shute  7:  Keyser,  149  U.  S. 
(>49.   37    L.    Ed.    884. 

59.  Reduction  by  amendment  or  set-off. 
— Naglc  -.  Rutledj^e,  100  U.  S.  075,  25 
L.  Ed.  772;  Thompson  v.  Butler,  95  U.  S. 
694,   24   L.    Ed.    5^0. 

In  Opelika  City  r.  Daniel,  109  U.  S. 
108,  27  L.  Ed.  873,  the  action  was  brought 
originall}'  upon  119  interest  coupons  cut 
frofn  24  riiunicipal  bonds.  aggregating 
$24,000,  the  amount  claimed  to  be  due 
on  the  coupons  being  more  than  $5,000. 
At  first  a  demurrer  was  filed  to  tlie  com- 
plaint. This  being  overruled,  the  validity 
of  the  bonds  was  put  in  issue  by  various 
pleas.  Before  trial  the  plaintiff  asked  and 
obtained  leave  to  amend  his  complaint  so 
as  to  include  only  90  of  the  coupons  origi- 
nally sued  for.  The  verdict  was  for  less 
than  $5,000,  and  a  judgment  was  entered 
thereon  for  that  amount  and  no  more.  It 
was  held,  that  it  was  clearly  within  the 
discretion  of  the  court  to  permit  the 
amendment  of  the  complaint  before  trial. 
and  that  a  motion  to  dismiss  because  the 
value  of  the  matter  in  dispute  did  not  ex- 
ceed $5,000  will  be  granted,  following  El- 
gin V.  Marshall,  lOfi  U.  S.  578,  in  which  it 
•was  said  that  the  jurisdiction  of  this  court 
depends  on  the  matter  which  is  directly 
in  dispute  in  the  particular  cause  in  which 
the  judgment  or  decree  sought  to  be  re- 
viewed has  been  rendered,  and  that  this 
court  will  not  be  permitted,  for  the  pur- 
pose of  determining  its  sum  or  value,  to 
estimate  its  collateral  effect  in  a  subse- 
tjuent  suit  between  the  same  or  other 
parties. 

Upon  a  libel  to  recover  damages  against 
ship  owners,  a  decree  passed  against  them 
for  over  $2,000.  with  leave  to  set  off  a 
sum  due  them  for  freight,  which  would 
reduce  the  amount  decreed  against  them 
to  less  than  $2,000.  The  party  elected  to 
make  the  set-off,  saving  his  right  to  ap- 
peal   to    this    court.      The    reduced    decree 


was  the  final  decree,  and  the  party  can- 
not save  a  right  of  appeal  where  it  is  not 
allowed  by  act  of  congress.  Sampson  v. 
Welsh,  24  How.  207.  16  L-  Ed.  632,  cited 
in  Lamar  v.  Micou,  104  U.  S.  465,  26  L. 
Ed.    774. 

In  Sampson  zk  Welsh,  24  How.  207.  16 
L.  Ed.  632,  ''we  refused  to  take  jurisdic- 
tion upon  an  appeal  in  admiralty,  where 
a  decree  had  been  rendered  against  a 
respondent  for  more  than  $2,000.  with 
leave  to  him,  if  he  chose,  to  set  off  an 
amount  due  him  for  freight,  and  he  after- 
wards, by  the  set-off,  reduced  the  decree 
below  our  jurisdictional  amount,  notwith- 
standing, in  signifying  his  election  to 
make  the  set-off.  he  expressly  stated  in  a 
writing,  which  appeared  in  the  record, 
that  he  did  not  thereby  waive  his  right 
of  appeal."  Approved  in  Thompson  v. 
Butler,  95  U.   S.   694,  24   L.   Ed.   540. 

"As  the  cross  demand  was  not  set  up 
until  after  the  plaintiffs  had  been  com- 
pelled by  the  defendant  to  make  their 
items  of  loss  more  specific,  and  had  thu.s 
reduced  the  amount  claimed  below  the 
jurisdiction  of  this  court,  there  is  color 
for  the  contention  on  the  part  of  the  de- 
fendants in  error  that  it  was  put  forward 
for  the  purpose  of  giving  this  court  ju- 
risdiction. But  assuming  this  not  to  have 
been  so.  and  that  the  writ  of  error  should 
not  be  dismissed,  we  are  of  opinion  that 
the  motion  to  affirm  must  be  sustained 
under  the  circumstances,  and  it  is  so  or- 
<lered."  Pacific  Express  Co.  v.  Malin.  132 
U.    S.    531,   538,   32   L.    Ed.    4.50. 

60.  Kanouse  v.  Martin,  15  How.  198,  14 
L.  Ed.  467.  distinguished  in  Sampson  v. 
Welsh,    24    H.jw.    207,    16    L.    Ed.    632. 

61.  Eifect  of  admissions  by  parties. — 
Jenness  v.  Citizens'  Nat.  Bank,  110  U.  S. 
52,  28  L.  Ed.  67;  Wabash,  etc..  R.  Co.  v. 
Knox,  110  U.  S.  304.  28  L.  Ed.  155.  fol- 
lowing Tintsman  z\  National  Bank,  100 
U.   S.  6,  25  L.   Ed.  530. 

Where,  by  an  agreed  statement  of  facts 
in  the  nature  of  a  special  verdict,  the 
plaintiff's  claim  was  admitted  by  the  de- 
fendant. e:3jcept  the  sum  of  $3,134.20.  held, 
that  that  sum  was  the  amount  actually  in 
dispute,   and   although  judgment  was   re?»- 


904 


APPEAL  AND  ERROR- 


s.  Stipulations  of  Parties. — A  stipulation  between  the  parties  as  to  the  amount 
is  not  controlling,  but  in  the  discretion  of  the  court  it  may  be  regarded  in  a  par- 
ticular case,  and  with  reference  to  the  other  facts  appearing  in  the  record,  as 
sufficient  proof  of  the  amount  in  controversy  to  sustain  the  jurisdiction  of  this 
court.^2 

17.  Jurisdiction  without  Regard  to  Sum  or  Value  in  Dispute — a.  Re- 
mew  of  Judgments  or  Decrees  of  Supreme  Court  or  Court  of  Appeals  of  Dis- 
trict of  Columbia  or  of  Any  of  the  Territories. — The  act  of  March  3,  1885,  c.  355, 
23  Stat.  443,  "by  §  1,  limits  appeals  to  this  court  from  the  supreme  courts  of  the 
territories  and  from  the  supreme  court  of  the  District  of  Columbia  to  cases  where 
the  value  of  the  matter  in  dispute  exceeds  five  thousand  dollars,  except,  by  § 
2,  where  the  validity  of  a  patent  or  copyright  is  involved,  or  the  validity  of  a 
treaty  or  a  statute,  or  an  authority  exercised  under  the  United  States  is  drawn 
in  question."  The  value  here  referred  to  is  the  value  at  the  time  of  the  final 
judgment  or  decree,  not  at  the  time  of  the  appeal  or  writ  of  error.*^^ 

The  act  does  not  apply  in  either  section  to  any  criminal  case.^^ 

Must  Be  Susceptible  of  Pecuniary  Estimation. — But  is  applicable  to  all 
judgments  or  decrees  in  suits  at  law  or  in  equity  in  which  there  is  a  pecuniary 
matter  in  dispute,  and  it  inhibits  any  appeal  or  writ  of  error  therefrom  except 
as  stated.'^^  In  other  words,  in  order  to  give  this  court  jurisdiction  under  the 
act  of  March  3,  1885,  entitled  an  act  regulating  appeals  from  the  supreme  court 
of  the  District  of  Columbia,  and  the  supreme  court  of  the  several  territories,  the 
matter  in  dispute  must  be  money,  or  some  right,  the  value  of  which  in  money 
can  be  calculated  and  ascertained.  Therefore  habeas  corpus  proceedings  are 
not  reviewable.^^ 

Special  Allocatur  from  Circuit  Court  of  the  District. — An  act  of  con- 
gress gave  jurisdiction  to  this  court  over  the  circuit  court  of  the  District  of  Co- 
lumbia on  a  judge's  allocatur  when  the  amount  in  controversy  was  less  than 
$1,000.«^ 


dered  below  for  the  entire  claim,  being 
more  than  $5,000,  the  writ  of  error  must 
be  dismissed  for  want  of  jurisdiction. 
Tintsman  v.  National  Bank,  100  U.  S.  6. 
25   L.   Ed.   530. 

62.  Stipulations  qf  parties. — United 
States  V.  Freight  Ass'n.  166  U.  S.  290,  310, 
41  L.  Ed.  1007. 

63.  The  term  "value"  defined. — Street 
V.   Ferry,   119   \L  3.  385,  30   L.    Ed.   439. 

64.  Farnsworth  v.  Montana.  129  U.  S. 
104,  32  L.  Ed.  616;  United  States  v. 
Sanges.  144  U.  S.  310.  3G  L.  Ed.  445;  Cross 
V.  Burke,  146  U.  S.  82,  87,  36  L.  Ed.  896; 
Chapman  v.  United  States,  164  U.  S.  436, 
41  L.  Ed.  504;  Prather  v.  United  States, 
164  U.   S.   452,  41   L.    Ed.   510. 

Moreover,  the  second  section  does  not 
apply  to  any  criminal  case.  The  cases  to 
which  the  second  section  is  to  apply  are 
to  be  cases  where  there  is  a  pecuniary 
matter  in  dispute,  or  where  that  pecuni- 
ary matter  is  measurable  by  some  sum  or 
value,  and  where  the  case  is  also  one  of 
the  kind  mentioned  in  the  second  section. 
Farnsworth  v.  Montana,  129  U.  S.  104, 
33  L.  Ed.  616;  Gonzales  v.  Cunningham, 
164  U.  S.  612,  617,  41  L.   Ed.   572. 

In  Farnsworth  v.  Montana,  129  U.  S. 
104,  32  E.  Ed.  616,  in  which  it  was  claimed 
that  the  validity  of  an  authority  exercised 
tmder  the  United  States  was  drawn  in 
question,  it  was  held,  that  the  second  sec- 


tion of  the  act  did  not  extend  to  criminal 
cases,  but  that  both  sections  applied  to 
cases  where  there  was  a  matter  in  dis- 
pute measurable  by  some  sum  or  value  in 
monej^  The  view  taken  was  that  the 
second  section  contained  an  exception  or 
limitation  carved  out  of  the  first  section, 
and  that  the  words,  that  in  the  enumerated 
cases,  "an  app'^al  or  writ  of  error  may 
be  brought  without  regard  to  the  sum  or 
value  in  dispute,"  clearly  implied  that  in 
those  cases  also  there  must  be  a  pecuni- 
ary matter  in  dispute  measurable  by  some 
sum  or  value,  though  not  restricted  in 
amount.  Chapman  v.  United  States,  164 
U.  S.  436,  448,  41  L.  Ed.  510;  Folk  V. 
United  States,  180  U.  S.  636,  45  L.  Ed. 
709.  See  United  States  v.  Sanges.  144  U. 
S.   310,   36   L.    Ed.   445. 

65.  Must  be  susceptible  of  pecuniary 
estimation. — Cross  v.  Burke,  146  U.  S.  82, 

87,  36  L.   Ed.  896. 

66.  Kurtz  V.  Moffitt,  115  U.  S.  487,  29 
L.   Ed.  458;   Cross  v.  Burke,  146  U.   S.  82, 

88,  36    L.    Ed.    ??6. 

67.  Special  allocatur  from  circuit  court 
of  the  district.— Campbell  v.  Read.  2  Wall. 
198.  17  L.  Ed.  779;  Bank  v.  Millard,  154 
U.   S.  656,  25  L.   Ed.  529. 

On  the  opening  of  the  record  for  the 
argument  of  this  case,  it  was  found  that 
the  sum  in  controversy  was  less  than  the 
amount    which,    according    to    the    act   of 


APPEAL  AND  ERROR.  905 

Questions  of  Law  of  Extensive  Interest  and  Operation. — An  act  of  con- 
gress of  April  2,  1816,  3  Stat,  at  Large  261,  regulating  appeals  and  writs  of  er- 
ror from  the  circuit  court  of  the  District  of  Columbia  to  this  court,  which  limited 
them  to  cases  in  which  the  matter  in  dispute  was  of  the  value  of  $1,000  or  up- 
wards, provided  that  if  "any  questions  of  law  of  such  extensive  interest  and 
operation  as  to  render  a  final  decision  of  them  by  the  supreme  court  desirable" 
are  involved  in  the  alleged  errors  of  the  circuit  court,  the  case  might  be  heard 
here,  even  though  the  matter  in  dispute  be  of  less  value  than  $1,000.^^  But  § 
706  of  the  Revised  Statutes  and  §  848  of  the  Revised  Statutes  of  the  District  of 
Columbia,  which  provided  for  the  allowance  of  appeals  and  writs  of  error  by  the 
justices  of  this  court  under  special  circumstances,  are  no  longer  in  force.**^ 

b.  Revenue  Cases. — In  General. — Section  699  of  the  Revised  Statutes  pro- 
vides for  a  writ  of  error  without  regard  to  the  sum  or  value  in  dispute,  upon  "any 
final  judgment  of  a  circuit  court  *  *  *  i^i  any  civil  action  brought  by  the 
United  States  for  the  enforcement  of  any  revenue  law  thereof."  The  original 
statute,  of  which  this  is  a  re-enactment,  was  passed  May  31,  1844,  c.  31. 
5  Stat.  658,  and  is  as  follows :  "That  final  judgments  in  any  circuit  court  of 
the  United  States,  in  any  civil  action  brought  by  the  United  States  for 
the  enforcement  of  the  revenue  laws  of  the  United  States,  or  for  the 
collection  of  duties  due.  or  alleged  to  be  due.  on  merchandise  imported 
therein,  may  be  re-examined  and  reversed  or  affirmed,  in  the  supreme  court 
of  the  United  States,  upon  writs  of  error,  as  in  other  cases,  wuwout  regard 
to  the  sum  or  value  in  controversy,  m  such  action,  at  the  instance  of  either 
party."'''**  The  third  subdivision  of  §  699  of  the  Revised  Statutes  giving  this 
court  appellate  jurisdiction  without  regard  to  the  sum  or  value  in  dispute,  "re- 
lates to  judgments  'in  any  civil  action  against  any  officer  of  the  revenue,  for  a^iy 
act  done  by  him  in  the  performance  of  his  official  duty,  or  for  the  recovery  of 
any  money  exacted  by  or  paid  to  him  which  shall  have  been  paid  into  the  treas- 
ury.' This  applies  only  to  suits,  whether  sounding  in  tort  or  in  contract,  brought 
by  individuals  or  corporations  against  officers  of  the  revenue  acting  on  behalf 
of  the  United  States,  and  does  not  include  any  suit  brought  by  the  United  States 
against  one  of  those  officers.  It  has  regard  to  actions  in  which  the  interest  of 
the  United  States  is  as  defendants,  not  as  plaintiffs.""^ 

What  Is  an  Action  for  Enforcement  of  Revenue  Laws. — The  term  "rev- 
enue law,"  when  used  in  connection  with  the  jurisdiction  of  the  courts  of  the 
United  States,  means  a  law  imposing  duties  on  imports  or  tonnage,,  or  a  law  pro- 
viding in  terms  for  revenue ;  that  is  to  say,  a  law  which  is  directly  traceable  to 
the  power  granted  to  congress  by  §  8,  art.  1,  of  the  constitution,  "to  lay  and  col- 
lect.taxes,  duties,  imports,  and  excises. "^2 

congress,  authorizes  a  writ  of  error  except  extensive  interest  and  operation,"  as  that 
on  a  special  allocatur  from  the  circuit  if  the  matter  involved  is  not  of  the  value 
court  of  the  District  of  Columbia  to  this  of  $1,000  or  upwards,  this  court  will  as- 
court.  The  provisions  of  the  law  permit  sume  jurisdiction  under  the  act  of  con- 
writs  of  error  to  be  sued  out  without  such  gress  of  April  2d,  1816.  Campbell  v. 
allocatur,  when  the  sum  in  controversy  Read,  2  Wall.  198,  17  L.  Ed.  779. 
amounts  to  one  thousand  dollars  and  uo-  f^.  Act  of  February  25,  1879,  ch.  99, 
wards.  On  the  application  of  the  counsel,  20  Stat.  320,  ch.  99;  Railroad  Co.  z'.  Grant, 
stating  the  questions  in  the  case  were  of  98  U.  S.  398,  25  L.  Ed.  231;  Dennison  v. 
great  public  importance,  and  were  re-  Alexander,  103  U.  S.  522.  26  L.  Ed.  313; 
quired  to  be  determined,  in  order  to  the  .Art  of  March  3,  1885,  23  Stat.  443,  ch. 
final  settlement  of  other  accounts  in  355;  Cross  v.  Burke,  146  U.  S.  82,  87,  36 
which  the  same  principles  were  involved,  L.  Ed.  896;  Trask  v.  Wanamaker,  147  U. 
the    court     gave      the      special      allocatur.  S.   149,  37   L.   Ed.   118. 

United   States  v.   Ringgold,   8    Pet.  150,  8  70.     Revenue    cases. — United    States    v. 

L.    Ed.    899.  Hill.    123    U.    S.    681.    684,    31    L.    Ed.    275; 

63.     Questions   of  law    of   extensive   in-  Pettigrew  v.  United  States,  97  U.   S.  385, 

terest  and   operation. — A   question   involv-  386,  24  L.  Ed.   1029. 

ing  the   construction   of  a  statute   regulat-  71.    United   States  v.   Haynes,   130   U.  S. 

ing   'rtestacies   within    the    District  of   Co-  653.  654.  32  L.   Ed.  1060. 

lumbia,  is  not  a  question  of  law  of  "such  72.    What  is  an  action  for  enforcement 


906 


APPEAL  A\D  ERROR.    ' 


An  action  against  sureties  to  recover  on  a  bail  bond  conditioned  for  the 
appearance  of  the  principal  to  answer  to  an  indictment  for  making  and  forging 
checks  against  an  assistant  treasurer,  is  not  a  case  for  the  enforcement  of  a  rev- 
enue law.  within  the  intent  of  the  Revised  Statutes,  §  699."-' 

A  suit  upon  an  official  bond  is  not  an  action  for  the  enforcement  of  a  rev- 
enue law  of  the  United  States,  within  the  meaning  of  §  699  of  the  Revised  Stat- 
utes, giving  this  court  appellate  jurisdiction  without  regard  to  the  sum  or  value 
in    dispute.'"* 

An  action  by  the  United  States,  to  recover  the  proceeds  arising  from 
sales  of  tobacco,  which,  found  in  the  hands  of  the  defendant,  a  bailee,  was 
seized  as  forfeited  for  the  nonpayment  of  the  tax  due  thereon,  and  then  left  with 
him,  under  an  agreement  with  the  collector  of  internal  revenue  that  he,  the  bailee, 
should  sell  it  and  hold  the  proceeds,  subject  to  the  decision  of  the  proper  court, 
is,  within  the  meaning  of  §  699  of  the  Revised  Statutes,  an  action  to  enforce  a 
revenue  law,  and  this  court  has  jurisdiction  to  re-examine  the  judgment,  without 
regard  to  the  amount  involved." '"' 

Judgment  Must  Be  Rendered  in  Federal  Court. — The  act  of  May  ,5 1st, 
1844  (5  Stat,  at  Large  658).  gives  jurisdiction  to  this  court  in  revenue  cases, 
without  regard  to  amount,  only  where  the  judgment  is  rendered  in  a  circuit  court 
of  the  United  States.  Therefore,  where  the  case  was  brought  from  the  court 
of  appeals  for  the  territory  of  Florida,  and  the  amount  in  controversy  did  not 
exceed  one  thousand  dollars,  the  case  must  he  dismissed  for  want  of  jurisdiction.'^*' 

United  States  Must  Be  Plaintiff  in  Suit.^ — I'm  tlic  writ  of  error  wliich  is 
authorized  by  the  act  of  May  31st.  1844  (5  Slat.  658),  at  the  instance  of  either 
party,  upon  a  final  judgment  in  a  circuit  court  in  any  civil  action  brought  by  the 
United  States  for  the  enforcement  of  the  revenue  laws,  or  for  the  collection  of 
duties,  due  or  alleged  to  be  due.  without  regard  to  the  sum  or  value  in  contro- 
versy, is  authorized  in  those  cases  only  in  which  the  Ignited  States  is  plaintiff  in 


of   revenue   laws. — United    States    v.    Hill. 
123   U.    S.   681.   686.   .31    L.    Ed.   275. 

Section  844.  Rev.  Stat.,  requiring  the 
clerk  of  a  court  of  the  United  States  to 
pay  into  the  treasury  any  surplu-  <f  fec- 
and  emoluments  which  his  return  shows 
to  exist  over  and  above  the  compensa- 
tion and  allowances  authorized  by  law  to 
be  retained  by  him.  is  not  a  revenue  law 
within  the  meaning  of  that  clause  of  § 
699,  Rev.  Stat.,  which  provides  for  a  writ 
of  error  without  regard  to  the  sum  or 
value  in  dispute,  "upon  any  final  judg- 
ment of  a  circuit  court  *  *  *  in  any  civil 
action  brought  by  the  United  States  for 
the  enforcement  of  any  revenue  law 
thereof."  "Certainly  it  will  not  be  claimed 
that  the  clerk  of  a  district  court  of  the 
United  States  is  an  'officer  of  the  reve- 
nue,' but  there  is  nothing  to  indicate  that 
the  term  revenue  has  any  diflferent  signifi- 
cation in  this  subdivision  of  the  section 
from  that  which  it  has  in  the  other.  The 
clerk  of  a  court  of  the  United  States  col- 
lects his  taxable  'compensation,'  not  as 
the  revenue  of  the  United  States,  but  as 
the  fees  and  emoluments  of  his  office, 
with  an  obligation  on  his  part  to  account 
to  the  United  States  for  all  he  gets  over 
a  certain  sum  which  is  fixed  by  law.  This 
obligation  does  not  grow  out  of  any  'reve- 
nue law,'  properly  so  called,  but  out  of 
a  statute  governing  an  officer  of  a  court 
of  the  United  States."  United  States  v. 
Hill.    123   U.   S.   681,   686,   31   L.   Ed.   27.5. 


Revenue     of      postoffice      department. — 

"Under  the  act  of  crngres-^  passed  the 
:!1st  of  May,  1844.  .-)  Stat,  at  Large,  658, 
directing  that  final  judgments  in  a  cir- 
cuit court  in  any  civil  action  brought  by 
the  United  States  for  the  enforcement  of 
the  revenue  laws  may  be  reviewed  in  this 
court  without  regard  to  the  sum  or  value 
in  controversv,  this  court  can  exercise  ju- 
risdiction. The  revenue  of  the  postoffice 
department  is  a  part  of  the  revenue  of  the 
government."  United  States  v.  Bromley, 
12  How.  88.  13  L.   Ed.  90."). 

73.  United  States  ;■.  Broadhead.  127  U. 
S.  212,  32  L.  Ed.  147.  following  United 
States  r.  Hill,  123  U.  S.  681,  31  L-  Ed. 
27.-). 

74.  United  States  :■.  Haynes,  130  U.  S. 
(-.53,  32  L.  Ed.  1060,  citing  United  States  v. 
Hill.  123  U.  S.   681.  31    L.  Ed.  275. 

As  early  as  United  States  z\  McDowell. 
4  Cranch  316,  2  L.  K<1.  632,  it  was  decided 
that  in  an  action  on  an  official  bond  given 
for  the  faithful  performance  of  the  duties 
of  an  office,  our  jurisdiction  would  de- 
pend on  tlie  amount  due  for  the  breach  of 
the  condition,  and  not  on  the  penal  sum. 
United  States  v.  Hill.  123  U.  S.  681,  683, 
31    L.    Ed.   275. 

75.  Pettigrew  r.  United  States,  97  U. 
S.  38.5.  24   I^.   Ed.   1029. 

76.  Judgrrent  must  be  rendered  in  fed- 
eral court. — United  States  v.  Carr,  8  How. 
1.    12   L.    Ed.   963. 


AFFBAL  AXD  ERROR. 


907 


Ihe  suit.     The  law  cannot  be  extended  to  suits  brought  b}'  the  importer  against 
the  collector.'" 

c.  Cases  Touching  Patent  Rights  and  Cases  Involving  Validity  of  Patents  and 
Copynghts.—SecUon  699  of  the  Revised  Statutes  provides  that  a  writ  of  error 
or  appeal  may  be  allowed  from  any  final  judgment  or  decree  of  the  circuit  court, 
without  regard  to  the  sum  or  value  in  dispute,  "in  any  case  touching  patent  rights.*' 
This  section  substantially  re-enacts  the  corresponding  provision  of  the  patent 
act  of  1870,  in  which  the  words  were  '"in  any  action,  suit,  controversy  or  case,  at 
law  or  in  equity,  touching  patent  rights."'8  The  general  rule  is  that  "where  a 
suit  is  brought  on  a  contract  of  which  a  patent  is  the  subject  matter,  either  to 
enforce  such  contract,  or  to  annul  it.  the  case  arises  on  the  contract,  or  out  of  the 
contract,  and  not  under  the  patent  laws.""^ 


77,  United   States   must   be    plaintiff   in 

suit. — Mason    :•.    Gamble,   21    How.   390,    16 
L.   Ed.  SI. 

78.  Cases  touching  patent  rights  and 
cases  involving  validity  of  patents  and 
copyrights. — Act  of  July  S,  1S70.  c.  :,'3U, 
§  56,  16  Stat.  207;  St.  Paul  Plow  Works 
V.  Starling.  127  U.  S.  376,  377.  32  L.  Ed. 
251.  But  see  Durham  v.  Seymour,  161 
U.   S.   235.  239.   40    L.    Ed.   682. 

In  Marsh  z'.  Nichols.  140  U.  S.  344,  356, 
35  L.  Ed.  413.  which  was  a  writ  of  error 
to  a  state  court,  this  court,  speaking 
through  Mr.  Chief  Justice  Fuller,  said: 
"ft  has  also  been  decided  that  an  action 
in  the  circuit  court  by  a  patentee  for 
breach  of  an  agreement  of  the  licensee  to 
make  and  sell  the  patented  article  and  to 
pay  royalties,  in  which  the  validity  and 
the  infringement  of  the  patent  are  con- 
troverted, is  a  case  'touching  patent 
rights,'  of  which  this  court  has  appellate 
ji'risdiction,  under  §  699  of  the  Revised 
Statutes,  without  regard  to  the  sum  or 
value  in  dispute.  St.  Paul  Plow  Works 
V.  Starling,  127  U.  S.  376,  32  L.  Ed.  251. 
And  attention  was  in  that'  case  called  to 
the  fact  that  the  language  applied  to  this 
subject  in  the  patent  act  of  1836.  under 
which  the  cases  of  Wilson  v.  Sandford, 
10  How.  99,  13  L.  Ed.  344,  and  Brown  v. 
Shannon.  20  How.  55,  15  L.  Ed.  826,  were 
decided,  was  that  used  in  that  act  in  de- 
fining the  jurisdiction  of  the  circuit  court 
in  patent  cases,  namely,  "actions,  suits, 
controversies  and  cases  arising  under  any 
law  of  the  United  States  granting  or  con- 
firming to  inventors  the  exclusive  rights 
to  their  inventions  or  discoveries'  (5  Stat. 
124),  while  by  the  act  of  1870.  the  words 
were,  "in  an  action,  suit,  controversy  or 
case,  at  law  or  in  equity,  touching  patent 
rights'  (16  Stat.  207);  and  that  this  lan- 
guage was  carried  forward  into  the  corre- 
spondmg  section  of  the  Revised  Statutes." 
An  action  in  the  circuit  court  by  a  pat- 
entee for  breach  of  an  agreement  of  a 
licensee  to  make  and  sell  the  patented  ar- 
ticle and  to  pay  ro3'alties.  in  which  the 
validity  and  the  infringement  of  the  pat- 
ent arc  controverted,  is  a  "case  touching 
patent  rights,"  of  which  this  court  has 
appellate  jurisdiction,  under  §  699  of  the 
Revised    Statutes,    without    regard    to    the 


sum  or  value  in  dispute.  St.  Paul  Plough 
Works  V.  Starling,  127  U.  S.  376,  32  L- 
Ed.  251. 

79.  Dale  Tile  Mfg.  Co.  r.  Hyatt.  125 
U.  S.  46.  31  L.  Ed.  683;  Wood  Mowing 
Machine  Co.  v.  Skinner,  139  U.  S.  293.  35 
L.  Ed.  193;  In  re  Ingalls.  139  U.  S.  548, 
35  L.  Ed.  266;  Marsh  v.  Nichols,  140  U. 
S.  344,  35  L.  Ed.  413;  Wade  v.  Lawder, 
165  U.  S.  624,  627,  41  L.  Ed.  851. 

Suit  to  enforce  or  set  aside  contract  for 
use  of  patent  right. — It  ha^  been  decided 
that  a  bill  in  equity  in  the  circuit  court  of 
the  United  States  by  the  owner  of  let- 
ters patent,  to  enforce  a  contract  for  the 
use  of  the  patent  right,  or  to  set  aside 
such  a  contract  because  the  defendant  has 
not  complied  with  its  terms,  is  not  within 
the  acts  of  congress,  by  which  an  appeal 
to  this  court  is  allowable  in  cases  arising 
under  the  patent  laws,  without  regard  to 
the  value  of  the  matter  in  controversy. 
Act  of  July  4.  1836.  c.  357,  §  17,  5  Stat. 
124;  Rev.  Stat..  §  699;  Wilson  v.  Sand- 
ford.  10  How.  99,  13  L.  Ed.  344;  Brown 
v.  Shannon.  20  How.  55.  15  L.  Ed  826 
Dale  Tile  Mfg.  Co.  r.  Hyatt,  125  U.  S. 
46,  52.  31   L.   Ed.   683. 

Where  the  action  was  brought  upon  a 
contract  in  writing  between  the  parties, 
being  the  joiht  owners  of  a  patent  for 
an  improved  rope  reel,  by  which  it  was 
agreed  that  the  defendant  should  have  the 
exclusive  control  of  the  manufacture  and 
sale  of  the  reel,  paying  to  the  plaintiff  a 
certain  royalty  on  each  reel  sold,  this  was 
not  a  case  arising  under  the  patent  laws 
of  the  United  States,  within  the  exclusive 
jurisdiction  of  the  federal  courts.  Dale 
Tile  Mfg.  Co.  T'.  Hyatt,  125  U.  S.  46.  31 
L.  Ed.  683;  Felix  v.  Scharnweber,  125 
U.   S.   54,  58,   31   L.    Ed.  687. 

The  complaint  that  an  assessment  of 
taxes  is  illegal  because  in  effect  levied  on 
patents  or  patent  rights,  does  not  involve 
the  construction,  or  the  validity,  or  the 
infringement  of  patents,  or  any  other 
question  under  the  patent  laws,  and  is 
therefore  not  a  suit  "arising  under  the 
patent  laws."  Holt  f.  Indiana  Mfg.  Co., 
176  U.  S.  68,  44  L.  Ed.  374,  reaffirmed  in 
Western  z:  Tierney,  184  U.  S.  695,  46  L. 
Ed.  763;   Douglas   Co.  r.  Stone,   191  U.   S. 


908 


APPEAL  AND  HRROR. 


The  right  given  by  the  acts  of  February  18th,  1861,  and  July  20th,  1870, 
of  appeal  or  writ  of  error  without  regard  to  the  sum  in  controversy  in  questions 
arising  under  laws  of  the  United  States,  granting  or  conferring  to  authors  or  in- 
ventors the  exclusive  right  to  their  inventions  or  discoveries,  applies  to  contro- 
versies between  a  patentee  or  author  and  alleged  infringer  as  well  as  to  those  be- 
tween rival  patentees. '^'^ 

From  District  of  Columbia  and  the  Territories. — And  it  is  provided  by 
§  8  of  the  act  of  February  9,  1893,  c.  74.  establishing  a  court  of  appeals 
for  the  District  of  Columbia,  that  a  case  may  be  brought  to  this  court 
without  regard  to  the  sum  or  value  in  dispute,  in  which  there  is  "in- 
volved the  validity  of  any  patent  or  copyright."  The  patent  referred  to 
in  §  2  of  the  act  of  March  3,  1885,  c.  355,  23  Stat.  443,  allowing  appeals 
to  this  court  from  the  supreme  courts  of  the  territory  and  from  the 
supreme  court  of  the  District  of  Coluhibia  regardless  of  the  value  of  the  matter 
in  dispute,  where  the  validity  of  a  patent  or  copyright  is  involved  or  the  va- 
lidity of  a  treaty  or  a  statute,  or  an  authority  exercised  under  the  United  States 
is  drawn  in  question,  is  a  patent  for  an  invention  or  discovery,  and  not  a  patent 
tor  land.^^  A  writ  of  error  will  not  lie  from  this  court  to  review  a  decision  of 
the  court  of  appeals  of  the  District  of  Columbia,  denying  a  writ  of  mandamus  to 
the  commissioner  of  patents  to  register  a  trademark  without  regard  to  the  sum  or 
value  in  dispute,  on  the  ground  that  there  is  involved  the  validity  of  any  patent  or 
copyright.^- 

d.  Suits  for  Infringement  of  Trademarks. — The  act  of  1881  confers  upon  the 
courts  of  the  United  vStates,  in  general  terms,  jurisdiction,  original  and  appel- 
late, over  suits  for  infringement  of  a  trademark,  without  regard  to  the  amount 
in  controversy. ^3 

e.  Cases  in  Which  the  Validity  of  a  Treaty  or  a  Statute  of,  or  an  Authority 
Exercised  under  the  United  States  Is  Draivn  in  Question. — In  General. — The 


557.  48  L.  Ed.  301;  Weston  v.  Tierney, 
184   U.    S.   695.    46   L.    Ed.    763. 

Suit  to  set  aside  assignment. — The 
seventeenth  section  of  the  act  of  1836 
gives  the  right  of  appeal  to  this  court, 
when  the  sum  in  dispute  is  below  the 
value  of  two  thousand  dollars,  "in  all 
actions,  suits,  controversies  on  cases  aris- 
ing under  any  law  of  the  United  States, 
granting  or  confirming  to  inventors  the 
exclusive  right  to  their  inventions  or  dis- 
coveries," provided  the  court  below  shall 
deem  it  reasonable  to  allow  the  appeal. 
But  a  bill  filed  on  the  equity  side  of  the 
circuit  court  to  set  aside  an  assignment, 
upon  the  ground  that  the  assignee  had 
not  complied  with  the  terms  of  the  con- 
tract, is  not  one  of  these  enumerated 
cases;  and  the  value  in  dispute  being  less 
than  two  thousand  dollars,  this  court  has 
no  jurisdiction  over  the  case.  "The  dis- 
pute in  this  case  does  not  arise  under  an 
act  of  congress;  nor  does  the  decision  de- 
pend upon  the  construction  of  any  law 
in  relation  to  patents.  It  arises  out  of 
the  contract  stated  in  the  bill;  and  there 
is  no  act  of  congress  providing  for  or 
regulating  contracts  of  this  kind.  The 
rights  of  the  parties  depend  altogether 
upon  common  law  and  equity  principles." 
Wilson  V.  Sanford,  10  How.  99,  13  L.  Ed. 
344. 

Where  a  bill  is  filed  to  enforce  the  spe- 
cific   execution    of    a    contract    in    relation 


to  the  use  of  a  patent  right,  this  court  has 
no  appellate  jurisdiction,  unless  the  mat- 
ter in  ccntroversy  exceeds  two  thousand 
dollars.  The  jurisdiction,  where  the  bill 
is  founded  upon  a  contract,  differs  ma- 
terially from  the  jurisdiction  on  a  bill 
to  prevent  the  infringement  of  the  mo- 
nopoly of  the  patentee,  or  of  those  claim- 
ing under  him  by  legal  assignments,  and 
to  protect  them  in  their  rights  to  the  ex- 
clusive use.     Brown  v.  Shannon,  20  How. 

55.  ^^    L.    Ed.    826. 

While  this  court  can  exercise  no  ap- 
pellate power  in  a  case  arising  under  con- 
tracts like  those  exhibited,  unless  the 
amount  or  value  of  the  matter  in  contro- 
versy exceeds  two  thousand  dollars,  it 
may  yet  lawfully  exercise  its  appellate 
jurisdiction  when  a  far  less  amount  is  in 
dispute,  it  the  party  is  proceeding  either 
at  law  or  in  equity  for  the  infringement  of 
a  patent  right  to  which  he  claims  to  be 
entitled.     Brown  v.  Shannon,  20  How.  55, 

56,  15    L.    Ed.    826. 

80.  Philip  V.  Nock,  13  Wall.  185,  20  L. 
Ed.   567. 

81.  Street  v.  Ferry,  119  U.  S.  385,  30 
L.    Ed.    439. 

82.  South  Carolina  v.  Seymour,  153  U. 
S.    353.   38    L.    Ed.    742. 

83.  Suits  for  infringement  of  trade- 
marks.— Tn  re  Keasbey,  etc.,  Co.,  160  U. 
S.   221,   230,   40   L.    Ed.    402. 


APPEAL  AND  ERROR. 


909 


second  section  of  the  act  of  March  3,  1885,  23  Slat.  443,  c.  355,  provides  that 
the  appellate  jurisdiction  of  this  court  over  cases  from  the  territorial  courts  shall 
not  be  determined  by  the  amount  in  dispute,  if  the  validity  of  a  treaty  or  a  stat- 
ute of,  or  an  authority  exercised  under,  the  United  States,  is  drawn  in  question, 
but  that  in  such  cases  an  appeal  or  writ  of  error  may  be  brought  without  re- 
gard to  the  sum  or  value  in  dispute. "^^  So,  also,  this  court  has  jurisdiction  to 
entertain  an  appeal  or  writ  of  error  to  the  supreme  court  of  the  District  of  Colum- 
bia or  the  court  of  appeals  of  the  District,  regardless  of  the  sum  or  value  in  dis- 
pute, where  "the  validity  of  a  treaty  or  a  statute  of  or  an  authority  exercised  un- 
der the  United  States"  is  drawn  in  question  in  the  case.^^ 

Necessity  for  Adverse  Decision. — The  second  section  of  the  act  of  con- 
gress of  March  3,  1885,  23  Stat.  443,  c.  355,  allows  an  appeal  or  writ  of  error 
from  any  judgment  or  decree  in  any  suit  at  law  or  in  equity  in  the  supreme  court 
of  the  District  of  Columbia,  or  in  the  supreme  court  of  any  of  the  territories  in 
the  "United  States,  without  regard  to  the  sum  or  value  in  dispute  where  there  is 
involved  the  validity  of  any  patent  or  copyright,  or  where  there  is  drawn  in 
question  the  validity  of  a  treaty  or  statute  of  or  an  authority  exercised  under  the 
United  States.     "It  will  be  observed  that  this  second  section  of  the  statute,  while 


84.  Cases  in  which  the  validity  of  a 
treaty  or  a  statute  of,  or  an  authority  ex- 
ercised under  the  United  States  is  drawn 
in  question. — Smith  v.  Adams,  130  U.  S. 
167,    175,   33    L.    Ed.   895. 

This  court  has  jurisdiction  to  entertain 
an  appeal  from  the  decision  of  the  su- 
preme court  of  the  territory  irrespective 
6i  the  amount  in  controversy,  where 
there  is  drawn  in  question  the  authority 
of  the  territorial  government  to  make  an 
appointment  to  the  office  of  auditor  of 
public  accounts,  under  the  act  of  March 
3,  1885,  23  Stat.  433,  giving  this  court 
jurisdiction  over  the  supreme  court  of 
the  District  of  Columbia,  or  over  the  su- 
preme court  of  any  of  the  territories  re- 
gardless of  the  amount,  where  there  is 
drawn  in  question  the  validity  of  a  treaty 
or  a  statute  or  an  authority  exercised  un- 
der the  United  States.  Clayton  v.  Utah, 
133  U.  S.  63",  33  L.  Ed.  455.  affirmed  in 
Jack  V.  Utah.  132  U.  S.  643,  33  L.  Ed. 
459. 

85.  United  States  v.  Lynch,  137  U.  S. 
2S0,  281.  34  L.  Ed.  700,  citing  23  Stat. 
443,  c.  355;  South  Carolina  v.  Seymour, 
153   U.    S.   353,   357,   38   L.    Ed.    742. 

Under  the  act  of  congress  of  March  3, 
1885  (23  Stat.  443),  no  appeal  or  writ  of 
error  can  be  allowed  from  any  judgment 
or  decree  in  any  suit  at  law  or  in  equity 
in  the  supreme  court  of  the  District  of 
Columbia,  unless  the  matter  in  dispute  ex- 
clusive of  costs  shall  exceed  the  sum  of 
five  thousand  dollars',  or  unless  the  valid- 
ity of  a  patent  or  copyright  is  involved  in 
the  suit,  or  the  validity  of  a  treaty  or 
statute  of,  or  an  authority  exercised  un- 
der, the  United  States,  is  drawn  in  ques- 
tion therein.  Under  this  statute,  the 
court  refused  to  instruct  at  the  trial  of 
an  action  against  the  District  of  Columbia 
to  recover  for  injuries  received  on  its 
bidewalks  that  the  District  of  Columbia  is 
not  liable  for  damages  resulting  from  such 


accident  that  if  the  care  of  the  streets  of 
the  city  of  Washington  as  a  public  duty  is 
imposed  by  the  statutes  upon  the  district  of 
Columbia,  the  performance  of  which  is  for 
the  general  benefit,  and  the  district  derives 
no  profit  from  it.  then  no  action  can  be 
maintained  for  damages  resulting  from  a 
neglect  to  perform  public  duty,  it  was  held, 
that  the  validity  of  an  authority  exer- 
cised under  the  United  States  was  not 
drawn  in  question,  so  as  to  give  this  court 
jurisdiction  over  the  supreme  court  of  the 
District  of  Columbia  regardless  of  the 
amount  in  dispute.  District  of  Columbia 
V.  Gannon,  130  U.  S.  227,  32  L.  Ed.  922. 
following  Baltimore,  etc.,  R.  Co.  v.  Hop- 
kins.   130   U.    S.    310,   32    L.    Ed.   908. 

Oregon  territory. — By  the  act  of  con- 
gress organizing  the  inhabitants  of  Ore- 
gon territory  into  a  government,  it  was 
provided  that  writs  of  error  and  appeals 
from  final  decisions  of  the  supreme  court 
of  Oregon  shall  be  allowed  to  the  su 
preme  court  of  the  United  States  where 
the  constitution  of  the  United  States,  or 
an  act  of  congress,  or  a  treaty  of  the 
United  States  was  brought  in  question. 
Lownsdale  v.  Parrish,  21  How.  290,  16 
L.    Ed.    80. 

Congress  passed  no  law  in  any  wise  af- 
fecting title  to  lands  in  the  territory  of 
Oregon  until  September,  1850;  and  there- 
fore where  a  controversy  arose,  in  July, 
1850,  relating  to  titles  to  land,  neither 
party  could  be  said  to  have  a  legal  title. 
"Neither  the  constitution  of  the  United 
States,  nor  an  act  of  congress,  or  a 
treaty,  was  "brought  in  question'  in  the 
lower  court;  neither  side  could  have  legit- 
imately raised  such  a  question,  and  called 
for  its  decision;  and  to  give  this  court 
jurisdiction  of  the  case,  in  this  instance, 
the  question  must  have  been  raised  and 
decided  in  the  lower  courts,  and  it  must 
so  appear  on  the  record."  Lownsdale  v 
Parrish,   21    How.   290,   294,    16   L.    Ed.    80. 


910 


APPEAL  AXD  rjUWR. 


it  is  based  upon  the  general  principle  which  is  found  in  the  act  of  congress  allow- 
ing writs  of  error  from  this  court  to  the  highest  courts  of  a  state,  namely,  to 
protect  parties  against  the  exercise  of  an  unlawful  power  on  the  part  of  the  state 
authorities,  does  not  use  the  language  which  is  found  in  that  act.  that  to  give 
this  court  jurisdiction,  the  decision  of  the  state  court  must  be  against  the  right 
or  power  set  up  by  the  party  under  the  laws  of  the  United  States.  On  the  con- 
trary, this  peculiar  feature  of  the  appellate  jurisdiction  of  this  court  over  that 
of  the  state  courts  is  left  out  when  the  matter  comes  to  be  applied  to  the  ter- 
ritories, and  it  is  held  sufficient  that  there  should  be  drawn  'in  question  the  va- 
lidity of  a  treaty  or  statute  of  or  an  authority  exercised  under  the  United  States;' 
and  it  is  not  required  that  the  decision  of  the  state  court  should  be  against  the 
validity  of  the  treaty,  statute  or  authority  so   exercised   or  claimed."^*' 

When  Is  Validity  of  Statute  Drawn  in  Question. — \Mienever  the  power 
to  enact  a  statute  as  it  is  by  its  terms,  or  is  made  to  reafi  by  construction,  is  fairly 
open  to  denial  and  denied,  the  validity  of  such  statute  is  drawn  in  question,  but 
not    otherwise.*^ 


86.  Clayton  v.  Utah,  132  U.  S.  632,  637. 
33  L.  Ed.  455,  affirmed  in  Jack  v.  Utah, 
132  U.   S.   643,   33   L.    Ed.   459. 

The  act  of  congress  entitled  "An  act 
regulating  appeals  from  the  supreme 
court  of  the  District  of  Columbia,  and 
the  supreme  courts  of  the  several  terri- 
tories," approved  March  3,  1885,  23 
Stat.  443,  c.  355,  provides:  "That  no 
appeal  or  writ  of  error  shall  here- 
after be  allowed  from  any  judg- 
ment, or  decree  in  any  suit  at  law  or  in 
equity  in  the  supreme  court  of  the  District 
of  Columbia,  or  in  the  supreme  court  of 
any  of  the  territories  of  the  United  States, 
unle.'^s  the  matter  in  dispute,  exclusive  of 
costs,  shall  exceed  the  sum  of  live  thou- 
sand dollars.  Section  2.  That  the  pre- 
ceding section  shall  not  apply  to  any  case 
wherein  is  involved  the  validity  of  any 
patent  or  copyright,  or  in  which  is  drawn 
in  question  the  validity  of  a  treaty  or  stat- 
ute of  or  an  authority  exercised  under  the 
United  States;  but  in  all  such  cases  an 
appeal  or  writ  of  error  may  be  brought 
without  regard  to  the  sum  or  value  in  dis- 
pute." When  the  validity  of  a  statute  of, 
or  authority  exercised  under,  the  United 
States,  is  drawn  in  question  in  a  state 
court,  the  decision  of  the  latter  must  be 
against  its  validity  in  order  to  justify  a 
review  of  such  decision,  but  under  this 
act  it  is  sufficient  if  the  validity  is  drawn 
in  question  irrespective  of  the  conclusion 
reached.  So  that  the  inquiry  is  confined 
1o  whether  the  validity  of  such  a  statute 
or  authority  is  actually  controverted. 
Baltimore,  etc.,  R.  Co.  v.  Hopkins,  130  U. 
S.  210,  222,  32  L.  Ed.  908,  912,  followed  in 
District  of  Columbia  ?'.  Gannon,  130  U.  S. 
227,    32.  L-    Ed.    922.' 

87.  Baltimore,  etc.,  R.  Co.  v.  Hopkins, 
130  U.  S.  210,  224,  32  L.  Ed.  908,  912.  fol- 
lowed in  District  of  Columbia  z\  Gannon, 
130  U.  S.  227.  32  L.  Ed.  922;  Cook  County  v. 
Calumet,  etc..  Co.,  138  U.  S.  635,  653,  34 
t.  Ed.  1110;  Miller  v.  Cornwall  R.  Co., 
168  U.  S.  131,  133,  42  L.  Ed.  409,  reaf- 
firmed in   Charleston,   etc.,    Bridge    Co.  v. 


West  Virginia,  168  U.  S.  704,  42  L.  Ed. 
1212. 

That  part  of  original  §  25,  and  of  the 
act  of  1867,  as  to  decisions  in  favor  of 
the  validity  of  a  statute  of,  or  of  an  au- 
thority exercised  under,  any  state,  when 
drawn  in  question  on  the  ground  of  their 
being  repugnant  to  the  constitution, 
treaties,  or  laws  of  the  United  States, 
has  been  frequently  passed  upon,  and  the 
distinction  between  the  construction  of  a 
statvtte,  or  the  e^ctent  of  an  authority,  and 
the  validity  of  a  statute,  or  of  an  au- 
thority, pointed  out.  Thus  in  Commer- 
cial Bank  ?'.  Buckingham,  5  How.  317,  12 
L.  Ed.  169,  where  a  general  law  had  de- 
clared all  banks  liable  to  pay  six  per  cent. 
interest  on  their  notes,  when  they  had  re- 
fused payment  on  demand,  and  a  subse- 
quent act,  incorporating  the  bank  in  ques- 
tion, provided  for  the  payment  of  twelve 
per  cent.,  and  the  question  was  whether 
the  bank  was  liable  to  pay  eighteen,  this 
court  held  that  the  question  submitted 
to  and  decided  by  the  state  court  was  one 
of  construction  and  not  of  validity.  There 
both  the  prior  and  subsequent  statutes 
were  admitted  to  be  valid  under  any  con- 
struction of  them,  "and  therefore  no  con- 
struction placed  by  the  state  court  on 
either  of  them,  could  draw  in  question  its 
validity,  as  being  repugnant  to  the  con- 
stitution of  the  United  States,  or  any  act 
of  congress."  Bridge  Proprietors  v.  Ho- 
boken.  etc..  Co..  1  Wall.  116,  144,  17  L. 
Ed.  571;  Baltimore,  etc.,  R.  Co.  v.  Hop- 
kins, 130  U.  S.  210,  223.  32  L.  Ed.  908,  913, 
followed  in  District  of  Columbia  v.  Gan- 
non.   130   U.   S.   227.   32    L.    Ed.   922. 

"Validity  of  authority  exercised  under 
United  States." — In  Millingar  v.  Hartu- 
pec.  6  Wall.  258,  261,  262,  18  L.  Ed.  839, 
il  M-as  held,  that  the  word  "authority" 
stands  upon  the  same  footing  with 
"treaty"  or  "statute;"  and  said  the  court. 
through  Chief  Justice  Chase:  "Something 
more  than  a  bare  assertion  of  such  an 
authority  seems  essential  to  the  jurisdic- 
tion of  this  court.     The  authority  intended 


APPEAL  AXD  ERROR. 


911 


Mere  Construction. — In  order  to  come  within  tliis  clause,  the  validity,  and 
not  the  construction  only,  of  a  treaty  or  statute  of  the  I'nited  States,  or  of  an  au- 


by  the  act  is  one  ha\ing  a  real  existence, 
(ierived  from  competent  governmental 
l^ower.  If  a  different  construction  had 
been  intended,  congress  would  doubtless 
have  used  fitting  words.  The  act  wotild 
have  given  jurisdiction  in  cases  of  de- 
cisions against  claims  of  authority  under 
the  United  States."  "In  many  cases  the 
question  of  the  existence  of  an  authority 
is  so  closely  connected  with  the  question 
of  its  validity  that  the  court  will  not  un- 
dertake to  separate  thetn.  and  in  such 
cases  the  question  of  jurisdiction  will  not 
be  considered  apart  from  the  question 
upon  the  merits,  or  except  upon  hearing 
in  regular  order.  But  where,  as  in  this  case. 
the  single  question  is  not  of  the  validity  but 
of  the  existence  of  an  authority,a"Hd  we  arc 
iviiiy  satisfied  that  there  was.  and  could 
have  been,  no  decision  in  the  state  court 
against  any  authority  under  the  United 
States  existing  in  fact,  this  court  has  no 
jurisdiction."  Baltimore,  etc.,  R.  Co.  v. 
Hopkins,  130  U.  S.  210,  224.  32  L.  Ed.  912. 
followed  in  District  of  Columbia  v.  Gan- 
non,   130    U.    S.   227.   32    L.    Ed.    922. 

Dismissal  of  civil  service  clerk. — No 
■writ  of  error  will  lie  from  this  court  to 
review  the  judgment  of  a  court  of  ap- 
peals of  the  District  of  Columbia,  affirm- 
ing the  decision  of  the  supreme  court  of 
the  district,  denying  a  petition  for  man- 
damus to  compel  the  secretar}'  of  war 
to  restore  a  clerk  in  the  classified  civil 
service  of  the  United  States,  who  had 
been  dismissed  from  the  service  for  mak- 
ing verj-  serious  reflections  upon  the 
president  of  the  United  States  in  a  desig- 
nated newspaper  article,  on  the  ground 
that  the  validity  of  an  authority  exercised 
under  the  United  States  is  drawn  in  ques- 
tion, because  the  relator  does  not  ques- 
tion the  authority  of  the  president  or  his 
representative  to  dismiss  him,  if  the  re- 
quired formalities  had  been  complied  with, 
but  simply  claims  that  there  were  certain 
rules  and  regulations  of  the  civil  service 
which  were  not  observed  in  the  matter  on 
dismissal,  and  that  therefore  dismissal 
was  illegal.  Taylor  v.  Taft,  203  U.  S. 
461,  51  L.  Ed.  269,  citing  South  Carolina 
V.  Seymour.  l.'iS  U.  S.  3.53,  38  L-  Ed.  742: 
United  States  v.  Lynch,  137  U.  S.  280,  34 
L.  Ed.  700,  and  distinguishing  Steinmetz 
r.    Allen,    192   U.    S.    .543,   48    L.    Ed.    555. 

An  injunction  restraining  a  person  from 
prosecuting  an  ordinary  suit  in  replevin 
in  a  court  established  under  the  autliority 
of  the  United  States,  does  not  necessarily 
involve  a  question  of  "the  validity  of  a 
treaty  or  statute  of  or  an  authoritj^  exer- 
cised under  the  United  States."  In  re 
Craft,   124  U.   S.   370,   373.   31    L.    Ed.   449. 

"Exercise  of  authority  under  United 
States." — In  an  action  against  the  Balti- 
more and   Potomac   Railroad  Companj'  to 


recover  for  injuries  suffered  by  an  unlaw- 
ful use  of  the  streets  of  Washington  by 
the  company-,  the  judgment  being  for  less 
than  the  jurisdictional  amount  necessary 
to  sustain  a  writ  of  error,  this  court  will 
not  acquire  jurisdicti<m  by  reason  of  a 
charge  to  the  jury  which  instructs  them 
that  certain  uses  of  those  streets  were 
warranted  by  statutes  of  the  United 
States,  and  that  certain  other  uses  were 
not  authorized  b)-  them,  because  this  does 
not  involve  the  exercise  of  an  authority 
under  the  United  States.  Seinble,  that 
that  company  is  not  authorized  to  occupy 
the  public  streets  of  Washington  for  the 
purpf  ses  of  a  freight  yard  as  such.  Balti- 
more, etc..  R.  Co.  z'.  Hopkins,  134)  U. -S. 
210V'32  L.  Ed'.  908,  912,  followed  in  District 
(^f  Columbia  7:  Gannon,  130  U.  S.  227,  32 
L.   Ed.   922. 

Jurisdiction  of  District  Justices. — A 
writ  of  error  will  lie  from  this  court  to 
the  court  of  appeals  of  the  District  of  Co- 
lumbia under  the  act  of  Februar}-  9,  1893, 
c.  74,  §  8,  27  Stat.  436,  to  review  its  de- 
termination upon  the  serious  and  impor- 
tant question  of  the  validity,  as  well  as  the 
interpretation  and  effect,  of  the  legisla- 
tion of  congress  conferring  upon  justices 
of  the  peace,  in  the  District  of  Columbia, 
jurisdiction  in  civil  actions  in  which  the 
matter  in  dispute  exceeds  twenty  dollars 
in  value,  and  providing  for  a  trial  by  a 
jury  before  the  justice  of  the  peace,  an 
appeal  from  his  judgment  to  the  supreme 
court  of  the  District  of  Columbia,  and  a 
trial  by  jury,  at  the  request  of  either  party, 
in  the  appellate  court.  Capital  Traction 
Co.  r.  Hof,  174  U.  S.  1,  4,  43  L.  Ed.  873, 
citing  Baltimore,  etc.,  R.  Co.  7'.  Hopkins, 
130  U.  S.  210,  224,  32  L.  Ed.  912;  Parsons 
V.  District  of  Columbia,  170  U.  S.  45.  43 
L.    Ed.    943. 

Constitutionality  of  assessment  laws. — 
Where  the  questions  raised  in  the  court 
of  appeals  of  the  District  of  Columbia 
were  three:  "Tst.  whether  the  act  of  the 
legislative  assembly  of  the  District  of 
Columbia,  approved  June  23,  1873,  in 
reference  to  the  construction  of  water 
mains,  and  providing  the  mode  of  assess- 
ment therefor,  and  also  the  act  of  con- 
gress of  August  11,  1894,  'to  regulate 
water  main  assessments  in  the  District 
of  Columbia,'  are  constitutional  and  valid 
enactments;  2d,  whether  in  the  assessment 
there  was  a  sufficient  description  of  the 
appellant's  property;  3d,  whether  there 
V.  a*-  sufficient  notice  of  the  assessment 
given  to  the  apDellants."  those  questions 
are  clearly  within  the  terms  of  the  stat- 
ute authorizing  this  court  to  review  the 
final  judarmerts  or  decrees  of  the  court 
of  appeals,  without  regard  to  the  sum  or 
value  of  the  matter  in  dispute,  where  the 
judgment  of  the  court  below  involved  the 


912 


APPEAL  AND  ERROR. 


thority  exercised  under  the  United  States,  must  be  directly  drawn  in  question.^** 
It  has  been  held,  upon  writ  of  error  to  the  supreme  court  of  the  District  of  Co- 
lumbia, that  the  words  of  the  act  of  March  3,  1835,  23  Stat.  443,  c.  355— "the 
Aalidity  of  a  statute  of,  or  authority  exercised  under  the  United  States"— do 
not  embrace  a  case  which  depends  only  on  a  judicial  construction  of  an  act  of 
congress,  there  being  no  denial  of  the  power  of  congress  to  pass  the  act,  or  of 
the  right  to  enjoy  whatever  privileges  are  granted  by  it.^^  A  writ 
of  error  will  not  lie  to  this  court  to  review  a  judgment  of  the  su- 
preme court  of  the  District  of  Columbia  denying  a  writ  of  mandamus  to  the 
commissioner  of  patents  to  register  a  trademark,  without  regard  to  the  sum  or 
value  in  dispute,  on  the  ground  that  there  is  drawn  in  question  the  validity  of  a 
treaty  or  statute  of  or  an  authority  exercised  under  the  United  States.  In  or- 
der to  come  within  this  clause,  the  validity,  and  not  the  construction  only,  of  a 
treaty  or  statute  of  the  United  States,  or  of  an  authority  exercised  under  the 


validity  of  a  statute  of  the  United  States 
or  of  an  authority  exercised  under  the 
United  States.  Parsons  v.  District  of 
Columbia,  170  U.  S.  45,  50,  42  L.   Ed.  943. 

Validity  of  rule  of  commissioner  of 
patents. — Where  the  validity  of  a  rule  of 
practice  established  by  the  commissioner 
of  patents  as  authorized  by  §  483  of  the 
Revised  Statutes,  is  assailed  in  the  court 
of  appeals  of  the  District  of  Columbia, 
the  supreme  court  has  jurisdiction  to  re- 
view the  judgment  in  the  court  of  appeals 
by  virtue  of  the  act  of  Feb.  9,  1893.  which 
gives  an  appeal  to  the  supreme  court 
from  final  judgments  or  decrees  of  the 
court  of  appeals  in  cases  in  which  there  is 
drawn  in  question  the  validity  of  "an-  au- 
thority exercised  under  the  United 
States."  Steinmetz  z:  Allen,  192  U.  S. 
543,    556,    48    L.    Ed.    555. 

88.  South  Carolina  v.  Seymour,  153  U. 
S.  353,  358,  38  L.  Ed.  742;  Taylor  v.  Taft, 
203  U.  S.  461.  51  L.  Ed.  269;  United 
States  V.  Ware,  189  U.  S.  507,  47  L.  Ed. 
922;  The  Columbian  Correspondence  Col- 
lege V.  Cortelyou,  200  U.  S.  615,  50  L. 
Ed.  621. 

In  Baltimore,  etc.,  R.  Co.  v.  Hopkins, 
130  U.  S.  210,  220,  32  L.  Ed.  908,  912.  the 
question  in  controversy  was  whether  a 
railroad  corporation,  authorized  by  acts 
of  congress  to  establish  freight  stations, 
and  to  la}-  as  many  tracks  as  "its  presi- 
dent and  board  of  directors  might  deem 
necessary''  in  the  District  of  Columbia, 
had  the  right  to  occupy  a  public  street 
for  the  purposes  of  a  freight  yard.  It 
was  argued  that  the  validity  of  an  au- 
thority, exercised  under  the  United 
States,  to  so  occupj'  the  public  streets, 
was  drawn  in  question;  but  this  court  held 
otherwise,  and  said:  "The  validity  of  the 
statutes  and  the  validity  of  authority  ex- 
ercised under  them,  are,  in  this  instance, 
one  and  the  same  thing;  and  the  'validity 
of  a  statute,'  as  these  words  are  used  ip, 
this  act  of  congress,  refers  to  the  powers 
of  congress  to  pass  the  particular  statute 
at  all,  and  not  to  mere  judicial  construc- 
tion as  contradistinguished  from  a  denial 
of  the  legislative  power."      Linford  z'.   El- 


lison,  155   U.    S.   503,   508,   39   L-    Ed.   239. 

This  court  has  no  jurisdiction  without 
regard  to  the  sum  or  value  in  dispute  to 
review  the  judgment  of  a  territorial  su- 
preme court  against  the  tax  collector  of 
a  municipal  corporation  for  the  value  of 
the  property  levied  on  by  him  for  unpaid 
municipal  taxes,  in  a  less  amount  than 
$5,000.  rendered  on  the  ground  tha,t  a 
municipal  corporation,  which  is  a  small 
village  but  has  extensive  limits,  cannot 
tax  farming  lands  for  municipal  purposes 
lying  within  the  corporate  limits,  but  out- 
side of  the  platted  portion  of  the  city, 
and  so  far  removed  from  the  settled  por- 
tion thereof  that  the  owner  would  derive 
no  benefits  from  the  municipal  govern- 
ment, because  the  decision  of  the  supreme 
court  of  the  territory  only  involves  the 
construction  of  the  organic  law  and  the 
scope  of  the  authority  to  legislate  con- 
ferred upon  the  territorial  legislature;  and 
the  validity  of  that  authority  and  of  the 
statute  is  not  drawn  in  question.  Linford 
::  Ellison.  155  U.  S.  503,  39  L.  Ed.  239, 
citing  United  States  v.  Ljmch.  137  U.  S. 
280,  34  L.  Ed.  700;  Baltimore,  etc.,  R.  Co. 
z:  Hopkins.  130  U.  S.  210,  32  L.  Ed.  908, 
912;  South  Carolina  v.  Seymour,  153  U. 
S.  353,  38  L.  Ed.  742,  Mr.  Justice  Harlan 
dissenting. 

Unanimous  verdicts  of  juries.  — A  de- 
cision by  the  supreme  court  of  a  territory 
that  the  act  of  congress  vested  in  the  ter- 
ritorial legislature  such  unlimited  legis- 
lative power  as  enabled  it  to  provide  that 
unanimity  of  action  on  the  part  of  jurors 
in  civil  cases  was  not  necessary  to  a  valid 
verdict,  and  that  the  act  was  not  in  viola- 
tion of  the  seventh  amendment  to  the 
constitution  of  the  United  States,  in- 
volves not  merely  a  matter  of  construe-- 
tion  of  the  territorial  act,  but  the  validity 
of  the  act  Ayas  drawn  in  question,  and 
hence  may  be  reviewed  by  this  court  re- 
gardless of  the  amount,  because  "■  the 
validity  of  an  act  of  congress  was  drawn 
in  question.  Salt  Lake  City  z\  Tucker, 
166   U.    S.    707,    41    L.    Ed.    1172. 

89.  Baltimore,  etc.,  R.  Co.  v.  Hopkins, 
130   U.   S.   210,   32   L.    Ed.  912. 


APPEAL  A\D  HRROR. 


913 


Tnited   States,  must  be  directly  drawn  in  question. ^^ 

An  inquiry  as  to  the  jurisdiction,  original  and  appellate,  of  the  terri- 
torial court,  draws  in  question  the  validity  of  an  authority  exercised  under  the 
United  States  within  the  meaning  of  §  2,  of  the  act  of  March  3,  1885,  author- 
izing this  court,  without  regard  to  the  sum  or  value  in  dispute,  to  review  the 
judgment  or  decree  of  the  supreme  court  of  a  territory,  in  any  case  in  which  is 
drawn  in  question  the  validitv  of  an  authority  exercised  under  the  United 
States.91 

Must  Be  Drawn  in  Question  Directly.— In  order  to  give  jurisdiction  to 
this  court  under  the  statute  allowing  an  appeal  or  writ  of  error  to  this  court  re- 
gardless of  amount,  where  "the  validity  of  an  authority  exercised  under  the 
United  States  is  drawn  in  question  in  the  case,"  the  validity  of  the  authority 
must  have  been  drawn  in  question  directly  and  not  incidentally.  The  validity  of 
a  statute  is  not  drawn  in  question  'every  time  rights  claimed  under  such  statute 
are  controverted,  nor  is  the  validity  of  an  authority,  every  time  an  act  done  by 
such  authority  is  disputed.  The  validity  of  a  statute  or' the  validity  of  an  au- 
thority is  drawn  in  question  when  the  existence,  or  constitutionality,  or  legality 
of  such  statute  or  authority  is  denied,  and  the  denial  forms  the  subject  of  di- 
rect   inquiry. "^^2 


90.  South  Carolina  v.  Seymour.  153  U. 
S.   353.  38   L.    Ed.   742. 

In  Snow  V.  United  States,  118  U.  S.  346, 
353.  30  L.  Ed.  207.  in  which  it  was  con- 
tended that  a  court  established  bj'  act  of 
congress,  and  admitted  to  have  a  lawful 
existence,  and  jurisdiction  of  the  case, 
misconstrued  the  act  and  went  beyond 
the  authority  which  it  conferred,  it  was 
held,  that  all  that  was  drawn  in  question 
was  whether  there  was  or  was  not  error 
in  the  administration  of  the  statute,  and 
not  "the  validity  of  an  authority  exer- 
cised under  the  United  States,"  within 
the  meaning  of  the  act  of  March  3,  1885, 
c.  355. 

Tn  Baltimore,  etc..  R.  Co.  v.  Hopkins, 
130  U.  S.  210.  32  L.  Ed.  908.  which  also 
arose  under  the  act  of  March  3,  1885,  c. 
355.  the  question  in  controversy  was 
whether  a  railroad  corporation  authorized 
by  acts  of  congress  to  establish  freight 
stations,  and  to  lay  as  many  tracts  "as 
its  president  and  board  of  directors  might 
deem  necessary,"  in  the  District  of  Co- 
lumbia, had  the  right  to  occupy  a  public 
street  for  the  purposes  of  a  freight  yard. 
It  was  argued  that  the  validitv  of  an  au- 
thorit3%  exercised  under  the  United 
States,  to  so  occupy  the  public  streets  was 
drawn  in  question.  But  this  court  held, 
that  only  the  construction  of  the  acts  of 
congress,  and  the  extent  of  the  authority 
claimed  under  them,  and  not  the  validity, 
either  of  the  statutes,  or  of  the  authority, 
was  drawn  in  question;  or,  in  other  words, 
it  was  "a  case  which  depends  only  on  a 
judicial  construction  of  an  act  of  con- 
gress, there  being  no  denial  of  the  power 
of  congress  to  pass  the  act.  or  of  the 
right  to  enjoy  whatever  privileges  are 
irranted  by  it."  Cl'^ugh  v.  Curtis.  134  U. 
S.  361,    370,   33   L.    Ed.   945. 

In  District  of  Columbia  v.  Gannon,  130 
U.  S.  227.  32  L.  Kd.  922,  it  was  held,  that 

1  U  S  Elnc— 58 


the  validity  of  the  authority  of  the  commis- 
sioners of  the  district  was  not  drawn  in 
question  by  contesting  the  liability  of  the 
district  in  damages  for  the  negligence  of 
the  commissi':ners  in  failing  to  keep  the 
streets    in    repair. 

91.  Clough  V.  Curtis.  134  U.  S.  361,  369, 
33  L.  Ed.  945.  citing  Clayton  v.  Utah.  132 
U.   S.   632,   33   L.   Ed.   455. 

92.  United  States  v.  Lynch,  137  U.  S. 
280,  285,  34  L.  Ed.  700;  Cook  County  v. 
Calumet,  etc.,  Co.,  138  U.  S.  635,  34  L. 
Ed.  1110;  McLean  v.  Denver,  etc.,  R.  Co., 
203  U.  S.  38,  47,  51  L.  Ed.  78;  Linford  v. 
Ellison.  155  U.  S.  503,  508,  39  L.  Ed. 
233. 

In  Clayton  v.  Utah.  132  U.  S.  632.  33 
L.  Ed.  455,  the  power  vested  in  the  gov- 
ernor of  the  territory  of  Utah  by  the  or- 
ganic act,  to  appoint  an  auditor  of  public 
accounts,  was  drawn  in  qx'estion;  and  in 
Clough  V.  Curtis,  134  U.  S.  361,  369,  33 
L.  Ed.  945,  the  lawful  existence,  as  the 
legislative  assembly  of  the  territory  of 
Idaho,  of  a  body  of  persons  claiming  to 
exercise  as  such  the  legislative  power  con- 
ferred by  congress,  was  controverted.  In 
Neilson  v.  Lagow,  7  How.  772,  775,  12 
L.  Ed.  399,  and  Neilson  v.  Lagow,  12 
How.  98.  13  L.  Ed.  46.  the  plaintiff  in  er- 
ror claimed  the  land  in  dispute  through 
an  authority  exercised  by  the  secretary 
of  the  treasury,  and  the  state  court  de- 
cided against  its  validity.  The  existence 
or  validity  of  the  authority  was  pri- 
marily involved  in  these  cases. 

In  United  States  v.  Lvnch.  137  U.  S. 
280,  34  L.  Ed.  700,  in  which  the  court  be- 
low had  denied  a  writ  of  mandamus  to 
compel  accounting  officers  of  the  treas- 
ury to  allow  a  claim  for  mileage,  it  was 
contended  that  under  the  acts  of  congress, 
and  the  construction  given  them  by  a 
previous  decision  of  this  court,  the  duty 
of    the    accounting    officers     "was     merely 


914  APPEAL  AND  ERROR. 

Since  the  rig-ht  to  legislate  in  the  territories  is  conferred,  under  consti- 
tutional authority,  by  the  congress  of  the  United  States,  the  passage  of  a 
territorial  law  is  the  exertion  of  an  authority  exercised  under  the  United  States 
within  the  meaning  of  this  statute.  Therefore,  this  court  has  jurisdiction  where 
it  is  contended  that  a  territorial  act  passed  in  pursuance  of  the  authority  given 
by  the  United  States  to  the  territorial  legislature,  violates  the  territorial  consti- 
tution, and  is  therefore  invalid. ^^ 

'Taxation. — The  question  whether  a  territory  has  authority  under  its  organic 
'act  to  extend  its  taxing  power  beyond  its  limits  and  over  a  reservation  created 
by  act  of  congress  so  as  to  authorize  it  to  tax  a  railroad  which  has  been  granted 
by  congress  a  right  of  way  over  an  Indian  reservation  within  the  territory,  may 
be  brought  to  this  court  without  regard  to  the  value  of  the  matter  in  dispute,  be- 
■  cause  "there  is  drawn  in  question  the  validity  of  a  treaty  or  statute  of  or  an  au- 
thority exercised  under  the  United  States."^*  On  the  other  hand,  it  is  clear  that 
such  issues  as  involve  the  regularity  of  the  tax,  the  sum  of  the  penalties  due,  the 
extent  of  the  lien  given  by  the  territorial  law,  etc.,  do  not  present  any  q,uestion 
mi  the  exercise  of  authority  under  laws  of  the  United  States. ^^ 

Validity  of  Authority  Exercised  by  United  States. — A  fw-oceeding  by  the 
\Jnited  States  to  compel  the  defendant  to  abate  a  wire  fence,  by  which  he  was  al- 
leged to  have  inclosed  a  large  tract  of  public  lands,  belonging  to  the  United  States, 
and  subject  to  entry  as  agricultural  lands,  in  violation  of  the  act  of  February  25, 
1885,  23  Stat.  321,  c.  149,  to  prevent  the  unlawful  occupancy  of  public  lands, 
cannot  be  brought  to  this  court  under  §  2  of  the  act  of  March  3,  1885  providing 
that  the  limit  of  $5,000  will  not  apply  to  any  case  in  which  is  drawn  in  question 
the  validity  of  a  statute  of  or  an  authority  exercised  under  the  United  States.^ 
"Nor  can  our  jurisdiction  be  sustained  under  the  second  section  of  the  act  of 
March  3.  1885,  providing  that  the  limit  of  $5,000  shall  not  apply  to  any  case  in 
which  is  drawn  in  question  the  validity  of  a,     *     *     *     statute  of  or  an  authority 

ministerial,   and   that   by   the   disallowance  because    they    had    disallowed    what    they 

of  the  relator's  claim  for  mileage,  these  of-  ought    to    have    allowed,    and    erroneously 

ficers    exercised    a    discretion    which    they  construed    what    needed    no    construction; 

did   not  possess;   that  this  was  an   invalid  and  that  this  would  not  in  any  degree  in- 

exercise  of  an  authority  under  the   United  volve  the  validity  of  their  authority. 

States;  and  that  hence  the  validity  of  the  93.    McLean  v.  Denver,  etc.,  R.  Co..  203 

authority    was    drawn    in    question."      To  jj     g     33^    45^    5^    j^     g^j     -j-g.      .^^    ot-j^^r 

which    this    court,    speaking   by    the    chief  words,   the  validity  of   an   authority   exer- 

justice,    answered:      "In    order    to    justify  ^jsed  under  the  United  States  in  the  pas- 

this  position,  however,  the  validity  of  the  gage    and    enforcement    of   this    law   is   dJ- 

authority  must  have  been   drawn  in   ques-  rectly     challenged,       and     the    'case     does 

tion    directly    and    not    incidentally.      The  involve   the  validity  of  an  authority    exer- 

validity  of  a  statute  is  not  drawn  m  ques-  ^ised    under   the   power   derived    from   the 

tion  every  time  right*  claimed  under  ?uch  United    States.      It    is    not    a    case    merely 

statute  are  controverted;  nor  is  the  validity  involving  the  construction  of  a  legislative 

of   an   authority,    every   time   an    act   done  act    of    the    territory,    as    was    the    fact   i« 

by  such  authority  is  disputed.     The  valid-  Snow   v.  United   States,   118   U.   S.  346,  30 

ity  of  a   statute   or  the  validity   of   an   au-  l.    gd.   207.      The   power   to   pass   the  act 

thority  is  drawn  in  question  when  the  ex-  at  all,  in  view  of  the  requirements  of  the 

istence.   or   constitutionality,   or  legality  of  constitution    of   the    United    States,    is   the 

such    statute    or    authority    is    denied,    and  subject  matter  in  controversy,  and  brings 

the  denial  forms  the   subject  of  direct  in-  the  case  in  this  aspect  within   the  second 

quiry.       The   court   accordingly   held   that  section    of   the    act " 

the    authority    of    the    accounting    officers  '^    ^^      Maricopa,    etc.,    R.    Co.   v.    Arizona, 

of  the   treasury  was   not  thus   denied,  nor  ^^^  ^    5    3^^^  33  ^    ^^             ^.^.        ^^ 

the  vahdity  of  that  authority   questioned:  .^       ,    TT^.^u    100  tt    o    coo    00  t     ^a    akk 

i_    i  ii.    I.  -^  1  »      J    j^u   ^  •      <.u  ton  V.    Utah,  132    U.  b.  632,  33  L.   t-d.  455, 

but  that  It  was  only  contended  that  m  the  ^^^  distinguishing  Linford  v.   Ellison.  155 

exercise  of  a  valid  authority  those  officers  ^    g    ^^3  %g   ^^^^    23^ 
erred  m  respect  to  the  allowance,  in  view 

of   the    decision   of   this    court    in    another  95-    Linford  v.  Ellison,  155  U.   S.  503,  39 

case;   that   if   the  judgment   should   be   re-  L.   Ed.  239;   Maricopa,  etc.,  R.   Co.  v.  Ari- 

versed    upon   the    ground    urged,    it    would  zona.  156  U.   S.  347,  351,  39  L.   Ed.  447. 
not  be  for  want  of  power  in  these  officers  96.     Cameron   v.    United    States,    146    U. 

to   audit   and   pass   upon   the   account,   but  S.   533,   36   L.   Ed.   1077. 


APPEAL  AND  ERROR. 


915 


exercised  umler  the  United  States ;  since  this  refers  to  an  authority  exercised  or 
claimed  in  favor  of  one  of  the  parties  to  the  cause,  the  vahdity  of  which  was  put 
in  issue  on  the  trial  of  the  case,  and  not  to  the  validity  of  an  authority  exercised 
by  the  United  States  in  removing  the  fence  pursuant  to  the  judgment  of  fhe  court. 
If  the  latter  were  the  true  construction,  then  every  case  in  which  the  court  issued 
an  injunction  or  an  execution  might  be  said  to  involve  the  validity  of  a  statute, 
or  an  authority  exercised,  under  the  United  States,  since  it  is  by 
virtue  of  such  authority  that  the  marshal  executes  the  writ.  No  question  is  raised 
here  as  to  the  validity  of  a  statute,  but  merely  as  to  the  application  of  the  stat- 
ute to  this  case.""' 

f.  Deprivation  of  Constitutional  Rights  and  Immunities. — Under  subdivisioa 
4  of  §  699  of  the  Revised  Statutes,  an  appeal  or  writ  of  error  will  lie,  without  re- 
gard to  the  sum  or  value  in  dispute,  from  any  final  judgment  at  law  or  final  de- 
cree in  equity  of  any  circuit  court,  or  of  any  district  court  acting  as  a  circuit  court, 
in  any  case  brought  on  account  of  the  deprivation  of  any  right,  privilege,  or  immu- 
nity secured  by  the  constitution  of  the  United  States,  or  of  any  right  or  privilege  of 
a  citizen  of  the  United  States. ^^  Except  in  certain  cases,  the  mere  fact  that  the 
matter  in  dispute  arises  under  the  constitution  or  laws  of  the  United  States,  or 
treaties  made,  does  not  give  us  jurisdiction  for  review  of  the  judgments  or  de- 
crees of  the  circuit  or  district  courts.  If  the  value  of  the  matter  in  dispute,  ex- 
clusive of  costs,  does  not.  in  such  a  case  as  this,  exceed  $,\000,  we  connot  con- 
sider it  any  more  than  others  in  which  the  amount  in  value  is  le.ss  than  our  juris- 
dictional  limit. '^'" 

g.  Action  for  Dower.- — The  action  of  dower  is  not  exempt  from,  nor  excepted 
out  of,  the  act  fixing  the   jurisdictional  amount  necessary   for  an   appeal.^ 


97.  Cameron  v.  United  States.  146  U. 
S.   533.   536.   36   L.   Ed.   1077. 

98.  Deprivation  of  constitutional  rights 
and  immunities. — This  court  cannot  re- 
view the  action  of  the  court  below  in 
refusing  plaintiffs  in  error  a  separate  trial, 
and  in  consolidating  them  under  §  921  of 
the  Revised  Statutes,  unless  the  vahie  of 
the  matter  in  dispute  is  sufficient  to  give 
this  court  jurisdiction;  nor  under  subdi- 
vision 4  of  §  699  of  the  Revised  Statutes. 
■"because  this  judgment  was  not  rendered 
in  a  'case  brought  on  account  of  the  de- 
privation of  an}-  right,  privilege  or  im- 
munity secured  by  the  constitution  of  the 
United  States,  or  of  any  right  or  privilege 
of  a  citizen  of  the  United  States.'  Cogs- 
well V.  Fordyce.  128  U.  S.  391,  .32  L.  Ed. 
484."  Hanover  Fire  Ins.  Co.  ?■.  Kinneard, 
129   U.    S.    176.    177.   32   L.    Ed.   653. 

A  suit  involving  the  duty  of  a  carrier 
■of  goods  for  hire  to  carry  whenever  he 
is  asked  to  do  so,  growing  out  of  the  duty 
which  in  law  the  common  carrier  owes 
to  the  public  at  large,  is  no  more  secured 
Tjy  the  constitution  than  any  other  of  the 
ordinary  transactions  of  business.  Ac- 
■cordingly  the  case  does  not  fall  within 
the  fourth  subdivision  of  the  Revised 
Statutes  which  gives  this  court  jurisdic- 
tion, "without  regard  to  the  sum  or  value 
in  dispute."  for  the  review  of  "any  final 
judgment  at  law  or  final  decree  in  equity 
of  any  circuit  court,  or  of  any  district 
court  acting  as  a  circuit  court,  in  any  case 
brought  on  account  of  the  deprivation  of 
any  right,  privilege,  or  immunity  secured 
by  the   constitution   of  the   United   States. 


or  of  any  right  or  privilege  of  a  citizen 
of  the  United  States."  Bowman  v.  Chi- 
cago, etc..  R.  Co.,  115  U.  S.  611,  29  L.  Ed. 
502. 

An  action  upon  a  bond  given  to  super- 
sede a  judgment  or  decree  of  a  court  of 
the  United  States,  cannot  properly  be 
said  to  be  brought  on  account  of  the  de- 
privation of  anj'  right,  privilege,  or  im- 
munity secured  by  the  constitution  of  the 
United  States,  so  as  to  give  this  court 
jurisdiction.  "Under  the  fourth  subdi- 
vision of  §  699  of  the  Revised  Statutes, 
providing  that  this  court  may,  without  re- 
gard to  the  sum  or  value  in  dispute,  re- 
view any  final  judgment  at  law  or  finaJ 
decree  in  equity  of  any  circuit  court  or 
of  any  district  court  acting  as  a  circuit 
court,  'in  any  case  brought  on  account 
of  the  deprivation  of  any  right,  privilege, 
or  immunity  secured  by  the  constitution 
of  the  United  States,  or  of  any  right  or 
privilege  of  a  citizen  of  the  United 
States.'  "  "The  mere  failure  or  refusal 
of  the  obligors  in  such  a  bond  to  comply 
with  its  terms  is  not,  within  the  meaning  of 
the  statute  referred  to,  a  'deprivation'  of 
a  right  secured  to  the  obligee  by  the  con- 
stitution of  the  United  States,  or  of  any 
rigiit  or  privilege  belonging  to  him,  as 
a  citizen  of  the  United  States."  Cogs- 
w^ell  V.  Fordyce.  128  U.  S.  391,  392,  32  L. 
Ed.  484,  citing  Bowman  v.  Chicago,  etc, 
R.    Co.,   115   U.   S.    611,   29   L.    Ed.   502. 

99.  Adams  v.  Crittenden.  106  U.  S.  576, 
577.   27   L.   Ed.   99. 

1.  Action  for  dower. — Clay  v.  FieW, 
138  U.   S.   464,  479,  34  L.   Ed.   1044. 


yi6  AFFUAL  AAD  EKKOK- 

h.  Cases  of  Viohtioti  of  or  Dcf'arture  from  Mandate. — An  appeal  will  not 
lie  from  a  decree,  simply  upon  the  ground  that  it  is  in  violation  of  or  a  departure 
from  a  mandate  of  this  court,  without  reference  to  the  value  of  the  matter  in 
dispute.  While  compliance  with  the  mandate  of  this  court,  which  leaves  noth- 
ing to  the  judgment  or  discretion  of  the  court  below,  and  simply  requires  the 
execution  of  our  decree,  may  be  enforced  by  mandamus,  without  regard  to  the 
value  of  the  matter  in  dispute,  we  cannot  entertain  an  appeal,  if  the  value  of  the 
matter  in  dispute  upon  such  appeal  is  less  than  $5,000.- 

i.  Cases  Certified  from  Circuit  Courts. — Prior  to  the  Court  of  appeals  act,  it 
was  held  that  the  jurisdiction  of  this  court  on  a  certificate  of  division  of  opinion 
between  the  judges  of  the  circuit  court  is  not  dependent  on  the  value  or  the 
amount  in  controversy. ^ 

j.  Suits  against  United  States. — Under  the  act  of  March  3,  1887,  entitled  "An 
act  to  provide  for  the  bringing  of  suits  against  the  government  of  the  L^nited 
States."  an  appeal  will  lie  to  this  court  from  a  district  court,  without  regard  to 
the  amount   in   controversy.^ 

k.  Cases  from  Territory  of  Florida. — It  has  been  held,  repeatedly,  that  a  writ 
of  error  will  lie  to  revise  the  judgments  of  the  circuit  and  district  courts,  in  the 
peculiar  class  of  cases  described  and  provided  for  in  §  8  of  the  act  of  congress 
passed  22d  of  February,  1847.  entitled  "An  act  to  regulate  the  exercise  of  the 
appellate  jurisdiction  of  the  supreme  court  in  certain  cases,"  without  reference 
to  the  amount  in  controversy.  This  act  provides  amongst  other  things  for  the 
transfer  of  the  records  of  the  proceedings,  including  the  judgments  and  decrees 
of  all  cases  not  appropriately  belonging  to  state  jurisdiction,  pending  in  the  su- 
perior court  or  court  of  appeals  in  the  territory  of  Florida  at  the  date  of  her 
admission  into  the  I'nion.  into  the  district  court  of  the  United  States  for  the 
state  of  Florida.^' 

1.  Review  of  Orders  Remanding  Causes  Removed  from  State  Courts. — A  writ 
of  error  would  lie  to  this  court  under  the  act  of  March  3,  1875,  c.  137.  18  Stat., 
pt.  3,  p.  470,  to  review  an  order  of  the  circuit  court  remanding  an  action  at  law 
removed  thereto  from  a  state  court,  without  regard  to  the  pecuniary  value  of 
the  matter  in  dispute.  But,  as  we  shall  see  later,  this  court  can  no  longer  review 
such  orders.^ 

2.  Cases  of  violation  of  or  departure  13  L.  Ed.  •  262,  reaffirmed  in  Simpson  v. 
from  mandate. — City  Bank  v.  Hunter,  152  United  States,  9  How.  578,  13  L.  Ed.  265; 
U.  S.  512,  38  L.  Ed.  534,  citing  Nashua.  Cotton  v.  United  States,  9  How.  579.  13 
etc..   Railroad  v.   Boston,   etc..    Railroad.   5  L.   Ed.   265. 

U.   S.  App.  97,  and  distinguishing  Perkins  6.    Review   of   orders   remanding   causes 

r    Fourniquet.  14  How.  328,  14  L.  Ed.  441.  removed    from    state    courts. — Babbitt     V. 

3.  Cases  certified  from  circuit  courts.  Clark.  103  U.  S.  606,  26  L.  Ed.  507;  Rich- 
— Weeth  V.  New  England  Mortgage  Co..  mond.  etc.,  R.  Co.  v.  Thouron.  134  U.  S. 
106    U.    S.    605.    27    L.    Ed.    99.      See    post,  46,   33    L.    Ed.    891. 

"Certificate  of  Division  of  Opinion,  V."  "Final  judgments  and  decrees  in  the 
On  the  trial  of  an  action  at  law,  when  circuit  courts  in  civil  actions  cannot  or- 
the  judges  of  the  circuit  court  are  op-  dinarily  be  brought  here  for  review  unless 
posed  in  opinion  on  a  material  question  the  value  of  the  matter  in  dispute  exceeds 
of  law,  the  opinion  of  the  presiding  judge  $5,000  (Rev.  Stat..  §§  691,  692;  18  Stat, 
prevails;  hut  the  judgment  rendered  con-  315,  c.  77.  §  3);  but  an  order  of  the  cir- 
formably  thereto  may.  without  regard  to  cuit  court  remanding  a  removed  suit  to 
its  amount,  be  reviewed  on  a  writ  of  er-  the  state  court  is  in  no  just  sense  n  final 
Tor,  upon  their  certificate  stating  such  judgment  or  decree  in  the  action.  It 
question.  Dow  v.  Johnson,  100  U.  S.  158,  simplv  fixes  the  court  in  which  the  par- 
25  L.  Ed.  632,  Mr.  Justice  Swayne,  Mr.  ties  shall  go  on  with  their  litigation  Tin- 
Justice  Clifford,  and  Mr.  Justice  Miller  der  the  old  law  there  was  no  pecuniary 
dissenting.  limit  to  our  jurisdiction  tia.-proceed  in  Ihi.s 

4.  Suits  against  United  States. — United  class  of  cases  by  mandamus,  and  we  thnik 
States  V.  Davis,  131  U.  S.  36,  33  L.  Ed.  it  was  the  intention  of  congress  to  sub- 
93;  United  States  v.  Mosby.  133  U.  S.  273.  stitute  appeals  and  writs  of  error  for  that 
83' L.   Ed.  625.  mod'"   of   proreedinT."   rSnUhitt  !».  Clark.  10.1 

5.  Cases    from   territory    of    Florida.—       U.   S.  606,  610,  26  L.  Ed.   507. 
Forsythe    v.    United    States,    9    How.    571, 


APPEAL  AND  ERROR. 


917 


m.  Cases  Involving  Jurisdiction  of  Circuit  Courts. — In  General. — The  act  of 
February  25,  1889,  25  Stat.  693,  c.  236,  provides  that  "in  all  cases  where  a  final 
judgment  or  decree  shall  be  rendered  in  a  circuit  court  of  the  United  Stales  in 
which  there  shall  have  been  a  question  involving  the  jurisdiction  of  the  court, 
the  party  agaisst  whom  the  judgment  or  decree  is  rendered  shall  be  entitled  to 
an  appeal  or  writ  of  error  to  the  supreme  court  of  the  United  States  to  review 
such  judgment  or  decree,  without  reference  to  the  amount  of  the  same ;  but 
in  cases  where  the  decree  or  judgment  does  not  exceed  the  sum  of  five  thousand 
dollars  the  supreme  court  shall  not  review  any  question  raised  upon  the  record 
except  such  question  of  jurisdiction."  The  provisions  of  this  statute  plainly 
disclose  the  intent  of  congress  that  a  party  whose  suit  has  been  dismissed  by  a 
circuit  court  for  want  of  jurisdiction  shall  have  the  right  to  have  such  judg- 
ment reviewed  by  this  court.  And  we  have  accordingly  heretofore  held  that  the 
action  of  the  circuit  courts  in  such  cases  is  subject  to  our  revision-^  But  where 
the  judgment  does  not  exceed  $5,000,  the  case  can  only  come  to  this  court  on 
the  question  of  the  jurisdiction  of  the  circuit  court. ^ 

The  words  "a  final  judgment  or  decree,"  in  this  act,  are  manifestly  used 
in  the  same  sense  as  in  the  prior  statutes  which  have  received  interpretation,  and 
therefore  orders  to  remand  causes  from 'a  circuit  court  to  a  state  court  from 
which  thev  have  b«=pn  removed,  are  not  final  judgments  or  decrees,  whatever 
the  ground  upon  which  the  circuit  court  proceeded.^'' 

Raising  Question  of  Jurisdiction  Below. — Under  this  statute  although  it 
does  not  appear  that  the  question  of  jurisdiction  v^s  rai'^ed  in  the  court  below 
by  any  plea  or  mdtion,  yet  if  the  record  fails  to  affirmatively  show  jurisdiction, 
this  court  must  take  notice  of  the  defect.^' 


7.  Cases  involving  jurisdiction  of  cir- 
cuit courts. — Graves  v.  Corbin,  132  U.  S. 
571,  .591.  33  L.  Ed.  462;  Richmond,  etc.. 
R.  Co.  V.  Thorron,  134  U.  S.  45,  47,  33 
L.  Ed.  891.  reaffirmed  in  Texas  Land,  etc.. 
Co.  V.  Scott,  137  U.  S.  436,  34  L.  Ed.  730; 
Texas,  etc.,  R.  Co.  v.  Saunders.  151  U.  S. 
]i»5.  38  L.  Ed.  90;  Texas,  etc.,  R.  Co.  v. 
Horn,  151  U.  S.  110,  38  L.  Ed.  91;  May- 
nard  v.  Hecht,  151  U.  S.  324,  326,  38  L 
Ed.  179;  Mattin^lv  v.  Northwestern,  etc.. 
R.  Co.,  158  U.  S.   53,  57.  39  L.   Ed.   894. 

This  is  a  case  "where  the  jurisdiction 
is  founded  only  on  the  fact  that  t^--  ac- 
tion is  bf^tween  citizens  of  different 
states."  The  question  whether  under  that 
act  the  circuit  court  of  the  United  States 
for  the  Western  District  of  Texas  had 
jurisdiction  of  the  case  is  a  question  in- 
volving the  jurisdiction  of  that  court, 
which  this  court  is  empowered,  by  the 
act  of  February  25,  1889,  c.  236,  to  review 
by  writ  of  error,  although  the  judcrment 
below  WPS  for  less  than  five  thousand 
dollars.  S'~"'thern  Pacific  Co.  v.  Denton. 
146    U.    S.    202,    205.    36    L.    Ed.    942. 

8.  Williams  7'.  Nottawa,  104  U.  S.  209. 
26  L.  Ed.  719;  Barry  v.  Edmunds.  116  U. 
S.  550.  29  L.  Ed.  729;  Hartog  v.  Mi-mory, 
116  U.  S.  588.  29  L.  Ed.  725;  Morris  v. 
Gilmer,  129  U.  S.  315.  32  L-  Ed.  690; 
Depntron  v.  Youn??.  134  U.  S.  241.  33  L. 
Fd.  q23:  Lehigh  Min.  Mfg.  Co.  v.  Kelly, 
■"'ft  U.  S.  327.  40  L.  Ed.  444;  Wetmore  v. 
Rvmer,  169  U.  S.  115,  118.  42  L.  Ed 
«82. 

9.  St.  Louis,  etc..  Railway  C'^.  v.  Mr- 
Bride,  141  U.  S.  127,  35  L.  Ed.  P-^O  sit- 
ing 25   Stat.  693,  c.  236;   McCormick  Har- 


vesting Machine  Co,  2>.  Walthers,  134  U. 
S.   41,   33    L.    Ed.   833. 

10.  Richmond,  etc.,  R.  Co.  v.  Thouron, 
134  U.  S.  45.  46,  33  L.  Ed.  871,  reaffirmed 
in  Texas  Land,  etc.,  Co.  v.  Scott,  137  U.  S. 
436,   34    L.    Ed.    730;    Birdseye   v.    Shaeffer. 

140  U  S.  117,  35  L.  Ed.  402;  Chicago,  etc., 
R.  Co.  V.  Roberts,  141  U.  S.  690,  694,  35 
L  Ed.  905;  Graves  v.  Corbin,  132  U.  S. 
571,  591.  33  L.  Ed.  462;  German  Nat.  Bank 
V.  Speckert.  181  U.  S  405,  406,  407.  45  L. 
Ed    926 

This  court  has  no  jurisdiction  of  an 
appeal  from  a  judgment  of  a  circuit  court 
remanding  to  a  state  court  a  cause  which 
had  been  improperly  removed  from  it. 
Joy  V.  Adelbert  College,  146  U.  S.  355, 
36  L.  Ed.  1003.  citing  Richmond,  etc.,  R. 
Co.  V.  Thouron,  134  U.  S  45,  33  L.  Ed. 
871;  Gurnee  v.  Patrick  County,  137  U. 
S     141,    34    L.    Ed     601;     McLish    v     Roff, 

141  U.  S.  661,  35  L.  Ed.  893;  Chicago, 
etc.,  R.  Co.  V.  Roberts.  141  U.  S.  690,  35 
L.  Ed.  905 

An  order  sustaining  a  demurrer  and  re- 
manding a  case  to  a  state  court  is  not 
such  a  final  judgment  as  is  contemplated 
by  the  act  of  February  25,  1889,  provid- 
ing that  when  a  final  judgment  shall  be 
rendered  in  a  circuit  court  involving  the 
question  of  the  jurisdiction  of  the  court, 
an  appeal  or  writ  of  error  shall  lie  to  this 
court  regardless  of  that  amount.  Gur- 
nee V.  Patrick  County,  137  U.  S.  141.  34 
L.  Ed.  601;  Hurlbut  Land,  etc.,  Co.  v. 
Truscott.   165   U.   S.   719,  41    L.   Ed.   1177. 

11.  Raising  question  of  jurisdiction  be- 
low.— Chapman  ?'.  Barney,  120  U.  S  677, 
32    L.    Ed.    800;    Denny   v.    Pironi,    141    U. 


918 


APPEAL  AND  ERROR. 


The  scope  of  our  inquiry  is  limited  to  the  determination  of  the  question  of 
jurisdiction. ^- 

How  Question  of  Jurisdiction  Determined. — Undoubtedly,  the  general  rule 
is  that,  upon  a  writ  of  error,  only  matters  of  law  appearing  on  the  face  of  the 
record  can  be  considered,  and  that  evidence,  whether  written  or  oral,  and  whether 
given  to  the  court  or  to  the  jury,  does  not  become  a  part  of  the  record  unless 
made  so  by  some  regular  proceeding  at  the  time  of  the  trial  and  before  the  ren- 
dition of  the  judgment.  Whatever  the  error  may  be  and  in  what- 
ever stage  of  the  cause  it  may  have  occurred,  it  must  appear  in  the 
lecord,  else  it  cannot  be  revised  in  a  court  of  error  exercising  jurisdiction 
according  to  the  course  of  the  common  law  ;  and  ordinarily  a  bill  of  exceptions 
lies  only  upon  some  point  arising  either  upon  the  admission  or  rejection  of  evi- 
dence, or  is  a  matter  of  law  arising  from  a  fact  found,  or  not  denied,  and  which 
has  been  overruled  by  the  court. '-^  But  this  court  may  review  the  judgment 
of  the  circuit  court  dismissing  a  suit  for  want  of  jurisdiction,  although  that  judg- 
ment is  either  based  on  the  verdict  of  a  jury  or  upon  facts  found  in  an  agreed 
statement.  "The  statute  does  not  prescribe  any  particular  mode  in  which  the 
question  of  the  jurisdiction  is  to  be  brought  to  the  attention  of  the  court,  nor 
how  such  question,  when  raised,  shall  be  determined.  When  such  a  question 
arises  in  an  action  at  law  its  decision  would  usually  depend  upon  matters  of  fact, 
and  also  usually  involves  a  denial  of  formal,  but  necessary,  allegations  contained 
in  the  plaintiff's  declaration  or  complaint.  Such  a  case  would  be  presented 
when  the  plaintiff's  allegation  that  the  controversy  was  between  citizens  of 
aifferent  states,  or  when  the  allegation  that  the  matter  in  dispute  was  of 
sufficient  value  to  give  the  court  jurisdiction,  was  denied.  In  such  cases,, 
whether  the  question  was  raised  by  the  defendant  or  by  the  court  on  its  own 
motion,  the  court  might  doubtless  order  the  issue  to  be  tried  by  the  jury.  The 
action  of  the  court,  in  the  admission  or  rejection  of  evidence,  or  in  instructing 


S.  121,  35  L.  Ed.  657;  Roberts  z'.  Lewis. 
144  U.  S.  653,  36  L.  Ed.  579;  Northern 
Pacific  R.  Co.  V.  Walker.  148  U.  S.  391, 
37  L.  Ed.  494;  Mattingly  v.  Northwestern, 
etc..  R.  Co.,  158  U.  S.  53,  57,  39  L.  Ed. 
894. 

"If  the  question  of  jurisdiction  had  been 
raised,  the  cause  might  have  been  brought 
to  this  court  under  the  act  of  February 
25,  1889,  without  reference  to  the  amount 
in  controversy,  and  as  it  is  apparent  upon 
the  record  that  jurisdiction  was  lacking, 
we  cannot  dismiss  the  case  upon  the 
ground  that  the  amount  involved  was  less 
than  the  jurisdictional  sum,  even  if  we 
were  of  opinion  that  such  were  the  fact, 
for  although  the  question  was  not  raised, 
it  was  necessarily  involved."  Mattingly 
V.  Northwestern,  etc.,  R.  Co.,  158  U.  S. 
53.  57,   39   L.   Ed.   894. 

12.  The  act  of  February  25,  1889,  which 
gives  this  court  jurisdiction,  25  Stat.  693, 
c.  236,  provides  that  "in  cases  where  the 
decree  or  judgment  does  not  exceed  the 
sum  of  five  thousand  dollars^  the  supreme 
court  shall  not  review  any  question  raised 
upon  the  record,  except  such  question  of 
jurisdiction."  It  follows,  therefore,  that 
in  this  case  our  inquiry  must  stop  with 
that  question  of  jurisdiction,  which  we 
have  thus  determined.  Mississippi  Mills 
r.  Cohn,  150  U.  S.  202.  209,  37  L.  Ed. 
1052. 

In  Smith  v.  McKay,  161  U.  S.  355.  359, 
40    L.    Ed.    731,    the    court    distinguished 


Mississinpi  Mills  v.  Cohn,  150  U.  S.  202, 
37  L.  Ed.  1052,  as  follows:  "That  was  an 
appeal  from  the  circuit  court  of  the  United 
States  for  the  Western  District  of  Eou- 
isiana,  under  the  provisions  of  the  act  of 
February  25,  1889,  c.  36,  25  Stat.  693. 
The  court  below  dismissed  the  complain- 
ant's bill  in  equity  on  the  ground  that  no 
relief  could  be  had  in  equity  because,  un- 
der the  practice  prescribed  by  a  state  law,. 
there  was  a  remedy  by  an  action  at  law. 
But  this  court  held  that  the  jurisdiction 
of  federal  courts,  sitting  as  courts  of 
equity,  cannot  be  enlarged  or  diminished 
by  state  legislation,  and  that  hence  the 
circuit  court  had  committed  error  by  al- 
lowing a  state  law  to  overturn  the  well- 
settled  practice  in  the  federal  court.  In. 
the  condition  of  the  federal  statutes  at 
that  time  there  was  no  circuit  court  of 
appeals,  and  the  plaintiff's  remedy,  given 
him  by  the  act  of  February  25,  1889,  was. 
by  appeal  to  this  court.  Should  such  a. 
state  of  facts  again  arise,  the  remedy- 
would  now  be  by  appeal  to  the  circuit 
court  of  appeals."  Smith  v.  McKay,  161 
U.  S.  355,  359,  40  L.  Ed.  731,  reaffirmed 
in  Murphy  v.  Colorado  Paving  Co.,  I6fi 
U.  S.  719,  41  L.  Ed.  1188;  Black  v.  Black, 
163  U.  S.  678,  41  L.  Ed.  318,  Tucker  v. 
McKay.    164    U.    S.   701,    41    L.    Ed.    1180. 

13.  How  question  of  jurisdiction  deter- 
mined.— .\rthurs  v.  Hart,  17  How.  6,  15 
L.  Ed.  30;  Wetmore  v.  Rymer,  169  U.  S.. 
115,     110,     4?     L.     Ed.     68?. 


APPEAL  AXD  ERROR. 


S»19 


the  jury,  would  thus  be  subjected  to  the  review  by  this  court  which  was  intended 
by  congress. "1^  And  under  the  act  of  ]\Iarch  3.  1875.  c.  137.  18  Stat.  470.  the 
trial  court  is  not  bound  by  the  pleadings  of  the  parlies,  but  may.  of  its  own  mo- 
tion, if  led  to  believe  that  its  juriscUction  is  not  properly  invoked,  inquire  into 
the  facts  as  they  really  exist. ^^ 

n.  Error  to  State  Court. — The  appellate  jurisdiction  of  this  court,  in  cases 
brought  from  the  state  courts,  arising  under  the  constitution,  laws  and  treaties 
of  the  Union,  is  not  limited  by  the  value  of  the  matter  in  dispute. ^"^ 

o.  Effect  of  Circuit  Court  of  Appeals  Act. — Appellate  jurisdiction  was  given 
by  the  circuit  court  of  appeals  act  in  all  criminal  cases  by  writ  of  error  either 
from  this  court  or  from  the  circuit  courts  of  appeals,  and  in  all  civil  cases  by 
appeal  or  error  without  regard  to  the  amount  in  controversy,  except  as  to  ap- 
peals or  writs  of  error  to  or  from  the  circuit  courts  of  appeals  in  cases  not 
made  final  as  specified  in  §  6.^"  The  act  of  1891  nowhere  imposes  a  pecuniary 
limit  upon  the  appellate  jurisdiction,  either  of  this  court  or  of  the  circuit  court 
of  appeals,  from  a  district  or  circuit  court  of  the  United  States.  The  only 
pecuniary  limit  imposed  is  one  of  $1,000  upon  the  appeal  to  this  court  of  a  case 
which  has  been  once  decided  on  appeal  in  the  circuit  court  of  appeals,  and  in 
which  the  judgment  of  that  court  is  not  made  final  by  §  6  of  the  act.^^ 

18.  Dismissal  and  Reinstatement. — An  appeal  or  writ  of  error  must  be 
dismissed  when  it  appears  from  the  record,  taken  as  a  whole,  that  the  amoimt 


14.  Wetmore  v.  Rymer,  169  U.  S.  115, 
120,   42  L.   Ed.   682. 

But  whether  the  judge  shall  elect  to 
submit  the  issues  to  the  jury,  or  to  him- 
self hear  and  determine  them,  it  is  the 
manifest  meaning  of  this  legislation  thait, 
in  either  event,  the  parties  are  not  to  be 
concluded  by  the  judgment  of  the  circuit 
court.  As  we  have  already  said,  if  the 
questions  are  submitted  to  the  jury,  there 
will  be  a  ready  remedy,  by  proper  excep- 
tions and  a  writ  of  error  to  correct  any  er- 
rors into  which  the  trial  court  may  have 
fallen.  And  if  the  court  takes  to  itself 
the  determination  of  the  disputed  ques- 
tions, it  is  imperative,  in  order  to  give 
effect  to  the  intention  of  congress,  that 
its  action  must  take  a  form  that  will  en- 
able this  court  to  review  it,  so  far  as  to 
determine  whether  the  conclusion  of  the 
court  below  was  warranted  by  the  evi- 
dence before  that  court.  Wetmore  v. 
Rymer,  169  U.   S.   115,   121,   43  L.    Ed.   682. 

Although  the  question  whether  the 
amount  in  controversy  was  sufficient  to 
give  the  circuit  court  jurisdiction  is  purely 
one  of  fact,  and  although  that  question 
was  not  submitted  to  the  jury,  but  was 
passed  on  by  the  court  upon  affidavit, 
upon  a  writ  of  error,  this  court  may  never- 
theless consider  the  facts  disclosed  by 
the  affidavits,  and  is  not  restricted  to  the 
errors  of  law  shown  by  the  record.  Wet- 
more V.  Rymer,  169  U.  S.  115,  42  L.  Ed. 
682. 

15.  Williams  v.  Nottawa.  104  U.  S.  209, 
26  L.  Ed.  719;  Barry  v.  Edmunds,  116  U. 
S.  550,  29  L.  Ed.  729;  Morris  v.  Gilmer, 
129  U.  S.  315,  32  L.  Ed.  690;  Deputron  v. 
Young,  134  U.  S.  241,  33  L.  Ed.  923;  Wet- 
more v.  Rymer,  169  U.  S.  115,  120,  42  L. 
Ed.    682. 

16.  Error   to   state   court. — Buel   v.   Van 


Xess,  8  Wheat.  312,  5  Ed.  428;  Weston  v. 
Charleston,  2  Pet.  449.  7  L.  Ed.  4«1; 
Holmes  v.  Jennison,  14  Pet.  540,  10  L. 
Ed.    579. 

Notice  the  difference  between  the  pro- 
visions contained  in  the  twenty-second 
section  of  the  judiciary  act.  and  those 
of  the  twenty-fifth  section,  in  the  same  act 
of  congress,  which  gives  the  appellate 
power  over  the  judgments  of  the  state 
courts.  In  the  latter  case,  the  right  to  re- 
examine is  not  made  to  depend  on  tbe 
money  value  of  the  thing  in  controversy, 
but  upon  the  character  of  the  right  in 
dispute,  and  the  judgment  which  the  state 
court  has  pronounced  upon  it;  and  it  is 
altogether  immaterial  whether  the  right 
in  controversy  can  or  cannot  be  measured 
by  a  money  standard.  Barry  f.  Mcrcein, 
5    How.    103,    120,    12    L.    Ed.   70. 

17.  Effect  of  circuit  court  of  appeals 
act. — United  States  v.  Rider,  163  U.  S.  132. 
138.    41    L.    Ed.    101. 

18.  The  Paquete  Habana.  175  U.  S. 
677.  683,  44  L.  Ed.  320;  Woey  Ho  v. 
United  States,  191  U.  S.  558,  48  L.  Ed.  301; 
Kirby  v.  .American  Soda  Fountain  Co., 
194   U.  S.   141.  144.  48  L.  Ed.  911. 

There  is  no  pecuniary  limit  on  appeals 
to  this  court  under  §  5  of  the  act  of  1891, 
c.  517,  26  Stat.  826.  828.  The  Paquete 
Habana,  175  U.  S.  677.  683,  44  L.  Ed.  320; 
Giles  v.  Harris,  189  U.  S.  475,  485.  47  L. 
Ed.    909. 

The  operation  of  the  act  of  March  3, 
1891,  was  to  do  awaj^  with  anj-  pecuniary 
limitation  on  appeals  directly  from  the 
circuit  court  to  this  court.  Holt  v.  In- 
diana Mfg.  Co.,  176  U.  S.  68,  44  L.  Ed. 
374,  reaffirmed  in  Weston  T'.  Tierney,  184 
U.  S.  695,  46  L.  Ed.  763;  Douglas  Co.  v. 
Stone,  191  U.   S.   557,  48  L.   Ed.  301. 


920  APPEAL  AND  ERROR. 

actually  in  controversy  between  the  parties  was  not  sufficient  to  give  us  juris- 
diction.^^ 

Sufficiency  of  Showing. — Upon  a  motion  to  dismiss  for  want  of  jurisdiction 
because  the  amount  in  dispute  is  insufficient,  as  upon  a  demurrer,  a  court  will 
not  incline  to  dismiss  for  want  of  jurisdiction,  unless  the  facts  appearing  of 
record  create  a  legal  certainty  of  that  conclusion.-" 

This  court  of  its  own  motion  will  dismiss  an  appeal  where  it  appears  on  the 
record  that  the  amount  in  controversy  is  not  sufficient  to  give  us  jurisdiction.^^ 

Reinstatement. — \Miere  the  affidavits  filed  with  a  motio»  to  reinstate  a  cause 
which  has  been  dismissed  because  the  amount  in  controversy  is  below  the  juris- 
dictional amount,  fail  to  satisfy  this  court  that  the  value  of  the  matter  in  dis- 
pute is  sufficient  to  give  us  jurisdiction,  the  motion  will  be  denied. ^^  Where  a 
cause  is  dismissed  because  the  value  of  the  matter  in  dispute  did  not  exceed  the 
jurisdictional  amount,  a  motion  to  reinstate  accompanied  by  affidavits  not  filed 
until  the  expiration  of  more  than  three  months  from  the  time  the  court  entered 
the  order  of  dismissal,  comes  too  late.  Unless  the  parties  act  promptly  after 
they  have  actual  notice  of  what  is  required  of  them,  they  will  not  be  heard. 2=^ 
Where  a  case  is  dismissed  by  this  court  because  there  is  no  evidence  of  there 
being  a  sufficient  amount  in  controversy  to  give  this  court  jurisdiction,  and  a 
motion  is  made  to  reinstate  it,  and  affidavits  are  submitted  to  show  that  the  value 
of  the  amount  in  controversy  is  over  the  required  amount,  if  no  sufficient  op- 
portunity or  time  has  been  given  to  the  opposite  party  to  produce  counter  affi- 
davits, a  motion  to  reinstate  will  be  continued  until  the  next  term  of  the  court, 
with  leave  for  either  party  to  file  additional  affidavits  on  the  subject. ^^ 

G.  Appeals  from  District  to  Circuit  Courts. — Cases  of  admiralty  and 
maritime  jurisdiction,  where  the  matter  in  dispute,  exclusive  of  costs,  exceeds 
the  sum  or  value  of  fifty  dollars,  might  formerly  be  removed  from  the  district 
court  into  the  circuit  court  by  appeal,  and  the  provision  was  that  such  appeals 
.should  be  subject  to  the  same  rules,  regulations,  and  restrictions  as  were  pre- 
scribed by  law  in  case  of  writs  of  error. 2'''  Jurisdiction  in  such  cases  was  given 
to  the  appellate  court  by  the  appeal  or  writ  of  error,  as  the  case  might  be,  which 
ceased  to  exist,  even  if  regular,  when  the  appeal  or  writ  of  error  was  dismissed, 
or  if  not  regular  in  essential  particulars,  then  jurisdiction  did  not  attach  for  the 
purpose  of  affirming  the  decree  upon  the  merits.-^  But  this  has  been  changed 
by  §  4  of  the  act  of  March  3,  1891,  which  provides  that  no  appeal,  whether  by 
writ  of  error  or  otherwise,  shall  hereafter  be  taken  or  allowed  from  any  district 
court  to  the  existing  circuit  courts,  and  no  appellate  jurisdiction  shall  hereafter 
be  exercised  or  allowed  by  said  existing  circuit  courts  ;  but  appeals  by  writ  of 
error  or  otherwise,  from  said  district  courts  shall  only  be  subject  to  review  in 
the  supreme  court  of  the  United  States  or  in  the  circuit  court  of  appeals  hereby 
established,   as   is  hereinafter   provided,   and   the  review,   by  appeal,   by   writ  of 

19.  Dismissal  and  reinstatement. — Bank-  Ed.  682;  Blackburn  v.  Portland  Gold  Min. 
ing  Ass'n  v.  Insurance  Ass'n,  102  U.  S.  Co..  175  U.  S.  571,  574,  44  L.  Ed.  276, 
121,  26  L.  Ed.  45,  following  Gray  v.  Blanch-  reaffirmed  in  Warder  v.  Loomis,  197  U. 
ard,  97  U.  S.  564,  24  L.  Ed.  1108;  Winston  S.  619,  49  L.  Ed.  909;  Empire,  etc.,  Min. 
V.  United  States.  3  How.  771,  11  L.  Ed.  Co.  v.  Bunker  Hill,  etc.,  Min.  Co..  200  U- 
S33;    Tones  v.   Fritschle,   154   U.   S.   590.  21  S.  613,  50  L.   Ed.  620. 

L.  Ed.  552;  Rogers  v.  St.  Charles,  19  How.  21.    Hilton  v.    Dickinson,   108  U.    S.   165, 

108,    15    L.    Ed.    563:    District    of    Columbia  27   L.   Ed.   688. 

V.   Brewer,   131   U.   S.   434,  33   L.   Ed.  213:  22.     Reinstatement.— Wells    v.    Wilkins, 

Wa-rren  v.  First  Nat.   Bank,  131  U.  S.  450.  118   U.   S.   230,   30  L.   Ed.   210. 

:!3   L.    Ed.   201;   City   Bank  ^'.   Hunter,   152  23.  Johnson   v.   Wilkins,    118    U.    S.   228, 

U.    S.    512,    38    L.    Ed.    534;    Tintsman    v.  30  L    Ed    210 

National  Bank.  100  U.  S.  6,  25  L.  Ed.  530;  o>,  '    u  '  T         tji     1  k  10^    tt     c    ita 

TT    -i.   J    c*.  t  1X7-U-*.       100    TT     c      A  24.     Hunt    v.    Blackburn,    127    U.    is.    774, 

United   States   v.   White,    122   U.    S.    App.       „..,  y     p  ,    „,,„ 

(U7;    Montgomery   v.    Anderson,    21    How.  '*"  ^-   ^°-     •"*•     ,  .       .  .       . 

:!86    16  L    Ed    160.  25.     Appeals    from     district     to     circuit 

20.  Sufficiency    of    showing.— Barry    v.  courts.— 2    Stat,    at    Large    244. 
T^dmunds,    116   U.    S.    5.50,   ?9    L.    Ed.    7:29:  26.  1  Stat,  at  Large  84:  The  Lottawanna, 
Wetmore  v.   Rymer,   169   U.   S.   115,   42   L.  20  Wall.  201,  217,  22  L.  Ed.  259. 


AFttAL  AND  ERROR.  921 

error,  or  otherwise,  from  the  existing  circuit  courts  shall  be  had  only  in  the 
supreme  court  of  the  United  States  or  in  the  circuit  courts  of  appeals  hereby 
established  accordinjg  to  the  provisions  of  this  act  regulating  the  same. 2- 

H.  General  Power  to  Issue  Writs. — By  express  acts  of  congress,  beginning 
with  the  first  organization  of  the  judicial  system  of  the  United  States,  this  court 
and  the  circuit  and  district  courts  are  empowered  to  issue  all  writs,  not  specially 
provided  for  by  statute,  which  may  be  necessary  for  the  exercise  of  their  re- 
spective jurisdictions,  and  agreeable  to  the  principles  and  usages  of  law.^s 

A  prohibition  cannot  issue  from  this  court  in  cases  where  there  is  no  ap- 
pellate power  given  by  law,  nor  any  special  authority  to  issue  the  writ,  hence  it 
will  not  lie  in  a  criminal  case."^ 

IV.  Decisions  Reviewable. 

A.  What  Law  Governs. — The  statutes  or  decisions  of  a  state,  as  to  what 
decisions  are  reviewable,  are  not  binding  on  this  court.  "When  the  effect  of  a 
state  decision  is  only  to  regulate  the  practice  of  courts,  and  to  determine  what 
shall  be  a  judgment,  and  the  legal  effect  of  that,  or  any  other,  judgment,  this 
court  cannot  consider  themselves  bound  by  such  decisions,  upon  the  ground  that 
the  laws  upon  which  they  are  made  are  local  in  their  character."  "The  statute 
of  Mississippi,  taking  away  the  right  to  a  writ  of  error,  in  the  case  of  a  forth- 
coming bond  forfeited,  can  have  no  influence  whatever  in  regulating  writs  of 
error  to  the  circuit  courts  of  the  United  States ;  a  rule  of  court  adopting  the 
statute  as  a  rule  of  practice  would,  therefore,  be  void.""^* 

By  the  decisions  of  the  supreme  court  of  Louisiana,  an  order,  made 
without  previous  notice,  for  the  seizure  and  sale  of  mortgaged  land  to  pay  the 
mortgage  debt,  under  which  the  sale  cannot  take  place  unul  the  debtor  has  had 
notice  and  opportunity  to  interpose  objections,  "exhausting  the  power  of  the 
court  quoad  the  application."  although  its  execution  may  be  stayed  on  the  op- 
position of  the  debtor,  is  subject  to  appeal,  under  the  practice  in  that  state.^^ 

27.  4  Fed.  Stat.  §  4,  p.  397;  Chicago,  approval.  Ex  parte  Milwaukee,  etc.,  R. 
etc.,   R.  Co.  z:  Roberts,  141  U.  S.  690,  695,       Co.,   5   Wall.   188,   18   L.   Ed.   676. 

35   L.    Ed.   90,-..  29.    Ex  parte   Gordon,   1    Black   503,  506, 

28.  General  power  to  issue  writs.— Act  17  l  Ed.  134.  See  the  title  PROHIBI- 
(A   September -24,   1789,  c.   20,  §  14;   1   Stat.       TION 

81.  8.2;  Rev  Stat.,  §  716;    Stockton  v^  Bishop,  ^^;  '^^^^  j^^  governs.-Amis  v.  Smith, 

2    How.    '4.    11    L.    Ed    184,    Hardeman   r  ^^  p^^    3^3^  ^^  ^    gd.  973. 

Anderson,    4    How.    640     11    L.    Ed.    1138  ^^    far  as  the  decisions  of  the  state  courts 

Ex   parte  Milwaukee,   etc.,  R.  Co.,  5    Wall.  .  r    f,/[-  ^-     ,-      •         . ,,           ,           r 

188,  18  L.  Ed.  676;  Hudson  v.  Packer,  156  °/    M.ss  ssippi    settle    rules    of    property, 

TT   'c     oV^     o«i     ^Q    T      J7A     AOA       ^'th.-  they  Will   be   properly   respected  by  the  SU- 


IT.   S.    277,    281,    39    L.    Ed.    424.      See    the; 


preme    court.      But    when    the    effect    of   a 


DAMUS"  pIoHIBItPoN™'''         ''^'''  --«  decision  uWiore^^uX^  prac- 

DAMUb,    PROHlBiilUN.  ^-^^   ^^   courts,   and  to  determine  what  shall 

In  cases  over  which  the  federal  supreme  ^^   ^   judgment,  the  supreme   court  cannot 

court    possesses    neither    original    nor    ap-  ^^^,^-^^,    themselves    bound    by    such    de- 

pellate    jurisdiction    it    cannot    grant    pro-  ^.^.                        ^^^      ^^^^^    ^^^^    ^^^    j^^^ 

h.bitmn     or     mandamus    or    certiorari     as  ^^^-^^    ^^        ^^^    ^^^      ^^^    j^^^j    .^ 

^^~'^l^"l    l«r'  «°«    i"T  "v  ,^^,^ff  ^h"^^"^'  their    character.      Amis    v.    Smith,    16    Pet. 

197  Li.   S.  482.  488,   49   L.   Ed.  845.  3^3     ^^    ^     ^^    g„3 

Mandamus  and  supersedeas. — A  case  ',  '.■... 
being  properly  in  this  court  by  appeal,  the  ,  The  statute  of  Mississippi,  taking  away 
court  has  a  right  to  issue  any  writ  which  the  right  to  a  writ  of  error,  in  the  case 
may  be  necessary  to  render  its  appellate  o^  ^.  forthcoming  bond  forfeited,  can  have 
>irisdiction  effectual.  Accordingly,  it  will  "O  influence  whatever  in  regulating  writs 
issue  the  writ  of  supersedeas  if  such  writ  of  error  to  the  circuit  courts  of  the  Lnited 
be  necessary  for  that  purpose;  the  cir-  States.  A  ru  e  of  court,  adopting  the 
cumstances  otherwise  making  it  proper.  statute  as  a  rule  of  practice,  would,  there- 
It  will  issue  this  writ  rather  than  attain  fore  be  void.  Amis  v.  Smith,  16  Pet.  303, 
the   same   end   by  issuing  a   mandamus    to  ^^   ^-    Ed.    973. 

the   court   below,   in   a   case   where   the   is-  31.     Louisiana    Code    of    Practice,    arts, 

suing  of  a   mandamus  would  control  judi-  565,   566;    Harrod   v.    Voorhies,    16    Louis- 

cial  action   in   a  matter  apparently  one  of  iana   254;   Mitchell  v.   Logan,  34   La.  Ann. 

discretion;   as   ex   gr.   the   approval   or   re-  998,   1003;   Ralston  v.   British   &  American 

iection   of   a   bondoffered   for   the   court's  Mortgage   Co.,  37  La.  Ann.  193. 


922 


APPEAL  AXD  ERROR. 


But  the  practice  or  the  decisions  of  that  state  in  this  respect  cannot  control  the 
appellate  jurisdiction  of  this  court  from  the  circuit  court  of  the  United  States, 
as  defined  by  act  of  congress. •'•- 

Effect  of  Uniformity  Act.— \Miile,  since  the  act  of  1872,  c.  255  (17  Stat. 
196,  now  §  914,  Rev.  Stat.),  the  practice,  pleadings,  and  forms  and  modes  of 
proceedings  in  civil  causes,  other  than  equity  and  admiralty  causes,  in  the  circuit 
and  district  courts,  must  conform,  as  near  as  may  be,  to  the  practice,  pleadings, 
and  forms  and  modes  of  proceeding  existing  at  the  time  in  like  causes  in  the 
courts  of  record  of  the  state  within  which  such  circuit  or  district  courts  are 
held,  the  review  of  a  case  in  this  court  is  regulated  by  the  acts  of  congress  and 
not  bv  the  laws  of  the  states.-^-" 

B.  Nature,  Form  and  Validity  of  Judgment  as  Governing  Right  of 
Review — 1.  In  GknERAL. — \V*iere  no  judgment  or  decision  has  been  given  in 
the  inferior  court — in  short,  where  there  is  nothing  to  appeal  from — an  appeal 
will  not  lie.''^ 

A  bench  warrant  is  an  order  of  court  within  the  meaning  of  this  rule.^'^ 

An  order  of  the  circuit  court,  directing  a  fact  to  be  certified  to  another 
court  to  enable  it  to  proceed  to  judgment,  can  hardly  be  regarded  as  a  judg- 
ment, order,  or  decree,  in  the  legal  sense  of  these  terms  as  used  in  the  act  of 
congress.^*' 

Judgment  Refusing  to  Quash  Forthcoming  Bond.— Regarding  a  forth- 
coming bond  as  part  of  the  process  of  execuiion.  a  refusal  to  quash  the  bond 
is  not  a  judgment  of  the  court,  and  much  less  a  final  judgment;  and  therefore 


32.  Rev.  Stat.,  §  691;  Luxton  v.  North 
River  Bridge,  Co.,  147  U.  S.  :537,  341,  37 
L.  Ed.  194;  Fleitas  v.  Richardson,  147  U. 
S.  538,  .-.45.  37   L.   Ed.  272. 

33.  Effect  of  uniformity  act. — Boogher 
V.  New  York  Life  Ins.  Co.,  103  U.  S.  90, 
95,  26   L.    Ed.    310. 

In  Boogher  r.  New  York  Life  Ins.  Co., 
103  U.  S.  90,  26  L.  Ed.  310,  the  court  ex- 
pressed great  doubt  whether  under  the 
act  of  1872.  c.  255  (17  Stat.  196,  now  § 
9^4,  Rev.  Stat.),  providing  that  the  prac- 
tice, pleadings,  and  forms  and  modes  of 
proceedings  in  civil  causes,  other  than 
equity  and  admiralty  causes,  in  the  cir- 
cuit and  district  courts,  must  conform,  as 
near  as  may  be,  to  the  practice,  pleadings, 
and  forms  and  modes  of  proceeding,  exist- 
ing at  the  time  in  like  causes  in  the  courts 
of  record  of  the  state  within  which  such 
circuit  or  district  courts  are  held,  cases 
tried  in  the  circuit  courts  by  a  referee,  in 
states  where  such  practice  exists,  can  be 
reviewed   here. 

The  doubt  we  have  is  whether  the  act 
of  1872  enlarged  the  existing  modes  of 
subjecting  cases  to  review  here.  There 
is  no  express  provision  of  that  kind,  and 
on  its  face  the  act  is  confined  to  the  prac- 
tice, pleadings,  and  modes  of  proceedings 
in  the  circuit  and  district  courts.  Any  al- 
lusion to  a  review  here  seems  to  have  been 
studiously  avoided.  Boogher  v.  New  York 
Life  Ins.  Co..  103  U.  S.  90,  96,  26  L.  Ed. 
310. 

34.  Nature,  form  and  validity  of  judg- 
ment as  governing  right  of  review  in  gen- 
eral.—Ex  parte  Virginia,  100  U.  S.  339, 
342,   25   L.    Ed.    676. 

It  is  said  in  Co.  Litt.,  288,  b,  that  a  writ 
of  error  lieth   when   a   man   is   grieved  by 


an  error  in  the  foundation,  proceedin-g, 
judgment,  or  execution  in  a  suit.  Butnit 
is  added  in  the  same  authority,  "without 
a  judgment,  or  an  award  in  the  nature  of 
a  judgment,  no  writ  of  error  doth  lie." 
And  the  court  say.  in  the  case  of  Boyle 
7'.  Zacharie,  6  Pet.  635,  648.  8  L.  Ed.  532:  "If, 
therefore,  there  is  an  erroneous  award  of 
execution,  not  warranted  by  the  judgment, 
or  erroneous  proceedings  under  the  execu- 
tion, a  writ  of  error  will  lie  to  redress  the 
grievance."  McCargo  v.  Chapman,  20  How. 
555,   15    L.    Ed.    1021. 

This  court  cannot  acquire  jurisdiction 
of  a  cause  through  an  order  of  a  circuit 
court  directing  its  transfer  to  this  court, 
though  such  transfer  be  authorized  by  the 
express  provision  of  an  act  of  congress. 
Such  provision  must  be  regarded  as  an 
attempt,  inadvertently  made,  to  give  to 
this  court  a  jurisdiction  withheld  by  the 
constitution.  In  such  a  case,  a  notice  to 
docket  and  dismiss,  must  be  denied,  and 
this  court  will  certify  its  opinion  to  the 
circuit  court,  for  information,  in  order 
that  it  may  proceed  with  the  trial  of  the 
cause.  "An  appellate  jurisdiction  neces- 
sarily implies  some  judicial  determination, 
some  judgment,  decree,  or  order  of  an  in- 
ferior tribunal,  from  which  an  appeal  has 
been  taken.  But  in  this  case  there  had 
been  no  such  order,  judgment,  or  decree 
in  the  circuit  court;  and  there  was  no 
subsisting  decree  in  the  district  court^ 
from  which  an  appeal  could  be  taken." 
The  Alicia.  7  Wall.  571.  573,  19  L.  Ed.  84. 

35.  Ex    parte    Virginia,    100    U.    S.    339, 
342,   25    L.    Ed.    676. 

36.  Van  Ness  v.  Van  Ness,  6  How.  62, 
68,   12   L.    Ed.   344. 


APPEAL  AXD  ERROR. 


923 


no  writ  of  error  lies  in  such  a  case.'^'  \\hatever  may  be  the  defects,  or  illegality 
of  the  final  process,  no  error  can  be  assigned  in  the  supreme  court  on  a  writ 
of  error  for  that  cause.  The  remedy,  according  to  the  modern  practice,  is  by 
motion  in  the  court  below  to  quash  the  execution.-^^ 

The  refusal  to  quash  an  execution  is  not,  in  the  sense  of  the  common  law, 
a  judgment,  much  less  a  final  judgment;  it  is  a  mere  interlocutory  order.  Even 
at  common  law,  error  only  lies  from  a  final  judgment;  and  by  the  express  pro- 
visions of  the  judiciar}-  act  of  1789.  a  writ  of  error  lies  to  this  court,  only  in 
cases  of  final  judgments. '"^^ 

Order  Granting  Stay  of  Proceedings. — A  writ  of  error  does  not  lie  to  an 
order  of  the  court  below,  granting  an  indefinite  stay  of  proceedings,  upon  sug- 
gestions of  the  attorney  for  the  I'nited  States,  in  a  case  to  which  the  United 
States  is  not  party.  It  is  not  a  judgment ;  and  a  writ  of  error  at  common  law^ 
as  well  as  by  statute,  lies  only  to  a  final  judgment.^" 

Requisites  and  Validity  of  Judgment.— ]\Iere  imperfections  and  informal- 
ities in  the  judgment  below%  do  not  necessarily  affect  its  appealability.^^  Where 
a  decree  was  obtained  by  fraud,  still  if  in  form  correct,  it  is  sufficient  as  against 
the  appellee  to  sustain  the  appeal,  correct  the  error,  and  dispose  of  the  case.*- 

Appeal  from  Void  Judgments  and  Decrees. — A  decree  of  the  circuit 
court  entered  under  the  supervision  and  by  the  direction  of  the  judge  of  the 
United  States  sitting  in  the  circuit  court,  is  a  decree  of  the  circuit  court,  good 
until  reversed  or  otherwise  vacated,  and  from  such  decree  an  appeal  may  be 
taken,  although  the  district  judge  may  have  had  no  right  to  a  vote.^'^ 

2.  Decision  Must  Be  Exercise  of  Judicial  Power. — In  General. — Judg- 
ments, to  be  the  subject  of  review  by  this  court,  must  be  rendered  by  a  court 
in  the  exercise  of  judicial  power,  and  which  this  court  has  the  power  to  compel 
the  lower  court  to  execute.^'*  Congress  cannot  impose  upon  this  court  the  ex- 
ercise of  appellate  jurisdiction  over  the  decisions  of  a  court  not  vested  with  the 
judicial  power  of  the  United   States.^^     Accordingly,  where  a  judgment  if  ren- 


37.  Amis  v.  Smith,  16  Pet.  303,  10  L. 
Ed.  973.  citing  Boyle  v.  Zacharie,  6  Pet. 
635,    646.   8    L.    Ed.    527,   532. 

38.  Amis  v.  Smith,  16  Pet.  303,  10  L. 
Ed.   973. 

39.  Boyle  v.  Zacharie,  6  Pet.  635,  648,  8 
L.    Ed.    527,   532. 

40.  Livingston  v.  Dorgenois,  7  Cranch 
577,    3    L.    Ed.    444. 

41.  Where  the  judgment  of  the  inferior 
court  is  not  merely  interlocutory,  but  is 
final,  and  goes  to  the  whole  merits,  on 
which  an  execution  could  issue,  although 
no  judgment  was  given  upon  the  rejoinder 
of  nul  tie]  record  as  to  costs  in  a  form_er 
suit.  Held:  That  although  the  judgment 
was  imperfect  and  informal,  yet  a  writ 
of  error  would  lie  on  it.  Wilson  v.  Dan- 
iel. 3   Dall.    401.    1    L.    Ed.    655. 

42.  United  States  v.  Gomez,  3  Wall.  752, 
18    L.    Ed.    212. 

Where  a  record  brought  regularly  to 
this  court,  on  a  writ  of  error  and  appeal 
bond  which  operates  as  a  supersedeas, 
shows  a  judgment  quite  intelligible  and 
possible,  and  where  a  return  to  a  cer- 
tiorari issued,  without  prejudice,  long 
after  the  transcript  was  filed  here  and  not 
long  before  the  case  was  heard,  showed 
that  that  judgment  had  been  set  aside 
as  improvidently  entered,  and  that  one 
with    alterations   of  a   very  material   char- 


acter had  been  substituted  for  it,  this 
court  held,  "under  the  circumstances," 
that  the  first  judgment  was  the  one  which 
it  was  called  on  to  re-examine.  Edwards 
i:  Elliott.  21  Wall.  532,  22  L.  Ed.  487, 
citing  Generes  ?'.  Bonemer,  7  Wall.  564, 
19  L.  Ed.  227;  Avedano  v.  Gay,  8  Wall. 
376,  19  L.  Ed.  422:  Flanders  z:  Tweed, 
9  Wall.  425,  19  L.  Ed.  678;  Hozev  v.  Buch- 
anan, 16  Pet.  215,  10  L.  Ed.  941;  Kanouse 
V.  Martin,  15  How.  198,  210,  14  L.  Ed. 
467;  Cheong-Kee  v.  United  States,  3  Wall. 
320,  326,  18  L.  Ed.  72;  Noonan  z:  Bradley, 
12    Wall.    121,   129,   20   L.    Ed.    279. 

43.  Baker  ?:  Power,  124  U.  S.  167,  31  L. 
Ed.  382.  citing  Rodd  v.  Heartt,  17  Wall. 
354.   21    L.    Ed.   627. 

44.  Decision  must  be  exercise  of  judi- 
cial power. — United  States  v.  Ferreira.  13 
How.  40,  52,  14  L.  Ed.  42;  In  re  Sanborn, 
148  U.  S.  222,  37  L.  Ed.  429;  Ex  parte 
Zellner,  9  Wall.  244,  247,   19  L.   Ed.   665. 

45.  Gordon  v.  United  States,  117  U.  S., 
appx.,  697;  United  States  v.  Ritchie,  IT 
How.  525,  15  L.  Ed.  236;  Hayburn's  Case, 
2  Dall.  409,  1  L.  Ed.  436;  United  States  v. 
Ferreira.  13  How.  40,  14  L.  Ed.  42;  In  re 
Sanborn,  148  U.  S.  222,  37  L.  Ed.  429; 
Grisar  i:  McDowell,  6  Wall.  363,  18  L- 
Ed.  863:  Interstate  Commerce  Commis- 
sion Z'.  Brimson,  154  U.  S.  447,  38  L.  Ed. 
1047;  United  States  v.  Coe,  155  U.  S.  76, 
39  L.   Ed.   76:   United   States  v.   Duell,   172 


924 


APPEAL  AA'V  BKKOR. 


dered  by  this  court  would  not  have  the  sanction  that  attends  the  exercise  of 
judicial  power,  in  its  legal  or  constitutional  sense,  the  appeal  will  be  dismissed 


U.  S.  576,  43  L.  Ed.  559,  citing  Murray  v. 
Hoboken,  etc.,  Co.,  18  How.  272,  15  L. 
Ed.    372. 

The  action  of  congress  confirming  a 
private  land  claim  in  New  Mexico,  as  rec- 
ommended for  confirmation  by  the  sur- 
veyor general  of  that  territory,  is  not  sub- 
ject to  judicial  review.  Tameling  v.  United 
States  Freehold,  etc.,  Co.,  93  U.  S.  644, 
23    L.    Ed.    998. 

What  is  exercise  of  judicial  power. — 
"It  cannot,  we  think,  be  seriously  disputed 
that  the  question  whether  fraud  has  or  has 
not  been  committed  in  presenting  or  pros- 
ecuting a  demand  or  claim  before  a  tri- 
bunal having  authority  to  allow  or  dis- 
allow it  is  peculiarly  judicial  in  its  nature, 
and  that  in  ascertaining  the  facts  material 
in  such  an  inquiry  no  means  are  so  ef- 
fectual as  those  employed  by  or  in  a 
court  of  justice."  La  Abra  Silver  Min. 
Co.  V.  United  States,  175  U.  S.  423,  459, 
44    L.    Ed.    223. 

"In  allowing  the  counsel  fee  to  the  dis- 
trict attorney  the  court  acted  in  its  ju- 
dicial capacity,  and  such  allowance,  being 
a  judicial  act  of  a  court  of  competent  ju- 
risdiction, was  not  subject  to  the  re-ex- 
amination and  reversal  of  the  attorney 
general.  United  States  v.  O'Grady,  22 
Wall.  641,  22  L.  Ed.  772:  Butterworth  v. 
Hoe,  112  U.  S.  50,  67.  28  L.  Ed.  656;  Hay- 
burn's  Case,  2  Dall.  409.  410,  1  L.  Ed.  436, 
note  a."  United  States  i:  Waters,  133 
U.    S.    208,    213,    33    L.    Ed.    594. 

Territorial  court  of  Florida. — Congress, 
by  two  acts  passed  in  1823  and  1824  (3 
Stat,  at  Large  768,  and  6  Stat,  at  Large 
569),  directed  the  judge  of  the  territorial 
court  of  Florida  to  receive,  examine,  and 
adjudge  all  cases  of  claims  for  losses,  and 
report  his  decisions,  if  in  favor  of  the 
claimants,  together  with  the  evidence  upon 
which  they  were  founded,  to  the  secretary 
of  the  treasury,  who,  on  being  satisfied 
that  the  same  was  just  and  equitable, 
within  the  provisions  of  the  treaty,  should 
pay  the  amount  thereof;  and  by  an  act  of 
1-49  (9  Stat,  at  Large,  p.  788),  congress 
directed  the  judge  of  the  district  court 
of  the  United  States  for  the  -northern 
district  of  Florida  to  receive  and  adjudi- 
cate certain  claims  in  the  manner  directed 
by  the  preceding  acts.  From  the  award 
of  the  district  judge,  an  appeal  does  not 
lie  to  this  court.  As  the  treaty  itself 
designated  no  tribunal  to  assess  the  dam- 
ages, it  remained  for  congress  to  do  so 
by  referring  the  claims  to  a  commissioner 
according  to  the  established  practice  of 
the  government  in  such  cases.  His  de- 
cision was  not  the  judgment  of  the  court, 
but  a  mere  award,  with  a  power  to  re- 
view it,  conferred  upon  the  secretary  of 
the  treasury.  United  States  v.  Ferreira, 
13   How.   40.   14   L.   Ed.  42. 


Court  of  claims. — "Congress  could  not 
authorize  or  require  this  court  to  express 
an  opinion  on  a  case  in  which  its  judicial 
power  could  not  be  exercised,  and  when 
its  judgment  would  not  be  final  and  con- 
clusive upon  the  rights  of  the  parties. 
'The  award  of  execution,'  Chief  Justice 
Taney  said,  'is  a  part,  and  an  essential 
part,  of  every  judgment  passed  by  a  court 
exercising  judicial  power.  It  is  no  judg- 
ment, in  the  legal  sense  of  the  term,  with- 
out it.  Without  such  an  award,  the  judg- 
ment would  be  inoperative  and  nugatory, 
leaving  the  aggrieved  party  without  a 
remedy.  It  would  be  merely  an  opinion, 
which  would  remain  a  dead  letter,  and 
without  any  operation  upon  the  rights  of 
the  parties,  unless  congress  should  at 
some  future  time  sanction  it,  and  pass  a 
law  authorizing  the  court  to  carry  its  opin- 
ion into  effect.  Such  is  not  the  judicial 
power  confided  to  this  court  in  the  exer- 
cise of  its  appellate  jurisdiction:  yet  it 
is  the  whole  power  that  the  court  is  al- 
lowed to  exercise  under  this  act  of  con- 
gress.' La  Abra  Silver  Mining  Co.  v. 
United  States,  175  U.  S.  423,  457,  44  L. 
Ed.  223,  citing  In  re  Sanborn,  148  U.  S. 
222.  226,  37  L.  Ed.  429;  Interstate  Com- 
merce Commission  v.  Brimson,  154  U.  S. 
447.  483,  38  L.  Ed.  1047."  Gordon  v.  United 
States,  2  Wall.  561,   17   L.   Ed.  921. 

This  subject  came,  for  the  first  time, 
betore  this  court  in  the  case  of  Gordon  z'. 
United  States,  2  Wall.  561,  17  L.  Ed. 
921,  wherein  it  was  held  that,  as  the  law. 
then  stood,  no  appeal  would  lie  from  the 
court  of  claims  to  this  court.  The  rea- 
sons for  this  conclusion  are  stated  in  the 
opinion  of  Chief  Justice  Taney,  reported 
in  the  appendix  to  117  U.  S.  697,  and 
interesting  as  his  last  judicial  utterance. 
Briefly  stated,  the  court  held,  that  as  the 
so-called  judgments  of  the  court  of  claims 
were  not  obligatory  upon  congress  or 
upon  the  executive  department  of  the 
government,  but  were  merely  opinions 
which  might  be  acted  upon  or  disregarded 
by  congress  or  the  departments,  and  which 
this  court  had  no  power  to  compel  the 
court  below  to  execute,  such  judgments 
could  not  be  deemed  an  exercise  of  ju- 
dicial power,  and  could  not,  therefore,  be 
revised    by   this    court. 

A  similar  question  arose  in  this  court 
as  early  as  1794.  in  the  case  of  the  United 
States  V.  Yale  Todd,  an  abstract  of  which 
case  appears  in  a  note  by  Chief  Justice 
Taney  to  the  later  case  of  the  United 
States  z>.  Ferreira,  13  How.  40,  .52,  14  L. 
Ed.  42.  and  wherein  it  was  held  that  an 
act  of  congress  conferring  powers  on  the 
judges  of  the  circuit  court  to  pass  upon 
the  rights  of  applicants  to  be  placed  upon 
the  pension  lists,  and  to  report  their  find- 
ings to  the  secretary  of  war,  who  had  the 
right   to   revise   such   findings,   was   not  an 


APPEAL  AND  ERROR. 


925 


for  want  of  jurisdiction  and  without  any  determination  of  the  rights  of  the 
parties.*^ 

No  appeal  will  lie  from  the  decision  of  a  board  not  a  court  under  the  con- 
stitution, and  the  law  prescribing  an  appeal  from  their  decision  would  be  un- 
constitutional.*'' 

Limitations  of  Rule. — Though  no  appeal  can  be  allowed  from  the  decision 
of  a  tribunal  which  is  not  a  court  under  the  constitution,  yet  if  the  appellate 
court  is  not  confined  to  a  mere  re-examination  of  a  case  as  heard  and  decided 
by  such  tribunal,  but  hears  the  case  de  novo,  upon  the  papers  and  testimony 
which  had  been  used  before  the  board,  the  rule  is  otherwise,  because  in  such 
case  the  suit  in  the  appellate  court  is  to  be  regarded  as  an  original  proceeding, 
and  the  removal  of  the  transcript,  papers,  and  evidence  into  it  from  the  board 
of  commissioners  being  but  a  mode  of  providing  for  the  institution  of  the  suit 
in  that  court.* ^  Since  the  passage  of  the  act  of  March  17,  1866,  14  Stat.  9,  the 
tribunal  designated  by  the  act  of  congress  to.  ascertain  the  compensation  which 
claimants  of  property  taken  for  the  purposes  indicated  in  the  act  of  1882  were 
entitled  to  receive,  has  exercised  "all  the  functions  of  a  court,"  from  whose 
judgment  appeals  regularly  lie  to  this  court.*^ 


act    conferring    judicial    power,    and    was, 
therefore,    unconstitutional. 

The  case  of  the  United  States  i'.  Fer- 
reira,  13  How.  40,  52,  14  L.  Ed.  42.  was 
that  of  an  appeal  from  the  district  court 
of  the  United  States  for  the  district  of 
Florida.  The  judge  of  that  court  had 
acted  in  pursuance  of  certain  acts  of  con- 
gress, directing  the  judge  to  receive,  ex- 
amine and  adjust  claims  for  losses  suffered 
by  vSpaniards  by  reason  of  the  operations 
of  the  American  army  in  Flordia.  It  was 
decided  that  the  judge's  decision  was  not 
the  judgment  of  the  court,  but  a  mere 
award,  with  a  power  to  review  it  conferred 
upon  the  secretary  of  the  treasury,  and 
that  from  such  an  award  no  appeal  could 
lie    to    this    court. 

46.  District  of  Columbia  f.  Eslin,  183 
U.  S.  62,  -4  6  L.  Ed.  85,  reaffirmed  in  Dis- 
trict of  Columbia  r.  Barnes.  187  U.  S.  638. 
47  L.  Ed.  344,  citing  Gordon  z>.  United 
States,  117  U.  S..  appx..  697;  Hayburn's 
Case,  2  DpII.  409.  1  L.  Ed.  436;  United 
States  v.  Ferreira.  13  How.  40.  14  L.  Ed.  42; 
In  re  Sanborn.  148  U.  S.  222,  37  L.  Ed.  429; 
Interstate  Commerce  Commission  <-. 
Brimson,    154    U.    S.    447,    38    L.    Ed.    1047. 

47.  United  States  v.  Ritchie.  17  How 
525,  533,  15  L.  Ed.  236,  citing  American 
Ins.  Co.  V.  Canter,  1  Pet.  511,  7  L.  Ed.  242; 
Benner  v.  Porter,  9  How.  235,  13  L.  Ed. 
119:  United  States  v.  Ferreira,  13  How. 
40.    14    L.    Ed.    42. 

Board  of  commissioners. — By  an  act  of 
congress  passed  on  the  3d  of  March,  1851, 
(9  Stat,  at  L.  631).  provision  was  made 
for  the  appointment  of  a  board  of  com- 
missioners to  settle  private  land  claims 
in  California,  and  for  the  transfer  of  a 
case  decided  bv  them  to  the  district  court 
of  the  United  States  for  California,  by  way 
of  apoeal.  This  law  was  constitutional. 
The  board  of  commissioners  was  not  a 
court,  under  the  constitution,  invested 
with  judicial  powers:  but  the  commence- 
ment of  the  suit  in  the  district  court,  when 


transferred  there,  must  be  regarded  as  an 
original  proceeding.  The  district  court 
could  hear  additional  evidence  to  that 
which  was  before  the  board  of  commis- 
sioners. United  States  r.  Ritchie,  17  How. 
525,  15  L.  Ed.  236,  reaffirmed  in  Fremont 
I'.  United  States,  17  How.  542.  15  L.  Ed. 
241. 

48,  United  States  v.  Ritchie,  17  How. 
525.    533,    15    L.    Ed.    236. 

Proceedings  to  obtain  a  patent  for  min- 
eral lands. — A  judgment  rendered  in  a  pro- 
ceeding under  §  2326  of  the  Revised  Stat- 
utes, to  obtain  a  patent  for  mineral  lands 
of  the  United  States,  which  requires  of 
any  person  desiring  to  contest  the  claim- 
ant's right,  to  file  his  claim  in  the  land  of- 
fice, and  further  declares  that  it  shall  be 
the  duty  of  the  adverse  claimant  to  com 
mence  proceedings  in  a  court  of  comoetent 
jurisdiction  to  determine  the  question  of 
the  right  of  possession,  is  subject  to  re- 
view in  this  court,  because  it  is  apparent 
that  the  statute  requires  a  judicial  proceed- 
ing in  a  competent  court.  "What  is  a 
competent  court  is  not  specifically  stated, 
but  it  undoubtedly  means  a  court  of  gen- 
eral jurisdiction,  whether  it  be  a  state 
court  or  a  federal  court;  and  as  the  very 
essence  of  the  trial  is  to  determine  rights 
by  a  regular  procedure  in  such  court,  af- 
ter the  usual  methods,  which  rights  arc 
dependent  on  the  laws  of  the  United 
States,  we  see  no  reason  why,  if  the 
amount  in  controversy  is  sufficient  in  a 
case  tried  in  a  court  of  the  United  States, 
or  the  proper  case  is  made  on  a  writ  of 
error  to  a  state  court,  the  judgment  may 
not  be  brought  to  this  court  for  review, 
as  in  other  similar  rases.  Belk  v.  ATea^-her, 
104  U.  S.  279,  26  L.  Ed.  735."  Chambers 
c'.  Harrington,  111  U.  S.  350,  351,  28  L 
Ed.  452. 

49.  United  States  v.  Klein.  13  Wall.  128, 
145,  20  L.  Ed.  519;  United  States  v.  Tones. 
119  U.  S.  477,  30  L.  Ed.  -1-40;  Gordon  v. 
United  States.  117  U.  S.,  appx.,  697:  Great 


926 


APPEAL  AND  ERROR. 


California  Land  Case. — The  proceeding  in  the  district  court  of  the  United 
States  in  a  Cahfornia  land  case,  on  an  appeal  from  the  board  of  land  commis- 
sioners, is  an  original  suit,  and  the  whole  case  is  open.^*^ 

3.  Decisions  of  Special  Tribunals. — Where  a  decision  is  made  by  a  special 
tribunal,  with  full  powers  to  examine  and  decide,  if  there  is  no  provision  for 
an  appeal  to  any  other  jurisdiction,  the  decision  is  final  within  the  law.'^^ 

4.  Judgments  by  Default  and  Decrees  Pro  Confesso. — A  judgment  by 
default  is  interlocutory  or  final.  Wllien  the  action  sounds  in  damages,  as  covenant, 
trover,  trespass,  etc.,  it  is  only  interlocutory,  that  the  plaintifif  ought  to  recover 
his  damages,  leaving  the  amount  of  them  to  be  afterwards  ascertained.^^  g^t 
where  the  amount  of  the  judgment  is  entered  by  the  calculation  of  the  clerk, 
no  further  steps  being  necessary,  by  a  jury  or  otherwise,  to  ascertain  the  amount, 
the  judgment  is  final. '^^ 

A  decree  pro  confesso  is  as  binding  and  conclusive  as  a  decree  rendered 
m  a  most  solemn  manner,  and  concludes  the  defendant  so  far,  at  least,  as  the 
defendant  is  supported  by  the  allegations  in  the  bill,  taking  the  same  to  be  true.^* 
But  a  decree  on  a  bill  taken  pro  confesso  may  be  attacked  on  appeal,  if  not  con- 
fined to  the  matter  of  the  bill.^^  Where  a  decree  is  entered  upon  an  order  taking 
a  bill  in  equity  as  confessed  by  defendants  for  want  of  an  answer,  without  ob- 
jection, the  only  question  for  the  consideration  of  this  court  on  appeal  is  whether 
the  allegations  of  the  bill  are  sufficient  to  support  the  decree.^^     XX'here  a  bill  is 


Falls    Mfg.    Co.   V.    Attorney   General,    124 
U.    S.    581,    599,   31    L.    Ed.    527. 

50.  Grisar  v.  McDowell,  6  Wall.  363, 
364,  18  L.  Ed.  863,  citing  United  States 
V.  Ritchie,  17  How.  525,  533,  15  L.  Ed. 
236. 

51.  Foley  v.  Harrison,  15  How.  433, 
488.    14    L.    Ed.    761. 

An  act  of  congress  of  August,  3d,  1846, 
provided  that  the  commissioner  of  the 
general  land  office  be  authorized  to  de- 
termine upon  principles  of  equity  and  jus- 
tice as  recognized  in  courts  of  equity,  and 
in  accordance  with  equitable  rules  and 
regulations,  to  be  settled  by  the  secretary 
of  the  treasury,  the  attorney  general  and 
commissioner,  all  cases  of  suspended  en- 
tries now  existing  in  said  land  offices, 
and  to  adjudge  in  what  cases  patents 
shall  issue  upon  the  same.  It  was  held, 
that  a  decision  made  by  this  special  tri- 
bunal, with  full  powers  to  examine  and 
decide,  is  final  for  which  no  appeal  will 
lie  because  there  is  no  provision  made 
for  an  appeal  in  any  other  jurisdiction. 
Foley  T.  Harrison,  15  How.  433,  14  L. 
Ed.  761;  United  States  v.  Ferreira,  13  How. 
AO,   14   L.    Ed.   42. 

Under  the  pre-emption  act  of  May  29th, 
1830,  conferring  certain  rights  upon  set- 
tlers upon  public  lands,  on  proof  of  set- 
tlement or  improvement  being  made  to 
the  satisfaction  of  the  register  and  re- 
ceiver, agreeably  to  the  rules  prescribed 
by  the  commissioner  of  the  general  land 
office,  it  was  held  that  if  the  register 
and  receiver  acted  within  their  powers, 
their  decision  must  be  considered  final, 
because  by  the  act  constituting  the  regis- 
ter and  receiver  no  appeal  was  given. 
Lytle  V.  Arkansas,  9  How.  314,  13  L.  Ed. 
153. 

52.  Judgments  by  default  and  decrees 
pro  confesso. — 1  Tidd,  Pr.,  568.     Clements 


V.  Berry,   11  How.  398,  409.  13  L.  Ed.  745. 

53.  Clements  v.  Berry,  11  How.  398, 
409,    13   L.    Ed.   745. 

54.  Thompson  v.  Wooster,  114  U.  S. 
104,  29  L.  Ed.  105,  citing  1  Smith's  Ch. 
Pract.    153. 

After  the  entry  of  a  decree  pro  con- 
fesso and  whilst  it  stands  unrevoked,  the 
defendants  are  absolutely  barred  and  pre- 
cluded from  alleging  anything  in  deroga- 
tion, or  in  opposition  to  the  decree  and 
they  are  equally  barred  and  precluded 
from  questioning  its  correctness  here  on 
appeal,  unless  on  the  face  of  the  bill  it 
appears  manifest  that  it  is  erroneous  and 
improperly  granted.  On  appeal  it  is  ir- 
regular to  question  the  allegations  of  a 
bill.  "If  anything  appears  in  those  al- 
legations themselves  going  to  show  that 
the  decree  was  erroneous,  of  course  it  is 
assignable  for  error;  but  any  attempt  to 
introduce  facts  not  embraced  in  those  al- 
legations, for  the  purpose  of  counter- 
vailing the  decree,  is  manifestly  improper." 
Thompson  r.  Wooster.  114  U.  S.  104,  114, 
29   L.   Ed.   105. 

55.  Ohio  Central  R.  Co.  z\  Central  Trust 
Co.,    133    U.   S.   83,   33    L.    Ed.    561. 

56.  Masterson  v.  Howard.  18  Wall.  99 
21    L.    Ed.    764. 

A  railroad  company,  whose  road,  prop- 
erty and  franchises  have  been  sold  under 
a  decree  for  the  foreclosure  of  a  mort- 
gage entered  on  a  bill  taken  pro  confesso, 
may  prosecute  an  appeal  from  the  final 
decree  distributing  the  proceeds  of  the 
sale  and  adjudging  a  balance  still  due  the 
mortgage  creditors.  Ohio  Central  R.  Co. 
V.  Central  Trust  Co.,  133  U.  S.  83,  33  L. 
Ed.  561.  citing  Williamette  Mfg.  Co.  v. 
Bank  of  British  Columbia,  119  U.  S.  191, 
197,  30  L.  Ed.  384;  Memphis,  etc.,  R.  Co. 
V.  Railroad  Comm'ssioHers,  112  U.  S.  609, 
619,  28    L.   Ed.  837. 


APPEAL  AND  ERROR. 


927 


taken  as  confessed  by  one  of  two  defendants  before  a  decree  is  made  dismissing 
the  bill,  on  demurrer,  as  to  the  other  defendant,  the  latter  can  appeal  from  the 
decree,  because  the  decree  is  final  as  to  him,  althouigh  it  does  not  dispose  of  the 
case  as  to  his  codefendant.^" 

5.  Orders  Disbarring  Attorneys. — An  appeal  does  not  lie  to  this  court  from 
an  order  of  the  district  court  disbarring  an  attorney.  The  remedy  of  the  party, 
if  any,  is  by  mandamus. ^^ 

6.  Consent  Decrees. — Courts  of  chancer}-  generally  hold  that  from  a  decree 
by  consent  no  appeal  lies.^'*  Although  that  rule  has  not  prevailed  in  this  court 
under  the  terms  of  the  acts  of  congress  regulating  its  appellate  jurisdiction, 
yet  a  decree,  which  appears  by  the  record  to  have  been  rendered  by  consent,  is 
always  affirmed,  without  considering  the  merits  of  the  cause.  A  fortiori,  neither 
party  can  deny  its  effect  as  a  bar  of  a  subsequent  suit  on  any  claim  included 
in  the  decree.^^ 

7.  Judgment  or  Decree  Pro  Form.\. — Ordinarily  an  appeal  or  writ  of  error 
will  not  lie  from  a  judgment  or  decree  rendered  pro  forma  for  the  purpose  of 
an  appeal  .*^^ 

8.  Judgments  Awarding  Peremptory  Mandamus. — A  writ  of  error  will 
lie.  from  this  court  upon  judgments  of  the  circuit  court  awarding  a  peremptory 
mandamus,  if  the  matter  in  controversy  is  of  sufficient  value.^^ 

9.  Judgments  or  Decrees  in  Ancillary  Proceedings. — The  final  decree  or 
judgment  rendered  in  an  ancillary  proceeding  where  the  property  of  another  has 


57.  Stewart  v.  Masterson,  131  U.  S.  151, 
32  L.   Ed.   114. 

58.  Orders  disbarring  attorneys. — Ex 
parte  Robinson,  19  Wall.  .513,  22  L.  Ed. 
205.  See  the  title  ATTORNEY  AND 
CLIENT. 

59.  Consent  decrees. — 2  Dan.  Ch.  Pract. 
ch.  32,  §  1;  Nashville,  etc..  R.  Co.  r. 
United  States.  113  U.  S.  261,  266,  28  L. 
Ed.  971;  Livingston  z'.  Woodworth,  15 
How.  546,  14  L.  Ed.  809:  Doss  v.  Tyack, 
14   How.  298,   14  L.   Ed.   428. 

An  appeal  will  not  be  dismissed  upon  the 
ground  that  the  decree  from  which  it  was 
taken  was  rendered  by  consent;  but  no 
errors  will  be  considered  here  which  were 
in  law  waived  by  such  consent.  A  recital 
in  the  decree  that  it  was  assented  to  by 
the  solicitor  of  one  of  the  parties  is 
equivalent  to  a  direct  finding  that  he  had 
authority  to  do  what  he  did,  and,  so  far 
a.s  the  question  is  one  of  fact  only,  is 
binding  upon  this  court  on  appeal.  Pa- 
cific R.  Co.  z'.  Ketchum.  101  U.  S.  289,  25 
L.    Ed.    932. 

Consent  decree  for  account. — Where 
consent  is  given  to  a  decree  for  an  ac- 
count, the  defendant  is  not  thereby  pre- 
cluded from  objecting  to  the  master's 
report  on  the  ground  that  it  goes  beyond 
the  order  for  taking  the  account.  Liv- 
ingston V.  Woodworth,  15  How.  546.  14  L. 
Ed.    809. 

60.  Nashville,  etc.,  R.  Co.  v.  United 
States,    113   U.    S.   261.   266,   28    L.    Ed.   971. 

A  consent  decree  in  a  circuit  court  may 
be  appealed  from.  Pacific  R.  Co.  v.  Ket- 
chum,  101   v.   S.  289,  2.")   L.   Ed.  932. 

61.  Judgment  or  decree  pro  forma. — 
United  States  z:  Gleeson.  124  U.  S.  255. 
31    L.    Ed.    421. 

Where    a   decree   in    admiralty   was   ren- 


dered in  the  circuit  court  upon  an  appeal 
from  the  district  court,  said  decree  being 
given  pro  forma  because  the  presiding 
judge  had  been  of  counsel  for  one  of  the 
parties,  this  court  has  jurisdiction  to  try 
and  determine  the  case.  Steamer  Ore- 
gon :'.  Rocca,  18  How.  570,  15  L.  Ed. 
515.  Justices  Daniel  and  Catron,  dis- 
senting. 

Appeals  from  court  of  claims. — On  ap- 
peal by  the  United  States  from  a  judg- 
ment of  the  court  of  claims  against  them 
for  less  than  three  thousand  dollars,  ren- 
dered pro  forma,  against  the  opinion  of 
that  court,  and  for  the  purpose  of  an  ap- 
peal, this  court,  upon  objection  taken  in 
behalf  of  the  United  States  to  the  irregu- 
larity of  the  actions  of  the  court  below, 
reverses  the  judgment,  and  remands  the 
case  for  further  proceedings  according  to 
law.  "It  is  true  that  there  are  cases  in 
the  books,  in  which  appeals  from  judg- 
ments of  the  court  of  claims,  appearing 
to  have  been  rendered  pro  forma,  but  no 
objection  being  taken  on  that  ground, 
have  been  considered  and  decided  upon 
the  merits.  Twenty  Per  Cent.  Cases,  20 
Wall.  179,  181,  22  L.  Ed.  339.  and  9  C. 
CI.  103,  105.  302,  314:  United  States  v. 
Martm,  94  U.  S.  400.  22  L.  Ed.  128,  and 
10  C.  CI.  276;  United  States  v.  Driscoll. 
96  U.  S.  421,  24  L.  Ed.  847,  and  13  C.  CI. 
15,  40;  United  States  v.  Fisher,  109  U. 
S  143.  27  L.  Ed.  885,  and  15  C.  CI.  323." 
United  States  r.  Gleeson,  124  U.  S.  255, 
31  L.  Ed.  421,  explaining  United  States  v. 
Stone,   14  Pet.  524,   10   L.    Ed.  572. 

62.  Judgments  awarding  peremptory 
mandamus. — United  States  z'.  .\ddison.  22 
How.  174,  16  L.  Ed.  304.  citing  Columbian 
Ins.  Co.  V.  Wheelright,  7  Wheat.  534,  5  L- 
Ed.    516. 


928  APPEAL  AND  ERROR. 

been  taken  under  process  issued  against  a  defendant,  is  reviewable  by  appeal  or 
writ  of  error,  according  to  the  nature  of  the  case.**^ 

10.  Judgments  in  Summary  Proceedings — a.  ///  General. — As  a  general 
rule  no  appeal  or  writ  of  error  lies  in  a  proceeding  that  is  in  its  nature  summary 
and  special.*'*  A  contest  between  a  judgment  in  circuit  court,  and  a  judgment  in 
state  court  as  to  priority  of  payment,  arising  upon  rules,  is  not  such  judgment 
as  this  court  can  re-examine.*'^ 

b.  Judgments  on  Motions. — It  has  long  been  settled  that  decisions  of  a  court, 
founded  on  motions  of  a  certain  description,  are  not  subject  to  a  writ  of  error. •''^ 
The  judgment  or  order  of  the  court  on  a  summary  motion,  or  on  a  question 
<iubmitted  to  the  court  below  on  a  motion  collateral  to  the  record  on  the  sug- 
gestion of  a  third  party,  is  not  re-examinable  on  a  writ  of  error  issued  on  the 
judgment  with  which  it  may  happen  to  be  connected,  because  the  decision  of  that 
court  is  final  and  conclusive.*'"  An  appeal  does  not  lie  from  an  order  of  the 
court  below,  denying  a  motion  in  a  pending  suit,  to  permit  a  person  to  intervene 
and  become  a  party  thereto;  "for  that  was  only  a  motion  in  the  cause,  and  not 
an  independent  suit  in  equity  appealable  here."^'^  Where  land  was  sold  under 
an  execution,  and  the  money  arising  therefrom  about  to  be  distributed  amongst 
creditors  by  an  order  of  the  circuit  court,  a  controversy  between  the  creditors  as 
to  the  priority  of  their  respective  judgments  cannot  be  brought  to  this  court, 
either  by  appeal  or  writ  of  error .*'^  Where  different  parties  claimed  a  fund  in 
the  hands  of  the  marshal,  which  had  arisen  from  sales  under  an  execution,  a 
judgment  of  the  circuit  court  on  rules  as  to  whom  the  money  should  be  paid,  is 
not  such  a  judgment  as  can  be  re-examined  in  this  court."'* 

c.  Judgment  Awarding  Peremptory  Mandamus. — FUit  a  writ  of  error  will 
lie  under  the  22d  section  of  the  act  of  17S9.  from  the  judgment  of  a  court 
awarding  a  peremptory  mandamus,  nothwithstanding  the  summary  form  of  the' 
proceedings  and  the  nature  of  the  decision.'^  ^ 

11.  Judgments  in  Haheas  Corpus  Proceedings."^ — With  all  the  strictness 
upon  the  subject  in  the  Knglish  courts,  we  are  not  aware  of  any  case  there  in 
which  it  has  been  held  that  a  writ  of  error  would  not  lie  from  the  judgment 
of  a  court  of  record,  deciding,  upon  the  return  of  the  habeas  corpus,  that  the 
warrant  under  which  the  party  was  held  was  sufficient  in  law  to  authorize  his 
arrest  and  detention."^^ 

63.  Judgments    or    decrees    in    ancillary  ror.     The  persons  complaining  should  file 

proceedings Krippendorf    v.     Hyde,     110  their  bill  in  equity,  or  state  an  issue  in  due 

U.    S.    276,   387,  28    L.    Ed.   145.  legal    form,    with    proper    parties,    setting 

64.  Judgments  in  summary  proceedings  forth  the  merits  of  their  respectve  claims, 
in  general. — Railroad  Co.  v.  Church,  19  if  thej'  intend  to  prosecute  an  appeal  or 
Wall.   62,  22   L.   Ed.  97.  writ   of  error   to   this   court.      But   if   they 

65.  Bayard  7'.  Lombard,  9  How.  5r^0.  submit  the  question  on  which  their  claim 
13  L.  Ed.  245;  Curtis  V.  Petitpain,  18  depends  to  the  court  below  on  a  motion 
How.   109,   15  L.   Ed.   280.  collateral    to    the    record,    the    decision    of' 

66.  Judgments  on  motions. — Bayard  ta  that  court  is  final  and  conclusive,  and  can- 
Lombard.  9  How.   530,  551.   13   L.   Ed.  245.  not    be    reviewed    by    this    court.      Bayard 

67.  Bayard  v.  Lombard,  9  How.  530,  551,       v.  Lombard.  9  How.  530,  13  L.   Ed.  245. 
13  L.  Ed.  245;  Curtis  v.  Petitpain.  18  How.  70.    Curfs    v.    Petitpain,    18    How.    109, 
109,   15   L.   Ed.  280.                                                     15   L.  Ed.  280.  citing   Bayard  v.   Lombard, 

68.  Ex   parte   Cutting,   94   U.   S.    14.   22,       9  How.  530.  13  L.  Ed.  245. 

^*^T"    T   j  .,.  ..  71.      Judgment      awarding      peremptory 

69.  Judgment  on  summary  motion  or  niandamus.-Columbian  Ins  Co  r.  Wheel- 
collateral  question  according  to  the  prac-  ^-^  .  ^^^^^^  .^  ^  j,^  .^  j^^^^,^,! 
tice  m  Pennsylvania.-Where  land  was  ^  ^United  States,  12  Pet.  524,  9  L.  Ed.  1181, 
sold  under  an  execution,  and  the  money  ^-^^^  ^^^  approved  in  Holmes  v.  Jennison. 
arising  therefrom   is   about   to   be    distrib-  ^^   p^^    540,   565,    10   L.    Ed.   .579. 

uted   amongst     creditors    by   an    order     of  „„      o                  ^,r^   j              j  t^ 

the   circuit  court,   h   was  held,  that   under  ^72.     See   post       Orders    and  Decrees^  at 

the    pecuhar    practice    of    the     courts    of  Chambers,      IV,   C,   4,   e;      Orders   in    Ha- 

Pennsylvr  ,ia,  that  a  controversy  between  beas      Corpus      Proceedings,  IV.    C,     4, 

the   creditors   as    to    priority    of  their   re-  '^>   (^)- 

spective  judgments   cannot  be   brought   to  73.    Holmes  v.  Jennison,  14  Pet.  540,  1© 

this  court  either  by  appeal   or  writ  of  er-  L.    Ed.    579,   591. 


APPEAL  AND  ERROR. 


929 


12.  Proceeding  Must  Be  a  Case  at  Law  or  in  Equity. — There  can  be  no 
appeal  to  the  supreme  court  of  the  United  States  in  any  proceeding  which  does 
not  constitute  a  suit  or  action.'^^ 

C.  Finality  of  Decision  as  Governing  Right  of  Review — 1.  Intro- 
uucTORY. — It  is  often  a  vexatious  and  doubtful  question  what  decrees  and  de- 
cisions are  final,  and  what  are  interlocutory,  within  the  meaning  of  these  acts 
of  congress.  One  who  carefully  examines  the  decisions  of  the  supreme  court 
upon  this  question  cannot  fail  to  be  impressed  with  the  truth  of  the  remark  made 
by  Mr.  Justice  Brown  in  delivering  the  opinion  of  that  court  in  McGourkey  v. 
Railway  Co.,  146  U.  S.  536,  545,  13  Sup.  Ct.  172,  when  he  said,  "The  cases,  it 
must  be  conceded,  are  not  altogether  harmonious.'"^ ^ 

2.  Necessity  for  Finaeity — a.  In  General. — No  point  is  better  settled  in  this 
court,  than  that  an  appeal  or  writ  of  error  may  be  prosecuted  only  from  a  final 
judgment  or  decree.  The  cases  are  numerous  where  appeals  have  been  dis- 
missed, because    the  decree    of  the  circuit    court  was  not    final.''^      And    it    was 


74.  Proceedings  must  be  a  case  at  law 
or  in  equity. — Pacific,  etc.,  Co.  v.  United 
States,  187  U.  S.  447,  47  L.  Ed.  253; 
Pacific,  etc..  Co.  v.  United  States,  187  U. 
S.    454,    47    L.    Ed.    25(3. 

A  proceeding  in  the  district  court  of 
Alaska  by  petition  to  obtain  a  license  tor 
vessels  and  salmon  canneries  under  the 
act  of  March  3,  1899,  in  which  the  ap- 
pellant protests  against  the  payment  of 
licenses,  and  in  which  the  court  enters 
an  order  directing  the  issue  of  the  license 
and  overruling  and  denying  the  protest, 
is  not  a  suit  or  action  in  which  a  final 
decree  or  judgment  is  rendered,  from 
which  the  petitioner  can  appeal  to  the  su- 
preme court.  Pacific,  etc.,  Co.  v.  United 
States,  187  U.  S.  447.  47  L.  Ed.  253;  Pa- 
cific, etc.,  Co.  v.  United  States,  187  U.  S. 
454,   47    L.    Ed.   256. 

75.  Probably  no  question  of  equity  prac- 
tice has  been  the  subject  of  more  frequent 
discussion  in  this  court  than  the  finality 
of  decrees.  It  has  usually  arisen  upon  ap- 
peals taken  from  decrees  claimed  to  be 
interlocutory,  but  it  has  occasionally  hap- 
pened that  the  power  of  the  court  to  set 
aside  such  a  decree  at  a  subsequent  term 
has  been  the  subject  of  dispute.  The 
cases,  it  must  be  conceded,  are  not  alto- 
gether harmonious.  See  McGourkey  7'.  To- 
ledo, etc.,  R.  Co..  146  U.  S.  536,  544,  36 
L.  Ed.  1079,  opinion  of  Mr.  Justice 
Brown. 

76.  Necessity  for  finality  in  general. — 
Barnard  v.  Gibson,  7  How.  651,  657,  12  L. 
Ed.  857,  860;  Wheeler  v.  Harris,  13  Wall. 
51,  20  L.  Ed.  531;  United  States  v.  Fossat, 
21  How.  446,  16  L.  Ed.  186;  Ex  parte  Na- 
tional Enameling  Co.,  201  U.  S.  156,  160.  50 
L.  Ed.  707;  In  re  Grossmayer,  177  U.  S.  48, 
50.  44  L.  Ed.  665;  McCollum  z'.  Howard, 
154  U.  S.  App.  577.  19  L.  Ed.  638;  Thomp- 
son V.  Butler,  95  U.  S.  694,  695,  24  L.  Ed. 
540;  Masterson  v.  Herndon,  10  Wall.  416, 
19  L.  Ed.  953;  Luxton  v.  North  River 
Bridge  Co.,  147  U.  S.  337,  341,  37  L.  Ed. 
194. 

"We  feel  very  confident  no  case 
has  been  decided  by  this  covrt,  when 
the      question      of      the      finality      €>£      a 

1  U  S  Enc— 59 


decree  or  judgment  has  been  brought 
to  its  notice,  in  which  the  distinction 
between  final  and  interlocutory  decrees 
has  not  been  regarded  as  it  was 
meant  to  be  by  the  legislation  of  congress, 
and  as  it  was  understood  by  the  courts  in 
England  and  in  this  country,  before  con- 
gress acted  upon  the  subject."  Beebe  v. 
Russell,  19  How.  283,  284.  15  L.  Ed.  668, 
opinion    of    Mr.    Justice    Wayne. 

It  has  been  the  object  of  this  court  at 
all  times,  though  an  accidental  deviation 
may  be  found,  to  restrict  the  cases  which 
have  been  brought  to  this  court,  eith^jr 
by  appeal  or  by  writ  of  error,  to  those  in 
which  the  rights  of  the  parties  have  been 
fully  and  finally  determined  by  judgments 
or  decrees  in  the  court  below,  whether 
they  were  cases  in  admiralty,  in  equity, 
or  common  law.  Beebe  v.  Russell,  19 
How.   283,    15   L.    Ed.   668. 

Appellate  jurisdiction  of  this  court  in 
writs  of  error  under  the  twenty-second 
section  of  the  judiciary  act,  is  confined 
to  final  judgments  by  the  express  words 
of  the  section,  and  of  course  the  writ  of 
error  should  be  addressed  to  the  final 
judgment.  All  the  forms  of  a  writ  of  er- 
ror furnished  to  the  clerks  of  the  cir- 
cuit courts  are  to  that  effect,  and  those 
clerks  have  no  right  to  change  the  form 
without  the  sanction  at  least  of  two  jus- 
tices of  this  court.  Barton  v.  Forsyth. 
5   Wall.    190,   193,   18   L.    Ed.   545. 

Cases  cannot  be  brought  to  this  court 
upon  .appeal  in  parcels.  We  must  have  the 
whole  of  a  case  or  none.  The  court  be- 
low must  settle  all  the  merits  before  we 
can  accept  jurisdiction.  Appeals  will  lie, 
as  has  been  frequently  held,  when  noth- 
ing remains  to  be  done  except  to  enforce 
and  give  efifect  to  what  has  been  decreed, 
but  until  all  the  rights  of  the  parties  have 
been  finally  passed  upon  and  settled,  this 
cannot  be  the  condition  of  a  cause.  Noth- 
ing must  be  left  below  when  an  apoeal  is 
taken  but  to  execute  the  decree.  Crosby 
v.  Buchanan,  23  Wall.  420,  453,  22  L.  Ed. 
138. 

The  supreme  court,  in  the  exercise  of 
its  ordinary  appellate  jurisdiction,  can  take 


930 


APPEAL  AND  ERROR. 


held  that  this  rule  applied  as  well  to  appeals  from  district  to  circuit  courts,  as  to 
appeals  to  this  court. "^^ 

The  provision  of  the  judiciary  act  of  1789  limiting  the  appellate  juris- 
diction of  this  court  to  final  judgments  and  decrees  in  the  cases  specified,  in  re- 
spect to  writs  of  error,  was  only  declaratory  of  the  well-settled  and  ancient  rule 
of  English  practice.  At  common  law  no  writ  of  error  could  be  brought  except 
on  a  final  judgment."*^ 

Petition  for  V/rit  of  Habeas  Corpus. — An  appeal  may  lie,  and  in  many 
courts  often  does  lie,  from  a  merely  interlocutory  order.  As,  for  example,  on 
a  petition  for  a  writ  of  habeas  corpus  setting  forth  that  a  party  is  in  custody 
under  the  indictment  in  the  district  court  charging  him  with  violation  of  the 
con'^titution  or  the  laws  of  the  United  States.'** 

Necessity  for  Finality  as  to  All  Parties. — The  court  below  cannot  send  up 
the  case  unless  all  the  matters  between  all  the  parties  to  the  record  have  been 
finally  disposed  of.  The  case  is  not  to  be  sent  up  in  fragments  by  a  succession 
of  writs  of  error;  and  any  neglect  in  the  observance  of  the  rule  exposes  the 
judgment  to  a  reversal  on  error  in  the  appellate  court.  According  to  the  prac- 
tice of  this  court  the  judgment  cannot  be  reversed  on  account  of  the  error,  but 
the  case  must  be  dismissed  for  want  of  jurisdiction,  and  remanded  to  the  court 
below,  to  be  proceeded  in  and  finally  disposed  of.**^ 


cognizance  of  no  case  until  a  final  judg- 
ment or  decree  shall  have  been  made  in 
the  inferior  court.  Though  the  merits 
of  the  cause  may  have  been  substantially- 
decided;  while  anything,  though  merely 
formal,  remains  to  be  done,  this  court  can- 
not pass  upon  the  subject.  If,  from  any 
intermediate  stage  in  the  proceedings,  an 
appeal  might  be  taken  to  the  supreme 
court,  the  appeal  might  be  repeated  to 
the  great  oppression  of  parties.  So  if  this 
court  might  interpose  by  way  of  manda- 
mus, in  the  progress  of  a  cause,  and  order 
a  judgment  or  decree,  a  writ  of  error  might 
be  brought  to  the  judgment,  or  an  ap- 
peal prayed  from  the  decree,  and  a  judg- 
ment or  decree,  entered  in  pursuance  of 
the  mandamus,  might  be  afterwards  re- 
versed. Such  a  proceeding  would  subvert 
our  whole  system  of  jurisprudence.  Life, 
etc.,  Ins.  Co.  v.  Adams,  9  Pet.  573.  9 
L.     Ed.    234. 

"It  is  of  great  importance  to  the  due 
administration  of  justice,  and  is  in  further- 
ance of  the  manifest  intention  of  the 
legislature,  in  giving  appellate  jurisdic- 
tion to  this  court  upon  final  decrees  only, 
that  causes  should  not  come  up  here  in 
fragments  upon  successive  appeals.  It 
would  occasion  very  great  delays  and  op- 
pressive expenses.  We  have  already  had 
occasion  to  advert  to  this  subject  in  the 
cases  of  The  Santa  Maria,  10  Wheat.  431, 
6  L.  Ed.  359;  The  Palmyra,  10  Wheat. 
502,  6  L.  Ed.  376;  Chace  v.  Vasquez,  11 
Wheat.  429,  6  L.  Ed.  511."  Canter  v. 
American  Ins.  Co.,  3  Pet.  318,  7  L.  Ed. 
692. 

It  is  the  settled  pract'ce  of  this  court, 
and  the  sa.-re  in  the  King's  Bench  in  Eng- 
land, that  the  writ  will  not  lie  until  the 
whole  of  the  matters  in  controversy  in 
the  suit  below  are  disposed  of.  The  writ 
itself  is  conditional  and  does   not  author- 


ize the  court  below  to  send  up  the  case, 
unless  all  the  matters  between  the  parties 
to  the  record  have  been  determined.  The 
cause  is  not  to  be  sent  up  in  fragments. 
Holcombe  v.  McKusick,  20  How.  552,  15 
L.    Ed.    1020. 

Case  distinguished. — The  case  of  Mich- 
oud  V.  Girod,  4  How.  503,  11  L.  Ed.  1076, 
was  an  interlocutory  decree  in  the  cir- 
cuit court,  and  which  case,  being  ap- 
pealed, was  heard  and  decided  by  this 
court.  But.  from  the  report,  there  ap- 
pears to  have  been  no  exeception  taken 
to  the  appeal,  and  it  may  be  presumed  to 
have  escaped  the  notice  of  the  court. 
Cited  in  Craighead  v.  Wilson,  18  How. 
199,  15  L.  Ed.  332. 

77.  Mordecai  v.  Lindsay,  19  How.  19^, 
15    L.    Ed.   624. 

78.  McLish  v.  Roflf,  141  U.  S.  661,  35 
L.  Ed.  893.  citing  Bac.  Ab.  Error.  A.  2, 
reaffirmed  in  Chicago,  etc.,  R.  Co.  v. 
Roberts,   141  U.   S.   690,  35  L.   Ed.  905. 

Under  the  judiciary  act  of  1789  and 
other  acts  embodied  in  the  Revised  Stat- 
utes, the  appellate  jurisdiction  of  this 
court  from  the  circuit  court  of  the  United 
States  was  limited  to  final  judgments  at 
law,  and  final  decrees  in  equity  or  ad- 
miralty. Acts  of  September  24,  1789.  c. 
20,  §§  13,  22,  1  Stat.  81,  84;  March  3,  1803, 
c.  40.  2  Stat.  244;  Rev.  Stat.,  §§  691,  692. 
American  Construction  Co.  v.  Jackson- 
ville, etc.,  R.  Co..  148  U.  S.  372,  378,  37 
L.    Ed.    486. 

79.  Ex  parte  Virginia,  100  U.  S.  339, 
25   L.   Ed.   676. 

80.  United  States  v.  Girault.  11  How. 
22,   13   L.   Ed.    587. 

By  the  laws  of  Mississippi,  where  a 
joint  action  is  brought  upon  a  bond  or 
note,  the  case  must  be  finally  disposed 
of  in  the  court  below,  with  respect  to 
all    the    parties    upon    the    record,    before 


APPEAL  AND  ERROR. 


931 


b.  Under  Circuit  Court  of  Appeals  Act. — This  court  has  no  jurisdiction  by 
(hrect  appeal  under  §  5  of  the  act  of  March  3.  1891,  c.  517,  26  Stat.  826,  until 
the  final  determination  of  the  case  in  the  court  below,  although  the  word  "final" 
is  omitted  from  the  act.'^^ 

Certiorari  to  Circuit  Court  of  Appeals.— This  court  should  not  issue  a 
writ  of  certiorari  to  review  a  decree  of  the  circuit  court  of  appeals  on  appeal 
from  an  interlocutory  order,  unless  it  is  necessary  to  prevent  extraordinarv  in- 
convenience and  embarrassment  in  the  conduct  of  the  cause. '*- 

c.  What  Laz^'  Governs. — ^Moreover  the  statutes  or  practice  in  the  court  below 
allowing  a  review  of  interlocutory  decisions,  cannot  govern  this  court  in  revising 
their  decisions.'^"' 

Hence,  the  practice  or  the  decisions  of  the  state  of  Louisiana  cannot 
control  the  appellate  jurisdiction  of  this  court  from  the  circuit  court  of  the 
United  States,  as  defined  by  act  of  congress. ^^ 

Form  of  Judgment. — The  forms  of  verdicts  and  judgments,  it  is  true,  arc 
not  controlled,  even  in  Louisiana,  by  the  state  law,  but  there  must  be  some  vari- 
ation from  the  form  of  a  judgment  as  at  common  law  to  render  it  appropriate 
to  the  form  of  the  process  adopted  in  that  circuit.  Common-law  suits  as  well  as 
^uits  in  equity  are  commenced  in  that  court  by  petition.  Therefore,  where  it  is 
called  a  judgment  in  the  record  and  treated  as  such  by  the  court  and  the  parties, 
the  writ  of  error  will  not  be  dismissed  because  of  the  informality  of  the  judg- 
ment.^^ 


it  is  carried  up  to  the  appellate  court, 
otherwise  it  is  in  error.  United  States 
V    Girault,  11  How.  22,  13   L.  Ed.   587. 

81.  Under  circuit  court  of  appeals  act. 
— McLish  :■.  Roff.  141  U.  S.  661,  3.5  L. 
Ed.  893,  reaffirmed  in  Chicago,  etc.,  R. 
Co.  V.  Roberts,  141  U.  S.  690,  35  L.  Ed. 
905;  Lubin  v.  Edison,  195  U.  S.  624,  49 
L.  Ed.  349;  Wirgman  v.  Persons,  196  U. 
S.  636.  49  L.  Ed.  629;  Farmers'  Bank  v. 
Roselle,  172  U.  S.  641,  43  L.  Ed.  1180; 
Jeske  V.  Cox.  171  U.  S.  685,  43  L.  Ed. 
J 179;  Hurlbut  Land,  etc.,  Co.  v.  Trus- 
tott.  165  U.  S.  719.  41  L.  Ed.  1185;  Reaves 
V.  Oliver,  168  U.  S.  704,  42  L.  Ed.  1212: 
Perea  v.  Perea  de  Harrison,  195  U.  S. 
623,  49  L.  Ed.  349;  International  Trust 
Co.  V.  Weeks.  193  U.  S.  667,  48  L.  Ed. 
839;  Johnsrn  v.  Thomas.  197  U.  S.  619. 
49  L.  Ed.  909;  Shoesmith  v.  Boot  &  Shoe 
Mfg.  Co.,  198  U.  S.  582,  49  L.  Ed.  1172; 
Wishkah  Boom  v.  United  States,  202  U. 
S.  613.  50  L.  Ed.  1171;  Smith  v.  Iverson, 
203    U.   S.   586,   51   L.    Ed.  329. 

In  McLish  v.  Roff,  141  U.  S.  661,  665. 
35  L.  Ed.  893,  it  was  observed  by  Mr. 
Justice  Lamar:  "From  the  very  founda- 
tion of  our  judicial  sj-stem  the  object 
and  policy  of  the  acts  of  congress  in  re- 
lation to  appeals  and  writs  of  error  (with 
the  single  exception  of  the  provision  in 
the  act  of  1875  in  relation  to  cases  of  re- 
moval, which  was  repealed  by  the  act  of 
1887),  have  been  to  save  the  expense  and 
delays  of  repeated  appeals  in  the  same 
suit,  and  to  have  the  whole  case  and  every 
matter  in  controversy  in  it  decided  in  a 
single  appeal."  The  circuit  courts  of  ap- 
peals are  governed  by  the  same  princi- 
ples. Kingman  &  Co.  v.  Western  Mfg. 
Co.,  170  U.  S.  675,  680,  42  L.  Ed.  1192, 
Teaflfirmed    in    International    Trust    Co.    v. 


Weeks.    193   U.    S.   667,   48   L.    Ed.   839. 

82.  .American  Construction  Co.  v.  Jack- 
sonville, etc..  R.  Co.,  148  U.  S.  372,  378, 
37    L.    Ed.    486. 

83.  What  law  governs. — In  England  a 
writ  of  error  may  be  brought  upon  an  in- 
terlocutory decree  or  order;  and  until  a 
decision  is  obtained  upon  the  writ,  the 
proceedings  of  the  court  below  are  stayed. 
But  here  the  words  of  the  act,  which  al- 
low a  writ  of  error,  allow  it  only  in  the 
case  of  a  final  judgment.  Rutherford  v. 
Fisher,  4  Dall.  22,  1   L.   Ed.  724. 

The  statutes  of  Minnesota  have  pro- 
vided for  an  appeal  from  the  district 
to  the  supreme  court,  on  an  interlocu- 
tory order  affecting  the  merits  (Stat. 
Minn.,  p.  414,  §  7);  it  was,  therefore, 
properly  taken  to  the  supreme  court  of 
the  territory.  But  that  practice  cannot 
govern  this  court  in  revising  the  judg- 
ment of  the  court  below.  Holcombe  v. 
McKusick.  20   How.   552,   15   L.   Ed.    1020. 

An  appeal  will  lie  to  the  supreme  court 
of  Louisiana,  from  any  interlocutory  or 
incidental  order,  made  in  the  progress 
of  the  cause,  which  might  produce  irre- 
parable injury.  Levy  v.  Fitzpatrick,  15 
Pet.   167,  10  L.   Ed.  699. 

84.  Rev.  Stat.,  §  691;  Luxton  v.  North 
River  Bridge  Co.,  147  U.  S.  337,  341,  37 
L.  Ed.  194;  Fleitas  v.  Richardson,  147  U. 
S.    538,   545,   37    L.    Ed.   272. 

85.  Denial  of  petition  in  nature  of  au- 
dita querela. — The  appellee  filed  his  peti- 
tion in  the  circuit  court  of  the  United 
States  averring  that  he  was  the  holder 
of  a  large  amount  of  boncTs  and  coupons, 
secured  by  mortgage  executed  by  the  ap- 
pellant. He  prayed  for  executory  proc- 
ess. Execution  was  awarded,  and  the  ap- 
pellant  was    ordered    to    paj^    the    amount 


932 


APPEAL  AND  ERROR. 


3.  Statement  of  General.  Rules  or  Tests — a.  In  General. — The  most  gen- 
eral rule  is  that  a  decree  is  not  final  where  something  yet  remains  for  the  court  be- 
low to  do.^^  In  other  words,  no  judgment  or  decree  is  final  which  does  not  ter- 
minate the  litigation  between  the  parties.  Therefore,  a  writ  of  error  or  an 
appeal  of  such  a  judgment  or  decree  will  be  dismissed. ^'^  So,  also,  if  the  judg- 
ment is  not  one  which  disposes  of  the  whole  case  on  its  merits,  it  is  not  final. ^* 
But  where  the  whole  law  of  a  case  before  a  circuit  court,  is  settled  by  a  decree, 
and  nothing  remains  to  be  done,  unless  a  new  application  shall  be  made  at  the 
foot  of  the  decree,  the  decree  is  a  final  one,  so  far  as  respects  a  right  of  appeal.^* 


of  said  bonds  and  coupons.  The  ap- 
pellant failing  to  pay  on  demand,  the 
railroad  and  its  appurtenances  were  sold 
by  the  marshal,  and  the  appellee  became 
the  purchaser.  The  appellant  then  filed 
his  petition  in  the  said  court,  in  the  nature 
of  an  audita  querela — averring  that  the 
award  of  execution  had  been  made  with- 
out notice;  that  the  executory  process,  as 
recognized  by  the  practice  of  Louisiana, 
could  not  be  enforced  in  the  courts  of 
the  United  States;  and  that  the  appellee's 
claim  could  only  be  enforced  on  the  eq- 
uity side  of  the  court.  The  record  showed 
the  following  entry:  "The  court  having 
duly  considered  the  'petition  and  exhibits 
submitted  by  the  petitioner  in  this  cause, 
and  being  satisfied  that  the  prayer  thereof 
cannot  be  granted,  it  is  ordered  and  de- 
creed that  the  said  petition  be  dismissed 
with  costs.'  Judgment  rendered  June 
14th,  1869.  Judgment  signed  June  18th, 
1«69.  E.  H.  Durell,  Judge."  On  motion 
to  dismiss  the  writ  of  error,  held,  that  this 
was  sufficiently  formal,  and  that  it  was 
a  final  judgment  to  which  a  writ  of  error 
would  lie.  New  Orleans,  etc..  R.  Co.  v. 
Morgan.  10  Wall.  256.  19   L.   Ed.  892. 

86.  Statement  of  general  rules  or  tests 
m  general. — Bronson  v.  Railroad  Co.,  2 
Black  524,  531,   17   L.   Ed.  ;]59. 

87.  St.  Clair  County  v.  Lovingston,  18 
Wall.  628,  21  L.  Ed.  813;  Moore  v.  Rob- 
bins,   18  Wall.    588,  21   L.   Ed.   758. 

A  decree  cannot  be  said  to  be  final 
until  the  court  has  completed  its  adju- 
dication of  the  cause.  Green  v.  Fisk,  103 
U.   S.   518,  519,  26  L.   Ed.  486. 

A  judgment  was  entered  on  a  promis- 
sory note  drawn  by  Kelly  and  others  in 
favor  of  Lea  and  others,  in  the  circuit 
court  of  Alabama.  Afterwards,  Kelly, 
the  appellee,  filed  a  bill  on  the  equity  side 
of  the  court,  for  the  purpose  of  being  re- 
lieved from  the  judgment  at  law  obtained 
against  him  and  two  other  persons,  on  the 
promissory  note.  The  bill  alleged  fraud 
in  the  plaintiffs  in  the  suit,  and  that  the 
■complainant  had  no  notice  of  the  suit, 
*nd  had  not  authorized  an  appearance,  or 
filed  any  plea  in  the  same.  The  bill 
prayed  for  a  perpetual  injunction  of  pro- 
ceedings on  the  judgment,  and  for  gen- 
eral relief.  The  injunction  was  granted; 
and  afterwards,  on  the  appearance  of  two 
of  the  plaintiffs  in  the  suit  at  law,  the 
circuit    court    decreed,    that,    on    the    con- 


dition that  the  complainant,  Kelly,  ap- 
pear and  plead  to  the  merits  of  the  case, 
waiving  the  question  of  jurisdiction,  and 
pay  costs  of  the  suit  at  law,  and  the  pro- 
ceedings in  equity,  a  new  trial  be  awarded 
to  the  complainant.  Two  of  the  plaintiffs, 
in  the  suit  at  law,  who  had  appeared  to 
the  bill,  appealed  to  the  supreme  court, 
seeking  to  reverse  this  decree.  Held, 
that  the  decree  of  the  circuit  court  was^ 
merely  interlocutory;  and  was  not  a  final 
decree  for  which  an  appeal  could  be 
taken.  Lea  v.  Kellv,  15  Pet.  213,  10  L. 
Ed.  715. 

Where  it  is  ordered  that  when  a  certi- 
fied amount  decreed  the  complainant  has. 
been  a.«certained  by  th'e  court  in  special 
term,  the  complainant  shall  have  execu- 
tion as  at  law  in  such  respective  amounts, 
with  interest  thereon  from  such  respec- 
tive days  of  highest  market  value,  until 
the  amount  due  from  the  appellant  has 
been  ascertained,  such  order  or  decree 
is  not  final  and  appealable.  Follansbee 
V.  Ballard  Paving  Co.,  154  U.  S.  651.  25. 
L.   Ed.  802. 

88.  Bostwick  v.  BrinkerhofT.  106  U  S. 
3.  27  L.  Ed.  73;  Young  v.  Smith.  15  Pet. 
287,   10   L.   Ed.    741. 

89.  French  v.  Shoemaker,  12  Wall.  86, 
20  L.  Ed.  270,  citing  Forgay  v.  Conrad,  6" 
How.  201,  202,  12  L.  Ed.  404;  Thomson  v. 
Dean.  7  Wall.  342,  19  L.  Ed.  94;  Curtiss' 
Commentaries,  §  188;  Beebe  v.  Russell.  19 
How.   283,   15   L.    Ed.   668. 

When  a  decree  finally  decides  and  dis- 
poses of  the  whole  merits  of  the  cause, 
and  reserves  no  further  questions  or  di- 
rections for  the  future  judgment  of  the 
court,  so  that  it  will  not  be  necessary 
to  bring  the  cause  again  before  the  court 
for  its  final  decision,  it  is  a  final  decree. 
Beebe  v.  Russell,  19  How.  283,  15  L.  Ed. 
668. 

Where  an  order  appealed  from  finally 
disposed  of  the  suit,  which  was  instituted 
against  the  receiver  by  permission  of  the 
court,  it  is  a  final  judgment  or  decree  in 
that  matter.  Farlow  v.  Kelly,  131  U.  S. 
201,   26   L.   Ed.   427. 

A  decree  may  be  final  although  it  docs 
not  in  terms  dismiss  a  cross  bill,  where 
there  is  a  statement  contained  in  the  de- 
cree that  the  equity  of  the  case  is  with 
the  complainant,  because  this  by  neces- 
sary implication  disposes  of  the  cross 
bill  as  effectuallv  as  it  does  of  the  answer 


AFPBAL  AND  ERROR. 


933 


The  rule  as  it  is  most  usually  found  stated  is  that  a  judgment  or  decree 
lo  be  final,  within  the  meaning  of  that  term  as  used  in  the  acts  of  congress  giving 
this  court  jurisdiction  on  appeals  and  writs  of  error,  must  terminate  the  litiga- 
tion between  the  parties  on  the  merits  of  the  case,  so  that  if  there  should  be  an 
affirmance  here,  the  court  below  would  have  nothing  to  do  but  to  execute  the 
judgment  or  decree  it  had  already  render ed.^*^     The  principle  on  which  the  rule 


filed  by  the  appellant  to  the   original  bill 
of    complainant.       French    v.     Shoemaker, 

12  Wall.  86.  20  L.  Ed.  270. 

90.    Whiting  v.    Bank   of   United   States, 

13  Pet.  6,  10  L.  Ed.  33;  Forgay  v.  Con- 
rad, 6  How.  201,  12  L.  Ed.  404;  Craig- 
head V.  Wilson,  18  How.  199,  15  L.  Ed. 
332;  Beebe  z:  Russell,  19  How.  283,  15 
L.  Ed.  668;  Bronson  v.  Railroad  Co.,  2 
Black  524.  17  L.  Ed.  359;  Thomson  v. 
Dean,  7  Wall.  342.  19  L.  Ed.  94;  St.  Clair 
County  V.  Lovingston,  18  Wall.  628.  21 
L.  Ed.  813;  Parcels  v.  Johnson,  20  Wall. 
653,  22  L.  Ed.  410;  Railroad  Co.  v.  Swa- 
sey,  23  Wall.  405,  22  L.  Ed.  136;  Crosby 
V.  Buchanan.  23  Wall.  420,  22  L.  Ed.  138; 
Board  of  Comm'rs  r.  Lucas.  93  U.  S.  108, 
23  L.  Ed.  822;  Bostwick  v.  Brinkerhoflf.  106 
U.  S.  3,  27  L.  Ed.  73;  Lodge  v.  Twell.  135 
U.  S.  232,  34  L.  Ed.  153;  Dainese  v.  Ken- 
dall, 119  U.  S.  53,  30  L.  Ed.  305;  Bank  of 
Rondout  V.  Smith,  156  U.  S.  330,  39  L. 
Ed.  441;  Kingman  &  Co.  r.  Western  Mfg. 
Co.,  170  U.  S.  675,  679,  42  L.  Ed.  1192; 
Guarantee  Co.  v.  Mechanics'  Savings 
Bank.  etc..  Co.,  173  U.  S.  582,  43  L.  Ed. 
818;  Wabash  R.  Co.  v.  Tourville,  179  U.  S. 
322.  45  L.  Ed.  210;  Bowker  v.  United 
States,  186  U.  S.  135,  139,  46  L.  Ed.  1090, 
reaffirmed  in  Smith  v.  Iverson,  203  U.  S. 
586,  51  L.  Ed.  329;  Macfarland  v.  Brown, 
187  U.  S.  239.  246.  47  L.  Ed.  159;  Mower 
V.  Fletcher.  114  U.  S.  127.  128,  29  L.  Ed. 
117;  Benjamin  v.  Dubois,  118  U.  S.  46,  30 
L.  Ed.  52;  Meagher  v.  Minnesota  Thre- 
sher Mfg.  Co.,  145  U.  S.  608,  611.  36 
L.  Ed.  834;  St.  Louis,  etc.,  R.  Co.  v. 
Southern  Exp.  Co.,  108  U.  S.  24,  27  L. 
Ed.  638;  Winthrop  Iron  Co.  v.  Meeker, 
109  U.  S.  180.  27  L.  Ed.  898;  Thomson 
V.  Dean,  7  Wall.  342,  19  L.  Ed.  94;  Green 
V.  Green,  90  U.  S.  486,  490.  23  L.  Ed.  75; 
Stoval  V.  Banks,  10  Wall.  583,  19  L.  Ed. 
1063;  Washington,  etc.,  R.  Co.  z'.  Brad- 
levs,  7  Wall.  575,  583.  19  L.  Ed.  274; 
Elliott  V.  Sackett,  108  U.  S.  132,  27  L. 
Ed.  678;  Wabash,  etc..  Canal  Co.  v. 
Beers,  1  Black  54,  17  L.  Ed.  41;  Grant 
V.  Phoenix  Ins.  Co.,  106  U.  S.  429,  431, 
27  L.  Ed.  237;  Ex  parte  Norton,  108  U. 
S.  237,  242,  27  L.  Ed.  709;  Parsons  v. 
Robinson,  122  U.  S.  112,  30  L.  Ed.  1122; 
Burlington,  etc..  R.  Co.  v.  Simmons,  123 
U.  S.  52.  31  L.  Ed.  73;  Keystone  Iron  Co. 
V.  Martin,  132  U.  S.  91,  32  L.  Ed.  275; 
McGourkey  v.  Toledo,  etc.,  R.  Co.,  146 
U.  S.  536.  36  L.  Ed.  1079;  Perkins  v. 
Fourniquct.  6  How.  206,  12  L.  Ed.  406; 
Pulliam  V.  Christian,  6  How.  209,  12  L. 
Ed.  408. 

In    Benjamin   z'.    Dubois,    118    U.    S.    46, 
30  L.  Ed.  52,  a  suit  was  ins-litutcd  against 


an  executor  to  recover  money  in  his  hands 
given  by  the  will  to  two  legatees  who 
resided  in  the  District  of  Columbia.  The 
defense  set  up  in  this  suit  was  that  the 
testator's  domicil  was  not  in  the  district 
at  the  time  of  his  death  but  in  Missouri. 
The  finding  of  the  court  below  was  simply 
upon  this  question  of  domicil,  and  no  de- 
cree was  rendered  as  to  the  payment  of 
any  money,  which  was  the  only  pur- 
pose of  the  suit.  This  court  held,  that 
the  decree  was  not  final  within  the  mean- 
ing of  the  following  rule  laid  down  in 
Bostwick  V.  Brinkerhoflf.  106  U.  S.  3,  27 
L.  Ed.  73:  "The  rule  is  well  settled  and 
of  long  standing  that  a  judgment  or  de- 
cree to  be  final,  withfn  the  meaning  of 
that  term  as  used  in  the  acts  of  congress 
giving  this  court  jurisdiction  on  appeals 
or  writs  of  error,  must  terminate  the 
litigation  between  the  parties  on  the  mer- 
its of  the  case,  so  that  if  there  should 
be  an  affirmance  here,  the  court  "below 
would  have  nothing  to  do  but  to  exe- 
cute the  judgment  or  decree  which  had 
been    rendered." 

Dissolution  of  injunction. — A  decree  of 
the  court  of  appeals  of  the  District  of 
Columbia  reversing  a  decree  of  the  su- 
preme court  of  the  district  dissolving  a 
preliminary  injunction,  which  made  a  com- 
plete disposition  of  the  controversy,  so 
that  all  that  was  left  for  the  supreme 
court  of  the  district  was  the  ministerial 
duty  of  entering  a  final  injunction  in  the 
language  of  the  preliminary  order,  with 
the  proviso  that  it  should  operate  until 
such  time  in  the  future  as  the  defendant 
should  voluntarily  withdraw  from  busi- 
ness in  the  district;  is  clearly  a  final  de- 
cree. Chesapeake,  etc.,  Tel.  Co.  v.  Man- 
ning. 186  U.  S.  238.  46  L.  Ed.  1144,  citing 
and  approving  Board  of  Comm'rs  v.  Lu- 
cas. 93  U.  S.  108.  23  L.  Ed.  822;  Bost- 
wick V.  Brinkerhoflf.  106  U.  S.  3,  27  L. 
Ed.  73;  Mower  v.  Fletcher,  114  U.  S.  127, 
29  L.   Ed.   117. 

Decrees  fixing  railroad  rates. — Where 
the  controversy  is,  about  the  right  of  an 
express  company  to  compel  a  railway 
company  to  do  its  express  business  on 
the  payment  of  lawful  charges,  a  decree 
that  requires  the  carriage,  and  fixes  the 
compensation  to  be  paid  and  adjudges 
costs  against  the  railway  company,  and 
awards  execution,  is  final,  although  the 
decree  does  not  definitely  settle  what 
these  charges  should  be  for  all  time.  "In- 
asmuch as  the  rates  properly  chargeable 
for  transportation  vary  according  to  cir- 
cumstances, and  what  was  reasonable 
when    the    decree   was    rendered    may    not 


934 


APPEAL  AND  ERROR. 


rests  is  applicable  where  the  appeal  is  from  the  decree  of  an  intermediate  ap- 
pellate court. ^1 

In  chancery,  a  decree  is  interlocutory  whenever  an  inquir}-  as  to  a  matter  it 
law  or  fact  is  directed,  preparatory  to  a  final  decision. ^- 

Where  Further  Orders  Necessary  to  Enforce  Decrees. — A  decree 
which  finally  determines  the  entire  controversy  litigated  between  the  parties, 
leaving  nothing  to  be  done  but  to  carry  it  into  execution,  is  final,  although  the 
fund  is  brought  into  court  for  its  final  distribution  as  decreed,  where  it  is  not  to 
be  held  pending  the  ascertainment  of  the  principles  upon  which  it  should  be  dis- 
tributed.^'^ But  where  matters  within  the  pleading  have  been  left  undetermined, 
and  the  cause  has  been  retained  for  the  purpose  of  thereafter  passing  on  them 
and  for  the  entry  of  a  further  decree,  the  decree  entered  is  not  final. ^^     Accord- 


always  continue  to  be  so,  leave  is  given 
the  parties  to  apply  for  a  modification  of 
what  has  been  ordered  in  that  particular 
if  they,  or  either  of  them,  shall  desire  to 
do  so.  In  effect  the  decree  requires  the 
railway  company  to  carry  for  reasonable 
rates,  and  fixes  the  time  being  the  maxi- 
mum of  what  will  be  reasonable."  St.  Louis, 
etc.,  R.  Co.  ■;:'.  Southern  Express  Co.,  108 
U.  S.  24,  29,  27  L.  Ed.  638;  Missouri,  etc., 
R.  Co.  V.  Dinsmore,  108  U.  S.  30,  27  L. 
Ed.  640. 

91.  Macfarland  v.  Brown.   187  U.  S.  239. 
246,  47   L.    Ed.    159. 

92.  Beebe   v.    Russell,    19    How.   283,    13 
L.   Ed.   668. 

Decrees  in  suits  for  specific  perform- 
ance.— A.,  in  1812,  made  a  deed  to  V. 
conveying  to  him  valuable  estates,  V.  by 
a  separate  instrument,  agreeing  that  if 
A.  would,  within  five  years,  pay  to  him 
a  certain  sum  ($14, .500),  he  would  convey 
to  A.'s  children,  then  infants,  a  part  of 
this  estate,  and  convey  also  to  them  a 
part  of  certain  other  estates.  Soon  after- 
wards V.  acknowledged  that  A.  had  paid 
to  him  a  large  part  ($11,600)  of  the 
money  to  be  paid.  On  proceedings  in 
equity  many  years  afterwards,  in  the  cir- 
cuit court  of  the  United  States,  the  chil- 
dren, now  become  of  age,  prayed  for — 
1st.  A  cancellation  of  the  deed  by  A., 
as  having  been  fraudulently  procured  by 
V.  2d.  That  if  this  would  not  be  de- 
creed, then,  on  payment  by  the  children 
of  the  balance  with  interest,  for  a  specific 
performance  by  V.  of  his  contract  to  con- 
vey the  two  parts  of  the  estates  which  he 
had  agreed  to  convey,  if  $14,500  were 
paid  in  five  years.  3d.  If  the  court  would 
make  neither  of  these  decrees,  then  that 
it  would  decree  that  V.  should  refund 
with  interest  the  $11,600  purchase  money 
that  had  been  paid  to  him.  The  circuit 
court  in  1853  refused  to  decree  a  can- 
cellation of  A.'s  deed,  refused  also  to  de- 
cree that  V.  should  specifically  perform 
his  agreement  to  convey;  but  as  to  the 
return  of  the  $11,600  purchase  money  paid, 
the  court  said  that  it  could  not  pass  on 
that  matter,  proper  parties  not  being  be- 
fore the  court,  and  made  no  decree  about 
it.  Proper  parties  came  in,  and  after 
hearing,   the   court   refused   to  order  a  re- 


turn of  the  purchase  money,  and,  finally, 
A.  D.  1872,  dismissed  the  bill  by  A.'s  chil- 
dren. Held,  that  no  "final  decree"  in  the 
sense  of  the  statute  which  authorized  ap- 
peals from  the  circuit  court  to  this  court 
in  the  case  of  final  decrees  in  equity  was 
made  in  1853,  nor  indeed  before  1872; 
and  that  the  decree  then  entered  brought 
I'-  the  whole  case;  that  is  to  say,  brought 
up  the  question  of  cancellation,  the  ques- 
tion of  specific  performance,  and  the 
question  of  return  of  purchase  money. 
Crosby  7'.  Buchanan,  23  Wall.  420,  22  L. 
Ed.   138. 

93.  Lewisburg  Bank  "■.  ShefTey,  140' 
U.  S.  445,  35  L.  Ed.  493,  citing  Hill  v. 
Chicago,  etc.,  R.  Co.,  140  U.  S.  52,  35  L. 
Ed.    331. 

The  subject  was  much  considered  and 
many  cases  referred  to  and  classified  and 
the  distinctions  indicated,  in  Keystone 
Iron  Co  V.  Martin,  132  U.  S.  91.  33  L.  E(T. 
275.  It  is  there  shown  that  where  the 
entire  subject  matter  of  a  suit  is  disposed 
of  by  a  decree,  the  mere  fact  that  ac- 
counts remain  to  be  adjusted  and  the 
bill  is  retained  for  that  purpose,  does  not 
deprive  the  adjudication  of  its  character 
as  a  final  and  appealable  decree.  Lewis- 
burg Bank  v.  Sheflfey.  140  U.  S.  445,  452, 
35    L.    Ed.    493. 

It  is  true,  as  pointed  out  by  Mr.  Jus- 
tice Field  in  Hill  f.  Chicago,  etc.,  R.  Co., 
140  U.  S.  52,  35  L.  Ed.  331,  that  an  ap- 
peal may  be  taken  from  a  decree  in  an 
equity  cause,  notwithstanding  it  is  merely 
in  execution  of  a  prior  decree  in  the  same 
suit,  for  the  purpose  of  correcting  errors 
which  may  have  originated  in  the  subse- 
quent proceeding.  This  was  so  held  in 
Chicago,  etc.,  R.  Co.  v.  Fosdick,  106  U. 
S.  47.  80,  27  L.  Ed.  47,  and  was  the  ruTe 
sanctioned  and  adopted  in  Forgaj'  v.  Con- 
rad, 6  How.  201,  12  L.  Ed.  404,  and  Blos- 
som r.  Milwaukee,  etc.,  R.  Co.,  1  Wall. 
655,  17  L.  Ed.  673.  An  appeal  will  lie 
from  such  decrees  according  to  the  nature 
of  the  subject  matter  and  the  rights  of 
the  parties  affected.  Lewisburg  Bank  v. 
Sheffey,  140  U.  S.  445.  452,  35  L.  Ed. 
49;}. 

94.  Covington  v.  Covington  Nat.  Banl^, 
185  U.  S.  270,  46  L.  Ed.  906;  McGourkey 
V.   Toledo,    etc.,   R.    Co.,    146   U.    S.    536,   36. 


APPEAL  AND  ERROR. 


935 


ingly,  where  the  decree  appoints  a  receiver,  directs  a  sale,  and  orders  an  ac- 
counting, but  what  is  left  to  be  done  is  something  more  than  a  mere  ministerial 
execution  of  a  decree  as  rendered;  the  decree  is  interlocutory  and  not  final, 
even  though  it  settles  the  equities  of  the  bill.^^ 

Want  of  notice  or  ignorance  of  the  proceedings  may  have  the  effect  of 
rendering  a  decree  interlocutory  which  would  otherwise  be  final. ^" 

b.  Effect  of  Motion  to  Vacate  Judgment  or  Decree. — Where  the  court,  at  the 
same  term  and  before  the  consummation  of  an  appeal,  on  its  own  motion  or  on 
the  motion  of  either  party,  sets  aside  a  judgment  or  decree  or  signifies  an  in- 
tention to  reconsider  it,  the  judgment  does  not  become  final  for  the  purposes  of 
an  appeal  until  the  order  of  the  court  to  that  effect  is  entered  of  records. ^s 


L.  Ed.  1079:  Thomson  z\  Dean,  7  Wall. 
342,  19  L.  Ed.  94;  Dainese  v.  Kendall, 
119  U.  S.  53,  30  L.  Ed.  305;  Ex  parte  Nor- 
ton, 108  U.  S.  337,  27  L.  Ed.  709;  St.  Louis, 
etc.,  R.  Co.  V.  Southern  Express  Co.,  108 
U.  S.  24.  27  L.  Ed.  638;  Grant  v.  Phoenix 
Ins.  Co.,  106  U.  S.  429,  27  L.  Ed.  237; 
Beebe  v.  Russell,  19  How.  283,  15  L.  Ed. 
668;  Bostwick  r.  Brinkerhoff,  100  U.  S. 
3,  27  L.  Ed.  73;  Craighead  v.  Wilson,  18 
How.  199,  15  L.  Ed.  332;  Green  v.  Fisk, 
103  U.  S.  518,  26  L.  Ed.  486;  Railroad  Co. 
z>.  Swasey,  23  Wall.  405,  22  L.   Ed.   136. 

"Matters  within  the  pleadings  having 
been  left  undetermined  and  the  cause  hav- 
ing been  retained  for  the  purpose  of  there- 
after passing  on  tiiem  and  for  the  entry 
of  a  further  decree,  the  decree  entered 
was  not  final.  McGourkey  v.  Toledo, 
etc.,  R.  Co.,  146  U.  S.  336,  545,  546,  36 
L.  Ed.  1079,  and  cases  cited.  As  a  neces- 
sary result  this  court  cannot  adjudicate 
upon  the  contention  respecting  that  por- 
tion of  the  issue  which  was  actually  de- 
termined by  the  circuit  court,  because  a 
decree  of  a  circuit  court  upon  the  merits 
can  be  reviewed  here  only  by  appeal, 
which  cannot  be  taken  until  after  a  final 
decree  has  been  made  disposing  of  the 
whole  cause.  The  case  is  not  to  be 
brought  here  in  fragments  by  successive 
appeals."  Covington  v.  Covington  Xat. 
Bank,  185  U.  S.  270,  277,  46  L.  Ed.  906, 
citing  Southern  R.  Co.  v.  Postal  Tel.,  etc., 
Co.,  179  U.   S.  641,  644.  45   L.   Ed.  355. 

Where,  in  an  action  on  fidelity  bonds 
of  a  deceased  defaulting  officer  of  a  bank, 
the  court  decreed  that  the  surety  was 
liable,  but  that  the  liability  was  secondary 
to  that  of  a  deceased's  estate,  and  retained 
the  case  for  the  purpose  of  an  accounting 
of  collaterals  deposited  by  deceased  for 
the  bank's  reimbursement  and  tor  the 
fixing  of  the  surety's  ultimate  liability, 
"whatever  that  may  be,"  such  decree  is 
not  final,  within  26  Stat.  826,  c.  517, 
§  6,  and  hence  no  appeal  can  be  prose- 
cuted therefrom  to  the  circuit  court  of 
appeals.  Guarantee  Co.  v.  .Mechanics' 
Savings  Bank,  etc..  Co..  173  U.  S.  582,  43 
L.  Ed.  818. 

The  appellee  filed  a  bill  seeking  to  en- 
join the  threatened  assessment  and  col- 
lection by  the  defendants  below  (appel- 
lants here)  of  municipal  taxes  under  the 
authority    of    an    act    of    the    general    as- 


sembly of  Kentucky  approved  March  21, 
1900.  The  relief  sought  was  based  upon 
the  grounds  that  the  act  was  discrimina- 
tory and  impaired  the  obligation  of  a 
contract  which  was  res  adjudicata.  The 
circuit  court  enjoined  the  asse.'^sment  and 
collection  of  taxes  for  the  years  prior  to 
March  21,  1900,  not  upon  the  considera- 
tion of  the  questions  of  contract  or  res 
adjudicata,  but  solely  upon  the  question 
of  discrimination.  So  far  as  any  taxes 
subsequent  to  March  21,  1900  were  con- 
cerned, they  were  not  disposed  of;  but 
the  decree  reserved  for  future  determina- 
tion the  right  of  complainant  below  to 
enjoin  the  collection  of  a  municipal  tax 
for  1900,  and  subsequent  years.  It  was 
held,  that  this  was  not  a  final  decree  from 
which  an  appeal  to  the  supreme  court  of 
the  United  States  would  lie.  Covington 
z.  Covington  Nat.  Bank.  185  U.  S.  370,  46 
L.  Ed.  906. 

A  decree  of  the  court  of  appeals  of  the 
District  of  Columbia  reversing  the  de- 
cree of  the  court  below  and  which  con- 
templates and  requires  further  proceed- 
ings, is  not  a  final  decree  although  it 
passes  upon  the  merits  of  the  case. 
Clark  V.  Roller,  199  U.  S.  541,  50  L.  Ed. 
300. 

95.  Craighead  v.  Wilson,  18  How.  199, 
15  L.  Ed.  332;  Young  z'.  Smith,  15  Pet. 
387,  10  L.  741;  Keystone  Iron  Co  v. 
Martin,  132  U.  S.  91,  33  L.  Ed.  275;  Lodge 
V.  Twell,  135  U.  S.  232,  34  L.   Ed.   153. 

Thus,  a  decree  setting  aside  a  fraudu- 
lent conveyance,  appointing  a  receiver, 
ordering  a  sale,  and  enjoining  the  defend- 
ants from  disposing  of  any  of  the  prop- 
erty or  its  proceeds;  that  the  receiver  be 
directed  to  sell  the  property,  and  pay 
whatever  sum  may  be  due  at  the  time  of 
the  sale,  holding  the  balance  subject  to 
the  order  of  the  court,  is  not  a  final  de- 
cree, because  what  is  left  to  be  done  is 
something  more  than  the  mere  ministerial 
execution  of  the  decree  as  rendered. 
Lodge  V.  Twell.  135  U.  S.  232.  34  L.  Ed. 
153. 

97.  Leadville  Coal  Co.  z'.  McCreery,  141 
U.  S.  475,  35  L.  Ed.  824;  Fleitas  v.  Rich- 
ardson, 147  U.  S.  538,  545,  37  L.  Ed.  272; 
1-evv  7'.  Fitzpatrick,  15  Pet.  167.  10  L. 
Ed.    69S. 

98.  Effect  of  motion  to  vacate  judg- 
ment or  decree. — Washington,  etc.,  R.  Co. 


936 


APPEAL  AND  ERROR. 


c.  Effect  of  Motion  for  New  Trial. — A  judgment  is  not  final  so  that  the  juris- 
diction of  the  appellate  court  may  be  invoked  while  it  is  still  under  the  control 
of  the  trial  court  through  the  pendency  of  a  motion  for  new  trial. ^^ 

d.  Decrees  Subject  to  Future  Modifootions  and  Directions. — In  Daniels' 
Chancery  Practice,  vol.  2,  p.  641,  642,  the  effect  of  allowing  the  privilege  of  mak- 
ing applications  to  the  court  for  modifications  and  directions,  is  stated  to  be  no 
alteration  of  the  final  nature  of  the  decree.  Says  the  author :  "A  decree  with 
such  a  liberty  reserved  is  still  a  final  decree,  and,  when  signed  and  enrolled, 
may  be  pleaded  in  bar  to  another  suit  for  the  same  matter."^ 

e.  Decrees  with  Superadded  Reservations. — A  decree  may  be  final  although 
leave  is  given  either  party  to  apply,  at  the  foot  of  the  decree,  for  such  further 
order  as  may  be  necessary  to  the  due  execution  of  the  same,  or  as  may  be  re- 
quired in  relation  to  any  matter  not  finally  determined  by  it,  where  it  is  appar- 
ent that  such  reservation  was  superadded  to  the  decree  as  a  precaution,  and  not 
because  the  court  did  not  regard  the  whole  issue  between  the  parties  as  deter- 
mined by  the  decree.^ 

f.  Contingent  or  Conditional  Decrees. — An  order  which  grants  certain  relief 
upon  the  party's  complyimg  with  conditions  specified  in  the  order,  and  provides 
that,  if  the  conditions  are  not  complied  with,  the  relief  shall  be  denied,  is  not  a 
final  decree,  and  is  not  appealable.'^ 


V.  Bradleys,  7  Wall.  .575,  19  L.  Ed.  274: 
Doss  V.  Tyack,  14  How.  298,  14  L.  Ed. 
428;  Wheeler  r.  Harris,  13  .Wall.  51,  20 
L.    Ed.    531. 

A  motion  made  during  the  term  to  set 
aside  a  judgment  suspends  the  operation 
of  that  judgment,  so  that  it  does  not  take 
final  effect  for  the  purposes  of  a  writ 
of  error  until  the  motion  is  disposed  of. 
Memphis  v.  Brown,  94  U.  S.  715,  24  L. 
Ed.  244 

Where  a  motion  to  rescind  a  decree 
is  made  at  the  same  term,  the  decree 
does  not  become  final  until  the  motion 
is  heard  and  decided.  Washington,  etc., 
R.  Co.  V.  Bradlevs,  7  Wall.  575,  19  L.  Ed. 
274,  citing  Brockett  v.  Brockett.  2  How. 
238,   241,    11    L.    Ed.   251. 

99.  Effect  of  motion  for  new  trial. — 
Kingman  &  Co.  v.  Western  Mfg.  Co.,  170 
U.  S.  675,  680,  42  L.  Ed.  1192,  reaffirmed 
in  International  Trust  Co.  v.  Weeks,  193 
U.    S.    667,    48    L.    Ed.    839. 

It  is  true  that  a  writ  of  error  does  not 
K«  from  this  court  or  the  courts  of  ap- 
peals to  review  an  order  den3nng  a  mo 
tion  for  a  new  trial,  nor  can  error  be  as- 
signed on  such  an  order  because  the  dis- 
position of  the  motion  is  discretionary; 
but  the  court  below  while  such  a  motion 
is  pending  has  not  lost  its  jursdiction 
over  the  case,  and,  having  power  to  grant 
the  motion,  the  judgment  is  not  final  for 
the  purpose  of  taking  out  the  writ.  King- 
man &  Co.  V.  Western  Mfg.  Co.,  170  U.  S. 
675,  680,  42  L.  Ed.  1192,  reaffirmed  in  In- 
ternational Trust  Co.  V.  Weeks.  193  U.  S. 
667,    48    L.    Ed.    839. 

1.  Decrees  subject  to  future  modifica- 
tions and  directions. — Stoval  v.  Banks,  10 
Wall.    5S3,   587,   19    L.    Ed.    1036. 

In  Mills  V.  Hoag,  7  Paige  19,  it  was 
said  that  "a  decree  is  not  the  less  final 
in   its  nature,  because   some  future  orders 


of  the  court  may  possibly  beco^me  neces- 
sary to  carry  such  final  decree  into  ef- 
fect." Approved  in  Stoval  v.  Banks.  19 
Wall.    583.   587,    19    L.    Ed.    1036. 

A  decree  which  adjudges  a  certain  sum 
of  money  to  be  due  from  an  administrator 
to  each  of  the  distributees  of  his  intes- 
tate's estates,  and  awards  execution  to 
collect  it,  is  a  final  decree.  An  added  di- 
rection that  the  defendant  be  allowed,  as 
payment  to  each  of  the  distributees,  the 
amount  of  any  note  held  by  him  against 
them,  and  also  that  the  several  shares 
of  the  parties  to  whom  the  estate  is 
awarded,  shall  be  subject  to  ratable  de- 
duction for  fees  yet  unpaid  for  the  col- 
lection of  notes  belonging  to  the  ad- 
ministrator, does  not  make  the  decree 
less  final;  especiallj'  when  it  does  not  ap- 
pear^ that  the  administrator  held  any  notes 
against  any  of  the  distributees,  or  that 
there  were  any  unpaid  fees.  Stoval  v. 
Banks.  10  Wall.  583,   19  L.   Ed.   1036. 

2.  Decrees  with  superadded  reserva- 
tions.— French  7'.  Shoemaker.  12  Wall.  86, 
20    L.    Ed.    270. 

In  Winthrop  Iron  Co.  v.  Meeker,  109 
U.  S.  180,  27  L.  Ed.  898,  it  was  held,  that 
where  a  decree  decides  the  right  to  the 
property  in  contest,  and  the  party  is  im- 
mediately entitled  to  have  it  carried  into 
execution,  it  is  a  final  decree,  although 
the  court  below  retains  possession  of 
so  much  of  the  bill  as  may  be  necessary 
for  adjusting  accounts  between  the  par- 
ties, the  court  remarking  that  such  a 
case  was  different  from  a  suit  bj^  a  pat- 
entee to  establish  his  patent  and  recover 
for  infringement,  because  there  the  money 
recovered  was  a  part  of  the  subject  mat- 
ter of  the  suit.  Followed  in  McGourkey 
7'.  Tolf^o.  ef..  R.  Co.,  146  U.  S.  .^3').  546, 
3v.   L.    Ed.    1079. 

3.  Contingent    or    conditional    decrees. 


APPEAL  AND  ERROR. 


937 


g.  Where  Decree  Is  Final  Only  as^  to  Some  of  the  Parties — (1)  /;/  General. 
— A  ckcree  may  be  final  as  to  some  of  the  parties  without  being  final  as  to  other 
parties  to  the  cause  when  it  completely  disposes  of  their  rights.'*  And  this  is 
true  whether  they  were  original  parties  to  the  cause,  or  are  merely  interveners.^ 

(  Z)  Dismissal  as  to  Some  of  the  Defendants  Only. — The  general  rule  is  that 
an  order  retaining  or  dismissing  parties  defendant,  who  are  charged  to  be 
jointly  liable  to  the  complainant  in  the  suit,  is  not  appealable.^  Thus,  where  a 
bill  in  equity  is  dismissed  as  to  some  of  the  defendants,  but  is  still  pending  and 
undetermined  as  to  the  others,  such  decree  is  not  final  and  appealable."^     The 


—Jones   r.    Craig.    127    U.    S.    213.    215,    32 
L.   Ed.    147. 

4.  Where  decree  is  final  only  as  to 
some  of  the  parties  in  general. — Stewart 
V.  Masterson,  131  U.  S.  151,  32  L.  Ed. 
114;  Hill  V.  Chicago,  etc.,  R.  Co.,  140  U.  S. 
52,    35    L.    Ed.    331. 

A  suit  was  brought  against  several  par- 
ties who  were  alleged  to  be  interested  in 
certain  contracts  and  transactions  out  of 
which  the  claim  of  the  complainants 
arose.  A  decree  dismissing  a  bill  as  to 
certain  of  the  defendants  and  ordering 
it  to  be  retained  for  the  purpose  of  de- 
termining the  liability  of  certain  other 
defendants  for  the  amount  of  money  due 
under  a  certain  contract  specifically 
named,  was  held  by  the  court  to  be  final  as 
to  the  defendants  dismissed,  and  it  was 
heW  that  the  controversy  left  was  a  sever- 
able matter,  which  did  not  concern  them. 
Hill  V.  Chicago,  etc..  R.  Co..  140  U.  S.  52. 
35    L.    Ed.    331. 

In  prize  case — Disposition  of  claims  of 
some  libelants. — Where  several  libels  were 
filed  in  a  district  court  seeking  to  con- 
demn as  prize  of  war  large  quantities  of 
cotton  and  other  property  captured  on  the 
interior  waters  of  the  United  States,  a 
decree  disposi-ng  of  the  claims  of  one 
libelant,  leaving  nofhing  to  be  litigated 
between  him  arxl  the  United  States,  was 
final,  although  it  "did  not  dispose  of  the 
claims  of  the  other  libelants.  Withen- 
bury  V.  United  States.  5  Wall.  819,  18  L. 
Ed.   613. 

5.  Gumbel  v.  Pitkin.  113  U.  S.  545,  547, 
28    L.    Ed.    1128. 

A  decree  in  a  suit  filed  for  the  purpose 
of  foreclosing  a  railroad  mortgage,  that 
the  claim  of  an  intervening  creditor  of 
an  interest  in  certain  locomotives  in  the 
possession  of  the  receiver  was  just  and 
entitled  to  priority  over  debts  secured 
by  the  mortgage,  is  a  final  decree:  and 
it  cannot  be  vacated  by  the  court  of  its 
own  motion  after  the  expiration  of  the 
term  at  which  it  was  rendered.  Central 
Trust  Co.  V.  Grant  Locomotive  Works. 
135    U.    S.    207.    34    L.    Ed.    97. 

Decree  denying  confirmation  of  mort- 
gage foreclosure  sale. — At  a  sale  fore- 
closing a  railway,  a  bid  was  made,  but  no 
further  proceedings  were  there  had. 
Thereafter  the  bidder  was  made  a  party 
to  the  cause  an<l  came  into  court  by  peti- 
tion and  praved  for  the  confirmation  of 
the    sale.      The    decree    of    the    court    de- 


nying the  relief  prayed  was  final  as  to 
him.  Blossom  z\  Milwaukee,  etc.,  R.  Co., 
1    Wall.    655,   17    L.    Ed.   673. 

6.  Dismissal  as  to  some  of  the  defend- 
ants only. — United  States  v.  Girault,  11 
How.  22,  32,  13  L.  Ed.  587;  Hohorst  v. 
Packet  Co..  148  U.  S.  262,  263,  37  L.  Ed. 
443;  Bank  of  Rondout  r.  Smith,  156  U. 
S.   330,   39   L.   Ed.  441. 

A  decree  in  a  patent  infringement  suit 
against  a  single  defendant,  which,  in  ad- 
dition to  granting  an  injunction  as  to 
the  claims  of  the  patent  held  to  be  in- 
fringed, and  sending  the  cause  to  a  mas- 
ter for  an  accounting,  dismissed  the  bill 
as  to  the  claims  held  invalid  and  those 
found  not  to  be  infringed,  is  not,  as  to 
such  dismissal,  a  final  decree  from  which 
complainants  can  appeal.  Ex  parte  Na- 
tional Enameling,  etc.,  Co.,  201  U.  S.  156, 
50  L.  Ed.  707,  following  Hohorst  v.  Packet 
Co.,  148  U.  S.  262.  37  L.  Ed.  443,  and  dis- 
tinguishing Forgay  v.  Conrad.  6  How. 
201,  12  L.  Ed.  404;  Hill  v.  Chicago,  etc., 
R.    Co.,    140   U.   S.    52,   35   L.    Ed.   331. 

Where  record  on  appeal  frcm  dismissal 
as  to  me  pprty  shows  no  final  decree  as 
to  others. — On  an  appeal  from  a  decree 
of  dis  I'ssal,  it  appeared  that  a  bill  had 
been  filed  in  the  circuit  court  of  the 
United  States  against  a  foreign  corpora- 
tion and  other  defendants,  citizens  of  the 
United  States,,  for  the  infringement  of 
letters  patent.  The  bill  was  dismissed 
as  to  the  foreign  corporation,  but,  so  far 
as  appeared  from  the  record  of  the  ap- 
peal from  the  judgment  of  dismissal,  the 
cause  was  still  pending  and  undetermined 
as  to  the  other  defendants.  The  court 
held  that  such  decree  of  dismissal  was 
not  a  final  one,  from  which  an  appeal 
could  be  prosecuted.  Hohorst  v.  Packet 
Co.,  148  U.  S.  262,  37  L.  Ed.  443,  reaf- 
firmed in  Nash  v.  Harshman,  149  U.  S. 
263,  37  L.  Ed.  727,  and  cited  in  In  re 
Atlantic  City  R.  Co.,  164  U.  S.  633,  635, 
41  L    Ed    579 

7.  Hohorst  v.  Packet  Co.,  148  U.  S- 
262,  37  L.  Ed.  443.  followed  in  Nash  v. 
Harshman,  149  U.  S.  263,  37  L.  Ed.  737; 
Bank  of  Rondout  v.  Smith,  156  U.  S.  330, 
39  L.  Ed.  441;  Smith  v.  Iverson,  203  U. 
S.  586.  51  L.  Ed.  329;  Ex  parte  National 
Enameling  Co.,  201  U.  S.  156,  50  L.  Ed. 
707,  distinguishing  Hill  v.  Chicago,  etc., 
R.    Co.,    140    U.    S.    52,    35    L.    Ed.    331. 

Where  there  are  several  defendants  to 
a   suit  in   equity,  and  all   of  them    file   an- 


938 


APPEAL  AXD  ERROR. 


same  rule  is  applicable  to  an  appeal  in  admiralty,^  and  in  equity.^ 

Limitations  of  and  Exceptions  to  General  Rule. — There  are  cases,  how- 
ever, in  equity  in  which  a  decree,  disix)sing  of  every  ground  of  contention  be- 
tween the  parties,  except  as  to  the  ascertainment  of  an  amount  in  a  matter  sep- 
arable from  the  other  subjects  of  controversy,  and  relating  only  to  some  of  the 
defendants,  may  be  treated  as  final,  though  retained  for  the  determination  of 
such  severable  matter. ^"^  Where  there  is  a  joint  liability,  if  the  decree  is  final 
as  to  one  of  the  joint  parties,  the  codefendant  may  appeal  from  the  decree,  al- 
though it  does  not  dispose  of  the  case  as  to  him  but  only  as  to  a  coparty.^^  An- 
other exception  is  that  the  dismissal  of  a  petition  of  intervention  after  a  con- 
sideration of  such  petition  on  the  merits  is  final. ^^     go,  also,  where  a  bill  is  taken 


sweis  except  one,  and  he  demurs  to  the 
bill,  a  judgment  sustaining  the  demurrer 
as  to  such  party  and  dismissing  the  bill, 
IS  n.ot  final  and  appealable.  Bank  of 
Rondout  V.  Smith,  156  U.  S.  330,  39  L. 
Ed.  441,  distinguishing  Hill  v.  Chicago, 
etc.,   R.   Co.,   140   U.   S.   52,  35   L.   Ed.  331. 

8.  Dayton  v.  United  States,  131  U.  S., 
appx.  Ixxx,  18  L.  Ed.  169;  Hohorst  v. 
Packet  Co.,  148  U.  S.  262,  265,  37  L.  Ed. 
443. 

9!  Frow  V.  De  La  Vega,  15  Wall.  552, 
554,  21  L.  Ed.  60;  Hohorst  v.  Packet  Co., 
148    U.    S.    262,   265,   37    L.    Ed.   443. 

In  Shaw  V.  Quincy  Min.  Co.,  145  U. 
S.  444.  36  L.  Ed.'  768,  a  bill  was  filed 
against  the  mining  company  and  others 
in  the  circuit  court  of  the  United  States 
for  the  Southern  District  of  New  York, 
and  service  of  subpoena  was  made  upon 
the  secretary  of  the  company.  The  com- 
pany appeared  specially  and  moved  for 
2kn  order  to  set  aside  the  service,  which 
was  granted,  whereupon  complainant  ap- 
plied to  this  court  by  petition  for  writ 
of  mandamus  to  the  judges  of  the  cir- 
cuit cotirt  to  command  them  to  take  ju- 
risdiction against  the  company  upon  the 
bill.  The  ground  on  which  our  juris- 
diction was  invoked  was  the  inadequacy 
of  any  other  remedy,  and  it  was  argued 
that  as  the  cause  could  proceed  as  to 
the  other  defendants,  no  final  judgment 
could  be  entered  upon  the  order  of  the 
circuit  court,  and  no  appeal  taken  there- 
from. Hohorst  v.  Packet  Co.,  148  U.  S. 
362.    266.    37    L.    Ed.    443. 

In  United  States  v.  Girault,  11  How. 
22,  32,  13  L.  Ed.  587,  which  was  a  writ 
of  error  to  review  a  judgment  rendered 
by  the  circuit  court  of  the  United  States 
in  Mississippi  in  favor  of  some  of  the 
defendants  only,  in  an  action  on  a  bond, 
leaving  the  suit  undisposed  of  as  against 
©ne  defendant,  this  court  would  not  re- 
verse the  judgment  according  to  the  prac- 
tice in  Mississippi,  but  dismissed  the  writ 
of  error.  Hohorst  v.  Packet  Co.,  148  U. 
S.   262.  264,  37   L.   Ed.   443. 

In  Frow  7>.  De  La  Vega,  15  Wall.  552, 
21  L.  Ed.  60,  it  was  held,  that  a  final  de- 
cree on  the  merits  cannot  be  made  sepa- 
rately against  one  of  several  defendants 
upon  a  joint  charge  against  all.  where 
the  case  is  still  pending  as  to  the  others. 
It   is   true   that   there   a   default   had    been 


entered  with  a  decree  pro  confesso  against 
one  of  several  defendants,  and  a  final  de- 
cree had  been  made  absolute  against  him, 
whereupon  the  court  proceeded  to  try 
the  issues  made  by  the  answers  of  the 
other  defendaiits  and  dismissed  complain- 
ant's bill;  but  this  attitude  of  the  case 
illustrated  and  required  the  application 
of  the  general  rule.  Hohorst  v.  Packet 
Co.,   148   U.  S.  262,  265,  37  L.   Ed.  443. 

10.  Hill  V.  Chicago,  etc.,  R.  Co.,  140 
U.  S.  52,  35  L.  Ed.  331;  Hohorst  v.  Packet 
Co.,  148  U.  S.  262,  265,  37  L.  Ed.  443; 
Nash  V.  Harshman,  149  U.  S.  263,  37  L- 
Ed.   727. 

In  Hill  V.  Chicago,  etc.,  R.  Co.,  140  U. 
S.  52,  35  L.  Ed.  331,  where  a  suit  was 
brought  against  several  parties  who  were 
alleged  to  be  interested  more  or  less  in 
certain  contracts  and  transactions  out  of 
which  the  claim  of  the  complainant  arose, 
a  decree  dismissing  the  bill  as  to  certain 
of  the  defendants,  and  ordering  it  to  be 
retained  for  the  purpose  of  determining 
the  liability  of  certain  other  defendants 
for  an  amount  of  money  due  under  a  cer- 
tain contract  specifically  named,  was  held 
to  be  appealable  because  it  was  final  as 
to  the  defendants  dismissed,  and  the  con- 
troversy left  was  a  severable  matter,  which 
did  not  concern  them. 

In  Withenbury  v.  United  States.  5 
Wall.  819,  18  L.  Ed.  613,  several  libels 
were  filed  for  the  condemnation,  as  prize 
of  war.  of  large  quantities  of  cotton  and 
other  property.  These  libels  were  con- 
solidated, and  various  claims  were  inter- 
posed in  the  consolidated  suit  for  por- 
tions of  the  property,  and  among  them 
the  claim  of  Withenbury  &  Doyle.  An 
order  was  made  dismissing  this  claim, 
with  costs,  while  the  suit  remained  pend- 
ing and  the  cotton  and  its  proceeds  un- 
disposed of.  The  supreme  court  held» 
that  this  order  was  appealable,  because 
it  completelj-  determined  the  whole  mat- 
ter in  controversy  between  these  claim- 
ants and  the  United  States,  and  was  final 
as  to  all  the  parties  to  that  severable 
controversy. 

11.  Withenbury  v.  United  States,  5 
Wall.  819,  18  L.  Ed.  613;  Blossom  v. 
Milwaukee,  etc.,  R.  Co.,  1  Wall.  655,  17 
L.    Ed.    673. 

12.  Dismissal  of  petition  of  interven- 
tion  final. — Savannah   v.  Jesup,   106   U.    S. 


APPEAL  AND  ERROR. 


939 


as  confessed  by  one  of  two  defendants  before  a  decree  is  made  disinis&ing  the 
bill,  on  demurrer,  as  to  the  other  defendant,  the  latter  can  appeal  from  the  de- 
cree, because  the  decree  is  final  as  to  him,  althought  it  does  not  dispose  of  the 
case  as  to  his  codefendant.^^ 

h.  Failure  to  Dispose  of  Severable  Matters. — The  finality  of  a  decree  is  not 
afifected  by  the  fact  that  there  was  left  to  be  determined  a  further  severable 
matter  in  which  the  appellant  parties  had  no  interest. i-*  But  this  rule  does  not 
apply  to  cases  where  the  liability  of  the  defendants  is  alleged  to  be  joint,  or  to 
a  case  in  which  there  is  but  a  single  defendant. ^^ 

i.  Orders  Disposing  of  Matters  Arising  Subsequent  to  Principal  Decree. — The 
doctrine  that,  after  a  decree  which  disposes  of  a  principal  subject  of  litigation 
and  settles  the  rights  of  the  parties  in  regard  to  that  matter,  there  may  subse- 
quently arise  important  matters  requiring  the  judicial  action  of  the  court  in  rela- 
tion to  the  same  property  and  some  of  the  same  rights  litigated  in  the  main  suk, 
making  necessary  substantive  and  important  orders  and  decrees  in  which  the 
most  material  rights  of  the  parties  may  be  passed  upon  by  the  court,  and  which, 
when  they  partake  of  the  nature  of  final  decisions  of  those  rights,  may  be  ap- 
pealed from,  is  well  established  by  the  decisions  of  this  court. ^^ 

j.  Decrees  Disposing  of  Collateral  Matters. — A  decree,  to  be  a  final  one,  within 
the  meaning  of  the  act  of  congress,  providing  for  appeals  to  the  supreme  court, 
need  not  necessarily  be  one  that  disposes  of  all  the  issues  presented  in  the  case 
finally,  but  may  include  a  final  determination  in  collateral  matters. i"     But  col- 


563,  27  L.  Ed.  276;  Gumbel  v.  Pitkin.  113 
U.  S.  545.  547.  28  L.  Ed.  1128;  Fosdick  v. 
Schall.  99  U.  S.  235,  25  L.  Ed.  339;  Cen- 
tral Trust  Co.  V.  Grant  Locomotive 
Works,   135   U.    S.   207,  34    L.    Ed.  97. 

Where,  on  a  bill  to  foreclose  a  mort- 
gage, a  municipal  corporation  was  al- 
lowed to  intervene,  setting  up  a  claim 
for  taxes  on  the  property  to  be  sold,  a 
petition  to  intervene  was  considered  by 
the  court  upon  the  merits  and  by  its  or- 
der dismissed.  Such  order  of  dismissal 
was  held  to  be  a  final  decree  as  to  the 
intervener.  Savannah  z'.  Jesup,  106  U.  S. 
563,   27    L.    Ed.   276. 

Dismissal  of  petition  of  intervener  in 
attachment. — An  order  dismissing,  on  the 
merits,  a  petition  by  which  a  third  party 
intervenes  in  attachment  proceedings,  as- 
serting a  prior  lien  on  the  property  at- 
tached, is  final  as  to  him.  Gumbel  v.  Pit- 
kin,  113    U'.   S.   545,   547,  28   L.   Ed.   1128. 

13.  Stewart  v.  Masterson,  131  U.  S.  151, 
32   L.   Ed.   114. 

14.  Failure  to  dispose  of  severable  mat- 
ters.—Todd  V.  Daniel,  16  Pet.  521,  10  L. 
Ed.  1054;  Forgay  v.  Conrad.  6  How.  201, 
13  L.  Ed.  404;  Witherbury  v.  United 
States,  5  Wall,  819,  18  L.  Ed.  613;  Ger- 
main V.  Mason,  12  Wall.  259,  20  L.  Ed. 
392;  Milner  v.  Meek,  95  U.  S.  252,  24  L. 
Ed.  444;  Hill  v.  Chicago,  etc.,  R.  Co.,  140 
U.   S.   52,   35   L.    Ed.   331. 

15.  Ex  parte  National  Enameling,  etc., 
Co..  201  U.  S.  156,  50  L.  Ed.  707.  following 
Hohorst  V.  Packet  Co..  148  U.  S.  262.  37 
L.  Ed.  443,  and  distinguishing  Hill  v. 
Chicago,  etc..  R.  Co.,  140  U.  S.  52,  35  L. 
Ed.  331;  Bank  of  Rondout  v.  Smith.  156 
U.    S.    330.   39   L.    Ed.   441. 

16.  Orders  disposing  of  matters  arising 
subsequent   to  principal   decree. — Blossom 


V.  Milwaukee,  etc..  R.  Co.,  1  Wall.  655,  17 
L.  Ed.  673;  Forgay  ■&.  Conrad,  6  How. 
201.  12  L.  Ed.  404;  Fosdick  v.  Schall,  9» 
U.  S.  235,  25  L.  Ed.  339;  Wniiams  y. 
Morgan,  111  U.  S.  684,  28  L.  Ed.  559; 
Burnham  v.  Bowen,  111  U.  S.  7T€i,  2S  L. 
Ed.  596;  Farmers'  Loan  &  Trust  Co.,  12» 
U.    S.   206,   213,   32    L.    Ed.   656. 

An  order  of  a  circuit  cwurt  of  the  United 
States,  in  a  suit  in  equity  for  the  fore- 
closure of'  a  mortgage  upon  the  property 
of  a  railroad  company,  that  the  receiver 
of  the  mortgaged  property  may  borrow 
money  and  issue  certificates  therefor  to 
be  a  first  lien  upon  it,  made  after  final 
decree  of  foreclosure,  and  after  appeal 
therefrom  to  this  court,  and  after  the 
filing  of  a  supersedeas  bond,  establishes, 
if  unreversed,  the  right  of  the  holders  of 
the  certificates  to  priority  of  payment  over 
the  mortgage  bondholders,  and  is  a  final 
decree  from  which  an  appeal  may  be 
taken  to  this  court.  Farmers'  Loan  & 
Trust   Co.,   129   U.   S.   206,   32   L.   Ed.   656. 

17.  Decrees  disposing  of  collateral  mat- 
ters.— Bronson  v.  Railroad  Co.,  2  Black 
524,  530.  17  L.  Ed.  359;  Central  Trust  Co 
V.  Grant  Locomotive  Works,  135  U.  S 
207,  34  L.  Ed.  97;  Trustees  v.  Green- 
ough.  105  U.  S.  527,  26  L.  Ed.  1157; 
Hinckley  v.  Gilman,  etc..  R.  Co.,  94  U.  S. 
467.   24   L.   Ed.    166. 

The  term  "final  decision"  in  the  statute 
p^roviding  for  appeals  to  the  supreme  court 
under  consideration  does  not  mean  neces- 
sarily such  decisions  or  decrees  only  which 
finally  determine  all  the  issues  presented 
by  the  pleadings;  that,  while  these  are  un- 
doubtedly final  decisions,  the  terms  are 
not  limited  to  them,  but  also  apply  to  a 
final  determination  of  a  collateral  matter 
distinct  from  the  general  subject  of  litiga- 


940 


APPEAL  AND  ERROR. 


lateral  matters  which  arise  after  final  judgment,  that  are  only  antecedent  and 
ancillary  to  another  suit,  are  not  reviewable. i'' 

k.  Supplemental  Decree  in  Execution  of  the  Original  Decree. — Decrees  that 
are  merely  orders  in  execution  of  the  previous  decrees  of  the  court,  are  final  and 
appealable,  for  the  purpose  of  correcting  orders  which  originate  in  them.  But 
when  such  decrees  are  dependent  upon  the  decree,  to  execute  which  they  were 
rendered,  they  are  vacated  by  its  reversal :  in  which  case  the  appeal  which 
brings  them  into  review  will  be  dismissed  for  want  of  a  subject  matter  on  which 
to  operate. 19  But  it  has  been  held,  that  an  order  of  sale  in  execution  of  an  origi- 
nal decree  is  not  a  final  decree,  on  which  an  appeal  will  lie.^o    Likewise,  an  order 


tion,  affecting  only  the  parties  to  the 
particular  controversy,  and  finally  settles 
that  controversy.  It  would  seem,  also, 
that  the  importance  of  this  collateral  mat- 
ter should  be  considered.  Terry  v.  Sharon, 
1.31    U.    S.    40,   46,    33    L.    Ed.    94. 

The  right  of  a  mortgagee  to  appeal 
from  a  decree,  with  which  he  is  dissatis- 
fied, cannot  be  suspended  by  cross  bills 
between  other  parties  contesting  matters 
with  which  the  mortgagee  has  no  con- 
cern. Bronson  v.  Railroad  Co.,  2  Black 
524,   17    L.    Ed.    359. 

In  WHIiams  v.  Morgan,  111  U.  S.  684, 
38  L.  Ed.  559,  an  order  fixing  the  amount 
of  the  compensation  of  receivers  in  a  suit 
to  foreclose  a  mortgage  on  a  railroad 
while  the  main  suit  was  still  pending  was 
held  to  be  appealable,  because  it  was 
final  in  its  nature,  and  was  made  in  a 
matter  distinct  from  the  general  subject 
of  litigation,  a  matter  by  itself,  which 
affected  only  the  parties  to  the  particular 
controversy,  and  those  whom  they  rep- 
resented. 

In  a  suit  to  compel  a  railway  company 
to  do  an  express  company's  business  on 
the  payment  of  lawful  charges,  a  decree 
wiiich  requires  the  carriage,  and  fixes 
the  compensation  to  be  paid,  is  final  al- 
though a  supplemental  order  is  made  after 
the  decree  for  the  settlement  of  accounts 
which  accrued  pending  the  suit.  Such 
matters  do  not  enter  into  the  merits  of 
the  case.  AH  such  matters  relate  to  the 
administration  of  the  cause,  and  the  ac- 
counts to  be  settled  under  the  present 
order  of  the  same  general  character  as 
those  of  a  receiver  who  holds  property 
awaiting  the  final  disposition  of  the  suit. 
They  are  incidents  of  the  main  litiga- 
tion, bwt  not  necessarily  a  part  of  it.  St. 
Louis,  etc.,  R.  Co.  v.  Southern  Exp. 
Co.,  108  U.  S.  24,  27  L.  Ed.  638;  Mis- 
souri, etc..  R.  Co.  V.  Dinsmore,  108  U.  S. 
30,   27   L.   Ed.   640. 

18.  The  refusal  of  the  district  court  to 
grant  a  certificate  of  reasonable  cause 
is  not  a  matter  which  can  be  reviewed 
in  the  circuit  court  or  in  this  court.  It 
is  only  from  final  judgments  that  a  writ 
of  error  Kes  from  the  district  to  the  cir- 
cuit court,  or  from  the  latter  court  to  the 
supreme  court.  The  granting  or  the  re- 
fusal to  grant  the  certificate  is  not  a  final 
judgment  in  the  sense  of  the  statute  which 


allows  writs  of  error.  The  certificate, 
when  granted,  is  no  part  of  the  original 
case.  It  is  a  collateral  matter  which 
arises  after  final  judgment.  It  is  granted 
to  protect  the  person  at  whose  instance 
the  seizure  was  made,  should  an  action 
of  trespass  he  brought  against  him  by  the 
claimant  for  the  wrongful  seizure  of  the 
latter's  property.  The  granting  of  the 
certificate  of  reasonable  cause  is,  there- 
fore, only  antecedent  and  ancillary  to  an- 
other suit,  and  is  not  a  final  judgment  m 
the  case  in  which  it  is  given.  It  is  not 
final  or  effectual  for  any  purpose  unless 
certain  facts  subsequent  to  the  judgment 
are  shown,  namely,  the  immediate  return 
to  the  claimant  or  his  agent  of  the  prop- 
erty seized  in  the  original  suit.  United 
States  V.  Abatoir  Place,  106  U.  S.  160,  161, 
27   L.   Ed.    128. 

19.  Supplemental  decree  in  execution 
of  the  original  decree. — ^Forgay  v.  Conrad, 
6  How.  201,  12  L.  Ed.  404;  Blossom  v. 
Milwaukee,  etc.,  R.  Co.,  1  Wall.  655.  17 
L.  Ed.  673;  Butterfield  v.  Usher,  91  U.  S. 
246,  23  L.  Ed.  318;  Trustees  v.  Greenough, 
105  U.  S.  527,  26  L.  Ed.  1157;  Hinckley  v. 
Oilman,  etc.,  R.  Co..  94  U.  S.  467,  24  L- 
Ed.  166;  Hovey  v.  McDonald,  109  U.  S. 
150,  27  L.  Ed.   888. 

An  appeal  may  be  taken  from  a  decree 
in  an  equity  case,  notwithstanding  it  is 
merely  in  execution  of  a  prior  decree  in 
the  same  suit,  for  the  purpose  of  correct- 
ing errors,  which  may  have  originated  in 
a  subsequent  proceeding.  Lewisburg  Bank 
V.  Sheffey,  140  U.  S.  4.50,  452,  35  L.  Ed.  496. 
citing  Hill  v.  Chicago,  etc..  R.  Co.,  140 
U.  S.  52,  35  L.  Ed.  331;  Chicago,  etc.,  R. 
Co.  V.  Fosdick,  106  U.  S.  47;  Forgay  v. 
Conrad,  6  How.  201,  12  L.  Ed.  404;  Blos- 
som V.  Milwaukee,  etc.,  R.  Co.,  1  Wall. 
655,    17    L.    Ed.    673. 

An  appeal  will  lie  from  decrees  that 
are  mere  orders  in  the  execution  of  the 
previous  decrees  of  the  court  accordirKg 
to  the  nature  of  their  subject  matter  and 
the  rights  of  the  parties  affected  over  an 
objection  that  thev  are  not  final.  Chicago, 
etc.,  R.  Co.  V.  Fosdick,  106  U.  S.  47,  27  L. 
Ed.  47.  citing  Forgay  v.  Conrad.  6  How. 
201,  12  L.  Ed.  404;  Blossom  v.  Milwaukee, 
etc..  R.  Co..  1  Wall.  655.  17  L.  Ed.  673. 

20.  McMicken  v.  Perin,  20  How.  133, 
15  L.  Ed.  857.  citing  Keene  v.  Whit- 
taker,   13    Pet.  459,   10  L.   Ed.  246. 


APPEAL  AND  ERROR. 


941 


directing  process  to  issue  to  carry  into  execution  a  final  decree  already  rendered, 
is  not  such  a  final  order  or  decree  in  a  case  as  is  contemplated  bv  the  judiciary 
act  of  1789.21 

I.  Efvtry  and  Signing  of  Judgment  or  Decree. — A  judgment  or  decree  does  not 
become  final  for  the  purposes  of  an  appeal  until  it  is  actually  entered. 22 

Entry  Nunc  Pro  Tunc— Thoudi  a  decree  have  been  entered  "as"  of  a  prior 
date — the  date  of  an  order  settling  apparently  the  terms  of  a  decree  to  be  en- 
tered thereafter — the  rights  of  the  parties  in  respect  to  an  appeal  are  determined 
by  the  date  of  the  actual  entry,  or  of  the  signing  and  filing  of  the  final  decr^p.2.-? 

Unsisfned  Judgirents  in  Louisiana. — A  judgment,  before  it  is  signed  by 
the  judge,  is  not  a  final  judgment  on  which  the  writ  of  error  may  issue  for  its 
reversal.  \\'ithout  the  action  of  the  judge,  the  plaintiflFs  can  take  no  step.  They 
can  neither  issue  execution  on  the  judgment,  nor  reverse  the  proceedings  by  writ 
of  error.     This  is  in  accordance  with  the  settled  practice  in  Louisiana. 2^ 

4.  P.\RTicuLAR  Judgments.  Orders  and  Decreed  Considered — a.  Judaments 
or  Orders  of  Quashal. — A  refusal  to  quash  an  execution  or  to  quash  a  forthcom- 


Where  a  decree  of  the  circuit  court  is 
affirmed  on  appeal  to  this  court,  and  the 
cause  remanded  to  the  circuit  court  to 
be  carried  into  effect,  an  order  for  at- 
tachment by  the  circuit  court  ap-ainst  de- 
fendant to  enforce  the  oria^inal  decree, 
is  not  a  final  decree  on  which  an  appeal 
can  be  sustained.  McMicken  v.  Perin,  20 
How.   133.   1.0    L.    Ed.   857. 

Supplemental  decree  of  sale  in  execu- 
tion of  original  decree. — An  original  de- 
cree was  made  in  the  circuit  court  of 
Rhode  Island  at  June  term.  1834.  and  an 
appeal  was  taken  to  January  term,  1835, 
of  the  supreme  court.  This  appeal  was 
dismissed  at  January  term,  1837,  on  the 
motion  of  the  counsel  for  the  appellees, 
without  an  examination  or  decision  on 
the  merits  of  the  cause.  At  the  Novem- 
ber term  of  the  circuit  court,  the  defend- 
ants prayed  and  were  allowed  a  second 
appeal  to  the  supreme  court;  which  appeal 
had  not  been  yet  entered  on  the  docket 
of  the  supreme  court.  The  circuit  court 
afterwards  proceeded  to  order  execution 
of  the  decree  of  1834,  and  the  defendant 
appealed  to  the  supreme  court  from  this 
decree.  Held,  that  the  decree  of  execu- 
tion is  not  a  final  decree  in  the  contempla- 
tion of  the  act  of  congress,  from  which 
an  appeal  lies.  Carr  v.  Hoxie,  13  Pet 
460.    10    L.    Ed.    247. 

21.  Real  estate  beina^  sold  under  a 
regular  proceeding  of  the  circu't  court, 
an  order  of  the  same  court  awarding  proc- 
ess to  put  the  purchaser  in  possession, 
is  not  a  decree  from  which  the  tenant 
can  appeal  to  this  court.  If  the  tenant 
had  an  agreement  with  the  purchaser. 
which  .gave  him  the  right  to  remain  in 
possession,  his  remedy  was  a  bill  for  an 
injunction,  in  which  a  final  decree  could 
be  passed  and  an  appeal  legally  taken. 
Callan  v.  May.  2  Black  541,  17  L.  Ed. 
281. 

22.  Entry  and  signing  of  judgment  or 
decree. — Silsby  v.  Foote,  20  How.  290,  15 
L.  Ed.  822;  Ore»n  v.  Van  Buskirk,  3  Wall. 
448,   18   L.    Ed.   245. 


In  Wheeler  v.  Harris,  13  Wall.  .t1,  56. 
20  L.  Ed.  531,  this  court  approved  the 
practice  of  entering  decrees  in  form  be- 
fore taking  apneals  to  this  court,  citing 
Rubber  Co.  v.  Goodyear,  6  Wall.  153.  156. 
18  L.  Ed.  762:  Silsby  v.  Foote,  20  How. 
290.  15  L.  Ed.  822. 

On  appeal  to  the  circuit  court  from  a 
decree  in  the  district  court  for  the  pay- 
ment of  money,  the  circuit  court  affirmed 
the  judgment  of  the  district  court  with 
costs  to  be  taxed,  from  which  affirmance 
the  respondent  took  an  appeal  here.  After 
the  appeal  here,  another  decree  was  ren- 
dered by  the  circuit  court,  in  which,  rtfter 
reciting  the  former  decree  and  taxation 
of  costs,  it  was  decreed  in  form  tl-iat  the 
apnellee  have  judgment  against  the  ap- 
pellant for  the  amount  decreed,  toerether 
with  costs,  amounting  to  the  sum  of  $5,444 
On  motion  to  dismiss  this  last  appeal, 
on  the  ground  of  a  former  one  pending 
in  the  same  case,  held,  that  under  the  cir- 
cumstances, the  first  decree  was  not  a 
final  decree;  and  that  it  was  the  first  ap- 
peal and  not  the  second  which  should  be 
dismissed.  Wheeler  v.  Harris,  13  Wall. 
51,  20   h.   Ed.   531. 

23.  Rubber  Co.  v.  Goodyear,  6  Wall. 
1:3.    18    L.    Ed.    762. 

24.  Yznaga  Del  Valle  v.  Harrison.  9S 
U.  S.  233,  23  L.  Ed.  892,  following  Life, 
etc..  Ins.  Co.  V.  Wilson,  8  Pet.  291,  303, 
8    L.    Ed.   949. 

The  district  judge  of  Louisiana  refused 
to  sign  the  record  of  a  judgment  rendered 
in  a  case  by  his  predecessor  in  office 
Bv  the  law  of  Louisiana,  and  the 
rule  adopted  by  the  district  court,  the 
jud'rment.  without  the  signature  of  the 
judge,  cannot,  be  enforced.  It  is  not  a 
final  judgment,  on  which  a  writ  of  error 
may  issue,  for  its  reversal.  Without  the 
action  of  the  judge  the  plaintiflFs  can  ^-rke 
no  step  in  the  case.  They  can  ne..her 
issue  execution  on  the  jud.gment  nor  re- 
verse the  nroceedings  bv  writ  of  error. 
Life.  etc..  Tns.  Co.  v.  Wilson,  8  Pet.  291» 
8    L.    Ed.    949. 


942 


AFFEAL  AXD  ERROR- 


ing  bond  is  not  a  final  judgment  to  which  a  writ  of  error  will  lie.^-^ 

b.  Decision  in  Injunction  Proceedings — (1)  In  General. — No  appeal  lies  to 
this  court  from  an  order  of  the  circuit  court,  granting  or  refusing  an  injunction, 
until  after  final  decree. ^^  This  court  has  repeatedly  decided  that  a  decree  upon 
a  motion  to  dissolve  an  injunction  in  the  course  of  a  chancery  cause,  and  where 
the  bill  is  not  finally  disposed  of,  is  not  such  a  final  decree  as  can  be  re-examined 
in  this  court,  under  the  terms  of  the  25th  section  of  the  judiciary  act  of  Septem- 
ber 24,  1789.2- 

Decree  Perpetuating  Injunction. — An  appeal  to  the  supreme  court  does 
not  lie  from  a  decree  ot  the  circuit  court  making  an  injunction  perpetual,  and 
leaving  some  matters  of  account  open  for  further  consideration,  upon  which 
the  parties  went  on  to  take  further  proof.  The  decree  perpetuating  the  injunc- 
tion was  not  a  final  decreets 


25.    Judgments   or   orders   cf  quashal. — 

United  States  v.  Abatoir  Place,  106  o.  S. 
160.  27  L.  Kd.  128,  citng  Boyle  v.  Zach- 
arie,  6  Pet.  635,  646,  8  L.  Ed.  527,  532; 
Pickett  v.  Legerwood,  7  Pet.  144,  8  L.  Ed. 
638;  Smith  z-'.  Trabue.  9  Pet.  47,  9  L.  Ed.  30; 
Evans  V.  Gee,  14  Pet.  1,  10  L.  Ed.  327; 
Amis  V.  Smith,  16  Pet.  303,  10  L.  Ed. 
^)73;  Morsell  v.  Hall,  13  How.  212,  14  L. 
Ed.  117;  McCargo  v.  Chapman,  20  How. 
555,  15.  L.  Ed.  1021;  Gregg  v.  Forsyth,  2 
Wall.  56,  17  L.  Ed.  782;  Barton  v.  For- 
syth,  5   Wall.   190,   18    L.   Ed.   545. 

The  refusal  to  quash  an  execution  is 
not,  in  the  sense  of  the  common  law.  a 
judgment,  much  less  a  final  judgment; 
it  is  a  mere  interlocutory  order.  Even 
at  common  law,  erri_r  only  lies  from  a 
final  judgment;  and  Dy  the  express  pro- 
visiuns  of  the  judiciary  act  of  1<8J,  a  w.it 
of  error  lies  to  this  court,  only  in  cases 
of  final  judgments.  Boyle  v.  Zacharie,  6 
Pet.  635,  648,  8  L.  Ed.  527,  532. 

An  order  to  the  circuit  court  quashing 
and  vacat.ng  a  writ  of  replevin  is  such  a 
final  judgment  as  is  subject  to  review 
here  on  a  writ  of  error.  Ex  parte  Balti- 
more, etc.,  R.  Co.,  108  U.  S.  5(i6,  27  L. 
Ed.   78. 

Order  quashing  inquisition  in  condem- 
nation proceeding. — In  conformity  with 
the  charter  of  the  Chesapeake  and  Ohio 
Canal  Company,  an  inquisition,  issued  at 
the  instance  of  the  company  by  a  justice 
of  the  peace  in  the  county  of  Washington, 
District  of  Columbia,  addressed  to  the  mar- 
shal of  the  district,  was  executed  and  re- 
turned to  the  circuit  court  of  the  county 
of  Washington,  estimating  the  value  of 
the  lands  mentioned  in  the  warrant,  and 
all  the  damages  the  owners  would  sus- 
tain by  cutting  the  canal  through  the 
land,  at  one  thousand  dollars.  Certain 
objections  being  filed  to  the  inquisition, 
the  court  quashed  the  same,  and  a  writ 
of  error  was  brought  on  this  judgment. 
Held,  the  order  or  judgment  in  quash- 
ing the  inquisition  in  this  case,  is 
not  final.  The  law  authorizes  the  court, 
"at  its  discretion,  as  often  as  rnay  be 
necessary,  to  direct  another  inquisition  to 
be  taken."    The  order  or  judgment,  there- 


fore, quashing  the  inquisition,  is  in  the 
natare  of  an  order  setting  aside  a  verdict, 
for  the  purpose  of  awarding  a  venire  facias 
de  novo.  Chesapeake,  etc.,  Canal  Co.  v. 
Union  Bank,  8  Pet.  259,  8  L.  Ed.  937. 

Regarding  a  forthccming  bend  as  a 
part  of  the  process  of  execution,  a  re- 
fusal to  quash  the  bond  is  not  a  judg- 
ment of  the  court,  and  much  less  is  it  a 
final  judgment;  and,  therefore,  no  writ  of 
error  lies  in  such  a  case.  Amis  v.  Smith, 
16  Pet.  303,  10  L.  Ed.  973,  977,  citing 
Boyle  V.  Zacharie,  6  Pet.  635,  646,  8  L.  Ed. 
527,   532. 

26.  Dissolution  of  injunction  where 
bill  retained. — Hentig  v.  Page,  102  U.  S. 
219,  26  L.  Ed.  159;  Keystone  Iron  Co.  v. 
Martin,  132  U.  S.  91.  33  L.  Ed.  275;  Lodge 
V.  Twell,  135  U.  S.  232,  34  L.  Ed.  153; 
American  Construction  Co.  v.  Jackson- 
ville, etc.,  R.  Co.,  148  U.  S.  372,  378,  37 
L.  Ed.  486. 

27.  McCollum  v.  Eager,  2  How.  61,  11 
L.  Ed.  179;  Gibbons  v.  Ogden,  6  Wheat. 
448,  5  L.  Ed.  302;  Verden  v.  Coleman,  18 
How.  86,  15  L.  Ed.  272;  Young  v.  Grundy, 
6  Cranch  51,  3  L.  Ed.  149;  Hiriart  v. 
Ballon,  9  Pet.  156,  9  L.  Ed.  85;  Moses  v. 
The  Mayor.  15  Wall.  387,  390,  21  L.  Ed. 
176;  Thomas  v.  Woodridge,  23  Wall.  283, 
288,  23  L.   Ed.  135. 

Injunction  mere  incident  to  principal 
relief. — Where  a  suit  was  brought  in  the 
circuit  court  by  assignees  in  bankruptcy, 
praying  that  a  transfer  of  personal  prop- 
erty by  the  bankrupt  to  A.  be  decreed  to 
be  fraudulent,  that  their  title  thereto  be 
declared  to  be  perfect,  and  that  A.  be  en- 
joined from  prosecuting  an  action  there- 
for then  pending  in  a  state  court,  and  the 
circuit  court,  after  due  notice,  awarded 
a  preliminary  injunction,  and  an  order 
is  asked  here  for  a  mandamus  command- 
ing the  judge  who  granted  the  injunction 
to  set  it  aside.  Held,  that  the  circuit 
court  having  jurisdiction  of  the  suit,  an 
error,  if  one  was  committed,  can  only  be 
reviewed  here  after  a  final  decree  shall 
have  been  passed  in  that  court.  Ex  parte 
Schwab,  98   U.  S.  240,  25  L.   Ed.   105. 

28.  Brown  v.  Swann.  9  Pet.  1,  9  L. 
Ed.   29. 


APPEAL  AND  ERROR. 


943 


Injunction  to  Judgment. — A  decree  enjoining  a  judgment  at  law  taxing  a 
sum  which  remained  to  be  ascertained  with  precision,  is  not  final,  to  permit  an 
appeal  from  it.^^ 

Injunction  against  Sale  under  Trust  Deed. — A  decree  ordering  an  injunc- 
tion, previously  granted  to  restrain  a  sale  under  a  deed  of  trust,  to  be  dissolved, 
and  directing  a  sale  according  to  the  deed  of  trust,  and  the  bringing  of  the  pro- 
ceeds into  court,  is  a  final  decree.^'^ 

(2)  Writ  of  Error  to  State  Court. — A  decree  of  the  higliest  court  of  a  state, 
which,  merely  dissolving  an  injunction  granted  in  an  inferior  court,  leaves  the 
whole  case  to  be  disposed  of  on  its  merits,  is  not  a  "final  decree,"  and  therefore, 
does  not  come  within  the  25th  section  of  the  judiciary  act  of  1789  or  the  2d 
section  of  the  act  of  1867,  giving  revisory  powers  to  this  court  over  final  decrees 
or  judgments  rendered  in  certain  cases  in  such  highest  court.-^^  A  decree  of  the 
highest  court  of  equity  of  a  state,  affirming  the  decretal  order  of  an  inferior 
court  of  ecjuity  of  the  same  state,  refusing  to  dissolve  an  injunction  granted  on 
the  filing  of  the  bill,  is  not  a  final  decree  within  the  25th  section  of  the  judiciary 
act  of  1789,  ch.  20,  from  which  an  appeal  lies  to  this  court.-^^ 

(3)  Under  Circuit  Court  of  Appeals  Act. — A  decree  of  the  circuit  court  of 
appeals  reversing  an  order  of  the  circuit  court  granting  a  preliminary  injunction, 
may  be  reviewed  in  this  court  on  writ  of  certiorari  issued  to  the  circuit  court 
of  appeals,  notwithstanding  the  decree  is  not  final,  where  the  record  presents 
the  whole  case  to  that  court  in  such  wise  as  might  properly  have  been  finally 
disposed  of  in  terms  by  its  decree.-^^ 

c.  Judgments  Azvarding  or  Refusing  to  Azvard  Writs. — A  judgment  refusing 
a  writ  of  venditioni  exponas  is  not  a  final  judgment  to  which  a  writ  of  error 
will  lie.34 

Writ  of  Possession. — Nor  is  an  order  of  court  awarding  a  purchaser  of  land 
at  a  judicial  sale  a  writ  of  habere  facias  possessionem.-^^ 

But  an  order  awarding  a  peremptory  writ  of  mandamus  is  a  final 
judgment   and   subject   to   review. ^^ 

Judgment  Awarding  "Writ  of  Restitution. — On  the  other  hand  judgments 
awarding,  or  refusing  to  award  or  setting  aside  writs  of  restitution  in  actions  of 
ejectment,  are  not  final  judgments  to  which  a  writ  of  error  will  lie.-^'' 


29.  Brown  v.  Swann.  9  Pet.  1,  9  L. 
Ed.   20. 

30.  Railroad  Co.  v.  Bradleys.  7  Wall. 
575.    19    L.    Ed.    274. 

31.  Writ  of  error  to  state  court. — 
Moses  V.  The  Mayor,  1-5  Wall.  387,  21  L. 
Ed.    176. 

32.  Gibbons  v.  Ogden,  6  Wheat.  448,  5 
L.   Ed.   302. 

33.  Under  circuit  court  of  appeals  act. 
— Harriman  v.  Northern  Securities  Co.. 
197  U.  S.  244,  49  L.  Ed.  739,  citing  Mast, 
etc.,  Co.  V.  Stover  Mfg.  Co.,  177  U.  S. 
495,  44  L.  Ed.  856;  Castner  v.  Coffman, 
178  U.  S.  168,  183,  44  L.  Ed.  1021.  See  ante. 
"Under  Circuit  Court  of  Appeals  Act," 
III,  E. 

34.  Judgments  awarding  or  refusing  to 
award  writs. — United  States  v.  Abatoir 
Place,  106  U.  S.  160,  27  L.  Ed.  128,  citing 
Boyle  V.  Zacharie,  6  Pet.  635,  646,  8  L.  Ed. 
527.  532 ;  Pickett  v.  Legerwood,  7  Pet.  14  1.  8 
L.    Ed.    638;    Smith   v.   Trabue,   9    Pet.    47, 

9  L.   Ed.   30;   Evans  v.   Gee,   14   Pet.   1,   10 
L.    Ed.    327;    Amis   v.    Smith,    16    Pet.    303, 

10  L.    Ed.   973;   Morsell  v.    Hall,   13   How. 
212.   14  L.  Ed.  117;   McCargo  v.  Chapman. 

20    How.    555,    15    L.    Ed.    1021;    Gregg   v. 

Forsyth,  2   Wall.   56,   17   L.   Ed.   782;    Bar- 


ton   V.    Forsyth,    5    Wall.    190,    18    L.    Ed. 
545. 

35.  Writ  of  possession. — Callan  v.  May, 
2    Black   541,    17    L.    Ed.   281. 

36.  Davies  v.  Corbin.  112  U.  S.  36,  28 
L.  Ed.  G27,  citing  Riggs  v.  Johnson 
County.   6  Wall.   166,   18   L.   Ed.  768. 

37.  Judgment  awarding  writ  of  restitu- 
tion.— ^United  States  v.  Abatoir  Place,  106 
U.  S.  160,  27  L.  Ed.  128,  citing  Boyle  v. 
Zacharie,  6  Pet.  635,  646,  8  L.  Ed.  532,  627; 
Pickett  V.  Legerwood,  7  Pet.  144,  8  L.  Ed. 
638;  Smith  v.  Trabue.  9  Pet.  47,  9  L.  Ed.  30; 
Evans  V.  Gee,  14  Pet.  1,  10  L.  Ed.  327; 
Amis  V.  Smith,  16  Pet.  303,  10  L.  Ed. 
973;  Morsell  v.  Hall,  13  How.  212,  14  L. 
Ed.  117;  McCargo  v.  Chapman.  20  How. 
555,  15  L.  Ed.  1021;  Gregg  v.  Forsyth, 
2  Wall.  56.  17  L.  Ed.  782;  Barton  v. 
Forsyth,    5    Wall.    190.    18    L.    Ed.    545. 

The  judicial  act  authorizes  the  supreme 
court  to  issue  writs  of  error  to  bring  up 
any  final  judgment  or  decree  in  a  civil 
action  or  suit  in  equity,  depending  in  the 
circuit  court,  etc.  But,  a  judgment  award- 
ing a  writ  of  restitution  in  an  action  of 
ejectment,  where,  in  the  execution  of  a 
writ  of  habere  facias  possessionem,  the 
sheriff    had    improperly    turned    a    person 


I 


944 


APPEAL  AND  ERROR. 


d.  Judgments  by  Dizndcd  Court. — A  judgment  rendered  upon  an  equal  di- 
vision of  opinion  among  the  judges  is  final  and  reviewable  by  this  court.  The 
fact  of  division  does  not  impair  the  conclusive  force  of  the  judgrtient,  though  it 
may  prevent  the  decision  from  being  authority  in  other  cases  upon  the  question 
involved.  The  judgment  is  that  of  the  entire  court,  and  is  as  binding  in  every 
respect  as  if  rendered  upon  the  concurrence  of  all  the  judges.^^ 

e.  Orders  and  Decrees  at  Clwinbers — (1)  In  General. — Decrees  in  equity,  in 
order  that  they  may  be  re-examined  in  this  court,  must  be  final  decrees  rendered 
in  term  time,  as  contradistinguished  from  mere  interlocutory  decrees  or  orders 
which  may  be  entered  at  chambers,  or,  if  entered  in  court,  are  still  subject  to 
revision  at  the  final  hearing.^^  In  short,  an  appeal  does  not  lie  from  an  order 
made  by  a  judge  at  chambers.*"  Where  in  a  suit  for  the  foreclosure  of  a  mort- 
gage, a  petition  is  addressed  to  one  of  the  judges  praying  that  a  writ  of  assist- 
ance be  recalled,  it  was  held,  that  an  order  denying  the  motion  or  petition  is  not 
a  final  decree  in  a  "case  in  equity."* ^ 

(2)  Error  to  State  Court. — As  a  writ  of  error  from  this  court  can  only  go  to 
the  highest  court  of  a  state,  it  follows  by  analogy  that  it  will  not  lie  to  review 
the  order  of  a  judge  at  chambers.* ^ 

(3)  Habeas  Corpus  Proceedings. — An  appeal  will  not  lie  from  an  order  of  a 
circuit  judge  at  chambers  denying  an  application  for  a  writ  of  habeas  corpus, 
because  it  is  not  final.*^  But  although  the  original  order  was  made  at  chambers, 
yet  if  the  final  order  overruling  the  return  of  the  sherifif  and  discharging  the 
prisoner  from  custody  was  a  decision  of  the  circuit  court,  an  appeal  will  lie  to 
this  court.** 


out  of  possession,  is  not  a  final  judg- 
ment in  a  civil  action;  it  is  no  more  than 
the  action  of  a  court  on  its  own  process, 
which  is  submitted  to  its  own  discretion. 
This  court  takes  no  jurisdiction  in  such  a 
case.  Smith  v.  Trabue,  9  Pet.  47,  9  L. 
Ed.  30. 

Error  does  not  lie  to  a  refusal  of  the 
circuit  court  to  award  a  writ  of  restitu- 
tion in  ejectment.  "The  order  is  not  con- 
sidered a  final  judgment  within  the  mean- 
ing of  the  judiciarj'  act."  Gregg  v. 
Forsyth,  2  Wall.  56,  17  L.  Ed.  782,  citing 
Smith  V.  Trabue.  4  Pet.  47,  9  L.  Ed.  30. 

A  judgment  awarding  a  writ  of  restitu- 
tion, in  an  action  of  ejectment,  where,  in 
the  execution  of  a  writ  of  habere  facias 
possessionem,  the  sherifif  had  improperly 
turned  a  person  out  of  possession,  is  not 
a  final  judgment  in  a  civil  action  within 
the  meaning  of  the  judiciary  act  which 
authorized  the  supreme  court  to  issue 
writs  of  error  to  bring  up  any  final  judg- 
ment or  decree  in  a  civil  action  or  suit 
in  equity,  pending  in  the  circuit  court. 
It  is  no  more  than  the  action  of  a  court 
on  its  own  process,  which  is  submitted  to 
its  own  discretion.  Smith  v.  Trabue,  9 
Pet.  47.  9  L.  Ed.  30;  Barton  v.  Forsyth, 
5  Wall.   190,   18   L.   Ed.    545. 

38.  Judgments  by  divided  court. — Hart- 
man  V.  Greenhow,  102  U.  S.  672,  26  L.  Ed. 
271,  citing  Lessieiir  v.  Price.  12  How.  59, 
13  L.  Ed.  893;  Durant  v.  Essex  Co.,  7 
WaM.  107,  19  L.  Ed.  154;  S.  C,  101  U.  S. 
555,  26   L.   Ed.  961. 

S9.  Orders  and  decrees  at  chambers  in 
eeticraL — Morgan  v.  Thornhill,  11  Wall. 
6S,  81,  20  L.   Ed.  60. 


40.  Hentig  v.  Page,  102  U.  S.  219.  26 
L.    Ed.    159. 

41.  Hentig  v.  Page.  102  U.  S.  219.  2C  L. 
Ed.  159. 

42.  Error  to  state  court. — McKnight  v. 
James,  15S  U.  S.  685.  687.  39  L,  Ed.  310. 

43.  Habeas  corpus  proceedings. — Lam- 
bert V.  Barrett,  157  U.  S.  697.  39  L.  Ed. 
865,  citing  Rev.  Stat.,  §§  763,  764;  Act  of 
March  3,  1885,  c.  353.  23  Stat.  437;  Carper 
V.  Fitzgerald,  121  U.  S.  87,  30  L.  Ed.  882; 
In  re  Lennon,  150  U.  S.  393.  37  L.  Ed. 
1120;  McKnight  v.  James,  155  U.  S.  685, 
39    L.    Ed.    310. 

Orders  in  habeas  corpus  proceedings. — 
An  appeal  does  not  lie  to  this  court  from 
an  order  of  the  circuit  judge  of  the  United 
States,  sitting  as  a  judge  and  not  as  a 
court,  discharging  a  prisoner  brought  be- 
fore him  on  a  writ  of  habeas  corpus,  for 
the  reason  that  the  act  of  March  3.  1885, 
c.  353,  23  Stat.  437,  gave  an  appeal  to  this 
court  in  habeas  corpus  cases  only  fmm 
the  final  decision  of  a  circuit  court:  and 
Rule  34  did  not  make  his  decision  as 
judge  a  decision  of  the  court,  the  purpose 
of  that  rule  being  to  regulate  apji^als  to 
the  circuit  court  from  the  final  decision 
of  any  court,  justice,  or  judge  inferior  to 
that  court,  as 'well  as  appeals  from  the 
final  decision  of  such  circuit  court  to  tTie 
supreme  court.  McKnight  r.  James.  155 
U.  S.  685,  687,  39  L.  Ed.  310;  Carper  v. 
Fitzgerald,  121  U.  S.  87,  30  L.  Ed.  882; 
Lambert  v.  Barrett,  157  U.  S.  697.  700, 
39  L.   Ed.  865. 

44.  Harkrader  v.  Wadley,  172  U.  S.  148, 
43  L.  Ed.  399,  citing  In  re  Palliser.  136 
U.   S.  257,  34  L.   Ed.   514,  and  distinguish- 


APPEAL  AXD  ERROR. 


945 


f.  Judgments,  Orders  and  Decrees  of  Dismissal  and  Nonsuit — (1)  Judg- 
ments of  Dismissal — aa.  In  General. — A  decree  dismissing  a  bill  with  costs  is 
final  and  appealable,  although  no  judgment  for  costs  is  entered,*-^  and  although 
it  may  be  merely  interlocutory  so  far  as  it  grants  relief  on  a  cross  bill>^ 

bb.  Dismissal  of  Cross  Bill. — The  rule  in  the  United  States  courts  is 'that  a 
decree  dismissing  a  cross  bill  or  cross  complaint  is  not  final  because  the  original 
bill  and  the  cross  bill  constitute  one  suit.  In  other  words,  the  cross  bill  is  a  pro- 
ceeding to  procure  a  complete  determination  of  matters  already  in  litigation.*''' 


ing  Carper  v.  Fitzgerald,  121  U.   S.  87.  30 
L.   Ed.  882. 

It  is.  indeed,  true,  as  was  decided  in 
Carper  v.  Fitzgerald,  121  V.  S.  87,  30  L. 
Ed.  882,  that  no  appeal  lies  to  this  court 
from  an  order  of  a  circuit  judge  of  the 
United  States,  and  not  as  a  court,  dis- 
charging the  prisoner  before  him  on  a 
writ  of  habeas  corpus.  But  this  record 
discloses  that,  while  the  original  order 
was  made  at  chambers,  the  final  orcTer, 
overruling  the  return  of  the  sheriff  and 
discharging  the  prisoner  from  custody, 
was  the  decision  of  the  circuit  court  at  a 
stated  term,  and  therefore  the  case  falls 
within  In  re  Palliser,  136  U.  S.  257,  2G3. 
34  L.  Ed.  514.  Harkrader  v.  Wadley,  172 
U.    S.    148,   162,   43    L.    Ed.   399. 

45.  Judgments  cf  dismissal  in  general. 
—Fowler  T-.  Hamill,  139  U.  S.  549,  35  L. 
Ed.    266. 

It  seems  that  a  decree  of  the  circuit 
court  of  appeals  affirming  a  decree  of  a 
circuit  court  dismissing  an  appeal  to  re- 
move a  cloud  upon  the  title  to  real  prop- 
erty, which  the  parties  claimed  on  the 
grants,  is  a  final  decree.  Stevenson  v. 
Fain.  195  U.  S.  165,  49  L.  Ed.  142,  25  Sup. 
Ct.   Rep.  6. 

Where  property  has  been  taken  posses- 
sion of  by  a  marshal  under  a  writ  of 
attachment,  and  a  claimant  intervenes  by 
petition  laying  claim  to  the  goods  seized, 
an  order  dismissing  the  petition  for  in- 
tervention is  a  final  judgment  as  to  that 
issue,  and  it  is  reviewable  here  by  writ 
of  error.  Likewise  the  order  distributing 
the  proceeds  of  the  sale  is  final  as  it  dis- 
poses of  the  fund.  Gumbel  v.  Pitkin,  113 
U.    S.    545.   28    L.    Ed.    1128. 

46.  Elliott  r.  Sackett,  108  U.  S.  132,  27 
L.    Ed.    678. 

47.  Dismissal  of  cross  bill. — Ayres  v. 
Can-er,  17  How.  591,  15  L.  Ed.  179;  Ex 
parte  Railroad  Co.,  95  U.  S.  221,  24  L.  Ed. 
355;  Avers  v.  Chicago,  101  U.  S.  184.  25  L. 
Ed.  838;  Winters  r.  Ethell,  132  U.  S.  L-07, 
32  L.  Ed.  339;  Wheeling,  etc..  Bridge  Co. 
V.  Wheeling  Bridge  Co.,  138  U.  S.  287, 
34    L.    Ed.   967. 

"Any  decision  or  decree  in  the  pro- 
ceedings upon  a  cross  bill  is  not  a  final 
decree  in  the  suit,  and  therefore  not  the 
subject  of  an  appeal  to  this  court."  .A-yres 
V.  Carver.  17  How.  591,  15  L.  Ed.  179; 
Ex  parte  South,  etc.,  Alabama  R.  Co., 
95  U.   S.  221.  24  L.  Ed.  355. 

The  original  and  cross  bill  constitute 
one  suit,  consequently  any  decision  or  de- 

1  U  S  Enc— 60 


cree  in  the  proceedings  upon  the  cross 
bill  is  not  a  final  decree  in  the  suit,  and 
not  the  subject  of  an  appeal  to  this  court. 
The  decree,  whether  maintaining  or  dis- 
missing the  bill,  disposes  of  a  proceeding 
simply  incidental  to  the  principal  matter 
in  litigation,  and  can  only  be  reviewed  on 
an  appeal  from  the  final  decree  disposing 
of  the  whole  case.  Ex  parte  Railroad 
Co.,  95  U.  S.  221,  24  L.  Ed.  355,  citing 
Avers  v.  Carver,  17  How.  591.  15  L.  Ed. 
179. 

Where  a  bill  prays  for  an  injunction  to 
restrain  a  defendant  from  interfering 
with  a  mining  claim  which  the  plaintiff 
by  contract  had  licensed  the  defendant  to 
work,  and  also  praj-s  for  an  accounting 
from  the  defendant  for  ore  taken  by  the 
latter  from  the  mine,  and  the  defendant 
files  a  cross  complaint  praying  for  a 
specific  performance  by  the  plaintiff  of 
the  contract  to  convey,  and  the  court  at 
the  same  time  that  it  grants  the  injunc- 
tion and  orders  an  accounting  before  a 
referee,  dismisses  the  cross  complaint, 
which  judgment  is  affirmed  on  appeal  to 
the  highest  court  of  the  state,  it  was 
held  that  such  judgment  was  not  final  or 
appealable.  Nor  does  it  make  any  differ- 
ence that  the  decree  dismisses  the  cross 
bill  of  the  defendants.  The  filing  of  the 
cross  bill  is  not  the  institution  of  a 
separate  suit,  but  grows  out  of  the 
original  bill.  Winters  v.  Ethell,  132  U. 
S.  207,  32  L.  Ed.  339,  following  Keystone 
Iron  Co.  7'.  Martin,  132  U.  S.  91,  33  L. 
Ed.    275. 

The  complainant  sought  to  establish  an 
equitable  title  to  large  tracts  of  public 
lands  in  Mississippi:  having  offered  to 
comply,  as  he  alleges,  with  the  law 
providing  for  the  entry  and  purchase  at 
private  sale  of  the  several  tracts,  but  was 
prevented  from  making  the  entries  and 
obtaining  the  necessary  certificates  by  the 
illegal  and  unwarranted  acts  of  the  regis- 
ter and  receiver  at  the  land  office.  The 
bill  is  filed  against  the  defendants,  who 
had  subsequentlj-  entered  and  paid  for  the 
land,  obtained  the  necessary  certificates, 
and  upon  which  patents  have  since  been 
issued.  The  defendants  are  alleged  to  be 
very  numerous,  and  the  court  below  dis- 
pensed with  the  necessity  of  making  all 
of  them  parties;  and  di-ected  that  their 
interests  should  be  represented  by  seven 
of  them,  on  whom  process  was  directed  to 
be  served.  After  answer  served,  two  of 
these  defendants  filed  a  cross  bill,  setting 


I 


946 


APPEAL  AND  ERROR. 


An  appeal  from  the  final  decree  disposing  of  the  whole  cause  brings  up  all  the 
proceedings  for  re-examination,  and  the  party  aggrieved  by  any  determination  in 
respect  to  the  cross  bill  has  an  opportunity  to  review  any  interlocutory  decree 
rendered  on  his  cross  bill,  as  in  the  case  of  any  other  interlocutory  proceedings 
in  the  cause.** 

cc.  Dismissal  of  Libel  or  Cross'  Libel. — Generally  speaking,  the  same  princi- 
ples apply  to-  cross  libels  as  to  cross  bills.'' ^  Accordingly,  the  decree  of  a  district 
court  of  the  United  States  dismissing  a  cross  libel  in  an  admiralty  suit  is  not  a 
final  judgment  and  cannot  be  brought  to  the  supreme  court  of  the  United  States 
for  review  under  §  5  of  the  judiciary  act  of  ]\Iarch  3,   ISQl.-^*^ 

(2)  Jiidgments  of  Nonsuit. — It  is  true  that  a  plaintiff,  who  appears  by  the  re- 
cord to  have  voluntarily  become  nonsuit,  cannot  sue  out  a  writ  of  error. ^^  But 
in  the  case  of  a  compulsory  nonsuit,  it  is  otherwise ;  and  a  plaintiff,  against  whom 
a  judgment  of  nonsuit  has  been  rendered  without  his  consent  and  against  his 
objection,  is  enthled  to  relief  by  writ  of  error. -"^^ 

g.  Refusal  to  Enter  Exoneretur  on  Bail  Bond. — The  refusal  to  enter  an  exon- 
eretur  on  a  bail  bond,  is  not  a  final  judgment  to  which  a  writ  of  error  will  lie.^^ 


up  title  to  the  lands  in  dispute  paramount 
to  that  of  their  codefendants.  and  asked 
a  decree  to  that  effect,  which  cross  bill 
the  court  below,  on  demurrer,  dismissed. 
Held,  that  the  decree  on  the  cross  bill, 
of  the  court  below,  is  not  a  final  decree 
in  the  suit,  and  not  the  subject  of  an 
appeal  to  this  court.  The  appeal  is  there- 
fore dismissed  for  want  of  jurisdiction. 
The  decree  disposes  of  a  proceeding 
simply  incidental,  and  can  only  be  re- 
viewed on  appeal  from  the  final  decree 
disposing  of  the  whole  case.  Ayres  v. 
Carver,  17   How.   591,  15   L.   Ed.   179. 

Ayres  v.  Carver  explained. — ^"It  was 
long  ago  held,  that  a  decree  dismissing  a 
cross  bill  in  equity  could  not  be  consid- 
ered, standing  alone,  as  a  final  decree  in 
the  suit,  and  was  not  the  subject  of  an 
independent  appeal  to  this  court  under  the 
judiciary  act  of  1789;  and  that  it  could 
only  be  reviewed  on  an  appeal  from  a 
final  decree  disposing  of  the  whole  case. 
Ayres  v.  Carver.  17  ?Iow.  591,  15  L.  Ed. 
179;  Ex  parte  Railroad  Co.,  95  U.  S.  231, 
24  L.  Ed.  355.  It  is  argued  that  Ayres 
V.  Carver,  is  distinguishable  from  the 
case  at  fcar  because  the  twenty-second 
section  of  the  judiciary  act  of  1789,  under 
which  the  appeal  in  that  case  was  taken, 
provided  in  terms  for  the  revision  of  final 
decrees,  whereas  no  specific  mention  is 
made  of  final  decrees  or  judgments  in  § 
5  of  the  judiciary  act  of  1891.  But  that 
difference  was  specifically  disposed  of  in 
McLish  V.  Rofif,  141  U.  S.  661.  35  L.  Ed. 
893,  as  not  afifecting  the  principle  that  the 
decree  must  be  final  in  order  to  be  ap- 
pealable." Bowker  v.  United  States,  186 
U.  S.  135.  139,  46  L.  Ed.  1090,  reaffirmed 
in  Smith  v.  Iverson,  203  U.  S.  586,  51  L- 
Ed.   329. 

48.  Ayres  v.  Carver,  17  How.  591,  15  L. 
Ed.  179;  Ex  parte  Railroad  Co.,  95  U.  S. 
221,  225,  24  L.   Ed.  355. 

49.  Dismissal  of  libel  or  cross  libel. — 
Bowker   v.    United   States.    186   U.    S.    135, 


139.    46    L.    Ed.    1090,    reaffirmed   in    Smith 
V.   Iverson.  203  U.  S.  586,  51  L.  Ed.  329. 

50.  Bowker  v.  United  States,  186  U.  S- 
1.15.  138,  46  L.  Ed.  1090.  reaffirmed  in 
Smith  V.  Iverson,  203  U.  S.  586,  51  L.  Ed. 
329.  following  Ayres  v.  Carver.  17  How. 
591.  15  L.  Ed.  179. 

A  decree  ordering  a  libel  to  stand  dis- 
missed if  not  amended  within  10  days,  is 
a  final  decree  and  appealable,  where 
within  that  time  the  party  prosecutes  an 
appeal  and  thus  elects  to  waive  the  right 
to  amend.  The  Three  Friends,  166  U.  S. 
1.  41   L.   Ed.   897. 

51.  Judgments  of  nonsuit. — United 
States  c'.  Evans,  5  Cranch  280,  3  L.  Ed. 
101;  Evans  v.  Phillips,  4  Wheat.  73.  4  L. 
Ed.  516;  Central  Transp.  Co.  v.  Pullman 
Palace  Car  Co.,  139  U.  S.  24,  39,  35  L. 
Ed.   55. 

A  writ  of  error  will  not  lie  on  a  judg- 
ment of  nonsuit.  Evans  v.  Phillips,  4 
Wheat.  73,  4  L.  Ed.  516. 

52.  Doe  V.  Grymes,  1  Pet.  469.  7  L.  Ed. 
224;  Central  Transp.  Co.  v.  Pullman  Pal- 
ace Car  Co.,  139  U.  S.  24,  39,  35  L-  Ed.  55. 

The  granting  of  a  nonsuit  by  the  cir- 
cuit court,  because  in  its  opinion  the 
plaintiff  had  given  no  evidence  sufficient 
to  maintain  his  action,  was  in  accordance 
with  the  law  and  practice  of  Pennsylvania 
prevailing  in  the  courts  of  the  United 
States  held  within  that  state,  and  is  sub- 
ject to  the  revision  of  this  court  on  writ 
of  error.  Central  Transp.  Co.  v.  Pullman 
Car  Co.,  139  U.  S.  24,  35  L.  Ed.  55;  Mee- 
han  V.  Valentine,  145  U.  S.  611,  618,  36  L. 
Ed.  835.  cited  in  Corghron  ?'.  Bigelow. 
164  U.   S.  301,  308.  41   L.   Ed.  442. 

53.  Refusal  to  enter  exoneretur  on  bail 
bond. — United  States  v.  Abatoir  Place,  106 
U.  S.  160.  27  L.  Ed.  128,  citing  Boyle  v. 
Zacharie,  6  Pet.  635,  8  L.  Ed.  527;  Pickett 
V.  Legerwortd,  7  Pet.  144,  8  L.  Ed.  638; 
Smith  V.  Trabue,  9  Pet.  4,  9  L.  Ed.  30; 
Evans  V.  Gee.  14  Pet.  1.  10  L.  Ed.  327; 
Amis  V.  Smith,  16  Pet.  303.  10  L.  Ed.  973; 


APPEAL  AM)  URROR. 


947 


h.  Decrees  in  foreclosure  Proceedings — (1)  In  General. — It  has  also  been 
many  times  decided  that  a  decree  of  sale  in  a  foreclosure  suit,  which  settles  all 
Ihe  rights  of  the  parties  and  leaves  nothing  to  be  done  but  to  make  the  sale  and 
jjay  out  the  proceeds,  is  a  final  decree  for  the  purposes  of  an  appeal.''^ 

The  reason  is  that  in  such  a  case  the  sale  is  the  execution  of  the  decree  of 
the  court,  and  simply  enforces  the  rights  of  the  parties  as  finally  adjudicated.^"' 


Morsell  z'.  Hall,  13  How.  212,  14  L.  Ed. 
117;  AlcCargo  z\  Chapman,  20  How.  555, 
15  L.  Ed.  1021;  Gregg  r.  Forsyth,  2  Wall. 
■56,  17  L.  Ed.  782;  Harton  v.  Forsyth,  5 
Wall.    190,    18   L.   Ed.   545. 

54.  Decrees  in  foreclosure  proceedings 
in  general. — Ray  i-.  Law!  3  Cranch  179,  2 
L.  Ed.  404;  Whiting  2\  Bank  of  the  United 
State.s,  13  Pet.  16,  10  L.  Ed.  33;  Bronson 
V.  Railroad  Co..  2  Black  524.  17  L.  Ed. 
359;  Green  z:  Fisk.  103  U.  S.  518,  26  L- 
Ed.  486;  Grant  z\  Phrenix  Ins.  Co.,  106  U. 
S.  429,  431,  27  L.  Ed.  237;  Beebe  v.  Rus- 
sell, 19  How.  283.  15  L.  Ed.  668;  Chicago, 
^tc.  R.  Co.  V.  Fosdick.  106  U.  S.  47,  70, 
27  L.  Ed.  47;  Forgay  z'.  Conrad,  6  How. 
201,  12  L.  Ed.  404;  Railroad  Co.  v.  Swasey, 
23  Wall.  405.  22  L.  Ed.  136;  Marin  v. 
Lalley,   17   Wall.    14,   17,   21    L.    Ed.   596. 

A  decree  of  foreclosure  and  sale  of 
mortgaged  premises  is  a  final  decree,  and 
the  defendant  is  entitled  to  his  appeal 
■without  waiting  for  the  return  and  con- 
firmation of  the  sale  by  a  decretal  order, 
upon  the  ground  that  the  decree  of  fore- 
closure and  sale  is  final  as  to  the  merits, 
and  that  the  ulterior  proceedings  are  but 
a  mode  of  executing  the  original  decree. 
Whiting  V.  Bank  of  United  States,  13 
Pet.  6,  16,  10  L.  Ed.  33:  Bronson  v.  Railroad 
Co.,  2  Black  524,  17  L.  Ed.  359;  French  v. 
Shoemaker,  12  Wall.  86.  98.  20  L.  Ed.  270. 

A  decree  of  foreclosure  of  a  mortgage, 
and  of  a  sale,  are  to  be  considered  as  the 
final  decree  in  the  sense  of  a  court  of 
equity;  and  the  proceedings  on  the  de- 
ciee  are  a  mode  of  enforcing  the  rights  of 
the  creditor,  and  for  the  benefit  of  the 
debtor.  The  original  decree  of  foreclos- 
ure is  final  on  the  merits  of  the  contro- 
versy. If  a  sale  is  made  after  such  a  de- 
cree, the  defendant  not  having  appealed 
as  he  had  a  right  to  do,  the  rights  of  the 
purciiaser  would  not  be  overthrown  or 
invalidated  even  by  a  reversal  of  the  de- 
cree. Whiting  V.  Bank  of  United  States, 
IS  Pet.  6.  16.  10  L.  Ed.  33,  citing  Ray 
V.    Law.   3   Cranch   179,  2    L.    Ed.   404. 

In  First  Nat.  Bank  v.  Shedd,  121  U.  S. 
74,  30  L.  Ed.  877,  there  was  a  decree  of 
«ale  absolutely  and  without  reserve,  which 
could  be  carried  into  execution  at  once, 
and  when  a  purchaser  acquired  title  un- 
der it,  he  would  have  held  as  against  all 
the  parties  to  the  suit,  no  matter  what 
might  be  the  rulings  on  the  other  ques- 
tions in  the  case  which  were  reserved  for 
further  adjudication.  The  language  of  the 
decree,  as  shown  at  page  84,  was  to  the 
effect  "'that  the  whole  property  be  sold 
-as  an  entirety,     *     *     *     ji^d   that  upon  a 


confirmation  of  the  sale  the  purchaser  be 
entitled  to  a  conveyance  freed  and  dis- 
charged of  the  lien  of  the  mortgages,  re- 
ceiver's certificates,  costs,  expenses,  etc." 
Such  a  decree  was  surely  final  for  the  pur- 
poses of  an  appeal  within  the  rule  as 
stated  in  Forgay  v.  Conrad.  6  How.  201, 
12  L.  Ed.  404.  Burlington,  etc.,  R.  Co. 
V.  Simmons.  123  U.  S.  52,  55,  31  L.  Ed.  73. 

In  Central  Trust  Co.  v.  Grant  Locomo- 
tive Works,  135  U.  S.  207,  34  L.  Ed.  97, 
certain  decrees  were  set  aside  at  a  subse- 
quent term  of  the  court  of  its  own  motion. 
The  decrees  '"determined  the  ownership  of 
the  locomotives  and  the  right  to  their  pos- 
session; they  were  essential  to  the  opera- 
tion of  the  roads  by  the  receiver,  and 
should  be  purchased  by  him;  that  certain 
designated  amounts  should  be  paid  for 
the  rentals  and  the  purchase  price,  which 
amounts  were  made  a  charge  upon  the 
earnings,  *  *  *  and  that  the  amounts 
should  be  paid  by  the  receiver."  Appar- 
ently there  was  no  reference  at  all  to  a, 
master  for  an  accounting,  and  the  de- 
crees  were   held   to  be   final. 

An  order  of  the  circuit  court,  on  a  bill 
to  foreclose  a  mortgage,  ascertaining — in 
intended  execution  of'  a  mandate  from 
this  court — the  amount  of  interest  due  on 
the  mortgage,  directing  payment  within 
one  year,  and  providing  for  an  order  of 
sale  in  default  of  payment,  is  a  "decree** 
and  "a  final  decree."  so  far  as  that  any 
person  aggrieved  by  supposed  error  in 
finding  the  amount  of  interest,  or  in  th« 
court's  below  having  omitted  to  carry  out 
the  entire  mandate  of  this  court,  may  ap- 
peal. Appeal  is  a  proper  way  in  which  ts 
bring  the  matter  before  this  court.  Rail- 
road Co.  z\  Soutter.  2  Wall.  440,  17  L.  Ed. 
860.  citing  Perkins  v.  Fourniquet,  14  How. 
328,   330,    14   L.    Ed.    441. 

Compensation  to  trustees. — A  decree  in 
equity  foreclosing  a  mortgage,  and  allow- 
ing compensation  to  the  trustees  and  re- 
ceivers under  the  mortgage  for  their  serv- 
ices, is  final  in  its  nature.  Williams  w. 
Morgan,  111   U.  S.  684,  28  L.   Ed.   559. 

55.  Green  v.  Fisk,  103  U.  S.  518.  520,  26 
L.    Ed.  486. 

In  the  case  of  Whiting  v.  Bank  of 
United  States,  13  Pet.  6,  15,  10  L.  Ed.  33,  it 
was  held  that  a  decree  of  foreclosure  and 
sale  of  mortgaged  premises  was  a  final 
decree,  and  the  defendant  entitled  to  his 
appeal  without  waiting  for  the  return  and 
confirmation  of  the  sale  by  a  decretal  or- 
der. And  this  decision  is  placed  by  the 
court  upon  the  ground,  that  the  decree  of 
foreclosure    and    sale    was    final    upon    the 


948 


APPEAL  AND  ERROR. 


Matters  Distinct  from  General  Subject  of  Litigation. — Decrees  in  a  suit 
for  the  foreclosure  of  a  mortgage,  upon  matters  distinct  from  the  general  sub- 
ject of  litigation,  namely,  the  foreclosure  of  the  mortgage,  are  final  in  their  na- 
ture, and  therefore  not  subject  to  be  vacated  by  the  court  of  its  own  motion  at  a 
subsequent  term.^^ 

A  decree  in  a  foreclosure  suit,  fixing  the  compensation  to  be  paid  to 
the  trustees  under  a  mortgage  from  the  fund  realized  from  the  sale,  is  a  final 
decree  as  to  that  matter.^''' 

A  decree  upon  an  intervening  petition  in  a  suit  for  the  foreclosure  of  a 
mortgage,  in  respect  to  certain  cars  used  by  a  railroad  company  under  a  con- 
tract with  the  manufacturer,  is  final,  when  there  is  a  fund  in  court.^* 

(2)  Decree  in  Suit  to  Restrain  Foreclosure  of  MortgQ,ge. — A  decree  of  court 
refusing  to  grant  a  petition  by  an  assignee  in  bankruptcy  filed  to  set  aside  as 
fraudulent  conveyances  of  real  estate  of  the  debtor  made  before  the  bankruptcy 
and  a  mortgage  put  upon  the  same  by  the  owner  after  the  sale,  and  to  restrain  the 
foreclosure  of  the  mortgage,  is  final  for  the  purposes  of  an  appeal. ^^ 

(3)  Executoi-y  Process  in  Louisiana. — The  order  of  seizure  and  sale  called 
"executory  process,"  made  in  Louisiana  when  the  mortgage  "imports  a  confes- 
sion of  judgment,"  is  in  substance  a  decree  of  foreclosure  and  sale,  and  therefore 
a  "final  decree;"  especially  when  made  after  objections  have  been  made  and 
heard. ^^  On  the  other  hand,  an  order  made  in  the  circuit  court  of  the  United 
States  for  the  district  of  Louisiana,  in  executory  process,  without  previous  no- 
tice, for  the  seizure  and  sale  of  mortgaged  land  to  pay  the  mortgage  debt,  under 
which  the  sale  cannot  take  place  until  the  debtor  has  had  notice  and  opportunity 
to  interpose  objections,  must  be  considered  as  interlocutory  only  and  not  a  final 
decree,  and  the  appeal  will  be  dismissed  for  want  of  jurisdiction.^^ 


merits,  and  the  ulterior  proceedings  but 
a  mode  of  executing  the  original  decree. 
The  same  rule  of  construction  was  acted 
on  in  the  case  of  Michoud  v.  Girod,  4 
How.  503,  11  L.  Ed.  1076;  Forgay  v.  Con- 
rad, 6  How.  201,  203,  12  L.   Ed.  404. 

A  decree  for  the  sale  of  mortgaged 
premises  is  a  final  decree  from  which  an 
appeal  lies.  The  grounds  of  this  decision 
are  that  when  the  mortgage  is  foreclosed 
and  a  sale  ordered,  the  merits  of  the  con- 
troversy are  finally  settled  and  the  subse- 
quent proceedings  are  simply  a  means  of 
executing  the  decree.  Ray  v.  Law,  3 
Cranch  179,  2  L.  Ed.  404;  Whiting  r.  Bank 
of  United  States.  13  Pet.  6,  15,  10  L.  Ed. 
33;  Bronson  v.  Railroad  Co.,  2  Black  .524, 
17  L.  Ed.  359. 

56.  Matters  distinct  from  general  sub- 
ject of  litigation. — Central  Trust  Co.  v. 
Grant  Locomotive  Works.  135  U.  S. 
207,  34  L.  Ed.  97,  citing  McMicken  v. 
Perin,  20  How.  133,  15  L.  Ed.  857. 

57.  Williams  tv  Morgan,  111  U.  S.  684, 
28  L.  Ed.  559. 

58.  Fosdick  r.  Schall,  99  U.  S.  235,  25  L. 
Ed.   339. 

59.  Decree  in  suit  to  restrain  foreclosure 
of  mortgage. — Ex  parte  Norton,  108  U.  S. 
237,  27   L.   Ed.   709. 

Where  a  bill  is  filed  b}^  an  assignee  in 
bankruptcy  to  set  aside  the  proceedings 
for  the  foreclosure  of  the  mortgage,  and 
obtain  a  conveyance  of  the  mortgaged 
property,  but  the  court  refused  to  set 
aside  a  conveyance  but  ordered  the  sale 
to  go  on,  and  that  the  proceeds,  after  the 


mortgage  is  satisfied,  be  paid  to  the  as- 
signee, the  decree  is  final  and  appealable^ 
because  it  determines  every  question  in 
dispute  between  the  parties,  and  leaves 
nothing  to  be  done  but  to  complete  the 
sale  under  the  proceedings  in  the  state 
court  for  foreclosure,  and  hand  over  to 
the  assignee  the  surplus  money.  Ex  part 
Morton,   108   U.   S.  237,  27  L.   Ed.  709. 

60.  Executory  process  in  Louisiana. — 
:\larin  r.  Lalley.  17  Wall,  14.  21  L.  Ed. 
596,  citing  Ray  r.  Law,  3  Cranch  179,  180, 
2  L.  Ed.  404;  Whiting  r.  Bank  of 
United  States,  13  Pet.  6,  15,  10  L.  Ed.  33; 
Bronson  v.  Railroad  Co.,  2  Black  524,  17 
L.  Ed.  359. 

In  Louisiana,  upon  nonpayment  of  a 
mortgage  debt,  the  mortgage  creditor  may 
apply  to  a  judge  at  chambers  or  in  court, 
and  obtain  from  him  an  order  of  seizure 
and  sale,  when  the  mortgage  imports 
a  confession  of  judgment.  A  code  of 
practice  requires  a  three  days'  notice  to 
be  given  to  the  debtor,  and  the  judge  is 
required  to  examine  and  decide  whether 
the  instrument  unites  all  the  requisites- 
of  the  law  necessary  to  authorize  fhis 
summary  proceeding.  It  was  held,  that 
the  decision  of  the  judge  in  such  case 
is  a  judgment  or  decree,  and  an  appeal 
lies  from  it;  for  it  may  be  erroneously 
made  on  evidence  not  warranting  the  is- 
suing of  the  executory  process.  It  is  in 
substance  a  decree  of  foreclosure  and  sale. 
Marin  r.  Lalley,  17  Wall.  14,  21  L.  Ed. 
596. 

61.  Fleitas  z:  Richardson,  147  U.  S.  538, 


APPEAL  AXD  ERROR. 


949 


(A)  Limitations  of  General  Rule. — If,  however,  the  decree  of  foreclosure  and 
sale  leaves  the  amount  due  upon  the  debt  to  be  determined,  and  the  property  to 
be  sold,  ascertained  and  defined,  it  is  not  final.'^-  A  like  result  follows  if  it 
merely  determines  the  validity  of  the  mortgage,  and.  without  ordering  a  sale, 
directs  the  case  to  stand  continued  for  further  decree  upon  the  coming  in  of  the 
master's  report. ^^ 


37  L.  Ed.  272.  following  Levy  v.  Fitzpat- 
rick,  15  Pet.  167,  10  L.  Ed.  699.  and  distin- 
guishing Marin  v.  Lalley.  17  Wall.  14,  21 
L.   Ed.  596. 

The  mortgagees,  in  Louisiana,  filed  in 
the  circuit  court  their  petition,  stating 
the  nonpayr  ent  of  the  debt  due  on  their 
mortgage,  and  that,  by  the  laws  of  Louis- 
iana, the  mortgage  imports  a  confession 
of  judgment,  and  entitles  them  to  execu- 
tory process,  which  they  prayed  for. 
"Without  any  process  requiring  the  ap- 
pearance of  the  mortgagors,  one  of  whom 
resided  out  of  the  state,  the  judge  ordered 
the  executory  process  to  issue.  Two  of 
the  defendants  who  were  residents  in  the 
state,  prosecuted  a  writ  of  error  on  this  or- 
der to  the  supreme  court  of  the  United 
States.  Held,  that  the  order  for  execu- 
tory process  was  not  a  final  judgment  of 
the  circuit  court,  on  which  a  writ  of  error 
could  issue.  Levy  v.  Fitzpatrick,  15  Pet. 
167,  10  L.  Ed.  699.  distinguished  in  Marin 
•V.  Lalley,  17  Wall.  14.  18,  21  L.  Ed.  596. 
and  followed  in  Fleitas  r.  Richardson 
<No.   ].).  147  U.   S.  538.  37  L.   Ed.  272. 

62.  Limitations  of  general  rule. — Rail- 
road Co.  r.  Swasey,  23  Wall.  405.  22  L. 
Ed.  136;  Grant  v.  Ph(xnix  Ins.  Co..  106 
U.  S.  429,  27  L.  Ed.  237;  McGourkey  v. 
Toledo,  etc..  R.  Co..  146  U.  S.  536,  545, 
36   L.    Ed.   1079. 

In  Railroad  Co.  v.  Swasey,  23  Wall. 
405,  22  L.  Ed.  136,  it  was  held  that  "to 
justify  such  a  sale,  without  consent,  the 
amount  due  upon  the  debt  must  be  de- 
termined. *  *  *  Until  this  is  done  the 
rights  of  the  parties  are  not  all  settled. 
Final  process  for  the  collection  of  money 
cannot  issue  until  the  amount  to  be  paid 
or  collected  by  the  process,  if  not  paid, 
has  been  adjudged."  In  this  the  court  but 
followed  the  principle  acted  on  in  Bar- 
nard V.  Gibson,  7  How.  651.  12  L.  Ed. 
?57;  Crawford  v.  Points,  13  How.  11,  14 
L.  Ed.  29;  Humiston  v.  Stainthorp,  2 
Wall.  106,  17  L.  Ed.  905;  Grant  v.  Phoe- 
nix Ins.  Co.,  106  U.  S.  429,  431,  27  L.  Ed. 
1»37. 

A  decree  of  foreclosure  and  sale,  which 
leaves  the  property  to  be  sold  uniden- 
tified, and  the  amount  due  undetermined, 
and  refers  the  case  to  a  master  to  point 
out  the  property  and  to  fix  the  amount, 
is  not  a  final  decree.  Railroad  Co.  v. 
Swasey.   23  Wall.    405,   410.   22   L.    Ed.    136. 

A  decree  of  foreclosure  and  sale  is  not 
*'final"  in  the  sense  which  allows  an  ap- 
peal from  it  so  long  as  the  amount  due 
unon  the  debt  must  be  determined,  and 
the    property   to   be    sold    ascertained    and 


defined.  Hence,  a  decree  is  not  "final" 
in  such  sense,  where  the  court  by  an  in- 
terlocutory order  declares  that  certain 
shares  in  a  railroad  held  by  a  state,  are 
pledged  for  the  payment  of  certain  in- 
terest bearing  bonds  of  the  state  and  the 
interest  on  them;  and  that  the  plaintiff 
and  others  whom  he  represents,  as  hold- 
er.s  of  such  bonds,  are  entitled  to  have 
their  respective  proportions  of  the  stock, 
or  so  much  thereof  as  may  be  necessary, 
sold  in  order  to  pay  the  interest  which  is 
due  to  them;  and  orders  a  master  to  take 
an  account  of  such  unpaid  interest  and 
of  what  will  be  due  by  a  day  named,  and 
also  of  the  proportion  of  stock  that  may 
be  equitably  applicable  to  the  payment 
of  said  interest  found  due  to  each  plain- 
tiflf.  and  make  report  to  the  court.  And 
orders  further  that  unless  by  a  day  named 
it  be  made  to  appear  to  the  court  that 
the  state  has  levied  and  provided  for  the 
collection  of  a  tax  sufficient  to  pay,  or 
have  otherwise  secured  the  payment  of, 
its  arrears  of  interest,  then  so  much  of 
the  stock  of  the  state  in  the  road,  appor- 
tioned to  the  plaintiff  and  those  he  repre- 
sents as  may  be  necessary  to  pay  off  and 
discharge  said  arrears  of  interest,  shall  be 
sold  to  the  highest  bidcler  for  cash.  And 
after  giving  directions  as  to  the  manner 
in  which  a  sale  is  to  be  made,  at  the  end 
of  all  adds:  "And  this  cause  is  held  for 
further  directions."  This  is  but  an  in- 
terlocutory order  announcing  the  opin- 
ion which  the  court  has  formed  as  to  the 
rights  of  the  parties,  and  the  principles 
of  the  decree  it  would  finally  render,  leav- 
ing the  entry  of  the  final  decree  in  form 
to  be  made  when  the  amount  due  has  been 
ascertained  and  an  apportionment  of  the 
struck  made.  Railroad  Co.  v.  Swasey,  23 
Wall.  405,  22  L.  Ed.  136.  See  Porter  v. 
Pittsburg  Bessemer  Steel  Co.,  120  U,  S. 
649.   30   L.    Ed.   830. 

63.  Burlington,  etc.,  R.  Co.  v.  Simmons. 
123  U.  S.  52.  31  L.  Ed.  73;  Parsons  V. 
Robinson,  122  U.  S.  112,  30  L.  Ed.  1122; 
McGourkey  v.  Toledo,  etc.,  R.  Co.,  14fl 
U.  S.  536.  545,  36   L   Ed.  1079. 

A  decree  of  foreclosure  and  sale  which 
determines  the  validity  of  the  mortgage, 
but  without  orderine:  a  sale,  directs  the 
case  to  stand  continued  for  further  de- 
cree upon  the  cominsr  in  of  the  master's 
report.  '<;  not  final.  Burlington,  etc.,  R. 
Co.  V.  Simmons.  123  U.  S.  52.  31  L.  Ed. 
73,  --'istinguishing  Parsons  t'.  Robinson.  123 
U.  S.  112.  30  L.  Ed.  1122:  First  Xat.  Bank 
V.    Shedd.   121    U.    S.    74.   30    L.    Ed.    877. 

In   a  suit  for  the   foreclosure  of  certain 


I 


950 


APPEAL  AXD  ERROR. 


The  debtor  being  entitled  to  notice  and  hearing  before  an  actual  sale  of 
the  property,  it  would  seem,  upon  principle,  that  the  order  for  a  sale  must  be 
considered  as  interlocutory  only,  and  not  the  final  decree  in  the  case,  at  least  when 
the  debtor  does,  within  the  time  allowed  by  the  Code,  come  in  and  contest  the 
validity  of  the  proceedings.*^-^ 

i.  Order  Certifying  Finding  upon  Issue  to  Jury. — Where  an  issue  has  been  di- 
rected to  a  jury,  an  order  certifying  the  finding  of  the  jury  is  not  final  and  appeal- 
able.*'^ 


deeds  of  trust  in  the  nature  of  mortgages 
to  secure  the  payment  of  money,  the  de- 
cree does  not  order  a  sale  of  the  prop- 
erty. It  overrules  the  defense  of  the  ap- 
pellant as  set  forth  in  his  cross  bill,  and 
declares  that  the  appellee  is  the  holder 
and  owner  of  the  debt  secured  by  the 
deeds  of  trust,  but  refers  the  case  to  an 
auditor  to  ascertain  the  amount  due  upon 
the  debt,  the  amount  due  certain  judg- 
ment and  lien  creditors,  the  existence  and 
priorities  of  liens.  It  is  true  the  court 
finds  the  amount  due  the  appellee  largely 
exceeds  the  value  of  the  property,  but 
this  is  only  a  foundation  for  the  order 
appointing  the  receiver.  It  was  held  that 
such  a  decree  is  not  final  and  appealable 
within  the  meaning  of  the  rule  that  a 
decree  to  be  final  must  terminate  the  liti- 
gation of  the  parties  on  the  ments  of  the 
case,  so  that  if  there  should  be  i.n  affirm- 
ance here,  the  court  below  would  have 
nothing  to  do  but  to  execute  the  decree 
as  it  was  already  rendered.  Grant  v. 
Phcenix  Ins.  Co.,  106  U.  S.  429,  27  L.  Ed. 
237,  distinguishing  Forgay  v.  Conrad,  6 
How-.   201,    12   L.    Ed.  404. 

Where  A.  agreed  to  sell  and  convey  to 

B.  a  tract  of  land  subject  to  an  incum- 
brance owned  by  C,  upon  an  agreement 
that  B.  would  assume  C.'s  debts,  and  B. 
not  understanding  his  agreement  to  be 
such,  brought  a  suit  for   reformation,  and 

C.  on  his  own  application  is  made  a  party 
to  the  suit  and  files  a  cross  bill  for  a  fore- 
closure of  the  incumbrance,  a  decree  dis- 
missing the  suit  for  reformation  but  di- 
recting a  foreclosure  against  B.  is  final 
as  against  and  may  be  appealed  from  by 
him.  Elliott  V.  Sackett,  108  U.  S.  132,  27 
L.   Ed.   678. 

Proceedings  were  commenced  to  fore- 
close a  railroad  mortgage  in  which  the 
trustee  of  the  mortgage,  the  railroad  com- 
pany, and  others  were  respondents,  and 
one  bond  holder  original,  and  another 
by  intervention,  were  complainants.  A 
decree  was  entered  that  the  complainants 
were  entitled  to  have  a  sale  of  the  mort- 
gaged property  upon  a  failure  of  the  coin- 
p?ny  to  pay  an  amount  to  be  fixed  by 
reference  to  a  master  within  a  time  to  be 
named  by  the  court,  and  an  order  of 
reference  was  made.  The  master  reported, 
and  a  decree  of  foreclosure  was  entered  in 
which  the  trustee  was  directed  to  sell  the 
mortgaged  property,  "at  such  time  and 
place  and  in  such  manner  as  the  court 
may    hereafter    determine;"    and    a    refer- 


ence was  ordered  to  a  master  to  report 
the  extent  and  amount  of  the  prior  liens 
on  the  mortgaged  property,  "full  and  de- 
tailed statements"  of  the  property  "sub 
ject  to  the  lien  of  said  general  mortgage, 
and  "what  liens,  if  any,  are  upon  the  sev- 
eral properties"  of  the  railroad  company, 
"junior  to  said  general  mortgage  and  the 
order  of  their  priority."  Held,  that  this 
was  not  a  final  decree,  which  terminated 
the  litigation  between  the  parties  on  the 
merits  of  the  case,  and  that  the  appeal 
must  be  dismissed.  "That  'a  decree  of 
sale  in  a  foreclosure  suit,  which  settles 
all  the  rights  of  the  parties  and  leaves 
nothing  to  be  done  but  to  make  the  sale 
and  pay  out  the  proceeds,  is  a  final  decree 
for  the  purposes  of  an  appeal'  is  no  longer 
an  open  question  in  this  court.  Grant  v. 
Phcenix  Ins.  Co.,  106  U.  S.  429,  431,  27 
L.  Ed.  237,  and  cases  there  cited.  Here, 
however,  there  is  as  yet  no  decree  of 
sale."  Parsons  v.  Robinson,  122  U.  S. 
112,  30  L.  Ed.  1122.  explained  in  Burl- 
ington, etc.,  R.  Co.  V.  Simmons,  123  U. 
S    52,  31   L.   Ed.  73. 

64.  McGourkey  z:  Toledo,  etc.,  R.  Co.,. 
146  U.  S.  536.  545,  547.  549,  36  L.  Ed. 
1079;  Fleitas  v.  Richardson,  147  U.  S.  538, 
545,  37  L.    Ed.  272. 

In  executory  process,  according  to  the 
Civil  Code  of  Louisiana,  in  the  circuit 
court  of  the  United  States,  an  order, 
made  without  previous  notice,  for  the 
seizure  and  sale  of  mortgaged  land  to 
pay  the  mortgage  debt,  under  which  the 
sale  cannot  take  place  until  the  debtor 
has  had  notice  and  opportunity  to  inter- 
pose objections,  is  not,  at  least  when 
he  does  interpose  within  the  time  allowed, 
a  final  decree,  from  which  an  appeal  lies 
to  this  court.  Fleitas  v.  Richardson,  14T' 
U.   S.   538,   37   L.    Ed.  272. 

65.  Order  certifying  finding  upon  issue 
to  jury. — Van  Ness  z'.  Van  Ness.  6  How. 
62.  12  L.  Ed.  344';  Brown  v.  Wiley,  4 
Wall.  165,  18  L.  Ed.  384.  These  cases  re- 
viewed at  great  length  in  Ormsby  v. 
Webb,  134  U.  S.  47,  33  L.  Ed.  805. 

Where  the  orphans'  court  directed  an 
issue  to  be  sent  for  trial  in  the  circuit 
court,  which  issue  was,  "whether  the  pe- 
titioner was  the  widow  of  the  deceased 
or  not,"  and  the  circuit  court  proceeded 
to  try  the  issue,  and  the  jury,  under  the 
instructions  of  the  court,  found  that,  the 
petitioner  was  ni^t  the  widow,  excepti-^r- 
to  these  instructions  cannot  be  reviewed 
by  this  court  on  a  writ  of  error.     The  cer- 


APPEAL  AND  ERROR. 


951 


j.  Judgments,  Orders  and  Decrees  of  Affirmance. — In  General. — A  decree  of 
affirmance,  without  taxation  of  costs  and  without  specifying  the  sum  for  which 
it  is  rendered,  is  not  to  he  regarded  as  a  final  decree.^" 

Error  to  State  Court. — But  where  the  judgment  in  an  inferior  state  court  is 
final,  a  judgment  in  the  court  of  last  resort  in  the  state  affirming  such  judgment 
is  also  final.^'''  It  has  long  been  settled  that  if  a  cause  cannot  be  taken  to  the 
highest  court  of  a  state,  except  by  leave  of  the  court  itself,  a  refusal  of  the  court 
upon  proper  application  made  to  grant  the  leave,  is  equivalent  to  a  judgment  of 


tificate  of  the  finding  of  the  jury,  trans- 
mitted by  the  circuit  court  to  the  orphans' 
court,  was  not  such  a  final  judgment,  or- 
der, or  decree  as  is  included  within  the 
statute.  After  the  reception  of  the  cer- 
tificate, the  orphans'  court  had  still  to 
pass  a  decree  in  order  to  settle  the  rights 
of  the  parties.  Van  Ness  v.  Van  Xess,  6 
How.  62,  12  L.  Ed.  344. 

On  a  plenary  proceeding,  if  either  party 
shall  require  it,  the  court  will  direct  an 
issue  or  issues  to  be  made  up,  and  sent 
to  a  court  of  law  to  be  tried;  and  any 
person  conceiving  himself  aggrieved  b}' 
any  judgment,  decree,  decision  or  order, 
may  appeal  to  the  court  of  chancery,  or 
to  a  court  of  law;  and  in  Maryland,  the 
decision  of  the  court  to  which  the  appeal 
is  made  is  final.  Nicholls  v.  Hodges,  1 
Pet.  562,  7  L.   Ed.  263. 

The  certificate  of  the  finding  of  a  jury 
on  certain  issues  involvitig  paternity, 
marriage,  and  legitimacy,  sent  from  the 
orphans'  court  to  the  supreme  court  of 
the  district,  which  certificate  of  finding  is 
transmitted  by  the  supreme  court  to  the 
orphans'  court,  is  not  such  a  final  judg- 
ment, order,  or  decree  as  this  court  can 
re-examine  on  error.  Nor  where  the  find- 
ing of  the  jury  was  at  special  term  held 
by  a  single  judge  of  the  supreme  court 
of  the  District  of  Columbia,  under  instruc- 
tions by  such  judge,  and  a  motion  for  a 
new  trial  on  exception  to  such  instruc- 
tions and  other  grounds  has  been  heard 
at  general  term  by  all  the  judges  and 
overruled,  is  such  overruling  a  final  judg- 
ment, order,  or  decree,  reviewable  on 
writ  of  error  by  this  court.  Brown  v. 
Wiley.  4  Wall.  165.  18  L.  Ed.  384,  follow- 
ing Van  Ness  v.  Van  Ness,  6  How.  62, 
12    L.    Ed.    344. 

66.  Judgments,  orders  and  decrees  of 
affirmance  in  general. — Wlieeler  v.  Har- 
ris. 13  Wall.  51,   56.  20   L.    Ed.   531. 

This  court  will  not  take  jurisdiction  of 
a  judgment  shown  by  the  context  of  the 
record  to  be  but  an  order  affirming  a 
refusal  of  a  court  below  to  grant  a  new 
trial;  even  though  the  language  of  the 
record  of  affirmance  brought  here  by  the 
writ  of  error  purports  to  affirm  generally 
the  judgment  of  a  court  inferior  to  the 
affirming  court,  and  the  onlj'  judgment, 
in  strict  language,  in  the  record  of  such 
inferior  court,  is  a  general  judgment. 
Sparrow  v.  Strong,  4  Wall.  584,  18  h.  Ed. 
410. 


An  order  of  the  circuit  court  merely 
affirming  the  decree  of  the  district  court, 
and  nothing  more,  is  not  such  a  decree 
as  the  circuit  court  should  render,  and  is 
not  a  final  decree  from  which  an  appeal 
lies  to  this  court.  "An  order  affirming 
a  decree  in  another  court  is  neither  in 
express  terms  nor  by  necessary  implica- 
tion a  judgment  or  decree  for  the  amount 
of  the  judgment  or  decree  in  that  court. "^ 
The   Lucile,   19  Wall.   73,  22   L.    Ed.   64. 

On  appeal  to  the  circuit  court  from  a 
decree  in  the  district  court  for  the  pay- 
ment of  money,  the  circuit  court  affirmed 
the  judgment  of  the  district  court  with 
costs  to  be  taxed,  from  which  affirm- 
ance the  respondent  took  an  appeal  here. 
After  the  appeal  here,  another  decree  was 
rendered  by  the  circuit  court,  in  which, 
after  reciting  .the  former  decree  and  taxa- 
tion of  costs,  it  was  decreed  in  form  that 
the  appellee  hare  judgment  against  the 
appellant  for  the  amount  decreed,  tcj- 
gether  with  costs,  amounting  to  the  sum 
of  $5,444.  On  motion  to  dismiss  this  last 
appeal,  on  the  ground  of  a  former  one 
pending  in  the  same  case,  held,  that  un- 
der the  circumstances,  the  first  decree 
was  not  a  final  decree;  and  that  it  wa-» 
the  first  appeal  and  not  the  second  which 
should  be  dismissed.  Wheeler  v.  Harris, 
13   Wall.   51,   20   L.    Ed.   .-.31. 

67.  Error  to  state  court. — O'Dowd  v. 
Russell,    14   Wall.    402.   20   L.    Ed.    857. 

Where  decree  of  the  inferior  state 
court  dismissing  the  complainants'  bill, 
was  "a  final  decree  or  judgment;"  and 
that  decree  having  been  affirmed  by  the 
court  of  appeals  bj'  their  refusal  to  en- 
tertain an  appeal;  and.  moreover,  the 
record  showing  that  "there  was  drawn  in 
question  the  validity  of  a  statute  and  au- 
thority exercised  under  the  state  of  Vir- 
ginia," "on  the  ground  of  their  being 
repugnant"  to  that  clause  of  "the  con- 
stitution of  the  United  States"  which  for- 
bids a  state  to  pass  "any  law  impairing 
the  obligation  of  contracts;"  and  'the  de- 
cision of  the  court  being  in  favor  of  their 
validity,"  there  can  be  no  doubt  of  the 
jurisdiction  of  thi.s  court  to  review  the 
decision  of  the  state  court.  Richmond, 
etc.,  R.  Co.  z\  Louisa  R.  Co.,  13  How.  71, 
80,  14  L.  Ed.  55.  cited  in  Gregory  z-.  Mc- 
Veigh, 23  Wall.  294,  306,  23  L.  Ed.  156; 
Williams  z'.  Bruffv,  102  U.  S.  248,  254,  26 
L.   Ed.  135. 


952 


APPEAL  AND  ERROR. 


affirmance,  and  is  such  a  final  judgment  as  may  be  made  the  basis  of  proceedings 
under  the  appellate  jurisdiction  of  this  court.*'*' 

k.  DecisioiiiS  with  Respect  to  Reference — (1)  Decree  Ordering  a  Reference. — 
Statement  of  General  Rule, — In  accordance  with  the  well-settled  rule  that  a 
decree  which  does  not  dispose  of  the  entire  controversy  between  the  parties  is  not 
fenal,*^^  it  is  uniformly  held,  that  if  a  superior  court  makes  a  decree  fixing  the 
liability  and  rights  of  the  parties,  and  refers  the  case  to  a  master  or  subordinate 
court  for  a  judicial  purpose,  such,  for  instance,  as  a  statement  of  accounts  upon 
which  a  further  decree  is  to  be  entered,  the  decree  is  not  final.'^"     In  short,  it  may 


68.  Richmond,  etc..  R.  Co.  v.  Louisa  R. 
Co.,  13  How.  71.  80,  14  L.  Ed.  55;  Greg- 
wry  V.  McVeigh,  23  Wall.  294,  606.  23  L. 
Ed.  156. 

69.  See  ante.  "Statement  of  General 
Rules   or   Tests,"   IV,   C,   3. 

70.  Craighead  v.  Wilson,  18  How.  199, 
15  L.  Ed.  332;  Beebe  v.  Russell,  19  How. 
283,  15  L.  Ed.  668;  Keystone  Iron  Co.  v. 
Martin.  132  U.  S.  91,  33  L.  Ed.  275;  Lodge 
V.  Twell,  135  U.  S.  233,  34  L.  Ed.  153; 
McGourkey  v.  Toledo,  etc.,  R.  Co.,  146 
U.  S.  536.  36  L.  Ed.  1079;  Union  Life  Ins. 
Co.  V.  Kirchoflf.  IGO  U.  S.  374,  40  L.  Ed. 
461;  Hollander  v.  Fechheimer,  162  U.  S. 
326,  40  L.  Ed.  985;  California  Nat.  Bank  v. 
Stateler,  171  U.  S.  447,  449,  43  L.  Ed.  233; 
Green  v.  Fisk,  103  U.  S.  518,  26  L.  Ed. 
486;  Latta  v.  Kilbourn.  150  U.  S.  524,  539, 
37  L.  Ed.  1169;  Defer  z-.  De  May,  168  U. 
S.  703,  42  L.  Ed.  1211;  Burlington,  etc., 
R.  Co.  V.  Simmons,  123  U.  S.  52.  31  L. 
Ed.  73;  Grafton  v.  Paine,  168  U.  S.  704, 
42  L.  Ed.  1212;  Darden  v.  Arkansas,  200 
U.  S.  615,  50  L.  Ed.  621;  Perkins  v. 
Fourniquet,  6  How.  206,  12  L.  Ed.  406; 
Craighead  v.  Wilson,  18  How.  199,  200, 
15  L.  Ed.  332;  West  v.  Smith.  8  How. 
402,  413,  12  L.  Ed.  1130;  United  States 
V.  Girault,  11  How.  22,  28,  13  L.  Ed.  587; 
Milwaukee,  etc.,  R.  Co.  v.  Soutter,  2  Wall. 
609,    17    L.    Ed.    886. 

In  Crawford  v.  Points,  13  How.  11,  14 
L.  Ed.  29,  a  decree  was  made  directing  an 
account.  An  appeal  was  taken  before  the 
accounting.  On  a  motion  to  dismiss  the 
appeal,  the  court  say:  "The  decree  is  not 
final.  *  *  *  An  account  is  directed  to  be 
taken  of  the  rents  and  profits,  etc.  While 
these  things  remain  to  be  done,  the  de- 
cree is  not  final,  and  no  appeal  from  it 
would  lie  to  this  court."  Humiston  v. 
Stainthorp.  2  Wall.  106,  108,  17  L.  Ed. 
905,  cited  and  approved  in  Ex  parte  Na- 
tional Enameling  Co..  201  U.  S.  56,  50  L- 
Ed.    707. 

A  decree  is  understood  to  be  interlocu- 
tory whenever  an  inquiry  as  to  matter  of 
law  or  fact  is  directed,  preparatory  to  a 
final  decision.  1  New.  322.  And  we  find 
it  stated  in  the  second  volume  of  Perkins' 
Daniel's  Chancery  Practice,  1193  "that 
the  inost  usual  ground  for  not  making  a 
perfect  decree  in  the  first  instance,  is  the 
necessity  which  frequently  exists,  for  a 
reference  to  a  master  of  the  court,  to 
make   inquiries,   or   take   accounts,   or   sell 


estates,  and  adjust  other  matters  which 
are  necessary  to  be  disposed  of,  before 
a  complete  decision  can  be  come  to  upon 
the  b^dbject  matter  of  the  suit."  Beebe 
V.   Russell,   19   How.   283,   15   L.    Ed.   668. 

"The  reference  of  a  case  to  a  master, 
to  take  an  account  upon  evidence,  and 
for  the  examination  of  the  parties,  and 
to  make  or  not  to  make  allowances  af- 
fecting the  rights  of  the  parties,  and  to 
report  his  results  to  the  court,  is  not  a 
final  decree;  because  his  report  is  sub- 
ject to  exceptions  from  either  side,  which 
must  be  brought  to  the  notice  of  the 
court  before  it  can  be  available.  It  can 
only  be  made  so  by  the  courts  overruling 
the  exceptiorLS,  or  by  an  order  confirm- 
ing the  report,  with  a  final  decree  for  its 
appropriation  and  payment.  We  have 
just  said  the  decree  is  final  when  minis- 
terial duties  are  only  to  be  done  to  as- 
certain a  sum  due."  Beebe  v.  Russell, 
19    How.    283,   286,    15    L.    Ed.    668. 

A  decree  in  favor  of  a  plaintiff  for  title 
and  possession  of  land  and  improvements, 
and  ordering  a  reference  to  a  master,  is 
not  a  final,  appealable  decree.  Grant  v. 
Phoenix  Ins.  Co.,  106  U.  S.  429,  27  L.  Ed. 
237. 

A  decree  referring  a  cause  to  a  master  to 
take  an  account,  upon  evidence  and  ex- 
amination of  parties,  and  to  decide  al- 
lowances, and  report  to  the  court,  is  not 
final,  and  this  court  has  no  jurisdiction 
of  an  appeal  therefrom.  The  whole  con- 
troversy has  not  been  determined.  Whit- 
ing V.  Bank  of  United  States,  13  Pet.  6, 
10  L.  Ed.  33;  Michoud  v.  Girod,  4  How. 
5C3,  11  L.  Ed.  1076;  Forgay  v.  Conrad,  6 
How.  201.  202,  12  L.  Ed.  401;  Beebe  v. 
Russell,  19  How.  283,  15  L.  Ed.  668,  re- 
affirmed in  Farrelly  v.  Woodfolk,  19  How. 
288,    15    L.    Ed.    670. 

If  the  main  purpose  of  the  bill  is  to 
obtain  an  account  between  the  parties, 
and  a  recovery  of  the  balance  that  shall 
be  found  due.  a  decree  that  the  complain- 
ant is  entitled  to  the  accounting,  and  that 
the  case  be  referred  to  a  master  to  state 
the  account,  is  not  final.  Latta  v.  Kil- 
bourn,  150  U.   S.   524,   539,   37   L.    Ed.    1169. 

Where  the  basis  of  the  decree,  embrac- 
ing the  equities  in  the  bill,  is  found,  but 
the  distribution  amono."  the  parties  in  in- 
terest depends  upon  facts  to  be  reported 
by  the  master,  until  the  court  shall  have 
acted   upon   his    report   and    sanctioned   it, 


APPEAL  AND  ERROR. 


953 


be  iaid  down  as  a  general  rule  that  if  the  court  makes,  a  decree  fixing  the  rights 
and  liabilities  of  the  parties,  and  thereupon  refers  the  case  to  a  master  for  a  min- 
:sterial  purpose  only,  and  no  further  proceedings  in  court  are  contemplated,  the 


tliC  decree  is  not  final.  Craighead  v.  Wil- 
son,   IS    How.    199.    15   L.    Ed.   332. 

"An  account  is  directed  to  be  taken  of 
the  rents  and  profits  of  certain  lands, 
with  an  option  to  the  appellant  to  pur- 
chase them  at  a  price  named  in  the  de- 
cree; and  in  that  event  he  is  to  be  dis- 
charged from  the  account  for  rents  and 
protits.  And.  moreover,  he  is  permitted 
to  retain  possession  of  certain  slaves,  un- 
til it  should  be  ascertained  whether  the 
other  assets  of  the  bankrupt's  estate 
would  not  be  sufficient  to  pay  his  debts; 
and  an  order  to  account  for  their  hire  and 
the  protits  of  their  labor  is  suspended  in 
the  meantime.  While  these  things  re- 
main to  be  done  the  decree  is  not  final, 
ajid  no  appeal  from  it  would  lie  to  this 
court,  even  if  it  had  been  the  decree  of 
a  circuit  court  eriercising  its  ordinary 
equity  jurisdiction."  Crawford  v.  Points, 
13    How.   11,   14   L.   Ed.  29. 

Trespass  for  removal  of  minerals  and 
account. — In  the  case  of  the  Keystone 
Iron  Co.  V.  Martin,  132  U.  S.  91,  33  L- 
Ed.  275,  the  bill  was  in  the  nature  of  an 
action  of  trespass  for  removing  min- 
erals from  the  plaintiff's  land,  and  prayed 
for  an  injunction  restraining  the  defend- 
ant from  the  commission  of  further  tres- 
passes, and  for  an  account  of  the  quan- 
tity and  value  of  the  ore  taken.  The 
court  made  a  decree  perpetually  enjom- 
ing  the  defendant  from  entering  upon  or 
removing  minerals  from  the  land,  and 
further  ordering  an  account,  etc.  This 
was  held  to  be  not  a  final  decree  from 
which  an  appeal  could  be  taken  to  this 
court,  because  it  did  not  dispose  of  the 
entire  controversy  between  the  parties. 
This  case  was  referred  to  with  approval 
in  Lodge  v.  Twell.  135  U.  S.  232,  34  L. 
Ed.    153. 

A  decree  cf  the  circuit  court,  setting 
aside  a  deed  made  by  a  bankrupt  before 
his  bankruptcy;  directing  the  trustees  un- 
der the  deed  to  deliver  over  to  the  as- 
signee in  bankruptcy  all  the  property  re- 
maining undisposed  of  in  their  hands,  but 
without  deciding  how  far  the  trustees 
might  be  liable  to  the  assignee  for  the 
proceeds  of  sales  previously  made  and 
paid  away  to  the  creditors;  directing  an 
account  to  be  taken  of  these  last-men- 
tioned sums  in  order  to  a  final  decree,  is 
not  such  a  final  decree  as  can  be  ap- 
pealed from  to  this  court.  "This  decree 
is  final  only  as  to  the  trust  deed.  All  the 
matters  arising  under  the  trust  are  re- 
ferred to  a  commissioner  for  a  statement 
of  the  account,  to  enable  the  court  to  en- 
ter 1  final  decree.  There  is  no  sale  or 
change  of  the  property  ordered  which  can 
operate  injuriously  to  the  parties."  Pul- 
liam   V.   Christian,"  6   How.   209,   12   L.   Ed. 


408,  followed  in  Craighead  i'.  Wilson,  18 
How.    199,   201.    15    L.    Ed    332. 

Account  of  rolling  stock  secured  by 
railroad  mortgage. — In  McGourkey  v. 
Toledo,  etc.,  R.  Co.,  146  U.  S.  536.  546, 
3(;  L.  Ed.  1079,  McGourkey  petitioned  to 
be  allowed  to  intervene  in  a  suit  to  fore- 
close a  mortgage  on  the  rolling  stock  of 
a  railroad,  the  petitioner  prayed  for  four 
distinct  reliefs:  1.  That  the  receiver  per- 
form all  the  covenants  of  the  lease,  and 
pay  all  sums  due,  etc.;  2.  Or  that  he  be 
directed  to  deliver  to  petitioner  the  roll- 
ing stock  in  order  that  the  same  might 
be  sold;  3.  That  he  be  directed  to  file 
a  statement  of  the  number  of  miles  run, 
and  of  the  sums  received  for  the  use  of 
such  rolling  stock;  4.  That  it  be  referred 
to  an  examiner  to  take  testimony  and  re- 
port the  value  of  the  use  of  such  rolling 
stock  while  in  custody  of  the  receiver, 
and  that  the  receiver  be  directed  to  pay 
the  amount  justly  due,  etc.  The  decree 
followed  the  general  terms  of  the  peti- 
tion by  ordering  the  rolling  stock  claimed 
to  be  delivered  to  McGourkey,  and  re- 
ferring the  case  to  a  special  master  to 
determine  the  rental  of  the  same  while 
used  by  the  receiver;  the  value  of  the  roll- 
ing stock  over  and  above  the  sums  paid 
by  the  receiver  to  the  petitioner  while 
the  same  was  in  the  custody  of  the  re- 
ceiver; the  number  of  miles  run  by  the  re- 
ceiver; the  money  received  for  the  use  of 
the  same  by  other  roads,  the  loss,  dam- 
age, and  destruction  to  the  same  while  in 
the  custody  of  the  receiver;  and  also  to 
"determine  and  report  upon  all  questions 
and  matters  of  difference  between  said 
receiver  and  said  McGourkey,  growing 
out  of  the  use  and  restoration  of  said  cars 
and  locomotives."  Held,  not  a  final  de- 
cree although  the  court  granted  the  prayer 
of  the  petitioner,  and  turned  the  property 
over  to  him,  because  of  the  reference  to 
a  master  for  an  accounting.  The  court 
said:  "While  it  directed  the  surrender  of 
the  rolling  stock  in  question  to  the  pe- 
titioner, it  did  not  purport  to  pass  upon 
his  >  title  to  the  same,  and  referred  the 
case  to  a  master,  in  accovdrnce  with  the 
praver  of  the  bill,  to  take  an  account  not 
only  of  rents  and  profits  and  of  damage 
to  the  rolling  stock,  but  of  'all  questions 
and  matters  of  difference'  between  the  re- 
ceiver and  the  petitioner  growing  out  of 
the  use  and  restoration  of  the  same.'  This 
decree  could  not  be  said  to  be  a  com- 
plete decision  of  the  matter.^  in  contro- 
versy, or  to  leave  ministerial  duties  only 
to  be  performed,  or  to  direct  an  account- 
ing merely  as  an  incident  to  the  relief 
prpved    fnr   in    the    bill." 

An  order  or  decree  in  a  patent  cause, 
whether    upon   preliminary   application    or 


954 


AFFEAL  AXU  EKKOK- 


decree  is  final;  but  if  it  refers  the  case  to  him  for  a  judicial  purpose,  as  to  state 
an  account  between  the  parties  upon  \vbich  a  further  decree  is  to  be  entered,  the 
decree  is  not  final.' ^ 

Rule  in  Forgay  v.  Conrad. — The  only  case  in  this  court  which  seems  to  an- 
nounce a  rule  in  conflict  with  this,  is  Forgay  v.  Conrad.  But  this  ruling  has  al- 
ways been  regarded  as  unsatisfactory  and  the  court  has  attempted  in  many  cases 
to  distinguish,  and  explain  it,  some  of  which  are  set  out  in  the  notes.' ^ 


upon  final  hearing,  granting  an  injunc- 
tion and  referring  the  cause  to  a  master 
for  an  account  of  profits  and  damages, 
was  interlocutory  only,  and  not  final,  and, 
therefore,  not  reviewable  on  appeal  be- 
fore the  final  decree  in  the  cause.  Acts 
of  September  24,  1789.  c.  20,  §§  13,  23, 
1  Stat  81,  84;  March  .3.  1803,  c.  40,  2 
Stat.  244;  Rev.  Stat.,  §§  691,  692,  699. 
701;  Forgay  v.  Conrad.  6  How.  201,  20*, 
12  L.  Ed.  404;  Barnard  v.  Gibson,  7  Howr. 
651,  12  L.  Ed.  857;  Humiston  v.  Stain- 
fhorp.  2  Wall.  106,  17  L.  Ed.  90.5;  Key- 
stone Iron  Co.  -c'.  Martin.  132  U.  S.  91, 
33  L.  Ed.  275;  McGourkey  v.  Toledo,  etc., 
R.  Co.,  146  U.  S.  536,  545.  36  L.  Ed.  1079; 
American  Construction  Co.  v.  Jackson- 
ville, etc..  R.  Co.,  148  U.  S.  372,  378,  37 
L.  Ed.  486;  Smith  v.  Vulvan  Iron  Works, 
165   U.   S.   518.   524,  41    L.   Ed.   810. 

A  decree  in  chancery,  awarding  to  a 
patentee  a  permanent  injunction,  and  for 
an  account  of  gains  and  profits,  and  that 
the  cause  be  referred  to  a  master  to  take 
and  state  the  amount,  and  to  report  to 
the  court,  is  not  a  final  decree,  witliin 
the  meaning  of  the  act  of  congress  al- 
lov/ing  an  appeal  on  a  final  decree  to  this 
court.  Humiston  v.  Stainthorp,  2  Wall. 
106,  17  L.  Ed.  905,  citing  The  Palmyra. 
10  Wheat.  502,  6  L.  Ed.  376;  Barnard  v. 
Gibson,  7  How.  651,  12  L.  Ed.  857; 
Crawford  v.  Points,  13  How.  11,  14  L. 
Ed.  29;  Craighead  v.  Wilson,  18  How. 
199,  15  L.  Ed.  332;  Beebe  v.  Russell,  19 
How.    283,    15    L.    Ed.    668. 

Where  a  decree  in  chancery  establishes 
the  validity  of  a  patent  and  refers  the 
matters  to  a  master  to  ascertain  the 
amount  of  damages,  and  in  the  meantime 
the  bill  is  not  dismissed,  nor  is  there  a 
decree  for  costs,  the  decree  is  not  a  final 
one,  from  which  an  appeal  will  lie  to  this 
court,  although  there  is  a  perpetual  in- 
junction granted.  Barnard  v.  Gibson,  7 
How.  651,  12  L.  Ed.  857,  approve3  in 
Keystone  Iron  Co.  v.  Martm,  132  U.  S. 
91,  95.  33  L.  Ed.  275;  McGourkey  v. 
Toledo,  etc..  R.  Co.,  146  U.  S.  536,  545, 
36  L.  Ed.  1079;  Humiston  v.  Stainthorp, 
2  Wall.  106.  17  L.   Ed.  905. 

To  ascertain  damages  from  infringe- 
ment of  patent. — Upon  suit  brought  by 
plaintiff  upon  a  single  patent,  in  whicTi 
there  were  twelve  claims,  the  circuit  court 
found  that  three  of  the  claims  were  invalid 
and  nine  valid,  of  which  five  had  been  in- 
fringed. Reference  was  made  to  a  master 
to  report  the  amount  of  damages  and  the 
bill  was  dismissed  as  to  the  claims  found 
invalid  and  not  infringed.     Defendants  ap- 


pealed from  the  decree  and  plaintiffs  also 
filed  cross  appeal  assigning  as  errors  the 
rulings  adverse  to  them.  The  cross  ap- 
peal was  dismissed  by  the  circuit  court  of 
appeals.  Petition  for  mandamus  to  com- 
pel that  court  to  take  jurisdiction  of  the 
cross  appeal  was  denied  and  it  was  held 
that  the  decree  was  interlocutory  and  not 
final.  Ex  parte  National  Enameling,  etc.. 
Co..  201  U.  S.  156,  50  L.  Ed.  707.  reaffirmed 
in  Ex  parte  Automatic  Switch  Co.,  201  U.  S. 
166.  50  L.  Ed.  710,  citing  Barnard  v.  Gib- 
son, 7  How.  651.  12  L.  Ed.  857;  Humiston 
7'.  Stainthorp.  2 'Wall.  106,  17  L.  Ed.  905; 
Estey  V.  Burdett.  109  U.  S.  633.  637,  27 
L.  Ed.  1058;  McGourkey  v.  Toledo,  etc., 
R.  Co.,  146  U.  S.  536,  36  L.  Ed.  1079; 
Hohorst  V.  Packet  Co.,  148  U.  S.  262,  37 
L.  Ed.  443;  Smith  v.  Vulcan  Iron  Works. 
165  U.  S.  518,  41  L.  Ed.  810;  Forgay  v. 
Conrad,  6  How.   201.  205,  12   L.   Ed.  404. 

Where  a  prayer  for  partition  of  real 
property  is  allowed,  and  the  case  is 
referred  to  a  master  to  proceed  to  a 
partition  according  to  law,  under  direction 
of  the  court,  such  decree  is  not  final  and 
appealable.  A  decree  cannot  be  said  to 
be  final  until  the  court  has  completed  its 
adjudication  of  the  cause,  and  here  the 
court  must  still  act  judicially  in  making 
the  partition  as  ordered.  Green  i'.  Fisk, 
103   U.    S.    518,   519,   26    L.    Ed.   486. 

A  motion  to  dismiss  an  appeal  in  a 
partition  suit,  because  the  "lecree  appealed 
from  is  not  final,  will  be  allowed,  where 
the  decree  appealed  from  simply  adjudges 
that  the  appellees  are  the  owners  each  of 
one  eighth  of  the  property,  and  refers 
the  matter  to  a  master  to  proceed  to  a 
partition  according  to  law.  under  the  di- 
rections of  the  court.  Green  f.  Fisk,  154 
U.    S.    668,    26    L.    Ed.    486. 

Where  the  circuit  court  decreed  that 
the  complainants  were  entitled  to  two- 
sevenths  of  certain  property,  and  referred 
the  matter  to  a  master  in  chancery  to 
take  and  report  an  account  of  it,  and  then 
reversed  all  other  matters  in  controversy 
between  the  parties  until  the  coming  m 
of  the  master's  report,  this  was  not  such 
a  final  decree  as  can  be  appealed  from 
to  this  court.  Perkins  v.  Fourniquet,  14 
How.    206.    14    L.    Ed.    441. 

71.  Latta  v.  Kilbourn,  150  U.  S.  524,  539, 
37  L.  Ed.  1169,  citing  McGourkey  v. 
Toledo,  etc..  R.  Co.,  146  U.  S.  536,  544, 
36   L.   Ed.    1079. 

72.  Rule  in  Forgay  v.  Conrad. — Forgay 
V.  Conrad.  6  How.  201,  12  L.  Ed.  404, 
criticised  in  Barnard  v.  Gibson,  7  How. 
651.  657.  12  L.   Ed.  857;  Ex  parte  National 


APPEAL  AXD  ERROR. 


955 


Limitations  of  General  Rule. — It  may  be  said  in  general  that  if  the  court 
makes  a  decree  fixing  the  rights  and  habihties  of  the  parties,  and  thereupon  refers 
the  case  to  a  master  for  a  ministerial  purpose  only,  and  no  further  proceedings 
in  court  are  contemplated,  the  decree  is  final.'-''     Reference  to  the  master  to  take 


Enameling,  etc.,  Co..  201  U.  S.  1.56.163,50 
L.  Ed.  707;  Forgay's  Case  explained  in 
Beebe  v.  Russell,  19  How.  283.  287.  15 
L.   Ed.   668. 

Decision  in  Forgay  v.  Conrad. — A  de- 
cree of  the  court  below,  that  certain 
deeds  should  be  set  aside  as  fraudulent 
and  void;  that  certain  lands  and  slaves 
should  be  delivered  up  to  the  complain- 
ant; that  one  of  the  defendants  should 
pay  a  certain  sum  of  money  to  the  com- 
plainant; that  the  complainant  should 
have  execution  for  these  several  matters; 
that  the  master  should  take  an  account 
of  the  profits  of  the  lands  and  slaves,  and 
also  an  accoant  of  certain  money  and 
notes,  and  the  then  said  decree  conclud- 
ing as  foHows,  viz:  "And  so  much  of  the 
said  bill  as  contains  or  relates  to  matters 
hereby  referred  to  the  master  for  a  report 
is  retained  for  further  decree  in  the 
premises,  and  so  much  of  the  said  bill  as 
is  not  now.  nor  has  been  heretofore,  ad- 
judged and  decreed  upon,  and  which  is 
not  above  retained  for  the  purposes  afore- 
said, be  dismissed  without  prejudice,  and 
that  the  said  defendants  do  pay  the  costs." 
was  a  final  decree  within  the  meaning 
of  the  acts  of  congress,  and  an  appeal 
from  it  will  lie  to  this  court.  Forgay  v. 
Conrad.   6   How.   301,   12   L.   Ed.   404. 

In  the  very  next  case,  Perkins  v. 
Fourniquet,  6  How.  206,  13  L.  Ed.  406, 
where  the  circuit  court  decreed  that  com- 
plainants were  entitled  to  two-sevenths 
of  certain  property,  and  referred  the  mat- 
ter to  a  master  to  take  an  account  of  it, 
the  de<:re'e  was  held  not  to  be  final. 

In  Pulliam  v.  Christian,  6  How.  209. 
12  L.  Ed.  408,  a  decree  setting  aside  a 
deed  by  a  bankrupt,  directing  the  trustees 
under  the  deed  to  deliver  up  to  the  as- 
signee all  the  property  in  their  hands. 
and  directing  an  account  to  be  taken  of 
the  proceeds  of  sales  previously  made, 
was  also   held  not  to   be  a   final  decree. 

The  case  of  Forgay  v.  Conrad,  6  How. 
201,  12  L.  Ed.  404,  was  an  appeal  from 
an  interlocutory  decree,  which  was  sus- 
tained, though  objected  to.  But  this  de- 
cision was  made  under  the  peculiar  cir- 
cumstances of  that  case.  The  decree  was, 
that  certain  deeds  should  be  set  aside  as 
fraudulent  and  void;  that  certain  lands 
and  slaves  should  be  delivered  up  to  the 
complainant;  that  one  of  the  defendants 
should  pay  a  certain  sum  of  money  to  the 
complainant;  that  the  complainant  should 
have  execution  for  these  several  matters; 
that  the  master  should  take  an  account 
of  the  profits  of  the  lands  and  slaves. 
and  also  an  account  of  certain  money  and 
notes;  and  then  said  decree  concluded  as 
follows,  viz:  "And  so  much  of  said  bill 
as   contains    or    relates   to   matters    herebv 


referred  to  the  master  for  a  report,  is 
retained  for  further  decree  in  the  prem- 
ises." etc.,  cited  in  Craighead  r.  Wilson» 
18    How.   199,    15   L.    Ed.   332. 

"In  Forgay  v.  Conrad,  6  How.  201,  12 
L.  Ed.  404,  the  object  of  the  bill  was 
to  set  aside  sundry  deeds  for  lands  and 
slaves,  and  for  an  account  of  the  rents 
and  profits  of  the  propertj^  so  conveyeci. 
The  court  entered  a  decree  declaring  the 
deeds  fraudulent  and  void,  directing  the 
property  to  be  delivered  up  to  the  com- 
plainant, directing  one  of  the  defendants 
to  pay  him  $11,000,  and  'that  the  com- 
plainant do  have  execution  for  the  sev- 
eral matters  aforesaid.'  The  decree  then 
directed  that  the  master  take  an  account 
of  the  profits.  Under  the  peculiar  cir- 
cumstances of  the  case  the  decree  was  held 
to  be  appealable,  although,  said  Chief  Jus- 
tice Taney,  "Undoubtedly  it  is  not  final  in 
the  strict  technical  sense  of  that  term.'  The 
opinion  was  p>laced  largely  upon  the 
ground  that  the  decree  not  only  decided 
the  title  to  tte  property  in  dispute,  but 
awarded  execution."  McGourkey  z*. 
Toledo,  etc..  R.  Co.,  146  U.  S.  536,  546, 
36    L.    Ed.    1079. 

"Indeed,  the  case  of  Forgay  v.  Conrad 
has  been  generally  treated  as  an  ex- 
ceptional one,  and,  as  was  said  in  Craig- 
head V.  Wilson,  18  How.  199,  202,  15 
L.  Ed.  332,  as  made  under  the  peculiar 
circumstances  of  that  case,  and  to  pre- 
vent a  loss  of  the  property,  which  would 
have  been  disposed  of  beyond  the  reach  of 
an  appellate  court  before  a  final  decree 
adjusting  the  account  could  be  entered.  A 
somewhat  similar  criticism  was  made  of 
this  case  in  Beebe  v.  Russell.  19  How.  283. 
287,  15  L.  Ed.  668,  wherein  it  was  intimated 
that  the  fact  that  execution  had  been 
awarded  was  the  only  ground  upon  which 
the  finality  of  the  decree  could  be  sup- 
ported." McGourkey  v.  Toledo,  etc.,  R. 
Co..   146   U.   S.   536,   547.   36   L.    Ed.   1079. 

Forgay  v.  Conrad  approved. — In  Thom- 
son V.  Dean,  7  Wall.  342,  19  L.  Ed.  94, 
the  decree  directed  the  defendant  to 
transfer  to  the  plaintifT  certain  shares  of 
stock,  and  that  an  account  be  taken  as  to 
the  amount  paid  and  to  be  paid  for  the 
same,  and  as  to  dividends  accrued.  But 
this  was  held  to  be  a  final  decree  upon 
the  ground  that  it  changed  the  property 
in  the  stock  as  absolutely  and  as  com- 
pletelv  as  could  be  done  by  execution  on 
a  decree  for  sale.  In  this  case  the  court 
did  distinctly  approve  of  Forgay  v. 
Conrad,  although  the  decree  was  put 
upon  the  ground  that  it  decided  finally 
the   rieht    to    the    property   in    contest. 

73.  Limitations  of  general  ru'»^. — Craig- 
head V.  Wilson,  18  How.  199,  15  L.  Ed.  33S; 
Beebe  v.    Russell,   19  How.  283,  15  L.   Ed. 


956 


APPEAL  AND  ERROR. 


and  state  an  account  between  the  parties  as  to  the  compensation  during  the  liti- 
gation and  up  to  its  final  termination  relates  to  matters  of  administration  not  in- 
volving the  merits.""* 


668;  McGourkey  v.  Toledo,  etc.,  R.  Co., 
146  U.  S.  536,  545,  36  L.  Ed.  1079;  Key- 
stone Iron  Co.  V.  Martin,  132  U.  S.  91.  33 
L.  Ed.  275;  Latta  v.  Kilbourn,  150  U.  S. 
539,    37    L.    Ed.    1169. 

Cases  reviewed. — The  decisions  of  the 
supreme  court  in  Forgay  v.  Conrad,  6 
How.  201.204.  12  L.  Ed.  404;  Thomson  v. 
Dean,  7  Wall.  342,  346,  19  L.  Ed.  94; 
Winthrop  Iron  Co.  v.  Meeker,  109  U.  S. 
180,  183,  27  L.Ed.  898;  and  Central  Trust 
Co.  V.  Grant  Locomotive  Works,  135  U.  S. 
207,  34  L.  Ed.  97 — upon  the  question 
whether  or  not  a  decree  which  sets  aside 
conveyances,  or  directs  defendants  to 
convey  and  surrender  property,  or  de- 
termines that  the  complainants  are  the 
owners  of  certain  interests  in  property, 
and  then  refers  the  case  to  a  master  to 
state  and  report  the  accounts  between  the 
parties  to  the  suit  respecting  the  use  of 
the  property — are  difficult  to  reconcile 
with  its  decisions  in  Perkins  v.  Fourni- 
(luct,  6  How.  206.  208,  12  L.  Ed.  406; 
Craighead  v.  Wilson,  18  How.  199,  15  L. 
Ed.  332;  Beebe  v.  Russell,  19  How.  283. 
286,  15  L.  Ed.  66S,  and  McGourkey  v. 
Toledo,  etc..  Co.,  146  U.  S.  536,  550,  36 
L.    Ed.    1079,    upun    the    same    question. 

When  such  decree  deemed  final. — "Even 
if  an  account  be  ordered  taken,  if  such 
accounting  be  not  asked  for  in  the  bill, 
and  be  ordered  simply  in  execution  of 
the  decree,  and  such  decree  be  final  as 
to  all  matters  within  the  pleadings,  it  will 
'  still  be  regarded  as  final.  Craighead  v. 
Wilson,  18  How.  199.  ]5  L.  Ed.  332; 
Winthrop  Iron  Co.  v.  Meeker,  109  U.  S. 
180,  27'  L.  Ed.  898."  McGourkey  v. 
Toledo,  etc.,  R.  Co.,  146  U.  S.  536,  546, 
36    L.    Ed.    1079. 

A  decree  is  final  which  terminates  the 
litigation  between  the  parties  on  the 
merits  of  the  case,  fixes  their  rights  and 
liabilities,  and  leaves  nothing  to  be  done 
but  to  execute  it,  although  the  case  may 
be  referred  to  a  master  to  state  an  ac- 
count, or  to  determine  questions  inci- 
dental to  its  execution.  St.  Louis,  etc., 
R.  Co.  V.  Southern  Express  Co.,  108  U. 
S.  24,  29,  27  L.  Ed.  638;  First  Nat.  Bank 
V.  Shedd,  121  U.  S.  74,  30  L.  Ed.  877;  Hill 
V  Chicago,  etc.,  R.  Co.,  140  U.  S.  52, 
54.  35  L.   Ed.  331. 

A  decree  is  final,  though  the  case  be 
referred  to  a  master  to  execute  the  de- 
cree by  a  sale  of  property  or  otherwise, 
as  in  the  case  of  the  foreclosure  of  a 
mortgage.  Ray  z\  Law,  3  Cranch  179, 
2  L.  Ed.  404;  Whiting  v.  Bank  of 
United  States,  13  Pet.  6,  10  L.  Ed.  33; 
Bronson  v.  Railroad  Co.,  2  Black  524,  17 
L.  Ed.  359;  McGourkey  v.  Toledo,  etc., 
R.  Co.,  146  U.  S.  536,  545,  36  L.  Ed. 
1079. 

A  decree  upon  the  coming  in  of  the 
master's  report  on  a  bill  for  specific  per- 


formance, ascertaining  the  quantity  of 
land  to  be  conveyed,  and  the  balance  of 
money  to  be  paid,  and  that  the  convey- 
ance should  be  executed  on  such  balance 
being  tendered,  is  a  final  decree.  Beebe 
f.    Russell,   19   How.   283,   15   L.   Ed.   668. 

In  Beebe  v.  Russell,  19  How.  283,  285. 
15  L.  Ed.  668,  the  court  decreed  that  the 
defendants  should  execute  certain  convey- 
ances, and  surrender  possession,  and  then 
referred  it  to  a  master,  to  take  an  account 
of  the  rents  and  profits  received  by  the 
defendants,  with  directions  as  to  how  the 
account  should  be  taken.  This  decree 
was  held  not  to  be  final.  Mr.  Justice 
Wayne  remarking  that  it  might  be  so  "iT 
all  the  consequential  directions  depend- 
ing upon  the  result  of  the  master's  report 
are  contained  in  the  decree  so  that  no 
further  decree  of  the  court  will  be  nec- 
essary, upon  the  confirmation  of  the  »e- 
port,  to  give  the  parties  the  entire  and 
full  benefit  of  the  previous  decision  of 
the  court;"  and  that  the  decree  is  final 
when  ministerial  duties  only  are  to  be 
performed  to  ascertain  the  sum  due. 
Practically  the  same  ruling  was  made 
in  the  next  case  of  Farrelly  v.  Woodfolk, 
19    How.   288,   15   L.    Ed.   670. 

In  Winthrop  Iron  Co.  v.  Meeker,  109 
U.  S.  180,  27  L.  Ed.  898,  a  I«ill  was  filed 
to  set  aside  as  fraudulent  the  proceedings 
of  a  stockholders'  meeting,  and  to  have 
a  receiver  appointed.  The  decree  ad- 
judged that  the  proceedings  of  the  meet- 
ing were  fraudulent;  that  a  certain  Tease 
executed  in  accordance  with  the  authority 
then  given  was  void;  that  a  receiver 
should  be  appointed  with  power  to  con- 
tinue the  business;  and  that  an  account 
be  taken  of  profits  realized  from  the  use 
of  the  leased  property,  and  also  of  royal- 
ties upon  certain  ores  mined  by  the  de- 
fendants. The  court  held  the  decree  to  be 
final,  because  the  whole  purpose  of  the 
suit  had  been  accomplished,  and  the  ac- 
counting ordered  was  only  in  aid  of  tTie 
execution  of  the  decree,  and  was  not  a 
part  of  the  relief  prayed  for  in  the  bill, 
which  contemplated  nothing  more  than 
a  rescission  of  the  authority  to  execute 
the  lease,  and  a  transfer  of  the  manage- 
ment of  the  company  to  a  receiver.  The 
language  of  Mr.  Justice  McLean  in  Craig- 
head V.  Wilson.  18  How.  199,  201,  15  L. 
Ed.  332,  was  quoted  to  the  effect  that  the 
decree  was  final  on  "all  matters  within 
the  pleadings,"  and  nothing  remained  to 
be  done  but  to  adjust  accounts  between 
the  parties  growing  out  of  the  operations 
of  the  defendants  during  the  pendency  of 
the  suit.  The  case  was  distinguished  from 
suits  by  patentees  in  the  fact  that,  in  such 
suits,  the  money  recovery  Is  part  of  the 
subject   matter   of   the   suit. 

74.  ^lissouri,  etc.,  R.  Co.  v.  Dinsmore, 
108  U.  S.  30,  27  L.  Ed.  640. 


APPEAL  AXD  ERROR. 


957 


(2)  Decision  on  Report  of  Referee. — A  decree  confirming  an  auditor's  report 
is  final  and  appealable."^ 

1.  Order  Refusing  Rehearing. — An  order  of  the  court  below  refusing  a 
rehearing  is  not  reviewable  here,  because  a  petition  for  rehearing,  presented  in 
due  season  and  entertained  by  the  court,  prevents  the  original  judgment  from 
taking  effect  as  a  final  judgment,  for  the  purposes  of  an  appeal  or  writ  of  error, 
until  the  petition  is  disposed  of.''^ 

m.  Judgment  Affirming  Order  of  Probate. — A  judgment  of  the  supreme  court 
of  the  District  of  Columbia,  in  general  term,  affirming  a  final  order  of  the  same 
court  in  special  term  admitting  to  probate  and  record  a  certain  writing  as  the  will 
of  the  deceased,  is  final  and  appealable.^" 

n  Decision  Affecting  Pleadings — (1)  Judgments  on  Demurrers. — In  Gen- 
eral.— A  judgment  sustaining  or  overruling  a  demurrer  is  not  a  final  judgment 
which  can  be  reviewed  by  this  court.'' ^     Thus,  an  order  overruling  a  demurrer 


75.  Decision  on  report  of  referee. — 
Hovev  V.  McDonald,  109  U.  S.  150.  27 
L.     Ed.     888. 

A  bill  was  filed  by  residuary  legatees 
claiming  to  receive  from  the  executors 
their  respective  proportions  of  the  estate 
of  the  testator;  on  a  reference  to  a  master 
to  take  an  account,  the  master  reported 
seven  thousand  seven  hundred  and  ninety- 
five  dollars  and  twenty-seven  cents  to  be 
in  the  hands  of  the  executors,  which  sum 
was  paid  by  them  into  court.  The  report 
was  referred  back  to  the  master,  who  made 
his  final  report,  by  which  he  found  a  fur- 
ther sum  in  the  hands  of  the  executors,  ex- 
clusive of  sundry  uncollected  debts  then 
outstanding,  some  bad.  and  some  good. 
Exceptions  were  filed  to  this  report, 
which  were  disallowed  by  the  court.  The 
circuit  court  decreed  that  the  report 
should  be  accepted,  and  that  the  com- 
plainants should  have  execution  for  the 
sum  reported  in  the  hands  of  the  execu- 
tors; and  as  to  the  residue  of  the  debts 
due  the  estate  as  soon  as  the  same,  part 
of  them,  should  be  collected;  the  amount 
should  be  paid  into  court  for  distribu- 
tion, to  be  made  under  the  direction  of 
the  court.  Held,  that  this  is  an  inter- 
locutorj'.  and  not  a  final  decree,  in  the 
sense  of  the  act  of  congress;  and  an  ap- 
peal from  the  same  cannot  be  taken.  Young 
V.    Smith,   15    Pet.   287,    10    L.    Ed.    741. 

Where,  in  an  original  suit  in  equity  in- 
stituted in  this  court  to  determine  the 
boundary  line  between  states,  an  order  is 
made  appointing  commissioners  to  locate 
the  same,  and  at  the  same  term  the  com- 
missioners file  a  report  which  is  ordered 
to  be  confirmed,  but  it  is  further  ordered 
"that  said  commissioners  proceed  to  de- 
termine and  mark  the  boundary  line  be- 
tween said  states  throughout  its  extent. 
and  report  thereon  to  this  court,  with  all 
convenient  speed."  it  was  held,  that  such 
order  of  confirmation  is  not  a  final  de- 
cree deciding  and  disposing  of  the  whole 
merits  of  the  cause,  and  discharging  the 
parties  from  further  attendance,  but  is 
interlocutory  merely,  and  therefore  may 
be  set  aside  at  a  subsequent  term.  Iowa 
V.   Illinois,   151   U.   S.   238,  38   L.   Ed.   145. 


76.  Order  refusing  rehearing. — ^Texas 
&  Pacific  R.  Co.  r.  Murphy,  111  U.  S.  488, 
28  L.  Ed.  492.  citing  Brocket  v.  Brocket, 
2   How.  238,   11   L.   Ed.  251. 

77.  Judgment  affirming  order  of  pro- 
bate.—Ormsby  z'.  Webb,  134  U.  S.  47,  33 
L.  Ed.  805,  following  Young  v.  Bank. 
4  Cranch  384,  2  L.  Ed.  655,  and 
distinguishing  Van  Ness  v.  Van  Ness, 
6  How^  62,  12  L.  Ed.  344;  Brown  v.  Wi- 
ley,  4  Wall.   165,   18   L.   Ed.   384. 

78.  Judgments  on  demurrers. — De  Ar- 
mas z\  United  States.  6  How.  103.  12  L. 
Ed.  361;  Holcombe  v.  McKusick,  20  How. 
552,  15  L.  Ed.  1020;  Miners  Bank  v. 
United  States.  5  How.  213,  12  L.  Ed.  121; 
Teal  V.  Walker,  111  U.  S.  242,  246,  28  L. 
Ed.  415;  Jones  z\  Craig,  127  U.  S.  213,  32 
L.  Ed.  147;  Bank  of  Rondout  v.  Smith, 
156    U.    S.    330,    38    L.    Ed.    441. 

An  order  of  the  district  court,  sustain- 
ing a  demurrer  to  a  petition  because  it 
was  multifarious,  and  because  the  names 
of  the  persons  claiming  or  in  the  posses- 
sion of  the  land  which  the  petitioner  al- 
leged to  belong  to  them  were  not  set 
forth,  was  not  a  final  judgment  or  de- 
cree from  which  an  appeal  lies  to  this 
court.  De  .\rmas  v.  United  States,  6 
How.    103,    12   L.   Ed.  361. 

Where  there  was  a  demurrer  to  some 
parts  of  a  replication,  and  a  motion  to 
strike  out  other  parts,  still  leaving  in  the 
replication  some  essential  allegations,  a 
judgment  upon  the  demurrer  and  motion 
to  strike  out  was  not  such  a  final  judg- 
ment as  can  be  reviewed  by  this  court. 
Holcombe  v.  McKusick.  20  How.  552,  15 
L.   Ed.    1020. 

A  judgment  of  a  court,  sustaining  a 
demurrer  under  the  following  circum- 
stances, is  not  a  final  judgment  which 
can  be  reviewed  by  this  court.  Informa- 
tion in  the  nature  of  a  quo  warranto, 
calling  upon  the  president,  directors,  and 
company  of  the  Miners'  Bank  of  Dubuque 
to  show  by  what  warrant  they  claimed 
the  right  to  use  the  franchise.  Plea,  re- 
ferring to  an  act  of  incorporation.  Rep- 
lication, that  the  act  of  incorporation  had 
been  repealed.  Rejoinder,  that  the  re- 
pealing law  was  passed  without  notice  to 


I 


^)58 


APPEAL  AND  ERROR. 


to  a  petition,  and  directing  a  jury  to  be  impaneled,  is  not  a  final  judgment  upon 
which  a  writ  of  error  will  lie.'^ 

Demurrer  in  Abatement. — But  where  the  defendant  demurred,  and  as- 
signed as  a  reason  that  the  place  of  abode  of  the  plaintiff,  or  his  right  to  sue, 
was  not  set  forth  in  the  declaration,  it  was  demurring  in  abatement,  and  the  judg- 
ment of  the  court,  if  the  demurrer  be  overruled,  will  be  final  for  the  plaintiff. 
"A  judgment  on  a  plea  in  abatement,  or  on  a  demurrer  to  a  plea  in  abatement, 
is  not  final,  but  on  a  demurrer  which  contains  matter  in  abatement,  it  shall  be 
final,  because  a  demurrer  cannot  partake  of  the  character  of  a  plea  in  abate- 
ment."^*^ 

(2)  Striking  Out  Pleadings. — A  judgment  upon  a  motion  to  strike  out  plead- 
ings is  not  such  a  final  judgment  a?  can  be  reviewed  by  this  court. ^^ 

(3)  Judgments  on  Picas  in  Ahateinent. — In  General. — The  twenty-second 
section  of  the  judiciary  act.  now  §  1011  of  the  Revised  Statutes,  which  defines 
what  decrees  or  judgments  in  civil  actions  may  be  made  the  subjects  of  appeals 
or  writ  of  error,  provides,  that  there  shall  be  no  reversal  in  the  supreme  court  or 
in  a  circuit  court  upon  a  writ  of  error,  for  error  in  ruling  any  plea  in  abatement 
other  than  a  plea  to  the  jurisdiction  of  the  court. ^"  A  judgment  on  a  plea  in  abate- 
ment is  not  final  in  the  sense  that  it  may  be  reviewed  before  the  final  determina- 
tion of  the  cause. ^^     But  a  demurrer,  being  in  its  own  nature  a  plea  to  the  ac- 


the  parties,  and  without  any  evidence  of 
misuse  of  the  franchise.  Demurrer  to 
the  rejoinder,  joinder  in  demurrer.  Sus- 
taining the  demurrer,  witliout  any  fur- 
ther judgment  of  the  court,  (Hd  not  pre- 
vent the  parties  from  continuing  to  ex- 
(.•rcise  tin-  franchise,  and  therefore  is  not 
a  final  judgment.  The  writ  of  error  must, 
upon  motion,  be  dismissed.  Miners'  Bank 
V.  United  States,  ,5  How.  213,  12  L.  Ed. 
121. 

The  defendant  having  answered  over 
by  leave  and  order  of  the  court,  reserv- 
ing his  objection  to  the  overruling  of  the 
demurrer,  the  question  whether  the  de- 
murrer was  rightly  overruled  is  open  on 
this  writ  of  error  sued  out  after  final 
judgment  against  him.  Teal  v.  Walker, 
til  U.  S.  242,  28  L.  Ed.  41.5;  Southern 
Pac.  Co.  V.  Denton.  14(5  U.  S.  202,  36  L. 
Ed.  942;  Bauserman  v.  Blunt,  147  U.  S. 
647.   652,   37    L.    Ed.    316. 

Error  to  state  court. — This  court  has 
wo  jurisdiction  to  review  by  a  writ  of 
error  the  judgment  of  the  highest  court 
of  a  state  reversing  the  decision  of  the 
trial  court  overruling  the  demurrer,  and 
directing  that  it  be  sustained,  where  the 
law  of  the  state  prescribing  action  on  de- 
murrer is  as  follows:  "If  the  demurrer 
be  sustained,  the  adverse  party  may 
amend,  if  the  defect  can  be  remedied  by 
way  of  amendment,  with  or  without 
costs,  as  the  court,  in  its  discretion,  shall 
direct,"  because  this  is  not  a  final  judg- 
ment. Clark  V.  Kansas  City.  172  U.  S. 
:VJ4,  43  L.  Ed.  467,  citing  and  approving 
Werner  v.  Charleston,  151  U.  S.  360,  3S 
L.  Ed.  192,  reaffirmed  in  Rogers  v.  Mor- 
gan, 173  U.  S.  702,  43  L.  Ed.  1185. 

79.  Chappell  v.  United  Stat-s,  160  U. 
S.  499,  40  L.  Ed.  510.  citing  Luxton  v. 
North  River  Bridge  Co.,  147  U.  S.  337, 
;!7  L.  Ed.  194;  Mcrritt  ?■.  Bowdoln  Col- 
lege,   167    U.    S.   745,   42    L.    Ed.    1209. 


80.  Tyler  v.  Hand,  7  How.  573,  584,  12 
L.    Ed.    824. 

81.  Striking  out  pleadings. —  Holcombe 
T'.    McKusick,  2    How.   552,   15   L.  Ed.    1020. 

82.  Judgments  on  pleas  in  abatement. 
— Piquignot  v.  Pennsylvania  R.  Co.,  16  How. 
104,  14  L.  Ed.  683;  Leitcnsdorfer  v.  Webb, 
20    How.    176.   15    L.   Ed.   891. 

83.  Fitzpatrick  7'.  Flannagan.  106  U.  S. 
648,  27  L.  Ed.  211;  Stevens  7-.  Monon- 
gahela  Bank,  111  U.  S.  197,  28  L.  Ed.  399; 
Piquignot  v.  Pennsylvania  R.  Co..  16 
H<  w.  104,  14  L.  Ed.  863;  Leitcnsdorfer  7'. 
W\^bb.   20   How.    176,   15   L.   Ed.   891. 

The  judgment  on  the  plea  in  abate- 
ment is  not  final  in  the  sense  that  it  may 
be  reviewed  before  the  final  determina- 
tion of  the  cause,  but  a  writ  of  error 
upon  the  final  judgment  brings  up  the 
whole  record,  and  subjects  to  review  all 
the  proceedings  in  the  cause.  Fitzpatrick 
7'.  Flannagan,  106  U.  S.  648,  27  L.  Ed. 
211. 

^  lea  of  another  suit  pending. — Within 
the  meaning  of  the  judiciary  act  of  Sep- 
tember 24,  1789.  ch.  20,  §  22,  providing 
that  there  shall  be  no  reversal  in  this 
court  for  error  in  ruling  any  plea  in 
abatement,  other  than  a  plea  to  the  juris- 
diction of  the  court,  it  was  held,  that  the 
plea  of  another  action  pending  is  a  plea 
in  abatement.  Stevens  7'.  Monongahela 
Bank,  111  U.  S.  197,  28  L.  Ed.  399.  citing 
Piquignot  7'.  Pennsylvania  R.  Co.,  16 
How.    104,    14    L.    Ed.    863. 

Attachment. — The  laws  of  the  provi- 
sional government  authorized  an  attach- 
ment against  the  property  of  a  debtor,  in 
cases  in  which  a  party  claiming  to  be  a 
creditor,  upon  a  petition  and  affidavit, 
charged  that  his  debtor  had  fraudulently 
disposed  of  his  property,  so  as  to  hinder, 
delay,  or  defraud,  his  creditors.  By  the 
same  law,  an  issue  was  directed  to  be 
tried    upon    the    petition    and    aflidavit    of 


APPEAL  AXD  ERROR. 


959 


tion  and  being  even  in  form  a  plea  to  the  action,  shall  not  be  considered  as  a  plea 
in  abatement,  though  the  special  cause  alleged  for  demurring  be  matter  of  abate- 
ment.^^ 

Limitations  of  General  Rule. — The  provision  of  the  statutes,  that  there 
shall  be  no  reversal  in  this  court  upon  a  writ  of  error  "for  error  in  ruling  any 
plea  in  abatement,  other  than  a  plea  to  the  jurisdiction  of  the  court."  Rev.  Stat., 
§  1011.  as  amended  by  act  of  February  18.  1875.  c.  80;  18  Stat.  318.  which  has 
been  part  of  the  judiciary  acts  of  the  United  States  from  the  beginning,  cannot 
be  construed  as  forbidding  the  review  of  a  decision,  even  on  a  plea  in  abatement, 
of  any  question  of  the  jurisdiction  of  the  court  below  to  render  judgment  against 
the  defendant,  though  depending  on  the  sufficiency  of  the  service  of  the  writ.®** 

o.  Orders  Remanding  Causes  Remoi'cd  from  State  Courts — (1)  Prior  to  the 
Act  of  March  3rd,  t8/j. — Prior  to  the  act  of  March  3,  1875.  there  could  be  no 
appeal  or  writ  of  error  from  an  order  of  a  circuit  court  remanding  a  suit  which 
liad  been  removed  to  it  from  a  state  court,  because  such  an  order  was  not  a  final 
judgment  or  decree  in  the  sense  which  authorizes  an  appeal  or  writ  of  error. ^^ 


the  plaintiffs:  upon  which  issue,  if  the  find- 
ing sustained  the  petition  and  affidavit,  the 
plaintiff  was  authorized  to  proceed  to  the 
jjroof  of  his  debt:  if  the  finding  was 
against  the  charge  in  the  petition,  the  at- 
tachment was  to  be  dismissed.  These  pro- 
ceedings with  reference  to  the  attachment 
are  in  their  nature  proceedings  in  abate- 
ment, and  are  not  final  as  to  the  rights  of 
the  parties,  and  therefore  cannot  be  re- 
viewed upon  writ  of  error  in  this  court. 
Leitensdorfer  v.  Webb.  20  How.  176,  15 
L.     Ed.     891. 

84.  Tyler  v.  Hand,  7  How.  .573,  585,  12 
L    Ed.  824. 

A  judgment  on  a  plea  in  abatement,  or 
on  a  demurrer  to  a  plea  in  abatement,  is 
not  final,  but  on  a  demurrer  which  con- 
tains matter  in  abatement  it  shall  be  final, 
because  a  demurrer  cannot  partake  of  the 
character  of  a  plea  in  abatement.  Tyler 
V.   Hand,   7   How.   57.3,   584,   12   L.    Ed.   824. 

Where  the  defendant  demurred,  and  as- 
signed as  a  reason  that  the  place  of  abode 
of  the  plaintiff,  or  his  right  to  sue,  was 
not  set  forth  in  the  declaration,  it  was 
demurring  in  abatement,  and  the  judgment 
of  the  court,  if  the  demurrer  be  overruled, 
will  be  final  for  the  plaintiff.  Tyler  v. 
Hand,   7   How.   57.3,   12   L-   Ed.   824. 

85.  Act  of  September  24,  1789,  ch.  20, 
§  82;  1  Stat.  85;  Goldey  v.  Morning  News, 
156  U.  S.  518.  5:.>0.  .38  L.  Ed.  517:  Pollard 
-v.  Dwight,  4  Cranch  421.  2  L.  Ed.  666; 
Harkness  v.  Hyde.  98  U.  S.  476,  25  L.  Ed. 
237;  Mexican  Central  R.  Co.  v.  Pinkney, 
149  U.  S.  194.  37  L.   Ed.   699. 

86.  Prior  to  the  act  of  March  3rd,  1875. 
— Gurnee  r.  Patrick  County,  137  U.  S.  141, 
143,  34  L.  Ed.  601:  Railroad  Co.  v.  Wis- 
wall.  23  Wall.  507,  22  L.  Ed.  103;  Babbitt 
V.  Clark,  103  U.  S.  606,  609.  26  L.  Ed. 
507;  Turner  z'.  Farmers'  Loan,  etc.,  Co.. 
106  U.  S.  552.  555.  27  L.  Ed.  273.  Richmond, 
etc.,  R.  Co.  V.  Thouron,  134  U.  S.  45,  46.  33 
L.  Ed.  871:  German  Nat.  Bank  v.  Speck- 
ert,  181   U.   S.   405,  406,   45   L.   Ed.  926. 

In  re  Pennsylvania  Co.,  137  U.  S.  451, 
34  L.  Ed.  73S.  cit'ni>-  Ex  parte  Bradstreet. 
7    Pet.   634.   8   L.    Ed.   810;    Railroad    Co  v. 


Wisvvall,  23  Wall.  507,  22  L.  Ed.  103, 
holding  that  a  mandamus  would  lie  to  take 
jurisdiction  of  and  proceed  with  a  case 
which  it  wrongfully  remanded  to  the 
state    court. 

The  order  of  a  circuit  court  remand- 
ing, for  want  of  jurisdiction  to  hear  it, 
a  case  removed  fro;ii  a  state  court  into 
*t,  is  not  a  "final  judgment"  in  that  sense 
which  authorizes  a  writ  of  error.  The 
remedy  of  the  party  against  whose  will 
the  suit  has  been  remanded,  is  by  manda- 
mus to  compel  action,  and  not  by  a  writ 
of  error  to  review  what  has  been  done. 
Railroad  Co.  v.  Wiswall,  23  Wall.  507,  22 
L.  Ed.  103.  citing  Insurance  Co.  v.  Corn- 
stock.  16  Wall.  258,  270.  21  L.  Ed.  493; 
1  Chitty's  General  Practice,  736;  Ex  parte 
Bradstreet,  7  Pet.  634,  647,  8  L.  Ed.  810; 
Ex  parte  Newman.  14  Wall.  152,  165.  20 
L.  Ed.  877. 

Before  the  act  of  1875,  c.  137  (18  Stat. 
470),  it  was  held  that  an  order  by  the  cir- 
cuit court  remanding  a  cause  was  not  such 
a  final  judgment  or  decree  in  a  civil  ac- 
tion as  to  give  us  jurisdiction  for  its  re- 
view by  writ  of  error  or  appeal.  The  ap- 
propriate remedy  in  such  a  case  was  then 
by  mandamus  to  compel  the  circuit  court 
to  hear  and  decide.  Railroad  Co.  z\  Wis- 
wall, 23  Wall.  507,  22  L-  Ed.  103;  Insurance 
Co.  7'.  Comstock.  16  Wall.  258.  21  L.  Ed. 
493;  Babbitt  v.  Clark.  103  U.  S.  606,  609, 
26   L.    Ed.  507. 

Prior  to  the  passage  of  the  act  of  March 
3,  1875,  just  cited,  an  appeal  or  writ  of  er- 
ror would  not  lie  to  review  an  order  of 
the  circuit  court  remanding  a  suit  which 
had  been  removed  because  such  an  order 
was  not  a  final  judgment  or  decree.  This 
was  expressly  held  in  Railroad  Co.  t'.  Wis- 
wall. 23  Wall.  .507.  22  L.  Ed.  103,  decided 
at  October  term.  1874,  and  it  was  also  ruled 
that  the  remedy  was  bj'  mandamus.  Mis- 
souri Pac.  R.  c'.  Fitzgerald.  160  U.  S.  556, 
580,  40  L.  Ed.  536.  reaffirmed  in  Jeske  v. 
Cox,    171    U.    S.   685.   43   L.    Ed.    1179. 

"Before  the  act  of  March  3,  1875,  there 
could  be  no  appeal  from  an  order  of  the 
circuit   court  remanding  a   suit   which   had 


960 


APPEAL  AND  ERROR. 


(2)  Under  the  Act  of  March  ^rd,  iS/j. — But  it  was  provided  by  the  act  of 
March  3,  1875,  that  the  order  of  a  circuit  court  dismissing  or  remanding  a  cause 
to  a  state  court,  should  be  reviewable  by  the  supreme  court  on  writ  of  error  or 
appeal  as  the  case  might  be.^" 

(3)  Under  the  Act  of  March  3rd,  1887. — The  act  of  March  3,  1875,  remained 
in  force  until  the  passage  of  the  act  of  March  3,  1887,  by  which  it  was  superseded, 
and  the  writ  of  error  or  appeal  upon  orders  to  remand  causes  to  the  state  courts, 
was  abrogated.  The  provision  of  the  act  of  1887  is  as  follows:  "Whenever  any 
cause  shall  be  removed  from  any  state  court  into  any  circuit  court  of  the  United 
States,  and  the  circuit  court  shall  decide  that  the  cause  was  improperly  removed, 
and  order  the  same  to  be  remanded  to  the  state  court  from  whence  .it  came,  such 
remand  shall  be  immediately  carried  into  execution,  and  no  appeal  or  writ  of 
error  from  the  decision  of  the  circuit  court  so  remanding  such  cause  shall  be 
allowed.''^^     Since  the  act  of  March  3,  1887,  24  Stat.  552,  c.  373,  took  effect,  no 


been  removed,  because  such  an  order  was 
not  a  final  judgment  or  decree  in  the  sense 
which  authorizes  an  appeal  or  writ  of  er- 
ror. Railroad  Co.  v.  Wiswall,  23  Wall. 
507,  22  L.  Ed.  103.  That  act,  however, 
provided  in  express  terms  that  'the  order 
of  said  circuit  court  dismissing  or  remand- 
ing said  cause  to  the  state  court  shall  be 
reviewable  by  the  supreme  court  on  writ 
of  error  or  appeal,  as  the  case  may  be,' 
18  Stat.  470,  c.  137,  last  paragraph  of  § 
5;  and  under  this  authority  numerous 
cases  have  been  brought  to  this  court  by 
appeal  or  writ  of  error  for  the  review  of 
such  orders."  Morey  v.  Lockhart,  123  U. 
S.    56,   57,   31   L.    Ed.    68. 

87.  Under  the  act  of  March  3rd,  1875.— 
Gurnee  v.  Patrick  County,  137  U.  S.  141, 
143,  34  L.  Ed.  601;  Missouri  Pac.  R.  Co. 
V.  Fitzgerald,  160  U.  S.  556,  580,  40  L.  Ed. 
536,  reaffirmed  in  Jeske  v.  Cox,  171  U.  S. 
685.  43  L.  Ed.  1179;  German  Nat.  Bank  v. 
Speckert,  181  U.  S.  405,  406,  45  L.  Ed. 
926;  Ayers  v.  Chicago,  101  U.  S.  184,  25 
L.  Ed.  838;  Burlington,  etc..  R.  Co.  v. 
Dunn,   122  U.    S.   513,  517,  30  L.   Ed.    1159. 

The  5th  section  of  the  act  of  March  3, 
1875  (determining  the  jurisdiction  of  the 
circuit  courts),  provided  that  the  order 
of  the  circuit  court  dismissing  or  re- 
manding a  cause  to  the  state  court  should 
be  reviewable  by  the  supreme  court  on 
writ  of  error  or  appeal,  as  the  case  might 
be.     18  Stat.  470,  472,  c.  137. 

In  re  Pennsylvania  Co.,  137  U.  S.  451, 
453,  34  L.   Ed.  738. 

Under  Sec.  5  of  the  act  of  March  3, 
1875. — An  order  of  the  circuit  court  dis- 
missing a  cause  removed  into  it  from  a 
state  court  on  the  ground  that  it  did  not 
really  and  substantially  involve  or  dispute 
a  controversy  properly  within  its  juris- 
diction, was  reviewable  by  this  court  on 
a  writ  of  error.  "In  making  such  an  or- 
der, therefore,  the  circuit  court  exercises 
a  legal  and  not  a  personal  discretion, 
which  must  be  exerted  in  view  of  the  facts 
sufficiently  proven,  and  controlled  by  fixed 
rules  of  law."  Barry  v.  Edmunds,  116  U. 
S.   550,  559,  29  L.   Ed.   729. 

When  the  circuit  court  decided  that  a 
controversy    has    not    been    lawfully     re- 


moved from  a  state  court,  and  remanded 
the  suit  on  that  account,  it  in  efifect  de- 
termined that  the  controversy  involved  is 
not  properly  within  its  own  jurisdiction. 
The  review  of  such  an  adjudication  was 
clearly  contemplated  by  the  act  of  1875. 
Babbitt  v.  Clark,  103  U.  S.  606,  610,  26  L. 
Ed.   507. 

An  order  of  a  circuit  court  to  remand 
a  cause  to  a  state  court  on  the  ground 
that  the  petition  for  its  removal  from  that 
court  has  not  been  presented  in  time  was 
reviewable  here  either  on  a  writ  of  error 
or  appeal.  And  this  right  applies  not  only 
to  cases  which  are  remanded  because  the 
subject  matter  of  the  controversy  is  not 
within  the  jurisdiction  of  the  circuit  court 
but  also  includes  a  case  where  the  circuit 
court  decides  that  the  controversy  is  not 
properly  within  its  jurisdiction  because 
necessary  steps  were  not  taken  to  get  it 
away  from  the  state  court,  where  it  was 
rightfully  pending.  Babbitt  v.  Clark,  105 
U.   S.   606,  26   L.   Ed.    507. 

But  the  fifth  section  of  that  act  pro- 
vided that  if  it  satisfactorily  appeared  to 
the  circuit  court  that  a  suit  had  been  re- 
moved from  a  state  court  which  did  not 
really  and  substantially  involve  a  contro- 
versy properly  within  the  jurisdiction  of 
the  circuit  court,  it  may  be  remanded, 
and  the  order  to  that  eflFect  shall  be  re- 
viewable by  this  court  "on  writ  of  error 
or  appeal,  as  the  case  may  be."  Babbitt 
V.  Clark,  103  U.  S.  606,  610,  26  L.  Ed.  507. 

88.  Under  the  act  of  March  3,  1887.— 24 
Stat.  ch.  373,  552.  553;  In  re  Pennsyl- 
vania Co.,  137  U.  S.  451,  453,  454,  34  L. 
Ed.  738;  Missouri  Pac.  R.  Co.  v.  Fitz- 
gerald, 160  U.  S.  556,  580,  40  L.  Ed.  536, 
reaffirmed  in  Jeske  v.  Cox,  171  U.  S.  685, 
43   L.    Ed.   1179. 

Under  the  act  of  congress  approved 
March  3.  1887,  24  Stat.  552.  c.  373,  as  cor- 
rected by  the  act  of  August  13,  1888,  25 
Stat.  433,  c.  866,  providing  that  "When- 
ever any  cause  shall  be  removed  from 
any  state  court  into  any  circuit  court  of 
the  United  States,  and  the  circuit  court 
shall  decide  that  the  cause  was  improp- 
erly removed,  and  order  the  same  to  be 
remanded  to  the  state  court  from  whence 


APPEAL  AND  ERROR. 


961 


appeal  or  writ  of  error  lies  to  this  court  from  a  decision  of  a  circuit  court  re- 
manding a  cause  to  a  state  court  which  had  been  removed  from  it,  although  the 
order  remanding  it  was  made  before  that  act  took  effect.^^  This  statute  was  re- 
enacted  August  13,  1888,  for  the  purpose  of  correcting  some  mistakes  in  the 
enrollment,  25  Stat.,  c.  866,  433,  435;  but  the  above  clause  remained  without 
change. ^*^ 

The  object  of  the  act  of  March  3,  1887,  was  to  restrict  the  jurisdiction 
of  the  circuit  court  and  to  restrain  the  volume  of  litigation,  which,  through  the 
expansion  of  federal  jurisdiction  in  respect  to  the  removal  of  causes,  had  been 
pouring  into  the  courts  of  the  United  States.^i  Accordingly,  it  may  be  regarded 
as  settled  that  an  order  of  the  circuit  court  remanding  a  cause  cannot  be  re- 
viewed in  this  court  by  any  direct  proceeding  for  that  purpose.^-  Likewise,  if 
the  circuit  court  remands  a  cause  and  the  state  court  thereupon  proceeds  to 
fnial  judgment,  the  action  of  the  circuit  court  is  not  reviewable  on  writ  of 
error  to  such  judgment. ^^ 


it  came,  such  remand  shall  be  immediately 
carried  into  execution,  and  no  appeal  or 
writ  of  error  from  the  decision  of  the 
circuit  court  so  remanding  such  cause 
shall  be  allowed,"  it  was  held,  that  this 
court  has  no  appellate  jurisdiction  to  re- 
view an  order  of  the  circuit  court  remand- 
ing the  cause  to  the  state  court.  Chicago, 
etc.,  R.  Co.  V.  Roberts.  141  U.  S.  G90,  693. 
35  L.  Ed.  905,  citing  Morey  7'.  Lockhart, 
123  U.  S.  56,  58,  31  L-  Ed.  68;  Railroad 
Co.  V.  Wiswall,  23  Wall.  507,  22  L.  Ed. 
103;  Richmond,  etc.,  R.  Co.  v.  Thouron, 
134  U.    S.   45,   47,   33    L.    Ed.   871. 

89.  Chicago,  etc.,  R.  Co.  v.  Gray.  131 
U.  S.  396,  32  L.  Ed.  212;  Burlington,  etc., 
R.  Co.  V.  Dunn,  122  U.  S.  513,  30  L.  Ed. 
1159;  Richmond,  etc.,  R.  Co.  v.  Thou- 
ron, 134  U.  S.  45,  46,  33  L.  Ed.  871;  Mo- 
rey V.  Lockhart,  123  U.  S.  56,  57.  31  L. 
Ed.  68. 

By  §  6  of  the  act  of  March  3,  1887  (24 
Stat.  552,  555,  c.  373).  as  corrected  by  the 
act  of  August  13,  1888  (25  Stat.  433,  c. 
866),  the  provision  to  that  efifect  was  re- 
pealed, and  it  was  also  provided  by  the 
act  that  "no  appeal  or  writ  of  error  from 
the  decision  of  the  circuit  court  so  re- 
manding such  cause  shall  be  allowed." 
Gurnee  v.  Patrick  County,  137  U.  S.  141, 
143^  34   L.   Ed.    601. 

"Since  the  act  of  1887  took  efifect,  an 
order  of  the  circuit  court  remanding  a 
cause  to  a  state  court  cannot  be  reviewed 
by  this  court  under  §  693  of  the  Re- 
vised Statutes  providing:  'Any  final 
judgment  or  decree  in  any  civil  suit  or 
proceeding  before  a  circuit  court  *  *  * 
wherein  the  said  judges  certify,  as  pro- 
vided by  law,  that  their  opinions  were 
opposed,  *  *  *  may  be  reviewed  and  af- 
firmed, reversed  or  modified  by  the  su- 
preme court,  on  writ  of  error  or  appeal, 
according  to  the  nature  of  the  case,  and 
subject  to  the  provisions  of  law  appli- 
cable to  other  writs  of  error  or  appeals 
in  regard  to  bail  and  supersedeas,'  be- 
cause there  has  been  no  judgment  in  the 
suit,  and  therefore  this  section  does  not 
apply.      This    was    the    ground    on    which 

1  U  S  Enc-61 


an  appeal  was  denied  in  Railroad  Co.  i. 
Wiswall,  23  Wall.  507,  22  L.  Ed.  103, 
v/here  it  was  said:  "The  order  of  the 
circuit  court  remanding  the  cause  to  the 
state  court  is  not  a  final  judgment  in  the 
action,  but  a  refusal  to  hear  and  decide.' 
No  case  can  be  brought  up  under  §  693, 
until  there  has  been  a  final  judgment  or 
decree  in  the  suit."  Morey  v.  Lockhart, 
123  U.  S.  56,   31   L.  Ed.   68. 

90.  In  re  Pennsylvania  Co.,  137  U.  S. 
451,   454.   34    L.   Ed.   738. 

By  §  6  of  the  act  of  March  3,  1887.  ch. 
373,  as  re-enacted  by  the  act  of  August 
13,  1888,  ch.  866,  §  5  of  the  act  of  March 
3,  1875,  ch.  137,  was  expressly  repealed; 
and  by  §  2  it  was  enacted  that  whenever 
the  circuit  court  of  the  United  States 
should  decide  that  a  cause  had  been  im- 
properly removed,  and  order  it  to  be 
remanded  to  the  state  court  from  which 
it  came,  "such  remand  shall  be  immedi- 
ately carried  into  execution,  and  no  ap- 
peal or  writ  of  error  from  the  decision 
of  the  circuit  court  so  remanding  such 
cause  shall  be  allowed."  24  Stat.  553. 
555;  25  Stat.  435,  436.  Under  that  statute, 
it  has  been  constantly  held,  that  thi.-. 
court  has  no  power  to  review  by  appeal 
or  writ  of  error  an  order  of  a  circuit 
court  of  the  United  States  remanding  a 
case  to  a  state  court.  German  Nat. 
Rank  v.  Speckert,  181  U.  S.  405,  406,  45 
L.   Ed.   926. 

91.  Smith  V.  Lyon,  133  U.  S.  315,  33  L. 
Ed.  635;  In  re  Pennsylvania  Co..  137  U. 
S.  451,  34  L.  Ed.  738;  Fisk  V.  Henarie, 
142  U.  S.  459,  467,  35  L.  Ed.  1080;  Mis- 
souri Pac.  R.  Co.  V.  Fitzgerald.  160  U.  S. 
556,  583,  40  L.  Ed.  536,  reaffirmed  in  Jeske 
V.  Cox,   171  U.  S.  685,  43   L.   Ed.   1179. 

92.  Missouri  Pac.  R.  Co.  v.  Fitzgerald, 
160  U.  S.  556.  582,  40  L.  Ed.  536,  reaffirmed 
in  Jeske  v.  Cox,  171  U.  S.  685.  43  L.  Ed. 
1179,  citing  In  re  Pennsjdvania  Co.,  137 
U.  S.  451,  34  L.   Ed.  738. 

93.  Missouri  Pac.  R.  Co.  v.  Fitzgerald, 
160  U.  S.  556,  582,  40  L.  Ed.  536,  reaf- 
firmed  in  Jeske  v.   Cox,   171   U.  S.   685,  43 


962 


AFFBAL  AND  ERROR. 


Effect  of  Repeal  on  Pending  Proceedings. — The  proviso  in  §  6  of  the  act 

of  March  3,  1887,  denying  the  power  to  this  court  to  review  orders  of  the  cir- 
cuit court  remanding  a  cause  to  a  state  court,  "that  this  act  shall  not  affect  the 
jurisdiction  over  or  disposition  of  any  suit  removed  from  a  court  of  any  state 
or  suit  commenced  in  any  court  of  the  United  States,  before  the  passage  hereof," 
relates  only  to  the  jurisdiction  of  the  circuit  courts  of  the  United  States,  and 
does  not  confer  upon  this  court  jurisdiction  over  a  writ  of  error  from  a  judg- 
ment remanding  a  cause  to  a  state  court,  when  the  suit  was  begun  and  removerl 
before  the  act  of  1887,  but  not  remanded  until  afterwards.'''*  The  general  rule 
is  that  if  a  law  conferring  jurisdiction  is  repealed  without  any  reservation  as 
to  pending  cases,  all  such  cases  fall  with  the  law.^'^ 

Effect  of  Repeal  on  Mandamus. — Although  the  act  of  March  3,  1887,  tak- 
ing away  the  right  of  this  court  to  review  orders  remanding  causes  to  state 
courts,  in  terms  only  abolishes  appeals  and  writs  of  error,  and  does  not  mention 
writs  of  mandamus,  and  though  it  is  a  general  rule  that  the  abrogation  of  one 
remedy  does  not  affect  another,  yet  it  is  clearly  the  intention  of  congress  to 
make  the  judgment  of  the  circuit  court  remanding  the  cause  to  the  state  court 
final  and  conclusive.  "The  general  object  of  the  act  is  to  contract  the  juris- 
diction of    the    federal    courts.     The    abrogation  of  the  writ  of  error  and  appeal 


L.  Ed.  1179;  Nelson  v.  Moloney,  174  U. 
S.   164.  43   L.  Ed.   934. 

94.  Wilkinson  v.  Nebraska,  123  U.  S. 
286,  31  L.  Ed.  152;  Gurnee  v.  Patrick 
County.  137  U.  S.   141,  143,  34   L.  Ed.  601. 

This  court  cannot  review,  on  appeal 
or  writ  of  error,  the  order  of  a  circuit 
court,  remanding  a  suit  which  had  been 
removed  under  the  act  of  1887  and  which 
was  begun,  removed  and  remanded  after 
that  act  went  into  effect.  Sherman  v. 
Grinnell,  123  U.  S.  679,  31  L.  Ed.  278, 
following  Morey  v.  Lockhart,  123  U.  S. 
56.  31   L.   Ed.  68. 

In  Morey  v.  Lockhart,  123  U.  S.  56, 
31  L.  Ed.  68,  it  was  held,  that  this  court 
had  no  power  to  review  on  appeal  or 
writ  of  error  an  order  of  the  circuit  court 
remanding  a  cause  to  a  state  court  when 
it  was  commenced,  removed  and  re- 
manded after  the  act  of  March  3,  1887, 
went  into  effect.  Gurnee  z'.  Patrick 
County,  137  U.   S.   141.  143,  34  L.   Ed.  601. 

In  Sherman  v.  Grinnell,  123  U.  S.  679, 
31  L.  Ed.  278,  the  order  to  remand  was 
made  while  the  act  of  March  3.  1875,  was 
in  force,  but  the  writ  of  error  was  not 
brought  until  after  the  passage  of  the  act 
of  March  3,  1887,  and  it  was  held,  that 
this  court  could  not  take  jurisdiction. 
Gurnee  v.  Patrick  County,  137  U.  S.  141, 
144,  34  L.   Ed.  601. 

"The  provision  of  the  act  of  March 
3,  1875,  c.  137,  18  Stat.  470,  giving  the  ju- 
risdiction to  this  court  to  review  an  order 
of  a  circuit  court  remanding  a  suit  removed 
from  a  state  court,  was  repealed  by  the  act 
of  1887  without  any  reservation  as  to 
pending  cases,  the  proviso  in  the  re- 
pealing section  having  reference  'only 
to  the  jurisdiction  of  the  circuit  court  and 
the  disposition  of  the  suit  on  its  merits." 
Wilkinson  v.  Nebraska,  ubi  supra.  As  a  con- 
sequence of  this,  the  repeal  operated  to 
take  away  jurisdiction  in  cases  where  the 


order  to  remand  had  been  made,  but  no 
appeal  or  writ  of  error  taken,  because  'if 
a  law  conferring  jurisdiction  is  repealed 
without  a  reservation  as  to  pending  cases, 
all  such  cases  fall  with  the  law.'  Rail- 
road Co.  V.  Grant,  98  U.  S.  398,  401,  25 
L.  Ed.  231."  Sherman  v.  Grinnell,  123 
U.  S.  679,  680,  31   L.   Ed.  278. 

The  proviso  in  §  6  of  the  act  of  March 
3,  1887,  24  Stat.  552,  c.  373,  concerning 
the  jurisdiction  over  suits  which  had  been 
removed  from  the  state  court  prior  to 
the  passage  of  the  act,  relates  only  to  the 
jurisdiction  of  circuit  courts  of  the  United 
States,  and  does  not  confer  upon  this 
court  jurisdiction  over  an  appeal  from  a 
judgment  remanding  a  cause  to  a  state 
court;  but  such  jurisdiction  was  expressly 
taken  away  by  the  last  paragraph  of  §  2 
of  the  act.  taken  in  connection  with  the 
repeal  of  §  5  of  the  act  of  March  3,  1875, 
18  Stat.  470.  Wilkinson  v.  Nebraska,  123 
U.   S.  2S6,  31   L.   Ed.   152. 

"Chief  Justice  Waite  said:  'It  is  diffi- 
cult to  see  what  more  could  be  done  to 
make  the  action  of  the  circuit  court  final, 
for  all  the  purposes  of  the  removal,  and  not 
the  subject  of  review  in  this  court.  First, 
ii  is  declared  that  there  shall  be  no  ap- 
peal or  writ  of  error  in  such  a  case,  and 
then,  to  make  the  matter  doubly  sure,  the 
only  statute  which  ever  gave  the  right 
of  such  an  appeal  or  writ  of  error  is  re- 
pealed." Morey  v.  Lockhart  (1887),  123 
U.  S.  56,  31  L.  Ed.  68.  And  it  was  held 
that  the  act  prohibited  a  writ  of  error 
after  that  statute  took  efifect  to  review  an 
order  of  remand  made  while  the  act  of 
1875  was  in  force.  Sherman  r.  Grinnell 
(1887).  123  U.  S.  679.  31  L.  Ed.  278." 
German  Nat.  Bank  z'.  Speckert,  181  U.  S. 
405,   406,  45   L.  Ed.  926. 

95.  Gurnee  z:  Patrick  County,  137  U.  S. 
141,  144,  34  L.  Ed.  601;  Railroad  Co.  v. 
Grant.  98  U.  S.  398,  401,  25  L.  Ed.  231. 


APPEAL  AXD  ERROR.  963 

would  have  had  little  effect  in  putting  an  end  to  the  question  of  removal,  if  the 
writ  of  mandamus  could  still  have  been  sued  out  in  this  court.  It  is  true  that 
the  general  supervisory  power  of  this  court  over  inferior  jurisdictions  is  of  great 
moment  in  a  public  point  of  view,  and  should  not,  upon  light  grounds,  be  deemed 
to  be  taken  away  in  any  case.  Still,  although  the  writ  of  mandamus  is  not  men- 
tioned in  the  section,  yet  the  use  of  the  words  "such  remand  shall  be  immc- 
-diately  carried  into  execution.'  in  addition  to  the  prohibition  of  appeal  and  writ 
•of  error,  is  strongly  indicative  of  an  intent  to  suppress  further  prolongation  of 
the  controversy  by  whatever  process.  We  are,  therefore,  of  opinion  that  the 
act  has  the  effect  of  taking  away  the  remedy  by  mandamus  as  well  as  that  of 
appeal  and  writ  of  error. ''^*^ 

When  Reviewable  under  Act  of  March  3,  1887. — If  a  case  be  removed 
to  the  circuit  court  and  a  motion  to  remand  be  made  and  denied,  then  after  final 
judgment  the  action  of  the  circuit  court  in  refusing  to  remand  may  be  reviewed 
here  on  error  or  appeal.^'  So.  also,  if  the  circuit  court  and  the  state  court  go 
to  judgment,  respectively,  each  judgment  is  open  to  revision  in  the  appropriate 
mode.''^ 

(4)  Under  the  Act  of  February  2=,,  i88q. — By  tlie  act  of  February  25.  1889 
(25  Stat.  693,  c.  236),  it  was  provided  that  in  all  cases  where  a  final  judgment 
•or  decree  should  be  rendered  in  a  circuit  court  of  the  United  States  in  which 
there  was  a  question  involving  the  jurisdiction  of  the  court,  the  partv  against 
whom  the  judgment  or  decree  was  rendered  should  be  entitled  to  an  appeal  or 
writ  of  error  to  this  court,  without  reference  to  the  amount  of  such  judgment  or 
decree,  but  where  it  did  not  exceed  the  sum  of  $5,000,  the  question  of  jurisdic- 
tion should  alone  be  reviewable. ^^  An  order  remanding  a  cause  from  the  circnit 
court  of  the  United  States  to  the  state  court  from  which  it  was  removed,  is  not 
a  final  judgment  or  decree  which  this  court  has  jurisdiction  to  review. ^  An 
order  overruling  a  motion  to  remand  a  case  to  a  state  court  is  not  a  final  judg- 
ment on  the  merits.-  But  where  the  judgment  does  not  exceed  $5,000.  the  case 
can  only  come  to  this  court  on  the  question  of  the  jurisdiction  of  the  circuit 
court.3 

(5) Under  Circuit  Court  of  Appeals  Act. — And  under  §  4  and  §  5  of  the  cir- 
cuit court  of  appeals  act,  this  court  has  no  jurisdiction  to  review  in  error  or  on 
appeal,  in  advance  of  the  final  judgment  in  the  cause  on  the  merits,  an  order  of 
the  circuit  court  of  the  United  States  remanding  the  cause  to  the  state  court  from 
which  it  had  been  removed  to  the  circuit  court.* 

96.  In  re  Pennsylvania  Co.,  1.37  U.  S.  mond,  etc.,  R.  Co.  v.  Thouron,  134  U.  S. 
451,  454,  34  L.  Ed.  738;  Missouri  Pac.  R.  45,  33  L.  Ed.  871;  Texas  Land,  etc.,  Ccx. 
Co.  V.  Fitzgerald.  160  U.  S.  556.  581,  40  v.  Scott.  137  U.  S.  436,  34  L.  Ed.  T30; 
L.  Ed.  536,  reaffirmed  in  Jeske  z'.  Cox,  Hurlbiit  Land,  etc..  Co.  v.  Truscott,  16S 
171  U.  S.  685.  43  L.  Ed.  1179;  German  U.  S.  719,  41  L.  Ed.  1185;  Powers  z». 
Nat.  Bank  v.  Speckert,  181  U.  S.  405,  408,  Chesapeake,  etc.,  R.  Co.,  l«9  U.  S.  92.  9«, 
45  L.  Ed.  926.  42   L.   Ed.   673. 

97.  Graves  v.  Corbin,  132  U.  S.  571,  33  2.  Bender  v.  Pennsylvania  Co..  148  U. 
L.  Ed.  462;  Missouri  Pac.  R.  Co.  z\  Fitz-  S.  502,  37  L.  Ed.  537,  citing  McLish  V. 
gerald,  160  U.  S.  556,  582.  40  L.  Ed.  536,  RofiF,  141  U.  S.  661.  35  L.  Ed.  893;  Chi- 
reaffirmed  in  Jeske  v.  Cox.  171  U.  S.  685,  cago,  etc.,  R.  Co.  v.  Roberts,  141  U.  S. 
43  L.  Ed.  1179;  In  re  Pollitz,  206  U.  S.  690,  35  L.  Ed.  905;  Jey  v.  Adelbert  Col- 
323,  333,  51  L.  Ed.  1081.  lege,    146   U.   S.   355,  36  L-    Ed.    1003;     Mc- 

98.  Removal  Cases,  100  U.  S.  457,  Dowell  v.  Jordan,  169  U.  S.  734,  42  L.  Ed. 
25    L.    Ed.    593;    Missouri    Pac.    R.    Co.   v.       1215. 

Fitzgerald,    160   U.   S.   556,   582.   40   L.    Ed.  3.    St.    Louis,    etc.,    R.    Co.    v.    McBride, 

536,  reaffirmed  in  Jeske  v.  Cox,   171  U.   S.  141    U.    S.    127,    35    L.    Ed.    659,    citing   S5 

685,  43  L.  Ed.  1179.  Stat.  693,  c.  236;     McCormick  Harvesting 

99.  Under  the  act  of  February  25,  1889.  Machine  Co.  v.  Walthers,  134  U.  S.  41, 
— Gurnee    v.    Patrick    County.    137    U.     S.  33  L.  Ed.  833. 

141,  144,  34  L-  Ed.  601.  4.  Under  circuit  court  of  appeals  act — 

1.     Birdseye    v.    Shaefifer,    140   U.    S.    117,  Illinois    Central    R.    Co.   v.    Brown.    156   U. 

35    L.    Ed.    402,    citing    Gurnee    v.    Patrick  S.    386.    39    L.    Ed.    461,    following    McLish 

County,  137  U.  S.  141.  34  L.  Ed.  601;  Rich-  v.  Roff,  141  U.  S.  661,  35  L.  Ed.  893;   Chi- 


964 


APPEAL  AND  ERROR. 


From  Circuit  Court  of  Appeals. — Nor  does  an  appeal  or  writ  of  error  lie 
to  this  court  from  a  circuit  court  of  appeals,  under  §  6  of  that  act  in  advance  of 
final  judgment.^  Under  the  act  of  March  3,  1891,  ch.  517,  §  6,  no  appeal  lies 
to  the  supreme  court  of  the  United  Sates  from  a  judgment  of  the  circuit  court 
of  appeals  reversing  an  order  of  a  circuit  court  of  the  United  States  denying  a 
motion  to  remand  a  cause  to  a  state  court,  and  directing  the  circuit  court  to  re- 
mand the  cause  to  the  state  court.^ 

p.  Vacating  and  Setting  Aside  Judgment. — Judgment  on  Writ  of  Error 
Coram  Nobis. — A  judgment  on  a  writ  of  error  coram  nobis  is  not  a  final  judg- 
ment to  which  a  writ  of  error  will  lie."^ 

q.  Orders  for  Distribution  of  Property. — An  order  for  the  distribution  of 
property  has  been  held  final  for  the  purposes  of  an  appeal  to  this  court.* 

r.  Judgments  on  Rules  or  Motions. — In  General. — The  judiciary  act  of  1789 
authorizes  the  supreme  court  to  issue  writs  of  error  to  bring  up  final  judgments 
or  decrees  in  a  civil  action,  etc.  The  decision  of  the  circuit  court  upon  a  rule 
or  motion    is  not   of  that    character.     Such    decisions  are    not    final    judgments.* 


cago,  etc.,  R.  Co.  v.  Roberts,  141  U.  S. 
690,  35  L.  Ed.  905. 

In  Chicago,  etc.,  R.  v.  Roberts  (1891), 
141  U.  S.  690,  35  L.  Ed.  905.  the  cases  of 
Morey  v.  Lockhart,  123  U.  S.  56,  31  L. 
Ed.  68,  and  Richmond,  etc.,  R.  v.  Thou- 
ron,  134  U.  S.  45,  33  L.  Ed.  871,  were  fol- 
lowed; and  it  was  held  that  §  5  of  the 
judiciary  act  of  March  3,  1891,  ch.  517. 
giving  a  writ  of  error  from  this  court 
"in  any  case  in  which  the  jurisdiction  of 
the  court  is  in  issue."  does  not  authorize 
a  writ  of  error  to  review  an  order  of  the 
circuit  court,  remanding  a  case  for  want 
of  jurisdiction,  because  such  order  is  not 
a  final  judgment.  German  Nat.  Bank  v. 
Speckert,  181  U.  S.  405,  408,  45  L.  Ed. 
926. 

Under  the  circuit  court  of  appeals  act, 
an  order  of  the  circuit  court  remanding 
a  case  to  a  state  court  from  which  it  has 
been  removed,  is  not  reviewable  by  this 
court.  Powers  z\  Chesapeake,  etc.,  R. 
Co..  169  U.  S.  92,  42  L.  Ed.  673,  citing 
Gurnee  v.  Patrick  County.  137  U.  S.  141, 
34  L.  Ed.  601;  In  re  Pennsylvania  Co., 
137  U.  S.  451,  34  L.  Ed.  738;  Birdseye  v. 
Shaefifer,  140  U.  S.  117,  35  L.  Ed.  402; 
Missouri  Pac.  R.  Co.  v.  Fitzgerald,  160 
U.  S.  556,  40  L.  Ed.  536. 

5.  German  Nat.  Bank  v.  Speckert,  181 
U.   S.  405,   409,  45   L.   Ed.  926. 

6.  German  Nat.  Bank  z:  Speckert,  181 
U.  S.  405.  45  L.  Ed.  926,  reaffirmed  in 
Cole  V.  Garland.  183  U.  S.  693,  46  L.  Ed. 
393. 

7.  Vacating  and  setting  aside  judgments. 
— United  States  v.  Abatoir  Place,  106  U. 
S  160.  27  L.  Ed.  128,  citing  Boyle  v.  Zach- 
arie,  6  Pet.  635,  8  L.  Ed.  527,  532;  Pickett 
V.  Legerwood,  7  Pet.  144.  8  L.  Ed.  638; 
Smith  V.  Trabue,  9  Pet.  4,  9  L.  Ed.  30; 
Evans  V.  Gee,  14  Pet.  1.  10  L.  Ed.  327; 
Ami-s  V.  Smith,  16  Pet.  303.  10  L.  Ed. 
973;  Morsell  v.  Hall,  13  How.  212.  14 
L.  Ed.  117;  McCargo  v.  Chapman,  20 
How.  555,  15  L.  Ed.  1021;  Gregg  v.  For- 
syth, 2  Wall.  56,  17  L.  Ed.  782;  Barton 
V.   Forsyth,   5  Wall.   190,  18   L.    Ed.    545. 


In  the  circuit  court  for  the  district  of 
Kentucky,  a  judgment  in  favor  of  the 
plaintiff  in  an  ejectment  was  entered  in 
1798,  and  no  proceedings  on  the  same 
until  1830;  when  the  period  of  the  demise 
having  expired,  the  court,  on  motion,  and 
notice  to  one  of  the  defendants,  made  an 
order  inserting  a  demise  of  fifty  years. 
It  having  been  afterwards  shown  to  the 
court  that  the  parties  really  interested 
in  the  land  when  the  motion  to  amend 
was  made  had  not  been  noticed  of  the 
proceeding,  the  court  issued  a  writ  of 
error  coram  vobis,  and  gave  a  judgment 
sustaining  the  same,  and  that  the  order 
extending  the  demise  should  be  set  aside. 
From  this  judgment  a  writ  of  error  was 
prosecuted  to  this  court;  and  it  was  held 
that  the  judgment  on  the  writ  of  error 
coram  vobis,  was  not  such  a  judgment  as 
could  be  brou.ght  up  by  writ  of  error  for 
decision  to  this  court.  Pickett  v.  Leger- 
wood, 7  Pet.  144,  8  L.  Ed.  638,  followmg 
Walden  v.  Craig.  9  Wheat,  576,  6  L.  Ed. 
164. 

8.  Orders  for  Distribution  of  property. 
— Savanah  v.  Jesup,  106  U.  S.  563.  27  L. 
Ed.    276. 

A  decree  which  adjudges  a  certain  sum 
of  money  to  be  due  from  an  administra- 
tor to  each  of  the  distributees  of  his  in- 
testate's estate,  and  awards  execution  to 
collect  it,  is  a  final  decree.  An  added  di- 
rection that  the  defendant  be  allowed,  as 
payment  to  each  of  the  distributees,  the 
amount  of  any  note  held  by  him  against 
them,  and  also  that  the  several  shares 
of  the  parties  to  whom  the  estate  is 
awarded,  shall  be  subject  to  ratable  de- 
duction for  fees  yet  unpaid  for  the  col- 
lection of  notes  belon.ging  to  the  admin- 
istrator, does  not  make  the  decree  less 
final;  especially  when  it  does  not  appear 
that  the  administrator  held  any  notes 
against  any  of  the  distributees,  or  that 
there  were  any  unpaid  fees.  Stoval  v. 
Banks.   10  Wall.   583,   19   L.   Ed.   1036. 

9.  Judgments  on  rules  or  motions, — 
Toland  v.  Sprague,   12   Pet.   300,   9   L.   Ed. 


APPEAL  AND  ERROR. 


965 


This  rule  has  been  applied  to  judgments  on  motions  to  set  aside  writs  of  restitu- 
tion,i<^  to  judgments  an  rules  or  motions  to  quash  execution/^  t©  j»dgments  on 
motions  to  strike  out  pleadings. ^^  and  to  judgments  on  various  other  motions, 
instances  of  which  will  be  found  set  out  in  the  footnotes. ^^     So,  also,  a  decision 


/093;  McCargo  z\  Chapman,  20  How.  555, 
15    L.    Ed.    1021. 

■'The  judiciary  act  authorizes  this  court 
to  issue  writs  of  error  to  bring  up  a  tinal 
judgment  or  decree  in  a  civil  action,  or 
sait  in  equity,  etc.  The  decision  of  the 
court  upon  a  rule  or  motion  is  not  of  that 
character.  This  point,  which  is  clear  upon 
the  words  of  the  kw.  has  been  often 
adjudged  in  this  court;  without  going 
farther,  it  will  be  sufficient  to  refer  to 
Boyle  V.  Lacharie.  6  Pet.  635,  8  L.  Ed. 
S27;  Smith  v.  Trabue,  9  Pet.  4,  9  L.  Ed. 
30.  In  the  first  of  these  cases  the  question 
is  elaborately  argued  by  the  coart,  with 
a  review  of  aiuhorities,  and  they  come  to 
this  conclusion,  that  they  consider  all 
motions  of  this  sort  (that  is)  to  quash 
executions,  as  addressed  to  the  sound 
discretion  of  the  court,  a-nd  as  a  sum- 
mary relief,  which  the  court  is  not  com- 
peHable  to  allow.  That  the  refusal  to 
quash  is  not,  in  the  sense  of  the  common 
law,  a  judgment;  much  kss  is  it  a  final 
judgment.  It  is  a  mere  interlocutory  or- 
der. Even  at  common  law,  error  only 
lies  from  a  final  judgment,  and  by  the 
express  provisions  of  the  judiciary  act. 
a  writ  of  error  lies  to  this  court  only  in 
cases  of  final  judgments."  Toland  v. 
Sorague,  12  Pet.  300,  331,  9  L.  Ed.  1093, 
1106. 

10.  Motion  to  set  aside  writ  of  restitu- 
tion.— A  judgment  on  a  motion  made  by 
the  plaintiff  to  set  aside  a  writ  of  resti- 
tution which  had  been  issued  in  favor 
of  the  defendant  and  to  grant  a  writ  of 
restitution  to  the  plaintiff  in  a  case,  is 
not  a  final  judgment  within  the  terms  of 
the  said  section;  in  fact,  is  but  an  order 
of  court.  Hence,  no  jurisdiction  exists 
«f  a  writ  of  error  based  on  such  a  pro- 
ceeding. Barton  v.  Forsyth,  5  Wall.  190, 
18  L.  Ed.  545. 

11.  Motion  to  quash  execution. — Since 
the  judiciary  act  of  1789  authorizes  this 
court  to  revise  only  final  judgments  by  a 
writ  of  error,  a  decision  of  the  court  be- 
low, upon  a  rule  or  motion  to  quash  an 
execution,  is  not  of  that  character.  Mc- 
Cargo V.  Chapman,  20  How.  555,  15  L. 
Ed.  1021;  Boyle  v.  Zacharie.  6  Pet.  635, 
8  L.   Ed.  527. 

It  is  the  settled  doctrine  of  the  supreme 
court  of  the  United  States  that  a  writ  of 
error  does  not  lie  from  the  circuit  court 
on  a  refusal  of  a  motion  to  quash  an  ex- 
ecution; such  refusal  not  being  a  final 
judgment,  under  the  twenty-second  sec- 
tion of  the  judiciary  act  of  1789.  The 
opinion  of  the  court  on  the  case  of  Boyle 
V.  Zacharie,  6  Peters  635,  8  L.  Ed.  527, 
cited  and  affirmed.  Evans  v.  Gee,  14  Pet. 
1,    10    L.    Ed.    327. 


All  motions  to  quash  executions  are 
addressed  to  the  sound  discretion  of  the 
court,  and  as  a  summary  relief  which  the 
court  is  not  compellable  to  allow.  The 
party  is  deprived  of  no  right  by  the  re- 
fusal; and  he  is  at  full  liberty  to  redress 
his  grievance  by  writ  of  error,  or  audita 
querela,  or  other  remedy  known  to  the 
common  law.  The  refusal  to  quash  is 
not  in  the  sense  of  the  common  law  a 
judgment,  mu-ch  less  a  final  judgment.  It 
is  a  mere  interlocutory  order.  Even  at 
common  law,  error  only  lies  from  a  final 
judgment;  and  by  the  express  provisions 
of  the  judiciary  act  of  178-9,  a  writ  of  er- 
ror lies  to  this  court  only  in  cases  of  final 
judgment.  Boyle  v.  Zacharie,  6  Pet.  635. 
8  L.  Ed.  527. 

A  writ  of  error  will  not  lie  to  a  state 
court  to  review  an  order  overruling  a 
motion  to  quash  an  execution,  because  it 
is  not  a  final  judgment  or  decree  within 
the  meaning  of  the  federal  statutes.  Loe- 
ber  V.  Schroeder,  149  U.  S.  580,  581,  37 
L.   Ed.   856. 

It  is  well  settled  that  a  writ  of  error 
will  not  lie  except  to  review  a  final  judg- 
ment or  decree  of  the  highest  court  of 
the  state,  and  that  it  will  not  lie  to  an 
order  overruling  a  motion  to  quash  an 
execution,  because  a  decision  upon  the 
rule  or  motion  is  not  stich  a  final  judg- 
ment or  decree  in  any  suit,  as  is  contem- 
plated by  the  judiciary  acts  of  the  general 
government.  Refusal  to  quash  a  writ  is 
not  a  final  judgment.  Boyle  v.  Zacharie, 
6  Pet.  635,  657,  8  L-  Ed.  527;  McCargo  Z'. 
Chapman,  20  How.  555,  15  L.  Ed.  1021; 
Early  v.  Rogers,  16  How.  599,  14  L.  Ed. 
1074;  Amis  v.  Smith,  16  Pet.  303,  314,  10 
L.  Ed.  973;  Evans  v.  Gee,  14  Pet.  1.  10 
L.  Ed.  327;  Loeber  v.  Schroeder,  149  U. 
S.   580,   584,  37   L.   Ed.   856. 

12.  Motion  to  strike  out  pleadings. — A 
judgment  upon  motion  to  strike  out 
pleadings  is  not  such  a  final  judgment  as 
can  be  reviewed  by  this  court.  Holcombe 
V.  McKusick,  20  How.  552,  15  L.  Ed.  1020. 

13.  Motion  to  enter  exoneretur  of  bail. 
— A  judgment  of  a  court  upon  a  motion 
to  enter  an  exoneretur  of  bail  is  not  the 
proper  subject  of  a  writ  of  error.  Mor- 
sell   V.   Hall.    13    How.   212.   14   L.    Ed.    117. 

Motion  to  set  aside  sheriff's  return. — 
A  decree  of  the  highest  court  of  a  state 
affirming  an  order  of  an  inferior  court, 
by  which  a  motion  to  set  aside  a  sherifT's 
return  to  an  execution  was  allowed  and 
an  alias  execution  awarded,  is  not  a  "final 
judgment"  within  the  meaning  of  the  22d 
section  of  the  judiciary  act,  nor  within 
the  meaning  of  the  9th  section  of  the  or- 
ganic act  of  the  territory  of  Montana, 
giving    appeals    from    the    supreme    court 


966 


AFPtAL  AND  HKRUR. 


merely  on  a  coHateral  motion  is  not  such  a  judgment  in  the  cause  as  may  be 
brought  up  to  this  court  upon  a  writ  of  error. ^^ 

Motion  to  Intervene. — An  appeal  does  not  lie  from  an  order  of  the  court  be- 
low, denying  a  motion  in  a  pending  suit,  to  permit  a  person  to  intervene  and  be- 
come a  party  thereto.  ^^ 

s.  Judgments  Reversing  and  Remanding  Causes — (1)  In  General. — It  has 
been  uniformly  held  that  a  judgment  of  reversal  with  leave  for  further  proceed- 
ings in  the  court  below  cannot  be  brought  here  on  writ  of  error. ^^     Especially  is 


of    the   territory   to   this   court.     Wells   v. 
McGregor,  13   Wall.   188.   30   L.   Ed.   538. 

The  denial  of  a  motion  that  the  master 
to  whom  a  cause  has  been  referred  be 
directed  to  proceed  no  further  with  his 
accounting,  by  reason  of  an  alleged  com- 
promise and  settlement  that  had  been 
made  by  the  parties  in  respect  to  the 
matters  in  dispute,  and  direction  that  the 
cause  proceed,  is  ntit  a  final  decree  from 
which  an  appeal  will  lie.  De  Liano  v. 
Gaines,  131  U.  S.  appx.  ccxiv,  25  L.  Ed. 
928. 

Motion  to  enter  certificate  of  reasona- 
ble cause. — Where  there  was  an  informa- 
tion tiled  in  a  district  court  of  the  United 
States  against  a  distillery,  claiming  that 
it  was  forfeited  to  the  United  States  for 
vkilation  of  the  revenue  laws,  and  upon 
the  trial  the  district  court,  being  of  opin- 
ion that  there  was  no  evidence  of  any 
violation  of  the  revenue  laws,  for  which 
the  seizure  had  been  made,  directed  a 
verdict  for  him,  and  judgment  was  ren- 
dered thereon  in  his  favor,  whereupon 
the  United  States  moved  the  court  to 
enter  of  record  a  certificate  that  there  was 
a  reasonable  cause  of  seizure,  but  the 
motion  was  denied,  and  this  decision  was 
affirmed  by  the  circuit  court,  it  was  held 
that  no  writ  of  error  would  lie  to  this 
court  to  reverse  the  judgment  of  the  cir- 
cuit court,  because  the  granting  or  refus- 
ing to  grant  a  certificate  is  not  a  final 
judgment  in  the  sense  of  tlie  statute 
which  allows  writs  of  error.  United 
States  V.  Abatoir  Place,  106  U.  S.  160, 
27   L.   Ed.   128. 

14.  Walden  v.  Craig,  9  Wheat.  576,  6 
L.  Ed.  164;  Pickett  v.  Legerwood,  7  Pet. 
144,  8   L.   Ed.   638. 

A  judgment  on  a  writ  of  error  coram 
nobis  is  not  such  a  judgment  as  can  be 
brought  up  by  a  writ  of  error  for  deci- 
sion to  this  court,  being  a  decision  merely 
on  a  collateral  motion.  Pickett  v.  Leger- 
wood, 7   Pet.   144,   8   L.   Ed.   638. 

15.  Ex  parte  Cutting,  94  U.  S.  14,  24  L. 
Ed.  49;  Guion  v.  Liverpool,  etc.,  Ins.  Co.. 
109  U.  S.  173,  27  L.  Ed.  895;  Credits  Com- 
mutation Co.  V.  United  States,  177  U.  S. 
311,    317,    44    L.    Ed.    782. 

16.  Judgments  reversing  and  remand- 
ing causes  in  general.- — Brown  v.  Union 
Bank,  4  How.  465,  11  L.  Ed.  1058;  Pep- 
per V.  Dunlap.  5  How.  51,  12  L.  Ed.  46; 
Tracy  v.  Holcombe,  24  How.  426,  16  L. 
Ed.  T42;  Moore  v.  Robbins,  18  Wall.  588, 
21    L.   Ed.   758;    McComb   v.    Commission- 


ers of  Knox  County,  91  U.  S.  1,  23  L. 
Ed.  185;  Davis  v.  Crouch,  94  U.  S.  514, 
24  L.  Ed.  281;  Bostwick  v.  Brinkerhoff. 
106  U.  S.  3,  27  L.  Ed.  73;  Hurlbut  Land, 
etc.,  Co.  V.  Truscott,  165  U.  S.  719,  41  L. 
Ed.  1177;  Carmichael  v.  Eberle,  177  U. 
S.  63.  44  L.  Ed.  672;  Coughlan  v.  District 
of  Columbia,  106  U.  S.  7.  11,  27  L.  Ed. 
74,  citiflg  Baker  v.  White,  92  U.  S.  176, 
23  L.  Ed.  480;  Meyer  v.  Cox,  169  U.  S. 
735,  42  L.  Ed.  1217;  United  States  r-. 
Krall,  174  U.   S.   385,   43   L.   Ed.   1017. 

It  has  often  been  held  that  a  judgment 
of  reversal  with  directions  for  a  new 
trial  or  a  new  hearing  is  not  final.  But- 
terfield  v.  Usher.  91  U.  S.  246,  23  L.  Ed. 
318. 

Where  the  judgment  of  the  court  be- 
low reverses  the  decision  of  the  inferior 
court  and  awards  a  new  trial,  it  is  not  a 
final  judgment  from  which  a  writ  of  er- 
ror will  lie  to  this  court.  Tracy  v.  Hol- 
combe,  24    How.   426,   16    L.    Ed.    742. 

This  court  has  no  jurisdiction  of  an 
appeal  from  a  judgment  of  a  circuit  court 
remanding  to  a  state  court  a  cause  which 
had  been  improperlv  removed  from  it. 
Joy  V.  Adelbert  Coflege,  146  U.  S.  355, 
36  L.  Ed.  1003.  citing  Richmond,  etc.,  R. 
V.  Thouron,  134  U.  S.  45,  33  L.  Ed.  871,' 
Gurnee  v.  Patrick  County,  137  U.  S.  141, 
34  L.  Ed.  601;  McLish  v.  Roflf.  141  U.  S. 
661,  35  L.  Ed.  893;  Chicago,  etc.,  R.  Co. 
V.    Roberts.    141    U.    S.    6»0,   35    L.   Ed.   905. 

The  judgment  of  a  circuit  court,  revers- 
ing that  of  a  district  court  and  ordering 
a  new  trial,  is  not  final;  and  this  court 
has  no  jurisdiction  to  review  it.  Baker  v. 
White.  92  U.  S.  176,  23  L.  Ed.  480,  citing 
Parcels  v.  Johnson,  20  Wall.  653,  22  L. 
Ed.  410;  AlcComb  v.  Commissioners  of 
Knox   County.   91    U.   S.    1,   23    L.    Ed.    185. 

A  judgment  of  a  lower  appellate  court 
which  reverses  the  judgment  of  the  court 
of  original  jurisdiction,  and  remands  the 
case  to  it  for  further  proceedings,  is  not 
a  final  judgment.  Smith  v.  Adams,  130 
U.    S.    167,    f77,   32    L.    Ed.    895. 

An  order  made  at  the  general  term  of 
the  supreme  court  of  the  District  of  Co- 
lumbia remanding  a  cause  to  the  special 
term  for  further  proceedings  is  merely 
an  interlocutory  order,  and  not  a  final 
one  in  reference  to  matters  to  which  it 
relates.  Grant  v.  Phoenix,  etc.,  Ins.  Co.,. 
121   U.   S.   105.   112,   118,  30   L.   Ed.   905. 

A  decree  of  the  court  of  appeals  of  the 
District  of  Columbia,  reversing  an  order 
of   the   supreme  court,  and  remanding  the 


AFFtiAL  AND  HRROR. 


967 


this  the  case  when  the  opinion,  to  which  the  new  decree  is  required  to  conform, 


cause  to  that  court  for  further  proceed- 
ings, is  not  a  final  decree  from  which  an 
appeal  will  lie  to  the  United  States  su- 
preme court.  McFarland  v.  Byrnes.  187 
U.  S.  246,  47  L.  Ed.  162;  Macfarland  v. 
Brown,  187  U.  S.  239,  47  L.  Ed.  159.  dis- 
tinguishing Phillips  V.  Neglev,  117  U.  S. 
665.  29  L.  Ed.  1913;  Humphries  v.  Dis- 
trict of  Columbia,  174  U.  S.  190,  43  L. 
Ed.  944:  Clark  v.  Roller,  199  U.  S.  541. 
544,    50    L.    Ed.    300. 

A  decree  of  the  court  of  appeals  of  the 
District  of  Columbia,  reversing  and  re- 
manding the  cause  "that  the  account  be 
restated  in  accordance  with  the  princi- 
ples of  the  opinion  of  this  court"  and  for 
the  determination  of  who  were  the  next 
of  kin,  the  portions  they  should  take,  the 
eflfect  of  the  death  of  one  or  more  of 
them,  and  any  other  question  that  might 
arise,  is  not  final  so  as  to  justify  an  ap- 
peal by  the  executrix  therefrom,  although 
had  it  been  a  decree  of  affirmance,  an  ap- 
peal might  lie.  Kenaday  v.  Sinnott,  179 
U.    S.    606,    45    L.    Ed.    339. 

A  jadgment  of  the  supreme  court  of  a 
territory  which  merely  reverses  the  judg- 
inent  of  the  territorial  district  court,  and 
remands  the  cause  to  that  court  for  fur- 
ther proceedings  according  to  law  and  the 
ju-dgment  of  the  appellate  court,  is  not  a 
final  judgn^ent.  Smith  v.  Adams,  130  U. 
S.    167.    32    L.    Ed.    ?95. 

Where  bill  is  filed  to  enjoin  a  judgment, 
and  the  injunction  is  granted,  but  a  new 
trial  is  awarded  to  the  parties  who  had 
recovered  the  original  judgment,  it  was 
held  that  the  order  granting  the  new 
trial  is  merely  interlocutory  and  not  a 
final  decree  from  which  an  appeal  may  be 
taken.  Lea  v.  Kelly,  15  Pet.  213,  10  L. 
Ed.    715. 

A  decree  in  favor  of  the  plaintiff  for 
the  vsrhole  amount  of  his  claim,  but  which 
remands  the  cause  for  further  proceed- 
ings, is  not  a  final  appealable  decree,  be- 
cause until  those  proceedings  are  had.  the 
amount  of  such  indebtedness  could  not 
be  fixed  in  such  manner  as  to  give  this 
court  jurisdiction  of  an  appeal,  and  is 
purely  conjectural  upon  the  court  finding 
that  amount  to  be  due.  Hollander  v. 
Fechheimer,  162  U.  S.  326,  40  L.  Ed.  985, 
citing  Union  Mutual  Life  Ins.  Co.  v. 
KirchofT,   160    U.   S.   374,  40   L.   Ed.   461. 

District  coiart  of  Florida. — Under  the 
acts  of  1839,  ch.  20  (5  Stat,  at  Large  315), 
and  1840,  ch.  43  (5  Stat,  at  Large  392), 
where  a  case  was  carried  from  the  dis- 
trict court  for  the  middle  district  of  Ala- 
bama to  the  circuit  court  for  the  south- 
ern district  of  Alabama,  and  the  circuit 
court  reversed  the  judgment  of  the  dis- 
trict court,  it  was  not  a  proper  mode  of 
proceeding  to  bring  the  case  to  this  court 
upon  such  reversal.  The  judgment  of 
the  di.«trict  court  having  been  reversed, 
the  plaintiff  should  have  taken  the  neces- 


sary steps  to  bring  his  case  to  a  final 
decision  in  the  circuit  court,  in  the  same 
manner  as  if  the  suit  had  been  originally 
brought  there.  This  court  could  then 
have  re-examined  the  judgment  of  the 
circuit  court,  if  a  writ  of  error  were  sued 
out.  Mayberry  v.  Thompson.  5  How. 
121,    12    L.    Ed.    78. 

It  has  been  held,  that  a  decree  of  the 
circuit  court  of  appeals  reversing  the 
judgment  of  the  trial  court  and  remand- 
ing the  cause  for  further  proceedings  in 
accordance  with  the  views  expressed  in 
its  opinion,  is  not  a  final  judgment  re- 
viewable by  this  court.  United  States  v. 
Krall,  174  U.  S.  385,  43  L.  Ed.  1017,  reaf- 
firmed in  Wishkah  Boom  Co.  v.  United 
States.   202   U.   S.   613.   50    L.   Ed.   1171. 

Cross  writ  of  error. — A  circuit  court 
of  appeals  afifirmed  a  judgment  on  writ 
of  error  and  reversed  it  on  cross  writ  ©f 
error  and  remanded  the  cause  for  a  new 
trial  of  the  question  presented  by  the 
cross  writ  of  error.  It  was  held  that  the 
judgment  of  the  court  of  appeals  on  the 
cross  writ  of  error  operated  to  reverse 
the  prior  judgment  of  affirmance,  inas- 
much as  the  court  in  turn  reversed  the 
judgment  of  the  circuit  court,  although 
imposing  a  limitation  on  the  extent  of 
the  new  trial  awarded.  Even  if  the  court 
of  appeals  had  power  to  impose  the  lim- 
itation, the  issue  so  reserved  deprived  the 
first  judgment  of  finality  so  far  as  the 
jurisdiction  of  the  supreme  court  of  the 
LTnited  States  is  concerned.  Montana 
Min.  Co.  V.  St.  Louis  Min.,  etc.,  Co.,  186 
U.  S.  24,  46  L.  Ed.  1039.  citing  and  ap- 
proving Covington  v.  Covington  Nat. 
Bank.   185    U.   S.   270,   46   L.   Ed.   906. 

A  decree  in  a  court  below,  reversing  a 
decree  where,  on  a  bill  to  fcreclcse  a 
mortgage,  a  court  below  it  had  decreed 
in  favor  of  the  complainant,  and  "remand- 
ing" the  case  to  such  inferior  court  for 
"such  other  and  further  proceedings  as 
to  law  and  justice  shall  appertain,"  is  not 
a  final  decree  within  either  the  judiciary 
act  of  1789  or  the  act  of  1867  amendatory 
of  it.  A  writ  taken  on  a  contrary  as- 
sumption dismissed.  Moore  v.  Robbias, 
18  Wall.  588,  21  L.  Ed.  758,  citing  Brown 
V.  Union  Bank,  4  How.  465,  11  L.  Ed. 
1058;  Pepper  v.  Dunlap.  5  How.  51,  12 
L.  Ed.  46;  Tracv  v.  Holcombe,  24  How. 
426,   16   L.    Ed.    74'^. 

Sales  under  trust  deed. — Where  an  ap- 
peal is  brought  by  the  holder  of  one  of 
several  promissory  notes  secured  by  a 
deed  of  trust  against  the  maker  of  the 
notes,  the  trustee  and  the  holder  of  the 
other  notes,  to  set  aside  the  sale  and  far 
an  account  of  the  rents  of  the  trust  prop- 
erty which  had  been  collected  by  the 
holder  of  the  other  note,  and  the  court 
below  ratifies  and  confirms  the  sale,  and 
remands  the  cause  for  further  proceed- 
ings, it  was  held  that  this  decree  was  not 


968 


APPEAL  AND  ERROR. 


does  not  appear. i"  A  judgment  of  reversal  is  only  final  wl>en  it  also  enters  or 
directs  the  entry  of  a  judgment  which  disposes  of  the  case.^^ 

In  the  language  of  Mr.  Justice  Brown,  the  rule  is  well-nigh  umversal  that, 
if  the  case  be  remanded  by  the  appellate  court  to  the  court  below  for  further  ju- 
dicial proceedings,  in  conformity  with  the  opinion  of  the  appellate  court,  the  de- 
cree is  not  final. 1^ 

The  face  of  a  judgment  is  the  test  of  its  finality,  and  the  supreme  court 
will  not  inquire  whether  in  case  of  a  new  trial  of  a  case  remanded  for  further 
proceedings,  the  defeated  party  will  stand  in  a  position  to  make  a  better  casc.^" 

(2)  Error  to  State  Courts. — A  writ  of  error  will  not  lie  from  the  federal  su- 
preme court  to  the  supreme  court  of  the  state  to  review  its  judgment  reversing 
that  of  the  trial  court,  and  remanding  the  cause  for  further  proceedings  in  liar- 
mony  with  the  opinion  of  the  court,  because  a  judlgment  couched  in  such  terms 
is  not  final  in  such  a  sense  as  to  sustain  a  writ  of  error  from  this  court. ^^     When 


final  within  the  meaning  of  that  term  as 
used  in  the  statute  allowing  appeals  to 
this  court.  Daincse  v.  Kendall,  119  U. 
S.    53,   30    L.    Ed.   305. 

17.  Brown  v.  Baxter,  146  U.  S.  619,  36 
L.  Ed.  1106;  Houston  v.  Moore,  3  Wheat. 
433.  4  L.  Ed.  428;  Bostwick  v.  Brinker- 
hoff.  106  U.  S.  3,  27  L.  Ed.  73;  Johnson 
V.  Keith,  117  U.  S.  199,  29  L.  Ed.  888; 
Rice  V.  Sanger,  144  U.  S.  197,  36  L.  Ed. 
403;  Meagher  v.  Minnesota  Thresher 
Mfg.  Co.,  145  U.  S.  608,  36  L.  Ed.  834; 
Hume  V.  Bowie.  148  U.  S.  245,  37  L.  Ed. 
438:  Werner  v.  Charleston,  151  U.  S.  360, 
3S  L-  Ed.  192;  Union  Life  Ins.  Co. 
V.  Kirchoff,  160  U.  S.  374,  378,  40  L. 
Ed.  461,  reaffirmed  in  Meyer  v.  Cox.  169 
U.  S.  735,  42  L.  Ed.  1217;  Jeske  v.  Cox, 
171   U.   S.   685,   43   L.    Ed.   1179. 

18.  Smith  V.  Adams,  130  U.  S.  167,  177, 
32  L.  Ed.  895;  Hurlburt  Land,  etc..  Co. 
V.  Truscott,  165  U.  S.  719,  41  L.  Ed.  1177; 
Oklahoma  v.  Neville,  181  U.  S.  615,  45 
L.  Ed.  1029;  Chesapeake,  etc.,  Tel.  Co.  v. 
Manning.  186  U.  S.  238,  46  L.   Ed.   1144. 

19.  L^nion  Life  Ins.  Co.  v.  Kirchoff, 
160  U.  S.  374,  378,  40  L.  Ed.  461,  reaf- 
firmed in  Meyer  v.  Cox,  169  U.  S.  735, 
42  L.  Ed.  1217;  Jeske  v.  Cox,  171  U.  S. 
685,  43   L.   Ed.   1179. 

20.  Haseltine  v.  Bank,  183  U.  S.  130. 
131,  46  L.  Ed.  117. 

21.  Judgment  of  highest  state  court  re- 
versing and  remanding  cause  not  final. — 
Haseltine  v.  Bank.  183  U.  S.  130,  46 
L.  Ed.  117;  Brown  v.  Union  Bank,  4 
How.  465,  11  L.  Ed.  1058;  Pepper  v.  Dun- 
lap.  5  How.  51,  12  L.  Ed.  46;  Tracy  v. 
Holcombe,  24  How.  426,  16  L.  Ed.  742; 
Moore  v.  Robbins,  18  Wall.  588,  21  L.  Ed. 
758;  St.  Clair  County  v.  Lovington,  18 
Wall.  628,  21  L.  Ed.  813;  Parcels  v.  John- 
son, 20  Wall.  653.  654,  22  L.  Ed.  410; 
Baker  v.  White,  92  U.  S.  176,  23  L.  Ed. 
4«0;  Bostwick  v.  BrinkerhofT,  106  U.  S. 
34,  27  L.  Ed.  73;  Johnson  v.  Keith,  117 
U.  S._199,  29  L.  Ed.  888.  reaffirmed  in 
Tnternational  Trust  Co.  v.  Weeks,  193  U. 
S.  667,  48  L.  Ed.  839;  Perea  v.  Perea  de 
Harrison,  195  U.  S.  623,  49  L  Ed*.  349 ;  White 
V.  Wright.  189  U.  S.  507,  47  L-  Ed.  922; 
Bogy  V.   Daugherty.   184   U.   S.   696,   46   L. 


Ed.  763;  Johnson  v.  Thomas,  197  U.  S. 
619,  49  L.  Ed.  909;  Siege!  v.  Swarts,  187 
U.  S.  638,  47  L.  Ed.  344;  Cook  v.  Tennes- 
see, 187  U.  S.  639,  47  L.  Ed.  343;  Second 
Nat.  Bank  v.  Fitzpatrick,  189  U.  S.  508. 
47  L.  Ed.  921;  Gee  v.  Gee,  190  U.  S.  ^7, 
47  L.  Ed.  1183;  Toney  v.  Macon, 
195  U.  S.  625,  626,  49  L.  Ed.  350;  Cong- 
don  V.  People,  200  U.  S.  612,  50  L.  Ed. 
619;  Darden  v.  Arkansas,  200  U.  S.  615, 
50  L.  Ed.  621;  Wishkah  Boom  Co.  v. 
United  States,  202  U.  S.  613,  50  L.  Ed. 
1171;  California  Min.  Co.  v.  Manley,  203 
U.  S.  579,  580.  51  L.  Ed.  326;  Chapman 
V.  Chapman,  203  U.  S.  587,  51  L.  Ed.  329; 
Schlosser  r.  Hemphill,  198  U.  S.  173,  49 
L.  Ed.  1000;  Continental  Ins.  Co.  v.  In- 
surance Superintendent,  199  U.  S.  600,  50 
L.  Ed.  327;  Orrell  v.  Bay  Mfg.  Co..  198 
U.  S.  581,  49  L.  Ed.  1172;  Romig  v.  Gil- 
lett,  205  U.  S.  535,  51  L.  Ed.  919;  Gibbs 
V.  McDougall,  199  U.  S.  602,  603,  50  L. 
Ed.  329;  Haight  Co.  v.  Robinson,  203  U. 
S.  581.  51  L.  Ed.  327;  McComb  v.  Com- 
missioners of  Knox  County.  91  U.  S.  1,  23 
L.  Ed.  185;  Grafton  v.  Paine,  168  U.  S. 
704,  42  L.  Ed.  1212;  Meyer  v.  Cox,  169 
U.  S.  735,  42  L.  Ed.  1217;  Union  Life 
Ins.  Co.  y.  Kirchofif,  160  U.  S.  374.  40  L. 
Ed.  461;  Houston  v.  Moore,  3  Wheat. 
433,  4  L.  Ed.  428;  Rice  v.  Sanger,  144  U. 
S.  197,  36  L.  Ed.  403;  Davis  v.  Crouch, 
94  U.  S.  514,  24  L.   Ed.  281. 

Judgment  of  the  highest  court  of  a  state 
dismissing  an  appeal  and  remanding  the 
case  for  further  proceedings  in  the  state 
court  below,  is  not  reviewable  by  this 
court  on  writ  of  error.  Brown  v.  Baxter, 
146  U.  S.  619.  36  L.  Ed.  1106,  citing  Meag- 
her V.  Minnesota  Thresher  Mfg.,  Co.,  145 
U.  S.  608.  36  L.  Ed.  834;  Rice  v.  Sanger, 
144  U.  S.  197,  36  L.  Ed.  403;  Johnson  v. 
Keith.  117   U.  S.   199.  29  L.   Ed.  888. 

And  as  a  judgment  of  reversal  by  a 
state  court  with  leave  for  further  pro- 
ceedings in  the  court  of  original  jurisdic- 
tion is  not  subject  to  review  Iiere,  Bost- 
wick V.  Brinkerhoff,  106  U.  S.  3.  4,  27  L- 
Ed.  73;  Rice  v.  Sanger,  144  U.  S.  197,  36 
L.  Ed.  403,  this  is  also  true  of  a  judg- 
ment merely  affirming  an  mterlocutory 
order,  however  apparently  decisive   of  the 


APPEAL  AAD  HKKOR. 


969 


the  highest  court  of  the  state,  upon  a  first  appeal,  decides  a  federal  question 
against  the  appellant,  and  remands  the  case  to  the  inferior  court,  not  merely  to 
carry  the  judgment  into  execution,  but  for  further  proceedings  according  to  law, 
and  upon  further  hearing  the  inferior  court  renders  final  judgment  against  him, 
he  cannot  have  that  judgment  reviewed  by  this  court  by  writ  of  error,  without 


merits.  Meagher  v.  Minnesota  Thresher 
Mfg.  Co..  145  U.  S.  608.  611,  36  L.  Ed. 
H34. 

Where  the  case  has  been  brought  here 
by  writ  of  error  directed  to  the  supreme 
court  of  a  state,  and  it  appears  tliat  the 
judgment  which  it  is  proposed  to  revise 
IS  a  jugdment  reversing  the  decision  in 
the  court  below,  and  awaramg  a  new 
trial;  held,  that  there  is  no  hnal  judg- 
ment in  the  case,  and  the  writ  must  be 
di.-missed  for  w^ant  of  jurisdiction.  Tracy 
7'.  Holcombe.  24  How.  426.  16  L.  Ed.  742. 
cited  in  Moore  v.  Robbins.  18  Wall.  588. 
21  L.  Ed.  758;  Parcels  r,  Johnson,  20  Wall. 
653,  654,  22  L.  Ed.  410;  Davis  v.  Crouch. 
94   U.  S.  514.  517,  24  L.  Ed.  281. 

A  writ  of  error  from  this  court  will 
not  lie  to  remove  the  judgment  of  a  state 
court,  where  the  judgment  of  that  court 
remands  a  case  to  another  below^  it  for 
new  trial  and  hearing,  and  where  it  is 
evident  that  the  parties  have  not  exhausted 
the  power  of  these  inferior  courts.  Par- 
cels V.  Johnson,  20  Wall.  653.  22  L.  Ed. 
410,  citing  Moore  v.  Robbins,  18  W^all. 
588,  21  L.  Ed.  758;  St.  Clair  County  v. 
Lovington,  18  Wall.  628,  21  L.  Ed.  813; 
Tracy  v.  Holcombe,  24  How.  426.  16  L. 
Ed.  742;  Pepper  v.  Dunlap,  5  How.  51, 
12  L.  Ed.  46:  Brown  v.  Union  Bank,  4 
How.   465,    11    L.    Ed.   1058. 

The  judgment  of  the  highest  court  of 
law  of  a  state,  deciding  in  favor  of  the 
validity  of  a  statute  of  a  state,  drawn  in 
question  on  the  ground  of  its  being  re- 
pugnant to  the  constitution  of  the  United 
States,  is  not  a  final  judgment  within  the 
25th  section  of  the  judiciary  act  of  1789, 
ch.  20,  if  the  suit  has  been  remanded  to 
the  inferior  state  court,  where  it  origi- 
nated, for  further  proceedings,  not  incon- 
sistent w-ith  the  judgment  of  the  highest 
court.  Winn  v.  Tackson,  12  Wheat.  135. 
6  L.  Ed.  577,  reaffirmed  in  National  Bank 
V.   Gadsden,  179  U.  S.  681,  45  L.   Ed.  383. 

Where  the  supreme  court  of  a  state 
on  appeal  overruled  an  exception  which 
had  been  sustained  in  a  lower  court,  and, 
on  setting  aside  the  judgment  below,  re- 
manded the  case  to  be  proceeded  with  ac- 
cording to  law.  held,  that  the  judgment 
of  such  supreme  court  was  not  final,  and 
thru  the  writ  of  error  must  be  dismissed. 
Zeller  v.  Switzer,  91  U.  S.  487.  23  L.  Ed. 
366,  487,  citing  Ex  parte  French,  91  U.  S. 
42:i,  :?:i    L.   Ed.  249. 

Binding  effect  of  state  practice. — Where 
a  decree  of  the  court  of  appeals  of  Mary- 
land affirmed  the  decree  of  the  court 
below  and  remanded  the  case  to  that 
court,  this  is  not  such  a  final  de- 
cree   as     will    give    jurisdiction    over    the 


case  to  this  court.  The  decree  of  the 
court  below  was  merely  an  interlocutory 
order;  and  although  state  laws  allow  an 
appeal  to  state  courts  from  such  an  or- 
der, this  cannot  enlarge  the  jurisdiction 
of  this  court  given  by  act  of  congress. 
Reddall  v.  Bryan,  24  How.  420,  16  L.  Ed. 
740. 

A  writ  of  error  will  not  lie  from  the 
federal  supreme  court  to  a  judgment  of 
the  supreme  court  of  Iowa  reversing  the 
decree  of  the  trial  court  in  an  equity 
cause  and  remanding  the  cause  for  fur- 
ther proceedings  in  harmony  with  the 
opinion  of  that  court,  because  the  judg- 
ment couched  in  such  terms  is  not  final 
in  such  a  sense  as  to  sustain  a  writ  of 
error  from  this  court.  The  face  of  the 
judgment  is  the  test  of  its  finality,  and 
this  court  cannot  be  called  on  to  in- 
quire whether,  when  a  cause  is  sent  back, 
the  defeated  party  might  or  might  not 
make  a  better  defense.  And  this  is  true, 
although  in  Iowa  the  supreme  court  hears 
equity  causes  on  appeal  de  novo,  and  the 
successful  party  is  entitled  to  a  decree  in 
that  court  if  he  moves  for  it,  where  no 
such  decree  was  applied  for  or  rendered, 
nor  did  the  supreme  court  direct  the  court 
below  to  dismiss  the  plaintiff's  petition, 
or  in  terms  direct  the  specific  decree 
to  be  entered.  It  has  been  repeatedly  held, 
by  the  supreme  court  of  Iowa,  that  when 
a  case  triable  de  novo  is  remanded  for 
judgment  in  the  court  below,  the  par- 
ties may  be  permitted  to  introduce  ma- 
terial evidence  discovered  since  the  orig- 
inal trial,  and  may  amend  the  pleadings 
for  the  purpose  of  setting  up  matters 
materiallv  affecting  the  merits,  subse- 
quently occurring.  Schlosser  v.  Hemp- 
hill. 198  U.  S.  173,  49  L.  Ed.  1000.  citing 
Haseltine  v.  Bank,  183  U.  S.  130,  46  L.  Ed. 
117. 

Where,  on  an  indictment  for  a  capital 
offense,  the  supreme  court  of  a  state  re- 
verses a  judgment  of  a  court  below,  un- 
der such  circumstances  as  that  the  case 
must  go  back  for  trial  on  its  merits,  the 
judgment  is  not  a  "final  judgment,"  and 
therefore  is  not  capable  of  being  brought 
here  under  the  25th  section  of  the  judici- 
ary act.  Rankin  v.  State,  11  Wall.  380, 
20   L.    Ed.   175. 

A  decree  in  a  court  below,  reversing 
a  decree  where,  on  a  bill  to  foreclose  a 
mortgage,  a  court  below  it  had  decreed 
in  favor  of  the  complainant,  and  "remand- 
ing" the  case  to  such  inferior  court  for 
"such  other  and  further  proceedings  as 
to  law  and  justice  shall  apoertn'n,"'  is 
not  a  final  decree  within  either  the  ju- 
diciary   act    of    1789    or    the    act    of    1867 


970 


APPEAL  AAD  ERROR. 


first  appealing  from  it  to  the  highest  court  of  the  state,  or  at  least,  where  such  is 
the  practice,  presenting  a  petition  to  that  court  for  leave  to  appeal.  And  this,  al- 
though the  state  court  upon  a  second  appeal  from  an  inferior  court,  has  always 
declined  to  recognize  any  questions  of  law  decided  upon  the  first  appeal. 22 

In  the  language  of  Mr.  Justice  Brown,  it  is  too  well  settled  "even  to  jus- 
tify citation  that  a  judgment  .reversing  a  case  and  remanding  it  for  a  new  trial, 
or  for  further  proceedings  of  a  judicial  character,  is  totally  w^anting  in  the  requi- 
site finality  required  to  support  a  writ  of  error  from  this  court. "^'^  And  the  fact 
that  an  interlocutory  order,  made  in  the  progress  of  the  cause,  finally  disposes 
of  some  particular  point  arising  in  the  case,  does  not  justify  a  review  of  such 


amendatory  of  it.  A  writ  taken  on  a 
contrary  assumption  dismissed.  Moore  v. 
Robbins,  18  Wall.  588,  21  L.  Ed.  758,  cit- 
ing Brown  v.  Union  Bank,  4  How.  465, 
11  L.  Ed.  1058;  Pepper  v.  Dunlap,  5  How. 
51,  12  L.  Ed.  46;  Tracy  T'.  Holcombe,  24 
How.   426,    16   L.   Ed.   742. 

Where  a  petition  for  the  removal  of  a 
suit  filed  under  the  act  of  March  2.  18C7 
(14  Stat.  088),  was,  in  accordance  with 
the  practice  of  the  state,  reserved  for  the 
decision  of  the  supreme  court,  and  the 
latter  dismissed  the  petition,  and  remanded 
the  cause  to  the  inferior  court  for  fur- 
ther proceedings  according  to  law,  held, 
that  this  court  has  no  jurisdiction,  be- 
cause the  judgment  of  the  supreme  court 
is  not  the  final  judgment  in  the  suit.  It 
disposed  finally  of  one  of  the  questions 
involved  in  the  suit,  but  not  of  the  suit 
itself.  Kimball  7'.  Evans,  93  U.  S.  320,  23 
L.    Ed.   920. 

Where  the  circuit  court  of  a  state  re- 
fused an  injunction,  and  from  the  order 
of  refusal,  the  plaintiff  appealed  to  the 
state  court  of  appeals,  and  that  court  af- 
firmed the  order  of  the  circuit  court  and 
remanded  the  case,  and  from  this  decision 
of  the  state  court  of  appeals,  the  case 
is  here  upon  writ  of  error,  the  appeal 
to  this  court  cannot  be  sustained.  The 
case  is  still  pending  and  there  is  no  hnal 
decree.  Reddall  v.  Bryan,  24  How.  420, 
16    L,    Ed.   740. 

Where  a  perpetual  injunction  was 
granted  by  a  subordinate  state  court,  and, 
upon  appeal,  the  highest  state  court  de- 
cided that  the  party  in  whose  favor  the 
injunction  had  been  granted  was  entitled 
to  relief,  and  therefore  remanded  the  case 
to  the  same  subordinate  court  from  which 
it  had  come  for  further  proceedings,  this 
is  not  siich  a  final  decree  as  can  be  re- 
viewed by  this  court.  The  writ  of  error 
must  be  dismissed  on  motion.  Pepper 
V.   Dunlap,  5   How.   51,  12   L.   Ed.   46. 

22.  Fisher  v.  Perkins,  122  U.  S.  522,  30 
L.  Ed.  1192;  Great  Western  Telegraph 
Co.  V.  Burnham,  162  U.  S.  339,  345.  40 
L.  Ed.  991,  distinguishing  Northern  Pac. 
R.  Co.  V.  Ellis,  144  U.  S.  458,  36  L.  Ed. 
504. 

The  case  is  singularly  like  McComb  v. 
Commissioner  of  Kno.x  County,  91  U.  S. 
1,  23  L.  Ed.  185.  in  which  an  order  of  a 
court  of  common  pleas,  overruling  a  de- 
murrer   to    an    answer,    was    reversed    by 


the  supreme  court  of  Ohio,  and  the  case 
remanded  for  further  proceedings  accord- 
ing to  law;  the  court  of  cominon  pleas, 
in  accordance  with  that  decision,  sus- 
tained the  demurrer  to  the  answer,  and 
the  defendant  not  moving  to  amend,  but 
electing  to  stand  by  his  answer,  gave 
judgment  against  him;  and  a  writ  of  er- 
ror to  review  that  judgment  was  dis- 
missed by  this  court.  Chief  Justice  Waite 
saying:  "The  court  of  cominon  pleas  is 
not  the  highest  court  of  the  state;  but 
the  judgment  we  are  called  upon  to  re- 
e.xamine  is  the  judgment  of  that  court 
alone.  The  judgment  of  the  supreme 
court  is  one  of  reversal  only.  As  such, 
it  was  not  a  final  judgment.  Parcels  u. 
Johnson,  20  Wall.  653,  22  L.  Ed.  410; 
Moore  v.  Robbins,  18  Wall.  588.  21  L.  Ed. 
758;  vSt.  Clair  County  f.  Lovingston,  18 
Wall.  628,  21  L.  Ed.  813.  The  common  pleas 
was  not  directed  to  enter  a  judgment 
rendered  by  the  supreme  court  and  carry 
it  into  execution,  but  to  proceed  with  the 
case  according  to  law.  The  supreme 
court,  so  far  from  putting  an  end  to  the 
litigation,  purposely  left  it  open.  The 
law  of  the  case  upon  the  pleadings  as 
they  stood  was  settled;  but  ample  power 
was  left  in  the  common  pleas  to  permit 
the  parties  to  make  a  new  case  by  amend- 
ment." "The  final  judgment  is,  there- 
fore, the  judgment  of  the  court  of  com- 
inon pleas,  and  not  of  the  supreme  court. 
It  may  have  been  the  necessary  result 
of  the  decision  by  the  supreme  court  of 
the  questions  presented  for  its  determin- 
ation; but  it  is  none  the  less,  on  that  ac- 
count, the  act  of  the  common  pleas.  As 
such,  it  was.  when  rendered,  open  to  re- 
view by  the  supreme  court,  and  for  that 
reason  is  not  the  final  judgment  of  the 
highest  court  in  the  state  in  which  a  de- 
cision in  the  suit  could  be  had.  Rev. 
Stat.,  §  709.  The  writ  is  dismissed." 
See,  also.  Bostwick  z'.  Brinkerhoff,  106  U. 
S.  3,  27  L.  Ed.  73;  Rice  z'.  Sanger,  144 
U.  S.  197,  36  L.  Ed.  403;  Rutland  R.  Co. 
V.  Central  Vermont  R.  Co.,  159  U.  S.  360, 
368,  40  L.  Ed.  284;  In  re  Sanford,  etc., 
Co.,  160  U.  S.  247,  40  L.  Ed.  414,  reaf- 
firmed in  Great  Western  Telegraph  Co. 
v.  Burnham,  162  U.  S.  339,  343,  40  L-  Ed. 
991;  Haseltine  v.  Bank,  183  U.  S.  130,  46 
L.   Ed.   117. 

23.     Cincinnati    Street    R.    Co.    v.    Snell, 
179    U.    S.   395,   397,   45   L.    Ed.   248. 


APPEAL  AND  ERROR. 


971 


order,  until  the  action  itself  has  been  finally  disposed  of.  If  every  order  were 
tinal,  which  finally  passes  upon  some  motion  made  by  one  or  the  oLher  of  the  par- 
ties to  the  cause,  it  might  in  some  cases  require  numerous  writs  of  error  to  dis- 
pose finally  of  the  case.-'* 

A  judgment  of  the  highest  court  of  a  state,  overruling  a  demurrer, 
and  remanding  the  case  to  the  trial  court  for  further  proceedings,  is  not  a  final 
judgment.-^  A  judgment  of  the  highest  court  of  a  state  reversing  an  order  over- 
ruling a  demurrer,  and  remanding  the  cause  for  further  proceedings,  is  not  re- 
viewable by  this  court.-'' 

Overruling  Motion  for  Change  of  Venue. — The  judgment  of  the  supreme 
court  of  a  state  reversing  the  judgment  of  an  inferior  court  and  finally  adjudging 
that  a  change  of  venue  should  have  been  allowed,  and  remanding  the  case  for  a 
new  trial,  is  totally  wanting  in  the  finality  required  to  support  a  writ  of  error 
from  the  supreme  court  of  the  United  States.-"  If  after  the  change  of  venue 
was  denied  by  a  state  court,  the  case  is  tried  upon  the  merits,  and  a  verdict  and 
judgment  rendered  for  the  defendant,  of  the  benefit  of  which  he  was  subse- 
quently deprived  by  a  judgment  of  the  highest  court  of  the  state  reversing  the 
case  and  remanding  for  a  new  trial  on  account  of  the  refusal  to  change  the 
venue ;  the  defendant  loses  no  right  by  acquiescing  for  the  time  being  in  the  ac- 
tion of  the  state  court,  since,  after  judgment  ultimately  rendered,  he  may  have  a 
writ  of  error  reaching  back  to  the  alleged  error  of  said  court,  if  it  involve  a  fed- 
eral question.-^ 

Limitation  of  General  Rule. — But  this  court  may  review  on  a  writ  of  error 
the  judgment  of  a  state  court  reversing  the  lower  court  of  the  state  and  remand- 
ing the  cause  with  directions  to  the  court  below  to  enter  judgment  for  the  plain- 
tiff. That  judgment  is  final  for  the  purposes  of  a  writ  of  error  to  this  court,  be- 
cause the  litigation  is  ended  and  the  rights  of  the  parties  on  the  merits  have  been 
fully  determined. 2^     Accordingly  the  judgment  of  a  highest  state  court  remand- 


24.  Cincinnati  Street  R.  Co.  v.  Snell, 
179  U.  S.  395,  45  L.  Ed.  248. 

25.  Meagher  v.  Minnesota  Thresher 
Mfg.  Co..  145  U.  S.  608,  36  L.  Ed.  834; 
Rice  V.  Sanger,  144  U.  S.  197,  36  L.  Ed. 
403;  Hume  z'.  Bowie,  148  U.  S.  245,  37 
L.  Ed.  438;  Werner  v.  Charleston,  151  U. 
S.  360,  38  L.  Ed.  192;  Meyer  v.  Cox,  169 
U.    S.    735,   42    L.    Ed.    1217. 

Judgment  overruling  demurrer. — A 
judgment  of  the  supreme  court  of  a  state 
affirming  with  costs  an  order  which  over- 
rules a  demurrer,  and  remands  the  case 
for  further  proceedings,  is  not  a  final 
judgment  within  §  709  of  the  Revised 
Statutes.  Meagher  v.  Minnesota  Thresher 
Mfg.  Co.,  145  U.   S.  608,  36   L.   Ed.  834. 

26.  Great  Western  Telegraph  Co.  v. 
Burnham,   162   U.   S.   339,   40   L.   Ed.  991. 

27.  Cincinnati  Street  R.  Co.  v.  Snell, 
179  U.   S.   395.   45   L.   Ed.   248. 

28.  Cincinnati  Street  R.  Co.  v.  Snell, 
179   U.    S.    395.    45    L.    Ed.    248. 

29.  Reversal  and  remand  with  direc- 
tions to  enter  judgment. — Haseltine  z'. 
Bank,  183  U.  S.  130,  46  L.  Ed.  117; 
Atherton  v.  Fowler,  91  U.  S.  143,  23 
L.  Ed.  265;  Board  of  Comm'rs  v.  Lucas,  93 
U.  S.  108,  23L.  Ed.  822;  Mower  v.  Flet- 
cher, 114  U.  S.  127,  29  L.  Ed.  117,  distin- 
guishing cases  in  which  judgments  or  de- 
crees were  reversed  and  remanded  with 
leave  for  further  proceedings  in  the 
inferior  court,  the  court  saying  that  such 
judgments    are    not    final    because    some- 


thing yet  remains  to  be  done  to  com- 
plete  the    litigation. 

A  judgment  of  the  supreme  court  of 
the  state  remanding  the  case  to  an  in- 
ferior court  with  an  order  to  enter  a  spe- 
cified judgment,  nothing  being  left  for 
judicial  discretion  of  the  court  below,  is 
final  and  reviewable  by  the  supreme  court. 
Haseltine  v.  Bank,  183  U.  S.  130.  131, 
46  L.  Ed.  117;  Mower  v.  Fletcher,  114  U. 
S.  127,  29  L.  Ed.  117;  Atherton  v.  Fowler, 
91  U.  S.  143,  23  L.  Ed.  265;  Board  of 
Comm'rs  z'.  Lucas,  93  U.  S.  108,  23  L.  Ed. 
822. 

Where  the  judgment  of  the  higher 
state  court  reverses  and  modifies  the  judg- 
ment below,  and  does  not  permit  further 
proceedings  in  the  inferior  court,  if  the 
defendants  consent  to  the  modification 
directed  as  to  the  amount  of  damages, 
and  the  record  shows  that  this  consent 
has  been  given,  this  is  a  final  judgment 
in  the  suit  within  the  meaning  of  the  act 
of  congress.  Atherton  v.  Foyler,  91  U, 
S.   143,  23    L.    Ed.   265. 

Where  the  supreme  court  of  California 
reversed  the  judgment  of  an  inferior  court, 
and  directed  a  modification  thereof  as  to 
the  amount  of  damages,  but  without  per- 
mitting further  proceedings  below,  if  the 
defendants  consented  to  the  modification, 
and  the  record  shows  that  such  consent 
was  given,  held,  that  the  judgment  of  the 
supreme  court  is  final  within  the  meaning 
of  the  act   of  congress,  and  that   the   writ 


972 


APFEAL  AM)  HKKUK. 


ing  the  cause  with  directions  to  the  inferior  court  to  dismiss  the  complaint  is  a 
final  judgment.^" 

(3)  Judgments  Awarding  Neiv  Trials. — A  decree  of  the  circuit  court  award- 
ing a  new  trial  is  merely  interlocutory ;  and  is  not  a  final  decree  from  which  an 
appeal  can  be  taken.^^ 

t.  Orders  Made  in  Progress  of  Cause — (1)  In  General. — When  the  decree  de- 
cides the  right  to  the  property  in  contest,  and  directs  it  to  be  delivered  up  by  the 
defendant  to  the  complainant,  or  directs  it  to  be  sold.,  or  directs  the  defendant  to 
pay  a  certain  sum  of  money  to  the  complainant,  and  the  complainant  is  entitled 
to  have  such  decree  carried  immediately  into  execution,  the  decree  must  be  re- 
garded as  a  final  one  to  that  extent,  and  authorizes  an  appeal  to  this  court,  al- 
though so  much  of  the  bill  is  retained  in  the  circuit  court  as  is  necessary  for  the 
purpose  of  adjusting  by  further  decree  the  accounts  between  the  parties  pursuant 
to  the  decree  passed.^^     The  doctrine    that,  after  a    decree  which  disposes    of  a 


of  error  was  properly  directed  to  that 
court.  Atherton  v.  Fowler,  91  U.  S.  143, 
23    L.    Ed.   265, 

Judgment  affirming  as  to  some  parties 
and  reversing  as  to  others. — A  judgment 
in  a  court  of  last  resort,  that  a  judgment 
against  A.  ( who  had  been  sued  for  not 
faithfully  discharging  the  duties  of  a 
vendue  master  of  a  city  and  been  held  dis- 
charged under  the  bankrupt  act)  be  re- 
versed, is  a  final  judgment  within  the 
meaning  of  the  judiciary  act;  as  is  also 
a  judgment  in  a  court  of  last  resort  that 
a  judgment  in  an  inferior  court,  holding 
B.  and  C.  (the  sureties  of  A.  on  his  bond 
as  vendue  master)  liable,  be  affirmed. 
O'Dowd  v.  Russell.  14  Wall.  402,  20  L. 
Ed.   857. 

80.  If,  by  any  direction  of  a  supreme 
court  of  a  state,  an  entire  cause  is  de- 
termined, the  decision,  when  reduced  to 
form  and  entered  in  the  records  of  the 
court,  constitutes  a  final  judgment,  what- 
ever may  be  its  technical  designation,  and 
is  subject  in  a  proper  case  to  review  by 
this  couxt.  So  held,  where,  upon  appeal 
from  an  interlocutory  order  made  by  a 
circuit  court  of  Indiana,  granting  a  temp- 
orary injunction,  the  supreme  court  of 
the  state  reversed  the  o.rder  and  remanded 
the  cause  to  the  lower  court,  with  direc- 
tions to  dismiss  the  complaint.  Board 
of  Comm'rs  v.  Lucas,  93  U.  S.  108,  23  L. 
Ed.  822. 

31.  Judgments  awarding  new  trials — 
Lea  z'.  Kelley,  l.i  Pet.  213,  10  L.  Ed.  715. 

Where  the  trial  term  of  the  supreme 
court  of  the  District  of  Columbia  is  pro- 
longed by  adjournment  for  the  purpose 
of  settling  bills  of  exceptions,  but  the 
party  loses  the  benefit  of  the  exception.s 
through  the  death  or  illness  of  the  judge. 
in  consequence  of  which  a  new  trial  is 
granted,  and  the  presiding  judge  in  the 
circuit  court  orders  a  motion  to  be  heard 
in  general  term,  the  judgment  of  the  gen- 
eral term  setting  aside  the  verdict  and 
judgment  at  law  and  ordering  a  new  trial. 
is  equivalent  to  remanding  a  cause  to 
the  special  term  for  a  new  trial,  and  is 
therefore  not  a  final  judgment  from  which 
rin  appeal  will  lie  to  this  court.  Hume  v. 
Bowie,  148  U.  S.  245,  37  L.   Ed.  438. 


32.  Orders  made  in  progress  of  cause 
in  general. — Fo,rgay  z'.  Conrad,  6  How. 
201,  204.  12  L.  Ed.  404,  approved  in  Thom- 
son V.  Dean,  7  Wall.  342.  19  L.  Ed.  94, 
citing  Ray  z'.  Law,  3  Cranch  179,  2  L.  Ed. 
404;  Whiting  v.  Bank  of  United  States. 
13  Pet.  6,  10  L.  Ed.  33;  Michoud  v.  Girod, 
4  How.  503,  11  L.  Ed.  1076;  Orchard  i/. 
Hughes,  1  Wall.  73,  17  L.  Ed.  560;  Mil- 
waukee, etc.,  R.  Co.  V.  Soutter,  2  Wall. 
009,  17  L.  Ed.  886;  Withenbury  v.  United 
States,  5  Wall.  819,  821,  Is  U  Ed.  613; 
In  re  Farmers'  Loan,  etc.,  Co.,  129  U.  S. 
206.  32    L.    Ed.  656. 

Where  a  bill  related  to  the  ownership 
and  transfer  of  certain  stock,  a  decree 
was  lield  to  be  final  when  it  decided  the 
right  to  the  property  in  contest,  directed 
it  to  be  delivered  by  the  defendant  to 
the  complainant  by  transfer,  and  entitled 
the  complainant  to  have  the  decree  car- 
ried immediately  into  execution;  leaving 
only  to  be  adjusted  accounts  between  the 
parties  in  pursuance  of  the  decree  settling 
the  question  of  ownership.  Thomson  v. 
Dean,  7  Wall.  342,  19  L.  Ed.  94. 

Where  on  a  bill  to  foreclose  a  mort- 
gage given  by  a  railroad  company,  the 
mortgagors  proposed  to  pay  all  the  money 
due  on  complainants'  mortgage,  provided 
his  property,  which  is  in  the  custody  of 
the  court,  shall  then  be  restored  to  his 
possession,  it  was  held  that  a  refusal  by 
the  court  to  grant  him  this  right,  may  be 
reviewed  by  this  court,  when  the  whole 
case  is  before  it,  on  the  record  brought 
here  by  appeal  from  a  final  decree. 
"There  is  no  question  but  that  many  or- 
ders or  decrees,  affecting  materially  the 
rights  of  the  parties,  are  made  in  the 
progress  of  a  chancery  suit,  which  are 
not  final  in  the  sense  of  that  word  in  its 
relation  to  appeals.  The  order  of  the 
court  affirming  or  annulling  a  patent,  and 
referring  the  case  to  a  master  for  an  ac- 
count, is  an  instance.  The  adjudications 
which  the  court  makes  on  exception  to 
reports  of  masters,  often  involving  the 
whole  matter  in  litigation,  are  not  final 
decrees;  and  in  these  and  numerous  other 
cases,  if  the  court  can  only,  on  appeal, 
examine  the  final  or  last  order  or  de- 
cree   which    gives    the   right    of   appeal,    it 


AFFEAL  AA'D  ERROR. 


973 


principal  subject  of  litigation  and  settles  the  rights  of  the  parties  in  regard  to 
that  matter,  there  may  subsequently  arise  important  matters  requiring  the  judi- 
cial action  of  the  court  in  relation  to  the  same  property  and  some  of  the  same 
rights  litigated  in  the  main  suit,  making  necessary  substantive  and  important 
orders  and  decrees  in  which  the  most  material  rights  of  the  parties  may  be  passed 
upon  by  the  court,  and  which,  when  they  partake  of>  the  nature  of  final  decisions 
of  those  rights,  may  be  appealed  from,  is  well  established  by  the  decisions  of  this 
court.^-'^  The  question  in  such  cases  is  not  whether  the  order  complained  of  is 
of  a  character  decisive  of  questions  that  the  parties  are  entitled  to  have  reviewed 
in  the  appellate  court,  but  whether  the  order  or  decree  is  of  that  final  nature 
which  alone  can  be  brought  to  this  court  on  appeal.^* 

Rule  Qualified. — But  the  rule  that  when  the  decree  decides  the  right  to  the 
property  in  dispute,  and  directs  it  to  be  delivered  up  by  the  defendant  to  the  com- 
plainant, or  directs  it  to  be  sold,  or  directs  the  defendant  to  pay  a  certain  sum 
of  money  to  the  complainant,  and  the  complainant  is  entitled  to  have  such  decree 
carried  immediately  into  execution,  the  decree  is  final,  does  not  extend  to  cases 
where  money  is  directed  to  be  paid  into  court,  or  property  to  be  delivered  to  a 
receiver,  or  property  held  in  trust  to  be  delivered  to  a  new  trustee. appointed  by 
the  court.  Orders  of  that  kind  are  frequently  and  necessarily  made  in  the  prog- 
ress of  the  cause,  but  they  are  interlocutory  only,  and  intended  to  preserve  the 
subject  matter  in  dispute  from  waste  or  dilapidation,  and  to  keep  it  within  the 
control  of  the  court  until  the  rights  of  the  parties  concerned  can  be  adjudicated 
by  a  final  decree.-^^ 

(2)  Orders  Directing  That  Property  Be  Delivered  to  a  Receiver. — An  order 
directing  that  property  be  delivered  to  a  receiver  pending  litigation,  is  not  such  a 
final  decree  from  which  an  appeal  will  lie.-^^ 

(3)  Order  Directing  Payment  of  Money  into  and  out  of  Court.- — The  better 
rule  is  that  an  order  directing  the  payment  of  money  into  court  for  preservation 
during  the  pendency  of  the  litigation  as  to  its  ownership,  is  interlocutory  only 
and  not  a  final  decree,^'^  but  contrary  rulings  seem  to  have  been  made  in  some 


is  obvious  that  the  entire  benefit  of  an 
appeal  must,  in  many  cases,  be  lost.  The 
order  complained  of  in  this  case  seems 
to  be  one  of  this  class."  Milwaukee,  etc.. 
R.  Co.  V.  Soutter.  2  Wall.  609,  17  L.  Ed. 
886. 

33.  Blossom  v.  Milwaukee,  etc..  R.  Co.. 
1  Wall.  655.  17  L.  Ed.  673;  Forgav  v. 
Conrad,  6  How.  201.  12  L.  Ed.  404:  Fos- 
dick  V.  Schall.  99  U.  S.  235.  2.=>  L.  Ed. 
339;  Williams  v.  Morgan,  111  U.  S.  684, 
88  T..  Ed.  559;  Burnham  v.  Bowen,  111 
U.  S.  776,  28  L.  Ed.  596:  In  re  Farmers' 
Loan,  etc.,  Co..  129  U.  S.  206,  213,  32  L. 
Ed.   656. 

34.  In  re  Farmers'  T,oan,  etc..  Co..  129 
U.   S.   206,   213.  32   L.   Ed.  656. 

In  a  suit  for  the  foreclosure  of  a  mort- 
gage upon  the  property  of  a  railroad  com- 
pany, after  a  final  decree  of  foreclosure, 
and  after  appeal  therefrom,  the  lower 
court  made  an  order  directing  the  re- 
ceiver of  the  mort?as:ed  property  to  bor- 
row money  and  issue  certificates  there- 
for to  be  a  first  lien  upon  the  property. 
The  court  held  thnt  snch  order  was  a 
final  decree  from  which  an  appeal  lav. 
In  re  Farmers'  T.oan.  etc..  Co..  129  U.  S. 
206.  32   T..  Fd.  656 

36.  Forgay  v.  Conrad,  6  How.  201,  12 
L.   Ed.   404.   cited   with   approval   in   Grant 


V.    Phoenix    Ins.    Co.,    106    U.    S.    429.    432. 
27    L.    Ed.    237. 

?6.  Orders  directing  that  property  be 
delivered  to  a  receiver. — Forgay  v,  Con- 
rad, 6  How.  201,  12  L.  Ed.  404;  Milwau- 
kee, etc..  R.  Co.  V.  Soutter,  131  U.  S. 
appx.    Ivxwi,    IS    T..    Ed.    S62. 

37.  Order  directing  payment  of  money 
into  and  cut  of  court. — Louisiana  Bank 
T'  Whitney,  121  U.  S.  2S4,  30  L.  Ed.  961; 
Foro-ay  -■.  Conrad,  6  Plow.  201.  204.  12 
L.  Fd.  404;  Grant  v.  Phrr-nix  Ins.  Co., 
106  U.  S.  429.  431,  27  L.  Ed.  237;  Jones 
V.   Crai?.   127  U.    S.  213.  32   L.   Ed.   147. 

A  decree  that  money  shall  be  pan!  into 
court,  or  that  property  shall  be  delivered 
to  a  receiver,  or  that  property  held  in 
trust  shall  be  delivered  to  a  new  trustee 
apnointed  bv  the  court,  is  interlocutory 
only,  and  intended  to  preserve  the  sub- 
ject matter  in  dispute  from  waste  or  dilap- 
idation, and  to  keep  it  within  tlie  control 
of  the  court  until  the  rights  of  the  par- 
ties concerned  can  be  finally  adjudicated. 
From  such  a  decree  no  appeal  lies. 
Criticised  in  Ba'-nard  7'.  Gibson,  7  How. 
651,  657.  12  L.  Ed.  857:  For<?ay  v.  Con- 
rad.  6   How.   201,   12    L.   Ed.   404 

When  persons  summoned  as  garnishees 
in  a  libel  in  admiralty'  in  personam  are 
adjudged  by  the  court  to  have  a  fund 
of  the  principal  defendant  in  their   hands. 


974 


APPEAL  AND  ERROR. 


cases."*' 

Order  for  Payment  of  Money  out  of  Court. — A  decree  of  the  circuit  court 
directing  the  distribution  of  a  fund  paid  into  court  to  a  complainant,  is  pro  tanto 
a  final  decree  from  which  an  appeal  lies.-"^ 

(4)  Decrees  upon  Matters  Arising  after  Transfer  of  Cause. — Although  this 
court  has  frequently  decided  that  where  the  act  complained  of  was  a  mere  min- 
isterial duty,  necessarily  growing  out  of  the  decree  which  w^as  being  carried  into 
effect,  no  appeal  would  lie,  it  has  never  decided  that  in  no  case  arising  after  a 
decree,  which  is  final  only  in  the  sense  which  would  allow  it  to  be  appealed, 
will  an  appeal  be  allowed  from  an  order  of  the  court,  however  it  might  affect 
important  interests,  or  decide  matters  not  before  the  court  when  the  first  decree 
was  rendered.  Such  a  doctrine  would  place  a  very  large  proportion  of  the  most 
important  matters  adjudged  by  courts  of  chancery  beyond  the  reach  of  an  ap- 
peal. On  the  contrary,  this  court  has  repeatedly  considered  appeals  from  the 
decrees  of  the  circuit  courts,  upon  matters  arising  after  the  case  had  been  here, 
and  the  courts  below  had  entered  decrees  in  accordance  with  the  directions  of 
this  court.^^' 

(5)  Rulings  on  Applications  for  Receivers. — No  appeal  lies  to  this  court  from 
an  order  appointing  or  declining  to  appoint  a  receiver  pendente  lite,  until  after 
final  decree.^ ^ 

(6)  Order  Directing  ]Vit)\css  to  Testify  and  Produce  Documents. — The  mere 
direction  of  the  court  to  witnesses  to  answer  questions  put  to  them  and  to  pro- 
duce written  evidence  in  their  possession,  is  not  a  final  decision.^^  Therefore, 
an  appeal  will  not  lie  to  this  court  from  an  order  of  the  circuit  court  directing 
a  witness  to  answer  questions  and  to  produce  books  in  answer  to  a  subpoena 
duces  tecum.^3 

u.  Judgments  in  Summary  Proceedings — (1)  In  General. — Judgments  in  sum- 


and  to  pay  it  into  court,  and  the  libelant 
afterwards  obtains  a  final  decree  against 
him  with  the  award  of  execution  against 
the  fund  in  their  hands,  the  first  order 
Is  interlocutory,  and  they  can  appeal  from 
the  last  decree  only.  Gushing  z\  Laird, 
107   U.  S.  69,  27  L.   Ed.  391. 

38.  A  decree  directing  a  sale  accord- 
ing to  the  deed  of  trust,  and  the  bring- 
ing of  the  proceeds  into  court,  is  a  final 
decree.  Railroad  Co.  v.  Bradleys,  7  Wall. 
575.    19   L.   Ed.   274. 

A  decree  of  the  circuit  court  adjudging 
that  the  defendant  pay  a  certain  sum  into 
court  within  a  limited  time,  or  in  default 
thereof  the  court  will  appoint  a  receiver, 
is  a  final  decree,  from  which  an  appeal 
lies.  Wabash,  etc..  Canal  Co.  v.  Beers,  1 
Black  54,  17   L.  Ed.   41. 

39.  Trustees  v.  Greenough.  105  U.  S. 
527,  26  L.  Ed.  1157,  cited  in  Williams  r. 
Morgan,  111  U.  S.  684,  699,  28  L.  Ed. 
559. 

Where  the  district  court  of  the  United 
States,  sitting  in  admiralty,  decreed  that 
a  sum  of  money  was  due  from  a  fund 
then  in  court,  but  as  the  amount  to  be 
paid  was  dependent  upon  other  claims 
that  might  be  established,  and  as  the  fund 
might  not  be  sufficient  to  satisfy  all  of 
the  claims  that  might  be  established 
against  the  vessel,  no  order  for  the  pay- 
ment of  the  money  would  be  made  by  the 
court  until  it  should  be  further  advised 
in  the  premises,  this  was  not  such  a  final 
decree   as   would  justify  an  appeal   to   the 


circuit    court.      Montgomery   v.    Anderson, 
21   How.  386,  16  L.   Ed.  160. 

Collateral  decree  ordering  payment 
out  of  fund  in  court. — Where  a  fund 
was  paid  into  court  awaiting  the  course 
of  distribution,  a  decree  made  by  the 
court  directing  that  a  party  be  paid  cer- 
tain costs  and  expenses  out  of  such  fund 
is  pro  tanto  a  final  decree.  Trustees  v. 
Greenough,  105  U.  S.   527.  26  L.  Ed.  1157. 

40.  Decrees  upon  matters  arising  after 
transfer  of  cause. — Blossom  v.  Milwaukee, 
etc.,  R.  Co.,  1  Wall.  655,  657,  17  L.  Ed. 
673. 

41.  Rulings  on  applications  for  receiv- 
ers.—Hentig  z>.  Page,  102  U.  S.  219.  26 
L.  Ed.  159;  Keystone  Iron  Co.  v.  Martin, 
132  U.  S.  91,  32  L.  Ed.  275;  Lodge  v. 
Twell,  135  U.  S.  232,  33  L.  Ed.  153; 
American  Construction  Co.  v.  Jackson- 
ville, etc..  R.  Co.,  148  U.  S.  372,  378,  37 
L.   Ed.   486. 

42.  Order  directing  witness  to  testify 
and  produce  documents. — Alexander  v. 
United  States,  201  U.  S.  117,  50  L.  Bd. 
686,  reaffirmed  in  Haight,  etc.,  Co.  v. 
Robinson,  203  U.  S.  581,  51  L.  Ed.  327. 

43.  Alexander  v.  United  States.  201 
U.  S.  117,  50  L.  686,  reaffirmed  in  Haight, 
etc.,  Co.  V.  Robinson,  203  U.  S.  581,  51  L. 
Ed.  327,  distinguishing  Interstate  Com- 
merce Commission  v.  Brimson,  154  U.  S. 
447,  38  L.  Ed.  1047;  Interstate  Commerce 
Commission  v.  Baird.  194  U.  S.  25,  48 
L.   Ed.   860. 

Orders    of    a    federal    circuit    court    di- 


APPEAL  AND  ERROR. 


975 


mary  proceedings  such  as  habeas  corpus,  mandamus  and  prohibition,  are  final 
judgments  in  a  suit  within  the  meaning  of  the  judiciary  act  regulating  writs  of 
error  to  state  courts.*"* 

(2)  Mandamus  Proceedings. — A  judgment  or  order  awarding  or  refusing  to 
award  a  writ  of  mandamus,  is  a  final  judgment  in  a  civil  action,  within  the 
meaning  of  that  term  as  used  in  the  statutes  regulating  writs  of  error  to  this 
court. ^^ 

A  judgment  of  a  state  court  denying  a  writ  of  mandamus  stands  like  the 
judgment  in  an  ordinary  action  at  law,  and  is  subject  to  review  under  similar 
conditions.*^ 

An  order  awarding  a  peremptory  writ  of  mandamus  which  directs  the 
collector  of  taxes  of  a  county  to  collect  a  tax  that  had  been  duly  levied  and  ex- 
tended on  the  county  tax  books,  is  a  final  judgment  subject  to  review  when  the 
other  conditions  exist.*" 

V.  Orders  Reviving  Suits  and  Actions. — Decrees  Ancillary  to  Original 
Decree. — A  decree  of  revival  entered  on  a  bill  in  equity  to  revive  a  suit  in 
equity,  which  had  gone  to  final  decree  in  the  name  of  the  executor  of  the  plain- 
tiff, entered  after  due  notice  to  the  defendants  and  their  appearance  and  plead- 
ing to  the  bill,  is  a  final  appealable  decree.*^ 

w.  Judgments,  Orders  and  Decrees  in  Particular  Cases  Considered — (1)  De- 
cisions Affecting  Judicial  Sales. — A  decree  which  orders  a  judicial  sale  of 
specific  property,  under  which  the  title  may  pass  beyond  the  control  of  the  court, 
is  final :  and  it  cannot  be  reviewed,  unless  it  is  challenged  by  a  direct  appeal  from 
it,  although  it  contains  a  provision  referring  the  case  to  a  master  to  state  the 


recting  witnesses  to  answer  questions,  and 
produce  written  evidence  in  their  posses- 
sion, when  the}'  are  being  examined  be- 
fore a  special  examiner  appointed  in  a 
suit  brought  by  the  United  States  to  en- 
join an  alleged  violation  of  the  antitrust 
act  of  July  2,  1890,  lack  the  finality  neces- 
sary to  sustain  an  appeal  to  the  supreme 
court.  Alexander  f.  United  States,  201 
U.   S.    117.   .'Se   L.    Ed.   686. 

44.  Judgments  in  summary  proceedings 
in  general. — Holmes  :■.  JennTson,  14  Pet. 
540.   10  L.   Ed.   579. 

Where  in  a  suit  under  the  25th  section 
of  the  judiciary  act,  the  validity  of  the  gov- 
ernor's warrant  for  the  surrender  of  a 
criminal  to  another  state  is  the  onl}''  ques- 
tion before  the  highest  court  of  the  state, 
and  that  question  is  finally  settled  by  the 
court  adjudging  that  the  cause  of  the 
detention  and  imprisonment  is  good  and 
sufficient  in  law.  this  is  a  final  judgment 
within  the  meaning  of  the  act  of  con- 
gress, because  the  sheriff,  upon  their 
judgment,  must  have  proceeded  to  ex- 
ecute the  warrant,  and  deliver  the  pris- 
oner to  the  foreign  government,  without 
further  delay,  if  the  proceedings  are  not 
suspended  bj'  the  writ  of  error  to  this 
court.  Holmes  z\  Jennison.  14  Pet.  .540, 
564,    10    E.    Ed.    579. 

45.  Mandamus  proceedings.  —  Colum- 
bian Ins.  Co.  V.  Wheelright.  7  Wheat.  534, 
5  L.  Ed.  516:  Kendall  v.  United  States, 
12  Pet.  524,  9  L.  Ed.  1181;  Davies  v.  Cor- 
bin.  112  U.  S.  36,  28  L.  Ed.  627;  Riggs  v. 
Johnson  County,  6  Wall.  166,  18  L.  Ed. 
768. 

46.     Hartman    7.-.    Greenhow,    102    U.    S. 
672,  26  L.  Ed.  271;  McPherson  v.  Blacker, 


146   U.   S.   1,  24,   36   L.   Ed.  869. 

47.  Davies  i'.  Corbin.  112  U.  S.  36,  28 
L.  Ed.  627,  citing  Riggs  r.  Johnson 
County,  6  W'all.   166,   18   L.   Ed.   768. 

A  obtained  a  decree  against  a  mu- 
nicipalty  for  a  certain  sum.  Upon  his 
petition  the  cnurt  issied  a  peremptory 
writ  of  mandamus  against  the  city,  direct- 
ing the  levy  of  a  tax  for  his  benefit  upon 
all  the  taxable  property  of  the  city.  Un- 
der the  laws  of  Tennessee  in  which  the 
judgment  was  recovered,  taxable  personal 
and  real  property^,  other  than  merchant's 
capital  is  embraced  in  one  tax  list,  and 
merchant's  capital  in  another.  There- 
upon A  made  a  motion  for  a  further 
peremtory  mandamus  requiring  the  city 
to  include  in  the  property  to  be  taxed  for 
his  benefit  the  taxable  merchant's  prop- 
erty. Afterwards,  during  the  same  term 
the  city  appeared  and  moved  the  court 
to  set  aside  this  latter  order,  but 
this  motion  was  refused,  and  that  or- 
der re-entered  as  the  final  judgment  of 
the  court  and  premises.  Held,  that  the 
order  made  upon  the  motion  to  sub- 
ject merchant's  capital  to  the  tax 
was  such  a  final  judgment  that  it  may  be 
brought  here  for  re-examination  by  writ 
of  error.  Memphis  f.  Brown,  94 'U.  S. 
715,   24   L.    Ed.   244. 

48.  Orders  reviving  suits  and  actions. 
— Terry  v.  Sharon,  131  U.  S.  40.  33  L.  Ed. 
94.  But  this  case  was  distinguished  from 
Alackaye  v.  Mallory,  79  Fed.  2,  on  the 
ground  that  in  this  case  the  original  suit 
had  passed  to  a  final  decree  and  the  de- 
fendant would  have  had  no  opportunity 
to  review  the  order  by  appealing  from 
that  decree. 


976 


APPEAL  AND  ERROR. 


accounts  between  the  parties  preparatory  to  the  apphcation  of  the  proceeds  of  the 
sale,  and  to  the  adjudication  of  the  costs,-^^  but  a  decree  which  simply  sets  aside 
one  judicial  sale  that  has  been  made,  and  orders- another  is  not  final  and  appeal- 
able.50 

Confirmation  of  Judicial  Sales. — An  appeal  lies  here  from  the  final  decree 
of  the  circuit  court  confirming  a  sale  made  under  its  order .^i 

(2)  Decisions  Affecting  Receivers. — In  General. — No  appeal  lies  to  this  courr 
from  an  order  of  the  circuit  court,  appointing  or  declining  to  appoint  a  receiver 
pendente  lite,  until  after  final  decree. ^- 

A  decree  confirming  a  receiver's  report,  and  ordering  him  to  retain  a  small 
balance  remaining  in  his  hands  as  his  compensation,  is  final.-^^ 

An  order  of  court  confirming  the  sale  by  a  receiver  is  final  from  whicli 
an  appeal  will  lie,  since  it  finally  disposes  of  the  possession  and  ownership  of 
the  property.^* 

But  the  judgment  of  a  state  court,  directing  the  transfer  of  a  road  in  the 
hands  of  a  receiver  to  the  comptroller  general,  subject  to  such  orders  as  the 
circuit  court  shall  deem  necessary  for  the  protection  of  the  rights  of  the  parties 
in  the  principal  suit,  is  not  a  final  judgment,  and  the  writ  of  error  will  be  dis- 
missed.^^ 

(3)  Decisiofus  Affecting  Trustees. — A  decree  fixing  the  compensation  of  trus- 
tees is  final  for  the  purposes  of  an  appeal  to  this  court.'^*' 

(4)  Orders  in  Proceedings  in  Aid  of  Execution. — In  Kansas,  an  order  of  a 


49.  Decisions  affecting  judicial  sales. — 

Ray  V.  Law.  3  Cranch  179,  2  L.  Ed.  404; 
Whiting  V.  Bank  of  United  States,  13  Pet. 
6,  10  L.  Ed.  33;  Bronson  v.  Railroad 
Co.,  2  Black  524,  17  L.  Ed.  359;  Michoiid 
V.  Girod.  4  How.  503,  11  L.  Ed.  1076; 
Sage  V.  Railroad  Co.,  96  U.  S.  712,  714, 
24  L.  Ed.  641;  First  Nat.  Bank  v.  Shedd, 
121  U.  S.  74,  84,  85,  30  L.  Ed.  877;  Blos- 
som V.  Milwaukee,  etc..  R.  Co.,  1  Wall. 
655,  17  L.  Ed.  673;  Butter  field  v.  Usher, 
91    U.    S.   246.   23   L.    Ed.   318. 

50.  Bnttei-field   v.   Usher,   91    U.    S.   246, 

23  L.  Ed.  318. 

Where  the  supreme  court  of  the  Dis- 
trict of  Columbia,  at  the  general  term 
thereof,  rendered  a  decree  vacating  and 
setting  aside  a  judicial  sale  of  lands  which 
had  been  confirmed  by  an  order  of  the 
special  term  of  said  court,  and  directing 
a  resale  of  them,  held,  that  the  decree 
was  not  final,  and  that  no  appeal  would 
lie  therefrom  to  this  court.  Butterfield  v. 
Usher,  91  U.  S.  246,  23  L.  Ed.  318,  dis- 
tinguishing Blossom  V.  Milwaukee,  etc.. 
R.   Co.,   1  Wall.   655,   17   L.   Ed.   673. 

51.  Sage  V.   Railroad  Co..  96   U.   S.   712, 

24  L.  Ed.  641,  citing  Blossom  v.  Milwau- 
kee, etc.,  R.  Co.,  l^Wall.  655,  17  L.  Ed. 
673;  Butterfield  v.  Usher,  91  U.  S.  246, 
23  L.  Ed.  318. 

The  act  of  the  court  in  refusing  to 
confirm  or  complete  a  marshal's  sale  made 
on  foreclosure  of  a  mortgage  in  federal 
court,  so  far  involves  the  merits  of  the 
case  as  that  it  may  be  reviewed.  Blos- 
som V.  Milwaukee,  etc.,  R.  Co.,  1  Wall. 
655,   17   L.    Ed.   673. 

The  act  of  confirming  or  setting  aside 
a  sale  made  by  a  commissioner  in  chan- 
cery, involving,  as  it  often  does,  the  ex- 
ercise   of    a    very    delicate    judgment    and 


discretion,  cannot  be  regarded  as  a  mere 
control  of  the  ministerial  dtities  of  an 
officer  in  the  execution  of  final  process. 
Milwaukee,  etc..  R.  Co.  v.  Soutter.  5  Wall. 
609,  660,  17  L.  Ed.  886,  citing  Blossom  v. 
Milwaukee,  etc.,  R.  Co..  1  Wall.  655,  17 
L.   Ed.   673. 

52.  Decisions  affecting  receivers. — Hen 
tig  V.  Page.  102  U.  S.  219.  26  L.  Ed.  1.59; 
Keystone  Iron  Co.  v.  Martin.  132  U.  S.  91, 
33  L.  Ed.  275;  Lodge  v.  Twell,  135  U.  S. 
232,  34  L.  Ed.  153:  American  Construc- 
tion Co.  V.  Jacksonville,  etc.,  R.  Co.,  148 
U.   S.  372,   378,  37   L.   Ed.   486. 

53.  Decree  confirming  receiver's  re- 
port.— In  a  suit  in  equity  brought  by  cred- 
itors of  a  deceased  person  against  his 
administrator,  for  the  settlement  of  his 
estate,  a  decree  was  made  ordering  a 
sale  of  his  estate  and  the  distribution  of 
the  proceeds.  This  was  done,  and  the 
receiver  reported  his  doing  to  the  court. 
The  report  was  confirmed,  and  the  re- 
ceiver was  ordered  to  retain  a  small  bal- 
ance remaining  as  his  compensation. 
Held,  that  this  was  a  final  decree  set- 
tling the  rights  of  the  parties  and  dis- 
posing of  the  whole  cause  of  action,  and 
that  one  of  the  complainants  could  not 
reopen  it  for  the  purpose  of  obtaining 
relief  in  that  suit  against  a  co-complain- 
ant. Smith  V.  Woolfolk,  115  U.  S.  143, 
29   L.    Ed.    357. 

54.  Forgay  v.  Conrad,  6  How.  201.  12 
L.  Ed.  404:  Ex  parte  Norton.  108  U.  S. 
237,  27   L.  Ed.  709. 

55.  Hand  v.  Hagood.  131  U.  S.  181,  26 
L.    Ed.    301. 

56.  Decisions  affecting  trustees. — Wil- 
liams V.  Morgan,   111  U.   S.  684,  28  L.  Ed. 


APPEAL  AND  ERROR. 


977 


court  in  a  proceeding  in  aid  of  execution  directing  a  garnishee  to  pay  to  the 
judgment  creditor  money  which  he  owes  to  the  judgment  debtor  is  not  a  judg- 
ment, and  does  not  determine  finally  the  liability  of  the  garnishee.^" 

(5)  Orders  in  Contempt  Proceedings. — The  rule  on  the  circuits  is  that  an 
order  in  an  equity  cause  committing  a  witness,  not  a  party  to  the  suit,  for  con- 
tempt in  refusing  to  testify,  is  final,  and  reviewable  on  a  writ  of  error  sued  out 
by  the  witness  before  final  decree  in  the  cause.-^^  But  it  is  well  settled  in  this 
court  that  judgments  in  proceedings  in  contempt  are  not  reviewable  here  on 
appeal  or  error.'' ^ 


57.  Orders  in  proceedings  in  aid  of  exe- 
cution.— Atlantic,  etc..  R.  Co.  v.  Hopkins, 
94  U.   S.    11,  24   L.    Ed.   48. 

58.  Orders  in  contempt  proceedings. — 
Butler  c\  Fayerweather,  91  Fed.  458; 
Gould  z'.   Sessions,   67   Fed.   163. 

"In  re  Debs,  158  U.  S.  564,  39  L.  Ed. 
1092,  the  defendants  in  an  equity  cause 
were  committed  for  contempt  for  the 
violation  of  a  preliminarj'  injunction  re- 
straining them  from  committing  the  acts 
to  enjoin  which  the  suit  was  brought, 
and  upon  an  application  to  the  supreme 
court  for  a  writ  of  error  the  writ  was 
denied  upon  the  ground  that  the  order 
of  committal  was  not  a  final  judgment  or 
decree.  That  was  a  case  in  which  the 
propriety  of  the  order  could  have  been 
reconsidered  by  the  court  which  made  it 
at  final  decree,  and,  being  an  interlocu- 
tory order  in  the  progress  of  the  cause, 
could  only  be  reviewed  by  the  supreme 
court  upon  an  appeal  from  the  final  de- 
cree. The  case  is  quite  different,  how- 
ever, when  a  person  not  a  party  to  the 
cause  is  imprisoned  or  fined  for  contempt. 
The  order  proceeds  upon  a  matter  distinct 
from  the  general  subject  of  the  litiga- 
tion. The  aggrieved  party  has  no  op- 
nortunity  to  be  heard  when  the  cause  is 
before  the  court  at  final  hearing,  and  as 
to  him  the  proceeding  i^  finally  deter- 
mined when  the  order  is  made.  Not  be- 
ing a  party  to  the  cause,  he  could  not  be 
heard  on  an  appeal  from  a  final  decree: 
and,  unless  he  can  be  heard  by  a  writ  of 
error,  he  has  no  review,  but  must  subinit 
to  the  determination  of  the  court  below, 
if  the  court  has  jurisdiction,  however  un- 
warranted it  might  be  by  the  facts  or  the 
law  of  the  case.  It  would  be  a  reproach 
to  the  administration  of  justice  if  the 
statutes  of  the  United  States  conferring 
.'ippellate  jurisdiction  upon  this  court  to 
review  all  final  decisions  of  the  circuit 
court  failed  to  provide  any  means  of  re- 
view to  the  citizen  who  has  been  deprived 
of  his  liberty  or  required  to  pay  a  fine 
without  just  cause."  Butler  z'.  Fayer- 
weather, 91   Fed.    Rep.   458,  459. 

59.  Hayes  v.  Fischer.  102  U.  S.  121,  26 
L.  Ed.  95;  In  re  Debs.  158  U.  S.  564,  573. 
:!9  L.  Ed.  1092;  S.  C,  159  U.  S.  251;  In 
r°  Chetwood.  165  U.  S.  443.  462,  41  L. 
Ed.  782;  Bessette  v.  Conkey  Co..  194  U. 
b.  324,  48  L.  Ed.  997,  reaffirmed  in  In  re 
Lewis,    202    U.     S.    614,    50    L.    Ed.    1172; 

1  U  «  Enc— b2 


Tinsley  v.  Anderson,  171  U.  S.  101.  i'j 
L.   Ed.   91. 

Where  a  complaint  is  made  against  d 
defendant  for  violation  of  an  injunction, 
and  proceedings  are  instituted  against  him 
for  contempt,  which  result  in  an  order 
by  the  court  that  he  pay  a  fine,  and  that 
he  stand  committed  until  the  order  \u 
obeyed,  if  the  order  complained  of  is  to 
be  treated  as  a  part  of  what  was  done  in 
the  original  suit,  it  cannot  be  brought 
here  for  review,  because  such  order,  if 
part  of  the  proceedings  in  the  suit,  is  in- 
terlocutory only.  Hayes  v.  Fischer.  102 
U.    S.    121,   26    L.    Ed.    95. 

In  McMicken  v.  Perin,  20  How.  133,  15 
L.  Ed.  857,  the  plaintiff  in  error  was  at- 
tached for  contempt  in  refusing  to  make 
a  conveyance  after  a  tender  and  deposit 
of  money  in  court  had  been  made  in  com- 
pliance with  a  mandate  of  this  court.  He 
appealed  to  this  court,  and  it  was  held, 
that  the  proceedings  in  contempt  involved 
no  new  question  or  decision,  but  were  the 
ordinar}^  means  of  enforcing  the  original 
decree,  and  in  no  sense  was  it  a  final  de- 
cree upon  which  an  appeal  could  be  sus- 
tained. It  was,  in  effect,  the  same  as 
ordering  an  execution  on  a  judgment  of 
law  which  had  been  affirmed  on  error 
and  remanded  for  execution  to  the  cir- 
cuit court.  Newport  Light  Co.  v.  New- 
port,  151   U.   S.   527,  539,  38  L.  Ed.  259. 

In  Hayes  z:  Fischer,  102  U.  S.  121,  122, 
36  L.  Ed.  95,  an  injunction  was  granted. 
Complaint  was  made  against  Hayes  for 
a  violation  thereof,  and  proceedings  were 
instituted  against  him  for  contempt,  which 
resulted  in  an  order  by  the  court  that 
he  pay  a  certain  fine,  and  stand  committed 
until  the  order  was  obeyed.  To  reverse 
this  order,  Hayes  sued  out  a  writ  of 
error  to  this  court,  which  the  defendant 
in  error  moved  to  dismiss,  on  the  ground 
that  such  proceedings  in  the  circuit  court 
could  not  be  re-examined  by  this  court. 
The  court,  speaking  by  Mr.  Chief  Justice 
Wa'te,  said:  "If  the  order  complained 
of  is  to  be  treated  as  part  of  what  was 
done  in  the  original  suit,  it  cannot  be 
brought  here  for  review  by  writ  of  error. 
Errors  in  equity  suits  can  only  be  cor- 
rected in  this  court  on  appeal,  and  that 
after  a  final  decree.  This  order,  if  part 
of  the  proceedings  in  the  suit,  was  inter- 
locutory only.  If  the  proceeding  below, 
being  for  contempt,  was  independent  of 
and  separate  from  the  original  suit,  it  can- 


978 


APPEAL  AND  ERROR. 


The  distinction  between  a  proceeding  in  which  a  fine  is  imposed  by  way  of 
compensation  to  the  party  injured  by  the  disobedience,  and  where  it  is  by  way 
of  punishment  for  an  act  done  in  contempt  of  the  power  and  authority  of  the 
court,  is  pointed  out  in  many  cases.^"^  Thus,  when  an  order  imposing  a  fine  for 
violation  of  an  injunction  is  substantially  one  to  reimburse  the  party  injured  by 
the  disobedience,  although  called  one  in  a  contempt  proceeding,  it  is  to  be  re- 
garded as  merely  an  interlocutory  order,  and  to  be  reviewed  only  on  appeal  from 
ithe  final  decree.^ ^  But  if  the  fine  payable  to  the  United  States  is  clearly  puni- 
tive and  in  vindication  of  the  authority  of  the  court,  it  predominates  the  pro- 
ceedings, and  fixes  its  character  and  hence  is  reviewable  by  the  circuit  court  of 
appeals  on  writ  of  error.^^  /\nd  in  the  latest  case  on  this  subject  it  was  held, 
that  an  order  punishing  for  contempt  made  in  the  progress  of  the  case,  when 
not  in  the  nature  of  an  order  in  a  criminal  proceeding,  is  regarded  as  interlocu- 
tory and  to  be  reviewed  only  upon  appeal  from  a  final  decree  in  the  case.^^ 

In  the  circuit  court  of  appeals  act,  as  construed  by  this  court,  the  juris- 
'diction  of  the  circuit  court  of  appeals  is  extended  to  the  right  to  review  judg- 
ments entered  before  final  decree  in  the  action  out  of  which  the  contempt  pro- 
coeedings  arose  where  the  order  is  final  and  in  a  proceeding  of  a  criminal  nature. 
{Beyond  this,  the  jurisdiction  of  the  court  has  not  been  carried,  and,  no  right  of 


not  be  re-examined  here  either  by  writ 
of  error  or  appeal.  This  was  decided 
more  than  fifty  years  ago  in  Ex  parte 
Kearney.  7  Wheat.  38,  5  L.  Ed.  391,  and 
the  rule  then  established  was  followed 
as  late  as  New  Orleans  v.  Steamship  Co., 
20  Wall.  387,  22  L.  Ed.  354."  The 
court  held  that  it  had  no  jurisdiction, 
and  dismissed  the  writ  of  error.  New- 
port Light  Co.  V.  Newport,  151  U.  S.  527, 
539,  38   L.   Ed.   259. 

In  New  Orleans  v.  Steamship  Co.,  20 
Wall.  387.  22  L.  Ed.  354,  the  act  in  con- 
tempt was  by  one  not  then  a  party  to 
the  suit.  No  order  was  entered  against 
him  until  the  final  decree  in  the  case, 
and  then  he  was  punished  for  the  act  of 
disobedience,  purely  as  an  act  of  a  crim- 
inal nature,  and  without  compensation  to 
the  plaintiff  in  whose  favor  the  injunc- 
tion was  originally  ordered.  No  review 
under  the  then  existing  law  was  allow- 
able. In  re  Christensen  Engineering  Co., 
194   U.   S.   458,   459,   48    L.   Ed.   1072. 

In  Worden  v.  Searls,  121  U.  S.  14.  30 
L.  Ed.  853,  the  proceeding  was  remedial 
and  compensatory,  in  that  for  violations 
of  a  preliminary  injunction  the  defendants 
were  ordered  to  pay  the  plaintiff  $250 
"as  a  fine  for  said  violation,"  by  one  or- 
der, and,  by  another  order,  to  pay  a  fine 
of  $1,182  to  the  clerk,  to  be  paid  over  by 
him  to  the  plaintiff  for  "damages  and 
costs,"  the  $1,182  being  made  up  of  $682 
profits  made  by  the  infringement,  and 
$500  expenses  of  plaintiff  in  the  contempt 
proceedings.  These  interlocutory  orders 
were  reviewed  by  this  court  on  appeal 
from  the  final  decree,  and  as  that  de- 
cree was  reversed,  the  orders  were  also 
set  aside,  this  being  done  "without  prej- 
udice to  the  power  and  right  of  the  cir- 
cuit court  to  punish  the  contempt  re- 
ferred to  in  those  orders,  by  a  proper 
proceeding."  It  was  also  said  "that, 
though    the    proceedings    were    nominally 


those  of  contempt,  they  were  really  pro- 
ceedings to  award  damages  to  the  plain- 
tiff, and  to  reimburse  to  him  his  ex- 
penses." In  re  Christensen  Engineering 
Co..    194   U.    S.   458,   460,   48    L.    Ed.    1072. 

"In  Ex  parte  Debs,  159  U.  S.  251,  there 
was  nothing  of  a  remedial  or  conmpensa- 
tory  nature.  No  fine  was  imposed,  but 
only  a  sentence  of  imprisonment.  This 
court  had  no  >nrisdiction  of  a  writ  of  er- 
ror in  such  a  case.  And  see  O'Neal  z'. 
United  States,  190  U.  S.  36,  47  L.  Ed. 
945."  In  re  Christensen  Engineering  Co., 
194   U.   S.  458,  460,  48   L.   Ed.    1072. 

In  Hayes  v.  Fischer.  102  U.  S.  121,  26 
L.  Ed.  95,  the  contempt  proceeding  was 
remedial  and  compensatory,  and  the  en- 
tire amount  of  the  fine  was  ordered  paid 
to  the  plaintiff  in  reimbursement.  It  was 
held,  that  if  the  remedial  feature  was 
alone  to  be  considered,  and  the  proceed- 
ing regarded  as  a  part  of  the  suit,  it  could 
not  be  brought  to  this  court  by  writ  of 
error,  but  could  only  be  corrected  on  ap- 
peal from  the  final  decree;  if  to  be  re- 
garded as  a  criminal  action,  then  it  was 
one  of  which  this  court  had  no  jurisdic- 
tion, either  by  writ  of  error  or  appeal. 
In  re  Christensen  Engineering  Co..  194 
U.   S.   458,  460,  48   L.   Ed.  1072. 

60.  In  re  Christensen  Engineering  Co., 
194  U.  S.   458,  48  L.  Ed.   1072. 

61.  In  re  Christensen  Engineering  Co., 
194   U.    S.   458,   460,   48   L.    Ed.    1072. 

62.  Bessette  v.  Conkey  Co.,  194  U.  S. 
324,  48  L.  Ed.  997.  reaffirmed  in  In  re 
Lewis,  202  U.  S.  614,  50  L.  Ed.  1172;  In 
re  Christensen  Engineering  Co.,  194  U. 
S.   -^58,  48   L.   Ed.   1072. 

63.  Doyle  v.  London  Guarantee,  etc.,  Co., 
204  U.  S.  599,  603.  51  L.  Ed.  641,  citing 
Bessette  z:  Conkey  Co.,  194  U.  S.  324,  48  L. 
Ed.  997;  In  re  Christensen  Engineering 
Co.,  194  U.  S.  458,  48  L.  Ed.  1072;  Alex- 
ander V.  United  States,  201  U.  S.  117,  50 
L.    Ed.    686. 


1 


APPEAL  AXD  ERROR. 


979 


Teview  exists  in  such  a  case,  in  advance  of  a  final  decree  in  the  case  in  which  the 
order  was  made.*^-* 

But  they  may  be  reached  by  certiorari  in  the  absence  of  any  other  ade- 
quate  remedy.'^'' 

The  decision  of  the  highest  state  court  declaring  what  their  judgment 
leally  meant,  and  defining  its  scope,  and  holding  that  the  party  thereto  had  not 
been  guilty  of  contempt,  cannot  be  reviewed  here  because  such  judgment  is  not 
final.<'*5 

(6)  Orders  hi  Habeas  Corpus  Proceedings. — In  General. — An  order  of  the 
circuit  court  of  the  United  States  in  habeas  corpus  proceedings  discharging  the 
prisoner  is  a  final  judgment.^''  A  judgment  of  this  court  affirming  the  judgment 
•of  the  circuit  court  denying  an  application  for  a  writ  of  habeas  corpus,  is  a  final 
judgment  in  the  premises,  because  it  determines  the  whole  controversy  involved 
in  the  appeal.*''^ 

Error  to  State  Court. — But  court  orders  made  upon  the  return  to  a  writ  of 
habeas  corpus,  which  was  granted  by  a  judge  and  returnable  before  him,  remand- 
ing the  prisoner  after  a  hearing  upon  the  returns  to  the  various  writs,  do  not 
constitute  that  final  judgment  or  decree  in  a  suit  in  the  highest  court  of  a  state 
in  which  a  decision  in  the  suit  could  be  had  which  may  be  reviewed  on  writ  of 
error  from  this  court  under  §  709  of  the  Revised  Statutes  of  the  United  States.^^ 
7)  Decrees  in  Suits  to  Dissok'e  Corporations. — In  a  suit  by  the  creditors  of 
an  indebted  corporation,  to  compel  the  collection  of  what  is  due  to  it,  and  the 
payment  of  the  debt  it  owes,  a  decree  made  before  the  funds  of  the  corporation 
are  collected,  that  all  the  moneys  recovered,  or  to  be  recovered,  shall  be  dis- 
tributed among  the  original  complainants,  and  the  several  persons  who  have  filed 
their  petitions  to  be  made  parties,  and  appointing  a  master  to  state  an  account,  is 
not  a  final  decree  in  the  cause.'''^ 

(8)  Decrees  in  Admiralty. — In  General. — In  admiralty  causes  a  decree  is  not 
final  while  it  is  depending  here,  and  any  statute  which  governs  the  case  must  be 
an  existing,  valid  statute,  at  the  time  of  affirming  the  decree  below."  ^ 

A  decree  in  a  priye  cause,  which  disposes  of  the  whole  matter  in  contro- 
versy, upon  a  claim  filed  by  particular  parties ;  which  is  final  as  to  them  and 
their  rights  and  final  also  so  far  as  the  claimants  and  their  rights  are  concerned 
as  to  the  United  States,  which  leaves  nothing  to  be  litigated  between  tlie  parties, 
and  awards  execution  in  favor  of  the  libelants  against  the  claimants,  is  final 
within  the  meaning  of  the  judiciary  acts,  and  this  court  has  jurisdiction  of  an 
appeal  from  it.'- 


64.  Doyk  V.  London  Guarantee,  etc.,  Co., 
^04   U.   S.   .^99,   f)OT,  .U   L.   Ed.   641. 

65.  In  re  Clictwood.  165  U.  S.  443.  462, 
41  L.  Ed.  782:  Bessette  v.  Conkey.  194 
U.    S.   458,  48    L.    Ed.   997. 

66.  Newport  Light  Co.  7'.  Xevvport.  151 
U.  S.  527,  38  L.  Ed.  259.  citing  McMickin 
V.  Perin,  20  How.  13?,.  15  L.  Ed.  857; 
Hayes  v.  Fischer.  102  U.  S.  121,  2fi  L. 
Ed.    95. 

67.  Orders  in  habeas  corpus  proceed- 
ings.— Harkrader  v.  Wadley.  172  U.  S. 
148,   43    L.    Ed.   399. 

68.  In  re  Jugiro,  140  U.  S.  291,  35  L. 
Ed.   510. 

69.  Clarke  v.  McDade.  165  U.  S.  168, 
41   L.   Ed.   673. 

70.  Decrees  in  suits  to  dissolve  corpo- 
rations.— Ogilvie  V.  Knox  Ins.  Co.,  2  Black 
.■.:9,    17    L.    Ed.   349. 

71.  Decrees  in  admiralty. — United 
States  V.  Preston,  3  Pet.  57,  66,  7  L.  Ed. 
('.01,  605;  Yeaton  v.  United  States,  5 
Cranch  281.  286,  3   L.   Ed.   101. 


In  admiralty  cases  a  decree  is  not  final 
while  an  appeal  from  the  same  is  de- 
pending in  this  court,  and  any  statute 
whicli  (joverns  the  case  must  be  an  exist- 
ing valid  statute  at  the  time  of  affirming 
the  decree  below.  If.  therefore,  the  per- 
sons of  color  who  were  on  board  the 
Josefa  Segunda  when  captured  had  been 
specifically  before  the  court  on  the  13th  of 
March,  1820,  they  must  have  been  de- 
livered up  to  the  president  of  the  United 
States  to  be  sent  to  Africa,  under  the 
provisions  of  the  act  of  the  3d  of  March, 
1819,  and  therefore  there  is  no  claim  to 
the  proceeds  of  their  sale  under  the  law 
of  Louisiana  which  appropriated  the  same. 
The  court  do  not  mean  to  intimate  that 
the  United  States  are  entitled  to  the 
money,  for  they  had  no  power  to  sell 
the  persons  of  color.  United  States  v. 
Preston,   3   Pet.   57.   7   L.   Ed.   601. 

72.  Withenbury  i\  United  States,  5 
Wall.    819,    18    L.    Ed.    613. 


L 


980 


APPEAL  AND  ERROR. 


Decree  of  Condemnation. — Where  the  Hbel  in  admirahy  claims  the  con- 
demnation of  the  schooner  and  cargo,  and  the  decree  condemns  the  schooner, 
but  makes  no  mention  of  the  cargo,  the  decree  does  not  dispose  of  the  cause  and 
is  not  finaL'''^ 

In  Tort  Actions. — It  is  equally  well  settled,  that  a  decree  in  admiralty  de- 
termining the  question  of  liability  for  a  collision  or  other  tort,  is  interlocutory 
merely.'''* 

Reference  to  Commissioner  to  Ascertain  Damages. — No  appeal  lies 
from  a  decree  of  restitution,  with  costs  and  damages,  in  the  circuit  court,  the 
report  of  the  commissioners  appointed  to  ascertain  the  damages  not  having  been 
acted  on  by  the  court  when  the  appeal  was  taken.  Such  a  decree  is  not  a  final 
decree.'^"  Therefore,  on  a  libel  in  personam  for  damages,  if  the  court  decrees 
that  damages  be  recovered,  and  that  commissioners  be  appointed  to  ascertain 
the  amount  thereof,  no  appeal  will  lie  from  such  a  decree  until  the  commissioners 
have  made  their  report,  this  not  being  a  final  decree."^ 

A  decree  in  admiralty  ordering  a  libel  to  stand  dismissed  if  not 
amended  within  ten  days,  is  final  and  appealable,  in  case  of  the  prosecution  of  the 
appeal  within  that  time,  because  this  is  an  election  to  waive  the  right  to  amend 
and  the  decree  of  dismissal  takes  effect  immediately."''' 

(9)  Judgments  and  Decrees  in  Condoniiation  Proceedings. — Upon  a  writ  of 
error  to  a  state  court,  it  was  held,  that  a  judgment  in  condemnation  proceedings 
is  final  and  appealable,  though  the  amount  of  compensation  to  be  made  is  still 
to  be  determined  by  commissioners  appointed.'^^  But  an  order  appointing  com- 
missioners in  condemnation  proceedings  is  not  a  final  judgment  nor  subject  to 
review  until  after  the  confirmation  of  the  award  of  the  commissioners.'^^ 


73.  Dayton  v.  United  States.  131  U.  S. 
appx.   Ixxx,    18    L.    Ed.    1G9. 

74.  The  Palmyra,  10  Wheat.  502.  6  L. 
Kd.  376;  Chace  r.  Vasquez,  11  Wheat. 
420,  6  L.  Ed.  511;  Mordecai  r.  Lindsay; 
19  How.  199,  15  L.  Ed.  624;  McGourkey 
V.  Toledo,  etc.,  R.  Co.,  146  U.  S.  536.  545, 
36  L.   Ed.   1079. 

75.  The  Palmyra.  10  Wheat.  502,  6  L. 
Ed.  376,  distinguishing  Ray  v.  Law.  3 
Cranch.    179,   2    L.    Ed.    404. 

76.  Chace  v.  Vasquez.  11  Wheat.  429, 
6  L.  Ed.  511,  following  The  Palmyra.  10 
Wheat.  502,  6  L.  Ed.  376,  approved  in  Mc- 
Gourkey  v.  Toledo,  etc..  R.  Co.,  146  U. 
S.    545,    36    L.    Ed.    1079. 

In  the  case  of  The  Palmyra,  10  Wheat. 
502,  6  L.  Ed.  376,  where,  in  a  libel  for  a 
tortious  seizure,  restitution  with  costs  and 
damages  had  been  decreed,  but  the 
damages  had  not  been  assessed,  this  court 
held,  that  the  decree  was  not  final,  and 
dismissed  the  appeal.  It  said:  "The  de- 
cree of  the  circuit  court  was  not  final  in 
the  sense  of  the  act  of  congress.  The 
damages  remain  undisposed  of,  and  an 
appeal  may  still  lie  upon  that  part  of  the 
decree  awarding  damages.  The  whole 
cause  is  not,  therefore,  finally  determined 
in  the  circuit  court,  and  we  are  of  the 
opinion  that  the  cause  cannot  be  divided 
so  as  to  bring  up  distinct  parts  of  it." 

77.  The  Three  Friends,  166  U.  S.  1.  41 
L.    Ed.   897. 

78.  Judgments  and  decrees  in  condem- 
nation proceedings — Wheeling.  etc., 
Bridge  Co.  7:  Wheeling  Bridge  Co.,  138 
U.   S.  287,  34   L.    Ed.   967. 


But    this    case    has    been    distinguished 

as  follows:  "In  Wheeling,  etc..  Bridge 
Co.  z:  Wheeling  Bridge  Co..  138  U.  S.  28  7, 
34  L.  Ed.  967,  this  court  sustained  its 
jurisdiction  of  a  writ  of  error  to  the  su- 
preme court  of  appeals  of  West  Virginia, 
and  inquired  into  the  validity  of  a  judg- 
ment of  that  court  affirming  an  order  of 
a  trial  court  appointing  commissioners  in 
condemnation  proceedings.  But  that  de- 
cision was  based  on  the  fact  that  the  or- 
der of  the  trial  court  had  been  held  by 
the  state  supreme  court  to  be  a  final  judg- 
ment, on  which  a  writ  of  error  would 
lie,  and  therefore,  being  a  final  judgment 
in  the  view  of  the  highest  court  of  the 
state,  it  ought  to  be  considered  final  here 
for  the  purposes  of  review."  Southern  R. 
Co.  f.  Postal  Tel.  Co.,  179  U.  S.  641.  643, 
45    L.    Ed.    355. 

79.  Southern  R.  Co.  r.  Postal  Tel.,  etc., 
Co..   179  U.  S.  641,  45   L.   Ed.  355. 

Under  §  4  of  the  act  of  congress  in- 
corporating the  North  River  Bridge  Com- 
pany, and  enacting  that  compensation  f  ^r 
property,  appropriated  and  condemned 
under  the  act,  shall  be  ascertained  accord- 
ing to  the  laws  of  the  state  within  which 
the  same  is  located,  it  was  held,  that  an 
order  of  the  circuit  court,  appointing  com- 
missioners to  assess  damages  for  the  tak- 
ing of  land  by  the  bridge  company,  is 
not  a  final  judgment  upon  which  a  wr:t 
of  error  will  lie.  Luxton  v.  North  River 
Bridge  Co..  147  U.  S.  337,  37  L.  Ed.  191, 
distinguishing  Wheeling,  etc..  Bridge  Co. 
V.  Wheeling  Bridge  Co.,  138  U.  S.  287, 
34  L.   Ed.  967.  in  the  following  language: 


APPEAL  AND  ERROR. 


981 


X.  Decrees  Respecting  Costs. — Reservations  Respecting  Costs. — When  a 
decree  determines  all  of  the  equities  raised  by  the  bill,  and  the  party  is  entitled 
to  have  it  immediately  carried  into  execution,  it  is  final,  although  a  clause  is 
added  to  the  decree  reserving  to  itself  the  right  to  make  such  further  directions 
respecting  costs,  as  might  be  necessary  to  carry  the  decree  into  execution.*"^  A 
decree  for  the  dismissal  of  a  bill  and  for  costs  may  be  final,  although  the  costs 
are  not  taxed  and  entered  in  the  judgment. ^^ 

When  to  Be  Paid  Out  of  Particular  Fund. — An  order  for  the  allowance 
of  costs  and  expenses  to  a  complainant  suing  on  behalf  of  a  trust  fund,  is  final 
and  appealab!e.^2 

5.  Practice — a.  Raising  and  Wofiznmg  Objections. — Although  this  court  has 
appellate  jurisdiction  only  where  the  judgment  or  decree  of  the  inferior  court 
is  final,  it  does  not  follow,  when  it  renders  a  decree  upon  an  interlocutory  and 
not  a  final  decree,  that  it  can,  or  ought,  on  an  appeal  from  a  decree  in  the  same 
caiise,  which  is  final,  examine  into  its  jurisdiction  upon  a  former  occasion.  This 
is  an  exception,  of  which  advantage  might  have  been  taken  by  motion  on  the 
first  appeal. ^-^ 


"Jurisdiction  of  a  writ  of  error  to  the 
supreme  court  of  appeals  of  West  Vir- 
ginia, affirming  an  order  appointing  com- 
missioners under  a  somewhat  similar  stat- 
ute, was  there  entertained  by  this  court, 
solely  because  that  order  had  been  held 
by  the  highest  court  of  the  state  to  be  an 
adjudication  of  the  right  to  condemn  the 
land,  and  to  be  a  final  judgment,  on 
which  a  writ  of  error  would  lie,  and  could 
therefore  hardly  be  considered  in  anj' 
other  light  by  this  court  in  the  exercise 
of  its  jurisdiction  to  review  the  decisions 
of  the  highest  court  of  the  state  upon  a 
federal  question.  Wheeling,  etc.,  Bridge 
Co.  V.  Wheeling  Bridge  Co..  138  U.  S. 
287.  290,  34  L.  Ed.  967.  To  have 
held  otherwise  might  have  wholly 
defeated  the  appellate  jurisdiction  of  this 
court  under  the  constitution  and  laws 
of  the  United  States:  for  if  the  high- 
est court  of  the  state  held  the  order  ap- 
pointing commissioners  to  be  final  and 
conclusive  unless  appealed  from,  and  the 
validity  of  the  condemnation  not  to  be 
open  on  a  subsequent  appeal  from  the 
awa'-d  of  damages,  it  is  difficult  to  see 
how  this  court  could  have  reached  the 
question  of  the  validity  of  the  condemna- 
tion, except  b}-  writ  of  error  to  the  order 
appointing  commissioners.  That  ca'^e. 
tiierefore.  afTords  no  precedent  or  reason 
for  sustaining  this  writ  of  error  to  the 
circuit    court    of    the    United    States." 

In  Luxton  v.  North  River  Bridge  Co., 
147  U.  8.  337,  341,  37  L.  Ed.  194,  in  con- 
demnation proceedings,  an  order  was 
made  appointing  commissioners  to  assess 
damages.  To  reverse  this  order,  a  writ 
of  error  was  sued  out.  and  by  that  writ 
of  error  an  attempt  was  made  to  chal- 
lenge the  constitutionality  of  the  act  au- 
thorizing the  condemnation,  but  this  court 
dismissed  the  writ  on  the  ground  that 
the  order  was  not  a  final  judgment,  say- 
ing, after  referring  to  possible  proceed- 
ings in  the  state  court,  that  the  action 
of   the    United    States    circuit    court    could 


be  reviewed  here  "onlj-  by  writ  of  error, 
which  does  not  lie  until  after  final  judg- 
ment, disposing  of  the  whole  case,  and 
adjudicating  all  the  rights,  whether  of 
title  or  of  damages,  involved  in  the  liti- 
gation. The  case  is  not  to  be  sent  up  in 
fragments  by  successive  writs  of  error. 
Act  of  September  24,  1789,  ch.  20.  §  22; 
1  Stat.  84;  Rev.  Stat.,  §  691;  Rutherford 
V.  Fisher,  4  Dall.  22,  1  L.  Ed.  724;  Hol- 
combe  v.  McKusick,  20  How.  552.  554,  15 
L.  Ed.  1020;  Louisiana  Bank  v.  Whitney, 
121  U.  S.  284,  30  L.  Ed.  961;  Keystone 
Iron  Co.  V.  Martin,  132  U.  S.  91.  33  L. 
Ed.  275;  McGourkey  v  Toledo,  etc.,  R. 
Co.,  146  U.  S.  536,  36  L.  Ed.  1079."  South- 
ern R.  Co.  V.  Postal  Tel.  Co.,  179  U.  S. 
641,   643,   45   L.    Ed.    355. 

80.  Decrees  respecting  costs. — Winthrop 
Iron  Co.  V.  Meeker.  109  U.  S.  180,  27  L. 
Ed.    898. 

Stockholders  of  a  corporation  filed  a 
bill  praying  that  a  receiver  be  appointed 
for  the  corporation  and  that  proceedings 
at  a  meeting  of  the  stockholders  of  the 
corporation  and  proceedings  of  the  board 
of  directors  under  a  supposed  authority 
derived  therefrom  be  set  aside  as  fraud- 
ulent and  void.  The  court  rendered  a  de- 
cree appointing  a  receiver  and  setting 
aside  the  proceedings  in  accordance  with 
the  prayer  of  the  petition,  and  added  to 
the  decree  a  provision  reserving  "such 
further  directions  as  may  be  necessary 
to  carry  this  decree  into  effect  concern- 
ing costs."  It  was  held,  that  such  res- 
ervation did  not  affect  the  finality  of  the 
decree.  Winthrop  Iron  Co.  v.  Meeker, 
109  U.  S.  180,  27  L.  Ed.  898. 

81.  Fowler  v.  Hamill,  139  U.  S.  549,  35 
L.    Ed.    266. 

82.  Costs  ordered  to  be  paid  out  of  fund 
in  receiver's  hands  awaiting  distribution. 
— Trustees  v.  Greenough,  105  U.  S.  527, 
26   L.    Ed.    1157. 

83.  Raising  and  waiving  objection. — 
Washington  Bridge  Co.  v.  Stewart,  3  How. 
413,   11   L.  Ed.   658. 


982 


APPEAL  AND  ERROR. 


b.  Dismissal. — The  practice  in  this  court,  in  case  the  judgment  or  decree  is 
not  final,  is  to  dismiss  the  writ  of  error  or  appeal  for  want  of  jurisdiction,  and 
remand  it  to  the  court  below  to  be  further  proceeded  in.  And  this  the  court  will 
do  either  on  the  motion  of  the  appellee  or  ex  mero  motu.'^-' 

c.  Reinstatement. — Where  a  cause  comes  on  to  be  heard  upon  an  appeal,  and 
upon  inspection  of  the  record,  it  does  not  appear  that  there  has  been  any  final 
decree,  the  appeal  will  be  dismissed.  But  if  at  a  subsequent  term,  it  appears 
that  in  point  of  fact  there  had  been  a  final  award  of  damages,  and  that  the  error 
was  a  mere  misprison  of  the  clerk  in  transmitting  an  imperfect  record,  the  court, 
upon  motion  of  the  appellants,  will  order  the  cause  to  be  reinstated. ^-^  But 
where  a  common-law  case  was  dismissed  at  the  last  term  for  want  of  juris- 
diction (the  record  showing  that  no  final  judgment  was  given  in  the  court  be- 
low), an  affidavit  setting  forth  that  the  final  judgment  was  accidentally  omitted 
from  the  record,  and  the  production  of  a  correct  record,  are  not  sufficient  to 
sustain  a  motion  to  annul  the  order  of  dismissal,  and  reinstate  the  case  upon  the 
docket.  After  the  judgment  of  this  court  was  passed  upon  the  case,  and  the 
term  was  closed,  the  function  of  the  writ  of  error  was  over,  and  it  cannot  now 
be  revived. ^^ 


84.  Dismissal. — Rutherford  v.  Fisher,  4 
Dall.  22,  1  L.  Ed.  724;  Houston  v.  Moore, 
3  Wheat.  433.  4  L.  Ed.  428;  Van  Ness  v. 
Buell,  4  Wheat.  74,  75,  4  L.  Ed.  516; 
Forgay  v.  Conrad,  G  How.  201,  200,  12 
L.  Ed.  404;  United  States  v.  Girault,  11 
How.  22.  23,  13  L.  Ed.  587;  Ogilvie  v. 
Knox  Ins.  Co.,  2  Black.  539,  17  L.  Ed. 
349;  FoUansbec  v.  Ballard  Paving  Co., 
154  U.  S.  651,  25  L.  Ed.  802;  Patton  v. 
Texas,  etc.,  R.  Co.,  166  U.  S.  717.  41  L. 
Ed.  1177;  Agricultural  Ditch  Co.  v.  Farm- 
ers' Independent  Ditch  Co.,  166  U.  S.  719, 
41  L.  Ed.  1188;  Young  v.  Grundy.  G  Cranch 
51,  3  L.  Ed.  149;  The  Palmyra.  10  Wheat. 
502,  6  L.  Ed.  376;  Gibbons  v.  Ogden.  6 
Wheat.  448.  5  L.  Ed.  302 :  Carr  :•.  Hoxie, 
13    Pet.   460,   10   L.   Ed.   247;   Lea  v.   Kelly. 

15  Pet.  213,  10  L.  Ed.  715;  Smith  v. 
Trabue.  9  Pet.  4,  9  L.  Ed.  30;  Barnard  v. 
Gibson.  7  How.  651.  12  L.  Ed.  857;  Brown 
V.  Union  Bank.  4  How.  465,  11  L.  Ed. 
1058;  Pepper  v.  Dunlap,  5  How.  51,  12 
L.  Ed.  46;  Miners'  Bank  v.  United  States, 
5  How.  213,  12  L.  Ed.  121;  McCollum  :•. 
Eager.  2  How.  61,  11  L.  Ed.  179;  Verden 
V.  Coleman.  18  How.  86,  15  L.  Ed.  272; 
Craighead  v.  Wilson.  18  How.  199,  15  L. 
Ed.  "332;    Reddall   v.    Bryan,   24   How.    420, 

16  L.  Ed.  740;  McMicken  v.  Perin,  20 
How.  133,  15  L.  Ed.  857;  Tracy  v.  Hol- 
combe.  24  How.  426,  16  L.  Ed.  742;  Per- 
kins V.  Fourniquet.  <;  How.  206,  12  L.  Ed. 
406;  Pulliam  v.  Christian,  6  How.  209. 
12  L.  Ed.  408;  Callan  v.  May,  2  Black 
541,  17  L.  Ed.  281;  Wheeler  v.  Harris,  13 
Wall.  51,  20  L.  Ed.  531;  Moses  v.  The 
Mayor,  15  Wall.  387.  21  L.  Ed.  176;  Moore 
V.  Robbins.  18  Wall.  588.  21  L.  Ed.  758;  St. 
Clair  County  v.  Lovington.  18  Wall.  628. 
21  L.  Ed.  813;  Thomas  v.  Wooldridge.  23 
Wall.  283.  23  L.  Ed.  135;  Rankin  v.  State, 
11  Wall.  380,  20  L.  Ed.  175;  Bethell  v. 
Demaret,  10  Wall.  537,  19  L.  Ed.  1007: 
Huminston  v.  Stainthrop.  2  Wall.  106.  17 
L.  Ed.  905;  The  Lucille,  19  Wall.  73.  22 
L.   Ed.  64;   North  Carolina  R.  Co.  v.  Swa- 


sey.  23  Wall.  405,  23  L.  Ed.  136;  Chicago, 
etc.,  R.  Co.  v.  Wiswall,  23  Wall.  507.  22 
L.  Ed.  103;  Parcels  v.  Johnson,  20  Wall. 
653.  22  L.  Ed.  410;  Louisiana  Bank  v. 
Whitney,  121  U.  S.  284,  30  L.  Ed.  961: 
Kimball  v.  Evans.  93  U.  S.  320,  23  L.  Ed. 
920;  Zeller  v.  Switzer,  91  U.  S.  487,  23  L. 
Ed.  366;  Harrington  v.  Holler,  111  U.  S. 
796,  797,  28  L.  Ed.  602;  Parsons  v.  Robin- 
son, 122  U.  S.  112.  30  L.  Ed.  1122;  Chi- 
cago, etc..  R.  Co.  V.  Fosdick.  106  U.  S. 
48,  27  L.  Ed.  47;  Grant  v.  Phoenix  Ins. 
Co.,  106  U.  S.  429.  27  L.  Ed.  237;  Ben- 
jamin V.  Dubois,  118  U.  S.  46,  30  L.  Ed. 
52;  Davis  v.  Crouch,  94  U.  S.  514,  24  L. 
Ed.  281;  McComb  r.  Commissioners  of 
Knox  County,  91  U.  S.  1,  23  L.  Ed.  185; 
Butterfield  v.  Usher,  91  U.  S.  246.  23  L.  Ed. 
318;  Baker  v.  White,  92  U.  S.  176,  23  L. 
Ed.  480;  Johnson  v.  Keith,  117  U.  S.  199. 
29  L.  Ed.  888;  Bostwick  v.  Brinkerhoff. 
106  U.  S.  3.  27  L.  Ed.  73;  Green  v.  Fisk, 
103  U.  S.  518.  26  L.  Ed.  486;  McLish  v. 
Roff.  141  U.  S.  661.  35  L.  Ed.  893;  Rice 
V.  Sanger,  144  U.  S.  197,  36  L.  Ed.  403; 
Brown  V.  Baxter,  146  U.  S.  619,  36  L.  Ed. 
1106. 

Where  the  order  or  decree  sought  to  be 
reviewed  was  not  final  but  interlocutory, 
and  the  writ  of  error  and  the  appeal  must 
be  dismissed.  Acts,  September  24,  1789,. 
c.  20,  §§  13,  22,  1  Stat.  81,  84;  March  3, 
1803  c.  40.  2  Stat.  244;  Rev.  Stat.,  §§  69U 
692;  act,  March  3,  1891,  c.  517,  26  Stat. 
826;  Forgay  v.  Conrad,  6  How.  201.  205,. 
12  L.  Ed.  404;  McLish  v.  Roflf,  141  U.  S. 
661,  35  L.  Ed.  893;  American  Construc- 
tion Co.  V.  Jacksonville,  etc.,  R.  Co.,  148. 
U.  S.  372.  378,  37  L.  Ed.  486;  Smith  v. 
Vulcan  Iron  Works,  165  U.  S.  518,  524,. 
41  L.  Ed.  810;  Reaves  v.  Oliver,  168  U. 
S.   T04.   42   L,    Ed.    1212. 

85.  Reinstatement. — The  Palmyra.  13^ 
Wheat.  1,  6  L.  Ed.  531. 

86.  Rice  v.  Minnesota,  etc.,  R.  Co.,  21 
How.   82,  16  L.   Ed. -31. 

"The  case  of  The  Palmyra,  12  Wheat.  1, 


APPEAL  AXD  ERROR. 


983 


d.  Examination  of  the  Merits. — By  the  practice  in  equity,  as  administered  in  the 
court  of  chancery  and  the  House  of  Lords  in  England,  and  in  the  courts  of  chan- 
cery and  court  of  errors  in  the  states  of  New  York  and  New  Jersey,  appeals  He  from 
interlocutory,  as  well  as  from  final,  orders  or  decrees  ;  and  upon  an  appeal  from 
an  interlocutory  order  or  decree  the  appellate  court  had  the  power  of  examining 
the  merits  of  the  case,  and,  upon  deciding  them  in  favor  of  the  defendant,  of 
dismissing  the  bill,  and  thus  saving  to  both  parties  the  needless  expense  of  a 
further  prosecution  of  the  suit.^"  But  under  the  judicial  system  of  the  Ignited 
States,  from  the  beginning  until  the  passage  of  the  act  of  1891  establishing  cir- 
cuit courts  of  appeals,  appeals  from  the  circuit  courts  of  the  United  States  in 
equity  or  in  admiralty,  like  writs  of  error  at  common  law.  would  lie  only  after 
final  judgment  or  decree.*^  Under  the  act  of  March  3,  1891,  c.  517,  §7,  the 
circuit  court  of  appeals,  upon  appeal  from  the  interlocutory  decree  of  the 
circuit  court,  granting  an  injunction  and  ordering  an  account,  has  authority  to' 
consider  and  decide  the  case  upon  its  merits,  and  thereupon  to  render  or  direct 
a  final  decree  dismissing  the  bill.^^ 

D.  Discretionary  Matters — 1-  In  General.— Decisions  which  rest  in  the 
discretion  of  the  court  below  cannot  be  examined  in  the  appellate  court  except 
in  cases  of  gross  abuse.  Generally,  where  the  action  of  the  inferior  court  is 
discretionary,   its   decision   is  final. '•^"       But   where  the    very    point    in    issue    is 


6  L.  Ed.  531,  has  been  referred  to,  where 
a  motion  similar  to  the  present  was 
granted  by  the  court.  And  if  that  had 
been  a  case  at  common  law,  we  might 
have  felt  ourselves  bound  to  follow  it,  as 
establishing  the  law  of  this  court.  But  it 
was  a  case  in  admiralty,  where  the  power 
and  jurisdiction  of  an  appellate  court  is 
much  wider,  upon  appeal,  than  in  a  case 
at  common  law.  For,  in  an  adiniraltj^ 
.case,  you  may  in  this  court  amend  the 
pleadings,  and  take  new  evidence,  so  as 
in  effect  to  make  it  a  different  case  from 
that  decided  by  the  court  below.  And  the 
court  might  well,  therefore,  deal  with  the 
judgment  and  appeal  of  the  inferior  tribu- 
nal in  the  same  spirit.  But  the  powers 
which  an  appellate  court  may  lawfully  ex- 
ercise in  an  admiralty  proceeding,  are  al- 
together inadmissible  in  a  common-law 
suit."  Rice  v.  Minnesota,  etc.,  R.  Co.,  21 
How.   82.   16   L.    Ed.   31. 

87.  Examination  of  the  merits. — Palmer 
H.  L.,  Pract.  1;  2  Dan.  Ch.  Pract.  (1st 
Ed.)  1491,  1492;  Forgay  v.  Conrad,  6  How. 
201,  20.5,  12  L.  Ed.  404;  Le  Guen  v.  Gou- 
verneur.  1  Johns  Cas.  436,  498,  499.  507. 
509;  Bush  v.  Livingston,  2  Caines  Cas.  66, 
86;  Newark  &  New  York  Railroad  v. 
Newark.  8  C.  E.  Gr.  (23  N.  J.  Eq.)  515. 
Smith  V.  Vulcan  Iron  Works,  165  U.  S. 
518,   524,   41   L.    Ed.    810. 

88.  Smith  v.  Vulcan  Iron  Works,  165  U. 
S.  518,  524,  41  L.  Ed.  810,  reaffirmed  in 
Reaves  v.  Oliver,  168  U.  S.  704.  42  L.  Ed. 
1212. 

89.  Smith  v.  Vulcan  Iron  Works,  165  U. 
S.   518,   525.  41    L.   Ed.   810. 

90.  Discretionary  matters  in  general. — 
2  Daniell's  Chy.  PI.  &  Prac.  5th  Ed.  462; 
Cook  V.  Burnley,  11  Wall.  659,  20  L.  Ed. 
29;  Cheang-Kee  v.  United  States,  3  Wall. 
320.  18  L.  Ed.  72;  Earnshaw  v.  United 
States,  146  U.  S.  60,  36  L.  Ed.  887;  Bullitt 


County  V.  Washer,  130  U.  S.  142,  32  L. 
Ed.  885;  Central  Trust  Co.  v.  Grant  Lo- 
comotive Works,  135  U.  S.  207.  34  L.  Ed. 
97;  Terre  Haute,  etc.,  R.  Co.  v.  Struble.  109 
U.  S.  381.  27  L.  Ed.  970;  Ex  parte  Roberts, 
6  Pet.  216,  8  L.  Ed.  375;  Kennon  v.  Gil- 
mer, 131  U.  S.  22.  32  L.  Ed.  110;  Freeborn 
V.  Smith,  2  Wall.  160,  17  L.  Ed.  922;  Par- 
sons V.  Bedford,  3  Pet.  433.  445.  7  L.  Ed. 
732;  Wiggins  v.  Gray,  24  How.  303,  16  L- 
Ed.  688;  Woods  v.  Young.  4  Cranch  237, 
2  L.  Ed.  607;  Sim  v.  Hundlev.  6  How.  1, 
6  12  L.  Ed.  319;  Thompson  v.  Selden,  20 
How.  194.  15  L.  Ed.  1001;  San  Antonio  v. 
Mehaffy,  96  U.  S.  312,  315,  24  L.  Ed.  816; 
Terre  Haute,  etc.,  R.  Co.  v.  Struble,  109 
U.  S.  381,  27  L.  Ed.  970;  United  States  v. 
Rio  Grande  Irrig.  Co.,  184  U.  S.  416,  423, 
46  L.  Ed.  619;  Murphy  v.  Stewart,  2  How. 
263.  11  L.  Ed.  261;  Morsel]  r.  Hall,  13 
How.  212.  14  L.  Ed.  117;  Steines  v.  Frank- 
lin County.  14  Wall.  15,  20  L.  Ed.  846; 
Liter  V.  Green,  2  Wheat.  306.  4  L.  Ed.  246; 
Breedlove  r.  Nicolet,  7  Pet.  413.  8  L.  Ed. 
731;  Schaumburg  v.  United  States,  103  U. 
S.  667.  26  L.  Ed.  599;  Pomerov  v.  Bank 
of  Indiana.  1  Wall,  592,  598,  17  L.  Ed. 
638;  Van  Stone  v.  Stillwell.  etc..  Mfg.  Co., 
142  U.  S.  128,  134,  35  L.  Ed.  961;  Fuller  v. 
Claflin,  93  U.  S.  14,  23  L.  Ed.  785;  Wood 
V.  United  States,  16  Pet.  342,  10  L.  Ed. 
987. 

The  general  principle  is  too  well  set- 
tled to  admit  of  doubt  that  where  the  ac- 
tion of  an  inferior  tribunal  is  discretion- 
ary, its  decision  is  final.  Henderson  v. 
Moore,  5  Cranch  11.  3  L.  Ed.  22;  Marine 
Ins.  Co.  V.  Young,  5  Cranch  187.  3  L.  Ed. 
74;  Marine  Ins.  Co.  if.  Hodgson,  6  Cranch 
206,  3  L.  Ed.  200;  Earnshaw  v.  United 
States,   146  U.   S.   60,  68.  36  L.   Ed.  887. 

Before  this  court  will  interfere  with 
the  circuit  court  of  the  United  States  in 
the    exercise    of    discretion,    a    very    clear 


984 


APPEAL  AND  ERROR. 


whether  the  court  had  such  discretion,  and  whether  they  exercised  it  in  a  man- 
ner that  cannot  be  reviewed  in  the  court,  is  the  subject  of  appeal. ^^ 

Generally  speaking,  matters  of  practice  in  inferior  courts  do  not  con- 
stitute subjects  upon  which  error  can  be  assigned  in  the  appellate  court. 9- 

2.  Amendments. — The  general  rule  is  well  settled  that  amendments  are  dis- 
cretionary with  the  court  below,  and  therefore  the  allowance  or  refusal  of 
amendments  by  the   trial  court  is   not    reviewable    here,^^  except    for    a    clear 


showing  must  be  made.  Russell  v.  Far- 
ley,  105    U.    S.    433,   26   L.   Ed.    1060. 

A  writ  of  error  can  bring  up  nothing 
but  questions  of  law.  It  does  not  bring 
up  questions  of  equity  arising  out  of  the 
rules  and  practice  of  the  court.  Morsell 
V.    Hall,   13    How.   212,   14    L.    Ed.    117. 

The  allowance  and  refusal  of  amend- 
ments in  the  pleadings,  the  granting  or 
refusing  new  trials;  and.  indeed,  inost 
other  incidental  orders  made  in  the  prog- 
ress of  a  cause,  before  trial,  are  matters 
so  peculiarly  addressed  to  the  sound  dis- 
cretion of  the  courts  of  original  jurisdic- 
tion, as  to  be  fit  for  their  decision  only, 
under  their  own  rules  and  modes  of  prac- 
tice. This,  it  is  true,  may,  occasionally, 
lead  to  particular  hardships;  but  on  the 
otber  hand,  the  general  inconvenience  of 
this  court  attempting  to  revise  and  cor- 
rect all  the  intermediate  proceedings  in 
suits,  between  their  commencement  and 
final  judgment,  would  be  intolerable.  This 
court  has  always  declined  interfering  in 
such  cases;  accordingly,  it  was  held,  by 
the  court  in  Woods  v.  Young,  4  Cranch 
237,  2  L.  Ed.  607.  that  the  refusal  of  the 
court  below  to  continue  a  cause,  after  it 
is  at  issue,  is  not  a  matter  upon  which 
error  can  be  assigned.  That  the  refusal 
of  the  court  below  to  grant  a  new  trial, 
is  not  matter  for  which,  a  writ  of  error 
lies  (Henderson  v.  Moore,  5  Cranch  11, 
3  L.  Ed.  22;  Marine  Ins.  Co.  v.  Young.  5 
Cranch  187.  3  L.  Ed.  74;  and  Barr  v. 
Gratz,  4  Wheat.  213.  220,  4  L.  Ed.  553),  and 
that  the  refusal  of  the  court  below  to  al- 
Jow  a  plea  to  be  amended,  or  a  new 
plea  to  be  filed,  or  to  grant  a  new  trial. 
or  to  continue  a  cause,  cannot  be  assigned 
as  a  cause  of  reversal  or  a  writ  of  error. 
Wright  V.  Hollingsworth,  1  Pet.  165,  168, 
7    L.    Ed.   97. 

It  is  well  settled  that  mere  matters  of 
procedure,  such  as  the  granting  or  refus- 
ing" of  motions  for  new  trials,  and  ques- 
tions respecting  amendments  to  the  plead- 
ings, are  purely  discretionary  matters  for 
the  consideration  of  the  trial  court,  and. 
unless  there  has  been  gross  abuse  of  that 
discretion,  they  are  not  reviewable  in  this 
court  on  writ  of  error.  Mexican  Central 
R.  Co.  V.  Pinkney.  149  U.  S.  194.  201,  37 
L.    Ed.   699. 

"With  regard  to  the  judicial  power  in 
i-ases  of  this  kind,  it  was  held,  by  this 
court,  as  early  as  1803,  in  the  great  case 
of  Marbury  7'.  Madison,  1  Cranch  137.  2 
L.  Ed.  60,  that  there  was  a  distinction 
between    acts    involving    the    exercise    of 


judgment  or  discretion  and  those  which 
are  purely  ministerial;  that,  with  respect 
to  the  former,  there  exists,  and  can  exist, 
no  power  to  control  the  executive  discre- 
tion, however  erroneous  its  exercise  may 
seem  to  have  been,  but  with  respect  to 
ministerial  duties,  an  act  or  refusal  to 
act  is,  or  may  become,  the  subject  of  re- 
view by  the  courts."'  Noble  v.  Union 
River  Logging  R.  Co.,  147  U.  S.  165,  171. 
37    L.    Ed.    123. 

91.  Where  point  in  issue  is  whether 
court  had  such  discretion. — "The  other 
reason  given  why  the  appeal  should  not 
be  granted  is  that  the  action  of  the  cir- 
cuit court  in  the  case  is  one  within  its 
discretion.  All  we  have  to  say  upon  this 
subject  is,  that  if  it  be  an  authority  vested 
in  the  judges  of  the  circuit  court,  it  must 
be  exercised  and  governed  by  the  prin- 
ciples of  a  judicial  discretion,  and  the 
very  point  to  be  decided  upon  an  appeal 
here  is,  whether  they  had  such  discretion, 
and  whether  they  exercised  it  in  a  manner 
that  cannot  be  reviewed  in  this  court.  The 
question  is  onfe  which  in  its  nature  must 
be  a  subject  of  appeal.  Whether  the 
court  below  can  exercise  any  such  power 
at  all.  after  the  case  has  been  removed 
from  its  jurisdiction  into  this  court  by 
an  appeal  accompanied  by  a  supersedeas, 
is  itself  a  proper  matter  of  review;  and 
still  more,  whether,  in  the  exercise  of 
what  the  court  asserts  to  be  its  discre- 
tionary power,  it  has  invaded  established 
rights  of  the  petitioners  in  this  case,  con- 
trary to  law,  in  such  a  manner  that  they 
can  have  no  relief  except  by  an  appeal 
to  this  court.  This  is  a  matter  eminently 
proper  to  be  inquired  into  upon  an  appeal 
from  such  an  order."  In  re  Farmers'  Loan, 
etc.,  Co.,  129  U.  S.  206,  215,  32  L.  Ed.  656. 

92.  Parsons  v.  Bedford,  3  Pet.  433.  445, 
7   L.   Ed.   732. 

93.  Amendments. — Mandeville  v.  Wil- 
son. 5  Cranch  15,  3  L.  Ed.  23;  Sheehy  v. 
Mandeville,  6  Cranch  253,  3  L.  Ed.  215; 
Waldcn  v.  Craig,  9  Wheat.  576,  6  L.  Ed. 
164;  Chirac  v.  Reinicker,  11  Wheat.  280. 
6  L.  Ed.  474;  Wright  v.  Hollingsworth, 
1  Pet.  165,  7  L.  Ed.  97;  United  States  v. 
Buford.  3  Pet.  12,  7  L.  Ed.  585;  Matheson 
V.  Grant,  2  How.  263.  11  L.  Ed.  261;  Ex 
parte  Bradstreet,  7  Pet.  634,  8  L.  Ed.  810; 
Chapman  z\  Barney,  129  U.  S.  677,  32  L. 
Ed.  800;  Pickett  7'.  Legerwood,  7  Pet. 
144,  8  L.  Ed.  638;  Breedlove  v.  Nicolet.  7 
Pet.  413.  8  L.  Ed.  731;  Sheer  v.  Pitts- 
burg Bank.  16  How.  571,  14  L.  Ed. 
1063,   1066;  Spencer  t'.  Lapsley,  20  How.  264, 


APPEAL  AXD  ERROR. 


985 


abuse. ^^ 

Amendments  to  pleadings  are  within  the  discretion  of  the  trial  court,  and 
its  action  granting  or  refusing  such  amendment  cannot  be  reviewed  in  the  su- 
preme court  of  the  United  States. ^"^  This  depends  so  much  on  the  discretion 
of  the  court  below,  which  must  be  regulated  more  by  the  particular  circum- 
stances of  every  case,  than  by  any  precise  and  known  rule  of  law,  and  of  which 
the  superior  court  can  never  become  fully  possessed,  that  there  would  be  more 


15  L.  Ed.  902 ;  Gormley  v.  Bunyan,  138  U.  S. 
623,  34  L.  Ed.  1086;  Royal  Ins.  Co.  v. 
Miller,  199  U.  S.  353,  50  L.  Ed.  226; 
Sawyer  r.  Piper.  189  U.  S.  154,  47  L.  Ed. 
757;  Walden  v.  Craig,  14  Pet.  147,  153,  10 
L.  Ed.  393;  Holmes  z:  Jennison,  14  Pet. 
540,  586,  10  L.  Ed.  579;  Marine  Ins.  Co. 
r.  Hodgson.  6  Cranch  206.  3  L.  Ed.  200; 
Boyle  V.  Zacharie,  6  Pet.  648,  656,  8  L.  Ed. 
532;  Murphy  v.  Stewart,  2  How.  263,  11 
L.  Ed.  261;  Bullitt  County  r.  Washer,  130 
U.  S.  142,  145.  32  L.  Ed.  885;  Tilton  v. 
Cofield,  93  U.  S.  163,  166.  23  L.  Ed.  858. 

This  court  will  not  direct  the  court  be- 
low to  allow  the  proceedings  to  be 
amended.  Sheehy  v.  Mandeville,  6  Cranch 
253.    3    L.    Ed.    215. 

Marshall.  Ch.  J.,  observed  that  the  per- 
mitting amendments  is  a  matter  of  dis- 
cretion. He  did  not  mean  to  say  that  a 
court  may  in  all  cases  permit  or  refuse 
amendments  without  control.  A  case  may 
occur  where  it  would  be  error  in  a  court, 
after  having  allowed  one  party  to  amend, 
to  refuse  to  suffer  the  other  party  to 
amend  also  before  trial.  After  the  parties 
have  gone  to  trial  upon  a  set  of  pleadings, 
and  the  judgment  has  been  pronounced,  it 
may  be  doubted  whether  the  court  can 
permit  the  demurrer  to  be  withdrawn. 
Mandeville  f.  Wilson,  5  Cranch  15,  17,  3 
h.   Ed.  23.  24. 

Illustrative  cases — Amendments  as  to 
parties. — An  assignment  of  error  in  this 
court  that  the  court  below  erred  in  per- 
mitting a  new  sole  plaintiff  to  be  sub- 
stituted for,  and  in  the  place  of  the  sole 
original  plaintiff,  is  not  well  taken,  be- 
cause amendments  are  discretionary  with 
the  court  below,  and  not  reviewable  by 
this  court.  Chapman  v.  Barney,  129  U. 
S.    677.    32   L.    Ed.   800. 

In  ejectment,  an  amendment,  so  as  to 
enlarge  the  term  laid  in  the  declaration, 
will  be  permitted,  in  the  discretion  of  the 
court.  But  a  writ  of  error  will  not  lie  in 
a  case  where  the  court  below  has  denied 
a  motion  for  this  purpose.  Walden  v. 
Craig,   9  Wheat.   576,  6   L.   Ed.   164. 

In  a  trial  in  an  action  of  ejectment,  in 
which,  according  to  the  provisions  of  the 
laws  of  Tennessee,  the  defendant  was  held 
to  bail,  the  declaration  stated  two  demises, 
one,  by  H.  &  K.,  citizens  of  Pennsylvania ; 
and  the  other,  the  demise  of  B.  &  G.,  citizens 
of  Massachusetts.  The  cause  coming  on 
for  trial  before  a  jury,  the  plaintiffs  suf- 
fered a  nonsuit,  which  was  set  aside;  and 
the  court,  on  the  motion  of  the  plaintiffs, 
permitted  the   declaration   to  be   amended. 


by  adding  a  count  on  the  demise  of  S.,  a 
citizen  of  Missouri.  The  parties  went  to 
trial  without  any  other  pleading;  and  the 
jury  found  for  the  plaintiff,  upon  the 
third,  or  new  count,  and  a  judgment  was 
rendered  in  his  favor.  Held,  no  ground 
for  writ  of  error.  Wright  v.  Hollings- 
worth,    1   Pet.    165.   7    L.    Ed.   96. 

94.  Royal  Insurance  Co.  v.  Miller,  199 
U.   S.   353.  50   L.   Ed.   226. 

Making  new  parties. — An  objection 
made  at  the  trial  to  an  amendment  that  it 
substituted  a  new  party  and  an  entirely 
new  cause  of  action,  is  not  reviewable 
unless  there  is  clear  abuse  of  discretion. 
Royal  Ins.  Co.  v.  Miller,  199  U.  S.  353. 
370.  ,50  L.  Ed.  226.  citing  Gormley  v. 
Bunyan,    138   U.   S.    623,   34   L.    Ed.    1086. 

95.  Bullitt  County  v.  Washer,  130  U. 
S.  142.  32  L.  Ed.  885;  Central  Trust  Co. 
v.  Grant  Locomotive  Works,  135  U.  S. 
207,  34  L.  Ed.  97;  Chirac  v.  Reinicker,  11 
Wheat.  280,  6  L.  Ed.  474;  Chapman  v. 
Barney,  129  U.  S.  677.  32  L.  Ed.  800; 
United  States  v.  Breward,  16  Pet.  143,  10 
L.   Ed.  916. 

"Motions  to  amend  mere  formal  de- 
fects in  the  pleadings  are  always  ad- 
dressed to  the  discretion  of  the  court, 
and  are  usually  granted  as  a  , matter  of 
course,  and  their  allowance  is  never  the 
subject  of  error.  That  point  has  been  so 
frequently  decided,  that  we  do  not  think 
it  necessary  to  cite  authorities  in  its  sup- 
port." Jenkins  v.  Banning,  23  How.  455, 
16   L.    Ed.    581. 

This  court  will  not  exercise  any  con- 
trol over  the  proceedings  of  an  inferior 
court  of  the  United  States,  in  allowing 
or  refusing  to  allow  amendments  in  the 
pleadings,  in  cases  depending  in  those 
courts;  but  every  party  in  such  court  has 
a  right  to  the  judgment  of  this  court  in 
a  suit  brought  in  those  courts,  provided 
the  matter  in  disputs  exceeds  the  value 
of  two  thousand  dollars.  Ex  parte  Brad- 
street,  7  Pet.  634,  8  L.   Ed.  810. 

The  refusal  of  the  court  below  to  allow 
the  plaintiff  in  error  to  amend  and  sup- 
plement its  petition,  and  file  them  as 
original  bills  of  review,  is  not  reviewable 
by  this  court  because  it  is  a  matter  within 
the  discretion  of  the  court  belowv  Cen- 
tral Trust  Co.  V.  Grant  Locomotive 
Works,  135  U.  S.  207,  34  L.  Ed.  97. 

The  refusal  of  the  trial  court  to  permit 
the  amendment  of  the  pleadings  in  order 
to  let  in  a  supplementary  answer  is  within 
the  discretion  of  the  trial  court,  and  will 
not    be   reviewed    here   unless   the    discre- 


986 


APPEAL  AND  ERROR. 


danger  of  injury  in  revising  matters  of  this  kind  than  what  might  result  now 
and  then  from  an  arbitrary  or  improper  exercise  of  this,  discretion. ^^'' 

Annexing  Conditions. — This  court  cannot  interfere  because  the  court  below 
did  not  require  the  costs  formerly  accrued  to  be  paid  as  a  condition  of  the 
amendment.^" 

The  allowance  of  an  amendment  to  an  application  for  the  removal  of 
a  cause  from  the  state  court,  for  the  purposes  of  making  additional  allegations 
as  to  the  amount  in  controversy,  as  to  the  citizenship  of  a  party,  etc.,  is  a  matter 
of  discretion,  and  error  cannot  be  assigned  upon  the  decision.^* 

3.  Bail. — If  the  accused  applies  for  bail,  and  bail  is  denied,  the  action  of  the 
court  is  not  the  subject  of  review,  because  the  granting  or  refusing  bail  is  made 
by  the  statute  matter  of  discretion. '^'^ 

4.  Bills  of  Review. — This  court  will  not  review  the  action  of  the  lower  court 
in  refusing  to  grant  leave  to  file  a  bill  of  review,  because  it  is  discretionary  with 
that  court. ^ 

5.  Certiorari. — Although  the  granting  of  the  writ  of  certiorari  rests  in  the 
discretion  of  the  court,  yet.  after  the  writ  has  been  granted,  and  the  record  cer- 
tified in  obedience  to  it,  the  questions  arising  upon  that  record  must  be  deter- 
mined according  to  fixed  rules  of  law,  and  their  determination  is  reviewable  on 
error.- 

6.  Change  of  Venue. — The  granting  or  refusing  a  change  of  venue  is  a  mat- 
ter of   discretion  in  the  court  below,   and  not  the    subject  of  review   here,    unless 


tion   has   been    abused.      Sawyer   v.    Piper, 
189    U.    S.    154.    47    L.    Ed.    757. 

Amendment  of  writ  of  right. — In  the 
district  court  of  the  Northern  Dis- 
trict of  New  York,  writs  of  right  were 
prosecuted  for  lands  lying  in  that  dis- 
trict, and  neither  in  the  writs  nor  in  the 
counts  was  there  an  averment  of  the  value 
of  the  premises  being  sufficient  in  amount 
to  give  the  court  jurisdiction.  The  ten- 
ants, appeared  and  moved  to  dismiss  the 
cause  for  want  of  jurisdiction;  which  mo- 
tion was  granted.  Subsequently,  the  de- 
mandant moved  to  reinstate  the  cases  and 
U-  amend,  by  inserting  an  averment  that 
the  premises  were  of  the  value  of  five 
hundred  dollars;  which  motion  was  de- 
nied by  the  court.  The  demandant  also 
moved  the  court  to  compel  full  records 
of  the  judgments  and  orders  of  dismis- 
sion, and  of  the  process  in  the  several 
suits,  to  be  made  up  and  filed,  so  that  the 
demandant  might  have  the  benefit  of  a 
writ  of  error  to  the  supreine  court,  in  or- 
der to  have  its  decision  upon  the  grounds 
and  merits  of  such  judgments  and  orders. 
The  district  court  refused  this  motion. 
On  a  rule  in  the  supreme  court  for  a 
mandamus  to  the  district  judge  and  a  re- 
turn to  the  same,  it  was  held  that  the  re- 
ftisal  to  allow  the  amendment  to  the  writ 
and  count,  by  inserting  the  averment  of 
the  value  of  the  property  was  not  the 
subject  of  examination  in  this  court.  The 
allowance  of  amendments  to  pleadings  is 
in  the  discretion  of  the  judge  of  the  in- 
ferior court;  and  no  control  over  the  ac- 
tion of  the  judge  in  refusing  or  admitting 
them  will  be  exercised  by  this  court.  The 
court  granted  a  mandamus  requiring  the 
district  judge   to  have   the   records   of  the 


cases  made  up,  and  to  enter  judgments 
thereon,  in  order  to  give  the  demandant 
the  benefit  of  a  writ  of  error  to  the  su- 
preme court.  Ex  parte  Bradstreet,  7  Pet. 
634,    8    L.    Ed.    810. 

The  refusal  of  an  inferior  court  to  allow 
a  plea  to  be  amended  cannot  be  assigned 
as    error.      Marine    Ins.    Co.    v.    Hodgson, 

6  Cranch  206,  3  L.  Ed.  200;  United  States 
7-.  Buford.  3  Pet.  12.  31,  7  L.  Ed.  585,  591; 
United  States  v.  Evans,  5  Cranch  280, 
3  L.  Ed.  101. 

A  motion  to  amend  an  answer  after  de- 
fault, is  generally  addressed  to  the  dis- 
cretion of  the  court,  which  is  not  subject 
tc  the  revision  of  this  court.  Dean  v. 
Mason,  20   How.   198,   15  L.   Ed.  876. 

Bill  in  equity. — The  action  of  an  in- 
ferior court  as  to  the  terms  on  which  it 
will  allow  a  complainant  to  amend  a  bill 
in  equity  to  which  it  has  sustained  a  de- 
murrer, is  a  matter  within  the  discretion 
of  such  court,  and  not  open  to  examina- 
tion   here    on    appeal.      Sheets    7\    Selden. 

7  Wall.   416.   19    L.    Ed.   166. 

96.  Marine  Ins.  Co.  z'.  Hodgson,  6 
Cranch  206,  3  L.   Ed.  200.  203. 

97.  Wright  r.  Hollingsworth,  1  Pet.  165, 
168.  7   L.  Ed.  97.  98. 

98.  Ayers  r.  Watson,  137  U.  S.  584.  34 
L.    Ed.   803. 

99.  Bail. — Clawson  v.  United  States,  1 13 
U  S.  143.  28  L.  Ed.  958;  McKane  v. 
Durston.  153  U.  S.  684,  687,  38  L.  Ed. 
867. 

1.  Bills  of  review. — Thomas  v.  Harvie, 
10  Wheat.   146,  6  L.  Ed.  287. 

2.  Certiorari.— Harris  v.  Barber.  129  U. 
S.  366,  369.  32  L-  Ed.  697;  Hyde  v.  Shine, 
199  U.    S.   62.   ,50   L.   Ed.  90. 


APPEAL  AND  ERROR. 


987 


tliere  has  been  a  manifest  abuse  of  discretion.^  And  the  refusal  to  grant  a 
change  of  venue  on  the  mere  affidavit  of  the- defendants'  agent  to  the  slate  of 
pubHc  opinion  in  the  county  clearly  involves  matter  of  fact  and  discretion,  and 
is  not  a  ruling  upon  a  mere  question  of  law.^ 

By  the  statutes  of  the  territory,  "the  court  may.  on  good  cause  shown, 
change  the  place  of  trial,  when  there  is  reason  to  believe  that  an  impartial  trial 
cannot  be  had  therein;"  and  an  appeal  lies  to  the  supreme  court  of  the  territory 
from  an  order  granting  or  refusing  a  new  trial,  or  from  an  order  granting  or 
refusing  to  grant  a  change  of  venue.  Montana  Code  of  Civil  Procedure  of  1879 
§§  62,  408;  Act  of  Amendment  of  February  23,  1881,  §  7.  But  the  statutes  of 
the  territory  cannot  enlarge  the  appellate  jurisdiction  of  this  court.  The  grant- 
ing or  denial  of  a  change  of  venue,  like,  the  granting  or  refusal  of  a  new^'trial. 
is  a  matter  within  the  discretion  of  the  court,  not  ordinarily  reviewable  by  this 
court  on  writ  of  error. ^ 

7.  Consolidation  of  Actions. — A  consolidation  of  actions  is  within  the  dis- 
cretionary power  of  the  court,  and  therefore  an  order  granting  or  denyino-  the 
rnotion  is  not  reviewable  on  appeal,^  except  where  there  is  a  clear  abuse  of  the 
discretion.'^ 

8.  Continuances. — It  is  well  settled  that  the  action  of  the  trial  court  upon 
an  application  for  a  continuance  is  purely  a  matter  of  discretion,  and  not  subject 
to  review  by  this  court,  unless  it  be  clearly  shown  that  such  discretion  has  been 
abused.^     A  postponement  or  continuance  is  largely  within  the  discretion  of  the 

L.  Ed.  1137,  1139;  Simms  v.  Hundley,  S 
How.  1,  12  L.  Ed.  319,  321;  United  States 
r.  Rio  Grande  Irrigation  Co.,  184  U.  S. 
416,  46  L.  Ed.  619;  Spencer  v.  Lapsley, 
20   How.   264.   1.5    L.   Ed.   902,    904. 

It  has  often  been  decided  by  this  court, 
that  the  refusal  of  an  inferior  court  to 
continue  a  case  to  another  term  cannot 
be  assigned  for  error  here.  Justice  re- 
quires that  the  granting  or  refusal  of  a 
continuance  should  be  left  to  the  sound 
jrdicial  discretion  of  the  court  where  the 
motion  is  made,  and  where  all  of  the  cir- 
cumstances connected  with  it.  and  proper 
to  be  considered,  can  readily  be  brought 
before  the  court.  Thompson  v.  Selden, 
20  How.  19.-),  15  L.  Ed.  1001;  McFauI  v. 
Ramsey,  20   How.   .523.   1.5   L.    Ed.    1010. 

The  refusal  of  the  court  below  to  con- 
tinue a  cause  after  it  is  at  issue  cannot 
be  assigned  for  error.  "The  question  is. 
whether  a  refusal  to  continue  a  cause  can 
be  assigned  for  error.  The  impression  of 
the  court  is.  rhat  it  cannot.  Has  the  party, 
by  law,  a  right  to  a  continuance  in  any 
case?  If  he  has,  it  will  have  weight.  It 
is  not  merely  a  matter  of  favor  and  dis- 
cretion. This  is  a  case  in  which  this 
court  cannot  look  into  the  merits  of  the 
question,  whether  the  court  below  ought 
to  have  granted  a  continuance  of  the 
cause."  Woods  v.  Young,  4  Cranch  237, 
3    L.    Ed.    607. 

Whether  the  trial  should  be  delayed  for 
the  production  of  witnesses  is  clearly  a 
matter  of  discretion  and  not  reviewable 
upon  a  writ  of  error,  and  this  whether  the 
application  was  made  before  or  after  the 
trial  is  begun.  Crumpton  v.  United 
States,  138  U.  S.  361.  34  L.  Ed.  959.  citing 
Silsby  V.  Foote.  14  How.  218;  Cook  v. 
Burnley.    11    Wall.   659.   672.   20    L.    Ed.    29. 


3.  Change  of  venue. — McFaul  v.  Ram- 
sey. 20  How.  523,  15  L.  Ed.  1010;  Kennon 
7'.  Gilmer.  131  U.  S.  22,  32  L.  Ed.  110; 
Cook  i:  Burnley,  11  Wall.  059,  660,  20  L. 
Ed.   29. 

4.  Kennon  v.  Gilmer,  131  U.  S.  22,  32 
L.    Ed.    110. 

5.  McFaul  7'.  Ramsey.  20  How.  523.  15 
L.  Ed.  1016;  Kerr  v.  Clampitt,  95  U.  S. 
188,  24  L.  Ed.  493;  Railway  Co.  v.  Heck, 
102  U.  S.  120,  26  L.  Ed.  58;  Kennon  f. 
Gilmer,  131   U.  S.  22.  32  L.   Ed.   110. 

6.  No  review  of  order  granting  or  deny- 
ing motion  to  consolidate. — "The  learning 
and  research  of  counsel  have  produced  no 
instance  in  this  country,  in  which  such  an 
order,  made  in  the  exercise  of  the  discre- 
tionary power  of  the  court,  unrestricted 
by  statute,  has  been  set  aside  on  bill  of 
exceptions  or  writ  of  error."  Mutual 
Life  Ins.  Co.  v.  Hillmon,  145  U.  S.  285, 
293,  36   L.   Ed.  707. 

7.  United  States  v.  Marchant.  12  Wheat. 
480.   6   L.    Ed.   700. 

8.  Continuances. — Woods  z\  Younp-.  4 
Cranch  237.  2  L.  Ed.  607;  Barrow  r.  Hill, 
13  How.  54,  14  L.  Ed.  48;  Crumpton  v. 
United  States.  138  U.  S.  361.  34  L.  Ed. 
958;  Cox  r.  Hart,  145  U.  S.  376,  36  L.  Ed. 
741;  Earnshaw  v.  United  States,  146  U.  S. 
60,  68,  36  L.  Ed.  887;  Means  r.  Bank  of 
Randall,  146  U.  S.  620,  36  L.  Ed.  1107; 
Isaacs  V.  United  States,  159  U.  S.  487. 
489,  40  L.  Ed.  229;  Marine  Ins.  Co.  v. 
Hodgson,  6  Cranch  206.  3  L.  Ed.  200; 
Thompson  7'.  Selden,  20  How.  195.  15  L. 
Ed.  1001;  McFaul  7'.  Ramsey,  20  How. 
'523.  15  L.  Ed.  1010;  Woods  7'.  Young.  4 
Cranch  237,  2  L.  Ed.  607;  Barrow  v.  Hill. 
13  How.  54,  14  L.  Ed.  48;  Goldsby  7'. 
United  States,  160  U.  S.  70.  40  L.  Ed.  343; 
Hardy  v.   United   States,  186   U.  S.  224.   46 


988 


APPEAL  AND  ERROR. 


trial  court,  and  unless  that  discretion  is  shown  to  have  been  abused,  there  is  no 
sufficient  ground  for  reversal.^  And  yet  there  are  doubtless  cases  to  be  found 
which  hold  that  where,  under  the  recognized  practice,  a  party  makes  a  clear  case 
for  a  continuance,  it  is  an  abuse  of  discretion  to  refuse  it.^^  But  the  facts  must 
show  with  great   clearness  that  such  discretion  was  abused. ^^ 

9.  Costs. — In  General. — As  costs  in  equity  and  admiralty  cases  are  within 
the  sound  discretion  of  the  court,  this  court  will  not  disturb  a  mere  decree  as 
to  costs  alone, ^2  except  in  a  case  of  grave  and  manifest  abuse. ^"^ 

And  costs  in  admiralty,  as  well  as  in  equity,  are  in  the  discretion  of  the 
court.  Appeals  in  matter  of  costs  only  are  not  usually  entertained ;  but  when 
the  entire  case  is  before  the  appellate  court,  it  has  control  of  the  subject  of  costs, 
as  well  as  of  the  merits.^* 

Allowance  of  Interest  and  Costs  in  Admiralty  Cases. — The  allowance  of 
interest  and  costs  in  admiralty  cases  rests  in  the  discretion  of  the  court  below, 
and  its  action  will  not  be  disturbed  on  appeal. ^^ 


9.  Fidelity,  etc.,  Co.  v.  Bucki,  etc., 
Lumber  Co..  189  U.  S.  135,  14G,  143,  47 
L.    Ed.    744. 

10.  Earnshaw  v.  United  States,  146  U. 
S.    60,   68.    36   L.    Ed.    887. 

11.  Hardy  v.  United  States,  186  U.  S. 
224.  46  L.  Ed.   1137. 

12.  Costs  in  general. — Du  Bois  v.  Kirk, 
158  U.  S.  58.  39  L.  Ed.  895,  citing  Canter 
f.  American  Ins.  Co.,  3  Pet.  307,  7  L.  Ed. 
688;  The  Malek  Adhel,  2  How.  210,  11  L. 
Ed.  239;  The  Sapphire,  18  Wall.  51,  21  L. 
Ed.  814;  Kittredge  v.  Race,  92  U.  S.  116. 
23  L.  Ed.  488;  Citizens'  Bank  v.  Cannon, 
164  U.  S.  319.  41  L.  Ed.  451;  Elastic  Fab- 
ric Co.  V.  Smith.  100  U.  S.  110,  25  L.  Ed. 
547;  Paper-Bag  Machine  Cases,  105  U.  S. 
766,  26  L.  Ed.  959;  Wood  f.  Weimar,  104 
U.  S.  786.  26  L.  Ed.  779;  Russell  r.  Farley, 
105  U.  S.  433,  437,  26  L.  Ed.  1060;  Burns 
V.  Rosenstein,  135  U.  S.  449,  34  L.  Ed. 
193;  City  Bank  v.  Hunter,  152  U.  S.  512. 
38    L.    Ed.    534. 

This  court  has  held,  in  several  cases, 
that  an  appeal  does  not  lie  from  a  de- 
cree for  costs;  and  if  an  appeal  be  taken 
from  a  decree  upon  the  merits,  and  such 
decree  be  affirmed  with  respect  to  the 
merits,  it  will  not  be  reversed  upon  the 
cruestion  of  costs.  Elastic  Fabric  Co.  z'. 
Smith,  100  U.  S.  110,  112,  25  L.  Ed.  547; 
Paper-Bag  Machine  Cases,  105  U.  S.  766, 
772.  26  L.  Ed.  959;  Wood  v.  Weimar,  104 
U.  S.  786,  792,  26  L.  Ed.  779;  Russell  v. 
Farley,  105  U.  S.  433.  437.  Du  Bois  v. 
Kirk,  158  U.  S.  58,  67.  39  L.  Ed.  895; 
Canter  v.  American  Ins.  Co..  3  Pet.  307. 
7   L.    Ed.   688. 

This  court  will  not  disturb  the  action 
of  the  court  below  in  awarding  a  party 
full  costs,  notwithstanding  that,  in  the 
report  of  the  master  and  in  the  final  de- 
cree, he  was  awarded  onlv  nominal  dam- 
ages. Du  Bois  r.  Kirk,  158  U.  S.  58,  39 
L.  Ed.  895,  distinguishing  Dobson  v. 
Hartford  Carpet  Co..  114'"  U.  S.  439,  29 
L.  Ed.  177;  Dobson  v.  Dornam,  118  U. 
S.  10.  30  L.  Ed.  63. 
'  Where  letters  patent  expired  before  the 


final  determination  of  the  suit  brought  by 
the  patentee  complaining  of  the  infringe- 
ment of  them,  and  letters  had  been  re- 
issued in  separate  divisions,  and  the  paten- 
tee filed  in  the  patent  office  a  disclaimer 
in  regard  to  one  of  them,  after  bringing 
a  suit  for  the  infringement  of  the  others, 
the  validity  of  which  was  sustained,  and 
the  fact  of  infringement  found  by  the 
court  below;  held,  that  §  4922,  Rev.  Stat., 
as  to  costs  after  a  disclaimer,  has  no  ap- 
plication to  the  case,  and  that  he  is  en- 
titled to  costs.  Elastic  Fabric  Co.  v. 
Smith.   100  U.   S.   110,   25   L.    Ed.    547. 

Extent  of  reversal. — The  decree  of  the 
circuit  court  directed  two  of  the  defend- 
ants, in  whom  was  the  legal  title  to  the 
lot  of  ground  claimed  by  the  plaintiff  in 
the  bill,  to  convey  the  same;  and  awarded 
costs,  generally,  against  all  the  defend- 
ants; all  the  defendants  appealed  to- 
gether to  this  court,  some  of  whom  held 
the  legal  title  to  the  lot,  and  all  the  de- 
fendants had  an  interest  in  defending  this 
title,  standing  as  thev  did  in  the  relation 
of  vendors  and  warrantors,  and  vendees. 
.A.lthough  the  defendants,  against  whom 
there  is  a  decree  for  costs  only,  could  not 
appeal  from  this  decree  for  costs;  yet, 
the  reversal  of  the  decree  of  the  circuit 
court  was  made  general,  as  to  all  of  the 
appellants,  and  the  whole  case  onened. 
Findlay  z\  Hinde,  1  Pet.  241,  7  L.  Ed. 
128. 

13.  In  re  City  Nat.  Bank,  153  U.  S. 
246,  38  L.  Ed.  705.  citing  Citv  Bank  v. 
Hunter.   152  U.   S.  512.  38   L.   Ed.   534. 

14.  Trustees  r.  Greenough.  105  U.  S. 
527,  26  L.  Ed.  1157;  The  Scotland.  118  U. 
S.  507,  519,  30  L.  Ed.  153,  citing  Benedict's 
.A.dm.,  §  549. 

Costs  in  the  admiralty  are  in  the  sound 
discretion  of  the  court;  and  no  appellate 
court  should  interfere  with  that  discre- 
tion, unless  under  peculiar  circumstances. 
United  States  v.  Adhel,  2  How.  210,  11 
L.    Ed.   239. 

15.  Allowance  of  interest  and  costs  in 
admiralty  cases. — The  Masrgie  J.  Smith, 
123   U.    S.   349,   356.   31    L.   Ed.    175. 


APPEAL  AND  ERROR.  989 

Limitations  of  General  Rule. — But  though  as  a  general  rule,  an  appeal  will 
not  lie  in  a  matter  of  costs  alone,  yet  such  appeals  have  been  sustained  in  par- 
ticular circumstances,  as,  for  instance,  where  the  costs  have  been  directed  to  be 
paid  out  of  a  trust  fund.  In  Trustees  v.  Greenough,  105  U.  S.  527,  26  L.  Ed. 
1157,  this  court  said,  through  Mr.  Justice  Bradley,  that  the  objection  to  an  ap- 
peal on  the  ground  of  its  being  from  a  decree  for  costs  only,  is  untenable. 
Where  an  appeal  is  taken  on  other  grounds  as  well,  and  not  on  the  sole  ground 
that  costs  were  wrongfully  awarded,  this  court  can  determine  whether  a  cir- 
cuit court,  dismissing  a  suit  for  want  of  jurisdiction,  can  give  a  decree  for  costs, 
including  a  fee  to  the  defendants"  counsel  in  the  nature  of  a  penalty-^^  In  like 
manner,  when  the  entire  case  is  before  the  appellate  court,  it  has  control  of  the 
subject  of  costs,  as  well  as  of  the  merits. ^'^ 

10.  Allow^ance  of  Counsel  FE;i;s  and  Damages. — No  error  can  be  assigned 
to  the  action  of  the  court  below  in  the  allowance  of  solicitor's  fees.  The  amount 
of  such  fees  is  within  the  judicial  discretion  of  the  court,  and  in  fixing  that 
amount,  the  trial  court  may  proceed  upon  its  own  knowledge  of  the  value  of  the 
solicitor's   services. ^^ 

Allowance  of  Fees  to  District  Attorneys. — The  discretionary  fee  that  "may 
be  allowed"  to  a  district  attorney  for  securing  a  conviction  in  a  case  of  indict- 
ment for  a  crime  tried  by  a  jury,  is  none  the  less  an  incident  to  the  trial  and 
judgment  because  its  allowance  is  contingent  upon  a  conviction.  Both  before 
and  since  the  enactment  of  the  statute  of  1853,  courts  in  the  exercise  of  their 
discretion  have  allowed  counsel  fees  in  many  cases  without  question  when  re- 
viewed by  this  court. ^^ 

The  allowance  of  an  increase  of  damages,  under  the  statute,  to  the  plain- 
tiff in  a  suit  for  the  infringement  of  letters  patent,  rests  somewhat  in  the  dis- 
cretion of  the  court  below,  and  its  finding  on  this  point  will  not  be  disturbed  un- 
less the  evidence  clearly  demands  it.-" 

11.  Dismissal  and  Nonsuit. — It  has  been  repeatedly  decided  that  the  exer- 
cise of  the  discretion  of  the  court  below  in  refusing  to  reinstate  cases  after  non- 
suit,  affords  no  ground   for  writ  of  error. ^^ 

12.  Election  between  Counts  in  Indictment. — An  error  cannot  be  as- 
signed to  a  refusal  of  the  court  to  compel  an  election  on  the  part  of  the  state  as 

16.  Limitations  of  general  'rule. — Citi-  ages. — Harrison  v.  Perea,  168  U.  S.  311, 
zens'  Bank  v.  Cannon,  164  U.  S.  319,  323,  42  L.  Ed.  478,  citing  Trustees  v.  Green- 
41    L.    Ed.   451.  ough,    105    U.    S.    507,    527,    30    L.    Ed.    153; 

Ordinarily    a   decree    will     not      be      re-  Fowler    v.     Equitable    Trust    Co.,    141    U. 

viewed    by    this    court    on    a    question    of  S.   411,   35   L.    Ed.  794. 

costs  merely  in  a  suit  in  equity,  although  19.    In  The  Apoilon,  9  Wheat.  362,  379, 

the   court   has    entire    control   of  the   mat-  6   L.   Ed.   Ill,   and  in   Canter  r.   American 

ter  of  costs,  as   well  as   the  merits,   when  Ins.  Co.,  3  Pet.  307.  319,  7  L.  Ed.  688,  the 

it   has   possession   of   the   cause   on   appeal  allowance    of    counsel    fees    by    the    court 

from    the    final    decree.      But      when      the  below    was    affirmed    by    this    court    as    a 

case  is  not  one  of  personal  costs,  in  which  matter  within  the  sound  discretion   of  the 

the    court    has    ordered   one   party   to   pay  court   before   whom    the    cause   was    tried; 

them,   but   a   case   in   which  the   court   has  and    those    decisions   were    cited    with    ap- 

directed  them  to  be  paid  out  of  a  particu-  proval  in  Elastic  Fabric  Co.  v.  Smith,  100 

lar    fund,    an    appeal    lies    on    the    part    of  U.    S.    110,    25    L.    Ed.    547   and   Paper-Bag 

those  interested   in   the  fund.     Trustees  v.  Machine   Cases,   105   U.   S.   766.   772,   26   L. 

Greenough,  105  U.   S.  527.  26  L.   Ed.  1157,  Ed.   959;   United  States  v.  Waters,  133  U. 

reaffirmed  in  Williams  v.   Morgan,  111   U.  S.   2C8,   212,   33    L.    Ed.   594. 
S.    684,    699.    28    L.    Ed.    559,    cited   in    The  20.    Topliff  v.  Topliff,  145  U.  S.  156,  157. 

Scotland.    118    U.    S.    507,    30    L.    Ed.    153;  36    L.    Ed.   658. 

Central    Trust    Co.    v.    Grant    Locomotive  21.       Dismissal     and       nonsuit. — United 

Works,   135   U.   S.   207,   224,   34    L.    Ed.   97;  States  7-.  Beauford,  3  Pet.  12,  31,  7  L.   Ed. 

Citizens'   Bank  z'.    Cannon,    164  U.   S.   319,  585;    United    States    v.    Evans.    5    Cranch 

323,   41   L.   Ed.   451.  280,    3    L.    Ed.    101;    Marine    Ins.     Co.      v. 

17.  Trustees  v.  Greenough,  105  U.  S.  Hodgson,  6 .  Cranch  206,  3  L.  Ed.  200; 
527,  26  L.  Ed.  1157;  The  Scotland.  118  U.  Spencer  v.  Lapsley,  20  How.  2^-1.  15  L. 
S.    507,    30    L.    Ed.    153.  Ed.   902;    Welch   v.    Mandeville,   7    Cranch 

18.  Allowance  of  counsel  fees  and  dam-  152,  3    L.    Ed.   299. 


990 


APPEAL  AND  ERROR. 


to  which  of  two  counts  in  the  indictment  it  would  proceed,  because  the  question 
whether  the  prosecution  should  be  compelled  to  elect  is  a  matter  purely  within 
the  discretion  of  the  court  below. -^ 

13.  Evidence — a.  Order  of  Proof. — The  order  in  which  testimony  shall  be 
admitted  is  largely  within  the  discretion  of  the  trial  court. ^•'5 

The  refusal  of  the  court  in  a  patent  case  to  permit  further  evidence  to 
support  defendant's  contention  as  to  the  question  of  novelty,  the  court  stating 
that  it  had  heard  sufficient  evidence  to  enable  it  to  understand  the  operation  of 
the  different  devices,  cannot  be  assigned  for  error,  because  it  is  discretionary 
with  the  court  whether  to  admit  further  evidence  or  not,  where  the  defendant 
has  already  bad  an  opportunity  to  give  it.^^ 

b.  Admission  or  Rcjectwu  of  Evidence. — In  General. — If  the  rejection  of 
evidence  is  a  matter  resting  in  the  sound  discretion  of  the  court,  this  cannot  be 
assigned  as  error. 2<5  Offers  of  proof  must  be  offers  of  relevant  proof,  specific, 
not  so  broad  as  to  embrace  irrelevant  and  immaterial  matter,  and  made  in  good 
faith.  The  exercise  of  the  discretion  of  the  trial  court  in  rejecting  general  offers 
cannot  properly  be  reviewed  by  us.-' 

Circumstantial  Evidence. — It  is  familiar  law  that  where  a  case  rests  upon 
circumstantial  evidence,  much  discretion  is  left  to  the  trial  court  and  its  ruling 
will  be  sustained  if  the  testimony  which  is  admitted  tends  even  remotely  to  es- 
tablish  the  ultimate   fact.^s 


22.  Election  between  counts  in  indict- 
ment.— Pierce  v.  United  States,  160  U. 
S.  ;!.i5,  40  L.  Ed.  4.54;  Pointer  v.  United 
States.  151    U.  S.  396.  38   L.   Ed.  208. 

23.  Order  of  proof. — Thiede  v.  Utah 
Territory,  159  U.  S.  510,  519,  40  L.  Ed. 
237;  Johnston  v.  Jones,  1  Black  210.  227, 
17    L.    Ed.    117. 

All  questions  as  to  reopening  a  case, 
as  to  order  of  proof,  are  matters  of  dis- 
cretion not  reviewable.  Ames  v.  Quimby, 
106   U.    S.    342,   27    L.    Ed.    100. 

The  mode  of  conducting  trials,  the  or- 
der of  introducing  evidence,  and  the  times 
when  it  is  to  be  introduced,  are  properly 
matters  belonging  to  the  practice  of  the 
circuit  courts,  with  which  the  supreme 
court  ought  not  to  interfere;  unless  it 
shall  choose  to  prescribe  some  fixed  gen- 
eral rules  on  the  subject,  under  the  au- 
thority of  the  act  of  congress.  The  cir- 
cuit courts  possess  this  discretion  in  as 
ample  a  manner  r.s  other  judicial  tribu- 
nals. Philadelphia,  etc.,  R.  Co.  v.  Stimp- 
son,    14    Pet.    448,    10    L.    Ed.    535. 

A  judgment  will  not  be  reversed  be- 
cause of  an  error  of  the  court  in  direct- 
ing as  to  the  order  in  which  testimony 
shall  be  introduced,  unless  it  clearly  ap- 
pears that  the  complaining  part)'  has  been 
injured  by  what  was  done.  Clark  v. 
Fredericks,   105   U.   S.   4,  5.  26   L.    Ed.   938. 

No  error,  or  ground  of  appeal,  can  be 
assigned  upon  the  refusal  of  the  court 
below  to  refer  the  cause  back  to  the 
master  for  the  purpose  of  reopening  the 
proofs.  We  think  that  that  matter  was 
fairly  addressed  to  the  discretion  of  the 
court,  and  cannot  properly  be  made  the 
r^round  of  objection  on  this  appeal. 
Thomson  v.  Wooster.  114  U.  S.  104,  118, 
29   E.   Ed.   105. 

"The    government    called    a    witness    in 


rebuttal,  who  was  examined  as  to  the 
presence  of  the  defendant  at  a  particular 
place,  at  a  particular  time,  to  rebut  testi- 
mony which  had  been  offered  by  the  de- 
fendant to  prove  the  alibi  upon  which  he 
relied.  This  testimony  was  objected  to 
on  the  ground  that  the  proof  was  not 
proper  rebuttal.  The  court  ruled  that  it 
was,  and  allowed  the  witness  to  testify. 
It  was  obviously  rebuttal  testimony; 
however,  if  it  sliould  have  been  more 
properly  introduced  in  the  opening,  it  was 
purely  within  the  sound  judicial  discre- 
tion of  the  trial  court  to  allow  it,  which 
discretion,  in  the  absence  of  gross  abuse, 
is  not  reviewable  here.  Wood  v.  United 
States.  16  Pet.  342.  361,  10  L.  Ed.  987; 
Johnston  v.  Jones,  1  Black  210,  227,  17 
"L.  Ed.  117."  Goldsby  v.  United  States, 
160  U.   S.   70,   74,  40   L.   Ed.   343. 

Error  cannot  be  assigned  to  the  action 
of  the  court  in  sustaining  an  objection  to 
a  question  propounded  upon  cross-exam- 
ination, on  the  ground  that  it  was  not 
within  the  scope  of  the  direct  examina- 
tion, because  the  order  in  which  evidence 
shall  be  produced  is  within  the  discretion 
of  the  trial  court,  and  as  the  matter  sought 
to  be  elicited  on  the  cross-examination 
was  not  offered  at  any  subsequent  stage 
of  the  trial,  no  prejudicial  error  was  com- 
mitted by  the  ruling  complained  of.  Put- 
nam V.  United  States,  162  U.  S.  687,  40 
L.    Ed.    1118. 

25.  St.  Louis  Plow  Works  v.  Starling, 
140   U.   S.    184,  35   L.   Ed.   404. 

26.  Admission  or  rejection  of  evidence 
in  general. — Philadelphia,  etc..  R.  Co.  v. 
Stimpson,   14   Pet.   448.   10   L.   Ed.   535. 

27.  Central  Pacific  R.  Co.  v.  California, 
162  U.  S.  91.  117.  40  L.   Ed.  903. 

28.  Circumstantial  evidence. — Alexan- 
der V.  United  States,   138  U.  S.   353,  34   L- 


APPEAL  AXD  ERROR. 


991 


Declarations  and  Admissions. — The  extent  to  which  a  declaration  made  by 
one  of  two  or  mone  persons  associated  together  for  the  same  illegal  purpose, 
is  admissible  in  evidence  against  the  others,  is  in  the  discretion  of  the  trial  court, 
and  is  not  reviewable  except  in  case  of  manifest  abuse. ^^ 

Experiments  in  Evidence. — The  granting  or  refusing  of  a  request  made  in 
the  midst  of  a  criminal  trial,  to  make  an  experiment,  as,  for  example,  a  re- 
quest for  the  permission  of  the  court  to  take  the  gun  out  with  which  the  killing 
was  done,  and  shoot  it  off  in  the  presence  of  a  deputy  marshal,  in  order  to  test 
how  it  threw  shot,  where  such  fact  was  material  to  be  proved,  is  clearly  within 
the  discretion  of  the  court.-^"- 

Expert  Testimony, — As  in  the  case  of  all  witnesses,  the  question  of  the  ad- 
missibility of  expert  testimony  is  one  within  the  discretion  of  the  trial  court,  and 
that  decision  will  not  be  disturbed  except  in  a  case  of  manifest  abuse.'' ^ 

c.  Manner  of  Taking  Dozi.m-  Testimony. — The  manner  of  taking  down  testi- 
mony in  the  court  below  cannot  be  assigned  as  error.  Generally  speaking,  mat- 
ters of  practice  in  inferior  courts  do  not  constitute  subjects  upon  which  error 
can  be  assigned  in  the  appellate  court.^^ 

d.  IV^itncsses. — The  right  to  summon  witnesses  at  the  expense  of  the  govern- 
ment is  by  the  statute.  Rev.  Stat.,  §  878.  left  to  the  discretion  of  the  trial  court, 
and  the  exercise   of  such   discretion   is  not   reviewable  hcre.-^*-' 

The  extent  to  which  the  power  of  cross-examination  may  be  carried 
must  necessarily  be  guided  and  limited  by  the  discretion  of  the  court  trying  a 
cause,  and  the  exercise  of  this  discretion  by  a  circuit  court  cannot  be  made  the 
subject  of  review  by  this  court. 3"*  Since  the  extent  and  manner  of  cross-exami- 
nation is  necessarily  within  the  discretion  of  the  court,  even  though  it  extends  to 
matters  not  connected  with  the  examination  in  chief,  such  decision  is  not  review- 
able.35 

To  Test  Credibility  of  Witness. — The  extent  to  which  a  cross-examination 
may  be  allowed  to  test  the  accuracy  or  credibility  of  a  witness — especially  where 
the  question  has  no  reference  to  any  matter  disclosed  by  the  examina- 
tion-in-chief— is  largely  subject  to  the  sound  discretion  of  the  trial  court, 
and  the  exercise  of  that  di>  "  ction  is  not  reviewable  upon  writ  of  error;  certainly 
not  where  the  question,  upon   its  face,  suggests  nothing  material  to  the  inquiry 


Ed.  954;  Holmes  r.  Goldsmith,  147  U. 
S.  150,  37  L.  Ed.  118;  Moore  v.  United 
vStates,  1.50  U.  S.  57,  37  L.  Ed.  996;  Thiede 
v.  Utah  Territory,  159  U.  S.  510,  40  L-  Ed. 
237;  Wiborg  z:  United  States,  163  U.  S. 
C32,  658,  41  L.  Ed.  289;  Clune  r.  United 
States,  1.59  U.  S.  590,  592,  593.  40  L.  Ed. 
269. 

29.  Declarations  and  admissions.^ 
Wiborg  c'.  United  States.  163  U.  S.  632, 
4]    L.    Ed.    289. 

30.  Experiments  in  evidence. — United 
States  V.  Ball,  163  U.  S.  662.  41  L.  Ed. 
300. 

31.  Expert  testimony. — G'lla  Valley, 
etc..  R.  Co.  !■.  Lyon,  203  U.  S.  465,  51  L. 
Ed.  276,  citing  Congress,  etc.,  Spring  Co. 
z\  Edgar,  99  U.  S.  645,  648.  25  L.  Ed.  487; 
Chateaugay  Ore  and  Iron  Co.  v.  Blake, 
144    U.    S.    476,    36    L.    Ed.    510. 

32.  Manner  of  taking  down  testimony. 
—  Parsons  v.  Bedford,  3  Pet.  433.  7  L. 
Ed.    732. 

33.  Witnesses. — Crumpton  v.  United 
States.  138  U.  S.  361,  364,  34  L.  Ed.  959; 
Goldsby  v.  United  States,  160  U.  S.  70, 
73,  40  L.   Ed.  343. 


34.  Johnson  v.  Jones.  1  Black  210,  17 
L.  Ed.  117;  Philadelphia,  etc..  R.  Co.  v. 
Simpson,  14  Pet.  448,  10  L.   Ed.  535. 

35.  Davis  v.  Coblens.  174  U.  S.  719, 
727.  43    L.    Ed.    1147. 

In  Rea  v.  Missouri,  17  Wall.  532,  21  L. 
Ed.  707,  it  was  said:  "Where  the  cross- 
examination  is  directed  to  matters  not 
inquired  about  in  the  principal  examina- 
tion, its  course  and  extent  are  very  largely 
subject  to  the  control  of  the  court  in  the 
exercise  of  a  sound  discretion;  and  the 
exercise  of  that  discretion  is  not  review- 
able on  a  writ  of  error."  Davis  v.  Cob- 
lens,   174  U.   S.   719,   727.   43    L.    Ed.    1147. 

Although  a  greater  latitude  is  allowable 
in  the  cross-examination  of  a  party  who 
places  himself  on  the  stand,  than  in  that 
of  other  witnesses,  still,  where  the  cross- 
examination  is  directed  to  matters  not  in- 
quired about  in  the  principal  examination, 
its  course  and  extent  are  very  largely 
subject  to  the  control  of  the  court  in  the 
exercise  of  a  sound  discretion;  and  the 
exercise  of  that  discretion  is  not  review- 
able on  a  writ  of  error.  Fea  i\  Missouri. 
17  Wall.   532,  21    L.   Ed.   707. 


992  APPEAL  AXD  ERROR. 

whether  the  defendant  is  guilty  or  not  guilty  of  the  specific  offense  charged  in 
the  indictment."^ 

Questions  regarding  the  age,  antecedents,  business,  and  experience  of 
a  witness  are  largely  within  the  discretion  of  the  court,  and  unless  it  manifestly 
appears  that  such  questions  are  put  for  an  improper  purpose,  such  discretion  is 
not  reviewable  on  error. 3' 

Likewise,  how  much  knowledge  a  witness  must  possess  before  a  part} 
is  entitled  to  his  opinion  as  an  expert  is  a  matter  which,  in  the  nature  of  things, 
must  be  left  largely  to  the  discretion  of  the  trial  court,  and  its  ruling  thereon  will 
not  be  disturbed  unless  clearly  erroneous.^* 

The  allowance  of  a  leading  question  is  within  the  discretion  of  the  court, 
and  is  no  ground  for  reversal. ^^  It  cannot  be  safely  said  that,  in  no  case,  can 
a  court  of  errors  take  notice  of  an  exception  to  the  conduct  of  the  trial  court  in 
permitting  leading  questions.  But  such  conduct  must  appear  to  be  a  plain  case 
of  the  abuse  of  discretion.**^' 

Recalling  Witnesses. — No  error  can  be  assigned  to  a  refusal  of  the  trial 
court  to  permit  a  witness  who  has  been  examined  and  cross-examined  to  be  re- 
called in  order  to  make  some  change  in  the  statements  made  by  him  on  cross-ex- 
amination, because  this  is  plainlv  a  matter  within  the  discretion  of  the  court  be- 
low.41 

e.  Interpreters. — The  refusal  of  the  court  to  appoint  an  interpreter  cannot  be 
assigned  as  error,  unless  it  appears  from  the  answer  made  by  the  witness  that 
there  was  an  abuse  of  such  discretion,  because  this  is  a  matter  largely  resting 
in  the  discretion  of  the  trial  court.* - 

f.  Demurrer  to  the  Evidence. — A  demurrer  to  the  evidence  being  a  matter  rest- 
ing in  the  discretion  of  the  trial  court,  the  action  of  that  court  in  overruling  such  a 
demurrer  is  not  assignable  for  error.* ^a 

14.  Fines. — Section  725  of  the  Revised  Statutes  which  provides  that  the 
courts  of  the  United  States  shall  have  power  to  punish  "by  fine  or  imprisonment, 
at  the  discretion  of  the  court,  contempts  of  their  authority,"  provided  that  sucli 
power  "shall  not  be  construed  to  extend  to  any  cases  except  *  *  *  ^]-,g  ^\{^q- 
bedience  by  *  *  *  any  party,  juror,  witness,  or  other  person,  to  any  lawful 
writ,  process,  order,  rule,  decree,  or  command  of  the  said  courts,"  does  not  make 
the  action  of  the  circuit  court  such  a  matter  of  discretion  that  its  orders  im- 
posing fines  are  not  reviewable.*^ 

15.  Indictments. — Motion  to  File  Printed  Matter  in  Indictment. — Ap- 
plications to  compel  a  prosecutor  to  file  a  copy  of  the  printed  matter  alleged  in 
an  indictment  should  ordinarily  be  granted,  wherever  the  accused  is  liable  to  be 
surprised  by  the  evidence  for  which  he  is  unprepared.  But  as  the  application  is 
one  addressed  to  the  discretion  of  the  court,  its  action  thereon  is  not  subject  to 
leview  where  this  court  cannot  see  that  the  defendant  was  prejudiced  by  its  re- 
fusal.** No  error  can  be  assigned  to  the  action  of  the  court  in  refusing  to  re- 
quire the    district    attorney    on    motion    to   file    the   printed  matter    alleged  in  an 

36.  To  test  credibility  of  witness. —  41.  Recalling  witnesses. — Faust  v. 
Blitz  c'.  United  States,  153  U.  S.  308,  312.  United  States,  163  U.  S.  452,  41  L.  Ed. 
38    L.    Ed.    725.  224. 

37.  Cochran  v.  United  States,  157  U.  42.  Interpreters. — Perovich  v.  United 
S.   286,   291,   39   L.   Ed.   704.  States.  205   U.   S.   86,    51   L.   Ed.   722. 

38.  Stillwell  &  Bierce  Mfg.  Co.  v.  42a.  Demurrer  to  the  evidence. — Stone 
Phelps.  130  U.  S.  520,  32  L.  Ed.  1035;  Mon-  v.  Stillwell  Mfg.  Co.,  142  U.  S.  128.  35  L- 
tana  R.  Co.  v.  Warren,  137  U.  S.  348,  34  Ed.  961,  citing  Suydam  v.  Williamson,  20 
L.     Ed.     681;     Inland,    etc..    Coasting    Co.  How.   427,   15   L.    Ed.  978. 

V.     Tolson.     139     U.     S.     551,     35     L.     Ed.  43.     Fines.— Worden    v.    Searls,    121    U. 

270;    Chatcaugay    Iron    Co.    v.    Blake,    144  S.  14,  30  L.  Ed.  853. 

U.    S.   476,   484,    36   L.    Ed.    510.  44.       Indictments. — Rosen       v.       United 

39.  Northern  Pac.  R.  Co.  v.  Urlin.  States.  161  U.  S.  29.  40  L.  Ed.  606;  Dnn- 
158  U.   S.  271.  273r  39  L.   Ed.   977.  lop    7'.    United    States,    165    U.    S.    486,    41 

40.  Northern     Pac.     R.     Co.     v.     Urlin,  L.    Ed.   799. 
158  U.    S.   271,  273,   39   L.    Ed.   977. 


APPEAL  A'XD  ERROR.  993 

indictment  to  be  obscene,  lewd,  lascivious  and  indecent  for  the  purpose  of  enab- 
ling the  defendant  to  demur  to,  the  indictment,  if  it  is  nowhere  stated  that  he 
designed  it  for  the  purpose  of  demurring  to  the  indictment,  more  especially 
where  if  it  had  been  furnished  it  would  not  have  been  the  subject  of  demurrer, 
since  it  is  no  part  of  the  record.  It  shows  the  application  is  one  addressed  to 
the  discretion  of  the  court  and  its  action  thereon  is  not  subject  to  review.'*^ 
Whether  the  matter  was  too  obscene  to  be  set  forth  in  the  record  is  a  matter 
primarily  to  be  considered  by  the  district  attorney  in  preparing  the  indictment; 
and,  in  any  event  it  is  within  the  discretion  of  the  court  to  say  whether  it  is  fit 
to  be  spread  upon  the  record  or  not.  Therefore  error  will  not  lie  to  the  action 
of  the  court  in  this  particular.'*^ 

16.  Injunctions. — Granting  or  dissolving  a  temporary  injunction,  rests  in 
the  sound  discretion  of  the  court,  and   furnishes  no  ground  for  an  appeal.*' 

17.  Interest. — This  court  will  not  interfere  by  modifying  a  decree  with  re- 
gard to  the  rate  of  interest  charged  against  a  defendant,  because  it  is  to  a  cer- 
tain extent  discretionary  with  the  court  below.'*'^ 

18.  Intervention. — The  action  of  the  court  below  in  denying  an  application 
to  i^itervene  and  file  a  petition  in  a  cause  is  not  reviewable  by  this  court,  because 
it  involves  an  exercise  of  discretion  vested  in  the  court  below.^*^  When  leave  to 
intervene  in  an  equity  case  is  asked  and  refused,  the  rule  is  well  settled  that  the 
order  thus  made  denying  leave  to  intervene  is  not  regarded  as  a  final  determina- 
tion of  the  merits  of  the  claim  on  which  the  intervention  is  based,  but  leaves  the 
petitioner  at  full  liberty  to  assert  his  rights  in  any  other  appropriate  form  of  pro- 
ceeding. Such  an  order  not  only  lacks  the  finality  which  is  necessary  to  support 
an  appeal,  but  it  is  usually  said  of  it  that  it  cannot  be  reviewed,  because  it  merely 
involves  an  exercise  of  the  discretionary  powers  of  the  trial  court. ^^'  It  is  doubt- 
less true  that  cases  may  arise  where  the  denial  of  a  third  party  to  intervene  therein 
would  be  a  practical  denial  of  certain  relief  to  which  the  intervenor  is  fairly  en- 
titled, and  which,  he  can  only  obtain  by  an  intervention.  Cases  of  this  sort  are  those 
where  there  is  a  fund  in  court  undergoing  administration  to  which  a  third  party 

45.  Dunlop  V.  United  States,  165  U.  S.  tered  against  the  casual  ejector.  No  one 
486,  41   L.   Ed.   799.  but   a   party   to  the   suit   can   bring  a   writ 

46.  Dunlop  V.  United  States,  16.5  U.  S.  of  error.  The  tenant  having  neglected  to 
486,   41    L.    Ed.   799.  have    herself    made    such,    cannot    have    a 

47.  Injunctions. — Buffington  v.  Harvey,  writ  of  error  to  the  judgment  against  the 
35  U.  S.  99,  24  L.  Ed.  381.  casual    ejector.      The    motion    made    after- 

48.  Interest. — Harrison  f.  Perea,  168  U.  wards  to  have  the  judgment  set  aside  and 
S.  311,  42  L.   Ed.  478.  for  leave   to  intervene   was  an  application 

49.  Intervention. — Central  Trust  Co.  v.  to  the  sound  discretion  of  the  court.  To 
Grant  Locomotive  Works,  135  U.  S.  207,  the  action  of  the  court  on  such  a  motion 
34  L.  Ed.  97;  Buffington  v.  Harvey,  95  U.  no  appeal  lies,  nor  is  the  subject  of  a  bill 
S.  99,  24  L.  Ed.  381;  Brockett  v.  Brockett,  of  exceptions  or  a  writ  of  error."  Credits 
2  How.  238.  11  L.  Ed.  251;  Mellen  v.  Mo-  Commutation  Co.  v.  United  States,  177 
line    Iron   Works,  131  U.  S.  352,  33  L.  Ed.    178.  U.    S.   311,    316,   317,   44   L.   Ed.   782. 

50.  Credits  Commutation  Co.  v.  United  In  denying  a  petition  for  leave  to  in- 
states.  177  U.   S.  311,  315,   44   L.   Ed.   782.  tervene.    the    court    used     the      following 

In  Connor  v.  Peugh.  18  How.  394.  15  language:  "Ordered,  that  the  prayers  of 
L.  Ed.  432,  it  was  said  by  Mr.  Justice  the  petitioners  for  leave  to  intervene 
Grier,  giving  the  opinion  of  the  court:  herein  be  and  the  same  are  hereby  denied, 
"On  the  5th  of  June,  1855,  the  tenant  in  not  as  matter  of  discretion,  but  because 
possession  came  into  court  for  the  first  said  petitions  do  not  state  facts  sufficient 
time,  and  moved  to  set  aside  the  judg-  to  show  that  the  petitioners,  or  either  of 
ment  and  execution  issued  thereon,  and  them,  have  a  legal  right  to  intervene." 
to  be  allowed  to  defend  the  suit  for  rea-  It  was  held,  that  the  action  of  the  court 
sons  set  forth  in  her  affidavit.  The  court  below,  in  denying  the  petition  to  inter- 
refused  to  grant  this  motkin,  'whereupon  vene,  was  an  exercise  of  purely  discre- 
the  said  Mary  Ann  Connor  prayed  an  ap-  tionary  power,  and  lacks  the  finality  in 
peal.'  The  tenant  in  possession  having  its  character  which  is  necessary  to  sup- 
neglected  to  appear  and  have  herself  port  an  appeal.  Credits  Commutation  Co. 
made  defendant  and  confess  lease,  entry  7\  United  States,  177  U.  S.  311,  44  L.  Ed. 
and  ouster  the  judgment  was  properly  en-  782. 

1  U  S  Enc— 63 


994 


APPEAL  AND  ERROR. 


asserts  some  right  which  will  be  lost  in  the  event  that  he  is  not  allowed  to  inter- 
vene before  the  fund  is  dissipated.  In  such  cases  an  order  denying  leave  to  in- 
tervene is  not  discretionary  with  the  chancellor,  and  will  generally  furnish  the 
basis  for  an  appeal,  since  it  finally  disposes  of  the  intervenor's  claim  by  denying 
him  all  right  to  relief.-"^  ^ 

19.  Judgments  and  Decrees — a.  Arrest  of  Judgment. — It  is  a  well-settled 
rule  that  this  court  will  not  overrule  or  even  canvass  a  decision  of  the  court 
below  overruling  a  motion   for  an  arrest  of  judgment.^^ 

b.  Opening,  Amending  and  Vacating — (1)  Opening. — xA.n  appeal  will  not  lie 
from  the  refusal  of  a  circuit  court  to  open  its  decree. ^-^  Likewise,  the  action  of 
the  court  below  in  granting  or  refusing  an  application  to  open  a  default  is  not  sub- 
ject to  revision,  because  it  is  a  matter  resting  in  the  discretion  of  that  court.^'* 

(2)  Ametiding.^-The  authority  of  a  court  to  amend  a  judgment,  by  causing 
it  to  be  entered  nunc  pro  tunc,  is  discretionary,  and  cannot  be  reviewed  by  an 
appellate  court. ^^ 

(3)  Vacating. — In  General. — And  neither  an  appeal  nor  writ  of  error  will 
lie  from  the  refusal  of  the  court  below  to  vacate  a  judgment  or  decree.  The 
decision  of  such  a  motion  rests  in  the  sound  discretion  of  the  trial  court. ^^     Set- 


51.  Credits  Commutation  Co.  v.  United 
States,  177  U.  S.  311,  315,  316,  44  L.  Ed. 
782. 

52.  Arrest  of  judgment. — Leitensdorfer 
V.  Webb.  20  How.   176.  181,  15  L.  Ed.  891. 

When  to  a  declaration  two  special 
pleas  are  interposed,  each  setting  up  sub- 
stantially the  same  defense,  and  by  the 
replication  to  one  issue  is  joined  on  the 
merits,  and  by  the  replication  to  the  other 
an  immaterial  issue  is  formed,  and  upon 
tlve  trial  all  the  issues  are  found  for  the 
plaintiff,  it  is  a  matter  of  discretion  in 
the  court  whether  to  arrest  the  judgment 
for  the  verdict  on  the  immaterial  issue 
and  award  a  repleader,  with  which  this 
court  will  not  interfere.  Erskine  v.  Hohn- 
bach,  14  Wall.  613,  614.  20  L.   Ed.  745. 

53.  Opening. — McMicken  v.  Perin,  18 
How.  507,  15  L.  Ed.  504;  Brockett  v. 
Brockett,  2  How.  238,  11  L.   Ed.  251. 

No  appeal  lies  from  the  refusal  of  the 
court  below  to  open  a  former  decree  as 
it  rests  merely  in  the  sound  discretion  of 
the  court  below.  But  if  the  court  enter- 
tains a  petition  to  open  a  decree,  the  time 
limited  for  an  appeal  does  not  begin  to 
run  until  the  refusal  to  open  it.  the  same 
term  continuing.  Brockett  v.  Brockett,  2 
How.   238,    11    L.    Ed.   251. 

Brockett  v.  Brockett  distinguished — 
An  appeal  will  not  lie  to  this  court  from 
a  refusal  of  the  court  below  to  open  a 
prior  decree,  and  grant  a  rehearing.  The 
decision  of  this  point  rests  entirely  in  the 
sound  discretion  of  the  court  below.  "The 
case  of  Brockett  v.  Brockett,  2  How.  238, 
240,  11  L.  Ed.  251,  which  was  relied  on 
in  the  argument,  was  decided  on  different 
ground.  In  that  case,  before  any  appeal 
was  taken,  a  petition  was  filed  to  open 
the  decree  for  certain  purposes,  and  the 
court  referred  it  to  a  commissioner  to 
examine  and  report  on  the  matters  stated 
in  the  petition.  Upon  his  report,  the 
court  refused  to  open  the  de  ;ree,  and  the 
party    thereupon    appealed    from    this    re- 


fusal, as  well  as  the  original  decree,  and 
gave  bond,  with  sufficient  security,  to 
prosecute  the  appeal.  This  bond  was 
given  within  ten  days  of  the  refusal  of 
the  motion,  but  was  more  than  a  month 
after  the  original  decree.  And  the  court 
held  that  this  appeal  was  well  taken;  not 
because  an  appeal  will  lie  from  the  re- 
fusal of  a  motion  to  open  the  decree  and 
grant  a  rehearing,  but  because  the  court 
regarded  the  original  decree  as  suspended 
by  the  action  of  the  court  on  the  motion, 
and  that  it  was  not  effectual  and  final 
until  the  motion  was  overruled."  Wyle 
V.   Coxe,  14   How.   1,  14   L.   Ed.   301. 

54.  United  States  v.  Estudillo,  1  Wall. 
710,   17   L.    Ed.    702. 

Where,  under  the  statute  of  June  14, 
1860,  relating  to  surveys  of  Mexican 
grants  in  California,  notice  has  been  given 
to  all  parties  having  or  claiming  to  have 
any  interest  in  the  survej'  and  location  of 
the  claim,  to  appear  by  a  day  designated, 
and  intervene  for  the  protection  of  their 
interest,  and  upon  the  day  designated 
certain  parties  appeared,  and  the  default 
of  all  other  parties  was  entered;  the 
opening  of  such  default  with  respect  to 
any  party  subsequently  applying  for  leave 
to  appear  and  intervene,  is  a  matter  rest- 
ing in  the  discretion  of  the  district  court, 
and  its  action  on  the  subject  is  not  open 
to  revision  on  appeal.  United  States  z.'. 
Estudillo,    1    Wall.    710,    17    L.    Ed.    702. 

55.  Amendments  of  judgments. — Sheer 
V.  Pittsburg  Bank,  16  How.  571,  14  L.  Ed. 
1063,  citing  Chirac  v.  Reinicker,  11  Wheat. 
280,  302,  6  L.  Ed.  474;  Walden  v.  Craig, 
9  Wheat.  576,  6  L.  Ed.  164. 

56.  Vacating. — Wyle  v.  Coxe,  14  How. 
1,  14  L.  Ed.  301;  Connor  v.  Peugh,  18 
How.  394.  15  L.  Ed.  432;  Raub  v.  Carpen- 
ter,   187  U.   S.   159,  47   L.   Ed.   119. 

"A  motion,  even  if  made  within  the  time 
prescribed  by  the  rule,  to  set  aside  a  judg- 
ment, is  addressed  to  the  discretion  of  the 
trial    court,    and    where    the    exercise    of 


APPEAL  AND  ERROR.  995 

ling  aside  a  default,  like  a  motion  for  a  new  trial,  lies  entirely  in  the  discretion  of 
the  trial  court,  and  is  not  reviewable.^" 

Limitations  of  General  Rule.— Although  the  general  rule  is  that  is  that  it  is 
not  within^the  power  of  this  court  to  review  a  juclgemnt  or  a  decree  of  the  court 
below  vaca'ting  or  refusing  to  vacate  its  judgment,  because  such  matter  is  within 
the  discretion  of  the  court  below,  yet  this  rule  does  not  apply  to  an  order  of  the 
court  vacating  a  judg?nent  after  the  term  is  ended,  because  such  an  order  is  nec- 
essarily made  without  jurisdiction  on  the  part  of  the  court  making  it,  and  there- 
fore is  a  proceeding  which  is  the  subject  of  review  by  an  appellate  court.  The 
reason  of  this  ruling  is  that  after  a  term  has  ended,  all  final  judgments  and  de- 
crees of  the  court  pass  beyond  its  control,  unless  steps  be  taken  during  that  term, 
"by  motion  or  otherwise,  to  set  aside,  modify  or  correct  them;  and  if  errors  exist, 
they  can  only  be  corrected  by  such  proceeding,  by  a  writ  of  error  or  appeal,  as 
may  be  allowed  in  the  court  which,  by  law,  can  review  the  decision ;  and  the  su- 
preme court  of  the  District  of  Columbia  comes  within  this  rule,  such  court  hav- 
ing no  more  power  over  its  judgment  rendered  at  a  previous  term  of  the  court 
than  any  other  judicial  tribunal.^^ 

c.  Motion  and  Order  for  Judgement. — The  action  of  a  circuit  court,  relative  to 
a  motion  and  order  for  judgment,  is  a  matter  within  the  circuit  court's  discre- 
tion,  and   not   a   subject   for  review   here.^^ 

20.  Judicial  Sales. — An  act  of  the  court  in  refusing  to  confirm  or  complete  a 
judicial  sale  is  not  entirely  within  its  discretion,  and  therefore  may  be  reviewed 
iiere.^^^ 

21.  Jury. — Withdrawal  of  Jurors. — Where  a  juror  is  discharged,  and  the 
court  orders  another  to  be  sworn  and  proceeds  with  the  trial,  it  was  held,  that  it 
rested  in  the  discretion  of  the  court  whether  the  withdrawal  of  a  juror  should 
be  treated  simply  as  occasioning  a  vacancy  on  a  still-existing  panel,  or  as  break- 
ing up  the  panel  altogether,  and  it  being  a  matter  of  discretion,  no  error  could 
be  assigned  upon  it,  even  if  there  were  reason  to  believe  that  the  discretion  was 
not  wisely  exercised.^ ^ 

Opinions  as  Disqualifying  Jurors. — Upon  the  trial  of  the  issue  of  fact 
raised  by  "a  challenge  to  a  juror,  in  a  criminal  case,  on  the  ground  that  he  had 
formed  and  expressed  an  opinion  as  to  the  issues  to  be  tried,"  the  court  will 
practically  be  called  upon  to  determine  whether  the  nature  and  strength  of  the 
•opinion  formed  are  such  as  in  law  necessarily  raise  the  presumption  of  partiality. 

that  discretion   has  been  approved   by  the  errors    in    the    reports    of    the    master,    or 

supreme  court  of  the  territory,  we  should  review   the   action    of   the    court   below   in 

not  feel  disposed  to  overrule  those  courts,  refusing  to   set   aside   the   decree   upon   an 

unless    misuse    or    abuse    of    discretionary  application    addressed    mainly    to    its    dis- 

power    plainly    appeared;    and    we    cannot  cretion.      Terry    v.    Commercial    Bank    of 

say  that  this  is   such  a   case.     Even  if  we  Alabama,   92   U.   S.   454,   23    L.    Ed.    620. 

could   regard   this   not   as   a   mere   applica-  57     g^  p^rte   Roberts.   6   Pet.   216,  8   L- 

tion  under  the  rule  to  vacate  a  judgment,  £d.   375. 

but  as   a  proceeding  of  an  equitable   char-  ^Yi\s  court  has  no  power  to  re-examine 
acter    outside    of    the    rule,    we    should    be  the  action   of  the   territorial  courts   in   re- 
compelled  to  reach  the   same  conclusion."  fusing  to  set  aside  a  judgment  by  default.  ♦ 
Rio    Grande    Irrigation,    etc.,    Co.    v.    Gil-  McAllister   v.    Kuhn,    96    U.    S.    87,   90,    24 
dersleeve,    174    U.    S.    603,    609,    43    L.    Ed.  l    Ed.   615. 

^^°^-                          ,      ,    ,                     ,  58.    Phillips  v.  Negley,  117  U.  S.  665.  29 

Where,  after  a  final  decree  on  the  merits  ^    Ed    1013 
had  been  rendered  upon  the  report  of  the  ^^     "^^^.^^                                  judgment- 
receiver  and  upon  the  reports  of  the  mas-  cheang-Kee  v.  United  States.  3  Wall.  320. 


ter   to   whom   it   had  been   referred,   all   of 
which    had    been    confirmed    without    ex- 


17  L.    Ed.   72 


ception.  the  complainant  filed  a  petition  60.  Judicial  sales.— Blossom  v.  Mil- 
supported  by  his  affidavit  asserting  that  waukee,  etc.,  R.  Co.,  1  Wall.  655,  17  L. 
his  solicitor  had  deserted  his  interests,  Ed.  673,  citing  Delaplaine  v.  Lawrence, 
failed  to  except  to  the  reports,  and  im-  10  Paige  Ch.  (N.  Y.)  602. 
properly  consented  to  the  decree,  held,  61.  Jury. — Silsby  v.  Foote,  14  How.  218, 
that  this  court  cannot  consider  the  alleged  14   L.   Ed.   394. 


996  APPEAL  AND  ERROR. 

The  question  thus  presented  is  one  of  mixed  law  and  fact,  and  to  be  tried,  as  far 
as  the  facts  are  concerned,  Hke  any  other  issue  of  that  character,  upon  the  evi- 
dence. The  finding  of  the  trial  court  upon  that  issue  ought  not  to  be  set  aside 
by  a  reviewing  court,  unless  the  error  is  manifest.  It  must  be  made  clearly  to- 
appear  that  upon  the  evidence  the  court  ought  to  have  found  the  juror  had  formed 
such  an  opinion  that  he  could  not  in  law  be  deemed  impartial.  The  case  must  be 
one  in  which  it  is  manifest  the  law  left  nothing  to  the  "conscience  or  discretion" 
of  the  court.*^-  If  such  is  the  degree  of  strictness  whicli  is  required  in  the  or- 
dinary cases  of  writs  of  error  from  one  court  to  another  in  the  same  general 
jurisdiction,  it  certainly  ought  not  to  be  relaxed  in  a  case  where  the  ground  re- 
lied on  for  the  reversal  by  this  court  of  a  judgment  of  the  highest  court  of  the 
state  is,  that  the  error  complained  of  is  so  gross  as  to  amount  in  law  to  a  denial' 
by  the  state  of  a  trial  by  an  impartial  jury  to  one  who  is  accused  of  crime. ''^ 

The  action  of  the  court  in  recalling  the  jury,  must  be  left  to  the  sound 
discretion  of  the  trial  court,  and  if  there  is  nothing  in  the  record  to  show  that 
the  court  abused  this  discretion,  such  action  cannot  be  held  to  be  error  sufficient 
to  reverse  the  judgment. ^^ 

22.  Lost  Instruments  and  Records. — "Nothing  can  be  more  certain,  in  le- 
gal decision,  than  the  proposition  that  an  application  to  supply  a  lost  writ,  dec- 
laration, or  other  pleading,  if  accompanied  by  proof  of  loss,  is  in  general  ad- 
dressed to  the  discretion  of  the  court,  and  it  is  well-settled  law,  that  decisions 
which  rest  in  the  discretion  of  a  court  of  original  jurisdiction,  cannot  be  re-ex- 
amined in  an  appellate  court  upon  a  writ  of  error. "•'^ 

23.  Mandamus. — An  order  granting  or  refusing  a  mandamus  is  discretionary 
and   not   appealable.^^ 

24.  Decisions  on  Motions — a.  In  General. — It  has  uniformly  been  held  that 
error  will  not  lie,  without  a  statutory  provision,  on  a  motion  for  a  new  trial,  to 
amend  the  pleadings,  or  any  other  motion  which  depends  upon  the  discretion  of 
the  court.""  And  an  order  of  a  supreme  court  of  a  territory  affirming  an  order 
of  a  district  court,  by  which  a  motion  to  set  aside  a  sheriff's  return  to  an  execu- 
tion was  allowed,  and  an  alias  execution  awarded,  is  within  the  discretion  of  the 
inferior  court.^*  There  are  cases,  however,  in  which  this  court  has  taken  cog- 
nizance of  questions  directly  affecting  the  merits  of  the  cause,  even  though  aris- 
ing in  form,  upon  motions  determinable  at  discretion.*"''' 

b.  Motion  to  Quash  Execution  or  Indictment. — As  a  motion  to  quash  an  ex- 
ecution is  always  addressed  to  the  sound  discretion  of  the  court,  a  decision  upon 
it  is  not  error,  and  cannot  be  reviewed  on  a  writ  of  error ."^ 

62.  Reynolds  v.  United  States.  98  U.  S.  final  process  issue  in  accordance  with  the 
145,  1.56,  25  L.   Ed.  244.  mandate  sent  to  such  court  on  the  affirm- 

63.  Spies  V.  Illinois,  123  U.  S.  131,  179,  ance,  the  action  of  the  court  in  granting 
31   L.   Ed.   80.  such   process    will    not    be    reviewed    here. 

64.  Allis  v.  United  States.  155  U.  S.  Cook  v.  Burnley,  11  Wall.  659.  672,  20  L. 
117.    39    L.    Ed.   91.  Ed.    29. 

65.  Lost  instruments  and  records. —  66.  Mandamus. — Kendall  v.  United 
Liter  7'.  Green.  2  Wheat.  306,  4  L.  Ed.  States,  12  Pet.  524,  9  L.  Ed.  1181;  Colum- 
246;  Silsbv  v.  Foote,  14  How.  218,  14  L.  bian  Ins.  Co.  v.  Wheelright,  7  Wheat. 
Ed.  394;   Morsell  v.  Hall,  13  How.  212,  14  5.-54,    5    L.    Ed.    516. 

L.    Ed.    117;    United    States    v.    Buford,    3  67.    Decisions   on   motions   in   general. — 

Pet.  12,  7  L.  Ed.  585;  Jenkins  v.  Banning,  McCargo    r.    Chapman.    20    How.    555,    15 

23  How.  455,  16  L.  Ed.  580;   Mandeville  t^.  L.    Ed.    1021. 

Wilson,  5  Cranch  15,  3  L.  Ed.  23;  Spencer  68.   Wells  v.  McGregor,  13  Wall.  188,  20 

r.    Lapsley.   20    How.    264,    15    L.    Ed.    902;  L.   Ed.  538. 

Cook  V.  Burnley.  11  Wall.  659,  672,  20  L.  69.    United  States  v.  Wilson,  7  Pet.  150,. 

Ed.   29.  8   L.    Ed.    640;    LTnited    States   v.    Chicago^ 

An  application  to  an  inferior  court  to  7  How.  185,  190,  12  L.  Ed.  660. 
supply  a  lost  record,  being  matter  ad-  70.  Motion  to  quash  execution  or  in- 
dressed  to  its  discretion,  is  not  a  subject  dictment. — LTnited  States  v.  Hamilton,  109 
for  writ  of  error.  If  after  a  lost  record  U.  S.  63,  27  L.  Ed.  857;  Boyle  v.  Zacharie, 
of  a  case  where  judgment  below  has  been  6  Pet.  635,  8  L.  Ed.  527;  Toland  v. 
affirmed,  is   supplied  in  the  inferior  court,  Sprague,  12  Pet.  300,  9  L.  Ed.  1093,  citing 


APPEAL  AXD  ERROR, 


997 


So,  also,  a  motion  to  quash  an  indictment  is  ordinarily  addressed  to  the 
discretion  of  the  court,  and  therefore  a  refusal  to  quash  cannot  generally  be  as- 
signed  for  error."  1 

c.  Motion  for  Stay  of  Execution. — The  action  of  the  court  upon  an  applica- 
tion to  grant  a  temporary  stay  of  proceedings  is  usually  discretionary,  and  a  re- 
fusal of  the  court  to  grant  such  a  motion  or  an  order  staying  proceedings,  when 
addressed  to  its  judicial  discretion,  will  not  be  reviewedJ^ 

d.  Motion  for  Leave  to  Discontinue. — Unless  there  is  an  obvious  violation  of 
a  fundamental  rule  of  a  court  of  equity  or  an  abuse  of  the  discretion  of  the 
court,  the  decision  of  a  motion  for  leave  to  discontinue  will  not  be  reviewed 
here  J  ^ 

e.  Motion  to  Enter  Exoneretur  of  Bail. — A  judgment  of  a  court  upon  a  mo- 
tion to  enter  an  exoneretur  of  bail  is  not  the  proper  subject  of  a  writ  of  error, 
It  is  a  collateral  proceeding  not  forming  a  legal  defense  to  the  scire  facias  but 
addressing  itself  to  the  equitable  discretion  of  the  court  and  founded  upon  its 
rules   and   practice."^ 

25.  New  Trials — a.  In  General. — Authorities  are  numerous  to  the  point  that 
the  allowance  or  refusal  of  a  new  trial  rests  in  the  sound  discretion  of  the  court 
to  which  the  application  is  addressed,  and  the  result  cannot  be  made  the  subject 


Boyle  V.  Zacharie,  6  Pet.  635,  8  L.  Ed. 
527;  Wells  v.  McGregor,  13  Wall.  188,  20 
L.  Ed.  538;  Mountz  v.  Hodgson,  4  Cranch 
324,  2  L.  Ed.  635;  McCargo  v.  Chapman, 
20  How.  555,  15  L.  Ed.  1021. 

In  the  case  of  Early  v.  Rogers,  16  How. 
599,  14  L.  Ed.  1074,  it  is  said:  "Whether 
a  court  will  quash  an  execution  on  ac- 
count of  proceedings  against  the  debtor, 
as  the  garnishee  of  the  creditor,  is  a  ques- 
tion appealing  to  the  discretion  of  the 
court  below,  and  a  court  of  error  cannot 
revise  its  decision  thereon."  McCargo 
V.  Chapman.  20  How.  555,  15  L.  Ed.  1021. 

And  in  Boyle  v.  Zacharie,  6  Pet.  635, 
8  L.  Ed.  527,  532,  the  court  say:  "In  mod- 
ern times,  courts  of  law  exercise  a  summary 
jurisdiction,  upon  motion,  over  executions, 
and  quash  them,  without  putting  a  party 
to  his  writ  of  audita  querela;  but  these 
motions  are  addressed  to  the  sound  dis- 
cretion of  the  court,  and  their  refusal  is 
not  a  ground  for  a  writ  of  error."  Mc- 
Cargo V.  Chapman,  20  How.  555,  15  L. 
Ed.   1021. 

In  Mountz  v.  Hodgson.  4  Cranch  324, 
-2  L.  Ed.  635,  it  is  said:  "A  refusal  of  the 
court  below  to  quash  the  execution  on 
motion,  is,  by  some  of  the  judges,  sup- 
posed not  to  be  a  judgment  to  which  a 
writ  of  error  will  lie.  Others  are  of  opin- 
ion that  a  writ  of  error  will  lie  to  that 
decision  of  the  court;  but  that  the  writ 
of  error  is  not  to  the  judgment  of  the 
circuit  court,  but  to  that  of  the  justices." 
McCargo  v.  Chapman,  20  How.  555,  15 
L.    Ed.    1021. 

71.  United  States  v.  Rosenburgh.  7 
Wall.  580,  19  L.  Ed.  263;  United  States 
T.  Hamilton,  109  U.  S.  63,  26  L.  Ed.  857; 
Logan  V.  United  States,  144  U.  S.  263, 
'>S2.  36  L.  Ed.  4-''9;  Durland  v.  Ignited 
States.   ir,l   U.    S.   306.   314,   40   L.    Ed.    709. 

72.  Motion  for  stay  of  execution. — 
Where  the  debtor  alleged  that  process  of 


attachment  had  been  laid  in  his  hands  as 
garnishee,  attaching  the  debt  which  be 
owed  to  the  creditor  in  question;  and 
moved  the  court  to  stay  execution  until 
the  rights  of  the  parties  could  be  settled 
in  the  state  court  which  had  issued  the 
attachment,  and  the  court  refused  so  to 
do,  this  refusal  is  not  the  subject  of  re- 
view by  this  court.  The  motion  was  ad- 
dressed to  the  discretion  of  the  court  be- 
low, which  will  take  care  that  no  injustice 
shall  be  done  to  any  party.  Early  v.  Rog- 
ers.  16   How.   599,   14   L.   Ed.   1075. 

73.  Motion  for  leave  to  discontinue. — 
Pullman's  Palace  Car  Co.  v.  Central 
Transportation  Co.,  171  U.  S.  138,  146,  43 
L.   Ed.   108. 

74.  Motion  to  enter  exoneretur  of  bail. 
— Morsell  7'.  Hall,  13  How.  212,  14  L.  Ed. 
117;  United  States  v.  Abatoir  Place,  106 
U.   S.   162,  27  L.   Ed.   128. 

A  motion  to  enter  an  exoneretur  of  the 
bail  is  no  defense  to  a  scire  facias,  even 
if  sufficient  grounds  were  shown  to  sup- 
port the  motinn  (which  we  do  not  mean 
to  say  was  the  case  in  the  present  in- 
stance). It  is  a  collateral  proceeding,  not 
forming  a  legal  defense  to  the  scire 
facias,  but  addressing  itself  to  the  equi- 
table discretion  of  the  court,  and  founded 
upon  its  rules  and  practice.  (Chit.  PI., 
Am.  Ed.  1847,  469).  No  writ  of  error 
will  therefore  lie  upon  the  decision  of  a 
motion  of  that  kind;  because  a  wr't  of 
error  can  bring  up  nothing  but  questions 
of  law.  It  does  not  bring  up  qucstii^ns 
of  equity  arising  out  of  the  rules  and 
practice  of  the  courts.  And  the  proceed- 
ings upon  the  motion  to  discharge  the 
bail  form  no  part  of  the  legal  record  in 
the  proceedings  on  the  scire  facias  and 
oiight  not  to  have  been  inserted  in  the 
record  transmitted  to  this  court.  Morsel! 
V.  Hall,  13  How.  212,  314,  14  L.  Ed.   117. 


998 


APPEAL  AND  ERROR. 


of  review  by  writ  of  error."^     In  one  case  Mr.  Justice  Bradley,  in  deciding  that 
no  error  could  be  assigned  upon  the  refusal  of  the  court  below  to  grant  a  new 


75.  Allowance  or  refusal  of  new  trial. 
— Henderson  v.  Moore,  5  Cranch  11,  3 
L.  Ed.  22;  Newcomb  v.  Wood,  97  U.  S. 
581,  24  L.  Ed.  1085;  Mattox  v.  United 
St?tes,  146  U.  S.  140.  147,  36  L.  Ed.  917; 
Reagan  v.  United  States,  157  U.  S.  301,  311, 
39  L.  Ed.  709;  Blitz  v.  United  States,  153 
U.  S.  30.>,  312,  38  L.  Ed.  725;  Wheeler  v. 
United  States,  159  U.  S.  523.  40  L.  Ed. 
244;  Bucklin  v.  United  States,  159  U.  S. 
eeo,  682,  685,  40  L.  Ed.  304;  Moore  v. 
United  States.  150  U.  S.  57,  37  L.  Ed. 
996;  Holder  v.  United  States,  150  U.  S. 
91,  37  L.  Ed.  1010;  Clune  v.  United  States, 
159  U.  S.  590.  591,  40  L.  Ed.  269;  Mc- 
Lat»ahaxi  v.  Universal  Ins.  Co.,  1  Pet.  170, 
WZ,  7  h.  Ed.  98;  United  States  v.  Buford. 
3  P<K.  12,  32,  7  L.  Ed.  585;  Blunt  v.  Smith, 
7  Wheat  248,  5  L.  Ed.  446;  Pomeroy's 
L«ssee  V.  Bank  of  Indiana,  1  Wall.  592, 
597.  17  L.  Ed.  63«;  Levy  v.  Daflgel,  154 
U.  S.  671,  .18  L.  Ed.  1093;  Ewing  v.  How- 
ard, 7  Wall.  499,  502.  19  L.  Ed.  293;  Rail- 
way Cd.  v.  Heck,  102  U.  S.  120,  26  L.  Ed. 
5-ai;  Hanna  r.  Mass.  122  U.  S.  24,  30  L. 
Ed.  HIT;  Addingto*  v.  United  States,  165 
U.  S.  184,  41  L.  Ed.  679;  Insurance  Co. 
V.  B«*^»,  M  Wan.  603,  20  L.  Ed.  708; 
Daswefl  v.  De  La  Lanzo.  20  Ho-w.  29, 
15  L.  Ed.  S24;  Smith  v.  Mississippi,  162 
U.  S.  »^.  601,  CO%.  40  L.  Ed.  1082;  Ward 
V.  JosUb,  186  U.  S.  142,  153,  46  L.  Ed. 
1093;  Parsons  v.  Bedford,  3  Pet.  433,  447, 
7  L.  Ed.  7»8;  Railroad  Co.  v.  Fraloflf, -100 
U.  S.  24,  25  L.  Ed.  531;  Wabash  R.  Co.  v. 
McDaniel,  107  U.  S.  454,  456,  2T  L.  Ed. 
606;  Minor  v.  Tillotson,  2  How.  392,  394, 
1-1  L.  Ed.  3*2;  Barreda  v.  Silsbee,  21  How. 
M«.  167,  16  L.  Ed.  86;  Insurance  Co.  v. 
Folsom.  1-8  Wall.  237,  249.  21  L.  Ed.  827; 
ludianapolis,  etc.,  R.  Co.  v.  Horst,  93  U. 
S.  291,  301,  23  L.  Ed.  898;  Missouri  Pac. 
R.  Co.  V.  Chicago,  etc.,  R.  Co..  132  U.  S. 
191,  32  L.  Ed.  309;  Fishburn  v.  Chicago, 
etc.,  R.  Co.,  137  U.  S.  60.  61.  M  L-  Ed. 
r,85;  Wilson  v.  Everett,  139  U.  S.  616.  6  I, 
3^  L.  Ed.  2-86;  ^tna  Ins.  Co.  v.  Ward, 
140  U.  S.  76,  35  L.  Ed.  371;  New  York, 
etc.,  R.  Co.  V.  Winter.  143  U.  S.  60,  75, 
30  L.  Ed.  71;  Van  Stone  v.  Stillwell,  etc., 
Mfg.  Co..  142  U.  S.  128.  134,  35  L.  Ed. 
9*1;  Avers  v.  Watson,  137  U.  S.  584,  34 
L.  Ed.  803;  Railway  Co.  v.  Twombly,  100 
U.  S.  78,  25  L.  Ed.  550;  Boogher  v.  In- 
swrance  Co.,  103  U.  S.  90,  97,  26  L.  Ed. 
310;  United  States  v.  Buford,  3  Pet.  12,  7 
L.  Ed.  T.S.t;  United  States  v.  Evans.  5 
Cranch  2S0,  3  L.  Ed.  101;  Marine  Ins. 
Co.  V.  Hodgson,  6  Cranch  206,  3  L.  Ed. 
200;  Emhry  V.  Palmer.  107  U.  S.  13.  17, 
27  L.  Ed. '346;  United  States  v.  Hodge, 
6  How.  279.  12  L.  Ed.  437;  Brown  v. 
Oark,  4  How.  4,  11  L.  Ed.  850;  Barr  v. 
Gratz,  4  Wheat.  213.  4  L.  Ed.  553;  United 
Spates  V.  Daniel,  6  Wheat.  542,  5  L.  Ed. 
326;   Walton   v.   United    States,    9    Wheat. 


651.  6  L.  Ed.  182;  Marine  Ins.  Co.  v. 
Young,  5  Cra4ich  187,  190,  3  L.  Ed.  74; 
Mumford  v.  Wardwell,  6  Wall.  423,  18 
L.  Ed.  756;  Erskine  v.  Hohnbach,  14 
Wall.  613,  20  L.  Ed.  745;  Freeborn  v. 
Smith,  2  Wall.  160,  17  L.  Ed.  922;  Lan- 
caster V.  Collins,  115  U.  S.  222,  29  L.  Ed. 
373;  Crumpton  v.  United  States,  138  U. 
S.  361,  363,  34  L.  Ed.  958;  Mulhall  v. 
Keenan,  18  Wall.  342.  21  L.  Ed.  809; 
Laber  v.  Cooper,  7  Wall.  565,  19  L.  Ed. 
151;  San  Antonio  v.  Mehaf?y,  96  U.  S. 
312.  315.  24  L.  Ed.  816;  Steines  v.  Frank- 
lin County,  14  Wall.  15,  20  L.  Ed.  846; 
Warner  v.  Norton,  20  How.  448,  15  L- 
Ed.  950;  Insurance  Co.  v.  Barton,  13  Wall. 
603,  20  L.  Ed.  708;  Hills  v.  Ross,  3  Dall. 
184,  1  L.  Ed.  562;  Jennings  v.  The  Brig 
Perseverance,  3  Dall.  336.  1  L.  Ed.  625; 
Woods  V.  Young,  4  Cranch  237,  2  L.  Ed. 
607;    Welch   v.    Mandevillc,   7    Cranch   152, 

3  L.  Ed.  299;  Ruck  v.  Rock  Island,  97  U. 
S.  693.  696,  24  L.  Ed.  1101;  Fitzgerald, 
etc.,  Co.  V.  Fitzgerald,  1T7  U.  S.  98,  34 
L.  Fd.  608;  Springer  v.  UirKed  States,  102 
U.  S.  586,  26  L.  Ed.  253;  Bea«q>re  v.  Noyes, 
138  U.  S.  397,  34  L-  Ed.  9»1;  Sehwchardt 
V.  Aliens,  1  WaH.  359,  371,  17  L.  Ed.  642; 
Hall  V.  Weare,  92  U.  S.  72«,  732.  23  L. 
Ed.  500;  Leitcnsdorfer  v.  Webb,  20  How. 
176,  15  L.  Ed.  891;  Jones  v.  Buckell,  104 
U.  S.  554,  26  L.  Ed.  841;  Pittsburg,  etc.,  R. 
Co.  V.  Heck,  102  U.  S.  120,  26  L.  Ed.  58; 
Terre  Haute,  etc.,  R.  Co.  v.  Struble,  109 
U.  S.  381,  27  L.  Ed.  970;  The  Abbotsford, 
98  U.  S.  440.  445,  25  L.  Ed.  16«;  Cooper 
V.  Omohundro.  19  Wall.  65,  68.  22  L.  Ed. 
47;  Arkansas  Val.,  etc.,  Co.  v.  Mann,  130 
U.  S.  69,  75,  32  L.  Ed.  854;  Pacific  Ex- 
press Co.  V.  Malin,  132  U.  S.  531,  538,  32 
L.  Ed.  450;  Dahl  v.  Raunheim,  132  U.  S. 
260,  32  L.  Ed.  324,  affirmed  in  Dahl  v. 
Montana  Copper  Co.,  132  U.  S.  264.  32  L. 
Ed.  325;  Bullitt  County  v.  Washer.  130 
U.    S.    142,    145,    32    L.    Ed.    885. 

A  motion  for  a  new  trial  is  always  ad- 
dressed to  the  discretion  of  the  court, 
and  this  court  will  not  control  the  exer- 
cise of  that  discretion  by  a  circuit  court, 
either  by  a  writ  of  mandamus  or  on  a 
certificate  of  division  between  the  judges. 
Life  &  Fire  Ins.  Co.  v.  Wilson,  8  Pet. 
291.  8  L.   Ed.   049. 

It  is  settled  in  Doswell  v.  De  La 
Lanza,  20  How.  29,  15  L.  Ed.  824;  Hen- 
derson V.  Moore,  5  Cranch  11,  12,  3  L. 
Ed.  22;  Marine  Ins.  Co.  v.  Hodgson,  6 
Crnnch    206.   3    L.    Ed.   200;    Barr  v.   Gratz, 

4  Wheat.  213.  220.  4  L.  Ed.  553,  that  this 
court  will  not  review  an  order  overruling 
the  motion  for  a  new  trial.  The  granting 
or  refi'sing  of  new  trials  is  a  matter  of 
discretion,  with  the  exercise  of  which,  by 
the  court  below,  this  court  will  not  in- 
terfere. The  circum'^tances  that  tl^  dis- 
cretion   was    exercised    under     a     peculiar 


APPEAL  AND  ERROR. 


999 


trial  said,  with  some  show  of  impatience,  "we  have  only  to  repeat  what  we  have 
so  often  endeavored  to  impress  upon  the  counsel  that  error  does  not  lie  for  grant- 
ing or  refusing  a  new  trialjs  And  if  when  the  final  judgment  is  brought  here 
for  review  by  writ  of  error,  no  other  documents  are  presented  for  consideration 
than  such  as  were  before  the  inferior  court  upon  the  application  for  a  new  trial, 
tins  court  cannot  look  into  them;  and.  if  error  is  not  otherwise  disclosed  by  the 
record,  the  judgment  will  be  affirmed.'^ 

But  where  the  court  below  excludes  affidavits  filed  in  support'  of  a  mo- 
tion for  a  new  trial,  and  in  passing  upon  the  motion  does  not  exercise  any  dis- 
cretion in  respect  of  the  matters  stated  therein,  if  due  exception  is  taken,  the 
question  of  the  admissibility  of  the  affidavits  may  be  reviewed  by  this  court  on 
writ  of  error.'* 


statute  by  an  appellate  court,  and  on  ap- 
peal, cannot  withdraw  the  case  from  the 
operation  of  the  principles  which  control 
this  court.  Sparrow  v.  Strong,  3  Wall. 
97,  105,  18  L.   Ed.  49. 

"It  is  well  settled  that  this  court  will 
not  revise  the  opinion  of  a  circuit  court, 
either  granting  or  rejecting  a  motion  for 
a  new  trial;  but  the  exception  to  the 
charge  of  the  judge,  although  taken  after 
a  motion  for  a  n€w  trial,  may  have  been 
and  probably  was  reserved  at  the  time  the 
charge  was  given,  and  will  therefore  be 
considered."  Blunt  v.  Smith.  7  Wheat. 
272,  5   L.   Ed.   446,  452. 

"Equally  beyond  our  authority  to  re- 
view, upon  a  writ  of  error  sued  out  by  a 
party  against  whom  a  verdict  is  rendered, 
is  an  order  overruling  a  motion  for  a  new 
trial,  after  the  plaintiff,  with  leave  of  the 
court,  has  remitted  a  part  of  the  verdict. 
Whether  the  verdict  should  be  entirely 
set  aside  upon  the  ground  that  it  was 
excessive,  or  was  the  result  of  prejudice, 
or  of  a  reckless  disregard  of  the  evidence 
or  of  the  instructions  of  the  court,  or 
whether  the  verdict  should  stand  after 
being  reduced  to  such  amount  as  would 
relieve  it  of  the  imputation  of  being  ex- 
cessive, are  questions  addressed  to  the 
discretion  of  the  court,  and  cannot  be  re- 
viewed at  the  instance  of  the  party  in 
whose  favor  the  reduction  was  made." 
Arkansas  Val.,  etc.,  Co.  v.  Mann,  130  U.  S. 
69,    75,    33    L.    Ed.    854. 

An  application  for  a  new  trial,  on  mo- 
tion after  verdict,  addresses  itself  to  the 
sound  discretion  of  the  court;  and  if,  upon 
the  whole  case,  the  verdict  is  substantially 
right,  no  new  trial  will  be  granted,  al- 
though there  may  have  been  some  mis- 
takes committed  on  the  trial.  The  ap- 
plication is  not  a  matter  of  absolute 
right,  but  rests  in  the  judgment  of  the 
court,  and  is  to  be  granted  only  in  further- 
ance of  justice.  On  a  writ  of  error,  bring- 
ing the  proceedings  on  the  trial,  by  bill 
of  exceptions,  to  the  cognizance  of  the 
appellate  court,  the  directions  of  the  court 
below  must  then  stand  or  fall,  upon  their 
own  intrinsic  propriety,  as  matters  of 
law.  M'Lanahan  z'.  Universal  Ins.  Co.,  1 
Pet.  170,  7  L.  Ed.  98,  99. 


Settlement     of    private     land     claims.^ 

The  district  court,  in  the  exercise  of  its 
jurisdiction,  under  an  act  entitled  "An 
act  to  a.scertain  and  settle  the  private  land 
claims  in  the  state  of  California,"  ap- 
proved March  3,  1857  (9  Stat.  631),  ren- 
dered a  decree  Nov.  12.  1859,  rejecting  the 
claim  of  A.  He  died  Jan.  22,  1869,  and 
his  executrix  was.  by  an  order  of  the 
court  entered  April  3.  1875.  permitted  to 
become  the  party  claimant  of  the  land. 
She  thereupon  moved  for  a  new  trial  and 
the  reversal  of  the  decree.  The  motion 
was  overruled;  and,  on  the  same  day,  an 
appeal  was  allowed  her  from  the  decree 
and  from  the  order  refusing  a  new  trial. 
Held,  that  no  appeal  lies  from  the  order 
refusing  a  new  trial.  Cambuston  zi. 
United  States,  95  U.  S.  285,  24  L  Ed 
448. 

Judgment  of  affirmance.— This  court 
will  not  take  jurisdiction  of  a  judgment 
shown  by  the  context  of  the  record  to 
be  but  an  order  affirming  a  refusal  of  a 
court  below  to  grant  a  new  trial;  even 
though  the  language  of  the  record  of  af- 
firmance brought  here  by  the  writ  of  er- 
ror purports  to  affirm  generally  the  judg- 
ment of  a  court  inferior  to  the  affirming 
court,  and  the  only  judgment  in  strict 
language,  in  the  record  of  such  inferior 
court,  is  a  general  judgment.  Sparrow 
V.  Strong,  3  Wall  103.  105,  18  L.   Ed.  49. 

When  the  judgment  brought  before  this 
court  by  writ  of  error  purports  to  affirm 
generally  the  judgment  of  a  court  in- 
ferior to  the  affirming  court;  and  the  only 
judgment  in  the  record  of  such  inferior 
court  is  a  general  judgment;  this  court 
will  take  jurisdiction,  though  an  appeal 
has  also  been  taken  in  the  inferior  court, 
under  state  laws,  upon  a  motion  refusing 
a  new  trial,  and  there  ,"re  some  indica- 
tions in  the  record  that  this  affirmance 
was  intended  to  be  of  that  refusal.  Spar- 
row V.  Strong,  3  Wall.  103,  '105,  18  L. 
Ed.  49. 

76.  Ayers  v.  Watson,  137  U.  S.  584,  34 
L.    Ed.    R03. 

77.  Kerr  v.  Clampitt,  95  U.  S.  188,  24 
L.    Ed.   493. 

78.  Mattox  V.  United  States,  146  U.  S. 
140,    36    L.    Ed.    917,    distinguished    from 


1000 


APPEAL  AXD  ERROR. 


b.  Binding  Effect  of  State  Practice. — Furthermore,  the  rule  that  according  to 
the  practice  of  the  courts  of  the  United  States,  the  overruHng  of  a  motion  for  a 
new  trial  is  a  matter  of  discretion  and  not  a  subject  of  exception,  is  independent 
of  any  statute  or  practice  prevailing  in  the  courts  of  the  state,  in  which  the  trial 
is  had."9 

c.  Effect  of  Uniformity  Act. — The  fifth  section  of  the  act  of  congress  of  June 
1,  1872  (17  Stat.  197),  was  not  intended  to  abrogate  the  established  law  of  the 
courts  of  the  United  States,  that  to  grant  or  refuse  a  new  trial  rests  in  the  sound 
discretion  of  the  court  to  which  the  motion  is  addressed,  and  that  the  result  can- 
not be  made  the  subject  of  review  by  writ  of  error. ^"^ 

d.  Rule  in  Territorial  Courts. — Under  the  practice  act  of  the  territory  of  Utah, 
an  appeal  will  lie  to  this  court  from  the  refusal  of  the  territorial  court  to  grant 
a  new  trial. ^^  Under  the  laws  of  Nevada,  appeals  are  allowed  from  orders 
granting  or  refusing  new  trials. '^- 

26.  Open  and  Close. — The  action  of  the  court  below  in  ordering  the  argu- 
ment cannot  be  assigned  as  error.  It  is  purely  a  question  of  practice  and  does 
not    affect    the    merits    of    the    controversy. ^^ 


Haws  V.  Victoria  Copper  Min.  Co.,  160 
U.  S.  303,  313.  40  L.  Ed.  436.  on  the 
ground  that  "that  case  involved  a  refusal 
to  exercise  discretion,  whilst  the  conten- 
tion here  amounts  to  the  assertion  of  a 
right  to  control  a  discretion  when  it  has 
been   lawfully   exerted." 

79.  Binding  effect  of  state  practice. — 
Missouri  Pac.  R.  Co.  v.  Chicago,  etc.,  R. 
Co.,  132  U.  S.  191,  32  L.  Ed.  309,  citing 
Imdianapolis,  etc.,  v.  Horst,  93  U.  S.  291, 
23  L.  Ed.  898;  Newcomb  v.  Wood,  97  U. 
S.  581,  24  L.  Ed.  1085;  Chateaugay  Ore, 
etc.,  Co.  V.  Petitioner,  128  U.  S.  544,  32 
L.   Ed.   508. 

Ordinarily  a  writ  of  error  or  an  appeal 
will  not  lie  for  the  purpose  of  revising 
and  controlling  the  exercise  of  the  dis- 
cretion in  granting  or  refusing  to  grant  a 
motion  for  a  new  trial  by  an  appellate 
tribunal;  yet  in  some  of  the  states  a  con- 
trary practice  prevails,  and  a  writ  of  er- 
ror is  authorized  to  bring  up  for  review 
the  proceedings  and  judgment  of  an  in- 
ferior court,  on  which  it  may  be  assigned 
as  an  error  in  law,  upon  a  bill  of  excep- 
tions setting  forth  the  whole  evidence, 
that  the  court  below  erred  in  not  grant- 
ing a  new  trial  because  the  verdict  was 
against  the  weight  of  the  evidence.  Such 
a  practice  in  the  appellate  courts  of  the 
United  States  is  perhaps  forbidden  by  the 
seventh  amendment  to  the  constitution  of 
the  United  States,  declaring  that  "no  fact 
tried  by  a  jury  shall  be  otherwise  re- 
examined in  any  court  of  the  United 
States  than  according  to  the  rules  of  the 
common  law."  Metropolitan  R.  Co.  z'. 
Moore,  121  U.  S.  558,  573.  30  L.  Ed.  1022. 

An  appeal  lies  to  the  general  term  of 
the  supreme  court  of  the  District  of  Co- 
lumbia from  a  denial  by  that  court  in 
special  term  of  a  motion  for  a  new  trial, 
made  on  the  ground  that  the  verdict  was 
against  the  weight  of  evidence;  but  the 
legal  discretion  of  that  court  respecting 
the  disposition  of  such  a  motion  is  not 
reviewable    in   this   court.      Stewart  v.    El- 


liott, 2  Mackey  307,  overruled  on  the 
ground  that  "the  construction  of  the  stat- 
ute (in  that  case)  overlooks  the  operation 
and  efifect  of  §  772.  By  that  section  an 
appeal  will  lie  from  the  special  to  the 
general  term  from  any  order,  judgment, 
or  decree,  'if  the  same  involve  the  merits 
of  the  action  or  proceeding.'  Certainly, 
motions  for  a  new  trial  upon  grounds 
other  than  those  recited  in  §  804  are  in- 
cluded in  this  description."  Metropolitan 
R.  Co.  V.  Moore,  121  U.  S.  558,  564,  30  L.. 
Ed.   1022. 

80.  Effect  of  uniformity  act. — Nudd  v. 
Burrows,  91  U.  S.  426,  23  L.  Ed.  286;  In- 
dianapolis, etc..  R.  Co.  V.  Horst,  93  U. 
S.  291,  23  L.  Ed.  898;  Newcomb  v.  Wood, 
97   U.    S.    581,   24    L.    Ed.    1085. 

81.  Rule  in  territorial  courts. — Gray  v. 
Howe,  108   U.   S.   12,   27   L.   Ed.   634. 

By  the  system  of  procedure  in  civil 
cases  adopted  in  Utah,  an  appeal  lies 
to  its  supreme  court  from  an  order  of 
its  district  courts  granting  or  refusing  a 
new  trial,  as  well  as  from  a  final  judg- 
ment. Kerr  v.  Clampitt.  95  U.  S.  188,  189, 
24  L.   Ed.   493. 

82.  Sparrow  v.  Strong,  4  Wall.  584, 
595,    18    L.    Ed.    410. 

83.  Open  and  close. — Day  v.  Wood- 
worth,  13  How.  363.  14  L.  Ed.  181;  Hall 
r.  Weare,  92  U.  S.  728,  23  L.  Ed.  500; 
Lancaster  v.  Collins,  115  U.  S.  222,  29  L- 
Ed.   373. 

The  decision  of  a  court  below,  grant- 
ing counsel  the  right  to  open  and  close 
arguments  to  a  jury,  will  not  be  reviewed 
here.  Hall  v.  Weare,  92  U.  S.  728.  23  L. 
Ed.    500. 

Where  an  action  of  trespass  quare 
clausum  fregit  was  brought,  and  the  de- 
fendants justified,  and  the  court  allowed 
the  defendants,  upon  the  trial,  to  open 
and  close  the  argument,  this  ruling  of  the 
court  is  not  a  proper  subject  for  a  bill 
of  exceptions.  Day  v.  Woodworth,  13 
How.    363.    14   L.    Ed.    181. 


APPEAL  AND  ERROR.  1001 

27.  PlEadi.n'gs — a.  Supplemental  Pleadings. — The  refusal  of  the  circuit  court 
to  permit  a  supplemental  bill  or  answer  to  be  filed,  is  a  matter  of  discretion  in 
the  court ;  and  it  afifords  no  ground  for  the  reversal  of  the  decree.** 

b.  Allowan<:e  of  Xezv  and  Additional  Pleas. — The  granting  or  refusal  of  leave 
to  file  an  additional  plea  is  discretionary  with  the  court  below,  and  not  reviewable 
by  this  court,  except  in  a  case  of  gross  abuse  of  discretion. ^^  q^j-^g  refusal  of  an 
inferior  court  to  allow  a  new  plea  to  be  filed  cannot  be  assigned  as  error. ^^ 

c.  Filing  Pleadings. — Removal  of  Causes. — Whether  or  not  on  the  trans- 
fer of  a  case  from  a  state  court  to  a  federal  court,  under  the  12th  section  of  the 
judiciary  act,  a  new  declaration  should  be  filed,  is  a  question  of  practice  and  not  a 
subject  for  error.*" 

Time  of  Filing  Pleadings. — An  order  of  court  refusing  to  grant  further 
time  to  effect  an  answer,  is  a  discretionary  order  and  not  appealable.**  A  mo- 
tion to  file  an  answer  after  default  is  generally  addressed  to  the  discretion  of  the 
•court.  Under  some  circumstances,  the  court,  for  the  purposes  of  justice,  will  go 
great  lengths  in  opening  a  default  and  allowing  a  plea  to  be  filed.  But  this  is 
done  or  refused  by  the  court,  in  the  exercise  of  its  discretion,  which  is  not  sub- 
ject to  the  revision  of  this  court.^"  It  is  exceedingly  disputable  whether  it  is 
an  abuse  of  discretion  to  deny  a  motion  to  file  an  amended  bill  after  final  judg- 
ment has  been  entered.^ ^ 

Refusal  of  Leave  to  File. — Since  it  is  clearly  within  the  discretion  of  the 
court  below  to  refuse  leave  to  file  a  cross  bill,  sucli  action  cannot  be  assigned  as 
error. ^-  An  assignment  of  error  that  the  court  erred  in  refusing  leave  to  file 
a  plea,  during  the  progress  of  the  trial,  on  the  question  of  the  plaintiff's  citizen- 
ship, and  refusing  to  permit  issue  to  be  joined  thereon,  relates  to  matters  purely 
within  the  discretion  of  the  trial  court,  and  is  therefore  of  no  avail. ^^ 

d.  Order  to  Make  More  Definite  and  Certain. — It  would  seem  that  an  order 
directing  an  answer  to  be  made  more  specific  is  one  depending  upon  the  discre- 
tion of  the  court,  and  therefore  is  not  appealable.^* 

e.  IVithdrazval  and  Striking  Out  Pleadings. — Withdrawal  of  Pleadings. — 
In  overruling  a  motion  for  leave  to  withdraw  a  replication  and  file  a  new  one, 
the  court  exercises  its  discretion;  and  the  reason  assigned,  as  influencing  that  dis- 
cretion, cannot  affect  the  decision. ^^     It  is  discretionary  with  the  United  States 

84.  Supplemental  pleadings. — Dean  v.  in  this  court.  Spencer  v.  Lapsley.  20 
Mason.  20  How.   198,   15  L.   Ed.   876;   Har-        How.    264,    15    L.    Ed.    902. 

din  V.  Boyd,  113  U.  S.  756,  28  L.  Ed.  1141;  87.    Filing  pleadings.— Insurance   Co.   v. 

Jones   V.    Mechan,    175   U.  S.   1,   28,   44   L.  Weide.  9  Wall.  677,  19  L.  Ed.  810. 

Ed.    49.  88.    Fuller  v.   Claflin,  93   U.   S.   14,  23   L. 

85.  Allowance    of    new  and    additional  Ed.   785. 

pleas. — Gormley  v.   Bunyan,  138  U.   S.  623,  90.    Dean  v.  Alason.  20  How.  198,  15  L. 

34   L.   Ed.   1086,  citing  Mandeville  v.  Wil-  Ed.    878. 

son.   5   Cranch   15,  S   L.   Ed.   23;   Chapman  After  a  bill  is  taken  pro  confesso  in  the 

V.  Barney.   129  U.  S.  677,  32  L.   Ed.  800.  circuit    court,    a    motion    to    allow   an    an- 

Permittinj?  or  denying  a  further  answer  swer  to   be   filed   is   addressed   to   the   dis- 

by   a   defendant   is   discretionary   with    the  cretion   of   the   court;   and   from   a   refusal 

trial  court,  and  the  supreme  court   of  the  so   to   do,   an   appeal   does   not   lie   to   this 

United    States    cannot   review   a   judgment  court.      Dean   v.    Mason,   20   How.    198,    15 

of   the    circuit    court    exercising   such    dis-  L.   Ed.  876. 

cretion.      Vicksburg    v.    Waterworks    Co.,  91.    Brown  v.  Schleier,  194  U.  S.  18,  25. 

202  U.  S.  453.  50  L.  Ed.  1102;  Chapman  v.  48    L.    Ed.    857. 

Barney,  129  U.  S.  677,  681.  32  L.   Ed.  800,  92.     Indiana    Southern   R.    Co.   v.    Liver- 

801;  Dean  v.  Mason,  20  How.  198,  204,  15  pool,   etc.,    Ins.    Co.,   109  U.    S.    168,   27    L. 

L.  Ed.  876,  878.  Ed.   895. 

86.  Marine    Ins.    Co.     v.      Hodgson,      6  93.    Mexican  Central  R.  Co.  v.  Pinkney, 
Cranch  206,  3   L.   Ed.  200;  Wright  v.  Hoi-  149  U.   S.    194,  37   L.  Ed.   699. 
lingsworth,   1   Pet.   165,   168,   7   L.    Ed.  97;  94.     Order   to    make   more   definite   and 
Embry  v.  Palmer,  107  U.  S.  3,  17,  27  L.  Ed.  certain.— Fuller  v.  Claflin,  93  U.   S.   14,  23 
346.  L.    Ed.    785. 

The   refusal   of   an   inferior   court   to   al-  95.    Withdrawal  and  striking  out  plead- 

low  a  plea  to  be   amended   or  a  new  plea       ings. — United  States  v.   Buford,  3  Pet.   12, 
to  be  filed  cannot  be  questioned  for  error       7  L.   Ed.  585. 


1002 


APPEAL  AND  ERROR. 


circuit  court  to  permit  the  withdrawal  of  intervening  pleadings  and  to  suppress 
evidence  taken  concerning  the  same,  and  such  action  cannot  be  reviewed  by  the 
supreme  court  of  the  United  States.^*' 

Striking  Out  Pleadings. — The  action  of  the  court  below  in  ordering  a  plea 
to  be  stricken  out  on  the  ground  that  it  came  too  late,  is  within  the  discretion  of 
the  circuit  court,  and  cannot  be  revised.^" 

In  like  manner,  an  order  refusing  to  strike  out  an  answer  is  one  depend- 
ing upon  the  discretion  of  the  court,  as  mere  procedure  in  the  cause  and  there- 
fore is  not  appealable.^*  But  an  order  striking  out  an  answer,  is  not  a  mere 
procedure  in  the  cause.  It  is  the  ending  of  the  cause,  leaving  the  action  unde- 
fended and  with  a  right  to  immediate  judgment.  Such  an  order  has  often  been 
held  to  be  appealable. ^^ 

28.  Prohibition.— It  is  often  said  that  the  granting  or  refusing  of  a  writ  of 
prohibition  is  discretionary,  and  therefore  not  the  subject  of  a  writ  of  error. 
That  may  be  true,  where  there  is  another  legal  remedy,  by  appeal  or  otherwise, 
or  where  the  question  of  the  jurisdiction  of  the  court  whose  action  is  sought  to 
be  prohibited  is  doubtful,  or  depends  on  facts  which  are  not  made  matter  of  rec- 
ord, or  where  a  stranger,  as  he  may  in  E.  ^land,  applies  for  the  writ  of  prohibi- 
tion. But  where  that  court  has  clearly  no  jurisdiction  of  the  suit  or  prosecution 
instituted  before  it,  and  the  defendant  therein  has  objected  to  its  jurisdiction  at 
the  outset,  and  has  no  other  remedy,  he  is  entitled  to  a  writ  of  prohibition  as 
matter  of  right ;  and  a  refusal  to  grant  it,  where  all  the  proceedings  appear  of 
record,  may  be  reviewed  on  error.  This  is  the  clear  result  of  the  modern  Eng- 
lish decisions,  in  which  the  law  concerning  writs  of  prohibition  has  been  more 
fully   discussed   and   explained   than   in   the   older   authorities.^ 

29.  Receivers. — The  removal  or  appointment  of  a  receiver  rests  in  the  sound 


96.  Vicksburg  v.  Waterworks  Co.,  202 
U.  S.  453,  50  L.  Ed.  1102;  Chapman  v. 
Barney,  129  U.  S.  677,  681,  32  L.  Ed.  800, 
801;  Dean  v.  Mason,  20  How.  198,  204,  15 
L.  Ed.  876,  878. 

97.  Burbank  v.  Bigelow,  154  U.  S.,  appx. 
556.  19  L.  Ed.  51,  following  Breedlove  v. 
Nicolet,  7   Pet.   413,  8  L.   Ed.   731. 

Where  in  an  action  brought  by  part- 
ners, the  defendants,  after  issue  taken  on 
pleas  in  bar  of  the  action,  and  on  the 
day  set  for  trial,  filed  a  plea  averring  that 
others  who  were  also  partners  with  the 
plaintiffs  were  not  joined,  it  was  held  that 
the  action  of  the  court  in  striking  out  the 
plea  on  the  ground  that  it  came  too  late 
was  discretionary  with  the  court  below 
and  would  not  be  revised.  Burbank  v. 
Bigelow,    19    L.    Ed.    51. 

After  issue  joined  in  the  district  court, 
the  defendants  filed  a  plea,  that  the  firm 
of  Theodor  Nicolet  &  Company.  the 
plaintiffs,  consisted  of  other  persons,  in 
addition  to  those  named  in  the  writ  and 
petition,  and  that  those  other  persons 
were  citizens  of  Louisiana;  the  court, 
after  receiving  the  plea,  directed  that  it 
be  taken  from  the  files  of  the  court. 
Held,  that  this  was  a  proceeding  in  the 
discretion  of  the  court;  and  was  not  as- 
signable as  error,  in  this  court.  Breed- 
love  V.  Nicolet,  7  Pet.  413,  8  L.  Ed.  731. 

98.  Fuller  v.  Claflin,  93  U.  S.  14.  23  L- 
Ed.   785,   citing  4   How.   Pr.   432. 

99.  Fuller  v.  Claflin,  93  U.  S.  14.  23  L- 
Ed.  785,  citing  Mandebaum  v.  The  People, 


8  Wall.  310,  19  L.  Ed.  479;  Hozey  v. 
Bachan,   16   Pet.  215,   10   L.   Ed.  941. 

1.  Prohibition.— Smith  v.  Whitney,  116 
U.  S.  167,  173,  29  L.  Ed.  601;  In  re  Mix. 
166  U.  S.  136,  41  L.  Ed.  948. 

Whether  the  granting  or  refusal  of  the 
writ  of  prohibition  is  discretionary  or  de- 
mandable  of  right  has  been  much  de- 
bated. As  remarked  by  Mr.  Justice  Gray 
in  Smith  v.  Whitney,  116  U.  S.  167,  173, 
29  L.  Ed.  601,  it  may  be  said  to  be  dis- 
cretionary, "where  there  is  another  legal 
remedy,  by  appeal  or  otherwise,  or  where 
the  question  of  the  jurisdiction  of  the 
court  whose  action  is  sought  to  be  pro- 
hibited is  doubtful,  or  depends  on  facts 
which  are  not  made  matter  of  record,  or 
where  a  stranger,  as  he  may  in  England, 
applies  for  the  writ  of  prohibition.  But 
where  that  court  has  clearly  no  jurisdic- 
tion of  the  suit  or  prosecution  instituted 
before  it.  and  the  defendant  therein  has 
objected  to  its  jurisdiction  at  the  outset, 
and  has  no  other  remedy,  he  is  entitled 
to  a  writ  of  prohibition  as  a  matter  of 
right;  and  a  refusal  to  grant  it,  where  all 
the  proceedings  appear  of  record,  may  be 
reviewed  on  error."  But  it  is  clear  upon 
reason  and  authority  that  where  the  case 
has  gone  to  sentence  and  the  want  of  ju- 
risdiction does  not  appear  upon  the  face 
of  the  proceedings,  the  granting  of  the 
writ,  which  even  if  of  right  is  not  of 
course,  is  not  obligatory  upon  the  court, 
and  the  party  applying  may  be  precluded 
by  acquiescence  from  obtaining  it.  In  re 
Cooper,   143  U.   S.  472,  495,  36  L.   Ed.  232. 


APPEAL  AND  ERROR. 


1003 


discretion  of  the  court,  and  is  not  reviewable  here.^ 

30.  Rehearing. — Since  the  application  for  a  rehearing  is  not  founded  in  mat- 
ter of  right  but  is  addressed  to  the  sound  discretion  of  the  court,  the  exercise  of 
that  discretion  cannot  be  assigned  for  error  or  reviewed  in  an  appellate  court.^ 
Or,  as  the  rule  has  been  otherwise  expressed,  a  petition  for  rehearing  is  no  more 
significant  than  a  motion  for  a  new  trial,  which,  as  well  settled,  presents  no  ques- 
tion for  review  in   this  court.* 

31.  Rules  of  Court. — A  rule  of  court  that  "in  causes  tried  by  a  jury,  any 
special  charge  or  instruction  asked  for  by  either  party,  must  be  presented  to  the 
court  in  writing,  directly  after  the  close  of  the  evidence,  and  before  any  argu- 
ment is  made  to  the  jury,  or  it  will  not  be  considered,"  is  a  reasonable  rule;  and 
the  enforcement  or  disregard  of  it  is  matter  of  discretion  with  the  court  making  it, 
and,  therefore,  not  the  subject  of  a  writ  of  error. ^ 

32.  Salvage. — This  court  is  not  in  the  habit  of  revising  decrees  as  to  the 
amount  of  salvage,  unless  upon  some  clear  and  palpable  mistake,  or  gross  over 
allowance  of  the  court  below.  It  is  equally  against  sound  policy  and  public  con- 
venience to  encourage  appeals  of  this  sort  in  matters  of  discretion;  unless  there 


2.  Receivers. — Milwaukee,  etc.,  R.  Co. 
V.  Howard.  131  U.  S.  appx.  Ixxxi,  18  L- 
Ed.  252;  Milwaukee,  etc.,  R.  Co.  v.  Sout- 
ter,  154  U.  S.  540.  38  L.  Ed.  604;  Browson 
V.  LaCrosse,  etc..  R.  Co.,  1  Wall.  405,  17 
L.  Ed.  616;  Quincy,  etc..  R.  Co.  v.  Hum- 
phreys,  145  U.   S.   82,   83,  36  L.   Ed.   632. 

The  appointment  or  discharge  of  a  re- 
ceiver is  ordinarily  matter  resting  wholly 
within  the  discretion  of  the  court  below. 
But  it  is  not  always  and  absolutely  so. 
Thus,  where  there  is  a  proceeding  to  fore- 
close a  mortgage  given  by  a  railroad  cor- 
poration on  its  road,  etc. — a  long  and  ac- 
tively worked  road — (a  sort  of  property  to 
a  control  of  which  a  receiver  ought  not 
to  be  appointed  at  all,  except  from  neces- 
sity), and  the  amount  due  on  the  mort- 
gage is  a  matter  still  unsettled  and 
fiercely  contested,  the  appointment  or 
discharge  of  a  receiver  is  matter  belong- 
ing to  the  discretion  of  the  court  in  which 
the  litigation  is  pending.  But  when  the 
amount  due  has  been  passed  on  and 
finally  fixed  by  this  court,  and  the  right 
of  the  mortgagor  to  pay  the  sum  thus 
settled  and  fixed  is  clear,  the  court  be- 
low has  then  no  discretion  to  withhold 
such  restoration;  and  a  refusal  to  dis- 
charge the  receiver  is  judicial  error,  which 
this  court  may  correct,  supposing  the 
matter  (not  itself  one  in  the  nature  of  a 
final  decree)  to  be  in  any  way  fairly  be- 
fore it  otherwise.  If  other  parties  in  the 
case  set  up  claims  on  the  road,  which 
they  look  to  the  receiver  to  provide  for 
and  protect,  these  other  claims  being  dis- 
puted, and,  in  reference  to  the  main  con- 
cerns of  the  road,  small — this  court  will 
not  the  less  exercise  its  power  of  dis- 
charge. It  will  exercise  it.  however,  un- 
der conditions,  such  as  that  of  the  com- 
pany's giving  security  to  pay  those  other 
claims,  if  established  as  liens.  Milwaukee, 
etc.,  R.  Co.  V.  Soutter,  2  Wall.  609,  17  L. 
Ed.  886. 

3.  Rehearing. — Steines      v.       Franklin 


County,  14  Wall.  15,  20  L.  E.  846;  Buff- 
ington  V.  Harvey,  95  U.  S.  99,  24  L.  Ed. 
381;  Pittsburg,  etc.,  Co.  v.  Heck.  102  U. 
S.  120,  26  L.  Ed.  58;  Boesch  v.  GraflF,  133 
U.  S.  697,  699,  33  L.  Ed.  787;  Roemer  v. 
Bernheim,  132  U.  S.  103,  106,  33  L.  Ed. 
277;  Lewisburg  Bank  v.  Sheflfey.  140  U. 
S  445,  35  L.  Ed.  493;  Brockett  v.  Brock- 
ett.  2  How.  238,  11  L.  Ed.  251;  Kennon 
V.  Gilmer,  131  U.  S.  22,  24,  33  L.  Ed.  110; 
United  States  ?'.  Rio  Grande  Irrigation 
Co.,  184  U.  S.  416,  46  L.  Ed.  619;  Wyle 
V.  Coxe,  14  How.  1,  14  L.  Ed.  301;  Con- 
boy  V.  First  Nat.  Bank,  203  U.  S.  141,  145, 
51    L.    Ed.    128. 

The  granting  or  refnsal,  absolute  or 
conditional,  of  a  rehearing  in  equity,  as 
of  a  new  trial  at  law,  rests  in  the  discre- 
tion of  the  court  in  which  the  case  has 
been  heard  or  tried,  and  is  not  a  subject 
of  appeal.  Roemer  v.  Bernheim,  132  U. 
S.    103,   106,   33   L.   Ed.  277. 

"Necessary  jurisdictional  allegations 
cannot  properly  be  introduced  for  the 
first  time  on  a  motion  for  rehearing,  as 
the  motion  itself  is  one  addressed  to  the 
discretion  of  the  court  and  one  in  which 
the  decisions  of  the  court  in  granting  or 
refusing  it  is  not  subject  to  review  in  an 
appellate  court.  Thomas  v.  Harvie's 
Heirs,  10  Wheat.  151;  Peck  v.  Sanderson, 
18  How.  42.  Such  a  motion  is  not  founded 
in  a  matter  of  right,  but  rests  in  the  sound 
discretion  of  the  court.  Story's  Equity 
Pleading  (7  Ed.),  §§  412,  417;  Brown  v. 
Aspden,  14  How.  25;  Public  Schools  v. 
Walker,  9  Wall.  603,  19  L.  Ed.  650;  United 
States  V.  Knight,  1  Black  488."  Steines  v. 
Franklin  County,  14  Wall.  15,  22,  20  L. 
Ed.  846. 

4.  San  Pedro,  etc.,  Co.  v.  United  States. 
146    U.    S.    120,    137,    36    L.    Ed.    911. 

5.  Rules  of  court. — Life  Ins.  Co.  v. 
Francisco,  17  Wall.  666,  672,  21  L.  Ed. 
683. 


1004  APPEAL  AND  ERROR. 

has  been  some  violation  of  the  just  principles  which  ought  to  regulate  the  sub- 
ject."^ 

33.  Separate  Trials. — A  separate  trial  is  a  matter  of  discretion  in  the  court, 
and  not  of  right  in  the  parties.'^  Therefore,  the  question  whether  defendants 
jointly  indicted  should  be  tried  together  or  separately  is  a  question  resting  in 
the  sound  discretion  of  the  court  below,  and  is  not  reviewable  unless  there  was 
an  abuse  of  such  discretion.^ 

34.  Special  Interrogatories  to  the  Jury. — It  is  within  the  discretion  of 
the  presiding  justice  to  put  inquiries  to  the  jury  as  to  the  grounds  upon  which 
they  found  their  verdict,  and  the  answers  of  the  foreman,  assented  to  by  his  fel- 
lows, may  be  made  a  part  of  the  record,  and  will  have  the  effect  of  special  find- 
ings of  the  facts  stated  by  him.  And  no  exception  lies  to  the  exercise  of  this 
discretion.^  The  submission  of  special  questions  to  the  jury  is,  under  the  Ar- 
kansas statute,  in  the  discretion  of  the  court,  and  therefore  cannot  be  assigned 
for  error. ^'^ 

35.  Surprise. — All  questions  as  to  surprise  are  matters  of  discretion  and  there- 
fore not  reviewable.  ^^ 

36.  Venditioni  Exponas. — A  writ  of  error  will  not  lie  to  a  circuit  court  of 
the  United  States  to  revise  its  decisions  in  refusing  to  grant  a  writ  of  vendi- 
tioni exponas  issued  on  a  judgment  obtained  in  that  court.  A  writ  of  error  does 
not  lie  in  such  a  case.^^ 

37.  Appeal  and  Supersedeas  Bond. — The  mode  of  taking  th€  security,  and 
ttie  time  for  perfecting  it,  are  within  the  discretion  of  the  court  below,,  and  this 
court  will  not  interfere  with  the  exercise  of  that  discretion.^?  This  court  will 
not  interfere  with  the  discretion  exercised  by  the  judge  below  as  to  the  amount 
of  a  supersedeas  bond  as  well  as  the  sufficiency  of  the  security.^"' 

38.  Review  of  Action  of  Court  in  Expressing  Opinion  upon  Facts. ^^ — 
It  is  no  longer  an  open  question  that  a  judge  of  a  court  of  the  United  States,  in 
submitting  a  case  to  the  jury,  may,  in  his  discretion,  express  his  opinion  upon  the 
facts ;  and  that  "when  no  rule  of  law  is  incorrectly  stated,  and  all  matters  of  fact 
are  ultimately  submitted  to  the  determination  of  the  jury,"  such  expressions  of 
opinion  are  not  reviewable  on  writ  of  error.  ^^ 

39.  Acts  of  Officers  of  the  Various  Departments. — In  General. — Where 
congress  has  committed  to  the  head  of  a  department  certain  duties  requiring 
the  exercise  of  judgment  and  discretion,  his  action  thereon,  whether  it  involve 

6.  Salvage. — Hobart  v.  Drogan,  10  Pet.  12.  Venditioni  exponas. — Boyle  z*.  Zacha- 
108,    9    L.    Ed.    363;    Irvine   V.    Hesper,    122        rie,  6   Pet.  635,  646,   8  L.   Ed.   527,  532. 

U.  S.  256,  30  L.  Ed.  1075.  13.    Appeal  and  supersedeas  bond. — The 

A    noncommissioned    captor     can     only  Dos    Hernianos,    10  Wheal.   306,   6   L.    Ed. 

proceed  in  the  prize  court  as  for   salvage.  328. 

the  amount  of  which  is  discretionary.  The  14.     Jerome    v.    McCarter,    21    Wall.    17, 

appellate    court    will    not    interfere    in    the  22    L.    Ed.    515. 

exercise    of    this    discretion,     as      to      the  15.    See   the   title   INSTRUCTIONS, 

amount    of    salvage    allowed,    unless    in    a  16.    Vicksburg,   etc.,    R.    Co.   v.    Putnam, 

very    clear    case    of    mistake.       The     Dos  118   U.    S.   545,   553,   30   L.     Ed.      257;      St. 

Hermanos.  10  Wheat.  306,  6  L-  Ed.  328.  Louis,   etc..   R.    Co.   v.   Vickers,   122   U.   S. 

7.  Separate  trials.— United  States  v.  360,  30  L.  Ed.  1161;  United  States  v. 
Marchant.  12  Wheat.  480,  6  L.  Ed.   700.  Reading  R    Co.,  123  US.  113,  114,  31   L. 

8.  United  States  v.  Ball,  163  U.   S.   662,  Ed.    138;    Rucker    v.    Wheeler,    127    U.    S. 

41    L.    Ed.   300,   citing    United     States     v.  85,  93,   32   L.   Ed.   102;   Carver  v.  Jackson. 

Marchant,    12   Wheat.   480,   6    L.    Ed.    700;  4  Pet.  1,  7  L.  Ed.  761;  Magniac  t'.  Thomp- 

Sparf  V.   United   States,   156   U.   S.   51,    58,  son,  7  Pet.  348,   8  L.   Ed.   709;   Mitchell  v. 

38   L     Ed     343.  Harmony.    13    How.    115,    14    L.    Ed.    75; 

„     c        •  ,  •  \  >.     •       ...     it.      •  Transportation    Line    v.    Hope.    95    U.    S. 

9     Special  interrogatories  to  the  jury.-      .^      <,^  ^    ^^    ^^       ^^^^  ^-Burrows,  91 

^y^L^^'roo-   FoT^fT   ^^'flJ^'^'"'^^-   ^^^       U.    S.    426,    23    L.    Ed.    286;    Indianapolis, 
U.    S.    503,   597,   31    L.    Ed.    837.  ^^^^   ^    ^^    ^    jj^^.^^^   93  ^    g    ^g^    ^3    ^ 

10.  Grimes  Dry  Goods  Co.  v.  Malcolm,  g^j  ggg;  Lovejoy  v.  United  States,  128 
164  U.  S.  483.  41   L.   Ed.  524.  U.  S.  171,  173,  32  L.   Ed.   389;      Baltimore, 

11.  Surprise. — Ames  v.  Guinby,  106  U.  r+'-..  R.  Co.  v.  First  Baptist  Church,  137 
S.  342,  27  L.   Ed.  100.  U.   S.  568,  34  L.  Ed.  784. 


APPEAL  AND  ERROR.  1005 

questions  of  law  or  fact,  will  not  be  reviewed  by  the  courts,  unless  he  has  ex- 
ceeded his  authority  or  this  court  should  be  of  opinion  that  his  action  was  clearly 
wrong.i^  The  rule  upon  this  subject  may  be  summarized  as  follows:  That 
where  the  decision  of  questions  of  fact  is  committed  by  congress  to  the  judg- 
ment and  discretion  of  the  head  of  a  department,  his  decision  thereon  is  con- 
clusive ;  and  that  even  upon  mixed  questions  of  law  and  fact,  or  of  law  alone, 
his  action  will  carry  with  it  a  strong  presumption  of  its  correctness,  and  the 
courts  will  not  ordinarily  review  it,  although  they  may  have  the  power,  and  will 
occasionally  exercise  the  right  of  so  doing. ^^ 

Secretary  of  Navy. — This  court  cannot  entertain  an  appeal  from  the  deci- 
sion of  the  secretary  of  the  navy,  nor  revise  his  judgment,  in  any  case  wdiere  the 
law  authorized   him   to   exercise  his   discretion  or  judgment. ^^ 

Secretary  of  Treasury. — A  power  intrusted  by  the  act  of  congress  of  March 
3.  1797,  and  that  of  June  3,  1864.  as  amended  in  its  179th  section  by  the  act  of 
March  3,  1865,  to  the  secretary  of  the  treasury  to  remit  penalties,  is  one  for  the 
exercise  of  his  discretion  in  a  matter  intrusted  to  him  alone,  and  admits  of  no 
appeal  to  the  court  of  claims  or  to  any  other  court. -f* 

The  decisions  of  the  postmaster  general,  imposing  forfeitures  because  of 
the  failure  of  the  contractor  to  cause  the  mail  to  be  carried  between  the  termini 
within  the  time  prescribed,  are  not  subject  to  review  by  this  court,  where  by 
the  terms  of  the  contract  it  is  within  his  discretion.-^ 

As  the  board  of  appraisers,  appointed  to  reappraise  imported  goods, 
is  vested  with  powers  of  a  quasi  judicial  character,  "no  reason  is  perceived  for 
excluding  this  beard  of  appraisers  fi^om  the  benefit  of  the  general  rule  appli- 
cable to  such  officers,  that  some  presumption  is  to  be  indulged  in  favor  of  the 
propriety  and  legality  of  their  action,  and  that,  Avith  respect  to  their  methods  of 
procedure,  'they  are  vested  with  a  certain  discretion  which  will  be  respected  by 
the  courts,  except  where  such  discretion  has  been  manifestly  abused,  and  the 
board  has  proceeded  in  a  wanton  disregard  of  justice  or  of  the  rights  of  the  im- 
porter."-^ 

E.  Reviev/  of  Questions  of  Fact — 1.  In  General. — In  common-law  cases, 
it  is  the  ruling  of  the  inferior  court  on  the  law  alone  which  this  court  is  authorized 
to  review.--'  No  point  has  been  more  repeatedly  and  authoritatively  settled,  than 
that  this  court  will  not,  upon  a  writ  of  error,  revise  or  give  judgment  as  to  the 
facts,  but  takes  them  as  found  by  the  court  below,  and  as  they  are  exhibited  by 
the  record.-'*     It  is  not  the  province  of  this  court  to  review  a  determination  by 

17.  Acts  of  officers  of  the  various  de-  20.  Secretary  of  treasury. — Dorsheimer 
partments  in  general. — Decatur  t'. .  Pauld-  v.  United  States,  7  Wall.  166.  19  L.  Ed. 
ing.   14   Pet.  497,   10  L.   Ed.   .559;   Riverside        187. 

Oil   Co.  V.   Hitchcock,   190  U.   S.   316,  324,  21.    Allman   r.  United   States.   131  U.   S. 

47  L.  Ed.  1073;  Marquez  v.  Frisbie.  101  U.  31,  33  L.  Ed.  51,  citing  Chicago  R.  Co. 
S.  473,  9.5  L.  Ed.  800;  Gaines  v.  Thomp-  v.  United  States,  127  U.  S.  406.  32  L.  Ed. 
son,  7  Wall.  347,  19  L.  Ed.  62;  United  180;  Eastern  R.  Co.  v.  United  States.  129 
States   z:    Black,    128    U.    S.    40,    32   L.    Ed.  U.   S.  391,  32  L.  Ed.  730. 

346;    Redfield   v.   Windom,   137   U.    S.    636,  Findings  of  fact  by  the  postmaster  gen- 

34  L.   Ed.   811;   Bates  v.   Payne,  194  U.   S.  eral   are   conclusive.      Bates   r.   Payne,   194 

106.    108,    48    L.    Ed.    894.  U.    S.    106.   48    L.    Ed.    894. 

Where    it    has    been     judicially      deter-  22.     Earnshaw  v.   United   States,   146   U. 

mined    by    a    board    of    inquiry    and    the  S.  60.  36  L.   Ed.  887. 

secretary  of  labor  and  commerce  that  an  23.  Review  of  questions  of  fact  in  gen- 
immigrant  is  an  anarchist,  within  the  act  eral. — Barne}^  v.  Schmeider.  9  Wall.  248, 
of  March  3rd,  1903,  and  there  exists  evi-  251,  19  L.  Ed.  648;  The  San  Pedro,  2 
dence  on  which  to  base  their  judgment,  Wheat.  132,  4  L.  Ed.  202,  203;  Generes  v. 
the  exclusion  or  deportation  of  the  immi-  Campbell.  11  Wall.  193.  20  L.  Ed.  110;  An- 
grant.  unlawfully  in  this  county,  will  not  des  z:  Slauson,  130  U.  S.  435,  32  L.  Ed.  989; 
be  reviewed  on  the  facts.  Turner  v.  Wil-  Parks  v.  Turner.  12  How.  39,  13  L.  Ed. 
Hams,   194  U.   S.  279,  48   L.   Ed.   979.  88-?;   Retzer  z:  Wood.  109  U.   S.  185,  27   L- 

18.  Bates  v.  Payne,   194   U.   S.   106,   109,  Ed.    900;    Norris   z:   Jackson,   9   Wall.    125, 

48  L.    Ed.   894.  19  L.   Ed.  608. 

19.  Secretary  of  navy. — Decatur  v.  24.  Rev.  Stats.,  1011;  Penhallow  v. 
Paulding,    14   Pet.   497,    10   L.   Ed.    559.                Doane,    3     Dall.    89,     102,    1    L.     Ed.     522; 


1006 


APPEAL  AND  ERROR. 


the  jury  of  questions  of  fact,  or  to  examine  the  testimony  further  than  to  see 


Wiscart  r.  Dauchy,  3  Dall.  321,  327,  1  L- 
Ed.  619;  Jennings  z'.  The  Perseverance,  3 
Dall.  336,  1  L.  Ed.  625;  Talbot  v.  Seeman, 
1  Cranch  1,  38,  2  L-  Ed.  15;  Fau  v.  Bober- 
deau,  3  Cranch  174,  177,  2  L.  Ed.  402 ;  Dunlop 
V.  Monroe,  7  Cranch  242,  270,  3  L.  Ed.  329; 
United  States  v.  422  Casks  of  Wine,  1  Pet. 
547,  550,  7  L.  Ed.  257;  Clark  v.  Fredericks, 
105  U.  S.  4,  26  L.  Ed.  938;  Vicksburg.  etc., 
R.  Co.  V.  Putnam,  118  U.  S.  545,  553.  30 
L.  Ed.  257;  Bessette  v.  Conkey  Co.,  194 
U.  S.  324,  48  L.  Ed.  997;  In  re  Lewis,  202 
U.  S.  614,  50  L.  Ed.  1172;  Parks  v.  Turner, 
12  How.  39.  43,  13  L.  Ed.  883;  Arthurs  v. 
Hart,  17  How.  6,  12,  15  L.  Ed.  30;  Lan- 
fear  v.  Hunley,  4  Wall.  204.  209,  18  L.  Ed. 
325;  Generes  v.  Campbell.  11  Wall.  193, 
20  L.  Ed.  110;  Jefifries  v.  Mutual  Life  Ins. 
Co.,  110  U.  S.  305,  309,  28  L  Ed.  156 ;  Dower 
V.  Richards,  151  U.  S.  658,  666,  38  L-  Ed. 
305;  Wilson  v.  Everett,  139  U.  S.  616.  35 
L.  Ed.  286;  The  Abbotsford,  98  U.  S.  440, 
25  L.  Ed.  168;  Zeckendorf  v.  Johnson,  123 
U.  S.  617,  618.  31  L.  Ed.  277;  Lincoln  v. 
Power,  151  U.  S.  436,  38  L.  Ed.  224;  Miles 
V.  United  States.  103  U.  S.  304,  26  L.  Ed. 
481;  United  States  v.  Dawson,  101  U.  S. 
569,  25  L.  Ed.  791;  St.  Louis  v.  Rutz,  138 
U.  S.  226,  34  L.  Ed.  941;  Runkle  v.  Burn- 
ham,  153  U.  S.  216.  225,  3^  L.  Ed.  694; 
Parsons  v.  Armor,  3  Pet.  413,  7  L.  Ed. 
724j  McKinley,  etc.,  Min.  Co.  v.  Alaska, 
etc.,  Min.  Co.,  183  U.  S.  563,  46  L.  Ed.  331; 
Walnut  V.  Wade,  103  U.  S.  683,  688,  26 
L.  Ed.  526. 

H  upon  the  facts  found  by  the-  circuit 
court  the  decree  appealed  from  is  right, 
that  finding  is  conclusive  upon  us.  Steam- 
boat Louisville  v.  Halliday,  154  U.  S.  657, 
25  L.  Ed.  771,  citing  The  Abbotsford,  98 
U.  S.  440,  25  L.  Ed.  168. 

The  decision  of  a  jury  on  the  question 
of  fact  fairly  submitted  to  them,  is  not 
subject  to  review  in  this  court.  Packet 
Co.  V.  McCue,  17  Wall.  508,  21  L-  Ed.  705. 

The  facts  found  by  the  circuit  court  are 
not  open  to  review  in  this  court,  and  we 
can  only  consider  questions  of  law  aris- 
ing upon  the  trial,  and  duly  presented  by 
bill  of  exceptions,  and  errors  of  law  appar- 
ent on  the  face  of  the  pleadings.  Insurance 
Co.  V.  Folsom.  18  Wall.  237,  154  U.  S. 
657,  21  L.  Ed.  827;  Cooper  v.  Omohundro, 
19  Wall.  65.  22  L.  Ed.  47;  Jessup  v.  United 
States,   106  U.   S.  147,  150. 

Assignments  of  error  to  rulings  of  the 
■court  below  upon  its  finding  of  particu- 
lar facts;  and  to  its  refusal  to  find  other 
facts,  are  not  open  to  review  here;  they 
can  be  considered  only  by  the  court  be- 
low. Stanley  v.  Supervisors  of  Albany, 
121  U.  S.  535,  547,  30  L.  Ed.  1000. 

Whether  the  evidence  before  a  jury 
■does  or  does  not  sustain  the  allegations 
in  a  case  is  a  matter  wholly  within  the 
province  of  the  jury,  and  if  they  find  in 
one   way,   this    court    cannot    review    their 


finding.     Gregg  v.   Moss,  14  Wall.   564,  20 
L.  Ed.  740. 

The  determination  by  the  court  below 
of  questions  as  to  the  effect  of  evidence 
and  the  burden  of  proof,  even  if  necessary 
to  the  decision  of  the  case,  is  final  and  J 
cannot  be  re-examined  here.  Marsh  v.  ^ 
Citizens'  Ins.  Co..  131  U.  S.  appx.  cxiii, 
25   L.   Ed.  9. 

This  court  will  not  examine  evidence  to 
ascertain  whether  a  jury  was  justified  in 
finding,  as  it  has  done,  on  an  issue  of  fact. 
Express  Co.  v.  Ware,  20  Wall.  543,  22  L. 
Ed.   422. 

In  Hyde  v.  Booraem,  16  Pet.  169,  10  L. 
Ed.  925.  this  court  say:  "We  cannot  upon 
a  writ  of  error  revise  the  evidence  in  the 
court  below,  in  order  to  ascertain  whether 
the  judge  rightly  interpreted  the  evidence, 
or  drew  right  conclusions  from  it.  That 
is  the  proper  province  of  the  jury,  or  of 
the  judge  himself,  if  the  trial  by  jury  is 
waived.  The  court  can  only  re-examine 
the  law  so  far  as  he  has  pronounced  it  on 
a  state  of  facts,  and  not  merely  on  the 
evidence  of  facts  found  in  the  record  in 
the  making  of  a  special  verdict  or  an  agreed 
case.  If  either  party  in  the  court  below 
is  dissatisfied  with  the  ruling  of  the  judge 
in  a  matter  of  law,  that  ruling  should  be 
brought  before  the  supreme  court,  by  an 
appropriate  exception,  in  the  nature  of  a 
bill  of  exceptions,  and  should  not  be  mixed 
up  with  supposed  conclusions  in  matters 
of  fact."  See,  also.  Minor  v.  Tillotson,  2 
How.  392.  394,  11  L.  Ed.  312,  and  United 
States  V.  King,  7  How.  833,  12  L.  Ed.  934; 
Prentice  v.  Zane,  8  How.  470,  485,  13  L. 
Ed.    1160. 

This  court  has  no  authority  to  review 
on  bill  of  exceptions  rulings  of  a  judge  of 
the  circuit  court  at  the  trial  of  an  action 
at  law,  had  before  him  at  chambers,  by 
consent  of  the  parties,  under  an  order 
providing  that  it  should  be  so  tried,  and 
that  if  at  such  trial  there  should  appear 
to  the  judge  to  be  in  issue  questions  of 
fact  of  such  a  character  that  he  would 
submit  them  to  a  jury  if  one  were  present, 
they  should  be  submitted  to  a  jury  at  the 
next  term.  Andes  v.  Slauson,  130  U.  S. 
435,  32  L.   Ed.  989. 

In  the  first  judiciary  act,  the  whole  ap- 
pellate jurisdiction  of  this   court  was  lim- 
ited  to  matters   of  law.     While   an   appeal 
lay   from   the   district   court   to  the   circuit 
court  in  admiralty  cases,  neither  the  judg- 
ments   or    decrees    of    the    circuit    court,        ■ 
v/hether   in    law,   equity  or   admiralty,   nor       ■ 
judgments  or  decrees  of  the  highest  court       ^ 
of    a    state,    could    be    reviewed    by    this 
court,    except    by    writ    of   error.      Act    of 
September  24.   1789,   c.   20,   §§   19,   22-25;    1 
Stat.    83-86.      Dower    v.    Richards,    151    U. 
S.   658,  663,  38   L.    Ed.   305. 

Findings  of  fact  made  by  the  court  at 
the   request  of  the   parties   cannot   be   re- 


APPEAL  AND  ERROR. 


1007 


viewed  by  this  court,  any  more  than  the 
finding  of  a  jury  on  a  question  of  fact 
fairly  submitted  to  them.  Bowen  v. 
Chase,  98   U.  S.  254.  25   L-   Ed.  47. 

Order  of  remand. — Where  a  writ  of 
error  is  brought  to  reverse  an  order  of 
the  circuit  court  remanding  a  suit  at  law 
to  the  state  court  from  which  it  has  been 
removed,  a  finding  of  facts  by  the  court 
that  the  parties  to  the  suit  were  not  citi- 
zens of  dififerent  states,  cannot  be  exam- 
ined here  on  a  writ  of  error,  unless  the 
evidence  is  brought  into  the  record  by  a 
bill  of  exceptions  or  some  equivalent 
method,  as,  for  instance,  an  agreed  state- 
ment of  facts,  or  a  special  finding  in  the 
nature  of  a  special  verdict.  England  v. 
Gebhardt,   112   U.   S.   502,  28    L.   Ed.  811. 

Hearing  of  motion. — The  findings  of 
facts  by  the  court  below  upon  the  hearing 
of  a  motion,  cannot  be  reviewed  here  upon 
a  writ  of  error.  Jefifries  v.  Mutual  Life 
Ins.   Co..  110  U.   S.   305,   28   L.   Ed.   156. 

Salvage. — Erroneous  findings  of  the 
jury — assuming  them  to  be  erroneous — 
as  to  what  injury  the  ship  did  sufifer  by 
the  stranding  and  what  by  swelling  of  the 
cargo,  or  such  findings  on  any  other  mat- 
ter of  fact,  are  not  subject  to  review  here. 
Fowler  v.  Rathbone,  12  Wall.  102,  20  L. 
Ed.   281. 

"As  to  the  finding  of  fact  that  there 
was  a  contract  by  the  first  administrator 
giving  to  the  attorneys  an  interest  in  the 
proceeds  of  the  claim,  with  authority  to 
compromise  it,  this  court  is  prohibited,  by 
§  1011  of  the  Revised  Statutes,  from  re- 
versing a  case  on  a  writ  of  error  for  any 
error  in  fact."  JefTries  v.  Mutual  Life  Ins. 
Co.,  110  U.  S.  305,  309,  28  L-  Ed.  156,  citing 
Hyde  v.  Booraem,  16  Pet.  169.  176,  10  L. 
Ed.  925;  Parks  v.  Turner,  12  How.  39,  43. 
13   L.   Ed.   883. 

Carriers — Excess  of  baggage. — In  an 
action  against  a  carrier  to  recover  for 
lost  baggage  in  which  the  defense  is  set 
up  that  the  baggage  taken  by  the  carrier 
was  in  excess  of  the  fixed  amount  beyond 
which  the  carrier  would  not  be  liable  un- 
less additional  compensation  is  paid,  it 
was  held,  that  the  question  whether  the 
passenger  had  taken  such  an  excess  of 
baggage  is  a  question  not  of  law  for  the 
court,  but  of  fact  for  the  jury  under 
proper  guidance  as  to  the  law  of  the  case. 
Their  determination  of  it  upon  the  evi- 
dence, no  error  of  law  appearing,  is  not 
subject  to  re-examination  here.  "Whether 
its  action,  in  that  particular,  was  erro- 
neous or  not.  our  power  is  restricted  by 
the  constitution  to  the  determination  of 
the  questions  of  law  arising  upon  the  rec- 
ord. Our  authority  does  not  extend  to  a 
re-examination  of  facts  which  have  been 
tried  by  the  jury  under  instructions  cor- 
rectly defining  the  legal  rights  of  parties. 
Parsons  v.  Bedford.  3  Pet.  433.  446.  7  L. 
Ed.  732;  Grand  Gulf,  etc.,  Co.  v.  Marshall, 
12    How.   165,    167,   13    L.    Ed.   938;      Insur- 


ance Co.  V.  Folsom,  18  Wall.  237,  249,  21 
L.  Ed.  827."  Railroad  Co.  v.  Fraloff,  100 
U.   S.  24.  31.  25   L.   Ed.   531. 

Reasonableness  of  rates. — The  supreme 
court  of  the  United  States  will  not,  on  an 
appeal,  inquire  as  to  the  reasonableness 
or  unreasonableness  of  the  rates  of  a  tel- 
ephone company,  but  will  remand  the 
cause  to  the  lower  court  with  directions 
to  inquire  into  the  reasonableness  of  the 
rates  and  find  the  facts.  Chesapeake,  etc, 
Tel.  Co.  V.  Manning,  186  U.  S.  238,  250,  46 
L.  Ed.  1144.  citing  and  approving  Chicago, 
etc.,  R.  Co.  V.  Tompkins,  176  U.  S.  16T, 
179,  44  L.  Ed.  417;  Kansas  v.  Colorado, 
185  U.   S.   125,  46  L.    Ed.   838. 

"In  Chicago,  etc..  R.  Co.  v.  Tompkins, 
176  U.  S.  167,  179,  44  L.  Ed.  417,  a  case 
involving  the  validity  of  railroad  rates  es- 
tablished by  a  commission  in  the  state  of 
South  Dakota,  and  in  which  we  found 
that  there  had  been  error  in  the  methods 
pursued  by  the  trial  court  for  determin- 
ing the  question  of  reasonableness,  we 
said:  'The  question  then  arises  what  dis- 
position of  the  case  shall  this  court  make. 
Ought  we  to  examine  the  testimony,  find 
the  facts,  and  from  those  facts  deduce 
the  proper  conclusion?  It  would  doubtless 
be  within  the  competency  of  this  court  on 
an  appeal  in  equity  to  do  this,  but  we  are 
constrained  to  think  that  it  would  not 
(particularly  in  a  case  like  the  present) 
be  the  proper  course  to  pursue.  This  is 
an  appellate  court,  and  parties  have  a 
right  to  a  determination  of  the  facts  in  the 
first  instance  by  the  trial  court.  Doubtless 
if  such  determination  is  challenged,  on  ap- 
peal, it  becomes  our  duty  to  examine  the 
testimony  and  see  if  it  sustains  the  find- 
ings, but  if  the  facts  found  are  not  chal- 
lenged by  either  party,  then  this  court 
need  not  go  beyond  its  ordinary  appellate 
duty  of  considering  whether  such  facts 
justified  the  decree.  We  think  this  is  one  of 
those  cases  in  which  it  is  especially  im- 
portant that  there  should  be  a  full  and  clear 
finding  of  the  facts  by  the  trial  court.  The 
questions  are  difficult,  the  interests  are 
vast,  and  therefore  the  aid  of  the  trial 
court  should  be  had.'  "  Chesapeake,  etc., 
Tel.  Co.  V.  Manning.  186  U.  S.  238,  250, 
46    L.    Ed.    1144. 

Reasonableness  of  water  rates. — The  su- 
preme court  of  the  LTnited  States  will 
not  pass  upon  the  unreasonableness  of 
rates  fixed  by  a  city  in  regulating  the 
rates  of  a  water  company,  where  it  de- 
pends upon  many  questions  of  fact  and 
of  values  to  whicli  the  circuit  court  gave 
no  attention  and  on  which  it  expressed 
no  judgment.  It  is  better  for  a  trial 
court  to  determine  such  questions  in  the 
first  instance.  Chicago,  etc.,  R.  Co.  v. 
Tompkins.  176  U.  S.  167,  179,  44  L.  Ed. 
417;  Owensboro  v.  Owensboro  Water- 
works Co.,  191  U.  S.  358,  372,  48  L.  Ed. 
217. 

The    question     of    fraud   or   mistake   is 


1008 


APPEAL  AND  ERROR. 


that   there  was  sufficient  to  justify  the  conckisions  reached  by  the  jury.^^ 
A  finding  of  court  is  entitled  to  the  same  weight  as  a  verdict  of  a  jury,  and 


one  of  fact,  and  is  conclusive  here.  Clark 
V.  United  States,  131  U.  S.,  appx.  Ixxxv, 
IS    L.    Ed.   915. 

Construction  of  written  instruments. — 
A  writ  of  error  will  lie  to  review  the  judg- 
ment of  an  inferior  court  as  to  the  con- 
struction of  a  written  instrument.  United 
States  V.  King,  7  How.  833.  12  L.  Ed.  934. 

The  construction  of  a  grant  is  a  ques- 
tion of  law  upon  which  this  court  must 
review  the  decision  of  the  circuit  court. 
United  State*  v.  King,  7  How.  833,  13  L. 
Ed.   934. 

With  the  general  question  of  negligence 
we  have  nothing  to  do.  The  finding  of 
the  jury  is  conclusive  upon  that  subject. 
Transportation  Line  v.  Hope,  95  U.  S. 
297,  298,  24  L.  Ed.  447. 

This  court  has  no  jurisdiction  to  review 
the  findings  of  the  court  below  in  re- 
spect to  what  constitutes  negligence  or 
contributory  negligence.  Delaware,  etc., 
R.  Co.  V.  Converse,  139  U.  S.  469,  35  L. 
Ed.  213.  citing  Parsons  v.  Bedford,  3  Pet. 
433.  7  L.  Ed.  732;  Railroad  Co.  v.  Fraloflf, 
lOo'U.  S.  24,  25  L.  Ed.  531. 

A  recital  in  the  decree  that  it  was  as- 
sented to  by  the  solicitor  of  one  of  the 
parties  is  equivalent  to  a  direct  finding 
that  he  had  authority  to  do  what  he  did, 
and.  so  far  as  the  question  is  one  of  fact 
only,  is  binding  upon  this  court  on  appeal. 
Pacific  ^.  Co.  r.  Ketchum,  101  U.  S.  289, 
2.''.  L.  Ed.  932. 

A  plea  of  nul  tiel  record  raises  a  ques- 
tion of  law,  where  the  supposed  record 
is  of  the  court  in  which  the  plea  is  filed. 
Therefore,  where  the  record  relied  on  is 
produced  in  such  a  case,  and  made  part 
of  the  record  by  a  statement  of  fact^ 
agreed  on,  it  is  a  question  of  law  whether 
it  supports  or  fails  to  support  the  plea, 
and  can  be  reviewed  in  this  court.  Bas- 
set V.  United  States.  9  Wall.  38.  19  L.  Ed. 
548. 

Upon  a  writ  of  error  in  an  exchequer 
proceeding,  wliich  has  been  tried  by  a 
jury,  the  evideuf'e  r--i'pn  at  the  time  of  the 
trial,  is  not.  in  a  strict  sense,  before  this 
court.  United  States  v.  422  Casks  of 
Wine.  1   Pet.  .547.  7  L.   Ed.  257. 

Judgments  and  decrees  in  bankruptcy 
proceedings. — Decrees  in  equity  rendered 
in  the  district  court  in  certain  cases  un- 
der the  jurisdiction  created  by  the  bank- 
rupt act,  it  may  be  admitted,  might  be 
revised  in  the  circuit  court  in  a  summary 
way  if  congress  should  so  provide  by  law, 
but  it  is  clear  that  judgments  in  actions 
at  law  rendered  in  that  court,  if  founded 
upon  the  verdict  of  a  jury,  can  never  be 
revised  in  the  circuit  court  in  that  way, 
as  the  constitution  provides  that  'no  fact 
tried  by  a  jury  shall  be  otherwise  re- 
examined in  any  court  of  the  United 
States   than   according  to  the  rule  of  the 


common  law.'  Two  modes  only  were 
known  to  the  common  law  to  re-examine 
such  facts,  to  wit;  the  granting  of  a  new 
trial  by  the  court  where  the  issue  was 
tried  or  which  the  record  was  returnable, 
or.  secondly,  by  the  award  of  a  venire 
facias  de  novo  by  an  appellate  court  for 
some  error  of  law  which  intervened  in 
the  proceedings.  2  Story  on  the  Con- 
stitution (3d  Ed.),  584;  Parsons  v.  Bed- 
ford, 3  Pet.  433.  448,  7  L.  Ed.  732;  Knight  v. 
Cheny,  5  National  Bankrupt  Register,  317. 
All  suits  which  are  not  of  equity  or  ad- 
miralty jurisdiction,  whatever  maj-^  be  the 
peculiar  form  which  they  may  assume  to 
settle  legal  rights,  are  embraced  in  that 
provision.  It  means  not  merely  suits 
which  the  common  law  recognized  among 
its  settled  proceedings,  but  all  suits  in 
v.-hich  legal  rights  are  to  be  determined 
in  that  mode,  in  contradistinction  to 
equitable  rights  and  to  cases  of  admiralty 
and  maritime  jurisdiction,  and  it  does 
not  refer  to  the  particular  form  of  pro- 
cedure which  may  be  adopted.  United 
States  V.  Wonson,  1  Gallison,  20.  In- 
surance Co.  V.  Comstock,  16  Wall.  258, 
269.  21   L.    Ed.   493. 

A  judicial  recommendation. — In  one  case 
the  court  has  expressed  its  dissatisfac- 
tion with  appeals  being  made  whose  only 
effect  is  to  throw  upon  it  the  burden  of 
making  minute  investigations  and  anal- 
ysis of  evidence  in  controversies  where 
the  case  turned  in  every  point  upon  sim- 
ple questions  of  fact,  and  where  there  is 
not  a  doubtful  question  of  law  involved 
in  the  entire  record.  And  declaring  its 
conviction  that  the  time  of  this  court, 
due  to  other  parties  and  to  more  impor- 
tant interests,  should  not  be  consumed 
in  writing  and  delivering  opinions  which 
if  they  attempted  to  go  into  examination 
of  the  facts  to  justify  the  decision  of  the 
court,  would  be  equally  tedious  and  use- 
less, confines  itself  to  announcing  its 
jrdement  of  affirmance  without  the  ex- 
hibition through  its  delivered  opinion  of 
the  mental  processes  and  argument'^  by 
which  it  has  reached  its  conclusion.  Mann 
7'.  Pock  Island  Bank,  11  Wall.  650.  20 
L.   Ed.  188. 

Presumptions  on  appeal. — Where  the 
parties  below  vf^rped  to  submit  the  cause 
*n  the  court,  both  on  the  facts  ;nnd  the 
law,  this  court  must  presume  that  the 
covirt  below  founded  its  judgment  upon 
proof  of  the  fact  as  to  the  manner  in 
which  the  holder  received  it.  and  must 
therefore  affirm  the  iudg-ment  of  the  court 
below.  Prentice  r.  Zane.  8  How.  470,  12 
L.  Ed.  1161.  citine:  Hvde  v.  Booraem,  16 
Pet.   169,   10  L.   Ed.  925. 

25.  Carter  v.  Ruddy,  166  U.  S.  493,  41 
L.  Ed.   1160,  1090. 


APPEAL  AND  ERROR.  1009 

is  conclusive,  on  appeal,  unless  plainly  against  the  evidence. 2"  Before  the  find- 
ing of  facts  upon  evidence  submitted  upon  a  hearing  by  the  court  can  be  re- 
examined on  a  writ  of  error,  they  must  be  brought  into  the  record  by  a  bill  of 
exceptions,  or  an  agreed  statement  of  facts,  or  a  special  finding  in  the  nature  of 
a  special  verdict,  or  in  some  other  way  known  to  the  practice  of  courts  of  error 
for  the  accomplishment  of  that  purpose. ^s 

Statement  of  Rule  by  Mr.  Justice  Baldwin. — Where  the  evidence  in  a 
cause  conduces  to  prove  a  fact  in  issue  before  a  jury,  it  is  competent  in 
law,  to  establish  such  fact ;  a  jury  may  infer  any  fact  from  such  evi- 
dence, which  the  law  authorizes  a  court  to  infer  on  a  demurrer  to  the 
evidence.  After  a  verdict  in  favor  of  either  party  on  the  evidence,  he 
has  a  right  to  demand  of  a  court  of  error  that  they  look  to  the  evidence  for  only 
one  purpose,  and  with  the  single  eye  to  ascertain  whether  it  was  compe- 
tent in  law  to  authorize  the  jury  to  find  the  facts  which  make  out  the  right  of 
the  party,  on  a  part  or  the  whole  of  his  case.  If,  in  its  judgment,  the  appellate 
court  should  hold  that  the  evidence  was  competent,  then  they  must  found  their 
judgment  on  all  such  facts  as  were  legally  inferrible  therefrom ;  in  the  same  man- 
ner, and  with  the  same  legal  results  as  if  they  had  been  found  and  definitely  set  out 
in  a  special  verdict.  So,  on  the  other  hand,  the  finding  of  the  jury  on  the  whole 
evidence  in  a  cause,  must  be  taken  as  negativing  all  facts  which  the  party  against 
whom  their  verdict  is  given,  has  attempted  to  infer  from,  or  establish  by  the 
evidence.-^ 

It  is  a  fatal  objection  to  a  bill  of  exceptions  to  so  frame  the  exceptions 
as  to  secure  a  re-examination  of  the  facts  in  this  court. ^" 

Statement  of  Facts  by  Court. — Where,  on  writ  of  error,  the  record  is  sent 
up  with  the  evidence  annexed,  but  no  statement  of  facts  by  the  court,  this  pre- 
cludes the  court  from  considering  the  evidence,  as  a  statement  of  facts.  If  there 
is  no  statement,  the  consequence  follows  that  there  can  be  no  error,  and  the 
decree  will  be  affirmed.'^ ^ 

Affirmance. — On  an  appeal  to  this  court  from  the  circuit  court,  where  there 
IS  no  disputed  question  of  law  and  the  only  controversy  is  as  to  the  facts,  the 
judgment   will  be  affirmed."- 

New  Trial  in  Ejectment. — The  case  of  enforcing,  in  a  court  of  the  United 
States,  a  statute  of  a  state  giving  one  new  trial,  as  of  right,  in  an  action  of 
ejectment,  is  quite  exceptional,  and  such  a  statute  does  not  enlarge,  but  restricts, 
the  rules  of  the  common  law  as  to  re-examining  facts  once  tried  by  a  jury,  for 
by  the  common  law  a  party  was  not  concluded  by  a  single  verdict  and  judgment 

27.  CUfif  V.  United  States.  \9'>  U.  S.  159.  no  qustion  of  law  is  presented  which  the 
49  L.  Ed.  139.  court  here  can  review.     Martinton  v.  Fair- 

28.  Storm  z\  United  States,  94  U.  S.  76,       banks,   112   U.   S.   670.  28   L.    Ed.    862. 

81,   24  L.   Ed.   42;   Suydam  v.   Williamson,  29.    Hepburn   v.    Dubois,   12    Pet.   345.   9 

20    How.    427,    15    L.    Ed.   978;      Baltimore,  ^    Ed.   1111. 

etc.,    R.    Co.   V.    Trustees    Sixth    Presbyte-  _«    ,^,       t?          •     iir  •    i  ..    -.^r   tt    o     oo^ 

•        r^i        u    r.1    TT    c    io^    iin    oo   T      VA  30.  The   Francis   Wright.   105   U.   S.   381, 

nan   Church,   91   U.   S.    127,   130,  23   L.   Ed.  or   J      V/\     -l^(\n 

260;   England  v.   Gebhardt.   112  U.   S.   502,  "^'  ^-  ^^-   ^^""• 

505,  28  L.   Ed.  811.  31.    Statement   of   facts   by   court. — Jen- 

When  there  is  no  demurrer  to  the  dec-  "in&s    v..    Perseverance,    3    Dall.    336,    1    L. 

laration,   or   other    exception   to   the    suffi-  Ed.  625;     United  States  z:  Hooe,  1  Cranch 

ciency   of   the   pleadings,   no   exception   to  318-   -   L.    Ed.    121;     Wiscart   v.   D'Auchy, 

the   rulings   of   the    court   in    the   progress  3   Dall.  321,  1   L.   Ed.  619. 

of    the    trial,    in    the    admission    or    exclu-  Where     the     court     below     decides     the 

sion    of    evidence,    or    otherwise,    no    re-  ^^cts,  a   statement   of  them   should   appear 

quest    for    a    ruling   upon    the    legal    sufifi-  "PO"   the   record;   but  if  such  a   statement 

ciency    or    efifect    of    the    whole    evidence,  ^^    ^led   after   judgment   is   entered   and   a 

or   on   motion   in   arrest   of  judgment,   and  ^^'"t   of  error  sued  out,   it  cannot  be   con- 

the   only   matter   presented   by   the   bill   of  sidered  a  part  of  the  record,  which  is  dis- 

exceptions    which    this    court    is    asked    to  closed  against  it.     United  States  v.  King, 

review    arises    upon    the    exception    to    the  '''  How.  833,  12  L.  Ed.  934. 

general  finding  by  the  court  for  the  plain-  32.   Steever  v.  Rickman,   154  U.   S.   App. 

tiff  upon  the  evidence  adduced  at  the  trial,  678,  27  L.  Ed.  1052. 

1  U  S  Enc-64 


1010 


APPEAL  AND  ERROR. 


in  ejectment,  but  might  bring  as  many  successive  ejectments  as  he  pleased,  un- 
less restrained  by  a  court  of  equity  after  repeated  verdicts  against  him.^^ 

Distinction  between  Appeals  and  Writs  of  Error. — But  it  is  well  to  bear 
in  mind  here  the  distinction  drawn  between  appeals  and  writs  of  error  in 
a  previous  section  in  this  article,  in  which  it  was  stated  that  appeals,  the  remedy 
for  transferring  equity  and  admiralty  cases,  bring  up  for  review  facts  as  well  as 
law.  So  that  the  rules  just  stated  are  restricted  to  common-law  actions  brought 
up  by  writ  of  error.^*  While  appeals  from  final  judgments  and  decrees  of  the 
circuit  courts  of  the  United  States  extend  to  an  examination  of  the  facts  as  well 
as  the  law,  and  while  upon  such  review  this  court  will  generally  accept  the  con- 
current conclusions  of  the  trial  and  appellate  courts,  yet  "there  has  always  been 
recognized  t»ie  right  and  duty  of  this  court  to  examine  the  record,  and  if  it 
finds  that  the  conclusions  are  wholly  unwarranted  by  the  testimony  it  will  set 
the  verdict  or  report  aside  and   direct  a   re-examination."^^ 

2.  Constitutional  and  Statutory  Provisions. — The  seventh  amendment 
to  the  constitution  provides  that  "no  fact  tried  by  a  jury  shall  be  otherwise  re- 
examined in  any  court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law."^*'  This  is  a  prohibition  to  the  courts  of  the  United  States  to  re- 
examine any  facts,  tried  by  a  jury,  in  any  other  manner.  The  only  modes  known 
to  the  common  law  to  re-examine  such  facts  are  the  granting  of  a  new  trial  by 
the  court  in  which  the  issue  was  tried,  or  to  which  the  record  was  properly  re- 
turnable ;  or  the  award  of  a  venire  facias  de  novo  by  an  appellate  court,  for 
some  error  of  law  which  intervened  in  the  proceedings.^"^     It  must  therefore  be 


33.  Bac.  Ad.  Ejectment,  1;  Equator 
Co.  V.  Hall  (1882),  106  U.  S.  86,  27  L-  Ed. 
114;  Smale  v.  Mitchell,  143  U.  S.  99,  36 
L.  Ed.  90;  Capital  Traction  Co.  v.  Hof, 
174   U.   S.    1,    13,   43    L.    Ed.    873. 

34.  The  remedy  by  appeal  brings  before 
the  supreme  court  the  facts  as  well  as 
the  law.  The  San  Pedro,  2  Wheat.  132, 
142,  4  L.  Ed.  202,  205. 

The  statute  of  Louisiana,  requiring 
their  courts  to  have  the  testimony  taken 
down  in  all  cases  where  an  appeal  lies 
to  the  supreme  court,  and  the  adoption 
ol  this  rule  by  the  court  of  the  United 
States,  included  only  cases  where  an  ap- 
peal (technically  speaking)  lies,  and  not 
the  cases  which  are  carried  to  an  appel- 
late court  by  writ  of  error.  "In  consider- 
ing, then,  the  propriety  of  the  ruling  of 
the  court  here,  it  is  'first  to  be  noticed, 
that,  by  the  words  of  the  statute,  this 
testimony  is  to  be  taken  down  and  filed 
only  in  those  cases  'where  an  appeal  lies.' 
That  means,  of  course,  a  technical  ap- 
peal, where  the  facts  are  to  be  reviewed 
and  reconsidered,  for  in  such  an  one  only 
is  there  any  use  in  taking  them  down. 
But  in  the  present  case  no  appeal  of  that 
character  lay  to  this  court,  but  merely  a 
writ  of  error  to  bring  the  law  and  not 
the  facts  here  for  re-examination.  To 
construe  the  act  of  1824  as  if  meaning  to 
devolve  on  this  court  such  a  re-examina- 
tion of  facts,  without  a  trial  by  jury,  in  a 
case  at  law,  like  this,  and  not  one  in 
equity  or  admiralty,  would  be  to  give  to 
it  an  unconstitutional  operation,  danger- 
ous to  the  trial  by  jury,  and  at  times  sub- 
versive of  the  public  liberties.  Parsons 
T.   Bedford,   3   Pet.   433,   448,   7    L.   Ed.   732. 


In  a  case  of  chancery  or  admiralty  juris- 
diction it  might  be  different,  as  in  those, 
by  the  law  of  the  land,  a  technical  appeal 
lies,  and  the  facts  are  there  open  to  re- 
consideration in  this  court.  Livingston 
V.  Story,  9  Pet.  632,  9  L.  Ed.  255;  McCol- 
lum  V.  Eager,  2  How.  61,  64,  11  L.  Ed. 
179."  Phillips  V.  Preston,  5  How.  278, 
12    L.    Ed.    152. 

Upon  a  writ  of  error  we  are  confined 
to  the  bill  of  exceptions,  or  questions  of 
law  otherwise  presented  by  the  record; 
and  upon  an  appeal,  to  the  statement  of 
facts  and  rulings  certified  by  the  court 
below.  The  facts  set  forth  in  the  state- 
ment which  must  come  up  with  the  ap- 
peal are  conclusive  on  us.  Hecht  v. 
Boughton,  105  U.  S.  235,  236,  26  L.  Ed. 
1018. 

35.  De  La  Rama  v.  De  La  Rama.  201 
U.  S.  303,  309,  50  L.  Ed.  765,  citing  Beyer 
V.   LeFevre,  186  U.  S.  114,  46  L.   Ed.  1080. 

36.  Constitutional  and  statutory  pro- 
visions.— Boogher  v.  New  York  Life  Co., 
103  U.    S.   90.  95,  26   L.   Ed.   310. 

37.  Barreda  v.  Sisbee,  21  How.  146,  166, 
16  L.  Ed.  86;  The  Justices  v.  Murray,  9 
Wall.  274,  277,  19  L  Ed.  658;  Miller  v.  Life 
Ins.  Co.,  12  Wall.  285,  300,  20  L.  Ed.  398  ;  In- 
surance Co.  v.  Comstock,  16  Wall.  258, 
269,  21  L.  Ed.  493;  Insurance  Co.  v.  Fol- 
som,  18  Wall.  237,  249,  21  L.  Ed.  827; 
Railroad  Co.  v.  Fraloff.  100  U.  S.  24,  31, 
25  L.  Ed.  531;  Lincoln  v.  Power.  151 
U.  S.  436,  438,  38  L.  Ed.  224;  Chicago, 
etc.,  R.  Co.  V.  Chicago,  166  U.  S.  226,  246, 
41  L.  Ed.  979;  Capital  Traction  Co.  v. 
Hof,  174  U.  S.  1,  9,  43  L.  Ed.  873;  Mar- 
tinton  V.  Fairbanks,  112  U.  S.  670,  674, 
28    L.    Ed.    862;      Barney    v.    Schneider,    9 


APPEAL  AND  ERROR. 


1011 


taken  as  established,  by  virtue  of  the  seventh  amendment  of  the  constitution, 
that  either  party  to  an  action  at  law  (as  distinguished  from  suits  in  equity  or  in 
admiralty)  in  a  court  of  the  United  States,  where  the  value  in  controversy  ex- 
ceeds twenty  dollars,  has  the  right  to  a  trial  by  jury;  that,  when  a  trial  by  jury 
has  been  had  in  an  action  at  law.  in  a  court  either  of  the  United  States  or  of 
a  state,  the  facts  there  tried  and  decided  cannot  be  re-examined  in  any  court  of 
the  United  Slates,  otherwise  than  according  to  the  rules  of  the  common  law  of 
England;  that  by  the  rules  of  that  law,  no  other  mode  of  re-examination  is  al- 
lowed than  upon  a  new  trial,  either  granted  by  the  court  in  which  the  first  trial 
was  had  or  to  which  the  record  was  returnable,  or  ordered  by  an  appellate  court 
for  error  in  law;  and  therefore  that,  unless  a  new  trial  has  been  granted  in  one 
of  those  two  ways,  facts  once  tried  by  a  jury  cannot  be  tried  anew,  by  a  jury  or 
otherwise,  in  any  court  of  the  United   States.-'^s 

Territories. — This  provision  of  the  constitution  is  in  full  force  in  all  the  ter- 
ritories, therefore  this  court,  on  appeal  from  a  territorial  court,  has  no  authority 
to  pass  upon  any  question  of  fact  involved  in  the  consideration  of  a  motion  for  a 
new  trial.-^® 

District  of  Columbia. — Congress,  in  every  case  where  the  value  in  controversy 
exceeds  five  dollars,  has  authorized  either  party  to  appeal  from  the  judgment  of 
the  justice  of  the  peace,  although  entered  upon  the  verdict  of  a  jury,  to  the  su- 
preme court  of  the  District  of  Columbia,  and  to  have  a  trial  by  jury  in  that  court; 
and  the  trial  by  a  jury  of  twelve,  as  permitted  by  congress  to  be  had  before  a 


Wall.  248,  19  L.  Ed.  648;     Parsons  v.  Bed- 
ford, 3   Pet.   433,  448.  7  L.   Ed.  732. 

The  constitution  provides  that  no  fact 
tried  by  the  jury  shall  be  otherwise  re-ex- 
amined in  any  court  of  the  United  States 
than  according  to  the  rules  of  the  com- 
TMon  law.  2  Story  on  the  Constitution.  § 
1770.  Facts  so  tried  could  only  be  re- 
examined, under  the  rules  of  the  common 
law,  either  by  the  granting  of  a  new 
trial  by  the  court  where  the  issue  was 
tried  or  to  which  the  record  M'^as  return- 
able, or  by  the  award  of  a  venire  facias 
de  novo  bj'  an  appellate  court  for  some 
error  of  law  which  intervened  in  the  pro- 
ceedings. Parsons  z\  Belford,  3  Pet.  433, 
448,  7  L.  Ed.  732;  2  Story  on  the  Constitu- 
tion, §  1770.  Matters  of  fact  found  by  the 
circuit  court  under  such  a  submission  can- 
not be  re-examined  here,  as  by  the  express 
language  of  the  act  the  review,  when  the 
finding  is  general,  is  confined  to  the  rul- 
ings of  the  court  in  the  progress  of  the 
trial,  and  even  when  the  finding  is  spe- 
cial nothing  else  is  open  to  review  except 
the  inquiry  whether  the  facts  found  are 
sufficient  to  support  the  judgment.  Mil- 
ler V.  Life  Ins.  Co.,  12  Wall.  285,  300,  20 
L.    Ed.    398. 

"The  only  modes  known  to  the  com- 
mon law  to  re-examine  the  facts  are  the 
granting  of  a  new  trial  by  the  court  where 
the  issue  is  tried,  or  to  which  the  record 
is  properly  returnable,  or  the  award  of  a 
venire  de  novo  by  an  appellate  court  for 
some  error  of  law  which  intervened  in  the 
proceedings."  Parsons  v.  Bedford,  3  Pet. 
433,  448.  7  L.  Ed.  732.  By  the  constitu- 
tion. Amend.  VII.  no  fact  tried  by  a  jury 
can  be  otherwise  re-examined  in  any 
court  of  the  United  States  than  according 
to    the    rules    of    the    common    law.      The 


Abbotsford,    98    U.    S.   440.   445,    25   L.    Ed. 
168. 

If  the  jury  erred,  the  remedy  was  by  a 
motion  for  a  new  trial,  and  not  by  a  writ 
of  error.  Schurchardt  v.  Aliens,  1  Wall. 
359,   371,    17    L.    Ed.   642. 

For  the  purposes  of  any  examination 
of  the  case  which  it  is  competent  for  this 
court  to  make  under  the  constitution  of 
the  United  States  and  the  laws  of  con- 
gress, it  must  be  assumed  that  the  facts 
of  the  case  have  been  correctly  found  by 
the  jury.  Repeated  decisions  of  this 
court  have  affirmed  the  doctrine,  which  is 
but  a  repetition  of  the  constitutional  pro- 
vision upon  the  subject,  that  no  fact  triei 
by  a  jury  shall  be  otherwise  re-examina- 
ble  in  any  court  of  the  United  States  than 
according  to  the  rules  of  the  common  law; 
and  it  is  well  known  that  the  only  modes 
known  to  the  common  law  of  re-examin- 
ing the  facts  of  a  case,  after  they  have 
been  found  by  a  jury,  are  the  granting  of 
a  new  trial  by  the  court  where  the  issue 
was  tried,  or  to  which  the  record  was 
properly  returnable,  or  by  the  award  of 
a  venire  facias  de  novo  by  an  appellate 
court,  for  some  error  of  law  which  inter- 
vened in  the  proceedings.  Parsons  v. 
Bedford,  3  Pet.  433,  447,  7  L.  Ed.  732; 
United  States  v.  King.  7  How.  833.  845, 
12  L.  Ed.  934;  Penhallow  v.  Doane,  3 
Dall.  54,  102;  United  States  v.  Eliason,  16 
Pet.  291,  301,  10  L.  Ed.  968;  Phillips  v. 
Preston,  5  How.  278,  289,  13  L.  Ed.  15»; 
Barreda  v.  Silsbee,  21  How.  146,  166,  1« 
L.    Ed.    86. 

38.     Capital    Traction    Co.    v.    Hof,    174 
U.    S.    1,    13,   43    L.    Ed.    873. 
•    39.    Webster   r.    Reid,    11    How.    437.    13 
L.    Ed.   761;   Kennon  v.   Gilmer.  131  U.   S. 
22,  29,   33   L.   Ed.   110. 


1012 


APPEAL  AND  ERROR. 


justice  of  the  peace,  is  not,  and  the  trial  by  jury  in  the  appellate  court  is,  a  trial 
by  jury,  within  the  meaning  of  the  common  law,  and  of  the  seventh  amendment 
to  the  constitution;  and  therefore  the  trial  of  facts  by  a  jury  before  the  justice 
of  the  peace  does  not  prevent  those  facts  from  being  re-examined  by  a  jury  in 
the  appellate  courts'* 

Section  1011,  Rev.  Stat.,  continues  in  force  and  forbids  a  reversal  of  the 
judgment  of  the  circuit  court  for  any  error  of  fact.-*^ 

3.  Concurrent  Decisions  of  Two  Inferior  Courts — a.  In  General. — The 
settled  doctrine  of  this  court  is  that  the  concurrent  decisions  of  two  courts  in  the 
same  case  upon  a  question  of  fact  will  be  followed  unless  shown  to  be  clearly 
erroneous.'' 2    Where  issues  are  mainly  those  of  fact,  in  the  absence  of  clear  show- 


40.  Capital  Traction  Co.  v.  Hof,  174  U. 
S.    1,    45,   43    L.    Ed.   873. 

41.  Martinton  v.  Fairbanks,  112  U.  S. 
670,  672,  28  L.  Ed.  862;  Jeffries  v.  Mutual 
Life  Ins.  Co.,  110  U.  S.  305,  28  L.  Ed. 
156;  Miles  v.  United  States,  103  U.  S.  304, 
313,  26   L.   Ed.   481;   Rev.  Stat..  §   1011. 

42.  Concurrent  decisions  of  two  inferior 
courts  in  general. — Compania  La  Flecha 
V.  Brauer,  168  U.  S.  104.  42  L.  Ed.  398; 
Stuart  V.  Hayden,  169  U.  S.  1,  42  L.  Ed. 
639;  Baker  v.  Cummings,  169  U.  S.  189, 
198,  42  L.  Ed.  711;  The  Carib  Prince.  170 
U.  S.  655,  658,  42  L.  Ed.  1181;  Morewood 
V.  Enequist,  23  How.  491,  16  L.  Ed.  516 
The  Richmond,  103  U.  S.  540.  26  L.  Ed 
313;  The  Conqueror,  166  U.  S.  110,  136 
41  L.  Ed.  937;  Workman  v.  New  York 
City,  179  U.  S.  552,  555,  45  L.  Ed.  314 
The  Germanic,  196  U.  S.  589,  593.  49  L. 
Ed.  610;  The  Iroquois,  194  U.  S.  240,  48 
L.  Ed.  955;  Chin  Bak  Kan  v.  United 
States,  186  U.  S.  193,  201,  46  L.  Ed.  1121; 
United  States  v.  Meng,  196  U.  S.  636.  49 
L.  Ed.  632;  Abson  v.  United  States.  200 
U.  S.  611,  50  L.  Ed.  626;  Brain.-^rd  v.  Buck, 
184  U.  S.  99,  105.  46  L.  Ed.  44:!;  Busch  v. 
Jones,  184  U.  S.  598,  604,  46  L.  Ed.  707; 
Towson  V.  Moore,  173  U.  S.  17.  43  L.  Ed. 
597;  The  Baltimore,  8  Wall.  3r7,  382.  19 
L.  Ed.  463;  The  S.  B.  Wheeler,  20  Wall. 
385.  386,  22  L.  Ed.  385;  Smith  v.  Burnett, 
173  U.  S.  430,  436,  43  L.  Ed.  756;  Raub  v. 
Carpenter,  187  U.  S.  159,  163.  47  L.  Ed. 
119;  Hy-Yu-Tse-Mil-Kin  v.  Smith,  194  U. 
S.  401,  413,  48   L.    Ed.   1039. 

When  two  courts  have  reached  the  same 
conclusion  on  a  question  of  fact,  their 
finding  will  not  be  disturbed  unless  it  be 
clear  that  their  conclusion  was  erroneous. 
Baker  v.  Cummings,  169  U.  S.  189,  198,  42 
L.  Ed.  711.  following  Stuart  v.  Hayden, 
169   U.    S.    1,   42    L.    Ed.   639. 

The  rule  is  well  established  that  suc- 
cessive and  concurrent  decisions  of  two 
courts  in  the  same  case,  upon  a  mere 
question  of  fact,  are  not  to  be  reversed, 
unless  clearly  shown  to  be  erroneous. 
Towson  v.  Moore.  173  U.  S.  17,  24,  43  L. 
Ed.    597. 

It  is  well  settled  that  when  the  trial 
and  the  appellate  courts  agree  as  to  the 
facts  established  on  the  trial,  the  supreme 
court  of  the  United  States  will  accept 
their  conclusion  and  not  attempt  to  weigh 


conflicting   testimony.      Stuart  v.    Hayden, 

169  U.  S.  1,  14,  42  L.  Ed.  639;  Beyer  v. 
LeFevre,  186  U.  S.  114,  119,  46  L.  Ed. 
1080. 

Establishment  of  trust. — The  concur- 
rent decisions  of  the  courts  upon  the  es- 
tablishment of  a  trust  is  a  question  of 
fact,  which  will  be  followed  vinless  shown 
to  be  clearly  erroneous.  Brainard  v. 
Buck.   184  U.   S.  99,   46  L.    Ed.  449. 

Where  in  an  action  on  an  insurance 
policy  the  jury  found  that  the  deceased 
did  not  commit  suicide  and  its  finding 
was  approved  by  the  trial  court  and  by 
the  circuit  court  of  appeals,  the  supreme 
court  of  the  United  States  will  not  dis- 
turb it.  Pythias  Knights'  Supreme  Lodge 
z:  Beck,  181  U.  S.  49,  45  L.  Ed.  741,  cit- 
ing Patton  V.  Texas,  etc..  R.  Co.,  179  U. 
S.    658.    45    L.    Ed.    361. 

Obstruction  of  navigation. — The  con- 
current finding  of  fact  of  the  circuit  court, 
and  the  circuit  court  of  appeals,  that 
piers,  docks  and  wharves,  placed  in  Lake 
Michigan  by  a  railroad  company  under  au- 
thority of  its  riparian  proprietorship,  do 
not  extend  in  the  lake  beyond  the  point 
of  practical  navigability,  will  not  be  dis- 
turbed by  this  court  unless  clearly  in  con- 
flict with  the  evidence.  Illinois  v.  Illi- 
nois Central  R.  Co.,  184  U.  S.  77.  46  L- 
Ed.  440,  citing  Compania  La  Flecha  v. 
Brauer,  168  U.  S.  104,  123,  42  L.  Ed.  398; 
Stuart  V.  Hayden,  169  U.  S.  1.  14,  42  L. 
Ed.  639;  Baker  r.  Cummings.  169  U.  S. 
189,  198,  42  L.  Ed.  711;  The  Carib  Prince, 

170  U.    S.   655,   42    L.    Ed.    1181. 

Direct  appeal  under  act  of  March  3rd, 
1891. — An  appeal  was  taken  from  a  judg- 
ment ordering  the  deportation  of  a  Chi- 
nese person,  rendered  by  a  commissioner, 
to  the  judge  of  a  district  court  of  the 
United  States,  and  upon  hearing,  the  dis- 
trict court  affirmed  that  judgment,  and 
from  the  judgment  of  the  district  court  an 
appeal  to  the  supreme  court  of  the  United 
States  was  taken  under  §  5  of  the  act  of 
March  3,  1891,  on  the  ground  that  the  con- 
struction of  the  treaty  of  1894  with  the 
Chinese  Empire  was  drawn  in  question. 
It  was  held  that  the  supreme  court  of 
the  United  States  cannot  properly  re-ex- 
amine the  facts  already  determined  by 
two  judgments  below.  Chin  Bak  Kan  v. 
United   States,   186  U.    S.   193.  201,  202,   4ff 


APPEAL  AND  ERROR. 


1013 


ing  of  error,  the  findings  of  the  lower  courts  will  be  accepted  as  correct.*'^  And 
this  rule  of  concurrence  with  the  conclusions  of  the  trial  and  appellate  courts  is 
given  more  weight  when  in  the  first  instance  the  facts  are  found  by  a  master  or 
a  jury>^ 

Error  to  State  Court. — And  these  general  rules  have  been  held  to  apply 
equally  to  writs  of  error  to  state  courts.-*^ 

Concurrent  Findings  of  Circuit  and  District  Courts. — And  prior  to  the 
•circuit  court  of  appeals  act,  concurrent  decisions  of  the  district  and  circuit  courts 
■upon  mere  questions  of  fact,  would  not  be  disturbed  unless  the  error  was  clear.'*^ 

Where  the  circuit  court  and  the  circuit  court  of  appeals  have  con- 
curred in  findings  of  fact,  the  decree  should  not  be  disturbed  unless  it  is  clearly 
in  conflict  with  the  evidence.^^  Where  the  circuit  court  and  the  circuit  court  of 
appeals  agree  as  to  what  were'  the  ultimate  facts  established  by  the  evidence,  this 
court  should  accept  their  view  as  to  the  facts,  unless  it  clearly  appears  that  they 
erred  as  to  the  effect  of  the  evidence."**^ 

In  Cases  of  Fraud. — The  rule  that  this  court  will  not  disturb  the  findings 
of  fact  of  the  two  lower  courts  except  in  a  clear  case  is  especially  applicable 
where  those  findings  ai  e  against  a  charge  of  fraud  and  where  the  eft'ort  is  to 
overthrow  a  patent  of  the  United  States."*^ 

Rule  in  Equity  and  Admiralty. — The  rule  that  successive  and  concurrent 
decisions  of  two  courts  in  the  same  case,  upon  a  mere  question  of  fact,  are  not 
to  be  reversed,  unless  clearly  shown  to  be  erroneous,  although  more  often  in- 
voked in  admiralty  cases,  is  yet  equally  applicable  to  a^.peals  in  equity.^'^     Both 


L.  Ed.  1121,  reaffirmed  in  United  States 
V.  Ng  Hong  Li,  196  U.  S.  636,  49  L.  Ed. 
629;  Abson  v.  United  States,  200  U.  S. 
611,    50   L.    Ed.   619.   626. 

43.  Stuart  v.  Hayden,  169  U.  S.  1,  42 
L.  Ed.  639;  Dravo  v.  Fabel,  132  U.  S. 
487,  33  L.  Ed.  421;  Shappiro  v.  Goldberg, 
192    U.    S.    232,   240.    48    L-    Ed.    419. 

44.  Furrer  v.  Ferris,  145  U.  S.  132.  36 
L.  Ed.  649;  Beyer  v.  LeFevre,  186  U.  S. 
114,    119,    46    L.    Ed.    1080. 

Where  a  disputed  question  of  fact  is 
referred  to  a  master  and  his  finding  is 
concurred  in  by  both  the  circuit  court  and 
the  circuit  court  of  appeals,  the  finding 
will  not  be  reviewed  by  the  supreme 
court.  Schwartz  r.  Duss,  187  U.  S.  8.  47 
L.    Ed.    53. 

45.  Error  to  state  court. — I^ammers  v. 
Nissen,  154  U.  S.  650.  25  L.  Ed.  562,  ap- 
proved in  Dravo  v.  Fabel,  132  U.  S.  481, 
490,  33  L.  Ed.  421. 

The  case  coines  within  the  ruling  in 
Lammers  v.  Nissen,  154  U.  S.  650,  25  L- 
Ed.  562,  where  the  finding  of  the  court  of 
original  jurisdiction,  upon  a  mere  ques- 
tion of  fact,  was  affirmed  by  the  supreme 
court  of  tlie  state.  Chief  Justice  Waite 
said:  "Under  such  circumstances,  we 
ought  not  to  disturb  the  judgment  of  the 
state  court  unless  the  error  is  clear.  No 
less  stringent  rule  should  be  applied  in 
cases  of  this  kind  than  that  which  for- 
merly governed  in  admiralty  appeals,  when 
two  courts  had  found  in  the  same  way  on 
a  question  of  fact."  Dravo  v.  Fabel,  132 
U.   S.    4S7,   490,   33   L.    Ed.   421. 

46.  Concurrent  findings  of  circuit  and 
district  courts. — Dravo  v.  Fabel,  132  U.  S. 
487,  33  L.  Fd.  421.  applying  Lammars  v. 
Nissen,  154  U.  S.  650.  25  L.   Ed.   562. 


47.  Compania  La  Flecha  v.  Brauer,  168 
U.  S.  104,  123,  42  L.  Ed.  398;  Stuart  v. 
Hayden.  169  U.  S.  1,  14.  42  L.  Ed.  G39; 
Baker  7'.  Cummings,  169  U.  S.  189,  198,  42 
L.  Ed.  711;  The  Carib  Prince,  170  U.  S. 
655.  42  L.  Ed.  1181;  Illinois  v.  Illinois  Cen- 
tral R.  Co.,  184  U.  S.  77,  98,  46  L.  Ed. 
440;  United  States  v.  Stinson,  197  U.  S. 
200,  49  L.  Ed.  724;  Oceanic  Steam,  etc., 
Co.  V.  Aitken,  196  U.  S.  589.  49  L.  Ed.  610; 
United  States  v.  Clark,  200  U.  S.  601.  50 
L.   Ed.   613. 

48.  Morewood  v.  Enenuist,  23  How. 
491,  16  L.  Ed.  516;  The  Ship  Marrellus,  1 
Black  414,  417.  17  L.  Ed.  217;  Dravo  v. 
Fabel,  132  U.  S.  487,  490.  33  L.  Ed.  421; 
Compania  La  Flecha  7'.  Brauer,  168  U.  S. 
104,  123,  42  L.  Ed.  398;  Stuart  v.  Hayden, 
169   U.   S.    1.    14.   42   L.   Ed.    639. 

Where  an  action  is  brought  in  admi- 
ralty to  recover  damages  to  property  al- 
leged to  be  due  to  latent  defects  in  the 
boat,  and  both  the  district  court  and  the 
circuit  court  of  appeals  hold  that  the 
sole  cause  of  the  accident  was  a  latent  de- 
fect in  a  rivet  from  which  the  head  had 
come  ofif,  leaving  the  hole  through  which 
the  water  poured  in  and  upon  the  mer- 
chandise of  the  libelant,  their  findmg  will 
be  followed  by  this  court  unless  shown 
to  be  clearly  erroneous.  The  Carib 
Prince,   170   U.   S.    655,   42   L.    Ed.    639. 

49.  United  States  v.  Clark.  200  U.  S. 
601.  50  L.  Ed.  613. 

50.  Rule  in  equity  and  admiralty. — 
Dravo  V.  Fabel,  132  U.  S.  487.  A90.  33  L. 
Ed.  421;  Stuart  v.  Hayden,  169  U.  S.  1,  14. 
42  L.  Ed.  639;  Baker  v.  Cummings.  169 
U.  S.  189,  198.  42  L.  Ed.  711;  Townson  v. 
Moore,  173  U.  S.  17,  24,  43   L.   Ed.  597. 

The    concurrent    findings    of   two    lower 


1014 


APPEAL  AND  ERROR. 


in  equity  and  admiralty  cases,  this  court  will  not  reverse  the  concurring  deci- 
sions of  two  subordinate  courts  upon  questions  of  fact,  unless  there  be  a  clear 
preponderance   of    evidence   against    their    conclusions.^^ 

And  under  earlier  statutes  regulating  appeals  in  admiralty,  it  was 
held,  repeatedly,  that  when  questions  of  fact  only  are  presented  by  the  appeal,  and 
there  is  no  dispute  as  to  the  law,  and  the  district  and  circuit  courts  have  both 
found  in  one  way,  every  presumption  is  in  favor  of  the  decree.  And  there  will 
be  no  reversal  unless  the  error  is  clear. ^2 

This  court  will  not,  in  a  case  of  collision,  reverse  the  concurrent  decrees 
of  the  courts  below,  upon  a  mere  difference  of  opinion  as  to  the  weight  and  ef- 
fect of  conflicting  testimony.  To  warrant  a  reversal,  it  must  be  clear  that  the 
lower  courts  have  committed  an  error,  and  that  a  wrong  has  been  done  to  the 
appellant. 5^ 


courts  that  loss  to  a  cargo  was  due  to 
hurried  and  imprudent  loading  will  con- 
clude us,  unless  clearly  erroneous.  The 
Germanic,  196  U.  S.  589,  593,  49  L.  Ed.  610. 

Duty  of  master  of  vessel. — Where  two 
lower  subordinate  courts  have  held  that 
it  was  not  the  duty  of  the  master  of  a 
ship  to  put  into  the  nearest  port  when 
a  seaman  is  severly  injured  in  order  to 
obtain  medical  assistance,  the  juSgnent 
will  not  be  disturbed  by  this  court.  The 
Iroquois,  194  U.  S.  240,  243,  48  L.  Ed. 
956. 

Seaworthiness. — Concurrent  findings  ■  of 
fact  by  the  district  court  and  the  circuit 
court  of  appeals  as  to  the  seaworthiness 
of  a  vessel  at  the  time  of,  and  due  dili- 
gence used  prior  to,  the  beginning  of  a 
voyage,  will  not  orrHnarily  be  disturbed 
by  this  court,  and  will  usually  be  accepted 
as  conclusive.  The  Wildcroft,  201  U.  S. 
378,  50  L.  Ed.  794;  The  Carib  Prince,  170 
U.  S.  655.  658,  42  L.  Ed.  1181;  Interna- 
tional Nav.  Co.  V.  Farr  Mfg.  Co.,  181  U. 
S.  218,  45  L.   Ed.   830. 

51.  The  S.  B.  Wheeler,  20  Wall.  385, 
22  L.  Ed.  385;  The  Lady  Pike,  21  Wall. 
1,  8,  22  L.  Ed.  499;  The  Richmond,  103 
U.  S.  540,  26  L.  Ed.  313;  Towson  v.  Moore, 
173  U.  S.  17.  43  L.  Ed.  597;  Smith  v. 
Burnett,  173  U.  S.  430,  436,  43  L.  Ed.  756; 
The  Iroquois,  194  U.  S.  240.  247,  48  L. 
Ed.  955;  The  Quickstep,  9  Wall.  665,  19 
L.   Ed.   767. 

52.  The  S.  B.  Wheeler.  20  Wall.  385,  22 
L.  Ed.  385;  The  Juniata,  93  U.  S.  337,  23 
L.  Ed.  930;  The  Grace  Girdler,  7  Wall. 
196,  19  L.  Ed.  113;  Newell  v.  Norton,  3 
Wall.  257,  18  L.  Ed.  271;  The  Ship  Mar- 
cellus,  1  Black  414.  17  L.  Ed.  217;  The 
Hypodame,  6  Wall.  216,  18  L.  Ed.  794; 
The  Lady  Pike.  21  Wall.  1,  22  L.  Ed.  499; 
Walsh  V.  Rogers,  13  How.  283,  14  L.  Ed. 
147. 

When  the  district  and  circuit  courts 
have  agreed  in  their  estimate  of  the  dam- 
ages in  a  collision  case,  this  court  will 
not  set  aside  their  conclusion  without 
satisfactory  evidence  that  they  were  mis- 
taken. The  Commerce.  16  Wall.  33,  21 
L.    Ed.    465. 

Where  a  cause  in  admiralty  turns  on 
a    question    of    fact,    and    the    evidence    is 


conflicting,  and  both  the  courts  below  de- 
cide the  same  way,  it  is  not  for  this  court 
to  hear  arguments  whether  eleven  de- 
ponents ought  to  be  believed  on  one  side 
rather  than  ten  on  the  other,  for  the 
weight  of  testimony  is  not  always  with 
numbers.  The  Water  Witch.  1  Black  494, 
17   L.   Ed.   155. 

53.  The  "Juniata,"  93  U.  S.  337,  23  L. 
Ed.    930. 

This  court  will  not  readily  reverse  in  a 
case  of  collision,  depending  on  a  mere 
difference  of  opinion  as  to  the  weight  and 
effect  of  conflicting  testimony,  where 
both  the  district  and  circuit  courts  have 
agreed.  The  Grace  Girdler.  7  Wall.  196, 
19    L.    Ed.    113. 

"The  court,  seeing  no  reason  to  doubt 
the  correctness  of  a  decision  below,  again 
declares  what  it  has  often  before  decided, 
that  it  will  not  reverse  from  doubt  where 
the  issue  is  one  entirely  of  fact,  depend- 
ing on  the  credibility  of  witnesses  who 
differ  in  their  statements,  and  where  the 
district  and  circuit  courts  have  concurred 
in  viewing  the  merits.  And  it  announces 
emphatically  that  in  cases  where  both 
courts  below  concur,  parties  need  not 
bring  appeals  here  with  the  expectation 
of  reversal  because  they  can  find  in  a 
mass  of  conflicting  testimony  enough  to 
support  the  appellant's  allegation  if  the 
testimony  of  the  other  side  be  wholly  re- 
jected, or  by  attacking  the  character  of 
witnesses  and  so  raising  a  mere  doubt  as 
to  what  justice  required."  Newell  v.  Nor- 
ton, 3  Wall.  257,  18  L.  Ed.  271. 

In  a  case  of  collision  between  two 
seagoing  vessels,  where  the  only  question 
proposed  by  the  pleadings  is  one  of  fact, 
where  there  is  much  discrepancy  between 
the  witnesses  as  to  every  averment,  and 
where  both  the  courts  below  have  con- 
curred in  their  decision,  it  is  not  to  be 
expected  that  this  court  will  reverse  the 
decree  upon  a  mere  doubt  founded  on 
the  number  or  credibility  of  the  witnesses. 
In  such  a  case  the  appellant  has  all  pre- 
sumptions against  him,  and  the  burden 
of  proof  is  thrown  on  him  to  show  af- 
firmatively that  an  error  has  been  com- 
mitted, and  if  there  be  sufficient  evidence 
on  the  record  to  support  the  decree  which 


APPEAL  AND  ERROR. 


1015 


On  the  other  hand,  it  was  equally  well  settled  that  where,  after  execution, 
this  court  was  convinced  that  both  the  courts  below  were  wrong,  there  would  be 
a  reversal/'*^ 

b.  Limitations  of  General  Rule. — While  upon  such  review  this  court  will  gen- 
erally accept  the  concurrent  conclusions  of  the  trial  and  appellate  court,  yet,  as 
was  said  by  Mr.  Justice  Brewer :  "There  has  always  been  recognized  the  right 
and  the  duty  of  this  court  to  examine  the  record,  and  if  it  finds  that  the  conclu- 
sions are  wholly  unwarranted  by  the  testimony,  it  will  set  the  verdict  or  report 
aside  and  direct  a  re-examination. "^""^  Accordingly,  where  the  premises  upon 
which  both  lower  courts  acted  in  making  a  finding  of  fact  with  respect  to  fraud, 
is  without  any  support  in  the  evidence  and,  in  fact,  rests  upon  a  mistaken  as- 
sumption, the  finding  is  not  conclusive  on  the  supreme  court. -''^ 

4.  What  Law  Governs — a.  In  GeneraL — Upon  a  writ  of  error,  this  court,  as 
is  well  settled,  cannot  review  a  decision  of  a  question  of  fact,  even  if  by  the  local 
practice,  as  in  Louisiana,  the  law  and  the  facts  are  tried  together  by  the  judge 
without  a  jury.5" 

b.  Louisiana  Practice. — According  to  the  practice  of  Louisiana,  where  cases 
are  carried  to  an  appellate  tribunal,  in  which  the  court  below  has  decided  ques- 
tions of  fact  as  well  as  of  law,  the  appellate  tribunal  also  reviews  and  decides 
both  classes  of  questions.  But  this  practice  is  not  applicable  to  the  courts  of  the 
United  States.  A  writ  of  error  in  them  brings  up  only  questions  of  law,  and 
questions  of  fact  remain  as  unexaminable  as  if  they  had  been  decided  by  a  jury 
below. ^^ 


was  made,  the  appellant  cannot  get  it  re- 
\ersed  by  establishing  a  theory  supported 
by  some  of  tlie  witnesses,  on  which  a  dif- 
ferent decree  might  have  been  rendered. 
The  Ship  Marcellus.  1  Black,  414,  17  L. 
Ed.  317. 

In  cases  of  collision  depending  on  fact, 
where  the  evidence  is  conflicting,  this 
court  will  not  readily  reverse  a  decree 
made  by  the  district,  and  affirmed  by  the 
circuit  court.  It  declares  that  the  district 
court,  which  can  examine  witnesses  ore 
tenus,  and  summon,  if  it  pleases,  ex- 
perienced masters  of  vessels  to  help  them, 
as  Trinity  masters  do  the  English  courts 
in  cases  depending  on  nautical  experi- 
ence, has  better  opportunities  than  any 
other  courts  can  have  for  examining  such 
cases,  and  for  forming  correct  conclusions 
on  them.  The  Hypodame.  6  Wall.  216,  18 
L.  Ed.  794,  citing  Newell  v.  Norton,  3 
Wall.  257,  267,   18   L-   Ed.   271. 

54.  Though  on  appeals  in  admiralty,  in- 
volving issues  of  fact  alone,  this  court 
will  not,  except  in  a  clear  case,  reverse 
where  both  the  district  and  the  circuit 
court  have  agreed  in  their  conclusions, 
yet  in  a  clear  case  it  will  reverse  even  in 
such  circumstances.  The  Lady  Pike,  21 
Wall.    1.   22    L.    Ed.    499. 

Appeals  in  admiralty,  it  may  be  ad- 
mitted, are  not  favored  where  it  appears 
that  the  subordinate  courts  have  both 
concurred  in  the  same  view  of  the  merits 
of  the  controversy.  The  Lady  Pike,  21 
Wall.   1,  8,  22  L.  Ed.  499. 

Although  where  the  circuit  and  district 
court  both  agree  on  a  question  of  alleged 
fault  in  a  vessel  libelled  for  colh'sion,  ti  's 
court  will   not  readily  reverse,  yet  it   will 


do  so  where  after  examination  its  con- 
viction is  that  both  the  courts  below  were 
wrong.  The  Ariadne,  13  Wall.  475,  20  L. 
Ed.    512. 

55.  Limitations  of  general  rule. — The 
Ariadne,  13  Wall.  475.  20  L  Ed.  542; 
Beyer  v.  LeFevre,  186  U.  S.  114,  119.  46 
L.  Ed.  1080;  De  La  Rama  v.  De  La  Rama, 
201   U.  S.  303,  309,  50  L   Ed.  765. 

Where  both  courts  below  have  found  a 
particular  state  of  facts,  we  do  not  dis- 
regard them  except  upon  the  conviction 
that  the  lower  courts  clearly  erred  in 
their  conception  of  the  weight  of  the  evi- 
dence. Darlington  v.  Turner,  202  U.  S. 
195,    220,    50    L    Ed.    992. 

56.  Darlington  v.  Turner,  202  U.  S.  195. 
220,   50    L    Ed.    992. 

57.  What  law  governs  in  general. — • 
Dower  v.  Richards,  151  U.  S.  658.  664.  38 
L.    Ed.    305. 

58.  Louisiana  practice. — United  States 
V.  King.  7   How.  833,  12   L.   Ed.  934. 

In  Parsons  v.  Bedford,  3  Pet.  433,  7  L. 
Ed.  732,  this  court,  on  writ  of  error  to  a 
lower  court  of  the  United  States,  held 
that  it  had  no  power  to  re-examine  facts 
tried  by  a  jury  in  the  court  below,  al- 
though that  court  was  held  in  Louisiana, 
where  congress  had  enacted  that  the  mode 
of  proceeding  should  conform  to  the  laws 
directing  the  mode  of  practice  in  the  dis- 
trict courts  of  the  state,  and  a  statute  of 
the  state  authorized  its  supreme  court  to 
try  anew  on  appeal  facts  tried  by  a  jury 
in  a  district  court.  Capital  Traction  Co. 
V.  Hof,  174  U.  S.  1,  8,  43  L.   Ed.  873. 

Under  the  Louisiana  practice,  which 
was  rd'^ntf>d  bv  this  act  for  the  courts  of 
the    United    states    in    that    district,    trials 


1016 


APPEAL  AND  ERROR. 


5.  Agre;e;mEnt  of  PartiKs. — Nor  is  it  competent  for  the  parties  by  agreement 


were  allowed  by  the  court  without  a  jury, 
and  almost  immediately  questions  arose 
as  to  the  manner  in  which  such  cases 
should  be  brought  to  this  court  for  review 
by  writ  of  error.  There  was  much  diffi- 
culty in  reaching  a  settlement  of  the  prac- 
tice, but  in  United  States  v.  King.  7  How. 
833,  845,  12  L.  Ed.  934,  it  was  decided 
unanimously  "that  the  decision  of  the  cir- 
cuit court  upon  the  questions  of  fact  must, 
like  the  finding  of  a  jury,  be  regarded  as 
conclusive;  that  the  writ  of  error  can 
bring  up  nothing  but  questions  of  law." 
Following  this  was  the  case  of  Bond  v. 
Brown,  12  How.  254,  256,  13  L.  Ed.  977, 
where  Mr.  Chief  Justice  Taney  said:  "And 
whether  the  fact  was  rightly  decided  or 
not  according  to  the  evidence  is  not  open 
to  inquiry  in  this  court.  The  decision  of 
the  court  below  in  this  respect  is  as  con- 
clusive as  the  verdict  of  a  jury  when  the 
case  is  brought  here  by  writ  of  error." 
Other  cases  to  the  same  effect  may  be 
found.  Such  is  now  the  settled  law  with 
reference  to  trials  of  issues  of  fact  in 
Louisiana,  when  a  review  is  sought  in  this 
court  by  writ  of  error.  The  Abbotsford, 
98  U.    S.   440,   442,   25   L.    Ed.    168. 

By  the  Louisiana  practice,  if  neither 
party  claims  a  trial  by  jury,  the  whole 
case  is  decided  by  the  court;  matters  of 
fact  as  well  as  of  law.  Where,  upon  such 
a  trial,  no  testimony  is  objected  to,  and 
it  does  not  appear  that  any  question  of 
law  arose  or  was  decided,  and  the  case  is 
brought  to  this  court  by  writ  of  error, 
the  judgment  of  the  court  below  must  be 
affirmed.  The  decision  of  the  court  be- 
low, upon  questions  of  fact,  is  as  con- 
clusive upon  this  court  as  the  verdict  of 
a  jury  would  be.  Bond  v.  Brown,  12  How. 
254,   13  L.   Ed.  977. 

In  Louisiana,  the  supreme  court  of  the 
state  reviews  the  questions  of  fact  as  well 
as  of  law  which  are  brought  up  from  the 
court  below;  and  when  it  reverses  a  judg- 
ment upon  either  ground,  it  gives  the 
judgment  which  the  inferior  court  ought 
1o  have  given.  But  where  a  case  is 
brought  before  this  court  by  a  writ  of 
error,  it  can  only  review  questions  of  law; 
and,  therefore,  where  the  validity  of  a 
verdict  of  a  jury  is  brought  into  ques- 
tion, the  practice  which  prevails  in  the 
state  courts  of  Louisiana  is  inapplicable 
in  the  courts  of  the  United  States.  Hence, 
where  a  jury  found  a  verdict  ni  general 
for  the  plaintiff  in  a  suit  upon  a  promis- 
sory note,  without  finding  the  amount 
due,  which  the  laws  and  practice  of 
Louisiana  require  them  to  do,  and  the 
court  then  gave  judgment  for  the  amount 
of  the  note,  this  would  have  been  ad- 
judged to  be  cause  of  reversal  of  the  judg- 
ment by  the  supreme  court  of  the  state, 
but  cannot  be  so  held  by  this  court.  Parks 
V.  Turner,  12  How.  39,  13  L-  Ed.  883. 


This  action  was  instituted  in  the  dis- 
trict court  of  the  United  States  for  the 
eastern  district  of  Louisiana,  according 
to  the  forms  of  proceedings  adopted  and 
practiced  in  the  courts  of  that  state.  The 
cause  was  tried  by  a  special  jury,  and  a 
verdict  was  rendered  for  the  plaintiff.  On 
the  trial,  the  counsel  for  the  defendant 
moved  the  court  to  direct  the  clerk  of  the 
court  to  take  down  in  writing  the  testi- 
mony of  the  witnesses  examined  in  the 
cause,  that  the  same  might  appear  on 
record;  such  being  the  practice  of  the 
state  courts  of  Louisiana;  and  which  prac- 
tice the  counsel  for  the  defendant  insisted 
was  to  prevail  in  the  courts  of  the  United 
States,  according  to  the  act  of  congress 
of  the  26th  of  May,  1824;  which  provides 
that  the  mode  of  proceeding  in  civil 
causes,  in  the  courts  of  the  United  States 
established  in  Louisiana,  shall  be  con- 
formable to  the  laws  directing  the  prac- 
tice in  the  district  court  of  the  state,  sub- 
ject to  such  alterations  as  the  judges  of 
the  courts  of  the  United  States  should 
establish  by  rules.  The  court  refused  to 
inake  the  order,  or  to  permit  the  testi- 
mony to  be  put  down  in  writing;  the 
judge  expressing  the  opinion  that  the 
courts  of  the  United  States  are  not  gov- 
erned by  the  practice  of  the  courts  of  the 
state  of  Louisiana.  The  defendant  moved 
for  a  new  trial,  and  the  motion  being  over- 
ruled and  judgment  entered  for  the  plain- 
tiff on  the  verdict,  the  defendant  brought 
a  writ  of  error  to  this  court.  Under  the 
laws  of  Louisiana,  on  the  trial  of  a  cause 
before  a  jury,  if  either  party  desires  it, 
the  verbal  evidence  is  to  be  taken  down 
in  writing  by  the  clerk,  to  be  sent  to  the 
supreme  court,  to  serve  as  a  statement  of 
facts  in  case  of  appeal;  and  the  written 
evidence  produced  on  the  trial  is  to  be 
filed  with  the  proceedings.  This  is  done 
to  enable  the  appellate  court  to  exercise 
the  power  of  granting  a  new  trial,  and 
of  revising  the  judgment  of  the  inferior 
court.  Held,  that  the  refusal  of  the  judge 
of  the  district  court  of  the  United  States 
to  permit  the  evidence  to  be  put  in  writ- 
ing, could  not  be  assigned  for  error  in 
this  court,  the  cause  having  been  tried 
in  the  court  below  and  a  verdict  given 
on  the  facts  by  a  jury;  if  the  same  had 
been  put  in  writing,  and  been  sent  up  to 
this  court  with  the  record,  this  court, 
proceeding  under  the  constitution  of  the 
United  States  and  of  the  amendment 
thereto  which  declares,  "no  fact  once  tried 
by  a  jury  shall  be  otherwise  re-examin- 
able  in  any  court  of  the  United  States, 
than  according  to  the  rules  of  the  com- 
mon law,"  is  not  competent  to  redress 
anv  error  by  granting  a  new  trial.  Par- 
sons v.   Bedford.  3  Pet.  433,  7  L.    Ed.   732. 

In  a  petitory  action,  in  the  nature  of 
ejectment,   to   recover   land   in   Louisiana, 


J 


APPEAL  AND  ERROR. 


1017 


to  impose  upon  this  court  the  duty  of  considering  matters  of  fact.^^ 

6.  Construction  of  Statute. — Where  words  in  an  act  limiting  the  reviewing 
power  of  this  court,  in  cases  where  the  facts  have  been  found  below,  "to  a  de- 
termination of  the  questions  of  law  arising  upon  the  record  and  to  the  rulings 
of  the  court  excepted  to,"  have  acquired,  through  judicial  interpretation,  a  defi- 
nite meaning,  by  which  that  power,  on  exceptions,  is  confined  to  questions  of 
law,  they  will,  when  found  in  a  subsequent  act,  be  presumed  to  be  used  in  the 
same  sense,  unless  a  contrary  intention  appears  from  the  act.*^" 


the  subject  was  fully  explained  by  Chief 
Justice  Taney,  who  (according  to  the 
original  opinion  on  file,  misprinted  in 
some  particulars  in  the  official  report) 
said:  "According  to  the  laws  of  that 
state,  unless  one  of  the  parties  demurs  on 
trial  by  jury,  the  court  decides  the  fact 
as  well  as  the  law;  and  if  the  judgment 
is  removed  to  a  higher  court  for  revision, 
the  decision  upon  the  fact  as  well  as  the 
law  is  open  for  examination  in  the  appel- 
late court.  The  record  transmitted  to  the 
superior  court,  therefore,  in  the  state 
practice  necessarily  contains  all  the  evi- 
dence offered  in  the  inferior  court.  And 
as  there  is  no  distinction  between  courts 
of  law  and  courts  of  equity,  the  legal  and 
equitable  rights  of  the  parties  are  tried 
and  decided  in  the  same  proceeding.  In 
the  courts  of  the  United  States,  however, 
the  distinction  between  courts  of  law  and 
of  equity  is  preserved  in  Louisiana  as  well 
as  in  the  other  states.  And  the  removal 
of  the  case  from  the  circuit  court  to  this 
court  is  regulated  by  act  of  congress,  and 
not  by  the  practice  of  Louisiana;  and  the 
writ  of  error,  by  which  alone  a  case  can 
be  removed  from  a  circuit  court  when 
sitting  as  a  court  of  law,  brings  up  for 
revision  here  nothing  but  questions  of 
law;  and  if  the  case  has  been  tried  ac- 
cording to  the  Louisiana  practice,  with- 
out the  intervention  of  a  jury,  the  de- 
cisions of  the  circuit  court  upon  ques- 
tions of  fact  are  as  conclusive  as  if  they 
had  been  found  by  the  jury."  United 
States  V.  King.  7  How.  833,  12  L.  Ed.  934, 
937;  Dower  v.  Richards,  151  U.  S.  658,  665, 
38  L.  Ed.  305. 

Construction  of  act  of  1824. — The  stat- 
ute of  Louisiana,  requiring  their  courts 
to  have  the  testimony  taken  down  in  all 
cases  where  an  appeal  lies  to  the  supreme 
court,  and  the  adoption  of  this  rule  by 
the  court  of  the  United  States,  includes 
only  cases  where  an  appeal  (technically 
speaking)  lies,  and  not  cases  which  are 
carried  to  an  appellate  court  by  writ  of 
error.  "To  construe  the  act  of  18?4,  mak- 
ing the  practice  existing  in  Louisiana  the 
guide  to  that  in  the  courts  of  the  United 
States,  when  sitting  in  that  state,  as  if 
meaning  to  devolve  on  this  court  such  a 
re-examination  of  facts,  without  a  trial  by 
jury,  in  a  case  at  law,  like  this,  and  not 
one  in  equity  or  admiralty,  would  be  to 
give  to  it  an  unconstitutional  operation, 
dangerous    to   the    trial   by   jury,     and      at 


times  subversive  of  the  public  liberties. 
Parsons  v.  Bedford,  3  Pet.  433,  448,  7  L. 
Ed.  732.  In  a  case  of  chancery  or  ad- 
miralty jurisdiction,  it  might  be  different, 
as  in  those,  by  the  law  of  the  land,  a 
technical  appeal  lies,  and  the  facts  are 
there  open  to  reconsideration  in  this 
court.  Livingston  v.  Story.  9  Pet.  632,  9 
L.  Ed.  255;  McCollum  v.  Eager,  2  How. 
61,  64,  11  L.  Ed.  179."  Phillips  v.  Preston, 
5  How.  278,  288,  12  L.  Ed.  152,  cited  in 
Arthurs  v.  Hart,  17   How.  6,  15  L.  Ed.  30. 

"No  court  ought,  unless  the  terms  of 
an  act  of  congress  render  it  unavoidable, 
to  give  a  construction  to  the  act  which 
should,  however  unintentional,  involve  a 
violation  of  the  constitution.  The  terms 
of  the  act  of  1824  may  well  be  satisfied 
by  limiting  its  operation  to  modes  of  prac- 
tice and  proceeding  in  the  courts  below, 
without  changing  the  effect  or  conclusive- 
ness of  the  verdict  of  a  jury  upon  the 
facts  litigated  on  the  trial.  The  party 
may  bring  the  facts  into  review  before 
the  appellate  court,  so. far  as  they  bear 
upon  questions  of  law,  by  bill  of  excep- 
tions. If  there  be  any  mistake  of  the 
facts,  the  court  below  is  competent  to  re- 
dress it  by  granting  a  new  trial."  Par- 
sons V.  Bedford,  3  Pet.  433,  7  L.  Ed.  732. 

"Was  it  the  intention  of  congress,  by 
the  general  language  of  the  act  of  1824,  to 
alter  the  appellate  jurisdiction  of  this 
court,  and  to  confer  on  it  the  power  of 
granting  a  new  trial  by  a  re-examination 
of  the  facts  tried  by  the  jury — to  enable 
it,  after  trial  by  jury,  to  do  that  in  respect 
to  the  courts  of  the  United  States,  sit- 
ting in  Louisiana,  which  is  denied  to  such 
courts  sitting  in  all  the  other  states  in  the 
Union?  We  think  not."  Parsons  v.  Bed- 
ford, 3  Pet.  433,  448,  7  L.   Ed.  732,  737. 

59.  Agreement  of  parties. — "This  case 
came  before  the  court  under  an  unusual 
agreement  of  the  parties,  by  which  mat- 
ters of  fact,  property  cognizable  before  a 
jury,  are  submitted  to  the  judgment  of 
the  court.  The  court  desire  to  be  under- 
stood as  not  admitting  that  it  is  compe- 
tent for  the  parties  by  any  such  agree- 
ment to  impose  this  duty  upon  them.  The 
peculiar  circumstances  of  this  case  fur- 
nish a  sufficient  apology  for  this  agree- 
ment, but  it  is  not  to  be  drawn  into  prece- 
dent." Shankland  v.  Washington,  5  Pet. 
390,    8    L.    Ed.    166. 

60.  Construction  of  statute. — The  Ab- 
bottsford,  98  U.  S.  440,  25   L.  Ed.  168. 


1018 


APPEAL  AND  ERROR. 


7.  Weight  and  Sufficiency  of-  Evidence. — It  is  well  settled  that  it  is  not 
our  province  on  a  writ  of  error  to  determine  the  weight  to  be  given  to  the  evi- 
dence. In  such  case  we  are  confined  to  the  consideration  of  exceptions  taken  at 
the  trial,  to  the  admission  or  rejection  of  evidence,  and  to  the  charge  of  the  court 
and  its  refusal  to  charge.  We  have  no  concern  with  questions  of  fact,  or  the 
weight  to  be  given  to  the  evidence  which  will  properly  admit  it.^i 

If  the  findings  of  the  jury  are  against  the  weight  of  the  evidence,  the 
remedv  is  by  motion  for  new  trial,  and  where  that  is  not  done,  this  court  cannot 
exercise  a  function  which  was  that  of  a  jury.^^ 

Effect  of  Evidence  and  Burden  of  Proof. — A  determination  by  the  court 


61.    Weight  and  sufficiency  of  evidence. 

—Minor  v.  Tillottson.  2  How.  392,  11  L. 
Ed.  312;  Zeller  v.  Eckert,  4  How.  289,  11 
L.  Ed.  979;  Dirst  v.  Morris,  14  Wall.  484, 
20  L.  Ed.  722;  Prentice  v.  Zane,  8  How. 
470,  12  L.  Ed.  1160;  Wilson  z'.  Everett, 
139  U.  S.  616,  35  L.  Ed.  286;  ^tna  Life 
Ins.  Co.  V.  Ward,  140  U.  S.  76,  35  L.  Ed. 
371;  Corinne  Mill.  etc..  Co.  v.  Toponce. 
152  U.  S.  405,  409,  38  L.  Ed.  493;  Case  v. 
Marchand,  154  U.  S.,  appx.  642.  38  L.  Ed. 
1090;  Generes  v.  Campbell,  11  Wall.  193.  199, 
20  L.  Ed.  110;  Dower  v.  Richards.  151  U. 
S.  658,  38  L.  Ed.  305;  Nashua  Savings 
Bank  v.  Anglo-American,  etc.,  Co.,  189  U. 
S.    221,   231,   47    L.    Ed.   782. 

This  court  cannot  review  verdicts  of 
the  jury  upon  the  weight  of  the  evidence. 
New  York,  etc..  R.  Co.  v.  Estill,  147  U. 
S.  591,  597,617,  37  L.  Ed.  298,  citing  Zeller  v. 
Eckert,  4  How.  289.  11  L.  Ed.  979;  Ex- 
press Co.  V.  Ware,  20  Wall.  543,  22  L. 
Ed.  422;  Lancaster  v.  Collins,  115  U.  S. 
222  29  L.  Ed.  373;  Chicago,  etc..  R.  Co. 
r.   Ohle,   117  U.   S.   123,  29   L.   Ed.  837. 

This  court  cannot  review  the  weight  of 
the  evidence,  and  can  look  into  it  only 
to  see  whether  there  was  error  in  not  di- 
recting a  verdict  for  the  plaintiff  on  the 
questicm  of  variance,  or  because  there 
was  no  evidence  to  sustain  the  verdict 
rendered.  Lancaster  v.  Collins,  115  U.  S. 
222,   225,   29   L.    Ed.   373. 

Our  examination  must  be  restricted  to 
the  question  of  law  involved  in  the  ruling 
of  the  court  below,  and  where  issues  of 
fact  were  fairly  submitted  to  the  jury, 
this  court  must  assume  on  writ  of  error, 
when  the  evidence  is  conflicting,  that  the 
verdict  of  the  jury  is  correct.  Hall  v. 
Cordell,  142  U.  S.  115,  35  L.   Ed.  956. 

Where  the  jury  were  fully  and  properly 
instructed  in  respect  to  every  aspect  of 
the  case,  we  have  no  authority  to  set 
aside  their  verdict,  even  if  it  does  not  ap- 
pear to  be  justified  bv  the  evidence. 
Shauer  v.  Alterton,  151  U.  S.  607,  626,  38 
L.  Ed.  286,  citing  Railroad  Co.  v.  Fraloff, 
100  U.  S.  24,  25  L.  Ed.  131;  Lincoln  v. 
Power,  151  U.   S.  436,  38   L.   Ed.  224. 

An  assignment  of  error  that  the  evi- 
dence conclusively  showed  that  the  trans- 
actions upon  which  the  plaintiffs  below 
claimed  a  right  to  recover  were  wagering 
and  gambling  contracts,  and  that  the 
court   erred   in   not   so    holding     and     the 


jury  in  not  so  finding,  is  of  course  with- 
out merit,  since  it  asks  us  to  determine 
the  weight  of  proof  and  thus  usurp  the 
province  of  the  jury.  Hansen  v.  Boyd, 
161   U.    S.   397,   40  L.   Ed.   746. 

Although  it  should  appear  that  were 
this  court  to  usurp  functions  of  the  jury, 
and  determine  the  weight  to  be  given  to 
the  evidence,  we  might  arrive  at  different 
conclusions,  yet  this  is  not  our  province 
on  a  writ  of  error.  "In  such  a  case  we 
are  confined  to  the  consideration  of  ex- 
ceptions, taken  at  the  trial,  to  the  ad- 
mission or  rejection  of  evidence  and  to 
the  charge  of  the  court  and  its  refusals 
to  charge.  We  have  no  concern  with 
questions  of  fact,  or  the  weight  to  be 
given  to  the  evidence  which  was  prop- 
erly admitted.  Minor  z\  Tillotson.  2  How. 
392,  393,  11  L.  Ed.  312;  Zeller  z:  Eckert,  4 
How.  289,  299,  11  L.  Ed.  979;  Dirst  v. 
Morris.  14  Wall.  484,  490.  20  L.  Ed.  722; 
Prentice  v.  Zane,  8  How.  470,  485,  12  L. 
Ed.  1160;  Wilson  v.  Everett.  139  U.  S. 
616,  35  L.  Ed.  286."  yEtna  Lrfe  Ins.  Co. 
V.  Ward,  140  U.  S.  76,  77,  35  L.  Ed.  371. 

As  stated  by  us  in  ^tna  Life  Ins.  Co. 
V.  Ward:  "It  may  be  that  if  we  were  to 
usurp  the  functions  of  the  jury  and  de- 
termine the  weight  to  be  given  to  the 
evidence,  we  might  arrive  at  a  different 
conclusion.  But  that  is  not  our  province 
on  a  writ  of  error.  In  such  a  case  we 
are  confined  to  the  consideration  of  ex- 
ceptions, taken  at  the  trial,  to  the  ad- 
mission or  rejection  of  evidence  and  to 
the  charge  of  the  court  and  its  refusals 
to  charge.  We  have  no  concern  with 
questions  of  fact,  or  the  weight  to  be 
given  to  the  evidence  which  was  properly 
admitted."  Washington,  etc.,  R.  Co..  140 
U.  S.  91,  35  L.  Ed.  339,  citing  numerous 
cases.  New  York,  etc.,  R.  Co.  v.  Winter, 
143   U.   S.   60,   75,   36    L.    Ed.   71. 

Where  an  exception  to  a  denial  of  a 
motion  or  request,  that  the  jury  be  in- 
structed to  find  for  defendants  or  either 
of  them,  is  duly  saved,  it  is  open  to  the 
court  to  consider  whether  there  is  any 
evidence  to  sustain  the  verdict,  though 
not  to  pass  upon  its  weight  or  sufficiency. 
Wiborg  V.  United  States,  163  U.  S.  632, 
658.   41    L.    Ed.    289. 

62.  Hedden  v.  Iselin,  142  U.  S.  676,  35 
L.   Ed.   1155. 


APPEAL  AND  ERROR. 


1019 


below  of  questions  as  to  the  effect  of  evidence  and  burden  of  proof,  even  if  nec- 
essary to  the  decision  of  the  case,  is  final  and  cannot  be  reviewed  here.*'^  If  the 
finding  depends  upon  the  weighing  of  conflicting  evidence,  it  is  a  decision  on  the 
facts,  the  revision  of  which  is  forbidden  to  this  court  by  §  1011.*^*  In  other 
words,  when  the  evidence  is  conflicting,  there  being  evidence  to  sustain  the  de- 
cree, this  court  will  not  ordinarily  interfere.^5 

An  exception  to  the  denial  of  a  motion  for  a  new  trial  upon  the  ground 
that  the  verdict  was  not  supported  by  the  amount  and  character  of  evidence  that* 
is  required  by  law,  is  untenable  under  repeated  rulings  of  this  court.®^ 

Refusal  to  Direct  Verdict. — The  question  of  the  sufficiency  of  the  evidence 
for  the  plaintiff'  to  support  his  action  cannot  be  considered  by  this  court.  It  has 
repeatedly  been  decided  that  a  request  fcM-  a  ruling  that,  upon  the  evidence  intro- 
duced, the  plaintiff  is  not  entitled  to  recover,  cannot  be  made  by  the  defendant, 
as  a  matter  of  right,  unless  at  the  close  of  the  whole  evidence;  and  that  if  the  de- 
fendant, at  the  close  of  the  plaintiff"'s  evidence,  and  without  resting  his  own  case, 
requests  and  is  refused  such  a  ruling,  the  refusal  cannot  be  assigned  for  oror.*'' 


63.  Effect  of  evidence  and  burden  of 
proof. — Marsh  z'.  Insurance  Co.,  131  U. 
S.,  appx.,  213,  25  L.   Ed.  9. 

The  weight  of  evidence  and  the  extent 
to  which  it  was  contradicted  or  explained 
away  by  witnesses,  are  questions  ex- 
clusivelj'  for  the  jury,  and  not  reviewable 
upon  writ  of  error.  Crumpton  z\  United 
States,  138  U.  S.  361,  363,  34  L.  Ed.  958. 

To  present  a  question  to  this  court, 
the  subordinate  tribunal  must  ascerta.n 
the  facts  upon  which  the  judgment,  or 
opinion  excepted  to,  is  founded;  for  this 
court  cannot  determine  the  weight  or  ef- 
fect of  evidence,  nor  decide  mixed  ques- 
tions of  law  and  fact.  Zeller  v.  Eckert, 
4  How.  289,  11  L.  Ed.  979;  York,  etc.,  R. 
Co.  V.  Myers,  18  How.  246,  251,  15  L-  Ed.  380. 

"We  have  no  concern,  on  a  writ  of  er- 
ror, with  questions  of  fact,  or  whether  the 
finding  of  the  jury  accords  with  the 
weight  of  the  evidence.  The  law  has  pro- 
vided another  remedy  for  errors  of  this 
description,  namely,  a  motion  in  the 
court  below  for  a  new  trial,  on  a  case 
made."  Zeller  v.  Eckert,  4  How.  289,  298, 
11   L.   Ed.  979,  983. 

If  the  question  was  whether  all  the  evi- 
dence was  sufificient  in  law  to  warrant  a 
finding  for  the  plaintiff,  he  should  have 
presented  that  question,  by  a  request  for 
a  definite  ruling  upon  that  point.  Martiu- 
ton  V.  Fairbanks,  112  U.  S.  670,  672,  28 
L.    Ed.   862. 

Where  a  party  has  a  verdict  given 
against  him  on  insufficient  evidence,  his 
remedy  is  by  motion  for  new  trial.  He 
has  no  remedy  in  a  court  of  error.  The 
City  V.  Babcock.  3  Wall.  240,  18  L.  Ed.  31. 

Whether  a  witness  called  to  testify  to 
any  matter  of  opinion  has  such  qualifica- 
tions and  knowledge  as  to  make  his  testi- 
mony admissible  is  a  preliminary  ques- 
tion for  the  judge  presiding  at  the  trial; 
and  his  decision  of  it  is  conclusive,  un- 
less clearly  shown  to  be  erroneous  in  mat- 
ter of  law.  Stillwell  Manufacturing  Co. 
V.  Phelps.  130  U.  S.  520,  527,  32  L.  Ed. 
1035. 


This  court  is  precluded  from  consider- 
ing an  assignment  of  errors  that  the  ver- 
dict was  against  the  weight  of  evidence, 
it  there  was  any  evidence  proper  to  go 
to  the  jary  in  support  of  the  verdict. 
Humes  v.  United  States,  170  U.  S.  210,  42 
L.  Ed.  1011,  citing  Crumpton  v.  United 
States,  138  U.  S.  361.  34  L.  Ed.  959; 
Moore  v.  United  States,  150  U.  S.  57,  37 
L.    Ed.    996. 

A  plaintiff  may  prove,  by  admission  of 
a  defendant,  that  all  the  steps  necessary 
to  charge  him  as  an  indorser  or  drawer 
of  a  bill  of  exchange  have  been  taken. 
Proof  of  an  acknowledgment  of  his  lia- 
bility to  pay  the  bill,  is  competent  evi- 
dence to  go  to  a  jury  as  evidence  of  no- 
tice of  dishonor.  The  effect  of  such  evi- 
dence in  the  particular  case  must  be 
determined  by  the  jury,  and  their  decision 
cannot  be  reviewed  by  an  appellate  court. 
Hyde  v.  Stone,  20  How.  170.  15  L.  Ed. 
874. 

When  the  evidence  upon  a  boundary 
line,  between  two  Mexican  grants,  is  con- 
flicting and  irreconcilable,  this  court  will 
not  interfere  with  the  decision  of  the 
court  below.  Alviso  v.  United  States,  8 
Wall.   337,   19   L.   Ed.   305. 

64.  Martinton  v.  Fairbanks,  112  U.  S. 
670.  672,  28  L.  Ed.  862;  Smith  v.  Burnett, 
173  U.  S.  430,  436,  43  L.  Ed.  756;  Crossman 
V.  Burrill,  179  U.  S.  100,  115,  45  L.  Ed. 
106;  McKinley,  etc.,  Min.  Co.  v.  Alaska, 
etc.,  Min.  Co.,  183  U.  S.  563,  569,  46  h. 
Ed.   331. 

65.  Smith  v.  Burnett,  173  U.  S.  430, 
436,  43  L.  Ed.  756;  Michigan  Central  R. 
Co.  V.  Powers.  201  U.  S.  245,  50  L.  Ed. 
744. 

66.  Moore  v.  United  States,  150  U.  S. 
57,  37  L.  Ed.  996;  Crumpton  v.  United 
States,  138  U.  S.  361,  34  L.  Ed.  958;  Wil- 
son V.  Everett.  139  U.  S.  616,  35  L.  Ed. 
3S6;  Van  Stone  v.  Stilwell,  etc.,  Mfg.  Co., 
142   U.    S.    128.    35    L.    Ed.    961. 

67.  Grand  Trunk  R.  Co.  v.  Cummings. 
106  U.  S.  700.  27  L.  Ed.  266:  Accident  Ins. 
Co.   V.   Crandal,   120  U.   S.   527,   30   L.    Ed. 


1020 


APPEAL  AND  ERROR. 


But  it  is  well  settled  that  exceptions  to  alleged  findings  of  facts,  be- 
cause unsupported  by  evidence,  present  questions  of  law  reviewable  in  courts  of 
error.*^^ 

8.  ExcEssivENEss  OF  Damages. — In  General. — This  court  is  without  author- 
ity to  disturb  an  order  of  the  circuit  court  overruling  a  motion  for  a  new  trial 
upon  the  ground  that  the  damages  are  excessive ;  our  power  is  restricted  to  the 
determination  of  questions  of  law  arising  upon  the  record.^^     The  correction  of 

•that  error,  if  there  is  any,  lies  with  the  court  below  upon  a  motion  for  a  new  trial, 
the  granting  or  refusal  of  which  is  not  assignable  for  error  hereJ* 

Report  of  Commissioners  in  Condemnation  Proceedings. — "An  appel- 
late court  will  not  interfere  with  the  report  of  commissioners  to  correct  the 
amount  of  damages  except  in  cases  of  gross  error,  showing  prejudice  or  corrup- 
tion. The  commissioners  hear  the  evidence  and  frequently  make  their  principal 
evidence  out  of  a  view  of  the  premises,  and  this  evidence  cannot  be  carried  up 
so  as  to  correct  the  report  as  being  against  the  weight  of  evidence.  Hence,  for 
an  error  in  the  judgment  of  commissioners  in  arriving  at  the  amount  of  damages, 
there  can  be  no  correction,  especially  where  the  evidence  is  conflicting.  Com- 
missioners are  not  bound  by  the  opinions  of  experts  or  by  the  apparent  weight 
of  evidence,  but  may  give  their  own  conclusions.""  ^ 

9.  Limitations  of  and  Exceptions  to  General  Rule — a.  In  General. — 
This  court  has  the  right  to  consider  under  what  instructions  and  definitions 
given  by  the  trial  court,  the  jury  found  their  verdict.  To  this  extent  the  decision 
of  the  jury  is  not  binding  upon  the  appellate  court."^- 

b.  Appeals  in  Adniiralty. — In  1803,  congress  substituted  an  appeal  from  the 
circuit  court  to  this  court,  instead  of  a  writ  of  error,  in  cases  in  equity  and  in 
admiralty ;  and  upon  such  an  appeal  the  facts  as  well  as  the  law  were  open  to 
review  in  both  those  classes  of  cases  until  1875,  when  the  appeal  in  admiralty 
was  restricted  to  questions  of  law.'^ 


740;  Northern  Pac.  R.  Co.  r.  Mares,  123 
U.  S.  710,  31  L.  Ed.  296;  Robertson  v. 
Perkins,  1?9  U.  S.  233.  32  L.  Ed.  686;  Co- 
lumbia, etc.,  R.  Co.  V.  Hawthorne,  144  U. 
S.   202,   206,   36   L.    Ed.   405. 

68.  Laing  v.  Rigney.  160  U.  S.  531.  540, 
40  L.   Ed.   52.5. 

69.  Excessiveness  of  damages  in  gen- 
eral.—Wabash  R.  Co.  V.  McDaniels,  107 
U.  S.  454,  27  L.  Ed.  605,  citing  Railroad 
Co.  V.  Fraloff,  100  U.  S.  24,  25  L.  Ed. 
531. 

The  principal  ground  of  complaint  by 
the  defendant  seems  to  be  that  the  jury 
had  no  basis  for  finding  a  verdict  for 
$10,000.  but  that  their  verdict  should  have 
been  for  either  $5,000  or  $15,000.  But  this 
was  a.  question  to  be  reached  only  through 
a  motion  for  a  new  trial;  and  we  cannot, 
on  this  writ  of  error,  review  any  error 
committed  in  that  respect  by  the  jury,  if 
there  were  one.  Nor  can  we  take  cogni- 
zance of  the  complaint  that  the  court  over- 
ruled the  motion  for  a  new  trial,  or  that 
the  verdict  of  the  iury  was  contrary  to 
law  and  not  warranted  bv  the  testimony. 
The  case  was  fairly  submitted  to  the  jury, 
and  the  issues  involved  were  passed  upon 
bv  them.  Wilson  v.  Everett.  139  U.  S. 
616.    621,    35    L.    Ed.   286. 

70.  New  York,  etc.,  R.  Co.  v.  Winter, 
143   U.   S.   60,   75.   36   L.    Ed.   71. 

It  is  not  permitted  for  this  court,  sit- 
ting as  a  court  of  errors,  in  a  case  wherein 


damages  have  been  fixed  by  the  verdict 
of  a  jury,  to  take  notice  of  an  assignment 
of  error  that  the  damages  found  by  the 
jury  are  excessive,  and  appear  to  have 
been  given  under  the  influence  of  passion 
and  prejudice.  An  error  of  the  jury  in 
allowing  an  unreasonable  amount  is  to 
be  redressed  by  a  motion  for  a  new  trial. 
Lincoln  v.  Power,  151  U.  S.  436,  38  L. 
Ed.  224,  citing  Parsons  v.  Bedford,  3  Pet. 
433.  7  L.  Ed.  732;  Railroad  Co.  v.  Fraloflf, 
100  U.    S.   24,   25   L.   Ed.    531. 

71.  Shoemaker  v.  United  States,  147  U. 
S.    2S2,   306.    37    L.    Ed.    170. 

72.  Limitations  of  and  exceptions  to 
general  rule  in  general. — Leovy  ^.  United 
States.    177   U.   S.    621,   44   L.    Ed.    914. 

73.  Appeals  in  admiralty. — Act  of 
March  3,  1803,  c.  40,  2  Stat.  244;  The  San 
Pedro,  2  Wheat.  132.  4  L.  Ed.  202,  203;  The 
Baltimore.  8  Wall.  377,  19  L.  Ed.  463; 
Rev.  Stat.,  §  692;  Act  of  February  16, 
1875.  c.  77.  §  1;  18  Stat.  315;  The  Erancis 
Wright,  105  U.  S.  381,  26  L.  Ed.  1100; 
Dower  7'.  Richards,  151  U.  S.  658,  664.  38 
L.   Ed.   305. 

"Power  to  reverse  for  error,  in  fact, 
any  judgment  or  decree  of  a  circuit  court 
brought  here  for  revision,  being  abso- 
lutely prohibited,  it  became  necessary  to 
prescribe  some  mode  by  which  the  facts 
in  equity  suits  and  in  cases  of  admiralty 
and  maritime  jurisdiction  should  be  as- 
certained   and    embodied    in    the    record, 


APPEAL  AND  ERROR. 


1021 


But  under  the  act  of  February  16,  1875,  which  took  effect  May  1,  of 
that  year,  entitled  "An  act  to  facihtate  the  disposition  of  cases  in  the  supreme 
court  of  the  United  States,  and  for  other  purposes,"  "the  finding  of  facts  in  the 
circuit  court  is  conclusive,  and  that  the  only  rulings  which  can  be  presented  for 
review  here  by  bill  of  exceptions  are  those  made  upon  questions  of  law.  Such 
has  been  the  construction  given  by  this  court  to  statutes  of  a  similar  character  in 
a  long  line  of  decisions,  commencing  soon  after  the  court  was  organized.'"^-* 

Where  the  trial  court  had  found  the  ultimate  facts  a  mere  failure  or  re- 
fusal to  find  mere  incidental  facts  which  only  amount  to  evidence  bearing  on  the 
ultimate  facts  of  the  case,  is  not  error.  Questions  depending  on  the  weight  of 
evidence  are  to  be  conclusively  settled  below;  and  the  fact  in  respect  to  which 
such  an  exception  may  be  taken  must  be  one  of  the  material  facts  on  which  the 
correct  determination  of  the  cause  depends.'^ 

c.  Appeals  in  Equity. — Upon  an  appeal  in  equity,  the  facts  as  well  as  the  law 
are  to  be  determined  by  this  court.''*^  In  chancery  cases,  or  in  any  other  class  of 
cases  where  all  the  evidence  becomes  part  of  the  record  in  the  highest  court  of 
the  state,  the  same  record  being  brought  here,  this  court  can  review  the  decision 
of  that  court  on  both  the  law  and  the  fact,  so  far  as  may  be  necessary  to  deter- 
mine the  validity  of  the  right  so  set  up  under   the    act   of   congress."*"     But    this 


and  it  was  accordingly  provided  in  the 
19th  section  of  the  judiciary  act.  that  it 
should  be  the  duty  of  the  circuit  courts 
in  such  cases  to  cause  the  facts  on  which 
they  founded  their  sentence  or  decree 
fully  to  appear  upon  the  record  in  some 
one  of  the  modes  therein  described,  and 
while  that  provision  remained  in  force 
this  court  had  no  more  right  to  re-ex- 
amine the  facts  found  in  such  a  case  than 
the  court  possesses  in  a  common-law  suit 
where  the  facts  are  found  by  the  verdict 
of  a  jurv.  1  Stat,  at  L.  84;  2  Stat,  at  L. 
244."  The  Baltimore,  8  Wall.  377,  382,  19 
L.   Ed.  463. 

74.  The  Abbottsford.  98  U.  S.  440,  25 
L.    Ed.    168. 

When  the  act  of  1875  was  passed, 
words  in  a  statute  limiting  the  power  of 
this  court  in  the  review  of  cases  where 
the  facts  had  been  found  below  "to  a 
determination  of  the  questions  of  law  aris- 
ing upon  the  record  and  to  the  rulings 
of  the  court  excepted  to,"  had  acquired, 
through  judicial  interpretation,  a  well  un- 
derstood legislative  meaning,  and  that 
they  confined  our  jurisdiction  to  the  re- 
examination of  questions  of  law  alone. 
The  Abbottsford,  98  U.  S.  440,  444,  25 
L.    Ed.    168. 

75.  The  Francis  Wright,  105  U.  S.  381, 
26  L.  Ed.  1100;  Merchants'  Ins.  Co.  z: 
Allen,  121  U.  S.  67,  30  L.  Ed.  858;  The 
John  H.  Pearson.  121  U.  S.  469,  30  L.  Ed. 
979;  The  City  of  New  York,  147  U.  S. 
71.  76,  37  L.  Ed.  84;  Hathaway  v.  Cam- 
bridge First  Nat.  Bank.  134  tj.  S.  494. 
498.  33  L.  Ed.  1004;  The  E.  A.  Packer, 
140   U.    S.   360,   365,   35    L.    Ed.   453. 

In  the  case  of  Francis  Wright,  105  U. 
S.  381,  26  L.  Ed.  1100,  it  was  ruled,  p. 
387,  and,  as  we  are  satisfied,  correctly, 
"that  if  the  circuit  court  neglects  or  re- 
fuses,  on   request,   to  make   a   finding   one 


way  or  the  other,  on  a  question  of  fact 
material  to  the  determination  of  the  cause, 
when  evidence  has  been  adduced  on  the 
subject,  an  exception  to  such  refusal, 
taken  in  time  and  properly  presented  by 
a  bill  of  exceptions,  may  be  considered 
here  on  appeal.  So,  too,  if  the  court, 
against  remonstrance,  finds  a  material 
fact  which  is  not  supported  by  any  evi- 
dence whatever,  and  an  exception  is 
taken,  a  bill  of  exceptions  may  be  used 
to  bring  up  for  review  the  ruling  in  that 
particular.  In  the  one  case,  a  refusal  to 
find  would  be  equivalent  to  a  ruling  that 
the  fact  was  immaterial;  and,  in  the  other, 
that  there  was  some  evidence  to  prove 
what  is  found,  when  in  truth  there  was 
none."  "But,"  it  was  added,  "this  rule 
does  not  apply  to  mere  incidental  facts 
which  only  amount  to  evidence  bearing 
on  the  ultimate  facts  of  the  case.  Ques- 
tions depending  on  the  weight  of  evidence 
are.  under  the  law  as  it  now  stands  to  be 
conclusively  settled  below;  and  the  fact 
in  respect  to  which  such  an  exception  mav 
be  taken  must  be  one  of  the  material  and 
ultimate  facts  on  which  the  correct  de- 
termination of  the  cause  depends."  Mer- 
chants' Ins.  Co.  V.  Allen,  121  U.  S.  67,  71, 
30   L.    Ed.    858. 

76.  Appeals  in  equity. — Dodge  v. 
Knowles,  114  U.  S.  430.  434,  29  L.  Ed. 
144;  The  San  Pedro,  2  Wheat.  132,  141. 
4  L,  Ed.  202. 

77.  Republican,  etc.,  Bridge  Co.  v. 
Kansas,  etc.,  R.  Co.,  92  U.  S.  315.  317,  23 
L.  Ed.  515;  Elliott  v.  Toeppner,  187  U. 
S.    327,   334,   47    L.    Ed.   200. 

In  equity  cases,  which  come  up  on  ap- 
peal, and  where  the  evidence  on  which 
the  court  below  acted  is  presented  here, 
the  action  of  that  court  can  be  readily  re- 
viewed. Wetmore  v.  Rymer,  169  U.  S. 
115,  120,  42  L.   Ed.   682. 


1022 


APPEAL  AND  ERROR. 


court  will  iiot  disturb  the  decision  of  the  court  below  in  such  case,  unless  the 
error  is  clearJ^ 

The  rule  in  regard  to  the  findings  of  fact  by  the  court  of  claims  has  no 

reference  to  a  case  of  equity  jurisdiction  conferred  in  a  special  case  by  a  special 
act ;  and  in  such  a  case,  where  an  appeal  lies  and  is  taken  under  §  707  of  the 
Revised  Statutes,  this  court  must  review  the  facts  and  the  law  as  in  other  cases 
of  equity  appealed  from  other  courtsJ^ 

10.  Decisions  of  Land  Department. — The  rule  is  that  in  the  administration 
of  the  public  lands,  the  decision  of  the  land  department  upon  questions  of  fact  is 
conclusive,  and  only  questions  of  law  are  reviewable  in  the  courts. ^^     It  is  well 


78.  Morewood  v.  Enequist,  23  How. 
491,  16  L.  Ed.  516;  Gumaer  v.  Colorado 
Oil   Co.,  152  U.  S.  88.  38   L.   Ed.   365. 

In  considering  exceptions  to  a  master's 
report  in  matters  of  fact,  questioning  his 
conclusions  in  respect  to  the  amount  of 
the  defendant's  profits,  those  conclusions, 
depending  on  the  weighing  of  conflicting 
testimony,  will  not  be  set  aside  or  modi- 
fied, unless  there  clearly  appears  to  have 
been  error  or  mistake  on  his  part.  Cal- 
laghan  v.  Myers,  128  U.  S.  617,  32  L.  Ed. 
547,  citing  Tilghman  v.  Proctor.  125  U. 
S.  136,  149,  31  L.  Ed.  664;  Kimberly  v. 
Arms,  129  U.  S.  512,  32  L.  Ed.  764;  Cam- 
den V.  Stuart,  144  U.  S.  104.  36  L.  Ed. 
363;  Evans  v.  State  Bank,  141  U.  S.  107, 
35  L.  Ed.  &54;  Crawford  v.  Neal.  144  U. 
S.  585,  36  L.  Ed.  552;  Furrer  v.  Ferris, 
145  U.   S.  132,  36  L.   Ed.   649. 

79.  Harvey  v.  United  States.  105  U. 
S.  671,  26  L.  Ed.  1206;  La  Abra  Silver 
Min.  Co.  V.  United  States.  175  U.  S.  423, 
466,  44  L.  Ed.  223;  United  States  v.  Old 
Settlers,   148  U.   S.  427,  37   L.   Ed.  509. 

80.  Decisions  of  land  department. — 
Johnson  v.  Towsley,  13  Wall.  72,  20  L.  Ed. 
485;  Warren  v.  Van  Brunt,  19  Wall.  646, 
22  L.  Ed.  219;  Shepley  v.  Cowan,  91  U.  S. 
330.  23  L.  Ed.  424;  Moore  v.  Robbins,  96 
U.  S.  530.  24  L.  Ed.  848;  Marquez  v.  Fris- 
ble.  101  U.  S.  473,  25  L.  Ed.  800;  Vance 
t\   Burbank,   101  U.   S.  514,  25   L.   Ed.  929; 

-t}iiinby  z'.  Conlan.  104  U.  S.  420,  26  L.  Ed. 
800;  Smelting  Co.  v.  Kemp,  104  U.  S.  636, 
g6  L.  Ed.  875;  Steel  v.  Smelting  Co..  106 
U.  S.  447,  27  L.  Ed.  226;  Baldwin  v.  Stark, 
107  U.  S.  463,  27  L.  Ed.  526;  United  States 
V,  Minor,  114  U.  S.  233,  29  L.  Ed.  110;  Lee 
V.  Johnson.  116  U.  S.  48,  29  L.  Ed.  570; 
Wright  V.  Roseberry,  121  U.  S.  488,  30  L- 
Ed.  "l039;  Cragin  v.  Powell,  128  U.  S.  691, 
32  L.  Ed.  566;  Knight  v.  United  States 
Land  Ass'n,  142  U.  S.  161,  35  L.  Ed.  974; 
United  States  v.  California,  etc..  Land  Co., 
148  U.  S.  31.  37  L.  Ed.  354;  Barden  v. 
Northern  Pac.  R.  Co.,  154  U.  S.  288.  327, 
S8  L.  Ed.  919;  Catholic  Bishop  v.  Gibbon, 
158  U.  S.  155,  166,  39  L.  Ed.  931;  Burfen- 
hing  V.  Chicago,  etc.,  R.  Co.,  163  U.  S. 
221,  41  L.  Ed.  175;  Johnson  v.  Drew,  171 
U.  S.  93,  99,  42  L.  Ed.  88;  Gardner  v. 
Bonestell,  180  .U.  S.  362.  45  L.  Ed.  574; 
Bates  V.  Payne.  194  U.  S.  106,  48  L.  Ed. 
894;  Estes  v.  Timmons,  199  U.  S.  391,  50 
L.   Ed.  241;  De  Canibra  v.  Rogers,  189  U. 


S.  119,  47  L.  Ed.  734;  Gertgens  v.  O'Con- 
nor, 191  U.  S.  237,  240,  48  L.  Ed.  163; 
Potter  V.  Hall.  189  U.  S.  292,  47  L.  Ed. 
817;  Moss  V.  Dowman,  176  U.  S.  413,  415, 
44  L.  Ed.  526. 

It  has  been  repeatedly  decided  in  this 
court,  that  the  decisions  of  the  land  de- 
partment are  conclusive  everywhere  as 
regards  all  questions  of  fact.  Baldwin  v. 
Stark,  107  U.  S.  463,  27  L.  Ed.  526.  citing 
Johnson  v.  Towsley,  13  Wall.  72,  20  L.  Ed. 
485;  Gibson  v.  Chouteau,  13  Wall.  92,  20 
L.  Ed.  534;  Shepley  v.  Cowan,  91  U.  S. 
330.  23  L.  Ed.  424;  Marquez  v.  Frisbie, 
101  U.  S.  473,  25  L.  Ed.  800;  Carr  v.  Fife, 
156  U.   S.   494.   501,  38   L.   Ed.   508. 

It  is  settled  by  an  unbroken  line  of  de- 
cisions of  this  court  in  land  jurisprudence 
that  the  decisions  of  that  department  upon 
matters  of  fact  within  its  jurisdiction,  are, 
in  the  absence  of  fraud  or  imposition,  con- 
clusive and  binding  on  the  courts  of  the 
country.  Johnson  v.  Towsley,  13  Wall. 
72,  20  L.  Ed.  485;  Smelting  Company  v. 
Kemp,  104  U.  S.  636,  26  L-  Ed.  875;  Steel 
V.  Smelting  Co.,  106  U.  S.  447.  27  L.  Ed. 
226;  United  States  v.  Minor,  114  U.  S. 
233,  29  L.  Ed.  110;  and  many  other  cases. 
We  are  of  opinion,  therefore,  that  the  de- 
cision of  the  land  department  on  a  ques- 
tion of  the  actual  physical  character  of 
certain  lands  is  not  subject  to  review  by 
the  courts.  Heath  v.  Wallace,  138  U.  S. 
573,   585,   34   L.    Ed.   1063. 

Under  the  laws  of  the  United  States 
prescribing  the  manner  in  which  portions 
of  the  public  domain  may  be  acquired  by 
settlers,  it  is  provided  that  from  the  rul- 
ings of  the  officers  of  the  land  department, 
an  appeal  lies  to  the  commissioner  of  the 
general  land  office  and  from  him  to  the 
secretary  of  the  interior.  "For  mere  er- 
rors of  judgment  as  to  the  weight  of  evi- 
dence on  these  subjects,  by  any  of  the 
subordinate  officers,  the  only  remedy  is 
by  an  appeal  to  his  superior  of  the  depart- 
ment. The  courts  cannot  exercise  any 
direct  appellate  jurisdiction  over  the  rurl- 
ings  of  those  officers  or  of  their  superior 
in  the  department  in  such  matters,  nor 
can  they  reverse  or  correct  them  in  a  col- 
lateral proceeding  between  private  par- 
ties." Quinby  v.  Conlan,  104  U.  S.  420, 
26  L.  Ed.  800. 

The  land  department  of  the  United 
States    is    administrative    in    its    character. 


APPEAL  AND  ERROR.  1023 

settled  that  in  the  absence  of  fraud  or  imposition,  the  findings  of  the  land  depart- 
ment on  matters  of  fact  are  conclusive  upon  the  courts.^i  The  courts  do  not 
assume  any  direct  appellate  jurisdiction  over  the  rulings  of  the  land  department, 
and  they  accept  the  findings  of  that  department  as  conclusive  upon  questions  of 
fact.82  But  this  court  is  not  concluded  by  determinations  of  the  land  department 
upon  questions  of  law.*-^ 

11.  Effect  of  Bankruptcy  Act.— Section  24b  of  the  bankruptcy  act  is:  "The 
several  circuit  courts  of  appeal  shall  have  jurisdiction  in  equity,  either  interloc- 
utory or  final,  to  superintend  and  revise  in  matter  of  law  the  proceedings  of  the 
several  inferior  courts  of  bankruptcy  within  their  jurisdiction.  Such  power 
shall  be  exercised  an  due  notice  and  petition  by  any  party  aggrieved."  This  is 
confined  to  questions  of  law  and  does  not  contemplate  a  review  of  the  facts. ^^ 
Congress  did  not  attempt  by  §  25  of  the  bankrupt  act,  which  provides  that  ap- 
peals, as  in  equity  cases,  may  be  taken  in  bankruptcy  proceedings  from  the  courts 
of  bankruptcy  to  the  circuit  court  of  appeals  of  the  United  States,  from  a  judgment 
adjudging  or  refusing  to  adjudge  the  defendant  a  bankrupt,  "to  empower  the  appel- 
late court  to  re-examine  the  facts  determined  by  a  jury  under  §  19  otherwise  than 
according  to  the  rules  of  the  common  law.  The  provision  applies  to  judgments 
'adjudging  or  refusing  to  adjudge  the  defendant  a  bankrupt,'  when  trial  by  jury 
is  not  demanded,  and  the  court  of  bankruptcy  proceeds  on  its  own  findings  of 
fact.  In  such  case,  the  facts  and  the  law  are  re-examinable  on  appeal,  while  the 
verdict  of  a  jury  on  which  judgment  is  entered  concludes  the  issues  of  fact  and 
the  judgment  is  reviewable  only  for  error  of  law.  And  it  follows  that  alleged 
errors  'in  instructions  given  or  refused  or  in  the  admission  or  rejection  of  evi- 
dence,' must  appear  by  exceptions  duly  taken  and  preserved  by  bill  of  ex- 
ceptions."^-^ 

12.  How  Findings  of  Fact  by  thf  Court  May  Bf  Rfviewed — a.  In  Gen- 
eral.— Before  the  finding  of  a  fact  upon  evidence  submitted  upon  a  hearing  by 
the  court  can  be  re-examined  on  a  writ  of  error,  they  must  be  brought  into  the 
record  by  a  bill  of  exceptions,  or  an  agreed  statement  of  facts,  or  a  special  find- 
mg  in  the  nature  of  a  special  verdict,  or  in  some  other  way  known  to  the  prac- 
tice of  courts  of  error  for  the  accomplishment  of  that  purpose.^^ 

b.  Rci'iew  of  Endings  of  Court — (1)  Rule  Prior  to  Statute — aa.  In  General. — 
Before  the  passage  of  the  act  of  March  3rd,  1865,  ch.  86,  §  4,  re-enacted  in  the 

and    it   has    been    frequently   held    by    this  sythe,    159   U.    S.    46,   40   L.    Ed.   71,   citing 

court    that,    in    the    administration    of    the  Johnson   v.    Towsley,    13    Wall.    72.    20    L. 

public   land   system   of  the   United   States,  Ed.  485;   Shepley  v.   Cowan.  91   U.   S.   336, 

questions  of  fact  are  for  the  consideration  23   L.   Ed.   424;   Quinby  v.   Conlan.   104  u'. 

and  judgment  of  the  land  department,  and  S    420.  26  L.  Ed!  800;"Doolan  v.  Carr,  125 

its  judgment  thereon  is  final.     Burfenning  U.  S.  618,  624,  31  L.  Ed.  844;   Lake  S'upe- 

V.   Chicago,  etc.,   R.  Co.,   163  U.   S.  321,  41  rior.      etc.,      Co.      v.      Cunningham,       155 

L.    Ed.    175;   Johnson   v.    Drew,   171   U.    S.  U.  S.  354,  38  L.  Ed.  183;  American  School 

93,  99.  42  L.  Ed.  88;  Gardner  v.  Bonestell,  v.    McAnnulty.    187    U.    S.    94,    108,    47    L. 

180    U.    S.    362,    45    L.    Ed.    574;    American  Ed.   90. 

School   V.   McAnnulty,    187   U.   S.   94,    108,  84.    Effect   of   bankruptcy   act.— Mueller 

47   L.  Ed.  90.  v,   Nugent,   184  U.    S.   1.   9,  46    L.    Ed.   405; 

81.  Johnson  v.  Towsley,  13  Wall.  72,  20  Elliott    v.    Toeppner,    187    U.    S.    327     334 

L.   Ed.  485;  Lee  v.  Johnson,  116  U.  S.  48,  47     l      Ed.    200.       See     the    title    BANK- 

29  L.  Ed.  570;  Lake   Superior,  etc.,  Co.  v.  RUPTCY. 

Cunningham,  155  U.  S.  354.  375,  38  L.  Ed.  p^     ■pii;^.^*-     .    -r^  10-,    tt     o     ^or. 

7^0     T>      z        ■  n\  :^^^r.    ^^\      T?     r>r.  °^-    Elliott   v.    Toeppner,    187    U.    S.    327. 

183;    Burfennmg  v.   Chicago,   etc..    R.    Co..       „_  -.     «  ,  i'i'       ,  w  , 

163  U.  S.  321,  323,  41  L.  Ed.  175;  Gonzales  '^"^'*'  ^'^-  ^^-  ~""- 

V.   French,   164  U.   S.   338,  41   L.    Ed.  458;  86.   How  findings   of   fact   by  the   court 

Johnson  v.   Drew,   171  U.   S.  93,  99,   42  L.  "^^^    ^e    reviewed    in    general.— Sto.rm    v. 

Ed     88;    Love   v.    Flahive,    205    U.    S.    195.  United   States,  94   U.   S.   76,  81,   24   L.   Ed. 

198    51   L    Ed    768.  "^^5    Suydan   v.    Williamson,    20    How.    427, 

82.  Shepley  z'.  Cowan.  91  U.  S.  330.  23  If'  L.  Ed.  978;  Baltimore,  etc.,  R.  Co.  v. 
L  Ed.  424;  Quinby  v.  Conlan,  104  U.  S.  Trustees  Sixth  Presbyterian  Church,  91 
420,  26  L  Ed.  800;  Clark  V.  Hcrington,  U.  S.  127,  130,  23  L.  Ed.  260;  England  v. 
186  U.  S.  206,  210,  46  L.  Ed.  1128.  Gebhardt,    112    U.    S.    502,    505,    28    L.    Ed. 

83.  Wisconsin    Central    R.    Co.    v.    For-       811. 


1024 


APPEAL  AND  ERROR. 


Revised  Statutes,  it  had  been  settled  by  repeated  decisions  that  in  any  action  at 
law  in  wliich  the  parties  waived  a  trial  by  jury  and  submitted  the  facts  to  the 
determination  of  the  circuit  court  upon  the  evidence,  its  judgment  was  valid ; 
but  that  this  court  had  no  authority  to  revise  its  opinion  upon  the  admission  or 
rejection  of  testimony,  or  upon  any  other  question  of  law  growing  out  of  the  evi- 
dence, and  therefore,  when  no  other  error  appeared  on  the  record,  must  affirm 
the  judgment. ^"^ 


87.   Rule  prior   to   statute   in   general. — 

Guild  v.  Frontin,  18  How.  135,  15  L.  Rd. 
290;  Kelsey  v.  Forsyth,  31  How.  85,  16  L. 
Ed.  32;  Campbell  v.  Boyreau,  21  How. 
233,  16  L.  Ed.  96;  Kearney  v.  Case,  13 
Wall.  275,  20  L.  Ed.  395;  Bond  v.  Dustin, 
112  U.  S.  604.  28  L.  Ed.  835;  Rogers  v. 
United  States,  141  U.  S.  548.  35  L.  Ed. 
853;  Suydam  v.  Williamson,  20  How.  427. 
432.  15  L.  Ed.  978;  Andes  v.  Slauson,  130 
U.  S.  435,  32  L.  Ed.  989;  Glenn  v.  Fant, 
134   U.   S.  398,   33   L.   Ed.  969. 

The  judiciary  act  of  1789,  c.  20,  §  12  (1 
Stat.  80),  provided  that  the  trial  of  issues 
of  fact  in  the  circuit  courts  should  in  all 
suits,  except  those  of  equity  and  of  ad- 
miralty and  maritime  jurisdiction,  be  by 
jury;  but  it  has  always  been  held  that  if 
the  parties  waived  a  jury  a  judgment  after 
trial  by  the  court  would  not  be  erroneous. 
Kearney  v.  Case,  12  Wall.  275.  20  L.  Ed. 
395.  Such  a  judgment,  however,  would 
not  be  reviewable  here.  Boogher  v.  In- 
surance Co.,  103  U.  S.  90,  95,  26  L.  Ed.  310. 

"Parties  may,  by  consent,  waive  the 
trial  of  issues  of  fact  by  a  jury,  and  sub- 
mit the  trial  of  both  facts  and  law  to  the 
court.  It  will  not  be  a  mistrial.  But  if 
they  wish  the  judgment  of  the  court  to 
be  reviewed  on  a  writ  o(  error,  a  special 
A'erdict  or  agreed  statement  of  facts  must 
be  put  on  record.  The  issues  of  fact  must 
be  ascertained  and  made  certain,  before  a 
court  of  error  can  review  the  decision  of 
an  inferior  court.  If  the  verdict  do  not 
find  all  the  issues,  or  the  agreed  state- 
ment in  the  nature  of  a  special  verdict  be 
imperfect  or  incomplete,  this  court  may 
©rder  a  venire  de  novo,  because  of  the 
mistrial,  as  in  the  case  of  Graham  z'. 
Bayne,  at  this  term.  But  having  jurisdic- 
tion of  the  cause,  and  no  error  appearing 
on  the  face  of  the  record,  the  judgment  of 
the  court  below  must  be  affirmed.  The 
case  of  Prentice  v.  Zane,  8  How.  470,  12 
L.  Ed.  1160,  is  directly  in  point  on  this 
subject."  Guild  v.  Frontin,  18  How.  135, 
15    L.   Ed.   290. 

The  finding  of  issues  in  fact  by  the 
court  upon  the  evidence  is  altogether  un- 
known to  a  common-law  court,  and  can- 
not be  recognized  as  a  judicial  act.  Such 
questions  are  exclusively  within  the  prov- 
ince of  the  jury;  and  if,  by  agreement  of 
parties,  the  questions  of  fact  in  dispute 
are  submitted  for  decision  to  the  judge 
upon  the  evidence,  he  does  not  exercise 
judicial  authority  in  deciding,  but  acts 
rather  in  the  character  of  an  arbitrator. 
A«<i   this   court,   therefore,   cannot   regard 


the  facts  so  found  as  judicially  determined 
in  the  court  below,  nor  examine  the  ques- 
tions of  law,  as  if  those  facts  had  been 
conclusively  determined  by  a  jury  or  set- 
tled by  the  admission  of  the  parties. 
Campbell  v.  Boyreau,  21  How.  223,  16  L. 
Ed.    97. 

Nor  can  any  exception  be  taken  to  an 
opinion  of  the  court  upon  the  admission 
or  rejection  of  testimony,  or  upon  any 
other  question  of  law  which  may  grow 
out  of  the  evidence,  unless  a  jury  was 
actually  impaneled,  and  the  exception  re- 
served while  they  were  still  at  the  bar. 
The  statute  which  gives  the  exception  in 
a  trial  at  common  law  gives  it  only  in 
such  cases.  And  as  this  court  cannot  re- 
gard the  facts  found  by  the  judge  as  hav- 
ing been  judicially  deterHiined  in  the  court 
below,  there  are  no  facts  before  us  upon 
which  questions  of  law  may  legally  and 
judicially  have  arisen  in  the  inferior  court, 
and  no  questions,  therefore,  open  to  our 
revision  as  an  appellate  tribunal.  Conse- 
quently, as  the  circuit  court  had  jurisdic- 
tion of  the  subject  matter  and  the  parties, 
and  there  is  no  question  of  law  or  fact 
open  to  our  re-examination,  its  judgment 
must  be  presumed  to  be  right,  and  on 
that  ground  only  affirmed.  Campbell  v. 
Boyreau,   21    How.   223,   16   L.    Ed.   97. 

If  the  parties  agree  to  submit  the  trial 
both  of  fact  and  law  to  the  judge,  they 
constitute  him  an  arbitrator,  or  referee, 
whose  award  must  be  final  and  conclusive 
between  them;  but  no  consent  can  con- 
stitute this  court  appellate  arbitrators. 
When  the  error  alleged  does  not  appear 
on  the  face  of  the  record,  or  on  a  de- 
murrer, a  bill  of  exceptions  to  the  ruling 
of  the  court  on  questions  of  law,  either 
in  admitting  or  rejecting  testimony,  or 
in  their  instructions  to  the  jury,  consti- 
tutes the  only  mode  of  bringing  a  case 
before  this  court  for  review.  It  is  true, 
that  when  there  is  no  dispute  as  to  the 
facts,  counsel  may  agree  on  a  case  stated 
in  the  nature  of  a  special  verdict;  and  the 
judgment  of  the  court  below  on  such  case 
stated,  or  verdict,  may  be  reviewed  here 
on  a  writ  of  error.  Graham  zk  Bayne,  18 
How.  60.  15  L.  Ed.  266.  See  Stimpson  v. 
Baltimore,  etc.,  R.  Co.,  10  How.  329,  13 
L.  Ed.  441. 

Where  the  parties  waive  a  trial  by  jury, 
and  substitute  the  court,  none  of  the 
questions,  whether  of  fact  or  of  law,  de- 
cided by  the  court  below,  can  be  re- 
examined and  revised  in  this  court  upon 
a  writ  of  error,  because  by  the  established 


J 


APPEAL  AND  ERROR. 


1025 


The  reason  for  this,  as  stated  by  Mr.  Chief  Justice  Taney,  is  that  by  the 
estabHshed  and  famihar  rules  and  principles  which  govern  common-law  proceed- 
ings, no  question  of  the  law  can  be  reviewed  and  re-examined  in  an  appellate 
court  upon  writ  of  error  (  except  only  where  it  arises  upon  the  process,  plead- 
ings, or  judgment,  in  the  cause),  unless  the  facts  are  found  by  a  jury,  by  a  gen- 
eral or  special  verdict,  or  are  admitted  by  the  parties,  upon  a  case  stated  in  the 
nature  of  a  special  verdict  stating  the  facts,  and  referring  the  questions  of  law 
to  the  court.***  Therefore,  where  the  proceeding  in  the  court  below  was  not 
according  to  the  act  of  March  3,  1865,  this  court  has  no  power  to  examine  any 
ruling  of  the  court  below  excepted  to  during  the  progress  of  the  trial. '^^ 

bb.  Bill  of  Exceptions — aaa.  Xcccssity  •  for  Bill  of  Exceptions. — Where  the 
court  below  decides  both  law  and  fact,  no  bill  of  exceptions  need  be  taken.  The 
case  then  becomes  like  one  at  common  law.  where  a  special  verdict  is  found  or 
a  case  is  stated,  in  neither  of  which  there  is  any  necessitv  for  a  bill  of  exceptions. 


I 


and  familiar  rules  of  principles  which  gov- 
ern common  law  proceedings,  no  ques- 
tion of  law  can  be  reviewed  and 
re-examined  in  an  appellate  court  upon  a 
writ  of  error  (except  only  where  it  arises 
from  the  process,  pleading,  or  judgment 
in  the  case),  unless  the  facts  are  found 
by  a  jury,  by  a  general  or  special  verdict, 
or  are  admitted  by  the  parties  upon  a 
case  stated  in  the  nature  of  a  special  ver- 
dict, stating  the  facts,  and  referring  the 
questions  at  law  to  the  court.  Flanders  v. 
Tweed,  9  Wall.  425,  19  L.  Ed.  678,  citing 
Guild  v.  Frontin.  18  How.  135,  15  L.  Ed. 
290;  Suydam  v.  Williamson,  20  How.  427, 
432,  15  L.  Ed.  978;  Kelsey  v.  Forsyth.  21 
How.   85,  16   L.    Ed.   32. 

Prior  to  the  enactment  of  the  act  of 
March  3,  1865,  it  was  held,  by  this  court, 
"that  when  the  case  is  submitted  to  the 
judge  to  find  the  facts  without  the  inter- 
vention of  a  jury,  he  acts  as  a  referee  by 
consent  of  the  parties,  and  no  bill  of  ex- 
ceptions will  lie  to  his  reception  or  rejec- 
tion of  testimony,  nor  to  his  judgment  on 
the  law."    Weems  v.  George,  13  How.   190. 

14  L.  Ed.  108,  and  that  "no  exception  can  be 
taken  where  there  is  no  injury  and  where 
the  question  of  law  is  decided  in  deliver- 
ing the  final  judgment  of  the  court." 
United  States  v.  King,  7  How.  833.  853,  12 
L.  Ed.  934;  See,  also,  Craig  v.  Missouri, 
4  Pet.  410,  427,  7  L.  Ed.  903;  ]\[artin- 
ton  V.  Fairbanks,  112  U.  S.  670.  675.  28 
L.  Ed.  862. 

Counsel  may  agree  to  submit  both  fact 
and  law  to  the  decision  of  the  court;  but 
the^  -cannot,  by  agreement,  introduce  a 
new  practice  into  this  court,  or  compel  us 
to  adopt  the  provisions  of  the  22d  section 
of  the  practice  act  of  Illinois,  permitting 
matters  of  both  fact  and  law  to  be  tried 
by  the  court,  if  both  parties  agree  as  to 
the  mode  in  which  such  cases  shall  be 
reviewed  in  error.  The  practice  of  this 
court  is  regulated  by  the  common  law  and 
acts  of  congress  only.     Graham  ?'.   Bayne, 

15  How.  60,  15  L.  Ed.  266,  citing  Bayard  z/. 
Lombard,   9   How.   530.   13    L.    Ed.   245. 

88.    Campbell  v.   Boyreau,  21   How.  223, 

1  U  S  Enc— 65 


226,  16  L.   Ed.  86;   Bond  v.   Dustin.  112  U. 
'  S.    604.    606,    28    L.    Ed.    835. 

.^s  was  said  by  Mr.  Chief  Justice  Taney, 
in  Campbell  <•.  Boyreau.  21  How.  223,  16 
L.  Ed.  96:  "If,  by  agreement  of  parties, 
the  questions  of  fact  in  dispute  are  sub- 
mitted for  decision  to  the  judge  upon  the 
evidence,  he  does  not  exercise  judicial  au- 
thority in  deciding,  but  acts  rather  in  the 
character  of  an  abitrator.  *  *  *  /\nd 
as  this  court  cannot  regard  facts  found 
by  the  judge  as  having  been  judicially  de- 
termined in  the  court  below,  there  are  no 
facts  before  us  upon  which  questions  of 
law  may  legally  and  judicially  have  arisen 
in  the  inferior  court,  and  no  questions, 
therefore,  open  to  our  revision  as  an  ap- 
pellate tribunal."  Boogher  v.  Insurance 
Co.,   103   U.   S.  90,  95.   26   L.    Ed.   310. 

By  the  established  familiar  rules  of 
principles  which  govern  common-law  pro- 
ceedings, no  question  of  law  can  be  re- 
viewed and  re-examined  in  an  appellate 
court  upon  a  writ  of  error  (except  only 
where  it  arises  upon  the  process,  plead- 
ings, or  judgment  in  the  case),  unless  the 
facts  are  found  by  a  jury,  by  a  general 
or  special  verdict,  or  are  admitted  by  the 
parties  upon  a  case  stated  in  the  nature 
of  a  special  verdict,  stating  the  facts,  and 
referring  the  questions  of  law  to  the  court. 
This  shows  that  the  act  of  congress  of 
March  3d,  1865.  was  essential  in  order 
to  preserve  to  the  parties  submitting  a 
cause  to  a  trial  before  a  court,  both  as 
to  law  and  fact,  the  benefit  of  a  review  or 
re-examination  of  questions  of  law  in  the 
appellate  court.  Flanders  v.  Tweed,  9 
Wall.  425.  19  L.  Ed.  678.  citing  Campbell 
T'.  Boyreau.  21  How.  223,  16  L.  Ed.  96: 
Guild  V.  Frontin,  18  How.  135,  15  L.  Ed. 
290;  Suyden  v.  Williamson,  20  How.  427, 
432,  15  L.  Ed.  978;  Kelsey  r.  Forsyth,  21 
How.   85.   15   L.   Ed.  32. 

89.  Campbell  r.  Bovreau,  21  How.  223. 
224,  15  L.  Ed.  96;  Guild  r.  Frontin,  18  How. 
135.  15  L.  Rd.  290;  Kearnev  v.  Case.  12 
Wall.  275,  20  L-  Ed.  395;  Dickinson  v.  The 
Planters'  Bank,  16  Wall.  250,  21  L.  Ed. 
278;  Gilman  z:  Illinois,  etc.,  Tel.  Co.,  91 
U.   S.   603,   23   L.    Ed.   405. 


1026  APPEAL  AXD  ERROR. 

No  exception  can  be  taken  where  there  is  no  jury,  and  where  the  question  ot 
law  is  decided  in  dehvering  the  final  judgment  of  the  court.  Even  in  a  court 
of  common  law.  an  exception  is  never  taken  to  the  judgment  of  the  court  upon 
a  case  stated,  or  on  a  special  verdict;  yet  the  judgment  is  subject  to  revision  in 
the  appellate  court.  The  same  rule  must  prevail  where  the  facts  upon  which  the 
inferior  court  decided  appear  in  the  record  ;  like  a  case  stated,  the  question  in 
the  superior  court  necessarily  is.  whether  the  judgment  of  the  court  below  was 
erroneous  or  not  upon   the   facts  before  it.  as  they  are  certified  in  the  record.^" 

bbb.  Review  of  Adinissioi  and  Exclusion  of  Evidence. — Where  the  court  de- 
cides questions  both  of  law  and  fact,  the  admission  of  improper  testimony  is 
not  the  subject  of  a  bill  of  exceptions,  although  the  exclusion  of  proper 
testimony  is  so.-*^ 

ccc.  Separation  of  Questions  of  Laiv  from  Questions  of  Fact. — As  a  bill  of 
exceptions  lies  only  upon  some  point  arising  either  upon  the  admission  or  re- 
fusal of  evidence,  or  is  a  matter  of  law  arising  from  a  fact  found,  or  not  denied, 
and  which  has  been  overruled  by  the  court,  a  difficult  question  arises  in  cases 
where  the  facts  as  well  as  the  law  are  submitted  to  the  court  in  reviewing  on 
exceptions  the  correctness  of  the  ruling  of  the  law  involved  in  rendering  the 
judgment.  Where  both  questions  of  law  and  questions  of  fact  are  submitted  to 
the  court,  and  botli  determined  at  the  same  time,  and  by  the  same  tribunal,  the 
separation  of  questions  of  law  from  questions  of  fact  is  more  difficult.  "  'It  may 
be,  that,  if  upon  the  case  stated  by  the  parties  or  by  the  judge,  it  appears  to  the 
court  of  appeals  that  the  decision  which  has  been  come  to  can  be  sustained  by 
a  particular  view  of  the  facts  which  does  not  render  it  necessary  to  arrive  at  the 
conclusion  that  he  has  crroncousl}-  decided  the  point  of  law  before  him,  this 
court  mav  have  no  power  to  review  the  judgment ;  yet  that,  where  it  is  man- 
ifest irom  the  facts  stated,  that  in  order  to  arrive  at  the  conclusion  he  has  ar- 
rived at,  the  judge  must  have  decided  a  matter  of  law  in  a  certain  way.  that  will 
be  a  determination  in  point  of  law,  with  respect  to  which  an  appeal  will  lie.  So, 
that,  supposing  there  be  a  judgment  which  can  be  sustained,  consistently  with  the 
law,  bv  anv  view  that  can  be  taken  of  the  facts  stated,  such  a  judgment  prob- 
ably cannot  be  reversed  :  yet.  still,  where  the  judge  states  the  facts  which  were 
before  him.  and  these  facts  will  sustain  his  judgment  upon  one  view  of  the  law 
only,  and  that  an  incorrect  one.  this  court  may  have  jurisdiction  to  entertain  the 
appeal."  This  view  is  directly  ap])licable  to  the  case  of  a  bill  of  exceptions  where 
the  jurv  has  been  disnensed  with,  and  the  judge  substituted  in  its  place,  to  pass 
upon  the  facts  as  well  as  the  law,  and  furnishes  the  rule  by  which  the  point  of 
law  mav  be  ascertained  that  was  decided  in  rendering  the  judgment  intended  to 
be  reviewed.  In  order,  however,  to  disembarrass  the  proceedings  as  far  as  prac- 
ticable in  this  peculiar  mode  of  the  trial  of  a  common-law  case,  and  to  enable  the 
appellate  court  to  re-examine  the  point  or  points  of  law  involved,  the  counsel, 

90.  Necessity  for  bill  of  exceptions. —  a  determination  of  it  upon  principles 
United  States  :.  King.  7  How.  83:!.  12  L.  wholly  inapplicable,  in  case  the  evidence 
Ed.  934.  had    been    admited;    nor.    can    we    assume 

91.  Review  of  admission  and  exclusion  that  the  testimony  offered,  and  rejected, 
of  evidence. — Arthurs  f.  Hart.  17  How.  would  have  been  proved,  if  it  had  not  been 
tj.  15  L.  Ed.  30;  Field  z'.  United  States,  excluded,  and  revise  the  judgment  of  the 
9  Pet.  182,  9  L.  Ed.  94.  court   upon    that   assumption,   because   the 

While     it  has  been  held,  in  many  cases.  offer  of  evidence  to  prove  a  fact,  and  the 

that   in   a   cause    where    the    trial   by   jury  ability    to   make    the   proof,   are    very   dif- 

has    been  waived,  the  objection    to    the    ad-  ferent    matters.      If   the    cotJrt    instead    of 

mission    of   evidence    is    not    properly    the  rejecting    had    allowed    the    evidence,    the 

subject    of    a   bill    of    exceptions,    still    the  party  might  have  failed  in  the  proof,  and 

case    of    the    refusal    "of    proper    evidence  the  case  in  the  result  remain  the  same  as 

on    the    trial    is    subject    to    very    different  before   the   improper   exclusion."      Arthurs 

considerations    from    those    applicable    to  v.    Hart,   17   How.   6,    15   L.    Ed.   30,   citing 

the    improper    admission    of    it.      The    ex-  Field   z'.    United    States.    9    Pet.    182,    9   L. 

elusion  of  the  evidence  might  change  the  Ed.  94. 
legal    features    of   the    cause,    and    lead    to 


APPEAL  AND  ERROR. 


1027 


after  the  close  of  the  evidence,  should  present  the  propositions  of  law  which,  it 
is  claimed,  should  govern  the  decision ;  and  the  court  should  state  the  rulings 
ihereon,  or  in  coming  to  its  determination.  And,  in  the  return  to  the  writ  of 
error  so  much  of  the  evidence,  and  no  more,  should  be  incorporated  in  the  bill  of 
exceptions  as  was  deemed  necessary  to  present  the  points  of  law  determined 
against  the  party  bringing  the  writ.  No  technical  exception  need  be  stated  ex- 
cept in  the  case  of  the  rejection  or  admission  of  evidence.  As  the  rulings  in  the 
final  determination  do  not  take  place  upon  the  trial,  or  need  not,  the  exception 
would  be  impracticable. "^2 

CO.  Louisiana  Practice. — The  practice  in  Louisiana  is  an  exception  to  this  gen- 
eral rule,  that  where  the  parties  agree  that  the  court  shall  decide  questions  both 
of  law  and  fact,  none  of  the  questions  decided,  either  of  fact  or  law,  can  be  re- 
viewed by  this  court  on  a  writ  of  error,  as  that  practice  is  sanctioned  by  the  act 
of  congress  which  requires  the  courts  of  the  United  States  to  conform  to  the 
practice  of  the  state  courts.  *'As,  by  the  laws  of  Louisiana,  the  facts,  by  consent 
of  parties,  may  be  tried  and  found  by  the  court  without  the  intervention  of  a 
jury,  this  court  is  bound,  upon  a  writ  of  error,  to  regard  them  as  judicially  de- 
termined, and  treat  them  as  if  they  had  been  found  by  the  special  verdict ;  and 
the  questions  of  law  which  arise  on  them  are  consequently  open  to  the  revision 
of  this  court. "^-^  According  to  the  practice  in  Louisiana,  the  facts  of  the  case 
are  stated  by  the  court  below  in  the  nature  of  a  special  verdict,  and  the  judge  be- 
low finds  facts  and  not  evidence  of  those  facts. ^^ 

Review  of  Admission  or  Rejection  of  Evidence. — In  a  trial  in  Louisiana, 
where  the  judge  tried  the  whole  case  without  the  intervention  of  a  jury,  a  bill 
of  exceptions  to  the  admission  of  testimony  by  the  judge,  could  not  be  sustained 
in  this  court. ^'' 


92.  Separation  of  questions  of  law  from 
questions  of  fact. — Arthurs  :■.  Hart,  17 
How..  6,  lo  L.   Ed.  30.  33. 

93.  Louisiana  practice. — Campbell  v. 
Boyreau.  21  How.  ';>3,  Hi  L.  E<i.  96; 
Newell  V.  Nixon.  4  Wall.  572,  381,  IS  L. 
Ed.  305. 

Where  testimony  is  taken,  and  the  cause 
is  submitted  to  the  court  without  the  in- 
tervention of  a  jury,  although  there  was 
no  jury  trial,  still  the  rulings  of  the  court, 
under  the  peculiar  practice  in  the  Louisi- 
ana district,  maj'  be  examined  in  this 
court  upon  writ  of  error,  and  the  judg- 
ment reversed  or  affirmed  by  a  bill  of  ex- 
ceptions, in  the  same  manner  as  if  there 
had  been  a  jurj^  trial.  They  may  also  be 
revised  here  upon  a  state  of  facts  found 
by  the  court,  but  the  question  presented 
in  the  court  below  and  decided  by  the 
court  must  be  clearly  stated.  Arthurs  v. 
Hart,  17  How.  6,  1.5,  15  L.  Ed.  30;  Newell 
z:   Nixon,  4  Wall.   572.   5.81,   18   L.    Ed.   305. 

94.  Cucullu  V.  Emmerling,  22  How.  83, 
16  L.   Ed.  300. 

Difficulties  encountered. — The  act  passed 
May  26th,  1824,  relating  to  the  courts  in 
Louisiana,  directed  that  the  mode  of  pro- 
ceeding in  civil  causes,  in  the  federal  courts 
in  Louisiana,  should  be  the  same  as  the 
practice  and  modes  of  proceeding  in  the 
district  courts  of  the  state,  subject  to  cer- 
tain modifications  mentioned  in  the  act. 
The  practice  in  these  courts  of  the  state 
was  according  to  civil-law  proceedings,  and 
the  trial  of  issues  of  fact  could  take  place 
before  the  court  by  consent  of  the  parties. 


This  act  unfortunately,  not  prescribing  the 
mode  of  procedure  when  a  jury  was 
waived,  and  the  trial  before  the  court, 
as  in  the  act  of  1865,  leaving  the  court 
to  grope  its  way  as  best  it  could  under  the 
practice  in  civil-law  proceedings,  the  case 
to  come  up  ultimately  for  re-examination 
before  a  common-law  appellate  tribunal, 
has  led  to  the  most  painful  and  often- 
times protracted  litigation  at  nearly  every 
term  since  its  passage,  and  that,  too,  not 
upon  questions  involving  the  merits,  but 
questions  of  mere  practice.  As  observed 
by  Mr.  Justice  Grier  in  Graham  v.  Baync, 
18  How.  60,  61,  15  L.  Ed.  265:  "The  very 
numerous  cases  on  this  subject,  from  Field 
V.  United  States,  9  Pet.  182,  9  L.  Ed.  94, 
to  Arthurs  v.  Hart,  17  How.  6,  15  L.  Ed. 
30,  show  the  difficulties  we  have  had  to 
encounter  in  reconciling  our  modes  of  re- 
view to  the  civil  code  of  practice  as  used 
in  the  courts  of  Louisiana;"  and  these 
cases  have  not  diminished  since  the  de- 
livery of  the  opinion  in  that  case.  Flan- 
ders V.  Tweed,  9  Wall.  425,  430,  19  L.  Ed. 
678.  following  in  Flanders  v.  Tweed,  154 
U.  S.   569.   19   L.   Ed.   680. 

95.  Review  of  admission  or  rejection 
of  evidence, — Weems  v.  George,  13  How. 
191,  14  L.  Ed.  108,  citing  Field  z:  United 
States,  9  Pet.  182,  202,  9  L.  Ed.  94;  United 
State  V.  King,  7  How.  835,  12  L.  Ed.  934. 

It  has  been  frequently  decided  by  this 
court,  that  notwithstanding  there  is  no 
distinction  between  suits  at  law  and  eqm'ty 
in  the  courts  of  Louisiana,  in  those  of  the 
United    States    this    distinction    must    be 


1028 


APPEAL  AND  ERROR. 


Statement  of  Facts  by  Judg"e. — Where  the  judge  before  whom  the  cause 
was  heard  made  no  statement  of  the  facts  found  by  him,  as  the  usual  practice  is, 
where  the  circuit  court  in  Louisiana  tries  the  issues  of  fact  without  the  inter- 
vention of  a  jury,  the  judgment  will  be  afifirmed.^^  On  a  writ  of  error  to  this 
court  from  the  circuit  court  of  Louisiana  a  statement  of  facts  by  the  judge  may 
be  drawn  up  and  ordered  to  be  filed  nunc  pro  tunc.^''  It  was  held,  repeatedly, 
upon  error  to  the  circuit  court  of  Louisiana,  that  a  statement  of  facts  signed  by 
counsel,  and  not  made  nor  filed  until  after  judgment,  cannot  be  noticed  upon 
error. ^^ 

dd.  Waiver  of  Jury. — Where  the  law  permits  a  waiver  of  a  trial  by  a  jury,  it 
is  too  late  to  raise  an  objection  that  the  waiver  was  not  made  a  matter  of  record, 
after  the  case  has  proceeded  to  a  hearing.^^  Where  the  case  has  been  submitted 
to  the  court  and  argued  by  the  counsel  of  both  parties,  it  is  to  be  taken  that  both 
parties  waived  the  trial  by  jury,  and  they  are  bound  accordingly. ^ 

(2)  Statutory  Rule — aa.  In  General. — To  get  rid  of  this  difificulty  and  give 
parties  the  right  of  review  here,  if  they  submitted  their  issues  to  a  trial  by  the 
court,  the  act  of  1865,  c.  86,  §  4   (13  Stat.  501;  Rev.  Stat.,  §§  649.  700),  was 


preserved.  When  the  case  is  submitted  to 
the  judge,  to  find  the  facts  without  the  in- 
tervention of  a  jury,  he  acts  as  a  referee, 
by  consent  of  the  parties,  and  no  bill  of 
exceptions  will  lie  to  his  reception  or  re- 
jection of  testimony,  nor  to  his  judgment 
on  the  law.  In  such  case,  when  a  party 
feels  aggrieved  by  the  decision  of  the 
court,  a  case  should  be  made  up,  stating 
the  facts  as  found  by  the  court,  in  the  na- 
ture of  a  special  verdict,  and  the  judg- 
ment of  the  court  thereon.  If  testimony 
has  been  received  after  objection,  or  over- 
ruled, as  incompetent  or  irrelevant,  it 
should  be  stated,  so  that  this  court  may 
judge  whether  it  was  competent,  rele- 
vant, or  material,  in  a  just  deci.'^ion  of  the 
case.  See  Craig  v.  Missouri,  4  Pet.  410, 
427,  7  L.  Ed.  903.  In  Field  v.  United 
States,  9  Pet.  182,  202,  9  L.  Ed.  94,  Mar- 
shall, Ch.  J.,  in  delivering  the  opinion  of 
the  court,  says:  "As  the  case  was  not 
tried  by  the  jury,  the  exceptirm  to  the 
admission  of  evidence  was  not  properly 
the  subject  of  a  bill  of  exceptions.  But 
it  the  district  court  improperly  admitted 
the  evidence,  the  only  effect  would  be, 
that  this  court  would  reject  that  evidence, 
and  proceed  to  decide  the  cause  as  if  it 
were  not  on  the  record.  It  would  not, 
however,  of  itself,  constitute  any  ground 
for  the  reversal  of  the  judgment."  And 
again  in  United  States  z:  King,  7  How. 
833,  it  is  decided,  that  "no  exception 
can  be  taken  where  there  is  no  jury,  and 
where  the  question  of  law  is  decided  in 
delivering  the  final  decision  of  the  court." 
And,  "when  the  court  decided  the  fact 
without  the  intervention  of  a  jury,  the  ad- 
mission of  illegal  testimony,  even  if  ma- 
terial, is  not  of  itself  a  ground  for  revers- 
ing the  judgment,  nor  is  it  properly  the 
subject  of  a  bill  of  exceptions."  Weems 
V.  George,  13  How.  197,  14  L.  Ed.  110; 
Arthurs  v.  Hart,  17  How.  6,  15  L.  Ed.  30. 
96.  Statement  of  facts  by  judge. — New 
Orleans  v.  Gaines,  22  How.  141,  16  L.  Ed. 
295. 


97.  McGavock  v.  Woodlief,  20  How. 
221,  15  L.  Ed.  884,  cited  in  Kock  v.  Em- 
merling,  22   How.   69,  73,  16   L-   Ed.  292. 

98.  Bethell  v.  Mathews,  13  Wall.  1,  20 
L.  Ed.  556,  citing  Generes  :'.  Bonemer, 
7  Wall.  564,  19  L-  Ed.  227;  Avendano  r. 
Gay,  8  Wall.  ,"',76,  19  L.  Ed.  422;  Kearney 
t:  Case,  12  Wall.  275,  276,  20  L.  Ed.  395. 

A  statement  of  facts,  made  and  filed 
by  the  judge  several  days  after  the  issue 
and  service  of  the  writ  of  error  in  the 
case,  is  a  nullity.  "To  permit  the  judge 
to  make  a  staten>ent  of  facts,  on  which 
the  case  shall  be  heard  here,  after 
the  case  is  removed  to  this  court  by  the 
service  of  the  writ  of  error,  or  even  after 
it  is  issued,  would  place  the  rights  of  par- 
ties, who  have  judgments  of  record,  en- 
tirely in  the  power  of  the  judge,  without 
hearing  and  without  remedy."  Avendano 
V.  Gay,  8  Wall.  376,  19  L.  Ed.  422,  affirm- 
ing Generes  r.  Bonemer,  7  Wall.  564,  19 
L.  Ed.  227;  Hunnicutt  v.  Peyton,  102  U. 
S.  333,   354.  26   L.    Ed.   113. 

A  judgment  affirmed  in  a  case  where 
the  only  ruling  of  the  court,  to  be  found 
in  the  record,  was  a  judgment  rendered 
in  favor  of  a  plaintiff  for  the  recovery  of 
a  sum  of  money;  where  there  was  no 
question  raised  in  the  pleadings,  no  bill 
of  exceptions,  and  no  instrn-.-tion>  or  rul- 
ing of  the  court;  and  where  what  pur- 
ported to  be  a  statement  of  facts,  signed 
by  the  judge,  was  filed  more  than  two 
months  after  the  writ  of  error  was  al- 
lowed and  filed  in  the  court,  and  nearly 
a  month  after  the  citation  was  issued. 
Generes  v.  Bonemer.  7  Wall,  ''^-l,  19  L. 
Ed.  227. 

99.  Waiver  of  jury.^ — Phillips  v.  Pres- 
ton, 5  How.  278,  12  L.  Ed.  152. 

1.  Gilman  v.  Illinois,  etc..  Tel.  Co.,  91 
U.  S.  603,  614,  23  L.  Ed.  405.  citing  Phil- 
lips V.  Preston,  5  How.  278,  12  L.  Ed.  152; 
Campbell  v.  Boyreau,  21  How.  223,  224, 
16  L.  Ed.  96;  Kelsey  v.  Forsyth,  21  How. 
85,  86,  16  L.  Ed.  32. 


I 


APPEAL  AXD  ERROR. 


1029 


passed.  In  this  way  it  was  provided  that  issues  of  fact  in  civil  cases  in  the  circuit 
court  might  be  tried  and  determined  by  the  court,  without  the  intervention  of  a 
jury,  "whenever  the  parties,  or  their  attorneys  of  record,  file  with  the  clerk  a 
stipulation  in  writing  waiving  a  jury.  The  finding  of  the  court  upon  the  facts 
*  *  *  shall  have  the  same  efifect  as  the  verdict  of  a  jury."  Provision  was 
made  also  for  presenting  for  review  here  by  bill  of  exceptions  the  rulings  of  the 
court  in  the  progress  of  the  trial,  and,  when  the  finding  was  special,  for  extending 
the  review  to  the  determination  of  the  sufficiency  of  the  facts  found  to  support 
the  judgment. 2 


2.  Statutory  rule  in  general. — Boogher 
V.  Insurance  Co.,  103  U.  S.  90,  96,  26  L. 
Ed.  310;  Dickinson  v.  Planters'  Bank,  16 
Wall.  250.  252,   21   L-   Ed.   278. 

Much  protracted  litigation  attended  the 
settlemejit  of  mere  questions  of  practice 
under  the  act  passed  in  1824.  4  Stat,  at 
Large  62,  authorizing  the  trial  of  issues 
of  fact  b\'  the  courts  of  the  United  States, 
with  the  consent  of  parties,  in  Louisiana. 
To  avoid  a  like  experience  under  the  act 
of  1865,  it  was  deemed  important  bj'^  this 
court  "to  settle  the  practice  under  it  at  an 
early  day  with  a  precision  and  distinct- 
ness that  could  not  be  misunderstood," 
and  to  "require  in  all  cases,  where  the 
parties  saw  fit  to  avail  themselves  of  the 
privileges  of  the  act,  a  reasonably  strict 
•compliance  with  its  provisions."  Flanders 
r.  Tweed.  9  Wall.  425,  430,  10  L.  Ed.  67S, 
Insurance  Co.  v.  Sea,  21  Wall.  158,  160, 
22  L.   Ed.  511. 

History  of  enactments. — The  provisions 
of  the  acts  of  congress  which  relate  to  the 
trial  of  issues  of  fact  by  the  court  are 
found  in  section  22  of  the  act  of  September 
24,  1789.  ".An  act  to  establish  the  judicial 
courts  of  the  United  States,"  1  Stat.  73,  ch. 
20,  §  22.  and  in  the  act  of  March  3,  1865,  "An 
act  regulating  proceedings  in  criminal 
ceses.  and  for  other  purposes."  13  Stat.  500, 
ch.  86,  §  4.  The  provision  in  the  act  of  1783 
IS  reproduced  in  §  1011  of  the  Revised 
Statutes  as  follows:  "There  shall  be  no 
reversal  in  the  supreme  court  or  in  any  cir- 
cuit court  upon  a  writ  of  error  *  '"  * 
for  any  error  of  fact."  The  provisions 
of  the  act  of  1865  are  reproduced  in  §§ 
649,  700  of  the  Revised  Statutes,  as  fol- 
lows: Sec.  649.  "Issues  of  fact  in  civil 
cases  in  any  circuit  court  may  be  tried 
and  determined  by  the  court,  without  the 
intervention  of  a  jury,  whenever  the  par- 
ties or  their  attorneys  of  record,  file  with 
the  clerk  a  stipulation  in  writing  waiv- 
ing a  jury.  The  finding  of  the  court  upon 
the  facts,  which  may  be  either  general  or 
special,  shall  hr.ve  the  same  efifect  as  the 
verdict  of  a  jury."  Sec.  700.  "When  an 
issue  of  fact  in  pny  civil  cause  in  a  circuit 
court  is  tried  and  determined  by  the  court 
without  the  intervention  of  a  jury,  ac- 
cording to  section  six  hundred  and  forty- 
nine,  the  rulings  of  the  court  in  the  prog- 
ress of  the  trial  of  the  cause,  if  excepted 
to  at  the  time  and  duly  presented  by  a 
bill  of  exceptions,  may  be  reviewed  by 
the    supreme   court   upon   a   writ   of   error 


or  upon  appeal;  and,  when  the  finding  is 
special,  the  review  may  extend  to  the  de- 
termination of  the  sufficiency  of  the  facts 
found  to  support  the  judgment."  Martm- 
ton  V.  Fairbanks,  112  U.  S.  670,  671,  28  L. 
Ed.    862. 

Necessity  for  compliance  with  statute. 
— The  question  arises  on  act  of  March 
3rd,  1865  whether  this  mode  of  submitting 
a  case  to  the  court  without  a  jury  was  in- 
tended to  be  exclusive  of  all  other  modes, 
so  that  if  there  is  no  stipulation  in  writing 
waiving  a  jury,  there  is  error,  for  which 
the  judgment  must  be  reversed.  The 
court  decided  this  as  follows:  "We  cannot 
believe  that  congress  intended  to  say  that 
the  parties  shall  not,  as  heretofore,  sub- 
mit their  cases  to  the  court  unless  they  do 
so  by  a  written  stipulation,  but  that  it  was 
the  intention  to  enact  that  if  parties  who 
consent  to  waive  a  jury  desire  to  secure 
the  right  to  a  review  in  the  supreme  court 
of  any  question  of  law  arising  in  the  trial, 
they  must  first  file  their  written  stipula- 
tion, and  must  then  ask  the  court  to  make 
a  finding  of  such  facts  as  they  deem  es- 
sential to  the  review,  and  ask  the  ruling 
of  the  court  on  points  to  which  they  wish 
to  except.  If  this  is  not  done  the  parties 
consenting  to  waive  a  jury  stand  as  they 
did  before  the  statute,  concluded  by  the 
judgment  of  the  court  on  all  matters  sub- 
mitted to  it.  This  we  understand  to  be  the 
efifect  of  the  opinion  in  Flanders  v.  Tweed, 
9  Wall.  425,  19  L.  Ed.  678."  Kearney  v. 
Case.  12  Wall.  275,  20  L.  Ed.  395. 

Effect  of  act  allowing  removal  of 
causes. — The  concluding  clause  of  the 
third  section  of  the  act  of  March  3,  1875, 
"to  determine  the  jurisdiction  of  the  cir- 
cuit courts  of  the  United  States,  and  to 
regulate  the  removal  of  causes  from  state 
courts,  and  for  other  purposes,"  does  not 
repeal  the  previous  law,  authorizing  a  trial 
by  the  court,  without  the  intervention  of 
a  jury,  upon  a  stipulation  by  the  parties 
waiving  a  jury  filed  under  the  act  of  con- 
gress. It  was  only  intended  to  conserve 
to  parties  in  the  cases  removed  to  the  cir- 
cuit courts  the  same  right  of  jury  trial 
which  parties  possess  in  cases  brought 
originally  in  those  courts,  not  to  prevent 
the  waiver  of  a  jury  by  consent.  The  pro- 
vision is  similar  to  the  one  in  the  judi- 
ciary act  of  1879.  18  Stat.  471;  Kearney 
<•.  C-<^e.  12  Wall.  275,  281.  20  L.  Ed.  395; 
Phillips  V.  Moore,  100  U.  S.  208.  213,  25 
L.   Ed.  603. 


1030 


APPEAL  AND  ERROR. 


Section  700  of  the  Revised  Statutes  is  the  only  enactment  providing  for 
the  review  here  of  a  civil  case  where  an  issue  of  fact  has  been  tried  in  the  circuit 
court  otherwise  than  by  a  jury.-'' 

Strict  Compliance  with  Statute  Required. — Arid  this  court  has  expressed 
itself  as  disposed  to  hold  parties  who,  under  this  statute,  waive  a  trial  by  jury 
and  substitute  the  court  for  the  jury,  to  a  reasonably  strict  conformity  to  the 
regulations  of  the  act,  if  they  desire  to  save  themselves  all  the  rights  and  priv- 
ileges which  belong  to  them  in  trials  by  jury  at  the  common  law.^ 

Review  of  Law  Involved  in  Case. — The  act  of  March  3d,  1865,  "while  it 
provides  specially  the  mode  of  submission,  takes  care  to  secure  to  the  parties  the 
right  of  review  as  it  respects  all  questions  of  law  arising  out  of  the  facts  found 
by  the  court,  giving  to  this  finding  the  efl^ect  as  if  found  by  a  jury,  preserving. 
at  the  same  time,  the  right  of  exceptions  to  the  rulings  of  the  court  in  the  progress 
of  the  trial ;  and,  when  the  finding  is  special,  a  right  to  the  appellate  court  to 
determine  the  sufficiency  of  the  facts  found  to  support  the  judgment."^  If  the 
parties  desire  a  review  of  the  law  involved  in  the  case,  they  must  either  get  the 
court  to  make  a  special  finding  which  raises  the  legal  propositions,  or  they  must 
present  to  the  court  their  propositions  of  law  and  require  a  ruling  on  them.*5 

bb.  To  What  Courts  Applicable. — This  provision  binds  the  federal  courts  sit- 
ting in  Louisiana  as  elsewhere.^  But  there  is  no  statute  in  existence  which  pro- 
vides for  the  trial  in  the  district  court  by  the  court  without  a  jury.  It  is  provided 
by  §  566  of  the  Revised  Statutes  that  "the  trial  of  issues  of  fact  in  the  dis- 
trict Courtis,  in  all  causes  except  cases  in  equity  and  cases  of  admiralty  and  mari- 
time jurisdiction,  and  except  as  otherwise  provided  in  proceeding  in  bankruptcy, 
shall  be  by  jtiry."  The  provision  for  waiving  a  jury,  in  §  649  of  the  Revised 
Statutes,  applies  only  to  the  circuit  court,  as  does  also  a  special  provision  of 
§  700.  in  regard  to  the  review  by  this  court  of  a  case  tried  in  the  circuit  court  by 
the  court  without  a  jury.     There  are  no    similar  provisions    in    regard    to    trials 


3.  Boogher  z'.  Insurance  Co.,  id."?  U.  S. 
90,  26   L.   Ed.   .310. 

The  act  of  1865  was  not  repealed.  On 
the  contrary,  that  act,  as  well  as  the  one 
of  1872,  was  brought  into  the  Revised 
Statutes,  and  it  is  now,  as  §  700,  the  only 
statute  which  provides  for  a  review  here 
of  cases  where  an  issue  of  fact  in  a  civil 
cause  has  been  tried  in  the  circuit  court 
otherwise  than  by  a  jury.  .  Boogher  v.  In- 
surance Co.,  103  U.  S.  90,  96,  26  L.  Ed. 
310. 

4.  Flanders  v.  Tweed,  9  Wall.  425,  19 
L.  Ed.  678. 

In  a  suit  brought  in  a  circuit  court  on 
a  judgment  in  the  courts  of  a  sister  state, 
the  objection  cannot  be  made  there,  and 
collaterally,  against  the  jurisdiction  of  the 
court  rendering  the  judgment,  that  the 
record  shows  that  the  cause  was  tried 
without  the  intervention  of  a  jury,  and 
dki  not  show  that  a  jury  had  been  waived 
as  provided  by  statute.  Maxwell  z'.  Stew- 
art,  21   Wall.   71,   72,   22   L.    Ed.   564. 

5.  Flanders  v.  Tweed,  9  Wall.  425,  430, 
19   L.   Ed.   678. 

6.  Insurance  Co.  v.  Sea,  21  Wall.  158, 
160,  22  L.  Ed.  511,  following  Norris  v. 
Jackson,  9  Wall.  125.  19  L.  Ed.  608;  Flan- 
ders V.  Tweed,  9  Wall.  425,  430,  19  L.  Ed. 
678;  Martinton  v.  Fairbanks,  112  U.  S. 
670,  673,  28  L.  Ed.  862;  Insurance  Cc.  v. 
Tweed,  7  Wall.   44,  19  L.   Ed.  65;  Walnut 


7'.  Wade,  103  U.  S.  683,  688,  26  L.  Ed.  526. 

The  objections  to  the  ruling  of  the  court 
on  propositions  of  law  must  appear  by 
bill  of  exceptions.  Insurance  Co.  v.  Sea, 
21  Wall.  158,  22  L.  Ed.  511;  Flanders  v. 
Tweed,  9  Wall.  425,  430,  19  L.  Ed.  678; 
Norris  z'.  Jackson,  9  Wall.  125.  19  L.  Ed. 
608. 

7,  To  what  courts  applicable. — Insur- 
ance Co.  z'.  Tweed,  7  Wall.  44.  19  L.  Ed. 
65;  Flanders  z'.  Tweed.  9  Wall.  425,  19 
L.  Ed.  678;  Generes  r.  Campbell,  11  Wall. 
193,   20    L.    Ed.    110. 

Under  the  act  of  March  3d,  1865  (13 
Stat,  at  Large  501),  which  provides  by  its 
fourth  section  a  mode  by  which  parties 
who  submit  cases  to  the  court,  without 
the  intervention  of  a  jury,  may  have  the 
rulings  of  the  court  reviewed  here,  and 
also  what  may  be  reviewed  in  such  cases, 
binds  the  federal  courts  sitting  in  Louisi- 
ana as  elsewhere,  and  this  court  cannot 
disregard  it.  Insurance  Co.  z'.  Tweed,  7 
Wall.   44,   19   L.    Ed.   678. 

The  act  of  March  3d,  1865,  providing 
for  a  trial  without  a  jury,  and  a  review 
by  this  court  of  fhe  facts  found  by  the 
judge,  either  generally  or  specially,  by 
a  sufficient  bill  of  exceptions,  is  general 
in  its  terms  as  to  the  scope  of  its  opera- 
tion, and  embraces  the  state  of  Louisi- 
ana. Generes  v.  Campbell,  11  Wall.  193^ 
20  L-   Ed.  110. 


APPEAL  AND  ERROR. 


1031 


without  a  jury  in  the  district  courts,  to  those  found  in  §§  649  and  700  in  respect 
to  circuit  courts.* 

cc.  Nature  of  finding. — A  finding  of  facts  by  the  circuit  court  is  strictly 
analogous  to  a  special  verdict.^ 

dd.  Kinds  of  Fuidinys. — The  first  thing  to  be  observed  in  the  enacinient  made 
by  the  4th  section  of  the  act  of  March  3d,  1865,  allowuig  parties  to  submit  issues 
of  fact  in  civil  cases  to  be  tried  and  determined  by  the  court,  is  that  it  provides 
for  two  kinds  of  findings  in  regard  to  the  facts,  to  wit,  general  and  special.  This 
is  in  perfect  analogy  to  the  findings  by  a  jury,  for  which  the  court  is  in  such 
cases  substituted  by  the  consent  of  the  parties.  In  other  words,  the  court  finds 
a  general  verdict  on  all  the  issues  for  plaintitiF  or  defendant,  or  it  finds  a  special 
verdict. I''  If  the  case  is  tried  by  the  circuit  court,  without  a  jury,  under  §§  649, 
700,  Rev.  Stat.,  the  finding  must  be  "either  general  or  special."  It  cannot  be 
both.  11 

ee.  Necessity  for  Presence  of  Counsel. — It  is  not  competent  for  a  circuit  court 
to  determine,  without  the  intervention  of  a  jury,  an  issue  of  fact  in  the  absence 
of  the  counsel  of  the  party  and  without  any  written  agreement  to  waive  a  trial 
by  jury.'- 

ff.  form  and  Sufficiency  of  finding — aaa.  ///  General. — The  findings  of  the 
court  under  §§  649,  700,  Rev.  Stat.,  are  treated  as  a  special  verdict,  and  gauged 
by  the  rules  applicable  to  them.i"*  But  because  the  order  of  the  court  below  em- 
braces both  a  finding  and  a  judgment,  they  are  not  for  that  reason  a  nullity. i-"* 
The  finding  of  facts  by  the  circuit  court  which  is  full,  and  is  introduced  by  the 
words:     "Upon  said  trial,  the  following  facts  were   found  to  have  been  proved 


8.  Rogers  v.  United  States,  141  U.  S. 
548,   554,   35    L.    Ed.   853. 

It  is  true  that,  in  the  district  court,  in 
a  suit  otherwise  triable  by  a  jury,  the 
parties  may,  by  stipulation,  waive  a  jury 
and  agree  on  a  statement  of  facts,  and 
submit  the  case  to  the  court  thereon,  for 
its  decision  as  to  the  law.  Henderson's 
Distilled  Spirits,  14  Wall.  44,  5.3,  20  L.  Ed. 
815.  That  might  have  been  done  also  in 
the  circuit  court,  without  any  statute  to 
that  efifect.  Campbell  %<.  Boyreau.  21  How. 
223,  226,  227,  15  L.  Ed.  96.  This,  how- 
ever, is  not  the  finding  of  issues  of  fact 
by  the  court  upon  the  evidence.  The  pro- 
visions of  §§  649  and  700  relate  wholly 
to  such  finding,  and  not  at  all  to  the  ac- 
tion of  the  court  upon  an  agreed  state- 
ment of  facts.  Rogers  v.  United  States, 
141   U.    S.    548,   554,   35    L.    Ed.    853. 

9.  Nature  of  finding. — Norris  v.  Jack- 
son, 9  Wall.  125,  19  L.  Ed.  608;  Martinton 
V.  Fairbanks,  112  U.  S.  670.  28  L.  Ed.  862; 
Raimond  v.  Terrebonne  Parish,  132  U.  S. 
192,  32  L.  Ed.  309;  Davenport  v.  Paris, 
136  U.  S.  580,  33  L.  Ed.  548;  The  E.  .\. 
Packer,   140   U.   S.   360,  35   L.    Ed.   453. 

10.  Kinds  of  findings. — Norris  v.  Jack- 
son, 9  Wall.  125,  127,  19  L.  Ed.  608;  Mor- 
ris V.  Shriner,  131  U.  S.  appx.  xci,  19  L. 
Ed.  303;  Insurance  Co.  v.  Folsom,  18  Wall. 
237,    21    L.    Ed.    827. 

By  the  terms  of  the  a^t  of  congress  per- 
mitting issues  of  fact  in  civil  cases  to  be 
tried  and  determined  by  the  court  with- 
out the  intervention  of  a  jury,  it  is  pro- 
vided that  the  finding  of  the  court  upon 
the  facts  may  be  either  general  or  spe- 
cial,  and   that    the    finding   shall    have    the 


same  efifect  as  the  verdict  of  a  jury.  13 
Stat,  at  Large  501.  Insurance  Co.  v.  Fol- 
som.   18    Wall.    237.    248,    21    L.    Ed.    827. 

11.  British  Queen  Mining  Co.  v.  Baker 
Silver  Mining  Co.,  139  U.  S.  222.  35  L. 
Ed.   147. 

12.  Necessity  for  presence  of  counsel 

Morgan  v.  Gay,  19  Wall.  81,  22  L.  Ed.  100. 
citing  Kearney  v.  Case,  12  Wall.  275,  20 
L.    Ed.    395. 

Unless  it  appears  that  the  parties  were 
present  at  the  trial  in  person  or  by  coun- 
sel, or  made  no  demand  for  a  jury,  or 
otherwise  gave  consent,  it  is  error,  for 
which  the  judgment  must  be  reversed, 
to  try  issues  of  fact  in  actions  of  law  with- 
out a  jury.  Kearney  v.  Case,  12  Wall. 
275,  20  L.  Ed.  395.  reafiirmed  in  Miller  v. 
Life   Ins.  Co.,  12   Wall.  285,  20   L.   Ed.   398. 

14.  Form  and  sufficiency  of  finding  in 
general.— The  E.  A.  Packer,  140  U.  S.  360, 
35  L.  Ed.  453;  Norris  v.  Jackson.  9  Wall. 
125,  19  L.  Ed.  608;  Copelin  v.  Insurance 
Co..  9  Wall.  461,  19  L.  Ed.  739;  Su- 
pervisors V.  Kennicott.  103  U.  S.  554,  26 
L.   Ed.  48(1. 

15.  O'Reilly  v.  Campbell,  116  U.  S.  418, 
29  L.  Ed.  669;  Morgan  v.  Eggers,  127  U- 
S.  63,  32  L.  Ed.  56. 

For  example,  where  an  order  in  an  ac- 
tion of  ejectment  plainly  indicates  a  gen- 
eral finding  for  the  plaintiflf  only  as  to. 
part  of  the  land  in  controversy,  that  is,  as. 
to  the  part  described  in  the  order,  and  the 
judgment  is  for  a  recovery  only  of  the 
possession  of  the  premises  so  described, 
such  judgment  is  proper.  Morgan  v.  Eg- 
gers,  127  U.   S.  63,  32  L.   Ed.  56. 


1032 


APPEAL  AND  ERROR. 


and  to  be  true,"  is  sufficient. ^^ 

bbb.  Facts  Must  Be  Pound  by  Circuit  Court. — All  matters  of  fact,  under  such 
a  submission,  must  be  found  by  the  circuit  court  and  not  by  the  supreme  court, 
as  the  act  of  congress  provides  that  the  issues  of  fact  may  be  tried  and  determined 
by  the  circuit  court  where  the  suit  is  brought.^"  Such  a  submission  necessarily 
implies  that  the  facts  shall  be  found  by  the  court. ^^^ 

ccc.  Ultimate  Facts. — A  finding  of  facts  by  the  circuit  court  is  strictly  anal- 
ogous to  a  special  verdict,  and  must  state  the  ultimate  facts  of  the  case,  present- 
ing questions  of  law  only,  and  not  be  a  recital  of  evidence  or  of  circumstances, 
which  may  tend  to  prove  ultimate  facts,  or  from  which  they  may  be  inferred. ^^ 

ddd.  Completeness  of  Findings. — In  General. — The  findings  must  contain 
all  the  facts  and  circumstances  necessary  to  a  proper  determination  of  the  ques- 
tions involved  ;  and  in  default  thereof,  the  judgment  of  the  court  below  will  be 
reversed,  and  the  case  sent  back  for  a  new  trial.-"  The  general  rule  that  wher- 
ever the  trial  court  finds  facts  and  the  conclusions  of  law  therefrom,  it  is  bound 
to  find  every  fact  material  to  its  conclusion,  and  a  refusal  to  do  so,  if  properly 
excepted  to,  is  a  grofmd  for  reversal,  is  applicable  also  to  proceedings  in  admi- 
ralty.^i     But  where  the  circuit  court  has  found  the  ultimate  facts,  the  refusal  of 


16.  Sire  f.  Ellithorpe  Air  Brake  Co.. 
137    U.    S.    579.    .34    L.    Ed.    801. 

17.  Facts  must  be  found  by  circuit  court. 
— Insurance  Co.  :■.  Eolsom,  18  Wall.  237. 
249,  21   L.  Ed.  827. 

Inferences  of  fact  must  also  be  drawn 
by  the  circuit  court,  as  it  is  the  circuit 
court  and  not  the  supreme  court  which, 
by  the  agreement  of  the  parties,  is  sub- 
stituted for  a  jury.  Tancred  v.  Christy, 
12  Meeson  &  Welsey,  323.  Insurance  Co. 
7'.  Folsom,  18  Wall.  237.  249,  21  L.  Ed. 
827. 

Issues  of  fact  cannot  be  found  by  this 
court,  as  the  act  of  congress  requires 
that  such  issues  shall  be  found  by  the 
circuit  court.  Consequently  there  can  be 
no  review  of  the  finding  of  the  circuit 
court  where  the  finding  is  general,  nor 
of  the  conclusions  of  the  circuit  court  em- 
bodied in  the  general  finding.  Cooper  z\ 
Omohundro,  19  Wall.  65,  70,  22  L.  Ed.  47. 

18.  Miller  v.  Life  Ins.  Co.,  12  Wall.  285, 
295,    20    L.    Ed.    398. 

Under  the  act  of  March  3d,  1865,  au- 
thorizing the  trial  of  facts  by  circuit 
courts,  the  court  must  itself  find  the  facts 
in  order  to  authorize  a  writ  of  error  to  its 
judgment.  A  statement  of  facts  signed 
bv  counsel  and  filed  after  the  judgment  is 
insufincient.  Bethel  ?■.  Mathews,  13  Wall. 
1.  20  L.  Ed.  556. 

19.  Ultimate  facts. — Raimond  v.  Ter- 
rebonne Parish.  132  U.  S.  192,  32  L.  Ed. 
309;  Glenn  z'.  Fant,  134  U.  S.  398,  33  L. 
Ed.  969;  Davenport  7'.  Paris,  136  U.  S.  580, 
3rs  E.  Ed.  548;  Wilson  r.  Merchants'  Loan 
&  Trust  Co.,  183  U.  S.  121,  46  L.  Ed.  113. 

The  act  of  congress  requires  that  the 
facts  must  be  found  by  the  circuit  court. 
Norris  z\  Jackson.  9  Wall.  125,  127.  19  L. 
Ed.  608.  Inferences  of  fact  must  be  drawn 
by  the  circuit  court,  which,  by  the  agree- 
ment of  the  parties,  is  substituted  for  a 
jury,  and  cannot  be  drawn  by  this  court, 
which  sits  as  a  court  of  errors.  Tan- 
cred   V.    Christy,    12    Meeson    &    Welsby. 


323.  Conclusions  of  fact  cannot  be  found 
by  this  court  when  sitting  as  a  court  of 
errors  under  the  act  of  congress  author- 
izing the  circuit  courts  to  try  and  deter- 
mine issues  of  fact  in  civil  cases.  What  is 
required  is  that  the  findings  of  the  circuit 
court  shall  contain  the  conclusions  of  fact, 
or,  as  the  rule  is  stated  in  a  recent  decision 
of  this  court,  a  statement  of  the  ultimate 
facts  or  propositions  which  the  evidence 
is  intended  to  establish,  and  not  the  evi- 
dence on  which  those  ultimate  facts  are 
supposed  to  rest,  and  it  is  well-settled  law 
that  the  finding  must  be  sufficient  in  it- 
self without  inferences  or  comparisons,  or 
balancing  of  testimony  or  weighing  evi- 
dence. Burr  v.  Des  Moines,  etc..  Co.,  1  Wall. 
99,  102,  17  L.  Ed.  561;  Miller  r.  Life  Ins. 
Co.,   12   Wall.   285,   301,   20  L-    Ed.  398. 

In  Graham  r.  Bayne,  18  How.  60,  63,  15 
L.  Ed.  265,  "if  a  special  verdict  be  ambigu- 
ous or  imperfect — if  it  find  but  the  evi- 
dence of  facts,  and  not  the  facts  them- 
selves, or  finds  but  part  of  the  facts  in 
issue,  and  is  silent  as  to  others,  it  is  a 
mistrial,  and  the  court  of  errors  must  or- 
der a  venire  de  novo.  They  can  render 
no  .judgment  on  an  imperfect  verdict,  or 
case  stated."  The  E.  -A..  Packer.  140  U. 
S.   360.  365,  35   L.   Ed.  453. 

20.  Completeness  of  findings. — The  E. 
A.  Packer.  140  U.  S.  360.  366,  35  L.  Ed. 
453. 

21.  The  E.  A.  Packer,  140  U.  S.  360. 
35  L.  Ed.  453,  citing  Tyng  <'.  Grinnell,  92 
U.  S.  467.  23  L.  Ed.  733;  Ex  parte  French, 
91  U.  S.  423.  23  L.   Ed.  249. 

The  rule  is  general,  that  wherever  the 
trial  court  finds  the  facts  and  the  conclu- 
sions of  law  therefrom,  it  is  bound  to  find 
every  fact  material  to  its  'conclusion,  and 
a  refusal  to  do  so,  if  properly  excepted  to, 
is  a  ground  for  reversal.  Thus,  in  cases 
tried  b\'  the  court  without  a  jury,  under 
Rev.  Stat.,  §§  649  and  700.  the  findings  of 
the  circuit  court  are  conclusive  upon  this 
court,  and   the  power  of  this  court  to  re- 


APPEAL  AND  ERROR. 


1033 


the  court  to  find  certain  facts  specified  by  the  plaintiff,  and  certain  propositions 
of  law  based  on  those  facts,  where  they  were  either  immaterial  facts  or  inci- 
dental facts  amounting  only  to  evidence  bearing  on  the  ultimate  facts  found, 
cannot  be  reviewed  on  writ  of  error.22  In  other  words,  it  is  only  the  ultimate 
tacts  which  the  court  is  bound  to  find,  and  this  court  will  not  take  notice  of  a 
refusal  to  find  the  mere  incidental  facts,  which  only  amount  to  evidence  from 
which  die  uhiniate  fact  is  to  be  obtained.--^ 

If  the  court  below  neglects  or  refuses  to  make  a  finding,  one  way  or 
the  other,  as  to  the  existence  of  a  material  fact,  which  has  been  established  by 
uncontradicted  evidence,  or  if  it  finds  such  a  fact  when  not  supported  by  any 
evidence  whatever,  and  an  exception  be  taken,  the  question  may  be  brought  up 
for  review  in  that  particular.  In  the  one  case  the  refusal  to  find  would  be  equiva- 
lent to  finding  that  the  fact  was  immaterial ;  and,  in  the  other,  that  there  was 
^ome  evidence  to  prove  what  is  found,  when  in  truth  there  was  none.  Both  of 
these  are  questions  of  law.  and  proper  subjects  for  review  in  an  appellate  court. 2-* 

After  a  great  lapse  of  time,  it  is  within  the  discretion  of  the  court  bel&w 
to  refuse  to  make  additional  findings ;  but  if  the  court  does  in  fact  make  such 
findir^s  this  court  is  compelled  to  accord  it  its  proper  weight.-^ 

gg.  IVawer  of  the  Jury — aaa.  Constitutional  Right  to  Waive  Jury  Trial. — 
There  is  no  constitutional  objection  to  the  waiver  of  a  jury  trial  under  this  sec- 
tion.26 

bbb.  Necessity  for  Waiver. — Without  a  waiver  of  the  right  of  trial  bv  jury, 
by  consent  of  parties,  the  court  errs  if  it  substitutes  itself  for  the  jury,  and  pass- 


view  extends  only  to  the  sufficiency  of  the 
facts  found  to  support  the  judgment,  Tyng 
V.  Grinnell,  92  U.  S.  467,  23  L.  Ed.  733, 
and  if  not  sufficient,  the  case  may  be  re- 
manded for  trial'  upon  other  issues  in- 
volved therein.  Ex  Parte  French.  91  U. 
S.  423.  33  L.  Ed.  249;  The  E.  A.  Packer, 
140    U.    S.    360,    365,   35    L.    Ed.    453. 

22.  Hathaway  v.  Cambridge  Nat.  Bank, 
134  U.  S.  494,  499,  33  L.  Ed.  1004. 
citing  The  Frances  Wright,  105  U.  S.  381, 
389,  26  L.  Ed.  1100;  McClure  v.  United 
States,  116  U.  S.  145,  152,  29  L.  Ed.  572; 
Union  Pac.  R.  Co.  v.  United  States,  116 
U.  S.  154,  157,  29  L.  Ed.  584;  Mer- 
chants' Ins.  Co.  V.  Allen,  121  U.  S.  67,  71, 
30  L.    Ed.   858. 

23.  The  Frances  Wright,  105  U.  S.  381, 
26  L.  Ed.  1100;  Merchants'  Ins.  Co.  v. 
Allen,  121  U.  S.  67,  71,  30  L.  Ed.  858;  The 
John  H.  Pearson,  121  U.  S.  469.  30  L.  Ed. 
979;  The  City  of  New  York,  147  U.  S.  72, 
76,  77,  37  L.  Ed.  8^. 

24.  The  Frances  Wright.  105  U.  S.  381, 
387,  26  L.  Ed.  1100;  The  E.  A.  Packer,  140 
U.  S.  360,  35  L.  Ed.  453;  The  City  of  New 
York,  147  U.  S.  72,  77,  37  L.  Ed.  84. 

25.  The  Martello,  153  U.  S.  64,  38  L.  Ed. 
637. 

26.  Constitutional  right  to  waive  jury 
trial. — The  judiciary  act  of  1789.  §  12,  de- 
clares that  the  trial  of  issues  in  fact  in  the 
circuit  courts  shall,  in  all  suits,  except 
those  of  equity  and  of  admiralty  and  mari- 
time jurisdiction,  be  by  jury.  This  pro- 
vision and  that  found  in  the  seventh 
amendment  of  the  constitution,  adopted 
alter  the  judiciary  act,  namely,  "that  in 
suits   at   law,   where   the   value   in   contro- 


versy shall  exceed  twenty  dollars,  the 
right  of  trial  by  jury  shall  be  preserved," 
constituted  the  only  legislative  rule  for 
the  federal  courts,  except  in  Louisiana, 
until  the  act  of  1865.  Undoubtedly  both 
the  judiciary  act  and  the  amendment  to 
the  constitution  secured  the  right  to  either 
party  in  a  suit  at  common  law  to  a  trial 
by  jury,  and  we  are  also  of  opinion  that 
the  statute  of  1789  intended  to  point  out 
this  as  the  mode  of  trial  in  issues  of  fact 
in  such  cases.  Numerous  decisions,  how- 
ever, had  settled  that  this  right  to  a  jury 
trial  might  be  waived  by  the  parties,  and 
that  the  judgment  of  the  court  in  such 
cases  should  be  valid.  Bank  of  Columbia 
V.  Okely,  4  Wheat.  235,  4  L.  Ed.  559;  Hiri- 
art  V.  Ballon,  9  Pet.  156,  9  L.  Ed.  85;  Par- 
sons V.  Armor,  3  Pet.  413.  425,  7  L.  Ed. 
724 ;  United  States  v.  Rathbone,  2  Paine  578 ; 
Guild  V.  Frontin.  18  How.  135,  15  L.  Ed. 
;?»0;  Suydam  v.  Williamson,  20  How.  427, 
15  L.  Ed.  978;  Kelsey  v.  Forsyth,  21  How. 
85,  15  L.  Ed.  32;  Campbell  v.  Boyreau,  21 
How.  223,  16  L.  Ed.  96;  Burr  v.  Des 
Moines,  etc.,  Co..  1  Wall.  99,  102,  17  L. 
Ed.  561;  Kearney  v.  Case.  12  Wall.  275, 
281,    20    L.    Ed.    395. 

The  right  of  trial  by  jury  in  the  courts 
of  the  United  States  is  expressly  secured 
b}^  the  seventh  article  of  amendment  to 
the  constitution,  and  congress  has,  by 
statute,  provided  for  the  trial  of  issues  of 
fact  in  civil  cases  by  the  court  without  the 
intervention  of  a  jury,  only  when  the  par- 
ties waive  their  right  to  a  jury  by  a  stip- 
ulation in  writing.  Rev.  Stat..  §§  648.  649. 
Baylis  v.  Travellers'  Ins.  Co.,  113  U.  S. 
316,  321,  28  L.  Ed.  989. 


1034 


APPEAL  AND  HKKOR. 


ing  upon  the  effect  of  the  evidence,  finds  the  facts  involved  in  tWe  issue,  and 
renders   judgment   thereon. ^-^ 

ccc.  What  Constitutes  a  Waiver — aaaa.  In  General. — Notwithstanding,  how- 
ever, the  number  of  cases  in  which  the  waiver  of  this  right  is  mentioned,  and 
either  expressly  or  tacitly  held  to  be  no  objection  to  the  judgment,  it  is  remarkable 
that  so  little  is  said  as  to  the  mode  in  which  this  waiver  shall  be  made  to  appear. 
In  most  of  the  cases  it  is  somewhere  in  the  record  stated  aflfirmativcly  that  the 
parties  did  waive  a  jur}-.  or  did  consent  to  the  trial  by  the  court  without  a  jury.^^ 
A  stipulation  in  writing,  signed  by  the  parties  and  filed  with  the  clerk,  that  the 
cause  shall  be  tried  by  the  court,  is  equivalent  to  their  waiver  of  a  j«ry.  although 
it  contains  no  express  waiver. ^^ 

bbbb.  Statement  of  Facts  by  Judge  as  Eiridence  of  Waiver. — The  statement  of 
facts  made  out  of  court  is  no  evidence  before  this  court  of  the  facts  stated.^" 

cccc.  Presumption  as  to  H'aiver. — Parties  will  be  presumed  in  this  court  to 
have  waived  their  right  to  a  trial  by  jury  of  issues  of  fact,  whenever  it  appears 
that  they  were  present  at  the  trial  in  person  or  by  counsel,  and  made  no  demand 
for  a  jury.  But  unless  it  appears  that  they  were  so  present,  or  otherwise  gave 
consent,  it  is  error,  for  which  the  judgment  must  be  reversed,  to  try  such  issues 
in  actions  at  law  without  a  jury.^^ 


27.  Necessity  for  waiver. — Balis  v.  Trav- 
ellers' Ins.  Co.,  \\?>  U.  S.  316.  320.  28  L. 
Ed.   989. 

28.  What  constitutes  a  waiver  in  gen- 
eral.— Kearney  v.  Case,  12  Wall.  275,  281, 
20  L.  Ed.  395.' 

In  the  case  of  Bank  of  Columbia  r'. 
Okley,  4  Wheat.  235,  4  L.  Ed.  559,  the 
coort  held,  that  there  was  an  implied 
waiver  of  this  right  when  the  defendant 
made  his  note  negotiable  at  the  Bank  of 
Columbia,  there  being  in  the  charter  of 
that  bank  a  provision  authorizing  the  col- 
lection of  such  debts  by  a  summary  pro- 
ceeding, which  did  not  admit  of  a  jury 
trial. 

In  Hiriart  v.  Ballon.  9  Pet.  156,  9  L. 
Ed.  85,  where  a  summarj-  judgment  was 
rendered  against  a  surety  in  an  appeal 
bond,  it  was  held,  that  the  defendant,  by 
becoming  surety  in  a  court  whose  rules 
provided  for  such  summary  judgment,  had 
waived  his  right  to  a  trial  bj'  jury.  It 
seems,  therefore,  that  both  by  express 
agreement  in  open  court,  and  by  implied 
consent,  the  right  to  a  jury  trial  could  be 
waived.  See  Phillips  v.  Preston.  5  How. 
278,   280,   290,    12    L.    Ed.    152. 

W'here  the  only  evidence  of  a  waiver 
of  a  jury  is  in  the  statement  in  the  record 
that  when  the  case  came  on  for  trial  "the 
issue  joined  bj'  consent  is  tried  by  the 
court,  a  jury  being  waived;"  and  in  the  re- 
cital at  the  beginning  of  the  bill  of  ex- 
ceptions, "the  above  cause  coming  on  for 
trial,  by  agreement  of  parties,  by  the 
court,  without  the  intervention  of  a  jury," 
it  was  held,  that  the  record  did  not  suf- 
ficiently show  any  stipulation  in  wrif'ng 
waiving  a  jury.  The  case  cannot  be  dis- 
tinguished, in  any  particular  favorable  to 
the  plaintiffs  in  error,  from  those  of  Mad- 
ison County  V.  Warren.  106  U.  S.  622.  27 
L.  Ed.  311.  and  Alexander  County  t'.  Kim- 
ball, 106  U.  S.  623,  27  L.  Ed.  220.  the  latest 


adjudications  upon  the  subject,  both  of 
which  came  up  from  the  same  court  as 
the  present  case.  In  one  of  those  cases, 
the  statement  in  the  record  was  "the  par- 
ties having  stipulated  to  submit  the  case 
for  trial  by  the  court .  without  the  inter- 
vention of  a  jury:"'  and.  in  the  bill  of  ex- 
ceptions, "said  cause  being  tried  by  the 
court  without  a  jury,  by  agreement  of 
parties."  In  the  other  case,  the  statement 
in  the  record  was  in  the  very  same  words 
as  in  the  case  at  bar;  and  in  the  bill  of 
exceptions  wa.s  in  these  words:  "Upon 
the  trial  of  this  cause  before  the  Hon.  S. 
H.  Treat,  sitting  as  circuit  Judge,  a  jury 
being  waived  by  both  parties."  Bond  v. 
Dustin,  112  U.  S.  604,  608,  28  L-   Ed.  835. 

29.  Bamberger  r.  Terry,  103  U.  S.  *0, 
26  L.  Ed.  317;  Supervisors  v.  Kennicott. 
103    U.    S.    554.    26    L.    Ed.    486. 

30.  Statement  of  facts  by  jn<lge  as  evi- 
dence of  waiver. — Flanders  v.  Tweed,  9 
Wall.  425,  19  L.  Ed.  678. 

Where  the  statement  of  tacts  by  the 
judge  is  filed  nearly  three  months  after 
the  rendition  of  the  judgment,  this  is  an 
irregularity  for  which  this  court  is  bound 
to  disregard  it,  and  to  treat  it  as  no  part 
of  the  record.  Flanders  v.  Tweed,  9  Wall. 
425,    19    L.    Ed.    678. 

31.  Presumption  as  to  waiver. — Kear- 
ney :■.  Case.  12  Wall.  275,  20  L.  Ed.  395, 
cit'ng  Phillips  7'.  Preston,  5  How.  278,  280, 
290.  12  L.  Ed.  152;  Perego  v.  Dodge,  163 
U.   S.   160,   41    L.    Ed.    113. 

In  Supervisors  v.  Kennicott,  103  U.  S- 
554.  26  L.  Ed.  486,  this  court  held,  that 
when  a  stipulation  in  writing  was  filed 
with  the  clerk,  by  which  it  was  provided 
that  the  case  might  be  submitted  to  the 
court  on  an  agreed  statement  of  facts, 
but  which  contained  no  express  waiver  of 
a  jury,  yet  this  amounted  to  a  waiver  suf- 
ficient to  meet  the  requirements  of  §  649. 
.\nd   though   the   right  of   trial  by  jury   is' 


APPEAL  AND' ERROR. 


1035 


ddd.  The  Written  Stipulation — aaaa.  Necessity  for  Filing. — Unless  there  is  a 
written  stipulation  of  the  waiver  of  a  jury  filed  with  the  clerk,  there  can  be  no 
review  here  of  a  case  tried  by  the  court.  Such  a  stipulation  in  writing  is  a  pre- 
requisite to  our  right  to  re-examine.  Though,  if  it  affirmatively  appears  in  any 
part  of  the  record  proper  that  such  a  writing  was  made  and  filed  by  the  parties, 
this  court  may  take  jurisdiction,  even  though  the  stipulation  itself,  or  a  copy  of 
it,  should  not  be  sent  up  with  the  transcript.-^^  However,  parties  may  still  waive 
a  jury  as  they  could  before  the  act  of  1865,  without  filing  a  written  stipulation, 
but  in  such  case  no  error  can  be  considered  in  the  action  of  the  court  on  such  trial ; 
but  the  judgment  will  be  held  valid  unless  other  errors  are  apparent  in  the  rec- 
ord.33 


a  constitutional  one,  yet  this  court  has 
declared  that  when  it  simply  appeared  by 
the  record  that  a  party  was  present  by 
counsel  and  had  gone  to  trial  before  the 
court  without  objection  or  exception,  a 
waiver  of  his  right  to  a  jury  trial  would 
be  presumed,  and  he  would  be  held  in  this 
court  to  the  legal  consequences  of  such 
waiver.  Kearney  v.  Case,  12  Wall.  275, 
20  L.  Ed.  395;  United  States  v.  Harris. 
106   U.    S.    629,   635,   27   L-    Ed.   290. 

The  practice  act  of  Missouri  declares 
that  an  issue  of  fact  in  any  action  may, 
upon  the  written  consent  of  the  parties,  be 
referred.  Where,  therefore,  the  record 
states  that,  after  a  case  was  called  for 
trial  and  a  jury  sworn  to  try  the  issue 
joined,  a  juror  was,  by  "consent  of  par- 
ties," withdrawn  and  the  case  referred  to 
A.,  this  court  mtist  assume  that  such  con- 
sent, as  well  as  that  to  waive  a  jury,  was 
in  writing.  Boogher  v.  Insurance  Co.,  103 
U.  S.  90,  26  L.  Ed.  310. 

"It  nowhere  expressly  appears  in  this 
case  that  a  stipulation  was  filed,  but  inas- 
much as  an  action  of  this  kind  could  not. 
under  the  practice  act  of  Missouri,  be  re- 
ferred without  the  written  consent  of  the 
parties,  and  this  was  referred  by  consent, 
we  think  we  must  assrme  that  a  consent 
was  given  in  such  form  as  to  authorize 
what  was  done  under  it.  The  withdrawal 
of  a  juror,  after  the  trial  was  begun,  and 
the  consent  to  a  reference  necessarily  im- 
plied a  waiver  of  a  jury;  and  as  this  con- 
sent to  be  available  must  have  been  in 
writing,  it  follows  that  the  waiver  which 
flowed  from  the  consent  was  also  in  writ- 
ing. We  think,  therefore,  it  sufficiently 
appears  that  the  stipulation  which  the  act 
of  congress  requires  was  entered  into." 
Boogher  v.  Insurance  Co.,  103  U.  S.  90, 
97.  ^e   L.    Ed.    310. 

"The  rulings  at  the  trial  of  an  action 
at  law  by  the  circuit  court  without  a  jury, 
when  there  had  been  no  waiver  of  a  jury, 
as  the  statute  requires,  by  stipulation  in 
writing,  signed  by  the  parties  or  their 
attorneys,  and  filed  with  the  clerk,  are  not 
reviewable  here.  Bond  :■.  D.ustin,  112  U. 
S.  604.  28  L.  Ed.  835,  and  the  cases  there 
cited.  The  concession  on  both  sides  that 
there  was  actually  no  consent  in  writing 
to  the  order  of  reference,  distinguishes 
this  case   materiallv   from    Boogher  v.    In- 


surance Co.,  103  U.  S.  90,  26  L.  Ed.  310, 
where  the  existence  of  a  stipulation  in 
writing,  waiving  a  jury,  was  presumed 
under  the  circumstances  which  were  there 
presented."  Dundee,  etc.,  Co.  v.  Hughes, 
124  U.   S.   157,   160,  31   L.   Ed.   357. 

"In  civil  cases,  other  than  those  in 
equity  and  admiralty,  and  except  where 
it  is  otherwise  provided  in  bankruptcy 
proceedings,  'the  trial  of  issues  of  fact' — 
that  is,  of  all  the  material  issues  of  fact — 
'in  the  circuit  court  shall  be  by  jury.' 
unless  the  parties,  or  their  attorneys  of 
record,  stipulate  in  writing  for  the  waiver 
of  a  jury.  Rev.  Stat..  §§  648.  649.  There 
is  no  such  stipulation  in  this  case,  and 
there  is  nothing  in  the  record  from  which 
such  stipulation  or  waiver  may  be  in- 
ferred. It  has  been  often  said  by  this 
court  that  the  trial  by  jury  is  a  funda- 
mental guarantee  of  the  rights  and  liber- 
ties of  the  people.  Consequently,  every 
reasonable  presumption  should  be  in- 
dulged against  its  viraiver."  Hodges  v. 
Easton.   106  U.   S.   408,  412,  27   L.   Ed.   169. 

32.  Necessity  for  filing. — Kearney  v. 
Case,  12  Wall.  275.  20  L.  Ed.  395;  Boogher 
V.  Insurance  Co..  103  U.  S.  90.  96,  26  L. 
Ed.  310;  Miller  r-.  Life  Ins.  Co..  12  Wall. 
285,  20  L.   Ed.  398. 

The  condition  upon  which,  according 
to  the  act  of  March  3d,  1865.  the  parties 
are  authorized  to  waive  a  trial  by  jury, 
and  substitute  the  court,  and,  at  the  same 
time,  save  to  themselves  all  the  rights  and 
privileges  which  belong  to  them  in  trials 
by  jury  at  common  law,  is  the  filing  with 
the  clerk  a  written  stipulation,  signed  by 
the  parties,  or  their  attorneys.  Flanders 
V.  Tweed,  9   Wall.  425,  428,   19   L.   Ed.  678. 

It  is  not  competent  for  a  circuit  court 
to  determine,  without  the  intervention  of 
a  jury,  an  issue  of  fact  without  any  writ- 
ten agreement  to  waive  a  trial  by  jury. 
Morgan  v.  Gay,  19  Wall.  81,  22  L.  Ed.  100. 

33.  Kearney  v.  Case,  12  Wall.  275,  20 
L-   Ed.  395. 

By  the  fourth  section  of  the  act  of  con- 
gress of  March  3,  1865  (13  Stat.  500,  c. 
86),  carried  forward  into  §§  649  and  700 
of  the  Revised  Statutes,  it  was  enacted 
that  "issues  of  fact  in  civil  cases  rnay  be 
tried  and  determined  by  the  circuit  court 
without  the  intervention  of  a  jury,  when- 
ever   the  parties,  or  their  attorneys  of  rec- 


1036 


APPEAL  AND  ERROR. 


Presumption. — The  filing  of  a  written  stipulation  is  often  supplied  by  pre- 
sumption, where  it  does  not  so  expressly  appear.^^  But  every  reasonable  pre- 
sumption should  be  indulged  against  its  waiver,  because  the  trial  by  jury  is  a 
fundamental  guarantee  of  the  rights  and  liberties  of  the  people.^'^ 

bbbb.  Form  and  Sufficiency  of  Stipulation. — A  stipulation,  signed  by  the  par- 
ties or  their  attorneys,  and  filed  with  the  clerk  of  the  circuit  court,  submitting 
a  civil  cause  for  trial  on  an  agreed  statement  of  facts,  is  "a  stipulation  in  writ- 
ing waiving  a  jury,"  within  the  meaning  of  §  649  of  the  Revised  Statutes.^e 
So  it  has  been  held,  that  a  written  consent  of  the  parties,  after  a  trial  by  jury 
has  begun,  to  withdraw  a  juror  and  refer  the  case  to  a  referee,  in  accordance 
with  a  statute  of  the  state,  authorizing  this  course,  is  a  suf!icient  stipulation  in 
writing  waiving  a  jury ;  and  that  when  the  court  has  authority  to  refer  a  case 
upon  consent  in  writing  only,  an  order  expressed  to  be  made  "by  consent  of  par- 
ties," that  the  case  be  referred,  necessarily  implies  that  such  consent  was  in  writ- 
ing.37  B^it  a  statement  of  facts  signed  by  counsel  cannot  be  noticed  upon  error, 
e^ecially  where  it  does  not  appear  to  have  been  made  and  filed  until  after  judg- 
ment.-^ ^  A  request,  made  to  the  court  by  each  party  to  instruct  the  jury  to  ren- 
der a  verdict  in  his  favor,  is  not  equivalent  to  a  submission  of  the  case  to  the 
court,  without  the  intervention  of  a  jury,  within  the  intendment  of  the  Revised 
Statutes,  §§  649,  700.''" 

cccc.  How  Existence  of  Stipulation  Shonm. — In  General. — The  most  appro- 
priate evidence  of  a  compliance  with  the  statute  is  a  copy  of  the  stipulation  in 
writing  filed  with  the  clerk.  But  the  existence  of  the  condition  upon  which  a  re- 
view is  allowed  is  sufficiently  shown  by  a  statement,  in  the  finding  of  facts  by 
the  court,  or  in  the  bill  of  exceptions,  or  in  the  record  of  the  judgmait  entry, 
that  such  a  stipulation  was  made  in  writing.*** 


ord,  file  a  stipulation  in  writing  with  the 
clerk  of  the  court  waiving  a  jury."  In  Kear- 
ney V.  Case,  12  Wall.  275.  30  L.  Ed.  395,  this 
statute  was  considered,  and  it  was  held, 
that  parties  might  waive  a  jury,  as  they 
could  before  the  act  was  passed,  without 
filing  a  written  stipulation,  but  that  in 
such  case  no  error  could  be  considered  in 
the  action  of  the  court  on  such  trial,  and 
that  parties  would  be  presumed  in  this 
court  to  have  waived  their  right  to  trial 
by  jury  of  issues  of  fact  whenever  it  ap- 
peared that  they  were  present  at  the  trial 
in  person  or  by  counsel  and  made  no  de- 
mand for  a  jury.  See,  also,  Bond  v. 
Dustin,  112  U.  S.  604,  28  L-  Ed.  835; 
Perego  v.  Dodge,  .163  U.  S.  160,  166,  41 
L.    Ed.   113. 

34.  Boogher  v.  Insurance  Co.,  103  U.  S. 
90,  26  L.  Ed.  310;  Dundee  Mortgage,  etc., 
Co.   V.    Hughes.    124   U.    S.    157,    31    L.    Ed. 

35.  Hodges  V.  Easton,  106  U.  S.  408,  27 
L.   Ed.  169. 

36.  Form  and  sufficiency  of  stipulation. 
— Supervisors  v.  Kennicott,  103  U.  S.  554, 
26  L.  Ed.   486. 

37.  Boogher  v.  Insurance  Co.,  103  U.  S. 
90.  26  L-  Ed.  310.  See.  also,  United  States 
7:  Harris,  106  U.  S.  629,  634,  27  L.  Ed. 
290;  Bond  7'.  Dustin,  112  U.  S.  604,  607, 
28  L.   Ed.  835. 

38.  Bethel  v.  Matthews.  13  Wall.  1,  20 
L.  Ed.  .')56.  citing  Generes  v.  Bonemer, 
7  Wall.  564,  19  L-  Ed.  227;  A  ndano  v. 
Gay,  8  Wall.  376,  19  L-  Ed.  422;  Kearney 
V.  Case,  12  Wall.  275,  276,  20  L.  Ed.  395. 


A  paper  found  in  the  record,  purporting 
to  be  a  statement  of  facts  agreed  to  by 
the  parties,  and  filed  with  the  clerk  after 
the  writ  of  error  is  issued,  or  after  the 
case  is  disposed  of  by  the  circuit  court, 
cannot  be  noticed  here  on  writ  of  error 
though  both  parties  consent.  Kearney  v. 
Case,  12  Wall.  275,  20  L-  Ed.  395,  distin- 
guishing Insurance  Co.  z>.  Tweed,  7  Wall. 
44.  19  L.  Ed.  65. 

39.  Buetell  v.  Magone,  157  U.  S.  154, 
157,   39   L.    Ed.   654. 

40.  How  existence  of  stipulation  shown. 
—Kearney  v.  Case.  12  Wall.  275,  283, 
284,  20  L.  Ed.  395;  Dickinson  v.  Planters' 
Bank.  16  Wall.  250.  21  L.  Ed.  278;  Bond 
V.  Dustin,  112  U.  S.  604,  607,  28  L.  Ed. 
835. 

Under  the  act  of  March  3rd,  1865,  al- 
lowing parties  to  an  action  of  law  to 
submit  the  issues  of  fact  to  be  tried  by 
a  court  without  the  action  of  the  jury, 
there  can  be  no  review  of  the  ruling  of 
the  court  in  such  case,  unless  the  record 
shows  that  such  an  agreement  was  signed 
and  filed  with  the  clerk.  But  the  ex- 
istence of  such  a  writing  may  be  shown 
in  this  court:  1st,  by  a  copy  of  the  agree- 
ment; or  2d,  by  a  statement  in  the  finding 
of  facts  by  the  court  that  it  was  executed; 
or  3d,  by  such  statement  in  the  record 
entry  of  the  judgment;  or  4th,  by  such 
statement  in  the  bill  of  exceptions.  Un- 
less it  appears  that  such  an  agreement 
was  filed,  the  judgment  must  be  affirmed, 
unless  error  appears  in  other  parts  of  the 
record  that  the  finding  of  facts  and  judg- 


APPEAL  AXD  ERROR. 


1037 


Must  Be  Shown  by  Record. — Since  the  passage  of  this  statute,  it  is  well 
settled  by  a  series  of  decisions  that  this  court  cannot  consider  the  correctness  of 
rulings  at  the  trial  of  an  action  by  the  circuit  court  without  a  jury,  unless  the  rec- 
ord shows  such  a  waiver  of  a  jury  as  the  statute  requires,  by  stipulation  in  writing, 
signed  by  the  parties  or  their  attorneys,  and  filed  with  the  clerk."*  ^  And  a  copy 
of  the  stipulation  of  the  parties,  or  attorneys,  filed  with  the  clerk,  waiving  the 
}«ry,  should  come  up  with  the  transcript  in  the  return  to  the  writ  of  error,  so 
that  the  court  could  see  that  the  act  had  been  complied  with."* 2 

hh.  Revietv  of  General  Findings — aaa.  In  General. — Where  a  jury  is  waived. 
and  the  issues  of  fact  in  civil  cases  are  tried  and  determined  by  the  court  with- 
out the  intervention  of  a  jury,  where  the  finding  is  general  the  parties  are  con- 
cluded by  the  determination  of  the  court,  except  in  cases  where  exceptions  are 
taken  to  the  rulings  of  the  court  in  the  progress  of  the  trial.  Such  rulings,  if 
duly  presented  by  a  bill  of  exceptions,  may  be  reviewed  here,  even  though  the 
finding  is  general,  but  the  finding  of  the  court,  if  general,  cannot  be  reviewed  in 
this  court  by  bill  of  exceptions,  or  in  any  other  manner,  as  the  act  of  congress 
provides  that  the  finding  "^hall  have  the  same  effect  as  the  verdict  of  a  jury"  in 
a  case  where  no  such  waiver  is  made.^-"*     An  exception  to  a  general  finding  of  the 


ment  of  the  court  thereon.  Kearney  v. 
Case,  12  Wall.  275,  20  L.  Ed.  395,  re- 
affirmed in  Miller  v.  Life  Ins.  Co.,  12 
Wall.  285,  20   L-   Ed.  398. 

41.  Flanders  v.  Tweed,  9  Wall.  425,  19 
L.  Ed.  678;  Kearney  v.  Case,  12  Wall. 
275,  20  L.  Ed.  395;  Oilman  v.  Illinois,  etc.. 
Tel.  Co.,  91  U.  S.  603,  614,  23  L-  Ed.  405; 
Madison  County  v.  Warren,  106  U.  S.  622, 
27  L.  Ed.  311;  Alexander  County  7'.  Kim- 
ball, 106  U.  S.  623,  27  L.  Ed.  311;  Bond  v. 
Dustin,   112  U.   S.   604,  606,  28   L.'  Ed.   835. 

Where  a  case  is  tried  and  determined 
by  the  court  without  the  intervention  of 
a  jury,  the  rule  is  well  settled,  that  if  a 
written  stipulation  waiving  a  jury  is  not 
in  some  way  shown  affirmatively  in  the 
record,  none  of  the  questions  decided  at 
the  trial  can  be  re-examined  here  on  writ 
of  error.  Kearney  v.  Case,  12  Wall.  275, 
20  L.  Ed.  395;  Gilman  v.  Illinois,  .  etc., 
Tel.  Co.,  91  U.  S.  603,  23  L.  Ed.  405; 
Boogher  v.  New  York  Life  Ins.  Co.,  103 
U.  S.  90.  26  L.  Ed.  310;  Hodges  v.  Easton, 
106  U.  S.  408,  27  L.  Ed.  169;  County  of 
Madison  v.  Warren,  106  U.  S.  622,  27  L. 
Ed.  311. 

Under  §  649  of  the  Revised  Statutes, 
which  provides  that  a  jury  may  be  waived 
"whenever  the  parties  or  their  attorneys 
of  record  file  with  the  clerk  a  stipulation 
in  writing  waiving  a  jury,"  this  court  has 
decided  that  the  fact  that  the  stipulation 
was  in  writing  and  filed  with  the  clerk 
must  appear  of  record  in  order  to  entitle 
the  party  to  the  review  of  the  rulings  of 
the  court  in  the  progress  of  the  trial  pro- 
vided by  §  700.  But  §  649  expressly  re- 
quires that  the  waiver  of  the  jury  shall  be 
m  writing  and  filed  with  the  clerk.  United 
States  V.  Harris,  106  U.  S.  629,  634.  27  L. 
Ed.  290. 

No  error  can  be  examined  in  the  rulings 
of  the  court  at  the  trial  of  a  cause  by  the 
court  without  a  jury  by  agreement  of 
parties,    if    there    is    no    allegation    in    the 


record  that  the  stipulation  was  in  writing, 
as  required  by  the  statute.  Bond  v.  Dus- 
tin, 112  U.  S.  604,  28  L.  Ed.  835,  and 
Dundee  Mortgage,  etc.,  Co.  v.  Hughes.  124 
U.  S.  157,  31  L.  Ed.  357,  followed  in  Spald- 
ing V.  Manasse,  131  U.  S.  65,  32  L.  Ed.  86. 
An  assignment  of  error  that  the  issue 
on  one  of  the  exceptions  was  tried  by  the 
court,  not  by  the  jury,  no  agreement  to 
waive  a  trial  by  jury  appearing  in  the 
record,  is  not  well  taken  where  the  record 
explicitly  states  that  "the  exception  in 
this  cause  was  called  for  trial  by  the 
court,  the  jury  having  been  waived  in 
writing."  In  the  absence  of  anything  to 
the  contrary,  this  is  conclusive  that  the 
proper  agreement  was  made.  Fleitas  v. 
Cockrem,   101   U.   S.   301,   25   L.    Ed.   954. 

42.  Flanders  v.  Tweed.  9  Wall.  425, 
431.    19    L.    Ed.   678. 

43.  Review  of  general  findings. — 13 
Stat.  501;  Insurance  Co.  v.  Folsom, 
18  Wall.  237,  21  L.  Ed.  827;  Norris 
V.  Jackson,  9  Wall.  125,  19  L.  Ed.  608; 
Insurance  Co.  v.  Sea,  21  Wall.  158,  22  L. 
Ed.  511;  Copelin  v.  Insurance  Co.,  9  WaM. 
461.  19  L.  Ed.  739;  Miller  r.  Insurance 
Co.,  12  Wall.  285,  297,  20  L.  Ed.  398;  Cod- 
dington  v.  Richardson.  10  Wall.  516,  19 
L.  Ed.  981;  Buetell  v.  Magone,  157  U.  S. 
154,  39  L.  Ed.  654;  Lehnen  v.  Dickson, 
148  U.  S.  71,  37  L.  Ed.  373;  Runkle  y. 
Burnham.  153  U.  S.  216.  38  L.  Ed.  694; 
Gleason  v.  White,  199  U.  S.  54.  60,  59  L. 
Ed.  87;  Martinton  v.  Fairbanks,  112  U.  S- 
670,  673,  28  L.  Ed.  862;  St.  Louis  v.  West- 
ern Union  Tel.  Co.,  166  U.  S.  388,  41  L- 
Ed.  1044;  Otoe  County  z'.  Baldwin,  111 
U.  S.  1,  28  L.  Ed.  331;  British  Queen  Min. 
Co.  V.  Baker  Silver  Min.  Co.,  139  U.  b. 
222,  35  L.  Ed.  147;  Santa  Anna  v.  Frank, 
113   U.    S.    339,   340,   28    L.    Ed.   978. 

In  Insurance  Co.  v.  Folsom,  18  Wall. 
237,  21  L.  Ed.  827,  the  court  said:  "Where 
the  finding  is  general,  the  parties  are 
concluded    by    the    determination    of    fke 


1038 


APPEAL  AXD  ERROR. 


court  on  a  trial   without  a  jury  brings  up  no  question  for  review.     The  finding 
IS  conclusive,  and  there  must  be  exceptions  taken  to  the  rulings  of  the  court  during 


court,  except  in  cases  where  exceptions 
are  taken  to  the  ridings  of  the  coi'rt  in 
the  progress  of  the  trial.  *  *  *  Where 
a  case  is  tried  by  the  court  without  a 
jury,  the  bill  of  exceptions  brings  up 
nothing  for  revision  except  what  it  would 
have  done  had  there  been  a  jury  trial." 
Martinton  v.  Fairbanks,  112  U.  S.  670,  673, 
28  L.   Ed.  862. 

Where  the  parties  waive  the  interven- 
tion of  a  jury,  and  submit  the  cause  to 
the  court,  according  to  the  statute  regu- 
lating the  practice  in  such  cases,  the  find- 
ing of  the  court  upon  the  facts  may  be 
either  general  or  special,  and  shall  have 
the  same  effect  as  the  finding  of  the  jury. 
When  the  finding  is  special,  the  review 
by  this  court  may  extend  to  the  suffi- 
ciency of  the  facts  found  to  support  the 
judgment.  But  where  the  finding  is  gen- 
eral, this  court  may  look  to  the  bill  of 
exceptions  as  if  the  finding  had  been  by 
a  jury  for  the  action  of  the  court  on  the 
ground  upon  whicli  it  is  sought  to  re- 
verse the  judgment.  And  the  court  can 
look  no  further  than  the  exceptions  in 
the  bill.  Morris  f.  Shriner.  l.'M  U.  S. 
appx.  xci,   19   L.   Ed.  303. 

Under  the  act  of  March  3d,  1865,  author- 
izing parties  to  submit  the  issues  of  fact 
in  civil  cases  to  be  tried  and  determined 
by  the  court,  this  court  will  not  review  a 
general  findin-g  upon  a  mass  of  evidence 
brought  up;  i^  a  party  desires  to  have 
the  finding  reviewed,  he  must  have  the 
court  find  the  facts  specially,  so  that  the 
case  may  come  here  as  on  a  special  ver- 
dict or  case  stated.  Coddington  v.  Rich- 
ardson, 10  Wall.  .516,  19  L.  Ed.  981,  fol- 
lowing Norris  z'.  Jackson,  9  Wall.  12.5,  19 
L.  Ed.  608;  Flanders  v.  Tweed.  9  Wall. 
425,  19   L.  Ed.   678. 

Section  4  of  the  act  of  March  3,  1865, 
was  passed  to  allow  the  parties,  where,  a 
jury  being  waived,  the  cause  was  tried  by 
the  court,  a  review  of  such  rulings  of  the 
court  in  the  progress  of  the  trial  as  were 
excepted  to  at  the  time,  and  duly  pre- 
sented by  bill  of  e.xceptions,  and  also  a 
review  of  the  judgment  of  the  court  upon 
the  question  whether  the  facts  specially 
found  by  the  court  were  sufficient  to  sup- 
port its  judgment.  In  other  respects,  the 
old  law  remained  unchanged,  and  there- 
fore the  general  finding  is  conclusive  of 
the  issues  of  fact.  Martinton  z\  Fair- 
banks, 112  U.   S.   670,   675,  28  L.   Ed.   862. 

Issues  of  fact  in  civil  causes  pending 
in  the  circuit  courts  may,  if  the  parties  so 
agree,  be  tried  and  determined  by  the 
court  without  the  intervention  of  a  jury, 
but  such  a  submission  necessarily  implies 
that  the  facts  shall  be  found  by  the  court, 
and  the  act  provides  that  the  finding  may 
be  either  general  or  special,  and  that  it 
shall  have  the   same   effect   as  the   verdict 


of  a  jury.  Consequently  where  the  find- 
ing is  general  nothing  is  open  to  review 
but  the  rulings  or,  perhaps,  the  instruc- 
tions of  the  court  as  presented  in  a  bill 
of  exceptions,  which  is  sufficient  to  show 
that  nothing  is  open  to  re-examination  in 
this  case  except  the  ruling  of  the  court 
in  sustaining  the  demurrer  of  the  plaintiff 
to  the  second  plea  of  the  defendants. 
Miller  v.  Life  Ins.  Co.,  12  Wall.  295,  20 
L.  Ed.  398;  13  Stat,  at  Large  501;  Bond 
V.  Brown,  12  How.  254,  13  L.  Ed.  977; 
Saulet  V.  Shepherd,  4  Wall.  502,  18  L. 
Ed.  442;  Richmond  v.  Smith,  15  Wall. 
429,   437,  21    L-   Ed.   200. 

Where  an  action  of  law  is  tried  by  a 
circuit  court,  without  a  jury,  and  the 
facts  on  which,  on  a  writ  of  error,  the 
plaintiff  in  error  seeks  to  raise  a  ques- 
tion of  law,  are  not  admitted  in  the  plead- 
ings, or  specially  found  by  the  court,  and 
there  is  a  general  finding  for  the  defend- 
ant in  error  on  the  cause  of  action  which 
involves  such  question  of  law,  and  there 
is  no  exception  by  the  plaintiff  in  error 
to  any  ruling  of  the  court  in  regard  to 
such  (luestion,  this  court  can  make  no  ad- 
judication in  regard  to  it.  Otoe  County 
zf.   Baldwin,   111  U.  S.   1,  28   L.   Ed.  331. 

Where  the  cause  was  tried  by  the  court 
below  without  the  intervention  of  a  jury, 
but  the  facts  were  not  agreed  upon  and 
there  was  no  special  findings,  and  no  ex- 
ceptions were  taken  to  the  ruling  of  the 
court  in  the  progress  of  the  trial,  if  the 
onlv  error  assigned  is  that  the  general 
finding  of  the  court  was  in  favor  of  the 
defendant  belf^w  when  it  should  have  been 
for  the  plaintiff,  a  bill  of  exceptions  can- 
not be  iised  to  bring  up  the  whole  testi- 
money  for  review.  Betts  v.  Mugridge, 
154    U.   S.   644,   25    L.    Ed.    157. 

W^here  the  parties  waive  the  interven- 
tion of  a  jurj'  and  submit  the  cause  to 
the  court,  under  the  act  of  March  3,  1865, 
§  4,  13  Stat.  501,  and  the  finding  is  gen- 
eral, that  the  defendants  were  not  guilty, 
etc.,  this  court  can  look  to  the  bill  of  ex- 
ceptions alone  as  if  the  finding  had  been 
by  a  jury,  for  the  action  of  the  court,  and 
the  grounds  upon  which  it  is  sought  to 
reverse  the  judgment.  Therefore,  if  there 
is  but  a  single  exception  in  the  bill,  and 
that  exception  is  not  well  taken,  we  will 
examine  the  case  no  further.  Morris  v. 
Shriner,  131  U.  S.  appx.  xci,  19  L.  Ed. 
303. 

Mixed  questions  of  law  and  fact. — A 
partj',  by  excepting  to  the  general  find- 
ing, does  not  except  to  such  conclusions 
of  law  as  the  general  finding  implies,  for 
§  649,  Rev.  Stat.,  provides  that  the  find- 
ing of  the  court,  whether  general  or  spe- 
cial, shall  have  the  same  effect  as  the 
verdict  of  a  jury.  The  general  verdict  of 
a  jury  concludes  mixed  questions  of  law 
and    fact,    except    so   far   as    they   may   be 


APPEAL  AXD  ERROR. 


1039 


the  trial  in  order  to  permit  a  review  thereof.^-*  And  since  the  general  finding  of 
the  court  shall  have  the  same  effect  as  the  verdict  of  a  jury,  then  it  follows  that 
the  finding  can  only  be  re-examined  either  by  a  motion  for  a  new  trial  in  the 
court  where  the  finding  was  made,  or  by  the  award  of  a  venire  facias  de  novo  in 
the  appellate  court,  which  has  already  been  pointed  out.^^ 

Review  of  Error  in  Admitting  or  Excluding  Testimony. — When  the  find- 
ing is  special,  the  review  may  also  extend  to  the  determination  of  the  sufficiency 
of  the  facts  found  to  support  the  judgment ;  but  "if  the  jury  is  waived,  and  the 
court  chooses  to  find  generally  for  one  side  or  the  other,  the  losing  party,"  says 
Mr.  Justice  Bradley,  "has  no  redress,  on  error,  except  for  the  wrongful  admis- 
sion or  rejection  of  evidence."^"  But  that  objection  to  the  admission  or  exclu- 
sion of  evidence,  or  to  such  ruling  on  the  propositions  of  law  as  the  party  may 
ask,  must  appear  by  bill  of  exceptions.-^' 

Limitations  of  Rule. — While  the  rule  is  not  doubted  that  where  the  find- 
ing is  general,  according  to  a  strict  construction  of  the  statute,  the  only  questions 
reviewable  by  this  court  are  tliose  which  arise  during  the  progress  of  the  trial, 
and  which  are  presented  by  bill  of  exceptions.-^*^  It  has  also  iDcen  held,  that  where 
there  was  an  agreed  statement  of  facts  submitted  to  the  trial  court  and  upon  which 
its  judgment  was  founded,  such  agreed  statement  would  be  taken  as  an  equiva- 
lent of  a  special  finding  of  facts. ^^  But  as  such  equivalent,  there  must  of  course 
be  a  finding  or  an  agreement  upon  all  ultiinate  facts  and  the  statement  must  not 


saved  by  some  exception  which  the  party 
has  taken  to  the  ruling  of  the  court  upon 
a  question  of  law.  "By  excepting  to  the 
general  finding  of  the  court,  it  is  in  the 
same  position  as  if  it  had  submitted  its 
case  to  the  jury,  and,  without  any  excep- 
tions taken  during  the  course  of  the  trial, 
liad.  upon  a  return  of  the  general  verdict 
for  the  plaintifif.  embodied  in  a  bill  of  ex- 
ceptions all  the  evidence,  and  then  ex- 
cepted to  the  verdict  because  the  evi- 
<lence  did  not  support  it."  Norris  z'. 
Jackson.  9  Wall.  12.5,  19  L.  Ed.  60S;  Mar- 
tinton  f.  Fairbanks,  112  U.  S.  670.  674,  28 
L.    Ed.   862. 

When  a  court  in  a  case  where  a  jury 
is  waived  under  the  act  of  March  5th,  1865 
(see  Revised  Statutes  of  the  United 
States,  §  649),  and  the  case  is  submitted 
to  it  without  the  intervention  of  a  jury, 
finds,  as  a  fact,  that  a  conveyance  was 
made  to  certain  persons  as  trustees,  and 
then  finds  as  a  conclusion  of  law,  that  the 
legal  title  remained  in  those  trustees,  that 
finding  does  not  bind  this  court  as  a  find- 
ing of  fact;  such  findings  of  facts  are  re- 
garded in  this  court  in  the  light  of  spe- 
cial verdicts.  French  z\  Edwards.  21  Wall. 
147,  22   L.    Ed.   534. 

44.  Insurance  Co.  v.  Folsom.  18  Wall. 
237,  21  L.  Ed.  827;  Wilson  v.  Merchants" 
Loan,  etc.,  Co..  183  U.  S.  121.  127,  46 
L.  Ed.  113. 

45.  See  ante.  "Review  of  Questions  of 
Fact,"   IV,   E. 

46.  Dirst  v.  Morris,  14  Wall.  484.  20  L. 
Ed.  722. 

47.  Martinton  v.  Fairbanks,  112  U.  S. 
670,  673.  28  L.  Ed.  862,  following  Norris 
V.  Jackson.  9  Wall.  125,  19  L.  Ed.  608; 
Town  of  Ohio  z'.  Marcy,  18  Wall.  552,  21 
L.  Ed.  813:  Santa  Anna  v.  Frank,  113  U. 
S.    339,    28    L.    Ed.    978;    Insurance    Co.    v. 


Sea,  21  Wall  158,  22  L.  Ed.  511;  Flanders 
c'.  Tweed,  9  Wall.  425,  430,   19  L.   Ed.   678. 

If  a  jury  is  waived  and  the  court  chooses 
to  find  generally  for  one  side  or  the  other, 
the  losing  party  has  no  redress  on  error, 
except  for  the  wrongful  admission  or  re- 
jection of  evidence.  Dirst  v.  Morris,  14 
Wall.  484,  491,  20  L.   Ed.   722. 

When  a  court  sits  in  the  place  of  a  jury, 
and  finds  the  facts,  this  court  cannot  re- 
view that  finding.  If  there  is  any  error 
in  such  a  case,  shown  by  the  record,  in 
admitting  or  rejecting  testimony,  it  can 
be  reviewed  here;  but  when  the  court,  by 
permission  of  the  parties,  takes  the  place 
of  the  jury,  its  finding  of  facts  is  con- 
clusive, precisely  as  if  a  jury  had  found 
them  by  verdict.  Bassett  z\  United  States, 
9  Wall.  38,  19  L.  Ed.  548. 

48.  Wilson  r.  .Merchants'  Loan,  etc. 
Co.,  183  U.  S.  121,  46  L.  Ed.  113,  citing 
Norris  v.  Jackson,  9  Wall.  125,  19  L.  Ed. 
608;  Insurance  Co.  v.  Folsom,  18  Wall. 
237,  21  L.  Ed.  827:  Martinton  v.  Fair- 
banks. 112  U.  S.  670,  28  L.  Ed.  862; 
Lehnen  r.  Dickson,  148  U.  S.  71,  37  L.  Ed. 
373;  St  Louis  v.  Western  Union  Tel. 
Co..    166  U.  S.   388.  41   L.   Ed.   1044. 

"In  Martinton  v.  Fairbanks,  112  U.  S. 
670,  28  L.  Ed.  862.  which  was  a  trial  be- 
fore the  judge  without  the  intervention 
of  a  jurj'  and  where  there  was  only  a  gen- 
eral finding  of  facts  and  a  judgment  for 
the  plaintiff  below,  the  court  decided  that 
an  exception  to  the  general  finding  of  the 
court  for  the  plaintifif  upon  the  evidence 
adduced  at  the  trial  presented  no  ques- 
tion of  law  which  the  court  could  review. 
In  that  case  there  was  no  agreed  state- 
ment of  facts."  Wilson  v.  Merchants' 
Loan,  etc.,  Co.,  183  U.  S.  121,  127,  46  L 
Ed.   113. 

49.  Supervisors  z'.  Kennicott,  103  U.  S. 
554,   26   L.    Ed.   486. 


1040 


APPEAL  AND  ERROR. 


merely  present  evidence  from  which  such  facts  or  any  of  them  may  be  inferred.-^'* 
Accordingly,  although  there  is  a  general  finding  in  favor  of  the  defendant,  yet  if 
there  is  a  statement  of  facts  which  contains  certain  ultimate  facts  together  with 
certain  other  facts,  evidential  in  their  nature,  from  which  an  imp>ortant  and  ulti- 
mate fact  might  be  inferred,  but  in  regard  to  wdiich  there  is  no  agreement  or 
finding  whatever,  it  would  not  be  proper  to  regard  the  agreed  statement  as  a  suffi- 
cient finding  of  ultimate  facts  within  the  statute.^ ^  An  agreed  statement  of  facts 
which  is  so  defective  as  to  present,  in  addition  to  certain  ultimate  facts,  other  and 
evidential  facts  upon  which  a  material  ultimate  fact  might  have  been  but  which 
was  not  agreed  upon  or  found,  cannot  be  regarded  even  as  a  substantial  compli- 
ance with  the  statutes.52 

bbb.  Assignment  of  Error  on  General  Finding. — No  error  can  be  assigned  on 
a  general  finding. -^-^ 

ii.  Review  of  Special  Findings — aaa.  Xaturc  of  Special  Finding. — A  special 
finding  of  facts  is.  under  §  649  of  the  Revised  Statutes,  equivalent  to  the  special 
verdict  of  a  jury.^^ 

bbb.  Duty  to  Make  Special  Finding. — The  court  to  which  a  case  is  submitted, 
without  a  jury,  cannot  be  required  to  find  special  issues  of  fact.^-^  On  the  other 
hand,  where  a  case  is  tried  by  a  circuit  court,  without  a  jury,  and  that  court 
makes  a  special  finding  of  facts,  but  omits  to  find  certain  facts  which  a  stipul-a- 
tion  between  the  parties,  made  after  the  entry  of  judgment,  states  were  shown 
by  proof  at  the  trial,  this  court,  on  a  writ  of  error,  can  take  notice  only  of  the 
facts  contained  in  the  special  finding.  This  court  is  authorized  under  §  700  of 
the  Revised  Statutes,  to  determine  whether  the  facts  specially  found  by  the  cir- 


50.  Wilson  V.  Merchants'  Loan,  etc., 
Co.,   183   U.   S.   121,   127,  46   L.   Ed.   113. 

"In  Raimond  7'.  Terrebonne  Parish,  132 
U.  S.  192,  32  L.  Ed.  309,  it  was  said  that 
the  agreed  statement  of  facts  by  the  par- 
ties or  a  finding  of  facts  by  the  circuit 
court  must  state  the  ultimate  facts  of  the 
case,  presenting  questions  of  law  only,  and 
not  be  a  recital  of  evidence  or  of  circum- 
stances which  may  tend  to  prove  the 
ultimate  facts  or  from  which  they  may 
be  inferred."  Wilson  Z'.  Merchants'  Loan 
etc.,  Co..  183  U.  S.  121,  128,  46  L.  Ed.  113. 

"In  Glenn  z'.  Fant,  134  U.  S.  398,  33  L. 
Ed.  969,  there  was  a  stipulation  that  the 
case  should  be  heard  upon  an  agreed  state- 
ment of  facts  annexed,  with  leave  to  refer 
to  exhibits  filed  therewith.  It  was  held 
that  the  stipulation  could  not  be  re- 
garded as  taking  the  place  of  a  special 
verdict  or  of  a  special  finding  of  facts, 
and  that  the  court  had  no  jurisdiction  to 
determine  the  question  of  law  arising 
thereon."  Wilson  v.  Merchants'  Loan, 
etc.,  Co.,  183  U.  S.  121,  128,  46  L.  Ed.  113. 

"Lehnen  z:  Dickson,  148  U.  S.  71,  77, 
37  L-  Ed.  373,  decided  that  any  mere  re- 
cital of  the  testimony,  whether  in  the 
opinion  of  the  court  or  in  a  bill  of  ex- 
ceptions, could  not  be  deemed  a  special 
finding  of  facts  within  the  scope  of  the 
statute;  and  if  there  were  a  general  find- 
ing and  no  agreed  statement  of  facts,  the 
court  must  accept  that  finding  as  con- 
clusive and  limit  its  inquiry  to  the  suffi- 
ciency of  the  complaint  and  to  the  rul- 
ings, if  any  be  preserved  on  questions  of 
law  arising  during  the  trial."  Wilson  v. 
Merchants'  Loan,  etc.,   Co.,   183  U.  S.   121, 


128,  46  L.   Ed.   113. 

"In  St.  Louis  7>.  Western  Union  Tel. 
Co.,  166  U.  S.  388,  41  L.  Ed.  1044,  it  was 
held,  that  the  special  finding  of  facts  re- 
ferred to  in  the  acts  allowing  parties  to 
submit  issues  of  fact  in  civil  cases  to  be 
tried  and  determined  by  the  court  is  not 
a  mere  report  of  the  evidence,  but  a  find- 
ing of  those  ultimate  facts,  upon  which 
the  law  must  determine  the  rights  of  the 
parties,  and  if  the  finding  of  the  facts  be 
general,  only  such  rulings  made  in  the 
progress  of  the  trial  can  be  reviewed  as 
are  presented  by  a  bill  of  exceptions,  and 
in  such  case  the  bill  cannot  be  used  to 
bring  up  the  whole  testimony  for  review 
any  more  than  in  a  trial  by  jury."  Wilson 
V.  Merchants'  Loan,  etc.,  Co.,  183  U.  S. 
121.   129,   46   L.   Ed.   113. 

51.  Wilson  7'.  Merchants'  Loan,  etc.,  Co., 
183  U.  S.  121,  128,  46  L-   Ed.  113. 

52.  Wilson  z'.  Merchants'  Loan,  etc.,  Co., 
183   U.    S.    121.    129.    46    L.    Ed.    113. 

53.  Assignment  of  error  on  general 
finding. — Meath  7'.  Board  of  Commission- 
ers. 109  U.  S.  268,  27  L.  Ed.  630,  citing 
Tioga  R.  7'.  Blossburg.  etc.,  R.,  20  Wall. 
137,  22  L.  Ed.  331. 

54.  Nature  of  special  finding. — Fort 
Scott  7'.  Hickman.  112  U.  S.  150,  28  L.  Ed. 
636,  citing  Xorris  v.  Jackson,  9  Wall.  125, 
19  L.  Ed.  608,  Copelin  v.  Insurance  Co., 
9  Wall.  461,  19  L.  Ed.  739;  Insurance  Co. 
7'.  Folsom,  18  Wall.  237,  21  L.  Ed.  827; 
Retzer  7'.  Wood,  109  U.  S.  185,  27  L.  Ed. 
900. 

55.  Duty  to  make  special  finding. — ^Un- 
der the  act  of  March  3d,  1865   the  circuit 


AFFBAL  AND  HKKUK.  1U41 

cuit  court  are  sufficient  to  support  the  judgment ;  but  it  can  take  no  notice  of  any 
facts  not  thus  special!}-  found,  because  they  were  not  found  by  the  court  below, 
and  this  court,  as  an  appellate  court,  cannot  try  an  issue  of  fact.-^® 

ccc.  Form  and  Sufficiency. — In  General. — The  result  of  the  decisions  under 
the  statutes  providing  for  a  waiver  of  trial  by  jury,  and  the  proceedings  on  a 
trial  by  the  court.  Rev.  Stat.,  §  649,  and  Rev.  Stat.,  §  700,  is  that  when  there  are 
special  findings  they  must  be  findings  of  what  are  termed  ultimate  facts,  and  not 
the  evidence  from  which  such  facts  might  be  but  are  not  found.  If,  therefore, 
an  agreed  statement  contains  certain  facts  of  that  nature,  and  in  addition  thereto 
and  as  part  of  such  statement  there  are  other  facts  of  an  evidential  character 
only,  from  which  a  material  ultimate  fact  might  be  inferred,  but  which  is  not 
agreed  upon  or  found,  we  cannot  find  it,  and  we  cannot  decide  the  case  on  the 
ultimate  facts  agreed  upon  without  reference  to  such  other  facts.  In  such  case 
we  must  be  limited  to  the  general  finding  by  the  court.  We  are  so  limited  be- 
cause the  agreed  statement  is  not  a  compliance  with  the  statute.^"  Findings 
may  be  general  or  special;  but,  if  special,  the  finding  must  not  be  a  mere  report 
of  the  evidence,  leaving  the  conclusions  of  fact  to  be  adjudged  by  the  appellate 
tribunal,  as  that  course  is  forbidden  by  the  repeated  decisions  of  this  court.  In- 
stead of  that,  the  requirement  is  that  the  circuit  court  shall  state  the  ultimate 
facts,  or  the  propositions  of  fact,  which  the  evidence  establishes,  and  not  the  evi- 
dence from  which  those  ultimate  facts,  or  propositions  of  fact,  are  derived.  Such 
findings  are  intended  by  congress  as  a  proper  substitute  for  the  special  verdict  of 
a  jury ;  and  it  is  settled  law,  that  it  is  of  the  very  essence  of  a  special  verdict 
that  the  jury  shall  find  the  facts  on  which  the  court  is  to  pronounce  the  judg- 
ment, according  to  law  ;  that,  in  order  to  enable  the  appellate  court  to  act  upon  a 
special  verdict,  the  jury  must  find  the  facts,  and  not  merely  state  the  evidence 
of  facts;  and  the  rule  is.  that  when  the  jury  states  the  evidence  merely,  without 
stating  the  conclusions  of  the  jury,  a  court  of  error  cannot  act  upon  matters  so 
found.^^  Doubtless,  also,  cases  may  arise  in  which,  without  a  formal  special 
finding  of  facts,  there  is  presented  a  ruling  of  the  court,  which  is  distinctly  a  rul- 
ing upon  a  matter  of  law,  and  in  no  manner  a  determination  of  facts,  or  of  in- 
ference from  fac+s  in  which  this  court  ought  to  and  will  review  the  ruli'ngs.^** 

Must  State  Ultimate  Facts. — Where  the  jury  is  waived  in  writing,  and  the 
case  submitted  to  the  decision  of  the  circuit  court,  the  finding  of  facts  by  the 
circuit  court  must  state  the  ultimate  facts  of  the  case  presenting  questions  of 
law  only,  and  not  be  a  recital  of  evidence  or  of  circumstances,  which  may  tend 
to  prove  the  ultimate  facts,  or  from  which  they  may  be  inferred. *^*^ 

court    is    not    required    to    make    a    special  How.  427,   4.T2,    15    L.    Ed.    978;    Tyng    v. 

finding,  "as  the  act  provides  that  the  find-  Grinnell,  92  U.  S.  467,  472,  23  L.   Ed.  733. 

ing  of  the  circuit  court  may  be  either  gen-  59^    Lehnen  v.  Dickson,  148  U.  S.  71,  73, 

era!   or  special,  and  that  it  shall   ha\'e  the  37    l     Ed.    373,    followed    in    St     Louis    v. 

same  eflfect  as  the  verdict  of  a  jury.     Cope-  Western  Union  Tel.  Co.,   148  U.   S.  92,  37 

lin   7'.    Insurance    Co.,   9    Wall.    461,    19    L.  l    Ed.  380. 

Ed.     739;     Folsom     v.     Insurance     Co.,     9  ,,r,                            ■      ^  •   j    l       .l 

Blatchford.    201."      Insurance    Co.    v.    Fol-  Where    a    case    is    tned    by    the    circui 

som,   18   Wall.   237.  249,   21   L.   Ed.   827.  ^°"''t-  ?"  the  written  waiver  of  a  jury,  and 

56.  Tvre.  etc..  Works  Co.  7'.  Spalding,  |^^;.^  '^  a  bill  of  exceptions  which  sets 
116  U.  S.  .541,  546,  29  L.   Ed.   720.  ^"""tV^    ''''^^  '^^,"'i'  Y-^""^  proved,  that  is 

57.  Form  and  sufficiency.- Wilson  v.  t- '"^^'!"*  'P^^'^'  findmg  ot  tacts  to  au- 
Merchants'  Loan,  etc.,  Co..  183  U.  S.  121.  thorize  this  court,  under  §  700  ot  the  Re- 
126.  46  L.  Ed.  113:  Raimond  v.  Terre-  V'^^^  Statutes,  to  determine  whether  the 
bonne  Parish,  132  U.  S.  192.  32  L.  Ed.  ,309;  ^^V'  ^'"?  S"^*^'^"*  ^^  support  the 
Glenn  v.  Fant,  134  U.  S.  398.  33  L.  Ed.  969;  J"Jv^'?.f"T  ^f^..^''  Cleburne,  131  U.  S. 
Lehnen  v.  Dickson,  148  U.  S.  71,  77.  37  L.  ^^-^  ^~   ^-    ^^-   ^*^- 

Ed.  373;  St.  Louis  v.  Western  Union  Tel.  60-     Raimond   v.    Terrebone    Parish,    132 

Co.,  166  U.  S.  388,  41  L.  Ed.  1044;   United  I^-    S.    192.    32    L.    Ed.    309,    cifng    Burr   v. 

States   Trust   Co.   v.   New   Mexico,   183   U.  Des  Moines,  etc.,  Co.,  1  Wall.  99,  17  L.  Ed. 

S.  535,  540,  46  L.  Ed.  315.  5'  '  ^   Norris  v.  Jackson.  9  Wall.   125.   19  L. 

58.  Norris  v.  Jackson,  9  Wall.  125,  127,  r**!-  608:  Martinton  v.  Fairbanks,  112  U.  S. 
19   L.   Ed.   608;   Suydam  v.  Williamson,  20  670,  28   L.   Ed.   862;   Wilson  v.  Merchants' 

1  U  S  Enc-66 


1042 


APPEAL  AXD  ERROR. 


Mere  Report  of  Evidence. — As  to  what  is  necessary  in  special  findings  or  in 
an  agreed  statement  of  facts,  the  authorities  are  decisive.  It  is  held,  that  upon  a 
trial  by  the  court,  if  special  findings  are  made  they  must  be  not  a  mere  re- 
port of  the  evidence,  but  a  finding  of  those  ultimate  facts  on  which  the  law  must 
determine  the  rights  of  the  parties,  and  if  the  finding  of  facts  be  general,  only 
such  rulings  of  the  court,  in  the  progress  of  the  trial,  can  be  reviewed  as  are  pre- 
sented by  a  bill  of  exceptions  and  in  such  case  the  bill  cannot  be  used  to  bring 
up  the  whole  testimony  for  review  any  more  than  in  a  trial  by  jury."i 

Opinion  of  the  Court. — It  has  been  repeatedly  decided,  by  this  court,  that 
the  opinion  of  the  court  below  does  not  constitute  the  special  finding  contemplated 
by  the  act  of  congress.''-     Where  the  facts  set  forth  in  the  special  findings  are 


Loan,  etc.,  Co.,  183  U.  S.  121,  126,  46  L. 
Ed.  113. 

By  the  settled  construction  of  the  acts 
of  congress  defining  the  appellate  juris- 
diction of  this  court,  either  a  statement  of 
facts  by  the  parties,  or  a  finding  of  facts 
by  the  circuit  court,  is  strictly  analogous 
to  a  special  verdict,  and  must  state  the 
ultimate  facts  of  the  case,  presenting  ques- 
tions of  law  only,  and  not  be  a  recital  of 
evidence  or  of  circumstances  which  may 
tend  to  prove  the  ultimate  facts,  or  from 
which  they  may  be  inferred.  Burr  z\  Des 
Moines,  etc.,  Co.,  1  Wall.  99,  17  L.  Ed.  561 ; 
Norris  7\  Jackson,  9  Wall.  125,  16  L.  Ed. 
608;  Martinton  v.  Fairbanks,  112  U.  S. 
670,  28  L.  Ed.  862:  Raimond  v.  Terrebonne 
Parish,  132  U.  S.  192,  194,  32  L.  Ed.  309; 
Davenport  :■.  Paris,  136  U.  S.  580.  33  L. 
Ed.  548:  Miller  v.  Life  Ins.  Co..  12  W^ill. 
285,   20   L.    Ed.   398. 

Where  the  circuit  court,  under  a  writ- 
ten stipulation  of  the  parties,  tries  the  is- 
sue, its  special  finding  should  set  forth 
the  ultimate  facts,  and  not  the  evidence 
establishing  them.  Where,  therefore,  both 
parties  claimed  under  A.,  and  the  court 
found  his  ownership,  the  cliain  of  convey- 
ances by  which  he  acquired  it  need  not  be 
set  forth.  "Whether  a  special  finding  of 
facts  by  the  court  must  have  all  the  req- 
uisites of  a  special  verdict,  it  is  not  nec- 
essary now  to  assert  or  deny,  for  all  that 
is  essential  to  such  a  verdict  is  an  ascer- 
tainment of  the  ultimate  facts."  Mining 
Co.  V.  Taylor.  100  U.  S.  37,  42,  25  L.  Ed. 
541. 

61.  Mere  report  of  evidence. — Norris 
r.  Jackson.  9  Wall.  125,  19  L.  Ed.  608; 
Wilson  T'.  Merchants'  Loan,  etc.,  Co.,  183 
U.  S.  121.  127,  46  L.  Ed.  113;  Raimond  v. 
Terrebonne  Parish,  132  U.  S.  192.  32  L. 
Ed.  309:  Glenn  r.  Fant.  134  U.  S.  398,  33 
L.  Ed.  969:  Lehnen  i'.  Dickson,  148  U.  S. 
71,  77.  37  L.  Ed.  373;  St.  Louis  v.  Western 
Union  Telegraph  Co.,.  166  U.  S.  388,  41 
L.  Ed.  1044;  United  States  Trust  Co.  r. 
New  Mexico,  183  U.  S.  535,  540.  46  L.  Ed. 
315;  Grayson  v.  Lynch,  163  U.  S.  468.  472, 
41  L.  Ed.  230. 

The  special  finding  Inas  often  been  con- 
sidered and  described  by  this  court.  It  is 
not  a  mere  rcDurt  of  the  evidence,  but  a 
statement  of  the  ultimate  facts  on  which 
the  law  of  the  case  must  determine  the 
rights  of  the  parties;  a  finding  of  the  prop- 


ositions of  fact  which  the  evidence  es- 
tablishes, and  not  the  evidence  on  whch 
those  ultimate  facts  are  supposed  to  rest. 
Burr  V.  Des  Moines,  etc.,  Co.,  1  Wall.  99,  17 
L.  Ed.  561;  Graham  v.  Bayne,  18  How. 
How.  60,  62,  15  L.  Ed.  265;  Norris  v.  Jack- 
son, 9  Wall.   125,  127,  19  L.  Ed.  608. 

A  mere  report  of  the  evidence  is  not 
such  a  special  finding  or  authorized  state- 
ment of  the  case  as  will  allow  this  court 
to  pass  upon  the  judgment  given.  Crews 
V.    Brewer,   19   Wall.   70.  22   L.   Ed.  63. 

Questions  of  fact  will  not  be  reviewed 
by  this  court  in  common-law  actions,  nor 
can  the  questions  of  law  presented  in  such 
case  be  re-examined  here  unless  the  mat- 
ters of  fact  out  of  which  thty  arise  are,  in 
some  authorized  form,  given  ir  the  record;  to 
which  it  may  be  added,  as  applicable  to 
cases  tried  by  the  court,  that  a  mere  re- 
port of  the  evidence  is  not  sufficient,  as 
it  belongs  to  the  circuit  court  to  find  the 
facts,  and  in-order  to  do  that  the  circuit 
court  must  weigh  the  evidence  and  draw 
the  inferences  of  fact  from  th''  whole  evi- 
dence given  in  the  case.  Tancred  7'. 
Christy,  12  Meeson  &  Welsby  323. 
Crews  V.  Brewer,  19  Wall.  70.  73,  23  L. 
Ed.   63. 

e?.  Insurance  Co.  v.  Tweed,  7  Wall.  44. 
19  L.  Ed.  65;  Dickinson  zj.  Planters'  Bank, 
16   Wall.    2,50,   21    L.    Ed.   278. 

Under  the  act  of  March  3d.  1865  (13 
Stat,  at  Large  501),  which  provides  by  its 
fourth  section  a  mode  by  which  parties 
who  submit  cases  to  the  court,  without  the 
intervention  of  a  jury,  inay  have  the  rul- 
ings of  the  court  reviewed  here,  and  also 
what  may  be  reviewed  in  such  cases,  where 
the  counsel  for  both  parties  in  this  court 
had  agreed  to  certain  parts  of  the  opinion 
of  the  court  beloAv  as  containing  the  ma- 
terial facts  of  the  case,  and  to  treat  them 
here  as  facts  found  by  that  court,  this 
court  acted  upon  the  agreement  here  as 
if  it  had  been  made  in  the  court  below. 
"We  are  asked  in  the  present  case  to  ac- 
cept the  opinion  of  the  court  below,  as  a 
sufficient  findins:  of  the  facts  within  the 
statute,  and  within  the  general  rule  on  this 
subject.  But  with  no  aid  outside  the  rec- 
ord we  cannot  do  this.  The  opinion  only 
recites  some  parts  of  the  testimony  by 
way  of  comment  in  support  of  the  judg- 
ment, and  is  liable  to  the  objection  often 
referred  to  in  this  court,  that  it  states  the 


APPEAL  AND  ERROR. 


1043 


not  sufficient  to  support  the  judgment,  the  opinion  cannot  be  resorted  to  for  the 
purpose  of  helping  the  findings  out.^^ 

Conditional  Conclusion. — Special  findings,  under  the  act  of  congress,  never 
have  a  conditional  conclusion,  and  yet  the  review  extends  by  the  express  words 
of  the  act  to  the  determination  of  the  sufficiency  of  the  facts  found  to  support 
the    judgment/^* 

General  Findings — Agreed  Statement  of  Facts. — It  is  also  well  settled 
that  though  the  finding  is  general,  yet  if  there  be  an  agreed  statement  of  facts  sub- 
mitted to  the  trial  court  and  upon  which  its  judgment  is  founded,  such  agreed 
statement  will  be  taken  as  an  equivalent  of  a  special  finding  of  facts,  thus  enabling 
this  court  to  review  the  sufficiency  of  the  facts  found  to  support  the  judgment.®^ 
But  to  be  such  equivalent,  it  must  conform  to  the  rules  just  stated. '^'^' 

ddd.  Scope  of  Reincw. — When  the  finding  is  special,  the  review  by  this  court 
may  extend  to  the  sufficiency  of  the  facts  found,  to  support  the  judgment.^^    And 


evidence  and  not  the  facts  as  found  from 
that  evidence.  Besides,  it  does  not  pro- 
fess to  be  a  statement  of  facts,  but  is 
very  correctly  called  in  the  transcript, 
'reasons  for  judgment.'  But  the  counsel 
for  both  parties  in  this  court  have  agreed 
to  certain  parts  of  that  opinion  as  con- 
taining the  material  facts  cf  the  case, 
and  to  treat  them  here  as  facts  found  by 
the  court;  and  inasmuch  as  thej^  could 
havt  made  such  an  agreement  in  the  court 
belovf,  we  have  concluded  to  act  upon  it 
here  as  if  it  had  been  so  made."  Insur- 
ance Co.  V.  Tweed,  7  Wall,  44,  19  L. 
Ed.  65. 

63.  Dickinson  v.  Planters'  Bank,  16 
Wall.  250,  21  L.  Ed.  278;  Saltonstall  v. 
Birtwell,  150  U.  S.  417,  419,  37  L.  Ed. 
1128;  De  La  Rama  v.  De  La  Rama,  201 
U.   S.    303,    50    L.    Ed.    765. 

64.  Insurance  Co.  v.  Piaggio,  16  Wall. 
378,   21   L.    Ed.    3.58. 

65.  Supervisors  v.  Kennicott,  103  U.  S. 
554.  26L.  Ed.  486;  Lehnen  ?;.  Dickson.  148 
U.  S.  71,  73,  37  L.  Ed.  373,  followed  in 
St.  Louis  V.  Western  Union  Tel.  Co.,  148 
U.  S.  92.  37  L.  Ed.  380;  Wilson  v.  Mer- 
chants' Loan,  etc.,  183  U.  S.  121.  127,  46 
L.  Ed.  113.  See  ante,  "Review  of  Gen- 
eral Findings," 

Thus,  in  Insurance  Co.  v.  Tweed,  7 
Wall.  44,  19  L.  Ed.  65,  where,  on  the  ar- 
gument in  this  court,  counsel  agreed  that 
certain  recitals  of  fact  made  by  the  trial 
court  in  its  opinion  or  "reasons  for  judg- 
ment," as  it  was  called,  were,  the  facts 
in  the  case,  and  might  .  be  accepted  as 
facts  found  by  the  court,  it  was  held,  that, 
as  they  could  have  made  such  agreement 
in  the  court  below,  it  would  be  accepted 
and  acted  upon  here,  and  the  facts  thus 
assented  to  would  he  regarded  as  the 
facts  found  or  agreed  to  upon  which  the 
judgment  was  based;  and  upon  an  exami- 
nation it  was  further  held,  that  they  did 
not  suooort  the  judgment,  and  it  was  re- 
versed. Lehnen  t'.  Dickson,  14  8  U.  S. 
71,  73,  37  L.  Ed.  373,  followed  in  St.  Louis 
V.  Western  Union  Tel.  Co.,  148  U.  S.  92, 
?,1  L.    Ed.   380. 

But  still,  as  was  ruled  in  Flanders  v. 
Tweed.    9    Wall.    425,    19    L.    Ed.    678,    this 


court  is  disposed  to  hold  parties  to  a 
reasonably  strict  conformity  to  the  pro- 
visions of  the  statute  prescribing  the  pro- 
ceedings in  the  case  of  a  trial  by  the 
court  without  a  jury;  and  no  mere  recital 
of  the  testimony,  whether  in  the  opinion 
of  the  court  or  in  a  bill  of  exceptions,  can 
be  deemed  a  special  finding  of  facts  within 
its  scope.  Norris  v.  Jackson,  9  Wall. 
125,  19  L.  Ed.  608;  Lehnen  v.  Dickson, 
148  U.  S.  71,  74,  37  L.  Ed.  373,  followed  ki 
St.  Louis  V.  Western  Union  Tel.  Co.,  148 
U.  S.  92,  37  L  Ed.  380. 

66.  See  Wilson  v.  Merchants'  Loan,  etc., 
Co.,   183  U.   S.   121.   126,  46   L.   Ed.   113. 

67.  Scope  of  review. — Act  of  March  3, 
1865,  §  4,  13  Stat.  501.  Morris  v.  Shriner, 
131  U.  S.  appx.  xci,  19  L.  Ed.  303;  Miller 
V.  Insurance  Co..  12  Wall.  285,  20  L.  Ed. 
398;  Tyng  v.  Grinnell,  92  U.  S.  467,  23  L- 
Fd.  733;  Fort  Worth  City  Co.  v.  Smith 
Bridge  Co.,  151  U.  S.  294,  38  L.  Ed.  167; 
Scholey  v.  Rew,  23  Walk  331,  345,  23  L. 
Ed.  99;  Hinckley  v.  Pittsburg  Steel  Co., 
121   U.   S.   264.   272,  30  L.   Ed.   967. 

This  court  has  authority,  under  §  700  of 
the  Revised  Statutes,  to  determine,  as  in 
case  of  a  special  verdict,  whether  the 
facts  set  forth  in  such  statement  are 
sufficient  in  law  to  support  the  judgment, 
although  the  finding  of  the  circuit  court 
on  them  be  in  form  general.  Supervisors 
V.  Kennicott,  103  U.  S.  554,  26  L.  Ed. 
486. 

When,  under  the  act  of  March  3d,  1865, 
authorizing  the  parties  to  submit  their 
case  to  the  court  for  trial  without  the  in- 
tervention of  a  jury,  there  have  been  no 
exceptions  to  rulings  in  the  course  of  the 
trial  and  the  court  has  found  the  facts 
specially  and  given  judgment  on  them,  the 
only  question  which  this  court  can  pass 
upon,  is  the  sufficiency  of  the  facts  found 
to  support  the  judgment.  Any  proposi- 
tions of  law  stated  by  the  court  as  hav- 
ing been  held  by  it  in  entering  its  judgment, 
are  not  open  to  exception.  Jennisons  v. 
Leonard,  21  Wall.  302,  22  L.  Ed.  539,  cit- 
ing Norris  V.  Jackson,  9  Wall.  125,  19  L- 
Ed.  608. 

Although  under  a  stipulation  in  writ- 
ing,  made  by  the  parties   to  the  suit,  and 


1044 


APPEAL  AND  ERROR. 


since,  where  a  jury  has  been  waived  and  the  case  tried  by  the  court  under  the 
statute,  this  court  can  only  inquire  whether  the  facts  found  in  the  special  findings, 
considered  in  connection  with  the  pleadings,  are  sufficient  to  sustain  the  judgment, 
and  whether  any  error  was  committed  upon  ruling  on  matter  of  law  properly 
preserved  by  the  bill  of  exceptions,  a  stipulation  of  counsel  as  to  the  evidence 
bearing  on  the  findings  of  fact  by  the  court,  cannot  be  noticed  here.^^  But  where 
the  case  is  tried  by  the  circuit  court  without  a  jury  and  the  finding  is  general,  and 
the  record  contains  a  bill  of  exceptions,  "but  no  exceptions  to  the  rulings  of  the 
court  in  the  progress  of  the  trial  of  the  cause  were  thereby  duly  presented,  and 
although  after  reciting  the  evidence  it  is  therein  stated  that  'the  court  thereafter 
and  during  the  said  term  made  the  following  findir-^s  of  fact  and  judgment 
thereon,'  which  is  followed  by  an  opinion  of  the  court  assigning  reasons  for  its 
conclusions,  this  cannot  be  treated  as  a  special  finding  enabling  us  to  determine 
whether  the  facts  found  support  the  judgment,  nor  can  the  general  finding  be 
disregarded."^'^ 

jj.  Rulings  of  Court  in  Progress  of  Trial — aaa.  In  General. — Whether  the 
finding  is  geiieral  or  special,  the  rulings  of  the  court  during  the  progress  of  the 
trial  if  duly  excepted  to  at  the  tinie  and  presented  by  a  bill  of  exceptions,  may  be 
reviewed  in  this  court."*^     Rut  where  a  trial  bv    the    court    below    was    not  had 


filed  with  the  clerk  of  the  court,  in  pur- 
suance of  the  act  of  March  3d,  1865.  which 
gives  to  the  finding  of  the  court  ('which 
may  be  either  general  or  special)  the  same 
effect  as  the  verdict  of  a  jury,  this  court 
can,  where  the  finding  is  special,  consider 
the  sufficiency  of  the  facts  found  to  sup- 
port the  judgment,  yet.  returning  in  the 
record  all  the  evidence  in  the  case,  where 
the  court,  in  an  action  of  assumpsit  on 
a  check  or  draft,  does  not  find  what  the 
evidence  proves,  nor  any  ultimate  fact  ex- 
cept one  stated  in  the  judgment,  to  wit: 
"That  the  defendant  did  not  assume  and 
promise  as  the  plaintiff  in  declaring  has 
alleged" — does  not  give  this  c  nirt  juris- 
diction to  consider  such  suffic  ncy.  The 
fact  that  the  court  below,  in  r  n  opinion 
which  accompanied  the  judgment,  has 
stated  some  of  the  facts  of  the  case  does 
not  alter  things;  the  facts  stati^d  not  be- 
ing stated  as  a  special  finding,  but  rather 
advanced  to  show  why  the  jud're  came  to 
the  conclusion  that  the  alleged  promise 
had  not  been  proved.  Dickinson  t'.  Plant- 
ers' Bank,  16  Wall.  250,  21  L.  Ed.  278. 

68.  Fort  Worth  City  Co.  v.  Smith  Bridge 
-Co.,    151    U.    S.   294,    38    L.    Ed.    167.   citing 

lyre  &  Spring  Works  v.  Spalding,  116  U. 
S.   541,   29   L.    Ed.   720. 

69.  Dickinson  v.  Planters'  Bank,  16 
Wall.  250,  21  L.  Ed.  278;  Insurance  Co. 
V.  Folsom,  18  Wall.  237,  21  L.  Ed.  827; 
Norris  v  Jackson,  9  Wall.  125,  19  L.  Ed. 
608:  Flanders  :•.  Tweed,  9  Wall.  425,  19 
L.  Ed.  678 ;  Insurance  Co.  v.  Tweed,  7  Wall. 
44,  19  L.  Ed.  65 ;  Miller  v.  Insurance  Co.,  12 
Wall.  285,  20  L.  Ed.  398;  Insurance  Co. 
V.  Sea,  21  Wall.  158,  22  L.  Ed.  511;  Mar- 
tinton  V.  Fairbanks.  112  U.  S.  670.  28  L. 
Ed.  862;  Raimond  v.  Terrebone  Parish, 
132  U.  S.  192,  32  L.  Ed.  309:  Glenn  v. 
Fant,  134  U.  S.  398,  33  L-  Ed.  969;  Lloyd 
V.  McWilliams,  137  U.  S.  576,  34  L.  Ed. 
788;    British     Queen     Min.     Co.    v.    Baker 


Silver  Min.  Co.,  139  U.  S.  222,  35  L.  Ed. 
147. 

70.  Rulings  of  court  in  progress  of  trial 
in  general. — Miller  r.  Insurance  Co.,  12 
Wall.  285.  295,  20  L.  Ed.  398;  Tvng  v. 
Grinnell,  92  U.  S.  467.  469.  23  L.  Ed.  733; 
Norris  v.  Jackson,  9  Wall.  125,  19  L.  Ed. 
608:  Town  of  Ohio  v.  Marcy,  18  Wall.  552, 
21  L.  Ed.  813;  Boardman  v.  Toffey,  117  U. 
S.  271,  29  L.  Ed.  898;  Insurance  Co.  v. 
Folsom,  18  Wall.  237.  21  L.  Ed.  827;  13 
Stat.  501;  Rev.  Stat.  §§  649,  700;  Bond 
V.  Dustin,  112  U.  S.  604,  605.  28  L,.  Ed. 
835;  Dickinson  v.  Planters'  Bank,  16  Wall. 
250,  21  L.  Ed.  278;  Fort  Worth  City  Co. 
V.  Smith  Bridge  Co.,  151  U.  S.  294,  300, 
38  L.  Ed.  167:  Coddinsrton  v.  Richardson, 
10  Wall.  516,  19  L.  Ed.  981;  Cooper  v. 
Omohundro.  19  Wall.  65,  22  L.  Ed.  47; 
Martinton  v.  Fairbanks,  112  U.  S.  670,  673, 
28  L.  Ed.  862. 

Exceptions  may  be  taken  to  the  rul- 
ings of  the  court  made  in  the  progress 
of  the  trial,  and,  if  dulj'  taken  at  the 
time,  the  rulings  ma}-  be  reviewed  here, 
provided  the  questions  are  properly  pre- 
sented by  a  bill  of  excentions.  Where  a 
jury  is  waived,  and  the  issues  of  fact  are 
submitted  to  the  court,  the  finding  of  the 
court  may  be  either  general  or  special, 
as  in  cases  where  the  issues  of  fact  are 
tried  by  a  jurj^;  but,  where  the  finding  is 
general,  the  parties  are  concluded  by  the 
determination  of  the  court,  subject  to  the 
right  to  bring  error  to  review  any  rulings 
of  the  court  to  which  due  exception  was 
taken  during  the  trial.  Tyng  v.  Grinnell, 
92  U.   S.   467.  469.  23  L.   Ed.   733. 

Refusal  to  admit  evidence. — Where 
the  trial  is  by  the  court  without  a  jury 
and  there  is  no  special  findings  of  facts 
the  only  questions  presented  by  the  bill 
of  exceptions  which  we  can  con-^ider  are 
those  which  relate  to  the  refusal  of  the 
court    to    allow    certain    interrogatories    to 


i 


APPEAL  AND  ERROR. 


1045 


under  the  act  of  March  3,  1865  (13  Stat.  501),  the  rulings  excepted  to  in  the 
progress   of   such   trial   cannot   be   reviewed   here.'^ 

bbb.  Meaning  of  Phrase  "Rulings  of  the  Court  in  the  Progress  of  the  Trial." 
— The  phrase  "rulings  of  the  court  in  the  progress  of  the  trial"  does  not  include 
the  general  finding  of  the  circuit  court,  nor  the  conclusions  of  the  circuit  court 
embodied  in  such  general  finding."-^ 

ccc.  Remedies. — Exceptions  may  be  taken  to  the  rulings  of  the  court  made  in 
the  progress  of  the  cause,  and  when  the  rulings  are  duly  presented  by  a  bill  of 
exceptions,  thej  may  be  re-examined  in  this  court  by  writ  of  error,  if  it  is  an 
action  at  law,  or  by  appeal  if  it  is  a  suit  in  equity."-* 

kk.  Reviezv  of  Findings  upon  Questions  of  Faets. — In  General. — The  next 
thing  to  be  observed  is,  that  whether  the  finding  be  general  or  special,  it  shall  have 
the  same  effect  as  the  verdict  of  a  jury;  that  is  to  say,  it  is  conclusive  as  to  the 
tacts  so  found.  In  the  case  of  a  general  verdict,  which  includes  or  may  include. 
as  it  generally  does,  mixed  questions  of  law  and  fact,  it  concludes  both,  except 
so  far  as  they  may  be  saved  by  some  exception  which  the  party  has  taken  to  the 
ruling  of  the  court  on  the  law.'^     When  a  case  is  tried  by  the  court  without  a 


be  put  to  witnesses  on  the  stand.  The 
general  find'ng  prevents  all  inquiry  b}-^ 
us  into  the  special  facts  and  conclusions 
of  law  on  which  that  finding  rests.  Nor- 
ris  V.  Jackson,  9  Wall.  12.5,  19  L.  Ed.  608; 
Cooper  V.  Omohnndro,  19  Wall.  65.69,22 
L.  Ed.  47;  Martinton  v.  Fairbanks,  112 
U.  S.  670,  673,  28  L.  Ed.  862;  Boardman 
r.  Toffey.  117  U.  S.  271,  272,  29  L.  Ed. 
898. 

72.  Oilman  r.  Illinois,  etc..  Tel.  Co.,  91 
U.  S.  603,  23  L.  Ed.  405,  citing  Campbell 
V.  Boyreau.  21  How.  223.  224.  16  L.  Ed. 
96;  Guild  r.  Frontin,  98  How.  135,  15  L. 
Ed.  290;  Kearney  v.  Case.  12  Wall.  275, 
20  L.  Ed.  395;  Dickinson  v.  Planters' 
Bank,  16  Wall.   250.  21  L.   Ed.  278. 

73.  Meaning  of  phrase  "rulings  of  the 
court  in  the  progress  of  the  trial." — Mar- 
tinton r.  Fairbnnks.  112  U.  S.  670,  673,  28 
L.  Ed.  8C2.  citing  Cooper  i'.  Omohundro, 
19  Wall.  65.  22  L-  Ed.  47;  Boardman  v. 
Toffey,  117  U.  S.  271,  29  L.   Ed.  898. 

"The  case  of  Insurance  Co.  v.  Fol- 
som,  18  Wall.  237,  (21  L.  Ed.  827), 
and  the  numerous  cases  there  cited,  p. 
244,  affirmed,  and  the  doctrine  again  de- 
clared, that  where  a  jury  is  waived,  and 
the  issues  of  fact  submitted  to  the  cir- 
cuit court  under  the  act  of  March  3d,  1865 
(quoted  in  the  report  of  the  case  cited, 
p.  238),  this  court  will  not  review  the 
finding  of  the  court  where  it  is  general 
and  unaccompanied  by  anj-  authorized 
statement  of  facts;  and  that  in  the  case 
of  such  general  finding,  'nothing  is  open 
to  review  by  the  losing  party  under  a 
w^rit  of  error,  except  the  rulings  of  the 
circuit  court  in  the  progress  of  the  trial, 
and  that  the  phrase,  'rulings  of  the  court 
in  the  progress  of  the  trial,'  does  not  in- 
clude the  general  finding  of  the  circuit 
court  nor  the  conclusions  of  the  circuit 
court  embodied  in  such  general  finding." 
Cooper  z:  Omohundro.  19  Wall.  65,  22  L. 
Ed.  47.  reaffirmed  in  Crews  v.  Brewer,  19 
Wall.  70,  22  L.  Ed.  63. 

It   seems   clear  to   us   that   the   language 


"in  the  progress  of  the  trial,"'  emphasized 
bv  Mr.  Justice  Miller  in  Xorris  z'.  Jack- 
son, 9  Wall.  125,  19  L.  Ed.  608,  must  have 
application  to  the  wrongful  admission  or 
rejection  of  evidence;  that  is,  in  the  pro- 
gress of  the  trial  that  would  have  had 
place  before  the  jury  had  not  the  parties 
waived  a  jury.  Questions  arising  on  the 
settling  of  the  pleadings  are  subject  to 
review,  but  not  by  reason  of  the  terms  of 
§  700,  because  that  section  only  saves  for 
review  such  rulings  "as  are  duly  pre- 
sented by  a  bill  of  exceptions."  Rulings 
on  the  pleadings  necessarily  appear  on 
the  record  without  a  bill  of  exceptions. 
If  the  party  ruled  against  chooses  to  ex- 
cept thereto,  he  should  do  so  at  the  time 
the  ruling  is  made,  and  his  exception 
should  be  noted  in  the  minute  that  re- 
cords the  ruling.  The  words  "in  the  pro- 
gress of  the  trial"  are  clearly  shown  by 
the  last  clause  of  the  section  to  have  no 
relation  to  the  findings  of  the  court,  for 
which  express  and  exclusive  provision  is 
made  by  the  words:  "And,  when  the  find- 
ing is  special,  the  review  may  extend  to 
the  determination  of  the  sufficiency  of  the 
facts  found  to  support  the  judgment." 
See,  also.  Miller  v.  Insurance  Cp.,  12  Wall. 
285,  20  L.  Ed.  398;  Dirst  v.  Morris.  14 
Wall.  484,  20  L.  Ed.  722;  Insurance  Co. 
Z'.  Folsom,  18  Wall.  237,  21  L.  Ed.  824; 
Cooper  V.  Omohundro,  19  Wall.  65,  22  L. 
Ed.  47. 

Motions  in  arrest  of  judgment  at  com- 
mon law  were  made  after  verdict  and  be- 
fore judgment,  and  it  is  quite  clear  that 
the  refusal  to  grant  such  a  mot'on  after 
judgment,  in  a  case  where  the  finding  of 
the  circuit  court  is  general,  cannot  be  re- 
garded as  a  ruling  made  in  the  progress 
of  the  trial.  Cooper  z'.  Omohundro,  19 
Wall.  65.  69.  22  L.  Ed.  47.  reaflfirmed  in 
Crews  V.  Brewer,  19  Wall.  70,  22  L.  Ed.  63. 

74.  Remedies. — Goodman  z'.  Simonds,  20 
How.   356,  365,   15  L.   Ed.   937. 

75.  Review  of  findings  upon  questions 
of  facts. — Norris  v.  Jackson,  9   Wall.  125, 


1046 


APPEAL  AND  ERROR. 


127,  19  L.  Ed.  608;  Ryan  v.  Carter,  93  U. 
■  S.  78,  23  L.  Ed.  807;  Insurance  Co.  v.  Sea, 
31  Wall.  158,  22  L.  Ed.  511;  Bassett  v. 
United  States,  9  Wall.  38,  19  L.  Ed.  548; 
River  Bridge  Co.  v.  Kansas  Pacific  Ry. 
Co.,  92  U.  S.  315,  23  L.  Ed.  515;  Buetell 
V.  Magone,  157  U.  S.  154,  157,  39  L.  Ed. 
654;  Runkle  v.  Burnham,  153  U.  S.  216,  38 
Iv.  Ed.  694;  Lehnen  v.  Dickson,  148  U.  S. 
71,  37  L.   Ed.  373. 

We  have  universally  held  that  a  bill  of 
exceptions  cannot  be  used  to  bring  up  the 
evidence  for  a  review  of  the  findings  of 
fact.  The  facts,  as  found  and  stated  by 
the  court  below,  are  conclusive.  The  case 
stands  here  precisely  the  same  as  though 
they  had  been  found  by  the  verdict  of  a 
jury.  Norris  v.  Jackson,  9  Wall.  125,  19 
L.  Ed.  608;  Bassett  v.  United  States,  9 
Wall.  38,  19  L.  Ed.  548;  Copelin  v.  In- 
surance Co.,  9  Wall.  461,  19  L-  Ed.  739; 
Coddington  v.  Richardson,  10  Wall.  516, 
19  L.  Ed.  981;  Miller  zj.  Insurance  Co.,  12 
Wall.  285,  295,  20  L.  Ed.  398;  Insurance 
Co.  V.  Folsom,  18  Wall.  237,  249,  21  L. 
Ed.  827;  Insurance  Co.  v.  Sea,  21  Wall. 
158,  22  L.  Ed.  511;  Jennisons  7'.  Leonard, 
21  Wall.  302,  22  L.  Ed.  539;  The  Abbots- 
ford,  98  U.  S.  440,  443,  25  L.  Ed.  168. 

When  a  court  sits  in  place  of  a  jury 
and  finds  the  facts,  this  court  cannot  re- 
view that  finding.  If  there  is  any  error 
in  such  case,  shown  by  the  record,  in  ad- 
mitting or  rejecting  testimony,  it  can  be 
reviewed  here.  But  when  the  court,  by 
permission  of  the  parties,  takes  the  place 
of  the  jury,  its  finding  of  facts  is  con- 
clusive, precisely  as  if  a  jury  had  found 
them  by  verdict.  Bassett  v.  United  States, 
9   Wall.    38,    40,    19    L.    Ed.    548. 

Propositions  of  fact  found  by  the  court, 
in  a  case  where  the  trial  by  jury  is  waived, 
as  provided  in  the  act  of  congress,  are 
equivalent  to  a  special  verdict,  and  the 
supreme  court  will  not  examine  the  evi- 
dence on  which  the  finding  is  founded,  as 
the  act  of  congress  contemplates  that  the 
finding  shall  be  by  the  circuit  court;  nor 
is  the  circuit  court  required  to  make  a 
special  finding,  as  the  act  provides  that 
the  finding  of  the  circuit  court  may  be 
either  general  or  special,  and  that  it  shall 
have  the  same  effect  as  the  verdict  of  a 
jury.  Copelin  v.  Insurance  Co.,  9  Wall. 
461,  19  L.  Ed.  739;  Folsom  v.  Insurance 
Co.,  9  Blatchford  201.  Insurance  Co.  v. 
Folsom,   18  Wall.  237,  249,  21   L.   Ed.    827. 

Under  the  practice  prevailing  in  the  cir- 
cuit courts  of  the  United  states  the  find- 
ing of  the  facts  by  the  court  makes  a  case 
in  the  nature  of  a  special  verdict  and  is 
conclusive  as  to  those  facts;  and  this  al- 
though the  petition  sets  forth  a  different 
state  of  facts  which  are  neither  confessed 
nor  aenied  by  the  answer.  Saulet  v.  Shep- 
herd, 4   Wall.   503,  18  L.   Ed.  442. 

Where  by  stipulation  the  intervention 
of  a  jury  is  waived  by  the  parties,  and  the 
cause  is  submitted  upon  the  evidence  to 
the   circuit   court,   the   general   finding,   al- 


though excepted  to  and  alleged  as  error^ 
when  it  is  a  conclusion  of  fact  cannot  be 
reviewed  here.  Booth  v.  Tiernan,  109  U. 
S.    205,    27    L.    Ed.    907. 

"The  facts  found  by  the  court  below  are 
conclusive;  that  the  bill  of  exceptions 
cannot  be  used  to  bring  up  the  evidence 
for  a  review  of  these  findings;  that  the 
only  rulings,  upon  which  we  are  author- 
ized to  pass,  are  such  as  might  be  pre- 
sented by  a  bill  of  exceptions  prepared 
as  in  actions  at  law;  and  that  the  findings 
have  practically  the  same  effect  as  the 
special  verdict  of  a  jury."  The  Abbots- 
ford,  98  U.  S.  440,  25  L.  Ed.  168;  The 
Clara,  102  U.  S.  200,  26  L.  Ed.  145;  The 
Benefactor,  102  U.  S.  214,  26  L.  Ed.  157; 
The  Annie  Lindsley.  104  U.  S.  185,  26  L. 
Ed.  716;  Collins  v.  Riley,  104  U.  S.  322, 
26  L.  Ed.  752;  Sun  Mutual  Ins.  Co.  ^•. 
Ocean  Ins.  Co.,  107  U.  S.  485,  27  L.  Ed. 
337;  Watts  v.  Camors,  115  U.  S.  353,  29 
L.  Ed.  406;  The  Maggie  J.  Smith,  123  U. 
S.  349,  31  L.  Ed.  175;  The  Gazelle,  128 
U.  S.  474,  32  L.  Ed.  496;  The  City  of  New 
York,  147  U.  S.  71,  72,  76,  37  L.  Ed.  84. 

Where  a  case  is  tried  by  the  court  with- 
out a  jury,  its  findings  upon  questions  of 
fact  are  conclusive  here;  it  matters  not 
how  convincing  the  argument  that  upon 
the  evidence  the  findings  should  have  been 
different.  Only  rulings  upon  matters  of 
law,  when  properly  presented  in  a  bill  of 
exceptions,  can  be  considered  here,  in  ad- 
dition to  the  question,  when  the  findings 
are  special,  whether  the  facts  found  are 
sufficient  to  sustain  the  judgment  ren- 
dered. This  limitation  upon  our  revisory 
power  on  a  writ  of  error  in  such  cases  is 
by  express  statutory  enactment.  Act  of 
March  3,  1865,  13  Stat.  c.  86,  §  4;  Rev. 
Stat.,  §  700.  Stanley  v.  Supervisors  of 
Albany,  121  U.  S.  535,  547,  30  L.  Ed.  1000. 

In  the  case  of  Coddington  v.  Richard- 
son, 10  Wall.  516,  19  L.  Ed.  981,  a  jury 
was  waived  under  the  act  of  March  3, 
1865,  by  stipulation  in  writing,  "and  all 
just  and  legal  objections  and  exceptions 
which  might  be  made  was  reserved  by 
each  party."  The  court  found  the  issue 
for  the  plaintiff  and  assessed  his  damages 
at  $5,000.  The  defendant  moved  for  a 
new  trial,  but  his  motion  was  overruled  by 
the  court,  and  judgment  was  entered  on 
the  finding  against  the  defendant.  He 
took  a  bill  of  exceptions  which  set  out 
all  the  evidence  and  showed  that  he  ex- 
cepted to  the  rulings  of  the  court  in  find- 
ing the  issue  for  the  plaintiff,  in  assessing 
the  plaintiff's  damages,  in  overruling  the 
motion  for  a  new  trial,  and  in  rendering 
judgment.  No  exceptions  were  taken  dur- 
ing the  course  of  the  trial.  Upon  this 
state  of  the  record  this  court  said:  "There 
is  no  question  of  law  arising  upon  the 
pleadings  or  the  trial.  Those  attempted 
to  be  raised  refer  to  the  evidence,  as  em- 
bodied in  the  record,  but  which,  in  a  trial 
of  the  facts  before  the  court,  a  jury  being 
waived,    we    do    not   look   into.      We    look- 


APPEAL  AXD  ERROR. 


1047 


into  them  only  when  found  by  the  court." 
Approved  in  Martinton  v.  Fairbanks,  112 
U.   S.   670,   675,   28    L.    Ed.   862. 

Section  700  provides  that  "when  an  issue 
of  fact  in  any  civil  cause  in  a  circuit 
court  is  tried  and  determined  by  the  court 
without  the  intervention  of  a  jury,  accord- 
ing to  section  six  hundred  and  forty-nine, 
the  rulings  of  the  court  in  the  progress 
of  the  trial  of  the  cause,  if  excepted  to  at 
the  time,  and  duly  presented  by  a  bill  of 
exceptions,  may  be  reviewed  by  the  su- 
preme court  upon  a  writ  of  error  or  upon 
appeal;  and  when  the  finding  is  special, 
the  review  may  extend  to  the  sufficiency 
of  the  facts  found  to  support  the  judg- 
ment." Under  that,  the  rulings  of  the 
court  in  the  trial,  if  properly  preserved, 
can  be  reviewed  here,  and  we  may  also 
determine  whether  the  facts  as  specially 
found  support  the  judgment;  but  if  there 
be  no  special  hndings,  there  can  be  no  in- 
quiry as  to  whether  the  judgment  is  thus 
supported.  We  must  accept  the  general 
finding  as  conclusive  upon  all  matters  of 
fact,  precisely  as  the  verdict  of  a  jury. 
Martinton  r.  Fairbanks.  112  U.  S.  670,  28 
L.  Ed.  862;  Lehnen  i:  Dickson,  148  U.  S. 
71,  73.  .37  L.  Ed.  373,  fo^llowed  in  St.  Louis 
V.  Western  Union  Tel.  Co.,  148  U.  S.  92, 
37  L.  Ed.  380;  Wilson  v.  Merchants'  Loan, 
etc.,  Co..  183   U.  S.  121,  127,  46  L.  Ed.  113. 

Seventh  amendment. — In  cases  where 
the  cause  is  tried  by  the  court  without 
a  jury  it  can  only  review  it  in  the  same 
manner,  and  to  the  extent,  as  if  it  had 
been  tried  by  a  jury.  Now  the  seventh 
amendment  to  the  constitution  expressly 
provides  that  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any 
court  of  the  Unit-ed  States  than  according 
to  the  rules  of  the  common  law,  and  in 
Parsons  v.  Bedford.  3  Pet.  433,  448,  7  L. 
Ed.  732,  it  was  said  that  "the  only  modes 
known  to  the  common  law  to  re-examine 
such  facts  are  the  granting  of  a  new  trial 
by  the  court  where  the  issue  was  tried,  or 
to  which  the  record  was  properly  return- 
able, or  the  award  of  a  venire  facias  de 
novo  by  an  appellate  court,  for  some  er- 
ror of  law  which  intervened  in  the  pro- 
ceedings." See,  also,  Lincoln  v.  Power, 
151  U.  S.  436,  438,  38  L.  Ed.  224;  Railroad 
Company  v.  FralofT,  100  U.  S.  24,  31,  25  L. 
Ed.  531;  Grayson  v.  Lynch,  163  U.  S.  468, 
475,   41    L.    Ed.   230. 

As  said  by  Mr.  Justice  Blatchford,  in 
Lancaster  v.  Collins,  115  U.  S.  222.  225,  29 
L.  Ed.  373:  "This  court  cannot  review  the 
weight  of  the  evidence,  and  can  look  into 
k.  only  to  see  whether  there  was  error  in 
sot  directing  a  verdict  for  the  plaintiflf  on 
the  question  of  variance  or  because  there 
was  no  evidence  to  sustain  the  verdict 
rendered."  The  finding  of  the  court,  to 
kave  the  same  efifect,  must  be  equally  con- 
oiusive,  and  equally  remove  from  exami- 
nation in  this  court  the  testimony  given 
«n  the  trial.  Insurance  Co.  v.  Folsom,  18 
Wall.  237,  21  L.  Ed.  827;  Cooper  v.  Omo- 


hundro,  19  Wall.  65,  22  L.  Ed.  47;  Lehnen 
V.  Dickson.  148  U.  S.  71,  72,  37  L.  Ed.  373. 
followed  in  St.  Louis  v.  Western  Union 
Tel.  Co.,  148  U.  S.  92,  37  L.  Ed.  380. 

Illustrative  cases. — Under  the  act  of 
March  3d,  1«65  (relative  to  the  trial  of 
issues  of  fact  in  civil  causes),  when  on  a 
suit  on  a  policy  of  insurance  the  ques- 
tion was  whether  a  waiver  of  a  payment 
in  cash  of  the  premium  had  or  had  not 
been  made,  it  was  held,  in  a  case  where 
the  court  found  on  the  evidence  as  a  fact 
that  it  had  been  waived,  that  the  correct- 
ness or  incorrectness  of  a  series  of  requests 
which  were  founded  on  an  assumption 
that  it  had  not  been,  were  not  sub- 
ject to  review  here  under  the  act.  Mil- 
ler I'.  Life  Ins.  Co.,  12  Wall.  285,  20  L. 
Ed.  398. 

Where  the  principal  finding  of  the  court 
is,  "That  the  plaintiff  has  failed  to  es- 
tablish the  allegations  in  said  complaint, 
that  the  several  assessments  herein  re- 
ferred to  were  at  a  greater  rate  than  was 
assessed  upon  other  moneyed  capital  in 
the  hands  of  individual  citizens  of  this 
state;"  and  the  first  assignment  of  error 
is,  that  the  court  erred  in  deciding  that 
the  plaintiflf  failed  to  establish  the  alle- 
gations mentioned,  and  the  greater  part 
of  the  oral  argument  of  the  plaintiff's 
counsel  and  of  his  printed  brief  was  de- 
voted to  the  maintenance  of  this  proposi- 
tion, this  is  nothing  more  than  that  the 
court  below  found  against  the  evidence — 
a  question  not  open  to  review  or  consid- 
eration in  this  court.  Stanley  v.  Super- 
visors of  Albany,  121  U.  S.  535,  547,  30  L. 
Ed.  1000. 

Where  a  case  is  tried  by  the  court 
without  a  jury,  and  there  is,  as  appears 
by  the  bill  of  exceptions,  an  application 
at  the  close  of  the  trial  for  a  declaration 
of  law,  that  the  plaintifT  is  entitled  to 
judgment  for  the  sum  claimed,  which 
instruction  is  refused,  and  exception 
taken,  this  presents  a  question  of  law  for 
our  consideration.  St.  Louis  v.  Western 
Union  Tel.  Co.,  148  U.  S.  92.  37  L.  Ed. 
380,  citing  Norris  v.  Jackson,  9  Wall.  125. 
19  L.   Ed.   608. 

The  question  whether  an  act  was  duly 
and  constitutionally  passed,  is,  as  one  of 
law.  open  for  the  examination  here.  Wal- 
nut V.  Wade,  103  U.  S.  683.  689.  26  L.  Ed. 
526. 

The  question  whether  an  alleged  stat- 
ute "is  really  a  law  or  not,  is  a  judicial 
one,  and  is  to  be  settled  and  determined 
bj'  the  court  and  judges,  and  is  not  a 
question  of  fact  to  be  determined  by  a  jury."' 
South  Ottawa  r.  Perkins,  94  U.  S.  260. 
24  L.  Ed.  154;  Gardner  v.  The  Collector, 
6  Wall.  499.  18  L.  Ed.  890;  Walnut  v. 
Wade.   103   U.    S.   683,   689,    26    L.    Ed.    526. 

An  action  of  unlawful  detainer  is  tried 
by  the  court  without  a  jury,  and  the  jour- 
nal entry  shows  simply  a  general  finding 
that  the  defendant  is  guilty  in  manner 
and    form    as    charged    in    the    complaint, 


1048 


APPEAL  AND  ERROR. 


jury,  its  findings  on  questions  of  fact  are  conclusive,  although  open  to  the  con- 
tention that  there  was  no  evidence  on  which  they  could  be  based. "^  \Miere  the 
case  is  submitted  to  the  circuit  court  without  the  intervention  of  the  jury,  if  there 
is  evidence  upon  which  such  a  finding  might  properly  rest,  this  court  must  accept 
the  findings  as  conclusive,  and  inquire  no  further  into  the  testimony  than  we 
should  into  its  sufficiency  to  sustain  the  verdict  of  a  jury.  This  court  is  not  a 
trier  of  factsJ"^  Errors  merely  in  the  findings  of  fact  by  the  court  are  not  sub- 
ject to  revision  by  this  court,  if  there  was  any  evidence  upon  which  such  findings 
could   be   madeJ^ 

Where  both  parties  ask  the  court  to  instruct  a  verdict,  both  thereby 
affirm  that  there  is  no  disputed  question  of  fact  which  could  operate  to  deflect 
or  control  the  question  of  law.  This  is  necessarily  a  request  that  the  court  find 
the  facts,  and  the  parties  are.  therefore,  concluded  by  the  finding  made  by  the 
court,  upon   which  the  resulting  instruction  of  law   was  given.' ^ 

It  is  thus  seen  that  the  only  use  which  can  be  made  of  the  bill  of  exceptions, 
when  there  is  a  special  finding  of  facts,  is  to  present  the  rulings  of  the  court  in 


the  amount  of  damages  sustained  by  the 
plaintiff,  and  the  value  of  the  monthly 
rents  and  profits,  and  thereon  the  judg- 
ment for  restitution  of  the  premises, 
«SoubIe  damages  and  double  rents,  and 
there  is  no  special  finding  of  facts,  and 
no  agreed  statement  of  facts.  Obviously, 
thori'fore,  inquiry  in  this  court  must  be 
limited  to  the  sufficiency  of  the  complaint  and 
the  rulings,  if  any  be  preserved,  on  ques- 
tions of  law  arising  diiring  the  trial.  Sec- 
tions 648  and  649  of  the  Revised  Statutes, 
while  committing  generally  the  trial  of 
issues  of  fact  to  the  jury,  authorize  par- 
ties to  waive  a  jury  and  submit  such  trial 
to  the  court,  adding  that  "the  finding  of 
the  court  upon  the  facts,  which  may  be 
cither  general  or  special,  shall  have  the 
same  effect  as  the  verdict  of  a  jury."  But 
the  verdict  of  the  jury  settles  all  questions 
of  fact.  Lehnen  7'.  Dickson,  148  U.  S.  71, 
72,  37  L.  Ed.  373,  followed  in  St.  Louis 
7'.  Western  Union  Tel.  Co.,  148  U.  S.  92, 
37    I..   Ed.    3S0. 

Novelty  of  patent. — This  court  cannot 
review  a  finding,  in  an  action  by  a  pat- 
entee for  a  royalty,  that  the  invention  is 
new  and  novel.  It  is  a  conclusion  of  fact 
on  the  evidence.  St.  Paul  Plow  Works 
7'.    Starling,    140   U.    S.    184,    35   L.    Ed.   404. 

Nul  tiel  record. — Where  a  court  sitting 
in  place  of  a  jury  finds  the  facts,  this 
court  cannot  review  that  finding.  A  plea 
of  nul  tiel  record  raises  a  question  of  law, 
where  the  supposed  record  is  of  the  court 
in  which  the  plea  is  filed.  Therefore, 
where  the  record  relied  on  is  produced 
in  such  a  case,  and  made  part  of  the  rec- 
ord by  a  statement  of  facts  agreed  on, 
it  is  a  question  of  law  whether  it  sup- 
ports or  fails  to  support  the  plea,  and  can 
be  reviewed  in  this  court.  Bassett  v. 
United   States.  9  Wall.   38,   19   L.   Ed.   548. 

76.  Ward  v.  Joslin,  186  U.  S.  142,  147, 
46  L.  Ed.   1093. 

This  court  will  not  review  the  finding 
of  fact  of  the  circuit  court  except  to  estab- 
lish  whether   such   court   found    any   facts 


which  were  unsupported  by  testimony,  or 
refused  to  find  any  fact  material  to  the 
issue,  when  such  fact  was  proven  by  un- 
contradicted evidence.  The  City  of  New 
York,  147  U.  S.  72.  37  L.  Ed.  84,  followed 
in  Lehnen  v.  Dickson,  148  U.  S.  71,  74, 
37   L.    Ed.   373. 

77.  Case  Mfg.  Co.  v.  Soxman,  138  U.  S. 
431.  34   L.   Ed.  1019. 

78.  The  Francis  Wright.  105  U.  S.  381, 
387,  26  L.  Ed.  1100;  McClure  v.  United 
States,  116  U.  S.  145,  152.  29  L.  Ed.  572; 
Union  Pacific  R.  v.  United  States,  116 
U.  S.  154,  157,  29  L.  Ed.  584;  Mer- 
chants' Ins.  Co.  V.  Allen,  121  U.  S.  67, 
71,  30  L.  Ed.  858;  Hathaway  v.  Cambridge 
Nat.  Bank,  134  U.  S.  494,  498,  33  L.  Ed. 
1004. 

"Where  a  case  is  tried  by  the  court,  a 
jury  having  been  waived,  its  findings  upon 
questions  of  fact  are  conclusive  in  the 
courts  of  review,  it  matters  not  how  con- 
vincing the  argument  that  upon  the  evi- 
dence the  findings  should  have  been  dif- 
ferent." Stanley  v.  Supervisors,  121  U. 
S.  547,  30  L.  Ed.  1003;  Dooley  v.  Pease, 
180  U.  S.  126,   131.  45  L.  Ed.  457. 

Errors  alleged  in  the  findings  of  the 
court  are  not  subject  to  revision  by  the 
circuit  court  of  appeals,  or  by  this  court, 
if  there  was  any  evidence  upon  which 
such  findings  could  be  made.  Hathaway 
V.  Cambrido-e  Nat.  Bank,  134  U.  S.  494, 
498.  33  L-  Ed.  1004;  St.  Louis  7'.  Retz,  138 
U.  S.  226,  34  L.  Ed.  941;  Runkle  7'.  Burn- 
ham,  153  U.  S.  216.  225,  38  L.  Ed.  694; 
Dooley  7'.  Pease,  180  U.  S.  126,  131,  132,  45 
L.   Ed.   457. 

"Applying,  then,  the  settled  law  of  Illi- 
nois to  the  facts  as  found,  the  conclu- 
sion reached  by  the  circuit  court,  and  af- 
firmed by  the  circuit  court  of  appeals, 
that  the  sale  was  void  as  against  the  at- 
taching creditors,  must  be  accepted  by 
this  court."  Dooley  7'.  Pease,  180  U.  S. 
126.    132.   45   L.    Ed.   457. 

79.  Buettell  v.  Magone,  157  U.  S.  154, 
39   L.   Ed.  654. 


APPEAL  AND  ERROR-  1049 

the  progress  of  the  trial  upon  questions  of  law.  The  facts  are  conclusively  set- 
tled  by   the    finding  of  the   court. ^^ 

Mixed  Questions  of  Law  and  Fact.— Where  the  case  is  tried  by  the  court 
without  the  intervention  of  the  jury,  this  court  cannot  review  the  action  of  the 
circuit  court  in  finding  the  facts  which  it  did  find  or  refusing  to  find  the  facts 
which  it  was  asked  to  find  and  did  not  find.  We  can  only  inquire  whether  the 
facts  found  are  sufficient  to  support  the  judgment.  Where  mixed  questions  of 
law  and  fact  are  submitted  to  the  court  in  a  trial  without  a  jury,  this  court  will 
not,  on  a  writ  of  error,  review  such  questions,  any  more  than  it  will  pure  ques- 
tions of  fact."* 

Error  to  State  Court. — In  cases  where  the  facts  are  submitted  to  a  jury, 
and  are  passed  upon  by  the  verdict,  in  a  common-law  action,  this  court  has  the 
same  inability  to  review  those  facts  in  a  case  coming  from  a  state  court  that  it 
has  in  a  case  coming  from  a  circuit  court  of  the  United  States.  This  conclusive- 
ness of  the  facts  found  extends  to  the  finding  by  a  state  court  to  whom  they  have 
been  submitted  by  waiving  a  jury,  or  to  a  referee,  where  they  are  so  held  by  state 
laws,  as  well  as  to  the  verdict  of  a  jury. '^2 

Agreed  Statement  of  Facts. — Where  a  case  is  tried  by  the  court  without  a 
jury,  in  which  there  is  no  special  finding  of  facts,  but  there  is,  as  appears  in  the 
bill  of  exceptions,  an  agreement  as  to  certain  facts,  which  though  not  technically 
such  an  agreed  statement  as  is  the  equivalent  of  a  special  finding  of  facts,  yet  en- 
ables us  to  approach  the  consideration  of  the  declaration  of  law  with  a  certainty 
as  to  the  facts  upon  which  it  was  based,  this  court  may  consider  such  question  of 
law,  although  there  is  in  addition  to  these  agreed  facts  some  oral  testimony, 
where  it  appears  from  the  opinion  of  the  court  that  it  made  a  distinct  ruling  upon 
a  proposition  of  law  not  at  all  affected  by  the  oral  testimony.^'" 

WeiQ^ht  and  Sufficiency  of  Evidence. — Under  the  act  of  congress  of  March 
3d,  1865,  authorizing  the  trial  of  facts  by  the  circuit  courts,  and  enacting  that  the 
findings  of  the  court  upon  them  shall  have  the  same  eft'ect  as  the  verdict  of  a 
jury,  this  court  sitting  as  a  court  of  error  cannot  pass,  as  it  does  in  equitv  appeals, 
upon  the  weight  or  sufficiency  of  evidence.  If  the  court  chooses  to  find  generally 
for  one  side  or  the  other,  instead  of  making  a  special  finding  of  the  facts,  the 
losing  party  has  no  redress  on  error  except  for  the  wrongful  admission  or  re- 
jection of  evidence.*^ 

Reporting  Evidence  in  Transcript. — Matters  of  fact  are  not  reviewable 
here  imder  any  circumstances,  as  appears  by  all  the  cases  decided  by  this  court, 
since  the  act  was  passed  allowing  parties  to  waive  a  jury,  and  to  submit  the  law 
and  fact  to  the  determination  of  the  circuit  court.  Consequently,  it  is  irregular 
to  report  the  evidence  in'  the  transcript,  except  so  far  as  it  may.  be  necesssary  to 
explain  the  legal  questions  reserved,  as  to  the  rulings  of  the  court  in  the  progress 
of  the  trial ;  nor  is  either  party  entitled  to  a  bill  of  exceptions  as  to  any  special 
finding  of  the  court,  for  the  plain  reason  that  the  special  findings  of  the  circuit 
court  in  such  a  case  are  not  the  proper  subject  of  exceptions  nor  of  review  in 
this  court. ^^ 

80.  Walnut  v.  Wade,  103  U.  S.  683,  688,  1865  (§§  649,  700,  Rev.  Stat.)  does  not 
26  L.   Ed.  526.  permit    us    to    consider    the    effect    of    the 

81.  St.  Louis  2'.  Rutz,  138  U.  S.  226,  34  evidence  in  the  case,  but  only  to  deter- 
L.   Rd.   941.  mine  whether  the  facts  found  on  the  trial 

82.  Boggs  V.  Mining  Co.,  3  Wall.  304,  below  are  sufficient  to  support  the  judg- 
18  L.  Ed.  245;  Republican,  etc..  Bridge  ment,  and  to  pass  on  the  rulings  of  the 
Co.  V.  Kansas,  etc.,  R.  Co.,  92  U.  S.  315,  court  in  the  progress  of  the  trial  pre- 
317,  23  L.  Ed.  515.  sented    by    a    bill    of    exceptions.      For    all 

83.  St.  Loui.s  7'.  Wenern  Union  Tel.  the  purposes  of  our  revi.w.  the  facts  as 
Co.,  148  U.  S.  92,  37  L.  Ed.  380,  reaffirmed  found  and  stated  by  the  court  below  are 
in  Wilson  v.  Merchants  Loan,  etc.,  Co..  conclusive."  The  Abbotsford,  98  U.  S. 
183  U.  S.  121,  129.  46  L.  Ed.  113.  440,  25  L.  Ed.  168;     Boogher  7:  Insurance 

84.  Dirst   v.   Morris.   14  Wall.  484.  20   L.        Co..  103  U.  S.  90,  97.  26  L.   Ed.  310. 

T-.d.   722.  .    85.  Tvng  v.    Grinnell,   92   U.    S.   467,   471. 

•'We    have    often    held    that    the    act    of       23  L.   Ed.   733. 


1050 


AFFHAL  AAD  HKKOR. 


Rulings  of  Court  in  Progress  of  Trial. — Under  the  act  of  March  3d,  1865. 
which  gives  to  the  finding  of  the  court  upon  the  facts,  which  finding  may  be 
either  general  or  special  the  same  effect  as  the  verdict  of  a  jury,  it  has  been  held 
that  though  the  finding  was  general,  a  ruling  of  the  court  in  the  progress  of  the 
trial  or  excepted  to  at  the  time  and  duly  presented  by  bills  of  exception,  may  be 
reviewed  by  this  court.  But  the  rulings  thus  subject  to  review  are  decisions  of 
law  not  finding  of  facts. ^^ 

When  the  finding  is  special,  the  re-examination  can  only  extend  to  the  ques- 
tion whether  the  facts  found  are  sufficient  to  support  the  judgment.  Proposi- 
tions of  fact  found  by  the  circuit  court  in  such  a  case  are  equivalent  to  a  special 
verdict,  and,  consequently,  are  irreviewable  here  except  for  the  purpose  of  de- 
termining the  single  question  whether  they  are  sufficient  to  warrant  the  judg- 
ment.^" 

Agreement  of  Parties. — Parties  have  a  right  to  waive  a  trial  by  jury  and 
submit  the  issues  of  fact  to  the  determination  of  the  circuit  court,  but  they  can- 
not by  any  agreement  make  it  the  duty  of  this  court  to  draw  inferences  and  con- 
clusions of  fact  as  may  be  drawn  from  the  evidence  by  the  circuit  court. ^* 

11.  The   Record — aaa.  In    General. — Where    the    finding   of    the    circuit    court 


86.  Dickinson  v.  Planters'  Bank.  16 
Wall.   250,   21    L.   Ed.   278. 

87.  Insurance  Co.  v.  Folsom,  18  Wall. 
237,  21  L.  Ed.  827. 

A  special  finding  by  the  court  upon 
issues  of  fact,  where  the  parties  or  their 
attorneys  have  duly  filed  a  stipulation, 
waiving  a  jury,  h^s  the  same  effect  as  a 
verdict,  and  is  not  subject  to  review  by 
this  court  except  as  to  the  sufficiency  of  the 
facts  found  to  support  the  judgment.  Tyng 
V.  Grinnell,  92  U.  S.  467.  23  L.  Ed.  733,  cit- 
ing Miller  v.  Insurance  Co.,  12  Wall.  285, 
295,  20   L.    Ed.    398. 

Special  findings  under  a  submission  of 
facts  to  the  court  are  no  more  subject  to 
review  here  than  general  findings,  as  the 
provision  in  respect  to  both  is  that  the 
finding  of  the  court  shall  have  the  same 
effect  as  the  verdict  of  a  jury.  Appellate 
courts  have  no  more  power  to  review  the 
verdict  of  a  jury  where  it  is  special  than 
if  it  be  general;  but  they  may  inquire 
and  determine  whether  the  special  ver- 
dict is  the  proper  basis  of  a  judgment; 
and  the  act  of  congress  provides  that 
the  review,  if  the  finding  is  special,  may 
extend  to  the  determination  of  the  suffi- 
ciency of  the  facts  found  to  support  the 
judgment.  Tyng  v.  Grinnell,  92  U.  S. 
467,   471,  23   L.   Ed.  733. 

"The  court  below,  by  stipulation,  tried 
the  case,  and  made  a  special  finding  of 
facts,  on  which  it  based  its  conclusion  of 
law,  that  the  plaintiffs  could  not  recover. 
It  is  objected  that  some  of  these  facts 
were  not  warranted  by  the  evidence;  but 
this  is  not  a  subject  of  inquiry  here.  If 
the  parties  chose  to  adopt  this  mode  of 
trial,  they  are  concluded  by  the  proposi- 
tions of  fact  which  the  evidence,  in  the 
opinion  of  that  court,  establishes.  Whether 
general  or  special,  the  finding  has  the 
same  effect  as  the  verdict  of  a  jury;  and 
its   sufficiency   to    sustain    the   judgment    is 


the  only  matter  for  review  in  this  court. 
Norris  v.  Jackson,  9  Wall.  125.  19  L.  Ed. 
608;  Flanders  7'.  Tweed.  9  Wall.  4^5,  19 
L.  Ed.  678;  Kearney  v.  Case,  12  Wall. 
275,  20  L.  Ed.  395;  Miller  v.  Insurance 
Co..  12  Wall.  285.  20  L.  Ed.  398."'  Ryan 
r.    Carter.  93    U.    S.   78.   81,   23    L.    Ed.   807. 

When  a  court  below  makes  a  special 
finding,  this  court  will  not  go  into  an 
examination  of  the  evidence  on  which 
it  was  founded  to  ascertain  whether  or 
not  it  was  right.  The  finding  is  equiva- 
lent to  a  special  verdict.  Copelin  v.  In- 
surance Co.,  9  Wall.  461.  462,  19  L.  Ed. 
739. 

Where  facts  are  specially  found  by  the 
court  below  without  a  jury,  the  evidence 
on  which  this  finding  was  made  cannot 
be  considered  here.  Durand  z'.  Martin, 
120   U.    S.   366,  30    L.    Ed.   675. 

88.  Shankland  v.  Washington,  5  Pet. 
390,  397.  8  L.  Ed.  166;  Suydam  v.  Wil- 
liamson. 20  How.- 427.  434,  15  L.  Ed.  978; 
Richmond  v.  Smith,  15  Wall.  429,  437,  21 
L.   Ed.   200. 

The  parties  now  went  to  trial,  when 
they  agreed  to  waive  a  jury  and  to  sub- 
mit all  questions  of  fact  to  the  court,, 
"with  authority  to  draw  all  inferences  and 
conclusions  that  a  jury  is  authorized  to 
draw  from  the  evidence,  and  with  liberty 
to  either  party  to  except  to  the  judgment 
in  the  same  manner  and  to  the  same  ex- 
tent that  he  might  except  to  the  verdict 
of  a  jury,  and  to  object  to  the  same  for 
the  same  reasons  and  with  the  right  to 
appeal  from  the  same."  The  court  found 
for  the  plaintiff  generally.  Held,  that  the 
defendant  could  not  under  the  agreement 
raise  any  questions  as  to  the  effect  of  evi- 
dence, etc..  in  this  court,  with  a  view  of 
making  this  court  find  as  true  the  facts 
set  forth  in  the  special  plea,  which  plea, 
as  above  mentioned,  if  true,  was  declared 
to  be  no  defense.  Richmond  v.  Smtih,  15 
Wall.   429,   21   L.   Ed.   200. 


APPEAL  AND  ERROR.  1051 

IS  general,  and  there  is  no  authorized  statement  of  facts  in  the  record,  no  re- 
view of  the  questions  of  law  can  be  had  in  this  court,  except  such  as  arise  from 
the  rulings  of  the  court  made  in  the  progress  of  the  trial,  as  it  would  impose  upon 
this  court  the  duty  of  hearing  the  whole  case,  law  and  fact,  as  on  an  appeal  in 
chancery  or  in  an  admiralty  suit,  which  would  operate  as  a  repeal  of  the  provi- 
sion in  the  act  of  congress,  that  issues  of  fact  in  such  cases  may  be  tried  and  de- 
termined by  the  circuit  court ;  and  would  also  violate  that  clause  of  the  twenty- 
second  section  of  the  judiciary  act,  which  prohibits  this  court  reversing  any  judg- 
ment "for  any  error  of   fact."^^ 

Finding  Must  Appear  on  the  Record. — In  short  under  this  act  of  congress 
which  authorizes  trials  by  court,  there  must  be  a  finding  of  facts,  either  general 
or  special,  in  order  to  authorize  a  judgment ;  and  that  finding  must  appear  on 
the  record.^*'  Where  under  the  act  of  congress  authorizing  trial  by  court,  it  does 
not  appear  on  the  record  whether  the  finding  was  general  or  special,  such  defect 
in  the  record  it  is  competent  for  the  court  to  supply  by  amendment. ^^  The  court 
at  a  subsequent  term,  may  by  an  order,  correct  the  record  by  incorporating  into 
it  nunc  pro  tunc,  a  special  finding  of  the  facts  upon  which  the  judgment  had  been 
jendered.^2 

bbb.  Necessity  of  Bill  of  Exceptions. — In  General. — No  bill  of  exceptions  is 
required,  or  is  necessary,  to  bring  upon  the  record  the  findings,  whether  general 
or  special.  They  belong  to  the  record  as  fully  as  do  the  verdicts  of  a  jury.  If 
the  finding  be  special,  it  takes  the  place  of  a  special  verdict;  and,  when  judgment 
is  entered  upon  it,  no  bill  of  exceptions  is  needed  to  bring  the  sufficiency  of  the 
finding  up  to  review.  But  there  must  be  a  finding  of  facts,  either  general  or  spe- 
cial, in  order  to  authorize  a  judgment ;  and  that  finding  must  appear  on  the  rec- 
ord. If  the  special  finding  of  facts  is  properly  vipon  the  record,  or  is  rightfully 
supplied,  the  judgment  of  the  court  is  subject  to  review  independently  of  any 
bill  of  exceptions,  the  only  office  of  which  is  to  bring  upon  record  rulings  that 
without  it  would  not  appear. ^^  Where  a  case  is  tried  by  the  court  without  a 
jury,  the  bill  of  exceptions  brings  up  nothing  for  revision  except  what  it  would 
have  done  had  there  been  a  jury  trial. ^-^  We  have  often  decided  that  a  bill  of 
exceptions  cannot  be  used  to  bring  up  the  whole  testimony  for  review  when  the 
case  has  been  tried  by  the  court,  any  more  than  when  there  has  been  a  trial  by 
jury.9'5 

Where  Finding  Is  Special. — No  exception  is  necessary,  in  case  of  special 
findings  by  the  court,  to  raise  the  question  whether  the  facts  found  support  the 
judgment. 9^     But  where  the  record  contains  a  special  findings  of  fact  and  there 

89.  The  record  in  geni?ral. — 1  Stat,  at  95.  N orris  v.  Jackson,  9  Wall.  125,  128, 
Large  85;  Insurance  Co.  v.  Folsom,  18  19  L.  Ed.  608;  Insurance  Co.  v.  Sea,  21 
Wall.  237,  21  L.  Ed.  827;  Dirst  v.  Morris.  Wall.  158,  22  L.  Ed.  511;  Betts  v.  Mug- 
14  Wall.  484,  490,  20  L.  Ed.  722;  Bassett  ridge.  154  U.  S.  App.  644,  25  L.  Ed.  157. 
V.  United  States,  9  Wall.  38.  40,  19  L.  96.  St.  Louis  v.  Ferry  Co.,  11  Wall.  423, 
Ed.  548;  Miller  v.  Insurance  Co..  12  Wall.  428,  20  L  Ed.  192;  Tyng  t'.  Grinnell,  92  U. 
265,  297,  20  L.  Ed.  398;  Crews  v.  Brewer,  S.  467,  469,  23  L.  Ed.  733;  Insurance  Co. 
19  Wall.  70,  72,   22   L.   Ed.  63.  v.  Boon.  95  U.  S.   117,   125.  24   L.    Ed.   395; 

90.  Insurance  Co.  v.  Boon,  95  U.  S.  Allen  v.  St.  Louis  Bank.  120  U.  S.  20,  30, 
117,  24  L.  Ed.  395.  30    L    Ed.    573;    Seeberger   v.   Schlesinger, 

91.  Insurance  Co.  v.  Boon,  95  U.  S.  152  U.  S.  581,  586,  38  L  Ed.  560;  Cutler 
lt7,  24  L.   Ed.   395.  v.    Huston,    158    U.    S.    423,   428,    39    L.    Ed. 

92.  Insurance    Co.    v.    Boon,    95    U.    S.  1040. 

117,    24   L.   Ed.   395.  When   a   jury   is   waived    in    writing,  and 

93.  Necessity  of  bill  of  exceptions. —  the  case  tried  l>y  the  court,  the  court's 
Insurance  Co.  v.  Boon.  95  U.  S.  117,  124,  finding  of  facts,  whether  general  or  spe- 
24  L.   Ed.   395.  cial,  has  the  same   effect  as   the  verdict  of 

94.  Norris  v.  Jackson,  9  Wall.  125,  19  a  jury;  and  although  a  bill  of  exceptions 
L.  Ed.  608;  Coddington  v.  Richardson,  10  is  the  only  way  of  presenting  rulings  made 
Wall.  516,  19  L.  Ed.  981;  Miller  v.  Insur-  in  the  progress  of  the  trial,  the  question 
ajice  Co.,  12  Wall.  285,  20  L.  Ed.  398;  In-  whether  the  facts  set  forth  in  a  special 
surance  Co.  v.  Folsom,  18  Wall.  237,  250,  finding  of  the  court,  which  is  equivalent 
SI4   L.    Ed.   827.  to   a   special   verdict,   are    sufficient   in   law 


1052 


APPEAL  AND  ERROR. 


is  no  bill  of  exceptions  in  the  record,  the  errors  of  law  relied  upon  by  the  plain- 
tiff in  error  must  be  considered  and  determined  upon  the  special  findings  of 
fact.*^' 

Appeals  in  Admiralty. — A  bill  of  exceptions  is  not  necessary  to  give  this 
court  jurisdiction  of  an  appeal  in  admiralty  under  the  provisions  of  the  act  of 
Feb.  16,  1875,  c.  77  (18  Stat.,  pt.  3,  p.  315),  providing  that  the  review  here  shall 
extend  to  the  determination  of  the  questions  of  law  arising  upon  the  record,  and 
to  such  rulings  of  the  court,  excepted  to  at  the  time,  as  may  be  presented  by  a 
bill  of  exceptions,  prepared  as  in  actions  at  law.^^ 

Review  of  Rulings  in  Progress  of  Trial. — The  office  of  a  bill  of  excep- 
tions, where  the  facts  are  tried  by  the  court,  is  pointed  out  by  §  700.  Revised 
Statutes:  "The  rulings  of  the  court  in  the  progress  of  the  trial  of  the  cause,  if 
excepted  to  at  the  time  and  duly  presented  by  a  bill  of  exceptions,  may  be  re- 
viewed by  the  supreme  court  upon  a  writ  of  error  or  upon  appeal. "^^  Objection 
to  the  admission  or  exclusion  of  evidence,  or  to  such  ruling  on  the  propositions 
of  law  as  the  party  may  ask,  must  appear  by  bill  of  exceptions. ^  If  the  finding 
be  general,  only  such  rulings  of  the  court  in  the  progress  of  the  trial  can  be  re- 
viewed as  are  presented  by  bill  of  exceptions,  or  as  may  arise  upon  the  plead- 
ings.■-'     In  such  cases,  a  bill  of  exceptions  cannot  be  used  to  bring  up  the  whole 


to  support  the  judgment,  may  be  reviewed 
on  writ  of  error  without  any  bill  of  ex- 
ceptions.     Act   of   March   3,    1865,   c.   86,   § 

4,  13  Stat.  501;  Rev.  Stat.,  §§  649,  700; 
French  v.  Edwards,  21  Wall.  147,  22  L- 
Ed.  .'•)34;  Ex  parte  French.  91  U.  S.  423, 
23  L.  Ed.  249:  Allen  r.  St.  Louis  Bank. 
120    U.    S.    20,    30,    30    L.    Ed.    r)73. 

Where  a  jury  is  waived  in  writing,  and 
the  case  tried  by  the  court,  and  the  judg- 
ment is  for  more  than  $.5,000,  the  question 
whether  a  special  finding  of  facts  by  the 
court  is  sufficient  to  support  the  judgment 
below,  may  be  reviewed  on  a  writ  of  er- 
ror without  any  bill  of  exceptions,  nor  is 
it  necessary  to  consider  whether  such 
questions  are  duly  stated  in  the  certificate 
of  division  of  opinion.  Allen  z'.  St.  Louis 
Bank,  120  U.  S.  20.  30  L.  Ed.  573,  follow- 
ing Williamsport    Bank   t-.    Knapp,   119   U. 

5.  3.57.    30    L.    Ed.    446. 

Where  the  court  tried  the  issues  of 
fact,  and  its  opinion,  embodying  its  find- 
ings and  the  conclusions  of  law  thereon, 
was  filed  concurrently  with  the  entry  of 
the  judgment,  but  there  was  no  formal 
finding  of  facts,  and  the  court,  at  the 
next  following  term,  upon  a  rule  awarded, 
and,  after  hearing  the  parties,  made  an 
order  that  a  special  finding,  with  the  con- 
clusions of  law  conformable  to  that  opin- 
ion so  filed,  be  entered  nunc  pro  tunc, 
and  made  part  of  the  record  as  of  the 
term  when  the  judgment  was  renderf^d. 
held,  that  the  order  was  within  the  dis- 
cretion of  the  court,  and  that  by  it  such 
special  finding  became  a  part  of  the 
record  of  the  cause,  and  that  the  judg- 
ment upon  it  is.  without  a  bill  of  excep- 
tions, subject  to  review  here.  Insurance 
Co.  7>.  Boon.  95  U.  S.  117,  24  L.  Ed.  395. 

97.  Chicago,  etc..  R.  Co.  v.  Hoyt,  149 
v.  S.  I,  11,  37  L.  Ed.  625. 

98.  At  law  a  bill  of  exceptions  is  only 
used    to    put    into    the    record    that    which 


would  not  appear  without.  The  findings 
which  the  statute  requires  must  be  stated 
by  the  court.  These,  therefore,  become 
part  of  the  record  without  any  action  of 
the  parties,  and  errors  of  law  arising  on 
them  need  not  be  presented  by  exceptions. 
They  are  in  the  nature  of  a  special  ver- 
dict, as  to  which  the  inquiry  is  always 
open  in  the  reviewing  court,  whether, 
when  taken  in  connection  with  everything 
else  that  appears,  it  is  sufficient  to  sup- 
port the  judgment.  The  S.  C.  Tryon,  105 
U.    S.   267,   270,   26   L.   Ed.    1026. 

99.  Walnut  r.  Wade,  103  U.  S.  683,  688, 
26   L.    Ed.   526. 

1.  Insurance  Co.  v.  Sea,  21  Wall.  158. 
ICO,  22  L.  Ed.  511,  following  Norris  V. 
Jackson.  9  Wall.  125.  19  L.  Ed.  608;  Flan- 
ders 7'.  Tweed.  9  Wall.  425.  430.  19  L.  Ed. 
678;  Cutler  7'.  Huston,  158  U.  S.  423,  428, 
39  L.  Ed.  1040;  Insurance  Co.  7-.  Tweed, 
7  Wall.   44.  19  L.   Ed.  65. 

Where  there  is  no  bill  of  exceptions 
setting  forth  the  evidence,  no  error  of 
law  can  be  assigned  in  respect  to  any  find- 
ing of  fact  by  the  court.  Prentice  v. 
Stearns,  113  U.  S.  435,  445,  28  L-  Ed.  1057. 

When  a  case  is  heard,  upon  stipulation 
of  parties,  by  the  court  without  the  in- 
tervention of  a  jury,  and  its  special  find- 
in.gs  cover  all  the  disputed  questions  of 
fact,  and  there  is  in  the  record  no  bill  of 
exceptions  taken  to  the  rulings  in  the 
progres';  of  the  trial,  the  correctness  of 
the  findings  uj)on  the  evidence  is  not  open 
to  our  consideration.  The  question, 
therefore,  whether  the  facts  found  are 
sufficient  to  support  the  judgment,  is  the 
only  one  of  inquiry  here.  Preston  v. 
Prather.   137  U.  S.   604.   34  L.   Ed.   788. 

2.  Insurance  Co.  7'.  Sea.  21  Wall.  158, 
160,  22  L.  Ed.  511,  following  Martinton  v. 
Fairbanks.  112  U.  S.  670.  673.  28  L.  Ed. 
862:  Dirst  7'.  Morris.  14  Wall.  484.  20  L. 
Ed.  722;  Boogher  v.  Insurance  Co.,  103  U. 


APPEAL  AND  ERROR. 


1053 


testimony  for  review  any  more  than  in  a  trial  by  jury.3 

ccc.  Stipulations  of  Parties. — The  stipulation  of  counsel  as  to  the  evidence 
bearing  on  the  findings  of  facts  by  the  court,  cannot  be  noticed  by  this  court  to 
supply  an  omission  to  find  certain  facts> 

mm.  J^acaling  Submission  of  Cause. — The  court  is  authorized  by  §  954  of  the 
Revised  Statutes  to  allow,  at  any  time  during  the  trial,  amendments  in  the  plead- 
ings; and  where  it  has  done  so,  it  must,  in  its  discretion,  determine  whether  the 
submission  of  the  cause  ought  to  be  vacated.''  Where  the  plaintiff  is  permitted 
to  amend  his  declaration  so  as  to  avoid  a  variance  between  it  and  the  proofs. 
and  it  appears  that  neither  the  nature  nor  the  merits  of  the  issue  are  thereby 
changed,  the  defendant  is  not  entitled  to  an  order  setting  aside  the  submission 
of  the  cause  for  trial.^ 

nn.  Presumptions  on  Appeal. — \  judgment  of  the  circuit  court  in  a  case  tried 
by  it  without  the  intervention  of  a  jury  must  be  presumed  to  be  right  if  that  court 
had  jurisdiction  of  the  subject  matter  of  the  parties."  Where  a  request  for 
special  findings  is  refused,  this  court  will  assume  that  they  were  not  established 
by  the  evidence.*  So,  also,  where  the  case  is  tried  by  the  court  pursuant  to  a 
stipulation  between  the  parties  waiving  the  intervention  of  a  jury,  and  the  court 


S.  90,  26  L.  Ed.  310;  Lehnen  v.  Dickson, 
148  U.  S.  71.  72,  37  L.  Ed.  373;  Grayson 
T-.  Lynch,  163  U.  S.  468.  41  L.  Ed.  230;  St. 
Louis  V.  Western  Union  Tel.  Co.,  166  U. 
S.  388.  391,  41  L.  Ed.  1044:  Kearney  v. 
Case.  12  Wall.  275.  20  L.  Ed.  395;  Miller 
V.  Lrfe  Insurance  Co.,  12  Wall.  285,  20  L. 
Ed.  398;  Ins.  Co.  v.  Folsom,  18  Wall. 
237,  21  L-  Ed.  827;  Jennisons  v.  Leon- 
ard, 21  Wall.  302,  22  L.  Ed.  539; 
Tyng  V.  Grinnell,  92  U.  S.  467.  23  L.  Ed. 
733;  Insurance  Co.  v.  Boon,  95  U.  S.  117, 
24  L.  Ed.  395;  The  Abbotsford.  98  U.  S. 
440,  25  L.  Ed.  168;  Grayson  v.  Lynch.  163 
U.  S.  468,  472,  41  L.  Ed.  230 ;  Norris  v.  Jack- 
son, 9  Wall.  125,  128,  19  L.  Ed.  608,  citing 
Insurance  Co.  v.  Tweed,  7  Wall.  44,  19 
L.  Ed.  65;  Boardman  v.  TofTey.  117  U.  S. 
271,    29    L.    Ed.    898. 

Where  a  jury  is  waived  and  a  cause  sub- 
mitted to  the  court  under  the  provisions 
of  the  act  of  March  5th,  1865,  if  the  find- 
ing be  general,  only  such  rulings  of  the 
court  in  the  progress  of  the  trial  can  be 
reviewed  'as  are  presented  by  a  bill  of  ex- 
ceptions, or  as  may  arise  upon  the  plead- 
ings. Insurance  Co.  v.  Sea.  21  Wall.  158. 
22  L.  Ed.  511;  Flanders  v.  Tweed,  9  Wall. 
425,  430.  19  L.  Ed.  678;  Norris  v.  Jackson, 
9  Wall.    125.   19   L.    Ed.   608. 

3.  Norris  v.  Jackson,  9  Wall.  125.  128, 
19  L.  Ed.  608,  citing  Insurance  Co.  v. 
Tweed,  7  Wall.  44,  19  L.  Ed.  65;  Lehnen 
V.  Dickson.  148  U.  S.  71.  37  L.  Ed.  373; 
Grayson  r.  Lynch.  163  U.  S.  468.  41  L. 
Ed.  230;  St.  Louis  v.  Western  Union  Tel. 
Co..  166  U.  S.  388.  41  L.  Ed.  1044;  Betts 
V.  Mugridge.  154  U.  S.  644.  25  L.  Ed.  157; 
Insurance  Co.  v.  Sea.  21  Wall.  158.  159, 
22  L.  Ed.  511;  Martinton  v.  Fairbanks, 
112   U.    S.    670,   673,   28    L.   Ed.    862. 

Where  there  is  no  special  finding  of 
facts,  but  the  record  shows  simply  a  gen- 
eral finding,  inquiry  in  this  court  must  be 
limited  to  the  sufficiency  of  the  complaint, 
and  the  rulings,  if  any  be  preserved,  on 
questions   of  law   arising  during   the   trial. 


In  such  cases  a  bill  of  exceptions  cannot 
be  used  to  bring  up  the  whole  testimony 
for  review  any  more  than  in  a  trial  by 
jury.  Norris  v.  Jackson,  9  Wall.  125.  128, 
19  L.  Ed.  608;  Lehnen  v.  Dickson,  148  U. 
S.  71.  37  L.  Ed.  373;  St.  Louis  v.  Western 
Union  Tel.  Co.,  165  U.  S.  383,  390,  41  L. 
Ed.    1044. 

Where  a  jury  is  waived  and  a  cause  sub- 
mitted to  the  court  under  the  provisions 
of  the  act  of  March  5th,  1865.  a  bill  of  ex- 
ceptions cannot  be  used  to  bring  up  the 
whole  testimony  for  review  any  more 
than  in  a  trial  by  jury.  Insurance  Co.  v. 
Sea.  21  Wall.  158.  22  L.  Ed.  511;  Flan- 
ders 7'.  Tweed,  9  Wall.  425.  430,  19  L.  Ed. 
678;  Norris  v.  Jackson,  9  Wall.  125,  19  L. 
Ed.   608. 

Where  there  is  no  special  finding  of 
fnrts  b'^t  sim<-iN-  ^  ereneral  finding,  and 
the  rulings  of  the  court  for  which  error 
is  assigned  involve  a  determination  of 
facts,  if  the  evidence  which  de\'elops  the 
facts  is  not  brought  to  any  notice  by  ex- 
ception to  its  competency  or  relevancy,  no 
qne-tions  of  law  are  presented  for  our  re- 
view. Because  the  rule  in  such  case  is 
that  a  bill  of  exceptions  cannot  be  used  to 
bring  up  the  whole  testimony  for  review 
any  more  than  in  a  trial  by  jury.  St. 
Louis  V.  Western  Union  Tel.  Co.,  166  U. 
S.   388.    41    L.   Ed.    1044. 

4.  St'cul'tions  of  oarties. — Tvre.  etc., 
Co.  V.  Spalding.  116  U.  S.  541.  29  L.  Ed. 
720:  Fort  Worth  Citv  Co.  v.  Smith 
Bridge  Co..  151  U.  S.  294.  38  L.  Ed.  167. 

5.  Vacating  fubmis«'pn  of  can^se. — 
Pnmh^rger  v.  Terrv.  103  U.  S.  40,  26  L. 
Ed.   317. 

6.  Bamhcrorer  r.  Terry.  103  U.  S.  40, 
26   L.   Ed.   317. 

?.  Presumptions  on  appeal. — Llovd  v. 
McWilliam?.  137  U.   S.  576.'  34  L.   Ed.  78S. 

8.  dark  v.  Fredericks,  10a  U.  S.  4.  26 
L.   Ed.   938. 


1054 


APPEAL  AND  ERROR. 


finds  "the  issues  of  fact  raised  by  the  pleadings  in  favor  of  the  plaintiffs,"  this 
court  must  assume  that  the  facts  were  as  alleged  by  the  plaintiffs  in  the  plead- 
ings.^ 

oo.  Hearing  and  Detennination — aaa.  Affirtnance. — Where  a  case  comes  up 
to  this  court  for  a  review  of  the  findings  under  the  act  of  congress,  if  there  is 
no  stipulation  of  the  parties  or  any  finding  of  the  facts  in  the  case,  and  no  ques- 
tion upon  the  pleadings,  according  to  the  general  course  of  proceeding  in  like 
cases,  the  judgment   below   should  be   affirmed.^" 

bbb.  Dismissal  or  Reversal. — While  as  a  general  rule  where  there  is  no  stipu- 
lation, nor  any  finding  of  the  facts,  and  no  question  upon  the  pleadings,  the  judg- 
ment below  is  affirmed,  yet  there  are  cnses  which,  under  very  special  circum- 
stances, the  court  has  made  an  exception,  and  smiply  dismissed  the  writ  of 
error, ^^  or  has  reversed  the  judgment  below  for  a  mistrial,  and  remanded  it 
for  a  new  trial-^^ 


9.  Badger  v.  Cusimano,  130  U.  S.  39, 
40,   32   L.   Ed.   851. 

10.  Affirmance. — Flanders  v.  Tweed,  9 
Wall.  425,  19  L.  Ed.  678;  Pomeroy  v. 
Bank,  1  Wall.  592,  17  L-  Ed.  638,  distin- 
guishing Burr  v.  Des  Moines  Co.,  1  Wa-11. 
99,  17  L.  Ed.  561. 

in  Flanders  v.  Tweed,  9  Wall.  425.  432, 
19  L.  Ed.  678,  Mr.  Ti"^ti>e  Ne^  i-  ■  '1 
the   passage   just    cited   from    the    opinion 

of    Chiet    JubLice     ii^u^j     .!■     v. ^ 

Boyreau.  and  said  that  when  a  trial  by 
jury  had  been  waived,  but  there  was  no 
stipulation  in  writing,  no  finding  of  the 
facts,  and  no  question  upon  the  plead- 
ings, the  judgment  must,  according  to  the 
course  of  proceeding  in  previous  cases, 
be  affirmed,  unless  under  very  special  cir- 
cumstances this  court  otherwise  ordered. 
Bond  V.  Dustin,  112  U.  S.  604,  607,  38  L. 
Ed.    835. 

In  a  case  where  there  was  no  stipula- 
tion filed  for  the  waiver  of  a  jury,  and 
where  the  judge  had  filed  his  "statement 
of  facts"  three  months  after  the  date  of 
the  judgment  rendered — which  statement, 
so  irregularly  filed,  the  court  regarded  as 
a  nullity — and  no  question  of  law  was  to 
be  considered  as  properly  raised  on  the 
pleading,  the  court  stated  that,  according 
to  the  general  course  of  proceeding  in 
former  like  cases,  the  judgment  below 
should  be  affirmed.  Flanders  r.  Tweed, 
9  Wall.  425,  19  L.  Ed.  678. 

Where  in  a  case  tried  under  the  act  of 
congress  of  March  3d,  1865,  13  Stat,  at 
Large  501,  authorizing  the  circuit  courts  of 
the  United  States,  on  written  stipulation 
of  the  parties  or  their  attorneys  filed,  to 
try  issues  of  fact  in  civil  cases  without  the 
intervention  of  a  jury,  owing  to  the  inan- 
ner  in  which  things  have  been  done  be- 
low, presents  a  case  as  of  a  judgment 
rendered  on  a  general  verdict  in  favor  of 
the  defendant  in  error,  and  does  not  pre- 
sent any  question  arising  on  the  plead- 
ings, nor  any  ruling  against  the  plaintiff 
in  error,  the  judgment  will  be  affirmed. 
Bethell  v.  Mathews.  13  Wall.  1.  20  L.  Ed. 
556. 

A  judgment  affirmed  because  there   was 


no  question  of  law  which  this  court  could 
consider,  in  a  case  where  a  trial  by  jury 
was  waived  in  writing  and  the  case  sub- 
mitted to  the  court,  where  the  finding  of 
the  court  was  general;  where  the  bill  of 
exceptions  embodied  all  the  testimony  in 
the  case,  but  where  no  exception  was 
taken  to  the  admission  or  rejection  of 
testimony  or  to  any  ruling  of  the  court  on 
the  trial,  and  where  no  question  was 
,-  •■  '  'n  tb'^  rase  on  the  pleadings.  Town 
of  Ohio  V.  Marcy,  18  Wall.  552,  21  h.  Ed. 
bi.;. 

11.  Dismissal  or  reversal. — Burr  v.  Des 
Moines,  etc.,  Co.,  1  Wall.  99,  17  L.  Ed.  651, 
cited  in  Flanders  v.  Tweed,  9  Wall.  425, 
431,    19    L.    Ed.    678. 

12.  Graham  v.  Bayne,  18  How.  60,  15 
L.  Ed.  265.  See,  also.  Guild  v.  Frontin, 
18  How.  135,  15  L.  Ed.  290;  Flanders  v. 
Tweed,  9  Wall.  425,  431,  19  L.  Ed.  578, 
followed  in  Flanders  v.  Tweed,  154  U.  S. 
569,  19  L.  Ed.  680. 

Where  a  cause  is  submitted  to  the  cir- 
cuit court  without  the  intervention  of  the 
jury,  and  there  is  a  special  finding  of  facts 
which  embraces  only  a  part  of  the  issues, 
the  judgment  will  be  reversed  and  a  new 
trial  awarded.  Ex  parte  French,  91  U.  S. 
423,  23  L.  Ed.  249;  Exchange  Nat.  Bankz/. 
Third  Nat.  Bank,  112  U.  S.  276,  28  L.  Ed. 
722. 

In  Flanders  v.  Tweed,  9  Wall.  425,  19 
L.  Ed.  678,  it  was  apparent  that  the  par- 
ties below  supposed  that  they  had  made 
up  a  case,  according  to  the  practice  in 
Louisiana,  from  the  finding  of  the  facts 
by  the  court,  that  would  entitle  them  to 
a  re-examination  of  it  here;  but  one  not 
having  been  made  up  by  the  court  and 
properly  filed  according  to  the  require- 
ments of  the  statute,  so  that,  from  that 
cause,  the  case,  which  it  was  meant  by 
both  court  and  parties  to  get  here,  could 
not  be  properly  passed  upon;  it  was  held, 
that  the  judgment  under  the  circum- 
stances would  not  be  affirmed  according 
to  the  general  course  in  like  proceedings, 
but  would  be  reversed  for  mistrial,  and 
remanded  tor  a  new  trial.  Citing  Graham 
r     Bayne,    18    How.    60,   15   L.    Ed.    265, 


APPEAL  AND  ERROR.  1055 

ccc.  Rendering  or  Ordering  Final  Judgment. — Where  a  case  is  tried  by  the 
circuit  court,  without  the  intervention  of  a  jury,  and  the  circuit  court  makes  a 
-special  finding  of  facts,  and  such  special  finding  covers  all  the  issues  raised  by 
the  pleadings,  this  court,  upon  reversing  the  judgment  of  the  circuit  court,  has 
ihe  power,  under  §  701  of  the  Revised  Statutes,  to  direct  such  judgment  to  be 
<?ntered  for  the  defendant  as  the  special  finding  requires,  instead  of  awarding  a 
new  trial.  But  where  the  special  finding  embraces  only  a  part  of  the  issues,  a 
(lififerent  rule  prevails. i-"* 

(3)  In  Actions  against  the  Government. — In  General. — Under  the  act  of 
March  3,  1887,  c.  359,  entitled  "An  act  to  provide  for  the  bringing  of  suits  against 
the  government  of  the  United  States,"  and  commonly  known  as  the  Tucker  Act, 
a  judgmejit  of  a  district  or  circuit  court  of  the  United  States  in  an  action  at  law 
brought  against  the  government,  will  be  re-examined  here  only  when  the  record 
contains  a  specific  finding  of  facts  with  the  conclusions  of  law  thereon.  In  such 
cases,  this  court  will  only  inquire  whether  the  judgment  below  is  supported  by 
the  facts  thus  found.  And  it  was  the  purpose  of  congress  to  require  like 
specific  findings  or  statements  of  fact  and  conclusions  of  law  in  cases  in  equity 
and  in  admiralty  brought  under  that  act  in  the  district  and  circuit  courts  of 
the  Unitefl  States,  and  to  restrict  our  inquiry  in  such  cases,  as  in  actions  at  law, 
to  the  sufficiency  of  the  facts  so  found  or  stated  to  support  the  final  judgment.^* 

Judgment  ^n.  Demurrer. — Under  the  act  of  March  3,  1887,  c.  359,  giving  the 
district  and  circuit  courts  concurrent  jurisdiction  with  the  court  of  claims,  and 
providing  in  §  7  that  "it  shall  be  the  duty  of  the  court  to  cause  a  written  opinion 
to  be  filed  in  the  cause,  setting  forth  the  specific  findings  by  the  court  of  the  facts 
therein,  and  the  conclusions  of  the  court  upon  all  questions  of  law  involved  in 
the  case,  and  to  render  judgment  thereon.  If  the  suit  be  in  equity  or  admiralty, 
the  court  shall  proceed  with  the  same  according  to  the  rules  of  such  courts,"  it 
is  held,  that  where  the  only  judgment  entered,  and  upon  which  the  writ  of  er- 
ror is  sued  out,  appears  to  have  been  given  on  a  demurrer,  which  presents  an  is- 
sue of  law  only,  upon  which  the  findings  of  fact  can  have  no  possible  bearing  or 
effect,  it  would  seem  to  follow  that  the  findings  of  facts  cannot  be  taken  into 
consideration  by  this  court  upon  the  record. ^^ 

Where  the  special  findings  of  fact  in  an  action  to  recover  duties  paid  un- 
der protest  on  importation  do  not  show  what  the  collector  charges  the  plaintiff; 

13.    Rendering    or   ordering   final   judg-  special  verdict  of  the  jury,  this  court  will 

ment. — Fort   Scott  v.    Hickman,   112   U.   S.  not  award  a   new  trial  upon   reversal,   but 

150,   28   L.   Ed.   636,   citing   National   Bank  will  remand  the  cause  to  the  circuit  court 

V.   Insurance   Co.,  95  U.   S.   673,  679,  24  L-  with  directions  to  enter  judgment  for  the 

Ed.    563;    Fairfield   v.    County   of    Gallatin.  defendants.     Allen  v.  St.   Louis   Bank,  120 

100    U.    S.    47,    25    L.    Ed.    544;    Wright    v.  U.   S.  20,  30  L.   Ed.   513.  citing   Fort   Scott 

Blakeslee,   101   U.   S.    174,   25   L.    Ed.    1048;  v.   Hickman,  112  U.   S.  150,  28  L.   Ed.  636; 

People's    Bank   v.    National    Bank,    101    U.  Pullman   Car   Co.  v.   Metropolitan   R.   Co., 

S.  181.  25  L.   Ed.  907;   Warnock  v.  Davis,  157  U.  S.  94.  110,  39  L.  Ed.  632. 

104   U.   S.   775,   26   L.    Ed.   924;    Lincoln  v.  Where,    in     a      suit      on     a     negotiable 

French,    105    U.    S.    614,    26    L.    Ed.    1189;  security,   the  defendant  has   shown  strong 

Ottowa  V.  Carey,  108  U.  S.  110,  27  L.  Ed.  circumstances    of   fraud    in    the    origin    of 

669;    Kirkbride    v.    Lafayette    County.    108  the   instrument,  and  the  case  is  submitted 

U.  S.  208,  27  L.  Ed.  705;  Retzer  v.  Wood.  to   the   court   without   a   jury    which    finds 

109   U.    S.    185,    27    L.     Ed.     900;      Canada  the    facts    constituting    such     fraud,     and 

Southern    R.    Co.    v.    Gebhard,    109    U.    S.  does  not  find  that  the  plaintiff  gave  value 

527,    27    L.    Ed.    1020;    East    St.    Louis    v.  for   the   paper,   the   judgment   is   rightfully 

Zebley,  110  U.   S.   321,  28   L.   Ed.   162;   Ex  given    for   the    defendant.      Smith     v.     Sac 

parte.  French,  91  U.  S.  423,  23  L.  Ed.  249;  County,    11   Wall.   139,  20   L.   Ed.   102. 

Meyer  v.  Richards,   163  U.  S.   385,  415,  41  14.    In  actions  against  the  government 

L.    Ed.    199;    Cleveland    Rolling     Mill      v.  —Chase   r.   United    States.    155    U.   S.   489, 

Rhodes,    121    U.    S.    255.    30    L.    Ed.    920;  500,  38  L.  Ed.  234;  United  States  v.  King. 

Stanley   v.    Schwalby.    1-62    U.    S.    255,    282,  164  U.  S-  703,  41   L.   Ed.  1182;   McCarty  v. 

40    L.    Ed.    960.  United    States,    205    U.    S.    537,    51    L-    Ed. 

Where  all  the  facts   of  the  case   are  as-  920. 

certained    by    the    special    finding    of    the  15.    Hill  v.  United  States,  149  U.  S.  593, 

court    below,    as    they    would    be    by    the  37    L.   Ed.   862. 


1056 


APPEAL  AND  ERROR- 


nor  sufficiently  describe  the  articles  imported ;  nor  does  it  appear  from  the  record 
under  what  provisions  of  the  tariff  act  of  March  3,  1883,  22  Stat.  488,  c.  121,  the 
parties  claimed  respectively,  the  facts  set  forth  are  not  sufficient  to  support  the 
judgment.  Nor  can  the  opinion  of  the  court  be  resorted  to  to  help  out  the  find- 
ings. ^^ 

(4)  Construction  of  Findings. — The  supreme  court  will  not  so  construe  find- 
ings of  facts  by  trial  courts  as  to  render  the  result  arrived  at  by  the  court  below 
erroneous,  when  another  construction,  much  more  reasonable  and  natural,  may 
be  given  it,  and  the  judgment  thus  rendered  valid. ^" 

c.  Reznew  of  Judgments  founded  upon  Agreed  Statement  of  Facts — (1)  In 
General. — Decisions  of  this  court  establish  the  rule  that  writs  of  error  will  lie 
where  the  judgment  in  the  court  below  was  founded  upon  an  agreed  statement  of 
facts,  as  well  as  when  founded  upon  the  verdict  of  a  jury.^^  And  since  the  pas- 
sage of  the  Revised  Statutes,  §§  649  and  700,  as  before,  a  judgment  upon  an 
agreed  statement  of  facts  or  case  stated,  signed  by  the  parties  or  their  counsel, 
and  entered  of  record,  leaving  no  question  of  fact  to  be  tried,  and  presenting 
nothing  but  a  question  of  law,  may  be  reviewed  on  error.^^ 


16.  Saltonstall  v.  Birtwell,  150  U.  S. 
417,  37  L.  Ed.  1128.  citing  Dickinson  v. 
Planters'  Bank,  16  Wall.  250,  21  L.  Ed. 
278. 

17.  Construction  of  findings. — United 
States  7'.  Andrews,  179  U.  S.  96,  45  L.  Ed. 
105, 

A  finding  of  the  court  of  claims  that 
"the  property  of  the  claimant  was  taken 
and  carried  away  while  he  was  traveling 
in  an  Indian  reservation,  over  the  Chisolm 
trail,  the  same  being  an  established  trail 
en  route  from  Texas  to  a  market  in  Kan- 
.sfls"  is  equivalent  to  a  Ending  thr't  the 
trail  was  a  lawfully  established  trail  per- 
mitted by  the  laws  of  the  United  States. 
An  established  trail  in  this  case,  means  a 
lawfully  established  trail  and  the  supreme 
court  must  presume  the  court  below  so 
intended.  United  States  v.  Andrews,  179 
U.   S.   96.  45  L.  Ed.   105. 

18.  Reviev\^  of  judgments  founded  upon 
agreed  statement  of  facts  in  general. — 
United  States  v.  Eliason.  16  Pet.  291,  10 
L.  Ed.  968;  Stimpson  v.  Baltimore,  etc., 
R.  Co.,  10  How.  ,329,  13  L.  Ed.  441;  Gra- 
ham V.  Bayne,  18  How.  60,  15  L.  Ed.  265; 
Fomeroy  v.  Bank  of  Indiana,  1  Wall.  592, 
%Q2.   17  L.   Ed.  638. 

The  practice  of  bringing  cases  up  to 
this  court  upon  an  agreed  state  of  facts 
has  been  sanctioned  and  is  now  pro- 
nounced to  be  correct.  "This  objection 
to  the  jurisdiction  of  the  appellate  court 
upon  a  case  agreed  between  the  parties 
in  the  court  below,  had  its  origin,  no 
doubt,  in  the  practice  in  the  English 
courts,  by  which  we  are  told  that  the  ap- 
pellate tribunal  will  not  take  recognizance 
of  such  a  ca'^e.  as  it  will  upon  one  st.-»nd- 
ins:  on  exceptions,  or  on  a  special  verdict." 
Stimpson  v.  Baltimore,  etc.,  R.  Co..  10 
How.  329,  13  L.  Ed.  441;  Pomeroy  v.  Bank 
of  Indiana,  1  Wall.  592,  602,  17  L.  Ed. 
638. 

Where  the  facts  are  without  dispute, 
and   agreed   between   the   parties,    a   state- 


ment of  the  same  may  be  drawn  up  and 
entered  on  the  record,  and  submitted  di- 
rectly to  the  court,  for  its  decision,  with- 
out any  intervention  of  a  jury;  or  a  gen- 
eral verdict  may  be  taken,  subject  to  the 
opinion  of  the  court  upon  the  facts  so 
agreed;  and  in  either  case,  the  aggrieved 
partv  mav  bring  error  after  final  judg- 
ment, and  have  the  questions  of  law,  aris- 
ing upon  the  facts  thus  spread  upon  the 
record,  re-examined,  as  in  the  case  of  a 
special  verdict.  Faw  v.  Roberdeau,  3 
Cranch  174,  2  L.  Ed.  402;  Brent  v.  Chap- 
man, 5  Cranch  358,  3  L.  Ed.  125;  Suydam 
V.  Williamson.  20  How.  427,  15  L.  Ed. 
978,    9P0. 

19.  Supervisors  7".  Kennicott.  103  U.  S. 
554.  26  L.  Ed.  486;  United  States  v. 
Eliason.  16  Pet.  391,  10  L.  Ed.  968;  Bu^rr 
v.  Des  Moines,  etc.,  Co.,  1  Wail.  99,  17  L. 
Ed.  561;  Campbell  v.  Bovreau.  21  How.  22.3, 

15  L.  Ed.  96;  Bond  v.  Dustin,  112  U.  S. 
604.   607,   28    L.    Ed.   835. 

Even  before  the  act  of  1865,  c.  86,  §  4 
(13  Stat.  501,  reproduced  in  §  649  and  700. 
Pev.  Stat.),  it  was  always  held  that  a 
judgment  on  agreed  facts  spread  at  large 
on  the  record  could  be  reviewed  here  on 
a  writ  of  error.     United  States  v.  Eliason. 

16  Pet.  291,  10  L.  Ed.  968;  Stimpson  v. 
Baltimore,  etc.,  R.  Co.,  10  How.  329,  13 
L.  Ed.  441;  Graham  v.  Bayne.  18  How.  60, 
15  L.  Ed.  265;  Suydam  v.  Williamson.  20 
How.  427,  15  L.  Ed.  978;  Campbell  v. 
Bovreau.  21  How.  223.  15  L.  Ed.  96;  Burr 
V.  Des  Moines,  etc.,  Co.,  1  Wall.  99. 17  L.  Ed. 
561.  Such  a  statement  was  considered  to 
be  equivalent  to  a  special  verdict  and  to 
present  qresticns  of  law  alone  for  the 
consideration  of  the  court.  Tt  is  mani- 
fest that  the  act  of  1865  was  not  intended 
to  interfere  with  this  practice.  The  evi- 
dent object  of  that  legislation  was  to 
give  special  findings  the  same  effect  for 
the  purposes  of  a  writ  of  error  as  a  spe- 
cial verdict  or  an  agreed  case.  Super- 
visors V.  Kennicott,  103  U.  S.  554,  556,  26 
L.    Ed.   486. 


APPEAL  AND  ERROR. 


1057 


(2)  Nature  of  Agreed  Case. — A  statement  of  facts  by  the  parties,  like  a  find- 
ng  of  facts  by  the  circuit  court,  is  strictly  analogous  to  a  special  verdict. 20 

(3)  Form.  Sufficiency  and  Contents  of  Agreed  Statement. — The  agreed  state- 
ment of  facts  on  which  this  court  will  inquire,  if  there  is  or  is  not  error  in  the 

-ipplication  of  the  law  to  them,  is  a  statement  of  the  ultimate  facts  or  proposi- 
ions  which  the  evidence  is  intended  to  establish,  and  not  the  evidence  on  which 
'hose  ultimate  facts  are  supposed  to  rest.  The  statement  must  be  sufficient  in 
tself,  without  inferences  or  comparisons,  or  balancing  of  testimony,  or  weigh- 
ing evidence,  to  justify  the  application  of  the  legal  principles  which  must  deter- 
mine the  case.  It  must  leave  none  of  the  functions  of  a  jury  to  be  discharged  by 
this  court,  but  must  have  all  the  sufficiency,  fullness  and  perspicuity  of  a  special 
verdict.  If  it  requires  of  the  court  to  weigh  conflicting  testimony,  or  to  balance 
admitted  facts,  and  deduce  from  these  the  propositions  of  fact  on  which  alone  a 
legal  conclusion  can  rest,  then  it  is  not  such  a  statement  as  this  court  can  act 
upon. 21  This  court  cannot  give  judgment  as  on  an  agreed  statement  of 
facts  or  case  stated,  except  where  facts,  and  facts  only,  are  stated.  If 
there  be  question  as  to  the  competency  or  effect  of  evidence,  or  any  rulings  of 
the  court  below  upon  evidence  to  be  examined,  the  court  cannot  enter  Jain  the 
case  as  an  agreed  statement. 2*-  Agreed  statements  rest  upon  the  consent  of  the 
parties,  and,  consequently,  the  action  of  the  revising  tribunal  must  be  confined 
to  the  agreed  facts,  and  the  facts  cannot  be  said  to  be  agreed  while  the  parties  are 
at  issue  as  to  the  admissibility  or  competency  of  the  evidence. ^3 

(4)  The  Record — Necessity  for  Bill  of  Exceptions. — Error  will  lie  to  an 
agreed  statement  of  facts  which,  in  some  manner  in  the  court  below,  are  made 
a  part  of  the  record  of  the  case.  The  reason  that  error  did  not  lie  on  such  a  state- 
ment under  the  English  practice  as  has  been  laid  down  by  Sir  William  Rlack- 
stone  in  his  Commentaries,  and  by  Stephen  in  his  Treaties  on  Pleadings,  is  that. 
ui  the  English  practice,  the  agreed  statement  was  not  like  a  special  verdict  en- 
tered on  the  record,  and  the  appellate  court  could  not  therefore  notice  it.  But 
in  the  practice  of  our  courts  such  agreements  are  signed  by  the  counsel,  and 
spread  upon  the  record  at  large  as  part  thereof.  And  thus  they  become  technic- 
ally a  part  of  the  record,  into  which  the  appellate  court  look,  with  the  other  parts 


20.  Nature  of  agreed  case. — Burr  v. 
Des  Moines,  etc.,  Co.,  1  Wall.  99. 17  L.  Ed. 
"161;  Raimond  v.  Terrebonne  Parish,  132 
U.  S.  192,  32  L.  Ed.  309;  Davenport  v. 
Paris,  136  U.  S.  580,  33  L.   Ed.   ,548. 

By  the  settled  construction  of  the  acts 
of  congress  defining  the  appellate  juris- 
diction of  this  court,  either  a  statement  of 
facts  by  the  parties,  or  a  finding  of  facts 
hy  the  circuit  court,  is  strictly  analogous 
to  a  special  verdict,  and  must  state  the 
ultimate  facts  of  the  case,  presenting 
questions  of  law  only,  and  not  be  a  recital 
of  evidence  or  of  circumstances,  which 
may  tend  to  prove  the  ultimate  facts,  or 
from  which  they  may  be  inferred.  Burr 
V.  Des  Moines  Co..  1  Wall.  99.  17  E.  Ed. 
561;  Norris  v.  Jackson,  9  ^^'all.  125.  19  L. 
Ed.  608;  Martinton  7'.  Fairbanks,  112  U. 
S.  670,  28  L.  Ed.  862;  Raimond  v.  Terre- 
bonne Parrish,  132  U.  S.  192.  194.  32  L- 
Ed.  309;  Davenport  v.  Paris,  136  U.  S. 
580.   34    L.    Ed.   548. 

21.  Form,  sufficiency  and  contents  of 
agreed  statement. — Burr  z\  Des  Moines, 
etc.,  Co.,  1  Wall.  99,  102, 17  L.  Ed.  561.  citing 
Pennock  v.  Dialogue,  2  Pet.  1.  7  L.  Ed. 
327;  United  States  v.  Eliason,  16  Pet.  291, 

1  U  S  Enc-67 


300.  10  L.  Ed.  968;  United  States  v.  King, 
7  How.  833.  844,  12  L.  Ed.  934;  Bond  v. 
Brown.  12  How.  254,  256,  13  L.  Ed.  977; 
Weems  v.  George.  13  How.  190,  14  L.  Ed. 
108;  Arthurs  v.  Hart,  17  How.  6,  7.  15  L. 
Ed.  30;  Graham  v.  Bayne,  18  How.  60,  15 
L.  Ed.  265;  Raimond  v.  Terrebonne 
Parish,  132  U.  S.  192.  32  L.  Ed.  309;  Glenn 
V.   Fant.   134  U.   S.  398.  33  L.    Ed.  969. 

.Although  this  court  will  give  judgment, 
on  error,  upon  an  agreed  statement  of 
facts  or  case  stated,  if  it  be  signed  by 
counsel  and  spread  upon  the  record  at 
large,  as  part  thereof,  yet  it  will  not  do 
so.  except  upon  that  which  is  profession- 
ally and  properly  known  as  a  case  stated; 
that  is  to  say,  upon  a  case  which  states 
facts  simply;  not  one  which  presents,  in- 
stead of  facts,  evidence  from  which  facts 
may  or  may  not  be  inferred.  Burr  v.  Des 
Moines,  etc.,  Co.,  1  Wall.  99,  17  L.  Ed.  561. 

22.  Pomeroy  7'.  Bank  of  Indiana,  1  Wall. 
592.  17  L.  Ed.  638,  affirming  Burr  v.  Des 
Moines,  etc.,  Co.,  1  Wall.  99,  17  L.  Ed. 
561. 

23.  Pomeroy  7'.  Bank  of  Indiana,  1  Wall. 
592,   603,  17   L.    Ed.   638. 


ro58 


APPEAL  AND  ERROR. 


of  it,  to  ascertain  if  there  be  error. ^^    Where  the  circuit  court  gives  judgment  for 
the  defendants  on  an  agreed  case,  and  the  record  sent  here,  con.ains  only  th'.. 
agreed  statement  of  facts  and  the  judgment  of  the  circuit  court,  with  the  petitioi 
for  the  writ  of  error  and  its  allowance,  the  cause  will  be  dismissed  for  incomplete- 
ness of  the  record. 25 

d.  Review  of  Judgments  Founded   upon  Special   Verdict'^''' — (1)   In   General 
— Judgments  of  the  circuit  court  may  be  revised  here  upon  a  writ  of  error,  ia 
cases  where  they  are  founded  upon  a  special  verdict,  or  upon  demurrer  to  evi- 
dence. ^^ 


24.  The  record — necessity  for  bill  of 
exceptions. — Burr  v.  Des  Moines,  etc.,  Co., 
1  Wall.  99,  17  L.  Ed.  561 ;  Graham  v.  Bayne, 
18  How.  60,  15  L.  Ed.  265;  Pennock  v. 
Dialogue,  2  Pet.  1,  7  L.  Ed.  327;  United 
States  V.  EHason,  16  Pet.  291,  300.  10  L. 
Ed.  968;  United  States  v.  King,  7  How. 
833,  844,  12  L.  Ed.  934;  Bond  v.  Brown, 
12  How.  254,  256.  13  L.  Ed.  977;  Weems 
V.  George,  13  How.  190,  14  L.  Ed.  108; 
Arthurs  v.  Hart,  17  How.  6,  7,  15  L. 
Ed.   30. 

A  judgment  of  a  circuit  court  upon  a 
general  statement  of  facts  between  the 
parties,  may  be  reviewed  by  this  court 
upon  a  writ  of  error.  The  objection  to 
the  jurisdiction  of  the  appellate  court 
upon  a  case  agreed  upon  between  the  par- 
ties in  the  court  below,  had  its  origin,  no 
doubt,  in  the  practice  of  the  English 
courts,  by  which  we  are  told  that  the  ap- 
pellate tribunal  will  not  take  cognizance 
of  such  a  case,  as  it  will  upon  one  stand- 
ing on  exceptions,  or  on  special  verdict. 
But  the  reason  why,  according  to  the 
practice  in  English  courts,  a  writ  of  error 
will  not  be  allowed  after  a  case  agreed,  is 
this,  and  only  this,  that  in  those  courts 
the  case  agreed  never  appeared  upon  or 
was  made  a  part  of  the  record,  and  there- 
fore there  is  no  ground  of  error  set  forth, 
upon  which  an  appellate  and  revising 
tribunal  can  act.  In  the  language  of  Jus- 
tice Blackstone,  nothing  appears  upon  the 
record  but  the  general  verdict,  whereby 
the  parties  are  precluded  from  the  ben- 
efit of  a  writ  of  error.  Stimpson  v.  Balti- 
more, etc.,  R.  Co.,  10  How.  329,  13  L.  Ed. 
441;  Fau  v.  Robereau,  3  Cranch  174,  2 
L.  Ed.  402;  Tucker  v.  Oxley,  5  Cranch 
34,  3  L.  Ed.  29;  Kennedy  v.  Brent,  6 
Cranch  187,  3  L.  Ed.  194;  Brent  v.  Chap- 
man, 5  Cranch  358.  3  L.  Ed.  125;  Shank- 
land  V.  Washington,  5  Pet.  390,  8  L. 
Ed.  166;  United  States  v.  Eliason,  16 
Pet.  291,  10  L.  Ed.  968;  Inglee  v. 
Coolidge,  2  Wheat.  :!63,.  4  L.  Ed.  261; 
Miller  V.  Nicholas,  4  Wheat.  311,  4  L.  Ed. 
578;  Pomeroy  v.  Bank  of  Indiana,  1  Wall. 
592,  602,  17  L.  Ed.  638. 

A  case  cannot  be  brought  by  writ  of 
error  from  a  circuit  court  of  the  United 
States,  upon  an  agreed  statement  of  facts, 
without  any  of  the  proceedings  of  the 
court  below  being  in  the  record.  Keene 
V.  Whittaker,  13  Pet.  459.  10  L.  Ed.  246. 

A  case  submitted  to  the  circuit  court 
for    decision    on    an    agreed    statement    of 


law    and    facts,    cannot    be    reviewed   here 
on  a  writ  of  error  where  the  legal  points 
have   not   been   raised  by  a   bill   of   excep 
tions  in  the  circuit  court.     Minor  v.  Tillot- 
son,  2   How.  392.   11   L.   Ed.  312. 

In  the  District  of  Columbia,  a  writ  of 
error  lies  to  the  decision  of  the  circuit 
court,  upon  an  agreed  case.  The  same 
principle  has  been  applied  in  cases 
brought  before  the  supreme  court  from 
other  parts  of  the  United  States  because, 
as  the  court  said:  "At  the  period  of  the 
cession,  the  practice  is  believed  to  have 
been  well  settled,  both  in  Virginia  and 
Maryland,  that  in  trials  at  law,  where  spe- 
cial or  agreed  cases  have  been  made,  they 
have  been  signed  by  the  counsel,  as  repre- 
senting their  clients,  and  spread  at  large 
upon  the  record,  as  a  part  thereof;  and 
as  constituting  the  only  legitimate  ground 
for  the  action  of  the  court,  and  as  fur- 
nishing the  regular  and  proper  test  to  be 
applied  by  an  appellate  or  revising 
tribunal  to  this  action.  The  practice  is 
believed  to  be  the  same  at  this  day;  it 
has  been  repeatedly  recognized  by  the  de- 
cisions of  this  court;  and,  if  ever  hereto- 
fore seriously  questioned,  has  never  been 
overruled."  United  States  v.  EHason,  1ft 
Pet.  291.  301,  10  L.  Ed.  968;  Fau  v.  Rob- 
erdeau.  3  Cranch  174,  2  L.  Hd.  402;  Tucker 
V.  Oxle5^  5  Cranch  34,  3  L.  Ed.  29;  Ken- 
nedy I'.  Brent,  6  Cranch  187,  3  L.  Ed.  194; 
Brent  f.  Chapman,  5  Cranch  358,  3  L.  Ed. 
125;  Shankland  v.  Washington,  5  Pet.  390, 
8  L.  Ed.  166;  Inglee  v.  Coolidge,  2  Wheat. 
363,  4  L.  Ed.  261;  Miller  r.  Nichols,  4 
Wheat.  311,  4  L.   Ed.  578. 

Dismissal. — Where  a  cause  came  on  to 
be  heard  on  the  transcript  of  the  record 
from  the  circuit  court  of  the  United  States 
for  the  eastern  district  of  Louisiana,  and  it 
appeared,  upon  an  inspection  of  the  papers 
filed  in  the  case,  that  it  had  been  brought 
here  upon  an  agreed  statement  of  facts, 
without  any  of  the  proceedings  in  the 
court  below  being  in  the  record,  it 
was  adjudged  and  ordered  by  this 
court  that  this  cause  be,  and  the  same  is, 
herebv  dismissed  with  costs.  Keene  v. 
Whitt'aker,   13   Pet.   4.-)9,    10    L.    Ed.   246. 

25.  Keene  v.  Whittaker,  13  Pet.  459,  10 
L.  Ed.  246;  Curtis  v.  Petitpain.  18  How. 
109.  15  L.   Ed.   280. 

26.  See   the   title   VERDICT. 

27.  Review  of  judgments  founded  upon 
special  verdicts. — 4  Chitty's  Gen.  Prac. 
7;   2   Inst.   427;   Suydam  v.  Williamson,  20 


APPEAL  AND  ERROR. 


1059 


(2)  Definition  and  Nature. — A  special  verdict  is  where  the  jury  find  the  facts 
-f  the  case,  and  refer  the  decision  of  the  cause  upon  those  facts  to  the  court, 
with  a  conditional  conclusion,  that  if  the  court  should  be  of  opinion,  upon  the 
whole  matter  thus  found,  that  the  plaintiff  has  a  good  cause  of  action,  they  then 
find  for  the  plaintiff ;  and  if  otherwise,  they  then  find  for  the  defendant ;  and  k 
is  of  the  very  essence  of  a  special  verdict,  that  the  jury  should  find  the  facts  on 
which  the  court  is  to  pronounce  the  judgment  according  to  law,  and  the  court,  in 
giving  judgment,  is  confined  to  the  facts  so  found. -^ 

(3)  Form  and  Requisites — aa.  In  General. — Whether  the  foundation  of  the 
judgment  be  a  statement  of  facts,  a  special  verdict,  or  a  special  finding,  the  state- 
ment must  be  sufficient  in  itself,  without  inferences  or  comparisons  or  balancing 
of  testimony  or  weighing  evidence,  to  justify  the  application  of  legal  principles 
which  must  determine  the  case.^^     Repeated  decisions  of  this  court  have  deter- 


How.  427,  435,  15  L.  Ed.  978;  Pomeroy  v. 
Bank  of  Indiana,  1  Wall.  592.  602,  17  L. 
Ed.    638. 

In  the  case  of  a  special  verdict,  the 
question  is  presented  as  it  would  be  if 
tried  by  a  jury,  whether  the  facts  thus 
found  require  a  judgment  for  plaintiff  or 
<}efendant;  and  this  being  matter  of  law, 
the  ruling  of  the  court  on  it  can  be  re- 
viewed in  this  court  on  that  record.  Nor- 
ris  V.  Jackson,  9  Wall.  125,  127,  19  L.  Ed. 
608. 

"Although  the  finding  of  the  jury  is  not 
in  the  usual  form  of  a  special  verdict,  but 
the  jurj'  makes  certain  findings,  and  the 
statement  is  that  the  court  reserves  cer- 
tain points  of  law,  if  the  circuit  court,  and 
the  counsel  for  both  parties  in  that  court, 
appear  to  have  treated  the  finding  as  not 
amounting  to  either  a  special  verdict  or 
an  agreed  statement  of  facts,  this  court 
will  overlook  the  irregularity  and  con- 
sider the  case  on  its  merits."  Hartranft  v. 
Wiegmann.  121  U.  S.  609,  .30  L.  Ed.  1012. 
citing  Mumford  v.  Wardwell.  6  Wall.  423, 
18   L.    Ed.   756. 

28.  Definition  and  nature. — Suydam  v. 
Williamson,  20  How.  427.  432,  15  L.  Ed. 
<>78;  3  Bl.  Com.,  p.  377;  Collins  v.  Riley, 
104  U.  S.  322,  324,  26  L.  Ed.  752. 

Strictly  speaking,  a  special  verdict  is 
where  the  jury  find  the  facts  of  the  case 
and  refer  the  decision  of  the  cause  to 
the  court,  with  a  conditional  conclusion, 
that  if  the  court  is  of  the  opinion,  upon 
the  whole  matter  as  found,  that  the  plain- 
tifif  is  entitled  to  recover,  then  the  jury 
find  for  the  plaintiff;  but  if  otherwise, 
then  they  find  for  the  defendant.  Mum- 
ford  V.  Warden,  6  Wall.  423,  432,  18  L. 
Ed.  756;  Suydam  v.  Williamson,  20  How. 
432,  15  L.  Ed.  978;  3  Blackstone's  Com- 
mentaries 377.  Insurance  Co.  t.  Piaggio, 
16  Wall.  378,  387.  21   L.   Ed.   358. 

29.  Form  and  requisites  in  general. — 
United  States  v.  Adams.  6  Wall.  101,  Ul. 
18  L.  Ed.  792;  Mumford  v.  Wardwell.  6 
Wall.  423,  432,  18  L.  Ed.  756;  3  Black- 
stone's   Coin.  378. 

Undoubtedly  a  special  verdict  is  er- 
roneous  if  it   does   not   find  all   the   facts 


essential  to  the  rendering  of  the  judg- 
ment; but  if  it  contain  all  the  facts  re- 
quired for  that  purpose,  the  better  opin- 
ion is  that  the  court  of  original  jurisdic- 
tion may  render  such  judgment  as  the 
facts  found  require,  and  if  they  err  and 
the  error  is  apparent  in  the  record,  that 
such  error  may  be  re-examined  on  writ 
of  error  in  this  court.  Insurance  Co.  v. 
Piaggio,   16  Wall.   378,   388,  21    L.   Ed.   358. 

The  rule  applicable  to  special  verdicts 
was  stated  in  Collins  v.  Riley,  104  U.  S. 
322.  327,  26  L.  Ed.  752— "that  the  special 
verdict  must  contain  all  the  facts  from 
which  the  law  is  to  arise;  that  whatever 
is  not  found  therein  is,  for  the  purposes 
of  a  decision,  to  be  considered  as  not  ex- 
isting; that  it  must  present,  in  substance, 
the  whole  matter  upon  which  the  court 
is  asked  to  determine  the  legal  rights  of 
the  parties,  and  cannot,  therefore,  be 
aided  by  intendment  or  by  extrinsic  facts, 
although  such  facts  may  appear  else- 
where in  the  record,"— which  needs  quali- 
fication in  its  application  to  such  cases  as 
the  present;  for  our  jurisdiction,  in  cases 
of  this  description,  extending  to  a  de- 
termination of  the  questions  of  law  aris- 
ing upon  the  record,  may  be  predicated 
of  facts  which  appear  in  any  part  of  it, 
whether  admitted  by  the  parties  in  the 
pleadings,  or  by  stipulation,  or  found  by 
the  court.  But  it  is  essential  that  the 
findings  of  fact  should  state  the  facts,  and 
not  the  evidence  merely,  even  although 
the  evidence  be  sufficient  to  establish  the 
fact.  Sun  Mutual  Ins.  Co.  v.  Ocean  Ins. 
Co..    107    U.    S.    485.    500,    27    L.    Ed.    337. 

Mr.  Chief  Justice  Marshall  stated  this 
rule  in  Barnes  v.  Williams,  11  Wheat. 
415.  6  L.  Ed.  508,  when  he  said:  "Al- 
though, in  the  opinion  of  the  court,  there 
was  sufficient  evidence  in  the  special  ver- 
dict from  which  the  jury  might  have 
found  the  fact,  yet  they  have  not  found 
it,  and  the  court  could  not,  upon  a  spe- 
cial verdict,  intend  it.  The  special  ver- 
dict was  defective  in  stating  the  evidence 
of  the  fact,  instead  of  the  fa'^t  itself.  It 
was  impossible,  therefore,  that  a  judg- 
ment could  be  pronounced  for  the  plain- 


1060  APPEAL  AND  ERROR. 

mined  that  every  special  verdict,  in  order  to  enable  the  appellate  court  to  act  upon 
it,  must  find  the  facts  and  not  merely  state  the  evidence  of  facts,  as  where  it 
states  the  evidence  merely  without  stating  the  conclusions  of- the  jury,  a  court  of 
errors  cannot  act  upon  such  matters,  even  though  the  evidence  reported  be  suffi- 
cient to  justify  the  assumed  conclusion.^^  Where  the  essential  facts  in  a  special 
verdict  are  not  distinctly  found  by  the  jury,  the  supreme  court  will  not  re-examine 
them,  but  the  court  will  award  a  new  venire  and  remand  the  cause  to  the  court 
below,  as  an  appellate  court  of  errors  cannot  intend  what  is  not  found,  nor  can 
a  judgment  be  rendered  in  any  case  where  the  special  verdict  is  defective  in  stat- 
ing the  evidence  of  the  fact  instead  of  the  fact  itself.-^^ 

In  practice,  the  formal  preparation  of  such  a  verdict  is  made  by  the  coun- 
sel of  the  parties,  and  it  is  usually  settled  by  them,  subject  to  the  correction  of  the 
court,  according  to  the  state  of  facts  as  found  by  the  jury,  with  respect  to  all 
particulars  on  which  they  have  passed,  and  with  respect  to  other  particulars,  ac- 
cording to  the  state  of  facts  which  it  is  agreed  they  ought  to  find  upon  the  evi- 
dence   before    them.^^ 

bb.  Reference  of  Cause  to  Court. — In  a  special  verdict,  the  jury  find  the  facts 
of  the  case  and  refer  the  decision  of  the  cause  upon  those  facts  to  the  court. 
with  a  conditional  conclusion  that  if  the  court  should  be  of  opinion,  upon  the 
whole  matter  as  found,  tliat  the  plaintiflf  is  entitled  to  recover,  then  they  find  for 
the  plaintiff,  but  if  otherwise,  then  they  find  for  the  defendant.  By  leave  of  the 
court  such  a  verdict  may  be  prepared  by  the  parties,  subject  to  the  correction 
of  the  court,  and  it  may  include  agreed  facts  in  addition  to  those  found  by  the 
jury.  When  the  facts  are  settled  and  the  verdict  is  reduced  to  form,  it  is  then 
entered  of  record,  and  the  questions  of  law  arising  on  the  facts  so  found  are  then 
before  the  court  for  hearing  as  in  case  of  a  demurrer .■'•' 

cc.  Presence  and  Assent  of  Court. — A  special  verdict  requires  the  presence 
and   assent  of  the  court.'*'* 

(4)  Revieiv — aa.  In  General. — After  the  special  verdict  is  arranged,  and  it 
is  reduced  to  form,  it  is  then  entered  on  the  record,  together  with  the  other  pro- 
ceedings in  the  cause,  and  the  questions  of  law  arising  on  the  facts  found  are 
then  decided  by  the  court,  as  in  case  of  a  demurrer  ;  and  if  either  party  is  dis- 
satisfied with  the  decision,  he  may  resort  to  a  court  of  error,  where  nothing  is 
open  for  revision,  except  the  questions  of  law  inferentially  arising  on  the  facts 
stated  in  the  special  verdict.^''  It  is  not  so  much  because  the  proceeding  is  de- 
nominated a  special  verdict,  that  the  party  by  virtue  of  it  is  authorized  to  invoke 
the  aid  of  a  revisory  tribunal,  as  it  is  because  it  has  the  effect  to  incorporate  the 

tifif."    This    was    approved    in    Hodges     v.  native    way    usual    in    such    verdicts,    but 

Easton,  106  U.  S.  408.  27  L-  Ed.  169.     And  found  "a   general   verdict  for   the   plaintiff 

see   Prentice   v.    Zane,   8    How.    470.    12    L.  subject  to   the   opinion   of  the   court  upon 

Ed.   1160,  and   Norris  v.  Jackson,  9   Wall.  the  foregoing  recited  facts" — was  "agreed 

12.5,   19   L.   Ed.   608.     Sun   Mutual   Ins.   Co.  to  as  a   special  verdict"  by  counsel  in  th-e 

V.   Ocean   Ins.   Co.,   107   U.   S.   485,   501,   27  cause,  filed  of  record  and  passed  on  as  an 

L.   Ed.   337.  agreed     case     by    the    court    below,      this 

30.  Suydam  v.  Williamson.  20  How.  court — remarking  that  as  a  special  verdict 
427,  432.  15  L.  Ed.  978;  Glenn  v.  Fant,  the  paper  was  defective,  because  not  end- 
134  U.   S.  398.  33  L.   Ed.   969.  ing  with  the  usual   conclusion — in  view   of 

31.  Barnes  v.  W^illiams.  11  Wheat.  415.  the  facts  just  mentioned,  considered  it  as 
416,  6  L.  Ed.  508;  2  Tidd's  Practice.  4th  a  special  verdict  or  agreed  case,  and  on 
Amer.   Ed.  896.  error    to   a    judgment    given    on    it    below. 

32.  Suydam  v.  Williamson.  20  How.  adjudged  the.case  presented  by  it.  Mum- 
427,   432,  15   L.   Ed.  978.  f'^i'd  V.   Warffwell.   6   Wall.   423.    18    L.    Ed. 

__     T>'r  r  i       _   _..      Tif  756,   followed   in    Hartranft   v.   Wiegmann. 

33.  Reference  of  cause  to  court. — Mum-  ,oi  tt  c  cno  «io  qa  t  -ca  inio 
f  J  i,r  J  11  ,.  \\7  ir  ..no  ioo  ^o  T  121  U.  b.  609.  612,  30  L.  Ed.  1012. 
ford  V.   Wardwell.  6  Wall.   423,   432,  18   L. 

£j]    755  34.     Presence    and     assent     of    court.— 

W^here  a  paper  in  the  form  of  a  special  Suydam   v.    Williamson.    20    How.   427.    I.l 

verdict — except    that     after      stating      the  L.   Ed.  978. 

facts,  it  did  not  refer  the  decision  on  them  35.    Review  in  general. — Suydam  v.  Wil- 

tn  the  court  in  the  conditional  and  alter-  liamson,  20   How.  427.  432,  15   L.   Ed.  978. 


APPEAL  AND  ERROR. 


1061 


facts  of  the  case  into  the  record,  which  otherwise  would  have  rested  in  parol,  and 
therefore  could  not  have  been  reached  on  a  writ  of  error.-'''- 

bb.  Exception's  and  Objections — aaa.  In  General. — Exceptions  to  the  order 
of  the  court  in  granting  a  new  trial  do  not  lie  in  any  case,  and  the  losing  party 
in  case  of  juds^ment  in  a  special  case  cannot  except  to  the  rulings  of  the  court 
during  the  trial,  unless  he  seasonably  reserved  the  right  to  turn  the  special  case 
into  a  bill  of  exceptions,  because  the  court  has  no  power,  unless  otherwise  agreed, 
to  render  any  judgment  except  upon  the  verdict  of  the  jury.^'' 

bbb.  Necessity  of  Bill  of  Exceptions. — Special  verdicts  having  a  condi'ional  or 
alternative  finding  are  the  -proper  foundation  of  a  judgment  for  either  party,  as 
the  law  of  the  case  on  the  facts  found  may  require,  and  consequently  the  judg- 
ment of  the  subordinate  court  on  such  a  verdict,  whether  for  plaintiff  or  de- 
fendant, may  be  re-examined  in  the  appellate  tribunal  without  anv  bill  of 
exceptions.^s  vSince  the  finding  of  facts  in  cases  of  admiralty  and  maritime  juris- 
diction has  the  effect  of  a  special  verdict  in  an  action  at  law,  its  sufficiency,  in 
connection  with  the  pleadings,  to  support  the  decree  rendered,  is  always  open  to 
consideration  on  appeal,  although  there  are  no  exceptions  filed.  There  is  no  oc- 
casion in  any  case  to  except  specially  to  a  finding,  as  its  sufficiency,  in  connection 
with  the  pleadings,  to  support  the  decree  rendered  is  always  open  to  considera- 
tion on  appeal." '^ 

cc.  Scof^e  of  Reviexv. — Eeview  of  RuV'-n'rs  Admitting  or  Rejecting-  Evi- 
dence.— The  rulings  of  the  court  in  admitting  or  rejecting  evidence,  can  only 
be  brought  to  this  court  for  revision  by  a  bill  of  exceptions.  Such  rulings  are 
never  properly  included  in  a  special  verdict,  any  more  than  in  an  agreed  state- 
ment of  facts.^<* 


36.  Snydam  v.  Williamson,  20  How. 
427,    433.  "is    L.    Ed.   978. 

37.  Exceptions  and  objections  in  gen- 
eral.— Miimford  v.  Wardwell.  6  Wall.  4:23, 
433,  18  L.   Ed.   756. 

38.  Necessity  of  bill  of  exceptions. — 
Suydam  v.  Williamson.  20  How.  427.  432, 
15  L.  Ed.  978;  Mumford  v.  Wardwell,  6 
Wall.    423,   433,    18    L.    Ed.    756. 

A  special  verdict  was  found  by  the  jury, 
upon  which  judgment  was  to  be  entered 
accord'ng  as  the  opinion  of  the  court 
might  be  upon  the  construction  of  a  cer- 
tain deed,  which  deed  was  referred  to, 
and  made  part  of  the  special  finding  of 
the  jurv,  but  was  not  contained  in  the 
record  thereof.  A  deed  formed  a  part  of 
a  bill  of  exceptions  taken  to  the  opinion 
of  the  court,  upon  a  motion  for  a  new 
trial;  which  bill  of  exceptions,  with  the 
said  deed,  was  contained  in  the  record. 
The  court  cannot  judicially  know  that 
this  is  the  same  deed  which  is  referred  to 
in  the  verdict  of  the  jury,  or  what  are  the 
other  evidences  of  title  connected  with  it. 
M' Arthur  v.  Porter,  l  Pet.  626,  7  L.  Ed. 
29f^. 

Where  the  verdict  is  general,  the  court 
may  enter  judgment  on  the  verdict,  or 
n^ay  set  it  aside  and  grant  a  new  trial,  but 
the  ri'l'ngs  of  the  court  during  the  trial 
cannot  be  revised  on  writ  of  error  save  by 
a  regular  bill  of  exceptions.  Judgments 
also  r^ny  be  rendered  on  the  verdict  in  a 
special  case,  or  a  new  trial  may  be 
granted  because  the  verdict  is  general,  and 
is    for    plaintiff    or    defendant.      Mumford 


7'.    Wardwell,    6   Wall.   423,    433.    18   L.    Ed. 
756. 

39.  The  Adriptic.  107  U.  S.  112.  27  L. 
Ed.  497;  The  Mpo-gig  J.  Smith,  123  U.  S. 
349.   31    L.    Ed.   175. 

40.  Scope  of  review. — Suydam  v.  Wil- 
liamson.  20    How.    427,   15   L.    Ed.   978,    980". 

Special  verdicts  are  where  the  jury  find 
the  facts  of  the  case,  and  upon  those  facts 
refer  the  decision  of  the  cause  to  the 
court,  with  a  conditional  conclusion,  that 
if  the  court  should  be  of  opinion  that  the 
plaintiff,  upon  the  facts  found,  has  a  good 
cause  of  action,  then  they  find  for  the 
plaintiff:  but  if  otherwise,  then  they  find 
for  the  defendant.  Rulings  of  the  court, 
however,  in  admitting  or  rejecting  evi- 
dence, are  never  properly  included  in  a 
special  verdict,  any  more  than  in  an 
agreed  statement  of  facts;  because,  when 
reduced  to  form,  the  verdict  is  then  en- 
tered on  the  record,  and  the  judgment  of 
the  court  is  based  upon  the  findins-s  of 
thf*  iury.  Pomeroy  v.  Bank  of  Indiana. 
1  Wall.   593.   603,  17  L.   Ed.  638. 

It  should  be  observed,  however,  that 
the  rrl'np^s  previously  made  bv  the  court, 
in  admitting  or  rejecting  evidence  during 
the  nrogress  of  the  trial,  are  no  more  re- 
visable  on  a  special  case,  as  it  is  called, 
when  the  verdict  is  taken  subject  to  the 
opinion  of  the  court  on  an  agreed  state  of 
facts,  than  where  the  agreed  statement  is 
s"bmitted  directly  to  the  court,  without 
the  intervention  of  the  jury;  and  for  the 
obvious  reason  that,  in  the  ore  case  as 
much  as  in  the  other,  the  foundation  laid 


1062  '     APPEAL  AND  ERROR. 

dd.  Reversal  or  Affirmance. — Where  in  a  special  verdict,  the  essential  facts 
are  not  distinctly  found  by  the  jury,  although  there  is  sufficient  evidence  to  estab- 
lish them,  although  the  counsel  agreed  below  to  waive  the  exception  to  the  verdict, 
yet  if  the  court  there  render  judgment  on  that  agreement  and  waiver,  as  well  as 
on  the  verdict,  their  decision  is  erroneous,  both  on  the  merits  and  on  the  course 
of  proceeding,  and  ought  to  be  reversed  instead  of  affirmed.-*^  Hence,  where  in 
a  special  verdict,  the  essential  facts  are  not  distinctly  found  by  the  jury,  although 
there  is  sufficient  evidence  to  establish  them,  this  court  will  not  render  a  judg- 
ment, upon  such  an  imperfect  special  verdict,  but  remand  the  cause  to  the  court 
below  for  a  venire  facias  de  novo.^^  Where  there  is  a  case  stated,  or  special 
verdict,  the  court  of  error  must  not  only  reverse  the  judgment  below,  if  found 
erroneous,  but  enter  a  correct  and  final  judgment.  If  a  special  verdict  be  am- 
biguous, or  imperfect— if  it  find  but  the  evidence  of  facts,  and  not  facts  them- 
selves, or  finds  but  part  of  the  facts  in  issue  and  is  silent  as  to  others,  it  is  a 
mistrial,  and  the  court  of  error  must  order  a  venire  de  novo.  They  can  render 
no  judgment  on  an  imperfect  verdict,  or  case  stated.^-^ 

e.  Rczncw  of  Findings  by  Referees,  Arbitrators,  etc. — Right  to  Review. — 
Appellate  courts  are  accustomed  to  revise  decisions  of  arbitrators,  and  upon  prin- 
ciple there  is  no  objection  to  the  introduction  of  the  same  practice  in  the  courts 
of  the  United  States.^^  But  it  has  been  said  that  it  is  doubtful  whether  cases 
tried  in  the  circuit  courts  by  a  referee,  in  states  where  such  a  practice  exists,  can 
be  reviewed  here,  even  under  the  act  .of  1872,  c.  255  (§  914,  Rev.  Stat.),  which 
provides  that,  "the  practice,  pleadings,  and  forms  and  modes  of  proceedings  in 
civil  causes,  other  than  equity  and  admiralty  causes,  in  the  circuit  and  district 
courts,  must  conform,  as  near  as  may  be,  to  the  practice,  pleadings,  and  forms 
and  modes  of  proceeding  existing  at  the  time  in  like  causes  in  the  courts  of  rec- 
ord of  the  state  within  which  such  circuit  or  district  courts  are  held."*-^ 

Exceptions. — Where  no  exception  is  taken  in  the  court  below  to  the  manner 
of  proceeding  before  a  referee,  it  is  too  late  to  make  it  here  for  the  first  time. 
As  where  there  is  no  written  consent  to  the  order  for  a  trial  by  referee,  it  would 
be  an  error  in  the  court,  if  objection  is  made  to  proceed  with  a  new  trial  of  the 
case  after  the  report  is  set  aside  wilhout  a  stipulation  in  writing  waiving  a  jury, 

for   the   action  of  the  revisory   tribunal   is  cuit   court   in    the    district.      Subsequently, 

based  upon  the  consent  of  the  parties   to  it   was   brought   into  this  court   on   a   writ 

the    suit,    and   consequently   the   action    of  of  error   for  revision,   and   was   heard   and 

the    appellate    court    must    be    confined    to  determined  upon  the  matters  properly  ex- 

the  facts  as  they  were  agreed,  and  as  they  hibited   in    the    record;    but   this    court,    in 

appear  in  the  record  of  the  case.     Arthurs  giving   judgment    as    an    unusual   one,    de- 

r.   Hart.   17   How.  6,   15   L.   Ed.  30;   Bixler  nied  that  it  was   competent  for  parties   to 

r.   Kunkle,   17   S.   &   R.  310.     At   one  time  impose  any  such  duties  on  this  court,  and 

an  attempt   was   made  to  introduce   a  dif-  expressly   declared   that   the   case  was   not 

ferent  practice  into  this  court;  but  it  was  to    be    drawn    into   precedent, 

distinctly   disclaimed,   and  has   never  been  41.    Reversal  or  affirmance. — Prentice  v. 

sanctioned  in  writs  of  error  to  any  of  the  Zane,  8  How.  470,  12  L.  Ed.  1160. 

circuit  courts  in  states  where  the  proceed-  42.    Prentice  v.  Zane,  8  How.  470,  12  L- 

ings    are    according   to   the    course    of   the  ^d.    1160.    citing    Chesapeake    Ins.    Co.    v. 

common   law.      Shankland  v.  Washmgton,  Stark,  6  Cranch  268,  3  L.  Ed.  220;  Livmgs- 

5  Pet.  390,  8  L.   Ed.  166.  ton   v.    Maryland    Ins.    Co.,   6    Cranch   274, 

In    Shankland    v.    Washington.     5     Pet.  28O.  3   L.   Ed.  222;  Barnes  v.  Williams,  11 

390,    8    L.    Ed.    166,   it   was   agreed   by   the  Wheat.   415,  6   L.   Ed.   508. 

parties    that    the    question    of    the    admis-  ^^     g^^    Prentice  v.   Zane,   8    How.   470, 

sibi  ity,  competency  and  sufficiency  of  the  ^g       ^^    L.    Ed.    1160;    Graham    v.    Bayne, 

evidence  to  maintain  the  action,  should  be  ^g  ^^^    ^^    ^.^  L.   Ed.  265,  267. 

submitted   to   the   court,  and  that,   in   con-  ..       -n,     ■            i    c    j-           u        --r«_..^» 

sidering    the    evidence,    the    court    should  44      Review    of    findmgs    by     "ferees 

draw  from  it,  so  far  as  it  was  admissible  Yr^'^^^^^l^'T^^^""--}^'^:  ^'%^\n    ±^,,t 

and    competent,    every    inference    of    fact  Myers    18  How.  246,  lo  L.  Ed.  380    citing 

and  law  which  would  have  been  competent  Thornton    v     Carson.    7    Cranch    o96     597, 

for  a  jury  to  have  drawn  from  it;  and  that  ^^'f^-'^^j^'Jf^^.^t    Lmth.cum,   8    Pet. 

agreement    was    appended    to    an    agreed  1^5,  166.  8  i^.   t,a.  904. 

statement  of  facts,  on  which  the  case  was  45.     Boogher   v.    Insurance    Co.,    103    U. 

submitted  to  the  determination  of  the  cir-  S.  90,  95,  26  L.   Ed.  310. 


APPEAL  AND  ERROR. 


1063 


as  iM-ovided  by  §  649  of  the  Revised  Statutes.^« 

Scope  of  Review. — Where  an  action  at  law  in  a  circuit  court  is  referred  to 
a  referee  to  determine  the  issues  therein,  and  he  files  his  report  finding  facts  and 
conclusions  of  law.  and  directs  that  there  be  a  money  judgment  for  the  plaintiff, 
if  the  case  was  not  tried  by  the  circuit  court  an  the  filing  of  a  waiver  in  writing 
of  a  trial  by  jury,  this  court  cannot  review  any  of  the  exceptions  taken  to  the 
admission  or  exclusion  of  evidence,  or  any  of  the  exceptions  to  the  findings  of 
fact  by  the  referee,  or  to  his  refusal  to  find  the  facts  as  requested.^'  Wlien  the 
trial  is  by  rule  of  court  and  consent  of  parties  before  a  referee  or  arbitrator, 
no  question  of  law  can  be  reviewed  on  error,  except  whether  the  facts  found  by 
him  support  the  judgment  below.-* ^ 

This  court  cannot  revise  the  mistakes  of  an  arbitrator,  either  of  law  or 
fact,  if  such  has  been  established.'*^ 

Where  the  case  is  referred  by  the  court  to  a  master  to  report,  not  the 
evidence  merely,  but  the  facts  of  the  case,  and  his  conclusions  of  law  thereon, 
his  finding,  so  far  as  it  involves  questions  of  fact,  is  attended  by  a  presump- 
tion of  correctness  similar  to  that  in  the  case  of  a  finding  by  a  referee,  ti'e 
special  verdict  of  a  jury,  the  findings  of  a  circuit  court  in  a  case  tried  by  the  court 
under  Rev.  Stat.,  §  649.  or  in  an  admiralty  cause  appealed  to  this  court.  In 
neither  of  these  cases  is  the  finding  absolutely  conclusive,  as  if  there  be  no  testi- 
mony tending  to  support  it ;  but  so  far  as  it  depends  upon  conflicting  testimony, 
or  upon  the  credibility  of  witnesses,  or  so  far  as  there  is  any  testimony  consist- 
ent  with    the  finding,  it    must  be  treated  as  unassailable.-^^     The   finding  of    the 


46.  Dundee  Mortgage,  etc.,  Co.  v. 
Hughes.  124  U.  S.  157,  31  L.  Ed.  357. 

47.  Roberts  v.  Benjamin,   124  U.   S.   64, 

31  L.  Ed.  334,  citing  Bond  v.  Dustin,  112 
U.  S.  604.  607,  28  L.  Ed.  835;  Paine  v.  Cen- 
tral Vermont  R.  Co..  118  U.  S.  152,  158, 
30  L.  Ed.  193;  Republican  River  Bridge 
Co.  v.  Kansas  Pac.  R.  Co.,  92  U.  S.  315, 
23  L.  Ed.  515. 

This  case  not  having  been  tried  by  the 
circuit  court  on  the  filing  of  a  waiver  in 
writing  of  a  trial  by  jury,  this  court  can- 
not on  this  writ  of  error  review  any  of 
the  exceptions  taken  to  the  admission  or 
exclusion  of  evidence,  or  any  of  the  ex- 
ceptions to  the  findings  of  fact  by  the 
referee,  or  to  his  refusal  to  find  facts  as 
requested.  Bond  v.  Dustin.  112  U.  S.  604, 
606,  607,  28  L.  Ed.  835;  Paine  v.  Central 
Vermont  R.  Co.,  118  U.  S.  152,  158.  30  L. 
Ed.  193;  Roberts  v.  Benjamin,  124  U.  S. 
64,   74.    31    L.    Ed.    334. 

48.  Campbell  v.  Boyreau,  21  How.  223, 
16  L.  Ed.  96;  Bond  v.  Dustin,  112  U.  S. 
604,  606,  28  L.  Ed.  835;  Paine  v.  Central 
Vermont  R.  Co.,  118  U.  S.  152.  30  L.  Ed. 
193;   Andes  v.   Slauson,  130  U.  S.  435,  438. 

32  L.    Ed.  989. 

49.  York,  etc.,  R.  Co.  v.  Myers,  18  How. 
246.  15  L.  Ed.  380,  citing  Burchell  v. 
Marsh,  17  How.  344.  15  L.  Ed.  96. 

50.  Wiscart  v.  D'Auchy,  3  Dall.  321.  1 
L.  Ed.  619:  Bond  t-.  Brown,  12  How.  254, 
13  L.  Ed.  977;  Graham  v.  Bayne,  18  How. 
60,  62,  15  L.  Ed.  265;  Norris  v.  Jackson. 
9  Wall.  125,  19  L.  Ed.  608;  Insurance  Co. 
V.  Folsom,  18  Wall.  237,  249,  21  L.  Ed. 
827;  The  Abbotsford.  98  U.  S.  440,  25  L. 
Ed.  168;  Davis  f.  Schwartz,  155  U.  S. 
631,    636,   38   L.    Ed.   289. 


"The  question  of  the  conclusiveness  of 
findings  by  a  master  in  chancery  under  a 
similar  order  was  directly  passed  upon  in 
Kimberly  v.  Arms.  129  U.  S.  512,  32  L. 
Ed.  764,  in  which  a  distinction  is  drawn 
between  the  findings  of  a  master  under 
the  usual  order  to  take  and  report  testi- 
mony, and  his  findings  when  the  case  is 
referred  to  him  by  consent  of  parties,  as 
in  this  case.  While  it  was  held  that  the 
court  could  not.  of  its  motion,  or  upon 
the  request  of  one  party,  abdicate  its  duty 
to  determine  by  its  own  judgment  the  con- 
troversy presented,  and  devolve  that  duty 
upon  any  of  its  officers,  yet  where  the 
parties  select  and  agree  upon  a  special 
tribunal  for  the  settlement  of  their  con- 
troversy, there  is  no  reason  why  the  de- 
cision of  such  tribunal,  with  respect  to 
the  facts,  should  be  treated  as  of  less 
weight  than  that  of  the  court  itself, 
where  the  parties  expressly  waive  a  jury, 
or  the  law  declares  that  the  appellate 
court  shall  act  upcn  the  finding  of  a  sub- 
ordinate court.  'Its  findings,'  said  the 
court,  'like  those  of  an  independent 
tribunal,  are  to  be  taken  as  presumptively 
correct,  subject,  indeed,  to  be  reviewed 
under  the  reservation  contained  in  the 
consent  and  order  of  the  court,  when 
there  has  been  manifest  error  in  the  con- 
sideration given  to  the  evidence,  or  in 
the  application  of  the  law,  but  not  other- 
wise.' As  the  reference  in  this  case  was 
by  consent  to  find  the  facts,  we  think  the 
rule  in  Kimberly  v.  Arms,  129  U.  S.  512. 
32  L.  Ed.  764,  applies,  and  as  there  is 
nothing  to  show  that  the  findings  of  fact 
were  unsupported  by  the  evidence,  we 
think  they  must  be  treated  as  conclusive. 


iUo4 


APPEAL  AND  ERROR. 


master  upon  conflicting  evidence,  which  finding  the  court  below  concurred  in,  ex- 
cept in  some  unimportant  particulars  will  be  permitted  to  stand,  if  no  obvious 
error  or  mistake  has  been  pointed  out  to  us.-"^^ 

Facts  Found  by  Referee. — Where  an  action  at  law  in  a  circuit  court  is  re- 
ferred to  a  referee  to  determine  the  issues  therein,  and  he  files  his  leport  find- 
ing facts  and  conclusions  of  law  and  directs  that  there  be  a  money  judgment  for 
the  plaintiff,  the  only  questions  open  to  review  here  are  whether  there  was  any 
error  of  law  in  the  judgment  rendered  by  the  circuit  court  upon  the  facts  found 
by  the  referee.  The  judgment  having  been  entered  "pursuant  to  the  report  of 
the  referee,"  the  facts  found  by  him  are  conclusive  in  this  court.^^ 


To  same  effect  are  Cra^yfol-d  v.  Neal,  144 
TT.  S.  585.  596,  .36  L.  Ed.  55-^;  Furrer  v. 
Ferris,  145  U.  S.  132.  36  L.  Ed.  649." 
Davis  V.  Schwartz,  155  U.  S.  631,  637,  38 
L.   Ed.  289. 

51.  Warren  v.  Keep,  155  U.  S.  255,  265. 
38  L.  Ed.  144,  citing  Tilghman  t'.  Proc- 
tor, 125  U.  S.  136.  31  L.  Ed.  664;  Craw- 
ford V.  Neal,  144  U.  S.  585,  36  L.  Ed.  552; 
Furrer  v.  Ferris,  145  U.  S.  132.  36  L.  Ed. 
C,4<.\ 

52.  Roberts  v.  Benjamin,  124  U.  S.  64, 
31  L.  Ed.  334,  citing  Thornton  v.  Carson. 
7  Cranch  .596,  601.  3  L.  Ed.  451;  Alexan- 
dria Canal  v.  Swann,  5  How.  83,  12  L-  Ed. 
60;  York,  etc.,  R.  Co.  v.  Myers,  18  How. 
246,  15  L.  Ed.  380;  Hecker  v.  Fowler,  2 
Wall.  123.  17  L.  Ed.  759;  Bond  v.  Dustin, 
113  U.  S.  604,  606.  28  L.  Ed.  835;  Paine  v. 
Central  Vermont  R.  Co..  118  U.  S.  152, 
l.-^S.  30  L.  Ed.  193;  Latta  ?•.  Granger,  167 
U    ?^.   81,   86,   42    L.   Ed.   85. 

Where  a  case  is  referred  to  a  referee 
instructions  to  report  the  testimony,  with 
the  findings  of  fact  and  of  law  to  the  court, 
and  the  court  in  its  judgment  ordered  his 
findings  to  stand  as  the  findings  of  the 
court,  the  only  questions  before  this  court 
are  whether  the  facts  found  by  the  referee 
sustain  the  jud'?ment.  "As  the  case  was  not 
tried  by  the  circuit  court  upon  a  waiver  in 
writing  of  a  trial  by  jury,  this  court  can- 
not review  exceptions  to  the  admission 
or  exclusion  of  evidence,  or  to  findings 
of  fact  by  the  referee,  or  to  his  refusal 
tri  find  facts  as  requested.  Roberts  v. 
renjjimin.  1^4  U.  S.  64,  31  L.  Ed.  334; 
P.oogher  V.  Insurance  Co.,  103  U.  S.  90, 
26  L.  Ed.  310;  Bond  v.  Dustin.  112  U.  S. 
604,  28  L.  Ed.  835;  Paine  v.  Central  Ver- 
mont R.  C"..  118  U.  S.  152.  30  L.  Ed.  193; 
.Ardes  v.  Slauson,  130  U.  S.  435,  32  L.  Ed. 
ft'=9."  Shipman  7'.  Straitsville  Central 
Min.  Co.,  158  U.  S.  356,  361,  39  L.  Ed. 
1015. 

Where  the  record  shows  that  the  cause 
cnnie  on  before  the  district  judge,  holding 
the  circuit  court,  for  trial,  "without  a  jury, 
and  a  trial  by  jury  having  been  expressly 
waived  by  the  written  consent  of  the  par- 
tics  duly  filed;"  that  a  referee  was  ap- 
pointed by  written  consent  in  accordance 
with  the  modes  of  procedure  in  such  cases 
in  the  courts  of  record  of  New  York,  and 
vith  the  rules  of  the  circuit  court;  and 
that  his  findings,  rulings  and  decisions  are 


made  those  of  the  court,  the  question 
whether  the  judgment  rendered  was  war- 
ranted by  the  facts  found  is  open  for  con- 
sideration in  the  circuit  court  of  appeals, 
and  is  so  here,  and  that  is  sufficient  for 
the  disposition,  of  the  case.  Shipman  v. 
Straitsville  Central  Min.  Co.,  158  U.  S. 
356,  39  L.  Ed.  1015;  Chicago,  etc.,  R.  Co. 
r.  Clark,  178  U.  S.  353,  364.  44  L.  Ed. 
1099. 

Even  in  actions  duly  referred  by  rule  of 
court  to  an  arbitrator,  only  rulings  and 
decisions  in  matter  of  law  after  the  re- 
turn of  the  award  were  reviewable. 
Thornton  v.  Carson,  7  Cranch  596,  601,  3 
L.  Ed.  451;  Alexandria  Canal  v.  Swann. 
5  How.  83,  12  L.  Ed.  60;  York,  etc..  R. 
Co.  V.  Myers,  18  How.  246,  15  L.  Ed.  380; 
Hecker  v.  Fowler,  2  Wall.  123.  17  L.  Ed. 
759;  Bond  v.  Dustin.  112  U.  S.  604,  606, 
28  L.  Ed.  835. 

Where  the  case  is  not  submitted  to  the 
decision  of  the  court  without  a  jury,  pur- 
suant to  the  Revised  Statutes  of  the 
United  States,  §§  649.  700;  but  to  the  de- 
cision of  the  judge  as  referee,  in  accord- 
ance with  the  statutes  and  practice  of 
Vermont;  Gen.  Stat.  1862.  ch.  30.  §  52; 
Rev.  Laws  1880,  §  985;  White  v.  White, 
21  Vt.  250;  Melendy  v.  Spaulding,  54  Vt. 
517,  the  only  question  presented  by  the 
writ  of  error  is  whether  there  is  any  error 
of  law  in  the  judgment  rendered  bv  the 
court  upon  the  facts  found  by  the  referee. 
Paine  z'.  Central  Vermont  R.  Co.,  118  U. 
S.  152,  158,  30  L.  Ed.  193,  citing  Bond  v. 
Dustin,  112  U.  S.  604,  606,  607,  28  L-  Ed. 
835. 

In  Andes  v.  Slauson,  1.30  U.  S.  435,  32 
L.  Ed.  989.  there  was  no  demurrer,  or 
cpse  stated,  or  special  verdict,  or  finding 
of  facts  by  the  court  or  by  a  referee,  pre- 
s<"ntinsr  a  pvre  cuie«tion  of  law.  But  the 
pleadings  presented  issues  of  fact  which, 
in  the  legal  and  rein'lar  course  of  pro- 
ceedings could  be  tried  by  a  jury  only, 
and  at  a  stated  term  of  the  court,  unless 
the  parties  either  in  writing  waived  the 
jury  and  submitted  the  case  to  the  court's 
decision,  or  else  agreed  that  the  case 
should  be  tried  and  determined  by  a 
referee.  There  was  no  waiver  of  a 
jury  trial  and  submission  and  determina- 
tion of  all  the  issues  of  fact  to  the  court. 
But  the  case  was  tried  by  consent  of  the 
parties   before   the  judge  at   chambers   un- 


APPEAL  AND  ERROR. 


1005 


Hearing  and  Determination. — In  order  to  give  this  court  jurisdiction  to 
determine  whether  the  facts  found  by  the  referee,  and  confirmed  by  the  court 
below,  are  sufficient  to  support  the  judgment,  they  must  be  treated  as  the  finding 
of  the  court.  Otherwise,  there  has  not  been  such  a  judicial  determination  of  them 
as  to  make  them  conclusive  here.-^^ 

f.  Other  Methods  Considered. — In  General. — The  methods  set  forth  above 
are  probably  the  only  modes  by  which  facts  can  be  submitted  to  the  court  though 
in  a  few  cases  attempts,  usually  futile,  have  been  made  to  adopt  other  methods.^* 
The  supreme  court  cannot  take  cognizance  of  any  suit  or  controversy,  which 
was  not  brought  before  them  by  the  regular  process  of  the  law.'^^^ 

Review  of  Case  Made. — Where  the  case  made,  which,  by  the  terms  of  the 
verdict,  either  party  was  at  liberty  to  turn  into  a  bill  of  exceptions,  set  forth  the 
entire  evidence  adduced  at  the  trial,  but  is  not  an  agreed  statement  of  facts,  nor 
a  special  verdict,  nor  a  finding  of  facts  by  the  court,  and  contains  no  exceptions, 
it  cannot  be  treated  as  the  basis  of  any  assignment  of  errors.-^" 


der  rn  order  providing  that  it  should  be 
so  tried,  and  that  "if  it  should  appear  to 
the  judge  upon  such  trial  that  there  are 
questions  of  fact  arising  upon  the  issues 
therein,  if  of  such  a  character  that  the  judge 
would  submit  them  to  the  jury  if  one  were 
present"  they  should  be  submitted  to  the 
jury  at  the  next  term  of  the  court,  when 
the  only  find'ng  of  the  judge  is  a  general 
finding  for  the  plaintiff.  It  was  held,  that 
the  trial  thus  ordered  consented  to  and 
had,  was  neither  a  trial  by  jury,  nor  a 
trial  by  the  court,  in  accordance  with  the 
act  of  congress,  but  was  a  trial  by  the  judge 
as  a  referee.  And  since  it  derived  its  whole 
efficacy  from  the  consent  of  the  parties, 
the  bill  of  exceptions  allowed  at  the  trial 
is  irregular  and  unavailing,  and  the  facts 
stated  in  the  bill  of  exceptions  cannot  be 
regarded,  nor  the  ruling  stated  therein  re- 
viewed,  by  this   court. 

53.  Boogher  v.  Insurance  Co.,  103  U. 
S.   90,  26    L.    Ed.   310. 

54.  Other  methods  considered. — See 
Shankland  v.  Washington,  5  Pet.  390,  8 
L.   Ed.    IfiG. 

55.  Dewhurst  v.  Coulthard,  3  Dall.  409, 
1   L.   Ed.   6.58. 

An  agreed  statement  of  a  case  was  pre- 
sented to  the  court,  at  the  instance  of  the 
attorneys  for  both  the  parties,  in  a  suit 
in  a  circuit  court,  with  a  request  that  it 
might  be  considered  and  decided,  and  it 
was  pcreed  that  judsrment,  in  accordance 
with  the  opinion  of  the  court,  be  entered. 
Held,    that    the   court    will    not   take    cog- 


nizance of  the  case.  Dewhurst  v.  Coulth- 
ard, 3   Dall.  409,   1  L.   Ed.  658. 

56.  Redfield  v.  Ystalyfera  Iron  Co.,  110 
U.  S.  174,  175,  28  L.  Ed.  109.  See  Andes 
V.  Slauson,  130  U.  S.  435,  438,  32  L.  Ed. 
981). 

Review  on  written  stipulation  alone. — 
"To  obviate  any  objection  that  this  court 
could  not  review  the  judgment  in  this 
case  because  there  was  no  general  ver- 
dict of  the  jury,  and  no  special  verdict  in 
any  form  known  to  the  common  law,  and 
no  waiver  in  writing  of  a  jury  trial,  and 
no  such  finding  by  the  court  below  upon 
the  facts  as  is  provided  for  by  §  649  of 
the  Revised  Statutes,  the  parties  have 
filed  in  this  court  a  written  stipulation, 
agreeing  'that  the  facts  appearing  from 
the  special  verdict  and  stated  by  the  bill 
of  exceptions  to  have  been  proved,  shall 
be  taken  and  considered  as  the  facts  in 
this  case  for  all  purposes,  and  as  fully  as 
if  they  had  been  specifically  found  by  the 
circuit  court;'  and  'that  the  circuit  court 
submitted  certain  questions  to  the  jury  by 
agreement  of  the  parties,  and  that  the 
other  facts  were  to  be  found  and  stated 
as  shown  by  the  bill  of  exceptions,  and 
that  upon  the  whole  case,  as  thus  shown, 
judgment  was  to  be  pronounced  by  the 
court  below,  as  they  should  determine  the 
law,'  and  the  court  on  this  written  stipu- 
lation reviewed  the  case  on  a  writ  of  er- 
ror, and  reversed  the  judgment  below." 
Geekie  v.  Kirby  Carpenter  Co.,  106  U.  S. 
379,   3S3,   27    L.    Ed.    1.^7. 


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